Brewer v. Quarterman; Abdul-Kabir, fka Cole v. Quarterman

In Johnson v. Texas, 509 U.S. 305 (1993), the Supreme Court held that, in capital cases, jury instructions must allow jurors to consider the mitigating evidence presented by the defense. See Johnson, 509 U.S. at 369. This concept was reaffirmed in Penry v. Lynaugh, 492 U.S. 302 (1989), where the court stressed the importance of individualized sentences in capital cases and discussed the relatedness of mitigating evidence to achieving result. See Penry at 319. Penry went on to rule that the deliberateness and future dangerous questions did not afford a chance for the jury to consider the mitigating evidence presented in that case, which included evidence of mental retardation, brain damage, and severe child abuse. See Penry at 328. The core of both Brewer and Abdul-Kabir’s arguments is a similar one—that the same two special issue questions to the jury left jurors unable to fully consider the mitigating evidence and moral culpability of Brewer and Abdul-Kabir. See Brief for Abdul-Kabir at 10; Brief for Brewer at 6.

As an initial matter, Brewer and Abdul-Kabir each argue that the evidence of past mental illness and child abuse were mitigating evidence as defined by precedents of the Supreme Court. See Brief for Abdul-Kabir at 13; Brief for Brewer at 9. They go on to argue that the deliberateness question did not call for any inquiry into the moral blameworthiness of either Brewer or Abdul-Kabir and thus did not allow the jury to fully consider the mitigating effects of the evidence presented. See Brief for Abdul-Kabir at 14–15; Brief for Brewer at 10. A jury, each party argues, may be able to answer “yes” to a question regarding deliberateness and yet still believe that past abuse reduces the moral culpability of the crime and thus makes a death sentence inappropriate. See Brief for Abdul-Kabir at 16; Brief for Brewer at 11. However, by merely asking whether the jurors believe the crime was committed deliberately, jurors have no opportunity to express this conflicting belief. See Brief for Abdul-Kabir at 16; Brief for Brewer at 11, FN6.

Even more problematic for Brewer and Abdul-Kabir is the future dangerousness question, which asks jurors whether the defendant posed a threat of future dangerousness. Brewer and Abdul-Kabir argue that not only is mitigating evidence not given proper consideration under this inquiry, but may actually be used against the offering party by explaining, rather than rebutting, a finding of future dangerousness. See Brief for Abdul-Kabir at 17; Brief for Brewer at 12. They argue that evidence of abuse and mental illness might lead a jury to believe that the defendant will be dangerous in the future because of his tortured past, but, for the same reasons, that the defendant does not have the moral culpability to make a death sentence appropriate. See Brief for Abdul-Kabir at 18; Brief for Brewer at 14. By asking a future dangerousness question and only allowing a yes or no answer, jurors can only give effect to the former conclusion drawn, and not the latter.

Quarterman argues, however, that there is no constitutional violation when there is a mere possibility that mitigating evidence was not considered under the special issue questions. Brief in Opposition for Writ of Certiorari at 15, Jalil Abdul-Kabir v. Dretke, No. 05-11284 (July 17, 2006) (“Abdul-Kabir Brief in Opposition”); Brief in Opposition to Petition for Writ of Certiorari at 10, Brewer v. Dretke, No. 05-11287 (July 14, 2006) (“Brewer Brief in Opposition”). For there to be such an error, there must be a “reasonable likelihood” that jurors were unable to give mitigating evidence sufficient consideration. Abdul-Kabir Brief in Opposition at 17–18; Brewer Brief in Opposition at 10. For instance, if mitigating evidence could only be considered as an aggravating factor in answering the special issue questions, then their application would be improper. The cases in which aggravation is the only relevant conclusion to be drawn from mitigating evidence, Quarterman points out, however, are rare. Brewer Brief in Opposition at 12. Further, Quarterman argues that courts have found that jurors are able to give effect to the type of mitigating evidence introduced by both Brewer and Abdul-Kabil in a way that does not merely contribute to a finding of future dangerousness or deliberateness. See Abdul-Kabir Brief in Opposition at 13–14; Brewer Brief in Opposition at 17–20. Thus, there is a reasonable likelihood that jurors could have considered the mitigating effects of the evidence presented in these two cases.

While Brewer and Abdul-Kabir insist that the special issue questions themselves left mitigating evidence without any force, they also argue that the prosecutor in each case curtailed any effect the evidence may have had by reminding the jury that they had no discretion in answering the jury questions. See Brief for Abdul-Kabir at 19–20; Brief for Brewer at 19. Prosecutors in both cases emphasized that their answers should be formed by considering only the evidence presented and not by a subjective determination of what the sentence should be. See Brief for Abdul-Kabir at 37–38; Brief for Brewer at 19. Brewer and Abdul-Kabir argue that this emphasis restrained the jury from giving any meaningful consideration to the mitigating evidence. Brief for Abdul-Kabir at 19–20; Brief for Brewer at 19.

Quarterman contends that Brewer and Abdul-Kabir are merely speculating that the jury, in response to the prosecutions’ arguments, did not give the mitigating evidence full effect. See Abdul-Kabir Brief in Opposition at 18. He argues that in applying jury instructions, jurors employ a significant amount of common sense and are unlikely to apply the kind of technical analysis it would take to exclude all consideration of the mitigating effects of the evidence. Id. The prosecution in these cases did not call for a misapplication of the law or ask jurors to ignore any evidence. See id. at 20. Because the arguments were not improper and because of jurors’ alleged natural inclination to deliberate over the case as a whole, Quarterman argues that the prosecutions’ arguments did not contribute to any constitutional violations. See id. at 18–19.

Finally, Brewer and Abdul-Kabir argue that the courts below applied an improper standard when evaluating the mitigating evidence at the outset. In particular, they argue that the courts examined the severity of the mitigating evidence and the “nexus” between that evidence and the crime at hand to determine the “constitutional relevance” of the mitigating evidence. Brief for Brewer at 38. Under this screening process, only evidence with “constitutional relevance” was considered to be outside the scope of the special issue questions. Id. Applying this test, courts categorize the mitigating evidence, and the evidence that is less severe is considered to be within the scope of the two special issue questions. Brewer and Abdul-Kabil object to an analysis that concludes that mental retardation, a more severe circumstance, is outside of the reach of the special issue questions while mental illness—less severe—can be adequately taken into consideration. Both parties argue that the use of this type of categorical distinction was foreclosed in Tennard v. Dretke, 542 U.S. 274 (2004). See Brief for Abdul-Kabir at 27; Brief for Brewer at 28. They argue that mitigating evidence must be considered in the context of the case and examined in the context of whether or not it can be given effect by the special issue questions posed. See Brief for Abdul-Kabir at 27; Brief for Brewer at 31. Categorical guidelines do not afford this consideration and are not relevant to determining the effect of the evidence is given. See Brief for Abdul-Kabir at 28; Brief for Brewer at 46.

Quarterman agrees that Tennard forbids the use of such categorical rules. See Brewer Brief in Opposition at 12. He argues, however, that Tennard allowed courts to examine evidence that is relevant by general evidentiary standards, rather than relevant as defined by its severity and nexus. See id. at 13. When mitigating evidence is generally relevant, meaning that it has any tendency to make the existence of a fact more or less probable, it must be considered by the jury in capital sentencing. Id. Quarterman then argues, however, that relevant evidence does not have to given “full consideration” under the special issue questions. See Brewer Brief in Opposition at 14. In other words, it is possible that mitigating evidence might have some relevance outside of the consideration given to it under the special issues. Id. This alone, however, is not an Eight Amendment error, so long as consideration of the mitigating factors was not completely foreclosed. Id. at 15. Quarterman cites numerous cases to show that the type of evidence presented here—childhood abuse and mental illness—can be given effect under the deliberateness and future dangerousness questions. Id. at 17–20. For example, in Hernandez v. Johnson, 248 F.3d 344 (5th Cir. 2001), Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998), and Lucas v. Johnson, 132 F.3d 1069 (5th Cir. 1998), the courts found that treatable mental illnesses can be given mitigating effect when considering future dangerousness. See Brewer Brief in Opposition at 19. Therefore, the argument goes, there is no constitutional error in treating only the future dangerousness and deliberateness questions as special issues. See Brewer Brief in Opposition at 16.

The Supreme Court has many precedent cases to look to in answering the questions presented by this case. The scope of these decisions, however, will have to be assessed in examining the proper approach to sentencing in light of the mitigating evidence. Finally, the language of the Court’s decision will be pivotal in guiding its impact. The choice to discuss this case in terms of mitigating evidence generally or to examine the specific type presented here will be relevant to courts attempting to achieving proper sentencing procedures in future capital cases.