Brent Brewer Execution

Monday Order Lists regularly have a list of cases not granted for argument. The Supreme Court is required to take very few cases. They sometimes find a way even to avoid interstate disputes that would seem to be obligatory. The usual grant is to settle some dispute or when a federal law is struck down and the solicitor general asks for relief.

The October 30th Order List included a denial, as usual without comment, of a case involving Brent Brewer's execution. One liberal-leaning website strongly responded (it was also referenced on Twitter/X):

Brent’s case is an opportunity for the Supreme Court to do something about one of the most barbaric features of one of the legal system’s most barbaric institutions. The question is whether the justices feel like exercising their power before Texas’s race to kill Brent before Thanksgiving renders this opportunity moot.

The reference to "Thanksgiving" is a bit curious for an execution scheduled before Veteran's Day. Anyway, the problem with this plea is that the actual petition and this is noted in the piece, was "technical."  It dealt with something called a "certificate of appealability, which is addressed at the link. It seems there is a good case for it here but it also seems like error correction to rest it on that alone. I'm no habeas lawyer but it still seems technical to me. The Order List on Monday dealt with that too:

The application for a certificate of appealability addressed to Justice Barrett and referred to the Court is denied. 

This is often the case. The Supreme Court is not going to simply take a case to address some age-old problem, including one that they ignored in the past. When they do, it's notable. The Roberts Court, post-Barrett, also is wary about doing much in criminal and capital cases, putting aside some narrow areas of law. They will address some narrow wrongs, especially if something like racism can be flagged, but nothing broad.

The concern here is somewhat broad as well as narrow. Brent Brewer (through his lawyers) is arguing that his death sentence was a product of a flawed finding of future dangerousness. Brewer flagged that the Texas Criminal Court of Appeals a year after the expert testified (2009/2010) found the technique used unreliable. He also was aided by his already extensive time on death row where there was no evidence of such danger.  

The whole concept of determining future dangerousness has its critics. It has a feel of that Tom Cruise film about stopping future crimes. However, I am not clear that the whole concept is inherently problematic. 

The dangerousness of a defendant reasonably is factored into the conditions of their confinement. If the death penalty is ever reasonable, the danger of keeping someone alive is a reasonable factor. The problem here is that IF we use it, it has to be very carefully used. And, the process here appears to be flawed. At least, that would for me settle the question. 

So, the broad issue is the use of expert testimony while the narrow issue is if the specific testimony here was reasonable. I don't see the conservatives, or even two of them, being that excited to take a capital case to address that. And, again, the technical grounds of the petition did not even address that. It is not shocking no liberal justice at that point made a statement. 

The Supreme Court, when Brewer was already on death row over ten years, in 2006 overturned his death sentence. They held (5-4) that the jury did not have the ability to adequately consider mitigating evidence. He and his girlfriend committed the murder shortly after he was released from involuntary commitment after his grandmother found a suicide note. 

And, there was other potential mitigation such as the usual appeal to horrible childhoods. I am not trying to ridicule this necessarily, but it is a common citation. There is also an argument that nineteen is young enough to be a strong mitigation if not grounds not to execute at all. The "push the minimum to 21" movement, however, has not obtained much traction.  

The aggravation is suggested by this summary of the crime:

On April 26, 1990, then 19-year-old Brent Brewer and his girlfriend, Kristie Nystrom, approached Robert Laminack outside his flooring store in Amarillo, Texas and asked for a ride to the Salvation Army. Laminack invited the young couple to get in his truck; Nystrom took the front seat, and Brewer sat in the back. While en route, Brewer grabbed Laminack and began to stab him in the neck with a butterfly knife. Laminack begged for his life while obeying Brewer’s demand to hand over his keys and wallet. He was wounded in the carotid artery and jugular vein. After losing consciousness, he bled to death.

Brent Brewer's lawyers flagged another issue:

In Texas, jurors are told they must unanimously agree that a defendant will pose a future danger. They’re also told that they can only determine someone won’t be a future danger if 10 of the jurors agree. This led Michele Douglas to believe there was no point in being a single holdout against future dangerousness. But what jurors weren’t told: If even one juror disagrees with the death sentence, the court must impose a life sentence instead. 

So, there are some reasonable due process concerns here. I am sure people can dispute them. But, they are not frivolous. 

The wider concern -- and this factors in when a governor and/or whatever entity weighs the evidence and judges if it is a suitable case for mercy/commutation/whatever -- is the overall public need in executing this person. A nineteen-year-old, who had mental health issues, murders someone. They warrant punishment generally speaking (few cases are so severe that guilt is totally erased). 

He had it. He has been in prison for over thirty years. I question if this is a "worst of the worst" crime that warrants the now twenty or so executions a year. The murder was heinous but so are many murders. What is uniquely heinous, especially given his overall situation, to justify this? The deciding factor appears to be dangerousness. Which is rather dubious.  

We saw above that there was room even for the original juries to deem him not warranting the death penalty. Now, after thirty-plus years on death row, what is the legitimate public purpose? I cite yet again Justice Breyer's dissent in Glossip v. Gross on both the problem with decades-long spans on death row and the chance for error. The error already helped to extend his time though that only left room for more errors to be flagged. 

I oppose the death penalty basically in all cases. I might find a few, such as Timothy McVeigh, where the constitutional and/or moral arguments are halfway reasonable. This case is not simply a travesty, such as an innocence claim or where the trial is horribly wrong. However, it is quite bad in its own fashion. Multiple problems and a dubious decision to execute.

Anyway, the lawyers went through the motions to try again after the Supreme Court refused without comment. On the day of the execution, we had the same result. The liberals have decided it somehow is better basically never even dissent without comment. An actual statement is even rarer. I'm not there. But, not clear what it gets them.

Texas, over thirty years later, executed Brent Brewer. 

==

For the sake of completeness, a more mundane (well, at least, less lethal) order was dropped without comment. 

The Senate Judiciary Committee also seemed ready to vote on subpoenas for two Thomas people, the Alito person deciding to cooperate willingly. Then, for some "scheduling issue," perhaps aided by Republican delaying tactics, the vote was put off. 

Dick Durbin, chair of the committee, can drone on, but what has he actually done? Another financial issue was addressed by another committee. He sticks with blue slips, helping to delay district court judges, especially in red states.

Like the liberals silently going along (with reporters sure to note they didn't "publicly dissent"), I reckon he thinks he is acting appropriately. I dissent.