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Univ. of San Diego School of Law

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Tuesday, January 23, 2007

Will the Supreme Court Reign in the Texas CCA?

Grits For Breakfast analyzes Smith v. Texas, the case argued to SCOTUS by UT Austin's Capital Punishment Clinic: Forty-seven of the 392 defendants on Texas death row were convicted using sentencing instructions the US Supreme Court later declared unconstitutional. But the Texas Court of Criminal Appeals responded by thumbing its nose (again) at the high court, most recently declaring the unconstitutional instructions "harmless error."...Dahlia Lithwick wonders at Slate whether the Supreme Court's "opinions have become suggestions in Texas." From her description of the oral arguments, it sounds like the 7-2 supermajority that's been signing off on most bench-slapping of Texas death penalty cases may have been watered down substantially by the addition of Chief Justice John Roberts and Justice Samuel Alito. Lithwick declares that "the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel." That prediction doesn't sound too promising for the lawyers at the UT-Austin capital punishment clinic who argued the case... I see three possible or likely outcomes: Maybe Roberts and Alito will be swayed by behind-the-scenes discussions (it's hard to understate how much hubris the CCA has shown here), a 5-4 majority could still hold up against the CCA, or else it may be that the Texas death penalty will turn out to be the first major arena where President Bush's new Supreme Court appointees start reversing the courts of the last few decades. Nothing to do now but wait and see.  More from Grits For Breakfast. . . [Michele Berry]

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