One case was familiar, at least to the seven justices who were on the court when LaRoyce L. Smith’s previous appeal of his death sentence came before them in 2004. At that time, the court voted 7 to 2 to overturn the sentence, only to see it promptly reinstated by the Texas Court of Criminal Appeals on the ground that the constitutional error the justices had identified was “harmless.” The question now is whether that was an acceptable response by the state court to the Supreme Court’s mandate.
The other two cases, while unfamiliar in their particulars, were very familiar in what they represented: the latest, but almost certainly not the last round in a fitful dialogue between the Supreme Court and the federal appeals court that oversees habeas corpus cases filed in federal court by Texas inmates.
All three cases offer a window on the recent history of capital punishment in the United States, which to a large degree is the history of capital punishment in Texas. Since 1976, when the Supreme Court permitted states to resume executions, Texas has put to death 380 people, far more than any other state. (The next highest, Virginia, has executed 98.)
In 1989, the Supreme Court ruled that the jury instructions that Texas was using were constitutionally deficient because they failed to ensure that jurors could give meaningful consideration to a defendant’s mitigating evidence. Under the Texas system, jurors were instructed to respond to only two questions: whether the killing was deliberate, and whether the defendant posed a continuing threat to society. If the answers to both were yes, a death sentence was automatic.
The Texas Legislature addressed the problem two years later by instructing jurors to take “all of the evidence” into consideration, including the defendant’s character and background. But in the interim, during which Mr. Smith was sentenced to death for murdering a former co-worker at a Taco Bell in Dallas, judges tried to address the problem by telling jurors that if they thought the mitigating evidence warranted a sentence of life in prison rather than death, they should simply answer no to one of the two questions, even if they believed that the proper answer was yes.
Eventually, the Supreme Court held that this “nullification instruction” was constitutionally inadequate as well. It applied that ruling to Mr. Smith’s earlier appeal, overturning his sentence in 2004 and sending it back to the Texas Court of Criminal Appeals, which in turn reinstated it, finding the error “harmless” because Mr. Smith had failed to show that the nullification instruction had caused him “grievous harm.”
In his new appeal, Mr. Smith, represented by a University of Texas Law School professor, Jordan M. Steiker, is arguing that the state court’s resolution of the case flew in the face of the Supreme Court’s analysis. The state court, having failed in the first round to apply its “harmless error” rule, should not be permitted to introduce it after the fact, Mr. Steiker said.
Although several justices, most notably Stephen G. Breyer and Ruth Bader Ginsburg, clearly agreed with him, Mr. Steiker encountered stiff resistance from Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The chief justice said the Texas court had handled the case in an appropriate and even “desirable” way.
Because the state court did not initially regard the nullification instruction as an error, Chief Justice Roberts said, it had no reason at that point to decide whether the error was harmless. “Wouldn’t it be normal exercise of judicial restraint to say we don’t have to reach out and decide whether this error was harmless if we’ve already decided there’s no error at all?” he asked.
Texas was represented by its solicitor general, R. Ted Cruz, and supported by a second lawyer, Gene C. Schaerr, representing California and 20 other states that entered the case, Smith v. Texas, No. 05-11304, as “friends of the court” for Texas. Mr. Schaerr said the case presented an important federalism issue of “whether states have the ability under our federal Constitution to choose their own harmless error standards.”
A total of 47 of Texas’ 392 inmates on death row were sentenced under the procedure the Supreme Court later found unconstitutional.
In a second argument on Wednesday, the court heard the combined appeals of two other inmates, Jalil Abdul-Kabir and Brent R. Brewer. Their crimes, both murders committed during robberies, were unrelated. But both are challenging the refusal by a federal appeals court, the United States Court of Appeals for the Fifth Circuit, to grant their habeas corpus petitions.
Their cases, Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, No. 05-11287, have acquired a new twist since the court accepted them in October. In a separate case last month, the Fifth Circuit abruptly shifted course and suggested that it had been wrong to deny habeas corpus to this entire group of inmates. The lawyer for the two, Robert C. Owen, another University of Texas law professor, is asking that the cases be sent back to the Fifth Circuit for reconsideration.