When Robert Owen, co-director of UT’s Capital Punishment Center, stood before the United States Supreme Court Wednesday, he was in the unusual position of arguing that the justices should refrain from ruling on the cases that he brought to them. Owen argued, on behalf of his clients Brent Ray Brewer and Jalil Abdul-Kabir, that, because of a recent decision by the 5th Circuit Court of Appeals, “The need for intervention no longer exists.” However, the justices, particularly John Paul Stevens, seemed interested in hearing what the parties had to say about the merits of the claims rather than discussing whether they should send the case back to the lower court for further review.
The two cases were joined for review because both Brewer and Abdul-Kabir argue that the instructions given in their trials were flawed because they didn’t allow jurors to properly consider evidence that would mitigate against a sentence of death. Adbul-Kabir (formerly known as Ted Cole) was convicted and sentenced to death for the 1987 strangling death of Raymond Richardson, in his home in San Angelo during an attempted robbery. Brewer was sentenced to death for the 1990 robbery and murder of Robert Laminack in Amarillo. Both cases were tried before the Legislature “fixed” the capital punishment statute after the Supreme Court ruled in Penry v. Lynaugh that the former statute didn’t let jurors consider all mitigating evidence. Owen argues that a recent 5th Circuit decision (Nelson v. Quarterman) corrects the erroneous analysis of its previous decisions in Brewer and Abdul-Kabir, so the case should be sent back to that court for review.
Arguments apparently will go forward, however – when inquiring last week about the status of his motion, Owen says he was instructed by the court’s clerk to “proceed with preparations for oral argument.” But before Owen even begins argument, he will sit at counsel table while the other co-director of the UT Capital Punishment Center, Jordan Steiker, argues Smith v. Texas. This is the second time the Supreme Court has reviewed this case. The first time, the court thought the constitutional error in the jury instructions was so obvious that without holding oral argument, in a unanimous opinion, the justices sent the case back to the Court of Criminal Appeals “for further proceedings not inconsistent with this opinion.”
Refusing to grant relief to Smith, the CCA apparently didn’t understand the court’s clear opinion. Oral argument was set this time around, and the only difference seems to be the makeup of the court. It should be interesting to see whether new Justices John Roberts and Samuel Alito will have any impact on how the Supremes react to the CCA’s willful defiance of their previous order.
This article appears in January 19 • 2007.