No new content is anticipated to be added at any time in the foreseeable future.

In response to several emails asking to take over Weekly, I’m not sure yet of the final direction I’ll head with this, however, I suspect the ethics aspect of ending CDW will force me to release everything into the public domain & not permit CDW to go forward in any way. The final determination, however, has not yet been made.

Finally,  for those looking to replicate what we’ve done here – I use the following keywords at LexisOne.com  ”capital habeas” or “capital postconviction” or “death penalty” or “capital murder” or “sentenced to death” or “penalty phase” or “special questions” or “sentence of death” or “death sentence” or “capital punishment” or “witherspoon” or atkins,” on Lexisone.com. Please note the terms dramatically “overproduce” results. FindLaw.com & various listservs are also used to cross-check results.  I’m more than happy to help those who are looking to “go forward” with the concept developed here, however, I simply can’t lend my, or this website’s name to any other effort for ethical reasons, which Mark Bennett and  Eric Turkewitz explain better than I ever could.

Leading off this edition is John Wayne Conner v. Hall from the Eleventh Circuit. As Tim Cone notes, here “[t]he district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.”

In two separate cases, Roy Phillip Ballard v. State and Kevin Jerome Scott v. State, the Florida Supreme Court found imposition of the death penalty to be disproportionate. In Ballard the one aggravator was held to be outweighed by  nonstatutory mitigation and three statutory mititgators: “(1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant.”  Scott “was not a case with substantial mitigation” but “the aggravation is dissimilar to other robbery-murder cases where the imposition of the death penalty was upheld, this case is unlike those where the most aggravating circumstances exist.”

Other decisions of note include, the Ninth Circuit in Richard D. Hurles v. Ryan granted relief on a judicial bias claim on the “highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles’s death sentence.” In Roth  v. Dep’t of Justice the D.C. Circuit granted access to certain FBI reports that could show “whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence.” In State v. Gary Haugen the Oregon Supreme Court has ordered a competency evaluation prior to execution. Finally, in  David Eugene Matthews  v. Parker the Sixth Circuit has granted relief on issues relating to extreme emotional distress and  prosecutorial “comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor.”

DPIC notes”[b]etween January and June 2011, there have been 25 executions in nine states. Of the 25 executions, only eight were carried out using the drug sodium thiopental, while the rest involved a new drug, pentobarbital. Earlier in 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced that it will no longer manufacture the drug, forcing states to search for alternative sources or alternative drugs for their lethal injection protocols. Many states, inlcuding Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina, have used pentobarbital instead of sodium thiopental in their executions in 2011. Ohio is the only one of those seven states to use pentobarbital as the sole drug in its lethal-injection process. Additionally, at least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration. In the first half of 2011, there have been 18 death cases in which a clemency was granted, commuting the defendant’s sentence to life without parole. Fifteen of such pardons were in Illinois, where Governor Pat Quinn signed a bill that repealed the state’s death penalty statute.” DPIC has also released Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976.

A federal judge on Friday delayed the execution of Kenneth Smith who was scheduled to be executed  mid-month in Ohio.  Lundbeck has put substantial new controls on pentobarbital to prevent its use in executions. The latest edition of the NAACP Legal Defense Fund’s “Death Row USA” is out, and again shows the slow withering of  the death penalty in the United States. John Edward Green, whose challenge to the last year to Texas’ death penalty, resulted in international attention, has been permitted to plead guilty to a term of years. Finally, and in contravention of American treaty obligations, Texas executed Humberto Leal.

Paul Raskind, in his usual brilliance, has a wrap of the current Supreme Court term.

Finally, this is the last edition, at least for now, of the newsletter.  CDW’s been going since 1997 and it is  time to move on.  My practice has simply moved away from capital litigation and with each edition it has become harder and harder to justify taking times away from my current clients, my kid, and other interests I have. The website will stay up for a few more months, with an occasional post or two until it is eventually migrated elsewhere.   Be sure, as we go dark, to check out the work of Steve Hall, DPIC, Jeff Gamso, Tim Cone at Defense Newsletter, Jon Sands (and crew) at the Ninth Circuit blog, CapDefNet, and Doug Berman.  Thanks to all those who have contributed behind the scenes, introduced themselves over the years ,and especially those who, while I was in private practice, sent a referral or two my way in light of the newsletter.   Its been fun, and, as always, thanks for reading. – karl

Relief granted

• Roy Phillip Ballard v. State, 2011 Fla. LEXIS 1521 (FL 6/30/2011) “[I]mposition of the death penalty in this case to be disproportionate. This Court has previously stated that CCP is one of the weightiest aggravating circumstances.  However, this Court has also held that the death penalty is reserved only for those circumstances where the most aggravating and the least mitigating circumstances exist. This is not such a case. In this case, the trial court found CCP to be the only aggravating circumstance. The trial court also found three statutory mitigating factors— (1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant. Additionally, the trial court considered numerous nonstatutory mitigating factors. Accordingly, we find the death sentence to be disproportionate when comparing this case to other death penalty decisions.” (internal citations omitted)

• Kevin Jerome Scott v. State,   2011 Fla. LEXIS 1524 (FL 6/30/2011)  “After considering these circumstances with the mitigating evidence presented and similar other capital cases, we concluded that the crime committed by Johnson was “not among those for which the death penalty is specifically reserved.” “Like the defendant in Johnson, Scott was convicted under both premeditated and felony-murder theories and his penalty-phase proceeding produced comparable mitigation. As in Johnson, the evidence here certainly supports a finding of two aggravating circumstances; however, those aggravators are simply not compelling when the circumstances surrounding Scott’scontemporaneous felony are adequately considered: the prior violent felony was predicated upon an aggravated battery occurring at the same time as the murder, it involved a relatively limited use of violence, and was not charged until the eve of trial. Moreover, the facts of the murder are less compelling than in Johnson, where the record reflected that Johnson shot the victim multiple times and then, without provocation, again shot the victim in the jaw. Here, Scott shot Binjaku only once, and, by Scott’s account, the shot was in response to Binjaku rushing at him with a chair.” (internal citations omitted)

• State v. Gary Hauge, No. S05951 (Ore 6/29/2011) “[C]ommanding the trial court either:  (1)(a) to vacate findings, rulings and orders relating to the competency of defendant Haugen and to vacate the death warrant authorizing the execution of defendant Haugen; and (b) to take or agree to take action, by the close of business on July 7, 2011, to order an assessment of defendant’s mental capacity and to conduct an evidentiary hearing to address the competency of defendant Haugen before issuing a death warrant; or, (2) in the alternative, to show cause for not doing so. [Headnotes]

• David Eugene Matthew  v. Parker, 2011 U.S. App. LEXIS 13091 (6th Cir 6/27/2011) (dissent)* The trial  courtmisinterpreted Kentucky’s law on an extreme emotional distress and permitted prosecutors to claim during closing arguments that Matthews and his attorneys concocted the issue in an attempt to avoid conviction.”The prosecutor’s comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor, were both improper and flagrant.”

Relief denied

• Humberto Leal Garcia v. Thaler, 2011 U.S. App. LEXIS 13535 (5th Cir 6/30/2011) ““Leal contends that under the Fifth and Fourteenth Amendments he has a due process right to remain alive until the proposed Avena legislation becomes law. We disagree.”

• Humberto Leal Garcia v. Fallon, 2011 U.S. App. LEXIS 13619 (5th Cir 7/1/2011)  DNA testing sought. ‘The district court did not abuse its discretion by concluding that Leal’s §1983 claim was frivolous because the claim has no arguable basis in fact or law, and the claim is based on a theory completely without merit.”

• In re Tyrone Noling, 2011 U.S. App. LEXIS 13264 (6th Cir 6/29/2011)  Permission to file a successive habeas petition denied. “Noling requests that we permit him to file a successive petition based on newly discovered evidence that police did not originally turn over to his defense counsel, and that suggests other potential suspects that might have murdered the Hartigs.”

• Joseph E. Corcoran v. Wison,  2011 U.S. App. LEXIS 12704 (7th Cir 6/23/2011) “[W]e reinstate and incorporate by reference our earlier opinion in Corcoran v. Buss, 551 F.3d 703, to the extent that it (1) reversed the district court’s judgment granting habeas relief on the basis of the claimed  Sixth Amendment violation; and (2) affirmed the district court’s conclusion that the Indiana courts did not mishandle the issue of Corcoran’s competence to waive post-conviction remedies. As we have noted, Judge Williams joined the panel in rejecting Corcoran’s Sixth Amendment claim but filed a dissent on the competency issue which we also reinstate and incorporate herein by reference. We Remand the case to the district court to permit it to address Corcoran’s remaining grounds for habeas relief.”

• Richard Lynn Bible v. Schriro, 2011 U.S. App. LEXIS 13178 (9th Cir 6/28/2011) Motion to file successor denied.  ”Whatever the DNA testing of the hair evidence might reveal, it could not refute the overwhelming inculpatory evidence presented at Bible’s trial.”

• Daniel Greene v. Upton, 2011 U.S. App. LEXIS 13180 (11th Cir 6/28/2011)  Relief denied. “First, Greene contends that the prosecution exercised peremptory challenges against six black members of the jury venire on the basis of race in violation of the Fourteenth Amendment, see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and that the determination of the Supreme Court of Georgia with respect to this claim was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. Second, Greene contends that several arguments by the prosecutor amounted to misconduct that deprived him of a fair trial, and that the decision of the Supreme Court of Georgia on that issue was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. After a careful review of the record, we conclude that Greene’s contentions lack merit. We conclude further that three remaining claims raised by Greene also fail.”

• Randall Scott Jones v. Sec. Dep’t of Corrections,, 2011 U.S. App. LEXIS 13179 (11th Cir 6/28/2011)  “The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”

• Ex  parte Wakliee Brown, 2011 Ala. LEXIS 103 (Ala 6/30/2011) Relief denied on admission of child witness testimony and prosecutorial injection of personal belief into closings.  Specifically, “Brown contends that, by calling T.S. “sweetheart” and allowing her to testify after she indicated that she would tell the truth, the trial court signaled to the jury that it favored T.S. and conveyed to the jury that it believed T.S. was a credible witness.”  “We agree with the Court of Criminal Appeals that a fairer assessment of the trial court’s words and actions is that the trial court was trying to ease T.S.’s nerves.“ Further,  ”[w]e decline Brown’s invitation to require a trial court to conduct an examination to determine the reliability of a child witness’s testimony. The concerns raised by Brown regarding a child witness’s testimony are adequately addressed by our Rules of Evidence.”

• State v. James Lynn Styers, 2011 Ariz. LEXIS 33 (Az 7/1/2011) On reweighing following the Ninth Circuit’s habeas opinion relief again denied.  “Because we attribute little mitigating weight to Styers’ PTSD, we find no reason to alter the conclusion reached in Styers’ direct appeal. We therefore hold that Styers’ PTSD, in combination with all other mitigating evidence presented at Styers’ mitigation hearing and previously considered by this Court, is not sufficient to warrant leniency in light of the aggravating factors proven in  this case.”

• People v. Charles Edward Moore, 2011 Cal. LEXIS 6170 (Cal 6/23/2011) Relief denied on numerous issues including: “A. Denial of Defendant’s Requests for the Appointment of Cocounsel;” “B. Denial of Motion to Reinstate In Propria Persona Privileges at the Jail;” “C. Denial of Motion to Suppress Evidence;” “D. Assertedly Inadequate Notice of the Murder Charges and Lack of Trial Court Jurisdiction ;” “E. Asserted Trial Court Error in Failing to Limit Jury Instruction Concerning Defendant’s Possession of Stolen Items;” “F. Asserted Trial Court Error in Instructing the Jury Not to Consider the Prosecution of Other Person;” “H. Assertedly Erroneous Admission of Penalty Phase Aggravating Evidence;” “I. Assertedly Erroneous Penalty Phase Instruction Concerning Jury Unanimity ;” “J. Challenges to CALJIC No. 8.88;” “K. Accomplices’ Case Dispositions;” “L. Asserted Violation of Due Process in Prosecution’s Assertedly Inconsistent Positions at Defendant’s and Lee Harris’s Trials ;” “M. Absence of Jury Instruction Regarding Requirement of Corroboration of Terry Avery’s Penalty Phase Testimony;“ “N. Absence of Jury Instruction Concerning Presumption of Life Imprisonment;“ “O. Challenges to the Constitutionality of California’s Death Penalty Statute ;“ and “P. Asserted Cumulative Error. ““Trial court did not err in denying defendant’s requests for appointment of cocounsel; defendant, who represented himself during pretrial stages of proceedings but eventually chose to have an attorney represent him for part of guilt phase, failed to make any compelling showing that appointment of cocounsel instead of advisory counsel was justified.” [via Lexisone]  Shaun Martin’s analysis may be the best take away.

• David Joseph Pittman v. State, 2011 Fla. LEXIS 1519 (FL 6/30/2011) Relief denied on appeal as to: ” (1) whether the postconviction court erred in denying his claim under Brady v. Maryland with respect to inmate Carl Hughes; (2) whether the postconviction court erred in denying his Brady claim with respect to inmate David Pounds; (3) whether the postconviction court erred in denying his Brady claim with respect to the handwritten notes of other witness interviews; (4) whether the postconviction court erred in denying his Brady claim with respect to Dennis Waters’ identification of the wrecker; (5) whether the postconviction court erred in denying his Brady claim with respect to the letter concerning William Smith; (6) whether the postconviction court erred in denying relief based on the cumulative effect of all the withheld and newly discovered evidence; (7) whether the postconviction court erred in denying his Giglio v. United States claim; (8) whether the postconviction court erred in denying his ineffective assistance of counsel claim; and (9) whether the postconviction court erred in denying his newly discovered evidence claim[;] (10) whether the postconviction court erred in denying his Brady claim; (11) whether the postconviction court erred in denying his ineffective assistance of counsel claim; and (12) whether the postconviction court erred in denying his newly discovered evidence claim. Relief denied on claims raised in “habeas petition: (1) whether appellate counsel was ineffective in failing to challenge the sufficiency of the evidence; (2) whether the Florida Supreme Court erred in affirming the exclusion of certain evidence; (3) whether the Florida Supreme Court erred in affirming Pittman’sconvictions and sentences where the State withheld pertinent facts; (4) whether appellate counsel was ineffective in failing to argue that Pittman’s death sentences were based on an improper aggravator; (5) whether appellate counsel was ineffective in failing to argue that the prosecutor used improper argument in the penalty phase; and (6) whether appellate counsel was ineffective in failing to argue that the penalty phase jury was misled by improper comments and instructions.” (internal citations omitted)

• Darryl Brian Berwick v. State, 2011 Fla. LEXIS 1518 (FL 6/30/2011)  Relief denied on a litany of claims including: (1) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the penalty phase; (2) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the guilt phase; (3) the postconviction court erred in denying Barwick’s Brady and Giglio and prosecutorial misconduct claims; (4) the postconviction court erred in denying Barwick’s cumulative error claim; (5) the postconviction court erred in denying  Barwick’s ineffective assistance of counsel claim with respect to the jury qualification procedure in Bay County; (6) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the “avoid arrest” aggravator; (7) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to omissions in the record on direct appeal; (8) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to comments by the prosecutor and court that diminished the jury’s sense of responsibility; (9) the postconviction court erredin denying Barwick’s ineffective assistance of counsel claim with respect to improper argument by the State; (10) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the “during commission of a felony” aggravator; and (11) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to an alleged burden-shifting instruction.” Relief denied on claims raised in habeas petition including: “(1) whether the execution of Barwick, a brain-damaged, mentally retarded person, would be unconstitutional; (2) whether the State violated Barwick’s rights when it used crimes he had committed as a juvenile as an aggravator; (3) whether appellate counsel was ineffective in failing to argue against the “avoid arrest” aggravator; (4) whether appellate counsel was ineffective in failing to raise the issue of omissions in the record; (5) whether appellate counsel was ineffective in failing to argue that the sentencing jury was misled by improper comments and instructions that diluted its sense of responsibility; (6) whether appellate counsel was ineffective in failing to argue that the prosecutor presented impermissible considerations to the jury; (7) whether the “during commission of a felony” aggravator operates as an impermissible automatic aggravator; (8) whether appellate counsel was ineffective in failing to argue that the penalty phase instructions improperly shifted the burden; and (9) whether the Florida Supreme Court erred in failing to remand for resentencing after striking an aggravator.”

• Lamar Cornelius Harris v. State,  2011 Md. LEXIS 377 (Md 6/24/2011)  “[C]ourt proceedings have stalled in the preliminary stages due to disagreement about the propriety of the trial judge’s pretrial rulings ordering discovery of certain records and testimony pertaining to Harris’s court-ordered competency evaluation and subsequent in-patient treatment at Clifton T. Perkins Hospital Center. Petitioner ultimately seeks appellate review on the merits regarding the trial judge’s denial of Harris’s motion for a protective order resulting from service of a subpoena on one of Harris’s treating physicians as well as service of a subpoena duces tecum on Perkins Hospital. Because we conclude that the discovery orders are not appealable at this time, we do not address the merits of Harris’s challenges to those orders.”

• State v. Warren Waddy,  2011 Ohio 3154 (Ohio 10th App 6/28/2011) ”Trial court did not err in finding that defendant failed to meet his burden of establishing mental retardation because there was evidence, testimony by a psychologist, to support the finding that defendant failed to show either significant limitations in his intellectual functioning or related significant limitations in adaptive functioning.” [via LexisOne]

Missed previously:

• William Meece v. Commonwealth, 2006-SC-881 (June 16, 2011) (published)” In a 177 page opinion that found 20 errors harmless, the Supreme Court affirms the defendant’s convictions and death sentences.  The Court holds, among other things, that KRE 410’s exclusion of statements made during the course of plea discussions applies only to statements before the signing of a written plea agreement, and then only if they fit within a standard the Court sets out in its opinion.  The Court professes not to have overruled Roberts v. Commonwealth, 896 S.W.2d 4 (Ky. 1995), which had included statements made as part of the “quid pro quo” of the agreement under KRE 410’s exclusion, in order to avoid violating the defendant’s right to due process of law. [via the Advocate]

Noncapital of note:

• Ex Parte: James A. Brown, Jr., Attorney, 2011 S.C. LEXIS 207 (S.C. 6/21/2011) “Where court-appointed attorney, aggrieved by $ 3,500 fee cap of S.C. Code Ann. § 17-3-50, told the trial court that he refused to do any more work on the case, given the egregious level of his inexcusable conduct and persistent disregard of court’s orders, the court did not abuse its discretion in refusing to award fees in excess of statutory cap.” [via LexisOne]

• Tyner v. State, 2011 Ga. LEXIS 499 (Ga 6/20/2011) “Defendant’s conviction for malice murder, which was based upon his guilty plea, was reversed because the record did not show that defendant was advised of his right against self-incrimination as required by Boykin. The State did not fulfill its duty to ensure that defendant’s guilty plea was constitutionally valid.”

• Gary A. Gauger v. Hendle,  2011 Ill. App. LEXIS 688 (Ill. App 2nd 6/28/2011) “ Order vacating plaintiff’s murder conviction was properly excluded in his malicious prosecution case because the order addressed whether law enforcement officials had probable cause to arrest him and was distinct from the issue of whether defendants had probable cause to charge plaintiff, which was at issue in the malicious prosecution case.” [via LexisOne]

• Trevor James Booth v. State, 2011 Ida. LEXIS 100 (Ida 6/29/2011) “ an attorney engages in deficient performance by rendering advice regarding potential penalties during the plea process that is inconsistent with the plain and unambiguous provisions of a sentencing statute.”

Still sorting through:

• People v. Gabriel Castaneda,  2011 Cal. LEXIS 6539 (Cal 6/30/2011)

• People v. Lester Wayne Virgil, 2011 Cal. LEXIS 6538 (Cal 6/30/2011)

*Notes prior involvement in the case. As with all such cases, the squib does not reflect whether the author believes a Court reached “the right decision” or not, but rather to let the reader know to use caution in light of  potential bias.

We’ve been gone a few weeks and there is more than a little catching up to do. Leading off is Terrell M. Johnson v. Secretary from the Eleventh Circuit.    The Defense Newsletter’s Tim Cone notes that  the court granted “federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.”

In Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), a federal district court judge has declared that Florida’s method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death. Doug Berman @ OSU Law has uploaded the opinion.

In the news, the Arkansas Supreme Court has stayed all executions in that state pending the outcome of a state constitutional claim involving lethal injection and improper delegation of the authority under the separation of powers doctrine. In Rhode Island, Governor Chafee has done the virtually unthinkable,  refused to hand over a state detainee to federal prosecutors to face capital trial, choosing instead to try him in state court. In California, the LA Times notes that the the state is spending roughly $184 million a year on the death penalty above the cost of noncaloric murder and that “taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then.” Iowa Law Professor David Baldus has died. DPIC has released Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 covering a fair number of the “hot issues” in capital punishment. Texas has killed Milton Mathis despite unusually strong evidence that he was intellectually disabled. Nevada’s Governor has vetoed a cost study bill of the death penalty in that state. In Ohio, Governor Kasich has commuted to life in prison the death sentence of Shawn Hawkins. DPIC reports that the Atlantic Center for Capital Representation recently petitioned the Pennsylvania Supreme Court to ensure that lawyers appointed in death penalty cases in Philadelphia have adequate resources to defend their clients.

From the Supreme Court, in Balentine v. Texas the High Court granted a stay pending disposition of a cert petition. The Court has granted cert in Martel v. Clair on the issue of how much say should a condemned inmate have in the selection of federal habeas counsel.  At the very end of this edition is the first of two “wrap-ups” of the SCOTUS term, this time looking at cert grants for next term with links to the SCOTUSBlog’s links to petition, briefs, and related materials. Term recap of all criminal cases will happen next week in the email edition and sooner on the blog.

This edition was unduly delayed when I got called out, very unexpectedly, to trial.  The “two-three day” “back-up” trial ended up lasting much, much longer. As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. – k

SCOTUS

• Balentine v. Texas, No. 10-11036 (10A1226) (6/15/2011) Stay granted pending disposition of a cert petition.

• Lee Andrew Taylor v. Texas, No. 10-11056 (10A1236) (6/16/2011) 5-4 denial of cert

In Favor of the Accused or Condemned

• Terrell M. Johnson v. Secretary,  2011 U.S. App. LEXIS 11996 (11th Cir 6/14/2011)  “ Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.” [via Tim Cone]

• Ex parte Carl Brad Ward; (In re: Carl Brad Ward v. State of Alabama), 2011 Ala. LEXIS 87 (Ala 6/3/2011) On postconviction review, a Rule 32 petition,  “Ward has sufficiently pleaded a claim of newly discovered material facts and that he is entitled to an opportunity to prove his allegations.”

• Charles & Jennifer Bowen v. Hon. Carnes, 2011 Tex. Crim. App. LEXIS 827 ( Tex. Crim. App. 6/15/2011) “Trial court erred in interfering with charged individuals’ Sixth Amendment right to retain counsel of their choosing. The disqualification of counsel based on his prior representation of a State witness was an abuse of discretion as the witness was not a current client, the potential for a conflict was not serious, and mandamus relief was ordered.” [via LexisOne]

In Favor of the Prosecution

• Robert Lark v. Secretary, 2011 U.S. App. LEXIS 12107 (3rd Cir 6/16/2011) “ Inasmuch as we have determined that the District Court improperly applied Batson, we will vacate its order, remand the case to the District Court, and direct that the Court perform the third step of the Batson analysis. Both parties make arguments regarding the McMahon tape’s relevance and the Baldus study’s reliability. However, inasmuch as the District Court explicitly declined to consider these issues  we do not address them on this appeal, though they may become significant on the remand. The District Court based its decision on the pattern of the prosecutor’s strikes and Carpenter’s inability to articulate a justification for three of those strikes. Any other evidence or arguments which relate to intentional discrimination, such as juror comparisons, properly are made at the third Batson step and we will not consider them at this time.”

• Nicholas T. Sutton v. Bell,  2011 U.S. App. LEXIS 11553  (6th Cir. 6/8/2011)  Relief denied on claims: “(1) that his counsel failed to object to two aspects of courtroom security during the guilt phase; (2) that his counsel failed to object to three instances of prosecutorial misconduct during the guilt and penalty phases; (3) that his counsel failed to object to the penalty-phase jury instructions on the  ”heinous, atrocious, or cruel” aggravating circumstance; and (4) that his counsel failed to adequately investigate and present mitigating evidence of the amount of violence in Tennessee prisons and of his troubled background.”

• Anthony C. Apanovitch v. Bobby, 2011 U.S. App. LEXIS 11554 (6th Cir. 6/8/2011) State draws good panel and, since this is the Sixth Circuit, the rest of the story writes itself. “Although it was clear that at the time of petitioner’s capital murder trial, the State wrongly withheld favorable Brady evidence and that the State’s conduct was egregiously improper, the withheld evidence did not undermine the court’s confidence in the outcome of the trial. The evidence would have been of little or no value to petitioner” [via LexisOne]

• Joseph E. Corcoran v. Wison,  2011 U.S. App. LEXIS 12704 (7th Cir 6/23/2011) “[W]e reinstate and incorporate by reference our earlier opinion in Corcoran v. Buss, 551 F.3d 703, to the extent that it (1) reversed the district court’s judgment granting habeas relief on the basis of the claimed  Sixth Amendment violation; and (2) affirmed the district court’s conclusion that the Indiana courts did not mishandle the issue of Corcoran’s competence to waive post-conviction remedies. As we have noted, Judge Williams joined the panel in rejecting Corcoran’s Sixth Amendment claim but filed a dissent on the competency issue which we also reinstate and incorporate herein by reference. We Remand the case to the district court to permit it to address Corcoran’s remaining grounds for habeas relief.”

• Andrew Richard Lukehart v. State, 2011 Fla. LEXIS 1425 (FL  6/23/2011) Relief denied on claims“that the postconviction court erred in denying his rule 3.850 motion regarding whether: (1) counsel was ineffective for failing to challenge the prior violent felony aggravator during the penalty phase, (2) counsel was ineffective for failing to file a motion to cease Lukehart‘s medication and a motion for continuance, (3) counsel was ineffective for failing to present Dr. Harry Krop during the guilt phase, (4) Lukehart‘s amended postconviction motion should relate back to the filing of his shell motion, (5) counsel was ineffective for failing to include an additional argument in the motion  to suppress, (6) counsel was ineffective for failing to properly argue and object to the jury instructions and the State‘s allegedly improper arguments regarding the instructions, (7) counsel was ineffective pursuant to Caldwell v. Mississippi,(8) counsel was ineffe ctive for failing to present live testimony rather than deposition testimony during the penalty phase, (9) counsel was ineffective for failing to object to allegedly improper prosecutorial comments, (10) the rule prohibiting juror interviews is unconstitutional, (11) Florida‘s lethal  injection protocols are unconstitutional, and (12) cumulative error is present.” Habeas relief likewise denied on “three claims: (1) this Court should revisit its prior proportionality review in light of  Page‘s uncontroverted testimony at the postconviction evidentiary hearing, (2) Florida‘s lethal injection protocol violates that Eighth Amendment, and (3) the inclusion of pancuronium bromide in Florida‘s lethal injection protocol violates free speech.”

• Tai A. Pham v. State, 2011 Fla. LEXIS 1346 (FL 6/16/2011) “Relief denied on “seven issues:  (1) that the prosecutor‘s improper statements during closing arguments entitle him to a new trial, (2) that juror misconduct entitles him to a new penalty phase, (3) that the trial court erred in finding the prior violent felony aggravator, (4) that his death sentence is unconstitutional because the aggravating circumstances were not alleged in the charging document, (5) that the trial court erred in finding the murder was heinous, atrocious, or cruel (HAC), (6) that the trial court erred in finding the murder cold, calculated, and premeditated (CCP), and (7) that his death sentence is not proportionate. “

• Thomas Wiliam Rigterink v. State, 2011 Fla. LEXIS 1343 (FL 6/16/2011) (dissent) On return from remand, majority holds that despite vacateur of conviction for Miranda issues, on return from remand the Miranda warnings were sufficient.

• Alphonso Stripling v. State, 2011 Ga. LEXIS 479 (Ga. 6/13/2011) “[T]he trial court erred regarding the burden of proof to be applied to Stripling’s claim of mental retardation, that the trial court did not err by ruling that standard criminal procedural rules would apply to Stripling’s retrial on the issue of mental retardation, and that the trial court erred by ruling that it lacked the authority to consider any plea bargain that the parties might be willing to enter into.”

• Brian Keith Moore v. Comm., 2011 Ky. LEXIS 91 (Ky 6/16/2011) “Circuit court did not err in refusing to vacate defendant’s conviction because Ky. Rev. Stat. Ann. § 422.285 only gave the right to a test, not to reversal of his 1979 conviction simply where DNA testing was impossible; that evidence from a crime committed so long ago was no longer available did not entitled defendant to the requested relief”[via Lexisone]

• State v. Mario Lynn Phillips, 2011 N.C. LEXIS 385 (N.C. 6/16/2011)  “Investigators did not violate U.S. Const. amends. VI and XIV, N.C. Const. art. I, §§ 19 and 23, or N.C. Gen. Stat. §§ 7A-451, -457, by continuing to question defendant after appointed provisional counsel arrived at the sheriff’s office and requested to see defendant where defendant did not request an attorney at any time before he made a statement.” [via Lexisone]

• Lamar Cornelius Harris v. State,  2011 Md. LEXIS 377 (Md 6/24/2011)  “[C]ourt proceedings have stalled in the preliminary stages due to disagreement about the propriety of the trial judge’s pretrial rulings ordering discovery of certain records and testimony pertaining to Harris’s court-ordered competency evaluation and subsequent in-patient treatment at Clifton T. Perkins Hospital Center. Petitioner ultimately seeks appellate review on the merits regarding the trial judge’s denial of Harris’s motion for a protective order resulting from service of a subpoena on one of Harris’s treating physicians as well as service of a subpoena duces tecum on Perkins Hospital. Because we conclude that the discovery orders are not appealable at this time, we do not address the merits of Harris’s challenges to those orders.”

• People v. Charles Edward Moore, 2011 Cal. LEXIS 6170 (Cal 6/23/2011) I’m still working through this one, although Shaun Martin’s analysis may be the best take away.

• Michael Wayne Howell v. State, 2011 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 6/14/2011) “Postconviction court’s denial of relief based on claimed intellectual disability pursuant to Tenn. Code Ann. § 39-13-203 was upheld, where inmate failed to establish, by preponderance of evidence, that he had significantly subaverage general intellectual functioning as evidenced by IQ of 70 or below or that he had deficits in adaptive behavior.” [via Lexisone]

• State v. Corinio Pruitt, 2011 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. 6/13/2011) “In felony murder action, death penalty was upheld where defendant provided no substantial evidence of deficits in adaptive behavior to support intellectual disability finding. Evidence defendant ambushed elderly victim, inflicting various blows, and attempted to steal victim’s car for parts supported Tenn. Code Ann. § 39-13-204(i)(7) aggravator.” [via Lexisone]

• Stephen Lynn Hugueley v. State,  2011 Tenn. Crim. App. LEXIS 426 (Tenn.Crim.App. 6/8/2011)  In a case of a “volunteer” who changed his mind “Petitioner may not belatedly withdraw his decision to dismiss his petition for post-conviction relief. Additionally, this court concludes that the post-conviction court did not err in concluding that the Petitioner was competent to withdraw his motion. Accordingly, we affirm the judgment of the post-conviction court.”

Noncapital

• State v. Kevin Monday, Jr.  2011 Wash. LEXIS 394 (Wash 6/9/2011) (noncap) “The prosecutor’s misconduct tainted nearly every lay witness’s testimony. It planted the seed in the jury’s mind that most of the witnesses were, at best, shading the truth to benefit the defendant. Under the circumstances, we cannot say that the misconduct did not affect the jury’s verdict.” [via Lexisone]

Georgia execution botched tonight, apparently badly. “As the injection began, he jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.”

We’ll be back this weekend.