No reported capital decisions from the federal appellate courts are reported this week and just a single decision from the Supreme Court Carmell v. Texas. In Carmell the Court adresses the scope of the Ex Post Facto Clause and its impact on new evidentiary rules.

The "in focus" section this week addresses motions relating to jury practice in a capital case.

    (a)  In Calder v. Bull, 3 Dall. 386, 390, Justice Chase stated that the proscription against ex post facto laws was derived from English common law well known to the Framers, and set out four categories of ex post facto criminal laws: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” The Court has repeatedly endorsed this understanding, including the fourth category. Both Justice Chase and the common-law treatise on which he drew heavily cited the case of Sir John Fenwick as an example of the fourth category. England charged Fenwick with high treason in the late 17th century, but, under an Act of Parliament, he could not be convicted without the testimony of two witnesses. Parliament passed a bill of attainder making the two-witness rule inapplicable, and Fenwick was convicted on the testimony of only one witness. Pp. 6—15.

    (b)  Article 38.07 plainly fits within Calder’s fourth category. Requiring only the victim’s testimony to convict, rather than that testimony plus corroborating evidence, is surely “less testimony required to convict” in any straightforward sense of those words. Indeed, the circumstances here parallel those of Fenwick’s case. That Article 38.07 neither increases the punishment for, nor changes the elements of, the offense simply shows that the amendment does not fit within Calder’s first or third categories. Pp. 15—17.

    (c)  The fourth category resonates harmoniously with one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice. A law reducing the quantum of evidence required to convict is as grossly unfair as retrospectively eliminating an element of the offense, increasing punishment for an existing offense, or lowering the burden of proof. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life. Indeed, Fenwick’s case itself illustrates this principle. Pp. 17—20.

    (d)  None of the reasons that the United States as amicus advances for abandoning the fourth category is persuasive. It asserts that the fact that neither Blackstone nor ex post facto clauses in Ratification-era state constitutions mention the fourth category shows that Justice Chase simply got it wrong. Accepting this assertion would require the Court to abandon the third category as well, for it is also not mentioned in any of those sources. And it does not follow from the fact that Fenwick was convicted by a bill of attainder that his case cannot also be an example of an ex post facto law. In fact, all of the specific examples that Justice Chase listed in Calder were passed as bills of attainder. Nor, as the United States and Texas argue, was the fourth category effectively cast out in Collins v. Youngblood,497 U.S. 37, which actually held that it was a mistake to stray beyond Calder’s four categories, not that the fourth category was itself mistaken. Pp. 20—25.

    (e)  Texas’ additional argument that the fourth category is limited to laws that retrospectively alter the burden of proof is also rejected. The Court’s decision in Cummings v. Missouri, 4 Wall. 277, nowhere suggests that a reversal of the burden of proof is all the fourth category encompasses; and laws that lower the burden of proof and laws that reduce the quantum of evidence necessary to meet that burden are indistinguishable in all meaningful ways relevant to concerns of the Ex Post Facto Clause. Texas’ assertion that Fenwick’s case concerns only a reduction in the burden of proof is based on a mistaken historical premise. And its argument that the present case is controlled by Hopt v. Territory of Utah, 110 U.S. 574, and Thompson v. Missouri, 171 U.S. 380, is also unpersuasive. Unlike the witness competency rules at issue there, Article 38.07 is a sufficiency of the evidence rule. It does not merely regulate the mode in which the facts constituting guilt may be placed before the jury, but governs the sufficiency of those facts for meeting the burden of proof. Indeed, Hopt expressly distinguished witness competency laws from laws altering the amount or degree of proof needed for conviction. Moreover, a sufficiency of the evidence rule resonates with the interests to which the Ex Post Facto Clause is addressed, in particular the elements of unfairness and injustice in subverting the presumption of innocence. Pp. 26—39.
963 S. W. 2d 833, reversed and remanded.

    Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined.

Maurino v. Johnson  (6th Cir) "After exhausting his state remedies, petitioner filed a petition for a writ of habeas corpus in federal court. The district court denied this petition and the petitioner appealed. On appeal petitioner raises three issues: (1) whether petitioner was denied a fair trial due to the bias of the trial judge against defense counsel; (2) whether petitioner was denied the effective assistance of counsel where a critical defense witness was not called; and (3) whether the trial prosecutor improperly acted as a witness depriving petitioner of his constitutional right to confrontation, by asserting without evidence that petitioner told a waitress he intended to kill the victim. Because we find that reasonable jurists could find the state court's decision to be a reasonable application of Supreme Court law, we shall affirm."

Alternates

Order (availability of alternate jurors for penalty deliberations), United States v. Lonnie O’Bryant et al.

Attorney participation in voir dire

Motion to Permit Counsel to Participate in Voir Dire
Affidavit of Ronald C. Dillehay (attorney-conducted voir dire)
Affidavit of Cathy Bennett (attorney-conducted voir dire)
Motion to Permit Counsel to Question Jurors During Voir Dire and Memorandum in Support, United States v. Deric Frank (SDNY)
Memorandum in Support of Motion for Mistrial Due to Inadequate and Restrictive Voir Dire Regarding the Juror’s Death Penalty and Particularly Mitigation Views and Due to Denial of Attorney Participation, United States v. Jean Claude Oscar (EDVa)
Voir Dire Procedures in Federal Death Penalty Cases

Composition challenges

Preliminary Motion to Dismiss Indictment and/or Stay the Proceedings Against [Defendant] Due to the Underrepresentation of Blacks in the Grand and Petit Jury Selection Processes and for Other Violations of the Jury Selection and Service Act of 1968 [with supporting brief], United States v. Anthony Battle (NDGa)
Motion for Reconsideration of Order of Magistrate Recommending Denial of Defendant’s Jury Challenge Motion and Supplement to Defendant’s Jury Challenge Motion with Incorporated Authority, United States v. Anthony Battle (NDGa)
Defendant’s Reply to Government’s Post-Hearing Response in Opposition to Defendant’s Jury Challenge Motion, United States v. George Williams (NDGa)
Objections of [Defendant] to Report and Recommendation on Jury Challenge Issue, United States v. George Williams (NDGa)

 
Evaluation of prospective jurors

Juror evaluation sheet
Juror evaluation notes sheet

Experts (to assist with jury selection)

Affidavit of David Bruck (frequency of use of jury experts in federal capital cases)

 
Individual voir dire

Motion for Individual, Sequestered Voir Dire, at least as to Punishment Views, Exposure to Pretrial Publicity/Discussion, and Possible Racial Prejudice and Memorandum in Support, United States v. Deric Frank (SDNY)
Affidavit of Kevin McNally (frequency of individual voir dire in federal capital cases)
Voir Dire Procedures in Federal Death Penalty Cases

Multiple juries

Procedure Order (dual jury trial procedures and matters pertaining to jury conduct)

Overview

Voir Dire Procedures in Federal Death Penalty Cases

Opinions concerning jury selection in federal capital cases

Index to Opinions in Federal Capital Cases Involving Jury Selection
Opinions in Federal Capital Cases Involving Jury Selection

 
Peremptory strikes

Motion for Full Complement of Twenty Peremptory Challenges (sample)

 
Questionnaires

Index of Available Jury Questionnaires
Stipulated Joint Juror Questionnaire, United States v. Louis Jones (NDTex)
Defendant’s Proposed Juror Questionnaire, United States v. Ronald Eugene Mathis (MDFla)
Juror Questionnaire, United States v. Deric Frank (SDNY)
Prospective Juror Questionnaire (Defense Version)
Notice of Final Version of Juror Questionnaire, United States v. Orlando Hall (NDTx)
Jury Questionnaire, United States v. Theodore Kaczynski (EDCa)
Views on punishment in a murder case (sample questions)
Attitudes regarding the death penalty (sample questions)
Voir Dire Procedures in Federal Death Penalty Cases

 
Recommended jury selection procedures

Recommended Jury Selection Procedures (letter from defense counsel to court), United States v. Deric Frank
Defendant Shaheem Johnson’s Memorandum of Law Regarding the Scope of Appropriate Voir Dire in a Capital Case, United States v. Shaheem and Raheem Johnson (EDVa)
Memorandum of Law in Support of Defendant ... McCullah’s Request for Voir Dire Procedures, United States v. John McCullah (EDOk)
Defendant Chanthadara’s Motion for Adoption of Jury Selection Procedures, United States v. Bountaem Chanthadara (D.Ks)
Defendant Chanthadara’s Brief in Support of Motion for Adoption of Jury Selection Procedures, United States v. Bountaem Chanthadara (D.Ks)

 
Scope of questions in voir dire

Defendant’ Memorandum of Law Objecting to "Death Qualification" and, in the Alternative, Regarding the Scope of Appropriate Voir Dire in a Capital Case, United States v. Deric Frank (SDNY)
Defendant Shaheem Johnson’s Memorandum of Law Regarding the Scope of Appropriate Voir Dire in a Capital Case, United States v. Shaheem and Raheem Johnson (EDVa)
Defendants Shaheem and Raheem Johnson’s Request for Additional Voir Dire Questions [on punishment, views of other jurors, drug trafficking], United States v. Shaheem and Raheem Johnson (EDVa)
Memorandum in Support of Motion for Mistrial Due to Inadequate and Restrictive Voir Dire Regarding the Juror’s Death Penalty and Particularly Mitigation Views and Due to Denial of Attorney Participation, United States v. Jean Claude Oscar (EDVa)
Defendant’s Requested Voir Dire by the Court on Punishment Issues, United States v. Deric Frank (SDNY)
Motion to Supplement the Court’s Voir Dire Inquiry, as Necessary, and Requested Supplemental Inquiry [on pretrial publicity, racial attitudes, and the death penalty], United States v. Stacy Culbert (EDMi)

 
Strike procedures

Order Excusing Jurors for Cause, United States v. Ronald Eugene Mathis (MDFla)

Arkansas Executes Despondent Woman
Christina Marie Riggs was executed on the evening of May 2 after Arkansas Governor Mike Huckabee refused to intervene. Riggs, a single mother, was convicted in 1998 of murdering her two young children. She then attempted suicide by injecting herself with potassium chloride (the same drug used in lethal injections) and swallowing 28 tablets of Elavil. At her trial, she asked the jury to give her the death sentence. She waived her appeals and declined to ask for clemency. She had been described by mental health experts as severely depressed and mentally ill. (NY Times, 5/3/00 and APB News, 4/30/00)

Washington State Guarantees DNA Testing
Governor Gary Locke has signed a law allowing those on death row and those serving mandatory life sentences in Washington to have evidence from their cases tested for DNA in order to prove their innocence. The tests will be available in June and extends to people convicted before Dec. 31, 2002. After that, requests for DNA testing will have to be made at trial. Some defense attorneys and prosecutors believe the law should be extended to all inmates. Also, the request for DNA testing must be made to the state Attorney General, who is charged with upholding convictions. Washington joins Illinois and New York in specifically allowing such tests. (Seattle Times, 5/1/00) See also the Innocence Protection Act of 2000.

U.S. Supreme Court Refuses Gary Graham's Petition
The Supreme Court denied Texas death row inmate Gary Graham's (Shaka Sankofa) request for review. Graham was a juvenile, i.e., under 18 years of age, at the time of his crime, and was convicted principally on the basis of a single eyewitness. Other witnesses have submitted testimony that Graham could not have been the murderer, but much of this new evidence has not been given a hearing. It is likely that Texas will set an execution date soon.

National Death Penalty Moratorium Bill Introduced
On April 26, Senator Feingold (D-WI), along with Senator Levin (D-MI), introduced the National Death Penalty Moratorium Act of 2000 (S. 2463). The bill would immediately suspend executions at the federal and state levels while a national, blue ribbon commission reviews the administration of the death penalty. 

High Cost of Tennessee's Death Penalty
A death penalty case can cost a total of $1 to $2 million more than a murder case in which life imprisonment is the maximum possible punishment, according to David Raybin, a Nashville lawyer and legal scholar who helped write Tennessee's current death penalty law. Raybin said that voters should realize "the death penalty is a luxury item because it is so incredibly expensive. If you don't pay for it on the front end, when the trials occur, you pay for it at the back end with endless appeals." (The Tennessean, 4/24/00)

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ISSN: 1523-6684   Volume III, issue 17