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Capital Punishment Clinic wins new sentencing trial for client

Finding that a pre-1991 Texas death sentence had been imposed in violation of the Eighth Amendment, the Texas Court of Criminal Appeals issued a brief per curiam opinion on March 27, 2013, vacating the death sentence of Marlin Nelson. Nelson was represented in his appeal by University of Texas School of Law Professors Rob Owen and Jordan Steiker, assisted by the students of the Law School’s Capital Punishment Clinic.

The Court’s opinion unanimously declared that the instructions given to the Harris County jury that condemned Nelson in 1988 improperly foreclosed jurors from imposing a life sentence based on mitigating circumstances about Nelson’s troubled family background. Texas finally discarded those jury instructions in 1991, when the Legislature revised the former statute to afford capital jurors more discretion in imposing sentence.

Owen commended the ruling. “The decision keeps faith with the vital constitutional principle that before a death sentence may be imposed, the jury must be permitted to consider whether the facts about the defendant’s background—like the deprived circumstances of Mr. Nelson’s upbringing—call for mercy,” he said.

Nelson’s case represents just the most recent proceeding in which the Capital Punishment Clinic has won new punishment hearings for its clients sentenced to death under the pre-1991 Texas scheme. To date, the Clinic has played a role in the reversal of nearly a dozen such cases, in both state and federal court appeals.

Nelson will be returned to Harris County, where he may face a new sentencing trial before a new and properly instructed jury, which is likely months away. A number of comparable cases have concluded in plea agreements rather than new sentencing trials, although Owen declined to speculate whether such a resolution was likely in Nelson’s case.

Both Steiker and Owen praised the students of the Capital Punishment Clinic for their work on Nelson’s case. “The students’ assistance in preparing and presenting our arguments in state court was indispensable,” Owen said. He added, “Our students have also begun work on the factual investigation that will be essential to preparing Mr. Nelson’s defense if a new sentencing trial should become necessary.”

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