The Ninth Circuit reports a capital case win in the only covered capital case this week.  In Jackson v. Calderon a split panel grants a new sentencing hearing because of counsel's failure to examine his client's troubled psychological background. 

The Supreme Court in United States v. Morrison et al this week launched a bombshell taking much of the theories relating to their gutting habeas corpus jurisprudence a decade ago and moving into the realm of civil rights jurisprudence.  The five - four decision highlights the ideological split that will be resolved for good or ill this fall in the November elections, where the only real difference between the major candidates is the future shape of the Court.  The dicta in this case should be closely analyzed by any federal defense attorney as the Court's direction may well limit the reach of federal criminal law.

Three years ago this month, after a telephone call relating to the final frantic days before Kentucky's first execution the original webpage that spawned this newsletter was launched.  The page was designed to host the Harold McQueen clemency web pages without looking as if his attorneys were calling the shots after it was determined that Randy Wheeler's Criminal Law Links at the Kentucky Department of Public Advocacy couldn't host clemency materials.  After Harold was killed I wanted to build from where we had left off with Harold.  The first case law update appeared on the site, followed by Capital Defense Weekly, a few months later.  Today the site and news letter strives to help inexperienced and under resourced trial  and  appellate counsel don't again kill like those two factors intertwined to kill Harold and hundreds else like him.

In Focus this week are several websites that I recommend from around the web, especially, probono.net run by the ABA.

My apologies for a late edition as it has been a  busy last few weeks.  Please likewise note that the site might be down for a few days in the next few weeks for server maintenance.

Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents while the three were students at the Virginia Polytechnic Institute, and that this attack violated 42 U.S.C. § 13981 which provides a federal civil remedy for the victims of gender-motivated violence. Respondents moved to dismiss on the grounds that the complaint failed to state a claim and that §13981’s civil remedy is unconstitutional. Petitioner United States intervened to defend the section’s constitutionality. In dismissing the complaint, the District Court held that it stated a claim against respondents, but that Congress lacked authority to enact §13981 under either §8 of the Commerce Clause or §5 of the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for §13981. The en banc Fourth Circuit affirmed. 

Held:  Section 13981 cannot be sustained under the Commerce Clause or §5 of the Fourteenth Amendment. Pp. 7—28.

    (a) The Commerce Clause does not provide Congress with authority to enact §13981’s federal civil remedy. A congressional enactment will be invalidated only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S. 549, 568, 577—578. Petitioners assert that §13981 can be sustained under Congress’ commerce power as a regulation of activity that substantially affects interstate commerce. The proper framework for analyzing such a claim is provided by the principles the Court set out in Lopez. First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority, Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce. Pp. 7—19.

    (b)  Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws, City of Boerne v. Flores, 521 U.S. 507, 517, also does not give Congress the authority to enact §13981. Petitioners’ assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct. This was the conclusion reached in United States v. Harris, 106 U.S. 629, and the Civil Rights Cases, 109 U.S. 3, which were both decided shortly after the Amendment’s adoption. The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time, who all had intimate knowledge and familiarity with the events surrounding the Amendment’s adoption. Neither United States v. Guest,383 U.S. 745, nor District of Columbia v. Carter, 409 U.S. 418, casts any doubt on the enduring vitality of the Civil Rights Cases and Harris. Assuming that there has been gender-based disparate treatment by state authorities in this case, it would not be enough to save §13981’s civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias. Section 13981 visits no consequence on any Virginia public official involved in investigating or prosecuting Brzonkala’s assault, and it is thus unlike any of the §5 remedies this Court has previously upheld. See e.g., South Carolina v. Katzenbach, 383 U.S. 301. Section 13981 is also different from previously upheld remedies in that it applies uniformly throughout the Nation, even though Congress’ findings indicate that the problem addressed does not exist in all, or even most, States. In contrast, the §5 remedy in Katzenbach was directed only to those States in which Congress found that there had been discrimination. Pp. 19—27.
169 F.3d 820, affirmed.

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

United States v. Morrison, Antonio J., et al. (No. 99-5)
Violence Against Women Act (42 U.S.C. § 13981), Commerce Clause, rape
United States v. Morrison, Antonio J., et al. (No. 99-5)
Petitioner (Petition)
Petitioner - Appendix Vol. 1 (Petition)
Petitioner - Appendix Vol. 2 (Petition)
Petitioner - Reply (Petition)
Petitioner [ PDF ]
Petitioner - Reply [ PDF ]

The Sentencing Reform Act of 1984 replaced most forms of parole with supervised release overseen by the sentencing court. If release conditions are violated, that court may “revoke [the] release, and require the person to serve in prison all or part of the [supervised release] term … without credit for time previously served on postrelease supervision … .” 18 U.S.C. § 3583(e)(3). In March 1994, the District Court sentenced petitioner Johnson to imprisonment followed by a term of supervised release. After beginning supervised release in 1995, Johnson violated two conditions of his release. The District Court revoked his release and ordered him to serve an 18-month prison term to be followed by an additional 12 months of supervised release. The court cited no authority for ordering additional supervised release, but, under Circuit law, it might have relied on 18 U.S.C. § 3583(h), a subsection added to the statute in 1994, which explicitly gave district courts that power. Johnson appealed, arguing that §3583(e)(3) did not give the district courts power to order a new supervised release term following reimprisonment, and that applying §3583(h) to him violated the Ex Post Facto Clause. Although the Sixth Circuit had previously taken the same position as Johnson with regard to §3583(e)(3), it affirmed his sentence, reasoning that §3583(h)’s application was not retroactive because revocation of supervised release was punishment for Johnson’s violation of his release conditions, which occurred after the 1994 amendments.

Held:

    1.  Section 3583(h) does not apply retroactively, so no ex post facto issue arises in this case. To prevail on his ex post facto claim, Johnson must show, inter alia, that the law operates retroactively. Contrary to the Sixth Circuit’s reasoning, postrevocation penalties are attributable to the original conviction, not to defendants’ new offenses for violating their supervised release conditions. Thus, to sentence Johnson under §3583(h) would be to apply that section retroactively. However, absent a clear statement of congressional intent, §3583(h) applies only to cases in which the initial offense occurred after the amendment’s effective date, September 13, 1994. The Government offers nothing indicating a contrary intent. The decision to alter §3583(e)(3)’s supervised release rule does not reveal when or how that legislative decision was intended to take effect; and the omission of an express effective date simply indicates that, absent clear congressional direction, it takes effect on its enactment date, Gozlon-Peretz v. United States, 498 U.S. 395, 404. Nor did Congress expressly identify the relevant conduct in a way that would point to retroactive intent. Thus, this case turns not on an ex post facto question, but on whether §3583(e)(3) permitted imposition of supervised release following a recommitment. Pp. 4—8.

    2. Section 3583(e)(3), at the time of Johnson’s conviction, gave the District Court the authority to reimpose supervised release. Subsection (e)(3) does not speak directly to this question. And if the Court were to concentrate exclusively on the verb “revoke,” it would not detect any suggestion that reincarceration might be followed by another supervised release term, for the conventional understanding of “revoke” is to annul by recalling or taking back. However, there are textual reasons to think that the option of further supervised release was intended. Subsection (e)(1) unequivocally “terminate[s]” a supervised release term without the possibility of its reimposition or continuation at a later time. Had Congress likewise meant subsection (3) to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. That it chose “revoke” rather than “terminate” left the door open to a reading of subsection (3) that would not preclude further supervised release. The pre-1994 version of subsection (3) provided that a court could revoke a term of supervised release and require the person to serve in prison all or part of the “term of supervised release.” This indicates that a revoked supervised release term continues to have some effect. If it could be served in prison, then the balance of it should remain effective when the reincarceration is over. This interpretation means that Congress used “revoke” in an unconventional way. However, the unconventional sense is not unheard of, for “revoke” can also mean to call or summon back without the implication of annulment. There is nothing surprising about the consequences of this reading. It also serves the congressional policy of providing for supervised release after incarceration in order to improve the odds of a successful transition from prison to liberty, and no prisoner would seem to need it more than one who has tried liberty and failed. This reading is also supported by pre-Sentencing-Guidelines parole practice. Congress repeatedly used “revoke” in providing for the consequences of parole violations, and there seems never to have been a question that a new parole term could follow a prison sentence imposed after revocation of an initial parole term. Since parole revocation followed by reincarceration was not a mere termination of a limited liberty that a defendant could experience only once per conviction, it is fair to suppose that, absent some textual bar, revocation of parole’s replacement, supervised release, was meant to leave open the possibility of further supervised release, as well. “Revoke” is no such bar, and the Court finds no other. Pp. 8—19.
181 F.3d 105, affirmed.

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

Johnson, Cornell v. United States (No. 99-5153)
Ex Post Facto, supervised release, additional term
Johnson, Cornell v. United States (No. 99-5153)
Petitioner [ PDF ]
United States [ PDF ]

We have no doubt that counsel's deficiencies at the penalty phase were prejudicial. The declaration of Dr. Jackman in the district court indicates some of the mitigating matter that could and should have been presented as a part of Jackson's social history. It recites that Jackson suffered repeated beatings in childhood, and that his mother choked him when angry with him. Jackson's childhood and adolescence were characterized by neglect and instability. It notes that Jackson exhibited signs of mental illness in childhood and was diagnosed at one time as schizophrenic. In all, Dr. Jackman's report presents a very different picture of Jackson than any the jury was allowed to consider.

We conclude that the utter failure to present medical evidence was prejudicial as well. See Bean v. Calderon, 163 F.3d 1073, 1080-81 (9th Cir. 1998) (presentation of medical experts without preparation and foundation prejudicial at penalty phase), cert. denied, 120 S. Ct. 285 (1999). Dr. Mead's report indicates that he was prepared to testify that Jackson could remember little of the incident. Dr. Aniline, whose testimony in the district court was introduced as part of the "actual innocence" claim that we discuss below, testified that it could have been established to a 90% medical certainty in 1983 that Jackson was unable to think consciously at the time of the crime. Certainly medical testimony would have been available that Jackson's ability to think was grossly impaired.

The State argues that some of the evidence now relied on by Jackson cannot be accepted at face value, that declarations of family members controvert some of the family history that Jackson contends should have been presented. The State is correct that, because Dr. Jackman did not testify, the State has not had a chance to test his statement by cross-examination. See Wallace v. Stewart, 184 F.3d 1112, 1118 (9th Cir. 1999), cert. denied, 120 S. Ct. 844 (2000). But Jackson's mother in her deposition admitted hitting Jackson with "whatever I had in my hand," and that she choked him more than five but less than ten times. She said she did not choke him into unconsciousness, but that "His head is bobbing. I thought a couple of times maybe his tongue was out, and that is when I would have stopped." This evidence, alone, presents a very different picture from her testimony at the penalty phase. And with medical evidence, the jury would have been presented with a different medical picture of Jackson's state of consciousness than the one they received, which was no picture at all. Dr. Aniline presented evidence in district court indicating the kind of testimony available, and the State had the opportunity to cross-examine him. In sum, the evidence produced at the evidentiary hearing convinces us that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the [penalty] proceeding would have been different." Strickland, 466 U.S. at 694. In other words, the probability of a different result is "sufficient to undermine confidence in the outcome." Id. That probability of a different result establishes Jackson's right to relief. See Williams v. Taylor, 2000 WL 385369 at *16-17.

It is true that there was evidence of premeditation, in the guilt phase, that the jury could consider in the penalty phase. But the evidence was far from overwhelming; this is one highly unusual murder in the first degree, with an unplanned encounter between a grossly intoxicated, originally unarmed defendant and a victim suddenly ending in death. In determining the degree to which the lack of medical evidence of Jackson's actual impairment and the lack of a social history prejudiced Jackson, we keep in mind the admonition of Hendricks:

The determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors give the jury broad latitude to consider  amorphous human factors, in effect, to weigh the  worth of one's life against his culpability. Presumably the imposition of a death sentence is entrusted to a jury because it is a uniquely moral decision in which bright line rules have a limited place. In light of the whole record, and despite the substantial evidence of aggravation, we conclude that the failure of[counsel] to present mitigating evidence rendered the sentencing hearing neither fair nor reliable.

Hendricks, 70 F.3d at 1044; see also Williams v. Taylor, 2000 WL 385369 at *17 (evidence of lack of premeditation may affect jury's selection of penalty even if it does not undermine death- eligibility). As in Hendricks, we conclude that counsel's failure rendered the verdict of death unreliable, and that the writ must issue invalidating that sentence.

Coates v. Byrd (11th Cir) "We agree with the Tenth and Fifth Circuits that the time during which a petition for writ of certiorari is pending, or could have been filed, following the denial of collateral relief in the state courts, is not to be subtracted from the running of time for 28 U.S.C. § 2244(d)(1) statute of limitations purposes."

Jordan v. Lefevre (2nd Cir)  "The trial judge in this case made no effort to comply with the letter, much less the spirit, of Batson. Rather, he engaged in a perfunctory exercise designed to speed the proceedings along. Without hearing any argument from defense counsel, the judge declared it was not then necessary that the prosecutor provide a race neutral basis for his challenges, but asked him to provide one in order to save time. This does not constitute a meaningful inquiry into the question of discrimination. Batson requires a trial judge to ensure that a defendant on trial is afforded the equal protection of the law. This is precisely what the trial court failed to do. Because the court did not make the required determination at the third Batson step, we must reverse the portion of the judgment that denied petitioner's habeas application based on a violation of Batson. We therefore direct the district court to, in its discretion, hold a hearing to reconstruct the prosecutor's state of mind at the time of jury selection, or if the passage of nine years since Jordan's trial and other circumstances should have made such a determination impossible or unsatisfactory, to order that the state grant Jordan a new trial."

Luberda v. Trippett (6th Cir)  "This appeal raises the question whether a federal habeas petitioner's disregard of a Michigan rule of appellate procedure, enacted after the petitioner's state conviction but before the submission of his case to the Michigan Court of Appeals, may operate as an "adequate and independent state procedural bar" to preclude federal habeas review. We think it may and we will affirm."

United States v. Mason (7th Cir) " On appeal, we consider: 1) whether Mason, in  his plea agreement, waived the right to seek post-conviction relief; and 2) if not, whether the district court erred in denying Mason's sec. 2255 motion alleging ineffective assistance of counsel."

Graham v. Dormire (8th Cir)  Affirm on the question of whether comment on silence in closing was was appropriate.

Holman v. Kemna (8th Cir) In a fact specific holding a contentious confession is held not to be error  under Miranda.

Shands v. Purkett (8th Cir) Trial counsel's failure to perfect anappeal  manes petitioner may get another bite at the state court appeal.

Ferdinand v. Dormire (8th Cir) Claims resting on ineffective assistance of counsel and ex post facto clause violations turned denied.

Garrett v. US (8th  Cir) "Garrett contends on appeal that (1) he was denied due process by the district court's refusal to grant a severance at trial; (2) the government's promise of leniency in exchange for testimony from a criminal trial witness violated 18 U.S.C. § 201(c)(2) (the Singleton 2 issue); and (3) the enhanced sentence he received for distribution of crack cocaine was invalid because the government failed to prove that the drug was crack cocaine."

Probono Net (Probono.net) 

For those who haven't subscribed to the incredible collection of resources available for free at probono.net please do so.  Although a quick and painless registration is required (for which you receive a mouse pad in the mail) the materials gathered on that site easily make it one of the five must visit sites for death penalty practitioners on the web. With briefs and motions from many states,  the site also contains details of several projects underway by the ABA and others to help make reference materials available on a national scale.

Launched the same time last summer as the Toolbox moved unto its own server, this incredible site for briefs and motions and guides, and much, much, more.  A must visit site

If there is a better legal website on the net I have not seen it.  Case law updates are posted nearly daily. Contents include  every brief (including amici) in every case before the Supreme Court this term. A quick overview of  habeas corpus and the AEDPA.  Constitutional law overviews are also provided for those areas of the law when you need a quick update on what the state of the law is in all those areas you haven't examined since law school.

Possibly my favorite legal website, this site is packed with news and views every practitioner needs.  A free daily headlines service has proven invaluable.  Essays, news, and classifieds (http://lawjobs.com) from across the country our available.
The site is also where I found out that I passed the New York bar several years ago  which could be another reason as to my enjoyment of the site.

The website for one of the most effective organizations for human rights in this country.  DPIC's website contains data on just about every non-legal issue one might think about with the death penalty.  Dick Dieter and crew also give an excellent running account of the news of capital punishment/human rights community.

The Clark County Prosecutor (http://www.clarkprosecutor.org/):  arguably the largest collection of death penalty links anywhere on the net.  It is a great place to begin a first search on capital punishment issues. 

Court TV (courttv. com)  The website for TV's law channel,  the site contains information on many active cases, included a near complete brief bank on several high profile celebrity cases.

Canadian Coalition to Abolish the Death Penalty (ccadp.org):  Run on a shoestring budget, this website has quickly become a hub for abolitionists on the web. Offering numerous "free" websites for inmates, this site has served as a way for many inmates to humanize themselves n the face of the world.  This is one of three sites (along with DPIC's and CapDefNet's) that have no doubt saved lives.

Criminal Law Links ( http://dpa.state.ky.us/~rwheeler ):  The grand daddy of all the death penalty link sites (along with Links toward Abolition), this site is slightly dated but still invaluable.  A Capital Defender's Toolbox and Capital Defense Weekly are a direct descendant of that site when agency hosting the criminal law links banned advocacy for Harold McQueen on that site during the clemency drive for Harold's life.

Citizens United for Alternatives for the Death Penalty (cuadp.org)  The website is underpowered and infrequently updated. (Yes Abe, that is a hint)  CUADP is, however, one of the most influential per person activist groups in the country. This website is included because this is arguably one of the most influential groups in  changing the face of the argument on the death penalty in this country, adopting a gradualist approach to abolition.

National Association of Criminal  Defense Lawyers (nacdl.org) The largest organization of criminal defense lawyers in the country with many great links ( and articles in the Champion) this is a should visit site.

National Coalition to Abolish the Death Penalty (NCADP.org) One of the nation's umbrella groups for advocacy against he death penalty.  The organizations website, unfortunately, has not kept pace with their mission.  

Rights International (http://www.rightsinternational.org/)  A fantastic source for intentional law materials.  If international law issues might even potentially  be in your case you might want to pay this easy to navigate site a visit.

Hieros Gamos (hg.org) Hieros Gamos, established in 1995,  is one of the leading legal and government portals. With more than 60 million page views per month, HG is the only global  legal and government portal.  The site size limits its ease of  maneuver (however they do a great job all things considered).  Somewhere on this site is the answer to almost any legal search.  

Internet Legal Resource Guide (irlg.org) New to the Net? Great resource for those beginning out in exploring what is on the net.  

Jurisline (http://jurisline.com)  A small, compact site, this sites greatest appeal is the ability to feed in a case site and get a case instantly.  Is it Westlaw or Lexis? No, but is it a good substitute when you are on the road and don't have access? yes.

Versuslaw.com (http://versuslaw.com) Like Jurisline, this a great cheap way of doing legal research on the net.  A little more robust than Jurisline, and at a cost of $7 a month this is a great "first search" tool when you pay for Lexis or Westlaw by the seeming second.  An interesting new feature with this site, is that 10 dollars a month they will send you a list of every capital decision decided each month, however, it will not have any description of what the case is and, I suspect, might include cases that merely include the words "death penalty."

Prairielaw (http://Prairielaw.com) A great site that hosts many legal discussion groups, this site is a great compliment to Findlaw.com. Between the two sites 80% of legal questions can be answered.
 

 
Errata

New Voices:
Death penalty supporters who became members of the National Committee to Prevent Wrongful Executions recently explained some of their concerns about the application of the death penalty (Washington Post, 5/14/00): 
• Kurt Schmoke, former Mayor of Baltimore, who authorized the death penalty in 12 murder cases while serving as a Maryland State's Attorney, said, "[W]hat I have learned is that the disparities are enormous in who gets put to death in this country." Those inconsistencies make it "almost a roll of the dice" whether convicts die for their crimes, he said. "There is no common standard from one jurisdiction to the next."
• William Sessions, the director of the FBI under Presidents Reagan and Bush said, "When I came to the FBI we had no capacity to use and review DNA evidence, but by December of 1988, we had a program that became the national model. Out of the first 100 cases where we tested prisoners, 33 people who had been identified by witnesses and by serology [blood type identification] as being the criminals involved were exonerated by DNA testing." 

   "There are 3,500 people on death row," Sessions said, "and many have been there for years, long before DNA evidence was available. As a prosecutor and a judge and an FBI director, I want to be sure we've got the right people. And now we can be." 

A discussion list for legal professionals 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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List owner:   capitaldefense-owner@onelist.comAs always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.