Anyway, on a close 9-7 vote, the Fifth Circuit ruled against overturning the U.S. Supreme Court's requirements regarding jury instruction and mitigating evidence. A blog by the name of Decision of the Day had this excellent snark on the court's ruling: (hat tip, Karl)
It's no secret that Texas state courts have been openly defying the U.S.
Supreme Court in affirming death sentences that were based on unconstitutional
jury instructions. Specifically, the instructions at issue did not ensure that
juries adequately considered mitigating evidence before imposing death
sentences. What were the courts were afraid of? After all, these are Texas
juries we are talking about.
Anyway, the Fifth Circuit has been complicit in the state courts’ defiance, repeatedly declining to grant habeas relief in these cases. Its stance has already drawn sharp rebukes from the U.S. Supreme Court. Most recently, in a habeas case that had already been vacated and remanded by the Supreme Court, Chief Judge Edith Jones wrote a decision that refused to reconsider the panel’s earlier conclusion that the Supreme Court’s post-1991 holdings should not be applied to petitioner Billy Ray
Nelson’s 1991 death sentence. Judge Dennis (who can typically be relied on to
follow the Constitution in more egregious cases) concurred, chiding his
colleagues for ignoring the Supreme Court but reasoning that the error was
harmless in this instance. My coverage here.
But the Fifth decided to take this appeal en banc and today, by a vote of
9-7, the Court decides to grant Nelson a new sentencing trial. Judge Dennis
again concurs, explaining why he was wrong to apply a harmless error analysis
the first time. The 161-page decision also includes dissents from Chief Judge
Jones and Judges Smith, Owen, and Clement. Interestingly, the seven dissenters
include three names that have repeatedly been mentioned as possible SCOTUS
nominees – Jones, Clement, and Garza.