A One Sided View of a SCT Argument

Reviewing Oral Argument in Abdul Kabir FKA (sic) Cole v Quarterman, and Brewer v. Quarterman. Robert C. Owen for Petitioners.

The death cases have instructional value for several reasons. We demonstrate how questions of life and death are treated for the world to see, (apart from what we are NOT accomplishing in Iraq).

The transparency of our system of justice is commendable and remarkable. Death is different. AEDPA and legalistic points aside, these, as do all cases brought before the SCT, spotlight how our system "works" and does not work.

Remember that almost fifty individual prisoners on TX death row will be affected by this decision (have cases pending raising the same issue re the pre-1991 jury instructions). That it takes over 15 years to resolve the matter says something too. I'll let that speak for itself. We can only wish that justice was as speedy as the recent Presidential decision to begin re-utilizing FISA authority for wiretaps.

Preliminary Box Score:
Edward L. Marshall for Texas makes an interesting point about the AEDPA inquiry under Teague and clearly established law (pp 35). He relies on and desperately wants the Court to look at Graham and Johnson, rather than Penry, Tennard (pp 40). But Johnson unfortunately may have been a very narrow fact-based decision, and Owen suggests in any event that the language favoring the state's case must be read in context of other language that does not help it.

Summarizing, the question was whether the jury instructions permitted "meaningful" consideration of mitigating evidence.

Argument:
O begins with: Would the reasonable juror find evidence of mistreatment as a youth as reasons to find defendant more dangerous rather than less dangerous, contrary to the lower courts' earlier findings on this? O noted that the Fifth Circuit in December's Nelson decision (split decision BTW) turned away from its prior position and followed the Court's guidance under Tennard and Smith. For that reason counsel had requested the Court vacate and return the case for reconsideration in light of Nelson.

But Nelson is likely to be challenged, said Ginsburg, resulting in delay.
Stevens thought that these cases are different and there was no reason to wait to decide them. So after about five or ten minutes O turned to the merits (pp7).

CJ Roberts first wanted to compare the evidence with that in Penry. This is precisely how law is made and he gets right to it. Is the case similar enough to follow or different enough to distinguish? He suggested these were "closer" cases. Owens, not conceding that calls them "different" but not closer, returning to the suggestion that the evidence made defendants out to be more not less dangerous (therefore, not mitigating). This is important because the question is whether the instructions permitted a reasonable juror to consider the evidence AS MITIGATING, apart from the question of future danger.

Justice Ginsburg next offers that the evidence even if not as strong as Penry's still really does fall into the category of MITIGATING (only if considered as such under the Tennard line of cases.)

Scalia notes Tennard post-dates the State court decisions in these cases. This is important because under AEDPA the question is whether the State court's decision was "unreasonable". It was Johnson and another case which the State court purported to be following at the time of its ruling. O points out that the Tennard dicta was made in the context of a COA qn. (misunderstanding the thrust of Scalia's remark -- the State decided Tennard in 1997).

When Scalia points out that Tennard did not overrule Johnson, O points out that in Johnson, the evidence in qn was limited to defendant's youth which is coextensive to dangerousness and mitigation, contrary to the cases at bar.

J Alito wants to know more about the similarities with Johnson, and Roberts goes to the specific evidence in Brewer's case, and thinks it is quite different than Penry.

O directs the justices back around to the question at hand, that evidence of mental impairment raises a probable inference of dangerousness in Tennard and Penry, as in the cases at bar.

Roberts makes the point that an absence of a "similar prosecutorial statement in the Cole case cuts against you" (getting very parsimonious in the differences--for Roberts, it is not just the evidence, its nature and character or the lack of it, but also how or if it was presented IN THE LOWER COURTS -- in this instance he felt that the absence of the prosecutor telling the jury about the "mitigating" evidence that O argues the reasonable juror would feel makes defendant more dangerous makes Cole different than Brewer's).

Is it reasonable to make such a fine distinction? How about: My lawyer was tongue-tied at trial, or the prosecutor mucked up and forgot to make a point or two. It is all in what you believe the proverbial "reasonable juror" could objectively believe. Are judges truly qualified to answer that as a matter of "science"? Regardless, these are the sorts of things judges do day-in and day-out. If not judges, do we need psychiatrists for that? I suppose the great thing about American justice is that common sense should prevail, so we appoint and elect judges and justices to define that for us. After all, that is why we call it "common" sense. What a system. Does it work? For whom does it work best? (IMO judges should be drawn from the commuity, receive expense pay only, and go back to their day jobs periodically to re-discover common sense and experience a little humanity and humility. I think I know more than a few lawyers who could benefit too).

Roberts wants very much to believe that a juror COULD, IF SHE WISHED TO, have considered the evidence mitigating. But this does not appear to follow the Court's precedent in Tennard, Penry, but to essentially re-litigate the question whether mental impairment and/or mistreatment creates an inference of dangerousness unless provided a way to be considered as categorically and specifically mitigating. Texas, recognizing the weakness, had reformed this shortcoming by changing the instruction set, in 1991, to allow for that.

Roberts then notes Penry did not establish an absolute rule and thinks maybe O is arguing for such. pp19

O responds that no, the Court need only enforce Penry for Brewer to prevail.
Scalia wants more about the deferential review and O responds that yes, the State court chose between applying the Penry line or the Graham, Johnson and chose wrong. Not only that, the choice was "objectively" unreasonable, he concluded, as necessarily he must.

That is what AEDPA has done for us.

NB. I'll let somebody else do Ed's argument. But if somebody wants it from me my standard hourly rate is $625/hr. That's a joke. [At that rate I'd pay off my student loans in no time, but I wonder why that's not happening].

The tranny is here. (and it is not a GM, Ford or Toyota model -- I prefer Mazda myself).