In a trio of Texas cases today, the Supreme Court waded once again into a problem of its own making. In Jurek v. Texas, 428 U.S. 262 (1976), the high court approved the Texas "special issues" system for death penalty cases, in which the sentence depended on the jury's answer to two specific questions. Two years later, the same court issued its bolt-from-the-blue edict in Lockett v. Ohio, 438 U.S. 586 (1978) that the jury must consider whatever mitigation the defendant offers, without explaining the inconsistency between the decisions. Eleven years later, the court overturned a Texas judgment that complied with Jurek but violated Lockett in Penry v. Lynaugh, 492 U.S. 302 (1989). In the gap between the Penry decision and the Texas Legislature's amendment of the statute, Texas courts struggled to deal with the conflict between their previously approved statute and the new requirements.
Smith v. Texas, comes to the high court through the route of state habeas corpus. It addresses the question of when a state can subject a federal claim to its state procedural limitations on raising objections that were not raised at trial. This decision appears to be a narrow one, based on the unusual situation in this case. Justice Kennedy's opinion for the 5-member majority spends 14 pages on the procedural history.
In a post-Penry trial, Smith's lawyer objected that the Texas special issues were inadequate to address his mitigation evidence. The trial judge proposed an additional instruction telling the jury to answer one of the questions "no," despite the literal wording of the questions, if they believed from the mitigating evidence that Smith should not be sentenced to death. The trial judge asked defense counsel to suggest any improvements to the instruction, and he did not. There were multiple rounds of review in this case, including a Supreme Court decision that this instruction did not fix the problem. See Smith v. Texas, 543 U.S. 37 (2004) (per curiam). On remand from that decision, the Texas Court of Criminal Appeals held that Smith had failed to preserve his objection by not objecting to the inadequacy of the "nullification" instruction. Texas, like most jurisdictions, has a more stringent reversible-error test for unobjected-to errors, and the state court found that this test was not met.
Today's decision gets around that rule by splitting hairs between objection to the original special issues, which Smith did make, and objection to the inadequacy of the trial judge's proposed fix, which he did not. This is a quirky ruling. The trial judge accepted Smith's argument that the original issues were inadequate under Penry. He rejected, correctly, Smith's argument that the problem was unfixable as a matter of state law. The real dispute is whether the fix he proposed did the job, and Smith did default that objection. However, the damage from this dubious ruling appears to be limited to the unusual circumstances of this case. The court did not accept the broader argument that a state court loses the ability to declare an objection defaulted by ruling first that it is meritless. That argument is demolished in Justice Alito's dissent. The court also did not declare the Texas rule to be "inadequate" or not "independent." It passed up an opportunity to clarify that muddy area of the law, but it did not muddy it much further.
The two cases coming to the court from federal habeas will be discussed in a separate post.
Leave a comment