Amicus Curiae Brief — Selvage v. Collins

JOHN HENRY SELVAGE,

Petiti

Vv.

JAMES A. LYNAUGH, Director

I

TABLE OF CONTENTS

Page

es ek ec ccc ebeceessseecese II

IDENTIFICATION OF AMICUS CURIAE ............ 2

STATEMENT OF AMICUS CURIAE ................. 2

ARGUMENTS AND AUTHORITIES ................. 3

Smith v. Murray Requires Lawyers to Foresee Changes

in the Law, not to Anticipate Unlikely Possibilities ... 4

No Instruction on Mitigation: An Unbroken Line of

er ed eg, ee ee ceeeeen wap sees 5

The Futility of Seeking an Instruction on Mitigating

IS tase eile ae Se a ek ae unease nese ee

The Texas Situation is Novel ............00eeeeeees 9

Only Good Faith Arguments May Be Presented to

te ee tee eee ede eee eee ensese 9

A Procedural Bar Would Result in a Fundamental

Miscarriage of Justice ..........ceeeeeeeceececeees 10

CN ccc chee Obie bees oeee.s 11

CE, GUY PEWELED cc cccccccccccecessceces 12

I

LIST OF AUTHORITIES

CASES Page

Clark v. State, 717 S.W.2d 910 (Tex. Crim. App. 1986),

cert. denied, 481 U.S. 1059 (1987) .........eceeecece 6

Demouchette v. State, 731 S.W.2d 75 (Tex. Crim. App.

1986), cert. denied, 482 U.S. 920 (1987) ............ 5,6

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 5

Engle v. Isaac, 456 U.S. 107 (1982) ..........eceeeeees 4,9

Franklin v. Lynaugh, 487 U.S. 164 (1988) ............ 5,9, 10, 11

Jurek v. Texas, 428 U.S. 262 (1976) ...........ceeeee . passim

King v. State, 553 S.W.2d 105 (Tex. Crim. App. 1977),

cert. denied, 482 U.S. 921 (1978) ..... Malthe toeaetess 5,6

Lackey v. State, No. 69,144 (Tex. Crim. App. June 14,

1989) (not yet reported) (rehearing granted) ........ 8

Lockett v. Ohio, 438 U.S. 586 (1978) ..........-.00ee, 5,7, 12

Mazuera v. State, No. 01-89-00244-CR (Tex. App.—Hous-

ton [Ist Dist.] Sept. 28, 1989) (not yet reported) ..... 10

McCleskey v. Kemp, 481 U.S. 279 (1987) ...........05. 5

Penry v. Lynaugh, 832 F.2d 915 (Sth Cir. 1987) ........ 7,8

Penry v. Lynaugh, 492 US. , 109 S. Ct. 2934 (1989) passim

Penry v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985),

cert. denied, 474 U.S. 1073 (1986) ...........0ceeues 7

Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980),

cert. denied, 449 U.S. 893 (1980) ..........- ee eeees 6

Rese @.. Tae, SD GS G CRGD 0.005000 necccccevasse se 4

Smith v. Murray, 477 U.S. 527 (1986) ........ce ee eeee 2,4

South Carolina v. Gaithers, USS. , 109 S. Ct. 2207

SEE. -n0dcddan chee vcebs a eeseeebaadiamaieete 12

CONSTITUTIONS AND STATUTES

TEX. CODE CRIM. PROC. ANN. art. 37.071 ......... passim

SUPREME COURT OF TEXAS, RULES GOVERNING

THE STATE BAR OF TEXAS, art. XII, section 8 (Code

of Professional Responsibility) DR 7-102(A)(2) ....... 10

NO. 87-6700

Supreme Court of the United States

OCTOBER TERM, 1989

JOHN HENRY SELVAGE,

Petitioner

Vv.

JAMES A. LYNAUGH, Director

Institutional Division,

Texas Department of Criminal Justice,

Respondent

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR AMICUS CURIAE

HARRIS COUNTY CRIMINAL

LAWYERS ASSOCIATION

To the Justices of the Supreme Court of the United States:

COMES NOW AMICUS CURIAE, HARRIS COUNTY

CRIMINAL LAWYERS ASSOCIATION, by and through

its attorneys of record, STANLEY G. SCHNEIDER and

TOM MORAN, and pursuant to Rule 36.1, it would

respectfully show the Court as follows:

2

IDENTIFICATION OF AMICUS CURIAE

The Harris County Criminal Lawyers Association

[hereinafter the Association] is an unincorporated associa-

tion of attorneys engaged in the practice of criminal law

in the courts of Harris County, Texas. Many of the

members of the Association have represented persons

charged with capital murder. In addition, approximately

half of the persons sentenced to death in Texas were

tried in Harris County.

All parties have given the Association permission to

file this brief. Copies of the letters of permission have

been filed with the Clerk of this Court.

The Association appears for Petitioner.

STATEMENT OF AMICUS CURIAE

The question facing this Court is whether the pro-

cedural bar rule in Smith v. Murray, 477 U.S. 527

(1986), applies in Texas death penalty cases in which

the defense attorney at trial did not object to the lack

of instructions on consideration of mitigating evidence.

The Association believes that prior to the time this

Court handed down its decision on Penry v. Lynaugh,

492 U.S. _.__, 109 S. Ct. 2934 (1989), the law in Texas

was well settled that no instructions on mitigation were

necessary. An unbroken string of case law dating back

to Jurek v. Texas, 428 U.S. 262 (1976), and including

numerous decisions of the Court of Appeals for the Fifth

Circuit and the Texas Court of Criminal Appeals, upheld

the constitutionality and application of the Texas death

penalty sentencing scheme. At some point, in the face

of unanimous authority from the Supreme Court of the

3

United States, the Court of Appeals for the Fifth Circuit

and the state’s highest court for criminal cases, lawyers

must be willing to accept precedent and abandon claims

that are foreclosed. If, at some later date, this Court

reconsiders the previously foreclosed issue and determines

that its previous holdings are no longer consistent with

evolving constitutional interpretation, failure to raise an

issue at trial should not be a procedurai bar.

The Association would show that the law in Texas

was so well settled that only 12 days before this Court

announced its decision in Penry, the Court of Criminal

Appeals again rejected a similar argument.

ARGUMENTS AND AUTHORITIES

In Jurek v. Texas, 428 U.S. 262 (1976), this Court

told the lawyers of Texas that the Texas death penalty

sentencing scheme “has ensured that the sentencing jury

will have adequate guidance to enable it to perform its

sentencing function.” 428 U.S. at 276. This Court further

held that Texas has provided a system that is “evenhanded,

rational and consistent” and that the system “serves to

assure that sentences of death will not be ‘wantonly’ or

‘freakishly’ imposed. . . .” /d.

Thirteen years later, in Penry, this Court held that the

Texas death penalty scheme embodied in Tex. CopE

CRIM. Proc. ANN. art. 37.071 fails to sufficiently instruct

juries in the ways to consider and give effect to all types

of mitigating evidence and that Article 37.071 as inter-

preted by the Court of Criminal Appeals fails to provide

a vehicle for the jury to provide a “reasoned moral

response” to that evidence in rendering its sentence. 492

U.S. at ___, 109 S. Ct. at 2952.

4

The question presented to this Court in the instant

case is relatively straight-forward. Stated simply, this

Court is being asked to decide whether Texas lawyers

should be excused from making arguments later accepted

by this Court in Penry in the decade and a half between

this Court’s decision in Jurek and its decision in Penry.

The Association, for the reasons outlined below, con-

tends that the answer should be in the affirmative.

Smith v. Murray Requires Lawyers to Foresee

Changes In the Law, Not to Anticipate

Unlikely Possibilities

In Smith v. Murray, this Court held that the procedural

bar rule of Engle v. Isaac, 456 U.S. 107 (1982), applies

when an appellate attorney makes a conscious decision

to abandon a claim on direct appeal if state law would

bar that claim in a later state habeas proceeding. In Smith,

the attorney on direct appeal was also the attorney at

trial. He properly preserved his error with an objection

at trial but on direct appeal deliberately chose to abandon

the claim because he felt the claim had little chance of

success before the Virginia Supreme Court. 477 U.S. at

534. |

In considering cause for procedural default, this Court

has recognized that if a constitutional claim is so novel

that its legal basis is not reasonably available to counsel,

a defendant has “cause” for his failure to raise the claim

in accordance with applicable procedures. Reed v. Ross,

468 U.S. 1, 18 (1984). The key question is not the later

decisions of this Court but rather whether the defendant’s

claim was “available” at all at the time of the default.

Smith, 477 U.S. at 537.

5

Texas death penalty cases involving Penry issues are

not situations in which a well-informed lawyer could

anticipate a change in the law. Nor are they situations in

which a well-informed, well-prepared lawyer would raise

the issue at trial or on direct appeal. Rather, based on

an unbroken string of authority, the issue of instructions

on mitigation was flatly foreclosed.

No Instructions on Mitigation:

An Unbroken Chain of Cases

Since 1976, the Court of Criminal Appeals has refused

to reinterpret Article 37.071, to-grow or to apply this

Court’s decisions in such cases as Lockett v. Ohio, 438

U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104

(1982); and McCleskey v. Kemp, 481 U.S. 279 (1987).

Even in the wake of Franklin v. Lynaugh, 487 U.S. 164,

(1988), the Court of Criminal Appeals continued to

repeat dogmatically that the Texas death sentencing

system was upheld in Jurek and that no instructions

on mitigating evidence were necessary.

The most telling example of the Court of Criminal

Appeals’ reaction to this Court’s evolving interpretation

of constitutional principles can be seen in a comparison

between King v. State, 553 S.W.2d 105 (Tex. Crim. App.

1977), cert. denied, 434 U.S. 1088 (1978); and Demou-

chette v. State, 731 S.W.2d 75 (Tex. Crim. App. 1986),

cert. denied, 482 U.S. 920 (1987).

In King, the Court of Criminal Appeals overruled an

argument that Article 37.071, without further definitions

and instructions, does not give juries adequate guidance

to determine the issues. The Court used the following

language:

6

In Jurek v. Texas, however, the Supreme Court

of the United States concluded that the submission

of special issues provided by Art. 37.071, supra,

constitutionally guided the jury’s determination of

the punishment issues. No special definitions of the

terms of that statute were required.

553 S.W.2d at 107 (citations omitted).

In Demouchette, the Court of Criminal Appeals was

presented with the issue of whether Article 37.071 allows

the jury to consider or apply mitigating evidence because

the statute does not inform a jury how to apply the evi-

dence. The Court overruled the argument with the fol-

lowing language (which is quoted herein in full):

The Texas capital murder scheme, including the

special issues under Article 37.071, supra, was held

to be constitutional in Jurek v. Texas. The fifteenth

ground of error is overruled.

731 S.W.2d at 80 (citations omitted).

In the years between King and Demouchette, the Court

of Criminal Appeals specifically rejected submission of a

charge of mitigation. In Quinones v. State, 592 S.W.2d

933, 947 (Tex. Crim. App. 1980), cert. denied. 449

U.S. 893 (1980), the Court of Criminal Appeals agreed

with the Appellant that there was a right to present all

mitigating evidence but rejected his argument that an

explanatory charge is necessary to protect thai right. The

Court, again citing Jurek, said that this Court had upheld

the Texas death penalty scheme.

In Clark v. State, 717 S.W.2d 910, 920 (Tex. Crim.

App. 1986), cert. denied, 481 U.S. 1059 (1987), the

Court again rejected an argument that Article 37.071

is unconstitutional for its failure to provide adequate

7

procedural safeguards by merely permitting the defendant

to present all mitigating evidence without ensuring that

the jury, under appropriate instructions considers and

weighs the mitigating factors. Among the cases relied

upon by the Court to reject Clark’s argument was Penry

v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985),

cert. denied, 474 U.S. 1073 (1986).

Not only did the Court of Criminal Appeals con-

sistently reject arguments that additional instructions on

mitigation were unnecessary but the Court of Appeals

for the Fifth Circuit consistently agreed and, relying on

Jurek and Lockett, held that such instructions were not

required by the United States Constitution. In Penry v.

Lynaugh, 832 F.2d 915, 925 (Sth Cir. 1987), a panel

of the Fifth Circuit questioned the viability of Jurek but

held that Article 37.071 had been specifically upheld in

Jurek, The panel further held as follows:

Jurek expressly held that the Texas statute is con-

stitutional. After Jurek, the Court has reiterated that

stance a number of times. For example, in Lockett

the Court stated that the Texas statute “survived the

petitioner's Eighth and Fourteenth Amendment at-

tack because three Justices concluded that the Texas

Court of Criminal Appeals had broadly interpreted

the second question—despite its facial narrowness—

so as to permit the sentencer to consider ‘whatever

mitigating circumstances’ the defendant might be

able to show.” Similar reasoning has been used in

a number of other cases. See, e.g. Zant; Lockhart

v. McCree. We think that a strong argument can

be made that developing law, see, e.g. Hitchcock

is inconsistent. However, even if we were free to

decide that inconsistency and reach a different result,

see Brock v. McCotter, we are not free to do so

because prior Fifth Circuit decisions have rejected

8

claims similar to Penry’s. Riles v. McCotter; Granviel

v. Estelle. These prior panel holdings bar a different

holding by us.

832 F.2d at 926 (citations omitted).

Hence, not only lawyers but also members of the Fifth

Circuit recognized that the questions of mitigating in-

structions was foreclosed in 1987.

The Futility of Seeking an Instruction

on Mitigating Evidence

In the wake of the unbroken string of rulings uphold-

ing Article 37.071, many Texas lawyers have abandoned

any effort to object to the lack of instructions or defini-

tions. The Court of Criminal Appeals had for 13 years

given continuous constitutional approval to Article 37.071.

For a dozen years, defense arguments that additional

guidance was necessary for juries fell on deaf ears.

Although some Texas defense lawyers continued the

futile objections and requests for instructions, their efforts

were continually frustrated for a decade. Thereby, many

Texas lawyers have not felt compelled to object to the settled

and constitutionally-approved procedures in Article 37.071.

Not only have Texas lawyers stopped objecting but judges

on the Court of Criminal Appeals have stopped dissent-

ing from death penalty affirmances because their dissent

would be futile. This is most recently stated by Judge

Miller in Lackey v. State, No. 69,144 (Tex. Crim. App.

June 14, 1989) (rehearing granted):

In as much as Judge Clinton’s dissent continues

the belief that jurors in a capital murder case need

a special instruction on mitigating evidence, as aptly

set out in Stewart v. State, 668 S.W.2d 118 (Tex.

9

Crim. App. 1984) (Clinton, J. joined by Miller, J.,

Dissenting), I join his dissent on the disposition of

point of errer number four. We only stopped dis-

senting to the majority’s steadfast refusal to require

such an instruction because to continue to do so was

“futile.” See Johnson v. State, 691 S.W.2d 619 (Tex.

Crim. App. 1984) (Clinton, J. joined by Miller, J.,

dissenting).

The Texas Situation is Novel

Any application of the contemporaneous objection rule

to Article 37.071 would be inapplicable due to the unique

Texas situation. Texas lawyers were handicapped by over

a decade of interpretations of the same questions by the

courts and there was no change in the response. In

addition, the Texas Legislature has not intervened.

Applying the rule of Engle v. Isaac to the instant case

would be unjust and inappropriate because of the history

of the application of Article 37.071.

In Engle v. Isaac, this Court held that a state court

defendant who perceives a constitutional claim which

he believes may find favor in federal court may not

bypass the less sympathetic state court. Such is not the

case in the instant case and others inve!lving Article

37.071. Until Franklin, this Court never questioned the

constitutionality of Article 37.071. At some point, con-

tinuing to put forward arguments which have been previ-

ously rejected numerous times becomes futile.

Only Good Faith Arguments May

Be Presented to Texas Courts

In Texas, an attorney faces professional discipline if

if he knowingly advances a claim or asserts a position

10

that is unwarranted under existing law or which cannot

be supported by a good faith argument for extension,

modification or reversal of existing law. SUPREME COURT

OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS,

art. XII, section 8 (Code of Professional Responsibility )

DR 7-102(A) (2) [hereinafter Texas Code of Professional

Responsibility].

It is difficult to see how an attorney—at least prior

to Franklin—could argue that requests for instructions

and definitions on mitigation were good faith arguments

for modification or reversal of the existing law.

See also Mazuera v. State, No. 01-89-00244-CR (Tex.

App.—Houston [Ist Dist.] Sept. 28, 1989) (not yet

reported).

A Procedural Bar Would Result in A

Fundamental Miscarriage of Justice

The Association believes that the authority cited above

is sufficient cause for not ro sing @ claim based on Penry,

at least before this Cour’ handed down its decision in

Franklin. Even if that postion is ‘ncorrect, the Associa-

tion believes that applying th procedural bar rule in this

type of case would be a fundamental miscarriage of justice.

Given the strength of the authority in Texas that no

instructions or definitions on mitigation were necessary,

the frustration of the minority of the Court of Criminal

Appeals (who later were proven right by this Court in

Penry) and the Code of Professional Responsibility, it is

easy to see how a competent and effective Texas lawyer,

at least prior to Franklin, would fail to seek an instruction

or definition on mitigating evidence in a death penalty

case.

11

The Association submits that there are numerous cases

in which mitigating evidence which is even stronger than

that presented in Penry was introduced at trial—or could

have been introduced at trial if the defense attorney be-

lieved that there was a possibility that the trial court

would give a definition or instruction on the application

of the mitigating evidence. As this Court pointed out in

Penry, much of this evidence can be a two-edged sword:

at the same time diminishing the defendant’s blameworthi-

ness and increasing the probability he will be dangerous

in the future. 492 U.S. at ___., 109 S. Ct. at 2949.

It would be a miscarriage of justice to send those

defendants to their deaths when their attorneys based

their strategies on good faith reliance on the continuous

rulings of the highest courts.

CONCLUSION

The Association believes that there was “cause” for

the failure to raise a claim based on the arguments ad-

vanced in Penry and that the application of the pro-

cedural bar rule to those claims would result in a “funda-

mentai miscarriage of justice” in light of the consistent

decisions of the Court of Criminal Appeals after this

Court’s decision 12 Jurek and prior to Franklin.

Texas lawyers were entitled to rely on the long line

of post-Jurek decisions upholding the sentencing scheme

embodied in Article 37.071 and the lack of necessity for

additional instructions on mitigation. As Justice Scalia

wrote last Term, “Indeed, I had thought that the respect

accorded prior decisions increases, rather than decreases,

with their antiquity, as the society adjusts itself to their

12

existence, and the surrounding law becomes premised

upon their validity.” South Carolina v. Gaithers, _—

USS. - , 109 S. Ct. 2207, 2218 (1989) (Scalia,

J., dissenting).

Texas lawyers and judges adjusted to the holdings of

this Court in Jurek and its reaffirmation in Lockett.

Neither they nor their clients should now be penalized

for that reliance.

Respectfully submitted,

STANLEY G. SCHNEIDER

TOM MORAN

LAW OFFICES OF

STANLEY G. SCHNEIDER

11 Greenway Plaza

Suite 3112

Houston, Texas 77046

(713) 961-5901

Attorneys for Amicus Curiae

CERTIFICATE OF SERVICE

I certify that copies of this brief of amicus curiae was

served on all parties pursuant to Rule 28.

STANLEY G. SCHNEIDER