Analysis: Ninth review of Texas death issues?
on Jun 15, 2007 at 6:31 pm
In the meandering path that the Supreme Court has followed on death sentencing issues in modern times, one thing has been absolutely predictable: the Could would return, again and again, to a review of the fairness of capital punishment procedures in Texas — by far, the most active state in carrying out executions, and one of the top three in the number of Death Row inmates. The Court might be back at it again soon.
Remarkably, the Court has issued eight decisions since 1976 on the novel procedure that Texas used in selecting those convicted of murder who would be sentenced to death. An even more noteworthy fact is that five of those decisions have come in the years since 1991, when Texas abandoned the specific capital punishment process that has been at issue in each of those eight rulngs. The state has a large number of inmates still on its death row who were sentenced under the now-discarded system.
Another notable fact is that the Court issued three of those eight decisions just this past April, and the three divided the Court 5-4 — with the Justices exchanging some heated rhetoric. But the state of Texas is back with a new appeal, in a case involving Billy Ray Nelson, now 38 years old, who has been awaiting execution since he was 23 years old. He was convicted of the brutal stabbing murder of a woman who was his neighbor in Big Spring in February 1991. He was sentenced to die under the former Texas capital procedure. The state’s appeal is in Quarterman v. Nelson (docket 06-1254). The fililngs in the case are linked in this post.
The Court, according to its docket, considered the case at its Conference on Thursday, and thus could issue an order on it as soon as Monday.
It would seem likely — given the content of the Court’s three decisions on April 25 — that the Court would deny review of the Fifth Circuit Court’s massive ruling (166 pages of opinions by the judges sitting en banc) issued last Dec. 11. In a significant way, the Circuit Court majority appeared to have anticipated the Supreme Court’s April 25 decisions. The Circuit Court put aside much of its own, oft-challenged death penalty jurisprudence of recent years. The Justices, though, could also send the case back to the Fifth Circuit to take account of the new rulings.
But there are factors that might give the case a reasonable chance for review by the Supreme Court. For one, the Circuit Court was divided 9-7. For another, there is the depth and seriousness of the reasoning in the majority and dissenting opinions. But the most compelling facet of the ruling is that the Circuit Court did decide one issue that the Justices have not decided, and some Justices may well be interested.
In its decision, the Circuit Court ruled that, if a Texas capital jury was not given a clearcut chance to fully weigh evidence that might lead the jury not to impose a death sentence, that is not the kind of trial defect that can be excused as “harmless error.” A failure of that kind, the majority found, is “structural” in nature, because it has the real potential for skewing the sentencing decision, and thus cannot be found harmless. (In one of the April 25 decisions by the Supreme Court, Smith v. Texas, Justice David H. Souter, who was in the majority, wrote: “In some later case, we may be required to consider whether harmless error review is ever appropriate in a case” with that kind of a defect.)
If the four Justices who dissented in the April rulings want to hear the Nelson case, they have the votes needed to grant review. But if, as seems likely, they would be inclined to rule for the state on the merits, they would need to pick up a fifth vote — and the only candidate to supply such a vote would appear to be Justice Anthony M. Kennedy. However, he voted with the majority in all three rulings in April, and wrote one of those majority opinions. (The four dissenters in April were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. In the majority along with Kennedy and Souter were Justice John Paul Stevens, who wrote for the majority in two of the cases, and Justices Stephen G. Breyer and Ruth Bader Gisnburg.)
The Nelson case turns on the state of death penalty law as of early 1994, because that is when Billy Ray Nelson’s death sentence became final after the Supreme Court had refused to hear his first appeal. He had been sentenced in 1991, under a procedure that provided a potential death sentence for an individual if the jury answered yes to questions of whether the murder was deliberate, and whether the individual would be dangerous in the future. The Supreme Court has found several times that this “special issues” procedure by itself did not give the jurors enough opportunity to weigh the “mitigating” evidence about the individual’s personal character and past hsitory.
Since 2002, Nelson’s lawyers have been pursuing a federal habeas challenge, with emphasis on his claim that the jury in his case did not have a chance to fully weigh defense evidence of a mental disorder, abusive childhood and substance abuse history. The claim relies primarily upon an intepretation of the Supreme Court’s 1989 ruling in Penry v. Lynaugh, and the Court’s later discussions of the scope of the Penry ruling. The Fifth Circuit, in its en banc ruling in December, read those precedents in Nelson’s favor, nullifying his death sentence.
The Circuit Court majority concluded: “At the time that Nelson’s conviction became final, the Supreme Court had clearly established that the relevant inquiry is whether there was a reasonable likelihood that the jury would interpret the Texas special issues in a manner that precluded it from fully considering and giving full effect to all of the defendant’s mitigating evidence.”
In reaction to that part of the appeals court ruling, the state is raising an issue that Nelson’s lawyers argue was already answered by the Court in the April decisions. This is the way the state poses the question: “Did the lower court [the Fifth Circuit] err when it held that, by failing to divine a full-effect rule from the majority holdings of this Court as of 1994, the state court unreasonably applied clearly established federal law in adjudicating Respondent Nelson’s Penry claim?” The Supreme Court in April found the full-effect mandate in rulings that pre-dated the 1991 decision in Penry . The state contends that the Fifth Circuit ruling contradicts, rather than echoes, the April decisions.
The harmless error question that the state raises in its new appeal is stated this way: “Did the court of appeals erroneously decide this issue of first impression when it invented a new exception to harmless-error review…?”
The Fifth Circuit majority found that the Supreme Court had never mentioned the possibility of harmless-error analysis where a jury has been denied the opportunity to give full effect in a capital case to mitigating evidence.
Nelson’s lawyers contend that the state raised that issue only belatedly, but the state counters that, in any event, the Circuit Court clearly decided it, so it is open for Supreme Court review.
