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Sunday, April 29, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! With this week’s three 5-4 decisions messing with Texas (or at least tinkering with its machinery of death), the Court’s capital-punishment jurisprudence continues, somewhat surprisingly, the slow pro-defendant drift of the late SOC years. Overall, after Wednesday’s decisions, AMK has now been in the majority in 31 out of 32 of this Term’s signed cases. But the more telling stat is DHS’s second-place standing. He’s been in the majority in 84% of the cases. I’ll leave it up to you to determine whether this is the radically conservative Court so feared by our friends at the ACLU and PFAW during the recent nomination battles. In other news, the Court has returned to the positively glacial pace of grants seen earlier this Term, with only 1 grant from the last few conferences. Let’s recap the action.

Smith v. Texas, 05-11304


Smith is the least important of the week’s capital cases. Being a narrowly factbound smackdown of the Texas Court of Criminal Appeals, it seems unlikely to have much impact beyond giving LaRoyce Lathair Smith another chance to convince a jury that a difficult childhood and low IQ mitigate the brutal murder of his co-worker at a Dallas Taco Bell.

A brief Texas Death Penalty 101 tutorial is necessary to understand all of this week’s cases. Back in the 1980s, Texas juries were instructed to answer two “special issues” to determine whether a capital defendant received a death sentence: (1) Whether the defendant committed murder deliberately; and (2) whether he is likely to commit violent acts in the future (aka “future dangerousness”). If the jury answered both questions “yes,” the defendant was on his way to Huntsville (home of Texas’s execution chamber and the Texas Prison Museum (no joke), in case you’re interested in visiting). In Penry v. Lynaugh (1989) (Penry I), the Court held the special issues violated the 8th Amendment because they did not give the jury an adequate opportunity to consider mitigating evidence that was not covered by the special issues. Texas courts responded to Penry I by giving juries a nullification instruction, telling a jury to answer “no” to 1 of the 2 special issues if it found mitigating evidence that warranted sparing the defendant’s life. In Penry v. Johnson (2001) (Penry II), the Court found this confusing approach constitutionally no better than the old way.

Smith was sentenced between Penry I and Penry II. He objected to the special issues before trial, but failed to raise an additional objection when the judge issued the nullification charge. On state habeas, the Texas CCA attempted to distinguish the Penry twins on the merits, holding that Smith’s mitigating evidence was of the type adequately covered by the special issues—that is, there was no Penry I error—and that the nullification instruction was better than the one given in Penry II, so there was no Penry II error. The Supreme Court summarily reversed both holdings in 2004. On remand, the Texas CCA thought the Supreme Court had decided that the nullification instruction itself caused Smith’s constitutional harm, as opposed to merely failing to cure the harm caused by the special issues. The CCA then held for the first time that Smith had procedurally defaulted his Penry II objection to the nullification instruction; applied a Texas-sized “egregious harm” standard to the defaulted claim; and held that Smith could not meet it.

The 4 pages of analysis in AMK’s opinion for the Court (joined by the 4 less radically conservative Justices), explained that the Court’s earlier holding was based primarily on Penry I error—the special issues were inadequate and the nullification charge merely failed to cure that error. The Court then held that Smith’s pretrial objections adequately preserved his Penry I claim.  In short, the Texas CCA “misunderstood the interplay of Penry I and Penry II.” After reading my description of the procedural and legal background of this case, I’m sure you’re shocked (shocked!) that anyone could misunderstand it. Due to the Court’s holding that it had already decided the merits of the case, the Court did not need to reach the validity of Texas’s harmless-error rule.

DHS concurred, noting that the Court may have to decide at some later date whether a harmless-error rule is ever appropriate for Penry error.

Justice Alito and his 3 fellow radicals dissented: “This case is less complicated than the opinion of the Court suggests.” To him, Smith made a strategic decision not to object to the jury instructions, including the nullification instruction, and the Texas CCA quite properly held that this procedurally defaulted his claim. SAA did not read the Court’s Smith I opinion as foreclosing this holding. He concluded that Texas’s egregious-harm rule is a perfectly valid standard for reviewing defaulted claims—much like the federal plain-error standard. And it is an adequate and independent state ground for the CCA’s judgment, meaning that the Court may not review the egregious-harm determination on the merits.

Brewer v. Quarterman, 05-11287/ Abdul-Kabir v. Quarterman, 05-11284

JPS wrote separate 5-4 majority opinions in these two consolidated cases, but a common legal holding underpins both: The Supreme Court’s caselaw in the years after Penry I on the type of mitigating evidence not adequately covered by the Texas special issues was sufficiently clear to grant habeas relief to these petitioners, even under AEDPA’s restrictive standard.

Abdul-Kabir introduced evidence of a tough childhood at the sentencing phase, was sentenced to death, and ultimately had his federal habeas petition denied by the 5th Circuit. Brewer’s story is the same except his evidence dealt primarily with mental illness. At the outset of both cases, JPS stated the clearly established law at a high level of generality. The Court’s cases require that a jury be allowed to give full effect to all mitigating evidence a defendant might present. Measured against that standard, the special issues were constitutionally insufficient to give effect to petitioners’ mitigating evidence. The mitigating evidence simply wasn’t relevant to the two questions the jury was asked to answer. In Abdul-Kabir, the Court rejected the CA5’s reliance on post-Penry precedent that had held that the special issues were sufficient for considering certain types of mitigating evidence (e.g., youth). JPS read that as a narrow exception to the broader rule that the special issues were pretty much good for nothing. In Brewer, the Court repudiated the CA5’s holding that evidence of mental illness must be chronic before it is even eligible for consideration as Penry error as a vestige of the illegitimate “constitutionally significant” test the CA5 employed before it was reversed in Tennard v. Dretke (2004).

JGR (+3) penned an already-much-quoted dissent. He described the Court’s post-Penry cases as “a dog’s breakfast of divided, conflicting, and ever-changing analyses” that could not serve as a basis for habeas relief. He also chided JPS for citing 2 of his own dissenting opinions as evidence that the law was clearly established. However, looking at the bright side, he concluded that “there is hope yet for the views expressed in this dissent . . . . Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”

AS (+CT, SAA) narrowly read the post-Penry precedents as clearly establishing an 8th Amendment violation only when a jury cannot give any effect to the mitigating evidence at issue. In a portion joined only by CT, Justice Scalia restated his view that the 8th Amendment has nothing to do with whether states allow mitigating evidence at sentencing.

Grant: The Court granted cert in United States v. Santos (06-1005), which will interpret the money-laundering statute, 18 U.S.C. 1956(a)(1). That law criminalizes laundering the “proceeds” of unlawful activities. The question presented by the SG is whether “proceeds” means the gross receipts from the unlawful activities or only the profits. The CA7 vacated a conviction where the defendants laundered the overhead expenses of an illegal gambling operation, but not the profits. The SG says the CA7 is on the short end of a circuit split and that its decision wrongly prevents the government from adding a money-laundering charge to every single federal indictment interprets the statute.

Until next time, possibly Monday opinions, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP and a member of the firm’s Appellate and Supreme Court Practice.  The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Driver does not carry more than $20 in cash.  If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on April 29, 2007 at 09:36 AM in Constitutional thoughts | Permalink

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