Uncertainty on Texas death penalty cases
on Dec 28, 2006 at 2:23 pm
For more than a quarter of a century, the Supreme Court and the courts that review Texas death penalty cases have been carrying on a not-always-cordial exchange over the jury’s role in weighing evidence that defense lawyers offer to try to head off capital punishment in that state. After four prior decisions on the subject, the Court agreed in October to step back into the controversy to try once more to resolve it. The Court has scheduled back-to-back hearings on the new cases for Jan. 17. Now, a series of developments in the Fifth Circuit Court is complicating this new review. (Thanks to Howard Bashman of How Appealing blog for alerts to these developments.)
Lawyers for two Texas death row inmates have asked the Supreme Court not to go forward with review of their appeals, but instead to return them to the Fifth Circuit to weigh a separate, recently decided case that was a major victory for such inmates. The state of Texas, however, is resisting that request, and has told the Court it will be filing its own appeal to challenge the latest Circuit Court ruling. The Justices are due to consider at Conference on Jan. 5 what to do about the presently pending cases, according to the electronic docket. The cases are Brewer v. Quarterman (05-11287) and Abdul-Kabir (formerly Ted Calvin Cole) v. Quarterman (05-11284). These developments apparently have not yet affected a third case raising similar issues, but reaching the Court from a Texas state court, not the Fifth Circuit; that case, Smith v. Texas (05-11304), is also scheduled to be heard Jan. 17.
In a Term when the Court has granted fewer cases for review, the potential disposal of the two Texas cases could make the docket even lighter.
In all three pending cases, defense lawyers are contending that the lower courts have not followed Supreme Court precedent on procedures that are necessary to make sure that jurors in Texas give “full effect” to mitigating factors in deciding for or against death sentences — under a regime that existed in the state until 1991. The appeals argue that the Supreme Court has left no doubt that trial judges must go to extra lengths to assure that such favorable evidence as mental impairment or youthful immaturity gets considered by the jury.
But, in moving to vacate the Brewer and Abdul-Kabir cases, the attorney for both, Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit’s 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that “the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court’s own approach” in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. “The need for this Court’s intervention no longer exists,” Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, “has been resolved.” (Identical arguments were made in the two cases.)
The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court’s more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state’s Postconviction Litigation Division in the state attorney general’s office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.
Meanwhile, a sideline controversy has developed over whether Brewer’s appeal to the Supreme Court was procedurally flawed, because the Fifth Circuit may not have taken final action on it before the appeal was filed. Owen vigorously contended, in the new Brewer petition, that the case was properly filed in the Supreme Court. The Fifth Circuit, in an order on Dec. 27 that produced a sharp dissent, sought to make the Brewer case final so as to avoid interfering with Supreme Court review. The dissenting judge contended that the Circuit Court had no authority to act, since the case is now before the Supreme Court.
The state followed up on the Circuit Court’s Dec. 27 order with a letter notifying the Supreme Court of it, and arguing that it showed there was no conflict between the earlier panel ruling in Brewer and the new en banc decision in Nelson
It can help to sort all this out to examine all the papers filed in the Supreme Court this month on the matter. (How Appealing blog has provided links to the Fifth Circuit Court’s Dec. 27 order and to the Nelson ruling.) Here are links to the new Supreme Court filings::
The Brewer motion to vacate is here. The state’s response is here. And the Brewer reply is here.
The Abdul-Kabir motion to vacate is here. The state’s response is here. And the Abdul-Kabir reply is here.
The state’s letter to the Court regarding both cases is here
The Supreme Court’s response to all of this may be known on Friday, Jan. 5, or the following Monday, Jan. 8..
