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

By Dahlia LithwickPosted Wednesday, Jan. 17, 2007, at 6:58 PM ET

Chief Justice John RobertsRemember Tom Parker? He's the Alabama Supreme Court justice who last year urged his brethren—in an op-ed, no less—to ignore Supreme Court death-penalty precedent (with "precedents" spit out between ironic quotation marks) on the theory that "state supreme court judges should not follow obviously wrong decisions simply because they are 'precedents.' " He urged his colleagues to disregard the Supreme Court's ruling in Roper v. Simmons because it was, in his opinion, "the unconstitutional opinion of five liberal justices on the U.S. Supreme Court."

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Well, the Texas Court of Criminal Appeals—that state's highest court—has figured out a better way to thwart a clear directive from the U.S. Supreme Court. When the Texas court was instructed, in a 2004 decision about the constitutionality of its jury instructions, to reconsider its approach to its death-penalty cases, the Texas court didn't go the Parker route of name-calling and fomenting revolution. Instead, it just politely thanked the Supremes for their interesting insights, then effectively switched the standard of review and ignored them. You might think the current justices would be hopping mad about that. But the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel.

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LaRoyce Smith is not a nice guy, and his guilt is not disputed. In 1991, a jury convicted him of brutally murdering a woman with whom he once worked at a Dallas Taco Bell in the course of an attempted robbery. At his trial, Smith's lawyer introduced mitigating evidence that might have dissuaded the jury from imposing the death penalty. That mitigating evidence included the defendant's age (19), his IQ score of 78, a learning disability, and a family background of violence and drug addiction. But the Texas capital sentencing statute in place at the time made it all but impossible for the jurors to fully consider this mitigating evidence, because jurors were told to respond to two "special issues"—whether the killing was deliberate and whether the killer would be dangerous in the future. If the jurors answered those questions with a "yes," Smith was to die.

So, what were the jurors to do with all that mitigating evidence? They were given a so-called nullification instruction providing that if they found the mitigating evidence outweighed these other issues, they should, in effect, lie and answer one of the special issues with a "no," even if the special issues had been proved. In 2001 in Penry v. Johnson, the Supreme Court (or Penry II) would find that practice unconstitutional. Smith was sentenced to death.

Smith's first appeal was denied by the Texas Court of Criminal Appeals in 2004, but the U.S. Supreme Court, in an unsigned per curiam opinion, gave them a good spanking: "[T]he state court ... erroneously relied on a test we never countenanced and now have unequivocally rejected," they wrote, adding that, as in Penry II, "the jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence." Have another look, said the high court, and the Texas court, upon having another look, said, "No thanks." Or, as Justice Ruth Bader Ginsburg puts it this morning, the Texas court told the Supremes, "Thanks, that was very interesting advice but ..."

At this point, a better journalist than I would be able to walk you through the swamp of federal post-conviction habeas-corpus review in a hundred words: leading you around the swamp of "direct" versus "collateral" review; ducking under the vines of "procedural" and "structural" error; all while shielding you from the relentless "caw, caw" of the vicious, swooping "standards of review." But I cannot. Suffice it to say that Texas' CCA found a procedural way around the Supreme Court command in Smith I, its 2004 ruling, and that only one judge on that court dissented, writing, "Our judicial power does not include the power to ... ignore orders from the Supreme Court. ... Reversed means reversed."

Two professors from the University of Texas' Capital Punishment Clinic are representing Smith at oral argument today, and one—Jordan Steiker—rises to defend Smith's honor by defending that of the court: "In your summary reversal, this court held petitioner's mitigating evidence could not be given adequate consideration under the Texas special issues or nullification instructions. On remand, the CCA found the error harmless by concluding the opposite."

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."

Kennedy says the judge properly refused to give the nullification instruction because it wouldn't work. Cruz disagrees. The judge wasn't asked to give the nullification instruction because Smith's lawyer knew the mitigating evidence was insufficient. Ginsburg can't quite believe this. "We are dealing in this case with someone who has been abused as a child and has a mental disorder!" Cruz disagrees, stating that "over 90 percent" of the mitigating evidence was that Smith was "a big lovable teddy bear and went to church and was sweet and kind."

Justice David Souter, in turn, is affronted by Cruz's 90 percent characterization. "There were hundreds of pages of records from school that indicated there was something seriously wrong with this guy." But Cruz disagrees and then goes on to take issue with Ginsburg's claim that Smith was abused. "There is no abuse in this case … no allegation of abuse whatsoever."

Gene Schaerr represents California and a raft of other states that want to be free to invent their own procedural rules without the court big-footing around. But Stephen Breyer goes after him, as he did Cruz, on the proposition that states can lose on a federal constitutional error, then turn around and discover some kooky state procedural hat trick to defeat the federal claim. Breyer pokes fun at the new Texas standard of "absolutely egregious harm," redubbing it "not totally wonderful harm."

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And with Roberts and Justice Samuel Alito making it plain where they stand on this issue (see Lyle Denniston's report on today's second argument in a similar case from the 5^th Circuit for John Roberts' opinion of mitigating evidence), the case may come down—yet again—to Kennedy. Kennedy voted with the majority in Smith I, and he worries aloud at the close of the case whether there is "no federal interest in ensuring that there is a full and fair implementation of a federal right."

In its opinion in Smith I, the Supreme Court wrote, quite unequivocally, that a jury "might well have considered petitioner's IQ scores and history of participation in special education classes as a reason to impose a sentence more lenient than death." Texas' highest court invented a way to find that it would have made no difference and claims to have been both restrained and generous in doing so. The Supreme Court now stands poised to allow any similarly restrained and generous court to similarly ignore the supreme law of the land, by retreating to state-law smoke and mirrors.

It turns out the only thing better than the steady creep of the new Supreme Court minimalism is the sweeping promise of Supreme Court obsolescence.

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Dahlia Lithwick is a Slate senior editor.

Photograph of John Roberts by Roger L. Wollenberg-Pool/Getty Images.

COMMENTS

Remarks from the Fray:

The Texas CCA is such a joke that it has long lost any humor it may have had. It is generally regarded as the "worst" court in Texas and its judges are regarded as a mix of political hacks and just plain dingbats. This is what I hear from *conservative* Texas legal folks, I couldn't even begin to describe how the more liberal Texas practitioneers describe them.

The court is not "conservative", quite on the contrary it often seems to have no jurisprudential standards at all. It seems committed to deciding cases "the wrong way" -- by first determining what outcome it would like, and only then reaching about for any fig leaf of reasoning. Precedent, even from itself, is almost useless. To quote a law prof (staunch Federalist Society member) "Nobody can over rule them faster than they over rule themselves." Or, as another wag put it " 'stare decisis' has been banished from the courtroom since they all believe that the U.S. should be an English only nation."

They have a long history of simply ignoring law they don't like. The Bush administration is quietly fuming because the CCA not only refuses to acknowledge treaties as law, but it rejected all attempts "quietly settle" that matter without having to run it back up the Supreme Court flagpole. The courts entrenched resistance to setting any kind of minimal standard on "right to counsel" has long made it a pariah of not only libs but also higher courts (i.e. the US Supreme Court). The list goes on and on and on.....

So why is this court (not to mention the entire Texas criminal court system) so fouled up? Well, one reason is that these judges are *elected*. Nothing wrong with Democracy perhaps, but the 'political reality' keeps most of them from having to face any significant opposition. The court is entirely Republican, and has been accepted by the Republican party as a 'de facto' loony bin for politically connected legal folks who are too unsound for other 'leadership' positions. (i.e. "My God she'd be a terrible party leader. Better get her a judgeship and get her out of the way.") For a number of reasons the Democratic Party doesn't usually even try to contest the seats [ straight-line voting on judges makes it almost futile anyway ]. So what you usually get is the incumbent and some Libertarian/part-time used car salesman running for the office.

I don't have an easy answer, but I think the situation is sad indeed. The Texas CCA is just a great big billboard sitting atop a very broken system. A lot of people in Texas (once again, including many rock-ribbed conservatives) just wish it wouldn't attract so much attention.

--fozzy

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