Let's take a look at LaRoyce Lathair Smith's case. Here's a scumbag who pistol-whipped his co-worker at a Dallas Taco Bell, then shot her in the back. He was subsequently found guilty and sentenced to death. Kosher, so far. Problem is, Smith's IQ is seventy-eight, a fact that should have been considered during the punishment phase of his bifurcated trial. Instead, the trial judge issued a "nullification instruction," which directed the jury to "give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness."
See, there were no other instructions related to the jury's obligation to consider mitigation evidence regarding "circumstances of the offense, the defendant's character and background, his personal, moral culpability." Things like his IQ.
Obviously, Smith didn't get the benefit of this requirement in his trial, but the trial court didn't seem to mind because it "reasoned that the instruction either was irrelevant, because the petitioner didn't proffer constitutionally significant mitigation evidence, or was sufficiently distinguishable from the instruction in Penry II to survive constitutional scrutiny." By the way, Penry vs. Johnson, another Texas death penalty case decided in 2001 by the Supremes, held that a similar nullification instruction was constitutionally inadequate, because "it did not give full consideration and full effect to mitigating circumstances in choosing the defendant's appropriate sentence."
Now, what about this decision is difficult for the Texas Court of Criminal Appeals to understand? The fact that that court upheld a decision that failed to follow constitutional standards was in violation of the Eighth Amendment.
Not surprisingly, the high Texas Court didn't act along. They had a partner in crime: the Fifth Circuit Court of Appeals, which hears cases from state courts in Texas, Louisiana and Mississippi. Those judges sit in New Orleans. The Circuit court held that the lack of adequate mitigation instruction in Smith's case, was irrelevant. Lest you wonder why, those good judges didn't leave us wondering. They came up with their own standard, crafted out of somebody's vivid imagination, apparently. Here's their threshold for constitutionally relevant mitigating evidence: "evidence of a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, and evidence that the criminal act was attributable to this severe permanent condition."
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