Smith v. Texas, No. 05-11304, was decided by the US Supreme Court on 25 April, in a sharply divided 5-4 decision. The convicted murderer was arguing against his death penalty sentence in accord with the theories of the ACLU’s Death Penalty Project.

As usually happens in such cases, the Justices supporting the ACLU position fail to describe the facts of the crime. The facts appeared only in the Dissent by Justice Alito, joined by the Chief Justice and Justices Scalia and Thomas:

Mr. Smith was a former employee of a fast-food restaurant. He took “some friends” to the restaurant. As the staff was closing up, he got inside by asking to use the phone. “The teenage shift manager, Jennifer Soto, let him in and greeted him with a hug.” He then followed her into the office, demanded the combination to the safe, beat her with his gun until the handle broke. He shot her in the back. Then he got a knife from the kitchen, inflicted numerous “torture wounds” and then “slit her throat.”

At trial, the judge proposed jury instructions on “mitigation” about Mr. Smith’s low IQ and childhood problems that were not sufficient under a recent US Supreme Court decision. Mr. Smith’s counsel did not ask for a curative instruction, because that would have involved jury focus on the viciousness of this murder.

The Supreme Court reversed Smith’s death penalty once, and remanded the case to the Texas criminal appeals court. It reviewed the case and reinstated the death penalty, because his counsel had not preserved the issue for review. The US Supreme Court then reversed again, and forced a new penalty phase hearing for this murderer.

The bottom line is that the ACLU wants to have a murderer like this retried again and again, until possibly he avoids the death penalty altogether. That is not the view of the American people. And that is not the view of four current Justices on the Court.

On the same day, two other Texas murderers, with similar histories of viciousness, also had their death penalties reversed by the Court on the same 5-4 votes between the Opinions and the Dissents.