Capital Defense Weekly

this week’s edition.

Leading off this edition:

No new opinions of note are had this edition.

In the news, NPR’s Fresh Air has an exceptional piece interviewing David Dow discussing his Autobiography of an Execution. In a sign of the times, Gabriel Gonzales returned to the same Bexar County courtroom Monday where, 13 years earlier, a jury had condemned him to die for killing a pawnshop owner during a robbery, this time . Gonzales received life. In Maryland, key changes to the public defender service appear to be working their way through the state legislature. In Pennsylvania the issue of the cost of the death penalty is again causing many community leaders to ask whether the death penalty is worth the cost.

Finally, in the words of DPIC:

Henry Skinner is scheduled for execution in Texas on February 24 despite the lack of DNA testing of critical evidence from the crime scene that could lead to his exoneration.  Skinner has always maintained his innocence of the 1993 murder of his girlfriend and her two grown sons in Tampa, Texas.  At his trial, the prosecution presented the results of selective DNA testing on some of the crime evidence that tended to prove Skinner’s presence at the scene, which was his place of residence, a fact he has never disputed.  But the state has repeatedly refused his request to test other evidence, including material found on the victim, that could point to another suspect.  In addition, an investigation by journalism students from Northwestern University in 1999 and 2000 revealed that a key witness from the trial had recanted her testimony linking Skinner to the crime.  Texas has already executed a number of individuals who may have been innocent, leaving a cloud of doubt on the fairness of the criminal justice system.  By conducting relatively routine DNA tests before his execution, the doubts surrounding Skinner’s case could be resolved one way or the other.

Read more .

As always, thanks for reading. -k

quick look at this week’s new case law

So far we’ve spotted only a handful of decisions of note for the next email edition, all of which are after the jump

A closer look at an upcoming execution date: Hank Skinner

Where DNA evidence exists in a capital case common sense suggests it should be tested.  Texas, in Hank Skinner’s case, says no. In a little over two weeks Texas is scheduled to kill Hank Skinner despite large quantities of potentially exculpatory DNA evidence readily available for testing.

The State at trial had a heavily circumstantial case against Mr. Skinner. Adding to an otherwise mediocre case was the allegation by ex-girlfriend, Andrea Joyce Reed, that Mr. Skinner confessed to her the murder of his then current girlfriend, Twila Busby,  and her children.  The State and the Defense chose not to test certain key physical evidence for the presence of DNA.

At trial, and since, Mr. Skinner asserted his factual innocence.  Specifically, the Defense posited at trial, and on appeal, that Ms. Busby likely was killed by Robert Donnell, her maternal uncle.  An “ear witness” to the crime purportedly indicates that the male voice he heard that night was not Mr. Skinner.  The State’s key witness Ms. Reed, post-trial asserted she was coerced into falsely testifying against Mr. Skinner.

Through a story of bizarre, Kafkaesque rulings the DNA evidence in the case has never been tested.  Could the DNA merely confirm the State’s theory of the case, absolutely.  Could the DNA also exculpate him, yes.  After February 24, 2010, however, it may not matter as that is the date Mr. Skinner is scheduled to be executed.

More here &  action item here.

I should note that due to circuit precedent any avenue for federal relief, save a currently pending writ of cert to the United States Supreme Court, seems unlikely, despite Mr. Skiner being represented by one of Texas’ most capable capital postconviction specialists, Rob Owen.  His thought on not testing the DNA? “The idea that we’re going to not find out, that’s … irresponsible,” he says.

The Texas Tribune has also written on Mr. Skinner’s case: Case Open /  Case Open: The Investigation / Hank Skinner interview

weekly up

From the weekly:

Three favorable cases are noted since the last edition, State ex rel. Andrew Lyons v. Lombardi (Missouri), Joseph E. Corcoran v. Levenhagen (Seventh Circuit), and Leon Winston v. Kelly (Fourth Circuit).

The Missouri Supreme Court’s grant of relief in State ex rel. Andrew Lyons deceptively appears to be a rather straightforward Atkinsgrant, however there is a twist. “Although the statute does not specify any particular method for proving this element, the parties presented evidence of Lyons’ IQ scores.4There were four IQ tests. The results ranged from 61 to 84. Lyons’ expert presented evidence that reconciled the variance. The master concluded that this expert’s testimony was the most credible and concluded that Lyons’ IQ fell within the range of 61 to 70.”  “The state vigorously notes the lack of an IQ test result from prior to age 18 and the scant school records and other evidence with respect to the adaptive behaviors.. . .A purpose of requiring documentation is to diminish the possibility a defendant will fabricate or exaggerate the symptoms of mental retardation to avoid punishment. The records that Lyons presented and the testimony received are sufficient for the master to conclude that Lyons’ conditions were not a recent fabrication and that they were documented prior to Lyons attaining 18 years of age.”

On remand from the SCOTUS, the Seventh Circuit’s grant of relief in Corcoran, fortunately, surprised few.    “The trial court erred in using in its “weighing” calculations non-statutory aggravators in contravention of state law.”  “Nothing in this opinion prevents Indiana from adopting a rule [ ] permitting the use of non-statutory aggravators in the death sentence selection process.”

Finally the Fourth Circuit in Winston remands for a hearing on Mr. Winston’s Atkins claim.   The panel holds the district court erred in refusing to consider Petitioner’s proffered evidence of mental retardation as the evidence failed to change the nature of Mr. Winston’s claims and because counsel diligently sought out the information sought to be brought in to the record. An interesting discussion for habeas wonks on the default and factual development in state court. Hopefully, the folks at CapDefenseNetwork should have something on the decision in the next few days.

In light of time constraints, I should note that CapDefenseNetwork’s “week at a glance” has updated, as well as its CLE listings, Steve Hall’s StandDown-Texas (including the details of a life verdict following a rare appellate win in Texas & a case we’re watching here with an execution date for reasons that will be expanded upon at the daily blog, Hank Skinner) is a must read daily (and Tuesday morning should be no exception), DPIC looks at costs & the future of North Carolina’s death penalty, likewise Doug Berman has also covered the topic in recent days.

My apologies for an abbreviated issue, however, in light of time constraints it was short or not at all.  As always, thanks for reading. -k

Delaware’s lethal injection protocol upheld

The Third Circuit on Monday upheld Delaware’s lethal injection protocol, Robert W. Jackson, III v. Danberg.

The panel’s opinion concludes:

But whatever one’s personal feelings about the death penalty, no reasonable person disputes that the execution of a human being, no matter how heinous his or her crime, is a most solemn and weighty matter. The record before us reflects an occasional blitheness on Delaware’s part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation to ensure that the implementation of its new protocol does not run afoul of the Eighth Amendment’s proscription of cruel and unusual punishment, but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands.

There is a substantial likelihood this case will be going en banc, so stay tuned.

Kentucky Lethal Injection

Monday is the last day to submit comments on KY execution procedures. Please fax comments to Department of Corrections by 4:30 p.m. eastern time on Monday. Number is 502-564-6686. Address them to Amy Barker. Execution procedures can be found at http://kcadp.org/wp-content/uploads/2010/01/Kentucky_death_penalty_procedures.pdf .

KCADP has more.

weekly

From this week’s email edition, which is now available:

Leading off this edition is Wellons v. Hall.  In this per curiam opinion, the Court  grants certiorari and remands, in light  Cone v. Bell. As the ABA Journal notes: “[s]ome jurors hearing the case against defendant Marcus Wellons gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts. In a 5-4 ruling, the U.S. Supreme Court in a per curiam opinion ordered the Atlanta-based 11th U.S. Circuit Court of Appeals to reconsider whether Wellons is entitled to discovery and a hearing” in light of the claimed misconduct and Cone.

The Court also decided Wood v. Allen,  which is an odd opinion with an odd lineup of Justices. The Justice Sotomayor majority opinion upholding the death sentence in Wood pulled two Justices (Ginsburg & Breyer) that vote for death only sporadically, and the dissent has the usual swing Justice in capital cases (Kennedy). Curiously, as indicated in section II.A and II.B of the opinion, the Court granted cert to analyze the interplay §2254(d)(2) and § 2254(e)(1).  The Court ultimately decided this case was a bad vehicle for that exploration.   In light of the lineup in Wood, from the Defense perspective, it may be best the Court did not reach how the two provisions of §2254 fit together with the unusually ugly facts of this case.   The decision appears to be unusually fact-driven and I’m not sure why it didn’t get DIG’d in light of that conclusion and leave the  Eleventh Circuit opinion in place and not waste their time with what otherwise is not an overly remarkable lower court opinion (save of course for the parties involved).

The only notable lower court decision is State v. Dale Carter Shackelford. In Shackelford the Idaho Supreme Court upholds the trial court’s grant of relief under  Ring v. Arizona. “Without analyzing whether Ring requires a jury to weigh mitigating factors, this Court finds that the jury was required to find the aggravator, [however']such a finding was not explicit in the first-degree murder verdicts.”

In the news, David Dow, the Director of the Texas Innocence Network at the University of Houston Law Center has written “The Autobiography of an Execution,” being published next month by Twelve Publishers; Prof. Dow has a preview, likewise entitled The Autobiography of an Execution,” at Huffington Post. Ronald Smith, Canada’s only resident on death row USA, is now at the center of  a  lethal injection challenge to Montana’s execution protocol. Texas Court of Criminal Appeals Presiding Judge Sharon Keller has effectively received a pass for her conduct that directly led to shutting the CCA to a lethal injection challenge on the day Baze was granted certiorari by the US Supreme Court.  “Shaken baby syndrome itself is put on trial in Fairfax court” is the title of a recent report in the Washington over whether “shaken baby syndrome” actually exists. In Pennsylvania, the Pittsburgh Post-Gazette looks at the Keystone state’s failed experiment with capital punishment entitled, “Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999.”

As always, thanks for reading. -k 

SCOTUS decides Woods v. Allen

The opinion in Wood v. Allen is here.  Long story short, an odd opinion, an odd lineup, and I need to reread as I strongly suspect there is more going on here than a first blush reading reveals.  The Justice Sotomayor majority opinion upholding the death sentence in Wood pulled two Justices (Ginsburg & Breyer) that vote for death only sporadically, and the dissent has the usual swing Justice in capital cases (Kennedy).

Curiously, as indicated in section II.A and II.B of the opinion, the Court granted cert to analyze the interplay §2254(d)(2) and § 2254(e)(1).  The Court ultimately decided this case was a bad vehicle for that exploration.  I’m not sure why it didn’t get DIG’d in light of that conclusion and leave the  Eleventh Circuit opinion in place and not waste their time with what otherwise is not an overly remarkable lower court opinion (save of course for the parties involved).  In light of the lineup in Wood, from the Defense perspective, it may be best the Court did not reach how the two provisions of §2254 fit together with the unusually ugly facts of this case.

As I indicated at the outset, I need to read it a few more times & this post will get updated once I get that chance.

Keller issued a free pass

Jeff Gamso sums up my reaction to Sharon Keller’s “free pass” today than I ever could.  His post is hits it on the head.

SCOTUS action

In a decision that unlikely surprised many (and predicted here) the Court today in Wellons v. Hall remands. SCOTUSBlog notes:

The Court, in a second summary ruling on Tuesday, engaged in a spirited debate — with a 5-4 result — over when the Court should wipe out a lower court’s ruling and order it to reconsider.  The case involved a Georgia murder case — a case in which, the Court majority said, there was a trial that “looked typical,” but “there were unusual events going on behind the scenes.”  The Court cited private contacts between the jurors and the trial judge, and noted that, during the trial,. “some members of the jury gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”  None of this, the Court said, had been reported by the judge to defense lawyers representing Marcus Wellons on the trial for a 1989 murder.

The decision ordered the Eleventh Circuit Court to reconsider the case, applying the Court’s decision last year in Cone v. Bell (a decision that federal habeas review of a criminal conviction is not barred when a state court had declined to review the merits of a case on the ground that it had done so previously).

The majority opinion was unsigned.  It presumably was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sonia Sotomayor, and John Paul Stevens.  There were two dissenting opinions: by Justice Scalia, joined by Justice Thomas, and by Justice Samuel A. Alito, Jr., joined by Chief Justice John G. Roberts, Jr.  The case is Wellons v. Hall (09-5731).

Likewise, unsuprisingly, the Court GVR’d in Beard v. Abu-Jamal (08-652), vacating and remanding to the Third Circuit to consider in light of Spisak.  Abu-Jamal will be worth watching on remand, and not just for the street theatrics.

The Court in Presley v. Georgia that its prior holdings that the right to a public trial includes all phases of a trial, including jury selection.

weekly

The weekly email edition is now available:

Leading off this edition are four new, or previously unreported,  penalty phase “defense wins” from unlikely sources.  Florida leads the way.

In what some may call a blistering assault on the trial prosecutor, the Florida Supreme Court in Paul Beasley Johnson v. State,  grants relief.  “First, after Johnson was arrested and counsel was appointed, the State intentionally created a situation likely to induce Johnson to make incriminating statements to a jailhouse informant,.” Then, “although the prosecutor at Johnson’s first trial knew that Johnson’s statements were impermissibly elicited and that Smith’s testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony.” Next, “Smith’s testimony was admitted and later used–innocently but impermissibly–by a different prosecutor at Johnson’s 1988 trial, and because the State has failed to show that this error did not contribute  to the jury’s advisory sentences of death, we must vacate the death sentences.” The initial trial prosecutor’s “misconduct tainted the State’s case at every stage of the proceedings and irremediably compromised the integrity of the entire 1988 penalty phase proceeding. This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court.”

In the other decision from the Florida Supreme Court, Ronnie Ferrell v. State, the Court grants penalty phase relief on trial counsel’s performance. The Defense at trial waived  the presentation of mitigation. Counsel, however, did not make  Mr. Ferrell aware of any potential mitigation, as the trial court found, because they did not make an adequate inquiry in to its existence.  In postconviction, however, “Ferrell presented competent, substantial evidence at the evidentiary hearing to support a finding that trial counsel failed to adequately investigate potential mitigation evidence, which in turn rendered Ferrell‘s waiver not knowing, voluntary, and intelligent.” Additionally, counsel failed to object the State’s closing. “The State’s arguments that the jury would be violating their lawful duty if they did not vote for death, the statement that the age mitigator could only apply to someone younger than Ferrell, the statement that this case deserved the death penalty, the statements vouching for the credibility of various witnesses, and the mercy argument, all serve to strengthen the contention that our confidence in the outcome of the penalty phase is undermined.” These two errors by defense counsel, in conjunction with the “(1) the jury vote in this case was a close seven to five in favor of death; and (2) Ferrell was not the shooter)”requires a new penalty phase trial.

The Virginia Supreme Court in William Joseph Burns v. Commonwealth tackles the intersection of Atkins and competency. Virginia law requires a determination of the condemned’s competency, where there is a question of whether the condemned is incompetent, before an Atkins determination. “Because the remanded proceeding was criminal in nature, the circuit court erred in ruling that Burns’ competence was irrelevant and in refusing to adjudicate Burns’ competence.”

In the last of the four favorable decisions, the Arkansas Supreme Court ordered a new penalty phase proceeding in James Aaron Miller v. State.  Specifically, “reversible error occurred in the penalty phase of the trial, however, when two victim-impact witnesses improperly recommended to the jury that they impose the death penalty.”

Juries in Florida recommended 14 men die by lethal injection last year, 10 fewer than were recommended for death in 2008, when 24 defendants were sentenced to die. Australia refuses to extradite to Alabama  Gabe Watson as Alabama will not waive the death penalty and the Aussies will not extradite to the United States if the death penalty is a potential punishment.  The Kansas Senate Judiciary Committee will review a proposal to repeal Kansas’ death penalty law this week.

DPIC notes that

California recently released its revised lethal injection guidelines, following a June public hearing on the protocol.  The 25-page document indicates small revisions, outlining such items as to when the curtains remain open in the execution chamber to definitions of the term “chaplain” and “lethal injection room.”  Natasha Minsker, the Death Penalty Policy Director of the ACLU of Northern California called the revisions superficial.  Minsker added, “In the current state of the state, we are still wasting money tinkering with the death penalty system.”  Minsker suggested that by turning death sentences to life in prison without parole, the state could save $1 billion over five years.  Terry Thorton, a California Department of Corrections and Rehabilitation spokesperson, explained that the public review process of the protocol still has several more steps before actually being adopted. “If during the next comment period it requires more changes, we have to put it out again,” she said.  The public has until January 20, 2010 to comment on the changes, and the state has until May 1, 2010, to complete its public review process.

[Read the proposed revisions to the the protocol.  Read the full text of the proposed protocol. Comment online. Comment offline instructions. ]

Finally, last week’s edition may have contained a bad link to the archived edition, that should have been, http://capitaldefenseweekly.com/archives/1000104htm

As always, thanks to Steve Hall at StandDown.org whose work we’ve borrowed for the news section above. Thanks for reading. – k

weekly

[UPDATED]
My sincerest apologies for a delayed edition. [LINK FIXED]

Leading off this belated edition is the Supreme Court’s holding in Smith v. Frank Spisak, Jr. The Court in Spisak reverses a Sixth Circuit grant of penalty phase relief. The Court below granted relief on both a jury unanimity instruction (“Mills”) and a claim relating to penalty phase ineffective assistance of counsel. As to the Mills issue “t he instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously. Neither the instructions nor the forms said anything about how — or even whether — the jury should make individual determinations that each particular mitigating circumstance existed.” As to counsel’s performance, “we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result.”

In the lower federal courts, some say hell may have frozen over in light of the grant of relief from the Eleventh Circuit.  In James Ray Ward v. Hall a panel granted relief in light of “an improper bailiff-jury communication during the penalty phase violated Ward’s constitutional right to a fair trial and a reliable sentence.”  Less surprisingly, the Ninth Circuit in James Harrison v. Gillespie granted relief as the trial court erred in dismissing the first jury prematurely where it appeared the original jury returned a noncapital verdict.

Two important developments in are noted  out of California. The annual CACJ/CPDA Capital Case Defense Seminar will be held in Monterey, California, over President’s Day weekend, Friday, February 12, through Monday, February 15. California  corrections officials last Tuesday proposed new lethal injection procedures, a first step toward resuming executions in California after a four-year halt; you may comment on the new regulations here.

Elsewhere in the news, New Hampshire lawmakers have rejected recent attempts to expand the death penalty. In North Carolina a recent study found the state’s death penalty cost roughly $11 million a year, according to a study by a Duke University economist published this month.

As always thanks for reading. – k

Smith v. Spisak

The Court this morning decided Smith v. Spisak, No. 08-724 (Jan. 12, 2010) (available here).  The best thing that may be said about the opinion is that it could have been a whole bunch worse.

weekly

[Update: This week's edition will be going out on Tuesday night.  My apologies to all.  - karl]

——

I’m in trial.  I am unexpectedly going in to the second week of trial on what everyone thought was a quick one day trial scheduled for the end of the month.  Still not sure why the case got moved up to the first of the month.  I suspect the weekly will run.  After the jump is the scratch  version of the cases in that edition:

A stay in South Carolina

The chances for  South Carolina appear to have disappeared.

Days before an inmate on South Carolina’s death row was scheduled to die by electrocution, the state’s highest court on Tuesday granted the man a stay so his attorneys can pursue a federal appeal.The decision from the state Supreme Court postpones Quincy Allen’s execution, which had been scheduled Friday, until at least March 16. That delay gives his attorneys time to file a petition with the U.S. Supreme Court, appellate defense attorney Robert Dudek said Tuesday.

Allen, 30, was sentenced to death in 2005 after admitting to a 2002 crime spree in which he killed four people across North and South Carolina in the delusional hope of becoming a mafia hit man. Allen told police he would have killed more but he couldn’t legally buy a handgun because he had spent time in prison for stealing a vehicle.

this week’s edition now available

From this week’s edition:

Leading off this edition is the Pennsylvania Supreme Court’s holding in Commonwealth v. Edward Bracey.  Bracey requested a jury trial in postconviction on his “Atkins claim.”  The trial court, and later the state supreme court, denied that request.  The trial court, however, should have conducted an evidentiary hearing on the “Atkins claim” and not simply made a ruling based on the paper record. The Court, subsequently remands, following a interesting discussion on the intersection of Ring & Atkins, for a testimonial hearing  of the claim

In the news Adam Liptak comments in the New York Times on the ALI Capital Punishment Resolution.  NPR reports that “[p]rosecutors sought the death penalty less often in 2009, while judges and juries handed down fewer death sentences, making it the year with the fewest people sent to death row since the death penalty was reinstated in 1976. Just 106 people were sentenced to death, compared with three times that many in the 1990.” In Texas, the Houston Chronicle reports that “Harris County loses state lead in executions,” and has “fallen behind both Bexar and Tarrant counties in the number of death sentences it imposes, an analysis of eight years of records shows.” DPIC reports that “the University of Texas at Dallas recently published a study on whether executions deter homicides using state panel date and employing well-known econometric procedures for panel analysis. The authors found ‘no empirical support for the argument that the existence or application of the death penalty deters prospective offenders from committing homicide’.”

Kentucky has finalized its new execution protocols (501 KAR 16:310. Pre-execution medical actions / 501 KAR 16:320. Execution team qualifications / 501 KAR 16:330. Lethal injection protocol /   501 KAR 16:340. Electrocution protocol) ” public hearing on this administrative regulation [will] be held on January 29, 2010″ in Frankfort. “[Y]ou may submit written comments on the proposed administrative regulation. Written comments shall be accepted until February 1, 2010. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to .. . . Amy V. Barker, Assistant General Counsel, Department of Justice and Public Safety Cabinet, 125 Holmes Street, Frankfort, Kentucky 40601,  fax (502) 564-6686.”

My apologies on a large number of “next week comments” that can be found below.  The Pennsylvania Supreme Court unexpectedly released an extremely large amounts of direct appeal and postconviction appeal denials in recent days.  Likewise, unexpectedly I got “pushed out to trial” on a felony offense Monday morning.  As always, thanks for reading. – k

Whole bunch of Pennsylvania Supreme Court cases slowing things down

Normally the week between Christmas and New Years Day is a slow week and the weekly doesn’t run.  Someone should have told the Pennsylvania Supreme Court who released over a dozen opinions in recent days.  Still working through those opinions. The list of new cases after the jump & the weekly should go out Monday night.

weekly

This week’s edition is now available:

As one might expect this time of year, since the last edition there have been few notable opinions. Most notable is the Third Circuit’s opinion in Zachary Wilson v. Beard that upholds the district court’s grant of relief under Brady. In Wilson trial counsel for the Commonwealth failed to turn over large amounts of impeachment evidence. The suppressed materials later surfaced and dramatically undermined both the Commonwealth’s case and its chief witnesses against Wilson.

As happens semi-regularly, a few opinions were missed last edition because they had not yet been uploaded to Lexis & Westlaw.  Two cases from the Alabama Court of Criminal Appeals fall areespecially notable.  The CCA in David Dwayne Riley v. State ordered a new trial as “the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Riley’s prior convictions.” The other decision, Kim Vanpelt v. State, is not noted or the holdings in the case, but rather the creative lawyering of the Appellant’s counsel which may provide some readers with ideas for their own appellate litigation endeavors.  Unfortunately, Alabama , unlike every other appellate jurisdiction in the nation, does not provide links to its opinions; Lexisone.com has all the opinions at no costs.

In the news DPIC reports that “twenty-seven people were exonerated and released from prison this year, including some who had been on death row, according to a new report from The Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people.”  Likewise DPIC notes that “county estimates in Texas indicate that the death penalty system is much more expensive than sentencing inmates to life imprisonment.”

As always, thanks for reading. – k

RECAP is out

RECAP 252 for Nov. 2009 cases  is out. ‘nuf said.

Sneak peek at the next edition

As usually happens during Christmas week, new postings here and new opinions have been relatively light.  

• Zachary Wilson v. Beard, 2009 U.S. App. LEXIS 28244 (3rd Cir 12/23/2009) The prosecution failed to turn over large amounts of impeachment evidence at trial. As often happens those documents subsequently surfaced. Thedistrict court granted relief under Brady as the evidence critically undermined the Commonwealth’s chief witnesses.

• People v. Keith Taylor, 2009 Cal. LEXIS 13168 (Ca 12/24/2009) Relief denied on a grab bag of claims. Case is perhaps most noteworthy for its docket sheet and counsel’s ability, both for the People and the Defense, to get extensions granted by the Court for briefing. (still working through the opinion)

Note that there was a large number opinions that didn’t get posted to Lexis & Westlaw until after the last edition for the week of December 14, 2009.  Those opinions are still being worked through and will go out in this week’s edition.