:flOmega 1. Do the former Texas "special issue" capital sentencing jury instructions -- which permit jurors to register only a "yes" or "no" answer to two questions, inquiring whether the defendant killed "deliberately" and probably would constitute a "continuing threat to society" -- permit constitutionally adequate consideration of mitigating evidence about a defendant's mental impairment and childhood mistreatment and deprivation, in light of this Court's emphatic statement in Smith v. Texas, 543 U.S. 37, 48 (2004), that those same two questions "had little, if anything, to do with" Smith's evidence of mental impairment and childhood mistreatment)?
flOmega 2. Do this Court's recent opinions in Penry v. Johnson, 532 U.S. 782 (2001) ("Penry II") and Smith, both of which require instructions that permit jurors to give "full consideration and full effect" to a defendant's mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions -- antedating Penry II and Smith -- that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant's mitigating evidence?
flOmega 3. Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for "constitutional relevance" that this Court emphatically rejected in Tennard v. Dretke, 542 U.S. 274 (2004)?
flOmega 4. Where the prosecution, as it did here, repeatedly implores jurors to "follow the law" and "do their duty" by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way that prevented them from fully considering and giving effect to the defendant's mitigating evidence?Note:
TH 05-11284 FOR ONE HOUR ORAL ARGUMENT Cert. Granted 10/13/2006