 Updates run Monday mornings (a "preview
of the nex edition") & "final" editions on Fridays.
April 5 Glen Ocha (Florida / volunteer)
Pending Execution Dates 15 Richard Longworth (South Carolina)
20 Douglas
Roberts(Texas)
21 Bill
Benefiel (Indiana)
27
Donald Jones (Missouri)
28 Mario
Centobie(Alabama / volunteer)
More Execution information |
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Leading
of this week is People v. Harlan. The court below in Harlan found that jurors
had
used "the Bible during deliberations." On appeal the
Colorado Supreme Court, holding that the
resulting death sentence was inappropriate, stated that "it was
improper for a juror to bring the Bible into the
jury room to share with other jurors the written Leviticus and Romans
texts during deliberations; the texts had not been admitted into
evidence or allowed pursuant to the trial court's instructions."
The Court ultimately concludes that all jurors bring their own
"backgrounds and beliefs to bear on
their deliberations but [must] give ultimate consideration only to the
facts admitted and the law as instructed."
In Johnson v. United States the Supreme Court examines what happens when a federal sentence has been enhanced due to prior state court convictions but those prior state convictions are vacated subsequent to the imposition of the federal sentence. Specifically, the Court holds that if Johnson's attempts to vacate his prior state convictions were committed due diligence then he would have one year from those convictions being vacated to challenge his federal sentencing enhancements. Here, however, the Court finds that Johnson did not act with due diligence. Two Louisiana Supreme Court opinions of note are also had. In State v. Higgins the Louisiana Supreme Court vacates a capital murder conviction and imposes a second degree murder conviction in light of a questionable state's witness. In State v. Citizen the same court has held that "the trial judge may halt the prosecution of these [murder] cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel." In slower weeks both cases would have been the lead case of the week. Elsewhere, the Northern District of Iowa has held in United States v. Johnson that "in this case, 'case specific' questions are appropriate--indeed, necessary--during voir dire of prospective jurors to allow the parties to determine the ability of jurors to be fair and impartial in the case actually before them, not merely in some 'abstract' death penalty case." The Fifth Circuit in Brooks v. Dretke grants a COA on jury misconduct claims relating to a juror being arrested during the course of the trial for trying to smuggle a gun into the courthouse. Finally, in Georgia state prosecutors are again shut down in their attempt to hamstring the defense by removing counsel who refuse roll over and play dead (here Matthew Rubenstein) in Williams v. State . Prof.
Jeff
Kirchmeier's article in the Oregon Law Review entitled
a "Tear
in the Eye of the Law..."
(83 Or. L. Rev. 631)
is covered in the "Focus" section. Although one might argue
with the philosophical points Prof. Kirchmeier raises, his extensive
list of
citations to statutory and non-statutory
mitigating circumstance is unbeatable, including some mitigating
circumstances in case law that are
rather unique.
Several new (or new to me) web sites of note should also be mentioned. The Defense Newsletter Blog by the Federal Public Defenders for the Southern District of Florida examines case law from the Eleventh Circuit and an exceptionally timely analysis of major federal developments in criminal law. Robert Fratta, on Texas' death row, has also started a blog. Finally, Google has provided a great new investigation tool, especially to those unfamiliar with a given area, http://maps.google.com, that gives overhead satellite and/or map views of any address in the United States (save for several national security areas). These, and a few other sites, will be added in the next update of the "handout" capital & criminal defense sites of note. Finally,
the death of
Pope John Paul
II has again pushed the issue of the morality of capital punishment
back onto the
center of the national stage in light of his tireless efforts to
reaffirm the sanctity of all life. The Conference of Catholic
Bishops
have republished on the net his views
on the subject.
Since the last edition Glen Ocha was executed in Florida; Ocha was a volunteer. Vernon Evans in Maryland received an unopposed stay. As always, thanks for reading. - k Full edition is here. |
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April 1, 2005 The
Supreme Court's decision in Rhines
v. Weber
leads off this week. The federal district court determined Rhines
filed a mixed petition of exhausted and unexhausted claims challenging
his conviction and death sentence. Rhines moved
for a stay of the federal habeas corpus proceeding so he could return
to state court and exhaust his unexhausted claims. By the time of
the
district court's decision the AEDPA's one-year
statute of limitations had already run, however the court granted the
stay. The Tenth Circuit held a district court can not hold
a
federal
habeas petition in abeyance for purposes of exhaustion.
Reversing, the
Supreme Court holds that a district court may, in circumstances like
those here, stay federal habeas litigation so that a petitioner can
exhausts his
remedies.
The other lead off case, Floyd v. State, is fairly straight forward. The prosecution in Floyd failed to turn over evidence someone else committed the crime. The trial court in post-conviction refused to even hold an evidentiary hearing. The Florida Supreme Court remanded. On remand the trial court again decided not to grant relief. The Floyd Court, not bothering to let the trial court have yet another chance to correct itself, grants relief. Specifically, relief was granted as the confidence in the outcome of the trial was sufficiently undermined to warrant relief as the state failed to reveal "that two unidentified men were acting suspiciously at the place and time of the crime [and] that the testimony of the defendants cell mate regarding the defendant's alleged confession was unworthy of reliance." In other case law developments, the Supreme Court has granted certiorari on California's death penalty scheme in Brown v. Sanders. The Florida Supreme Court in Parker v. State has ordered an evidentiary hearing on counsel's failing to adequately prepare for trial. The Sixth Circuit in Bates v. Bell grants relief on penalty phase closing by the prosecution that was more than a little over the line of what is acceptable argument. Elsewhere, the ScotusBlog has a great look at the oral arguments in Medellin and the recent cert grant in Sanders. In Oklahoma a County District Judge has found Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. In Virginia a two-year study of 11 wrongful conviction cases in Virginia found that mistaken eyewitness identification is the leading reason innocent people have been convicted in the state. Two new "resources"
are also noted, both of which are "blawgs" or law
related web logs. The first is the Ninth Circuit Blog where
federal defenders cover criminal law developments in, as if the name
didn't already give it away, the Ninth Circuit. The other is an
interesting experiment with "blogging" by Vernon Evans who was
scheduled to be executed the week of April 18; at the site Evans
answers questions posed to him by the public but does not appear (at
least at the moment) to be used to generate help with gaining clemency.
Finally, if you can't
shill for your good friends who can you shill
for? Bill Pelke's book, Journey
of Hope,
details the birth of the Journey of Hope....
From Violence to
Healing
after the murder of his grandmother. The book is
featured by the Death Penalty
Information Center (see below) this
week as a new resource.
Bill is currently the chairman of the board of the National Coalition
to Abolish the Death Penalty.
As always, thanks for reading. - k Full edition is here. |
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| March 24, 2005 The
Court's holding in Brown
v. Payton
leads of the week. The Payton Court ultimately concludes
that although
there was error in the case (a prosecutor's misstatement of the
law concerning Payton's religious conversion in prison as mitigation)
but that the state court's adjudication was
simply not unreasonable enough to warrant relief. The decision is
especially note
worthy for several reasons. First, the Court appears to suggest that
had this case reached them on direct appeal rather than from federal
habeas corpus review relief may well have
been granted. Second, it marks the first time (and if not the
first, one of the first times) Justice Breyer has been the
deciding vote for death. Finally, as the dissent points out at
some length, the state conceded that the prosecution's closing was
erroneous.
In another decision, the Court in Muehler v. Menas, holds handcuffing occupants of a house that are not the subject or target of a search warrant did not violate the Fourth Amendment. Elsewhere, in Illinois legislation continues to move throughout the legislature changing the burden of proof in death penalty cases to beyond all doubt from beyond a reasonable doubt. The March 23 scheduled execution of Steven Staley in Texas has been stayed on grounds that he may be incompetent. International LawProf Sarah H. Cleveland of Texas Law was published in the Washington Post this past Sunday for an essay entitled Is There Room for the World in Our Courts?. A new Zogby poll finds that support among Catholics for the death has dropped to 48% as the Chuch's Bishops have assumed a more assertive role in its denunciation of state killing during Holy Week. Finally, the convictions of dozens of death row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice." As always, thanks for reading. - k Full edition here |
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| March 18, 2005 Decisions
from the Fifth
and Ninth
Circuits lead off this edition. In Hayes
v. Brown
the Ninth Circuit, sitting en banc, holds that the prosecution failed
to
correct their witness's
statement that felony charges had not been dismissed in exchange for
testimony. The prosecution had, however, previously agreed to
dismiss
felony charges. The Hayes Court finding error further holds, in
light
of the state's claimed procedural defense, that for purposes of
Teague
the governing rule of constitutional law forbidding use of false
testimony for
purposes of Teague was announced previously in Mooney (1935), Pyle
(1942), and Alcorta (1957), well before Hayes trial.
The Fifth Circuit, explicitly noting the drubbing it has taken by the Supreme Court grants relief in Bigby v. Dretke on "Penry II" style jury instructions. Holding that the jury instruction is on all fours with Penry II the Court holds the jury instruction impermissibly muted the jury's ability to impose a sentence less than death. In dicta the Bigby Court appears to severely undercut several prior panel holdings concerning "double-edged" mitigation. Three other cases also deserve some extra attention. In Johnson v. State the Alabama Court of Criminal Appeals holds that bad acts evidence (404(b) evidence in most jurisdictions) needs a a limiting instruction so that a jury isn't tempted, such as here, to convict merely on those bad acts. The Alabama Court of Criminal appeals, in one of the more outrageous opinions in recent months, upholds imposition of a juvenile death sentence in Loggins v. State on a technicality. Finally, the Oklahoma Court of Criminal Appeals denies relief in Slaughter v. State on actual innocence claims relating to the debunking of bullet lead comparison, favorable DNA testing and favorable brain fingerprinting. In
Ohio Derrick Jamison has walked off of death row after it was brought
to light that the state
withheld evidence of his innocence. In Texas, the scheduled
execution of Pablo Melendez appears to have been stayed for similar
concerns about innocence. Likewise in Texas, a LWOP bill
appears headed to the floor of the state senate. In New Mexico a
much watched death penalty repeal bill, however, died in
Senate
Committee after having won passage in the lower house. Focus
this Week covers a
law review
note I overlooked last summer when it was published. Focus offers
introductory portions of A
MEANINGLESS RITUAL? THE DUE PROCESS MANDATE FOR THE PROVISION OF
COMPETENT COUNSEL IN ARKANSAS CAPITAL POST-CONVICTION PROCEEDINGS, 38
U.S.F. L.
Rev. 749, by Megan Rosichan, a third year law student. The Note
makes a very straight forward argument that state statutes can create a
right to "effective" counsel in post-conviction proceedings. As always, thanks for
reading.
- k
On the net at http://capitaldefenseweekly.com/archives/050314.htm Recently Killed March
11 William Powell North Carolina 15 Jimmy Ray Slaughter Oklahoma 16 Stanley Hall Missouri Serious
Execution Dates
March
23 Steven Staley Texas----volunteer April
5 Glen Ocha (Raven Raven) Florida----volunteer 18-22 Vernon Evans Jr. Maryland 20 Douglas Roberts Texas 21 Bill Benefiel Indiana 28 Mario Centobie Alabama |
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| March 11, 2005
In
re Sakarias
leads off the edition. The California Supreme
Court in Sakarias holds that the the prosecution erred in arguing
different theories of culpability in separate trials of
co-defendants.
In reaching this result the Court provides an overview of competing
moral guilt as factoring in the
decision to return a death sentence. A prosecution "may not
convict
two individuals of a crime only one could have committed or obtain
harsher sentences against two individuals by unjustifiably attributing
to each a culpable act only one could have committed."
Two Supreme Court decisions impacting on criminal law are also noted. In Shepard v. United States, a very narrow opinion foreshadowing one of the last remaining Apprendi battles, the Court holds that sentencing court cannot look outside of the record of a prior plea for determination of the basis of that prior offense. In Wilkinson v. Dotson the Court holds that constitutionality of state parole procedures can be raised under § 1983. Elsewhere, the Court has already begun to issue remands in light of Simmons, including six in the last ten days. Interestingly, the first application of Simmons by the lower courts is a noncapital case, United States v. Lewis, where a district court citing Simmons discounted giving career offender status for robberies committed as a juvenile. In New Jersey the first opinion debunking CBLA (chemical bullet lead analysis) is noted, State v. Behn, a case where the prosecution had sought death. Blasting the validity of the testimony in that case, , the Behn Court offers a good overview of the current state of the science (or lack of science) relating to CBLA. The Court ultimately concludes that the evidence undermining CBLA was previously unavailable the Court suggests strong reasons why otherwise untimely post-conviction petitions should be granted. From the papers, in California, the Los Angeles Times has calculated that each execution in the so-called "modern era" has cost approximately $250 million. President Bush has agreed to give the 51 Mexican death row inmates in the U.S. new hearings, as ordered by the International Court of Justice in the Hague however, the U.S. officially withdrew from the Vienna Convention protocol binding the United States to follow ICJ holdings. Two new resources are also noted. The Public Defender Investigator site, pdinvestigator.net has instantly reached the "must visit" list due to its links to other public defender offices, and great investigation tools, including for mitigation. National Legal Aid and Defender Association (NLADA) has initiated the Appellate Support Network, a project that connects criminal procedure academics with public defenders working on important federal appellate matters. Please note that the March 31 execution date for James Harlow in Wyoming was inappropriately listed as a serious date since he still has federal habeas remedies remaining. In another administrative note, starting last week I started posting updates on Sunday nights on the website of at least some of the decisions that are to be covered in the next Weekly in order to be more timely (Westlaw & Lexis generally do not have all of the cases from a given week until Wednesday, which is why the weekly always runs in full at the end of the week). Full edition here As always, "hat tips" to TalkLeft, CrimProfBlog, the Sentencing Blog, the Cross-Examination Blog, DPIC & Greg Worthen for their invaluable work. - k |
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March 4, 2005
One
case
dominates this edition,
Roper v. Simmons. The
Court in Roper
strikes down the executions of juveniles based primarily
on, what one observer calls, a "bean counting" method of counting
number of
states rejecting juvenile executions and those that retain it.
Noting a historic turn against "killing kids" by states, both in
statute and
in practice, the Court appears to refine the test for "cruel and
unusual" set forth in Trop,
Coker, and
Atkins.
Worth noting
that although only five
justices vote to strike down the death penalty for 16 and 17 year olds,
six justices (the majority plus O'Connor) would hold that
killing 16 year olds violates the Eighth Amendment. The majority
and O'Connor
further conclude that analysis of the "cruel and unusual" clause is
informed
(although not conclusively) by international law; despite
never explicitly stating so, the six also appear to be relying on the
apparent jus cogens in
international
law against killing juveniles and appear ready to hold such norms as
informing any decision impacting on human rights in this country.
Understandably, as time has not yet given sufficient distance to the
decision to know how it will in practice be applied. What happens
next, such as
how the principles of Roper
applies to state with "outlier" practices, such as judicial override
& Texas's "special questions," as well as how international law and
jus cogens informs
domestic
constitutional analysis, will be the fodder of
innumerable law reviews.
Outside of the beltway, several grants of relief or remands are noted. In Orme v. State the Florida Supreme Court orders a new penalty phase hearing holding that trial counsel failed to investigate and present Orme's bipolar disorder diagnosis. In Simmons v. Beard, finding a "consistent pattern" of Brady violations, the Western District of Pennsylvania orders relief. The Alabama Court of Criminal Appeals appears to be quite troubled by the trial court's actions in Presley v. State remands with instructions to hold an evidentiary hearing on ineffective assistance of counsel, and suggest the trial court educate itself on capital case law. Finally, several remands are noted, Commonwealth v. DeJesus (Pennsylvania), Scott v. State (Ala.Crim.App.), and Ex parte Stephens (Ala.Crim.App.), concerning certain procedural issues about sufficiency of court orders or time lines for filing. Focus this edition covers highlights of commentary from around the web on Simmons, including a good analysis by Edward Lazarus at Writ and Doug Berman at Sentencing Law and Policy. Rather then recapping the highlights of the weeks since the last full edition, please find extend coverage of DPIC's and the blogosphere's comments. With that stated, in the last few days the New Mexico House has voted to abolish the death penalty. In Kentucky one government official has estimated that each execution cost costs tax payers there $50 million per execution. Finally, pending legislation in Texas is highlighted by Grits for Breakfast which looks attempts to lessen the qualifications for lawyers death cases and is covered in the Around the Blogs section. Congrats to all those who
helped make the win in Simmons
possible.
Congrats also go out to counsel in Orme, Presley, and the other Simmons,
Ernest
Simmons, who won big in the Western District of
Pennsylvania.
Full edition here As always thanks for reading. - k |
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| March 1, 2005 In an
International Abolition of the Death Penalty present, the Supreme
Court has held it impermissible to kill juvenile offenders in Roper
v. Simmons.
The decision appears to have effectively stopped six capital
prosecutions at the trial court level (including that of Dominic Coia
that was mid-trial when the decision was handed down) and commutes to
life 74 people who are currently on death row. Congrats to all
those More in the next edition. The decision appears to be the
first internationally recognized ban on a category of punishment,
capital or otherwise.
- k> |
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Posted February 26, 2005 In another "stripped down
edition"
cases out of Texas predominate. For the first time in several
years,
if memory holds, no win is reported. One case of unusual note is
had
in United
States v. Williams, a federal capital prosecution in the Fifth
Circuit. In that case, on interlocutory appeal, the Williams
panel holds that the district court erred in ordering a non-death
qualified jury for the guilt phase of the trial and, if necessary, a
separate death qualified jury in the penalty phase.
Please note, by the time the next edition runs I should be off trial
and the Weekly return to its normal format.Full edition here As always thanks for reading. - k |
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| Posted February 21, 2005 In this double edition, three cases are of special note. The California Supreme Court in In re Hawthorne examines how to present a mental retardation claim in post-conviction in California, holding, most importantly, that mental retardation has no hard and fast definition based solely on IQ scores below a certain threshold. A military death sentence has been set aside in United States v. Quintanilla after a juror was removed for cause merely because he was perceived as having "difficulty in considering the entire range of punishments." Finally, in United States v. Wilson, the Eastern District of New York offers an excellent guide for the appointment of counsel in federal capital cases at the trial level. This edition, and the next one (covering cases from February 14-21, 2005), will be "stripped down" to merely wins & losses with a fairly extensive edition looming, either March 4 or March 11, due to trial schedule. My apologies in advance, but, as long time readers know, my first obligation is to my clients and the Weekly, being a pro bono effort, must by necessity come a distant second. - k Full edition here |
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Posted February 4, 2005
Richey
v. Mitchell takes the spotlight this week. The Sixth
Circuit grants relief on claism of
ineffective assistance of counsel in the preparation and handling of
scientific evidence, as well as whether murder could be had on a theory
of transferred intent. I should note that Richey has a strong
case of possible innocence making it unlikely, despite a strong
dissent, to be revisited by either that court en banc or the Supreme
Court on cert.
In other cases of note, in State v. Crisp, the South Carolina Supreme Court holds the trial court went too far in getting involved in discussion about the advisability of taking plea. In Lantz, Comm'r, CT DOC, et al. v. Ross the Supreme Court, despite Chief Justice Rehnquist's continuing ailments, voted 5-4 to lift a stay on issues relating to competency to waive appeals to be executed. Likewise, the Court in Kunkle v. Dretke denied a stay 5-4; it should be noted that the Supreme Court's onilne docket sheet appears to note one hell of a fight in that Court with at least half a dozen filings in that court by Kunkle's attorney Rob McGlasson. In Connecticut Michael Ross has agreed to a stay following a flurry of litigation about his competency to be executed. Chief Judge Chatigny's discussion with Ross's counsel on the ethics issues relating to volunteers, due diligence and fraud on the court should be read by those facing a client who is considering "volunteering." In solidarity with Ross's decision inmates on Connecticut's death row have begun a hunger strike and to bring attention to the so-called "death row syndrome" (a theory that solitary isolation can cause severe mental health problems and suicidal tendencies and which many observers believe contributed to Ross's decision to drop his appeals). In other news of the week, the AOC has upped the maximum rate for capital representation to $160/hour. The President in the State of the Union, in an applause getting line, noted his intent to use $50 million over the course of the next three years for training lawyers in capital defense, however this is less than a third of the money authorized by Congress in the Innocence Protection Act and and about half the amount of money allocated to do exactly this in the early through mid-90s. In proof of how inaccurate DNA drag nets can be, Gary Leiterman has been bound over for trial for the 1969 murder of University of Michigan Law student Jane Mixer, at the time Leiterman was 4 years old (I am going out on a limb and expecting a "NG" if this matter goes to trial should the proofs play out as reported). Finally, Max Soffar is featured this week in a Jerusalem Post article written by Kinky Friedman, the author/musician and, more recently, the quixotic independent candidate for Texas governor, entitled "A Jew on Death Row." This week's edition is running a little late due to the lethal injection protocol hearings in New Jersey this past Friday. As long time readers know, my personal bias on issues I have been working on regularly creep in here so in the coming weeks the issue of lethal injection will be covered extensively as this is an issue that is increasingly being raised at all levels of litigation. For those interested, the transcript of the lethal injection hearing will be posted by Wednesday. As always thanks for reading. - k |
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Posted January 28, 2005
This issue covers three key decisions, two from the Supreme Court, Illinois v. Caballes & Bell v. Cone, as well as one from the Third Circuit, Jacobs v. Horn. The Court in Illinois v. Caballes held that a police officer does not need reasonable suspicion to have a drug sniffing dog circle a vehicle stopped for a routine traffic stop. The decision was 6-2 with Ginsburg and Souter dissenting. In this case, when the defendant was stopped for speeding, officers paraded the canine around his car, and the canine alerted to the presence of narcotics. Key to the opinion seems to be the presumed degree accuracy of the dog in issue and that the stop did not unduly delay the motorist at issue. In Bell v. Cone the Court summarily reverses the Sixth Circuit. The court below granted relief finding the “especially heinous, atrocious, or cruel” aggravator unconstitutionally vague. Tennessee case law, however, construes the aggravator narrowly. The Court of Appeals held that the state court erred in not indicating it had performed this narrowing analysis, but the Supreme Court disagreed holding the Sixth Circuit erred in finding that the state court failed to apply the narrowing construction. The Court holds, because the facts and reasoning of the state court decision in Cone are closely analogous to other cases in which the state court had affirmed death sentences that even under the pre-AEDPA habeas statute that relief could not be had.. The final case examined on the "Hot List" is Jacobs v. Horn. The Third Circuit in granting relief notes trial counsel "failed "to investigate and present evidence showing Jacobs suffered from mental retardation, organic brain damage and other emotional impairments that prevented him from forming the specific intent to kill Tammy Mock." The reason the case makes the list, and one of the key reasons as to why it received relief, is that trial counsel failed to give necessary background information to his experts that would give him a reason to perform a thorough mental health examination. "According to Dr. Davis, if he had known that this was a capital case, he would have automatically requested testing for brain damage or other impairments that are not readily apparent from a standard evaluation." In Howell v. Mississippi the Supreme Court holds that Cert was improvidently granted in this capital case. Howell had filed for cert on the claim that the trial court erred by failing to give a jury instruction on the offense of simple murder or manslaughter. As the issue was not raised below, the Court holds it would avoid the issue of whether or not it could under Article III have jurisdiction and simply dismisses the grant of cert. Turning to the other news of the week, "Exonerated" has started to play in heavy rotation on Court TV and should not be missed . Elsewhere on the "innocence" front, multiple cases in Florida, Ohio and Texas, as well as at least one case each in Arizona, North Carolina and Tennessee, may result in exonerations by the end of the year. One of these cases, State v. Max Soffar, heads back to to court February 2 for an arraignment in Houston after a Fifth Circuit grant of habeas relief. George Jones in Texas has received a stay of a serious date on issues apparently relating to mental retardation and competency. In the latest twist of the Houston crime lab scandal, it has been announced that at least twenty-eight cases where death sentences were ordered were improperly handled by the lab with twenty of those already being put to death. Finally, out of the Lone Star State, Grits for Breakfast notes that even though Texas executes more murderers than the next half dozen states combined, Texas' murder rate went up 8.6 % statewide from 2002 to 2003 alone, the last year for which statistics are available. Focus this week covers this week's release in Canada of the "REPORT ON THE PREVENTION OF MISCARRIAGES OF JUSTICE" by the FPT Heads of Prosecutions Committee Working Group. The Report is yet another examination of the problems with the criminal justice system and has several key issues excellent as a resource for both activists and litigators. Looking ahead to the next edition, in Richey v. Mitchell relief has been granted on claims relating to statutory construction and ineffective assistance of counsel where the background in the case is a very strong claim of actual innocence. |
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Posted January 21, 2004
A rare grant of relief out of the Fifth circuit leads off this edition, Guidry v. Dretke. A split panel in Guidry holds that the district court correctly interpreted the deference requirements of the AEDPA as to whether the Appellant's confession, as well as other hearsay, was improperly admitted at trial. Noting that deference to a state court's decision does not mean abandonment of any meaningful review, the majority holds that the state court's factual determination as to the confession were simply not credible. Two
other favorable decision of note
are also had. The Georgia
Supreme Court in
Grant v. State has held that the trial court abused its discretion
by removing counsel, imposing contempt sanctions and appointing
replacement counsel over the defendant's objection. In Lebron
v. State the Florida Supreme Court grants a new penalty phase
hearing where separate juries heard the penalty and guilt phase but the
trial court permitted the prosecution to use in the penalty phase a
factual theory that the guilt phase jury had explicitly
rejected.
Full
edition hereSeveral "volunteer" cases are also noted. Courts in Connecticut hold in Ross, as next friend, v. Rell & State v. Ross the father and public defenders assigned, respectively, lack standing to intervene to stop the execution of a pathetically mentally ill death row inmate who seeks to drop his appeals. In Corcoran v. State the Indiana Supreme Court holds Corcoran sane enough to waive appeals, that his former public defenders lack standing to seek post-conviction review without the approval of former putative client, and that there is no right to automatic post-conviction review of their death sentences. In Ashley v. Bagley the Southern District of Ohio refuses to seal the records of mental health experts who were used to determine competency to waive appeals. Rounding out the decisions is In re United States of America. The Government had the option of seeking death in this case for twelve different Defendants. It chose to seek death against the only black defendant. The district court ordered the government to explain its charging decision, and, when it refused, the trial court stated it would give an instruction about the government's charging decision. On appeal the Fifth Circuit granted a writ of mandamus holding that the trial court abused its discretion in ordering the government to disclose its decision making process and would hence err in taking any remedial measures related to the government's flouting of the discovery order. Elsewhere the Beardslee execution produced several opinions that will be covered in the next edition relating to lethal injection challenges and protocols but yet, somehow despite this intensive litigation about the California lethal injection protocol, the execution appears to have been botched. In Louisiana Wilbert Rideau, who spent many of his 44 years behind bars, including many on death row, was released after the jury hearing his retrial convicted him of what amounted to a time-served charge. The Georgia legislature is considering making child sodomy a capital offense. Finally, also in Georgia, seven death row inmates will be forced to represent themselves pro se as that state's capital post-conviction process simply can't keep up with the demand for counsel. As always thanks for reading. - k |
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Posted January 14, 2004 The
Supreme Court's decision
in United
States v. Booker
leads off this edition. The Booker majority (or is it majorities)
struck down the
federal Sentencing Guidelines but, as a remedial measure, have held
that
the Guidelines must still be consulted in sentencing. The
immediate
impact is that the lower federal courts are likely to be involved in
resentencing for the foreseeable future; in the
words of Prof. Peter
Henning, "Booker will become a source of many judicial opinions
plumbing its depths -- pity the poor trees felled in its
wake." As it relates to capital cases, which is already
being discussed on several of the more secure discussion lists, the
language of Booker calls into serious question the sentencing schemes
in many, if not most, states that still retain the death penalty
as to the weighing of aggs v. mits with a standard of less than proof
beyond a reasonable doubt, as well as, use of "advisory" juries whose
decision need not be unanimous.
Of course Booker is not the only news of this edition. In State ex rel Bourque v. Cain the Louisiana Supreme Court has remanded for a evaluation of his competency to be executed hearing under a new state competency to be executed statute. In State v. Bays an intermediate Ohio appellate court examines when an expert is needed to litigate an Atkins claim. In an unpublished opinion the Fifth Circuit has granted a Certificate of Appealability on issues relating to use of an expert in eyewitness identification in Ford v. Dretke. Likewise, in an unpublished opinion (or possibly and order) not available from Lexis, Westlaw or even the Fifth Circuit's own website, that Court appears to have stayed the scheduled execution of Jose Briseno in light of concerns about whether he is mentally retarded. Finally, a district court has denied relief in Beardslee v. Woodford on a rather unique challenge to lethal injection asserting that pancuronium bromide, the second of three chemicals injected into condemned inmates in that state's protocol, could violate the First Amendment by preventing Beardslee from telling witnesses that he was uncomfortable or in pain. Several grants of certiorari are also noted, including two capital cases from the Sixth Circuit. In Bell v. Thompson cert was apparently granted on on the ability of a federal appeals court to withdraw an opinion decidedly adversely to a habeas petitioner some six month after the mandate Issued. The Court also granted cert in Mitchell v. Stumpf on the question of prosecutor's using different theories for prosecution in differing cases. Elsewhere, the Chicago Tribune reports that more and more fingerprints are taken and examined electronically and in the process "cleaned up" in Photoshop resulting in "digital images that may be missing crucial details or may have been manipulated without the [anyone else] knowing it." Over at the Death Penalty Information Center, the site notes it has pulled together additional resource pages about the pending capital cases before the Court, some apparently available nowhere else. Finally, Jeffrey Toobin, writing in the upcoming January 17, 2005, New Yorker examines a recently disbarred former Arizona prosecutor whose misconduct in two different death penalty cases lost him his license and whose conduct appears to have put the wrong man on the row On a personal note, thanks to all those who have forwarded their stories about their experience in living with the aftermath of having a client executed as well as those who still are in the process of forwarding their stories. If you would like to submit your story there is still some time left. Finally, a new section has been added entitled "Around the Blogs." With the sudden proliferation of experts posting their thoughts on the death penalty, including blogs by no less than four criminal law professors, as well as NACDL, hit and miss coverage of the blogs was no longer a viable option. This this week covers postings from TalkLeft, CrimProfs Blog, Sentencing Law and Policy, Abolish the Death Penalty and The Lonely Abolitionist. Archived on the net at http://capitaldefenseweekly.com/archives/050110.htm As always thanks for reading. - k |
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| Posted January 8, 2004 Cert Alert: Nine
Cases were granted cert on Friday, including, from the SCOTUS Blog:
04-514,
Bell, Warden v. Thompson (review limited to Question 2), tests the
authority of a federal appeals court to withdraw an opinion against a
habeas petitioner six months after the mandate had to have been issued.
04-637, Mitchell, Warden, v. Stumpf, involving tests for voluntariness of a guilty plea and of the impact of a later prosecution of a different person that brings out evidence inconsistent with the basis of guilt in the defendant’s trial earlier. 04-563, Mayle, Warden v. Felix, testing the scope of the one-year filing deadline for federal habeas petitions, when a state inmate amends his petition to include a new claim. Halbert v. Michigan (03-10198), the issue is the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court. Johnson v. California (04-6964), is a case that had been before the Court last Term, testing the method of establishing racial exclusion of jurors by prosecutors using peremptory challenges. Commutation granted: Out going Indiana Governor Joe Kernan commuted Michael Denials to life without parole |
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Posted January 7, 2004
Decisions
from the Nevada Supreme Court lead
off this decision. In Butler v.
Nevada that Court noted a large number of penalty phase
errors. Most
notably, the Butler Court held the trial court's "other
matter" evidence instruction erroneous and may have been sufficient to
constitute
reversible error in itself. Other errors noted included denial
of the right to have both counsel address the jury in the penalty phase
and
prosecutor's comments during closing argument including calling a
certain defense expert witness "that high falootin'
expert" and his testimony as an "infomercial"
In
another case,
Young v. Nevada , the Court reversed on the denial of a
motion
for substitution of counsel. The Young Court found that the
proper inquiry in such situations is "(1) the extent of the conflict
between the
defendant and counsel, (2) the adequacy of the court's inquiry into the
defendant's complaint, and (3) the timeliness of the motion and the
extent of any inconvenience or delay." Concluding that the trial
court erred under this standard it ordered a new trial.
Across
the county in Connecticut, penalty phase relief was granted in Connecticut
v. Colon on the trial court's failure properly instruct
the jury on the State's burden to prove beyond a reasonable
doubt as to aggravators outweighing mitigators. In Pennsylvania
v. Gribble the state supreme court sitting in post-conviction
review has remanded on counsel's failure to conduct an
adequate mitigation
investigation. Remaining on the East Coast, in South
Carolina v. Owens a new penalty phase hearing was found
necessary as the trial court impermissibly inserted its personal
opinion into defendant's
decision to waive jury for retrial of the sentencing phase.
Two
federal trial court orders of note are also had.
Judge Gertner, sitting on the federal bench in Massachusetts, has
amplified her findings in United States v.
Green as to
why there must be separate juries for each phase of this capital
trial. In United
States v. Williams, in an extremely rare capital prosecution in the
Southern District of New York, the trial court has struck several
aggravators including a proffered non-statutory "firearm" aggravator as
to all defendants and
a "conviction for a
serious federal drug offense" aggravator as to one of the defendants.
I
would be remiss for not
addressing several notable developments and accomplishments by members
of the community. John
Gibbons, former Chief Judge of the Third Circuit, a distinguished
lawyer, and noted humanitarian, can now add another title to his
impressive resume, New Jersey Lawyer
of the Year
for his efforts relating to the death penalty,
access to the Courts for the Guantanamo Bay "detainees", and his
unceasing devotion to keep the courthouse doors
open to all regardless of their background or the accusation levied
against them. Rachel King of the ACLU's Capital Punishment
Project
has a new book entitled "Capital Consequences: Families of the
Condemned Tell Their Stories." Finally, Sister Helen
Prejean has a book about her experience of watching two men she
believed
to be actually innocent executed, as well as their stories concerning
how they ended
up on death row, "The
Death of Innocents: An Eyewitness Account of Wrongful Executions."
The Focus section covers the year in the death penalty as noted by the Washington Post and the Death Penalty Information Center. Of
curious note in the upcoming
execution dates is Michael Ross
from Connecticut. Ross is likely to be the first execution in
several generations in New England and may well be the last one to ever
be carried out there. Although I was tempted to do somewhat
in-depth
coverage
of that execution for a number of personal reasons, I have been beaten
to the punch by the Kirby
Report which has been covering the possible execution in-depth.
Please note that the criminal/capital defense links resource pages are being updated, if you have a site that should be added (especially blogs such as the Kirby Report) please feel free to contact me off list. Similarly, the format of this newsletter and the website "Capital Defense Weekly" will be overhauled in the coming weeks, if there is something you want to see that isn't there, or something that you don't want to see that is here, please feel free to email or visit the comment board on that site. Full edition here |
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Then
there were
36. The Kansas Supreme Court, as noted in the last edition,
has struck down that state's death penalty statute
in Kansas
v. Marsh. The Kansas statute permits a jury to return a
death verdict
even it found the aggravators and mitigators in equipoise.
Holding that death should not win by default, the
Marsh Court holds that the prosecution should prove that the
aggravators outweigh mitigators by at least a simple preponderance
overruling State v. Kleypas. The
Court also vacated Marsh's conviction on claims relating to exclusion
of evidence that someone else committed the crimes for which the
appellant was
convicted.
In the Sixth Circuit the long awaited en banc decision In re Abdur’Rahman v. Bell is noted. Overruling McQueen v. Scroggy, Abdur'Rahman holds that a Rule 60(b) motion may be entertained in a habeas proceeding and thensets forth when a district court may entertain such a motion. The practical effect means all but two circuits (Tenth & Eleventh Circuits) now permit such motions. A panel of the Sixth Circuit, applying Abdur'Rahman in Alley v. Bell has found, in that death penalty case, however, that at least in Alley's case his motion was to be treated as a successive petition. A key decision with substantial overtones of actual innocence is noted out of the Sunshine state. In Mordenti v. Florida the Florida Supreme Court reverses the appellant's conviction holding that the state withheld key evidence of innocence that cast serious doubt on the state's only witness linking Mordenti to the crime. "There was no money trail, no eyewitnesses, no confession, no murder weapon, no blood, no footprints and no DNA evidence linking Mordenti to the murder." Elsewhere, the Alabama Supreme Court has ordered a new trial in Ex parte McGriff, as the trial court improperly instructed the jury on the need of the state to disprove heat of passion beyond a reasonable doubt. In Johnson v. Dretke the Fifth Circuit has granted -- in a successive habeas case -- a COA on the issue of prosecutorial misconduct and due diligence to overcome the requirement of 28 U.S.C. § 2244(b)(2)(B)(i). The Fifth Circuit has also granted a COA in Mines v. Dretke on Tennard and Penry II issues. The web roundup this week notes posts from the CrimProf Blog & TalkLeft. Full edition here As always thanks for reading. - k Posted
December 17, 2004
Florida
v. Nixon
leads of this edition. The Supreme Court in Nixon held that counsel's
concession that his client committed murder, made without the
defendant's express consent, does not automatically rank as prejudicial
ineffective assistance of counsel under United States v. Cronic.
In
reaching the conclusion Justice Ginsburg sets out a very blunt analysis
of viable strategies for capital trial counsel including concession of
guilt. The case is bad for those already in the "pipeline" with
similar "Cronic" type issues but the Court's reliance on the 2003
revisions of the ABA Guidelines for the Appointment and
Performance of
Defense Counsel in Death Penalty Cases and their markedly more
favorable language than the prior Guidelines, as well as several other
reasons, provides a very strong silver lining to this otherwise
miserable opinion.
Several favorable cases are also noted. In Hutchinson v. Missouri the Court grants relief as trial counsel were ineffective in failing to investigate and present evidence of the defendant's impaired intellectual functioning. In Ohio v. Burke the intermediate appellate court has held that counsel erred in not timely filing a motion for new trial. In State ex rel Mayes v. Wiggins the Missouri Supreme Court held the trial court below erred in not imposing a life sentence when "the verdict fail[ed] to show that the jury found all facts necessary for the imposition of death." The Alabama Supreme Court in Ex Parte Martin remands to permit the trial court to reconsider the weight it gave to the jury's recommendation to spare Martin's life. Finally there is late word that Kansas has struck down its death penalty in Kansas v. Marsh, 36 states now retain the death penalty. Updated December 10, 2004 "This is a regrettable case in which the attorneys involved--the prosecutor, defense counsel, and even the trial judge--failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case" the Ohio Supreme Court notes in Ohio v. Yarbrough. The opinion ultimately concludes that Ohio's murder statute does not authorize a death sentence for a murder committed in Pennsylvania, a point apparently missed by the attorneys in the case at trial. The Yarbrough opinion earns the first slot this week on the "hot list" for the Court's frankness in dealing with the issue of jurisdiction. The Louisiana Supreme Court's opinion in State Ex Rel Williams v Louisiana earns the only other slot this week. Williams is a technical opinion about the scope of the Louisiana funding mechanism for capital post-conviction cases. Pro bono counsel managed to attack that state's scheme by a number of different mechanisms ultimately resulting in a remand for further proceedings to expand the record. Counsel's creativity is why Ex rel Williams is highlighted. Arguably the most important post-Crawford case relating to the Confrontation Clause is the Sixth Circuit's recent noncapital decision in United States v. Cromer. The panel's decision there holds that under Crawford testimonial hearsay is any statement made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime. The Confrontation Blog has more on post-Crawford developments post-Crawford including Cromer. As this edition is going to press it the Supreme Court announced it would hear Medellin v. Dretke apparently on the issue of rights under the Vienna Convnention, more information at the Supreme Court blog (http://goldsteinhowe.com/blog). As noted here previously, Cameron Todd Willingham was strapped to a gurney earlier this year. To his death he proclaimed his innocence. This week the Chicago Tribune presents exceptionally strong evidence of his innocence. The Tribune's investigation concludes that rather than arson and homicide it was likely a tragic accident that lead killed his three daughters with that tragedy only being compounded by the execution of a probably innocent man. Similar questionable arson investigations resulted in the wrongful convictions and death sentences of Madison Hobley and Ernest Ray Willis, both of whom were later exonerated. At least one arguably innocent person, Kenny Richey remains on death row despite a similarly flawed arson investigation. In light of the problems with arson investigation the Trib's article highlights the article is the "Focus" article of the week. In other news of the week, the Supreme Court this week (again) heard argument in Miller-El v. Dretke to address the issue of the fairly blatant use of racial bias in the selection of jurors by the prosecution, and unofficially, to highlight its noted growing concern with the so-called "machinery of death" in the Fifth Circuit. Elsewhere, an analysis of the Innocence Protection Act of 2004 is now available from DPIC. Finally, New Jersey's acting Governor, Richard Codey, has called for a moratorium on executions as that state appears ready to set its first real execution date in forty years. The
full edition is here
As always thanks for reading. - k EARLIER CASE REVIEWS LOCATED HERE |
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