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Penry, Again

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Over two decades after it was rendered, the Supreme Court's ill-advised decision in Penry v. Lynaugh, 492 U.S. 302 (1989) continues to plague Texas. In the Rivers case noted in today's News Scan, the "inadequate" jury instructions in a 1988 trial tracked the statute that the Supreme Court had reviewed and upheld 12 years earlier in Jurek v. Texas.  The problem here is not trial court error, but the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

The Fifth Circuit also maintains that Penry error is not subject to harmless error analysis. I will have to look at that issue more closely.

1 Comment

The TCCA is wussing out on this issue. It's allowing defendants who have had habeas denials on this issue get relief. Sickening. And it's the fault of SCOTUS. And there wasn't even a "sorry about that".

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