Graham v. Collins

PETITIONER:Gary Graham
RESPONDENT:James A. Collins, Director of the Texas Department of Criminal Justice, Institutional Division
LOCATION:Safeway grocery store

DOCKET NO.: 91-7580
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 506 US 461 (1993)
ARGUED: Oct 14, 1992
DECIDED: Jan 25, 1993

ADVOCATES:
Charles A. Palmer – on behalf of the Respondent
Michael E. Tigar – on behalf of the Petitioner

Facts of the case

On May 13, 1981, 17-year-old Gary Graham accosted Bobby Grant Lambert in the parking lot of a Safeway grocery store in Houston, Texas, and attempted to steal his wallet. When Lambert refused to hand it over, Graham shot and killed him. Graham was convicted of capital murder and sentenced to death.

Graham petitioned for a writ of habeas corpus by arguing that the sentencing jury should have considered the mitigating circumstances of his youth and troubled family life. The district court denied the petition, and the United States Court of Appeals for the Fifth Circuit affirmed. The Supreme Court remanded the case to the Court of Appeals, and a panel reversed the district court’s ruling. Upon an en banc review, the Court of Appeals vacated the panel’s decision

Question

Would granting Graham the writ of habeas corpus create a new constitutional rule that would require special jury instructions on the consideration of the mitigating circumstances the defense presented?

William H. Rehnquist:

We’ll hear argument now in number 91-7580, Gary Graham v. James A. Collins.

Mr. Tigar.

Michael E. Tigar:

Mr. Chief Justice of the United States, and may it please the Court:

Gary Graham was 17 years old and the product of a profoundly troubled family background when he struggled with, shot, and killed Bobby Grant Lambert in the supermarket parking lot.

His case, and the issues presented today, must be resolved, we suggest, by reference to precedent, experience, and tradition.

Precedent, in the guise of Locket and Eddings, yes, and Stanford v. Kentucky, in which the Court has repeated over and over again the powerful mitigating force of youth, and yes, precedent in the sense of Penry v. Lynaugh, because this case, we submit, is stronger for us than Penry’s was for him because of the role of youth in this Court’s Eighth Amendment jurisprudence and because of the presence here, as in Eddings, of the potentiating force of the family background coupled with the evidence of youth.

And it is weaker for the respondent than their position was in Penry, not simply because Penry has in the interim been decided, not simply because the prosecutor here, as in Penry, sought to make the second Texas special issue into a double-edged sword by arguing that the condition in fact made the defendant more dangerous, but also because in this case the trial judge told the jury over and over again in voir dire, or voir dire, whatever one prefers, that they were to consider the special issue language in ways that cabined, confined, and constricted those special issues, cabined and confined them so there was no chance that the promise of Jurek could be redeemed.

Jurek was premised on a promise.

The Court said that it appeared the State… that the jury could consider certain things and the Court said that right after a paragraph in which it enumerated age as among the things it thought of constitutional significance.

That’s the promise that has not been redeemed.

That is why Judge Higginbotham in the court below said that this case is governed by precedent, so I turn to the issues that the jury had before it, those special issues 1 and 2, because those are the significant ones.

Special issue number 1 has to do with deliberateness, and yet the trial judge told the jury that that meant nothing more than intentionality.

That is to say, the same element of the offense of which Gary Graham then stood convicted, because that’s the element under 6.02(a) of the Texas Penal Code that is a part of first degree murder.

Special issue 2, future dangerousness… here, as in Penry, both double-edged and under-inclusive.

It’s double-edged because Gary Graham is 17.

He has a longer time before he got old enough to outgrow the kinds of behavior the trial judge said satisfied future dangerousness: doing wheelies with your Harley on a lawn, pouring paint on a car… those sorts of relatively trivial offenses.

Double-edged because there is in this court’s cases a deep and, we say, rationally-based social consensus that youth is mitigating in and of itself.

That is to say, that it’s mitigating beyond what it may have in terms of predictive ability.

The prosecutor emphasized the double-edged point by saying as the seed is planted so grows the sprout, as the twig is bent, so grows the tree.

David H. Souter:

If we accept that, do we have to overrule Jurek, because Jurek was premised on the fact that the moral significance could theoretically at least be considered within the framework of the questions, and I’m not sure that the youth consideration could meet the test, as you describe it, unless we overrule Jurek?

Michael E. Tigar:

No, Justice Souter, we do not ask you to overrule Jurek, any more than the State asks you to overrule Penry.

No.

Penry said there would have to be an additional instruction beyond the special issue, and all Jurek says is that the jury may be asked to consider whatever evidence of mitigating circumstances.

Jurek didn’t say that it had to be within the special issues, and the problem, Justice Souter, is created by the Texas Court of Criminal Appeals, which in Black v. State says, we will not retreat a millimeter back from the language of the special issues.

We won’t authorize giving any extra instructions.

It’s futile to ask for them.

So no, we don’t think that Jurek should be overruled, and in fact the Court’s opinion in Franklin stands as a testament that under certain circumstances, perhaps many, Jurek and what this Court said in Jurek, what it said in later cases, can live quite happily together without questioning Jurek.

Anthony M. Kennedy:

Well, it seems, Mr. Tigar, that in almost any case there’s going to be some evidence of troubled background, positive character traits, so I’m not sure where the limits of your rule are.

I have the same experience as Mr. Justice Souter does.

It seems to me that in order to rule for you we have to overrule, if not Jurek, certainly Franklin–

Michael E. Tigar:

Justice Kennedy–

Anthony M. Kennedy:

–And probably both.

Michael E. Tigar:

–At the margin, there are surely cases in which these issues are raised… for example, in Boyd v. California or Franklin itself.

This is a case of a 17-year-old whose mother was in and out of mental hospitals 20 or 30 times.

So I look to Eddings, which is the closest case, and see if maybe there’s an opinion for the majority of the Court that answers your question, and I think it does.

The Court there identified two things.

First, factors.

The Eighth Amendment mandates that certain factors shall be considered as mitigating, and youth is surely among them if we take Stanford.

A troubled family background surely is among them.

Then the question is, if the factor has been identified, what evidence, and the Eighth Amendment also mandates that the defendant be able to put on evidence.

Now, surely, once the State has done that job as it has done in the three statutes that the State in this case clings to as good ones… Saffle, Blystone, and Boyde… then we say that there can be a question, the threshold question, as to whether the evidence proffered entitles the defendant to an instruction that as whether the evidence goes to or sufficiently relates to one of the constitutionally identified mitigating factors.

That’s a common question in all kinds of criminal cases in those not involving the Eighth Amendment.

The Court started its opinion in Jacobson, for example, by noting that if the evidence has been different, Jacobson, quote, would not even have been entitled to an instruction.

The Court’s been wrestling with that threshold issue ever since the 19th Century, and we suggest that those standards could be applied here.

But the third way, and this is… in which the evidence is under-inclusive is precisely because of Eddings, that very powerful analysis, particularly in footnote 11, about the consensus that adolescents tend to be dangerous, particularly in the teenage years, that there’s a sense that it maybe society’s fault.

Not that that’s dispositive, or that you or I or any of us would say that it is in a particular case, but that the sentencer, in the words of Eddings, Locket requires the sentencer to listen.

That comes back to the Jurek point.

Penry says you need an additional instruction.

That’s consistent with Jurek, and why?

Because of what the Court said in Griffin, which is not a capital punishment case.

In Griffin the Court said juror intuition takes care of a lot of problems about what the facts are, but we certainly do not expect juror intuition to be able to deal with what the law is.

That won’t… their intuition can’t save them from the failure of the Court to instruct correctly on the law.

And another analogy that we draw that we think is powerful is last term’s decision in Morgan v. Illinois.

If seating one juror who says, I ain’t following those mitigating instructions, is an error, how much more of an error is it if the judge says in effect to the jurors, you can’t consider the mitigating evidence, which is what was said here?

Because when the judge had finished with his constricted view of the law, the last thing he said to this jury before they deliberated the fate of this 17-year-old young man was, you take your law from me.

Your other judge is the facts, but you take your law from me.

Beyond, then, the issue of precedent, it seems to us that the Fifth Circuit has missed the Eddings point Interestingly, the respondent doesn’t embrace the Fifth Circuit’s opinion we deal with in our brief.

It seems to us that the Fifth Circuit has mistaken a reweighing of evidence for this constitutional duty under Eddings to look at the factors that are mitigating and make sure the jury hears about the factors.

The second element, if the Court please, is experience, and by experience I mean the power that this Court has traditionally recognized attaches to evidence of youth, and that runs through many of the cases.

Gary Graham was 17 when he killed Bobby Grant Lambert.

Michael E. Tigar:

Nathan Leopold was 18 when he killed his victim.

And Gary Graham doesn’t say he has a constitutional right to Leopold’s result any more than he has the right to an advocate as eloquent as Leopold’s advocate, but he does have the right to have his sentencer free to consider the power of this mitigating evidence that this Court has repeatedly identified as powerful in the way that this Court’s decisions teach.

The whole life of childhood, said Leopold’s counsel, is a dream and an illusion, and whether they take one shape or another depends not upon the dreamy boy but upon what surrounds him, evidence that evokes what Justice Powell said for the Court in footnote 11 in Eddings.

I suggest they want you to forget as justices that which you know as lawyers who have tried and presided over cases, that which you know as men and women, and that that Judge Higginbotham in his dissent identified as the power of this evidence based on his experience as an able trial lawyer and a trial judge before he went on the court of appeals.

And of course, beyond experience there is tradition.

That’s one reason I say that the case is stronger for us than Penry’s.

The mitigating power of youth is recognized in our legal tradition for at least 2,200 years, and we can trace it back that far.

In Stanford v. Kentucky this Court called out the roll call of the States.

It began by saying that one sure guide to the Eighth Amendment duty of the Court is to look at statutes passed by society’s elected representatives, and then the Court called out in this roll call 29 States that expressly make youth a mitigating factor… 29.

And then, having done that, it’s clear from Stanford and from reading the statutes of the other States that if they don’t mention youth expressly that they all have one of these catch-all clauses, catch-all mitigating clauses that the Court has sustained in such cases as Boyde and Blystone and Saffle that permit the lawyers to argue it without being headed off at the pass by prosecutorial or judicial argument.

Now, in response to these contentions that we make, the State does a number of things.

It has some statistics.

We didn’t bother to answer those in our reply brief because they formed no part of the record below and we think that the Court ought not to consider them, that had they… not having been subjected to adversary scrutiny, they don’t belong in the case.

But it’s interesting to note that if you move the age from 23 to 24, that the alleged disparity shrinks to.5 percent instead of whatever they say it is.

It’s interesting to note that there are 82, not 81 youths that got the life sentence, so their arithmetic is off, and it’s also interesting to note that if you run the elementary statistical test of the null hypothesis, that the results cannot be attributed to anything more significant than chance.

But as I say, I don’t think that the Court needs to reach that.

The question might also arise in the Court’s decision, well, what should we do about marginal cases?

What does age mean, because that’s in the court of appeals.

Our contention is this: that age means that at least the teenage years as identified in Eddings, that the Fifth Circuit says 22, the State is willing to say 23, and that time enough to resolve that question, because the States are answering it.

This is a case of a 17-year-old, and as to 17-year-olds, as to the mitigating force of youth for them, after Penry, Oregon and Texas stood alone.

Oregon quickly changed its practice and then its statute, and as we point out in our brief, Texas then amended its statute with the aid of lawyers from the Attorney General’s Office.

Indeed, the reason for that amendment is not hard to find when one reads the stunning concession at page 28 of the Attorney General’s brief.

That is to say, the statutory terms at issue relate to matters that might support affirmative answers to the special issues, i.e., aggravating factors that have no logical connection to the inquiry as to whether a rational jury could give effect to Graham’s mitigating evidence.

In short, the State seems to be saying that the factors are probably on their face more adapted to the aggravators, and that additional instructions as required in Penry might be the answer to redeeming the Jurek promise, that under those circumstances, particularly when you have the instructions in an as-applied way constricted and confined by the trial judge’s instructions and by the prosecutor’s argument, there’s no chance that the mitigating force of this evidence could have been appreciated by the jury.

If we are to go back, then, to that most objective and reliable indicium… that is to say, what the States have done… it is clear that this is a little like Coker v. Georgia, where, as the Court noted in Stanford, Georgia stood alone.

Here, Texas stands alone, but within its own house it is divided against itself, for by its legislative enactment it has recognized that the mitigating evidence that could not be considered under the former statute must now be given a chance to be heard by the sentencer.

Sandra Day O’Connor:

You raise two… excuse me… questions, I believe, and one has to do with youth and the other with evidence of positive character traits.

Michael E. Tigar:

That is correct, Justice O’Connor.

Sandra Day O’Connor:

Now, I suppose there isn’t a defendant in the world that hasn’t patted a dog or kissed a sibling or been kind to a grandmother at some time in their life.

Michael E. Tigar:

Yes, Justice O’Connor, that’s true.

Michael E. Tigar:

We were asking the Court to illuminate what it means by the word character in the character on record and then circumstances of the offense language.

Character evidence is… of course, is not receivable unless it passes some minimal threshold of relevance.

That comes back, we believe, to the factors evidence.

Here, the positive character traits must be considered… again, Eddings I think is our best case… because these positive character traits existed despite the troubled family background.

That is, some… I don’t think that Hitchcock comes out as it does just because Mr. Hitchcock is a kind uncle.

I think Mr. Hitchcock’s kind uncleness is important because, after a lifetime of adversity, he still manages to do that, and here Mr. Graham loves the Lord, cares for the children that he had, and shows these traits despite what’s happened to him.

So we say that whatever the threshold is, we meet it, but also looking to such cases as Boyde, in which the Court has quite frankly assessed the relevance of the evidence to a factor already identified and said that there might be some threshold that somebody would have to meet, that that standard, or that analysis would permit the Court to draw a line.

Our view is that wherever the line is drawn, we have to disagree with the Fifth Circuit, because on this record the combination of circumstances is even more powerful than the Eddings combination as to which the Court said you had to look at it as a whole and that the sentencer there was not authorized to just focus on you.

David H. Souter:

Let me ask you one question on something you haven’t touched on in the course of the argument.

You mention in your brief that there is perhaps a theoretical flaw, or at least a theoretical inadequacy in placing great reliance on the second Texas question, the prediction of future dangerousness.

Because that is basically… by its very nature it is a predictive inquiry, whereas the judgment which must be expressed consistent with Eddings and Locket is a moral judgment about the individual and the act, if we accept the view that the second question, the predictive question is in fact not a moral question, let’s say in a utilitarian sense or a moral inquiry in a utilitarian sense, does it follow from your argument, if we accept it, that there will for practical purposes always have to be a Penry kind of catch-all question?

Michael E. Tigar:

No, it does not, Justice Souter, and I think Franklin is the answer to that.

Franklin did not contend that his evidence, however characterized, did more than help the jury answer no to the second question, so that there is a case in which the Court said, it’s adequate.

The concession the State makes at page 28 of its brief, however, troubles me, as your question troubles me.

I suggest to the Court that the problem is this, that maybe it’s true, and the Court could conclude that the second question simply isn’t adequate to that purpose.

That is, in this calculus of which you speak, it really is an aggravator only, as the State seems to suggest.

Then all that would mean, however, is that in order to redeem the promise of Jurek, the State Court of Criminal Appeals would have to moderate its language a little bit, and instead of saying things like, we will never retreat, it would have to pay attention to what this Court made the quid pro quo for upholding the statute on its face in Jurek.

That is to say, to accommodate the statute to circumstances that are presented to it, the State had this opportunity and has repeatedly refused to avail itself of it.

It was one reason why the claim couldn’t conceivably be procedurally defaulted, because it was so cleared of futility, but I hope I’ve answered your question.

David H. Souter:

Good enough for now.

Michael E. Tigar:

Thank you very much.

William H. Rehnquist:

We pose the questions, we don’t answer them.

Michael E. Tigar:

Well, I understand that, Mr. Chief Justice.

I’m sorry, I was trying to get my paper graded, and that was very improper of me to do that.

I’d like to reserve the balance of my time, if I may.

William H. Rehnquist:

Very well, Mr. Tigar.

Mr. Palmer, we’ll hear from you.

Charles A. Palmer:

Mr. Chief Justice and may it please the Court:

Graham’s claim that his jury could not give mitigating effect to his constitutional evidence is both factually and legally insufficient to establish an Eighth Amendment violation.

It fails as a factual matter because many of the assertions on which his legal theory is based were not supported by the record, and it fails as a matter of law under Jurek.

William H. Rehnquist:

Could you speak up a little bit, Mr. Palmer?

Charles A. Palmer:

Yes, sure.

William H. Rehnquist:

I think some of us may be having a hard time hearing.

Charles A. Palmer:

I’m sorry.

One would think that if Graham’s mitigating evidence were as compelling as he suggests, that it would be included in the join appendix.

It is not.

The joint appendix consists of 612 pages, 434 of which are devoted to voir dire, a matter that to my mind at least does not bear on the question presented.

Graham’s punishment phase evidence, by contrast, is quite scant.

It may be found in the record at volume 20, pages 474 to 86.

It occupies 13 pages of the record, and would have occupied 7 pages of the joint appendix, yet it is not included.

Examination of the record reveals, I believe, the reason for this omission.

For instance, Graham tells us that he worked a job to support his two children.

The basis for this assertion is six lines of hearsay testimony.

There is absolutely no competent evidence in the record that Graham was gainfully employed or that he supported his family.

In the same theme, Graham’s assertion that his 17 years had been characterized by religious devotion, again, the only basis for this assertion is four lines of his grandmother’s testimony that he attended church with her between the ages of 3 and 11.

She admitted that she had no knowledge of his activities after the age of 11, and there is absolutely no other evidence of his supposedly religious nature.

As to Graham’s troubled childhood, the only basis for this assertion is 15 lines of testimony from the grandmother.

There is no evidence that Graham was mistreated in any way as a child, and there is absolutely no showing that any event of his childhood contributed to make him the extremely violent person he had become at the age of 17.

In addition, Graham misconstrues the record of the voir dire examination at his trial.

While the judge and counsel for both the State and Graham offered varying definitions of the word, deliberately, the trial court did not in fact define that word for the venir members so as to reduce the State’s burden of proof.

The record shows that the trial court repeatedly advised the venir members that the term would not be defined at trial and they were to use their own common sense interpretation of what the word deliberately means in answering the first special issue.

To support that statement, I would refer the Court to the joint appendix at pages 90, 169, 205, 291, 353, and 419.

Finally, Graham’s assertion that the trial court’s definition of the term, criminal acts of violence, somehow reduced the State’s burden of proof on the second special issue is likewise reputed by the record.

The examples offered by the trial court of relatively minor offenses were included in a broad definition of that term, which also referred to robbery, rape, and murder.

Again, as with the term, deliberately, the trial court told the venir members that criminal acts of violence would not be defined at their trial, and as with the term, deliberately, the jurors would use their own common sense interpretation.

Not only is Graham’s claim factually lacking, it also is untenable as a matter of law under Jurek.

In Jurek, this Court upheld the constitutionality of the statute at issue here precisely because it allows the jury to consider whatever evidence of mitigating circumstances the defense can bring before it.

The Jurek court did not believe that the special issues were so narrow as to foreclose consideration of mitigating evidence, but instead found that they got in focus the jury’s consideration of the circumstances of the individual offender and his offense.

Jurek controls Graham’s claim.

There, as here, the defendant was a young person at the time of his offense.

Charles A. Palmer:

Both the Texas Court of Criminal Appeals and the Fifth Circuit have held that youth includes defendants up to the age of 23 at the time of their offense.

Graham acknowledges, as he must under Jurek, that his jury could give mitigating effect to his youth in answering the second special issue, but he claims that it had relevance outside the scope of the Texas statutory scheme.

As the court of appeals observed, though, to say that youth cannot be considered under the special issues is necessarily to say that any evidence to which a defendant ascribes mitigating value cannot be considered.

David H. Souter:

Are you going to get to… did someone else speak?

Are you going to get to his specific argument that in this case he was sufficiently young so that when, for purposes of the second question, future dangerousness, the jurors considered that youth, their likely response would be that he is so young that even after conviction he’s still going to remain young, and it’s going to be quite some time before he outgrows the impulsiveness, violence, whatever the case may be, and therefore, considering youth, it really must be considered as an aggravating factor rather than a mitigating one, with the result, unless there is a special Penry kind of circuit-breaker here, that there would be no way to consider the youth as a mitigating factor?

What is your response to that argument?

Charles A. Palmer:

My response is, Your Honor, that examination of the trial record reveals that youth was offered for one purpose only, and that was to show that Graham would not be a future danger.

Although Graham introduced no evidence of his age at the time of the offense, he was tried 5 months after the offense, and the jury was able to observe his apparent age at the time of trial.

In addition, defense counsel stated without objection that Graham had been 17 at the time of the offense.

Defense counsel argued that because of his youth Graham had, and I’m essentially paraphrasing his closing argument, had redeeming value, that he could be rehabilitated, that he would change, would slow down, if his life were spared.

The record is devoid of any suggestion that Graham wished for his youth to be considered for any other purpose at trial.

The trial court was not requested to give the supplemental instruction to which Graham claims he is now entitled.

Perhaps most damaging to Graham, rather than whatever aggravating quality might be attached to his youth is the fact that the State proved that he was a demonstrably violent person, as evidenced by the number of extraneous offenses they introduced at the punishment phase of trial.

The State, as recited in our brief, proved up a number of robberies and rapes committed by Graham over a 1-week period.

In addition, they offered the testimony of a juvenile probation officer that Graham’s reputation for being a peaceful and law-abiding citizen is bad.

Her evidence… her testimony obviously supports the inference that prior to this 1 week in May of 1981 he had not been a model citizen.

If, however, Your Honor, we accept the definition of youth as given by the Court of Criminal Appeals in the Fifth Circuit, we have to consider it as going all the way up to 23, in which case it falls apart.

A 23-year-old defendant cannot make the same argument as Graham can.

Indeed, a 17-year-old defendant who is… obtains a reversal of his conviction, is retried at the age of 24, cannot make that argument.

Although Graham acknowledges–

Sandra Day O’Connor:

Counsel, how many cases are there with a death sentence pending now in Texas–

Charles A. Palmer:

–Under this statute, Your Honor?

Sandra Day O’Connor:

–That fall under this old statute where the argument is made that youth was a factor?

Charles A. Palmer:

Your Honor, I do not… there are 360 pending cases.

I do not know at how many of those trials that argument was made.

William H. Rehnquist:

360 under the old statute?

Charles A. Palmer:

360 inmates on death row in Texas who were convicted under the old statute.

Although Graham concedes, as he must, that Jurek remains–

Anthony M. Kennedy:

Did the Texas courts under the old statute, other than perhaps in the Penry case, grant supplemental instructions in any cases?

Charles A. Palmer:

–Your Honor, I am aware that that has been done.

Charles A. Palmer:

I don’t think it’s been done–

Anthony M. Kennedy:

Mr. Tigar represented to us that the Court of Criminal Appeals said we will not retreat from this.

I wasn’t sure if that was pre-Penry or post-Penry.

Charles A. Palmer:

–Well, Your Honor… no, Your Honor.

What I’m saying is not that the Court of Criminal Appeals required it, but I know in at least some cases, and I don’t want to misspeak, I know it’s a very small number, the trial court gave those instructions when requested even though there was no State appellate authority for doing so.

Anthony M. Kennedy:

What is the date of the new statute?

Charles A. Palmer:

It became effective September 1st of 1991.

Anthony M. Kennedy:

’91.

Charles A. Palmer:

Although Graham concedes, as he must, that Jurek remains good law–

John Paul Stevens:

May I ask on the timing–

Charles A. Palmer:

–Yes, Your Honor.

John Paul Stevens:

–Your opponent cited Black v. State, which I haven’t read.

What is the significance of that case in this time sequence?

It’s a 1991 case, I think.

Charles A. Palmer:

Your Honor, I’m not sure I know… if it’s the case I think it is, it had to do with excusing a defendant’s failure to raise the issue at trial.

In other words, excusing a procedural default, but I will defer to what Mr. Tigar tells you in that regard.

As I was saying, Graham concedes, as he must, that Jurek remains good law, yet he asks this Court to interpret Penry in a manner that can’t be squared with Jurek.

As the court of appeals observed, Graham’s interpretation of Penry is so broad that it requires that Jurek be overruled.

Viewed in that light, his claim has failed because it is a new rule that would be barred by Teague v. Lane, or in the alternative, if Penry is to be interpreted as Graham urges… that is, to abrogate Jurek… then Penry was wrongly decided and should be overruled.

The Court need not go that far, however.

They can decide this case simply by doing as the Fifth Circuit did, attempting to reconcile the two lines of capital sentencing precedent and by clarifying the holding of Penry.

As the Court has noted many times in explaining the operations of the Texas statute and in reconfirming the validity of Jurek, Texas narrows the class of death eligibles at the guilt phase to the statutory elements of capital murder.

Byron R. White:

But I take it your position is that youth is not a mitigating factor in the sense that it reduces the culpability of the offender for having committed the offense.

Charles A. Palmer:

No, Your Honor… or, yes, Your Honor, that is what I’m saying.

Byron R. White:

Yes, and that is… if culpability for the crime that’s been committed were a mitigating factor the second question the jury has to answer does not reflect that.

It goes only to future dangerousness.

Charles A. Palmer:

Yes, Your Honor, but the point I’m making is that his present culpability, his culpability for the crime itself, is taken into account by the jury at two different stages of the trial: 1) in finding him guilty of the capital murder itself, because in doing so it has found him to be eligible for the death penalty, and then the second time, through the first special issue of whether or not he committed the crime deliberately.

Byron R. White:

Well, deliberately just means intentionally, or–

Charles A. Palmer:

No, Your Honor.

The Texas Court of Criminal Appeals has said that deliberately is not the linguistic equivalent of intentionally.

Charles A. Palmer:

Deliberately is a state of mind that embraces more than a will to engage in the conduct.

It is a mental process that activates the intentional act.

Byron R. White:

–So to the extent that it is claimed that a youth as compared with an adult is really not in full control of himself, that may be considered under issue 1.

Charles A. Palmer:

Yes, Your Honor, and it’s also something that necessarily can be considered under issue 2, because the jury knows and is told, as it was by Graham’s counsel at his trial, that he will not remain a youth forever.

He will change.

He will slow down.

Byron R. White:

I understand that.

I understand that, but that has to do with the future.

Charles A. Palmer:

Yes, Your Honor, that does.

Anthony M. Kennedy:

How does youth enter into the determination of guilt initially, just in this same way to find that the requisite intent existed?

That’s duplicated–

Charles A. Palmer:

Well, Your Honor, I’m not sure–

Anthony M. Kennedy:

–I thought you’d indicated that youth was taken into account in deciding whether he’s guilty to begin with… guilty of the murder.

Charles A. Palmer:

–If that was how Your Honor understood me, I apologize.

What I was saying was that his present culpability is determined at the guilt stage and under the statute, of course, youth is not a legal excuse for committing a capital murder, but it is something that can be and has been argued on the first special issue.

That is, the deliberateness.

Anthony M. Kennedy:

So you’re back just to the special issues.

You indicated that Penry should or could be clarified.

Do you have a suggestion or formulation to clarify Penry?

Charles A. Palmer:

Your Honor, we would urge that what the court of appeals did in this case is a noble attempt to reconcile the Court’s two lines of cases.

I really can add nothing beyond that.

Byron R. White:

Well, it… do you think the court of appeals dealt with youth in terms of culpability at all?

I thought it just said as long as youth could be considered a factor in future dangerousness, which it can, that was as far as–

Charles A. Palmer:

No, Your Honor.

I believe what the court of appeals said is that the special issues allow… the special issues, particularly the future dangerousness issue, allow the jury to consider youth as a mitigating factor, and it is our position that the first special issue does so also.

Byron R. White:

–Well, did the court of appeals expressly deal with the notion of youth as a mitigating factor in the sense of less culpability for committing the crime that he’s committed?

Did the court of appeals talk about that, other than by saying you don’t need to… you don’t need a special instruction on that?

Charles A. Palmer:

I’m not sure they’d rest it in just the terms Your Honor has posed.

What they did say, and what I would argue strenuously to the Court, is that there is no showing that youth is mitigating other than the purpose for which it was offered at trial, and that was in regard to the future dangerousness issue, and in that regard we’d rely on Boyde, where the Court observed that the mitigating value of evidence can be determined from the purpose for which it was offered.

Byron R. White:

But the opinions of this Court, perhaps some that I haven’t joined, really refer to culpability, don’t they?

Charles A. Palmer:

They do, Your Honor, and again, it is our position that the first issue raises that.

Byron R. White:

And there is plenty of support in the cases that youth is a factor that is fairly considered in terms of culpability.

Charles A. Palmer:

Yes, Your Honor.

I don’t wish to beat this too much, but again, the first issue focuses on present culpability, the second on future dangerousness.

David H. Souter:

Yes, all right.

Mr. Palmer, I’m not sure I understand how youth is considered under the first question.

As a premise to asking you about that, may I just ask you to go back a moment to something that I think I recall your saying when you were commenting on the manner in which the Texas courts have defined deliberateness, and you said they didn’t simply equate it with intention.

If I remember what you said correctly, you said that they had defined deliberateness or deliberation as the process which leads to the doing of an intentional act, is that correct?

Charles A. Palmer:

That is correct, Your Honor.

David H. Souter:

All right.

Well, does it follow from that that whenever an intentional act has been committed that it must therefore have been a deliberate act, or the result of deliberation?

Charles A. Palmer:

No, Your Honor.

The way–

David H. Souter:

Then I don’t think I understand you.

Charles A. Palmer:

–Well, Your Honor, quite frankly, I’m not sure I understand all the nuances of mens re myself, but as I understand it, what the Court of Criminal Appeals has held is, deliberateness falls somewhere between premeditation and intent, and it involves some mental process more than simply the intent to do the act but less than deliberated premeditation.

David H. Souter:

So it isn’t merely an element leading to an intentional act, it is some… in some sense it is a further mental element in addition to intentionality–

Charles A. Palmer:

Exactly, Your Honor.

David H. Souter:

–And it has been so defined by the Texas courts.

Charles A. Palmer:

Yes, Your Honor.

David H. Souter:

This is… I don’t mean to put you on the spot here, but could you give me a cite to a case–

Charles A. Palmer:

Yes, Your Honor–

David H. Souter:

–In which they have so construed it?

Charles A. Palmer:

–I would site Firens v. State.

It’s a 1981 case, 620 Southwest 2d, 577.

David H. Souter:

I’m sorry, 6–

Charles A. Palmer:

620.

620, Your Honor, 577.

–Southwest–

Charles A. Palmer:

2d.

David H. Souter:

–Yes.

David H. Souter:

Now, with that as a premise, would you explain to me how youth comes into the consideration of deliberateness?

Is it in the sense that a young person is thought to be less capable of engaging in this kind of deliberative process, is that the point?

Charles A. Palmer:

Yes, Your Honor.

I think that much can be gleaned from Graham’s brief in this case where he lists the qualities of youth that are deemed to be mitigating, and among them is impulsiveness, the inability to think rationally or maturely before acting, obviously deliberate is going to be the converse of impulsive, and if a quality of youth is impulsiveness, then just as obviously the deliberateness inquiry will encompass that.

As I was saying moments ago, the class is narrowed at the guilt phase, then we have the punishment phase at which the State bears the burden of proof beyond a reasonable doubt on all of the special issues.

We know from Walton v. Arizona that it is permissible for the defendant to prove mitigation by a preponderance.

Texas affords the defendants… its capital defendants much more protection in that regard by requiring the State to prove the issues beyond a reasonable doubt.

The defendant is allowed to introduce whatever evidence he wishes in mitigation, and the jury normally is instructed, as it was in Graham’s case at page 10 of the joint appendix, that it is to consider all the evidence presented.

Not only is there no instruction limiting the jury’s consideration of that evidence, but it is in fact instructed to consider all of the evidence introduced at both phases of trial.

Penry simply held, we believe, that supplemental instructions were required in that case to allow the jury to give effect to his mental retardation and childhood abuse as mitigating factors, and that holding followed from the recognition that although Penry’s evidence had mitigating quality, that it was essentially aggravating as to the future dangerousness inquiry.

John Paul Stevens:

But wasn’t it also true that there was some emphasis in the opinion on the lesser moral culpability for a mentally retarded person?

Charles A. Palmer:

That is true, Your Honor, and I suppose to that extent Penry’s evidence cannot be considered within the first special issue, either.

John Paul Stevens:

To that extent, I guess–

–Excuse me, you suppose to that extent, what?

I’m having trouble hearing you.

Charles A. Palmer:

That the jury was not able to give full mitigating effect to his evidence within the first special issue as well as the second.

John Paul Stevens:

But to that extent isn’t that case somewhat similar, at least, to this case, in that at least under Justice White’s questioning you suggested that youth may reduce the moral culpability of the defendant, but… oh, you take the position it does not reduce the moral culpability of the defendant.

The chronological age does not, but mental age might.

Charles A. Palmer:

No, Your Honor, we will accept that perhaps chronological age does, but that it has no relevance outside the inquiries posed by the two special issues, the first two.

John Paul Stevens:

That the reduced moral culpability of the defendant has no relevance.

Charles A. Palmer:

No.

No, Your Honor, we accept that that’s relevant and that is a consideration as far as mitigating evidence goes.

It’s simply our position that the special issues allow consideration of that with regard to whether he acted deliberately and then as to future actions, through the second issue.

John Paul Stevens:

That the special issues do allow adequate consideration of reduced moral culpability.

Charles A. Palmer:

Yes, Your Honor.

John Paul Stevens:

But then, why wasn’t that a satisfactory answer in Penry?

That’s what I’m not clear on.

Charles A. Palmer:

Well, again, I would defer to what the court of appeals said, and that is that Penry suffered from a uniquely severe permanent handicap.

That is, the standard the Fifth Circuit has enunciated that a capital defendant must satisfy to prevail on a Penry claim and–

John Paul Stevens:

I see the relevance of that when you’re predicting future dangerousness, but I’m not quite sure I understand why that seriously distinguished the two cases on moral culpability.

Charles A. Palmer:

–I’m sorry, Your Honor, I can’t give you any other answer than I have.

Anthony M. Kennedy:

Thank you.

Suppose 10 years goes by so that a 17-year-old is not sentenced until he’s 27 years old, does future dangerousness then take into account his youth at the time of the commission of the crime?

Charles A. Palmer:

I would say not, Your Honor.

Anthony M. Kennedy:

It was 4 years in this case until he was sentenced.

Charles A. Palmer:

No, Your Honor, he was tried and sentenced 5 months after–

Oh, 5 months.

Charles A. Palmer:

–Now, again, my primary position… and forgive me for articulating it so poorly, is that it’s the first special issue that focuses on the present culpability, but the second special issue allows the jury to give mitigating effect to his youth as having the capacity for rehabilitation, the capacity for rehabilitation being an equally valid sense and concern as his personal culpability.

Graham also argues that the prosecutor argued his youth as a basis for a sentence of death.

The record does not support this assertion.

The argument which is contained at page 480 of the joint appendix simply stressed that Graham is a demonstrably violent person and that his past actions were probative of his future behavior.

The prosecutor did not argue, even remotely suggest, that Graham deserved to die because he was young.

Finally, Your Honors, in closing I would like to respond to what I would consider a rather curious assertion that the act of the Texas legislature in amending the statute somehow lends validity to Graham’s claim.

As an initial matter, I would note that it is incorrect, as Graham asserts at footnote 11 of his reply brief, that the Office of the Attorney General drafted and sponsored the new statute.

In fact, the statute that was passed is not the one that was drafted and supported by our office.

That matter aside, it can hardly be doubted the legislature acted prudently in responding to the Penry court’s concerns, and in amending the statute they necessarily did so broadly enough to encompass the class of Penry excludables.

Their action in doing so, however, should not be taken as a concession as to the validity of the 360 remaining convictions.

I think this assertion is perhaps supported by the fact that there have been 21 executions that have taken place since Penry, all under the old statute.

In closing, Your Honors, I would like to emphasize that the scope of the decision in this case far exceeds mere youth.

We are seeing… since Penry was decided, we’ve seen a number of claims by capital defendants as to what constitutes mitigating evidence, and included in those are the fact that the defendant was a sociopath, a condition this Court has found very aggravating in Smith v. Estelle–

William H. Rehnquist:

That’s claimed to be mitigating, the fact the person’s a sociopath.

Charles A. Palmer:

–Yes, Your Honor.

James Demouchette, the last prisoner to be executed in Texas, the execution of which took place last month, that was precisely is submission… that he was a sociopath, that that explained his actions, that he could not control it, and that therefore it was mitigating under the rule of Penry.

We’ve also been told things such as… by a Hispanic petitioner who claimed that it was part of Hispanic culture to smoke marijuana and to get into fights, and that the evidence he presented of that at his trial was mitigating.

We’ve been… we’ve seen claims from defendants who were brought up, they claim, to hate a particular racial group, and therefore the acts of violence they committed on members of that group were mitigating.

Again, these claims, bizarre as they may seem, fit within the language of Henry in that they explain the defendant’s actions and they show that he is burdened with a condition over which he has no control.

If the Court has no further questions, that concludes my remarks.

William H. Rehnquist:

Thank you, Mr. Palmer.

Mr. Tigar, you have 9 minutes remaining.

Michael E. Tigar:

We have a watershed difference here about what the jury was told in this case as to special issue number 1 and the intent element of the offense, and something of a difference about Texas law.

Michael E. Tigar:

I’d like to try to resolve it.

At pages 6 and 7 of our brief, quoting from the joint appendix, we have extensive quotations from the voir dire as to what the jurors were told: deliberately means that in my mind anyway it is a person’s intention to do something, and other remarks to the same effect.

At joint appendix 5, we have the jury instructions given in the guilt phase.

Intentionally, or with intent with respect to the nature of his conduct, or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Now, all that complicated language does is read out section 6.02(a) of the Texas Penal Code, which differs from the model penal code quadripartite intent elements only in that Texas chooses to use the word intention rather than purposefulness, which is the more preferred model penal code formulation, but then when it’s defined, it’s the same thing.

It’s in terms of this conscious objective or desire, so there can’t be any doubt that the trial judge conflated these two standards and thus took care of any mitigating force that might have been in special issue number 1.

Anthony M. Kennedy:

Well, is the jury entitled to consider the strength of the State’s evidence on intent?

Michael E. Tigar:

The standard of proof, Justice Kennedy, is the same with respect to both of the elements, so that there really isn’t any opportunity for the jury to do other than look again to the same things they looked at plus, of course, to the additional aggravating evidence when they get on to the punishment phase.

That’s the difficulty.

Then we look at Black v. State.

Now, that’s a post-Penry decision, and there’s a defendant up in–

Byron R. White:

Mr. Tigar, your argument that you just made that in this case the judge conflated this and that, I suppose that doesn’t go to the facial validity of the Texas statute.

Michael E. Tigar:

–No, it doesn’t Justice White.

That’s–

Byron R. White:

And so you might win this case, but if the trial judge had spoken differently you might lose it.

Michael E. Tigar:

–That’s correct, Justice White, and we might lose… might have lost this case if the defendant were 25 years old.

I mean, if the case were a different one than it was at the margin as opposed to right in the center, then there’d be a different result.

That’s the meaning of an as-applied challenge, and if I may interrupt my Black v. State discussion, that’s what we think is wrong with the court of appeals.

The court of appeals turns Penry on its head, because it doesn’t look at this question of youth in its relationship to the very thing that the Court identified in Eddings as central.

Instead, it goes off on this future dangerousness thing and analyzes it in that regard and then gets to the result that it gets to.

William H. Rehnquist:

Mr. Tigar, your opponent says that claims have been raised in Texas now since Penry that being a sociopath is in effect a mitigating circumstance.

If you prevail here, do you think that would have to be regarded as a mitigating evidence?

Michael E. Tigar:

Of course not, Justice Rehnquist.

Of course not.

I mean, this Court said in Eddings how this is to be done.

There are these constitutionally mitigating factors, and then there’s an assessment of the evidence standard.

The opinion for the Court in Boyde v. California should teach anyone foolhardy enough to come up here what’s going to happen to them if they make an argument of that kind, so I don’t think that the Court needs to worry about that.

The problem is that, of course, the Court of Criminal Appeals will decide those cases and presumably the Court won’t… won’t want to hear them.

The problem with the Court of Criminal Appeals in this Black case is that at page 364 they say, unless your name is Penry and you took the same IQ test, what they say we will not retreat means no additional jury instructions.

It’s futile to ask for them.

Michael E. Tigar:

No procedural bar.

Byron R. White:

Well, it could be that mental retardation is such a… so likely in every case to affect somebody’s control that you just have a per se rule about it that you have to have a separate instruction, but just being useful, maybe it ought to be decided on a case-to-case basis, which arguably, at least Texas argues, is amply taken care of in issue 1.

Michael E. Tigar:

It could be, perhaps, Justice White.

In some other case.

Michael E. Tigar:

That was the promise of Jurek.

Byron R. White:

In some other case.

Michael E. Tigar:

Well, they promised in Jurek they were going to do it and then they didn’t, and that, it seems to me, is the difference between the facial and as-applied challenge.

To look at it more broadly, in Stanford v. Kentucky the Court wrote an opinion.

You counted the statutes.

You looked at the 29 States that said, let’s put youth in there.

29 is surely more of a constitutional consensus than that found inadequate in Stanford and yet not quite so much as the one you had in Coker, so I think that it’s a fair question whether you have to say youth or whether under one of these catch-all statutes it would be adequate to those purposes.

And the final observation I would make is that we are told that mitigating evidence didn’t take up very many pages in the transcript.

The Fifth Circuit accepted it for what it was, so that issue has been resolved.

The hearsay point, I wonder where trial counsel for the State was, or for the district attorney.

It wasn’t objected to.

The point about youth is that it only takes a word in the transcript… he’s 17… and the evocative power of it in our law life for 2,200 years of recorded legal history has been enough for sentencers to say, oh, he is?

That’s mitigating.

And that, if the Court please, is our respectful submission.

William H. Rehnquist:

Thank you, Mr. Tigar.

The case is submitted.