Again: A Jury Must Be Able to FULLY Consider ALL Mitigating Evidence in Death Cases

Smith v. Texas

Penry I held that Texas special issue questions presented to juries in the sentencing phase were unconstitutional because they did not allow for proper consideration of all mitigating evidence. Penry II held that an instruction to the jury to nullify those special issues in the case that mitigating evidence convinced the jury that the accused did not deserve the death penalty was insufficient because it presented the jury with the ethical dilemma of following the judges instructions to return a false answer on the special question. Smith was sentenced in the interim between Penry I and Penry II. When Smith’s case was remanded by the Supreme Court under Penry II the lower court denied relief, holding that Smith had not preserved the issue for appeal, and had not demonstrated “egregious harm.”

Smith filed motions before voir dire (1) alleging that the jury instructions violated Penry I because the trial court was not authorized to give any instruction on mitigation; (2) alleging that the jury instructions violated Jurek because the Supreme Court had upheld the instructions on the assumption that the Texas courts would give the terms of those instructions a broader interpretation than those courts actually had; and (3) asking to be notified of the wording of the instructions so he could exercise his jury challenges intelligently. The first two were denied and to the third the trial court presented an instruction that the jury would receive, directing it to answer “no” to one of the special questions if it thought that the answer to both was “yes” but also believed, from the mitigating evidence, that the accused did not deserve the death penalty. While Smith was appealing his sentence Penry II was decided. While Smith continued to press his Penry I challenge, he added his Penry II challenge. The lower court found no Penry I error because the special issues were broad enough to include mitigating evidence and any excluded evidence was not constitutionally significant. The lower court, in the alternative, held that Smith’s case was distinguishable from Penry II because the nullification charge was sufficient to cure any Penry I error. The Supreme Court overruled the lower court’s “constitutionally significant” test, held that there was a Penry I violation because the jury’s decision was tied to findings that had nothing to do with the mitigating evidence, and that Smith’s case was not distinguishable from Penry II.

On remand the lower court assumed some issues were kept from the jury, and decided the case under Almanza, requiring a showing of actual harm in the case that Smith had preserved the issue of instructional error, and requiring a showing of egregious harm if he had not. The lower court was of the mistaken view that the Penry II decision rested on an error arising from the nullification charge, when it was actually just an extension of the violation in Penry I. Therefore, Smith did not abandon the Penry I issue by appealing on the basis of Penry II – the substance was the same. It follows under Almanza that all Smith was required to show was “some” [actual] harm. Finally, the lower court is obliged to defer to the Supreme Court’s finding of Penry error – “that there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence” – and therefore the state’s harmless error analysis should not bar relief.

Justice Souter, concurring, suggests that harmless error analysis may be per se unwarranted in Penry violations.

Justice Alito, with the Chief Justice and Justices Scalia and Thomas, dissenting, argue that while Smith did object that the jury instructions violated Penry I, he did not object that the trial court’s nullification instruction was insufficient to cure that problem. It is not the case that no instruction can cure the Penry I problem. Additionally, a court is not obligated to address state procedural bars before ruling on the merits where they are not briefed, and because Almana is a state-law procedural bar, the lower court’s decision rests on independent and adequate state grounds.

In order for Almanza to be an “adequate and independent state ground sufficient to support a state judgment” it must be “a firmly established and regularly followed state practice” furthering a “legitimate state interest.” Smith argues that the Almanza rule is arbitrary and discretionary because (1) it was meant to be applied on direct review, not habeas review; (2) it was intended to control non-constitutional claims; and (3) has never been applied to Penry claims. The Court cites cases to counter the first and last arguments, and since Penry claims are constitutional in nature, those cases also counter the factual basis of Smith’s second argument. Moreover, it has been regularly applied, if not universally, and furthers the legitimate sate interest of avoiding flawed trials and minimizing costly retrials.

Finally, while a penalty phase instruction violates the Eighth Amendment if there is a reasonable likelihood that the jury applied the instruction in a way that prevents consideration of constitutionally relevant evidence, that is not always sufficient to constitute “egregious harm.” Whether there was “egregious harm” in this case or not was a question that was properly decided by the lower court.