In 2007, the United States Supreme Court decided Abdul-Kabir v. Quarterman and Brewer v. Quarterman. The CCA first considered these cases in 2008 when they decided Ex parte Moreno. Basically, the CCA examined Rule 79.2 of the Texas Rules of Appellate Procedure and used it to re-examine on their own Moreno's previously denied habeas corpus claim. Well, not really on their own, Moreno had written a nice suggestion that the Court reconsider the issue on its own, but maybe they had the idea before they got the suggestion. Chicken? Egg? Pork, the other white meat?
What was the issue they reconsidered? Moreno had claimed on his original writ that the jury instructions did not allow the jury to give full effect to his mitigation evidence. See, Moreno's case was tried before Penry I , so the special instructions were unconstitutional. Problem was, nobody knew it at the time. And what were the cases that gave the CCA pause in Moreno? The 2007 decisions by the United States Supreme Court in Abdul-Kabir and Brewer (and Tennard and Smith I and Smith II). As the Court wrote in that case:
"We can no longer maintain that evidence of a troubled childhood is adequately encompassed within the statutory special issues. Both Abdul-Kabir and (especially Brewer expressly state that Supreme Court precedent has long rejected the notion that a jury can meaningfully express its reasoned moral response to evidence of a troubled or disruptive childhood within the narrow confines of the special issues."[I even noted when the Court decided Ex parte Hathorn in April 2009 that the Court would probably be looking to reconsider similarly situated cases and possibly give them similar treatment.]
Of course, the CCA couldn't do what they did in Moreno in Hood. Why? Well, Judge Keasler pointed out in his dissent in Hood, Hood had never raised this Penry claim in his original writ, so they couldn't use Rule 79.2 to reconsider it. In other words, there was no Penry claim to reconsider. What to do? What to do?
Basically you do what Judge Cochran snd the majority did (and what the Supreme Court should've done after they held the instructions unconstitutional), you hold that Abdul-Kabir and Brewer announced new law that was previously unavailable to the applicant. This would allow an applicant to circumvent the procedural bar against subsequent writs. That's right, this opinion doesn't just benefit Hood, it allows other defendants with Penry jury instruction claims some room to bring those claims even if they should've known about Penry at the time they filed their writs. Now those death row defendants may be able to claim that their Penry claim was previously unavailable to them until 2007 (or 2004 when Tennard was decided, and this also assumes the case wasn't already remanded for a new punishment hearing at some point). Pretty broad brush to paint with if they were only looking to help one guy.
Putting aside whether the juice was worth the squeeze, I'm kind of irritated that the Court couldn't just get there faster. If this is the end game, don't waste time dicking around with Rule 79.2. When they recognized the power to use Rule 79.2 to address these claims they pinky swore they would only used that rule in the most dire circumstances. But they didn't give any guidance on what those circumstances might be. [I expressed my frustration with that aspect of Moreno before.] Now, the CCA's come up with a new way to allow defendants to address these Penry claims, namely saying that the previous claims were unavailable because Abdul-Kabir announced new law so the claims were previously unavailable. So we now have two new ways to get around the prohibition against subsequent writsfor such claims. I hope this means that Rule 79.2 becomes more vestigial again, but I doubt it.
Unlike Judge Keasler, I don't think the holding in Hood opens any floodgates beyond the select death penalty cases tried before Penry II, though I understand his concern. The Court didn't interpret the writ statute in a way that broadened it, they just identified these cases as those that fit within an existing exception. However, just as we were left without guidance on when Rule 79.2 suggests a need for reconsideration on the Court's own motion, so too are we left with no guidance on what types of cases may warrant a holding that a previous claim was unavailable. Do we look to whether relief is assured in federal court? Do we see if we can find an analogous "conundrum"? As Geoff Downes and John Wetton say, only time will tell. But I can't help but feel that the majority was only focused upon the Penry jury issues, and that number of cases is necessarily decreasing over time. Hopefully this means the loophole will eventually close on its own. Maybe the political stuff played into the decision-making, but I wouldn't know. I'm not The Shadow, I can't peer into the soul of man. But judging by the trajectory of the cases leading up to Hood, it is entirely possible that the majority reached this recent conclusion in Hood in an earnest effort to untangle the mess left by the Supreme Court's Penry jurisprudence. It just happened to do so in a case that sounds like it should be a movie of the week. I'll leave it to more insightful people to decide whether that's merely coincidence.
