Smith, Robert v. Dretke, Doug, Dir., Texas Dept. of Criminal Justice

Questions presented: Whether the 5th Circuit Court of Appeals misapplied Penry v. Johnson by imposing a requirement that evidence must demonstrate "a uniquely severe permanent handicap" in order for a Texas capital murder defendant to claim that a nullification instruction was improper?

BY DORI ROBAU, MEDILL NEWS SERVICE

When Robert Smith set out to rob a Houston clothing store, he never thought it might cost him his life.

On May 15, 1990, Smith, 23 at the time, and an accomplice held up the store clerk at gunpoint and forced her to give them money from the cash register. While the two robbers were focused on getting their hands on the cash, the clerk moved Smiths car keys from the stores counter where he had left them.

The armed men fled the store with their loot, but without their car keys.

As the burglars ran to their car, they tried to throw off a nearby security guard by telling him they were running away from a fire at the clothing store. Skeptical of the two men, the guard watched them as they got to their car, and could not find their keys. The guard heard them talk profanely and take off running.

Soon after, the security guard heard about the robbery. Connecting the two men with the burglary at the store, the guard got into his car and chased the robbers. Pursued by the security guard, the two men jumped a fence into an abandoned trailer park.

Inside the lot, James Wilcox was sitting in his pick-up truck. The armed men jumped into Wilcoxs car and asked him to hide them from the police. Wilcox refused, grabbing Smith's arm and leg. Smith shot Wilcox in the arm in order to get the man to let go of him, but the bullet passed through the arm into the chest cavity, killing Wilcox.

The two robbers continued to flee the scene, leaving Wilcoxs body near the abandoned truck. Smith and his accomplice were found in a wooded area near the shooting. Smith confessed to both the robbery and the shooting.

Two days later, George Parnham was appointed to represent Smith in the case. Carlos Correa, who did not know Parnham, was appointed to co-counsel.

Parnham tried to convince Smith to accept a plea bargain, but the defendant wanted his day in court before a jury.

In August of 1990, Smith was indicted for capital murder in the shooting of Wilcox during the course of flight from an armed robbery. He was convicted of capital murder in January 1992, and was sentenced to death.

The Court of Criminal Appeals upheld Smiths conviction and sentence on direct appeal.

In 1997, Smith filed an application for writ of habeas corpus with a Texas state court. The court held a habeas corpus hearing to consider Smith's claim of ineffective assistance of counsel and recommended that the Court of Criminal Appeals deny Smith's claims for habeas corpus relief.

Smith had claimed that Parnham failed to investigate and present mitigating evidence during his sentencing hearing that could have proven that Smith was borderline mentally retarded and had a neurological brain injury.

In November 1999, Smith filed a skeletal petition for federal habeas relief with the District Court for the Southern District of Texas. On Oct. 31, 2001, the federal court granted Smith's request for habeas relief on two grounds: ineffective assistance of counsel under the 1984 Supreme Court opinion in Strickland v. Washington, and the jurys inability to consider Smiths mitigating evidence during the sentencing under the Court's 1989 opinion in Penry v. Lynaugh.

In a 48-page opinion, a 5th Circuit Court of Appeals panel unanimously reversed, denying Smith's request for federal habeas relief.

In denying Smith's claim of ineffective assistance of counsel under Strickland v. Washington, the 5th Circuit concluded that the Texas courts had adequately considered the ineffective counsel issue. The court pointed to testimony about Smith's borderline retardation, about his IQ level being in the 60-70 range, and to the expert testimony that characterized his condition as one of antisocial reaction rather than mental retardation.

The court also rejected the argument that trial counsel's representation was objectively unreasonable because he did not adequately investigate and develop evidence about a head concussion Smith had as a child.

The second issue addressed by the court was the jurys inability to consider mitigating evidence. At the time of Smith's original trial, the standard jury instruction in a capital murder case included a "nullification instruction." With this, the jury was asked to consider "all relevant mitigating circumstances, if any, supported by the evidence presented in both phases of the trial. A mitigating circumstance may include, but is not limited to, any aspect of the defendants character, background, record, emotional instability, intelligence, or circumstances of the crime which you believe could make a death sentence inappropriate in this case."

However, in Penry v. Johnson (Penry II), the U.S. Supreme Court in 2001 held that the nullification instruction "did not permit the jury to give effect to a defendants constitutionally relevant mitigating evidence."

In its opinion, the 5th Circuit stated that to raise a Penry problem, "the evidence must show (1) a 'uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,' and (2) that the criminal act was attributable to this severe permanent condition."

The 5th Circuit did not consider Penry II because it did not find that there was sufficient evidence to be considered mitigating evidence under Penry I.

On Sept. 30, 2003, one week before the start of the 2003-04 term, the U.S. Supreme Court accepted review in the case, and two weeks later, on Oct. 14, the Court accepted review in another Texas capital case relating to mental retardation, Tennard v. Dretke, and consolidated them.

"This case hinges on Penry v. Johnson," Cochran said. "At the time [Smith] was tried, Texas had not amended its statute to have a specific question to determine whether mitigating circumstances could spare a mans life."

"Nothing in either Penry decision says anything about the severe permanent handicap. Finally, the Supreme Court is reviewing the issue," Cochran said.

On March 18, 2004, four days before the case was to be orally argued, the Court dismissed the appeal. Both parties stipulated that the case should be dismissed as moot after Texas Gov. Rick Perry conceded that Smith is retarded and commuted his death sentence to life in prison.