This week’s edition is now available:

This last of August edition sees no appellate “defense wins.” Two federal district court success stories are, however, noted.  In the Eastern District of Michigan, a jury sentenced   Timothy O’Reilly, to life despite during the guilt it having convicted him of murdering an armored car guard during a robbery. In Lubbock, Texas, local press accounts note, “[a] federal judge this week overturned Michael Yowell’s 1999 death sentence, citing ineffective assistance of trial counsel and error by the trial court” as trial counsel “failed to present mitigation evidence during the punishment phase, and Darnell barred a mental health expert from interpreting medical records.”

In the news North Carolina “Judge Forrest Bridges ruled this [week] that Demeatrius Montgomery should not face the death penalty because of a detective’s misconduct during the investigation into the 2007 killings of two Charlotte police officers;” we’re looking for pleadings to share. Kentucky has set September 16 as the date for Gregory Wilson, who at trial notoriously ended up being represented by inexperienced attorneys who were recruited via a request  nailed to the front door of the courthouse, to die. The Virginia Department of Corrections’ plans to end face-to-face visits between death-row inmates and their families died an ignoble death in recent days after prison officials determined the policy wasn’t necessary. The Timothy Cole Advisory Panel on Wrongful Convictions, has issued its report, as well as a separate volume of research, on wrongful convictions and how Texas might correct them.

“A nationwide shortage of several anesthesia drugs has left several states scrambling to find enough doses to carry out lethal injections — potentially delaying executions well into next year.” “Even when a new supplier for the active ingredient is found, FDA approval will be needed.” “Hospira, based outside Chicago, the sole U.S. manufacturer of sodium thiopental, says manufacturing problems have hindered production of the drug.”

As most know, Troy Davis lost in the district court on original writ proceedings.  The district court has made available Judge Moore’s ruling: Part I and Part II.

DPIC notes “[t]he latest edition of the NAACP Legal Defense Fund’s “Death Row USA” shows that the number of people on the death row in the United States is continuing to slowly decline, falling to 3,261 as of January 1, 2010.  The size of death row at the start of 2009 was 3,297.  In 2000, there were 3,682 inmates on death row.  Nationally, the racial composition of those on death row is 44% white, 41% black, and 12% latino/latina. California (697) continues to have the largest death row population, followed by Florida (398) and Texas (337). Pennsylvania (222) and Alabama (201) complete the list of the five largest death rows in the nation. Death Row USA is published quarterly by the NAACP Legal Defense Fund. The report contains the latest death row population figures, execution statistics, and an overview of the most recent legal developments related to capital punishment.”

As always thanks for reading.  – karl

8.30.2010

The last full week of August reveals a large number of losses, and a lone federal trial court win

Defense

• Timothy O’Reilly, having been convicted of murdering an armored car guard during a robbery, was sentenced to life following a jury trial in the Eastern District of Michigan.

[...]

From around the web:

• Kentucky has set September 16 as the date for Gregory Wilson to die.  This is a serious date. I should note, on a personal level, Greg got seriously screwed at trial and ended up being being represented by attorneys who were recruited via a request by the trial court judge nailed to the front door of the courthouse.   You can guess the rest.

• In North Carolina “Judge Forrest Bridges ruled this [week] that Demeatrius Montgomery should not face the death penalty because of a detective’s misconduct during the investigation into the 2007 killings of two Charlotte police officers.

• via the inbox “We are struggling mightily to keep the doors open here at GRACE.  If you think its important for a capital jury to know as much as possible about the life they are being asked to take; if you would sleep better knowing your government isn’t killing its most damaged and vulnerable citizens without a fair fight being mounted on their behalf; if you want to support independent, client-centered, high-quality defense work, PLEASE sign up as an automatic monthly donor today! Don’t give till it hurts. Give what you can comfortably spare every month. $10, $25, $50, $100 Whatever amount you can sustain over time. Set it up for automatic withdrawal and forget about it. Please! www.gracelaw.org.

• In Thomas v. Bryant last week, the Eleventh Circuit affirmed a prisoner’s right case. Findlaw notes the DoC should not have used ” chemical agents on inmates with mental illness and other vulnerabilities” and “that defendant had decompensated at times that he was sprayed with chemical agents and that he suffered psychological injury from these sprayings.” From the opinion, the panel affirms “creating an additional requirement that corrections staff consult with mental health staff prior to spraying [a mentally handicapped inmate] with chemical agents adds but one layer to a long list of existing prerequisites to the use of non-spontaneous force at FSP.” Congrats to counsel

• Finally, as most know, Troy Davis lost in the district court. My thoughts at this point are neither pithy nor particularly nice when it comes to counsel.  Judge Moore’s ruling: Part I and Part II.

What could be described as the “where did the summer go” edition of the weekly is now online:

Leading off this edition is the Pennsylvania Supreme Court’s decision in Commonwealth v. Bradley Martin.  During the course of ordering a new penalty phase trial, the Martin Court holds trial counsel was ineffective for failing to investigate and present mental health mitigation evidence. Mr. Martin “did not want to discuss his mental health problems with counsel.” “Defendant’s parents provided counsel,” however, “with a list of institutions and psychologists who had provided treatment to Defendant .. . . a letter written by them to Judge Haas indicating that Defendant sustained  psychological damage from the abuse of [his uncle] and a Presentence Investigation Report indicating that Defendant has been treated for mental issues.”  Counsel did nothing with the materials.  The mere “fact that Defendant did not want to discuss his mental history with counsel did not render counsel’s failure to pursue such evidence reasonable.”

In David Scott Detrich v. Ryan the Ninth Circuit granted relief on trial counsel’s representation of  Mr. Detrich at the penalty phase of the state court proceedings. “Trial counsel did not use a expert mitigation investigator: and the investigator used was unqualified to do a life history. His investigation was minimal at best. No defense mental health expert was used nor defense evidence presented. Counsel failed to investigate and present the extensive mental health history. This ineffectiveness was prejudicial.” [via John Sands @ Ninth Circuit Blog] As the Arizona Capital Representation Project notes,  “Mr. Detrich was represented by the Project’s own Jen Bedier, as well as Greg Kuykendall . . .. Notably, Mr. Detrich’s sentencing counsel fulfilled his duty under the ABA Guidelines to facilitate the work of habeas counsel, which undoubtedly played an important role in this resolution.”

In the news, an Oklahoma federal District Court Judge Stephen P. Friot stayed the scheduled execution date of Jeffrey David Matthews. Earlier in the week counsel for Mr. Matthews discovered the state possessed no available stocks of sodium thiopental. Oklahoma DOC wanted to replace the sodium thiopental in its execution protocol with methohexital sodium. The district court granted the stay as methohexital sodium has never been used in an execution protocol and there is no proof it is a humane alternative to sodium thiopental.

Elsewhere, “A report released today by two former FBI agents, commissioned to review North Carolina’s State Bureau of Investigation laboratory in the wake of the Greg Taylor exoneration, finds that the convictions of three people executed in North Carolina were based in part on forensic reports and testimony that were, to be kind, misleading.  The report is available online here.The executed persons identified in the report are Desmond Carter (report confirmed the presence of blood on an item when the test was in fact negative), John Rose (report stated that there were chemical indications for the presence of blood and no further tests were done when in fact further tests were done and were negative), and Timothy Keel (report stated that blood test was inconclusive when in fact subsequent tests were negative).” [via Death Watch North Carolina]  DPIC also has more.

In addition to the indefatigable work of Steve Hall, this edition relies heavily on the work of several legal bloggers as, such as AFPD John Sands and Prof.  Ben Trachtenberg, for expert commentary to provide detail that likely would have simply missed.  As always thanks for reading.  – karl

8.22.2010

Since the last edition the following cases have been noted:

For Life

This week’s edition covers cases decided since the start of August:

After a summer’s drought of relevant favorable case law, the dry snap appears to be broken. Leading off this edition is the Arizona Supreme Court’s decision in State v. Gary Wayne Snelling. The sentencing jury found only one aggravator, “that Snelling murdered Curtis in an especially cruel manner” as the victim was strangled to death. “Absent any evidence of defensive injuries, a struggle, or pleas for help, the record shows only that [the victim] was suddenly confronted by an assailant who promptly strangled her to death.” “Strangulations are not per se physically cruel absent specific evidence that the victim consciously suffered physical pain.”  “On independent review [ ] we find the record insufficient to support the (F)(6) aggravator because the evidence does not prove beyond a reasonable doubt that Curtis consciously suffered mental anguish or physical pain sufficient to render the murder especially cruel.”  As a result, on independent review Mr. Snelling’s death sentence must be vacated and a lesser sentence imposed.

The South Carolina Supreme Court in Angle Joe Perrie Vasquez  v. State likewise grants relief.  At trial Mr. Vasquez ‘s “Muslim faith was a key theme . . .  which coincided with the second anniversary of September 11th.”  “[T]he solicitor’s characterization of Petitioner, a Muslim, as a “domestic terrorist” and correlation between Petitioner’s acts and the events of September 11th was so egregious, Petitioner has proven he was prejudiced by counsel’s” failure to object to such characterizations.  The Court below, therefore,  “erred in failing to find Petitioner was denied effective assistance of counsel. Given the solicitor’s improper remarks occurred primarily during the penalty phase of Petitioner’s trial, we find Petitioner is only entitled to a new sentencing hearing and not a reversal of his convictions.”

In a decision especially for federal habeas corpus types, the Eighth Circuit in Timothy Howard v. Norris affirms the trial court’s issuance of an abeyance to permit exhaustion.  Specifically,  “[t]he district court stayed [the capital habeas] proceeding to give Howard a chance to return to state court to exhaust certain claims.” On interlocutory appeal the State “contends the district court abused its discretion in granting the stay because the unexhausted claims are procedurally defaulted, that is,” under state law no forum or procedure existed to hear the unexhausted claims. The State’s motion, however,  is premature as “the disputed issue – whether Howard’s unexhausted claims are procedurally defaulted – can be addressed in an appeal from a final order.”  “We therefore grant Howard’s motion to dismiss for lack of jurisdiction.”

Finally, well over eight years after the Supreme Court decided Atkins v. Virginia was decided two decision concerning “mental retardation” are noted, Alvin Bernal Jackson v. Norris (Eighth Circuit remands to the district court for an Atkins hearing), and Virgilio Maldonado v. Thaler, (Fifth Circuit grants COA on Atkins claim).

In the news, the Texas Supreme Court refused Monday to overturn a judicial conduct panel’s reprimand of the Texas Court of Criminal Appeals’ Judge Sharon Keller for her handling of an execution-day appeal. As Steve Hall notes at StandDown Texas, during this economic downturn and budget crisis, the “cost of California Death Row roils editorial boards.” The New York Times looks at Texan Michael Green who was “set free by a state judge two weeks ago after DNA tests on the rape victim’s clothing proved that he could not have been responsible for the crime.” AP reports that DNA test may cast doubt on Claude Jones’s  guilt and may suggest he :may have been wrongly executed for the 1989 slaying of a liquor store owner in this aptly named Texas town.”   The deadline to file a claim under the North Carolina racial Justice Act was last week, at least 119 on death row have by now filed claims alleging racial bias in the implementation of that state’s death penalty scheme. DPIC recently looked at  Daniel Dougherty of Pennsylvania “[a]nother death row inmate [who] is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science.” DPIC also notes that “James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at thie Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors”

Almost the all cases in this edition can be found for free by going to Lexsone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

8.16.2010

The first look at the next edition’s case law:

In favorem vitae

This week’s edition is up and available.

Leading off this week is the Alabama Court of Criminal Appeal’s decision in Mark Dwyatt Brown v. State.  The issue in Brown is the difference, under state law, between capital murder and felony-murder. The “trial court did not adequately inform the jury that Brown could not be convicted of capital murder unless it determined that he had the specific, particularized intent to kill.” The trial court’s instruction permitted, rather, “the jury to find Brown guilty of the capital offenses, even if he did not have the particularized intent to kill, as long as one of his codefendants had the particularized intent to kill.” This error was compounded when the prosecution, in closing arguments. the “State incorrectly argued that Brown could be found guilty of capital murder, even if he did not have the requisite intent to kill, as long as one of his codefendants had the intent to kill the deceased or another person.”

Only because the Fifth Circuit so rarely grants relief, in Warren Darrell Rivers v. Thaler, an unpublished opinion, a panel of that court has affirmed the grant of penalty phase relief in light  erroneous jury instructions under Penry I.

In the news, DPIC reports that “[f]ive men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system” in light of the passage of North Carolina’s Racial Justice Act.  A recent Adam Liptak Sidebar column looked at mail room mix up that resulted in a delayed state postconviction filing that may cost Cory R. Maples, a death row inmate in Alabama, his life.  AP reports that California regulators have approved  a new lethal injection methods. Finally, in Ohio, Kevin Keith is scheduled to be executed next month but officials there, are beginning to grow concerned over what the Governor calls “circumstances that I find troubling.”

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

8.9.2010

This week’s selection of cases offers a few exceptionally large cases, a couple of wins, and many losses.

• Warren Darrell Rivers v. Thaler, No 09-70031 (5th Cir 8/5/2010)(unpublsihed) State appealed the district court’s grant of relief on jury instructions under Penry I.  Mr. Rivers appealed the denial of a COA on his Batson claims. District court affirmed in its entirety.

• Mark Dwyatt Brown v. State,  2010 Ala. Crim. App. LEXIS 65  (Ala. Crim. App 7/30/2010) “Based on the trial court’s instructions, the jury could have found Brown guilty of capital murder if he intended to commit another felony, i.e., first-degree robbery, first-degree burglary, second-degree burglary, or arson, but did not intend to kill the deceased or another person. Therefore, the instructions did not clearly distinguish the intent element for the offense of capital murder from the intent element for the offense of felony-murder. Brown argues that the sole issue before the jury was whether he was guilty of capital murder because he intended to kill the victims or whether he was guilty of felony-murder because he did not intend to kill the victims. He also contends   that his defense was that he only intended to rob them and that he did not have any reason to kill them. Because the trial court’s instructions effectively abolished any distinction between capital murder and felony-murder, we cannot find that the error in giving those instructions regarding intent were harmless.”

[...]

From this week’s edition:

The Utah Supreme Court in State v. Douglas Anderson Lovell leads off this edition.  The issue in Lovell is whether the condemned should have been permitted to withdraw his plea of guilty which, subsequently, resulted in a death sentence. In granting the right to withdraw the guilty plea the Court holds that at the time of the guilty plea Mr. Lovell was not informed of the “presumption of innocence” and “speedy public trial before an impartial jury.”  “When a trial court fails to inform a defendant of his rights, the defendant cannot knowingly and voluntarily enter a guilty plea because he lacks the information required to fully understand this decision.”In other news, the Washington Supreme Court lifted the stay of execution for Cal Brown, after determining that the state’s method of lethal injection was not volative of  the state or federal constitution. In California, the state’s ” lethal injection method is back in the hands of state officials, though it’s not known when the death penalty moratorium could be lifted,” the new policy, purportedly, has already resulted in litigation. Then Texas Judge Keller, after being “warned” about her conduct, has filed a Petition for Writ of Mandamus and motion to stay certain time limits.  In Kenya, the Court of Appeals unanimously, DPIC reports, “held that mandatory death sentences are unconstitutional, violating the right to life and inflicting inhuman punishment since the law does not provide individuals the opportunity to present mitigating evidence.” DPIC also notes that “[i]n a preliminary report, the Texas Forensic Science Commission recently found that fire investigators used flawed science in the case that led to the death sentence and execution of Cameron Todd Willingham.

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

8.2.2010

After the jump, the case law for the next edition.  Surprisingly a Red State win: [...]

From the intro to this week’s roundup:

As often happens in midsummer, this week’s edition is light on new opinions and no defense “wins” are noted.

In the news, DPIC reports that the “execution date for Texas death row inmate Humberto Leal was postponed after the presiding judge received a letter from a high-ranking U.S. State Department official” “requesting an indefinite postponement while Congress is working on legislation that could affect Leal’s case.”  A recent Field Poll in California that life without parole in California now edges out death as the leading sentencing choice among the California electorate, although a broad majority still support, “in the abstract,” the death penalty. On the heels of two states switching to a single-drug execution method defense attorneys in Kentucky are wanting  a judge to consider if the state’s three-drug protocol is unconstitutionally cruel. In North Carolina new data suggests that race may still be playing a factor in the Tarheel state’s capital punishment process even after passage of the Racial Justice Act there.

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

The first look at cases either published since the last edition or not covered last week includes no wins:

Abdul Awkal v. Mitchell, 2010 U.S. App. LEXIS 15148; 2010 FED App. 0214P (6th Cir. 7/23/2010) “In his petition, Awkal argues that (1) his counsel was ineffective at the guilt phase of his trial for calling a psychiatrist who directly contradicted the defense’s theory of not guilty by reason of insanity, (2) his counsel was ineffective at the penalty phase for failing to introduce records of his previous involuntary hospitalization and for failing to present testimony of competent mental health experts, and (3) the prosecutor’s statement in closing argument about Awkal’s being able to “walk out the door” if found not guilty by reason of insanity was prosecutorial misconduct.” Relief denied.

Tiequon Aundray Cox v. Ayers,  2010 U.S. App. LEXIS 15214 (9th Cir 7/22/2010) (unpublished) Relief denied as: [A] “counsel did not provide ineffective assistance of counsel during the trial’s guilt phase;”  [B] “trial court did not violate Petitioner’s right to be present when it excluded Petitioner from hearings on whether to shackle Petitioner and excluded him from a side-bar conference about counsel’s decision not to present a closing argument during the guilt phase;” [C] no prejudiced resulted from “the following instances of jury misconduct: (1) some jurors knew that co-defendant Horace Burns was convicted and received a life sentence; (2) even though it was not admitted at trial, some jurors knew about and discussed Burns’s letter to Petitioner, in which Burns asked Petitioner to take the fall for everyone else and offered to make sure that no witnesses would testify against him; and (3) the spectators’ outbursts and comments were perceived by jurors;”  [D]Petitioner was not prejudiced by improper spectator conduct in the presence of the jury. Prejudice will be limited if a “curative instruction was given or some other step taken to ameliorate the prejudice.”

State v. Brian Joseph Dorsey, 2010 Mo. LEXIS 191 (Mo 7/16/2010)  Relief deneid on claims that: (A) the trial court erred “because it instructed the jury to consider evidence as to both counts in deciding the punishment for each individual count and, therefore, ‘allowed the jury to sentence [him] to death on each count based on evidence applicable to the other count’;” (B) instructions regarding “the “weighing step,” specifically, “the instructions improperly failed to require the state to prove beyond a reasonable doubt that the evidence in aggravation outweighs the mitigating evidence”  and “not instructing the jury that the state had to prove evidence of unadjudicated bad acts beyond a reasonable doubt;” (C) “the statutory aggravating circumstances submitted to the jury were duplicative;” (D)  insufficient evidence to support that statutory aggravating circumstance that he raped;  (E) failure “to declare a mistrial due to several statements by the prosecutor during voir dire and closing argument;” (F)  admission “of four color photographs of the victims at the crime scene” and (G) proportionality (note Missouri uses the universe of cases where a jury imposed a “sentences of life imprisonment instead of the death penalty.”)

Ex parte Derrick Leon Jackson, No. WR-60,124-02 (Tex. Crim. App. 7/19/2010) (unpublished) Summary denial of postconviction  petition and motion to stay execution on claims relating to mental retardation and Brady.

noncapital
Simpson v. Jackson,   2010 U.S. App. LEXIS 14251; 2010 FED App. 0198P (6th Cir. 7/13/2010) “Inmate was granted writ of habeas corpus as to his convictions that required as essential element specific intent to cause death of another because State’s only evidence of inmate’s intent and purpose was based on an adverse credibility finding by jury that, more likely than not, resulted from his statements admitted in violation of Miranda.”

This week’s email edition is now available. From the intro

This week finds few new and/or germane reported decisions.  Of those scant decisions, none of the noted opinions are  defense “wins.”

In the news, Governor Phil Bredesen in Tennessee has commuted the death sentence of Gaile Owens to life imprisonment. The Governor noted that Ms. Owens consistently admitted her guilt and that she had accepted a conditional plea agreement for life imprisonment prior to her original trial as the reasons for granting the commutation. The commutation document is here. The Tennessee Governor’s Office has issued the news release, “Bredesen Commutes Death Sentence.”

Also, Robert K. Elder’s Last Words of the Executed, with a foreword by the late Studs Terkel, has just been published by the University of Chicago Press.  “Judge Sharon Keller, [Texas'] highest-ranking criminal judge, received a public warning from the State Commission on Judicial Conduct for “willful or persistent misconduct” that “casts public discredit on the judiciary’.” In Illinois, recent polling suggests that a majority of Illinois voters support alternatives to the death penalty.

For those who aren’t subscribed yet, NLADA offers “Gideon Alerts” concerning indigent defense that are simply, well, awesome. Anyone can join for free by sending an e-mail to d.carroll [-at-] nlada.org with their name and organization. A recent email noted that “Washington public defender working under a flat fee contract agrees to a $2.9 million dollar settlement to a former client for admittedly providing ineffective assistance of counsel: here.  Unionized public defenders in Minnesota filing a work grievance over high caseloads: here.  Maryland governor signing a bill to advance public defender independence: here.  New York’s Highest Court Says Strickland Can’t Fix Systemic Right to Counsel Flaws: here. How many cases are too many and why can’t Nevada Supreme Court get to the question? Debate between centers on what is the definition of a “case”: here.  Alabama’s “perfect storm” for ensuring ineffective assistance of counsel: here.  South Carolina Governor signs sweeping reform legislation to stem the over-incarceration of non-violent offenders: here.

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

Still working on the next edition, but as for now, all new noted decisions are in favor of the executioner.  Those cases noted, so far, after the jump: [...]

via Steve Hall

Tennessee Governor Commutes Death Sentence of Gaile Owens

The commutation document is here.

The Tennessee Governor’s Office has issued the news release, “Bredesen Commutes Death Sentence.”

Governor Phil Bredesen today commuted the death sentence of Gaile Owens to life imprisonment. The Governor announced the commutation at the Capitol today, citing the extraordinary sentence compared to similar Tennessee cases, that Ms. Owens consistently admitted her guilt and that she had accepted a conditional plea agreement for life imprisonment prior to her original trial as the reasons for granting the commutation.

On January 14, 1986, Owens was convicted of accessory before the fact to first-degree murder in the murder-for-hire plot that resulted in the beating death of her husband, Ron Owens, in 1985

This week’s edition is available and online.  From the intro:

Leading off this edition is the Third Circuit’s decision in Sharris Rollins v. Horn.  In granting a new penalty trial the panel notes that l trial counsel  “did not begin to prepare mitigation evidence until 4:30 p.m. on the day before the penalty proceeding commenced, did not attempt to speak with Rollins’ sister who had been present throughout the trial, and did not otherwise seek “[i]nformation concerning [Rollins'] background,  education, employment record, mental and emotional stability, family relationships, and the like’.” Further, “there is a reasonable probability that the result of the sentencing proceeding would have been different if the jury had heard the evidence that was presented at the [state postconviction hearing].” “Therefore, the state courts’ denial of Rollins’ penalty phase ineffectiveness claim was an unreasonable application of established federal law, as determined by the Supreme Court.”

Three cases last week deserved more attention than what was afforded due to time constraints.

In Khahn Dinh Phan v. State the Georgia Supreme Court examines the collapse of indigent capital representation in some parts of Georgia.  The Court in Phan remanded for a determination of whether there “has been an actual breakdown in the entire public defender system prohibiting” “such that no publicly-funded and constitutionally-effective attorney from any source was available to represent Phan.” Assuming, there has been such a denial of the right to counsel the Phan court holds remand is appropriate so the trial court can adjudicate whether the right to a speedy trial was/is violated under  Barker v. Wingo. The dissent would hold that no remand is needed as “the evidence demonstrates a systemic breakdown of the public defender system and the superior court has already made a finding in this regard.”  Adam Liptak in his Sidebar column  Defendants Squeezed by Georgia’s Tight Budget examines how the prosecutor and trial court  in  Phan conspired to appoint two overworked public defenders to effectively deprive the Accused of his right to counsel.

In United States v. Whitten (Ronell Wilson) the Second Circuit granted penalty phase relief on direct appeal. At trial the Government argued that Mr. Wilson  who killed two police men, was not remorseful.  The Government argued he had an opportunity to plead guilty but instead went to trial and that his allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” The panel holds that the Government’s errors in effectively commenting on Mr. Wilson’s right to a jury trial and to not take the stand was harmful error.

In Dolan Darling, a/k/a Sean Smith v. State, the Florida Supreme Court rejected a lethal injection challenge but in doing so cleared the way for many future lethal injection challenges. The AP summed up the decision  well when it noted that ["a] sharply divided Florida Supreme Court has agreed to let state lawyers for death row inmates challenge lethal injection in federal courts. The 4-3 ruling Thursday reversed a prior high court ruling that prohibited what are known as capital collateral regional counsels from filing federal civil rights suits to contest the constitutionality of Florida’s execution method. In the same opinion, though, the justices unanimously rejected Dolan Darling’s constitutional attack on lethal injection and upheld his death sentence. “

In the news, briefs from both parties in the Troy Davis case were filed in the U.S. District Court in Savannah, Georgia, on July 7, 2010: Defendant’s brief and Attorney General’s brief.  Andrea Lyon’s new book, Angel of Death Row, is out and looks not just at life in a public defender’s homicide unit, but also the challenges facing  young women lawyers in an era that was dominated by men and the old boys club.  The Arizona Republic reports two of three drugs used to carry out executions aren’t readily available.  In Texas, the Texas Tribune examines the Texas Office of Capital Writs that ”Texas lawmakers created the office in 2009 after a series of investigative reports and studies of the criminal justice system revealed serious problems with the quality of legal representation for indigent defendants on death row.”

Almost the all cases in this edition can be found by going to Lexisone.com and typing in the appropriate lexis cite or going to Google Scholar and typing in the name of the condemned.  A special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our “researchers” and “reporters” who have asked not to be named. As always hanks for reading .  – k

For those who aren’t subscribed yet, NLADA offers “Gideon Alerts” concerning indigent defense that are simply, well, awesome. Anyone can join for free by sending an e-mail to d.carroll [-at-] nlada.org with their name and organization.
From a recent email:

Washington public defender working under a flat fee contract agrees to a $2.9 million dollar settlement to a former client for admittedly providing ineffective assistance of counsel: here.  Unionized public defenders in Minnesota filing a work grievance over high caseloads: here.  Maryland governor signing a bill to advance public defender independence: here.  New York’s Highest Court Says Strickland Can’t Fix Systemic Right to Counsel Flaws: here. How many cases are too many and why can’t Nevada Supreme Court get to the question? Debate between centers on what is the definition of a “case”: here.  Alabama’s “perfect storm” for ensuring ineffective assistance of counsel: here.  South Carolina Governor signs sweeping reform legislation to stem the over-incarceration of non-violent offenders: here. [...]

This week’s edition is now available. From the introduction:

Two SCOTUS cases lead off this very belated edition. In Sears v. Upton the Court closed out Justice Stevens with a capital grant of relief.  Five justices voted to grant the petition of certiorari,  vacate the decision below, and remand, a/k/a a “GVR”.  The per curiam opinion holds trial counsel rendered ineffective assistance of counsel and that the  improperly weighed whether Sears was prejudiced. Justice Scalia, joined by Justice Thomas, dissented. The Chief Justice and Justice Alito believe cert. was improvidently granted.

In Magwood v. Patterson the Court holds “that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a “second or successive” petition), even if it raises grounds that could have (but were not) made against the original sentence.” [SCOTUSBlog]  In his majority opinion Justice Thomas (yes that Justice Thomas) notes that when a petitioner is resentenced and appeals anew after that resentencing they are, for purposes of habeas review, appealing a new sentence and judgment.

Often when a landmark case moves from being a recent holding to a memory the interest in the individuals involved fades in to the oblivion. Ted Calvin Cole, now known as Jalil Abdul-Kabil, has plead to a life sentence in Texas. He is perhaps best known for his role in the murder of Raymond Richardson and Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007), that resulted in the SCOTUS giving a fairly harsh spanking to the Fifth Circuit over its failure to grant relief on Penry error.

The Troy Davis evidentiary hearing has begun and a ruling is expected soon. Local media reports that “four hours before convicted killer Jonathan Green was to have been executed in Huntsville, the Texas Court of Criminal Appeals issued a stay in order to consider arguments that Green is delusional and too mentally ill to be put to death.”

My apologies for a late and truncated edition, the case law below was much greater in shear volume than anticipated when I budgeted my schedule.  -k