The Supreme Court/The Supreme Court.iso/mac/ascii/1993/93_6047/93_6047.za

Text File | 1994-05-18 | 6KB | 119 lines

SUPREME COURT OF THE UNITED STATES
BOBBY JOE WILLS v. TEXAS
on petition for writ of certiorari to the court
of criminal appeals of texas
No. 93-6047.  Decided May 16, 1994

  The petition for a writ of certiorari is denied.
  Justice O'Connor, concurring in the denial of the
petition for a writ of certiorari.
  As Justice Blackmun details, post, at 1-3, petitioner
appears to have a strong claim under Penry v. Lynaugh,
492 U. S. 302 (1989), that the jury at his capital
sentencing trial was unable to give mitigating effect to
his mental retardation.  It has been the traditional
practice of this Court, however, to decline to review
claims raised for the first time on rehearing in the court
below.  See Radio Station WOW, Inc. v. Johnson, 326
U. S. 120, 128 (1945) (-Questions first presented to the
highest State court on a petition for rehearing come too
late for consideration here, unless the State court
exerted its jurisdiction [over them on rehearing]-)
(emphasis added).  Following this practice here makes
good sense because we do not have the benefit of a
decision analyzing the application of Penry to the facts
of petitioner's case.  Petitioner is free to bring his Penry
claim to the attention of the Texas courts in a postcon-
viction proceeding.  See Ex parte Kunkle, 852 S. W. 2d
499, 502, n. 3 (Tex. Crim. App. 1993) (Penry claims are
cognizable in state habeas despite an applicant's failure
to raise them on direct appeal).  If he is unsuccessful in
state court, petitioner can proceed to federal court and
petition for a writ of habeas corpus.  Because these
avenues of relief are sufficient to afford full review of
petitioner's substantial constitutional claim, I concur in
the denial of the petition for a writ of certiorari.


  Justice Blackmun, dissenting.
  Petitioner Bobby Joe Wills, a mentally retarded capital
defendant who was 17 at the time of his offense, was
sentenced to death in Texas without the jury's being
allowed to give mitigating effect to his mental impair-
ment.  Petitioner's death sentence thus was imposed in
direct violation of Penry v. Lynaugh, 492 U. S. 302
(1989), and is devoid of the reliability the Constitution
requires before death can be the appropriate punish-
ment.  See Woodson v. North Carolina, 428 U. S. 280,
305 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.).
  Petitioner has an IQ of 61.  At his trial in 1985,
petitioner's counsel introduced evidence of petitioner's
mental retardation to challenge only the reliability of his
confession and his mens rea to commit the offense.  At
the close of the guilt phase, the prosecutor admonished
the jury not to -have any sympathy for the defendant
because he's a little slow or he's borderline mentally
retarded . . . Don't say `Poor Old Bobby Joe, he's a little
slow, he's borderline mentally retarded.  Let's give him
a break.-  Pet. for Cert. 10.  At the penalty phase, the
jurors were asked to answer Texas' two standard
-special issues-:  -Did [Wills] act deliberately when he
murdered . . . ?  Is there a probability that he will be
dangerous in the future?-  See Penry, 492 U. S., at 320.
The prosecutor repeatedly commanded the jurors to
consider only these questions and reminded them:
-You're not asked, `Was the defendant given an unfair
chance at life?'-  Pet. for Cert. 11.  After reviewing
petitioner's unstable past, the prosecutor concluded that
-all the counselors and all the psychologists and all the
teachers and all the case workers and all the supervi-
sors can't do anything for Bobby Joe Wills.  They can't
rehabilitate Bobby Joe Wills.-  (Emphasis added).  Ibid.
The jury returned affirmative answers to both special
issues and sentenced petitioner to death.
  Penry v. Lynaugh was decided while petitioner's direct
appeal was pending.  Recognizing that mental retarda-
tion may render a defendant -less morally `culpable than
defendants who have no such excuse,'- 492 U. S., at
322, quoting California v. Brown, 479 U. S. 538, 545
(1987) (O'Connor, J., concurring), this Court held that
Texas' execution of a mentally retarded defendant,
without the jury's being instructed that it could consider
and give mitigating effect to his mental impairment in
imposing sentence, would violate the Eighth Amendment.
A rational juror, this Court observed, readily could con-
clude that a mentally retarded capital defendant had
killed deliberately and was likely to be dangerous in the
future, while also concluding that mercy and the
defendant's reduced culpability for the crime made his
execution inappropriate.  Texas' capital-sentencing
scheme allowed a jury to give effect to the former
conclusion but not the latter, and thus eliminated -a
constitutionally indispensable part of the process of
inflicting the penalty of death.-  Woodson, 428 U. S., at
304 (opinion of Stewart, Powell, and Stevens, JJ.).
  Like Penry, petitioner was condemned to die by the
State of Texas without the jury's ever having had an
opportunity to give a -reasoned moral response to the
defendant's background, character, and crime.-  Brown,
479 U. S., at 545 (O'Connor, J., concurring).  His
sentence therefore runs the constitutionally intolerable
risk that the death penalty has been imposed despite
the presence of factors that may justify a sentence less
than death.  See Lockett v. Ohio, 438 U. S. 586, 605
(1978) (opinion of Burger, C.J.).
  It is possible that petitioner's claims may be better
addressed in state and federal post-conviction proceed-
ings.  Even if I did not believe that the death penalty
cannot be fairly administered within the constraints of
our Constitution, see Callins v. Collins, 510 U. S. ___,
___ (1994) (Blackmun, J., dissenting from denial of
certiorari), however, because the execution of this
mentally retarded juvenile offender would constitute a
miscarriage of justice, I would grant the petition, vacate
the death sentence, and remand for resentencing.  I
therefore dissent.