The University of Texas at Austin   School of Law

Main menu:

January 18, 2007

Press Contact: Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or
Capital Punishment Center Contacts: Robert Owen, Co-Director, 512-232-9391, or Jordan Steiker, Co-Director, 512-232-1346

UT Law School's Capital Punishment Clinic Argues Three Cases Before U.S. Supreme Court

Students and faculty in the Capital Punishment Clinic on the steps of the U.S. Supreme Court after three of the clinic's cases are argued.

Photo credit: Claire Duggan

AUSTIN, Texas—Students in the Capital Punishment Clinic at The University of Texas School of Law traveled to Washington, D.C., this week to observe the clinic's death penalty cases being argued at the U.S. Supreme Court on Wednesday.

Law professors Jordan Steiker and Rob Owen, co-directors of UT's Capital Punishment Center, which houses the clinic, argued the cases. Steiker argued in Smith v. Texas. Owen argued in the consolidated cases of Brewer v. Quarterman and Abdul-Kabir v. Quarterman. Clinic students assisted with the Supreme Court briefs and in the argument preparation. Their attendance at the arguments in Washington, D.C., was made possible by the law school's generous support.

Also attending the oral arguments were two advanced clinic students and a couple of other law students who assisted on the cases, several former clinic students, and two other law professors who teach the clinic including Maurie Levin, who served as a co-counsel with Jim Marcus. A number of students also attended the "moot" arguments that were conducted last week.

"We are thrilled that the students have been able to be a part of this process, and that they were able to attend the arguments in the Supreme Court after working on the cases and understanding the issues from the inside out," Steiker said. "The Law School's support of the clinic, and our litigation of these cases, has been 100 percent," he added. Levin agreed that the students' presence made the Supreme Court experience that much better. "It was great to see the students there and so engaged in the experience after their work on the cases in conjunction with the clinic," Levin said.

Photo of Professors Owen and Steiker, and John Terzano
Rob Owen, left, and Jordan Steiker, middle, talk with John Terzano of the Justice Project on the steps of the US Supreme Court

Photo credit: Claire Duggan

Steiker argued the Smith case at 10 a.m. E.S.T. on Wednesday with co-counsels Levin and Carol Steiker, a Harvard law professor. The Court was very active during Steiker's argument with Justice Antonin Scalia asking questions almost immediately after Steiker began speaking. An hour later, Owen argued the consolidated cases of Brewer and Abdul-Kabir. Steiker served as Owen's co-counsel.

The case, Smith v. Texas, involves a Dallas County inmate, LaRoyce Smith, who was sentenced to death in 1991. At Smith's trial, his defense counsel presented extensive mitigating evidence regarding Smith's intellectual impairments, learning disabilities, placement in special education, and difficult family background. After he was convicted, Smith argued in state court habeas proceedings that the sentencing instructions did not allow jurors to consider such evidence, and the U.S. Supreme Court agreed in a 2004 decision (Smith v. Texas, 543 U.S. 37). On remand, the Texas Court of Criminal Appeals nonetheless concluded that Smith's death sentence could stand. It is that decision that the U.S. Supreme Court is currently reviewing.

The Brewer and Abdul Kabir concern rulings by the U.S. Court of Appeals for the Fifth Circuit. Similar to Smith, the cases address the question of whether the instructions given to inmate Brent Brewer's and inmate Jalil Abdul-Kabir's jury provided a sufficient vehicle for consideration of the mitigating evidence presented. The statutory scheme under which they were sentenced was ruled unconstitutional in 1989 and in 1991 the Texas Legislature amended the statute to fix the problem. The pre-1991 cases, however, continued to wind their way through the courts, and the Supreme Court issued three more decisions in Texas cases in an effort to enforce their original ruling. They were Penry II (2001); LaRoyce Smith (2004); and Tennard (2004). "The fact that the Supreme Court agreed to hear the Brewer and Abdul-Kabir cases is at least an indicator that the Supreme Court is still unhappy with the constricted view of the doctrine that has been applied by the Fifth Circuit," Owen said.

Transcripts of the arguments in Smith, Abdul-Kabir and Brewer on Jan. 17, 2007, are available at the U.S. Supreme Court's Web site at:, or at the Supreme Court of the United States Blog at A ruling on the three cases could occur anytime before the end of the Supreme Court's 2006–07 term in June.

Owen and Steiker are both nationally recognized experts on death penalty constitutional law. In recent years, the Capital Punishment Clinic, led by Owen and Steiker, has litigated two other death penalty cases in the U.S. Supreme Court and won both times.

Photo of Professor Owen speaking with two students
Rob Owen talks with two students following his argument before the Supreme Court

Photo credit: Claire Duggan

Owen has defended people facing the death penalty since 1989 at every level of the state and federal court system, including arguing successfully at the U.S. Supreme Court (Tennard v. Dretke, 2004), and has taught at the Law School continuously since 1998. He co-directs the Capital Punishment Clinic, shares responsibility for teaching the classroom course on capital punishment, and leads a freshman seminar on the death penalty in the undergraduate Plan II Honors Program. He is a recipient of the Thurgood Marshall Award, recognizing his work in fighting the death penalty, from the Association of the Bar of the City of New York.

Steiker joined the faculty in 1990 after serving as a law clerk to Justice Thurgood Marshall of the U.S. Supreme Court. He teaches constitutional law, criminal law, and death penalty law, and is co-director of the law school's Capital Punishment Center. He was a visiting professor at the Harvard Law School and has written extensively on constitutional law, federal habeas corpus, and the death penalty.

The Capital Punishment Center promotes research and practice opportunities in death penalty law. The Center sponsors academic events, pursues research projects concerning the administration of the death penalty, and houses the Capital Punishment Clinic, which provides direct representation and assistance to indigent defendants on death row in Texas.

Photographs taken of the clinic students and faculty after Wednesday's oral arguments on the front steps of the U.S. Supreme Court are available for use by contacting Laura Castro, UT Law Communications, at 512-232-1229 or 512-825-9525 (cell), or email:

Related Links:

The Austin American-Statesman, Supreme Court hears arguments in 3 Texas death penalty cases:

The New York Times, Justices Scrutinize Death Penalty in Texas:

The Washington Post, High Court Hears 3 Death Penalty Cases:

The Legal Times, High Court Hears Texas Death Penalty Cases:

UT Law Creates Capital Punishment Center and Expands Programs Relating to the Death Penalty:

Transcripts of Oral Arguments:

Capital Punishment Clinic Returns to U.S. Supreme Court:

UT Law Capital Punishment Clinic Wins Relief from Fifth Circuit Court of Appeals in Capital Case:

Capital Punishment Clinic Wins Case in United States Supreme Court:

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: