The title says it all. As soon as the case is to jury we’ll go out with the next edition.
A first look at decisions from the next edition:
In favor of the Accused or Condemned
- Eugene Woodard v. Mitchell, 2010 U.S. App. LEXIS 24761; 2010 FED App. 0749N (6th Cir. 12/2/2010) (unpublished) “The state concedes that the new mitigating evidence is substantially different in subject matter from that presented at trial, but denies that the new mitigating evidence is substantially stronger. As indicated in the discussion set out above, the proof offered at the penalty phase of Woodard’s trial consisted of “[his] mother and sister testif[ying] that Woodard was a good son and brother and that he deserved mercy.” Woodard made an unsworn statement in which he expressed remorse for the victim’s death, but denied that he was the shooter. That was the extent of the evidence offered in mitigation. It stands in stark contrast to the core theme of the new mitigating evidence: the effect on Woodard of having a father who involved him in drug sales when he was still a child and a father figure who subjected Woodard’s mother to physical abuse in Woodard’s presence. It would be difficult, if not impossible, to conclude that this evidence was not substantially stronger than that presented at trial. It is no misstep to conclude in addition that if this evidence had been presented at trial, there is a reasonable probability at least one juror would have had a reasonable doubt that death was the appropriate penalty.”
- Jimmy Don Wooten v. State, 2010 Ark. 467 (Ark 12/2/2010) (dissent) On an odd set of facts, a second postconviction petition permitted. “In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition”
- Harry Mitts v. Bagley, 2010 U.S. App. LEXIS 24533; 2010 FED App. 0364P (6th Cir. 12/1/2010) Notable denial of rehearing en banc on issue of an “acquittal-first jury instructions” that had resulted in teh grant of relief. “Petition for a rehearing en banc in a case concerning the validity of the following Ohio jury instruction given at the penalty phase of a capital case, was denied; there was no circuit split, and the issue did not present an important federal question, since the Ohio courts had stopped giving the instruction at issue in 1996.” [via Lexisone] Continue reading
From the intro, as previously foreshadowed (pdf/html):
This edition looks at two recent cases addressing indigent defense, one capital, State v. Mata from Nebraska, and the other noncapital, Simmons v. State Public Defender from the Iowa Supreme Court.
John Wesley Hall, Jr., pegged Simmons when he noted it “is a remarkable opinion worthy of being a brief law review article itself considering the NLADA and ABA standards, cases considering ‘takings’ of counsel’s time, counsel’s standing, and systemic ineffective assistance from a fee cap creating a disincentive for defense counsel to adequately perform in indigent criminal appeals.” Simmons has exceptionally good dicta, as well as a well thought analysis on fee caps & IAC, as well as the burden of proof in allegations regarding systemic failures in representing classes of people.
In Mata the Nebraska Supreme Court examines pro se litigation and capital postconviction cases. Nebraska does not appoint postconviction counsel automatically, even in capital cases. Mr. Mata was sentenced to death and lost on direct appeal. Subsequently, he cobbled together a skeletal postconviction petition, a request for counsel and a request for an evidentiary hearing. Rather than appointing counsel or even having Mr. Mata brought to the court house to argue the request for counsel the trial court “held a preliminary hearing to determine whether to grant the request for counsel and whether to grant an evidentiary hearing” in which “Mata participated telephonically.“ The trial court denied all relief. Mr. Mata was then appointed counsel on appeal. That counsel argued to the Nebraska Supreme Court “that Mata has viable ineffective assistance of counsel and other claims and that if he is not allowed to amend his motion, he will be procedurally barred from ever bringing those claims before being put to death.” Remanding, the Nebraska Supreme Court agreed with appointed counsel that Mr. Mata should have been appointed counsel and the trial court was ordered to permit Mr. Mata’s new counsel to amend his motion for postconviction relief. Left out of the opinion, and palpably so, was whether, or more likely when and where, Nebraska will adopt a rule for the automatic appointment of counsel for persons sentenced to death.
As if trying to purposefully tie in with this week’s theme, the Los Angeles Times provides coverage of the indigent defense crisis as it impacts death penalty appeals in California in “Lack of funding builds death row logjam, Terry Lenamon has more. The Congressional Quarterly recently published a 2010 Death Penalty Review. Retired Justice John Paul Stevens, as reported by Adam Liptak in the New York Times, has vigorously admitted that capital punishment jurisprudence has failed. The legislatures in Connecticut and Illinois are expected to have floor votes on the repeal of the death penalty in coming months with the Judiciary Committee of the Illinois State House having a hearing Tuesday on a bill to end the death penalty – SB 3539; Mr Lenamon also has this piece on the Illinois Capital Punishment Reform Study Committee. In this effective piece, DPIC examine the current status of lethal injection developments around the country. After an international outrage, the UK has decided to bar export to the US of the lethal injection drug sodium thiopental. The Tennessee Supreme Court, in an order/opinion that is currently unavailable, has blocked the way for the execution of Stephen West and several others due to the changes in the state lethal injection regs.
As always thanks for reading. – karl
The next will address system issues in the representation of poor people through the lens of two cases, Simmons v. State Public Defender from the Iowa Supreme Court & State v. Mata from across the river in Nebraska.
John Wesley Hall, Jr., pegged Simmons when he noted it “is a remarkable opinion worthy of being a brief law review article itself considering the NLADA and ABA standards, cases considering “takings” of counsel’s time, counsel’s standing, and systemic ineffective assistance from a fee cap creating a disincentive for defense counsel to adequately perform in indigent criminal appeals.”
In Mata the Nebraska Supreme Court examines the farce that is pro se litigation in capital postconviction cases. Nebraska does not appoint postconviction counsel automatically, even in capital cases. Mr. Mata was sentenced to death and lost on direct appeal. Subsequently, he cobbled together a skeletal postconviction petition, a request for counsel and a request for an evidentiary hearing. Rather than appointing counsel or even having Mr. Mata brought to the court house to argue the request for counsel the trial court “held a preliminary hearing to determine whether to grant the request for counsel and whether to grant an evidentiary hearing” in which “Mata participated telephonically.“ The trial court denied all relief. When appointed counsel on appeal counsel, counsel noted to the Nebraska Supreme Court “that Mata has viable ineffective assistance of counsel and other claims and that if he is not allowed to amend his motion, he will be procedurally barred from ever bringing those claims before being put to death.” Remanding, the Nebraska Supreme Court agreed with the right of Mr. Mata to the appointment of counsel and to amend his motion for postconviction relief, and in the process put off until another day whether, or more likely when and where, it will adopt a rule for the automatic appointment of counsel for persons sentenced to death.
- Kent A Simmons v. State Public Defender, 2010 Iowa Sup. LEXIS 119 (Iowa 11/24/2010) “[I]n order to ensure effective assistance of counsel for indigent defendants, the state has an affirmative obligation to establish a system of indigent defense that is reasonably likely to provide for zealous advocacy on behalf of the criminal defendant. A claim that a state’s method of providing counsel to indigent defendants does not adequately ensure effective assistance of counsel is often referred to as a systemic or structural challenge.” “In cases involving systemic or structural challenges, the state’s weighty interest in the finality of a specific criminal judgment is not involved. As a result, a showing of “actual prejudice” in a particular case is arguably not applicable; instead, what is required is a showing that the structural feature being challenged threatens or is likely to impair realization of the right to effective assistance of counsel.” “No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $ 1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.” “The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer’s economic interest (recall Lincoln’s metaphor that a lawyer’s time is his stock in trade) against the interest of the client in effective representation.” [Gamso also has weighed in]
- State v. Raymond Mata, 280 Neb. 849 (Neb 11/19/2010) Proceeding without counsel in the state trial court Mr. Mata “attempted to explain the circumstances which necessitated leave to amend” his postconviction application. ["N]o prejudice to the State was established [below] which would justify the denial of leave to amend. Counsel appointed for purposes of this appeal argues that Mata has viable ineffective assistance of counsel and other claims and that if he is not allowed to amend his motion, he will be procedurally barred from ever bringing those claims before being put to death.. . . We agree that under the circumstances of this case, it was an abuse of discretion for the district court to deny Mata leave to amend his motion for postconviction relief. We therefore reverse the judgment of the district court and remand the cause with directions to appoint counsel for Mata and grant him leave to amend.”
- James Lambert v. Beard, 2010 U.S. App. LEXIS 24051 (3rd Cir 11/23/2010) (mem.op.) Summary reversal of death sentence based on Mills v. Maryland. Panel hints a more formal opinion to follow. Commissioner ordered to immediately move Mr. Lambert to genpop.
From the intro (pdf/html):
Favorable opinions from Texas lead off this edition. The Texas Court of Criminal Appeals has granted a new trial in Ex parte Roderick Dashad Newton due to Brady error; lest you think the CCA is softening, the State conceded error. In Ex parte Arthur Lee Williams the CCA ordered a remand on multiple claims of ineffective assistance of counsel arising from in-court trial counsel performance issues, as well as statutory challenge as to whether the Texas statute “requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.”
In the news, lethal injection remains hot as half a dozen states are no embroiled in the issue of the legality, as practiced, of lethal injection, Steve Hall wraps up all the LI news in greater detail than what time and space here permit. Roderick Newton, as noted above, has seen his death sentenced reduced to life and, in a plea deal struck in recent days, Mr. Newton will receive “two stacked life sentences.” A new study notes “a majority support an alternative to executions.” In Texas Ronald Curtis Chambers, that state’s longest serving death row inmate, died while awaiting retrial. A recently introduced United Nations Resolution in support of a global moratorium on executions was opposed by less than a quarter of its member nations (incl. United States, China, Iran & Saudi Arabia), the smallest number ever. Cherie Blair, the wife of the former British Minister, has a piece in the London Evening Standard about her sharp confrontation with then President George W. Bush over capital punishment & the efforts by British lawyers to ban export of lethal injection drugs to the States.
In Illinois a bill to repeal the death penalty – SB 3539 – has been introduced in the state legislature. They could be voting on it as early as Monday. EJUSA has what you can do to help kill the death penalty in Illinois if you live outside of the state. The ICADP has what in state residents can do, as well as news updates.
As always thanks for reading. – karl
From the coming edition:
In favor of the condemned
Ex parte Arthur Lee Williams
, NO. AP-76,455 (Tex. Crim. App. 11/17/2010) (unpublished) Remand ordered on mulitple IAC in-court performance issues, as well as statutory challenge as to whether the Texas statute “requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.”
Kenneth Clair v. Ayers
, 2010 U.S. App. LEXIS 23693 (9th Cir 11/17/2010) (unpublished) Trial court erred in not appointing counsel in this capital habeas matter. “Because Clair has been appointed new counsel on appeal, and because the district judge has retired, the most reasonable solution to the conundrum of how to correct on remand the district court’s abuse of discretion is to treat Clair’s current counsel as if he were the counsel who might have been appointed had the district court properly exercised its discretion in response to Clair’s request for new counsel.
In that role, counsel shall consult with Clair and determine what actions and submissions to the district court, if any, would be appropriate before the district court rules anew on Clair’s habeas petition, and then proceed accordingly. The district court shall, in turn, consider any such submissions, including any requests from counsel to amend the petition to add claims based on or related to the alleged new physical evidence, as if they had been made prior to the ruling on the writ that we have vacated and shall make all further determinations that may be required in accordance with applicable law.”
From the intro to this week’s edition:
Leading off this edition is the Arkansas Supreme Court’s decision concerning the West Memphis Three in Damien Echols v. State, Baldwin v. State & Misskelley v. State. That Court holds “that the circuit court erroneously interpreted the Arkansas DNA testing statutes” when it denied the three DNA testing. On remand “the circuit court shall hear Echols’s motion for a new trial and consider the DNA-test results ‘with all other evidence in the case regardless of whether the evidence was introduced at trial’ to determine if Echols has ‘establish[ed] by compelling evidence that a new trial would result in acquittal.’” The Arkansas DNA test “statute requires that the court ‘promptly set an early hearing on the petition and response’ unless ‘the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.’” Local reports note that the original circuit judge hearing the matter has been elected to the state senate and the remand hearing will likely before a new judge, i.e., one that didn’t preside over the trial.
The SCOTUSBlog notes that “[i]n a a summary decision, without noted dissent, the Court reminded lower federal courts that they may not rule in favor of a state prisoner’s habeas challenge unless they explicitly find a violation of federal law — either the Constitution or a federal statute. Ruling in an unsigned, seven-page opinion in Wilson v. Corcoran (10-91), the Court overturned a Seventh Circuit Court ruling that appeared to have been based on a flaw under Indiana state law in the death sentence of an Ohio inmate, Joseph Corcoran, for the murders of four men. While Corcoran’s lawyers had claimed that the state law violation also violated the federal Constitution, the Supreme Court said, the Circuit Court did not itself rule that way.”
Other decisions of note in this edition include a pair of remands in Alabama from the Court of Criminal Appeals, Andrew Reid Lackey v. State & David Phillip Wilson v. State where “in accordance with the parties’ request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide [the condemned] with an opportunity to ‘offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.’” In Florida, the State Supreme Court in Paul Christopher Hildwin v. State remanded to the trial court for a hearing to determine whether the lower court should order the State to perform CODIS & state DNA databank analysis as it relates to certain biological samples recovered from the crime scene. In Ohio, an intermediate appellate court in State v. Terrence Williams holds relief and a new trial is warranted as the trial prosecutor apparently purposely misled the jury with statements he knew to be untrue and the curative instruction given by the trial court was too late to be meaningful. The Eleventh Circuit in Troy Anthony Davis v. Terry has held that since “Davis filed a habeas petition pursuant to the Supreme Court’s original jurisdiction” it could not entertain, under AEDPA, a direct appeal from the district court’s denial of relief, that relief, if any, can only be had in the United States Supreme Court. Finally, the Oregon Supreme Court, despite what appears from my perch a continent away as exceptionally creative lawyering, denied relief in State v. Gary Haugen on claims that a fair cross section of the community was denied the defendant when the trial court excused a juror for cause due to language difficulties rather than provide an interpreter and that under the state sentencing law any crime that is committed while a person is confined, in this case capital murder, must be served consecutive to the sentence already being served, in this case life.
In the news, DPIC notes that recent DNA tests have revealed that a strand of hair found at the scene of a liquor-store shooting did not belong to Claude Jones, as was originally implied by the prosecution and raise serious doubts about the conviction of a Claude Jones executed in Texas in 2000. Oklahoma is seeking to end run around the shortage of sodium thiopental for its lethal injection process and will attempt to use pentobarbital in future executions. An anti-death-penalty group says it will use the Illinois Legislature‘s lame-duck veto session next week to try and pass legislation officially abolishing the death penalty here, 10 years after the state unofficially stopped executing people. Courthouse News Service examines the oral arguments in Cullen v. Pinholster on the role of evidentiary hearings and deference to state fact finding; the SCOTUS blog case file for Cullen v. Pinholster contains all briefing in the case, plus additional information. Harris County has appointed Alexander Bunin (FPD from the NDNY) as its first head public defender. Finally, Gov. Strickland in Ohio has granted a commutation to Sidney Cornwell, which means, save for the Baze v. Rees related moratorium years, 2010 will be the lowest number of executions in a given year since Bill Clinton’s first term as President.
As always thanks for reading. – karl
This week’s double edition will include the following cases, including what appears to be one heck of an appellate litigation strategy out of Oregon:
In favor of Life, Liberty, and/or the Condemned
- Andrew Reid Lackey v. State, 2010 Ala. Crim. App. LEXIS 101 (Ala. Crim. App 11/5/2010) “Thus, in accordance with the parties’ request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide Lackey with an opportunity to ‘offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.’”
- David Phillip Wilson v. State, 2010 Ala. Crim. App. LEXIS 100 (Ala. Crim. App 11/5/2010) “Thus, in accordance with the parties’ request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide Wilson with an opportunity to ‘offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.’”
- Paul Christopher Hildwin v. State, 2010 Fla. LEXIS 1932 (FL 11/10/2010) Remand to the trial court entered for hearing to determine whether to perform CODIS & state DNA databank analysis compared to certain biological samples recovered from the crime scene. Hoping briefs will be available on this one soon.
- State v. Terrence Williams, 2010 Ohio App. LEXIS 4617;2010 Ohio 5484 (Ohio 8th App 11/10/2010) “Court erred in denying a mistrial under Crim. R. 33 because the prosecutor caused the jury to hear that defendant was linked to the vehicle used by the masked gunmen, when that was known by the prosecutor to be untrue, and the curative instruction given out-of-context the following day was not sufficient to erase the prejudice to defendant.” [via LexisOne]