On October 13, the U.S. Supreme Court agreed to hear two capital cases from Texas in which the defendant was sentenced to death after the jury was given instructions that the Court has since found unconstitutional. Unlike in most states where the jury considers a range of aggravating and mitigating circumstances about the crime and the defendant before choosing a sentence of life or death, in Texas the jury was (the law has since been modified) given a series of yes-or-no questions about the crime and the future dangerousness of the defendant. In prior cases, the Supreme Court has said that such a mechanism does not allow full consideration of a person’s mental disabilities, which should be counted as a mitigating factor. In the cases recently accepted, the trial judges instructed the jury that they could simply answer “no” to one of the factual questions if they did not want to sentence the person to death, even though the proper answer based on the facts should be “yes.” In both of the new cases taken by the Court, the defendants were sentenced to death using this “nullification” instruction, and their appeals were denied by the U.S. Court of Appeals for the 5th Circuit.

The cases are Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, No. 05-11287, and they will be consolidated into one hearing. One week ago, the Court agreed to hear another capital case (Smith v. Texas) involving Texas’ jury instructions, where a re-sentencing was denied by the Texas Court of Criminal Appeals despite the fact that the Supreme Court had previously found the prior sentence to be unconstitutional. (Houston Chronicle, Oct. 14, 2006; SCOTUSblog.com, Oct. 13, 2006). See Supreme Court.