Mitigation in Capital Cases

Facts of the Case

In 1991, a Texas jury found LaRoyce Smith guilty of capital murder for murdering one of his former coworkers by pistol‐whipping her and shooting her in the back.

At the punishment phase of the trial, the court instructed the jury to consider two special issues when it came to determining whether life imprisonment or death would be imposed: (1) Was the conduct of the defendant that caused the death of the deceased committed deliberately, and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

The jury was instructed by the trial judge to consider also the mitigating evidence; that is, the “evidence that reduces the defendant's personal or moral culpability or blameworthiness… .” Furthermore, if it believed that the answers to the special issues were “yes,” and if it also believed that because of the mitigating evidence the defendant should not be sentenced to death, then it had to “…answer at least one of the Special Issues ‘No’ to give effect to [its] belief that that the death penalty should not be imposed due to the mitigating evidence… .”

The jury considered a variety of mitigating evidence, among which were Mr. Smith's diagnosis of learning disabilities, history of placement in special education classes, and IQ of 78.

The members of the jury were given a jury verdict form that reminded them about answering “yes” or “no” to the special issues but did not mention anything about the mitigating evidence. The jury answered both questions “yes” and sentenced the defendant to death.

The defendant appealed to the Texas Court of Criminal Appeals, stating that the jury instructions were unconstitutional based on Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), in which the U.S. Supreme Court had ruled that Texas's special issues failed to allow the jury to give effect to the mitigating evidence and thus violated the Eighth Amendment. The appellate court rejected the appeal, reasoning that the nullification instruction provided did allow the jury to consider the mitigating evidence.

The defendant then filed a writ of habeas corpus, and argued before the appellate court that the nullification instruction violated Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). In Penry II, the Supreme Court held that a similar nullification instruction was unconstitutional because it did not allow the jury to give “full consideration and full effect to mitigating circumstances.” The defendant argued that as in Penry II, the nullification instruction in his case was unconstitutional.

The appellate court rejected this argument also, stating: (1) the nullification instruction in this case was irrelevant because the petitioner did not proffer constitutionally significant mitigating evidence and had not proven a nexus between the mitigating evidence and the crime; and (2) in any event, the nullification instruction in this case did allow the jury to give effect to the evidence.

Ruling

The U.S. Supreme Court granted certiorari, reversed the judgment of the Texas Court of Criminal Appeals and “remanded the case for further proceedings not inconsistent with this opinion.”

Reasoning

The Supreme Court ruled that the nullification instruction given by the trial court was unconstitutional because it violated the Eighth Amendment, which requires that the jury be provided with a vehicle capable of giving effect to the mitigating evidence. Instead, the jurors were placed in a dilemma between either answering the special issues truthfully or having to answer one of them untruthfully if they found mitigation evidence. The Supreme Court also rejected the instruction that the defendant's evidence had to be constitutionally relevant to be considered mitigating, or that he had to prove that there was a nexus between his limited mental abilities and his committing the crime to have a mental disorder considered mitigating.

Regarding the first issue, the Supreme Court quoted another Texas case, Tennard v. Dretke, 542 U.S. 274 (2004). In Tennard, the Supreme Court had reversed the decision of the U.S. Court of Appeals for the Fifth Circuit that stated that an adequate instruction was required only if the mitigating evidence passed the threshold test of being constitutionally adequate. The Supreme Court held that the circuit court ruling had “no foundation in the decisions of this Court.” It further commented, The Texas Court of Criminal Appeals relied on precisely the same “screening test” we held constitutionally inadequate in Tennard… . There is no question that a jury might well have considered petitioner's IQ scores and history of participation in special‐education classes as a reason to impose a sentence more lenient than death.

Therefore, the proffered evidence was relevant, and the Eighth Amendment required the trial court to empower the jury to give effect to that evidence.

Regarding the second issue, the Supreme Court argued that the nullification instruction given in this case was similar to that of Penry II, and thus, was unconstitutional. Just as in Penry II, petitioner's jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented….There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner's jury and the instruction in Penry II… . We therefore hold that the nullification instruction was constitutionally inadequate.

Dissent

Justice Scalia, joined by Justice Thomas, dissented. He affirmed the judgment of the Texas Court of Criminal Appeals, referring to Walton v. Arizona, 497 U.S. 639 (1990).

Discussion

This decision, considered in the context of the Penry and Tennard decisions, demonstrates the Supreme Court's concern over the use of unconstitutional methods in capital punishment cases. Through these consistent decisions, the Supreme Court emphasizes the need for the jury to have the full opportunity to review any and all evidence to determine its significance for mitigation, even if it does not seem to be directly related to the alleged crime. By rejecting attempts to limit mitigating evidence by the test of constitutional relevance, the Supreme Court provides a rather broad interpretation of what may constitute mitigating evidence.

This has significant implication for psychiatry. For instance, as clinical knowledge regarding human behavior expands, factors may be discovered that could qualify as mitigating evidence. Forensic psychiatrists will have the opportunity to educate the courts regarding such recent discoveries in medicine and psychiatry that are pertinent to the legal system. On the other hand, as there are no predetermined criteria to define or limit mitigating evidence, it places a great responsibility on forensic psychiatrists and other evaluators for the court to be as comprehensive and exhaustive as practically possible in their assessments. This will provide the jury with as much of a complete picture of the evaluee as can be presented and allow it to give full consideration to an array of factors that a fair carriage of justice would seem to entail.

Furthermore, as the definition of accepted mitigation evidence evolves, certain factors that currently hold a somewhat dubious place in the court system regarding their mitigating status—such as childhood abuse—may also have their status clarified. Though ultimately the courts decide what constitutes mitigating evidence and what does not, forensic psychiatrists and other evaluators for the court can advise attorneys about the importance of relevant factors and how they may be best presented. The consultative role of forensic psychiatry is also critical in cases in which evidence may be best offered in lay rather than expert testimony.