Particularly interesting becasue on Wed, October 11, the Court of Criminal Appeals is considering another Penry-type issue in Ex parte Hood.


Killer's death sentence back in court By MARK SHERMAN, Associated Press Writer
Fri Oct 6, 6:52 PM ET

The Supreme Court agreed Friday to review for the second time the death penalty case of a convicted Texas killer whose sentence justices previously overturned.

LaRoyce Lathair Smith, condemned to death for the 1991 murder of a Taco Bell manager in Dallas, won a Supreme Court ruling in 2004 setting aside the death sentence because jurors in his trial did not consider his learning disability and other evidence.

The ruling was one of four in the span of two years where justices overruled lower courts in a death penalty case from Texas, which has executed more people than any other state.

In March, however, the Texas Court of Criminal Appeals reimposed Smith's death sentence after it concluded that any problems with the jury instructions were harmless.

Smith's victim, 19-year-old Jennifer Soto, was pistol-whipped, shot and stabbed with a butcher knife.

The legal battle has been over Smith's punishment, not his guilt.

The case hinges on a form of jury instructions no longer in use but which imposed the death penalty if jurors decided a defendant was dangerous and carried out a deliberate murder.

The Supreme Court, in an unsigned 7-2 ruling, agreed with Smith that he deserved a new sentencing because the jury questions didn't consider reasons that the jurors might have spared him. Those include that he had an IQ of 78 and a father who was abusive, addicted to drugs and who stole from the family.

"There is no question that a jury might well have considered (Smith's) IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death," the court said in 2004.

Justices Antonin Scalia and Clarence Thomas dissented from the ruling. Chief Justice John Roberts and Justice Samuel Alito were not on the court at that time, but five other justices who are still serving were part of the majority in 2004.

Four former federal appeals court judges joined Smith in asking the high court to take the case for the second time. The former judges � John Gibbons, Timothy Lewis, Abner Mikva and William Norris � said the court should make clear to lower courts that they "must comply with this court's mandates and must not invent new procedural obstacles to avoid compliance."

Texas urged justices to let the lower court ruling stand, saying it complied with the 2004 decision.

The case is Smith v. Texas, 05-11304.

Unfortunately, it likely is not a good signal that cert was granted. When is the last time the SC granted cert to tell the CCA it did a good job? There seems to be an institutional bias against trusting the harmless error analysis of a state court.

The issue seems to be this: could the CCA reaffirm the punishment upon the remand of the SC. The SC's original opinion reversed the case for charging error. And then, the SC remanded it back to the CCA. That would seem like an odd decision if they didn't mean for the CCA to continue to evaluate the case.

Of course, a similar signal was sent to the federal 5th Circuit a few years back when a case was remanded on a Batson issue. It seems the 5th Circuit had the freedom to reaffirm, but the SC simply reversed it a second time.

This seems to happen when the SC feels like its authority as the court of last resort is threatened.

But the CCA in Smith was careful to affirm the punishment on a state law question of applying a harmless error rule for unpreserved jury charge error. Now we shall see if the SC thinks the constitution imposes a particular harmless error rule, regardless whether anyone preserved the error.

That strikes me as an invasion of a state law issue by a federal court. Good luck to Dallas appellate lawyers on preserving state rights.