The Court on Wednesday handed down three capital opinions: Smith v. Texas, Abdul-Kabir v. Quarterman, & Brewer v. Quarterman. SCOTUSBlog has posted the opinions, Smith v. Texas is here. Abdul-Kabir v. Quarterman is here. Brewer v. Quarterman is here.
Abdul-Kabir & Brewer, are dealt with below. Justice Stevens wrote the majority opinions in these cases, but the dissents are consolidated.
The question at issue in Abdul-Kabir / Brewer v. Quarterman is Lockett & its application to Texas. It is a question, that once answered in the affirmative all but determined the outcome of this case as it has every case coming before the court. The majority opinions are straight forward as the law here is now well settled. Unfortunately for the Chief Justice someone forgot to tell him.
In Texas is asked a series of “special questions.” At the time of both Abdul-Kabir & Brewer there were just two questions. Texas’s sentencing scheme is an outlier and its scheme has been rejected by every other state (or almost every other if you include Oregon’s system). Neither special question explicitly addresses mitigation.
In Abdul-Kabir & Brewer the prosecutors argued that the mitigation proffered by the Defendant could not “honestly” be used to answer either special question “no.” The jury instructions, likewise, did not permit the jurors to give effect to the mitigation without breaking their vows as jurors.
SCOTUSBlog notes on the merits:
Justice Stevens devotes nearly one-third of his thirty-page opinion in Abdul-Kabir to a review of the Court�s death penalty jurisprudence, which � in the majority�s view � �firmly established� even �well before our decision in Penry I . . . that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence.� By contrast, Justice Stevens explains, the state trial judge who rejected Abdul-Kabir�s application for habeas relief, did not analyze Penry I at all; instead, the state court relied on the Court�s 1989 decision in Graham v. Collins. That reliance, the majority continues, was �misguided� in light of the narrow holding in Graham. The Court�s subsequent cases � even those holding that the special issues allowed adequate consideration of mitigating evidence � �fail[ed] to disturb the basic legal principle that continues to govern such cases: The jury must have a �meaningful basis to consider the relevant mitigating qualities� of the defendant�s proferred evidence.� In this case, the majority emphasizes, because some of the mitigating evidence that Abdul-Kabir presented was not relevant to either of the two special issues, the jury had no such meaningful basis and the sentencing process was thus �fatally flawed.�
In a separate but much shorter opinion, Justice Stevens�s majority opinion also reversed the Fifth Circuit�s decision in the case of Brent Ray Brewer (seriously, what is it about capital defendants with the middle name �Ray�?). In Brewer�s case, the Fifth Circuit had itself reversed the district court�s decision granting conditional relief, citing the lack of expert psychiatric testimony at Brewer�s sentencing; moreover, under its precedents, �mental illness has given rise to Penry I violations� only when �the illness in question is chronic and/or immutable.� The majority today rejected this formulation, emphasizing instead that the relevant inquiry with regard to mitigating evidence is whether it has �relevance to the special issues and the extent to which it may diminish a defendant�s moral culpability for the crime.� The majority similarly rejected the Fifth Circuit�s characterization of the law as requiring only that mitigating evidence be given �sufficient effect,� explaining that � �[l]ike the �constitutional relevance� standard that we rejected in Tennard� � such a standard has �no foundation in the decisions of this Court.� Finally, the opinion delivers the polite, Justice Stevens version of a slapdown: the majority laments that the Fifth Circuit�s decision in these cases �fail to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury must be allowed not only to consider such evidence . . . but to respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.�
Especially notable here is the role of Justice Kennedy. Kennedy authored Johnson v. Collins, a key case cited by the dissent, He joined the majority. He was the swing the Justice. He also authored Smith v. Texas, also decided today.
In dissent, the Chief Justice focuses not on Lockett, he mentions it but once, rather he focuses on the narrowest possible construction of the Court’s precedent in the late 80s & early 90s. The dissent also concedes, as it must, the law is now well settled, specifically the Chief suggests if the case were on direct appeal he would affirm. But by focusing on, for lack of a better term, on the “Texas exceptionalism” rationale used by the Fifth Circuit repeatedly (and rejected by the Court in Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), Tennard v. Dretke, 542 U. S. 274 (2004)),he would hold the law was not well settled in 1999 & 20001 when Abdul-Kabir & Brewer were decided — the point in time AEDPA requires the law be “clearly established.”
The Sentencing Blog & the SCOTUSblog have more. Others following the story include Z The Legal Blog and Monthly Newsletter, The Volokh Conspiracy, Crime & Consequences (their position is predictiable), Grits for Breakfast, & StandDown Texas Project. CapDefNet’s braintrust has yet to post.
Giving credit where credit is due, counsel in Texas did a kickass job. On Abdul-Kabir & Brewer it was Rob Owen and friends. On Smith v. Texas it was Jordan Steiker (who argued), his sister Carol Steiker, and Maurie Levin; Levin’s work is noted by the Court & is likely the difference between life and death in Mr. Smith’s case. My apologies to those who were slighted by the original post. The original post was pumped out in about 30 seconds due to my IRL responsibilities (including a heavy Court day in the AM). The University of Texas Law School’s press release is here.
[Admin Note: I have effectively removed the first post on the topic & have substantially edited this post since it was originally posted. ]
[Note: Grits for Breakfast gets the snark award for the line that "for now, at least, US Supreme Court rulings aren't just "suggestions" in Texas, but we're getting awfully close to that point, at least regarding rulings in capital punishment cases."]
[Thanks to Doug Berman for his kind words. Unfortunately, I am a lawyer by trade & not a blogger. I make my living (as of 2003) defending poor people accused of noncapital crimes, from shoplifting $201 dollars worth of merchandise to murder and I haven't represented - directly - a death sentenced or capitally indicted person since. I am flattered that others look to my postings for some sort of word on the death penalty and my apologies for any delay in posting due to the day job.]