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Cases dealing retroactive application of new laws lead off this week, Saylor v. Indiana & Tennessee v. Odom, In Saylor the Indiana Supreme Court holds that since Indiana modified that state's death penalty scheme to require unanimous jury recommendations in orderto impose death, & that Saylor's sentence was not imposed following a unanimous jury decision, that the Court would grant relief under its "powers to revise a death sentence in light of changes in the legal landscape." In Odom the Tennessee Supreme Court held that certain modifications to the Tennessee death penalty scheme, making the ability to introduce certain evidence of prior felony convictions in the penalty phase, only applies in trials where the underlying crime occurred after the enactment of the modifications. The United States Supreme Court issued its opinion in Nelson v. Campbell, earlier this week. The opinion steered clear of the constitutionality of lethal injection and whether challenges to that method of execution may be brought under section 1983. The opinion rather simply held that a temporary stay can be granted under that statute when there is an active execution warrant. Elsewhere, the Mississippi Supreme Court ordered hearings in four cases relating to mental retardation claims, Carr v. Mississippi, Neal v. Mississippi, Smith v. Mississippi, & Chase v. Mississippi. Note, the Fifth Circuit issued a large number of denials of relief & denials of COAs this edition. Note that this edition is rather long and several case synopses have been truncated due to time limitations. As always, the synopses cover numerous cases from jurisdictions in which I do not practice and important jurisdiction specific holdings may be missed. With that disclaimer, as always, thanks for reading. - k This edition archived at http://capitaldefenseweekly.com/archives/040524.htm. EXECUTION INFORMATION Since the last edition there have been the following executions.May
Further
execution dates are being recalculated & will return next edition.18 Kelsey Patterson Texas 25 John Blackwelder Florida----volunteer May 29 James Tucker South Carolina
The Fourth Circuit's opinion in Humphries v. Ozmint leads off this edition. The majority in Humphries holds that the prosecution engaged in "extensive and egregious use of comparative human worth arguments" arguments in his penalty phase closing. Rather than addressing the issue "head on," the panel holds trial counsel's failure to object resulted in a penalty phase proceeding "so unduly prejudicial that it rendered the jury's recommendation of a capital sentence fundamentally unfair." The remaining decisions covered this week are losses. Of special note are two California cases. In Allen v. Woodford, the Ninth Circuit in uncharacteristically strong language notes that trial counsel's failure to adequately investigate & present mitigation evidence was harmless in light of the extraordinarily "horrendous" nature of the multiple murders in that case. The synopsis of the California Supreme Court's opinion in California v. Lenart is taken from the Criminal Appeal blog (www.crimblawg.com) which notes that although relief is denied there is seemingly a very strong claim to be had on habeas review of ineffective assistance of counsel. Elsewhere, Oklahoma Governor Henry commuted the death sentence of Mexican national Osvaldo Torres several hours after the Oklahoma Court of Criminal Appeals ordered a stay and evidentiary hearing on whether the state violated international law by not giving Torres access to the Mexican consulate after his arrest. In North Carolina Sammy Perkins has received a stay on a claim relating to the constitutionality of lethal injection. The Weekly will not be running next week. As always, thanks for reading. - k The permalink for this edition is here
May Five favorable opinions are noted in this edition. Two are given special attention in the "Hot List" section, Stumpf v. Mitchell and Walbey v. Dretke. The Sixth Circuit in Stumpf grants relief on two issues: that Stumpf's guilty plea was not voluntarily, knowingly and intelligently given and because the prosecution used of inconsistent, irreconcilable theories to convict both Stumpf and his putative accomplice. As the Stumpf holding on the issue of acceptance or rejection of a plea agreement has a potentially broad applicability (especially in the noncapital context) it earns a "Hot List" slot. The other "Hot List" slot this week belongs to the Fifth Circuit's opinion in Walbey. Although the Walbey decision is unpublished it examines what happens when a state appellate court vacates a state trial court's factual findings but does not enter its own factual findings. Noting that there are no state court factual findings "to defer to" the panel orders an evidentiary hearing. Although the decision is somewhat commonsensical, my own prior research in the area found few opinions directly on point which is why it earns the other "Hot List" slot A plurality of the Fourth Circuit, en banc, grants penalty phase relief in Allen v. Lee due to a faulty unanimity instruction under McKoy v. North Carolina (this opinion did not make the "Hot List" as its plurality holding is rather pithy). In Anderson v. Arkansas the state supreme court vacates on a fact sensitive issue relating to the jury apparently failing to give any weight to a substantial amount of mitigation evidence. The South Carolina Supreme Court in Nance v. Frederick holds that trial counsel was ineffective for failing to request a competency despite a “reasonable probability” that petitioner was incompetent at the time of his guilty plea." If space permitted all three of these opinions would have received much more space than what they have been afforded. In Dretke v. Mitchell the Supreme Court holds in this noncapital case a federal court must examine every non-defaulted claim in a habeas petition before examining claims of actual innocence. In a little noticed dissent in Dretke Justice Kennedy appeared a little shaken by the Texas Attorney General's decision to fight the grant a habeas relief despite the AG's Office concession that Mitchell was "innocent" for purposes of his noncapital sentencing enhancement. Justice Kennedy seems perplexed & troubled; whether his concern about that Attorney General's office is merely a passing concern remains to be seen. Elsewhere, the Oklahoma Court of Criminal Appeals has ordered a hearing to answer allegations that a former police chemist may have doctored evidence and destroyed hair samples that could have exonerated death row inmate Curtis McCarty; "[t]he matters raised in petitioner's application are unquestionably serious, and if true, the repercussions thereof are far reaching indeed." In Massachusetts's Governor Mitt Romney's panel of experts that are examining what his new death penalty bill should include, have concluded that ideally it should require a "no doubt" standard for all death sentences, numerous guarantees regarding access to the courts for post-conviction review and rather demanding guarantees as to the qualifications for counsel. A shortened Focus section this week draws from Daubert on the Web, one of my favorite Blogs, on the issue of several recent decisions on the admissibility of fingerprint evidence. As always, thanks for reading. - k This edition archived at http://capitaldefenseweekly.com/archives/040503.htm.
May Cases out of the Fifth & Sixth Circuit
lead off
this edition. In Soffar
v. Dretke the Fifth Circuit grants relief as, DPIC notes, "no
evidence linking Soffar to the crime was ever found and his accounts of
the murders, contained in what are believed to be false confessions,
varied vastly from several eyewitnesses, Soffar’s defense attorney
failed to pursue evidence that could have proven his client’s
innocence. The attorney did not interview the sole surviving witness to
the murders nor conduct a ballistics investigation that could have
strengthened his case. In its opinion, the court wrote, 'Defense
counsel offered no reasonable explanation for why they did not take
advantage of these opportunities. [It was] likely the result of
indolence or incompetence'.”
The Sixth Circuit in In re Lott, addresses the issue of when a second habeas petition will be entertained. Noting claims of potentially "egregious" prosecutorial misconduct a split panel of Sixth Circuit grants a stay and orders the district court to entertain the petition. Notably, the Supreme Court did not lift the stay. The Moussaoui decision is also covered
this week. To
be blunt, I have been in trial all week and have not had a full
opportunity to "digest" what has all the hallmarks of a landmark
decision, assuming it is left to stand. I am relying on Joanne
Mariner's article at Writ entitled What the
Asterisks Can't Hide: Problems with the Fourth Circuit's Opinion in the
Moussaoui Case to examine that decision in the Focus section.
Elsewhere, in a fairly shocking opinion, the Eleventh Circuit in Conklin v. Schofield upholds a death sentence despite trial counsel only having thirty-seven days from the appointment to the commencement of Conklin's capital trial. Interrelated claims of failure to effectively cross, present mitigation evidence, retain experts, etc., likewise denied.the San Jose Mercury notes that Gov. Schwarzenegger appears to be preparing to politicize appellate capital defense in California by firing State Public Defender Lynne Coffin who had been credited with resurrecting the reputation of that Office. Jim Lee Clark who had been listed with a serious execution date has received a stay in Texas to permit a review of mental retardation claims Finally, most opinions have a
Lexis cite
provided. If you need to track down an opinion Lexisone.com
provides free acces to all the Lexis cited opinions at http://lexisone.com/caselaw/freecaselaw?action=FCLDisplayCaseSearchForm. As always, thanks for reading. -k This edition archived at http://capitaldefenseweekly.com/archives/040426.htm.
April
The following upcoming execution dates are noted:23 Jason Byram South Carolina May Two cases out
of Texas, Vodchodsky
v. Texas &
Ex Parte Modden, lead off this edition In Vodchodsky
the Court of Criminal Appeals reversed a capital murder conviction
based on sufficiency of the evidence. In Ex
Parte Modden
the Court of Criminal Appeals granted penalty phase relief on the
Modden's claims relating to mental retardation. Excerpts of
both
cases are in the "Hot List" section.
Elsewhere, in an awful opinion out of the Eleventh Circuit, Hightower v. Schofield, a panel of that Court denies habeas relief despite noting that this trial prosecutor historically had used 90% of his strikes to remove people of color from juries in the capital cases he had tried, had written memos on striking blacks from juries & in the insDeadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness”tant case used 6 of his 7 strikes to remove blacks from the jury. Likewise, I appear to have overlooked the stay entered on behalf of Kenneth Rouse apparently related to mental retardation litigation in North Carolina. Excerpts of " are covered in the "In Focus" section. As noted previously, this is a must read article for anyone who litigates in the realm of future dangerousness. I should note that although I have included Vodchodsky
v. Texas &
Ex Parte Modden
in this edition, Texas cases that
normally would be covered in the next edition, I have not had a chance
to digest Newbury v. Texas, 2004 Tex. Crim. App. LEXIS 669 (Tex. Crim
App. 4/21/2004) & Hankins v. Texas, 2004 Tex. Crim. App.
LEXIS 670
(Tex. Crim App. 4/21/2004) decided the same day of Vodchodsky &
Modden. Booth Newbury & Hankins will be covered in the next
edition, along with the United States v. Moussaoui decision from the
Fourth Circuit. As always, thanks for reading. -k This edition is archived at http://capitaldefenseweekly.com/archives/040419.htm.
April
The following upcoming execution dates are noted:16 Jerry McWee South Carolina April In an edition covering cases decided through
April 13, 2004,
I'd like to draw attention to two wins (Reagan
v. Norris, and Stankewitz
v. Woodford) and two losses (Primeaux
v. Oklahoma, and Pennsylvania
v. Williams). The Eighth Circuit in Reagan
grants
relief on trial counsel's failure to object to jury instructions that
did not include a definition of the "knowingly" mens rea as it relates
to first
degree murder. In Stankewitz
the Ninth Circuit remanded for an evidentiary hearing counsel failure
to investigate readily available mental health
and mitigation evidence. On the down side, the Oklahoma
Court of Criminal Appeals upholds a death sentence in Primeaux
v. Oklahoma despite the condemned having been tried for
felony murder where the underlying felony alleged was not enumerated in
the statute of being capable of making a murder a
"felony-murder." In Pennsylvania, a 4-3 state supreme court
upholds a death sentence Pennsylvania
v. Williams despite trial counsel failing to identify that Williams
suffered from schizoid & epileptoid personality disorders, as well
as other powerful mitigation evidence. In Texas, the execution of Michael Rosales was
stayed by the Fifth
Circuit due to evidence of mental retardation. Time is tight this week and excerpts of "Deadly
Speculation: Misleading Texas Capital Juries with False Predictions of
Future Dangerousness”
that I hoped would be included this edition will have to appear next
week. In New
Jersey, a federal district court earlier this month granted relief to
Robert Marshall after almost twenty years on death row relating to
trial counsel's failure to investigate readily identifiable mitigation
evidence. On an editorial notes cases are regularly missed,
and if you have a
win (or loss) that is missed feel free to let the rest of list know
about it by sending an email with the details to karl@karlkeys.com.
Also, if you have any suggestions on how to cover federal district
court cases, such as the Marshall decision, please feel free likewise
to contact me at karl@karlkeys.com. As always, thanks for reading. -k This edition is archived at http://capitaldefenseweekly.com/archives/040413.htm.
April This edition, covering cases decided through March 29, 2004, changes format slightly, and notes no less than six favorable domestic opinions, one really lousy opinion, as well as well as a scolding from the International Court of Justice on this nation's treatment of foreign nationals accused of capital crimes. The
International
Court of Justice in
Mexico v. United States sharply rebukes the United States for its
treatment of Mexican nationals in capital cases in light of alleged
violations of the Vienna Convention on
Consular Relations. In
New Jersey v. Chew that state's supreme court grants relief
on trial counsel's failure to put a defense expert on the stand
in the penalty phase that would have permitted finding additional
mitigation factors. The prosecution's gaming of the legal system by
manipulating extradition in
Pennsylvania v. Boczowski introduced an unacceptable degree of
arbitrariness into the criminal justice system. The Fifth Circuit
rejected in
Saldano v. Roach the intervention of the Collin County District
Attorney into a habeas action after the Texas Attorney General's office
refused to appeal the grant the relief to Mr. Saldano. In two
Alabama cases, Flowers v. Alabama & Simmons v. Alabama, remands are
ordered where the trial court erred in holding that the respective Rule
32 post-conviction motions were untimely. Excerpts from Mexico v.
United States, Chew, Boczowski & Saldano, make the "Hot List"
which trails regular the capital case list. Note that one other losing case, Ohio v. Bryan is a case to watch. In Bryan the Ohio Supreme Court upholds the first death sentence under the 1998 amendments to that state's capital punishment statute. The amendments to the statute would appear to make any killing of a law enforcement officer an almost automatic death sentence. Elsewhere, in Texas a study entitled “ Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness ” prepared by the Texas Defender Service and Dr. John Edens, a psychologist and professor at Sam Houston State University, adds serious weight to the argument that predictions of future dangerousness are inherently junk science. In the latest edition of the journal Deviant Behavior, sociologist Robert Young of the University of Texas has reported that death penalty supporters, such as those who are qualified to sit on juries in capital cases, were about a third more likely to have prejudiced views of blacks. "Deadly Speculation" will be covered in greater depth next edition. As
always,
thanks for reading.. - K
March
The
following
upcoming execution dates are noted: April 18 Brian Cherrix Virginia 19 David Clayton Hill South Carolina 23 Hung Thanh Le Oklahoma --- foreign national 26 Lawrence Colwell Jr. Nevada - volunteer 30 William Wickline Ohio 31 Dennis Orbe Virginia 13 Michael Rosales Texas 16 Jerry McWee South Carolina 16 Kenneth Rouse North Carolina 23 Jason Byram South Carolina 27 James Clark Texas May 18 Kelsey Patterson Texas 18 Osvaldo Torres Oklahoma----foreign national Leading off this edition is In re Steele . The California Supreme Court in In re Steele examines the right to discovery of mitigation evidence. under both Brady and state law. Specifically, the Court examines the access to prison records and the burden shared by the prosecution and the defense reating to such materials. Curiously, despite taking a rather narror view of the prosecution's discovery obligation under Brady, especially in light of Banks v. Dretke, the Court orders discovery. Elsewhere, in what has been a quiet week, relief has been granted in an Armed Forces death penalty case. In United States v. Kreutze a panel of the Army Court of Criminal Appeals granted relief, 2-1 on the failure of the trial court to grant the assistance of a mitigation expert. The panel also held, unanimously, that trial counsel had been ineffective, but split 2-1 holding that the Appellant suffered no prejudice from counsel's performance. In South Carolina, David Hill received a stay relating to a challenge on the constitutionality of lethal injection. Focus this week covers HAT/FDPRC's coverage of recent cert grants by the United States Supreme Court Please
note over the next few weeks a few formatting changes will be made,
feel free to drop a line if you have suggestions. As always,
thanks for reading. - K
March 18 Brian Cherrix Virginia 19 David Clayton Hill South Carolina 23 Hung Thanh Le Oklahoma --- foreign national 26 Lawrence Colwell Jr. Nevada - volunteer 30 William Wickline Ohio 31 Dennis Orbe Virginia April 13 Michael Rosales Texas April 13 Michael Rosales Texas This edition can be located at http://capitaldefenseweekly.com/archives/040308.htm The Supreme Court steals center stage this week. In the case with the potential broadest day-to-day application, Iowa v. Tovar , the Court holds the Sixth Amendment is satisfied during a plea bargain if a trial court merely informs a defendant accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. In a very welcome move the Court in Crawford v. Washington strikes down the precedent set forth in Ohio v. Roberts holding that the Confrontation Clause requires cross-examination of all evidence presented in Court, including out-of-court statements. Finally, in a noncapital habeas proceeding, Baldwin v. Reese , the Court again clarifies the exhaustion / fair presentment doctrine, requiring that a petitioner must clearly present federal issues to the state court of last resort. In the capital arena, the Sixth Circuit on remand from the Supreme Court in Cone v. Bell holds, on an issue that the both the Court and panel had not previously addressed that the Tennessee's HAC aggravator is "unconstitutionally vague, and therefore, violates the Eighth Amendment," that opinion is on the "Hot List." The Third Circuit reviews the interplay of the exhaustion doctrine & the AEDPA's filing deadlines in Crews v. Horn holding that a district court shall stay federal proceedings to permit exhaustion where "an outright dismissal could jeopardize the timeliness of a collateral attack." In New York, the Court of Appeals in New York v. Mateo reduces the Appellant's sentence to life as the state's old capital punishment scheme unduly coerced an accused to plead guilty to avoid the possibility of capital punishment. The Firth Circuit bucks the Supreme Court in Miller-El v. Dretke holding, despite strong Court language to the contrary, denying relief on what had been considered a strong Batson claim. Elsewhere, the Alabama courts have been quite busy. Five favorable capital case remands are noted, with numerous relief denials also set forth below. In Ex Parte West & Hardy v. Alabama remands are had as the state postconviction court improperly held the Rule 32 petitions as out of time In Borden v. Alabama a remand is ordered on an Atkins claim. In Tarver v. Alabama, likewise, a remand is ordered to address issues relating to counsel's failure to present evidence of mental retardation, as well as other matters. The
Fifth Circuit has granted a stay to Yokamon Hearn out of Texas
on the issue of mental retardation.
A Nevada trial court granted a stay to Daryl Mack so that he
could
follow additional avenues of potential relief. As
always thanks for reading and thanks for all those who sent their best
wishes on my client's recent trial, the jury returned not guilty
on all charges on attempted murder. - K EXECUTION
INFORMATION MarchPending execution dates include: March
15-19 Lawrenc Colwwell Jr. Nevada --- volunteer 18 Brian Cherrix Virginia 19 David Clayton Hill South Carolina 23 Hung Thanh Le Oklahoma --- foreign national 30 Edward Capetillo Texas---juvenile 30 William Wickline Ohio 31 Dennis Orbe Virginia April This edition can be located at http://capitaldefenseweekly.com/archives/040223.htm Leading off this edition is the Supreme Court's stunning decision in Banks v. Dretke . The Court, in a 7-2 decision, again sent a stinging rebuke to the Fifth Circuit about its practice in capital cases. Justice Ginsburg's opinion holds that the failure to disclose key evidence requires the writ to issue as to the sentence. Remand also ordered for determination as to whether the underlying conviction can stand. Note also that the Court also deals with the issue of whether a COA can be granted on procedural issues & the amendment of habeas petitions. In the lower courts, the Florida Supreme Court's decision in Florida v. Davis is also especially notable. The Davis Court examines the issue of race and the criminal justice system. Specifically, Counsel at trial conceded his own racial animus in a cross-racial homicide in an effort to weed it out of the jury pool, the responses. The Davis Court found counsel's effort to neutralize race as a factor went too far. Chief Justice Anstead's concurrence is a heartening read. In other decisions of the week, the New Jersey Appellate Division hands down an interesting decision in In the Matter of the Readoption with Amendments of Death Penalty Regulations holding that the state lethal injection protocol under state administrative law fails as it lacks substantial support in the administrative record developed below and appear to be "arbitrary and unreasonable." In Miller v. Maryland a plurality of the Maryland Court of Appeals grants relief as to death sentence on the basis of Apprendi (3 votes) and Brady (3 votes). A remand and jury trial has been ordered in Snow v. Oklahoma on the issue of mental retardation. Finally in Williams v. Georgia a remand has been ordered on the issue of a speedy trial on a burglary charge that served as the predicate for two felony murder charges. Since the last edition a federal district court stayed the execution of George Page on the basis of the constitutionality of North Carolina's lethal injection protocol. Hung Thanh Le (Oklahoma) received a stay from the Governor when his country's embassy intervened just seven minutes prior to his scheduled death. As
always thanks for reading. - K EXECUTION INFORMATION Upcoming execution dates include: March 13 Michael Rosales Texas 29 Anzel Jones Texas----juvenile
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