Texas CCA to US Supreme Court: Up Yours!

Forty-seven of the 392 defendants on Texas death row were convicted using sentencing instructions the US Supreme Court later declared unconstitutional. But the Texas Court of Criminal Appeals responded by thumbing its nose (again) at the high court, most recently declaring the unconstitutional instructions "harmless error."

Really, folks, when you think about it, that takes chutzpah. No wonder Texas Monthly called the CCA Texas' worst court.

Dahlia Lithwick wonders at Slate whether the Supreme Court's "opinions have become suggestions in Texas." From her description of the oral arguments, it sounds like the 7-2 supermajority that's been signing off on most bench-slapping of Texas death penalty cases may have been watered down substantially by the addition of Chief Justice John Roberts and Justice Samuel Alito.

Lithwick declares that "the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel." That prediction doesn't sound too promising for the lawyers at the UT-Austin capital punishment clinic who argued the case, but I guess we'll know soon enough.

In addition, via Talk Left I noticed a telling article I'd missed from the New York Times ("Judges scrutinize death penalty in Texas," Jan. 17) excerpting more of the oral arguments. Here's how the Times' Linda Greenhouse described the case:

The Supreme Court on Wednesday resumed its long-running effort to monitor the use of the death penalty in Texas, hearing arguments in three cases that put the strains and internal contradictions of the court’s capital punishment jurisprudence fully on display.

All three cases offer a window on the recent history of capital punishment in the United States, which to a large degree is the history of capital punishment in Texas. Since 1976, when the Supreme Court permitted states to resume executions, Texas has put to death 380 people, far more than any other state. (The next highest, Virginia, has executed 98.)

In 1989, the Supreme Court ruled that the jury instructions that Texas was using were constitutionally deficient because they failed to ensure that jurors could give meaningful consideration to a defendant’s mitigating evidence. Under the Texas system, jurors were instructed to respond to only two questions: whether the killing was deliberate, and whether the defendant posed a continuing threat to society. If the answers to both were yes, a death sentence was automatic.

The Texas Legislature addressed the problem two years later by instructing jurors to take “all of the evidence” into consideration, including the defendant’s character and background. But in the interim, during which Mr. Smith was sentenced to death for murdering a former co-worker at a Taco Bell in Dallas, judges tried to address the problem by telling jurors that if they thought the mitigating evidence warranted a sentence of life in prison rather than death, they should simply answer no to one of the two questions, even if they believed that the proper answer was yes.

Eventually, the Supreme Court held that this “nullification instruction” was constitutionally inadequate as well. It applied that ruling to Mr. Smith’s earlier appeal, overturning his sentence in 2004 and sending it back to the Texas Court of Criminal Appeals, which in turn reinstated it, finding the error “harmless” because Mr. Smith had failed to show that the nullification instruction had caused him “grievous harm.”

In his new appeal, Mr. Smith, represented by a University of Texas Law School professor, Jordan M. Steiker, is arguing that the state court’s resolution of the case flew in the face of the Supreme Court’s analysis. The state court, having failed in the first round to apply its “harmless error” rule, should not be permitted to introduce it after the fact, Mr. Steiker said.

Although several justices, most notably Stephen G. Breyer and Ruth Bader Ginsburg, clearly agreed with him, Mr. Steiker encountered stiff resistance from Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The chief justice said the Texas court had handled the case in an appropriate and even “desirable” way.

Because the state court did not initially regard the nullification instruction as an error, Chief Justice Roberts said, it had no reason at that point to decide whether the error was harmless. “Wouldn’t it be normal exercise of judicial restraint to say we don’t have to reach out and decide whether this error was harmless if we’ve already decided there’s no error at all?” he asked.

Texas was represented by its solicitor general, R. Ted Cruz, and supported by a second lawyer, Gene C. Schaerr, representing California and 20 other states that entered the case, Smith v. Texas, No. 05-11304, as “friends of the court” for Texas. Mr. Schaerr said the case presented an important federalism issue of “whether states have the ability under our federal Constitution to choose their own harmless error standards.”

I see three possible or likely outcomes: Maybe Roberts and Alito will be swayed by behind-the-scenes discussions (it's hard to understate how much hubris the CCA has shown here), a 5-4 majority could still hold up against the CCA, or else it may be that the Texas death penalty will turn out to be the first major arena where President Bush's new Supreme Court appointees start reversing the courts of the last few decades. Nothing to do now but wait and see. Read prior Grits coverage of the Smith case.