Fish for Dinner, the B vitamins kicking in now

A Review of the Smith v. Texas Transcript (took much too long):

Jordan Steiker, Esq., batting for Petitioner Smith: harmless error analysis under state law, "when it's predicated on a misunderstanding of Federal constitutional law, is not an independent basis for decision." It's "clearly wrapped up in the Federal claim," pp8.

Issues:
1. Court can/not find error was harmful.
2. There was/not significant mitigating evidence in the case.

Some of the Argument and background: The Supreme Court had ruled earlier that the jury could not fully consider the mitigating evidence under the nullification jury instruction set. On remand the CCA erred and said otherwise, and Petitioner appealed again. Now, up before the Court a second time, Texas argued that its error was conceded (which was a point of contention in the argument). That contrasted with the alternative possible view that CCA ruled Petitioner had been procedurally barred by not entering a proper and timely objection to the nullification instruction (a view held by 4 of the CCA justices and not contradicted by the majority), in which event the merits had not been decided and the Court could now rule de novo; a ruling by the lower court on the merits would require the Supreme Court to give deference to the lower court's findings of fact and conclusions of law. By arguing that the error was harmless under the state standard, Texas sought to paint that determination of harmlessness, and the error, as an independent and adequate state ground and thus untouchable on federal review.

Discussion: Did Petitioner allege a federal constitutional violation? If he did so then regardless of whether the State's curve ball came in high and wide and independent state grounds existed for the State's decision to the contrary, the constitution has been violated. Ball one. Constitutional violations are not necessarily excused by contrary or independent state court rulings. Ball two. The nub is thus whether Smith's allegations on the record supports his claim. Ball three. The claim? That the nullification instruction set violates the constitution and is/was not cured, in that it cannot allow the jury to give full effect to mitigating evidence. Ball Four and walked. As much as some on the Court would like to let States to employ independent and adequate state grounds reviews I do not see how the Court could reverse itself and not grant Petitioner's claim this time as well. Bases loaded.

Hat tip to SCOTUSblog for the link to the tranny and to Aaron Streett of Baker Botts, whose recent post on Gonzales v. Duenas-Alvarez, 05-1629 is here, (on Prawfblawg) for the inspiration.
Dahlia Lithwick here on Day to Day at NPR on the Smith case. (HT Howard Bashman).
My earlier post on the case here.