Publications
Smith v. Texas (04-5323), Abdul-Kabir v. Dretke (04-5876) and Green Fire Insurance Co. v. M/V Hyundai Liberty (02-813)
Greetings, Court fans!
The Court issued one per curiam opinion this week in Smith v. Texas, No. 04-5323, 543 U.S. __ (2004), a capital murder case in which petitioner challenged the validity of the instructions provided to the jury during the death penalty phase of his case. The Texas trial court instructed the jury to consider all mitigating evidence in determining the appropriate sentence. The verdict form, however, contained only two special interrogatories relating to the deliberateness of defendant’s conduct and his future dangerous. The trial court instructed the jury that if the defendant’s mitigation evidence convinced the jury that the appropriate penalty was one other than death, the jury would have to answer one of those two interrogatories in the negative. Because the defendant’s mitigation evidence had little to do with deliberateness of future dangerousness, the jury essentially would have had to answer one of the special interrogatories falsely in order to avoid a death sentence. The Court had already found this type of sentencing instruction improper in another Texas case, Penry v. Johnson, 532 U.S. 782 (2001). Despite this, the Texas Court of Criminal Appeals found the instruction was sufficiently distinguishable from Penry to survive scrutiny or was irrelevant because petitioner did not proffer “constitutionally significant” mitigation evidence, which it defined as evidence of a “uniquely severe permanent handicap with which the defendant was burdened through no fault of his own.”
The Court reversed, finding the case indistinguishable from Penry and rejecting Texas’ claim that the mitigation evidence had to be “constitutionally significant” in light of its prior rejection of a screening mechanism for mitigation evidence in Tennard v. Dretke, 542 U.S. __ (2004) (yet another Texas case). Justice Scalia, joined by Justice Thomas, filed a one-sentence dissent.
Because this case is governed entirely by Penry and Tennard, it does not alter the current state of criminal law. It only supports the conclusion that the Texas courts have difficulty following the Supreme Court’s rulings!
The Court also summarily disposed of two cases, Abdul-Kabir v. Dretke, No. 04-5876 (vacating and remanding for consideration in light of Tennard), and Green Fire Insurance Co. v. M/V Hyundai Liberty, No. 02-813 (vacating and remanding for further consideration in light of the Court’s recent decision in Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. __ (2004)).
That’s all until after Thanksgiving. The Court is now in recess until November 29th.
Happy Holidays!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
