Capital Defense Weekly

On holiday

My apologies, I’m on holiday until the morning of May 16th. My 120+ felony files can wait until I’m back. I’m in the back, backcountry and have been advised no web & no phone, including wireless, save in town.

link dump

I’m out the door for a few days.  Here are some links I’ve been thinking about:

• via DPIC Exonerations from Death Row Linked to Inadequate Defense

• Exonerated Having Trouble Getting Exonerated By Radley Balko on Innocence

• Cuba ceases fire, for now from AI’s  Death Penalty Blog. “Cuba’s death penalty is usually carried out by firing squad but Cuba is ceasing the fire. Past Monday, new Cuban President Raul Castro announced that all death sentences had been commuted to prison terms of 30 years to life, with the exception of 3 people charged with terrorism.”

• “ostensibly color blind” - the drug wars are not by open resource

• One Fewer Inmate on Indiana’s Death Row, One More Family That Can Begin Healing by InCASE

• TCASK notes, “Curtis McCarty Speaks in Knoxville“

• Standdown looks at an “Evangelical Voice on Baze“

• Jamie Spencer outs a criminal pretense attorney

• CLTV! we’re still not on it, Donzell, however, is.

• Anne Reed has this post from last week, Finding Good Blogs, which has only served to reinforce why I think every male blawger has a crush on her,

• Politics on the Supreme Court–What the Numbers Say by Brian Tamanaha.  His thesis, 5 of the top 10 most conservative justices inthe last 70 years are currently on the Court

• finally, the funniest story title in some time“MILF blames govt for crisis in peace talks”

As Executions Resume, So Do Questions of Fairness

As Executions Resume, So Do Questions of Fairness - not me, the nation’s paper of record

Georgia x-date update

[rolling update]

8:52: Final update: William Earl Lynd has been executed for the murder of Ginger Moore. Mr. Lynd’s execution ends the longest period between executions since 1982.  This is the 1100th execution in the modern era and the first following the Supreme Court’s ruling in Baze v. Rees.

The execution began at 7:34 PM and Mr. Lynd was pronounced dead at 7:51 PM.  No reason was given by Ga DoC for the delay in execution or for the 17 minutes between commencement and time of death. “The condemned declined to make a statement or offer a prayer” [ IHT, ]

Courtesy of SCOTUSBLOG, the stay application (07A880), found here,  The petition (07-10760) can be downloaded here.  The state’s opposition to delaying the execution and its request for denial of the petition is here. A reply by Lynd’s counsel is here. Th e text of the denial of cert & staycan be found here.

Prior updates after the jump.: 

Four noncapital of note

Four great noncapital cases in recent days that I won’t spoil with long descriptions

U.S. v. Chapman:, No. No. 06-10316 (9th Cir) A Ninth Circuit panel upholds dismissal of indictment for gross (and I mean gross) prosecutorial misconduct:

The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form . . . . [h/t Eugene]

“The prosecutor’s fallacy” occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant. Petitioner was convicted of sexual assault on a child. There was conflicting circumstantial evidence, and real questions of eyewitness identification. The state’s expert gave testimony that stated that petitioner’s guilt was 99.99967%, and downplayed the matching of petitioner’s four brothers. The state admitted error in prior proceedings but tried to backtrack at argument (not smart). The 9th affirmed the district court’s granting of the petition (Wardlaw joined by Hawkins). The 9th focused on the Jackson standard of a rational jury versus a reasonable jury, and that an analysis was lacking of the elements and evidence in the state supreme’s court’s decision. O’Scannlain dissented, arguing that the state supreme court’s application of Jackson and federal law was reasonable, and that the evidence had to be viewed in the light most favorable to the state, and here there was circumstantial evidence, and some weight should be given to DNA. Congratulations to Paul Turner and Franny Forsman of the Nevada FPD Office (Las Vegas).

State v. Mylee Cottle, No. A-111-06 (NJ): A great opinion, albeit under the state constitution, on conflict of interest / IAC where trial counsel tried a murder case while on PTI (NJ’s version of a diverionsary program) for stalking.

The Estate of Kathryn E. Spencer, et al. v. Daniel J. Gavin, Esq., et al., No A-0424-06T5 (NJ App.Div) Actual knowledge of another lawyer’s wrongdoing imposes upon a lawyer a duty to act.

Georgia set to execute

The Georgia Supreme Court & the Georgia Board of Pardons and Paroles have rebuffed attempts to place on hold Tuesday’s scheduled execution of William Earl Lynd. Efforts are now in other Courts, Press accounts hint Tom Dunn, and his crew, representing Mr. Lynd are moving in the SCOTUS. IF all efforts fail, execution is set for 7 P.M. Eastern (2300 GMT).

Georgia on my mind

The Georgia Board of Pardons and Parole “has denied condemned killer William Earl Lynd’s clemency bid, paving the way for him to likely become the nation’s first inmate put to death since the U.S. Supreme Court held that lethal injection is constitutional.”  Mr. Lynd’s execution is anticipated to occur at slightly past 7 P.M. eastern

Grant of habeas relief in California

Update - The California Supreme Court on Monday granted habeas relief to Adam Miranda. In re Adam Miranda, No. S058528 & S060781.  From press accounts:

Today in a rare unanimous decision the California Supreme Court found that San Quentin inmate Adam Miranda was wrongly sentenced to death because district attorneys, including senior District Attorney Curt Hazell and now sitting judges Lance Ito and Frederic Horn, withheld confessions to the killing by the prosecutor’s star witness. Miranda’s lead counsel George R. Hedges of Quinn Emanuel Urquhart Oliver & Hedges and Kerry Bensinger of Bensinger Ritt Tai & Thvedt were elated with the result.. . .

“It took us years to force the DA’s office to turn over the Miranda files, and there in the back of one of the files was an envelope containing a confession to the murder by the star witness the prosecutors used to condemn our client to death,” added Mr. Bensinger. “It shows just how corrupt the system is. Without an all-out legal assault our client would have been put to death years ago for a crime he didn’t commit.”. . .

Mr. Miranda was convicted in 1982 for the murder of Gary Black. In order to obtain a death sentence, prosecutors charged him with a second murder involving the stabbing death of Robert Hosey. The star witness on that charge against Mr. Miranda was Joe Saucedo. At the time that Mr. Saucedo was testifying against Mr. Miranda, the prosecutors had in their possession a letter in which Mr. Saucedo confessed in detail that he had committed the crime. It was this letter that then District Attorney Lance Ito placed in Mr. Miranda’s file without ever disclosing its contents to Mr. Miranda’s counsel. Ultimately Mr. Miranda’s counsel found four more witnesses who testified that Mr. Saucedo had confessed to them that he was the murderer. The District Attorneys’ office had knowledge of each of these confessions while seeking the death penalty against Mr. Miranda. The California Supreme Court found in the face of this evidence the imposition of the death penalty was improper.

Mr. Hedges took on the Miranda case in 1988. At that time Mr. Miranda had lost his appeal and two additional efforts under habeas corpus to have his death sentence commuted by the California Supreme Court. Mr. Bensinger joined with Mr. Hedges in 1994 and recommenced efforts to obtain Mr. Miranda’s files. At that time Mr. Miranda’s defense team had no idea that the Saucedo confessions were out there. It was only after a two-year fight in federal court that the team was able to look at the DA’s files.

“It took a federal judge’s order to force the DA to turn over files they originally claimed didn’t even exist,” said Mr. Bensinger. He added, “And at the time there was even an effort by the DA’s office to have all files in death penalty cases destroyed.”

House to be released

Paul House will be released.  The Sixth Circuit in a brief unpublished memorandum opinion on Monday affirmed the district courtès order of relief; “detailed opinion by this court … would only further delay resolution of
this matter.”

x-date set for Jose Medellin

Jose Medellin, whose death sentence has caused international outrage and already one SCOTUS decision, has a new x-date, August 5th.

State District Judge Caprice Cosper set the Aug. 5 lethal injection for 33-year-old Jose Medellin for his participation in the gang rape and strangulation deaths of 2 teenage girls 15 years ago in Houston when they stumbled upon a gang initiation rite.. . .

Medellin, handcuffed and wearing a bright lime green jail jumpsuit, stood impassively between his lawyers as Cosper read the order. Lawyers for Medellin and the Mexican government urged her to delay setting the execution date.

“This is a case whose effects go far beyond this courtroom,” Medellin’s attorney, Sandra Babcock, said.. . .

Medellin is among 14 native Mexicans on death row in Texas. Mexico has no death penalty and sued the United States in the world court in 2003. Mexico and other opponents of capital punishment have sought to use the world court to fight for foreigners facing execution in the U.S.

Monday’s order makes Medellin at least the sixth inmate in Texas scheduled to die in the coming months.

Medellin was convicted for the June 1993 murders of  Elizabeth Pena, 16, and Jennifer Ertman, 14.

New execution date

Earl Wesley Berry, who the State of Mississippi sought to have executed on Monday, has a new execution date  set for May 21.  He is to be put to death for the 1987 murder of Mary Bounds.

Kansas Death Penalty Focus has decided to call it a day for now.

email edition

The email edition is now available. From the introduction:

Another edition, another exoneration. With only minor cases noted during this edition’s coverage period (April 21 -28) the important news is on the exoneration front. DPIC notes

Staying on the exoneration front (albeit noncapital), the Innocence Project of Texas finally got James Lee Woodard free, he had spent 27 years and four months behind bars for a rape and murder he did not commit.

In the other news of the week, the post-Baze uncertainty continues as Mississippi’s Attorney General has asked that Earl Wesley Berry be executed May 5, 2008 with no decision yet from the Mississippi Supreme Court. The Atlanta Journal-Constitution reports that Georgia’s lethal injection procedure withstood challenge in federal district court. The Washington Post notes that Virginia has asked the Supreme Court,to permit the Commonwealth to resume executions. Lastly, and on a non-Baze note, “the state of New Mexico agreed to drop its pursuit of the death penalty against two defendants because the state legislature did not provide the money necessary for adequate representation of the defendants, who were accused of killing a prison guard.”

At the end of this edition is six month look ahead of CLE opportunities in all regions of the country. If you know of a CLE that is missing please let us know.

Finally, next week’s edition will not run as I will be on vacation. As always thanks for reading. - k

[Just two notes about things referenced in this edition. I will be on vacation, and most likely off the net, from the 8th through the 15th. Second, we've posted links to all the CLEs mentioned in the email edition in the column on the right.]

Earl Wesley Berry Monday’s x-date?

Mississippi’s Attorney General has asked that Earl Wesley Berry be executed May 5, 2008 or THIS Monday.  No date had been set by Sunday night and the date seems unlikely, but not completely impossible.  More here.

Grant of relief from the Fifth Circuit

While prepping this week’s email edition their does, in fact appear to have been one grant of relief noted. Walter Koon v. Cain, 2008 U.S. App. LEXIS 9478 (5th Cir 5/1/2008) (unpublished) .  In Koon guilt phase relief is granted as trial counsel failed to adequately investigate various fact witnesses that were key to the state’s case.  More in the email edition.

A note on execution dates

Please note that it appears the number of new execution dates is, due to the fluidity of the post-Baze world, being under reported both here and elsewhere. I asked a few days ago about why so few new execution dates. The answer it appears is due in part to the under reporting by the sources we normally go to. We’ve update the list on the right to reflect the best information we have.

Parris Island

One of my favorite prosecutors asks, correctly, “where do we get such men?” as Marine Sgt. Merlin German. The answer is Parris Island. I personally I don’t think Hollywood Jarheads come this tough.  And while me & Tom McKenna who asked this tough question may disagree on the war, we do not disagree on the amazing guts of our warriors.

One drug

SCOTUSBlog has an amazing post simply asking Lethal injection: a one-drug alternative? I won’t spoil it.

Levon “Bo” Jones Released

NC exonerates another man. From our friends at Death Watch:

For the second time in two months, an innocent man is being released from North Carolina’s death row. Levon “Bo” Jones spent 13 years on death row after being convicted of the 1987 murder of Leamon Grady. Federal judge Terrence Boyle vacated Jones’ conviction and death sentence in 2006 after finding that Jones’ trial attorneys “utterly failed” to investigate the crime. (Read the Order here.) Duplin County District Attorney Dewey Hudson, who tried Jones in 1993, vowed to retry the case. This week Hudson was forced to admit that he has no evidence against Jones, and is expected to ask the court to release Jones today.

From his appointment until a month before trial, Jones’ lead counsel - Graham Phillips - did virtually no work on the case. According to the District Court’s opinion, Phillips “interviewed no witnesses, filed no motions, sought no evaluation of Jones, and conducted no mitigation investigation.” Phillips did not even request the second counsel to which Jones was constitutionally entitled. The second lawyer, Charles Henderson, was appointed only upon the request of the District Attorney, less than a month before trial.

Three quick stories

Three quick stories:

• The Atlanta Journal-Constitution reports, “Federal judge says Ga. lethal injection method OK.” A federal judge in Atlanta on Wednesday rejected arguments that Georgia’s method of execution by lethal injection is unconstitutional. [h/t StandDown.org]

• St. Louis University School of Law’s David Sloss, “Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri,” is (finally) picking up some major press coverage. [h/t DPIC]

• Finally, at the risk of embarrassing people who have been very gracious to the blog over the years (even when we have been so callous as to not return the favor), DPIC’s website has been the subject of some horrible attacks in recent weeks. No nonprofit, no matter how large or well run (and DPIC is the second, not the first), sets aside the large money for the type of security upgrades and web site repairs they have had to do in recent weeks. Feel free to visit their donation page to stay you stand with DPIC and stand against the voices in recent week who have tried to silence them. DPIC is a non-profit, tax exempt organization. They depend on the generosity of individuals and foundations for our support.