Appealed from: Court of Criminal Appeals of Texas
Oral argument: January 17, 2007
Death Penalty, Eighth Amendment, Juries, Mitigating Evidence, Harmless Error
LaRoyce Lathair Smith, who was sentenced to death in 1991, appears before the Supreme Court for the second time. Smith argues that the Texas Criminal Court of Appeals denied his petition for state habeas corpus relief in contravention of the analysis standards handed down in the Supreme Court’s first opinion. In addition, Smith argues that the Criminal Court of Appeals applied a heightened egregious harm standard to a procedural issue that it failed to consider on direct appeal. Texas, on the other hand, contends that the Criminal Court of Appeals was justified in reconsidering issues not addressed by the Supreme Court and asserts that the standards applied were the prevailing state standards for evaluating Smith’s claim. The Supreme Court’s decision in this case should clarify the proper way for state courts to evaluate defendants’ claims attacking the constitutionality of jury instructions regarding mitigating evidence during the sentencing phase of capital cases.
In Smith v. Texas, 543 U.S. 37 (2004), this Court summarily reversed the Texas Court of Criminal Appeals and found constitutional error under Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). Is it consistent with this Court’s remand in this case for the Texas Court of Criminal Appeals to deem the error in petitioner’s case harmless based on its view that jurors were in fact able to give adequate consideration and effect to petitioner’s mitigating evidence notwithstanding this Court’s conclusion to the contrary?
Can the Texas Court of Criminal Appeals, based on a procedural determination that it declined to adopt in its original decision that this Court then summarily reversed, impose on remand a daunting standard of harm (“egregious harm”) to the constitutional violation found by this Court?
If the Supreme Court reversed and remanded Smith’s case to the Texas Court of Criminal Appeals after finding that the jury had not been able to adequately consider the mitigating evidence, was the Court of Criminal Appeals’ finding that the violation was a harmless error consistent with the Supreme Court’s decision?
Must a defendant prove that a jury instruction that violated his constitutional rights caused him egregious harm?
In 1991, 19 year old LaRoyce Lathair Smith was convicted of the capital murder of his coworker, who Smith had pistol whipped and shot. Smith v. Texas, 543 U.S. 37, 38 (2004) (“Smith I”). After Smith was convicted, the jury was tasked with deciding Smith’s sentence. Id. at 39. During the penalty phase, the judge instructed the jury to consider whether the killing was deliberate and whether Smith posed a continuing danger to others. Id. The jury was also instructed to consider mitigating evidence, such as Smith’s low IQ, youth, and family difficulties. Id. at 41. When it retired to deliberate, the jury was given a form with the two questions of deliberateness and continuing danger and asked to answer each with a simple “yes” or “no.” Id. at 42. The judge issued a supplemental instruction to the jurors that they could give effect to the mitigating evidence by answering “no” to one of the questions to which they otherwise would have answered “yes.” Id. at 40–41. The jury answered “yes” to both questions, and the judge issued a sentence of death. Id. at 42. Smith’s first appeal, which was denied by the Texas Court of Criminal Appeals (“CCA”), challenged the judge’s instructions on the basis of the Supreme Court’s ruling in Penry v. Lynaugh (“Penry I”). Id. The Supreme Court denied certiorari on this appeal. Id.
In 1998, Smith petitioned for state habeas corpus relief on the basis that the jury instructions had violated his Eight Amendment rights. Id. This petition was dismissed as untimely, but the legislature amended the statute in order to allow Smith to file his petition. Id. at 42-43. Smith then re-petitioned, and the CCA heard his claims on the merits. Id. at 43.
Smith’s appeal was based on Penry v. Johnson (“Penry II”), in which the Court determined this type of jury instruction, known as a “nullification instruction,” was unconstitutional, because it did not allow the jury to give full consideration and effect to mitigating evidence when deciding on a sentence. Id. Despite this, the CCA rejected Smith’s appeal on the basis that he had not presented “constitutionally significant” mitigating evidence and that, under the supplemental instruction, the jury was able to give full effect to the mitigating evidence presented. Ex Parte Smith, 132 S.W.3d 407 (Tex.Crim.App., 2004).
Smith appealed a second time to the Supreme Court, which granted certiorari and held that the CCA was incorrect in applying a significance test and that the supplemental instruction was unconstitutional under Penry II. Smith I, 543 U.S. at 45, 48. The Supreme Court remanded the case to the CCA for reconsideration consistent with the Supreme Court’s opinion. Id. at 48.
On remand the CCA held that, while the jury instruction may have been a violation of Smith’s Eighth Amendment rights, that violation did not cause “egregious harm” and therefore denied state habeas corpus relief. Ex Parte Smith, 185 S.W.3d 455, 472 (Tex.Crim.App., 2006). Smith then again appealed to the Supreme Court, which granted certiorari.
Any death penalty decision made by the Supreme Court is significant, particularly to the over 3,000 individuals currently on death row. NAACP Legal Defense Fund, Death Row USA, Summer 2006. The Court’s decision in this case could, if in favor of Texas, significantly increase the difficulty of defendants’ obtaining relief on state habeas corpus claims by allowing states to force them to prove that constitutional violations in jury instructions actually caused “egregious harm.” See Smith I, 185 S.W.3d at 472. Conversely, a decision for Smith would ease the acquisition of habeas relief by forcing states to utilize a lower standard of harm.
In addition to the specific procedural defect at issue, the case implicates concerns about the effective supremacy of the Supreme Court. Petition for Certiorari at 15–16. The Court has had several public confrontations with the CCA in recent years, and this case seems to be yet another such confrontation. Smith v. Texas, StandDown Texas Project Blog, October 6, 2006. Several of these confrontations have concerned applications of the Texas “special issue” scheme. Petition for Certiorari at 15. Smith and the two amici all argue that the CCA’s decision under the “egregious harm” standard on remand was simply a transparent attempt to evade the Supreme Court’s decision. See Petition for Certiorari at 16–17; Brief for the Constitution Project as Amicus Curiae in Support of Petitioner at 5–6; Brief for Former Judges of the United States of Appeals as Amicus Curiae in Support of Petitioner at 6.
In fact, this supremacy issue forms the core of Smith’s argument. Petition for Certiorari at 15–16. Smith argues that the Supreme Court made clear in Penry II that merely instructing the jurors to provide negative answers to the special issue questions was a constitutionally insufficient method of accounting for mitigating factors. Id. at 16. This nullification instruction intrinsically prevents full consideration of the mitigating evidence by the jury. Id. Furthermore, the nullification procedure creates a dilemma for ethical jurors by requiring them to answer the special issue questions untruthfully in order to give effect to the mitigating evidence. Id. at 18. Therefore, the CCA’s denial of relief to Smith based on a lack of harm is nothing less than a direct contravention of the Court’s decision. Id. at 16; Brief for the Constitution Project at 7–8.
The CCA’s denial of relief based on the harm standard is clearly revealed as simple disobedience of the Supreme Court by the fact that no harm analysis was even entered into prior to the Court’s remand. Petition for Certiorari at 17. By raising this issue only post-remand, it is apparent that the CCA is attempting to remove the appellate jurisdiction of the Supreme Court by deciding the case on an un-reviewable independent state ground. Id. at 17–18. The Court has frequently overcome such manipulative evasion of its mandates in the past, in order to protect its position as the final arbiter of the law. Brief for the Constitution Project at 12–13. If the Court does not do so, according to Smith, it will be forced into issuing opinions that reject state procedural claims in advance of those claims being made. Petition for Certiorari at 25. This would be a clearly undesirable, and possibly even unconstitutional, state of affairs. Id.
Texas rejects Smith’s argument (and the argument of the amici) that the Court’s decision in Smith v. Texas concluded that the jurors would have been unable to give adequate effect to the mitigating evidence. Brief in Opposition at 10–11. The Court, according to the state, only directly analyzed the questions of whether the CCA’s use of the “screening test” was appropriate and whether the nullification instruction was unconstitutional under Penry II. Id. The question of whether the jury was able to consider and give effect to the mitigating evidence is still open. Id.
Therefore, on remand, the CCA was not only able, but was essentially required to address this issue. Id. at 14. Even though the CCA would have been free to decide, and tentatively did decide, that the jury could give effect to the mitigating evidence, it went on to assume, for Smith’s benefit, that there was an error. Id. at 16. Having discovered a “new” error, the CCA then went on to apply the standard state error analysis, which requires a finding of “egregious error.” Id. at 16–17. Thus, the CCA’s opinion did not contravene the Supreme Court, and the state error analysis is an independent state ground that cannot be reviewed by the Supreme Court. Id. at 17, 19.
The root of Smith’s present challenge is that, as determined by the Supreme Court, the trial court’s jury instructions during the penalty phase of Smith’s capital trial violated his Eighth and Fourteenth Amendment rights, which protect individuals from cruel and unusual punishment and the depravation of life…without due process of law, respectively. Petition for Certiorari at 1–2. However, because the Court remanded Smith’s case back to the CCA, the inquiry has turned to the scope and standards that the CCA applied when it considered Smith’s case for the second time.
In 1989, the Court interpreted the Eighth Amendment of the Constitution to include protection such that jury instructions must allow the jury to meaningfully consider and effectuate the defendant’s mitigating evidence when it is deciding whether to impose the death penalty. See Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”). More recently, the Court clarified Penry I in Penry v. Johnson (“Penry II”) and in Smith’s first Supreme Court case. In those cases, the Court stated that merely giving a jury a supplemental nullification instruction does not eliminate the constitutional problems with a statutorily mandated special issue verdict form, because the form neither mentions nor properly allows for the jury to fulfill its obligation to consider and effectuate the defendant’s mitigating evidence. Penry v. Johnson 532 U.S. 782, 796 (2001); Smith I at 46. Moreover, the Court stated that such nullification instructions are particularly troublesome where the mitigating evidence is beyond the scope of the special issues. Id. For example, Smith asserts that because his mitigating evidence, his low intelligence and troubled childhood, were not directly related to deliberateness or future dangerousness, the two special issues that the jury had to consider, the jury would not have an opportunity to take his mitigating evidence into account. Petition for Certiorari at 8.
In Smith I, Smith’s first Supreme Court case involving his death sentence-, the Court explained that the CCA applied a constitutionally inadequate standard when it reviewed Smith’s claim on direct appeal. Id. at 11. The Court ultimately concluded that, in terms of Eighth Amendment purposes, Smith’s case was indistinguishable from Penry II. Smith I at 48–49. Thus, the Court held that the trial court’s jury instructions violated Smith’s Eighth Amendment rights and the CCA must reconsider Smith’s claim in light of this. Id.
In his second appearance before the Supreme Court, Smith is now challenging the way that the CCA decided his case on remand from the Supreme Court. Petition for Certiorari at 1. He bases his challenge on the grounds that the CCA misapplied the harmless error standard and that the CCA went beyond its scope of review when it applied the egregious harm standard. Id. at 12. Smith claims that the proper harmless error analysis in this context would have the CCA assume that the defendant’s constitutional rights were violated and then evaluate whether the defendant’s mitigating evidence was sufficient enough to persuade at least one juror to vote not to impose the death penalty. Id. at 20. Smith asserts that instead of applying such an analysis, the CCA evaluated the record on whether the jury could in fact effectuate Smith’s mitigating evidence, which directly contradicts the Supreme Court’s reasoning in Smith I because the Court already held that the nullification instruction did not adequately give the jury the opportunity to effectuate Smith’s mitigating evidence. Id. Further, Smith contends that, had the CCA applied the harmless error analysis correctly, Smith’s mitigating evidence would be sufficient to warrant a life sentence rather than the death penalty. Id.
Smith also argues that the CCA inappropriately applied the egregious harm standard based on a procedural issue that it failed to consider when it reviewed his case on direct appeal. Id. at 24. According to Smith, when he objected to using the statutorily proscribed special issue verdict form—because the form did not allow the jury to properly effectuate his mitigating evidence—he laid the foundation for any related appeals. Id. Smith claims that the law did not require him to object separately to the CCA’s use of a supplemental nullification instruction. Id. Therefore, the CCA misapplied the egregious harm standard, which is normally applied to claims where a defendant did not object to the error at trial that he now alleges on appeal. Id. Moreover, the record demonstrates that a majority of the CCA judges explicitly decided that it could review Smith’s appeal because he complied with the required procedures. Id. at 11.
Texas maintains that the CCA acted consistently with the Supreme Court’s decision in Smith I when it reconsidered Smith’s case on remand. Brief In Opposition at 1. First, Texas contends that the Supreme Court did not address whether the statutorily proscribed “special issues,” in and of themselves, provided the jury with an adequate vehicle for effectuating Smith’s mitigating evidence. Id. at 12–13. The Court only determined that the nullification instruction alone did not permit the jury to adequately effectuate Smith’s mitigating evidence. Id. Because Smith I did not consider the “special issues,” the CCA was obligated to decide whether Smith’s mitigating evidence was relevant to one of the “special issues” that the jury considered. Id. Even though the CCA determined that the jury could have effectuated Smith’s evidence of low intelligence and troubled childhood when it considered the future dangerousness issue, the CCA nevertheless assumed that the jury instructions were constitutionally flawed and proceeded with its review under the prevailing state standard for evaluating jury instruction error. Id. at 14-15.
Under Texas law, the CCA must apply an egregious harm standard to jury instruction claims where the defendant did not object to the jury instructions. Id. at 17. Because Smith did not object to the nullification instruction, the CCA applied this state-proscribed egregious harm standard. Id. at 19. The CCA explains that the harmless error standard that Smith wanted it to apply is the federal standard and was inappropriate because the federal standard is inapplicable where the defendant does not object at trial. Id. at 19–20. Therefore, the only standard that the CCA could apply was the egregious harm standard. Id.
Finally, Texas argues that automatically reversing its original decision in light of Smith I was inappropriate because an error in the jury instructions is not a structural defect that impacts the framework in which the trial proceeded. Id. at 22–23.
The Court’s decision will have a significant impact on both future death penalty appeals and on the manner in which state courts submit to Supreme Court authority. If Smith wins, death penalty appeals involving state habeas corpus petitions will be easier for defendants to win, and the supremacy of the Supreme Court will be reconfirmed. A decision in favor of Texas will increase the independence of state courts and allow them greater freedom in adopting their own appellate standards.
- NAACP Legal Defense Fund, Death Row USA, Summer 2006.