Capital Defense Weekly

scheduling issues

I’m in trial this week with a locally high profile sentencning to boot. Some hope the email edition will be out midweek.

The week in losses

Losses galore this week  In Brian Thomas v. Horn the Third Circuit reverses the grant of penalty phase and remands for an evidentiary hearing on trial counsel’s pretrial workup for the penalty phase.  In Richard Bibble v.  Ryan the Ninth Circuit affirms the denial of penalty phase relief as there was no reasonable probability that the sentencing judge would  have reached a different result even if defense counsel had performed adequately.  In Davy Stephens v. Branker the Fourth Circuit denies relief, according to Findlaw, “where Petitioner’s ineffective assistance claim failed,  because he did not demonstrate that the conflict of interest  allegedly affecting his counsel adversely affected counsel’s trial  performance.”   Likewise, in Noel Doorbal v. Dept. of Corr. the Eleventh Circuit denies relief, most notably on procedural default grounds.

The only bright spot is Derrick Smith v. Sec’y, Dept. of Corr., No. 07-14173, from the Eleventh Circuit, where there was a remand ordered for the limited purpose of the district court to make a cumulative prejudice analysis of certain suppressed Brady evidence.

Finally there are four losses from Texas we’re still working thru.

DNA testing sought in Ohio

The Ohio Innocence Project is seeking to have the Ohio Supreme Court consider a DNA challenge asserting that Kevin Keith did not kill three people, including a 7-year-old girl, in 1994 that laded him on death row. More  here.

Oklahoma clemency denied

The Oklahoma Pardon and Parole Board voted unanimously Monday to deny clemency to Michael DeLozier for killing two campers in southern Oklahoma nearly 14 years ago. More here.

notable SCOTUS inaction

The US Supreme Court has adjourned for the summer.  The Court will take NO action in In Re Troy Anthony Davis, Mr. Davis’ petition for habeas corpus, until the Supreme Court reconvenes in September.  Additionally, the Court has still not acted on the warden’s cert. petition in the sentencing relief grant in Beard v. Mumia Abu-Jamal, No. 08-652.

weekly email edition

The weekly email edition is now available. From the intro:

The Court disagreed with the state and determined that a witness is not excused from testifying at trial simply because [the prosecution] did not interrogate the witness. A witness is also not excused simply because his statements come from neutral and scientific testing. The Court found that the statements on the certificates were the type of statements Crawford intended to cover, since an objective witness would have reasonably believed that the statements made on the certificates would be available for use at trial. Furthermore, the purpose of the evidence was to show the substance’s composition and weight for which he was on trial for. Thus, information stating that a substance is a drug is in fact testimonial in nature which requires a witness to testify at trial.

Last week we missed the Delaware Supreme Court’s holding in  Allison Lamont Norman v. State.  The Norman Court held that the trial court’s instruction improperly limited the Defendant’s mitigation evidence. Specifically, the State sought to use the aggravating circumstance that Norman caused the death of two persons, one in Delaware and one in Maryland.  The defense argued lack of criminal responsibility on the Maryland charge – and hence the ability to use Maryland murder as an aggravating circumstance. “[T]he absence of any instruction to guide the jury on the issue of Norman’s alleged lack of criminal responsibility under Maryland law—requires a new penalty hearing. Without guidance from the trial judge on Maryland law, the jury could not properly determine the existence of the alleged mitigating circumstance that Norman was ‘not criminally responsible’ for the crimes he committed in Maryland or weigh that circumstance in its determination of sentence.”

On the lethal injection front, Maryland has released its new draft procedures here.  Missouri executions are effectively on hold until the federal Reginald Clemons lethal injection litigation resolves. The Nebraska Supreme Court dismissed Raymond Mata’s lethal-injection appeal, unfortunately we’ve been unable to obtain the opinion.  California’s lethal injection process remains under enormous pressure, as this piece by Prof. Ty Alper effectively demonstrates.

In the news, a federal jury in San Francisco unanimously declined to impose a death sentence on Dennis Cyrus (who had been convicted of three murders). Two suspects, Robert Springsteen and Michael Scott , in the “North Austin yogurt shop murders” have been released ROR despite facing capital murder charges, as the the State’s case purportedly has fallen to pieces; Mr. Springsteen spent four years on death row before his conviction was reversed on appeal. DPIC notes that  a study finds “North Carolina conservatively spent at least $36 million dollars by seeking the death penalty instead of life in prison without parole over the past 7 years, just on defense costs.”

As always thanks for reading. – k

email edition

from this week’s edition:

Leading off this edition is the Supreme Court’s decision in District Attorney’s Office for Third Judicial Dist. v. Osborne.  The Court 5-4,  the Court holds that Alaska has an adequate process for granting DNA testing and hence relief can not be had in a free-standing § 1983 action to compel DNA testing. As one commentator has noted, “[t]he majority opinion in District Attorney’s Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing. What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access.”In the capital realm, two issuances of relief are noted.  In the first opinion, the Third Circuit affirmed, Donald Hardcastle v. Horn, the district court’s grant of habeas relief following a fairly egregious series of Batson violations at trial.  In the other opinion, the Texas Court of Criminal Appeals in Ex parte Timothy Cockrell grants relief on Atkins related claim.  Both decisions were unpublished.

In the news, the 2009 Gruber Justice Prize went to Bryan Stevenson for work representing death row inmates, indigent defendants and juvenile. Eighty-eight percent of the country’s top criminologists answered the question “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists,”  by responding no it doesn’t in Northwestern University School of Law’s Journal of Criminal Law and Criminology. A North Carolina trial court has ordered that David Gainey should receive a new trial based on ineffective assistance (failure to utilize necessary experts) and various instances of prosecutorial misconduct (failure to correct perjured testimony and suppression of favorable evidence).

From elsewhere around the states, in Kentucky, the Commonwealth’s failure to “reveal a deal” in a capital trial has lead to a plea deal where the Accused faces just 10 years with the possibility of immediate release. Across the Ohio River, the Ohio Supreme Court has promised it will schedule all future executions at least three weeks. In New Hampshire, Gov. Lynch is expected to sign a bill to study the death penalty  that establishes a 22-person commission to examine capital punishment’s effectiveness in deterring crime, to measure its “decency” and the fairness with which it’s applied, to examine its costs, and to explore alternatives.

As always thanks for reading. – k

Odd problem

Lexis and Westlaw are both NOT returning cases that press accounts  show have been decided. The weekly email edition will run sometime later in the day Monday. My apologies for any inconvenience.

2nd Cir denies rehearing en banc in Fell v. United States

via How Appealing:

Second Circuit denies rehearing en banc of ruling that affirmed a federal death sentence imposed by a jury in Vermont, a State that lacks a death penalty: Today’s order denying rehearing en banc was accompanied by a concurring opinion and three separate dissenting opinions.Circuit Judge and U.S. Supreme Court nominee Sonia Sotomayor — who seems to have suspended her activities as a Second Circuit judge pending the U.S. Senate’s consideration of her nomination — has not placed on the public record in connection with today’s order how she voted.

Lastly, the dissenting opinion of Circuit Judge Rosemary S. Pooler reveals that she seems not to have received the memo announcing that the Second Circuit has finally abandoned “in banc” in favor of “en banc.”

interesting little second petition discussion

The Fifth Circuit in Humberto Leal Garcia v Quarterman offers up an odd little decision on second habeas petitions vs. successive habeas petitions.

Leal is a foreign national on death row in Texas.  Post-Avena but pre-Medellin Leal exhausted a Vienna Convention right claim and filed a habeas petition in federal court. The district court denied relief finding it did not have jurisdiction.

The Leal Court  holds that  the district court had jurisdiction, but that it nonetheless in light of  Medellin Leal must lose.  Specificaly, the panel holds that  Avena and the subsequent Bush Administration attempts to have Texas enforce Avena  “was not previously available to him, making Leal’s petition non-successive.“

As it was non-successive, Leal’s second habeas petition did not require a COA, so it follows that the district court did have jurisdiction. The legal ground has shifted once again, however, and although the district court was incorrect in finding that it was without jurisdiction, Leal will get no further. In the unusual posture of this case, Leal once had a newly available claim, but no longer has it. As we have said, Leal’s petition attacked Texas’s refusal to comply with Avena and the Bush declaration, but that refusal can no longer serve as the basis for a petition for habeas corpus. The Supreme Court’s decision in Medellín v. Texas, has deprived the Avena decision and the Bush declaration of whatever legal force Leal might claim they ever had. Leal cannot now argue that Texas was required to review his case because Medellín v. Texas foreclosed this contention by holding that neither the ICJ nor President Bush had authority to order the State to conduct such a review.

And then there was this curious footnote:

Leal contends that Congress will pass legislation requiring state compliance with the Avena decision. Such a law, or a State’s refusal to comply with such a law, might provide a previously unavailable basis for a petition for habeas corpus, so our denial of Leal’s instant petition with prejudice will not be an impediment to his filing yet another such petition, as it would not be successive either.

We’ll keep you updated as Mr. Leals case goes forward.

deterrence?

via DPIC:

Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a new study published June 16 in Northwestern University School of Law’s Journal of Criminal Law and Criminology authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder.  The study, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” concludes: “Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth … [T]he consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” Read the study here and the press release from DPIC here.

(M. Radelet, T. Lacock, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” 99 Journal of Criminal Law and Criminology 489 (2009)).

missed another one

Thanks to the helpful reader who tipped us off to the Arizona Supreme Court’s holding in Ryan John Chronis v. Steinle, No. CV-08-0394-SA

Arizona Rule of Criminal Procedure 13.5(c) allows a defendant in a capital case to request a probable cause determination for alleged aggravating circumstances. Such determinations are to be made following the procedure in Arizona Rule of Criminal Procedure 5, under which the State bears the burden of proof. The trial court erred because it did not provide a probable cause hearing and it placed the burden of proof on Chronis.

of course….

Shortly after sending out a note that this week’s email edition wouldn’t run due to a lack of published cases I noted this at Prof. Doug’s blog.  Howard Bashman, always more reliable than the database services, noted thatFriday the Eleventh Circuit did in fact publish a death penalty opinion the database services just haven’t found it yet.

The Eleventh Circuit in Lawrence Joseph Jefferson v.   Hall, No. 07-12502 (11th Cir 6/12/2009), reversed the district court’s grant of penalty phase relief. Most notable on appeal was trial counsel’s failure to investigate and present mitigation evidence.  Specifically, Mr. Jefferson’s head had been run over as a child.  As the dissent notes:

The jury heard nothing else about the extent of his injuries and nothing about the devastating effect those injuries had on his life. The jury  was not told that he was hospitalized for weeks. That the trauma he suffered permanently misshaped his head, leaving him with a cranial indentation and an abnormally enlarged skull caused by the pressure of cerebrospinal fluid. That it resulted in frontal lobe and neurological damage, which had a profound and lifelong impact on his behavior. That it caused learning disabilities, emotional instability, diminished impulse control, and intermittent outbursts of rage. That it led to impaired judgment and paranoia. That the neurological damage resulting from the head injury deprived him of a normal ability to premeditate, deliberate, distinguish right from wrong, and act rationally.

not running

A “full edition” of the weekly isn’t running for a fairly unusual reason, Lexis & FindLaw are showing no reported capital cases from any of federal circuits or state appellate courts. The lack of published opinions  means we aren’t running   The only notable unpublished cases comes from the Texas Court of Criminal Appeals on Wednesday which granted penalty phase relief in Ex parte Timothy Cockrell.

Alabama kills

from local media:

Twice-convicted murderer Jack Trawick died by lethal injection tonight, as relatives of the two murder victims watched.

Trawick, 62, who also had claimed to have committed another Birmingham area murder and two in the Pacific northwest, was executed at 6:17 p.m. for abducting, stabbing and strangling Stephanie Gach, 21, of Irondale on the night of Oct. 9, 1992. He had been on Death Row at Holman Correctional Facility since 1994, and no legal efforts were made to stop his execution.

In his final statement, Trawick said: “I wish to apologize to the people whom I have hurt and I ask for their forgiveness. I don’t deserve it but I do ask for it.”

Stephanie Gach’s sister Heather watched Trawick die. So did Donna Middlebrooks, sister of Aileen Pruitt, 26, whom Trawick was convicted of stabbing to death a few months before Gach’s death. Trawick had been sentenced to life without parole for that killing.

Congrats to this year’s Gruber Justice Prize

Congrats to Bryan Stevenson, this year’s Gruber Justice Prize winner.

The Peter and Patricia Gruber Foundation announced it was awarding the prize to Stevenson and to the European Roma Rights Center. The two winners will split the award’s $500,000 cash prize.

Stevenson is founder of the Equal Justice Initiative in Montgomery and is mostly known for representing death row inmates, often during the final stages of their appeals.

Stevenson said the prize will go into the budget of the Equal Justice Initiative, which he said lost a source of funding when a major donor lost money in the investments of disgraced financier Bernard Madoff.

A release from the Gruber Foundation said Stevenson and his staff had been responsible “for reversals and reduced sentences in more than 75 death penalty cases.”

U.S. District Judge Bernice Donald of Tennessee said in the release that Stevenson won the award for “securing access to justice for those most in need of protection from discrimination.”

CCA grants sentencing relief

The Texas Court of Criminal Appeals on Wednesday granted penalty phase relief in Ex parte Timothy Cockrell:

The convicting court held a live evidentiary hearing and entered findings of fact and conclusions of law. Initially, the court found that applicant failed to establish by a preponderance of the evidence that he has significantly subaverage general intellectual functioning, but the court also found that applicant established that he has related limitations in adaptive functioning, the onset of which occurred prior to the age of 18. After this Court remanded the application for additional findings and conclusions to address a discrepancy between the trial court’s 1994 finding that applicant is mentally retarded and its 2008 finding that applicant is not mentally retarded, the trial court entered additional findings and conclusions stating that applicant is mentally retarded and therefore his execution is prohibited by the Eighth Amendment to the United States Constitution. The trial court further recommended that relief should be granted and applicant’s death sentence should be reformed to life imprisonment.

This Court has reviewed the record with respect to applicant’s claim. In cases in which the evidence could support both a finding that the habeas applicant has shown by a preponderance of the evidence that he is mentally retarded and a finding that he has failed to show he is mentally retarded to that level of confidence, we typically defer to the recommendation of the convicting court. Accordingly, we accept the convicting court’s conclusion that the evidence preponderates in favor of a finding that applicant is mentally retarded. Relief is granted, and the applicant’s sentence is reformed to a term of life imprisonment.

Sister Helen hits the small screen

From friends at CatholicTV:

On Friday , June 12^th , Sr. Helen Prejean , CSJ will appear on the CatholicTV talk show “This is the Day” as an in-studio guest. Sr. Helen is the author of the book “Dead Man Walking” , which inspired the film of the same name starring Sean Penn and Susan Sarandon. This film depicts Sr. Helen’s interactions with a death row inmate.

CatholicTV is a nationally-broadcasted television station headquartered near Boston . The broadcast streams live 24 hours a day at CatholicTV.com.

On “This is the Day” , Sr. Helen will discuss the movie and the book “Dead Man Walking”. Susan Sarandon won an Academy Award for Best Actress in this film. Sr. Helen will also discuss her new book “The Death of the Innocents”. This new book walks readers through the cases of 2 death row inmates who were “convicted of murder on flimsy evidence”. Sr. Helen describes in detail the moments before their deaths and how she witnessed their executions.

commenting on California’s proposed lethal injection protocol

The California Department of Corrections and Rehabilitation has proffered written new lethal injection regs and is seeking comment.  Access the proposed regulations here. California  law requires all  germane comments to be reviewed and kept on file.

Comments should reference “Proposed Amendments to Title 15, Article 7.5, Section 3349” and should be directed to:

Mr. Timothy Lockwood
Chief, Regulation and Policy Management Branch
California Department of Corrections and Rehabilitation
P.O. Box 942883
Sacramento, CA 94283-0001
Email: rpmb@cdcr.ca.gov
Fax: (916) 255 5601

[h/t  Boalt Hall's Lethal Injection Clearinghouse]

in other news….

News we mssed from around the media:

• Adam Liptak examines the background behind how Holly Wood ended up on Alabama’s death row and why the  Supreme Court now wants to review that too.

• IDB examines Sotomayor Vs. The Death Penalty

• The New Hampshire Senate has approved studying the state’s death penalty law.

• Canada has extradited Arthur Charles Carnes IV after receiving assurrances that California will not seek the death penalty.

• Democratic US Senator Russell Feingold on Thursday introduced legislation to put an immediate halt to federal executions and abolish the death penalty