Publications
Order list
Greetings, Court Fans!
Things are still fairly quiet at the Court – it will be a while before we get the first decision of the Term – but the Court continues to try to fill up its docket. On Friday, the Court granted cert in two more Texas death penalty cases (on top of the cert grant in Smith v. Texas that we reported in the last Update). The new cases, Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), will be argued together, as they raise identical questions regarding capital sentencing instructions for juries:
(1) Do the former Texas “special issue” capital sentencing jury instructions – which permit jurors to register only a “yes” or “no” answer to two questions, inquiring whether the defendant killed “deliberately” and would probably constitute a “continuing threat to society” – permit constitutionally adequate consideration of mitigating evidence about a defendant’s mental impairment and childhood mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v. Texas that those same two questions “had little, if anything, to do with” Smith’s evidence of mental impairment and childhood treatment?
(2) Do this Court’s recent opinions in Penry v. Johnson and Smith, both of which require instructions that permit jurors to give “full consideration and full effect” to a defendant’s mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions – antedating Penry II and Smith – that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant’s mitigating evidence?
(3) Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for “constitutional relevance” that this Court emphatically rejected in Tennard v. Dretke?
(4) Where the prosecution, as it did here, repeatedly implores jurors to “follow the law” and “do their duty” by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way the prevented them from fully considering and giving effect to the defendant’s mitigating evidence?
In other news, on Friday the Court took the rare step of asking counsel in one of the cases agued last week to brief a new issue that arose at or after argument. In United States v. Resendiz-Ponce (05-998), the parties argued the question of whether omitting an element of a criminal offense from a federal indictment could be considered harmless error. Resendiz-Ponce had been convicted for illegally attempting to reenter the United States after having once been deported, but his indictment left out an allegation that he had committed an “overt act” towards reentering (which he clearly had done – he had tried to pass himself off as his cousin to border guards). The government offered evidence on this element, and the jury was instructed that the government had the burden of proof on the element, but the Ninth Circuit overturned Resendiz-Ponce’s conviction on the ground that the omission from the indictment was structural error. The case has all the makings of a typical Ninth Circuit reversal, but now the Court has asked the parties to file simultaneous briefs on October 27 on a curious new question: whether Resendiz-Ponce’s indictment omitted an allegation required by the Fifth Amendment. So we’ll see what happens.
That’s it for Court-related items. There is, however, some really big news to report, which is that the population of Court-watchers has grown by one: Kellen John Rinehart was born on October 14, 2006. Kim and Kellen are doing well.
Until next time, thanks for reading!
Ken & Kim
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
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
