Bench slap: SCOTUS says Texas capital habeas process could 'create significant unfairness'

Grits doesn't usually follow death-penalty topics but I can never resist a good bench slapping, particularly when SCOTUS decides to show the back of its hand to our friends on the Texas Court of Criminal Appeals, who rival the federal 9th Circuit as a favorite US Supreme Court whipping boy. (N.b., SCOTUS was technically rebuffing the Fifth Circuit for approving Texas' methods; see the correction below.)

This week, SCOTUSBlog has the story of another US Supreme Court bench slapping of the Texas Court of Criminal Appeals Fifth Circuit Court of Appeals in Trevino vs. Thaler, which ruled that Texas' bifurcated death penalty review procedure - where direct appeals and habeas corpus process occur simultaneously - “makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” The Texas system, said the majority, "would create significant unfairness." SCOTUSBlog said the case is "Texas- (and capital-) specific." For judges, that's the equivalent of a student being singled out in class for low marks and being ordered to "shape up!" Again.

From the New York Times report you would think the dissenters objected on grammatical or perhaps laundry-related grounds. "In dissent, Chief Justice Roberts said the Martinez decision had announced a 'crisp limit.' 'But today,' he added, 'the court takes all the starch out of its rule with an assortment of adjectives, adverbs and modifying clauses.' Chief Justice Roberts had voted with the majority in Martinez, as had Justice Alito, who joined the chief justice’s dissent Tuesday."

The SCOTUS  majority essentially accused the Texas Court of Criminal Appeals Fifth Circuit of sophistry, opining that “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Ouch!

CORRECTION: In the comments, Rob Owen, who has forgotten more about death penalty litigation than I will ever know, pointed out that the Supreme Court was technically rebuffing the Fifth Circuit for approving Texas' system, so it was them receiving the bench slap, not the CCA. Grits regrets the error. The decision, however, does indict the Texas system specifically and singularly and will require the CCA to alter its methods for handling ineffective assistance claims in some fashion..