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June 24, 2004

Press Contacts: Kirston Fortune, UT Law Communications, (512) 471.7330, Adjunct Professor Rob Owen, Director, UT School of Law's Capital Punishment Clinic, 512-232-9391 or, and Professor Jordan Steiker, UT School of Law, 512-232-1346

Capital Punishment Clinic Wins Case in United States Supreme Court

AUSTIN, Texas —A ruling handed down by the U.S. Supreme Court Thursday in a case involving the Law School’s Capital Punishment Clinic could lead to the reversal of dozens of death sentences imposed in Texas before 1991.

In Tennard v. Dretke, the Court ruled in a 6-3 decision that a death-sentenced inmate could continue with his claim that his jury was unable to give effect to evidence of his 67 IQ as a mitigating factor in the penalty phase of a capital trial. Before 1991, Texas juries were not directly asked to consider mitigating evidence in deciding whether a defendant should live or die.

UT Law professors Rob Owen and Jordan Steiker along with law students took a leading role in this Texas death penalty case, challenging the fairness of Texas death row defendant Robert Tennard’s 1986 trial. Owen, an adjunct professor and director of the Capital Punishment Clinic, argued before the Supreme Court on March 22 that the punishment phase jury instructions prevented the jury from giving meaningful consideration to Tennard’s extremely low IQ of 67. Had the jurors been properly instructed, he and his co-counsel Steiker contended, they might have concluded that Tennard did not deserve to die.

Six law students Kimberly Carter, Leslie Conant Thorne, Heather Fraley, Haverly Rauen, Amanda Tyler, and Mitria Wilson conducted legal research and drafted arguments for Tennard’s opening brief filed last December in the Supreme Court. The clinic has been involved in several other Supreme Court cases since Owen and Steiker arrived at UT in 1989 and 1990, respectively. Richard Burr, a nationally respected capital defense specialist, joined Steiker and Owen in representing Tennard.

The opinion, which was written by Justice Sandra Day O’Connor and joined by five other members of the Court (Justices Kennedy, Souter, Ginsberg, Breyer, and Stevens), strongly criticizes both the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the Fifth Circuit for applying a legal test with “no foundation in the decisions of this Court.” According to Justice O’Connor, the lower courts had “no basis” for rejecting Tennard’s IQ of 67 as irrelevant to the question of whether he should receive a life sentence or the death penalty. The Supreme Court had previously defined mitigating evidence in “the most expansive terms,” and it is plainly “inconsistent with these principles” to treat a 67 IQ as legally irrelevant to the question of the appropriate sentence.

Owen said the Supreme Court stopped short of ordering a new sentencing hearing for Tennard but discredited as “improper” the legal test previously used by the Fifth Circuit. Accordingly, the Court remanded the case for further review by the Fifth Circuit under the correct legal standard. “We are confident that when the Fifth Circuit applies the correct legal standard, as set out in the Court’s opinion today, it will vacate Mr. Tennard’s death sentence and order a new sentencing hearing,” Owen said. “The immediate impact for Mr. Tennard is that he will now have an opportunity to have the fairness of his death sentence assessed under the correct legal standard,” he continued. “We don’t know how quickly the Fifth Circuit may act on the case, or whether the Fifth Circuit may order additional briefing or oral argument, but we are hopeful that it will appreciate how forcefully the Supreme Court has rejected its previous reasoning, and move quickly to order a new sentencing hearing.”

Professor Steiker also lauded the Supreme Court’s decision, stating that “the opinion restores a fundamental aspect of the Court’s death penalty jurisprudence that no defendant should be sentenced to death without a full assessment of his or her moral culpability.” At the same time, though, Steiker lamented the fact that “it took over a decade for the Court to reverse the ill-advised course of the Texas courts and the Fifth Circuit.” According to Steiker, many defendants were executed during this interval who “were undoubtedly deprived of a fair determination of their fate.” Steiker asserted that it is a “poignant and inescapable aspect of the American death penalty that wrongful executions cannot be corrected, but the belated enforcement of fundamental constitutional rights is certainly preferable to persisting in a course of error.”

Owen said that while it’s not immediately apparent how many other cases will be affected, the State’s attorney suggested to the Court at oral argument in March that a ruling in Tennard’s favor could affect up to 100 people on Texas’ death row. “Today’s opinion strongly suggests that a significant number of death sentences imposed under the pre-1991 Texas statute are constitutionally infirm,” Owen said.

Learn how to obtain the U.S. Supreme Court opinion at .

Related Links:
Capital Punishment Faculty and Students Take Case to U.S. Supreme Court, March 22:
Rob Owen's Bio:
Jordan Steiker's Bio:
Capital Punishment Clinic: