Analysis: Major precedent in Smith case?
on Jan 17, 2007 at 12:24 pm
The Supreme Court appeared torn Wednesday between insisting that state courts not evade the Justices’ constitutional rulings on the death penalty, on the one hand, or, on the other, allowing states some leeway to escape some of the impact of those rulings. It appeared that the Court may turn out to be closely divided and, if so, Justice Anthony M. Kennedy may provide a margin to reinforce the Court’s constitutional mandates. Those were the most apparent indications emerging from a complex hour of argument in Smith v. Texas (05-11304).
But, at a minimum, the Smith case seemed more likely to produce a significant new precedent than the other Texas capital cases heard during a second hour — Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287). Those consolidated cases seemed likely to go off on a simple determination of which of the Court’s past precedents should govern the outcome, without saying anything specifically new. (Incidentally, the Court showed no interest in those cases in the inmates’ suggestion that their cases be sent back to the Fifth Circuit to see if that Court has changed its approach in Texas death penalty cases. The inmates’ attorney started his argument with that plea, but was quickly steered away from it.)
A highlight of those other cases, though, was the rhetorical assaults by Chief Justice John G. Roberts, Jr., on the well-established notion that jurors in capital cases need special guidance to be sure that they fully consider evidence that would lead them away from imposing death sentences — such as evidence of violent family backgrounds, including child abuse. For years, the Court has been steadily demanding more explicit instructions to jurors (especially in Texas, which has had a prosecution-favoring death penalty system) to take full account of “mitigating factors” that would tend to reduce moral blame and suggest mercy. All of those rulings have tended to assume that, without that guidance, jurors weighing the fate of an individual who committed a violent crime will be too easily led by prosecutors into seeing only a dangerous person, deserving death.
The Chief Justice, however, repeatedly suggested that jurors may not be so inclined at all. Hearing of a murderer’s violent upbringing, Roberts opined, jurors may be just as likely to read it sympathetically, or at least to interpret the violence as something that the individual could outgrow with time. At least, Roberts indicated, there should not be an “absolute rule” about how to treat such evidence. The clear implication of this refrain was that it may well be enough, constitutionally, simply to let the evidence in, and leave it to the jurors to decide how to deal with it.
In the Smith case, the Chief Justice was not as active a partcipant in the argument, but he left the distinct impression that he would be inclined to leave Texas courts with more discretion on how to react to Supreme Court constitutional decisions bearing on that state’s capital punishment regime. The Smith case had been to the Court once before, with the Court by a 7-2 vote finding the Texas Court of Criminal Appeals’ decision on jury instructions in capital cases to be unconstitutional. But that was before Chief Justice Roberts and Justice Samuel A. Alito, Jr., had joined the Court. The issue now is whether that state court failed to adhere to the Court’s decision by finding a state law-based way around it. Alito said only a little during the Smith argument, but seemed unmoved by the challenge to the state court’s action on remand.
As the Smith case unfolded during Wednesday’s argument, it appeared to be centered primarily on the question on the use of harmless error doctrine to excuse a federal constitutional violation on jury instructions in capital cases. After the Court had ruled in 2004 that the instructions in the case were invalid, the Texas Court of Criminal Appeals — applying a state harmless-error standard — found that Smith’s defense lawyer had not objected to the flawed instruction, and so could win now only by showing that “egregious harm” had resulted; that standard, it concluded, had not been met.
Justice Stephen G. Breyer, Jr., suggested at a number of points throughout the argument that, once a federal constitutional error has been found in a case, it is not open to a state court to find a state procedural flaw that it had not pointed out earlier to overcome the error. No case has ever allowed that, Breyer suggested. With varying degrees, Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens displayed skepticism about the state court’s response in Smith’s case.
Texas’ most sympathetic ally was Justice Antonin Scalia, who vigorously defended the state court’s authority to make its own procedural rules to deal with cases arising under state habeas procedures after a conviction has become final. With notable support from the Chief Justice, Scalia found no fault in the state court’s having failed to find a basis in state law for upholding the death sentence for Smith instead of its initial ruling — later overturned by the Supreme Court — upholding the jury instruction against a federal constitutional challenge. That line of reasoning provided a strong hint that several members of the Court are attracted to the idea that, since it is a state post-conviction procedure, states should be free to apply it even if that tends to avoid the consequences of a Supreme Court constitutional decision.
Justice Clarence Thomas said nothing during the argument, but he had dissented, along with Scalia, when the Court overturned the state court’s initial decision in 2004.
The indications thus were that the Court might well wind up deeply divided on how to decide the Smith case this time, thus once more pointing to the prospect that Justice Kennedy might well be holding the decisive fifth vote. Although he was not particularly active in the argument, he did indicate a few times that he was concerned about protecting what he referred to as a “federal interest in ensuring a full and fair implementation of a federal right” — a comment suggesting that he was troubled about state courts finding ways around the Court’s rulings on such rights.
Both cases were argued competently and confidently by counsel — Jordan Steiker and Robert C. Owen of the University of Texas Law School for the inmates in the cases, Texas Solicitor General R. Ted Cruz and Texas Assistant Attorney General Edward L. Marshall for the state, and Gene C. Schaerr of Washington for 21 states supporting Texas in the Smith case.
