Did Texas Blink

Just when you were thinking maybe the Supreme Court would tell the Texas Court of Criminal Appeals to grow up (OK, maybe you weren't thinking that, but maybe the CCA was), the CCA seemingly finds a way to dodge the (potential) bullet.

For the last few days, the media and the blawgs (including this one) have been talking about the case of Charles Hood. He's the guy on death row in Texas after a trial presided over by a judge who had had what sounds like a pretty tawdry affair with the guy prosecuting the case. If that suggests possible bias and conflict of interest to you, join the club. Only the Texas courts seemed insufficiently concerned.

Those who follow death penalty cases obsessively had been watching the Hood train wreck for quite a while. We'd seen the CCA doing gyrations to avoid addressing the issues. We'd been wondering how the case might look to the Supreme Court But the sudden uptick in the news this week came when an amicus brief from 21 former judges and prosecutors was filed urging the Court to hear the case and Adam Liptak wrote about it.

That was then.

Today, the CCA, in a split decision, granted Hood a new sentencing hearing.

The official explanation is that he was entitled to what is known as Penry relief. Penry was actually two cases.

In Penry I (1989), the Supreme Court held that mental retardation was not an absolute disqualifier for death (a position on which the Court reversed itself in Atkins v. Virginia). Relevant here, the Penry I court also said that Texas death penalty law at the time of Penry's trial didn't allow the jury to consider whether his mental retardation and abusive background should, in his case, have prevented a death sentence. Back he went to Texas where a new jury again sentenced him to die.

And then back to the Supreme Court which, in Penry II (2001), decided that the Texas solution to the problem of how to let jurors give effect to mitigation evidence (just ignore the actual questions you are formally asked and give a dishonest answer that will prevent death - I'm oversimplifying, but not by much) was itself unconstitutional.

Anyway, Hood now gets Penry relief because his jurors would have had to lie to prevent a death sentence.

Why now? And why Hood?

Maybe, just maybe, because the CCA really didn't want to be told just how slimy they were. Or, of course, maybe they just wanted to do the right thing. (Giggling allowed here.)