Texas Side-StepHave the Supreme Court's opinions become suggestions in Texas?

(Continued from page 1)

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Justice Antonin Scalia, who, along with Justice Clarence Thomas, dissented from Smith I, promptly disputes Steiker's use of the word "contradict," even though I don't believe that was Steiker's word in the first place. "They are saying the jury did take it into account, but the error was harmless." Scalia keeps using the word "fuzzy" to describe the nullification instruction, perhaps because "illogical" or "untruthful" are too loaded.

Justice Anthony Kennedy, who always worries about social niceties of this sort, inquires whether the court must defer to the state court's harmless-error analysis.

Then Steiker and Scalia begin to tussle over whether Smith properly raised his objections to the jury instruction back in the trial court, with Steiker insisting he did and Scalia dismissing the objection as too generalized. Steiker responds that trial counsel's hands were tied: "Everyone at trial understood that the special issues on the verdict form were unalterable."

Then Steiker is whisked by Roberts, Scalia, and Alito into upside-down world, wherein they insist that the defendant should have specifically objected to a sentencing system that even the judge deemed immutable unless changed by the legislature. Chief Justice John Roberts goes so far as to urge that just because an objection to the scheme at the time would have been "futile," it would not necessarily have been "burdensome." Smith's error was in picking the wrong as-yet-undetermined constitutional long shot. Thus shoring up the cardinal rule of American capital jurisprudence: Only the unlucky shall die.

Roberts defends the CCA's decision to pull out its new "egregious error" analysis only after the high court slapped it down in Smith I with a hat-tip to his old buddy minimalism: The Texas court didn't get to the harmless-error question the first time because it was practicing laudable "judicial restraint."

Texas Solicitor Ted Cruz goes even further than the chief justice in his presentation, characterizing the CCA as not only restrained but also breathtakingly generous toward Smith. He contends that even though the defendant should have been procedurally barred from raising his objection, the Texas court generously agreed to hear it anyhow, only to reject it. Or, as Justice John Paul Stevens puts it, "The failure to object does not constitute a procedural bar, but we're going to rely on the failure to object to justify a higher standard of review?" Cute.

Cruz goes one better. Smith's trial attorney didn't raise the futile argument a second time at trial because he was being "strategic."

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