The Supreme Court's trilogy of Texas cases, Smith v. Texas, Abdul-Kabir v. Quarterman, & Brewer v. Quarterman, leads off the edition. The simplest summary remains that of an American Civil Liberties Union of Texas staffer, that the SCOTUS's decisions "aren't just suggestions." The end of this edition contains an exhaustive analysis of those decisions.

Of the three opinions Abdul-Kabir & Brewer are the most important. Central to Abdul-Kabir & Brewer's holding is that Lockett applies in Texas, that Lockett has applied -- for AEDPA purposes -- in Texas for at least 8 years, and that the courts below have habitually erred in not so recognizing Lockett's applicability. A sharp and curt dissent focuses on a claim that the law at the time of direct appeal was so unsettled as to render the decisions reasonable.

Smith is rather straight forward. The Supreme Court in Smith I remanded in light of jury instructions limiting the ability of jurors to consider mitigation evidence with a strong hint to grant relief. The Texas Court of Criminal Appeals on remand decided it didn’t want to follow the Smith I Court's holding and created a post hoc rule to deny relief. Such nullification of SCOTUS directives is nothing new, as the dissent notes, but this time the majority — as will likely happen in Medellin v. Texas – didn’t let it slide.

Several other notable opinions are also in this edition. The Oklahoma Court of Criminal Appeals in Isidro Marquez-Burrola v. Stat, grants relief holding that trial counsel failed to investigate, develop and present an acceptable case of mitigation. including offers by the Mexican government to provided assistance in investigating and gathering mitigation evidence. The Court of Criminal Appeals rather than remanding simply orders reduction to a life imprisonment without parole.

Likewise of note, the Missouri Supreme Court in In the Matter of the Competency of Steven Parkus holds appellant to be mentally retarded. The Court also sets forth the procedure to follow and the appropriate standard of review of the trial court's decision for a defendant such as Parkus who received a death sentence for a conviction before August 28, 2001, the effective date of Missouri's retardation statute. Curiously, the Parkus Court holds that the appropriate avenue to appeal questions of retardation is by way of civil appeal.

In the news, the American Bar Association issued its report on the death penalty in Tennessee, recommended that the current brief moratorium be extended and that the review of Tennessee’s death penalty should be expanded. The 200th person to have been wrongfully convicted and exonerated by DNA was noted this week -- together they have served about 2,500 years in prison The Georgia legislature has finished for the year with the death (for now) of HB 185 which would have allowed death penalty verdicts to be handed down with only 9 of the 12 jury members in agreement. A new study by experts in the field concludes that lethal injection may cause death by suffocation in some circumstances. The Nashville Scene recentlyfiled a lawsuit against the Tennessee Department of Corrections for greater access to the state's lethal injection protocol, this week access was granted. The National Coalition to Abolish the Death Penalty has launched InnocentAndExecuted.org focusing on four cases that many believe resulted in a factually innocent man being executed.

Looking ahead several notable cases are had. Most notable is the Mississippi Supreme Court's holding in Charles Ross v. State granting relief on claims including exclusion of mitigation evidence, failure to investigate mitigation, the Defense's bizarre penalty phase closing argument, failure to address nonstatutory mitigation factors "noted by the state mental hospital" and cumulative error in the guilt phase, including a bizarre set of guilt phase misadventures. The Colorado Supreme Court in People v. Edward Montour hold that a defendant can not be forced under Ring / Blakely as a consequence of entering a guilty plea to be sentenced by a a judge alone as Montour was; one man now remains on death row in Colorado but the state will retain all four of its full time death penalty prosecutors. The Tennessee Cort of Criminal Appeals in State v. Ricky Thompson grants penalty phase relief based on proportionality review.

Recent Executions

April

24 James Filaggi (Ohio)

26 Ryan Dickson (Texas)

Pending Executions

May

4 David Woods (Indiana)

8 Carey Dean Moore (Nebraska----volunteer)

9 Philip Workman (Tennessee)

10 Jose Moreno (Texas)

16 David Ivy (Tennessee)

16 Charles Smith (Texas)

23 William Rogers (Tennessee)

24 Christopher Newton (Ohio)

More Execution information*

Supreme Court

• Abdul-Kabir v. Quarterman, 550 U.S. ___ (4/25/2007) Fifth Circuit erred in not granting relief as the Texas special question scheme in effect at the time of the trial, and as used here, violated the ability of the jury to give meaningful effect to the proffered mitigation evidence of the condemned.
• Brewer v. Quarterman, 550 U.S. ___ (4/25/2007) Fifth Circuit erred in not granting relief as the Texas special question scheme in effect at the time of the trial, and as used here, violated the ability of the jury to give meaningful effect to the proffered mitigation evidence of the condemned.
• Smith v. Texas, 550 U.S. ___ (4/25/2007) The Court of Criminal Appeals was bound by the Supreme Court’s holding in Smith I that “there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence,” therefore “Smith is entitled to relief under the state harmless-error framework.”

In Favor of Life or Liberty -- Week of April 16, 2007

• Isidro Marquez-Burrola v. State, 2007 OK CR 14 (Okla. Crim. App.4/17/2007) OCCA grants relief as trial counsel failed to investigate, develop and present an acceptable case during the sentencing phase of his trial and therefore prejudiced their client. “Generally, prejudicial error in the punishment stage of a capital trial would warrant vacating the death sentence and remanding to the district court for resentencing.” “Under the particular circumstances of this case, however, we find that a modification of sentence is more appropriate.” Congrats to counsel, M. Michael Arnett, Michael Dwayne Morehead, Jamie Dee Pybas, and Mandy Welch.
• In the Matter of the Competency of Steven Parkus, 2007 Mo. LEXIS 57 (Mo 4/17/2007) Parkus held to be mentally retarded. The Court also sets forth the procedure to follow and the appropriate standard of review of the trial court's decision for a defendant such as Parkus who received a death sentence for a conviction before August 28, 2001, the effective date of Missouri's retardation statute. In Missouri appeals in capital cases as to whether the condemned is mental retarded are to be civil appeals. [Note: I am not a Missouri practitioner and this opinion has several issues that turn on Missouri procedural rules that may be more complicated than represented here, please double check before relying on this synopsis of the case in any substantive manner.]
• State v. Mark Burke, 2007 Ohio 1810 (Ohio App. Div. 4/17/2007) Trial court erred in limiting evidence and effect of recantation by a key State's witness.

Favoring Death -- Week of April 16, 2007

• Alfred Albrecht v. Horn, No. 04-9005, 04-9006 (3rd Cir 4/20/2007) Grant of habeas relief and vacatur of his death sentence pursuant to Mills v. Maryland is vacated and remanded pursuant to Banks v. Beard. Relief also denied on claims relating to: "(1) he is actually innocent and the presentation of inaccurate fire science expert testimony at his trial violated due process; (2) the prosecutor failed to disclose, or failed to timely disclose, exculpatory witness statements in violation of Brady and/or trial counsel was ineffective for failing to make effective use of timely disclosed statements; (3) trial counsel was ineffective for failing to request a limiting instruction with respect to the evidence of spousal abuse, and the absence of such an instruction violated due process; (4) admission of Mrs. Albrecht’s statements to her physician, her attorney, and two other women, concerning the source of her physical injuries, violated the Confrontation Clause, and trial counsel was ineffective for failing to object to admission of the Kuhns’ recollection of Alfred Jr.’s statement; (5) appellate counsel was ineffective for failing to challenge the trial court’s ban on attorney-client consultation just prior to and during cross-examination; and (6) the cumulative prejudice from the many errors denied him his constitutional right to due process." Remand ordered to permit the district court to address remaining penalty phase claims.
• Johnny Hoskins v. State, 2007 Fla. LEXIS 668 (FL 4/19/2007) Relief denied on claims including: "(1) the trial court erred in overruling his objection to the State’s use of a peremptory challenge to an African-American juror; (2) the trial court erred in limiting Hoskins’s voir dire examination regarding the potential jurors’ ability to consider “gory photographs” which were already in evidence; (3) the trial court erred in failing to give the requested limiting instruction on victim impact evidence at the time of introduction; (4) the trial court erred in denying Hoskins’s requested jury instructions; (5) the trial court included improper aggravating circumstances, excluded existing mitigating circumstances, and failed to properly find that the mitigating circumstances outweighed the aggravating circumstances; and (6) Florida’s capital sentencing process is unconstitutional."
• Donnie Roberts v. State, 2007 Tex. Crim. App. LEXIS 429 (Tex. Crim. App. 4/18/2007) A conviction and death sentence for capital murder is affirmed over claims of error regarding: 1) order requiring the defense to disclose investigative notes; 2) refusing to allow a defense expert to testify that appellant's use of alcohol and cocaine caused him to commit the crime; 3) victim impact relating to other crimes evidence; 4) exclusion of execution impact evidence; 5) failure to adequately charge the defenses theory of mitigation; 6) closing argument; and 7) challenges to the death penalty.
• Comm. v. Miguel Rios, 2007 Pa. LEXIS 864 (PA 4/18/2007) (dissent) Relief denied, most notably & over a substantial dissent, on claims relating to failure to object to a "due your duty" penalty phase closing by the government, as well as failure of counsel to adequately investigate and present life history mitigatory evidence.

(Advance Sheet for the Week of April 23, 2007) In Favor of Life or Liberty

• People v. Edward Montour, No. 02SA365 (Colo. 4/23/2007) Montour’s death sentence struck down on the basis of Ring and Blakely, which require jury determination of crucial facts in sentencing defendants. Specifically, the Court holds if a Defendant takes a guilty plea in Colorado to a murder charge the jury is waived for sentencing and such a result violates Ring / Blakely. Montour will now face resentencing.
• Charles Ross v. State, 2007 Miss. LEXIS 235 (Miss 4/26/2007) "In the present case, we find reversible error in the failure of the trial court to adhere to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross' investigator. Similarly, defense counsel's failure to investigate substantial mitigating factors during the sentencing phase requires reversal of Ross' sentence. Arguing that Ross' life should be spared because he could have functioned appropriately as a prisoner was not a valid defense given Ross' disciplinary record in prison. During the sentencing, defense counsel also failed to address substantial non-statutory mitigating factors noted by the state mental hospital. Other errors provide further justification for reversal because of their cumulative effort. These include the State maintaining in closing argument that Ross had been seen at the crime scene when he had not; defense counsel's failure to explore the possible tainting of the venire panel, particularly after Martindale's second prejudicial statement; and the exclusion of the State's ballistics report from evidence, which took a tangible document away from Ross that could have been argued to the jury. These errors are of particular concern because much of the State's case against Ross, absent the inconsistent testimony of Margaret Jones, was indirect. We therefore reverse Ross' conviction and sentence and remand his case for a new trial."
• State v. Ricky Thompson, 2007 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 4/25/2007) "Based upon our review of all cases 'involving similar defendants and similar crimes,' we conclude that the death penalty imposed in the present case is excessive and disproportionate to the penalty imposed in the other cases."
• Ian Lightbourne v. State, 2007 Fla. LEXIS 724 (FL 4/16/2007) (unpublished) In a cryptic memorandum opinion on lethal injection, matter is returned to the trial court. On Vienna Convention claim relief is summarily denied.

(Advance Sheet for the Week of April 23, 2007) In Favor of Death

• Ivan Teleguz v. Comm, 2007 Va. LEXIS 64 (VA 4/20/2007) Turning aside many challenges on procedural grounds, relief denied on claims including: (A) change of venue; (B) Commonwealth's treatment of Teleguz's brother as a hostile witness; (C) admission of alleged connection to the "Russian Mafia;" (D) vileness aggravator; (E) Brady; and (F) proportionality.
• Ex parte Robert Campbell, 2007 Tex. Crim. App. LEXIS 504 (Tex. Crim. App. 4/25/2007) Relief denied on claims relating to: "(1) his conviction and sentence are unconstitutional because the State withheld evidence favorable to him in violation of his constitutional right to due process; (2) he was deprived of a fundamentally fair trial because of the admission of inherently unreliable DNA evidence; and (3) newly discovered evidence of his innocence independently warrants habeas relief."
• Michael Smith v. State, 2007 OK CR 16 (Okla Crim. App. 4/26/2007) Relief denied on claims including: Batson; joinder of counts at trial; improper arraignment; Miranda Waiver; trial court's answering of jury notes without counsel's input; admission of other crimes evidence; sufficiency; use of HAC aggravator; use of "continuing threat to society" aggravator; weighing of aggravators versus mitigators; mandatory review; and cumulative error.
• John Stephenson v. State, 2007 Ind. LEXIS 282 (Ind 4/26/2007) Relief denied on claims relating to: "(1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed. (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-50-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and(8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed."

Selected Excerpts from, & Commentary on, this Edition's Cases

[Note formatting may be off below this point]

The Texas cases Smith v. Texas, Abdul-Kabir v. Quarterman, & Brewer v. Quartermanat the blogCapDefNet's week-at-a-glance

The general:

I realized late that not all who visit the site will know the intricacies of Texas death penalty law and to whom the holding of Wednesday’s Abdul-Kabir & Brewer are a blur.

The Supreme Court in the mid - 70s permitted the Texas death sentencing scheme to go ahead in Jurek v. Texas. The Supreme Court, however, reserved the right to limit Texas’s sentencing scheme on an as applied basis in Jurek.

Texas’s death penalty scheme — as relevant here — asks two questions about whether the person deserves to die based on future dangerousness. No other state uses Texas’s scheme (Oregon uses an extensively modified version that is in theory similar to it, but in practice is not). The Texas statutes was subsequently found unconstitutional as applied in some cases as it failed to provide a way to honestly answer the questions in a way that gave meaningful “effect” to mitigation evidence in all situation.

In a series of non-Texas cases (the “Lockett line” of cases) the Court has held that a jury must be permitted to show mercy and must be able to “give effect” to mitigation presented by a Defendant. Texas’s special questions don’t.

The question before the Court today is when did the Court affirmatively decide “Lockett” was applicable to the Texas special scheme, the 1980s in a case called Penry I or merely the last few years, in such cases as Penry II in 2001 & Tennard in 2004. That decision is outcome determinative under the AEDPA.

The lead dissent, by the Chief Justice, focuses on two cases — Graham & Johnson. Unfortunately for the Chief Johnson was written by Justice Kennedy who joins Justice Stevens majority in Abdul-Kabir & Brewer.

Two of the four dissenters, it should be noted, want Lockett overturned.

I know the above is truncated and, for lovers of the precise, a little vague, but it should give you and understanding of the law additionally background can be found here, here, here, here, here, and here.

Abdul-Kabir & Brewer, are dealt with below. Justice Stevens wrote the majority opinions in these cases, but the dissents are consolidated.

The question at issue in Abdul-Kabir / Brewer v. Quarterman is Lockett & its application to Texas. It is a question, that once answered in the affirmative all but determined the outcome of this case as it has every case coming before the court. The majority opinions are straight forward as the law here is now well settled. Unfortunately for the Chief Justice someone forgot to tell him.

In Texas is asked a series of “special questions.” At the time of both Abdul-Kabir & Brewer there were just two questions. Texas’s sentencing scheme is an outlier and its scheme has been rejected by every other state (or almost every other if you include Oregon’s system). Neither special question explicitly addresses mitigation.

In Abdul-Kabir & Brewer the prosecutors argued that the mitigation proffered by the Defendant could not “honestly” be used to answer either special question “no.” The jury instructions, likewise, did not permit the jurors to give effect to the mitigation without breaking their vows as jurors.

SCOTUSBlog notes on the merits:

Justice Stevens devotes nearly one-third of his thirty-page opinion in Abdul-Kabir to a review of the Court’s death penalty jurisprudence, which – in the majority’s view – “firmly established” even “well before our decision in Penry I . . . that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence.” By contrast, Justice Stevens explains, the state trial judge who rejected Abdul-Kabir’s application for habeas relief, did not analyze Penry I at all; instead, the state court relied on the Court’s 1989 decision in Graham v. Collins. That reliance, the majority continues, was “misguided” in light of the narrow holding in Graham. The Court’s subsequent cases – even those holding that the special issues allowed adequate consideration of mitigating evidence – “fail[ed] to disturb the basic legal principle that continues to govern such cases: The jury must have a ‘meaningful basis to consider the relevant mitigating qualities’ of the defendant’s proferred evidence.” In this case, the majority emphasizes, because some of the mitigating evidence that Abdul-Kabir presented was not relevant to either of the two special issues, the jury had no such meaningful basis and the sentencing process was thus “fatally flawed.”

In a separate but much shorter opinion, Justice Stevens’s majority opinion also reversed the Fifth Circuit’s decision in the case of Brent Ray Brewer (seriously, what is it about capital defendants with the middle name “Ray”?). In Brewer’s case, the Fifth Circuit had itself reversed the district court’s decision granting conditional relief, citing the lack of expert psychiatric testimony at Brewer’s sentencing; moreover, under its precedents, “mental illness has given rise to Penry I violations” only when “the illness in question is chronic and/or immutable.” The majority today rejected this formulation, emphasizing instead that the relevant inquiry with regard to mitigating evidence is whether it has “relevance to the special issues and the extent to which it may diminish a defendant’s moral culpability for the crime.” The majority similarly rejected the Fifth Circuit’s characterization of the law as requiring only that mitigating evidence be given “sufficient effect,” explaining that – “[l]ike the ‘constitutional relevance’ standard that we rejected in Tennard” – such a standard has “no foundation in the decisions of this Court.” Finally, the opinion delivers the polite, Justice Stevens version of a slapdown: the majority laments that the Fifth Circuit’s decision in these cases “fail to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury must be allowed not only to consider such evidence . . . but to respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.”

Especially notable here is the role of Justice Kennedy. Kennedy authored Johnson v. Collins, a key case cited by the dissent, He joined the majority. He was the swing the Justice. He also authored Smith v. Texas, also decided today.

In dissent, the Chief Justice focuses not on Lockett, he mentions it but once, rather he focuses on the narrowest possible construction of the Court’s precedent in the late 80s & early 90s. The dissent also concedes, as it must, the law is now well settled, specifically the Chief suggests if the case were on direct appeal he would affirm. But by focusing on, for lack of a better term, on the “Texas exceptionalism” rationale used by the Fifth Circuit repeatedly (and rejected by the Court in Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), Tennard v. Dretke, 542 U. S. 274 (2004)),he would hold the law was not well settled in 1999 & 20001 when Abdul-Kabir & Brewer were decided — the point in time AEDPA requires the law be “clearly established.”

The Sentencing Blog & the SCOTUSblog have more. Others following the story include Z The Legal Blog and Monthly Newsletter, The Volokh Conspiracy, Crime & Consequences (their position is predictable), Grits for Breakfast, & StandDown Texas Project. CapDefNet’s braintrust has yet to post.

Giving credit where credit is due, counsel in Texas did a kickass job. On Abdul-Kabir & Brewer it was Rob Owen and friends. On Smith v. Texas it was Jordan Steiker (who argued), his sister Carol Steiker, and Maurie Levin; Levin’s work is noted by the Court & is likely the difference between life and death in Mr. Smith’s case. My apologies to those who were slighted by the original post. The University of Texas Law School’s press release is here.

Smith v Texas is rather straight forward. The Texas Court of Criminal Appeals on remand decided it didn’t want to follow SCOTUS precedent and created a post hoc rule to deny relief. Such nullification of SCOTUS directives is nothing new, as the dissent notes, but this time the majority — as will likely happen in Medellin – didn’t let it slide.

There has been little analysis offered to date on Smith. I am hoping I am wrong with this analysis but fear I am right. The question concerning issue preservation seems to be the “fancy dressing” on basic question of the TCCA attempts to nullify a SCOTUS decision it didn’t like.

The specifics from CapDefNet:

Supreme Court reverses Fifth Circuit’s denial of habeas relief to Texas death row inmate Jalil Abdul-Kabir, fka Ted Cole.

On April 25, 2007, the Supreme Court issued its decision in Abdul-Kabir v. Quarterman, ___S.Ct.___, 2007 WL 1201582 (April 25, 2007). The Court (Stevens, joined by Kennedy, Souter, Ginsburg and Breyer) held that the instructions given to petitioner’s jury created a reasonable likelihood that the constitutionally relevant mitigating evidence he had presented was not given meaningful consideration, and that the state courts’ failure to recognize and remedy this error was both contrary to, and involved an unreasonable application of, clearly established federal law.

At trial, Abdul-Kabir presented two broad categories of mitigating evidence: (1) testimony from two relatives describing his history of neglect and abandonment; and (2) testimony from two expert witnesses who described the consequences of his troubled history, and acknowledged that petitioner would remain dangerous for some time. As the Court described it, “the strength of [Abdul-Kabir’s] mitigating evidence was not its potential to contest his immediate dangerousness, to which end the experts’ testimony was at least as harmful as it was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control – namely, neurological damage and childhood neglect and abandonment.” In jury selection and closing argument, the prosecutor “discouraged jurors” from considering the mitigating value of this evidence, and urged them instead to focus solely on Texas’ two “special issues” – whether the offense had been deliberate, and whether petitioner would pose a future danger.

In deciding whether the state court’s denial of relief “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the Court first undertook a “careful review of our jurisprudence,” which “ma[de] clear that well before . . . Penry [v. Lynaugh, 492 U.S. 302 (1989) (Penry I)], our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future.” The Court also explained that Penry I held that while Texas’s special issues could be adequate to facilitate consideration of mitigating evidence under some circumstances, “[w]hen the evidence proffered is double edged, or is as likely to be viewed as aggravating as it is as mitigating, the statute most obviously fails to provide for adequate consideration of such evidence.”

Looking to the state court’s resolution of the claim, the Court noted that it had found that the issue “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” The Court disagreed, explaining that “denying relief on the basis of that formulation of the issue, while ignoring the fundamental principles established by our most relevant precedents,” resulted in a decision that was both contrary to and involved an unreasonable application of clearly established law. The Court added that “[t]he state court’s primary reliance on Graham, to the exclusion of our other cases in this line of jurisprudence, was misguided.” The Court likewise found the state court’s decision to be unreasonable for three reasons: (1) “the ruling ignored the fact that even though [Abdul-Kabir’s] mitigating evidence may not have been as persuasive as Penry’s, it was relevant to the question of [his] moral culpability for precisely the same reason as Penry’s”; (2) “the judge’s assumption that it would be appropriate to look at ‘other testimony in the record’ to determine whether the jury could give mitigating effect to the testimony of [petitioner’s relatives] is neither reasonable nor supported by the Penry opinion”; and (3) “the fact that the jury could give mitigating effect to some of the experts’ testimony, namely, their predictions that [petitioner] could be expected to become less dangerous as he aged, provides no support for the conclusion that the jury understood it could give such effect to other portions of the experts’ testimony or that of other witnesses.”

After additional discussion of several more recent cases which “lend support to the conclusion that the state court’s decision was unsupported by either the text or the reasoning of Penry I,” the Court concluded as follows: “Our cases following Lockett have made clear that when the jury is not permitted to give meaningful effect or a “reasoned moral response” to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed. For that reason, our post-Penry cases are fully consistent with our conclusion that the judgment of the Court of Appeals in this case must be reversed.”(footnote omitted).

Chief Justice Roberts and Justices Scalia, Thomas and Alito dissent in Abdul-Kabir v. Quarterman

Chief Justice Roberts (joined by Scalia, Thomas and Alito, JJ.) dissented from the Court’s decision in Abdul-Kabir v. Quarterman, ___S.Ct.___, 2007 WL 1201582 (April 25, 2007), as well as in the companion case of Brewer v. Quarterman, ___S.Ct.___, 2007 WL 1201609 (April 25, 2007), contending that the Court’s relevant decisions between Penry I in 1989 and the state courts’ decisions in 1999 were “a dog’s breakfast of divided, conflicting, and ever-changing analyses,” such that there was no clearly established federal law to which the state courts could properly be held under §2254(d)(1).

Justice Scalia also dissented from the Court’s decisions in Abdul-Kabir and Brewer. In section I (joined by Thomas and Alito, JJ.), Justice Scalia argued that the Court’s decision effectively overruled Johnson v. Texas, 509 350 (1993), by reinstating the “full effect” approach of Penry I, from which the Court “unambiguously drew back” in Johnson in favor of a “some effect” standard, and that this was a result of the “changed . . . moral sensibilities of the majority of the Court.” In section II (joined only by Thomas, J.), Justice Scalia added that, “[i]f . . . a majority of the Justices are going to govern us by their moral perceptions, in this area at least they ought to get their moral perceptions right the first time. . . . [N]o one can be at ease with the stark reality that this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row. Relief from sentence of death because of the jury’s inability to give “full effect” to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today. This is not justice. It is caprice.”

Supreme Court reverses Fifth Circuit´s denial of habeas relief to Texas death row inmate Brent Brewer.

On April 25, 2007, the Supreme Court issued its decision in Brewer v. Quarterman,___S.Ct.___, 2007 WL 1201609 (April 25, 2007), the companion case to Abdul-Kabir v. Quarterman, ___S.Ct.___, 2007 WL 1201582 (April 25, 2007). The Court (Stevens, with Kennedy, Souter, Ginsburg and Breyer) ruled that Brewer was entitled to habeas relief from his death sentence on the ground that “the former Texas capital sentencing statute impermissibly prevented his sentencing jury from giving meaningful consideration to constitutionally relevant mitigating evidence.” Referencing the more extended discussion set forth in Abdul-Kabir, the Court observed that it has “repeatedly emphasized that a Penry [v. Lynaugh, 492 U.S. 302 (1989) (Penry I),] violation exists whenever a statute, or a judicial gloss on a statute, prevents a jury from giving meaningful effect to mitigating evidence that may justify the imposition of a life sentence rather than a death sentence. We do so again here, and hold that the Texas state court’s decision to deny relief to Brewer under Penry I was both ‘contrary to’ and ‘involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U. S. C. §2254(d).” (internal citation omitted).

As in Abdul-Kabir, the trial court in Brewer’s case refused all requested charges “designed to give effect to the mitigating evidence,” and the prosecution urged the jury to focus strictly on answering the Texas special issues as they had been posed. And as in Abdul-Kabir, Brewer’s “mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State’s evidence of future dangerousness as well as lessen his culpability for the crime.” Acknowledging the possibility that Brewer’s “mitigating evidence was less compelling that Penry’s,” the Court made clear that neither this “difference” nor the Fifth Circuit’s characterizations of the “quantity, degree or immutability” of Brewer’s evidence could “provide an acceptable justification for refusing to apply the reasoning in Penry I to this case.” Rather, the Court explained, even “[u]nder the narrowest possible reading of . . . Penry I, the Texas special issues do not provide for adequate consideration of a defendant’s mitigating evidence when that evidence functions as a ‘two-edged sword.’” Here, the Fifth Circuit’s reversal of the district court’s grant of relief on Brewer’s claim “mischaracterized the law as demanding only that [mitigating] evidence be given ‘sufficient mitigating effect,’ and improperly equated ‘sufficient effect’ with ‘full effect.’” “This,” the Court explained, “is not consistent with the reasoning of” Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), and “has ‘no foundation in the decisions of this Court.’” (quoting Tennard v. Dretke, 542 U. S. 274, 284 (2004)). The Court concluded by adding that the Fifth Circuit’s reasons for denying relief in this case “fail to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury must be allowed not only to consider such evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.”

The dissenting opinions of Chief Justice Roberts (joined by Scalia, Thomas and Alito.), and Justice Scalia (joined in full by Thomas, and joined as to part I by Alito), mirrored their views in Abdul-Kabir.

Texas Court of Criminal Appeals reversed for a second time by Supreme Court in LaRoyce Smith’s case.

On April 25, 2007, the Supreme Court issued its decision in Smith v. Texas, reversing for a second time the Texas Court of Criminal Appeals’ denial of relief to Smith. The Court (Kennedy, with Stevens, Souter, Ginsburg and Breyer ) found that the state court had misunderstood the federal right that Smith asserted.

At the time of Smith’s trial, a capital defendant’s sentence was determined by the answer to certain statutory special issues. The questions relevant to Smith’s case concerned whether the capital murder was deliberate and whether Smith would pose a danger in the future. Under Texas law, an affirmative answer to both questions would result in imposition of a death sentence. In Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), the Supreme Court held that the Texas special issues were inadequate to allow proper consideration of some types of mitigating evidence. Smith unsuccessfully made a pretrial challenge to the special issues. In an effort to address any Penry I problem, the trial court gave a special instruction which told the jurors to provide a false answer to one of the questions if they determined the correct answer was “yes,” but they also found a life sentence warranted in light of the mitigating evidence. A similar “nullification” instruction was later found to be insufficient to cure the flawed special issues in Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”). In collateral proceedings, Smith continued to argue that the instructions given in his case were constitutionally inadequate. The Texas Court of Criminal Appeals found that the mitigating evidence at issue was not “constitutionally significant” and so there was no Penry I error. The state court alternatively distinguished Penry II and denied relief. The Supreme Court, by summary disposition, reversed. Smith v. Texas, 543 U.S. 37 (2004) (“Smith I.”) On remand, the state court again denied relief, ruling for the first time that Smith’s pretrial challenge to the instructions failed to preserve his claim of constitutional error. As a result, relief could only be granted if Smith established that “egregious harm” resulted from the instructions, a standard he failed to meet.

The Supreme Court first noted that the nullification instruction may itself provide an independent ground for reversal. It did not find it necessary to reach that question, however, just as it had declined to reach it in Penry II and Smith I. In Smith I, the Supreme Court had instead ruled that the nullification instruction failed to cure the Penry I error. On remand, the Texas Court of Criminal Appeals misconstrued the Supreme Court’s ruling by finding that Smith’s challenge was to the nullification instruction itself which he failed to complain about in the trial court. In fact, his challenge to the special issues was properly preserved. The Court explained: “The Court of Criminal Appeals on remand misunderstood the interplay of Penry I and Penry II, and it mistook which of Smith’s claims furnished the basis for this Court’s opinion in Smith I. These errors of federal law led the state court to conclude Smith had not preserved at trial the claim this Court vindicated in Smith I, even when the Court of Criminal Appeals previously had held Smith’s claim of Penry error was preserved. The state court’s error of federal law cannot be the predicate for requiring Smith to show egregious harm. Ake v. Oklahoma, 470 U.S. 68, 75 (1985).” Under Texas case law, because the challenge to the instructional error was preserved, Smith was entitled to relief unless the error was shown to be harmless. Further, under other state precedent, a finding of a reasonable likelihood that the jury believed it was not permitted to consider some mitigating evidence establishes the error was not harmless. Because the state court is bound by the Supreme Court’s finding in Smith I that “there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence,” it therefore “appears Smith is entitled to relief under the state harmless-error framework.” Given the Court’s resolution of the case, it did not find it necessary to “reach the question whether the nullification charge resulted in a separate jury-confusion error, and if so whether that error is subject to harmless error review.” The case was remanded for further proceedings not inconsistent with the opinion.

Justice Souter filed a concurring opinion. He joined in the majority opinion but noted: “In some later case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U.S. 302 (1989). We do not and need not address that question here.”

Four Justices dissent in Smith v. Texas.

Justice Alito, joined by the Chief Justice and Justices Scalia and Thomas, dissented in Smith v. Texas. Alito argued: “Because [Smith] failed to raise an objection to the trial court’s attempt to cure the federal constitutional defect in the ‘special issues,’ the [Texas Court of Criminal Appeals] was entitled to apply its stricter [harmless error standard], an altogether commonplace type of procedural rule that represents an adequate and independent state-law ground for the [Texas Court of Criminal Appeals’s] decision. Accordingly, I would dismiss for want of jurisdiction.”