Court to hear a new death penalty case
on Oct 13, 2006 at 4:15 pm
UPDATE 10/14, 8PM: The cert. petitions, briefs in opposition, and reply briefs in these cases can now be found here at Supreme Court Times (thanks to Ross Runkel for sending along the information).
The Supreme Court on Friday agreed to hear a new death penalty case from Texas. It granted review of two cases, and consolidated them for oral argument: Abdul-Kabir v . Quarterman (05-11284, denial of rehearing, panel opinion) and Brewer v. Quarterman (05-11287, denial of rehearing, panel opinion). The case involves another test of whether Texas juries have an adequate opportunity, in capital cases, to consider mitigating factors when deciding whether to impose a death sentence.. A lawyer for the two men told the Court in the two appeals that the Fifth Circuit Court has consistently failed to follow Supreme Court precedent on the mitigation issue. (Friday’s Order List can be found here.)
A week ago, the Court agreed to hear for a second time one of the cases in which it had required Texas to do more to assure that mitigating factors are analyzed fully by juries — Smith v. Texas (05-11304). But that case involved the Texas state courts’ response on this question, while the newly granted cases involve the Fifth Circuit’s response. The Court did not set a date for oral argument on the consolidated case (an earlier post regarding the Court’s grant in the Smith case is here).
Smith v. Texas, the Court’s decision in 2004, was the fourth the Justices had issued on Texas’ capital procedures and the mitigation question. The first was Penry v. Lynaugh (Penry I) in 1989, then came Penry v. Johnson (Penry II) in 2001 and Tennard v. Dretke in 2004 prior to the ruling in Smith.
A group of death row inmates in Texas, supporting the new appeals, argued that “Contrary to the decisions of this Court, the Fifth Circuit has once again adopted a reading of Penry I that does violence to this Court’s rulings and has and will result in an unconstitutional resolution of Penry claims….The Fifth Circuit has continued to apply an unconstitutionally narrow reading of Penry I and its progeny.”
In another order Friday, the Court called for supplemental briefs in U.S. v. Resendiz-Ponce (05-998), a case that the Justices heard on Tuesday testing when an omission from an indictment may be treated as “harmless error.” The Court told counsel to address this added question” “Did the indictment omit an allegation that was required by the Fifth Amendment?”
The Abdul-Kabir and Brewer capital case petitions raise identical questions. (The two men are represented by the same counsel, Robert C. Owen of Austin.) The questions are listed below.
Here are the questions the Court will be reviewing:
“1. Do the former Texas ‘special issue’ capital sentencing jury instructions — which permit jurors to register only a ‘yes’ or ‘no’ answer to two questions, inquiring whether the defendant killed ‘deliberately’ and would probably constitute a ‘continuing threat to society’ — permit constitutionally adequate consideration of mitigating evidence about a defendant’s mental impairment and childhood mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v. Texas…, that those same two questions ‘had little, if anything, to do with’ Smith’s evidence of mental impairment and childhood treatment?
“2. Do this Court’s recent opinions in Penry v. Johnson…(2001)…and Smith, both of which require instructions that permit jurors to give ‘full consideration and full effect’ to a defendant’s mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions — antedating Penry II and Smith — that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant’s mitigating evidence?
“3. Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for ‘constitutional relevance’ that this Court emphatically rejected in Tennard v. Dretke…?
“4. Where the prosecution, as it did here, repeatedly implores jurors to ‘follow the law’ and ‘do their duty’ by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way the prevented them from fully considering and giving effect to the defendant’s mitigating evidence?”
Jalil Abdul-Kabir, formerly known as Ted Calvin Cole, was convicted of murder and sentenced to death for the strangling slaying of a 60-year-old man during a robbery — a crime that netted Cole and others only $20. Brent Ray Brewer was convicted of murder and sentenced to death for the stabbing slaying of a man who had given Brewer and a companion a ride in his truck; the crime produced $140, taken from the dead man’s wallet.
