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 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.

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.

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.”