Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 02-10038, Tennard against Dretke will be announced by Justice O’Connor.
Argument of Justice O’connor
Mr. O’connor: The petitioner in this case, Robert Tennard, was found guilty of capital murder in 1986.
During the penalty phase of his trial, he presented evidence that he had an IQ of 67.
The jury was instructed to determine the appropriate punishment by considering two questions: First, whether Tennard had committed the crime deliberately; second, whether he presented the risk of future dangerousness?
In Penry versus Lynaugh, we held some years ago that these two so-called special issues did not provide the jury with a constitutionally adequate vehicle by which to give effect to Penry’s evidence of mental retardation and childhood abuse.
In state postconviction review, and again in his federal habeas petition, Tennard in this case, argued that the rule of Penry had been violated in his case because the special issues did not adequately permit the jury to give effect to his low IQ evidence.
The District Court held that the State Court’s application of Penry was not unreasonable and the Fifth Circuit Court of Appeals denied a certificate of appealability.
Following a course that has consistently taken in cases involving claims based on Penry, the Fifth Circuit Court of Appeals applied a screening test to Tennard’s claim.
Under that screening test, that Court will not consider whether evidence presented by habeas petitioner was within the jury’s effective reach as required by Penry unless the petitioner first establishes both of the evidence was of uniquely severe permanent handicap and that there was a nexus between the uniquely severe condition in the crime.
In this case, we now reject that screening test.
It is not based on any of this Court’s decisions and it is inconsistent with our prior discussions of the principles guiding evidentiary relevance in capital sentencing.
We address next the question the Fifth Circuit Court of Appeals should have considered, that is whether reasonable jurors could find debatable or wrong the District Court’s disposition of Tennard’s Penry claim.
We conclude that reasonable jurors could so find the relationship between the special issues and Tennard’s very low IQ evidence as the same essential features as the relationship between those issues and Penry’s retardation evidence.
We hold that a certificate of appealability should have issued.
Accordingly, we reverse the judgment of the Fifth Circuit Court of Appeals and remand for further proceedings.
The Chief Justice and Justices Scalia and Thomas have each filed dissenting opinions.
