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Wednesday, June 13, 2001

How does the Supreme Court view the obligations and abilities of ordinary citizens? Both the Penry death penalty decision, issued this month, and Bush v. Gore shed light on this question - while providing an interesting contrast.

In Penry, the Court refused to assume jurors were able to understand a confusing set of instructions. In Bush v. Gore, the Court showed far less sympathy for voters who claimed confusion.

Confusing Jury Instructions

In October 1979, Johnny Paul Penry committed a brutal rape and murder. Although he was 22 at the time, he had the mental age of a six-year-old.

At Penry's sentencing hearing, the jury was instructed to answer three questions (called "special issues"), two of which are relevant here:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

The jury answered "yes" to both. As a result, pursuant to Texas law, a sentence of death was imposed. But the Supreme Court took the case and in 1989 ruled in Penry's favor, vacating the sentence.

The Eighth Amendment prohibits cruel and unusual punishment, and longstanding Court precedent required that when considering whether to impose the death penalty, a sentencing judge or jury must have the opportunity to consider all relevant mitigating evidence.

Jurors should have been able to treat proof of Penry's retardation as just such evidence, the Court reasoned. It could have mitigated his culpability, by showing he was less able than a person of normal intelligence to understand or control his conduct. Yet the jurors were given no room to weigh such evidence in their decision.

Indeed, as Justice O'Connor observed, the only way for the jury to consider Penry's retardation was as a reason in favor of the death penalty. The second question asked whether Penry was a "continuing threat." The jury might have answered yes in part because it believed Penry's retardation made him more likely to commit further crimes.

More Confusing Jury Instructions

Penry was re-sentenced in 1990. At the new hearing, the prosecution stressed the brutality of his crime and his likelihood of future dangerousness. Penry's lawyers presented evidence of his diminished capacity. Then the judge instructed the jury.

The judge gave instructions regarding the same questions (special issues) as in the first case. He also gave them a verdict form containing only these same questions.

Did the judge entirely ignore the Supreme Court's ruling? Not quite. In addition to the standard instructions regarding the special issues, he told the jury that they could also consider whether mitigating evidence sufficiently diminished Penry's culpability. If so, he said, "a negative finding should be given to one of the special issues."

Put more simply, what the jurors were supposed to do was to answer the two questions. If both answers were "yes," they were then supposed to consider the mitigating evidence concerning Penry's retardation. If they believed that based on this evidence, Penry was less to blame for his crimes, they could go back and change one of their "yeses" to a "no."

The judge's instructions, even simplified this way, would have been quite confusing. The answers to the two special issues were entirely independent of the mitigation issue. So it made little sense for the judge to force the jury to change its special issue answers if it wanted to refrain from imposing death.

Suppose jurors honestly answered yes to question #1 - agreeing that Penry acted deliberately and knew he would cause death. Supose they also honestly answered yes to question #2 - agreeing that Penry was a continuing threat. They still could honestly believe that, in the end, due to his retardation, he should not receive a death sentence.

Yet under the sentencing judge's instructions, the jury could only save Penry if it crossed out a "yes" - thus answering one of the questions dishonestly - and submitted to the judge a form with a dishonest answer.

These problems led the Court to rule, 6-3, this month that Penry's second sentencing hearing, like his first, was constitutionally defective.

The Contrast with Bush v. Gore

Justice Sandra Day O'Connor was the author of both Penry decisions. In both decisions (especially the latter), she, and the Court for which she wrote, displayed an admirable sensitivity to the difficulties of lay jurors faced with confusing, contradictory instructions.

Contrast that sensitivity with a pointed question Justice O'Connor posed to Gore attorney David Boies during the oral argument in Bush v. Gore. Mr. Boies was arguing that, under the Florida standard for gauging the "intent of the voter," a ballot that was not aligned perfectly with the punch-card machine should still be counted. Justice O'Connor impatiently interrupted him, asking rhetorically: "Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer."

The Bush v. Gore per curiam opinion (joined by Justice O'Connor) did allow for the possibility that under some circumstances, an incompletely marked ballot could be counted. But it still blamed these ballots on voter "error or deliberate omission" - despite substantial evidence that hanging or dimpled chads often resulted from defects in machinery or ballot design instead. Any failure to follow instructions perfectly was attributed to the citizen, who received little sympathy from the Court.

Are Penry II and Bush v. Gore, then, logically irreconcilable? No. Justices O'Connor and Kennedy - the two Justices who were in the majority in both cases - could point to any number of distinctions. Most obvious perhaps is that in Penry II, a man's life was at stake. Yet the stakes in Bush v. Gore, the leadership of the most powerful nation on Earth, were hardly low.

Even if Penry II does not represent a shift in reasoning, it does reflect a laudable shift in attitude and tone - from the impatient "It couldn't be clearer" to a prudent "It's not clear enough."

In Justice O'Connor's question to David Boies, one hears an exasperated parent scolding her unruly children for failing to follow simple directions. In her Penry II opinion, one hears respect for citizens trying their best to do their civic duty.

Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University.

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