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

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.

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."

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