Justice Sonia Sotomayor Oct. 29 called out an Alabama trial court’s failure to preserve critical records in a capital case.

Just a month into the court’s new term, Sotomayor has already written separately on matters of sentencing, solitary confinement, and capital punishment.

Here, Sotomayor agreed that Tawuan Townes’ petition for review should be denied. But the trial court’s “failure to preserve the original recording gives cause for deep concern,” she wrote.

Townes was convicted of capital murder committed in the course of a burglary and sentenced to death. His intent was the only issue for the jury to resolve at trial, Sotomayor wrote. That’s because he admitted he had planned to rob the victim, Christopher Woods, during a burglary. But he “adamantly disclaimed any intent to kill Woods, insisting that he shot at Woods only to scare him.”

It came down to the jury instructions. The constitutionality of Townes’ conviction hinges on whether the trial court instructed jurors that they “may” infer his intent to kill a victim or that they “must” do so. The former is constitutional but the latter isn’t, Sotomayor wrote.

But due to two court reporters’ conflicting transcripts and the fact that the trial court no longer has the original recording, there is no way to know for sure which instruction the trial court gave.

Still, Sotomayor criticized the trial judge’s handling of the matter. The initial transcript said the judge instructed the jury that it “must” find intent to kill. The Alabama state appeals court reversed the conviction because “the trial court’s instructions took that pivotal question away from the jury.”

But after the reversal, the trial judge filed a “supplemental record” with the appeals court “asserting that the certified trial transcript—or rather, a single word of that transcript—had been mistranscribed.”

The judge had insisted that he properly instructed the jury and that the audio recording of Townes’s trial confirmed his account. The appeals court then sent the case back to the trial court to appoint a new court reporter to listen to the recording and do another transcription. The second reporter found just one difference from the original: that the judge said “may” instead of “must.”

Based on that, the appeals court changed its ruling and upheld Townes’s conviction and death sentence.

So Townes appealed to the U.S. Supreme Court. But when the justices requested the record in the case—including the recording—the trial court said the recording no longer exists.

Even though it’s impossible based on the record to know what happened, “the absence of demonstrable constitutional error makes the doubts raised by the trial court’s unusual handling of this matter no less troubling,” Sotomayor said.

“In a matter of life and death, hinging on a single disputed word, all should take great care to protect the reviewing courts’ opportunity to learn what was said to the jury before Townes was convicted of capital murder and sentenced to death,” she said.

She also noted that it wasn’t the first time this particular judge—and this particular reporter—sought to amend the record while a case was on appeal. “The court reporter—the same one who prepared the second transcript in Townes’ case—stated that she had reviewed her notes and the recording of the defendant’s trial and concluded that the judge had said ‘inference’ instead of ‘innocence,’ curing an allegedly erroneous instruction that the defendant challenged on collateral review,” Sotomayor wrote in a footnote, referring to another instance.

“By fostering uncertainty about the result here, the trial court’s actions in this case erode” confidence in what happened in Townes’s case, Sotomayor wrote. “That gives me—and should give us all—great pause.”

The case is Townes v. Alabama, U.S., 17-7894, review denied, statement of Sotomayor respecting the denial 10/29/18.