Abdul-Kabir, Jalil v. Quarterman, Nathaniel (Dir. TX Dept. of Criminal Justice) / Brewer, Brent Ray v. Quarterman (04/25/2007)

Questions presented: (1) Do the former Texas 'special issue' capital sentencing jury instructions -- which permit jurors to register only a 'yes' or 'no' answer to two questions, inquiring whether the defendant killed 'deliberately' and would probably constitute a 'continuing threat to society' -- permit constitutionally adequate consideration of mitigating evidence about a defendant's mental impairment and childhood mistreatment and deprivation, in light of this Court's emphatic statement in Smith v. Texas..., that those same two questions 'had little, if anything, to do with' Smith's evidence of mental impairment and childhood treatment? (2) Do the Supreme Court's recent opinions in Penry v. Johnson (2001) and Smith, both of which require instructions that permit jurors to give 'full consideration and full effect' to a defendant's mitigating evidence in choosing the appropriate sentence, preclude the 5th Circuit from adhering to its prior decisions -- antedating Penry II and Smith -- that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant's mitigating evidence? (3) Has the 5th Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for 'constitutional relevance' that this Court emphatically rejected in Tennard v. Dretke? (4)Where the prosecution, as it did here, repeatedly implores jurors to 'follow the law' and 'do their duty' by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way the prevented them from fully considering and giving effect to the defendant's mitigating evidence?

BY KRISTIN MARKWAY, MEDILL NEWS SERVICE

They were murderers for small change.

Jalil Abdul-Kabir, formerly known as Ted Calvin Cole, took $20 from his victim, using it to buy bacon and beer. Brent Ray Brewer stole $140 from his victim, but didn't spend any of it before getting caught.

Both men were convicted of their crimes in Texas and sentenced to death. In the nearly two decades since, the men have separately been arguing that their death sentences were unwarranted because the jury couldn't take into consideration mitigating factors in each case, including their individual mental impairments.

Abdul-Kabir is said to have "organic neurological defects" and a lack of impulse control as a result of a troubled childhood. Brewer was hospitalized for depression three months before his crime was committed and also has a childhood history of physical abuse.

They both argue the jury's imposed death sentence is unreasonable. Because of the similarities, the two cases were combined to be heard before the U.S. Supreme Court.

After their convictions and sentencing, both men appealed their cases through the Texas courts system, arguing that Texas's jury questions before sentencing were too limited.

Each jury was asked to consider whether the crime was done deliberately and whether the man would continue to be dangerous in the future. If the jury answers yes to both questions, they are told to impose the maximum sentence. The men argued these two questions did not allow the jurors to consider their special circumstances.

Both men lost their appeals at every level, including the 5th Circuit Court of Appeals. At that time, in 2004, the Supreme Court agreed to hear the cases, but in light of its decision in Penry v. Johnson, the justices immediately sent the cases back to the 5th Circuit to be heard again.

Penry v. Johnson held that the Texas jury instructions were inadequate and did not provide an opportunity for jurors to weigh mitigating circumstances, such as mental illness, when deciding on a sentence.

On re-hearing, the 5th Circuit again denied both men's Penry claims.

The 5th Circuit concluded that Abdul-Kabir's diminished impulse control did qualify as mitigating evidence under the Court's Penry standard. However, the 5th Circuit disagreed that jurors could not weigh the mitigating evidence under the two special questions.

"Specifically, the jury could have considered Cole's family background and organic deficiency under at the least the future dangerousness special issue, the 5th Circuit panel said in its opinion.

On rehearing Brewer's case, the 5th Circuit determined that his depression was not a long-term or permanent disorder, and could be easily considered by the jury under the two special questions.

"There does not appear to be one iota of evidence suggesting either that Brewer's condition is permanent or that he experienced cognitive limitations of any sort as the result of it," the 5th Circuit said in its opinion. "A jury can adequately incorporate evidence of short-term mental illness and substance abuse into its decision calculus."

In the men's petitions to the Supreme Court, they argued their mitigating circumstances were "out of the reach of the jury" because of the limiting special questions. They also pointed to the 5th Circuit's "suffocating narrow reading" of Supreme Court precedents and the circuit's habit of crafting new "screening tests," such as distinguishing between long and short-term mental illnesses, as reasons to grant certiorari.

The replies to the men's petitions said the 5th Circuit was justified in making its ruling. Lawyers on behalf of the Texas Department of Corrections argued that any other decision would require the Court to abandon its precedent in Jurek v. Texas, which held that Texas' sentencing system did allow jurors to consider mitigating circumstances.

It also said the Court has to take into consideration the jurors abilities to consider all of the factors at stake, and argued that ability can correct any deficiencies in the questions.

"Moreover, as this Court has held, jurors are presumed to apply their common sense in rendering their verdicts. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting," the petition stated.

In their last petition, lawyers for Abdul-Kabir argued the state department misplaced the importance of mitigating factors.

"The 'relevant mitigating quality' of an abused background or mental disorder is not that it makes the defendant less dangerous, but that it reduces his moral culpability. That aspect of the evidence is not captured in any way by the fact that there may exist some remote possibility that the disorder may become less severe as the years pass," it stated.

These two cases joined two others - Smith v. Texas and Ayers v. Belmontes - that the Supreme Court agreed to hear on the topic of mitigating factors.

On Oct. 13, 2006, the Supreme Court accepted both cases for review and consolidated them. The Court allowed Abdul-Kabir and Brewer to have their cases heard without costs.

A month later, on Nov. 13, the Court issued a divided opinion in Ayers v. Belmontes, holding 5-4 that California's jury instruction was consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.

In a panel discussion at the McCormick Tribune Freedom Museum in Chicago, Adam Samaha, an assistant professor of law at the University of Chicago, said many people are probably over-exaggerating the importance of the cases, and that they are fairly easy for the Court to take, because "not a huge amount is usually at stake."

"They're tinkering with the machinery of death here, as Blackmun said," Samaha said. "The state can always change their administration."

Samaha said that even if the Court finds a constitutional problem, it would not necessitate any drastic change. Those cases affected by the ruling might have their death penalties revoked, but the prisoners would remain incarcerated.

Samaha's colleague, Adam Cox, also an assistant law professor, said the Court may have accepted so many similar cases because there is a bi-partisan coalition, including Justice Antonin Scalia, with an interest in deciding cases that deal with juries. The Court only needs four votes to accept a case.

On April 25, 2007, the Supreme Court, in separate 5-4 decisions, overturned the death sentences of Brewer and Abdul-Kabir.

Justice Anthony Kennedy proved to be the swing vote again, joining Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens in the majority in these cases as well as Smith v. Texas, a state death penalty case.

Although the Court heard the two cases in a consolidated hearing, the majority wrote separate decisions, while the dissent filed opinions applying to both.

In the majority opinion in Brewer, Stevens chastised the appeals court’s conclusions, writing that in both cases the 5th Circuit failed “to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury must be allowed not only to consider such evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.”

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., welcomed the Court’s rulings.

“In a series of three consistent decisions, the U.S. Supreme Court made it abundantly clear that Texas’ former death penalty statute was unconstitutionally restrictive in dealing with certain types of mitigating evidence,” Dieter said. “Today’s rulings will require new sentencing hearings for the inmates involved, and possibly for others on Texas’ death row who were sentenced under similar circumstances.”

Writing for the four dissenters, Chief Justice John Roberts took issue with the majority rationale, arguing that the lower courts have made good faith attempts to adhere to Supreme Court guidelines on this matter.

“This court had considered similar challenges to the same instructions no fewer than five times,” the chief justice wrote, adding: “When the state courts considered these cases, our precedents did not provide them with ‘clearly established’ law, but instead a dog’s breakfast of divided, conflicting and ever-changing analyses.”

Justice Antonin Scalia, joined by Justice Clarence Thomas and – in part – Justice Samuel Alito, also wrote a dissent, emphasizing his view that “clearly established law” in favor of the state governed these cases.