CRIMINAL PRACTICE | Justices set aside three death sentences in Texas

The justices ruled, 5-4, that the Texas Court of Criminal Appeals had incorrectly required a capital defendant to show "egregious harm" before correcting the constitutional violation the U.S. Supreme Court found in an earlier decision.

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The U.S. Supreme Court on April 25 issued the following opinions: • The justices ruled, 5-4, that the Texas Court of Criminal Appeals had incorrectly required a capital defendant to show “egregious harm” before correcting the constitutional violation the U.S. Supreme Court found in an earlier decision. Smith v. Texas, No. 05-11304. A Texas state jury convicted LaRoyce Lathair Smith of first-degree murder and sentenced him to death. Under Texas law, the jury verdict form provides special-issue questions to guide the jury as to whether the death penalty should be imposed. There were three special issues. The first addressed deliberateness; the second future dangerousness; and the third whether the killing was an unreasonable response to provocation by the victim. In Penry v. Lynaugh, 492 U.S. 302 (1989), the justices had ruled none of these special-issue instructions was “broad enough to provide a vehicle for the jury to give mitigating effect” to the evidence at issue in that case. Texas courts tried to cure what the justices call the “ Penry error” with a nullification charge. In Smith’s case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was “yes,” but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question with a “no.” In Penry v. Johnson, 532 U.S. 782 (2001), the justices ruled that the nullification charge didn’t cure the Penry error. In 2004, the justices set aside Smith’s death penalty, holding that “findings of deliberateness and future dangerousness . . . had little, if anything, to do with” mitigating evidence. On remand, the Texas Court of Criminal Appeals, the state’s highest court for criminal cases, again denied Smith relief, holding that Smith’s pretrial objections didn’t preserve the constitutional error claim. Thus Smith had to show not merely some harm, but egregious harm, a burden he couldn’t meet. The justices reversed, holding that the Texas high criminal court had misinterpreted their earlier ruling in Smith’s case as being simply an objection to the nullification charge. Writing on behalf of the court, Justice Anthony M. Kennedy said Smith had challenged the adequacy of the special-issue questions before trial and had not abandoned that claim during lengthy post-trial proceedings. It was on the basis of this Penry error that the justices had granted him relief. Because there is a reasonable likelihood of a jury concluding that it had not been permitted to consider Smith’s mitigating evidence, Smith is entitled to relief under Texas’ harmless-error framework. Kennedy’s opinion was joined by John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. • The justices ruled, 5-4, that because there is a reasonable likelihood that a trial court’s instructions prevented jurors from giving proper consideration to constitutionally relevant mitigating evidence, a capital defendant was entitled to federal habeas relief. Abdul-Kabir v. Quarterman, No. 05-11284. Abdul-Kabir was sentenced to death after being convicted of first-degree murder. His lawyers contended that the jury had not been permitted to take into account the childhood mistreatment and abandonment that contributed to his violent adult behavior. The Texas Court of Criminal Appeals affirmed. Abdul-Kabir filed a federal habeas petition. Denying his petition, the district court cited 5th U.S. Circuit Court of Appeals rulings holding that for a Penry claim to prevail, a defendant must show a nexus between his severe permanent condition and the crime attributed to that condition. The 5th Circuit denied Abdul-Kabir’s application for a certificate of appealability. The justices vacated the COA denial. On remand, the 5th Circuit said that the special issues had allowed the jury to give full consideration to mitigating evidence, and affirmed the denial of federal habeas relief. The justices reversed. Writing on behalf of the court, Stevens said that Abdul-Kabir’s mitigating evidence of childhood deprivation and lack of self-control was relevant to his moral culpability. Its purpose was not to rebut either deliberateness or future dangerousness but to provide the jury with an entirely different reason for not imposing death. Stevens’ opinion was joined by Kennedy, Souter, Ginsburg and Breyer. Roberts, Scalia, Thomas and Alito dissented. • The justices held, 5-4, that, because under Texas law a trial jury is unable to give meaningful consideration and effect to constitutionally relevant mitigating evidence, a capital defendant is entitled to relief under Penry. Brewer v. Quarterman, No. 05-11287. Brent Ray Brewer was sentenced to death after being convicted of first-degree murder. At sentencing, Brewer sought to introduce mitigating evidence of mental illness and abuse at the hands of his father. The trial judge told the jury to address only two special issues: whether his conduct was committed deliberately and with the reasonable expectation it would result in his victim’s death and whether it was probable he would commit future violent acts. The Texas Court of Criminal Appeals affirmed. The 5th Circuit denied his habeas petition. The justices reversed. Writing on behalf of the court, Stevens said that the 5th Circuit’s “conclusions that Brewer’s mental-illness . . . evidence could not constitute a Penry violation, and that troubled-childhood evidence may, because of its temporary character, fall sufficiently within the special issues’ ambit, fail to heed this Court’s repeated warnings about the extent to which the jury must be allowed not only to consider mitigating evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and assign it weight in deciding whether a defendant truly deserves death.”

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