Death Penalty – Jury Instructions on Mitigation
Case: Penry v. Johnson
Issue: (1) Did the admission into evidence at the penalty phase of a capital murder trial of portions of a psychiatrist's conclusions taken from a psychiatric report (which report was based on an uncounseled interview with the defendant), run afoul of the Fifth Amendment if the psychiatrist was hired by the defense in connection with a rape case unrelated and occurring prior to the defendant’s alleged capital murder? (2) Do jury instructions at the penalty phase of a capital murder trial, which tell the jury to consider and give effect to any mitigating evidence, but which, by virtue of that fact, may also have the effect of instructing the jury to dishonestly answer one or more of three “special issues” which they must answer “yes” or “no” in order to determine whether a defendant receives the death penalty, violate the Eighth Amendment?
Facts: Petitioner Johnny Paul Penry “brutally raped and murdered Pamela Carpenter on October 25, 1979.” In 1980, Texas tried and convicted him of capital murder. The jury sentenced Penry to death. In Penry v. Lynaugh, 492 U.S. 302 (1989) ("Penry I"), the Supreme Court overturned Penry’s death sentence because the jury had not been given an adequate vehicle in the jury instructions with which to consider and give effect to Penry’s mitigating evidence. Penry’s attorney had been allowed to present evidence and argument pertaining to Penry’s alleged mental retardation and history of childhood abuse. At the time of the first trial, however, Texas capital sentencing juries were only allowed to answer three special issues in the affirmative or negative in determining whether a convicted capital defendant would live or die. Those special issues were: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” During the sentencing phase of Penry I, his attorney had urged the jurors to vote “no” on one of the special issues if they had believed that Penry, because of the mitigating evidence, did not deserve to be put to death. The prosecutor, however, had reminded them of their “oath to follow the law and . . . answe[r] these questions based on the evidence in following the law.” The jury answered “yes” to each of the special issues and the trial court sentenced Penry to death -- as it was required to do by statute. “In light of the prosecutor’s argument and . . . in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty,” the Penry I Supreme Court concluded that “a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” The Supreme Court held, in Penry I, that “[t]he sentencer . . . must be able to consider and give effect to [mitigating] evidence in imposing sentence,” in order that “the sentence imposed . . . reflec[ts] a reasoned moral response to the defendant’s background, character and crime.” Penry was retried in 1990 and again found guilty of capital murder. Texas had not yet amended the capital sentencing statute. Thus the judge, counsel and jury were continuing to work within the confines of the three special issues. The judge dealt with this problem by issuing an instruction which stated in pertinent part that:
“[B]efore any issue may be answered ‘Yes’ all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issues should be ‘Yes.’ . . . [I]f any juror, after considering the evidence in these instructions, has reasonable doubt as to whether the answer to a Special Issue should be answered ‘Yes,’ then such juror should vote ‘No’ to that Special Issue.
. . . You are therefore instructed that your answer to the special issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal culpability of the defendant, JOHNNY PAUL PENRY in this case.
The Court then gave the following supplemental instruction:
You are instructed that when you deliberate on the questions posed in the Special Issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial that are presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time when you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.”
These instructions were attached to the verdict form and went back to the jury room with the jury. The verdict form itself, however, contained the three special issues alone and a space for a yes or no answer. The defense counsel presented, as defense counsel had done in Penry I, extensive evidence as to Penry’s alleged mental retardation and childhood abuse. During the voir dire, each of the jurors who eventually served “received a copy of an instruction largely similar to the supplemental instruction ultimately given to the jury.” After each juror read the instruction, the trial judge expounded upon it in the following manner: “[I]f you thought that mitigating evidence was sufficient . . . you might, even though you really felt those answers [to the three special issues] should be yes, you might answer one or more of them no . . . so [Penry] could get the life sentence rather than the death penalty.” The prosecutor also attempted to explain the supplemental instruction during voir dire: “[E]ven though [you] believe all three of these answers are yes, [you] don’t think the death penalty is appropriate for this particular person because of what has happened to him in the past . . . [T]he instruction is to give effect to that belief and answer one or all of these issues no.” Most of the jurors got a similar elaboration from defense counsel: “[I]f you believe[d] [there] was a mitigating circumstance . . . you [could] apply that mitigation to answer -- going back and changing an answer from a yes to a no.” During closing argument of the penalty phase, Penry’s counsel told the jury that: “If, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence . . . then, you get to answer one of . . . those questions no. The judge has not told you which question, and you have to give that answer, even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes.” The prosecutor, during closing, stressed the jury’s duty “[t]o follow your oath, the evidence and the law.” During the penalty phase, the defense called Doctor Randall Price to testify concerning Penry’s mental impairments. He testified to his belief that Penry suffered from “organic brain impairment and mental retardation.” Price was asked on cross examination what records he had “reviewed in preparing his testimony.” He cited 14 reports including a psychiatric evaluation prepared by Doctor Felix Peebles in May of 1977. The Peebles report had been completed at the request of Penry’s 1977 counsel in order to help determine Penry’s competence to stand trial for an unrelated rape charge. Under cross examination, Price read a portion of the Peebles report reciting Peebles’ “professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons.” The prosecutor referenced this portion of the Peebles report during closing. The jury deliberated for two and a half hours and answered each of the special issues “yes”. In accordance with state law, Penry was sentenced to death.
The Texas Court of Criminal Appeals affirmed Penry’s conviction and sentence. It rejected Penry’s contention that admission of a portion of the Peebles report violated his Fifth Amendment privilege against self incrimination. Penry based his Fifth Amendment self-incrimination claim on Estelle v. Smith, 451 U.S. 454 (1981) [In Estelle v. Smith, the Court held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding,” and that the introduction of the psychiatrist’s testimony under those circumstances violated the Fifth Amendment.] The Court of Criminal Appeals distinguished Penry’s situation from that of Smith since Peebles was not an agent of the state “whose function was to gather evidence that might be used against [Penry] in connection with the crime for which he was incarcerated.” The Court of Criminal Appeals also held that the supplemental instruction was “a nullification instruction” that in this case was “sufficient to meet the constitutional requirements of [Penry I].” In 1998, after his efforts to obtain state habeas relief were exhausted, Penry filed a § 2254 action in the United States District Court for the Southern District of Texas. “The District Court rejected both of Penry’s claims, finding that the Texas Court of Criminal Appeals’ conclusions on both points were neither contrary to, nor an unreasonable application of, clearly established federal law.” The United States Court of Appeals for the Fifth Circuit denied a certificate of appealability.
Holding: (1) The jury instruction on mitigating evidence did not satisfy the requirements of Penry I. (2) Admission of portions of Doctor Peebles’ psychiatric report did not violate the Fifth Amendment.
Reasoning: Justice O’Connor, who authored Penry I, wrote for the majority. Since Penry filed his petition after enactment of the Antiterrorism and Effective Death Penalty Act of 1996, “the provisions of that law govern the scope of our review.” Specifically, the provisions of § 2254(d)(1) prohibit “a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.’” Thus, the question for the Supreme Court was whether the Texas Court of Criminal Appeals’ decision was “contrary to, or involved an unreasonable application of, clearly established federal law,” with respect to Penry’s Fifth and Eighth Amendment claims.
A. Fifth Amendment
According to the Court, Penry’s case differed from that of the defendant in Estelle v. Smith in four key respects: (1) Smith, unlike Penry, had not placed his mental condition at issue; (2) In Estelle v. Smith, the trial court compelled the competency evaluation and the state chose the examining psychiatrist. In Penry’s case, the defendant had hired the psychiatrist; (3) In Estelle v. Smith, the state called the psychiatrist to testify whereas Peebles’ report was revealed during cross examination of Penry’s own witness; (4) In Estelle v. Smith, the defendant was charged with a capital crime at the time of the competency exam, whereas Penry had not murdered Pamela Carpenter when his attorney commissioned Peebles’ report. The Court refused to decide whether these differences affected the substance of Penry’s Fifth Amendment claim. “Rather, the question is whether the Texas court’s decision was contrary to or an unreasonable application of our precedent. . . . We think it was not. The differences between this case and Estelle are substantial, and our opinion in Estelle suggests that our holding was limited to the ‘distinct circumstances’ presented there. . . . We therefore cannot say that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim.” Even if the Court had determined that the admission of a portion of Peebles’ report violated Penry’s Fifth Amendment rights, “that error would justify overturning Penry’s sentence only if Penry could establish that the error had substantial and injurious affect or influence in determining the jury’s verdict.” On the record before it, the Court did not think that Penry could have made such a showing.
B. Eighth Amendment
According to Justice O’Connor, the key holding of Penry I was that “the jury be able to ‘consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.’” The jury must be given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” in order to ensure that the jury “has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence.” The supplemental instruction given by the trial judge was confusing and illogical. The jury could have interpreted the supplemental instruction in one of two ways. They could have understood the trial judge to be saying that Penry’s mitigating evidence must be considered in reaching an answer to questions posed in the three special issues. The problem with that understanding, according to O’Connor, was that, “[a]s we made clear in Penry I, none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry’s mental retardation and childhood abuse.” Alternatively, the jury could have understood the supplemental instruction as informing them that they could “simply answer one of the special issues ‘no’ if [they] believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of [their] initial answers to the questions.” If the supplemental instruction is interpreted in this manner, the problem with it is that it renders the jury charge internally contradictory. In effect, it requires the jury to violate its oath and ignore the evidence in answering the special issues. This “placed law abiding jurors in an impossible situation.” The jury had been instructed to only answer yes to a special issue when supported “by the evidence beyond a reasonable doubt.” If the jury answered yes, it had to “swear that it had unanimously determined beyond a reasonable doubt that the answer to this special issue is ‘Yes.’” Alternatively, if the jury answered no, it had to swear that “at least 10 jurors had a reasonable doubt as to the matter inquired about in this special issue and that the jury thus had determin[ed] that the answer to this Special Issue [was] ‘No.’”
According to Texas, “the jury was told that it could ignore these clear guidelines and -- even if there was in fact no reasonable doubt as to the matter inquired about -- answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful ‘yes’ answers to an untruthful ‘no’ answer in order to avoid a death sentence for Penry.” Assuming that the jurors followed their instructions, “it would have been both logically and ethically impossible for a juror to follow both sets of instructions.” Since “Penry’s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence, would have had to violate their oath to render a ‘true verdict.’” The mechanism established by the supplemental instructions injected an element of capriciousness into the jury’s sentencing decision. It rendered the jurors’ power to avoid the death penalty dependent upon their willingness to “elevate the supplemental instruction over the verdict form instructions.” At the very least there was a reasonable likelihood that the jurors applied the “challenged instruction in a way that prevent[ed] the consideration of Penry’s mental retardation and childhood abuse.” In light of this, the supplemental instruction “provided an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.”
Even looking at the instructions contextually in light of the comments by court, prosecutor, and defense counsel during voir dire, “these comments were insufficient to clarify the confusion caused by the instructions themselves.” The explanations “only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry’s mitigating evidence.” Besides, “the prosecutor effectively neutralized defense counsel’s argument, as did the prosecutor in Penry I, by stressing the jury’s duty ‘[t]o follow your oath, the evidence and the law.’ . . . At best, the jury received mixed signals.” According to Justice O’Connor, her opinion in Penry I “provided sufficient guidance as to how the trial court might have drafted the jury charge for Penry’s second sentencing hearing to comply with our mandate. We specifically indicated that our concerns would have been alleviated by a jury instruction defining the term ‘deliberately’ in the first special issue ‘in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability.’ . . . The trial court surely could have drafted an instruction to this effect. Indeed, Penry offered two definitions of ‘deliberately’ that the trial court refused to give.” Alternatively, a “clearly drafted catch-all instruction on mitigating evidence also might have complied with Penry I.” Indeed, the Court noted that Texas now has such an instruction as a part of its current capital sentencing scheme. “At the very least, the brevity and clarity of this instruction highlight the confusing nature of the supplemental instruction actually given, and indicate that the trial court had adequate alternatives available to it as it drafted the instructions for Penry’s trial.” Accordingly, the Texas Court of Criminal Appeals’ apparent conclusion that the jury instructions as a whole satisfied the mandate of Penry I was “objectively unreasonable.”
Other Opinions: Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented from the portion of the majority opinion invalidating Penry’s death sentence. Thomas pointed out that as a habeas reviewing court, the Court was “not called upon to propose what we believe to be the ideal instruction on how a jury should take into account evidence related to Penry’s childhood and mental status.” The Court’s job was to determine whether the Texas Court of Criminal Appeals’ holding that the supplemental instructions satisfied Penry I was “objectively unreasonable.” In Thomas' view, the Texas Court of Criminal Appeals holding that Penry I was satisfied “is not only objectively reasonable but also compelled by this Court’s precedents and by common sense.” The trial court’s instruction “tells jurors that they may consider the evidence Penry presented as mitigating evidence and that, if they believe the mitigating evidence makes the death sentence inappropriate, they should answer ‘no’ to one of the special issues. Given this straightforward reading of the instructions, it is objectively reasonable, if not eminently logical, to conclude that a reasonable juror would have believed he had a ‘vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.’”
The sentencing court told the jury that it could consider Penry’s evidence of mental retardation and childhood abuse to be mitigating in nature. It next told the jury that “it must give effect” to any evidence it found to be mitigating. Finally, it unambiguously instructed the jury that “[i]f you determine when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.” According to Thomas, “[w]ithout performing legal acrobatics, I cannot make the instructions confusing. And I certainly cannot do the contortions necessary to find the Texas Appellate court’s decision ‘objectively unreasonable.’” Despite the majority’s characterization of defense counsel’s jury argument as an invitation to the jury to answer the special issues dishonestly “the jurors reasonably could have believed that they could honestly answer any question ‘no’ if they found that the death sentence would be inappropriate given the mitigating evidence. They could follow their ‘oath, the evidence and the law,’ [quoting the prosecutor’s statement] . . . by truthfully concluding that the evidence of Penry’s childhood and mental status did not warrant the death penalty and by writing ‘no’ next to one of the special issues.”
Thomas disagreed that the jury received “mixed signals” from the instructions. In fact, “it appears that it is the Texas courts that have received the mixed signals.” In Jurek v. Texas, 428 U.S. 262 (1976), the Court “upheld the Texas sentencing statute at issue here” because the statute permitted the jury “to consider whatever evidence of mitigating circumstances that the defense can bring before it.” Then, purporting to distinguish Jurek, the Court in Penry I “determined that the same Texas statute was constitutionally insufficient by not permitting jurors to give effect to mitigating evidence.” According to the Penry I Court, “an instruction informing the jury that it could give effect to the mitigating evidence was necessary.” Now, “in today’s decision, this Court yet again has second guessed itself and decided that even this supplemental instruction is not constitutionally sufficient.”
Comment: At first blush this case seems similar to Shafer v. South Carolina, where South Carolina virtually thumbed its nose at Supreme Court death penalty precedent. Here, however, the trial court and prosecutor made a good faith effort to incorporate Penry I's teachings into the Texas statutory framework, prior to any legislative assistance from the Texas House and Senate. The jury was unmistakably instructed to consider and give effect to any mitigating evidence, which ought to have satisfied the core requirement of Penry I. Justice O'Connor correctly points out that the trial judge could have defined "deliberately" broadly, in order to incorporate Penry's defensive theories of mitigation into special issue number one. But it would have been just as easy for Justice O'Connor, in Penry I, to have specifically mandated such an instruction in the absence of statutory amendment. This she declined to do. Indeed, O’Connor’s statement that Penry I “provided sufficient guidance” to the trial court is highly debatable. Like so many of her opinions, Penry I is more notable for telling lower courts what they cannot do than for setting out clear guidelines for what will suffice in the future. Now, 22 years after Pamela Carpenter’s murder, Texas will once again have to try Johnny Paul Penry for capital murder. The willingness of two prior Texas juries to quickly give Penry “the needle,” in the face of overwhelming evidence of his limited mental capacity, is a clear sign that Texans are not too troubled with the finer nuances of the Supreme Court’s death penalty jurisprudence.