Amicus Curiae Brief — Kevin B. Burns, Petitioner v. Tony Mays, Warden

No. 22-5891

CAPITAL CASE

In The

Supreme Court of the United States

__________

KEVIN B. BURNS,

Petitioner,

v.

TONY MAYS, WARDEN,

___________________

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________

BRIEF FOR AMICUS CURIAE

LAY AND ORDAINED MINISTERS

IN SUPPORT OF PETITIONER

____________________

BRIAN F. IRVING

Counsel of Record

David R. Esquivel

BASS, BERRY & SIMS PLC

150 3rd Ave. S., Ste. 2800

Nashville, TN 37201

(615) 742-6200

birving@bassberry.com

Counsel for Amicus Curiae

Lay and Ordained Ministers

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE .................... 1

STATEMENT OF THE CASE .................................... 3

SUMMARY OF THE ARGUMENT ............................ 5

ARGUMENT ................................................................ 6

I.

Burns’s Sixth Amendment Right to Counsel

Was

Violated

Because

His

Counsel

Unreasonably Failed to Present Mitigating

Evidence to the Jury ............................................. 6

a. This

Court’s

Precedents

Require

Consideration of Moral Culpability in

Capital Sentencing ......................................... 6

b. Ample Record Evidence Shows that Burns

Did Not Kill Dawson....................................... 8

II. Putting Burns to Death Is Incompatible with

Christian

Ethics,

Which

Require

Consideration of Moral Culpability in Capital

Sentencing ........................................................... 10

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Va.,

536 U.S. 304 (2002)............................................ 6, 10

Enmund v. Fla.,

458 U.S. 782 (1982).................................................. 7

Ford v. Wainwright,

477 U.S. 399 (1986)................................................. 2

Glossip v. Gross,

576 U.S. 863 (2015)................................................. 6

Kansas v. Marsh,

548 U.S. 163 (2006)......................................... 5, 7, 8

Lockett v. Ohio,

438 U.S. 586 (1978).................................................. 7

McCleskey v. Kemp,

481 U.S. 279 (1987).................................................. 2

Roper v. Simmons,

543 U.S. 551 (2005).............................................. 6, 7

State v. Hartman,

42 S.W.3d 44 (Tenn. 2001) ...................................... 7

iv

State v. Ivy,

188 S.W.3d 132 (Tenn. 2006) .................................. 7

Strickland v. Washington,

466 U.S. 668 (1984).......................................... 2, 8, 9

Woodson v. N.C.,

428 U.S. 280 (1976).................................................. 6

Statutes

Tenn. Code Ann. § 39-13-204(c) .................................. 7

Other Authorities

Franklin Community Church, The Licensure of

Kevin Burns and Lorraine Dunlap, YouTube

(Mar.

5,

2017),

https://www.youtube.com/watch?v=q5QQfUVE

Jpo ............................................................................ 4

https://www.youtube.com/@franklincommunitych

urch2134 .................................................................. 5

Bible

2 Samuel 11 ............................................................... 10

Acts 7:57 ..................................................................... 11

Deuteronomy 19:15.................................................... 12

Esther 4:14 ............................................................... 3, 4

v

Exodus 2:11 ................................................................ 10

Exodus 21:12 .............................................................. 10

Genesis 4:8 ................................................................. 10

John 8:1 ...................................................................... 11

Matthew 5:7 ............................................................... 11

Matthew 23:23 ........................................................... 11

Matthew 25:40 ........................................................... 12

Micah 6:8.................................................................... 12

1

INTEREST OF THE AMICUS CURIAE 1

Under the tenets of the amicus parties’ faith

and the law of the land, if the death penalty is ever to

be applied, it must be reserved for the worst offenders.

Because Petitioner Kevin Burns did not take a life, it

is unjust for the state to put him to death. Due to the

ineffective assistance of counsel, the jury that passed

Burns’s sentence was not given the opportunity to

take his lack of moral culpability into account in

making its decision. This error cannot be allowed to

stand.

Amicus curiae are lay and ordained Christian

ministers concerned that the use of capital

punishment be morally justified. Amicus curiae can

also speak to Burns’s ordination as a Christian

minister while incarcerated and to the positive impact

his ministry has had both in prison and in the broader

community. Amicus curiae are compelled to share

their views and experiences out of concern that

without this Court’s intervention, Burns’s good works

will unjustly be cut off. Amicus curiae are:

Shane Claiborne is a prominent Christian

speaker, activist, and bestselling author. He is the

author of nine books. His work has appeared in

leading national news publications, and he has given

1 No counsel for a party authored this brief in whole or in part

and no such counsel or a party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amicus curiae or its counsel made such a

monetary contribution. The parties were given proper notice and

consented to this filing.

2

academic lectures at some of the country’s premier

universities.

Rev. Dr. Joe Ingle has worked in prison

ministry throughout the South since 1974. In his work

with the condemned, he has been spiritual adviser to

men in several cases where this Court has ruled on

constitutional standards: David Washington in

Strickland v. Washington, 466 U.S. 668 (1984); Alvin

Ford in Ford v. Wainwright, 477 U.S. 399 (1986); and

Warrant McCleskey in McCleskey v. Kemp, 481 U.S.

279 (1987). Ingle has written three books about his

experiences. He is a United Church of Christ minister,

the author of the denomination’s statement about the

death penalty in the General Synod of 1979, and a

leading voice in seeking prison and sentencing reform.

He graduated from Union Theological Seminary,

where he lived and worked in East Harlem, and was

awarded a Merrill Fellowship to Harvard University.

He has been nominated twice for the Nobel Peace

Prize.

Dan Mann is a talent representative who visits

inmates on Tennessee’s death row and knows Burns

and his ministry.

Rev. Dr. Kevin Riggs is the Senior Pastor at

Franklin Community Church in Franklin, Tennessee.

He regularly visits inmates on Tennessee’s death row,

and through that work developed a relationship with

Burns, who became an ordained minister through

Franklin Community Church five years ago. The

church now employs Burns as a minster. Burns

regularly delivers sermons to the church and teaches

3

Bible study for church members, besides ministering

to other death row inmates.

Wes Yoder is a literary agent and author who

represents faith-based authors and speakers. Among

other notable accomplishments, Yoder is the Director

of the New Canaan Society of Middle Tennessee and

represented Paul Young in publishing The Shack.

Paul Young is the author of several books,

including the New York Times bestselling novels The

Shack, Eve, and Cross Roads. Young’s books explore

topics of Christianity and morality.

STATEMENT OF THE CASE

“For such a time as this”

—Esther 4:14

The statement of the case in Burns’s petition for

writ of certiorari discusses the background related to

Burns’s legal proceedings.

Amicus curiae write

separately to share their experience of the remarkable

life Burns leads despite his confinement in prison.

When people ask how he is doing, Burns is

known to respond, “Today is the best day of my life.”

One of Burns’s greatest achievements is that he

became an ordained minister five years ago through

the Franklin Community Church in Franklin,

Tennessee.

This was no small feat.

Burns’s

ordination was the culmination of a multi-year process

that required Burns to prove his active ministry by

tracking and recording his ministries over time and to

4

answer questions about Christian doctrine. 2 Burns’s

accomplishment is all the more impressive because he

is self-taught in prison, relying on little more than his

well-worn copy of the Bible.

But Burns is committed to his ministry. “Pastor

Kevin,” as he is known even by the prison guards,

draws inspiration from a passage from the Book of

Esther: “And who knows but that you have come to

royal position for such a time as this.” Esther 4:14.

Burns embodies the teaching of this passage to turn

one’s circumstances into a calling to act for the benefit

of others.

Burns uses his death sentence to be of service

to fellow inmates, especially those facing execution.

He established a church—the Church of Life—through

which he ministers to fellow inmates. Burns gave

particular comfort to inmates during the COVID-19

pandemic: outside ministries were prohibited from

entering the prison, but every week there was a

church service on death row because Pastor Kevin

could lead it. Burns is often one of the last people

inmates speak with before their execution.

Burns’s ministry extends well beyond prison.

Burns is employed as a minister at Franklin

Community Church and regularly preaches to

2 A video of Burns’s licensure, a step in the ordination process, is

available online. Franklin Community Church, The Licensure of

Kevin Burns and Lorraine Dunlap, YouTube (Mar. 5, 2017),

https://www.youtube.com/watch?v=q5QQfUVEJpo.

5

members of the church by telephone. 3 This year, for

instance, he will deliver sermons to the church during

Thanksgiving and Christmas. Burns also teaches a

weekly Bible study for Franklin Community Church

families. From death row, Burns has launched a

ministry benefitting both those in prison and in the

larger community.

SUMMARY OF THE ARGUMENT

This Court’s precedents require the jury to

consider all relevant mitigation evidence when

deciding whether to impose a sentence of death.

Kansas v. Marsh, 548 U.S. 163, 171 (2006). The record

shows that Burns did not take another human life.

But due to the ineffective assistance of counsel, the

jury was not able to consider that fact because Burns’s

trial counsel unreasonably failed to impeach the

witnesses who identified Burns as the killer. Because

Burns’s counsel did not present the jury with evidence

of Burns’s innocence—which Burns had a right to

present under state law—Burns was deprived of his

constitutional right to counsel. His capital sentence is

incompatible with constitutional standards of justice.

Putting Burns to death is also inconsistent with

Christian ethics, which similarly require the

consideration of moral culpability in sentencing and

the exercise of mercy whenever possible. Because the

jury was unable to consider evidence that Burns was

Many of Burns’s sermons are available on the Franklin

See

Community

Church

YouTube

page.

https://www.youtube.com/@franklincommunitychurch2134.

3

6

not the killer, it cannot have rendered a punishment

that was just.

ARGUMENT

I.

Burns’s Sixth Amendment Right to Counsel

Was

Violated

Because

His

Counsel

Unreasonably Failed to Present Mitigating

Evidence to the Jury

a. This

Court’s

Precedents

Require

Consideration of Moral Culpability in

Capital Sentencing

This Court has recognized that “the penalty of

death is qualitatively different from a sentence of

imprisonment.” Woodson v. N.C., 428 U.S. 280, 305

(1976) (“Death, in its finality, differs more from life

imprisonment than a 100-year prison term differs

from one of only a year or two.”) (plurality opinion).

Thus “[c]apital punishment must be limited to those

offenders who commit ‘a narrow category of the most

serious crimes’ and whose extreme culpability makes

them ‘the most deserving of execution.’” Roper v.

Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v.

Va., 536 U.S. 304, 319 (2002)). In other words, capital

punishment is reserved for the “worst offenders.” Id.

at 569.

To give effect to this limitation, this Court has

held that in making “the moral judgment between life

and death,” Glossip v. Gross, 576 U.S. 863, 902–03

(2015) (Thomas, J., concurring), the jury must

consider the defendant’s “personal responsibility and

7

moral guilt.” Enmund v. Fla., 458 U.S. 782, 801

(1982). A key feature of the jury’s exercise of moral

judgment is its consideration of mitigating evidence.

“[A]s a requirement of individualized sentencing, a

jury must have the opportunity to consider all

evidence relevant to mitigation.” Kansas v. Marsh,

548 U.S. 163, 171 (2006). And a defendant “has wide

latitude to raise as a mitigating factor ‘any aspect of

[his or her] character or record and any of the

circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.’”

Roper, 543 U.S. at 568 (quoting Lockett v. Ohio, 438

U.S. 586, 604 (1978) (plurality opinion)).

This Court’s precedents recognize the discretion

states are afforded in regulating the sentencing

process, including the use of mitigating evidence. See

Marsh, 548 U.S. at 175. Under the Tennessee

sentencing laws applicable here, a defendant

possesses the right to introduce residual doubt

evidence as a mitigating circumstance. See State v.

Ivy, 188 S.W.3d 132, 156 (Tenn. 2006). This right is

grounded in Tennessee statute. See id. (citing Tenn.

Code Ann. § 39–13–204(c) (“In the sentencing

proceeding, evidence may be presented as to the

nature and circumstances of the crime; the

defendant’s character, background history, and

physical condition; . . . and any evidence tending to

establish or rebut any mitigating factors.”)). And it

includes the right to introduce impeachment evidence

at the sentencing phase. See State v. Hartman, 42

S.W.3d 44, 57 (Tenn. 2001) (“Where, as here, the

proffered residual doubt proof is impeachment of the

testimony of the only witness who offered direct rather

8

than circumstantial proof of the defendant’s

involvement in the crime, such proof clearly is

relevant and admissible to establish residual doubt as

a mitigating circumstance.”).

These protections mean nothing, of course, if

the defendant is not adequately represented by

counsel, whose job it is to “ensure that the adversarial

testing process works to secure a just result.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Counsel who fails to present relevant mitigating

evidence to the jury fails to vindicate the defendant’s

“right to present sentencers with information relevant

to the sentencing decision” and bars the jury from

meeting its obligation “to consider that information in

determining the appropriate sentence.” Marsh, 548

U.S. at 175.

b. Ample Record Evidence Shows that

Burns Did Not Kill Dawson

This case illustrates the need for competent

counsel to present mitigating evidence in capital

sentencing. Both witnesses who identified Burns as

Dawson’s killer could—and should—have been

impeached on their identifications.

First, victim Eric Thomas identified Dawson’s

shooter as “Number 5” in a photo lineup, which was

identified at trial as Burns. App. 73; R. 139-6,

PageID# 2699. But during the previous trial of

defendant Derrick Garrin, Thomas had testified that

Dawson was shot by “the big fellow with glasses.”

App. 73. Burns is 5’ 7” and does not wear glasses;

9

Garrin is 6’4” and does wear glasses. App. 10; R. 1398, Page ID# 2968; R. 139-23, PageID# 3981. Witness

Eric Jones similarly identified a 6’4” man with glasses

as the person pointing a gun at Dawson, further

undermining Thomas’s identification of Burns as

Dawson’s shooter. R. 139-5, PageID# 2586-2612.

Second, witness Mary Jones testified that there

were two gunmen who both wore Jheri curls, and

identified Burns (on cross-examination by defense

counsel) as one shooter based on his hairstyle in court.

App. 79-80, R. 139-6, PageID# 2639-41. Yet Burns had

short hair at the time of the shooting that he did not

wear in a Jheri curl. R. 139-27, PageID# 4926; R. 13929, PageID# 5193; R. 139-30, PageID# 5383-84, 539899; R. 139-33, PageID# 5830-34.

But for the ineffective assistance of counsel, this

impeachment evidence would have been presented to

the jury and would have been material to the jury’s

sentencing decision. Indeed, the jury imposed a life

sentence on Burns for the death of Johnson, whom it

was clear Burns did not kill. Moreover, the record

demonstrates that counsel’s failure to present this

evidence to the jury was not a “strategic choice.”

Strickland, 466 U.S. at 681. How could it have been?

It appears that counsel simply missed it. R. 139-27,

PageID# 5009. Under the Sixth Amendment, counsel

in a capital case should always be expected to impeach

a witness who identifies the defendant as the killer

where such mitigation evidence is permitted as of

right under state law, as it was for Burns. Because

Burns’s counsel failed to arm the jury with this critical

information to be weighed in making the sentencing

10

decision, this Court should summarily reverse the

Sixth Circuit’s decision or, in the alternative, grant

certiorari.

II.

Putting Burns to Death Is Incompatible with

Christian Ethics, Which Require Consideration

of Moral Culpability in Capital Sentencing

In a related context, this Court has looked to the

views of “religious communities in the United States,”

including the Christian community, when evaluating

the appropriateness of the death penalty under the

Eighth Amendment. See Atkins, 536 U.S. at 316 n.

21.

Here, amicus curiae write to affirm their

understanding that Christian ethics require

punishment to be based on an offender’s conduct and

intentions. Under Christian doctrine, a sentence that

does not consider moral culpability cannot be just.

Start with the Hebrew Scriptures. The Old

Testament Laws, beginning with the Noahic

Covenant, allow for the death penalty to be imposed in

some circumstances, including for murder. Exodus

21:12–14.

But the Hebrew Scriptures contain

examples where God spares the lives of people who

have committed murder. For instance, Cain killed his

brother Abel, yet God showed Cain mercy and spared

Genesis 4:8–15. Moses murdered an

his life.

Egyptian, Exodus 2:11–12, but God showed him mercy

and spared his life. And David murdered Uriah, 2

Samuel 11, yet God showed him mercy and spared his

life.

11

The New Testament likewise stresses the

importance of mercy. Saul, who became the Apostle

Paul, killed Stephen and an unknown number of other

Christians. Acts 7:57–8:3. Once again, God showed

him mercy and spared his life. Jesus expressed his

disapproval of capital punishment when he refused to

condemn to death a woman caught in adultery. John

8:1–11. And in the Beatitudes, Jesus taught that,

“Blessed are the merciful, for they will be shown

mercy.” Matthew 5:7. Jesus similarly rebuked the

Pharisees, saying, “Woe to you, teachers of the law and

Pharisees, you hypocrites! You give a tenth of your

spices—mint, dill and cumin. But you have neglected

the more important matters of the law—justice,

mercy, and faithfulness. You should have practiced

the latter, without neglecting the former. You blind

guides! You strain out a gnat but swallow a camel.”

Matthew 23:23–24 (emphasis added).

How can God have spared these people when

God’s Laws purportedly said that murder requires

capital punishment? The explanation is that while

capital punishment may be allowed, nowhere is it

mandated.

Instead, the Bible teaches that in all

situations we are to seek restoration and

reconciliation over punishment for its own sake. In

other words, if there is a path that shows mercy, that

is the path we must take. 4 The prophet Micah said,

4 The examples cited above also show the profound benefits that

can follow an act of mercy, highlighting the imperative for juries

to show mercy whenever possible. Moses led the Israelites from

slavery to the edge of the Promised Land; David became the

greatest king of Israel; and Paul went on to write at least 13 of

the 27 books in the New Testament.

None of those

12

“He has showed you, O man, what is good. And what

does the LORD require of you? To act justly, and to love

mercy and to walk humbly with your God.” Micah 6:8

(emphasis added).

If the death penalty is ever to be appropriate, it

must be reserved for the worst of the worst offenders.

Evidence that a defendant did not kill the victim is

therefore material to the jury’s decision whether to

impose a sentence of death or life. Even the Hebrew

Scriptures required the testimony of “two or three

witnesses” “to convict a man accused of any crime.”

Deuteronomy 19:15. And they made clear that

punishment would be inappropriate for those falsely

accused of a crime. Id. at 19:16–18.

Killing Kevin Burns, who killed no one himself,

is inconsistent with Christian ethical principles that

require consideration of the offender’s individual

conduct. Because the sentencing jury was deprived of

evidence of Burns’s innocence, its pronouncement

could not have been just. His sentence violates God’s

admonition to show mercy wherever possible and puts

Christian believers who will have to participate in his

execution in a compromised moral and spiritual

position.

accomplishments would have been possible if God had chosen

execution over life. They are also a reminder of what will be lost

if Burns’s ministry and good works are unjustly cut short by

Burns’s execution.

13

CONCLUSION

Pastor Kevin Burns, one of the “least of these

brothers of mine” that Jesus refers to in Matthew

25:40, lives out the teachings of the gospel of Jesus in

a life of mercy, forgiveness, love, and reconciliation.

He manages to do that in a maximum security prison

on death row. Burns’s model of Christian faith is one

that all Christians should aspire to.

Our state governments have the authority to

punish those who commit crimes, but not the

authority to punish those who are innocent. Because

of the ineffective assistance of counsel, Burns is

scheduled to die without having taken a life.

Consistent with this Court’s precedent and the

principles of Christian ethics, this Court should grant

Burns the relief he seeks in his petition.

Respectfully submitted,

BRIAN F. IRVING

Counsel of Record

David R. Esquivel

BASS, BERRY & SIMS PLC

150 3rd Ave. S., Ste. 2800

Nashville, TN 37201

(615) 742-6200

birving@bassberry.com

Counsel for Amicus Curiae

Lay and Ordained Ministers

NOVEMBER 23, 2022