As noted in the post on Smith earlier today, the Supreme Court case law on the pre-1991 Texas system has been self-contradictory. In this pair of AEDPA cases, the critical question is whether the Texas Court of Criminal Appeals' decisions were contrary to or unreasonable applications of Supreme Court case law at the time. That time was after Graham v. Collins, 506 U.S. 461 (1993) and Johnson v. Texas, 509 U.S. 350 (1993) and before the recent spate of Texas cases including Tennard v. Dretke, 542 U.S. 274 (2004).

Graham and Johnson had given a limited reading to Penry v. Lynaugh, 492 U.S. 302 (1989). Penry held that the (1) Texas system of deciding on the sentence by the jury's answers to specific questions failed to give mitigating weight to Penry's alleged retardation*, (2) that this was contrary to Supreme Court caselaw despite the Court's approval of the system in Jurek v. Texas, 428 U.S. 262 (1976), and (3) that this was not a new rule within the meaning of Teague v. Lane, 489 U.S. 288 (1989). Justice Scalia's dissent in Penry, joined by Justice Kennedy along with Chief Justice Rehnquist and Justice White, said in essence that the second holding was wrong and the third bordered on preposterous.

Graham and Johnson were decided after Justice Thomas had succeeded Justice Marshall. In her Johnson dissent, Justice O'Connor, the author of Penry, argued that "the sentencer must be able to give full effect to all mitigating evidence concerning a defendant's character and record and the circumstances of the crime." Justice Kennedy's majority opinion rejected this reading of the precedents. "Instead of requiring that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence, the [petitioner's proposed] rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant."

The mitigating evidence of Ted Cole, now known as Jalil Abdul-Kabir, was somewhere in between Penry's on one hand and Graham's and Johnson's on the other. He had a bad but not horrific childhood and some not particularly compelling psychologist testimony. It might have been possible to shoehorn this into the Texas special issues, but the prosecutor didn't help by hammering during voir dire that it was completely irrelevant.

A narrow opinion could have granted relief by holding that it was required by Penry, that the case was distinguishable from Graham and Johnson, and that it was on the far side of the line drawn by AEDPA, albeit just barely. Instead, the opinion is anything but narrow. Justice Stevens goes on for seven pages to establish that the law was clearly established before Penry, so as to vindicate Penry's misguided holding that it did not announce a new rule. This is completely unnecessary, as Cole's sentence was not affirmed on direct appeal until after Penry, so it does not matter to this case whether Penry's rule was established before then. He then goes on to minimize Graham and Johnson, saying they did not narrow the rule of Penry. As the Chief Justice aptly points out in the dissent, this is a direct contradiction of dissents in those cases that Justice Stevens joined. On page 25, Justice Stevens maintains that the caselaw requires that the jury "consider fully" the mitigating evidence, the very proposition asserted by Justice O'Connor's dissent in Johnson and rejected by the majority. He notes on page 28 that three later cases returned to the expansive reading of Penry, but these cases were all decided after the state court opinion in the present case and are irrelevant to the AEDPA question.

There are a couple of bright spots in the gloom. In footnote 12, Justice Stevens writes, "To the extent that Jurek implied at the time it was decided that all that was required by the Constitution was that the defense be authorized to introduce all relevant mitigating circumstances...." Jurek didn't imply that, it held that. Even so, this is as close as the Court has come to admitting that its later cases are indeed inconsistent with Jurek, and that those who relied on Jurek for what it says were reasonable in doing so.

Also encouraging is that the two newest members of the Court are fully cognizant of what a mess the Court has made with the Lockett v. Ohio, 438 U.S. 586 (1978) line of cases. They aren't ready to join Justices Scalia and Thomas in overruling it, but they are unlikely to spread the damage any further. If Justice Kennedy's wandering is limited to the pre-1991 Texas problem, some damage control may be possible in the near future.


* On his third penalty trial, the jury determined explicitly that Penry is not retarded.