Yesterday’s Opinion in Smith v. Texas

The following entry is by Troy D. Cahill, an associate in Akin Gump’s DC office.

For the second time in three years, the Supreme Court ruled in favor of LaRoyce Smith and reversed a decision of the Texas Court of Criminal Appeals. In a five-to-four decision in which Justice Kennedy was joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court held: (1) that the Texas Court of Criminal Appeals made errors of federal law that cannot be the predicate for requiring Smith to show egregious harm; and (2) that because there is a reasonable likelihood the jury believed it was not permitted to consider Smith’s relevant mitigating evidence, it appears that Smith is entitled to relief under the state harmless-error framework.

At the time of Smith’s trial for murder, Texas statutes provided that the jury at the penalty phase of a capital case had to answer certain questions, known as “special issues.” If the jury found that the answer to all the special issues was yes, then the death sentence was imposed; otherwise, a sentence of life imprisonment was imposed. Prior to his trial, Smith filed three written motions addressing the jury instructions. In the first two motions, Smith argued that the special issues were constitutionally inadequate. In the third, Smith requested the court to state the contents of the nullification charge prior to voir dire in order to allow Smith to exercise his jury challenges intelligently. The trial court denied the first two motions and, in response to the third, provided Smith a copy of its proposed nullification charge. Smith raised no additional objections and did not suggest alternative wording for the nullification charge. The jury convicted Smith of first-degree murder and sentenced him to death for the murder of Jennifer Soto, a former co-worker.

On direct appeal, Smith pressed his argument that special issues were unconstitutional, but the Texas Court of Criminal Appeals affirmed the death sentence. Smith’s initial first state habeas petition was dismissed as untimely. A subsequent change in the Texas criminal code permitted Smith to file a timely second state habeas petition. In his second habeas petition, Smith contended that the special issues were constitutionally inadequate. The state trial court denied habeas relief on the ground that Smith was procedurally barred from raising the same claim previously denied on direct review. On appeal to the Texas Court of Criminal Appeals, the court held that the special issues were adequate to consider the mitigating evidence. The U.S. Supreme Court summarily reversed that ruling on the ground that the nullification instruction was constitutionally inadequate and remanded the case to the Texas Court of Criminal Appeals (“Smith I”).

On remand, the Texas Court of Criminal Appeals held that the constitutional error asserted by Smith was caused by the nullification charge and that, having failed to challenge the nullification charge at trial, Smith was required to demonstrate “egregious harm” – rather than “some harm” – to obtain relief. In the lower court’s view, because there was little likelihood that Smith’s jury had failed to consider the mitigating evidence, Smith failed to show the kind of egregious harm necessary to obtain habeas relief. Smith again sought certiorari, which the Court granted on October 6, 2006.

In a majority opinion authored by Justice Kennedy, the Court yesterday held that Smith’s central objection at each stage of his appeals has been to the special issues. In support of this conclusion, the majority explained the Court’s ruling in Smith I as holding that the special issues prevented the jury from considering Smith’s mitigating evidence, while the nullification charge merely failed to cure that error. According to the majority, the Texas Court of Criminal Appeals misunderstood the ruling in Smith I, which on remand led it to hold that Smith had not preserved his challenge to the special issues. As a result of this error, the majority held, the Texas Court of Criminal Appeals mistakenly required Smith to show egregious harm. Having established that the Texas Court of Criminal Appeals applied the wrong standard, the majority examined Smith’s claim in light of the proper standard and held that “there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence.” As such, the Court concluded, “it appears Smith is entitled to relief under the state harmless-error framework.” As a result of its conclusion on that issue, the majority did not reach the question of whether the nullification charge resulted in a separate jury-confusion error, and – if so – whether that error is subject to harmless-error review.

The dissenting opinion authored by Justice Alito – in which the Chief Justice, Justice Scalia, and Justice Thomas joined – concluded that the judgment of the Texas Court of Criminal Appeals on remand did not conflict with the Court’s ruling in Smith I. In particular, the dissenters took issue with the majority’s conclusion that Smith had preserved his objection and, as a result, would have held that the lower court correctly applied the egregious harm standard. According to the dissenters, although Smith did argue that the special issues precluded the jury from considering mitigating evidence, by failing to argue that the trial judge’s proposed instructions were insufficient to cure that defect he failed to preserve his claim; the majority’s contrary conclusion, contend the dissenters, effectively vests Smith (and others similarly situated) with a “federal right to sandbag the trial court.”

The dissenters also noted that the prior rulings of the Texas Court of Criminal Appeals in Smith I never held that Smith’s challenge was properly preserved; thus, despite having previously rejected the federal claim on the merits, the state court was not precluded from imposing the state-law procedural bar on remand of Smith I. In addition, the dissenting opinion concluded that the egregious harm standard was an “adequate and independent state ground sufficient to support a state judgment that precludes consideration of a federal right.”

Given the somewhat factbound nature of the Court’s decision, the effect of the Smith decision on the limited number of similarly situated Texas death row inmates is uncertain. During oral argument in January, counsel for Texas told the Court that approximately 47 inmates on Texas’ death row were sentenced under similar jury instructions, but is not clear whether all of those inmates asserted a challenge similar to Smith’s. Moreover, it is not clear whether the Texas Court of Criminal Appeals has applied the egregious harm standard to any other defendant with a claim similar to Smith’s. Thus, it remains to be seen how broad of an impact this decision will have. The impact on Smith’s case, however, is pretty clear. On remand, the Texas Court of Criminal Appeals will likely grant the writ and remand the matter to the state district court where the district attorney will elect to either hold a new penalty phase for Smith or commute Smith’s sentence to life imprisonment. If the district attorney elects to commute Smith’s sentence, Smith would, at some point, be eligible for parole since life imprisonment without possibility of parole was not a possible penalty under Texas law at the time of Smith’s conviction.

One other point bears mentioning: in his concurrence, Justice Souter noted the potential need “to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U.S. 302 (1989).” Notably, a petition for a writ of certiorari presenting that issue is currently before the Court in Quarterman v. Nelson (06-1254). The brief in opposition is due May 16, 2007, and the case will likely be considered at the Court’s private conference on June 14, 2007.