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The Supreme Court heard arguments Wednesday in three Texas death-penalty cases that were billed as a test of wills between the high court and lower-court judges who have effectively defied its decisions on the use of mitigating evidence. But whatever anger the Court held toward the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the 5th Circuit seems to have largely dissipated. On Wednesday, its newest members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., appeared ready to give greater deference to Texas in administering its capital-punishment laws. It was a marked contrast to 2004, when the Supreme Court had angrily sent one of the cases back to the Texas appeals court, only to have the Texas court reaffirm its prior ruling. At the Jan. 17 argument, Roberts seemed to show sympathy for the state court’s desire to exercise its own judgment instead of just following the Supreme Court’s guidance. “Why do we remand these cases,” Roberts asked rhetorically, “if there’s nothing further to be considered?” As the cases were argued inside the Court, outside nine anti-death-penalty demonstrators were arrested on the steps for unfurling a banner that read “STOP EXECUTIONS!” The civil-disobedience action coincided with the Texas arguments but was also intended to mark the 30th anniversary of the resumption of capital punishment in 1977, when Gary Gilmore was put to death in Utah. In all three cases argued before the Court on Wednesday, guilt was not in doubt; at issue instead was the much-litigated question of how jurors should give weight to mitigating evidence. All three defendants were sentenced to death by jurors who were given a jury instruction on mitigating evidence that the Supreme Court has since struck down. The first case argued, Smith v. Texas, was the one making a return visit. LaRoyce Smith was convicted in 1991 of murdering a former co-worker at a Dallas Taco Bell restaurant. In 2004 the Supreme Court admonished the Texas Court of Criminal Appeals for erroneously relying on a test “we never countenanced and now have unequivocally rejected.” The instruction did not allow the jurors to fully consider evidence about Smith’s low IQ and troubled childhood. On remand, the Texas court reaffirmed the sentence, finding that the mitigating evidence was adequately considered and that if there was any error, it was harmless. Supported by former federal judges and public-interest groups, Smith returned to the Supreme Court, arguing, among other things, that the Texas court had ignored the Supreme Court’s mandate. The Texas court’s action “threatens this Court’s authority as the final arbiter of federal constitutional law,” former Solicitor General Seth Waxman told the justices in a brief for the Constitution Project, which pushes to improve safeguards and fairness in the administration of the death penalty. During the arguments, Justice Ruth Bader Ginsburg mocked the Texas court, suggesting it had said to the Supreme Court, “Thanks, that’s very interesting advice.” Justices Stephen Breyer and David Souter also expressed mild disapproval of the Texas court, but much of the hour was spent on the procedural details of the case. Both Roberts and Alito seemed to indicate they thought the issue was one of Texas, not federal, law. Gene Schaerr of Winston & Strawn bolstered their views in his argument on behalf of 21 states that sided with Texas. Those states, Schaerr said, wanted to “apply their own varied standards” for harmless-error analysis to death-penalty cases. In the second hour of argument Wednesday, the Court considered Abdul-Kabir v. Quarterman and Brewer v. Quarterman. Jalil Abdul-Kabir and Brent Brewer were both convicted in separate murders that occurred during robberies. Both were sentenced to death by jurors who, as with the Smith case, had been given a jury instruction found inadequate in other cases by the Supreme Court and since abandoned by the state. Both filed federal habeas petitions that the 5th Circuit denied. The high court has overturned similar rulings by the 5th Circuit, using increasingly strong language to instruct the circuit to require greater consideration of mitigating evidence. But the 5th Circuit declined to order new trials. Texas contends that the 5th Circuit has given effect to the Supreme Court’s decisions. In an eleventh-hour development, lawyers for both Brewer and Abdul-Kabir last month urged the Supreme Court to return the cases to the 5th Circuit in light of its Dec. 11 en banc decision in Nelson v. Quarterman. In the Nelson case, the appeals court, using language more conciliatory toward the Supreme Court, “decisively changed course” on the mitigation issue, in the words of lawyers for Brewer. As a result, the cases before the Supreme Court no longer needed to be ruled on by the justices, Brewer and Abdul-Kabir argued. But the Supreme Court did not act on their requests, so the cases were argued Wednesday. Robert Owen, representing Brewer and Abdul-Kabir, told the justices the Nelson ruling “profoundly changed” the underpinnings of the cases and asked the Court to remand them to the 5th Circuit. But Ginsburg noted that Texas is likely to appeal the Nelson case, so a remand would only delay resolution of the issue. Owen, like Smith’s lawyer, Jordan Steiker, is a professor at the University of Texas School of Law. Tony Mauro can be contacted at [email protected]

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