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Thursday, July 18, 2024 | Back issues
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High Court Win for Cop Killer on Death Row

WASHINGTON (CN) - A cop killer won another chance from the Supreme Court on Wednesday to challenge his death sentence on the basis of inadequate defense.

Robert Mitchell Jennings killed Houston police officer Elston Howard in 1988. Prosecutors showed that Howard was in the process of arresting the clerk an adult bookstore when Jennings entered the shop with a gun. After shooting Howard four times in the back and head, he robbed the store clerk.

While Texas presented evidence that Jennings had been engaging in criminal activity since he was 14, fresh out of prison just two months before killing Howard, the defense relied only on a jail chaplain's testimony that Jennings was not "incorrigible."

Jennings petitioned for habeas relief in 1996, saying his attorney did little to fight for any other sentence but the death penalty. Those claims proved unavailing until a federal judge granted Jennings habeas relief in 2009 based on the failure to present evidence of Jennings' disadvantaged background.

The court also said the defense could have performed another mental health investigation if it had uncovered a 1978 psychological report that suggested Jennings had "mild organic brain dysfunction" and was mildly mentally retarded.

In so ruling, the District Court upheld two theories Jennings presented under Wiggins v. Smith.

It denied relief on a third theory, under Smith v. Spisak, but Jennings defended his writ on all three theories when the state appealed.

In 2013, the 5th Circuit reversed on the two granted theories without considering the Spisak theory.

It said it lacked jurisdiction on the latter point since Jennings failed to cross-appeal its dismissal by the District Court.

After taking up the case last year, the U.S. Supreme Court reversed for Jennings, 6-3, on Wednesday and directed the federal appeals court to consider the Spisak claim on remand.

"Under the habeas court's judgment, Jennings was enti­tled, at the state's option, to either release, resentencing, or commutation of his sentence," Justice Antonin Scalia wrote for the majority. "Any potential claim that would have entitled Jennings to a new sentencing proceed­ing could have been advanced to 'urge ... support' of the judgment within the meaning of American Railway."

Decided by the U.S. Supreme Court in 1924, United States v. Ameri­can Railway Express Co. concerns the rights of appellees who do not cross-appeal.

Scalia slammed the dissenting justices for a theory that "makes nonsense of American Railway."

"The dissent and the state contend that applying American Railway in this fashion will lead to a proliferation of frivolous appellate defenses in habeas cases," Scalia wrote. "If so, that is a problem that can only be solved by Congress. Until it does so, we think it appropriate to adhere to the usual law of appeals."

Assuring readers that the danger is exaggerated, Scalia noted that the ruling involves petitioners who have already proven at least some habeas claims at the District Court level.

"The notion that they can often be expected to dilute their defense of the (by-definition-nonfrivolous) basis for their victory by dragging in frivolous alternative grounds to support it is thoroughly implausible," Scalia wrote. "Indeed, as the state and Jennings agree, it is rare that a habeas petitioner successful in the district court will even be called upon to defend his writ on appeal."

Justice Clarence Thomas wrote the dissent, joined by Justices Anthony Kennedy and Samuel Altio, which slaps at the majority for confusing "a judgment granting a conditional-release order with an ordinary civil judgment."

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