Several months earlier, in a case called Penry after a mentally impaired death row inmate in Texas, the U.S. Supreme Court had called into question the entire Texas capital-punishment statute.254 Ironically, the reasons the Court gave were almost exactly the ones that James Lawrence had pressed upon a bewildered jury at the sentencing stage of DeLuna's trial.
For years, the Supreme Court had been saying that capital juries had to be able to consider everything that was mitigating about information the defendant presented at the capital-sentencing stage.255 The Texas statute required jurors to impose death, however, if the answer to two questions was "yes"—that the killing was deliberate and that the defendant posed a danger to society in the future.
The problem with that, Justice Sandra Day O'Connor wrote in the Supreme Court's Penry opinion, was that the Texas law could turn "mitigating" factors about the defendant—such as his mental defects—into "aggravating" factors.256
A jury, Justice O'Connor pointed out, might find a mentally disabled person less responsible for his actions than other people, which counts as a mitigating factor.257 Yet, if the defendant deliberately killed the victim for reasons that would appeal only to a slow thinker, and if his mental problems made it likely that he couldn't learn from his mistakes and end his bad behavior, the Texas statute required the jury to sentence the man to die.258 Even if the jurors felt the man was less at fault or more sympathetic because he was slow-witted from birth, they couldn't use that as a reason to spare his life.
If that happened—if the two Texas questions kept the jury from making what Justice O'Connor called a "reasoned moral response" to the mitigating evidence—then the death verdict had to be thrown out.259
This was the same argument that Lawrence had made at the sentencing stage of DeLuna's trial, when he tried to convince the jury that the Texas statute was "ridiculous" and "impossible." The only problem with Lawrence's argument was that he had made it to the wrong audience. The jurors he was lambasting weren't to blame for the law and couldn't do anything to change it.260
Sadly, though, Lawrence didn't make the same argument when he had the chance to do it in front of the right audience. Lawrence didn't object to the legal instructions Judge Moore gave to the jury at the guilt stage of DeLuna's trial, and he didn't make the argument during DeLuna's first appeal.261
* * * * *
Now, for the first time in DeLuna's case, Kristen Weaver was trying to make the argument to the right audience—judges who could follow Justice O'Connor's lead and find that the law wasn't applied correctly at DeLuna's trial.262
Because the Supreme Court's Penry decision had been announced so recently, Weaver argued that the state and federal courts couldn't evaluate how it affected DeLuna's case in the short time remaining before the date set for his execution. Only by delaying the impending execution could they reach a reasoned decision.263
Weaver had two problems, though. First, Lawrence and De Peña hadn't told the jury that DeLuna was slow-witted or that he may've been brain-damaged from sniffing paint—or even that he had been sweet and generous as a child.264 The state's lawyers were sure to argue that the Texas statute couldn't have misled the jury about how to use the mitigating evidence in DeLuna's case, because there wasn't any.265
Second, although lawyers for capital prisoners like Penry had been making this same argument for years in hopes of getting the Supreme Court to pay attention to it one day,266 no lawyer for DeLuna made the claim until it was too late. De Peña and Lawrence never made this legal objection at the trial, and Lawrence didn't raise it in DeLuna's first appeal.267 Anderson did mention the argument in passing, but only in the papers that Judge Head and the Court of Appeals ruled were filed too late.268 Weaver couldn't make a claim in a successive habeas petition unless he had a good reason why the claim wasn't made in DeLuna's earlier petitions.269 But if Penry's lawyers had enough gumption to raise the claim in state and federal courts before the Supreme Court agreed to take a look, there was no good reason why De Peña, Lawrence, and Anderson failed to make the argument when they had the chance.270
See Penry v. Lynaugh, 492 U.S. 302, 328 (1989); see also infra Chapter 16, notes 66–79 and accompanying text.
See Locket v. Ohio, 438 U.S. 586, 604 (1978) ("[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.") (footnotes omitted).
Penry v. Lynaugh, 492 U.S. 302, 323–24 (1989) ("Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.").
Penry v. Lynaugh, 492 U.S. 302, 322–23 (1989) ("Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less morally 'culpable than defendants who have no such excuse,' but who acted 'deliberately' as that term is commonly understood.").
Penry v. Lynaugh, 492 U.S. 302, 323 (1989) ("In the absence of jury instructions defining 'deliberately' in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue.").
Penry v. Lynaugh, 492 U.S. 302, 328 (1989) ("In this case, 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, we conclude that the jury was not provided with a vehicle for expressing its 'reasoned moral response' to that evidence in rendering its sentencing decision.").
See supra Chapter 14, notes 53–59 and accompanying text.
See, e.g., Resp't's Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 4–5:
This claim is not properly preserved for review, contrary to his assertion. In order to preserve this claim, counsel must have objected at the time of trial to the procedures of which he now complains. The record reflects that counsel filed written objections to the court's punishment charge prior to the time the charge was read to the jury. The third paragraph objected that the charge did not instruct the jury to consider evidence of mitigating circumstances and that this violated the holdings of . . . Lockett v. Ohio . . . . Counsel specifically withdrew this objection, however, when making his objections on the record. Failure to properly preserve a claim for review, either by objecting to the charge or by requesting special instructions, results in a waiver of that claim.
See, e.g., id. at 8 ("This claim . . . has not been properly preserved for review. . . . Because his [Applicant's] objection at trial did not comport with the claim he is now raising, the claim is waive[d].").
Resp't's Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 3–4 (describing the applicant's claims as stating that: "The Texas Death Penalty scheme . . . denied [De Luna] his fundamental constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as . . . the Texas Constitution because it did not allow for the effective presentation of consideration of available mitigation evidence concerning the Petitioner's past difficulties with drug and alcohol abuse, his personal background, his youth, or his mental condition.");
Pet'r's Objections to State's Proposed Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 17, 1989) at 3–4 ("The Court ignores the offense reports . . . which show a history of drug and alcohol related arrests . . . . [I]t ignores the affidavits . . . which show friends and relatives who were ready and able to present further mitigating evidence.");
Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989) at 9 ("[T]he Petitioner has claimed that there was evidence of a mitigating nature that was available to be presented at the trial of this cause which was not presented due to the state of the law in Texas at the time of the Petitioner's trial.");
see Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:41:14:
[Penry] had just come down and we [lawyers representing capital prisoners], at that time, believed perhaps it would be a mechanism for getting people relief. So everybody who was working this level, in the capital cases, we were all raising [Penry] issues, essentially. Trying to find out, was it going to be retroactive? What kind of burden was going to be placed on people? Could we manage to craft a legal argument about [Penry if] . . . nobody had raised it at the trial court, which turned out to be a bit of a problem. That was the primary, I think that was the main point I tried to raise.
Weaver also made two other arguments—that "the Texas Death Penalty scheme . . . as applied against the Petitioner, denied him his fundamental constitutional rights . . . because the jury was fundamentally misled as to the meaning of the word 'deliberately' in Special Issue Number One" (another argument trial lawyer James Lawrence had made to the jury (which couldn't do anything to cure the problem), but failed to make to the judge (who had the power to cure the problem)) and that DeLuna " was denied his fundamental constitutional rights . . . when the trial judge, at the Mot. for New Trial hearing, refused to permit the Petitioner to discharge his appointed attorneys and represent himself at all further stages of his case." See Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 6–7;
Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 29–33 (arguing, as James Lawrence had argued to the jury, see supra Chapter 14, notes 53–59 and accompanying text, that the jury should have been been instructed that deliberately meant more than just intentionally, which was the mental state required to convict of first-degree murder at the first, guilt-innocence stage of the trial);
see also Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:44:03 (emphasis in original):
The courts further said that, in order to get the death penalty, you had to act deliberately, and it was our position deliberately had to mean more than intentionally or knowingly. Otherwise, why bother? Standard rules of code construction suggest that you cannot craft a statute that has no force or effect. It had to mean something, something more or different that intentionally or deliberately. The law in Texas was that terms did not have to be defined to the jury if they were used in a normal and customary, standard way, unless they were statutorily defined. Deliberately was not statutorily defined. We were asking the courts, the trial courts, to define deliberately, because it had to mean something other than intentionally or knowingly.
See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 25.
See supra Chapter 14, notes 30–37 and accompanying text.
See, e.g., Resp't's Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 6–8:
Alternatively, even were the claim not barred, Applicant's reliance on Penry is misplaced. The holding in Penry was explicitly predicated on the fact that the defendant in that case had presented evidence of his mental retardation and history of child abuse . . . Applicant presented no mitigating evidence at either the guilt-innocence or punishment phase of the trial. Thus he has failed to demonstrated how his jury was precluded from considering mitigating evidence offered as the basis for a sentence less than death . . . .
Even were the claim properly preserved Applicant is not entitled to relief . . . . The concern expressed by the Supreme Court [in Penry] was that, without a definition of "deliberately", the jury might not be able to give effect to Penry's mitigating evidence of mental retardation and child abuse. Applicant points to no mitigating evidence he introduced that the jury could not consider without a special definition of "deliberately" in answering the punishment issues.
Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 3 ("Applicant has presented no competent evidence of any sort that the evaluations of Drs. Kutnick and Plaisted were inaccurate, nor has he presented any evidence that he suffers from any form of mental impairment or disability . . . . No evidence was presented at trial concerning Applicant's alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity.").
Resp't's Mot. to Dismiss for Abuse of the Writ and, Alternatively, Answer, Mot. for Summ. J., and Supporting Br., DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Nov. 30, 1989) at 14:
In rejecting, without a hearing, DeLuna's claim of ineffective assistance of counsel for failing to offer evidence at punishment of his history of substance abuse and his borderline intelligence, the court below noted that DeLuna had proffered no affidavits from the proposed witnesses as to what their testimony would have been, or that they had been available and willing to testify at the time of trial. The court also observed that there was no indication that DeLuna was under the influence of drugs at the time of the offense, so that any testimony of his prior substance abuse would have had negligible mitigating value, and that the record did not substantiate DeLuna's claim that he was of low intelligence.
Cases during the 1987–1989 period in which death row inmates objected to Texas capital-sentencing procedures on the ground that they kept defendants from deriving the full mitigating value of evidence they presented include, e.g., Franklin v. Lynaugh, 487 U.S. 164, 183 (1988) (plurality opinion) (confirming that courts were not required to specifically instruct the jury to consider the mitigating value of evidence); Penry v. Lynaugh, 832 F.2d 915, 920 (5th Cir. 1987) (upholding decision that court did not need to specifically instruct jury to consider aggravating and mitigating circumstances), aff'd in part, rev'd in part, 492 U.S. 302 (1989); Cordova v. State, 733 S.W.2d 175, 189–91 (Tex. Crim. App. 1987) (addressing and rejecting claim that trial court had erroneously failed to instruct the jury that to take into consideration all mitigating circumstances); Clark v. State, 717 S.W.2d 910, 920 (Tex. Crim. App. 1986) (en banc) (same); see also Jurek v. Texas, 428 U.S. 262, 276 (1976) (upholding constitutionality of the Texas capital-sentencing procedures because it "authorize[es] the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced").
See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 28.3(c)(1) (6th ed. 2011).
See, e.g., Resp't's Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 8 ("Applicant did not contend that the failure to define the term prevented the jury from considering mitigating evidence introduced in support of a sentence less than death. Because his objection at trial did not comport with the claim he is now raising, the claim is waive[d].");
Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 5 ("Applicant's failure to object to the Texas capital sentencing statute on the grounds now urged bars consideration of his claim that the statute precludes consideration of mitigating evidence unless the jury is specially instructed.");
Resp't's Mot. to Dismiss for Abuse of the Writ and, Alternatively, Answer, Mot. for Summ. J., and Supporting Br., DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Nov. 30, 1989) at 13:
DeLuna has been represented by competent counsel at trial, on direct appeal and in prior habeas actions. His attorney in his prior state habeas corpus proceedings and in his prior petition in federal court [James Anderson] is listed as "of counsel" in his current petition. There is no legitimate reason why, if he believed that the Texas capital sentencing statute was constitutionally infirm because it did not mandate instruction on consideration of mitigating evidence or did not allow the jury to consider evidence of his background and mental condition, he did not raise such claims in his earlier federal petition.