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Supreme Court Decision Update - Smith v. Texas

chamber.jpgIn yesterday’s Smith v. Texas (PDF of the opinion) decision, the Supremes took a second look at a case about Texas death sentence jury instructions (the same type of instructions they looked at in yesterday’s other two cases). The Supremes ruled that the Texas appeals court botched the issue, as there were procedural problems with the instructions, meaning that Smith’s constitutional rights were violated.

QuizLaw Analysis: This case came up to the Supremes in 2004. Now, the Supremes basically tell the Texas court that it got everything all wrong, and it should’ve just done things right after that 2004 opinion, i.e., “these instructions were bad and you have to rule that Smith’s death sentence gets tossed, and we’ll keep telling you this until its gets through your fat collective head.”

So this is Smith’s second time in front of the Supremes? Yessir. A while back, LaRoyce Lathair Smith was convicted of brutal first-degree murder in Texas, and a jury hit him with the death sentence. In imposing the death sentence, the jury had to look at some special issues, which is what this case is all about.

What are special issues? Ok, so we’re talking about Texas law here. Now when we look at a jury verdict form in Texas, there are several so-called special issue questions, which are intended to help the jury figure out if the death penalty should be imposed in a particular situation. At the time Smith was on trial for murder, Texas law looked at three special issues: whether the murder was deliberate, whether there was future danger, and whether the murder was an unreasonable response to any provocation by the victim. That third issue didn’t come into play in Smith’s case, so the jury just looked at the questions of deliberateness and future danger and, because they answered “yes” to both questions, they imposed the death penalty.

But what about mitigating factors? Good question, grasshopper. The Supremes actually looked at these two special instructions in another case, Penry v. Lynaugh (which we call Penry I). The Supremes ruled that the instructions weren’t broad enough to allow the jury to consider mitigating evidence, which creates a constitutional problem: “We refer to the inadequacy of the special issue instructions as “Penry error.”

So why were these special issue questions used in Smith’s case? After Penry I, for a time, the Texas courts tried to cure the Penry error with a so-called nullification charge. The judge in Smith’s case used such a 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 “no.” The charge was not incorporated into the verdict form. In essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating evidence.

Well that doesn’t sound right. Correct - it isn’t. In Penry v. Johnson (Penry II), the Supremes ruled that a nullification charge “created an ethical and logical dilemma” preventing juries from really allowing mitigating evidence to factor into the sentencing decision. “In other words, Penry II held that the nullification charge did not cure the Penry error.”

Anything else we need to know? Yup. Before trial, Smith filed several challenges to the jury instructions in his case, arguing that the special issue questions were unconstitutional. He had several arguments for this, one of which was that they the nullification charge needed to actually be on the jury verdict form. The trial count denied all of the challenges and as to the last one, the judge gave Smith a copy of the nullification charge and told him that he should offer any suggestions if he wanted it worded differently. Smith declined to offer any such suggestions, so the charge was given to the jury as originally written (although it still wasn’t on the verdict form). The jury answered “yes” to both of the special issues, and Smith was smacked with the death sentence.

After the trial, Smith filed a whole bunch of appeals and habeas petitions. This case largely turns on what issues, exactly, Smith raised during these appeals and the petitions. The majority’s opinion spends quite a few pages looking at it all, but it basically boils down to this - the majority says that Smith was always contending, primarily, that the special issue questions suffered from a Penry error (and not, as Texas argued, that the real problem here was jury confusion caused by the nullification charge).

So who is the majority here? Same as in yesterday’s other two cases, although this one was penned by Justice Kennedy (and joined by Justices Stevens, Souter, Ginsburg and Breyer).

Wait – didn’t you say Smith was already in front of the Supremes? That’s right. The Supremes issued an opinion in 2004 where they ruled that the Texas Court of Criminal Appeals was wrong in denying Smith relief, because there was definitely a Penry error. And even though the nullification charge given in Smith’s case was different from the one considered in Penry II, those differences were “constitutionally insignificant,” meaning the nullification charge didn’t fix the Penry error and was inadequate underPenry II.

So how did we end up back with the Supremes? The case went back down to the Texas Court of Criminal Appeals, which again denied relief to Smith. This time, the court said that Smith had not preserved the right to make a Penry II challenge because at trial he wasn’t actually challenging the jury charge, but was really challenging the state statute authorizing the special issue questions. This, the court said, was a procedural error which it could only consider if there was egregious harm, not just some harm. And the court said there wasn’t any egregious harm, so relief denied.

Can we finally to get to the meat and potatoes of this decision? Kennedy being by reiterating that the special issue questions used in Smith’s trial suffered from a Penry error which was not cured by the nullification charge. That’s what Smith I was all about. Kennedy clarifies that the basis of the Court’s ruling in Smith I had to do with the error arising from the defecting special issue questions, not any error specifically caused by the nullification charge.

So the appeals court botched this on remand when it interpreted Smith I as granting relief in light of an error with the nullification charge. And, says Kennedy, if you look at all of Smith’s post-trial arguments, as well as the resulting state court judgments, it’s quite clear that Smith was always attacking the special issue questions (specifically the jury charge, not really the Texas statute), and that his argument never changed.

And so it all just boils down to this - the appeals court was all confused, misunderstanding how Penry I and Penry II work together, “and it mistook which of Smith’s claims furnished the basis for this Court’s opinion in Smith I.”

And what’s the right standard of review? The Texas court said that Smith’s claim wasn’t properly preserved, and thus Smith had to show egregious error. But Kennedy just said the objection was properly preserved, so the Texas court was wrong on this. Thus, if there’s “‘a reasonable likelihood the jury believed it was not permitted to consider’ some mitigating evidence,” the appropriate error standard is met. And the state court is “required to defer to our finding of Penry error, which is to say our finding that Smith has shown there was a reasonable likelihood of that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence.” Which means it appears that Smith is entitled to relief.

And what of the dissent? Actually, we have a concurring opinion first.

Ok - so what of the concurrence? Well Justice Souter wrote a quick little thing, and I’ll just quote it, as it would take me longer to summarize it:

I join the Court’s opinion. In some later case, we may be required 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). We do not and need not address that question here.

That’s the extent of his concurrence.

Once again then, what of the dissent? The dissent here was written by Justice Alito, and joined by Chief Justice Johnny, Thomas and the Scalia. Alito says this is all less complicated than Kennedy suggests. Smith’s attorney never objected to the actual text of the special issue questions, says Alito, nor did he take up the judge’s offer to provide new language for the nullification charge. Alito says the Texas appeals court was right to therefore say an objection had not been properly preserved, and that the “egregious error” should apply. And thus, he says this is now a state law issue, which this court doesn’t even have jurisdiction over: “According, I would dismiss for want of jurisdiction.” He then explains this all in much more depth over a dozen-or-so pages, but I’ll leave the details for you to explore on your own.