Capital cases 1/17/06: Broad or narrow review?
on Jan 16, 2007 at 12:50 pm
For the fifth time in the past nine years, the Supreme Court on Wednesday, Jan. 17, reopens constitutional issues on the role of juries in death penalty sentencing in Texas. If the two hours of back-to-back hearings in three cases reach their full potential, they could provide a sweeping inquiry into the role of child abuse in leading to criminal behavior later in life, the authority of states to fashion their own rules for review of death cases after convictions have become final, and the duty of state and lower federal courts to abide by Supreme Court precedent.
At the same time, however, each of the two hearings could dissolve into case-specific inquiries that would bring no real change in the law. And there remains at least a possibility that the Court will not even decide two of the three cases, but rather send them back for another review in a federal appeals court.
The cases are Smith v. Washington (05-11304), up for the first hour of argument at 10 a.m., and the consolidated cases of Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), due for one hour starting at 11. The Smith case will be argued for LaRoyce Lathair Smith by Jordan Steiker, with the Capital Punishment Center at the University of Texas Law School in Austin; for the state, by state Solicitor General R. Ted Cruz of Austin, and for 21 states as amici by Gene C. Schaerr of Winston & Strawn in Washington, D.C. The consolidated cases will be argued for the death row inmates by Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, and, for the state, by Edward L. Marshall, deputy chief of the Post-Conviction Litigation Division in the Texas Attorney General’s Office.
In the consolidated cases, the inmates’ attorneys have filed a request to have the Court vacate the cases and return them to the Fifth Circuit Court to see if they would come out differently under a more-recent Circuit Court ruling, in Nelson v. Quarterman on Dec. 11. The motion to vacate argues that the Circuit Court has now changed course, and has turned away from its narrow prior interpretations of Supreme Court precedent. The state of Texas disputes that characterization of Nelson, arguing that the Fifth Circuit itself has made clear that there is no inconsistency in its jurisprudence. The Court has had the motion to vacate before it since mid-December, and has so far taken no action on it. Thus, that question is likely to become a part of the Wednesday hearing on those cases.
In much over-simplified form, the three cases due up Wednesday appear to be little more than attempts to persuade the Court that the Texas Court of Criminal Appeals and the Fifth Circuit Court — the two lower courts that have the most to say about capital cases in Texas — separately have been stubbornly resisting the Supreme Court’s four past precedents in Texas cases. (One of those past precedents was the Smith case itself, in an earlier phase in 2004.) In the Court’s four prior rulings, it has stressed that Texas must find a way to assure that jurors in death penalty cases have a clear-cut opportunity to give “full effect” to evidence of mental impairment that might lead the jury to avoid imposing a death sentence. Texas changed its procedures on the point in 1991, but older cases linger, and so the issue remains current and active.
In the Smith case, the Constitution Project, a liberal advocacy group, says the Court is confronted directly with the need to rein in state courts that openly flout Supreme Court rulings by throwing up new procedural hurdles based on state law. Texas counters, in that case, that “once the rhetoric is put aside,” the Smith case actually comes down to a routine application of controlling state law, not defiance of federal precedent. “State and federal judges have attempted for many years to understand and apply the intertwined and evolving standards that govern capital punishment litigation,” the state asserts.
If the Court moves beyond that issue (or does not address it at all), it will find in the Smith case a test of harmless error doctrine as it applies to jury instructions in capital cases. In the Court’s prior ruling in that case in 2004, the Court summarily overturned LaRoyce Smith’s death sentence after finding that jurors did not have an adequate opportunity to weigh evidence of learning disabilities and a low IQ. On remand, Texas’ highest criminal court reinstated the death sentence, applying a state “harmless error” rule that is more forgiving of error in jury instructions than is the federal habeas rule. Smith’s appeal contends that the state may not rely upon a state-crafted rule to excuse a federal constitutional defect in jury instructions. The state, with the support of 21 other states, argues that the Constitution does not bar the application of state harmless error doctrine to errors in jury instructions, so the state court ruling here should be allowed to stand as based upon independent state law. The amici states contend that the Court should not curb states from setting their own limits on state post-conviction limits that are created under state law.
The Abdul-Kabir and Brewer cases have not been to the Court before. A number of mental health advocacy groups and child welfare associations have filed briefs urging the Court to turn those cases into a broad examination of the phenomenon of child abuse and its affect on criminal behavior later in life. Those briefs argue that substantial new scholarship shows that there is “potential harm from victimization in youth” that can set off a “cycle of violence” throughout life. They note evidence in both cases that Jalil Abdul-Kabir (also known as Ted Calvin Cole) and Brent Ray Brewer were both victims of violent abuse in childhood and young adulthood.
Those cases involve the system that Texas used up to 1991 in death sentencing hearings that require the jurors to give simple “yes” or “no” answers to the question of whether the killing in the case was done deliberately, and whether the accused would be dangerous if allowed to remain alive. The Fifth Circuit in those cases has found that jury instructions given at the time those “special issue” questions were put to jurors were adequate to give them a full opportunity to weigh the evidence against capital punishment. Underlying the specific issues in this case — as in Smith — is the question of whether Supreme Court precedent has been faithfully applied in Texas cases. And that issue has been complicated by the more recent Circuit ruling in the Nelson case.
