The United States Supreme Court weighed in again this week on the issues of federalism in Jones v. United States but ducks the ultimate issue (the length of the congressional ability to legislate federal crimes) by narrowly constructing the federal arson statute. In another opinion released this week, Ohler v. United States, the Court examines waiver and holds that an appellate issue can be waived by a defendant/appellant (in this case admission of character evidence) by impeaching a defense  witness on direct examination and not allowing the government to first impeach the witness.

Interestingly, three AEDPA cases from moderate circuits  interpretting the Supreme Court's decision in Williams are offered this week, Tran v. Lindsey (9th Cir),  Hameen v. State of Delaware  (3d Cir.), and Harris v. Stovall (6th Cir.).

Finally, "in depth" this week focuses on upcoming training opportunities.

Held:  Because an owner-occupied residence not used for any commercial purpose does not qualify as property “used in” commerce or commerce-affecting activity, arson of such a dwelling is not subject to federal prosecution under §844(i). Pp. 3—10.

    (a)  In support of its argument that §844(i) reaches the arson of an owner-occupied private residence, the Government relies principally on the breadth of the statutory term “affecting … commerce,” words that, when unqualified, signal Congress’ intent to invoke its full Commerce Clause authority. But §844(i) contains the qualifying words “used in” a commerce-affecting activity. The key word is “used.” Congress did not define the crime as the explosion of a building whose damage or destruction might affect interstate commerce, but required that the damaged or destroyed property itself have been used in commerce or in an activity affecting commerce. The proper inquiry, therefore, is into the function of the building itself, and then into whether that function affects interstate commerce. The Court rejects the Government’s argument that the Indiana residence involved in this case was constantly “used” in at least three “activit[ies] affecting commerce”: (1) it was “used” as collateral to obtain and secure a mortgage from an Oklahoma lender, who, in turn, “used” it as security for the loan; (2) it was “used” to obtain from a Wisconsin insurer a casualty insurance policy, which safeguarded the interests of the homeowner and the mortgagee; and (3) it was “used” to receive natural gas from sources outside Indiana. Section 844(i)’s use-in-commerce requirement is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce. See, e.g., Bailey v. United States, 516 U.S. 137, 143, 145. It surely is not the common perception that a private, owner-occupied residence is “used” in the “activity” of receiving natural gas, a mortgage, or an insurance policy. Cf. id., at 145. The Government does not allege that the residence here served as a home office or the locus of any commercial undertaking. The home’s only “active employment,” so far as the record reveals, was for the everyday living of Jones’s cousin and his family. Russell v. United States, 471 U.S. 858, 862–in which the Court held that particular property was being used in an “activity affecting commerce” under §844(i) because its owner was renting it to tenants at the time he attempted to destroy it by fire–does not warrant a less “use”-centered reading of §844(i) in this case. The Court there observed that “[b]y its terms,” §844(i) applies only to “property that is ‘used’ in an ‘activity’ that affects commerce,” and ruled that “the rental of real estate” fits that description, ibid. Here, the homeowner did not use his residence in any trade or business. Were the Court to adopt the Government’s expansive interpretation, hardly a building in the land would fall outside §844(i)’s domain, and the statute’s limiting language, “used in,” would have no office. Judges should hesitate to treat statutory terms in any setting as surplusage, particularly when the words describe an element of a crime. E.g., Ratzlaf v. United States, 510 U.S. 135, 140—141. Pp. 3—8.

    (b)  The foregoing reading is in harmony with the guiding principle that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the latter. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575. In holding that a statute making it a federal crime to possess a firearm within 1,000 feet of a school exceeded Congress’ power to regulate commerce, this Court, in United States v. Lopez, 514 U.S. 549, stressed that the area was one of traditional state concern, see, e.g., id., at 561, n. 3, and that the legislation aimed at activity in which neither the actors nor their conduct had a commercial character, e.g., id., at 560—562. Given the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question that would arise were the Court to read §844(i) to render the traditionally local criminal conduct in which Jones engaged a matter for federal enforcement. United States v. Bass, 404 U.S. 336, 350. The Court’s comprehension of §844(i) is additionally reinforced by other interpretive guides. Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Rewis v. United States, 401 U.S. 808, 812, and when choice must be made between two readings of what conduct Congress has made a crime, it is appropriate, before choosing the harsher alternative, to require that Congress should have spoken in language that is clear and definite, United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221—222. Moreover, unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes. Bass, 404 U.S., at 349. To read §844(i) as encompassing the arson of an owner-occupied private home would effect such a change, for arson is a paradigmatic common-law state crime. Pp. 8—9.
178 F.3d 479, reversed and remanded.

    Ginsburg, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined.
Jones, Dewey J. v. United States (No. 99-5739)
Petitioner [PDF] 
Respondent (United States) [PDF] 
Petitioner - Reply [PDF] 
Amicus: Pacific Legal Foundation [PDF] 
Amicus: Center for the Original Intent of the Constitution [PDF] 
Amicus: Cato Institute [PDF] 
Amicus: Dale Lynn Ryan [PDF]
Amicus: National Association of Criminal Defense Lawyers et al. [PDF] 

Held:  A defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal. Ohler attempts to avoid the well-established commonsense principle that a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted by invoking Federal Rules of Evidence 103 and 609. However, neither Rule addresses the question at issue here. She also argues that applying such a waiver rule in this situation would compel a defendant to forgo the tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling. But both the Government and the defendant in a criminal trial must make choices as the trial progresses. Ohler’s submission would deny to the Government its usual right to choose, after she testifies, whether or not to use her prior conviction against her. She seeks to short-circuit that decisional process by offering the conviction herself (and thereby removing the sting) and still preserve its admission as a claim of error on appeal. But here she runs into the position taken by the Court in Luce v. United States, 469 U.S. 38, 41, that any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Only when the Government exercises its option to elicit the testimony is an appellate court confronted with a case where, under normal trial rules, the defendant can claim the denial of a substantial right if in fact the district court’s in limine ruling proved to be erroneous. Finally, applying this rule to Ohler’s situation does not unconstitutionally burden her right to testify, because the rule does not prevent her from taking the stand and presenting any admissible testimony she chooses. Pp. 2—7.
169 F.3d 1200, affirmed.

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

Ohler, Maria S. v. United States (No. 98-9828)
Petitioner [PDF] 
Respondent [PDF]
Amicus: National Association of Criminal Defense Lawyers et al. [PDF] 

Having completed our review of the Supreme Court's ex post facto cases we now return to consideration of our obligations under Williams v. Taylor. As we have indicated the "contrary to" and "unreasonable application" clauses in 28 U.S.C. S 2254(d)(1) have independent meaning. See Williams v. Taylor, 68 U.S.L.W. at 4275. Thus, claims may fit within one of these clauses more "comfortably" than the other. See id. But still when a petitioner presents a claim as does Ferguson which challenges a statutory scheme rather than only the outcome in a particular case we believe that we have an obligation to make our analysis under both clauses, particularly inasmuch as Ferguson has presented his ex post facto claim under both clauses.

We turn to the "contrary to" clause first as 28 U.S.C. S 2254(d)(1) lists it first. In light of our foregoing analysis of the Supreme Court's ex post facto cases, we conclude that the Court has established certain ex post facto rules with sufficient specificity so that we may make a determination under the AEDPA whether the Delaware Supreme Court's decisions in Cohen and Ferguson were contrary to clearly established federal law as determined by the Supreme Court of the United States. In particular, under the framework set forth in Collins, a law violates the Ex Post Facto Clause if it is both retrospective and increases the penalty by which a crime is punishable, a standard which requires the petitioner to show that the law retrospectively increased or made more onerous the "quantum of punishment" attached to the crime. The infringement of a "substantial right" or a showing of a mere"disadvantage" as a result of a new law is insufficient.

In addition, as the Court explained in Dobbert  and Collins, a law is "merely procedural," and not ex post facto, if it simply alters the methods employed in determining the punishment to be imposed as opposed to working a substantive change in the quantum of punishment attached to the crime. Moreover, the Court consistently has applied these rules, and they are quite specific. Thus, we conclude that the Supreme Court cases formulate rules to apply when an ex post facto claim is made so that we can consider the Delaware Supreme Court's decision in Cohen, and hence its decision in Ferguson, under the AEDPA's "contrary to" clause. . . . 

It is unquestionable that the changes enacted by the amended Delaware law simply have "altered the methods employed in determining the punishment to be imposed." For example, like the law at issue in Dobbert , Delaware's amended law reassigned the task of imposing sentence from the jury to the court, a change which Ferguson's attorney at oral argument before us acknowledged in itself did not implicate ex post facto concerns and in light of Dobbert hardly could have done so.4  In addition, the amended statute retained life imprisonment or death as the range of sentences for first-degree murder, and merely redesigned the method or formula for determining which of the two sentencing choices should be imposed in a given case. Thus, we are satisfied that the amended Delaware law fully justified the state court's reliance on Dobbert and its conclusion that the changes were "merely procedural."

Nevertheless we must continue our analysis because at the time of Ferguson's offenses, Delaware did not require a death sentence when aggravating circumstances were found to outweigh mitigating circumstances, as the jury could impose a sentence of life imprisonment in that circumstance. At the time of his sentencing, however, the amended law required a death sentence once the court determined that aggravating circumstances outweighed mitigating circumstances.

While these changes arguably implicate the holding under Lindsey, the Delaware Supreme Court in Cohen distinguished Lindsey by ruling that the amended law

 is not `mandatory' . . . [because] imposition of the death penalty is based upon the predicate factual findings made by the jury and trial judge as to aggravating and mitigating circumstances. The existence of such factors and their relative weight, although ultimately determined by the trial judge, do not mandate a death sentence unless the aggravatingfactors outweigh the mitigating circumstances. Thus, the new law is not `impermissibly mandatory.'

Cohen, 604 A.2d at 855. As we have indicated, in support of this proposition the court cited Walton v. Arizona, 497 U.S. at 650-52, 110 S.Ct. at 3056; Blystone v. Pennsylvania, 494 U.S. at 306-07, 110 S.Ct. at 1083; Boyde v. California, 494 U.S. at 374, 110 S.Ct. at 1195; and Proffitt v. Florida, 428 U.S. at 260-61, 96 S.Ct. at 2970. Of course, each of those cases presented a challenge to a death penalty statute under the Eighth Amendment which prohibits the imposition of an "impermissibly mandatory" death sentence, i.e., a death sentence that is imposed automatically upon conviction without an individualized inquiry into the defendant and the nature of the crime. See, e.g., Blystone, 494 U.S. at 305, 110 S.Ct. at 1082-83. The cases nevertheless are germane to the question of whether the amended sentencing statute "increased the quantum of punishment" for Ferguson's capital offenses, which is the relevant inquiry under the Ex Post Facto Clause, as the ex post facto inquiry considers the alleged mandatory aspects of a sentencing. See Lindsey, 301 U.S. at 400, 57 S.Ct. at 798-99; see also Morales, 514 U.S. at 506 n.3, 115 S.Ct. at 1602 n.3.

The Delaware Supreme Court in Cohen further distinguished Lindsey and its own opinion in Dickerson by ruling that a death sentence under the amended law is not truly "mandatory" because the trial court must assign a "relative weight" to the aggravating and mitigating evidence before it determines which sentence, life imprisonment or death, is required by the statute. Therefore, given the presence of a "weighing process," the Delaware courtconcluded that "[t]he sentencing process remains basically discretionary, merely shifting the ultimate decision from the jury to the trial judge." Cohen, 604 A.2d at 855.

Thus, though the jury convicted Ferguson of first-degree murder the court did not impose a death sentence automatically. Rather, it held a separate hearing to determine whether to impose a sentence of life imprisonment or death. Before imposing sentence, the trial court weighed the evidence presented at the hearing as well as the jury's sentencing recommendation, and then made a determination that in Ferguson's case the aggravating circumstances outweighed the mitigating circumstances. Obviously, the court could have reached the opposite result in this inherently subjective evaluation for aggravating circumstances cannot outweigh mitigating circumstances in the definitive sense that a ton necessarily outweighs a pound. Accordingly, it is perfectly clear that, as the Delaware Supreme Court explained, the "weighing process" effectively insured that the death penalty was a discretionary maximum sentence, and therefore, the death sentence was not "mandatory" in the sense contemplated in Lindsey.

The district court agreed with the Delaware Supreme Court's analysis, citing the following rationale:

The current case is somewhat different from Lindsey.

The revised Delaware statute does not make the maximum penalty for first-degree murder, death, mandatory. The options remain the same: life imprisonment or death. The difference is that under the old statute the decisionmaker needed to weigh the aggravating and mitigating factors, but was not  necessarily compelled by the outcome of that weighing process. Under the revised law, if the aggravating  circumstances are found to outweigh the mitigating circumstances, then a decision of death is commanded.  If the opposite conclusion is reached, a sentence of life  imprisonment is required. The discretion of the sentencing authority is therefore not eliminated, but is restricted to a reasoned consideration of relevant aggravating and mitigating circumstances. The sentencing decision has not been reduced to a mechanical exercise, as it was in Lindsey.

Ferguson v. State, 1996 WL 1056727, at *9.

We find this analysis compelling and thus we will not hold that Lindsey "required" the Delaware Supreme Court to find that the amended law violated the Ex Post Facto clause or that there was an ex post facto violation in this case. Indeed, in our view we could not possibly hold that the Delaware Supreme Court's opinions in Cohen  and Ferguson were "opposite" to any opinions of the Supreme Court. While Delaware's amended law undoubtedly established standards for a trial court to consider when imposing sentence in a capital case, the law did not eliminate discretion from the sentencing process, something which Lindsey suggested is required to establish an ex post facto violation. See Lindsey, 301 U.S. at 400-01, 57 S.Ct. at 798-99.

We recognize that the amended law eliminates the possibility that a defendant will receive a life sentence on the basis of a single juror refusing to vote for death.

Consequently, we think that it is reasonable to believe that the amended law makes it more likely that a defendant will receive a death sentence than would have been the case under the earlier law. But that circumstance only establishes that a defendant is "disadvantaged" by the amended law, which is an insufficient basis to establish an ex post facto violation unless the change in the law actually increased the quantum of punishment for the offense. 

In sum, we have considered all of the Supreme Court cases and simply cannot find that the decisions of the Supreme Court of Delaware in Cohen and Ferguson  are contrary to any of them, at least to the extent that they have not been overruled. In fact, we would have reached the result we do even if we exercised independent judgment in the way required before the adoption of the AEDPA. See Williams v. Taylor, 68 U.S.L.W. at 4274. In the circumstances, if we found an ex post facto violation here we surely would be unfaithful to our obligations under the AEDPA.

Our conclusion that the decisions in Cohen and Ferguson upholding the amended law do not violate the "contrary to" clause of the AEDPA takes us to the question of whether the Delaware court's result nevertheless was an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. S 2254(d)(1). In considering this possibility we will not repeat our analysis of the Supreme Court cases. Rather, we merely state that we are satisfied that we cannot hold that the Delaware Supreme Court's opinions in Cohen and Ferguson were an unreasonable application of clearly established federal law as determined by the United States  Supreme Court. Quite to the contrary, we have no basis to hold that the Delaware Court unreasonably applied the Supreme Court's ex post facto cases to the facts of this case or unreasonably refused to extend ex post facto principles to this case. See Williams v. Taylor, 68 U.S.L.W. at 4276. Indeed, we think that the Delaware Supreme Court reached the correct result and, as we have indicated, even exercising the independent judgment required by pre- AEDPA law we would have come to the result it did.

We close our consideration of the ex post facto issue with a final observation. Ferguson argues that under the amended law the percentage of defendants convicted of first degree murder sentenced to death has increased substantially from the percentage under the earlier law in effect at the time of his offenses. This contention, however, even if true is without legal significance because the legislature neither has increased nor made mandatory the penalty for first-degree murder and the mere fact, if such be the case, that the change disadvantaged Ferguson and other defendants in capital cases cannot lead us to a different result. Moreover, we must consider the increased imposition of the death penalty against the circumstance that under the amended law the court as opposed to a unanimous jury must determine to impose a death penalty. Surely it would be expected that, in light of that difference, there would have been more sentences of death. Yet, as we have indicated, Ferguson acknowledges that the transfer of the responsibility to make the ultimate decision to the court does not in itself raise ex post facto concerns and plainly it does not. Thus, we reject Ferguson's ex post facto arguments.
 

In his first argument, Bradley asserts that neither his statement nor the evidence obtained from his home should have been admitted at trial because both were obtained in violation of the Fourth and Fifth Amendments to the Constitution. As to Bradley's argument that his Fourth Amendment rights were violated, we find that the district court correctly ruled that it was precluded from reviewing that claim. The Supreme Court, in Stone v. Powell, has held that federal courts are precluded from conducting post-conviction review of Fourth Amendment claims where state courts have provided "an opportunity for full and fair litigation" of those claims. 428 U.S. 465, 494 (1976). 

In Stone, the Court reasoned that, so long as a defendant has had the opportunity to present his Fourth Amendment claims to the state trial and appellate courts, the objectives of the exclusionary rule have been satisfied. This Court's predecessor has held that "full and fair consideration" in the context of the Fourth Amendment includes "at least one evidentiary hearing in a trial court and the availability of meaningful appellate review when there are facts in dispute, and full consideration by an appellate court when the facts are not in dispute." Carver v. Alabama, 577 F.2d 1188, 1191 (5th Cir. 1978).²

Bradley does not contend that he was denied the opportunity to present facts to the trial court or to argue the issue before an appellate court, and in fact he did so. Rather, he argues that the procedural bar of Stone should not apply here because the Alabama courts applied the law incorrectly in evaluating his claim. The Alabama Court of Criminal Appeals determined that Bradley's statement and consent-to-search were sufficiently attenuated from Bradley's illegal arrest to render them admissible under the Fourth Amendment. In so concluding, the court relied heavily on the fact that, prior to his arrest, Bradley had initiated contact with the police, had made statements materially similar to those made after the arrest, and was generally cooperative. Given this pre-arrest conduct, the court concluded that Bradley had his own motives for continuing to cooperate with the police, and that such cooperation was therefore not the result of the illegal arrest. Although another court might not agree that Bradley's pre-arrest conduct could serve as an "intervening event" for the purposes of demonstrating attenuation between the illegal arrest and the statements Bradley gave, the Alabama courts did fully consider Bradley's claims and the caselaw on which he relied, and having done so, based their rulings on cases which did hold that pre- arrest conduct could be considered as an intervening event. We cannot now say that Bradley was denied a full and fair opportunity to litigate his Fourth Amendment claims, even were we to disagree with the state courts' analysis or conclusion. To do so would vitiate the Supreme Court's decision in Stone, which we are not empowered to do.

Bradley also argues that the statement he gave to police while in custody should have been suppressed under the protection of the Fifth Amendment because it was involuntary. It is clear that when Bradley was taken in handcuffs without a warrant to the police station, he was in fact arrested, and the arrest was illegal. The district court, and the Alabama Court of Criminal Appeals before it, so held on the grounds that the police had neither a warrant nor probable cause to arrest. 

Because Bradley was illegally arrested, in order the satisfy the protections of the Fifth Amendment, the State had to prove that any evidence obtained pursuant to that arrest was purged of the taint of illegality, or was given knowingly, intelligently, and voluntarily. Bradley does not claim that his waiver was unknowing or unintelligent. Rather, he claims that his waiver was not voluntary because the police told him that the sooner he cooperated, the sooner he would be allowed to leave. Thus, our inquiry is limited to the question whether "relinquishment of the right was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception." Dunkins v. Thigpen, 854 F.2d 394, 398 (11th Cir. 1988) (quoting Moran v. Burbine, 475 U.S. 412 (1986)).

To support his position, Bradley directs us to United States v. McCaleb, 522 F.2d 717 (6th Cir. 1977), in which the Sixth Circuit held that, for the purposes of analyzing voluntariness under a Fourth Amendment claim, the fact that the defendants had been told that they would remain in detention if they did not consent to a search was a relevant factor in assessing the voluntariness of a consent to search. We do not find McCaleb persuasive because it is quite dissimilar to the case before us. In McCaleb, the totality of the circumstances indicated only that the illegally arrested citizen merely unlocked his suitcase after the detaining officers told him that he and his companions would remain in detention until the officers obtained a warrant. Neither an oral consent nor a consent in writing was obtained by the officers. The court in that case found that the circumstances did not reflect a free and voluntary consent. 

In this case, Bradley was cooperative during his extensive conversations with the police and ultimately expressed his consent to allow the police to search his car and his home affirmatively by agreeing orally and in writing. Bradley allowed the police to collect fingernail scrapings, blood, and saliva samples. He also submitted to a polygraph examination. Moreover, the detaining officers did not indicate to him that they would obtain a search warrant absent his cooperation, and, as the Alabama state courts noted, after being informed of his Miranda rights before giving his statement and signing a consent-to-search form, Bradley expressly stated that he did not need a lawyer because he had "nothing to hide." We recognize that the giving of a Miranda warning is not necessarily dispositive of the question of voluntariness. However, the suggestion that cooperation would yield a speedier release, when considered under the totality of the circumstances here, does not constitute sufficient "police overreaching or coercion" to invalidate Bradley's waiver of his Miranda rights. Dunkins, 854 F.2d at 399

Tran v. Lindsey, No. 98-56251 (9th Cir  05/16/00) AEDPA post-Williams interpretation. "The state court ruled that, considering the totality of the relevant factors, there was probable cause for Tran's arrest. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (adopting totality of circumstances test for probable cause determnations). Were we reviewing this case de novo, we would hold that the state court's decision was erroneous; the facts adduced here were not enough to cause a person of reasonable caution to believe that Tran had participated in the robberies. . . .  Nevertheless, after reviewing the record and the relevant cases, we cannot say, applying a firm conviction standard, that the court's deci-sion was clearly erroneous. The issue is simply too close. Accordingly, we conclude that the state court's decision did not involve an unreasonable application of clearly established federal law."

Harris v. Stovall, No. 98-2308 (6th Cir. 05/18/2000) AEDPA post-Williams interpretation.  "In this appeal, Harris contends that he was denied due process of law when, as an indigent defendant, he was denied free transcripts of the earlier trial of" his co-defendants."

Smith v. United States, No. 99-3340 (6th Cir. 05/18/2000) "We are called upon to decide whether a defendant, who does not meet the "in custody" requirement of 28 U.S.C. § 2254, may attack the constitutional validity of predicate state convictions under the ACCA in a § 2255 proceeding. We conclude that we are bound to hold that such a collateral attack is impermissible under this court's previous decision in Turner v. United States, 183 F.3d 474 (6th Cir. 1999)."

Shane v. Fauver, No. 98-6205 (3d Cir. 05/19/2000) ". We hold that, under the circumstances present here, Section 803(d) of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.S 1997e(c)(1), did not change the procedures that our court previously adopted regarding the dismissal of a complaint without granting leave to amend."

May 26, 2000
Death Penalty 2000
Little Rock, Arkansas
Contact:  J. Thomas Sullivan:  501-324-9940
Sponsored by University of Arkansas at Little Rock, this program is focused on issues confronting the capital defense practitioner at trial and in post-conviction proceedings.  Topics include mental retardation, trial tactics in defense of capital cases, ethical problems in capital case, recent state and federal decision in capital cases and overlooked issues in Arkansas capital prosecutions. 

June 5-7, 2000
Advanced Defender Training
New Orleans, Louisiana
Contact:  Chuck Arberg:  202-502-4050  Email:  carberg@fjc.gov
This seminar is uniquely designed for attorneys employed in Federal Defender Offices.  The program attracts attendees from throughout the federal defender program and course sessions are for the more advanced federal court practitioner. 

June 22-25, 2000
Anthony G. Amsterdam Post-Conviction Skills Clinic New York University Law School, New York City, NY
Contact:  Linda McGrew:  800-788-9908  Email:  linda_mcgrew@fd.org
This program is an intense “learning-by-doing” seminar designed to teach the skills necessary to prepare for and conduct a post-conviction hearing in a capital case.  The program is offered to CJA panel attorneys, federal defenders and other attorneys who either currently represent, or are interested in representing, a person sentenced to death in post-conviction proceedings. 

NLADA Defender Advocacy Institute
A Client-Centered Trial Skills Program for Defenders & Assigned Counsel
June 1-6 Dayton, Ohio Sponsored by: NLADA Information: 202-452-0620 ext. 207 (Steve Stall) 
Criminal Defense Tools for the New Millennium June 8-10 Chelan, Washington Sponsored by: WACDL Information: 206-623-1302 

NCDC 2000 Trial Practice Institutes June 11-24  Macon, Georgia Sponsored by: NCDC c/o Mercer Law School Information: 912-746-4151 (Also a session in July) 

Washington Legal Ethics One day seminar designed for all practicing attorneys, regardless of their level of expertise.   June 21 Seattle, Washington Sponsored by: Lorman Education Services Information: 715-833-3959 (To Register) 715-833-3940 (General Questions)

Twentieth Annual Criminal Defense SeminarTeaching Effective Communication & Trial Skills for All Lawyers June 24-30 Laramie, Wyoming Sponsored by: Western Trial Advocacy Institute-Laramie, Wyoming Information: 307-766-2422 /Angela Hall (Student Director)

 

July 6-8, 2000
National CJA Panel Training
Boston, Massachusetts
Contact:  Carmen Hernandez:  800-788-9908 Email:  carmen_hernandez@fd.org
These seminars (see also below: National CJA Panel Training - San Antonio, Texas September 21-23, 2000) are designed for Criminal Justice Act panel attorneys who accept court appointments in federal criminal cases.  Topics include Cross Examination Workshops, Sentencing Workshops, Federal Gun Cases and Negotiating Pleas. 
 

July 27-30, 2000
NAACP Legal Defense Fund Capital Punishment Seminar
Warrenton, Virginia
Contact:  Deb Fins:  212-965-2257  Email:  straitfins@aol.com 
Attendance at this seminar is limited and is by invitation only.  This seminar covers a wide spectrum of timely capital punishment topics for the experienced capital defense practitioner, investigators, and other members of the multi-disciplinary defense team.

 

August 5-10, 2000
Santa Clara Death Penalty College
Santa Clara, California
Contact:  Ellen Kreitzberg:  408-554-4767  Web site:  www.scu.edu/law/dpc/ 
This six-day session is intended for trial counsel in capital cases.  The Death Penalty College uses the same format as programs offered by the National Institute of Trial Advocacy (NITA) and the National Criminal Defense College (NCDC), involving practical guidance through the trial of an actual case.  Only attorneys appointed in an actual capital trial are accepted.

 

 

August 17-20, 2000
National Federal Habeas Corpus Seminar
Nashville, Tennessee
Contact:  Linda McGrew:  800-788-9908 or Email:  linda_mcgrew@fd.org 
Nationally recognized habeas experts discuss legal developments since the implementation of the Antiterrorism and Effective Death Penalty Act of 1996, and how to handle a capital post-conviction proceeding.  This program focuses on representation in a capital habeas case in toto, i.e. issue identification, investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. This seminar is designed for, and attendance is limited to, Federal Defenders, Criminal Justice Act panel attorneys, and state court practitioners who are currently appointed to or seeking appointment to, a capital habeas corpus proceeding. 

 

September 8-10, 2000
National Seminar on Mental Illness and the Criminal Law
San Francisco, California
Contact:  Michael Laurence:  415-348-3800  Email:  Mlaurence@hcrc.ca.gov
The purpose of this program is to train criminal defense attorneys practicing in federal court to recognize, accurately develop and adequately present mental health evidence.  This program is also open to investigators, mitigation specialist and social workers.
 

September 14-16, 2000
Life Over Death Sponsored by the Florida Public Defender Association
Ft. Lauderdale, Florida
Contact:  Ann Adams:  850-488-6850 or Email:  fpdco@nettally.com
This seminar is invitation only and will address a variety of topics covering trial and post-conviction issues for capital defense lawyers.

 

September 15, 2000
Making the Case for Life IV, NACDL Mitigation Training
Houston, Texas
Contact:  Tanya Greene: 404-688-1202 or Email:  tgreene@schr.com 
Making the Case for Life IV is an annual NACDL CLE program that focuses on the investigation, development, and presentation of penalty phase mitigation evidence in capital cases, particularly in such areas as mental illness, physical and psychological trauma, substance abuse, and learning disabilities and mental retardation.  Faculty will also address interviewing skills, document gathering, plea negotiations, victim impact considerations, jury selection and other issues.  A significant portion of the program will be two-tiered to allow both the more experienced capital defense counsel and the newcomers in the field to receive appropriate training.

 

September 21-23, 2000
National CJA Panel Seminar
San Antonio, Texas
Contact:  Carmen Hernandez:  800-788-9908 or
Email:  carmen_hernandez@fd.org 
This seminar is designed for Criminal Justice Act panel attorneys who accept court appointments in federal criminal cases.  Topics include Cross Examination Workshops, Sentencing Workshops, Federal Gun Cases and Negotiating Pleas. 

 

The National Lw Journal reports why changing the Georgia death penalty statute may have gone too far, to quickly "Defense Lawyer Sticks Lethal  Injection Law With Odd Challenge."
(http://wwww.laws.com )

The Death Penalty Information Center reports.

New Resources
"Unequal, Unfair, and Irreversible: The Death Penalty in Virginia" - This new report, published by the American Civil Liberties Union of Virginia, examines four key aspects of the administration of capital punishment in Virginia: race, prosecutorial discretion in the charging of capital crimes, quality of legal representation for the accused, and appellate review of trials resulting in the death penalty. The report's principal findings are:

race is a controlling factor in the way the death penalty is administered in Virginia 

trial attorneys appointed to represent those on Virginia's death row are six times more likely to be the subject of bar disciplinary proceedings than are other lawyers

the U.S. Court of Appeals for the Fourth Circuit has granted relief in only one of 131 capital cases between 1978-1997.

The report is available from the ACLU of Virginia by calling (804) 644-8080.

 New Voices
Some members of the Texas Board of Pardons and Paroles have expressed doubts about Gov. George W. Bush's assertion that, "every person that has been put to death in Texas, under [his] watch, has been guilty of the crime charged." Recently, Board member and death penalty supporter, Paddy Lann Burwell, stated: "I worry that we may execute an innocent person. Any person would know that is a possibility, I think our system needs to be improved."
    Board Members Tom Moss and Cynthia Tauss, who both voted for clemency in the case of Troy Farris, also expressed doubts. The Farris case, according to Moss, was one of two cases in which he "saw something that may have indicated that [the inmate was] innocent." Tauss stated that she "cried all day" when Farris was executed for killing a police officer. "I wasn't sure he should have been given the death penalty," said Tauss. "That is why I voted to commute." (New York Times, 5/14/00)

U.S. Death Penalty Hurts International Image
Felix Rohatyn, the U.S. ambassador to France, recently made the following comments about the perception of the U.S. overseas:

"People in France admire the United States, and much of what passes for anti-Americanism is limited to the intellectual milieu of Paris. Not so in the case of the death penalty. I travel a lot. You hear opposition to the death penalty in Bordeaux, you hear it in Toulouse, everywhere. When I speak to audiences, the question always comes up. And I don't believe this is just a French phenomenon. I recently spoke to John Kornblum, our ambassador to Germany, and he told me the death penalty is the single most recurring question there." (Newsweek 5/29/00)

Historic Vote in New Hampshire on the Death Penalty
Reflecting a growing concern about the fairness and accuracy of the death penalty, on May 18, the New Hampshire Senate voted 14-10 to repeal the death penalty. The bill, which was approved by the House in March by a 191-163 vote, would replace the state's death penalty with life in prison without parole. The state has not executed anyone since 1939, and currently has no inmates on death row. (Associated Press, 5/18/00) New Hampshire is the first legislature in over 20 years to pass abolition legislation. However, Governor Jeanne Shaheen vetoed the bill on May 19. In 1979, Nebraska's Senate passed a bill to repeal the death penalty, but it was vetoed by the Governor.

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.