Six capital cases are resolved in the federal  Courts of Appeals including  two wins and one remand for an evidentiary hearing.  In  Mayes v. Gibson (10th Cir) a panel remands for an evidentiary hearing on claims relating to failure to investigate. The Fourth Circuit reverses the sentence of death in United States v. Barnette (4th Cir) as the trial court failed  to permit penalty phase mental health witness to testify in surrebuttal.  A Ninth Circuit panel, on remand from the United States Supreme Court, in Coleman v. Calderon, holds that an instruction on the governor's pardon power was constitutionally infirm and had a substantial and injurious effect on the jury's verdict.
 

Finally, Barnette alleges that the district court erred when it refused to allow Dr. Mark Cunningham to testify in surrebuttal to contest Dr. Scott Duncan's diagnosis of Barnette as a psychopath which was presented by the government in rebuttal. 

 A.

First, we must determine whether it was an error for the district  court to exclude Dr. Cunningham as a witness in surrebuttal for the defense. Surrebuttal evidence is admissible to respond to any new matter brought up on rebuttal. United States v. King, 879 F.2d 137, 138 (4th Cir. 1989), cert. denied, 493 U.S. 900 (1989) (citing United States v. Burgess, 691 F.2d 1146 (4th Cir. 1982)). If the evidence would be repetitive of prior testimony, we leave the decision to admit surrebuttal testimony to the sound discretion of the trial judge. Burgess, 691 F.2d at 1151-52. In United States v. King, we held that the district court erred when it denied the defendant the opportunity to present surrebuttal evidence to rebut an "obviously [ ] new matter." 879 F.2d at 138.  Before Dr. Duncan took the stand, Barnette had presented in response to the government's case in chief three psychological or psychiatric experts10 during his case in mitigation: Dr. Faye Sultan, Dr. Seymore Halleck, and Dr. Cunningham. Dr. Sultan used the Diagnostic and Statistical Manual, Fourth Edition, to diagnose Barnette with depression and borderline personality disorder. Dr. Halleck also provided a detailed diagnosis from the Diagnostic and Statistical Manual, Fourth Edition, finding that Barnette suffered from substance abuse, depression, bipolar disorder, intermittent explosive disorder, and borderline personality disorder. Finally, Dr. Cunningham, a psychologist and risk assessment expert, testified about the risk of Barnette committing further violent acts in prison. After explaining his methods and the statistical bases behind his opinion, he found that Barnette's  risk for future violence in prison was very low. Dr. Cunningham was  Barnette's last witness prior to the government's case in rebuttal.  Before the government began its case in rebuttal, Barnette moved  to bar Dr. Duncan's anticipated testimony based on the Psychopathy  Checklist Revised. The trial court denied that motion. Barnette asked  to have Dr. Cunningham in the courtroom during Dr. Duncan's testi-  mony in order for him to prepare for surrebuttal. The court also  denied this motion. Dr. Duncan then testified in rebuttal for the gov-  ernment on the issue of whether Barnette would be a future danger  if placed in prison for life. Dr. Duncan testified that Barnette was a  psychopath, basing his opinion on the Diagnostic and Statistical Man-  ual, Fourth Edition, the Psychopathy Checklist Revised, and his  observations of Barnette's behavior. Despite all the psychological tes- timony in the case of whatever type, until the government called Dr. Duncan to the stand, there was no diagnosis of Barnette as a psycho- path.

   To repeat, until the government introduced Dr. Duncan as its wit-  ness on rebuttal in this case, no diagnosis of Barnette as a psychopath  had entered the proceeding. Indeed the word had never been men-  tioned. Certainly, if Dr. Duncan's testimony was admissible in rebut-  tal, it was admissible in the government's sentencing case in chief to  show that the defendant would not be accommodated by life impris-  onment. When the district court held that Barnette could not introduce  the only evidence he had to contradict the evidence of Dr. Duncan,  it abused whatever discretion it may have had and committed revers-  ible error, as we will demonstrate below.

   While Dr. Duncan was not a psychiatrist, he was an expert in  forensic psychology. His testimony was not brief or fleeting, instead  he provided 72 pages of testimony in exquisite detail, and we set forth  the substance of that testimony as follows.

   Q. Let me turn your attention back to the conclusion  you drew that the defendant was a psychopath based upon  the PCL-R?  . . .
   Q. Before you tell us how you came to that conclusion,  will you describe for the jury what a psychopath is?
   A. Certainly. In general, a psychopath is an individual  who lacks the ability to feel at the same level and have the  intensity of what feelings are as compared to nonpsycho-  pathic individuals. Typically they are very callous, manipu-  lative, calculating, individuals that will often exploit other  people. There is research to suggest that biologically, they  do not respond to what nonpsychopaths view as fear and  anxiety which are two emotions that make up what we refer  to as remorse or guilt. The pyschopath is an individual that  has little if any ability to feel remorse or guilt for behavior  they engage in.
   Q. Now, did you come to the conclusion in your report  and as you testified today that the defendant is a psycho-  path?
   A. That was based on the behavior that we saw during  our interviews of the defendant, also based on a review of  the material that I had cited earlier and based on how he  eventually scored on the Hare Psychopathy Checklist  Revised.
   Q. Is psychopathy a formal diagnosis?  A. No, sir, it is not a diagnosis formally listed in the  DSM-4.
   Q. Why is it important to establish whether or not a  defendant is a psychopath?

   A. Well, psychopaths are -- criminal psychopaths are  twice as likely to engage in future criminal behavior when  compared to noncriminal psychopaths. Criminal psycho-  paths are three times as likely to engage in violent future  criminal behavior when compared to nonpsychopathic crim-  inals. Although in any prison population only about 20 per-  cent of that population typically are psychopaths, they are  responsible for over 50 percent of violent crimes that are  committed. Also, identifying someone as a psychopath helps  institutions to be able to place them either in a maximum or  lower security penitentiary based on what they score out.  . . .
   Q. Now, do psychopaths look any different than other  people?
   A. No, sir. The psychopath, probably one of their best  assets and probably one of the greatest fears of nonpsycho-  paths is their ability to look normal. We would all like to be  able to think that we can pick out the psychopaths from the  nonpsychopaths in the community, but none of us are  immune to that. . . .
   The psychopath, as I say, has the ability to look very nor-  mal. However, if you know what you are looking for, it is  kind of like seeing a bowel [sic] of fruit, and you say to  yourself, gosh that bowl of fruit looks wonderful, it looks  very good. But when you get close to the bowel [sic] of fruit  and pick it up you realize that it's fake fruit. And the psy-  chopath is a lot that way. And they look very, very normal,  but when you know what to look for, you can see things in  their behavior, not their appearance necessarily as much as  things in their behavior, which identify them as psycho-  paths.
   After combining the psychopathy diagnosis with an actuarial analysis  of prisoners similar to Barnette and with conclusions from research  concerning predictions of future dangerousness, Dr. Duncan con-  cluded that Barnette would be a future risk in prison.

   On cross examination, Barnette's attorney examined Dr. Duncan's  use of the Psychopathy Checklist Revised in his assessment of Bar-  nette. First, Barnette's attorney noted that no other experts in the trial  had used that form for diagnosis. He then questioned Dr. Duncan  extensively about an article criticizing use of the Psychopathy Check-  list Revised with black populations and mandating that doctors use it  with caution when evaluating those populations.

   At the conclusion of Dr. Duncan's testimony, Barnette moved to  recall Dr. Cunningham to testify in surrebuttal to Dr. Duncan's psy-  chopathy testimony. The government objected on the grounds that the  defense should have presented their evidence concerning the psychop-  athy diagnosis and use of the Psychopathy Checklist Revised during  the testimony of their expert witnesses. Barnette countered by arguing  that he had a right to rebut the evidence Dr. Duncan presented and  that his witness would critique the Psychopathy Checklist Revised as  invalid, irresponsible science. The court denied the motion, finding  that Barnette's attorney had cross examined Dr. Duncan on the valid-  ity of the Psychopathy Checklist Revised using an article criticizing  the Psychopathy Checklist Revised and concluding that Barnette had  nothing additional to contribute. Barnette then proffered the testimony  Dr. Cunningham would have provided on surrebuttal, including: the  invalidity of the Psychopathy Checklist Revised as applied to blacks;  the inappropriateness of the use of the test on Barnette; Dr. Cunning-  ham's own application of the Psychopathy Checklist Revised to Bar-  nette, including a different score on the test that would not qualify  Barnette as a psychopath; Dr. Cunningham's opinion that Barnette  was not a psychopath; and his knowledge of no other studies address-  ing the validity of the Psychopathy Checklist Revised's application to  the black population, other than the one the defense had already intro-  duced.

   We are of opinion that the testimony the defense sought to intro-  duce in surrebuttal was not cumulative or repetitive. Despite  Barnette's attorney's cross examination of Dr. Duncan on the validity  of Dr. Duncan's technique, questions from an attorney are not nearly  so effective as the testimony of a qualified expert witness. And this  must be especially true when, as here, the subject is the highly techni-  cal and specialized subject of the condition of a man's mind. Addi-  tionally, Dr. Cunningham would have testified about the fact that he   scored Barnette differently with the Psychopathy Checklist Revised  and about his own diagnostic finding that Barnette was not a psycho-  path. On this record, simple fairness required that Barnette have the  ability to rebut the new evidence the government's expert introduced  in rebuttal. See King, 879 F.2d at 138.  B.

   While it was error for the court to refuse to allow Dr. Cunningham  to testify in surrebuttal, we cannot reverse a sentence of death "on  account of any error which can be harmless . . . where the Govern-  ment establishes beyond a reasonable doubt the error was harmless."  18 U.S.C. § 3595(c)(2); see United States v. Jones, 67 U.S.L.W.  4508, 4516 (1999) (using § 3595(2) standard for harmless error to  evaluate error caused by loosely drafted aggravating factors). Section  3595(2) incorporates the same standard for harmless error review as  that used to evaluate direct appeals of Constitutional errors. See, e.g.,  Chapman v. California, 386 U.S. 18, 23-24 (1967). We use a different  standard, considering whether the exclusion had a substantial or inju-  rious effect on the jury's selection of the death sentence, in review of  trial-type Constitutional error in review of habeas cases. See Brechtv. Abrahamson, 507 U.S. 619, 638 (1993).
   To evaluate the harmlessness of this error, we look to cases  addressing the importance of psychological testimony. In Satterwhitev. Texas, the Supreme Court found that the introduction of inadmissi-  ble psychiatric testimony that the defendant would be a future danger  was not harmless beyond a reasonable doubt. 486 U.S. 249, 258 (1988). The Court reached this determination after noting that the doctor who testified was the only specialist in psychiatry to take the stand and provide this type of testimony. Satterwhite, 486 U.S. at 259. Other witnesses had testified about the defendant's violent tendencies, but not with the impact of a medical expert. Satterwhite, 486 U.S. at 259. Additionally, the Court noted that the doctor stressed that the defendant had no conscience and was a sociopath beyond the reach of rehabilitation and that the prosecution called attention to the doctor's conclusions in his closing arguments. Satterwhite, 486 U.S. at 259-60.  In Ake v. Oklahoma, the Court found that because psychiatric evidence was so important, a defendant has a Constitutional right to a government-provided doctor if his mental state will be a significant factor at trial. 470 U.S. 68, 83 (1985). While the Court did not engage in a harmless error analysis, it did note that having two views on a mental health issue ensures both that the defendant receives a fair adjudication of the case and that the jury does not erroneously impose any punishment. Ake, 470 U.S. at 83-84. The Court also noted in such cases its own reliance on the assumption that it had before it "both the views of the prosecutor's psychiatrists and the`opposing views of the defendant's doctors.'" Ake, 470 U.S. at 84. Barnette, in the case at hand, was deprived of the "opposing views of the defendant's doctors."  In United States v. MacClosky, we found that excluding key evidence, which was psychiatric evidence, was not harmless error when the witness would have offered detailed testimony vital to the defense's ability to explain the damaging testimony. 682 F.2d 468, 479 (4th Cir. 1982). In two other cases, we evaluated the exclusion of psychiatric evidence under the lesser harmless error standard on habeas review. In Boyd v. French, the defendant wanted to introduce expert testimony that his childhood and history of personal loss made him more likely to kill a family member. 147 F.3d 319, 326-27 (4th Cir. 1998), cert. denied, 525 U.S. 1150 (1999). But, in the context of a crime involving indisputable premeditation, we concluded that the error was harmless because the court did not consider that the jury would have been substantially influenced by the excluded testimony. Boyd, 147 F.3d at 328. In Tuggle v. Netherland, we found that the erroneous exclusion of psychiatric expert testimony showing the defendant would not be a danger in the future was harmless error because the excluded evidence did not have a substantial or injurious effect or influence. 79 F.3d 1386, 1393, 1395, 1396 (4th Cir. 1996), cert. denied, 519 U.S. 894 (1996). However, we reached that determination in Tuggle while using the lesser standard for harmless error review, and in arriving at our conclusion, we considered that the record was unimpeachable as to the jury finding of vileness, which also supported a sentence of death.

   After an analysis of the record and authorities, we are of opinion that the failure to allow Dr. Cunningham to testify in surrebuttal as to the psychopathy evidence was not harmless error and requires a new sentencing hearing. As the Supreme Court has acknowledged, psychiatric evidence is an important part of many trials, like this one. Ake, 470 U.S. at 83. Additionally, the Court has recognized the principle that leaving this testimony unanswered can have a devastating effect on a defendant. Ake, 470 U.S. at 84. In the case at hand, the tes timony of Dr. Duncan was as damning as it could be. By excluding Dr. Cunningham's testimony, the district court left the jury with the unrebutted expert opinion that Barnette was a psychopath who felt no remorse or guilt, and that he resembled a fake bowl of fruit. Only by cross examination was Barnette able to cast any doubt on this testi mony by questioning Dr. Duncan on the validity of his methods. In such a case, cross examination is poor substitution for a live expert witness. The defense was excluded from the testimony of its expert to counter Dr. Duncan's opinions.  Again, the record shows that Dr. Duncan's analysis in rebuttal, for the first time in the case, introduced the diagnosis of Barnette as a psychopath. Barnette should have had the opportunity to introduce "the opposing views of the defendant's doctor[ ]." Ake, 47 U.S. at 84. We thus conclude that there is a reasonable possibility that the exclusion of the evidence of Dr. Cunningham might have contributed to the sentence of death and that the government has not established beyond a reasonable doubt that the error in excluding such evidence was harmless beyond a reasonable doubt. 18 U.S.C. § 3595(c)(2), Chapman v. California, 386 U.S. 18, 24 (1966).

 

COMPETENCY

A petitioner is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (quotation omitted). Mr. Van Woudenberg claims the state deprived him of procedural due process when it found him competent to stand trial using an improper burden of proof standard. He also claims he was denied substantive due process because he was incompetent at the time of his trial. 

Procedural Competency Claim

A petitioner can assert a procedural competency claim by alleging that the trial court either failed to hold a competency hearing after the defendant's mental competence was put in issue, see Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir.), cert. denied, 120 S. Ct. 449 (1999), or held a competency hearing but employed an unconstitutional burden of proof, see Rogers v. Gibson, 173 F.3d 1278, 1290 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). In this case, the state trial court held a competency hearing for Mr. Van Woudenberg but it required him to prove incompetence by "clear and convincing evidence," a standard which has since been found unconstitutional by the Supreme Court. SeeCooper v. Oklahoma, 517 U.S. 348, 369 (1996) (holding standard "incompatible with the dictates of due process," because it "allow[ed] the State to put to trial a defendant who is more likely than not incompetent.")⁽⁵⁾ Thus, Mr. Van Woudenberg has a valid procedural incompetency claim based on this deficiency in his competency hearing. 

The government argues Mr. Van Woudenberg has not exhausted his procedural competency claim, and thus urges us to find it procedurally barred. The government's exhaustion argument is correct. Although Mr. Van Woudenberg raised this claim in his first post-conviction application, he did not appeal the state court's denial of relief on this issue to the Oklahoma Court of Criminal Appeals. Although a procedural competency claim may be procedurally barred, Rogers, 173 F.3d at 1289, AEDPA also permits a federal court to deny habeas relief on the merits of an unexhausted claim instead of applying the bar. See 28 U.S.C. § 2254(b)(2). Accordingly, we proceed to the merits. 

In order to prevail on a procedural competency claim, a petitioner must establish that the state trial judge ignored facts raising a "bona fide doubt" regarding the petitioner's competence to stand trial. See Walker, 167 F.3d at 1343. "Evidence of irrational behavior, demeanor at trial, and prior medical opinion regarding competence are relevant to a bona fide doubt inquiry." Wallace, 191 F.3d 1243. 

The record does not show a bona fide doubt regarding Mr. Van Woudenberg's competency. Mr. Van Woudenberg was evaluated by Dr. Ganaden, a psychiatrist at Eastern State Hospital. Dr. Ganaden testified at the competency hearing that Mr. Van Woudenberg was not suffering from a psychotic disorder and his conversation was coherent, sequential, connected, and relevant. Dr. Ganaden concluded that Mr. Van Woudenberg understood the nature of the charges against him, was capable of assisting counsel in defending against those charges, and was therefore competent. 

Mr. Van Woudenberg submits Dr. Ganaden's evaluation did not comport with reasonable psychological and psychiatric standards for determining competency because the evaluation lasted only one hour; it involved no consideration of organic brain damage or major mental illnesses; Dr. Ganaden did not obtain Mr. Van Woudenberg's medical and social history from independent sources; Dr. Ganaden failed to review information concerning Mr. Van Woudenberg's past and present physical condition; and Dr. Ganaden conducted no testing, other than an IQ test, and failed to review prior testing results. Even if we had doubts about the adequacy of the evaluation, however, Mr. Van Woudenberg points to no evidence at the time of trial raising a doubt as to his competency. 

Testifying in his own defense during the second stage of trial, Mr. Van Woudenberg responded rationally, coherently, logically, and responsively to the questions asked. See Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999), cert. denied,120 S. Ct. 1438 (2000). The trial judge, who had ample opportunity to assess Mr. Van Woudenberg's ability to understand the proceedings and assist counsel during the trial, did not indicate any concerns about his competency. Seeid. at 1191. From our reading of the record, moreover, it does not appear that Mr. Van Woudenberg engaged in any irrational or unusual behavior during trial which would have alerted the court to question his competency. SeeBryson, 187 F.3d at 1204. 

In light of the evidence of Mr. Van Woudenberg's competency at the time of trial, Dr. Patricia Fleming's opinion that Mr. Van Woudenberg was mentally impaired based on her evaluation eleven years after trial does not establish a bona fide doubt as to Mr. Van Woudenberg's competency at the relevant time. SeeFoster, 182 F.3d at 1191 (competence evaluation, made ten years after trial, does not necessarily generate sufficient doubt). Likewise, Mr. Van Woudenberg's subsequent adjudication of incompetency on November 28, 1994, making him currently ineligible for the death penalty, does not prove his incompetency at the time of trial. Finally, given the evidence to the contrary, Mr. Van Woudenberg's history of mental illness, his low IQ, and his deprived and abusive background do not raise a bona fide doubt that he was incompetent when he was tried. 

The federal district court noted it had found Mr. Van Woudenberg competent when it heard the federal kidnaping charges near the time of the murder and one year prior to Mr. Van Woudenberg's pretrial competency hearing in state court. Mr. Van Woudenberg contests the district court's consideration of these "extra-record" materials. We note, however, that the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record. See St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). Contrary to Mr. Van Woudenberg's assertions, he had ample opportunity to question the accuracy of these materials, either at the state or federal proceedings. In any event, he fails to indicate now what, if anything, is inaccurate about them. 

In light of the evidence of Mr. Van Woudenberg's competency, including his trial testimony, we conclude he has not raised a bona fide doubt regarding his ability to understand the proceedings or to assist his counsel in preparing a defense. SeeSmallwood v. Gibson, 191 F.3d 1257, 1279 (10th Cir. 1999).

Substantive Competency Claim

A petitioner may make a substantive competency claim by alleging he was, in fact, tried and convicted while mentally incompetent. See Walker, 167 F.3d at 1344. A substantive mental competency claim may not be procedurally barred. Rogers, 173 F.3d at 1289. In order to prevail on this claim, Mr. Van Woudenberg must demonstrate by clear and convincing evidence a real, substantial and legitimate doubt as to his competence to stand trial. Id. at 1291 & n.13 (quoting Walker, 167 F.3d at 1343). Because Mr. Van Woudenberg does not meet the less rigorous "bona fide doubt" standard discussed above, a fortiori he fails to pass this more stringent test. See id.

The entire mitigation phase took approximately two hours, and the jury retired to begin deliberations at 7:15 p.m. At 10:45 p.m., the jury passed a note to the court asking, "[i]f life without parole is given, is there ever a possibility of release from prison?" The court, without objection from counsel, sent the jury a note indicating the instructions given were self-explanatory. At 1:20 a.m., the jury returned from deliberations. Although it rejected the "continuing threat" aggravator, the jury did find the murder to be "heinous, atrocious and cruel," and sentenced Mr. Mayes to death. . . . 

Mindful of the presumption of reasonableness afforded to trial counsel's actions and jealous of the need to safeguard the Sixth Amendment, we turn to the merits of Mr. Mayes' claim. Mr. Mayes contends he was deprived of his Sixth Amendment right to effective assistance of counsel by his trial counsel's failure to conduct any investigation or present any mitigation evidence ­save for Mr. Mayes' own brief testimony­ during the penalty phase of the trial.(3)

The Sixth Amendment imposes on counsel "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The ambit of "reasonable investigations" is less than clear, and reasonableness is by necessity circumstantial. Id.at 688. Nonetheless, this court has consistently held "in a capital case the attorney's duty to investigate all possible lines of defense is strictly observed." Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999). See also Smith v. Gibson, 197 F.3d 454, 463 (10th Cir. 1999); Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir. 1998), cert. denied, 119 S. Ct. 345 (1998); Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997). 

As proof of both his counsel's failure to conduct a reasonable investigation, and that persuasive mitigation evidence was readily available, Mr. Mayes proffered affidavits from eleven acquaintances and family members which indicate each would have testified on his behalf during the penalty phase had they been asked to do so. All the affiants aver they were never contacted by Mr. Mayes' trial attorney. In fact, Mr. Mayes' mother states she contacted trial counsel prior to trial and was told "not to worry about it." All of the affidavits contain anecdotal evidence of Mr. Mayes' kind and gentle demeanor, generosity, respectfulness, and work ethic. All but that of his mother indicate he was abused and neglected by his mother and stepfather. 

We review Mr. Mayes' affidavit evidence without deference to the factual findings of the state court. Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997) (federal courts need not give presumption of correctness to factual findings of the state court if the habeas petitioner did not receive a full, fair, and adequate hearing in the state court proceeding on the matter raised in the habeas petition). As Mr. Mayes was denied an evidentiary hearing into the matter of ineffective assistance, we are in the same position to evaluate the factual record as was the state court. Miller, 161 F.3d at 1254. 

We believe the only possible inference from Mr. Mayes' affidavit evidence and the record as a whole is that any investigation conducted by defense counsel fell well short of the mark of reasonableness. All of the eleven affiants were obvious and easily available sources of mitigation evidence­ family members and close acquaintances­ and all indicate they were not contacted by defense counsel. See Clayton v. Gibson, 199 F.3d 1162, 1179 (10th Cir. 1999) (finding defense counsel's failure to contact defendant's immediate family troubling). 

Our decision that defense counsel failed to conduct reasonable investigations, necessitates an inquiry into whether this failure was prompted by a reasonable decision not to investigate. Strickland, 466 U.S. at 691. This inquiry, however, is stymied by the state of the record. In the absence of an evidentiary hearing we can only speculate as to counsel's motivations. We simply cannot condone the administration of the death penalty on the basis of speculation. 

Without the benefit of an evidentiary hearing, the district court attributed Mr. Mayes' counsel's failure to offer mitigation witnesses to a reasonable tactical decision. The district court opined that because Mr. Mayes defended himself by professing a lack of personal involvement in the murder, presentation of other mitigating evidence "could be perceived as inconsistent with this argument or, at least, would detract from it; so a decision to omit evidence concerning other mitigators is a defensible tactical decision."

That reasoning concerns us in two respects. First, the uncontroverted facts in the record demonstrate Mr. Mayes' attorney never contacted any mitigation witnesses. Without inquiring into what the witnesses might say, counsel had no basis for deciding their testimony would be inconsistent with his defense theory. See United States v.Cronic, 839 F.2d 1401, 1404 (10th Cir. 1988) ("An attorney's trial decisions must be based on . . . an adequate knowledge of the facts."). Second, after examining the affidavit evidence and defense counsel's argument during the penalty phase, we see no inconsistency. In the penalty phase, defense counsel argued not only that his client was not physically involved in the murder, but also that the "continuing threat" aggravator was inappropriate because his client was nonviolent. The proffered affidavit testimony directly supports counsel's contention Mr. Mayes was a nonviolent person and in no way undermines the argument that he was not physically involved in the murder. 

We have no doubt, on the facts in this record, that Mr. Mayes' representation during the sentencing phase of his trial was constitutionally deficient. However, before Mr. Mayes is entitled to a hearing, we must determine whether he was prejudiced by his counsel's deficiency. Our inquiry is whether there is a reasonable probability that, absent the errors, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695. To make this determination, we weigh the errors committed against the mitigating evidence actually presented, the strength of the State's case, and the aggravating factors the jury found. Clayton v. Gibson, 199 F.3d at 1178-79. 

We begin with the strength of the State's case against Mr. Mayes.(4) The evidence of Mr. Mayes' guilt cannot fairly be described as overwhelming. The State did marshal significant evidence Mrs. Trammell solicited Mr. Mayes to kill her husband, however, the evidence Mr. Mayes actually committed the crime was entirely circumstantial. We also note there is considerable evidence the jury was uncertain whether this crime warranted the death penalty. Only after deliberating for over six hours and questioning the judge about the meaning of a sentence of life without parole, did the jury return a sentence of death. Even then, the jury found only one aggravator, rejecting the prosecution's argument that Mr. Mayes posed a continuing threat to society.(5)

Against this backdrop we examine Mr. Mayes' proffered mitigation evidence. The Oklahoma Court of Criminal Appeals dismissed the affidavit evidence, finding the affidavits offered only "faint praise," which came in "couched terms such as Appellant 'had his faults'; he 'had his share of problems'; he 'was not always a saint'; he 'was not always truthful with me and sometimes he liked to act like a big shot'; or 'I know Bill has not always done the right thing in his life.'" 

We have considered the affidavit testimony in its entirety and reach a different conclusion. In our view, when the phrases excerpted by the Oklahoma court are returned to their appropriate context, the affidavits constitute effective mitigation evidence. For example, the Oklahoma court extracted the excerpt, "Bill has his faults," from the statement: 

Bill has his faults, but I believe he is a good person. I will never believe he is capable of killing someone. If he were to walk out of prison tomorrow he would be welcome to come live with me and my family. 

Similarly, the observation that Mr. Mayes "had his problems" was derived from the statement "[a]lthough I realized that Bill had his share of problems, I love him and think he is basically a good hearted person." The characterization of Mr. Mayes as "not always a saint" comes from affidavit testimony which reads: 

I know that Billy was not always a saint, but I also think he has had a very hard life. I think he is basically a good person and had I been asked to testify, I would have told the jury I did not want him to die and asked them not to sentence him to death. 

Finally, Mr. Mayes' ex-wife, Janet Fessler, stated, "Billy was not always truthful with me and sometimes he liked to act like a 'big shot.'" She went on to explain, however, 

I believe he acted this way because he was trying to be the person he thought I wanted him to be. Billy was very insecure and emotionally unstable and we fought over his jealousies but he never hit me. 

Rather than faint praise, we believe the tone of these statements is consistent with those commonly offered in mitigation. A rational witness facing a jury fresh from finding the defendant guilty of murder might well seek to gain legitimacy with the jurors by acknowledging that she understood the defendant "has his faults." Indeed, a jury convinced the defendant had committed murder might find a mitigation witness willing to acknowledge the defendant's faults before pleading for his life more credible than a witness who seemed overly zealous and uncompromising in her support for the defendant. 

Determining whether there is a reasonable probability that had the jury heard this mitigation evidence the outcome of Mr. Mayes' sentencing would have been different requires us to speculate on the deliberative process of a jury, an activity we are loath to undertake. Nevertheless, given the relative weakness of the State's case, the jury's obvious struggle in deliberations, and the fact that only one aggravator was found, we must conclude Mr. Mayes' allegations meet "the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland, 466 U.S. at 696. Consequently, Mr. Mayes is entitled to an evidentiary hearing. 

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Alexander must obtain a COA in order to appeal the denial of his habeas petition. A COA may only be issued if the prisoner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A 'substantial showing' requires the applicant to 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). SeeSlack v. McDaniel, ___ S.Ct. ___, 2000 WL 478879, *6-7 (U.S. S.Ct. Apr. 26, 2000). In a capital case, "the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate," although the court may properly consider the nature of the penalty in deciding whether to allow an appeal. Barefoot, 463 U.S. at 893, 103 S.Ct. at 3395.

Alexander argues that his rights under the Eighth and Fourteenth Amendments were violated by the trial court's refusal to instruct the jury as to the effect of a hung jury. The Texas sentencing statute provides that if a capital sentencing jury answers "yes" to each of the punishment questions submitted, the defendant will be sentened to death, but if ten or more jurors answer one or more of the issues "no," or if the jury is unable to agree on an answer to any issue, the defendant will be sentenced to life imprisonment. Texas Code Crim. Proc. Ann. 37.071(d)(2),f(2), &(g) (Vernon Supp. 1999). The statute, however, prohibits the court or the attorneys for the state or the defendant from informing the jury of the effect of the failure to agree on an issue. Id. In Texas, this is commonly called the "10-12 Rule."

During jury deliberations at the punishment phase of Alexander's trial, the jury sent the following note to the court:

If jury deliberation does not produce a 12-0 "yes" vote, or a 10-2 "no" vote, on a special issue, what other recourse does the jury have? /s Foreman

The court replied that it was not authorized to give any additional instructions on the issue. Alexander asserts that this refusal to issue clarifying instructions was unconstitutional because it created a false need for a nearly unanimous response to the special issues.

This Court has considered this argument before and found it barred by the nonretroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989).⁽³⁾SeeWebb v. Collins, 2 F.3d 93 (5th Cir. 1993). Because we find Webb materially indistinguishable from the instant case, we conclude that Alexander's argument is Teague-barred as well. The petioner in Webb made the same argument as Alexander -- that the Texas 10-12 rule compelled the jury to vote "yes" on the special issues -- and he relied on the same authority -- Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988).⁽⁴⁾SeeWebb, 2 F.3d at 95. We concluded in Webb that the principles of Mills did not dictate the rule urged by the petitioner, seeWebb, 2 F.3d at 96, and precedent constrains us to reach the same conclusion here.⁽⁵⁾

Alexander makes two additional arguments in quest of his COA. First, he urges us to allow the parties to re-brief all claims in light of the Supreme Court's recent decision in Williams v. Taylor, -- S.Ct.---, 2000 WL 385369 (U.S.), which modified the habeas standard announced in Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). The problem with this argument is that Williams is irrelevant to our disposition of Alexander's constitutional claim. Alexander's claim is Teague-barred, separate and apart from any deference to state court findings or conclusions, and any argument on the Supreme Court's modification of the Drinkard standard would be unproductive.

Alexander also argues that the district court's suasponte denial of COA denied him meaningful access to the courts and representation of counsel.⁽⁶⁾ This argument is meritless. It is perfectly lawful for district court's to deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued. 28 U.S.C. § 2253(c). Furthermore, Alexander points to no legal support for his contention that his rights were violated by the district court's suasponte denial of COA without prior briefing and argument by counsel. Arguably, the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.

Mr. James first contends the trial court denied him procedural due process by applying at his competency hearing the "clear and convincing" evidence burden of proof found unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996). The state counters that Mr. James failed to exhaust this issue, that it is procedurally barred, and that, in any event, there was no constitutional violation. 

Mr. James attempted to raise this claim in a pro se second post-conviction application. The Oklahoma Court of Criminal Appeals refused to accept the pro se filing because Mr. James was represented by an attorney and the attorney was required to submit the argument, see Okla. Stat. tit. 22, ch. 18, app., Rule 3.4(E). Although the court dismissed the application without prejudice, Mr. James did not attempt to refile with proper submission by an attorney. Thus, the state contends, the claim was not exhausted. 

Exhaustion is not required if an attempt to exhaust would be futile. SeeClayton v. Gibson, 199 F.3d 1162, 1170 (10th Cir. 1999). If Mr. James had presented a successive post-conviction application, the Oklahoma courts would have deemed the claim procedurally barred. Oklahoma bars Cooper claims presented for the first time in a successive post-conviction application even if, as is the case here, the direct appeal and first post-conviction application were final before Cooper was decided. In 1995 Oklahoma amended its post-conviction procedures to bar post-conviction relief where the claim was not raised on direct appeal unless the petitioner can show the issue "could not have been raised in a direct appeal." Okla. Stat. 22, § 1089(c)(1). Applying this standard, the Oklahoma Court of Criminal Appeals reasoned that the challenge to the clear and convincing burden of proof could have been raised by a petitioner on direct appeal, even though Cooper had not been decided, because the legal basis for the challenge pre-dated the Supreme Court's decision. See, e.g., Scott v. State, 942 P.2d 755, 758 (Okla. Crim. App. 1997); Walker v. State, 940 P.2d 509, 510 (Okla. Crim. App. 1997); Walker v. State, 933 P.2d 327, 338-39 (Okla. Crim. App. 1997). Presentation of this claim to the Oklahoma courts would thus have been futile, and Mr. James' failure to exhaust should be excused. SeeClayton, 199 F.3d at 1170. 

Even if failure to exhaust is excused, however, procedural competency claims may otherwise be procedurally barred. SeeRogers v. Gibson, 173 F.3d 1278, 1289 (10th Cir. 1999), cert. denied 120 S. Ct. 944 (2000). Thus, a claim that has been defaulted in state court on an adequate and independent state ground will be considered on federal habeas review only if the petitioner shows cause and prejudice to excuse the default or shows a fundamental miscarriage of justice will result if the claim is not considered. See Clayton, 199 F.3d at 1170-71. "To be adequate, a state's procedural rule must have been firmly established and regularly followed when the purported default occurred." Id. at 1171. 

The 1995 Oklahoma statutory amendments "greatly circumscribed" the court's power to apply intervening changes in the law to post-conviction applicants. Valdez v. State, 933 P.2d 931, 933 n.7 (Okla. Crim. App. 1997). Prior to the amendments, Oklahoma law would not have barred Mr. James from challenging the clear and convincing standard for the first time in a post-conviction application. SeeRogers, 173 F.3d at 1290. Mr. James filed his direct appeal and application for post-conviction relief in the state courts in the 1980s. Therefore, his purported default occurred well before the 1995 amendments. We have made clear that a defendant cannot be expected to comply with a procedural rule that did not exist at the time of the purported default. See Walker v. Attorney General, 167 F.3d 1339, 1343-44 (10th Cir.), cert. denied, 120 S. Ct. 449 (1999); see also Rogers, 173 F.3d at 1290. Consequently, the 1995 amendments are not an adequate state ground in this case for procedural default, and Mr. James' failure to challenge the clear and convincing evidence standard on direct appeal or in his first post-conviction application does not bar federal habeas review of the claim. See id.

In order to prevail on a procedural competency claim, a petitioner must establish a "'bona fide doubt as to his competency'" at the time of trial. Wallace, 191 F.3d at 1242 (quoting Barnett, 174 F.3d at 1135).⁽³⁾ Mr. James was not competent to stand trial if he lacked "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," and did not have "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (quotation omitted). "Evidence of irrational behavior, demeanor at trial, and prior medical opinion regarding competence are relevant to a bona fide doubt inquiry." Wallace, 191 F.3d at 1243. 

The record does not persuade us there was a bona fide doubt regarding Mr. James' competence to stand trial. The defense's own witness, Dr. Garcia, testified that he had observed and evaluated Mr. James over a seventeen day period during which Mr. James was a patient at Eastern State Hospital. Dr. Garcia observed no organic brain syndrome at the time and diagnosed Mr. James with a schizoid personality disorder which only slightly affected his decision making ability. In Dr. Garcia's opinion, Mr. James was competent, able to comprehend the nature of the charges and proceedings against him, and capable of assisting his legal defense. Based on Dr. Garcia's testimony, the trial court found Mr. James competent. Dr. Ruedi, who did not testify but who examined Mr. James for competency, also concluded he had an adequate factual and rational understanding of the charges and the possible outcome of a guilty verdict, could assist in the preparation of his defense, and was competent. 

There was no evidence that Mr. James' competency changed from the time of the competency hearing to the time of trial, at which he testified during both stages. See Drope v. Missouri, 420 U.S. 162, 181 (1975). Mr. James was lucid, understood the charges against him, and participated in his own defense. SeeNguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997). The record indicates he responded coherently, logically, and responsively to the questions asked. SeeFoster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999), cert. denied 120 S. Ct. 1438 (2000). He did not engage in the sort of irrational or unusual behavior during trial which would lead the court to question his competency. SeeBryson v. Ward, 187 F.3d 1193, 1204 (10th Cir. 1999), cert. denied, No. 99-8086, 2000 WL 157210 (U.S. Apr. 3, 2000). Moreover, the trial court, having ample opportunity to assess Mr. James' ability to understand the proceedings and assist counsel, did not indicate any concerns about his competency. See Foster, 182 F.3d at 1191. Because Mr. James has failed to show a bona fide doubt regarding his competence, his procedural competency claim fails.
 

 
Here, the state trial court instructed the jury as follows:

You are instructed that under the State Constitution, a Governor is empowered to grant a reprieve,pardon or commutation of a sentence following conviction of the crime.

Under this power, a Governor may in the future commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole.

So that you will have no misunderstandings relating to a sentence of life without the possibility of parole, you have been informed generally as to the Governor's commutation modification power. You are now instructed, however, that the matter of a Governor's commutation power is not to be considered by you in determining the punishment for thisdefendant.

You may not speculate as to if or when a governor would commute the sentence to a lesser one which includes the possibility of parole.

As we have previously explained, this instruction was misleading because it told the jury that the Governor had the power to commute Coleman's sentence but left out the additional hurdles to be overcome to obtain such a commutation. When a person has two prior felony convictions, as Coleman did, he must apply directly to the Governor to have his sentence commuted. See Cal. Penal Code S 4802. The Governor must then confer with the Board of Prison Terms, and may commute the defendant's sentence only upon the written rec- ommendation of four justices (a majority) of the California Supreme Court. See Cal. Const., Art. 5 S 8; Cal. Penal Code SS 4802, 4813, 4852. The instruction given to Coleman's jury failed to include this additional information. It was, therefore, misleading. It suggested the Governor could, at his sole discretion, commute a sentence from life imprisonment without the possibility of parole to some lesser sentence that would include the possibility of parole.

Not only was the instruction misleading, it was constitutionally infirm because it discouraged the jury from giving due weight to Coleman's mitigating evidence. See McLain v. Calderon, 134 F.3d 1383, 1386 (9th Cir. 1998); Hamilton, 17 F.3d at 1162-63; cf. Boyde, 494 U.S. at 380; but see People v. Hart, 20 Cal. 4th 546, 656 (1999) (holding that although a similar instruction was incomplete it was not constitutionally deficient in view of the trial judge's other comments), cert. denied, _______ U.S. _______, 120 S. Ct. 811 (2000). By explaining that the Governor was entitled to commute the sentence and by directing the jury not to speculate about that fact, the instruction "invited the jury to assume that the question of [Coleman's] release would automatically come before" the Governor. Hamilton, 17 F.3d at 1161. We have previously held that this inference is unconstitutional because it invitesthe jury to speculate that the only way it can avoid a defendant's release is to sentence him to death. See id. at 1162; see also McLain, 134 F.3d at 1386. In this way, the jury was diverted from its task by having its attention focused on the Governor's ill-defined commutation power rather than the mitigation evidence introduced during the penalty phase. See Hamilton, 17 F.3d at 1162-63.

Having determined that the instruction was constitutionally infirm, we now consider whether the instruction was nonetheless harmless under Brecht. In this part of our analysis, we consider whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). If we are in grave doubt as to whether the error had such an effect, the petitioner is entitled to the writ. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

We conclude the instruction did have a substantial and injurious effect or influence in determining the jury's verdict.

We begin with the instruction itself. The instruction was not only unconstitutionally misleading, it undermined the very core of Coleman's plea for life. Although an accurate description of sentencing alternatives would have helped the jury focus on its task of evaluating whether the circumstances of this case and the characteristics of this defendant warranted a death sentence, the jury was invited to speculate that the only way it could be assured Coleman would not be released would be to sentence him to death.

The prosecutor's closing argument exacerbated the impact of the misleading instruction by emphasizing the threat Coleman posed to the general public. Cf. Hamilton, 17 F.3d at 1162. The prosecutor argued that not only would Coleman pose a continuing threat to prison personnel if he were sentenced to life in prison, he would remain a risk to "all of us" if a death sentence were not imposed. He explained Coleman was unable "to coexist in society as we know it " and implored the jury to impose death, not only to protect prison employees, but "for our benefit as well." These arguments referring to Coleman's danger to "all of us" reinforced the instruction's suggestion that if he were not sentenced to death, he could be paroled into society by the singular whim of a Governor. This focused the jurors' fear on Coleman's possible release. See Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 4 (1993) ("Our data confirm that jurors' deliberations emphasize dangerousness and that misguided fears of early release generate death sentences.").

The State argues the prosecutor's argument did not focus the jurors on the risk of Coleman's release, nor were the jurors misled by the erroneous instruction. The State contends that Coleman's mitigation evidence was inconsequential, and the jurors could not have been confused because they returned a verdict of death in less than three hours. We find this argument unpersuasive. The short period of deliberation is more likely explained by the jurors' focus on the fear Coleman might be paroled if he were not sentenced to death, and their singular attention to that concern to the exclusion of the other factors they were instructed to consider. See Cal. Penal CodeS 190.3. At the very least, we "cannot say with fair assurance,after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Kotteakos, 328 U.S. at 765. Accordingly, we affirm the district court's judgment granting Coleman's habeas petition as to his sentence of death. 
 

MISSOURI MATERIALS FROM 

Habeas Corpus Petitions (Federal)

Faye Copeland
Battered Woman - duress
pdf: 0016703

James Chambers
Self Defense
pdf: 0000574

Habeas Corpus Petitions (State)

Ed T. Reuscher
Petition
pdf: 0013738

Traverse

Lloyd E. Schlup
innocence
pdf: 000351901

Faye D. Copeland
Anti-terrorism and Effective Death Penalty Act
pdf: 0018843

Sample Motions

Stay of Execution
pdf: 0008648

Fedral Rule 60 (b)
pdf: 0005223

Funds
Chambers
pdf: 0013128

Fedral Rule 59 (e) motoion
pdf: 0017648

Faye Copeland
Motion for Hearing
pdf: 19205

Clemency Petitions

Bobby Lewis Shaw
Mental retardation
pdf: 0007583

Lloyd E. Schlup
innocence
pdf: 0009045

Steven W. Parkus
insanity
pdf: LGD0069

Motion for Rehearing

Joseph Amrine
pdf: 0014975

Steven W. Parkus
pdf: 0016953

Briefs

Schlup v. Delco
Supreme Court
pdf: 0010249

Parkus v. Bowersox
Ineffective Counsel
pdf: B0081

State v. Edwards
Battered woman syndrome, self defense
pdf: SD00017

State v. Cook
Discovery violation
pdf: 0018254

Wilkins v. Delo
invalid guilty plea
pdf: 0011379

Certiorari Petitions

Ed T. Reuscher
pdf: 0012673

Schlup v. Delo
pdf: 0011718

Motion to Recall Mandate

Ed T. Reuscher
pdf: 0012673

Post-Hearing briefs

Lloyd E. Schlup
innocence
pdf: INNOCEB

Lloyd E. Schlup
ineffctive counsel
pdf: IACHARG

Steven W. Parkus
ineffctive counsel
pdf: E0012768

Joseph Amrine
innocence
pdf: B018001

Former Virginia Governor Urges Admission of New Evidence
In a recent editorial, L. Douglas Wilder, former Governor of Virginia, stated: 
 "The General Assembly of Virginia has concluded another year of activity without addressing one of the glaring needs of improvement in the criminal-justice system. That need is to change the law relative to the admission of evidence as it relates to persons who have been sentenced to death under the laws of the Commonwealth. 
"Virginia has shown itself to be a leader on any number of occasions. The irony here is that the state that has been in the vanguard of promoting advancements in forensic evidence and the efficacy of DNA still refuses steadfastly to discard the ancient 21-day rule of law excluding evidence discovered after the trial.... 
"If the 21-day rule was imposed on Governors as well as on the courts, then the inmate whose life I spared would now be dead." (Op-ed, Richmond Times-Dispatch, 5/9/00) 

Abolition of New Hampshire Death Penalty Supported by Judiciary Committee and Residents
As the New Hampshire Senate Judiciary Committee voted 5-1 to recommend that the state's death penalty law be repealed, a new poll by Northeastern University found that 55% of New Hampshire residents support abolition of the state's death penalty, 35% oppose it, and 10% are undecided. The poll, released on May 8, also shows that 78% of residents believe the death penalty is too arbitrary, and 60% believe it is better to put murderers in prison for life than to risk executing an innocent person. 
The bill recommended by the Judiciary Committee would eliminate executions as a sentencing option and replace it with life in prison without parole. In March, the House approved the bill 191-163. (Associated Press, 5/8/00 and 5/5/00) 

Innocent Inmate Cleared by DNA Evidence 
After spending 14 years in prison in Indiana, Jerry E. Watkins' conviction was overturned by a federal judge. In setting aside Watkins' murder conviction and 60-year sentence, Judge Hamilton stated that DNA analysis, not available at Watkins' trial, and other newly discovered evidence would result in a different verdict today. He also cited the failure of prosecutors and investigators to disclose exculpatory evidence to the defense. Watkins' attorney, Joseph Cleary, said Watkins was fortunate not to have received the death penalty. "Theoretically, he could be dead," said Cleary. (Associated Press, 4/26/00) 

Local Governments Urging Death Penalty Moratoriums 
Montgomery County (MD) and Buffalo (NY) became the latest local governments to join Atlanta, Baltimore, Chapel Hill (NC), Philadelphia, Rochester, San Francisco, and other local governments in passing resolutions urging a halt to executions. A complete listing of the over 800 institutions, organizations, and faith communities that have urged a moratorium is available from the Quixote Center. (Quixote Center release, 5/3/00)   New Resources
"Breaking the Most Vulnerable Branch: Do Rising Threats to Judicial Independence Preclude Due Process in Capital Cases?" This law review article is the edited transcription of remarks by Stephen B. Bright, Charles F. Baird, Penny J. White, George H. Kendall, Stephen F. Hanlon, and Charles J. Ogletree, Jr. The speakers were panelists at a program of the American Bar Association at its Annual Meeting in Atlanta on August 9, 1999. The panel discussed how due process in capital cases is adversely affected by political attacks on the judiciary. (31 Columbia Human Rights Law Review 123 (1999))   "Justice on Trial: Racial Disparities in the American Criminal Justice System" This report by Ronald H. Weich and Carlos T. Angulo was issued by the Leadership Conference on Civil Rights and the Leadership Conference Education Fund on May 3, 2000. It examines the unequal treatment of minorities as compared to their similarly situated white counterparts within the criminal justice system. The report addresses racial profiling, prosecutorial discretion (including death penalty cases), and the disproportionately harsh treatment of minorities in the juvenile justice system. The report also offers policy recommendations to eradicate racial inequality in the criminal justice system.   "United States of America: Failing the Future: Death Penalty Developments, March 1998 - March 2000" The latest in a series of "U.S. Death Penalty Developments" reports by Amnesty International, this edition examines international reactions to U.S. violations of human rights treaties, and highlights such death penalty issues as politicization, racism, clemency, innocence, and recent moratorium efforts. (Amnesty International, AI Index: AMR 51/03/00, April 2000)