Whether the 'moral blameworthiness' jury instruction prevented the consideration of constitutionally relevant mitigating evidence

QUESTION PRESENTED Petitioner Brandon McCall was convicted in Texas state court of capital murder for killing a police officer and sentenced to death. At McCall’s trial, the jury was instructed, in accordance with Texas law, that they “shall consider mitigating evidence to be evidence that a juror might regard as reducing [McCall]’s moral blameworthiness.”! This Court has repeatedly held that mitigating evidence need not demonstrate any “nexus” to the crime or relate to defendant’s “culpability for the crime” to qualify as a legitimate basis for imposing a non-death sentence. Tennard v. Dretke, 542 U.S. 274 (2004); Smith v. Texas, 543 U.S. 37 (2004); Skipper v. South Carolina, 476 U.S. 1 (1986). This case thus presents the following question: Where jurors were instructed that they may only consider mitigating evidence to be evidence that “reduces the defendant’s moral blameworthiness,” and where the record reflects that jurors understood the term “moral blameworthiness” to be synonymous with “culpability,” is there a reasonable likelihood that the jury applied the challenged instruction in a way that prevented consideration of constitutionally relevant mitigating evidence? 1 Charge of the Court at Punishment, Clerk’s Record [“CR”] at 687; Tex. Code. Crim. Pro. art. 37.071 §2()(4). ii