The Tenth Circuit has offered two cases in which relief has been offered, Pickens v. Gibson and LaFevers v. Gibson. In Pickens a panel holds the jury based its condemnation on impermissible evidence,  an unconstitutionally obtained confession. In LaFevers the panel orders a stay mere hours before execution in this successive petition when DNA might exonerate the condemned.  The Fifth Circuit, however, continues its march to the right in Martin v. Cain denying relief on claims arising from failure to investigate and Brady violations.

In focus this week is the current training schedule for the spring for various national organizations.

Last week's edition may not have been delivered to all, it has been uploaded to http://capitaldefenseweekly.com/cdwold.html.
 
 

Among its evidence admitted at sentencing, the State presented petitioner's videotaped confession to a third armed robbery of a convenience store (the Creek County robbery), during which he had again shot and killed the clerk. This robbery had occurred four days prior to the Tulsa robberies at issue in this case. At the time of this capital proceeding, petitioner's prosecution for the Creek County robbery and murder remained pending. Petitioner was subsequently convicted of those crimes. The Oklahoma Court of Criminal Appeals, however, reversed petitioner's Creek County convictions, after determining that the videotaped confession had been obtained in violation of petitioner's constitutional rights. See Pickens v. State, 885 P.2d 678, 680-82, 684 (Okla. Crim. App. 1994), overruled on other grounds by Parker v. State, 917 P.2d 980, 986 & n.4 (Okla. Crim. App. 1996).

In this case, petitioner challenges the trial court's admission, during sentencing, of that videotaped confession to the Creek County robbery and murder. The parties do not dispute, and the state appellate court and the federal district court both held, that admission of this confession was constitutional error. The Oklahoma Court of Criminal Appeals, however, further held that admission in this case of the unconstitutionally obtained confession during sentencing was "harmless beyond a reasonable doubt," in light of the other, overwhelming evidence supporting the continuing threat aggravating circumstance. Pickens, 910 P.2d at 1067-68. Although the Oklahoma appellate court did not cite federal authority in making this determination, it essentially applied the Chapman v. California, 386 U.S. 18, 24 (1967), harmless error analysis required for direct review. SeeBrecht v. Abrahamson, 507 U.S. 619, 636 (1993).

AEDPA provides in part that habeas corpus relief shall not be granted from state convictions "unless the adjudication of the claim . . . involved an unreasonable application of [] clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). It is not disputed that Chapman sets forth the clearly established standard for evaluating instances of constitutional error and that the Oklahoma Court of Criminal Appeals correctly articulated the Chapman standard. Thus, our inquiry is limited to whether the application of that standard was unreasonable when the Oklahoma Court of Criminal Appeals determined that this error was harmless beyond a reasonable doubt. See LaFevers, 182 F.3d at 716 (interpreting AEDPA to require examination of an Oklahoma appellate court's determination of harmless error for reasonableness).

In support of the three charged aggravating factors, the State incorporated the first-stage evidence. In addition to the videotaped confession, the State also introduced a ski mask and a pair of sunglasses found in petitioner's car at the time of his arrest, arguing that, had petitioner wanted to disguise himself, he could have, thus eliminating any need to kill the clerks. The State also presented judgments and sentences documenting petitioner's two prior felony convictions for armed robbery and one prior felony conviction for possession of a sawed off shotgun. Petitioner stipulated that all three of these convictions involved a threat of violence. In addition, a police officer testified that, after his confession to these crimes, petitioner stated that, except for driving without a license, he had done nothing wrong that night.

In mitigation, petitioner presented the testimony of his mother, two sisters and his cousin. These witnesses testified to petitioner's physically and emotionally impoverished upbringing, his mother's emotional and verbal abuse, the absence of his father, the drowning death of his best friend, petitioner's serious injuries suffered in a fire, and the death of his girlfriend. They also testified to several instances when petitioner had to be physically restrained by family members after he had taken illicit drugs. His special education teacher testified concerning petitioner's limited mental abilities.

A psychologist testified to the following: Petitioner was borderline mentally retarded, with an overall IQ of 77. He possessed only a marginal ability to function, making decision making and everyday tasks very difficult. His social functioning was deficient, and he had difficulty forming close relationships. He was not able to think as quickly or process information as accurately as most people. It was the psychologist's opinion that the death of petitioner's girlfriend began petitioner's downward spiral into drugs and antisocial behavior. The psychologist further opined that petitioner was remorseful and would not present a continuing threat if he remained incarcerated.

Against this background of aggravating and mitigating evidence, petitioner's videotaped confession was the first and only time the jury received information that petitioner had committed another armed robbery resulting in murder, identical to the crimes charged in this Tulsa prosecution, and occurring only four days prior to these Tulsa shootings. It was also the first and only time the jury heard from petitioner.

"[I]t would have taken only a single juror to preclude imposition of the death sentence." Bryson v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999), petition for cert. filed, (U.S. Feb. 7, 2000) (No. 99-8086). In light of these circumstances, we have "grave doubt" as to the effect of this unconstitutionally obtained confession on the jury's sentencing decision. O'Neal v. McAninch, 513 U.S. 432, 435 (1995); seePaxton, 199 F.3d at 1219. We, therefore, hold that the Oklahoma Court of Criminal Appeals' harmless error determination was not reasonable and grant petitioner habeas relief from his death sentence on this basis.

For the two interrelated, certified claims, Martin contends that, contrary to Brady, the State failed to produce, and his counsel, due to inadequate investigation, contrary to Strickland, failed to discover, substantial impeachment evidence relative to Sweet: in his pre-trial video statement, cell location history, and criminal record.

1.

On 17 July 1991, nine months before trial, and approximately two weeks after Martin's arrest, Sweet provided for the sheriff's office a videotaped statement about Martin. That September, Martin requested witness statements and any Brady material. Responding that there was noBrady material, the State refused to disclose the statements.

In May 1992, 11 days before trial, Martin filed a supplemental motion for exculpatory evidence, again requesting discovery, or an in camera inspection, of certain inmate statements, including Sweet's. At the motion hearing, the State objected to disclosure, again claiming no Brady material. Based on that representation, the motion was denied.

On the other hand, before the State rested in the guilt-innocence phase (but after the inmate-witnesses had testified), the trial court did offer Martin's counsel an opportunity to inspect the requested statements. Counsel asked the judge to review the statements instead.

The judge did so. At a bench conference, he related that, in the video, Sweet stated that Martin told him he and the victim had been drinking, and "they had sex but she didn't want to do it, but he was all worked up and he overpowered her and she was hysterical". The judge also reviewed and related portions of the statements by Fontenot, Williamson, and three inmates who did not testify. The judge reminded Martin's counsel that, if they used portions of the statements, the State could use the rest.

Again, only Sweet's testimony supported aggravated rape. Martin contends that this late disclosure, and his counsels' failure to independently review the statements, prejudiced his defense, asserting that, during closing arguments, the prosecutor "compounded" the Brady violation by using Sweet's pre-trial statement, not produced to Martin, to strengthen Sweet's credibility.

Sweet and Martin became reacquainted in July 1991 when Martin, having recently arrived at the jail, reminded Sweet they had known each other previously. They were in the same jail section that July (the offense was in late June) when Sweet gave his video statement, and thereafter, becoming cell mates later that summer, from 31 August to 4 September. Martin contends that the following differences between Sweet's pre-trial statement and his trial testimony could have been used to impeach him.

First, Sweet testified that Martin told him details of the murder; in the statement, that Martin told him only that he "grabbed [the victim] with both hands around the neck ... [and] he killed her then", and "didn't get into details".

Second, without mentioning any earlier consensual activity by the victim, Sweet testified that Martin said the victim refused to have sexual relations because of her "ministration"; in the statement, that Martin "was all worked up because [the victim] had been kissing on him and hugging all on him and he was aroused and she didn't want to go through with it ... for some unknown reason".

Third, Sweet testified that Martin told him his friend, "Pinky" (Rushing's nickname), "turned him in"; in the statement, that Martin never mentioned the name of the informant. (Martin notes that Sweet also related that the same friend was with Martin when he met the victim, but trial testimony established that it was Roland, not Rushing.)

Fourth, and finally, Sweet testified that Martin never told him the victim was intoxicated or that he had been drinking; in the statement, that Martin said "they had been drinking".

The discrepancies between Sweet's statement and testimony are favorable to Martin, because they could have been used in an attempt to impeach Sweet's credibility. And, because Sweet was the "key witness on an essential issue", United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989), then, arguably, the evidence was material. See Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994) (finding withheld evidence material, relative to testimony "essential" to defendant's conviction).

Martin also contends that his counsel failed to properly cross-examine Sweet when, in response to a question by defense counsel, Sweet stated: "I don't know if [Martin] said he raped her or had sex with her". Martin's counsel did not question him further about this inconsistency.

The State responds that the differences in Sweet's statement and testimony can be explained by the fact that, when Sweet gave the statement, he and Martin had only been in the same jail about two weeks, and Martin could have told Sweet the details later, when they became cell mates. It asserts that the video contained noBrady material, until Sweet gave the somewhat differing testimony at trial; notes that it diddisclose his statement during trial; and maintains that his testimony is reliable because, about eight years prior to their joint incarceration, Sweet and Martin had formed a friendship in a juvenile facility.

On post-conviction review, the state district court concluded that "[a] comparison of the video statement and trial testimony of Sweet fail[ed] to reveal inconsistencies sufficient to possibly impeach". It also concluded that, because Sweet's referenced un-followed-up-testimony was made in the presence of the jury, there was no prejudice.

The federal magistrate judge observed that some inconsistencies between Sweet's statement and testimony could not be explained by his later acquiring more details, e.g., his differing statements about whether Martin and the victim had been drinking, but recommended nevertheless that the statement's impeachment value was subject to reasonable debate. The magistrate judge also recommended that Martin had failed to show prejudice in his counsel's now challenged failure to further question Sweet, because doing so "may have simply allowed Sweet an opportunity to explain [it] away".

We agree with the magistrate judge's reasoning, adopted by the district court. Martin's counsel could have impeached Sweet generally with his prior inconsistent statements (in the pre-trial statement and his testimony on cross). But, as the magistrate judge recommended, what is material (reasonable probability that result of the trial would have been different) is Sweet's description of the victim's resistance and it being overpowered. In that regard, Sweet's statement and testimony are consistent. Pursuant to the high standard for habeas relief under § 2254(d)(1), it is not available on this issue.

2.

Martin asserts that, because of inadequate investigation, it was only post-trial that his counsel learned Sweet and Martin were not in the same cell in July 1991, when Sweet claimed Martin confessed; and, in fact, were cell mates only much later, that August-September, and then for only four days. He contends that, although Sweet's account of his (Martin's) confession - e.g., Martin's pacing the floor of their cell at night on several occasions - sounds rational had it occurred over the "about two months" Sweet testified he and Martin shared a cell, it is not compatible with a four-day time span. Martin asserts that the state district court overlooked the significance of Sweet's testimony that he was actually Martin's cell mate when Martin confessed, only to him, the details necessary to establish aggravated rape, and points out that, in its closing argument, the State used Sweet's "cell mate" status to persuade the jury his account was believable.(3)

Sweet and Martin were in the same cell only from 31 August to 4 September. The state district court found, however, they were in the same "pod" from 9 July through 25 August 1991, with "access to each other daily from about 5:00 a.m. until 10:00 or 11:00 p.m".

In the light of their extensive opportunities to visit, and Sweet's testimony that Martin "went into details on a different occasion", counsels' failure to discover Sweet's cell location history does not translate into a reasonable probability that, but for that failure, the verdict would have been different. As with the first issue, this issue does not satisfy the high standard for § 2254(d)(1).

3.

Martin maintains also that he was prejudiced by the State's failure to disclose, and counsels' failure to discover (and utilize for impeachment), Sweet's full criminal record, which included several prior convictions (for theft and "unauthorized use of a movable", and for simple assault), as well as pending charges (Sweet absconded with over $500 in parish funds given him for use as an undercover narcotics informant, and threatened to kill the officer who subsequently arrested him). In particular, Martin's counsel was unable to counter Sweet's trial testimony that he had only one criminal offense -- for cocaine distribution.

The record indicates, and the state district court determined, that the State provided Sweet's criminal record to Martin's counsel at a pre-trial hearing. At a hearing on Martin's new trial motion, however, Martin's counsel testified that the State provided only "a typewritten list of some charges against one inmate" (unidentified in the record).

The state district court noted that: Sweet testified at trial in his prison uniform; the jury was aware he had one prior felony conviction and was currently in prison; and evidence of the then pending charges, admissible only to show bias or prejudice, would not have been admitted, because Sweet denied any promise by the State of leniency or a plea bargain. As a result, it held that Martin had not shown the requisite prejudice.

In his report and recommendation, the magistrate judge determined also that the "pending charges could not have been properly presented to the jury", citing State v. Grace, 643 So. 2d 1306, 1308 (La. Ct. App. 1994). Martin contends that his situation is distinguishable because, due to counsels' ineffective investigation, Martin did not have an opportunity, as did the defendant in Grace, to support admissibility by showing bias or prejudice.

For this issue, as with the other two, the state court decision was not outside the standard set by § 2254(d)(1).
 

Loyd Winford LaFevers faces the death penalty currently set for execution at 12:01 AM, March 9, 2000. He sought a stay in the district court so that present counsel could have sufficient time to carry out the duty vested in him by an order of the district court appointing him successor counsel in this case. The stay was denied because the district court believed that relief was beyond its jurisdiction. Because of the unusual facts of this case, we disagree and reverse.

Time is critical here because of the immediacy of the execution date; therefore, our reasoning must be succinctly set forth. We start from the proposition that present counsel was appointed by the district court under the Criminal Justice Act to act as a substitute for Mr. LaFevers' prior counsel who failed to follow through properly on his responsibility to his client. In part, the appointment order stated: "This appointment expressly covers all proceedings set forth in [21 U.S.C.] § 848 including preparation, filing, and presentation of a request for leave to present a successive habeas corpus petition . . . and all other matters concerning Mr. LaFevers' sentence of death."

Without reference to the details, we believe the record now presented to us demonstrates that Mr. LaFevers' counsel proceeded as quickly as circumstances permitted to determine whether DNA evidence existed that would support application for a successive habeas petition. It also appears from the record that on March 3, 2000, counsel was furnished with a report of the analysis of the DNA evidence purporting to conclusively show the blood on certain trousers was that of Mr. LaFevers' co-defendant and not that of either Mr. LaFevers or the victim of the crime of which he was convicted. That report is significant because at trial the state argued to the jury that a permissible inference existed that the blood was that of the victim and that its presence was evidence that Mr. LaFevers viciously attacked her.

We believe counsel has, for the purpose of this appeal, made a colorable showing of grounds for the granting of leave to file a successive petition. In light of that showing, we believe Due Process requires that he be given ample time to complete the gathering of the evidence necessary for the preparation of such a petition. See McFarland v. Scott, 512 U.S. 849 (1994). We point out, however, we reach this conclusion only because the peculiar facts of this case showing the exigent circumstances of the pending execution coupled with evidence showing a reasonable probability Mr. LaFevers would be entitled to present an application for leave to file a successive habeas petition under 28 U.S.C. § 2244(b). At the same time, we make no determination of whether such an application should or will be granted if filed. We are motivated solely by the demonstration of a reasonable probability that adequate grounds exist and that time should be granted for the development of the evidence necessary for the preparation of a proper application. Recognizing that any delays encountered in this case since the appointment of successor counsel were not his fault, we believe it unjust to allow Mr. LaFevers to be executed before counsel has the time to fully pursue a matter that bears on whether his client should be executed in accordance with Constitutional principles.

The judgment of the district court is REVERSED and the mandate shall issue FORTHWITH. The district court is directed to IMMEDIATELY enter an order staying the execution of Mr. LaFevers for a time it shall determine sufficient to allow his counsel to properly prepare an application for leave to file a successive petition for a writ of habeas corpus

Roney v. USA (8th Cir)  Motion to Vacate 28 U.S.C. sec. 2255; Denial of Sixth Amendment ineffective assistance of counsel claim reversed, where defendant denied appointment of counsel at evidentiary hearing in violation of Rule 8(c) of Rules Governing Section 2255 Proceedings; violation of rule was not harmless error.

Fuentes v. Wagner (3rd Cir) This "suit arose from an incident that occurred in the Berks County Prison where Fuentes was detained while awaiting sentencing on outstanding federal charges. Fuentes alleged a cause of action for excessive force under the Eighth and Fourteenth Amendments, a substantive due process claim for cruel and unusual punishment under the Eighth and Fourteenth Amendments, a  procedural due process claim under the Fourteenth Amendment, and state law claims for assault and battery, and false imprisonment " Judgment denying relief affirmed.
 
 

UPCOMING TRAINING OPPORTUNITIES (from the Federal Defender Training Grop.

AMERICAN BAR ASSOCIATION
 Mar. 2-3, Miami, FL — White Collar Crime National Institute
 May 4-5, San Francisco, CA — Health Care Fraud National Institute
For more information, contact the ABA at (202) 662- 1512 or e-mail kleins@staff.abanet.org.

CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE
May 6, San Diego, CA — Criminal Defense Update Seminar
For more information, contact CACJ at (323) 933-9414.
 
 

FEDERAL DEFENDER TRAINING GROUP TRAINING OPPORTUNITIES
Mar. 24-25, Arlington, VA - Federal Death Penalty Training (in conjunction with NLADA’s “Life in the Balance XII”)
May 18-20, Kansas City, MO - National CJA Panel Attorney Training Seminar
June 22-25, New York, NY - Habeas Institute: Federal Post-Conviction Skills Seminar (co-sponsored  with NITA).
July 6-8, Boston, MA - National CJA Panel Attorney Training Seminar
Aug. 17-20, Nashville, TN - National Habeas Corpus Seminar
Sept. 21-23, San Antonio, TX - National CJA Panel Attorney Training Seminar
For more information about these programs, call (800) 788-9908.

INSTITUTE FOR CRIMINAL DEFENSE ADVOCACY
May 13-19, San Diego, CA — Trial Skills Academy 2000. Application deadline is March 31.
For more information, contact ICDA at (619) 525-1485 or visit its web site at www.icda.cwsl.edu.

NATIONAL CRIMINAL DEFENSE COLLEGE
June 11-24, Macon, GA — 2000 Trial Practice Institute. Application deadline is March 15.
July 16-29, Macon, GA — 2000 Trial Practice Institute. Application deadline is March 15.
For more information, contact NCDC at (912) 746-4151 or by e-mail at Rosie@ncdc.net.

NATIONAL DEFENDER INVESTIGATOR ASSOCIATION
Mar. 22-24, Baltimore, MD — National Conference (federal day on Mar. 21)
For more information, contact NDIA at (860) 633-6159 or visit its web site at www.ndia.net.

NATIONAL INSTITUTE OF TRIAL ADVOCACY
July 8-22, Boulder, CO — National Session For more information, contact NITA at (800) 225-6482
or visit its web site at www.nita.org.

NATIONAL LEGAL AID & DEFENDER ASSOCIATION
Mar. 25-28, Arlington, VA — Life in the Balance XII (annual capital litigation conference)
May 31-June 6, Dayton, OH — Defender Advocacy Institute (intensive, small-workshop trial skills training)
July 26-30, Berkeley, CA — Substantive Law Conference
For more information, contact NLADA at (202) 452- 0620 or visit its web site at www.nlada.org.

WESTERN TRIAL ADVOCACY INSTITUTE
June 24-30, Laramie, WY — 20th Annual Criminal Defense Seminar
For more information, contact WTAI at (307) 766-2422
or visit its web site at www.uwyo.edu/law/students/ wtai.htm.

 
Eric Clemmons was freed from death row in Missouri on February 18 after a jury acquitted him of murder at retrial. Clemmons was sentenced to death in 1987 for a 1985 murder which occurred in a Missouri prison. After losing all his appeals in state court and his initial appeal in federal court, Clemmons had called his mother to make his funeral plans. But new attorneys convinced a federal appeals court to reverse itself and grant a new trial, partly because of issues and evidence that Clemmons had filed himself. When all the new evidence was presented, the jury acquitted him in 3 hours. Clemmons remains incarcerated on other charges, which he is also challenging. (Kansas City Star, 2/27/00) Clemmons is the 86th person exonerated and freed from death row since 1973.

Just hours before his pending execution, the U.S. Court of Appeals for the 10th Circuit stayed the execution of Oklahoma death row inmate Loyd LaFevers. The Court granted the stay after DNA tests raised questions about evidence used against LaFevers at trial. The tests determined that blood found on LaFevers' pants did not belong to the victim, as prosecutors said at his trial. (New York Times, 3/9/00)

Charles T. Terrell, Sr., past chairman of the board, Texas Criminal Justice Department, recently expressed his second thoughts about the death penalty in a letter to the Dallas Morning News. Terrell, for whom the "Terrell Unit"  that houses Texas' death row inmates was named, wrote the following:  "For most of my life, I have believed the death penalty to be a deterrent to the brutal crimes that result in such a sentence. However, today I'm not as sure....  [W]e now have an option of life without the possibility of parole.... I think the specter of  life without parole in [prison] is much more frightening than death by injection....      [R]acial disparity is a legitimate issue to investigate. And I believe that anyone facing the death penalty should have the right to a complete investigation as to whether DNA evidence can double check our legal system for error. Not doing so is a criminal act by society."    (Dallas Letter, Dallas Morning News, 3/2/00)

A discussion list for legal professional doing capital litigation is in the beginning stages.  The hope of the new list is to get some cross-pollination of ideas, as well as to give  those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.
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ISSN: 1523-6684   Volume III, issue 10