Oregon State Bar Bulletin — JUNE 2004

Messin’ with Texas?
Using the Lone Star state as a guide for getting review granted
By Jeff Bleich & Anne Voigts

In recent years, the best way to ensure that you will be immortalized in the pages of the Supreme Court Reports is to serve as the director of the Texas Department of Criminal Justice. For most people, being a party in even one case before the Supreme Court in their lifetime is a remarkable event. This year, however, of the 81 cases before the Court, four bear the name of the current Texas correctionals director, Douglas Dretke: Banks v.. Dretke, Smith v. Dretke,1 Tennard v. Dretke, and Dretke v. Haley. In each case, the Court appears likely to consider not only whether Texas violated a criminal defendant’s rights, but also whether Texas officials went too far in ignoring, condoning or even capitalizing upon constitutional violations.

While Texas still wins far more than it loses in the lower courts, it has increasingly drawn rebukes in the Supreme Court for over-aggressive reading of past precedents and resistance to following adverse decisions. Over the past few terms, the Court has encountered cases in which Texas prosecutors rebuffed Supreme Court directions to revise their jury instructions, withheld material exculpatory evidence and admitted to confining people who it knew were ineligible for the sentences they received. In supplying 5 percent of the Court’s case load, these cases provide a useful guide to other states for how to get review granted.

If at first you don’t succeed, act like you did anyway
Much of the relationship between Texas criminal justice officials and the Court in the past 15 years can be summarized in three words: John Paul Penry. Mr. Penry is a mentally retarded man. Over the past 15 years he has twice been sentenced by the Texas courts to die. During that same period both of those death sentences were reversed by the Court because Texas failed to properly instruct a jury about its duty to consider evidence of Penry’s retardation and the severe abuse he suffered as a child. This term, two more cases from Texas raise issues about Texas’ procedures in capital cases involving mentally retarded defendants.

The John Paul Penry saga began in 1989 with Penry v. Lynaugh (Penry I). In Penry I, the Court reversed Penry’s death sentence on the ground that the jury had not been allowed to consider, among other things, evidence of his mental retardation as a factor that mitigated against imposing the death penalty, and that this violated the Eighth Amendment. At Penry’s first capital murder trial, the Texas jury was instructed to answer three statutorily-mandated "special issues," and advised that if those special issues were met, Penry would receive the death penalty. Although Penry introduced extensive evidence of his mental retardation and severe abuse as a child, the jury was never instructed that it could consider or take into account the evidence of Penry’s retardation as a mitigating factor. Rather, as the Supreme Court concluded, the three special issues allowed the jury to take this information about Penry’s condition into account, if at all, only as an aggravating factor. The Court, per Justice O’Connor, vacated his sentence, and confirmed its previous holdings that, in a capital case, the jury must be able to consider and give effect to mitigating evidence in imposing sentence. But that was just the beginning.

In 1990, Penry was retried and again found guilty of capital murder. Once again, during the penalty phase, the defense introduced extensive evidence of Penry’s retardation and the abuse he suffered as a child. Once again, the Texas court instructed the jury to determine Penry’s sentence by answering the same three special issues put before the jury in Penry’s first trial. Once again, the jury was instructed that an affirmative finding on each of the three issues would result in a death sentence. The jury was also given a "supplemental instruction" that, when deliberating on the special issues, the jury was to consider mitigating evidence and give effect to any such evidence in answering the special issues: the same issues that the Court had already found required a jury to consider retardation and childhood abuse as aggravating factors.

The Supreme Court granted cert again in 2000 to consider the adequacy of virtually the same jury instructions that had resulted in the same death sentence for the same mentally retarded man. In an opinion again authored by Justice O’Connor, the Court reversed, and held that Texas’ "supplemental instruction" failed to meet the requirements of Penry I. The Court noted that just as before, Penry’s mitigating evidence still did not fit within the scope of the special issues, and that "it would have been both logically and ethically impossible for a juror to follow both sets of instructions." In an unusually sharp rebuke to the Texas courts, the majority opinion termed any determination that the jury instructions in Penry II satisfied the mandate of Penry I "objectively unreasonable," and reversed and remanded the case.

But despite the rebuke in Penry II, and despite a still later case holding that execution of mentally retarded persons is cruel and unusual punishment, Texas still seems reluctant to follow the dictates of Penry I and Penry II about executing mentally retarded people. This term, in Tennard v. Dretke the Court will consider Texas’ claim that a jury need not consider evidence that a defendant is mentally retarded unless it is shown that the crime was caused by the retardation.2 That case raises concerns not only about the legal issue in question, but also whether Texas’ rules were constructed as an end-run around the Court’s rulings.

Punish Harshly Regardless of the Offense
A second way that Texas appears to have improved its chances of Supreme Court review is by punishing conduct that no other state punishes, and punishing people beyond what their own law permits.

Texas’ enforcement of its anti-sodomy statute provides a good example. As of 2003, only nine states had sodomy laws on the books, and many people had assumed that even those states would not actually enforce them. However, in a case decided that same year, Houston police entered a private apartment to investigate a "disturbance" and observed a man having sex with another man. The petitioners were adults at the time, and their actions had been both private and consensual. So the officers arrested them. They were held in custody overnight for engaging in homosexual sodomy, and then actually charged and convicted of that offense. In an opinion authored by Justice Kennedy, the Court found the sodomy statute violated the Constitution because the Texas statute furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Texas also sought (and received) review this term for seeking to incarcerate a defendant for 14 years longer than state law allows. In Haley v. Dretke, Texas seeks to keep Michael Wayne Haley in prison for a three-strike sentence when everyone — including the state of Texas itself — agrees that Haley never committed a third qualifying strike. Despite conceding that Haley is actually ineligible to serve his sentence of 16 and one-half years (when the maximum for which he was eligible was two years), Texas argued that Haley is not entitled to any relief at all. After losing to Haley, who was proceeding pro se, in both the district court and the 5th Circuit, Texas then petitioned for certiorari, which was granted. At oral argument, both Justice Kennedy and Justice O’Connor asked the solicitor general of Texas why the state did not just let Haley go now that he had served more than his two years. The state explained that it was a matter of principle, that federal courts should not interfere with Texas’ rules.

On May 3, 2004, the Court vacated the 5th Circuit’s decision with instructions that the courts should have considered Haley’s substantial and undefaulted ineffective assistance claims before reaching out to decide the unresolved issue on review. The majority based its decision in part on Texas’ belated concessions at oral argument about the strength of those other claim, and the lack of prejudice in pursuing them first—concessions that the majority not only paraphrased, but also quoted at length. Indeed, just to make sure there was no doubt about Texas’ position, the majority noted that: "because petitioner has assured us that it will not seek to reincarcerate respondent during the pendency of his ineffective assistance claim, Tr. of Oral Arg., at 52 (‘(T)he state is willing to allow the ineffective assistance claim to be litigated before proceeding to reincarcerate (respondent)’), the negative consequences for respondent of our judgment to vacate and remand in this case are minimal." Justices Stevens, Kennedy and Souter, who dissented, would have gone further, and condemned Texas for even pursuing the matter once it became evident that Haley had received the wrong sentence. As Justice Kennedy put it, "(e)xecutive discretion and clemency can inspire little confidence if officials sworn to fight injustice choose to ignore it."

Don’t Disclose Your Misconduct Unless You Are Caught
The first Dretke case decided this term concerned Texas’ claim that it is the defendant’s responsibility to discover the prosecution’s misconduct in withholding exculpatory evidence, and that the prosecutor need not voluntarily disclose its unlawful action. The case arose out of a murder near Texarkana, Texas. Police convicted Delma Banks, Jr. after the murder weapon was found in a residence he had visited in Dallas. A man at the residence, Charles Cook, claimed that Banks left the gun at the residence several days earlier. Banks, who had no prior criminal record of any kind, was then tried for capital murder. At trial, the state withheld evidence that Banks could have used to discredit Cook and another key prosecution witnesses—first, that the prosecution had coached Cook about his testimony and had not corrected the record when Cook repeatedly lied about this on the witness stand; and second, that one of the state’s two penalty-phase witnesses was a paid informant. The state continued to conceal both these links to the police and prosecution on Banks’ appeal and throughout all state proceedings.

In 1996, Banks filed a federal habeas petition, alleging, inter alia, that the state had withheld material, exculpatory evidence. In support of his motion for an evidentiary hearing, Banks attached affidavits from the two witnesses: the paid informant admitted that he had cooperated with the police out of fear that he would be arrested on drug charges, that he had been paid $200, and that he had set Banks up by convincing him to drive to Dallas to retrieve a different gun (i.e., not the murder weapon). Cook, on the other hand, admitted that he had participated in practice sessions to review his testimony at which the prosecutors told him that he either had to testify as they wanted or face life in prison. At the federal evidentiary hearing, the police acknowledged for the first time that the one witness was a paid informant, and that Cook’s testimony had been extensively rehearsed with the state. Nevertheless, Texas argued that Banks was not entitled to relief, because Banks failed to discover during trial what the prosecution had affirmatively concealed.

That things were not going well for Texas in the Supreme Court became obvious with one of the first questions asked by Justice O’Connor, who inquired: "This is a bit of an aside, but do you know whether any disciplinary proceedings were ever brought against the prosecutors?" And indeed, in its subsequent opinion, the Court concluded that Banks was entitled to a new trial because he had shown both cause for his failure to develop the facts in state court and prejudice resulting from that failure. As the Court noted, the state had misled Banks by initially denying that the witness was an informant and that Banks’ arrest was a set-up. This drew yet another sharp rebuke to Texas. In its opinion, the Court characterized the state’s argument as being, "in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence.’" The Court condemned this approach, noting that "[a] rule … declaring a ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process." By a 7-2 margin, the Court concluded, when police or prosecutors conceal significant exculpatory or impeaching material in the state’s possession, it is ordinarily the state’s responsibility to set the record straight.

Deep In the Heart of Texas
The fact that the Court has reviewed so many Texas cases may have more to do with the expectations placed on some Texas prosecutors than on a real desire to have their cases scrutinized by the Court. Texas has a record of taking some relatively extreme positions in many other courts besides the Supreme Court. Thus, for example, in one particularly notorious death penalty case, Texas argued that a man whose lawyer slept through long portions of his trial had still received effective assistance of counsel. The state had also argued at trial that death was warranted because life imprisonment was a less severe punishment for gays than for heterosexuals. (The defendant was on trial for the alleged murder of his gay lover.) Texas argued that despite the sleeping defense counsel and the inflammatory and prejudicial statements about the gay defendant, the defendant had received a fair trial, and it continued to assert that position. Even after the 5th Circuit en banc ruled 9-5 that the defendant received ineffective assistance of counsel, Texas still would not back down and instead sought review in the Supreme Court. It was denied.

One question that these cases raise, however, is why Texas risks being reproached by the Supreme Court by taking aggressive positions even when it is manifest that the state violated the law in securing a criminal conviction or sentence. One answer perhaps lies in what happened to a former Texas solicitor general who confessed error in a case before the Supreme Court where capital sentences had clearly been based on invidious racial stereotypes. In that case, as in a number of others, the death penalty was imposed based in part on the testimony of a prison psychologist who claimed the defendant posed a future danger to society on the basis of his race or ethnicity. After the Supreme Court remanded the case, the Texas Court of Criminal Appeals ruled that it could not even consider the solicitor general’s confession of error under Texas’ procedural law. The Texas solicitor general’s confession also provoked a mutiny by the prosecutors responsible for the case who sought to intervene to argue that the Texas solicitor general could not take a position contrary to the state prosecutors. As the now former solicitor general learned, anything less than a full-throated defense of a criminal conviction — particularly in a capital case — can result in state-wide controversy and may indeed be rejected by the state courts.

Despite some very public defeats, Texas’s four cases before the Court this term suggests that the Lone Star State remains remarkably unchastened. If anything, the Supreme Court’s increasing scrutiny and Texas’ style of litigation suggests that there will be even more opportunities for the Court to mess with Texas.


1. Smith v. Dretke was dismissed on March 18, 2004.

2. Smith v. Dretke, which was recently dismissed, asked the related question whether Texas misapplied Penry II by requiring that the evidence demonstrate a "uniquely severe permanent handicap" before a Texas capital murder defendant could object to a "nullification" instruction as improper.

Jeff Bleich is a litigation partner at Munger, Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990 and has taught courses on federal constitutional law and habeas corpus at the University of California at Berkeley. Anne Voigts is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice Stevens in 2000 and is currently teaching a course in criminal procedure at the University of California at Berkeley. Both were part of the team representing Michael Haley before the United States Supreme Court.

© 2004 Jeff Bleich & Anne Voigts

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