Petition for Writ of Certiorari — Smith v. Texas

IN THE

SUPREME COURT OF THE UNITED STATE > 9 3

D FV

Octdber Term, 2003

_ :

LAROYCE LATHAIR SMITH,

Petitioner,

v.

Court U8

FILED

STATE OF TEXAS, TUL 19 2004

Respondent.

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner LaRoyce Lathair Smith, by counsel, respectfully requests leave to file the

accompanying petition for a wnt of certiorari without prepayment of costs and to proceed in forma

——

pauperis. \

Smith has previously been granted leave to proceed in forma pauperis in the Texas Court AY

Criminal Appeals on direct appeal and during state habeas proceedings, as well as in the District Court

of the Northern District of Texas. Nonetheless, as Smith seeks review of the decision of a state court,

an affidavit of indigency is attached.

Wherefore, Petitioner asks the Court to grant him leave to proceed in forma pauperis in filing

this petition for a wnt of certiorari.

* Counsel of Record

Respectfully submitted, UP ai

Nardone Stele M4 tor

Jordan Steiker*

727 East Dean Keeton

Austin, TX 78705

(512) 232-1346

(512) 471-6988 - fax

VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER

2421 Ivy Road, Surte 301

Charlottesville, Virginia 22903

(434) 817-2970

(434) 817-2972 - fax

Counsel for LaRoyce Lathair Smith

of

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

)

LaRoyce Lathair Smith )

Petitioner, )

)

vs. ) CIVIL ACTION

) NO.

Doug Dretke, Director, )

Texas Department of Criminal )

Justice, lustitutional Division )

Respondent. )

=

DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

1, LaRoyce Lathair Smith, declare, depose, and say that I am the plaintiff in the above entitled

case; that in support of my motion to proceed without being required to prepay fees, costs or give

security therefor, I state that because of my poverty, [| am unable to pay the costs of said proceeding or

to give security therefor, that I believe I am entitled to relief.

I further declare that the responses which I have made to questions and instructions below

are true.

b. Are you presently employed? Yes__ No

a. If you a YES, state the amount of your salary or wages per month, and give the

name and address of your employer.

b. Lf you answered NO, state the date of last employment and the amount of the salary and

wages per month which you received.

sik s -

Nn

Have you received, within the past 12 months, any money from any of the following sources?

a. Business, profession or form of self-employment?Yes —__ No a

b. Rent payments, interest or dividends? —_ No Y

c. Pensions, annuities or life insurance payments? Yes __ No

d. Gifts or inhentances? Yes ~ No

e. Any other sources? Yes _ No _<

If you answered YES to any of the questions above desenbe each source of money and state

the amount received from each during the past 12 months

Fitz's tbe - 18000

Do you own cash, or do you have money in a checking or savings account, including any funds

in prison accounts”

Yes No

a

If you answered YES, state the total value of the items owned.

ls i a

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property,

excluding ordinary household furnishings and clothing?

Yes__ No ~ ;

If you answered YES, descnbe the property and state its approximate value.

List the persons whb are dependent upon you for support; state your relationship to those

persons (father, mother, spouse, etc ); and indicate how much you contribute toward their

support.

MVE

I understand that a false statement or answer to any questions in this affidavit will oe,

subject me to penalties for perjury. I declare under penalty of perjury that the foregoing is

true and correct.

Signed this_| Lot) day of Solu On

Signatur€ of Plaintiff

I hereby certify the plaintiff here’. has the sum of sO ‘ 4 LO on account

to his/her credit at the + UNS Ky nit: TOCS _ institution where he/she is

confined.

] further certify that the plaintiff likewise has the following secuntes to his/her credit

according to the records of said institution:

No. 03-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2003

LAROYCE LATHAIR SMITH,

Petitioner.

We

STATE OF TEXAS,

Respondent

On Petition for a Wnt of Certiorari to the

Texas Court of Criminal Appeals

CERTIFICATE OF SERVICE

| hereby certify that | am a member of the Bar of this Court; that | am counsel for LaRoyce

Lathair Smith, that on July 19, 2004, | caused the foregoing Motion for ne to Proceed in Forma

Pauperis to be served by U.S. mail on the Hon. Bill Hill, Dallas County District Attorney, Attn:

Katherine Drew, Appellate Section, Office of the Dallas District Attorney, Frank Crowley Courts

Building, 133 N. Industrial Blvd.. Dallas, TX 75207, telephone 214-653-3625; and that all parties

required to be served have been served

—F ‘

/f LA

é ~{72_—__7 ’ oe ————

Magne A.Levin ~

VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER

2421 Ivy Road, Suite 301

Charlottesville, Virginia 22903

(434) 817-2970

Counsel for LaRoyce Lathair Smith

No. 03-

PETITION FOR A WRIT OF CERTIORARI

Jordan Steiker*

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2003

LAROYCE LATHAIR SMITH,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-1346

Maune Levin

Virginia Capital Representation Resource Center

2421 Ivy Road, Suite 301

Charlottesville, Virginia 22903

(434) 817-2970

* Counsel of Record

Capital Case

QUESTIONS PRESENTED

Can the decision of the Texas Court of Criminal Appeals denying Petitioner relief under Penry

v. Lynaugh, 492 U.S.302 (1989) (Penry J), and Penry v. Johnson, 532 U.S. 782 (2001)

(Penry /1), because his mitigating evidence did not constitute a uniquely severe permanent

handicap with a nexus to his crime survive this Court's intervening decision in Tennard v.

Cockrell, 542 U.S. ---, 124 S. Ct. 2059 (2004)?

ls Penry I] satisfied by a nullification instruction that clearly informs jurors of the obligation to

answer sentencing questions dishonestly in order to give effect to constitutionally relevant

mitigating evidence?

QUESTIONS PRESENTED

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TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

COURSE OF PROCEEDINGS BELOW

STATEMENT OF THE CASE

HOW THE ISSUES WERE DECIDED BELOW

REASONS FOR GRANTING CERTIORARI

CONCLUSION

TABLE OF CONTENTS

MR. SMITH’S EVIDENCE OF LIMITED MENTAL ABILITIES AND

HIS TURBULENT BACKGROUND COULD NOT BE GIVEN

ADEQUATE MITIGATING EFFECT VIA THE OLD TEXAS

SPECIAL ISSUES AND THE TEXAS COURT OF CRIMINAL

APPEALS’ CONTRARY CONCLUSION IS WHOLLY UNDERCUT

BY THIS COURT’S SUBSEQUENT DECISION IN TENNARD V.

DRETKE, 542 U.S. ---, 124 S. CT. 2059 (2004)... 0 eee eens

THE NULLIFICATION INSTRUCTION IN MR. SMITH’S CASE WAS

INDISTINGUISHABLE FROM THE INSTRUCTION CONDEMNED IN

PENRY V. JOHNSON, 532 U.S. 782 (2001) (PENRY IJ) AND THE FAILURE

OF THE TEXAS COURT OF CRIMINAL APPEALS TO CREDIT THIS

COURT'S ARGUMENTS IN PENRY I] REQUIRES THIS COURT'S

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TABLE OF AUTHORITIES

Federal Cases

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Penrvy v. Lynaugh, 492 U.S. 302 (1989) (Pemry DI)... cc cece cece e eee 5, passim

Penrvy v. Johnson, $32 U.S. 782 (2001) (Pemry IN)... cee eee cece ees 9, passim

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Py Ok SG CP EE vo ob cecccandddistonndeneneancutensensuseces 10

Tennard v. Dretke. 542 U.S. ---, 1248. Ct. 2059 (2004)... cee eee 10, passim

State Cases

Ex Parte LaRoyce Lathair Smith, 123 S.W. 3d 407 (Tex. Crim. App. 2004) ......... 1, passim

Smith v. State, No. 71,333 (Tex. Crim. App. June 22, 1994) (unpub.decision) ............ 2,9

ie Fuses Baie, USSG Tam. Cie. Raw. CE SS oo cc ccvccccccccctcccevsscecsesscccess 2

Ex Parte Smith, 977 S.W. 2d 310 (Tex. Crim. App. 1998) ........ 0... cece eee ee eee eeeeee 2

Federal Constitutions, Statntes, and Rules

PEs POE 6 ¢dieive icbbedhcunssccsedcesedunetennseteodelstesseethtbensad l

Rule 13.1 of the Rules of the Supreme Court of the United States ..................0-0055 l

State Statutes and Rules

TEX. CODE CRIM. PROC. ANN... ART. 37.071(2e1) (Vernon 2003). ...........45.. 16

PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:

Petitioner LaRoyce Lathair Smith respectfully requests that the Court grant a wnt of certioran to

a

review the decision of the Texas Court of Criminal Appeals in his capital proceeding.

OPINION BELOW

The opinion of the Texas Court of Criminal Appeals is reported as Ex Parte LaRoyce Lathair

Smith, 123 S.W. 3d 407 (Tex. Crim. App. 2004). It is attached hereto as Appendix |.

JURISDICTION

On April 21, 2004, the Texas Court of Criminal Appeals issued its opinion denying Mr. Smith's

application for a writ of habeas corpus. Ex Parte LaRoyce Lathair Smith, 123 S.W. 3d 407 (Tex. Crim.

App. 2004). No petition for rehearing was filed.

The Court has jurisdiction to review the decision of the Texas Court of Criminal Appeals pursuant

to 28 U.S.C. § 1257(a) and Rule 13.1 of the Rules of the Supreme Court of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the application of the Eighth Amendment to the Constitution of the United States,

which provides in relevant part, “nor [shall] cruel and unusual punishments [be] inflicted,” and the

Fourteenth Amendment to the Constitution of the United States, which provides in relevant part, “nor shall

any State deprive any person of life, liberty, or property, without due process of law.”

COURSE OF PROCEEDINGS BELOW

LaRoyce Lathair Smith was convicted of capital murder and sentenced to death in Dallas County,

Texas, in June, 1991. The Texas Court of Criminal Appeals (CCA) affirmed his conviction and sentence

in June, 1994. Smith v. State, No. 71,333 (Tex. Crim. App. June 22, 1994) (unpublished decision), cert.

denied, 514U.S. 1112(1995). This decision denying Mr. Smith’s airect appeal is attached as Appendix

2. Thereafter, Mr. Smith sought habeas corpus relief in the state courts. His first application for state

habeas relief was dismissed as untimely, first in April, 1998, Ex Parte Smith, 1998 Tex. Crim. App.

LEXIS 94, and finally in July, 1998, Ex Parte Smith, 977 S.W. 2d 310 (Tex. Crim. App. 1998). The

Texas Court of Cnminal Appeals subsequently authorized the filing of a subsequent application for habeas

relief, and Mr. Smith again filed for habeas relief in the instant case in March, 2000. On April 5, 2001, the

state tral court recommended that the application be denied, and the Texas Court of Criminal Appeal

adopted that recommendation in Ex Parte LaRoyce Lathair Smith, 123 S.W. 3d 407 (Tex. Crim. App.

2004). It is that opinion denying state habeas relief that is before this Court.

te

STATEMENT OF THE CASE

A Guilt-Innocence Phase of Mr. Smith's Trial

The guilt phase evidence established that Mr. Smith and his accomplices entered a Taco Bell

restaurant with the intention of stealing money and that the store manager, Jennifer Soto, was killed in the

course of that crime. Mr. Smith was convicted of the capital murder of Jennifer Soto.

Some critical mitigating evidence concerning Mr. Smith's mental deficiencies and difficult family background

was introduced during the guilt phase of Mr. Smith’s trial. Johnnie Mae Smith, Mr. Smith’s mother,

testified that Mr. Smith was a slow learner in school and underwent a great deal of testing. SF 28:129,

130.' He failed first grade and was in special education programs throughout school. SF 28:130. By

the age of 18, Mr. Smith had reached only the 9" grade. SF 29:34. The crime was committed when Mr.

Smith was 19 years old. SF 29:21.

Johnnie Mae Smith also testified about Mr. Smith’s father, Leroy Smith. Leroy Smith had been

to the penitentiary for robbery. SF 28:126. He was involved in a motorcycle gang, caroused with other

women, and abused alcohol and drugs, especially crack cocaine. SF 28:134- 135. Leroy Smith stole from

his family to support his drug habit, SF 28: 135-137, and this situation greatly disturbed all of the members

of the family, including LaReyce Smith. SF 28:138.

' References to the trial transcript, in Texas called the “statement of facts,” are “SF” followed by the volume and page

number of the statement of facts.

B. Penalty Phase of Mr. Smith's Trial

l. Testimony

The defense offered additional evidence of Smith's cognitive impairments and difficult background

in the penalty phase of the trial. Alberta Pringle, records coordinator for the special education department

for the Dallas Independent School District, testified that Mr. Smith had been identified at the earliest stages

of his schooling as a slow learner with learning disabilities and speech handicaps. SF 32:17-42. Testing

through the school district indicated that Mr. Smith's verbal I.Q. was 75 and full scale 1.Q. was 78. SF.

32:33-34. A report prepared by Richard Adams, the director of health services for the Dallas independent

School District, SF 32:23, concluded on the basis of Mr. Smith’s history and physical exam that Mr.

Smith's learning problems were possibly organic in nature. SF 32:28.

Vanous family and community members confirmed the turbulent home life caused by Mr. Smith's

father. Reverend Samuel Nicks, Mr. Smith's pastor, testified that he was aware that Mr. Smith’s father

had stolen from his family to support his drug habit. SF 32:10-11. He also testified that such behavior has

an especially devastating impact on adolescent children. SF. 32:11. Dorothy Faye Ellis, a good friend of

the family, testified that Mr. Smith's family situation affected him greatly, especially the economic hardship

wrought by his father’s thefts. SF. 32:92-93.

2. Sentencing Instructions

Mr. Smith's jury was required to answer the same special issues on deliberateness and future

dangerousness as were at issue in Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry 1):

l. Was the conduct of the defendant that caused the death of the deceased committed

deliberately, and with the reasonable expectation that the death of the deceased or another would

result?

2. Is there a probability that the defendant would commit criminal acts of violence that would

constitute a continuing threat to society?

Affirmative answers to both questions required imposition of the death sentence.

_ The jurors were also provided with a nullification instruction that they could disregard the content

of the special issues if they believed that mitigating evidence -- including evidence with “no relationship to

any of the Special Issues” -- led them to conclude “that the death penalty should not be imposed.” The full

nullification charge was as follows:

You are instructed that you shall consider any evidence which, in your opinion, is mitigating.

Mitigating evidence is evidence that reduces the Defendant’s personal or moral culpability, or

blameworthiness, and may include, but is not limited to, any aspect of the Defendant’ s character,

record, background, or circumstances of the offense for which you have found him guilty. Our law

does not specify what may or may not be considered as mitigating evidence. Neither does our law

provide a formula for determining how much weight, if any, a mitigating circumstance deserves.

You may hear evidence which, in your judgment, has no relationship to any of the Special Issues,

but if you find such evidence is mitigating under these instructions, you shall consider it in the

following instructions of the Court. You, and each of you, are the sole judges of what evidence,

if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those

which have no relationship to any of the Special Issues, deserves.

In answering the Special Issues submitted to you herein, if you believe that the State has

proved beyond a reasonable doubt that the answers to the Special Issues are “Yes,” and you also

believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death,

then you shall answer at least one of the Special Issues “No” in order to give effect to your belief

that the death penalty should not be imposed due to the mitigating evidence presented to you. In

this regard, you are further instructed that the State of Texas must prove beyond a reasonable

doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted

before you.

These instructions are attached as Appendix 3.

During the closing arguments on the punishment phase, the prosecution emphasized the jurors’

obligation to answer the special issues truthfully. Reminding the jurors of voir dire, the prosecution insisted

on honesty:

Now, when we talked to you on voir dire, we talked to you about — and we spent a lot of time

talking to you to determine whether or not you could follow the law. You told us two very

important things when we talked to you. First ofall, you told us that in the appropriate case that

you could give the death penalty. Secondly, you said, ‘Mr. Nancarrow, Ms McDaniel, if you

prove to me that the answers to those special issues should be yes, then I can answer them yes.’

If you wavered, if you hesitated one minute on that, then I guarantee you, you weren't going to be

on this jury. We believed you then, and we believe you now.

SF 33:20.

On voir dire, the prosecution repeatedly asked prospective jurors, including jurors who ultimately

served, whether they could answer the special issues honestly and without attempting to achieve a particular

sentence — life or death. For example, in the voir dire of Lynn Bartholomew, who served on Mr. Smith’s

jury, the prosecution wanted to ensure that she would not engage in any sort of nullification in answering

the two special issues:

Q. You take them independent. You can take them in either order. You can start with the second

one first. They re just labeled one and two, but that doesn’t mean you have to take them that way.

You re supposed to take them independent of each other based on all the facts, let the facts

determine what the answer is. By that, | mean don’t answer them to get a desired result. Some

people say, ‘Well, if! find that he killed someone intentionally, | want him to die. So, I’m going

to answer these yes to get that result regardless of the facts.’ What we have to have are jurors that

will tell us despite the fact that I found him guilty of capital murder and wanting a specific result, I

will answer the questions based on the facts regardless of what the [sic] means, live or die. Do you

think you can do that?

A. Yes, I do.

Q. Just let the facts and the circumstances dictate the way the answers to the questions should be

answered regardless of the effect it has, either be a life or death sentence.

A. I think I could.

SF 20:184-85.’

The jury verdict form did not include any mention of mitigating evidence, or of the ability of jurors

to change their answers on the basis of such evidence, and asked only for answers to the two special issues:

After this colloquy, defense counsel appeared to recognize the tension between the nullification instruction, which

invited jurors to answer the special issues dishonestly in order to give effect to mitigating evidence, and the

prosecution's anti-nullification comments, which told jurors not to answer the questions untruthfully to achieve a

particular result. Accordingly, he sought to reassure Lynn Bartholomew that she could “change” one of her answers

without truly “cheating or lying”:

Q. ... Like the prosecutor was telling you, the court will indicate that if you believe through what’s called

mitigating evidence — that's really anything. It’s stuff that you could hear in the guilt-innocence phase; it’s

stuff that you could hear in the punishment phase; it’s the whole totality of circumstances — if you felt that he

shouldn't die, then you're authorized — actually the court says you shall, which is legal mumbo-jumbo for must,

change one of the answers from ‘yes’ to ‘no’ if you feel that he should not die. Do you have any problem with

that?

A. No.

Q. Okay. I mean, it’s not like you're cheating or lying or doing something —

A. No.

SF 20:205.

SPECIAL VERDICT NO. 1

Do you find from the evidence beyond a reasonable doubt that the conduct of the

Defendant, LaRoyce Lathair Smith, that caused the death of the deceased was committed

deliberately and with the reasonable expectation that the death of the deceased or another would

result?

In your verdict, your will answer “Yes” or “No.”

ANSWER: | [signature lines].

SPECIAL VERDICT NO. 2

Do you find from the evidence beyond a reasonable doubt that there is a probability that

the Defendant, LaRoyce Lathair Smith, would commit criminal acts of violence that would

constitute a continuing threat to society?

In your verdict, your will answer “Yes” or “No.”

ANSWER: [signature lines].

The jury verdict form is attached as Appendix 4. The jury answered both issues affirmatively, and Mr.

Smith was sentenced to death.

HOW THE ISSUES WERE DECIDED BELOW

On direct appeal, Mr. Smith raised a claim under Penry v. Lynaugh, 492 U.S. 302(1989) (Penry

/), arguing that the Texas special issues on deliberateness and future dangerousness did not provide an

adequate vehicle for giving effect to his mitigating evidence of low intelligence and turbulent family

background. The Texas Court of Criminal Appeals rejected this claim in an unpublished opinion without

discussion, relying on a previous decision that found a similar nullification instruction to be sufficient. Smith

v. State, No. 71,333, at 11 (Tex. Crim. App. June 22, 1994) (unpublished decision), cert. denied, 514

U.S. 1112 (1995) (citing Fuller v. State, 829 S.W.2d 191, 209 (Tex. Crim. App. 1992)).

In this state habeas proceedings, Mr. Smith again sought relief under Penry /, and the tal court

recommended that the claim be denied. The trial court recommended that the claim not be entertained

because it had been addressed on direct appeal; the trial court also concluded that Mr. Smith’s mitigating

evidence did not necessitate a supplemental instruction under the decisions of the Texas Court of Cnminal

Appeals.

Before the Texas Court of Criminal Appeals acted on the trial court’s recommendation, this Court

announced its opinion in Penry v. Johnson, 532 U.S. 782 (2001) (Penry I/). in Penry II, this Court held,

as in Penry I, that the special issues did not provide an adequate vehicle for the jury to give effect to the

defendant's mitigating evidence. More particularly, this Court found in Penry [/ that the Penry / problem

was not cured by additionally instructing jurors to answer the special issues dishonestly if they believed that

mitigating evidence justified a sentence less than death. 532 U.S. at 796-804. In light of this Court's

intervening decision in Penry I, the parties filed supplemental briefing on Mr. Smith’s claim regarding the

adequacy of the special issues and the supplemental nullification instruction to facilitate consideration of his

mitigating evidence. The matter was argued to the Texas Court of Criminal Appeals on March 22, 2002,

with the oral argument focused entirely on whether Penry / and Penry I] required state habeas relief for

Mr. Smith.

After oral argument in the Texas Court of Criminal Appeals but before that court issued its ruling

in this case, this Court granted certiorari in two cases involving the adequacy of the Texas special issues

to facilitate consideration of mitigating evidence. Smith v. Dretke, 124 S. Ct. 46(2003),’ and Tennard

v. Dretke, 124 S. Ct. 383 (2003). Although both of these cases potentially bore on the appropriate

resolution of Mr. Smith's claims,‘ the Texas Court of Criminal Appeals issued its opinion just before this

Court issued its decision in Tennard v. Dretke. 542 U.S. ---, 124 S. Ct. 2059 (2004).°

The Texas Court of Criminal Appeals concluded that Mr. Smith’s evidence of cognitive deficits

and a turbulent childhood did not require a supplemental instruction under Penry /. The Texas Court of

Cnmunal Appeals maintained that Mr. Smith had failed to establish the presence of a “severe and permanent

disability,” Smith, 132 S.W.3d at 414, and that he had “offered no evidence of any link or nexus between

his troubled childhood or his limited mental abilities and this capital murder.” /d. In this respect, the Texas

* Although the caption in the case is “Smith v. Dretke,” the defendant's real name in that case is Robert McBride and

1s IN NO way connected to LaRoyce Lathair Smith.

* The question presented in Smith v. Dretke read:

Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001) by imposing a requirement that

evidence demonstrate a ‘uniquely severe permanent handicap’ in order for a Texas capital murder defendant

to claim that the use of a ‘nullification’ instruction was improper?

The first question presented in Tennard v Dretke read:

Is the Fifth Circurt’s rule requiring a ‘nexus’ to the crime before evidence of impaired intellectual functioning

and judgment can be considered as mitigation for purposes of determining whether there is a violation of Penry

v. Lymaugh, 492 U.S. 302 (1989) (Penry J) inconsistent with the rationale of Atkins v. Virginia, 536 U.S. 304

(2002)?

$42 US. --, 1248. Ct. 2059 (2004). Smith v. Dretke was dismissed as moot pursuant to Rule 46.1 (agreement of the

parties) after the sentence of the petitioner (Robert McBnde) was commuted to life imprisonment. 124 S. Ct. 1652 (2004).

10

Court of Criminal Appeals fully embraced the test that was emphatically rejected by this Court’s recent

intervening decision in Tennard.° According to the Texas Court of Criminal Appeals, without a “prima

facie showing of a severe and permanent handicap, not of his own making, which is at least related to the

commission of the capital offense,” a defendant cannot pursue a claim challenging the failure of the special

issues to provide a vehicle for the consideration of mitigating evidence.

In addition, the Texas Court of Criminal Appeals asserted without discussion that the mitigating

qualities of Mr. Smith's cognitive limitations could be adequately addressed via the deliberateness special

issue. Smith, 132 S.W.3d at 414-415. (“{a}pplicant’s mental limitations were surely relevant to whether

he acted deliberately in committing this robbery-murder”). The court also maintained that Mr. Smith’s

troubled background and low intelligence might not necessarily require an affirmative finding to the

dangerousness special issue on the theory that Mr. Smith might be able to learn from his mistakes. /d. at

415. ;

in Mr. Smith’s case from the instruction rejected as inadequate by this Court in Penry I]. According to

the Texas Court of Criminal Appeals, the instruction in Smith's case unequivocally informed jurors of their

power and duty to nullify. The court stated: _

These instructions expressly authorized and required the jury to answer ‘No’ to at least one of the

special issues if it believed that the death penalty was not warranted because of the mitigating

° $24US. at --- (“We hold that the Fifth Circuit's ‘uniquely severe permanent handicap’ and ‘nexus’ tests are incorrect,

and we reject them.”).

circumstances. The trial court's instructions clearly informed the jury that mitigation evidence

‘trumped’ the special issues.

Smith, 132 S.W.3d at 416 (footnote omitted).

Although the Texas Court of Cnminal Appeals was unanimous in denying relief, four of the nine

judges rejected the court's effort to distinguish Penry //. Judge Hervey agreed with the majority that Mr.

Smith's evidence was not problematic under Penry /, but insisted that “the ‘nullification’ instruction would,

as a matter of federal constitutional law, suffer from the same defect as the one in Penry // had applicant

presented any mitigating evidence that was beyond ‘the effective reach of the sentencer.’” Smith, 132

S.W.3d at 425 (Hervey, J., joined by Keasler, J., concurring). Judge Holcomb concluded that Mr. Smith’s

evidence did require an additional instruction unde. enry / because evidence of his troubled background

reduced his moral culpability and yet “could only be aggravating” under the future dangerousness special

issue. /d. at 431 (Holcomb, J., joined by Price, J., concurring). He also insisted that the nullification

instruction was not meaningfully different from the instruction found constitutionally inadequate in Penry I/.

In particular, Judge Holcomb rejected the majority's contention that an explicit invitation to jurors to change

their answers to the special issues was sufficient to meet the Court’s concerns in Penry II:

Unlike the majonty, | do not find that the nullification instruction Smith received is significantly

distinguishable from the one reviewed by the Supreme Court in Penry I]. None of the differences

between the instructions in Penry // and the instant case alter the fundamental aspects of the vehicle

that was provided to the jury in an attempt to allow the jury to consider and give effect to the

: Judge Hervey also would have found Mr. Smith's claim unpreserved under state law. Smith, 132 S.W.3d at 423

(Hervey. J. concurnng). The mayonty decision, however. applied no procedural bar and resolved the matter entirely on

the ments of Mr. Smith's federal constitutional claim.

12

defendants’ mitigating evidence. This vehicle, not merely the description of it, was at the heart of

the Supreme Court’s reasoning in determining that the instruction in Penry I] was insufficient. The

Supreme Court made this clear by assuming the jury could have understood that the instructions

operated in the manner the State argued: by allowing the jury to change to a negative its answer

to one of the special issues based on something other than what the question asked. Therefore,

providing the same vehicle in more explicit terms does not overcome the defects identified in Penry

11.

Smith, 132 S.W.3d at 423 (Holcomb, J., joined by Price, J., concurring). (footnotes omitted).*

REASONS FOR GRANTING CERTIORARI

I. MR. SMITH’S EVIDENCE OF LIMITED MENTAL ABILITIES AND HIS

~ TURBULENT BACKGROUND COULD NOT BE GIVEN ADEQUATE MITIGATING

EFFECT VIA THE OLD TEXAS SPECIAL ISSUES AND THE TEXAS COURT OF

CRIMINAL APPEALS’ CONTRARY CONCLUSION IS WHOLLY UNDERCUT BY

THIS COURT’S SUBSEQUENT DECISION IN TENNARD V. DRETKE, 542 U.S. —,

124 S. CT. 2059 (2004).

The mitigating evidence in this case is remarkably similar to the evidence in both the Penry litigation

and Tennard v. Dretke. As in Penry and Tennard, Mr. Smith offered substantial evidence of cognitive

impairment and documented his impairment via extensive records and testimony. Like Penry, Mr. Smith

also introduced evidence of a difficult and abusive family situation and background. Mr. Smith’s evidence

tended to reduce his moral culpability, yet the former special issues in the Texas scheme offered no vehicle

for jurors to consider and give effect to such evidence. In fact, the very facts that reduced Mr. Smith’s

moral culpability — his limited intelligence and turbulent background — supported rather than undermined

. Judge Holcomb, like Judge Hervey, would have reyected Mr. Smith's claim on procedural grounds, see supra note 8,

notwithstanding the majyonty’s unwillingness to impose any procedural barner to Mr. Smith's claim.

13

affirmative answers to the deliberateness and dangerousness questions. In this respect, Mr. Smith’s

evidence was “double-edged” and actually undercut the jurors’ ability to truthfully answer the special issues

SO as to produce a sentence less than death.

The Texas Court of Criminal Appeals, invoking the test developed in the Fifth Circuit Court of

Appeals,” dismissed Mr. Smith's mitigating evidence because it did not amount to a “severe and permanent

handicap,” Smith, 132 S.W.3d at 415, and Mr. Smith failed to establish an appropriate “evidentiary link”

between his evidence and his crime. /d. at 414. In Tennard, this Court rejected precisely this reasoning,

declaring that “[t}he Fifth Circuit's test has no foundation in the decisions of this Court.” 542 U.S. at ---

(slip op. at 9). Mitigating evidence need not reach a severity threshold to require a vehicle for jurors’

consideration. As this Court said in Tennard, “the question is simply whether the evidence is of such a

character that might serve as a basis for a sentence less than death.” 542 U.S. at --- (slip op. at 12)

(internal citation marks and citation omitted). Moreover, a defendant need not establish any sort of

evidentiary link between his low intelligence and the crime in order for jurors to be able to give effect to its

mitigating qualities. Again, in Jennard, this Court explicitly rejected this sort of reasoning, stating that it

would not “countenance the suggestion that low IQ evidence is not relevant mitigating evidence . . . unless

the defendant also establishes a nexus to the crime.” 542 U.S. at --- (slip op. at 13).

* Smith, 132 S.\W 3d at 413 ("For more than ten years, the Fifth Circuit has drawn the line between Penry and non-Penry

mitigation evidence under the test of whether the defendant's criminal act was ‘due to the uniquely severe permanent

handicaps with which the defendant was burdened through no fault of his own.’”) (quoting Robertson v. Cockrell, 325

F.3d 243, 251 (S" Cir. 2003))

In addition, the Texas Court of Criminal Appeals’ bare assertion that Mr. Smith’s low intelligence

could be given adequate effect through the deliberateness special issue cannot be squared with Tennard.

Speaking of Tennard’s evidence of low intelligence, this Court declared that “(t]he relationship between

the special issues and Tennard’s low IQ evidence has the same essential features as the relationship

between the special issues and Penry’s mental retardation evidence. Impaired intellectual functioning has

mitigating dimension beyond the impact it has on the individual's ability to act del*herately.” 542 U.S. at —

(slip op. at 14). |

At the same time, the Texas Court of Criminal Appeals offered no plausible way in which Mr.

Smith’ s mitigating evidence would render him less dangerous so as to support a negative answer to the

second special issue. Instead, the court emphasized that Penry’s disabilities were more severe than Mr.

Smith’s and that Mr. Smith might be able to control his impulses in the future. Smith, 132 S.W.3d at 415.

At most, though, this sort of reasoning suggests that Mr. Smith’s evidence might not require an affirmative

answer to the second special issue; it in no way suggests that the second special issue would provide an

appropriate vehicle for responding to the mitigating qualities of Mr. Smith's evidence — that the jury could

regard such evidence as a basis for concluding that Mr. Smith would not be a danger. Indeed, the Texas

Criminal Court of Appeals concluded that Mr. Smith’s mitigating evidence might simply be irrelevant to the

second special issue: “There is no evidence that applicant was unable to learn from experience or unable

to control his conduct, with or without his disabilities.” /d. Accordingly, the second special issue did not

provide a vehicle for jurors to give effect to Mr. Smith's mitigating evidence, even if it ic possible that jurors

15

might have concluded, for reasons unrelated to his disabilities, that Mr. Smith would not be a danger

in the future.

Overall, the Texas Court of Criminal Appeals’ conclusion that Mr. Smith’s evidence was not

problematic under Penry / cannot withstand this Court's intervening decision in Tennard.

il THE NULLIFICATION INSTRUCTION IN MR. SMITH’S CASE WAS

INDISTINGUISHABLE FROM THE INSTRUCTION CONDEMNED IN PENRY V.

JOHNSON, 532 U.S. 782 (2001) (PENRY IJ) AND THE FAILURE OF THE TEXAS

COURT OF CRIMINAL APPEALS TO CREDIT THIS COURT’S ARGUMENTS IN

PENRY IT REQUIRES THIS COURT’S INTERVENTION.

Mr. Smith tral occurred during the interval between this Court’s decision in Penry / and the

modification of the Texas statute to allow for consideration of mitigating evidence unrelated to the special

issues.'’ In addition to the two special issues on deliberateness and dangerousness, the trial court also

instructed the jurors that they should answer at least one of the special issues “No” if they believed that the

death penalty should not be imposed due to the mitigating evidence presented even if the evidence had “no

relationship to any of the Special Issues.”'' Thus, the jurors were compelled to act dishonestly in order to

“ The new statute includes a “catch-all” special issue, asking “{w]hether, taking into consideration all of the evidence,

including the circumstances of the offense. the defendant's character and background, and the personal moral culpability

of the defendant. there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life

impnsonment rather than a death sentence by imposed.” TEX. CODE CRIM. PROC. ANN., ART. 37.071(2)(e(1) (Vernon

2003)

The full instruction. attached as Appendix 3. was as follows:

You are instructed that you shall consider any evidence which, in your opinion, is mitigating. Mitigating

evidence is evidence that reduces the Defendant's personal or moral culpability, or blameworthiness, and may

16

give effect to mitigating evidence. If they believed that the “true” answers to deliberateness and

dangerousness were “Yes” but also believed that the defendant should not receive the death penalty

because of mitigating evidence with “no relationship to any of the Special Issues,” they were required to

give a false answer “No” to one of the questions. In addition, as in Penry //, the verdict form given to the

jurors made no mention of mitigating evidence or the nullification instruction, but simply asked the jurors

to answer the special issue questions on deliberateness and dangerousness. '”

This Court unequivocally declared in Penry // that instructing jurors to answer one of the special

issues falsely to give effect to mitigating evidence “inserted ‘an element of capriciousness’ into the

sentencing decision, ‘making the jurors’ power to avoid the death penalty dependent on their willingness’

to elevate the supplemental instruction over the verdict form instructions. 532 U.S. 782, 800 (quoting

Roberts v. Louisiana, 428 U.S. 325, 335 (1976)).

include, but is not limited to, any aspect of the Defendant's character, record, background, or circumstances

of the offense for which you have found him guilty. Our law does not specify what may or may not be

considered as mitigating evidence. Neither does our law provide a formula for determining how much weight,

if any, a mitigating circumstance deserves. You may hear evidence which, in your judgment, has no relationship

to any of the Special Issues, but if you find such evidence is mitigating under these instructions, you shall

consider it in the following instructions of the Court. You, and each of you, are the sole judges of what

evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those

which have no relationship to any of the Special Issues, deserves.

In answering the Special Issues submitted to you herein, if you believe that the State has proved

beyond a reasonable doubt that the answers to the Special Issues are “Yes,” and you also believe from the

mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least

one of the Special Issues “No” in order to give effect to your belief that the death penalty should not be

imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the

State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the

mitigating evidence, if any, admitted before you.

'? The iuvy verdict form is attached as Appendix 4.

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A bare majonty of the Texas Court of Cnminal Appeals nonetheless purported to distinguish the instruction

given in this case from the instruction given in Penry //.'> According to the Texas Court of Criminal

Appeals, the saving grace of the instruction in this case was that it more clearly informed jurors of their

power to nullify than did the instruction in Penry //. According to the court “ the trial court’s instructions

clearly informed the jury that the mitigation evidence ‘trumped’ the special issues.” Smith, 132 S.W.3d

at 416. In Penrv II, though, the State made the same argument about the nullification instruction — that it

clearly conveyed the jury's power to nullify their answers to the special issues to give effect to mitigating

evidence.'* This Court assumed for the sake of argument that the nullification instruction was clear in this

regard, but still rejected the instruction because it put jurors in the “logically and ethically impossible”

position of choosing whether to answer the special issues honestly or follow the nullification instruction. 532

U.S. at 799.

’ The nullification instruction in Penry I] was as follows:

You are instructed that when you deliberate on the questions posed in the special issues, you are to consider

mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether

presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any

aspect of the defendant's character and record or circumstances of the crime which you believe could make a

death sentence inappropnate in this case. If you find that there are any mitigating circumstances in this case,

you decide how much weight they deserve, if any, and therefore, give effect and consideration to them in

assessing the defendant's personal moral culpability at the time you answer the special issue. If you determine,

when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to

the issue under consideration, rather than a death sentence, is an appropriate response to the personal

culpability of the defendant. a negative finding should be given to one of the special issues. See. 532 U.S. at

7R9-90

* See $32 US. at 798 (“Alternatively, the State urges. it 1s possible to understand the supplemental instruction as

informing the jury that 1t could ‘simply answer one of the special issues “no” if it believed that mitigating circumstances

made a life sentence appropnate regardless of its initial answers to the questions.’”) (quoting Brnef for

Respondent)

At the core of this Court’s opinion in Penry I] was the principle that jurors should not have to

answer questions dishonestly to give effect to mitigating evidence. The Texas Court of Criminal Appeals’

opinion unpersuasively suggests that jurors were not confronted with this dilemma in Mr. Smith's case

because the jurors were very clearly instructed to lie: “(t]he seston did not instruct the jury to violate

their oaths or answer either of the special issues ‘falsely,’ but rather to answer the special issues honestly

in light of both the question itself and the defendant’ s mitigating evidence which, as the trial court clearly

informed the jury, might or might not have direct relevance to those specific issues.” Smith, 132 S.W.3d

at 416, n33.'° Itis hard to fathom what the court means by answering the issues “honestly” in light of

evidence that has no relevance to the issues. If the jurors believed that the state had established

deliberateness and dangerousness beyond a reasonable doubt, the only means for the jury to give effect

to Mr. Smith’s mitigating evidence was to falsely answer that the state had not done so.

Moreover, the logical and ethical dilemma wrought by the nullification instruction was intensified

in this case by the prosecution’ s effort to counter its effects. During voir dire, the prosecution secured the

jurors promise to “let the facts determine” the answers to the special issues and not to “answer them to get

a desired result.” See, e.g., SF 20:184-85 (voir dire of Lynn Bartholomew). The prosecution again

reminded jurors of this promise during closing argument, insisting that if the prosecution proved “that the

'* It is telling that the Texas Court of Criminal Appeals finds support for this sort of argument not in the majonty opimon

of Penry II but in the dissent. See Smith, 132 S.W.3d at 416, n.33 (citing 532 U.S. at 806-07 (Thomas, J., joined by

Rehnquist, C.J., and Scalia, J., dissenting) (invoking dissenting opinion in Penry // as support for proposition that clear

nullification commands would satisfy the Constitution).

19

answers to those special issues should be yes” that the jurors must answer them accordingly. SF 33:20.

If a nullification instruction by itself injects arbitrariness and capriciousness in a capital trial, a nullification

instruction accompanied by an “anti-nullification” command surely cannot satisfy constitutional requirements.

Overall, the grounds on which the Texas Court of Criminal Appeals denied relief in this case were

explicitly considered and rejected in Penry // and the court's contrary conclusion implicitly challenges this

Court's authonitative constitutional interpretive role.'° If this Court believes that there is a plausible ground

for parsing different nullification instructions in the Texas capital context, this Court should grant certiorari

to resolve the confusion evident in the closely divided opinion in the Texas Court of Criminal Appeals. If,

on the other hand, this Court regards the Texas Court of Criminal Appeals decision as irreconcilable with

the letter and spint of Penry //, this Court should summarily reverse the decision below to give full effect

to its constitutional judgment.

"© One of the concurring opinions in the Texas Court of Criminal Appeals appeared to remark precisely on this question

of the Texas court's obligation to acquiesce in this Court's decisions: “{flinally having decided that no federal

constitutional violation occurred in this case, we may disagree with the United States Supreme Court that Texas jurors

are incapable of remembering, understanding. and giving effect to the straightforward and manageable ‘nullification’

instruction such as the one in this case.” But see Penry //, 121 8. Ct. at 1922-23.” Smith, 132 S.W.3d at 427 (Hervey, J.,

jyorned by Keasler. J.. concurring).

CONCLUSION

For these reasons, this Court should grant certiorari to ensure compliance with its

decisions in Penry / and Penry I]. Because of the unusual posture of this case and this Court’s

recent extensive efforts to clarify the Eighth Amendment rights at stake in the Texas capital

sentencing context, this Court should issue a summary decision reversing the decision of the

Texas Court of Criminal Appeals. In the alternative, this Court should grant certiorari and

schedule this case for briefing and oral argument.

Respectfully submitted,

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-1346

(512) 471-6988

Member of the Supreme Court Bar

Maurie Levin

Virginia Capital Representation

Resource Center

2421 Ivy Road

Suite 301

Charlottesville, Virginia 22903

(434) 817-2970

Member of the Supreme Court Bar

* Counsel of Record Attorneys for LaRoyce Lathair Smith

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