Tuesday, August 03, 2004

Blakely's Impact on Death Sentences in Texas

Earlier today, I was sent a motion for supplemental briefing in Perry v. Texas, No. Ap-74,591 (Tex. Crim. App., 2004). The request is based on the Supreme Court's decision in Blakely and Tennard v. Dretke, 124 S.Ct. 2562 (2004), both decided on June 24th, 2004.

First, some background on Tennard:

Tennard was convicted of capital murder in the state of Texas and sentenced to death. During the trial, Tennard introduced evidence that he had an I.Q. score of 67. The jury, however, did not consider Tennard's reduced mental capacity during the sentencing phase of the trial. The jury was only asked to determine whether the crime was committed deliberately and whether Tennard posed a future risk. The jury later sentenced him to death.

Tennard appealed. His federal habeas petition was denied by the district court. The court of appeals also denied his appeal, stating that Tennard had to show a nexus between his mental retardation and the capital murder. The court concluded that Tennard failed to introduce at trial any evidence showing that his mental retardation (as evidenced by his I.Q. of 67) caused him to commit the murder.

The Supreme Court considered whether Atkins v. Virginia, which found the death penalty for mentally retarded persons unconstitutional, applies if the crime cannot be attributed to mental retardation. In a 6-3 decision, Justice O’Connor, writing for the Court, held that Tennard's mental retardation could reasonably be understood as relevant to his crime.

Now, based on Blakely (which I mercifully will not summarize) and Tennard, the appellant, Perry, makes the following claim in his brief to the Court of Criminal Appeals of Texas:

Appellant will show that Blakely and Tennard require that his death sentence be remanded for a new punishment phase trial in which 1) the burden of proof and persuasion is assigned to the prosecution with respect to all facts adverse to him on the ultimate life or death issue: the sufficiency of mitigating circumstances to warrant a life sentence, and 2) his mitigation case may be presented to a jury which may consider his mitigating circumstances free of Texas' statutorily imposed nexus requirement: the moral blameworthiness limiting instruction.

You can get the brief here.

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