Tennard v. Dretke

PETITIONER:Robert James Tennard
RESPONDENT:Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division
LOCATION:Meramec River

DOCKET NO.: 02-10038
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 542 US 274 (2004)
ARGUED: Mar 22, 2004
DECIDED: Jun 24, 2004

Edward L. Marshall – argued the cause for Respondent
Robert C. Owen – argued the cause for Petitioner

Facts of the case

Robert Tennard was convicted of murder. During the sentencing phase, he presented evidence that he had an IQ of 67. The instructions given to the jury by the judge when it was considering whether to apply the death penalty, however, did not account for this – they instructed they jury to determine whether the crime was committed deliberately and whether Tennard posed a future risk. Under Penry v. Lynaugh, 492 U.S. 302, those instructions are not enough to allow the jury to weigh a defendant’s mental retardation in his favor. After he was sentenced to death, Tennard filed a habeas corpus petition in federal district court, claiming that the sentence, given the shortcomings of the jury instructions, violated the Eighth Amendment’s prohibition of Cruel and Unusual Punishment. The district court rejected the petition. The Fifth Circuit Court of Appeals affirmed, ruling that Tennard had no shown that his mental retardation was constitutionally relevant. To be constitutionally relevant, Tennard’s retardation would have had to be responsible for his crime, and Tennard had not shown that this was the case.

After the Supreme Court decided, in Atkins v. Virginia, 536 U.S. 304, that executing the mentally retarded violated the Eighth Amendment, the Fifth Circuit reconsidered its holding. It affirmed the decision on the grounds that execution was only unconstitutional if the defendant could show that his mental retardation had actually caused the crime; being mentally retarded in and of itself did not exempt someone from the death penalty.


Does the Supreme Court’s prohibition of executing mentally retarded people in Atkins v. Virginia apply if the crime cannot be attributed to mental retardation?

Media for Tennard v. Dretke

Audio Transcription for Oral Argument – March 22, 2004 in Tennard v. Dretke

Audio Transcription for Opinion Announcement – June 24, 2004 in Tennard v. Dretke

William H. Rehnquist:

The opinion of the Court in No. 02-10038, Tennard against Dretke will be announced by Justice O’Connor.

Sandra Day O’Connor:

The petitioner in this case, Robert Tennard, was found guilty of capital murder in 1986.

During the penalty phase of his trial, he presented evidence that he had an IQ of 67.

The jury was instructed to determine the appropriate punishment by considering two questions: First, whether Tennard had committed the crime deliberately; second, whether he presented the risk of future dangerousness?

In Penry versus Lynaugh, we held some years ago that these two so-called special issues did not provide the jury with a constitutionally adequate vehicle by which to give effect to Penry’s evidence of mental retardation and childhood abuse.

In state postconviction review, and again in his federal habeas petition, Tennard in this case, argued that the rule of Penry had been violated in his case because the special issues did not adequately permit the jury to give effect to his low IQ evidence.

The District Court held that the State Court’s application of Penry was not unreasonable and the Fifth Circuit Court of Appeals denied a certificate of appealability.

Following a course that has consistently taken in cases involving claims based on Penry, the Fifth Circuit Court of Appeals applied a screening test to Tennard’s claim.

Under that screening test, that Court will not consider whether evidence presented by habeas petitioner was within the jury’s effective reach as required by Penry unless the petitioner first establishes both of the evidence was of uniquely severe permanent handicap and that there was a nexus between the uniquely severe condition in the crime.

In this case, we now reject that screening test.

It is not based on any of this Court’s decisions and it is inconsistent with our prior discussions of the principles guiding evidentiary relevance in capital sentencing.

We address next the question the Fifth Circuit Court of Appeals should have considered, that is whether reasonable jurors could find debatable or wrong the District Court’s disposition of Tennard’s Penry claim.

We conclude that reasonable jurors could so find the relationship between the special issues and Tennard’s very low IQ evidence as the same essential features as the relationship between those issues and Penry’s retardation evidence.

We hold that a certificate of appealability should have issued.

Accordingly, we reverse the judgment of the Fifth Circuit Court of Appeals and remand for further proceedings.

The Chief Justice and Justices Scalia and Thomas have each filed dissenting opinions.