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The U.S. Supreme Court could reverse the Texas Court of Criminal Appeals twice in the same death penalty case. On Oct. 6, the Supreme Court agreed for the second time to review Smith v. Texas, a case that focuses on a set of punishment-phase jury instructions no longer used in Texas. Austin criminal-defense solo Keith Hampton, who is not involved in Smith, says of the CCA, “This case should be their wake-up call that we are, in fact, part of a federal system, and they don’t have the discretion to circumvent this country’s highest court,” Hampton says. But Williamson County District Attorney John Bradley, who also is not involved in Smith, says the case raises the issue of states’ rights versus federal rights. At issue, Bradley says, is whether a state court can impose a state standard for harmless error review that is different from the federal standard when a reviewing court finds federal due process jury charge error. In a 7-2 decision in November 2004, the Supreme Court held that the jury instruction framework in effect when LaRoyce Smith was tried did not allow jurors to consider fully Smith’s mitigating evidence of his low IQ, placement in special education classes and turbulent childhood. With Justices Anton Scalia and Clarence Thomas dissenting, the Supreme Court, in an unsigned opinion, reversed the CCA’s decision upholding Smith’s death sentence. After convicting Smith in 1991, a 265th District Court jury in Dallas considered his punishment for the robbery and murder of a 19-year-old Taco Bell clerk. Jurors had to consider two special issues: whether Smith committed the murder deliberately and whether he would be a continuing danger to others. As noted in the Supreme Court’s opinion, Smith pistol-whipped, shot and repeatedly stabbed the female victim, who was his former co-worker. The district court orally instructed jurors that if they believed the state proved beyond a reasonable doubt that the answer to both special issues was “yes” but also believed from the mitigating evidence that Smith should not be sentenced to die, they should answer “no” to at least one of the special issues. According to the Supreme Court’s opinion, the trial court essentially instructed the jury to return a false answer to a special issue to avoid a death sentence. The Texas Legislature amended the state’s capital sentencing statute in 1993. Under Code of Criminal Procedure Article 37.071, a jury now must consider all of the evidence, “including the circumstances of the offense, the defendant’s character and background and the personal moral culpability of the defendant” when deciding between a life or death sentence. But Smith’s trial occurred two years before the Legislature changed the law. The Supreme Court held that the nullification instruction provided at Smith’s trial was unconstitutionally inadequate and remanded the case to the CCA for reconsideration. On remand from the Supreme Court, the CCA again denied Smith’s petition for habeas corpus relief on March 1. In a 7-1 decision, with Judge Cathy Cochran writing the opinion, the CCA applied the harmless error standard that it set in 1984′s Almanza v. State, holding that Smith failed to show that the unobjected-to jury-charge error caused him “egregious harm.” Under Almanza, if a defendant objected at trial to the jury charge, a less stringent standard applies, requiring that a defendant show that the error caused him some harm. CCA Judge Lawrence Meyers did not participate in the decision. Judge Charles Holcomb wrote in his dissenting opinion, “Because our holding was reversed by a higher court, a court which addressed the merits and found our holding on the merits to be erroneous, we may not now remedy the problem by failing to address the merits, and instead, decide that the substantive complaint was not preserved.” Willful or well intentioned? Four former federal appeals court judges urge the Supreme Court in an amici brief to grant review in Smith to reaffirm that lower courts, on remand, must comply with the high court’s mandates and “must not invent new procedural obstacles to avoid compliance.” Erwin Chemerinsky, Duke University School of Law professor, filed the brief on behalf John J. Gibson, former chief judge of the 3rd U.S. Circuit Court of Appeals; Timothy K. Lewis, former judge of the 3rd Circuit; Abner J. Mikva, former chief judge of the D.C. U.S. Circuit Court of Appeals; and William A. Norris, former judge of the 9th U.S. Circuit Court of Appeals. The former judges contend in their brief that the central issue of Smith is the CCA’s “resistance” to implementation of the Supreme Court’s mandate. According to the brief, what the CCA has done in Smith is “flout” the Supreme Court’s interpretation of constitutional guarantees. CCA Presiding Judge Sharon Keller says the state court always tries to follow what the Supreme Court says. “I can tell you unequivocally that the [CCA] had no intention of acting disrespectfully to the U.S. Supreme Court,” Keller says. As noted in the former judges’ brief, the Supreme Court directed the CCA to conduct further proceedings not inconsistent with the Court’s 2004 opinion. “The Texas Court of Criminal Appeals, however, ignored this mandate and created a new procedural bar, one that it rejected earlier, harmless error analysis,” the former judges contended in the brief. According to the amici brief, the CCA majority previously declined to find Smith’s claim procedurally defaulted and decided the claim on its merits. Matthew Paul, the state prosecuting attorney, says the CCA majority originally felt they didn’t have to address the procedural default issue in Smith, because they had found no harm. The CCA originally found that Smith’s mitigating evidence was not constitutionally significant and that the trial court’s nullification instruction provided a sufficient vehicle for the jury to consider that evidence. Paul says the CCA had to do a harm analysis after the Supreme Court found error in the jury instruction. Rachel Raya, spokeswoman for the Dallas County District Attorney’s Office, which will defend the CCA’s decision in Smith in arguments before the Supreme Court next year, declines comment on the case. Jordan Steiker, a University of Texas School of Law professor who represents Smith, is critical of the CCA. “I think they view the Supreme Court’s opinion as guidance as opposed to binding direction,” Steiker says. Steiker says it’s fairly unusual for the Supreme Court to grant a petition for a writ of certiorari twice in the same case. But Smith’s case is the second Texas case in which the high court has done that in the last three years; the first was Miller-El v. Cockrell. According to the Supreme Court’s 2003 opinion in Miller-El, Texas death-row inmate Thomas Miller-El had challenged prosecutors’ exercise of preemptory challenges to that struck 10 of 11 African-Americans from the jury pool for his 1986 trial in Dallas County. After the CCA denied Miller-El’s direct appeal and state habeas corpus writ application, he filed a federal habeas writ, raising a claim under the Supreme Court’s 1986 decision in Batson v. Kentucky. The U.S. District Court for the Northern District in Dallas denied habeas relief to Miller-El, and the 5th U.S. Circuit Court of Appeals denied Miller-El’s application for a certificate of appealability, holding that a COA would issue only if “the applicant has made a substantial showing of the denial of a constitutional right.” In 2002, the Supreme Court granted certiorari in Miller-El. In a 8-1 decision the following year, with Thomas dissenting, the high court ruled that the federal district court did not give sufficient consideration to Miller-El’s claims of unconstitutional discrimination. The Supreme Court found that the 5th Circuit’s standard of review in Miller-El was too demanding, and reversed and remanded the case to the 5th Circuit. On remand, the 5th Circuit again ruled against Miller-El, finding that he failed to show by clear and convincing evidence that the state courts’ findings � that there was no discrimination � were wrong. In a 6-3 decision in 2005, the Supreme Court reversed the 5th Circuit in Miller-El v. Dretke. The Supreme Court held that Miller-El was entitled to a new trial in light of strong evidence of racial bias during jury selection. Scalia, Thomas and the late Chief Justice William Rehnquist dissented. To avoid being in the 5th Circuit’s position of having been twice reversed by the Supreme Court, the CCA should have looked more closely at the high court’s decision in Smith, Hampton says. “Instead, they treated it as sort of a bump in the road to the predetermined conclusion,” he says. But Paul says the CCA has gone along with the Supreme Court many times without staging a revolt. “The court, to me, was unquestionably trying to apply the correct applicable Texas law on harmless error,” Paul says of the CCA.

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