# Amicus Curiae Brief — Selvage v. Collins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 494 U.S. 108 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A10. Public record. Not legal advice.