CDW will not run next week save for a bulletin if the Supreme Court should rule on a particularly germane case.

 
The State submitted the case to the jury on the basis of accomplice liability. Jury instruction number five at trial provided:
 

If you find and believe from the evidence beyond a reasonable doubt: first, that on or about February 18, 1982, in the City of St. Louis, State of Missouri, the defendant or Robert Wishon caused the death of Donald Voepel, Jr., by shooting him; and second, that the defendant or Robert Wishon intended to take the life of Donald Voepel, Jr.; and third, that the defendant or Robert Wishon knew that he was practically certain to cause the death of Donald Voepel, Jr.; and fourth, that the defendant or Robert Wishon considered taking the life of Donald Voepel, Jr., and reflected upon this matter coolly and fully before doing so, then you are instructed that the offense of capital murder has occurred, and if you further find and believe from the evidence beyond a reasonable doubt: fifth, that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged Robert Wishon in committing that offense, then you will find the defendant guilty of capital murder.

Jury Instr. No. 5, Appellant’s Br. at Add. 102. Johns claims that the instruction violated the Eighth, Sixth, and Fourteenth Amendments because it did not require the jury to find that he personally deliberated on the murder.
Under the Eighth Amendment, states may impose the death penalty only on defendants who “kill, attempt to kill, or intend that a killing take place.” Enmund v.  Florida, 458 U.S. 782, 797 (1982). The Supreme Court has held that under Enmund a federal habeas court “must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made.” Cabana v. Bullock, 474 U.S. 376, 387 (1986) (footnote omitted).

Here, the jury found that even if Johns did not pull the trigger, he “acted together with or aided or encouraged” Wishon “with the purpose of promoting or furthering the commission of capital murder.” Jury Instr. No. 5, Appellant’s Br. at Add. 102. At a minimum, this showed that Johns intended that a killing would take place. See
Fairchild v. Norris, 21 F.3d 799, 803-04 (8th Cir. 1994) (finding that Enmund was satisfied because the defendant was a major participant in the underlying felony, was aware that the co-defendant was carrying a gun, and made no attempt to assist the victim after she was shot). Accordingly, the instruction did not violate the Eighth
Amendment. The Sixth Amendment requires that criminal convictions “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993)). Johns argues that the instruction violated the Sixth Amendment because it did not explicitly require the jury to find that he deliberated on capital murder. The State argues that by requiring the jury to find that Johns assisted Wishon in the killing “with the purpose of promoting or furthering the commission of capital murder” the instruction effectively required the jury to find that Johns deliberated on the killing.

Deliberation was an element of capital murder under Missouri law when Johns was tried and convicted. See Mo. Rev. Stat. § 565.001 (1978). The Missouri case law and model jury instructions, however, did not require an explicit instruction on deliberation at that time. See State v. White, 622 S.W.2d 939, 945-46 (Mo. 1981) (en banc) (holding that finding that the defendant provided assistance “with the purpose of” promoting capital murder was the same as finding that the defendant had the requisite mental state for capital murder); MAI-CR2d 2.12, Note 7 on Use (1983) (suggesting, but not requiring, explicit deliberation language).

The Missouri Supreme Court found on direct appeal that instruction number five effectively required the jury to find deliberation. See Johns, 679 S.W.2d at 259-60. We agree, and accordingly we hold that the instruction did not violate the Sixth Amendment. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999) (upholding a first-degree murder instruction based on accomplice liability because it was consistent with existing model jury instructions); Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir. 1994) (upholding a first-degree murder instruction based on accomplice liability because it required the jury to find that the defendant “knowingly or purposefully” aided in the killing).

Even if held to be constitutionally deficient, the instruction does not lead to automatic reversal of the conviction, for it is subject to harmless-error analysis. See Neder v. United States, 119 S. Ct. 1827, 1833-34 (1999) (holding that the omission of an element from a jury instruction is not structural error and thus is subject to harmless-error analysis); California v. Roy, 117 S. Ct. 337, 338-39 (1996) (per curiam) (applying harmless-error analysis to an erroneous state first-degree murder instruction). Because the state court did not apply harmless-error analysis, we apply the stricter harmless-error standard of Chapman v. California, 386 U.S. 18 (1967). See Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993). Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24.

The jury heard abundant evidence that Johns deliberated on the murder. While planning the robbery, he told Smith that he “never left any witnesses.” He purchased ammunition for the gun the day of the murder and had possession of the gun immediately before the killing. He was present when the murder occurred and gave the gun to Klund for safekeeping immediately thereafter. He told his friend Keener that he himself had shot young Voepol in the head three times. We conclude that such overwhelming evidence rendered any instructional error harmless beyond a reasonable doubt.

There remains the issue presented by the fact that while Johns’s habeas petition was pending in the district court the Missouri Supreme Court held that although a homicidal act may be imputed to an accomplice, the mental state of deliberation may not be. See State v. O’Brien, 857 S.W.2d 212, 218 (Mo. 1993) (en banc) (citing State v. Ervin, 835 S.W.2d 905, 923 (Mo. 1992) (en banc)). The court stated that its decision in Ervin had overruled cases, including Johns itself, that had employed jury instructions similar to that used in Johns’s case. Id. at 218 (citing White, 622 S.W.2d 939; Johns, 679 S.W.2d 253; and State v. Hunter, 782 S.W.2d 95 (Mo. Ct. App.
1989)).

The Due Process Clause of the Fourteenth Amendment requires states to apply their laws “in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428 (1980). Johns argues that the Missouri Supreme Court’s denial of his motion to recall the mandate after declaring in O’Brien that Johns had been overruled by Ervin was so arbitrary and capricious as to shock the judicial conscience and violate substantive due process. The State argues that Johns is not entitled to retroactive  pplication of the new case law, and that he is not entitled to relief under the new standards in any event.

The Constitution does not require states to give retroactive effect to state court decisions announcing new rules of law. See Wainwright v. Stone, 414 U.S. 21, 23-24 (1973); Fiore v. White, 149 F.3d 221, 224 (3d Cir. 1998), cert. granted, 119 S. Ct. 1332 (1999), question certified, 120 S. Ct. 469 (1999); Houston v. Dutton, 50 F.3d 381, 384-85 (6th Cir. 1995); Robinson v. Ponte, 933 F.2d 101, 103-04 (1st Cir. 1991); La Rue v. McCarthy, 833 F.2d 140, 142-43 (9th Cir. 1987). On the other hand, states must give retroactive effect to decisions that are not “new law” but rather are dictated by precedent. See Yates v. Aiken, 484 U.S. 211, 216-17 (1988).

We need not decide whether the subsequent decisions of the Missouri Supreme Court announced a new rule of law or whether they reflected a result dictated by precedent, because Johns is not entitled to relief under the standards enunciated in Ervin and O’Brien.

As discussed above, there was overwhelming evidence that Johns planned to use deadly force by means of the weapon for which he had purchased ammunition earlier in the day. His admission to Keener that he had shot Voepel in the head three times established beyond even the most metaphysical doubt the fact that Johns had deliberated before killing the young man. Accordingly, the Missouri Supreme Court’s refusal to apply in his case the rules announced in Ervin and O’Brien, however desirable it would have been for the court to have explicated the reasons for that refusal, did not violate Johns’s rights to substantive due process, for even under the instructions required by Ervin and O’Brien there is no doubt that the jury would have reached the same conclusion regarding Johns’s guilt. See, e.g., Jones v. United States, 119 S. Ct. 2090, 2109-10 (1999).

Babcock v. White(8th Cir) District court did not abuse its discretion in modifying consent decree provisions governing Moberly Correctional Center's maximum population.

Lopez v. Smith (9th Cir.)(en banc) "Viewing the evidence in the light most favorable to the plaintiff, as we must, there is a genuine issue of fact as to whether defendants were deliberately indifferent to Lopez's need for outdoor exercise."

Miller v. Smith115 F.3d 1136 (4th Cir. May 23, 1997) (en banc), cert. denied, 118 S.Ct. 213 (1997)  Maryland rule requiring indigent defendant to be represented by public defender in order to receive transcripts necessary for appeal at state expense did not violate constitutional rights of defendant who refused public defender representation and had obtained private pro bono counsel by requiring him to forfeit his counsel of choice to get a transcript necessary for appeal.

Cornell v. Nix 119 F.3d 1329, 1335 (8th Cir. 1997) In the course of rejecting petitioner’s actual innocence claim, the court opined that "the Herrera burden . . . requiring the petitioner to show ‘new facts that unquestionably establish the petitioner’s innocence’ . . . is at least as exacting as the clear and convincing evidence standard, and possibly more so."

Mackall v. Angelone 131 F.3d 442, 446-47 (4th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 907 (1998) The majority (10-2) refused to "accept Mackall’s contention that Coleman [v. Thompson] recognizes a loophole and that he possesses a right to effective assistance of counsel to pursue in his state collateral proceedings a claim of ineffective assistance of trial or appellate counsel." The basis for the majority’s decision here was its observation that, "critically, the rule for which Mackall argues is directly contrary to the explicit holding of [Pennsylvania v.] Finley that no constitutional right to counsel exists in collateral review." The court went on to explain that, "[a]s an inferior appellate court, we are not at liberty to disregard this controlling authority," and "[t]hus, we are bound by the holding in Finley."

Ceja v. Stewart 134 F.3d 1368, 1373-74 (9th Cir. 1998) Chief Judge Fletcher dissented from the panel’s refusal to grant a stay of execution and consider the merits of petitioner’s claim that the Eighth Amendment forbids his execution after 23 years of incarceration on death row. Judge Fletcher explained that, "[i]n finding that the Eighth Amendment does not categorically prohibit the state from imposing the ultimate sanction, . . . the Supreme Court has repeatedly articulated an important qualification: the imposition of the death penalty (. . .) upon a serious offender must serve some legitimate penological end that could not otherwise be accomplished . . . [namely] ‘retribution and deterrence of capital crimes by prospective offenders.’" (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)). Here, Judge Fletcher expressed skepticism as to whether the state could make a satisfactory showing that either of these interests would be furthered by killing Ceja, stating that "[i]t is far from clear, on an intuitive level, what healing or stabilizing effect Ceja’s execution will have twenty-three years after the date of his original conviction." He added, "we cannot uncritically assume that the interests that legitimized th[e] initial decision [to execute Ceja] will continue to be vital and strong, no matter how many decades elapse before Ceja’s execution is proposed to be carried out. There is no statute of limitations on the Eighth Amendment."

White v. Godinez 143 F.3d 1049, 1056 (7th Cir. 1998)  After concluding that the district court erroneously held certain of petitioner’s ineffective assistance of counsel claims to be procedurally defaulted, the Seventh Circuit remanded this non-capital murder case for reconsideration of petitioner’s claims of IAC claims and instructed the district court that, on remand, it "must not view each claim of ineffective assistance in isolation, but rather must examine trial counsel’s performance as a whole to determine whether it fell below the measure of constitutional effectiveness," and that "[t]he central question on remand will be whether all of these alleged errors add up to ineffective assistance."
Tankleff v. Senkowski 3 F.Supp.2d 278, 279-80 (E.D.N.Y. 1998) (Judge Platt)  On remand from the court of appeals, Judge Platt had this to say concerning Batson and the court’s issuance of a conditional writ of habeas corpus for the purpose of conducting a Batson hearing in state court:

What the courts have done, as a practical matter, is to redefine the word peremptory to a point where on a challenge by anyone regardless of the race, nationality, religion, sex, minority or majority status or whatever, a valid reason must be given, i.e., they have all but eliminated the word peremptory from all jury selection statutes and rules and decreed that cause must be shown for all questioned challenges.

In addition, as a practical matter, the appellate court, in holding that punishment for the prosecutor's having (allegedly) deprived two or three jurors of their "rights" to serve on a particular jury, has decreed that the public must pay for the alleged wrongdoing by footing the cost of additional hearings and/or a new trial. The consequence, however, of holding such a new trial so many years later, with the attendant problems relating to evidence and witnesses, might be the undeserved award of freedom from incarceration to this defendant, who committed both matricide and patricide, either now or in a sooner time frame than he currently faces. Why innocent and unwitting citizens and taxpayers should suffer from the infliction of such penalties is unexplained. Also unexplained, as the dissent in Campbell points out, is how this remedy vindicates the rights of excluded jurors. More appropriately, if judges are to be permitted to fashion punishment in cases such as this, they should suspend a wrongdoing prosecutor (if one be so found) from practice or some other appropriate action should be taken against him or her--not against innocent parties.

The Court of Appeals has left to this Court's discretion whether to hold a hearing on petitioner's Batson claim itself or to remand the case to State court for this purpose. It also noted that the State has indicated its willingness to attend a reconstruction hearing to determine whether discrimination had or had not occurred.

Accordingly, this Court directs that this matter be remanded to the State court on a conditional writ of habeas corpus for the sole purpose of holding a hearing on petitioner's Batson challenge consistent with the opinion rendered by the Court of Appeals. As we see it, there are no other open issues that remain to be decided.
 

Davis v. Johnson 8 F.Supp.2d 897, 907 (S.D.Tex. 1998) (Judge Hughes) Following its denial of relief on the merits, the court had this to say about the death penalty:

The government's use of the death penalty is both popular and controversial. Both the popularity and controversy are misguided. Aside from vengeful retribution and insipid moralism, no rule can be sound jurisprudentially if it generates a complex, convoluted, lengthy, and expensive process.
* * *

The death penalty has three principal defects. First, the state probably ought not be allowed to do things it cannot undo because it is at least as error prone as other human organizations. Second, the state spends scarce resources on capital punishment that are badly needed elsewhere; Texas spends about $20 million a year more in accomplishing death sentences than it would cost to convict and maintain them for life without parole. See Dan Grothaus, HOUSTON POST, Dec. 7, 1986. In this case, Davis has been on death row for twenty years. Third, the death penalty attracts the attention of law enforcement, prosecution, courts, and the public to gruesome, sensational, but largely irrational, episodic murders, deflecting that attention from the routine crimes that actually destroy the quality of life generally.

* * *

Beyond those practical factors, reasonable people question whether the infliction of death does not undermine our society's humanity much more than it deters the beasts among us. It is bad policy, and it may be immoral, but it is constitutional.
 

Gibson v. Turpin 513 S.E.2d 186 (Ga. 1999) The Georgia Supreme Court rejected petitioner’s contention that he was constitutionally entitled to state-funded counsel to assist him in pursuing collateral review of his conviction and death sentence. Petitioner, whose IQ is between 76 and 82, had been required to proceed over his own objection with an evidentiary hearing on his state habeas petition without benefit of counsel or expert and investigative assistance. Following the hearing, at which petitioner predictably failed to advance his position, the lower court adopted an order prepared by the state. In turning aside petitioner’s contentions that Georgia’s system effectively denied him meaningful access to the courts, the majority pointed out that the state had done nothing "to prevent him from raising his claims," and suggested that petitioner’s real complaint was simply that "he raised his claims, but not as effectively as he would have preferred." 513 S.E.2d at 189.

The majority further found that "[t]he lack of appointed counsel upon state habeas is also not ‘fundamentally unfair’" so as to give rise to an equal protection or due process claim, and that neither the state or federal constitutions entitled petitioner to state-funded counsel for the purpose of raising ineffective assistance of counsel claims which could not have been raised in earlier proceedings. 513 S.E.2d at 189. As further reasons for refusing to recognize such a right, the court explained that, were it to do so, the right to habeas counsel would necessarily extend to all petitioners, not just those on death row, and that the existence of such a right would "spawn more litigation and delay in an already cumbersome system." 513 S.E.2d at 191; see also id. ("There will be collateral proceedings to consider alleged Sixth Amendment error in previous collateral proceedings."). Finally, the court looked to the "contemporary practice" of other states concerning state-funded counsel in collateral proceedings, and concluded that Georgia is not out of step because "no state, save for Mississippi, has recognized a constitutional right to appointed counsel upon habeas corpus." 513 S.E.2d at 191 (emphasis in original). At bottom, the court concluded, "the decision to create . . . a law [requiring appointed counsel in capital habeas cases] rightfully belongs to the General Assembly." 513 S.E.2d at 192.

Having disposed of petitioner’s right to counsel arguments, the court proceeded to deny relief on all of his underlying claims.

Three justices dissented, arguing, among other things, that the complexity of habeas practice, and the crucial role collateral review plays in uncovering and remedying error in capital cases warrant recognition of a right to counsel. The dissent also examined the contemporary practice of other states, which reveals that "[t]he federal government and all states but two [Georgia and Wyoming] provide a right to counsel in capital post-conviction proceedings." 513 S.E.2d at 198. "The fact that other state legislatures have provided for counsel in capital post-conviction proceedings may be a strong policy consideration for Georgia’s legislature," the dissent continued, "but it is a weak excuse for this Court to evade its responsibility to ensure the guarantees of the constitution." 513 S.E.2d at 198. Finally, writing separately, Justice Sears, joined by Chief Justice Benham and Presiding Justice Fletcher, declared that the majority "requires a condemned man, without counsel, to bring his claims for relief in an arcane process that he can not possibly understand in a court of law that (most likely) will not be able to understand his constitutional concerns. This is an outcome that no just government should countenance." 513 S.E.2d at 199.

 

From the Death Penalty Information Center:

Senator Leahy Introduces Death Penalty Reform Bill
At a press conference on Capitol Hill, Senator Patrick Leahy (D-VT) introduced the Innocence Protection Act of 2000 on February 11, 2000. The legislation would make it easier for innocent inmates to gain access to DNA evidence, have it tested, and use the results to challenge their conviction. Under the proposed legislation, states and the federal government should:

Preserve biological evidence, protecting it for possible future tests as DNA technology becomes more advanced.
Establish minimum competency standards for court-appointed defense attorneys in capital cases.
Establish procedures to pay "reasonable damages" to innocent people sent to death row.
Require that juries in capital cases be informed of the sentencing option of life without parole in states that offer the option.
Cooperate to limit the federal government's ability to seek the death penalty for crimes that occur in states that do not allow the death penalty.

(Chicago Tribune, 2/13/00)
 

New Resources.
About to be released: Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (Doubleday, 2000). This excellent new book by DNA experts Barry Scheck and Peter Neufeld and columnist Jim Dwyer, tells the stories of ten innocent men wrongly convicted and sentenced to death or to prison and the effectively explains how such miscarriages of justice come about. (See also, Innocence)

Philadelphia calls for Execution Moratorium
On February 10, 2000, the Philadelphia City Council called for a moratorium on executions in Pennsylvania. By a 12-to-4 vote, the council passed a resolution backing the Death Penalty Moratorium Bill. Introduced by Republican state Senator Edward Helfrick, the bill would impose a 2-year death penalty moratorium and establish a special commission to study the state law governing capital punishment. The Pennsylvania Senate Judiciary Committee will hold public hearings on the bill on February 22. Philadelphia is now the largest city in the U.S. to pass a death penalty moratorium resolution. (Washington Post, 2/11/00)

From a readers letter to the editor in the the Pinosa Picayune

Your humble correspondent, proudly representing condemned killer Jimmy Dale Bland in a pitched post-conviction battle with the Court of Criminal Appeals, was so distressed when he read the Court's hack fu opinion in Bland v. State, 1999 OK CR 45, that he immediately composed a list of complaints about the opinion and submitted the same to the Court in a Motion to Reconsider. Including among my brazen barbs and thistles was the complaint that the Court's circuitous interpretation of a certain Rule 9.7 (D), written by same Court, was so tortured and inscrutable as to be, in my own words, "Kafkaesque."

I submit for your consideration the relevant portion of the Court's (unpublished) rejoinder:

In the second section of his argument, Petitioner calls our interpretation of of Rule 9.7 (D) 'circuitous' and claims it destroys all reasonable chance at factual development of post-conviction issues in capital cases.' He states that he has read our prior order in Bland v. State, 1999 OK CR 45 to mean:

 (1) an evidentiary hearing is the only form of post-conviction 'discovery' acknowledged by the court's reading of its own rules; and
(2) the only reason to have an evidentiary hearing is to present material already discovered.

Petitioner is correct is [sic] his understanding of our prior order. He is also correct when he states that the only rule-based mechanism for discovery is not a mechanism for discovery. The use of the term 'discovery' in our court rules was perhaps not the best term to use as Rule 9.7 (D) does not refer to true discovery, the type of discovery permitted in trial preparation. However, Petitioner's reference to our interpretation of the rules as 'Kafkaesque' is neither correct nor appropriate.

At this point it appeared that Kafka and irony were locked in dead heat, seeing that the court had confirmed my reading that the "mechanism for discovery is not a mechanism for discovery," (a ruling that was not long ago sufficiently unthinkable that I myself had doubts about it) while at the same time denying my accusation that such pronouncements were "Kafkaesque." But alas, in the Court's view (Chapel, concurring in result) it was I, the troublesome advocate, who had been "neither correct nor appropriate."

But the Court pressed on, setting the stage for an even more dramatic demonstration of...well,  my point:

 In his motion to reconsider, Petitioner seems to forget his post-conviction application is a collateral attack on his previously determined valid judgment and sentence. A prior legal determination of guilt and punishment has been made by the trial court, and reviewed and affirmed by this Court on direct appeal.

You see, friends, the slight problem with this paragraph was that the Court had neglected to check its own docket sheet, or its members would have known that Mr. Bland's direct appeal isstill pending and has not yet been "reviewed and affirmed by this Court." So in what may be the grandest of Kafkaesque gestures, your writer stands accused by the Court (Chapel, concurring) of having forgotten that which has not yet occurred.

Your Honors, The Defense rests.
 

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ISSN: 1523-6684   Volume III, issue 7