The controversy in the Charles Hood case about the judge who years earlier had an affair with the prosecutor is now moot, at least as to the death sentence. The Texas Court of Criminal Appeals today ordered resentencing on other grounds. The problem (as in so many Texas capital cases, and, to a lesser degree, those of other states) is the U.S. Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

We wade once more into the murky waters of Penry law and the Texas death-penalty sentencing scheme. The ebb and flow of constitutional jurisprudence concerning when and what special instructions are necessary for the jury to give meaningful consideration to relevant mitigating evidence has sharply divided the United States Supreme Court, the Fifth Circuit, and this Court for some twenty years. The Chief Justice of the Supreme Court has noted that the jurisprudence surrounding the intersection of mitigation evidence and the Texas "nullification instruction" in pre-1991 death-penalty cases is "a dog's breakfast of divided, conflicting, and ever-changing analyses." Reasonable jurists differ on these matters.

Update: John Schwartz has this story in the NYT.