This issue is dominated, as many issues often are, by developments in the Lone Star state.  The first, a cryptic two sentence Supreme Court order which struck down a race based death sentence in Saldano v.  Texas.  In Hernandez v. Johnson a Fifth Circuit panel finds false testimony by the infamous Dr. Grigson,  as well as other false testimony, is  immaterial  under  Johnson v. Mississippi, 108 S. Ct. 1981 (1988). The In Re McGinn panel holds that even though DNA testing which might clear petitioner, is readily available, and may be quickly done, the federal constitution will not block execution in this case; G. W. Bush, in the middle of his presidential campaign, did, however, stop the execution so that testing could be done. (This was was Bush's first 30 day reprieve in his six years as governor).

In the only other capital case covered this week,  Foster v. Schomig, the Seventh Circuit examines the need for experts to prove statutory mittigators, in this case extreme emotional disturbance.

Following on the heels of several recent competency to be executed cases in the recent  months, this edition's "in depth" focuses on competency to be executed.

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Criminal Appeals of Texas for further consideration in light of theconfession of error by the Solicitor General of Texas.

The State argues that this court should deny leave to file a subsequent writ on two grounds. First, the ruling by the Texas Court of Criminal Appeals that Petitioner had abused the process is an adequate and independent state ground. Second, this court lacks jurisdiction to grant the requested relief under 28 U.S.C. § 2244. 

We are persuaded that we cannot grant leave to file a successive writ because the petitioner cannot meet the requirements of 28 U.S.C. § 2244(b)(2)(B)(i). Specifically, petitioner cannot show that "the factual predicate for the claim[s] could not have been discovered previously through the exercise of due diligence." It is clear that at the original trial there was extensive testing of blood samples, including reverse paternity DNA tests. The claim is that while better tests could have been performed then, developing science enhances the possibility of a better test today. Yet no submission has been made to this court that any testing methods developed in the five years following the testing done for trial were not available to allow timely submission to the federal district court by February 23, 1999, when it denied habeas relief in the first petition. We do not reach the issue of whether the petitioner could meet the statute's innocence requirement.

We do not suggest that in striving to both convict the guilty and free the innocent, criminal process can look away from exculpatory evidence with such potential explanatory power. Rather, we remind that this is a court of limited jurisdiction, only part of an entire system. We are persuaded that Congress has withheld jurisdiction from this court to grant the requested relief here. On the facts of this case, Petitioner must obtain his relief from other parts of this process, a process in which each player does his job. We express no opinion whether DNA evidence may, in other circumstances, allow a prisoner to escape the strictures of the subsequent writ.

The application for leave to file a subsequent writ and for stay of execution is DENIED.

The second issue presented in Hernandez' application for a COA is whether Hernandez was denied a fair trial because the State utilized and relied upon allegedly materially inaccurate evidence in violation of the Eighth Amendment's protections from cruel and unusual punishment as pronounced in Johnson v. Mississippi, 108 S. Ct. 1981 (1988). That issue was before the state habeas court, which denied relief, finding that it was not supported by any credible evidence in the record. Germane to the issue are the testimonies of Drs. James Grigson and Ralph Erdmann. Hernandez maintains that Grigson testified falsely as to the number of defendants that he had interviewed to determine their propensity for future dangerousness and that this testimony greatly influenced the jury's answer as to whether Hernandez posed a future danger. In addition, Hernandez asserts Erdmann falsely testified as to examining the victim's heart, and therefore, Erdmann could not have honestly stated that Alvarado's cause of death was not a heart attack. Due to Erdmann's supposedly false testimony, Hernandez contends that the jury was convinced of the baseball attack as having caused Alvarado's death, and this belief persuaded the jury that he was a future danger.

Johnson involved a death sentence under Mississippi law. Before imposing the death penalty, a Mississippi jury had to determine whether aggravating circumstances outweighed mitigating circumstances. See id. at 1984. In that case, the jury found three aggravating circumstances: 1) the defendant had previously been convicted of a violent felony; 2) the defendant had committed the capital murder for the purpose of avoiding arrest or effecting an escape from custody; and 3) the capital murder was especially heinous, atrocious, and cruel. See id. The sole basis for the first aggravating circumstance was a document showing that the defendant had been convicted in New York of second-degree assault with intent to commit first-degree rape. See id. After weighing the aggravating and mitigating circumstances, the jury concluded that the three aggravating circumstances outweighed the mitigating ones, and the death penalty was imposed. See id.

Thereafter, the New York felony conviction was reversed, and the defendant sought post-conviction relief on the ground that the New York conviction was invalid and could not be used as an aggravating circumstance. See id. at 1985. The Supreme Court ultimately reversed the death sentence, noting that the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment. See id. at 1986. The Court remarked that to allow the jury to consider evidence that was materially inaccurate was error. See id. at 1989.

The present case does not parallel the situation addressed in Johnson nor the vast majority of cases that have relied upon Johnson to determine whether evidence of a criminal conviction or conduct may be properly admitted at sentencing. Instead of a materially inaccurate criminal conviction, we confront purportedly materially inaccurate testimony. Notwithstanding the difference, Hernandez must still establish that Grigson's and Erdmann's testimonies were false and material. See Fuller v. Johnson, 114 F.3d 491, 497 (5th Cir. 1997) (holding that habeas prisoner's Eighth Amendment claim failed because he had not adequately shown that Erdmann's testimony was false or material). 

Although neither the Supreme Court nor this circuit has defined "materially" in the context of an Eighth Amendment violation under Johnson, the Supreme Court has had occasion to elaborate on materiality in the analogous context of the government's suppression of material evidence under Brady v. Maryland, 83 S. Ct. 1194 (1963). See Kyles v. Whitley, 115 S. Ct. 1555 (1995). In Kyles, it noted that the touchstone of materiality is a "reasonable probability" of a different result. See id. at 1566; United States v. O'Keefe, 128 F.3d 885, 894 (5th Cir. 1997). Under such a standard, Hernandez must show that Grigson's and Erdmann's testimonies undermined confidence in the outcome of the trial. See Kyles, 115 S. Ct. at 1566; see also O'Keefe, 128 F.3d at 894 ("Materiality, stated another way, occurs when the falsehood results in a 'corruption of the truth-seeking function of the trial process.'") (quoting United States v. Agurs, 96 S. Ct. 2392, 2397 (1976)). 

With those pronouncements in mind, we address the allegations about Grigson and Erdmann in turn. Again, we reiterate that we must give due deference to the state habeas court's findings and presume them to be correct. Although the state habeas court termed some of its findings regarding Grigson's and Erdmann's testimonies as conclusions of law, it did clearly state that there was no credible evidence to support Hernandez' Eighth Amendment claim.

A review of Grigson's testimony and Hernandez' proffered evidence does not dissuade us from the state habeas court's view. At most, Grigson may have falsely testified to the number of defendants whom he interviewed and determined not to be dangerous,(2) but any discrepancy in that testimony does not arise to the level of materiality required for an Eighth Amendment violation. "It is axiomatic that not every lie is material." O'Keefe, 128 F.3d at 894. Hernandez essentially quibbles over the number of cases Grigson may have examined to argue that Grigson has no credibility and that Grigson's future dangerousness prediction has no foundation. During the trial, however, Hernandez had the opportunity to do just that. He offered five experts who testified that future dangerousness predictions are inaccurate, and one of them testified that Grigson had been wrong on at least 15 occasions. Thus, Grigson's credibility was severely tested, and whether he may have falsely stated the number of defendants whom he examined and concluded to be not dangerous was immaterial to the result. Indeed, the future dangerousness of Hernandez was, in many ways, more adeptly established by evidence indicating that Hernandez had: 1) five prior felony convictions; 2) assaulted his wife and daughter; 3) disciplinary problems during prior prison terms; 4) encouraged his son to kill the son's maternal grandfather; 5) assaulted his four- and five-year-old relatives; 6) repeatedly stabbed a person with a knife; 7) assaulted a fellow inmate while in county jail awaiting trial in this case; and 8) made threats of killing a trial judge in this case. In light of all those facts, we conclude that, even if Grigson had testified falsely, his testimony was not material and that, therefore, Hernandez has failed to substantially show the denial of a constitutional right. 

Similarly, Hernandez' contention regarding Erdmann must also fail. Hernandez argues that Erdmann did not actually inspect Alvarado's heart and, thus, could not have truthfully testified that Alvarado did not die of a heart attack. He bases that claim on a statement by Erdmann that Alvarado's "new implants were in good shape" and on the fact that no Y-incision to the thoracic area appears to have been made despite Erdmann's testimony to the contrary. Although the portions of Erdmann's testimony referred to by Hernandez suggest that Erdmann testified to examining the heart, there is no affirmative declaration by Erdmann that he did do such an examination. Even if we did conclude that Erdmann had testified as such and that other evidence, such as the autopsy photo of the body without a Y-incision, corroborates Erdmann's lack of truthfulness as to inspecting Alvarado's heart, those conclusions do not establish the falsity of Erdmann's analysis that Alvarado did not die from a heart attack. His determination that a heart attack did not cause Alvarado's death was not necessarily dependent on an examination of the heart. The failure to inspect the heart does not negate Erdmann's belief that blows from a blunt object caused Alvarado's death. 

At best, Hernandez has demonstrated that Erdmann lied about inspecting Alvarado's heart. We do not believe that such an inaccuracy is material, considering that Hernandez has neither asserted nor shown that Erdmann's testimony about the cause of death was actually false. See Fuller, 114 F.3d at 496. Take out any testimony remotely discussing an examination of Alvarado's heart, and we are still left with testimony stating that blows by a blunt object, like a baseball bat, killed Alvarado and that a heart attack did not cause her death.(3)

Finally, even assuming all of Hernandez' argument about Erdmann's testimony is true, we must still defer to the state habeas court's finding that the State presented credible evidence from two additional pathologists that Erdmann had been correct in his assessment of the manner and cause of death. Hernandez has not rebutted that finding, and we must presume that it is correct.

Consequently, we conclude that Erdmann's testimony about Alvarado's heart was not material and that, therefore, Hernandez has failed to substantially show the denial of a constitutional right. 

At the sentencing hearing, the state put on extensive evidence of Foster's prior criminal activity. In mitigation, the defense presented witnesses who disputed some of the facts regarding the criminal activity referred to by the state. But the bulk of the mitigating evidence involved testimony of family and friends regarding Foster's good works, his helpfulness to family members and friends in need, and his role as a father. The hearing was then continued because there was some question whether Dr. Rossiter would testify. At a point in the hearing the court stated to the defense attorney,

 
As I understand your comments this morning, you are saying that you still, as you stand here now, intend to go forward with the medical--or, with the psychological evaluation, to present that as evidence in mitigation.

Accordingly, I will then permit the state to move forward with their examination. Sent. Tr. at 2518-19.

At the hearing on June 25, 1985, the court learned that the defense would not be calling Dr. Rossiter to testify. After the attorneys discussed several documents that would or would not come into evidence, the prosecutor stated to the court:

I have one other matter that I would like to put on record in regard to the expert testimony that the defense was seeking to procure in this case.

Our office talked personally to Dr. Rossiter, and also received a report from him indicating that he had examined the defendant.

It's also come to our attention that various medical tests were performed on the defendant at Community Hospital as part of the evaluating process by Dr. Rossiter.

We lined up a witness to come to court today in rebuttal.

Since the defendant indicated they would not call Dr. Rossiter, obviously, we have called off our witness.

We were ready to proceed if, in fact, the defense wanted to call Dr. Rossiter.

What I'm indicating in summary, Judge, is that all of the tests that the defense sought to have performed on the defendant were, in fact, carried out. And it was a strategy decision on the part of the defense not to call Dr. Rossiter. He was available, and he did complete all of the testing that they were seeking. Sent. Tr. at 2534-35.

In response, attorney Giampoli stated:

Your Honor, basically, the only comment attacking that comment is that this Court cannot infer that those reports would have a negative or positive effect because, obviously, we just decided we didn't want to call the expert.

The Court: I understand. I was just about to stop the defendant if any comment was made to what the tests may or may not indicate because, as far as I am concerned, that is the choice you people made.

I think the record does reflect that you did have the opportunity to have the defendant evaluated and tests performed and things of that nature, and that's--and that's as far as it goes. Sent. Tr. at 2535-36.

Given this exchange, it is readily apparent that the decision not to call Dr. Rossiter was a thoughtful and strategic one and that the prosecution was not only going to bring in its own expert psychiatric witness in the event Dr. Rossiter testified, but there were also certain documents that would reveal the results of a number of medical tests. Without saying why, the defense attorneys emphasized to the court that it should not infer that those reports would have a negative or positive effect. This further demonstrates that defense counsel had every opportunity to review those reports, and in view of the opposing expert that would have been called, made a strategic decision not to call Dr. Rossiter. Given the context of the actual hearing, and not based on what the witnesses could or could not recall thirteen years later, not calling Dr. Rossiter was entirely reasonable.

The preclusion of whatever aggravating evidence the prosecution was marshaling was not the only thing that made the decision not to call Dr. Rossiter reasonable. As we have noted before in cases like this one, there is a strong possibility that the defendant's mitigation evidence might turn out to be aggravating. See Emerson v. Gramley, 91 F.3d 898, 906 (7th Cir. 1996). Dr. Rossiter's preliminary report foretold enough aggravating factors that could offset whatever evidence of extreme emotional disturbance might have been mitigating. For instance, the report stated that Foster has "an antisocial personality disorder" and has "pronounced tendencies toward explosive anger and aggressive physical outbursts." Because the report describes Foster in an unflattering light, to say the least, it would have caused any competent attorney to pause and consider how devastating this testimony could be to Foster's case. From Dr. Rossiter's testimony at the evidentiary hearing thirteen years later we further see how he would have described Foster if he had been called to testify at the sentencing phase. *fn4 Dr. Rossiter stated:

I saw him [Foster] as a particularly self-centered individual, probably capable of exploiting others for his own personal gain without regard to their rights, let alone their sensibilities.

I think that he is capable of rationalizing a good deal of the brutality in this particular case. I think he was capable of denying to me or representing to me certain events in somewhat less than entirely candid detail.

[C]ertainly antisocial disorder, with it by definition lack of the usual constraints of conscience and the usual ideal that provide the standards to which one conforms conduct, that--that characteristic of the antisocial personality disorder would be a strong aggravating factor in one sense.

The irony of the situation, if I may, your Honor, is that from a psychiatric point of view, an antisocial personality disorder is a very extreme developmental disorder. It's a very defective development of the human personality. The absence of the constraints of conscience and the ideals that guide and constrain one's behavior, that is an abnormality of human nature. So in itself, it constitutes, from a clinical point of view, a very severe aberration.

It is not typically regarded that way from a forensic legal point of view, of course, but the fact is that persons who have such disorders are very severely crippled in their ability to lead a normal life, to cooperate, to relate to other people in a normal manner. Evid. Hear. Tr. at 180-81 (emphasis added). When cross-examined, Dr. Rossiter was forced to expand upon his description of Foster as a remorseless criminal.

Q. Okay. Dr. Rossiter, it is my understanding that an individual who suffers from an antisocial personality disorder, that it's typical of that type of individual to have a criminal history, is that correct?

A. That's correct.

Q. And you had testified that this starts with burglaries and purse snatchings and crimes of that nature, am I correct?

A. Correct.

Q. And that it's not uncommon for an individual who suffers from an antisocial personality disorder to graduate into more violent crimes, am I correct?

A. That's true.

Q. And in fact, Mr. Foster has a history of violent crimes?

A. That's true.

Q. And he has the antisocial personality disorder, is that right?

A. That's correct.

Q. It's my understanding as well that people with an antisocial personality disorder are generally considered to be remorseless, is that fair?

A. Correct?

Q. Devious?

A. Yes.

Q. Dishonest?

A. Yes.

Q. Self-centered?

A. True. Evid. Hear. Tr. at 172-73.

When asked whether Foster might become increasingly violent, Dr. Rossiter conceded that this might happen, and in his deposition testimony he went so far as to say that Foster was predisposed to violence. Although Dr. Rossiter opined in his deposition that his report would have been more helpful to Foster's case than harmful, he conceded that there were aggravating factors in his report, and that based on his twenty-five years of experience in criminal matters, "the diagnosis of antisocial personality disorder is usually taken in legal circles as a damning kind of finding because the individual is characterized as being predatory, malicious, unconscionable, and calculating in his criminal activities."

As Dr. Rossiter emphasized several times, extreme emotional disturbance is a legal term, not a medical one. When the district court pressed him at the hearing, Dr. Rossiter acknowledged that he would discuss the pros (mitigating) and cons (aggravating) with defense counsel. Dr. Rossiter stated, "I call them as I see them. I try to inform the consulting--the attorney for whom I'm consulting of the potential two-edged sword of my testimony if there is one, because what I have to say may be mitigating or damning, depending on which dimension of the human nature under question I'm talking about." Evid. Hear. Tr. at 182. *fn5

This kind of testimony could have substantially damaged Foster's case. Foster obviously would not have wanted the sentencing judge to hear an expert opinion that Foster's psychological aberrations cause him to disregard the rights and feelings of others to such an extent that he would feel no remorse even after killing a young mother while her child was sleeping in the next room. Dr. Rossiter's testimony risked designating Foster's treatment of Jacqueline Simmons as something he would be inclined to do again. It would have suggested that Foster's violent behavior was not the exception but the rule, making him a constant threat to prison guards or fellow inmates. Given the context in which Dr. Rossiter's testimony would have been presented, it was a reasonable strategic decision for the defense attorneys not to expose Dr. Rossiter to the prosecution's cross-examination, especially because it would have opened the door to the testimony of the government's psychiatric expert.

Thus, we agree with the Illinois Supreme Court that the decision not to call Dr. Rossiter as a mitigation witness was a matter of sound strategy. Foster has failed to rebut the presumption that his counsel's decision was based on a legitimate strategy or that his counsel's performance fell below an objective standard of reasonableness. *fn6

Even if we assume for the sake of the argument that his attorneys were incompetent in failing to present Rossiter's testimony, Foster has failed to show that this caused him prejudice. To demonstrate prejudice, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The prejudice inquiry "focuses on the question whether counsel's deficient per formance renders the trial unreliable or the proceeding fundamentally unfair." Williams, 120 S. Ct. at 1513 n.17. In the penalty phase of a capital case, to show prejudice the movant must demonstrate that "a reasonable probability exists that, but for counsel's substandard performance, the sentencer 'would have concluded that the balance of aggravating and mitigating factors did not warrant death.'" See Hall, 106 F.3d at 751-52 (quoting Strickland, 466 U.S. at 695).

The Illinois Supreme Court concluded that "[t]here is no reasonable probability that the introduction of Dr. Rossiter's testimony would have prompted the sentencing judge to find that there were mitigating circumstances sufficient to preclude imposition of the death penalty." Foster, 660 N.E.2d at 963. Our review of the record leads us to agree with the Illinois Supreme Court. At best, Dr. Rossiter's testimony would have helped Foster by suggesting that he was suffering from schizophrenia, was depressed at the time he killed Simmons, and that due to psychological factors beyond his control, he was prone to violent outbursts. The presence of these factors caused Dr. Rossiter to believe (at least at the time of the hearing before the district court) that when he killed Simmons, Foster was under the influence of extreme mental or emotional disturbance. Assuming that the sentencing judge would have believed Dr. Rossiter, and would have disbelieved any psychiatric evidence the state presented to the contrary, Dr. Rossiter might have put some weight on the mitigation arm of the scale. We say "might have" because we have noted before that the presence of an emotional or mental disturbance can be seen by some not as a mitigating factor, but as an aggravating one. "Mitigation . . . after all, may be in the eye of the beholder." Burger v. Kemp, 483 U.S. 776, 794 (1987). Sentencing judges "may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate." Burris v. Parke, 130 F.3d 782, 784-85 (7th Cir. 1997).

But even if Dr. Rossiter's testimony definitely would have established the existence of a mitigating factor, the presence of one (or more than one) mitigating factor does not preclude the imposition of the death penalty. Rather, Illinois law requires the sentencing judge to consider all mitigating and aggravating factors, including those aggravating factors intentionally or unintentionally set forth by a "mitigation" witness. 720 ILCS sec. 5/9-1(c). Thus, the sentencing judge was obliged to consider those aspects of Dr. Rossiter's testimony which spoke to Foster's lack of rehabilitative potential, his propensity to commit violent acts, his inability to assimilate himself into society, his failure to accept responsibility for his crimes, and his lack of remorse. See People v. Ward, 718 N.E.2d 117, 127 (Ill. 1999); People v. Shatner, 673 N.E.2d 258, 268 (Ill. 1996); People v. Anderson, 672 N.E.2d 1314, 1319-20 (Ill. App. Ct. 1996); People v. Kerkering, 671 N.E.2d 368, 372 (Ill. App. Ct. 1996); People v. Moore, 620 N.E.2d 583, 589 (Ill. App. Ct. 1993). The district court did not take into account these facets of Dr. Rossiter's testimony when it concluded that the defense attorneys rendered ineffective assistance by not calling Dr. Rossiter to testify.

The district court believed that because the sentencing judge was required to consider whether Foster was emotionally disturbed, "it is axiomatic that the presentation of such evidence would have influenced the sentencing judge." 35 F. Supp.2d at 632. No doubt it would have had some influence, but that influence could well have been negative.

But even if Dr. Rossiter's testimony could be construed as having no aggravating elements, and even if it would not have opened the door to psychological evidence from the prosecution, in light of the other evidence it seems that Dr. Rossiter could hardly have established that Foster was under an extreme emotional disturbance at the time he murdered Simmons. As the Illinois Supreme Court pointed out, "An extreme emotional disturbance occurs when defendant's emotional state at the time of the murder is 'at such a fragile point as to leave him with little or no emotional control.'" 660 N.E.2d at 963 (quoting People v. Phillips, 538 N.E.2d 500, 514 (1989)). Apparently Foster had been looking for Jacqueline Simmons throughout the evening of January 9, 1985. After several unsuccessful attempts, he finally found her at the apartment later that night. The brutal beating with a baseball bat, witnessed intermittently by three adults, lasted nearly two hours. After showing off the bat handle that he had inserted in Simmons's rectum, Foster left with a friend to visit a bar. On the way out he dismissed Theresa Williams's warning that Simmons needed to go to the hospital and simply observed that "Simmons was drunk and they should let her sleep it off." 518 N.E.2d at 85. When he returned about 20 minutes later, Simmons was dead. As the Illinois Supreme Court concluded:

Defendant exhibited rational and logical conduct on the night of the murder. Defendant spoke to the victim and the others in the apartment that night in a coherent and rational manner. He tried to resuscitate Simmons and removed evidence of the beating from the apartment. Defendant apparently expected the police to investigate and he concocted a story to tell them in order to protect himself. In light of all the evidence which the trial court considered at sentencing, including defendant's history of criminal activity, defendant failed to demonstrate a reasonable probability that the sentencing judge would not have imposed the death penalty if trial counsel had presented Dr. Rossiter's testimony in an effort to show that defendant was under an extreme emotional disturbance at the time of the murder. 660 N.E.2d at 963-64.

We agree with the Illinois Supreme Court. Even if we were to conclude that counsel were ineffective, which we do not, Foster could not demonstrate prejudice. Because the totality of Dr. Rossiter's testimony would not have provided a net benefit to Foster's case, and instead would likely have harmed it, Foster has failed to show that there is a reasonable probability that but for Dr. Rossiter not testifying the sentencer would have concluded that the balance of aggravating and mitigating factors did not warrant death. See Hall, 106 F.3d at 751-52. Thus, he has failed to satisfy either the deficient performance or prejudice prong of Strickland.

Weighall v. Middle, No. 99-35657 (9th Cir. 06/01/2000)  "Weighall was convicted in Oregon state court of first degree assault for stabbing another man in a bar fight. At trial, he pursued a theory of self-defense and the jury was instructed on the permissible use of deadly force in self-defense. Weighall now maintains that his trial counsel's failure to request an additional instruction to further clarify the defense constituted  ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. S 2253, and we affirm the district court's denial of Weighall's petition."

In Ford v. Wainwright, 477 U.S. 399 (1986), the Court held that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the execution of a prisoner who is insane. Three Justices joined Justice Marshall in concluding that Florida's procedure for determining the sanity of a condemned prisoner -- the appointment by the governor of a commission of psychiatrists -- did not comport with due process, inasmuch as (1) the prisoner was not allowed to submit relevant materials to the commission or to challenge evidence presented by the prosecution and (2) the entire process was placed in the hands of the executive, the very branch that was pressing for the prisoner's execution. Justice Powell, in his opinion concurring in the judgment, stated that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. Furthermore, although he agreed that Florida improperly denied prisoners the opportunity to be heard, he argued that due process would be satisfied by a nonjudicial procedure far less formal than a trial. Justice O'Connor, though not joining in the Court's Eighth Amendment holding, concluded that due process demands that a prisoner be given the opportunity to be heard.
 

Successful Cases
Federal Cases

 Stewart v. Martinez-Villareal 523 U.S. 637, 118 S.Ct. 1618, 1998 WL 244206 (1998) The restrictions which AEDPA places on second or successive habeas petitions do not apply to a Ford claim which was raised in a previous habeas petition but dismissed as premature because the petitioner was not then facing execution. An application for habeas relief containing only a Ford claim previously dismissed as premature is not a "’second or successive’ application" within the meaning of 28 U.S.C. § 2244(b). In order to avoid the "seemingly perverse" result of barring any federal habeas adjudication of such a Ford claim, the later petition "should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies." By raising his Ford claim in a habeas petition once a death warrant was, issued Martinez-Villareal "brought his claim in a timely fashion." The claim "ha[d] not been ripe for resolution until" his execution was imminent. Since this was his first opportunity to obtain federal habeas review of his competency for execution, "Martinez-Villareal’s Ford claim was not a ‘second or successive’ petition under § 2244(b), [and] . . . the Court of Appeals was correct in deciding that [Martinez-Villareal] was entitled to a hearing on his Ford claim in the District Court."

Swann v. Taylor 1999 WL 86690 (4th Cir. Feb. 18, 1999) (slip opinion)(unpublished disposition) Finding that the Court in Martinez-Villareal had "unquestionably endorsed" the idea that "a Ford claim presented in an initial § 2254 application by a capital prisoner whose execution is not imminent be dismissed without prejudice as premature and then revisited once execution becomes imminent," the court reversed the district court's denial of Swann's Ford claims. The claims were remanded with instructions that he be allowed to reopen them "after his execution becomes imminent and he has exhausted any available remedies in the state courts."

Calderon v. United States District Court (Kelly) 127 F.3d 782 (9th Cir. 1997) rev'd on other grounds, 163 F.3d 530 (9th Cir. 1999) Citing its own opinion in Martinez-Villareal the court notes that although AEDPA’s statute of limitations bars Kelly’s pursuit of habeas relief, any claim that he is incompetent to be executed is premature, and he "could seek relief in the federal courts" should the state try to execute him while he is insane.

Martinez-Villareal v. Stewart 118 F.3d 628 (9th Cir. (Ariz.)) aff’d in, Stewart v. Martinez-Villareal 523 U.S. 637 (1998), supra A death-sentenced inmate generally cannot litigate a claim that he is incompetent to be executed in his first federal habeas petition because a Ford claim is properly considered only when execution is imminent. When a federal district court receives a first petition, there is usually no death warrant outstanding or, if a warrant is outstanding, the court is obliged to issue a stay of execution to prevent the case from becoming moot. Under 28 U.S.C.§§ 2244(b)(1) and (2), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), a Ford claim apparently may not be raised in a second or successive petition. A Ford claim raised in both first and second petitions must be dismissed under § 2244(b)(1). A Ford claim raised only in the second or successive petition must also be dismissed, since Ford is not a "new rule of constitutional law" (and thus cannot pass through the gateway of § 2244(b)(2)(A)), nor is competency to be executed an issue of guilt or innocence (and thus cannot pass through the gateway of § 2244(b)(2)(B)). If, as the court suspects, §§ 2244(b)(1) and (2) are binding on the U.S. Supreme Court in the exercise of its original habeas jurisdiction as well as on the lower federal courts, then the AEDPA would likely amount to an unconstitutional suspension of the writ in the context of Ford claims presented in second or successive petitions. The court avoids finding the AEDPA unconstitutional by concluding that a Ford claim presented to a federal court following the dismissal of a first petition does not constitute a second or successive petition. Such claims are no more abusive of the writ than are petitions presented a second time to federal courts after having been dismissed on first presentation because they contained unexhausted claims. The Court summarizes the proper procedure to follow with respect to Ford claims as follows: "[A] competency claim must be raised in a first habeas petition, whereupon it also must be dismissed as premature due to the automatic stay that issues when a first petition is filed. Once the state issues a second warrant of execution and the state court considers the now-ripe competency claim, a federal court may hear that claim -- and only that claim -- because it was originally dismissed as premature and therefore falls outside the rubric or 'second or successive' petitions." Id. at 6. The court remands Martinez-Villareal's Ford claim to the district court for consideration on the merits. Judge Nelson concurs in that result, but believes that the court should declare that the AEDPA unconstitutionally suspends the writ with respect to Ford claims. He notes that unlike initial petitions containing unexhausted claims, which are dismissed in their entirety, all of the claims in Martinez-Villareal's earlier petition, with the exception of his Ford claim, have already been considered on the merits.

Heidnik v. White 112 F.3d 105 (3rd Cir. 1997) In the course of determining whether Heidnik is competent to drop his federal habeas appeals, the court considered what weight to give a recent finding by the state habeas court that he is competent to be executed. In his concurring opinion in Ford, Justice Powell stated that a finding of competency to stand trial raises the presumption that the defendant is competent to be executed. Similarly, the state court's finding that Heidnik is competent to be executed would ordinarily raise a presumption of competency in other contexts. In this case, however, the state court's finding is not entitled to a presumption because (1) the state court did not allow Heidnik to call to the stand two of his experts, including a psychologist who had been present during the evaluation by the state's expert and (2) the state habeas court's findings were under review by the state supreme court. In any event, Heidnik would have overcome any presumption by the clear and convincing evidence presented in federal court of his delusional paranoid schizophrenia. (Among other delusions, Heidnik believed that the outrage that would erupt when he, an innocent man, was executed would spell the end of the death penalty.)

Martin v. Dugger 686 F.Supp. 1523 (S.D.Fla. 1988) Court would not give presumption of correctness to state-court finding of competence, where defense counsel was not given notice that evidence would be taken at a hearing and where the trial court discredited the opinions of defense experts based solely on their written submissions. An evidentiary hearing in federal court is merited, and the court will apply the test of whether Martin appreciates the connection between his crime and the punishment. (For prior history, see Martin v. State, 515 So.2d 189 (Fla. 1987), in which the Florida Supreme Court approved the hearing found wanting here. See also Martin v. Dugger, 515 So.2d 185 (Fla. 1987), in which the Florida Supreme Court declined to attribute to petitioner his attorney's waiver of a competency evaluation.)

Jones v. United States 327 F.2d 867 (D.C.Cir. 1963) Trial court erred in failing to hold hearing on competency to be executed, where defendant had previously been ordered committed and refused to cooperate with experts appointed to assess his competency, and where there was extensive evidence as to his mental disorder.

 State Cases

 Singleton v. Norris 964 S.W.2d 366 (Ark. 1998) Court grants Singleton’s stay application so that a lower court could decide his declaratory judgment action. Singleton had been involuntarily administered anti-psychotic medication after a determination that he was a danger to himself and others under Washington v. Harper, 494 U.S. 210 (1990). The court stayed his execution so that the lower court could decide whether the Constitution permits him to be involuntarily medicated, where the forced medication would make him competent for execution.

Medina v. State 690 So.2d 1241 (Fla. 1997) Even though three state experts testified that Medina was competent to be executed, the written reports of two psychologists and a psychiatrist submitted by defense counsel should have given the lower court "reasonable ground" to grant a stay of execution and convene the competency hearing called for by state law. Florida's statutory scheme is not constitutionally wanting even though an indefinite stay of execution is not authorized unless the inmate can prove his incompetence by clear and convincing evidence. Although the U.S. Supreme Court ruled, in Cooper v. Oklahoma, 116 S.Ct. 1373 (1996), that a defendant could not be required to prove his competence to stand trial by any standard more burdensome than a preponderance of the evidence, the substantial interest of the state in carrying out death sentences justifies striking a different balance between the state and the individual.

Singleton v. State 437 S.E.2d 53 (S.C. 1993) Under South Carolina law, defendant may not be executed unless he (1) understands the nature of the proceedings, what he was tried for, the reason for the punishment and the nature of the punishment and (2) possesses sufficient capacity to rationally communicate with counsel. Trial court properly found Singleton incompetent, since he is unaware that he is capable of dying in the electric chair and can give only yes-no responses to his counsel's questions. Trial court erred, however, in vacating Singleton's death sentence. The state can carry out the sentence of death if it can prove that Singleton has been restored to competency; the state may not force medication on Singleton, however, as that would violate his right to privacy under the state constitution.

State v. Perry 610 So.2d 746 (La. 1992) Forced medication for the purpose of restoring competency to be executed violates privacy rights under the state constitution.State ex rel. 

Eaton v. Butler 547 So.2d 364 (La. 1989) (Mem.) A memorandum opinion ordering a hearing on defendant's competency to be executed; no details on the evidence of his mental state are given.

Ex parte Jordan 758 S.W.2d 250 (Tex.Ct.Crim.App. 1988) The court upholds the trial court's use of a narrow test for competency to be executed whether defendant was capable of comprehending the nature, pendency and purpose of his execution. The testimony of three experts and of Jordan himself indicated that he lacked such a capability.

Billiot v. State 515 So.2d 1234 (Miss. 1987) Petitioner's request for protection from execution, which was supported by affidavits of three mental health experts who deemed him insane, was sufficient to entitle him to an in-court opportunity to prove his insanity

Martin v. Dugger 515 So.2d 185 (Fla. 1987)
Petitioner's post-conviction counsel waived the claim of incompetence when he directed petitioner not to cooperate with a state evaluation procedure that counsel mistakenly believed was in violation of Ford v. Wainwright. Nevertheless, to avoid any possible prejudice, the court declines to attribute counsel's waiver to petitioner and requests that the governor reconvene a panel of psychiatrists.

Garrison v. People 378 P.2d 401 (Colo. 1963)In conducting jury trial on defendant's competency to be executed, the trial court erred in excluding all evidence regarding defendant's mental state that dated from before his conviction and sentence of death.
 

Maryland Governor Commutes Death Sentence 
Stating that he could not be completely certain of Eugene Colvin-el's guilt, Maryland Governor Parris Glendening commuted Colvin-el's death sentence to life in prison without parole, just days before his scheduled execution. Gov. Glendening had earlier ordered a study examining Maryland's capital punishment system for evidence of racial. (Washington Post, 6/8/00) This is the first commutation in a death sentence this year

New Voices
A recent editorial in the conservative Washington Times implied support for a death penalty moratorium: 

"[I]f this country is to have the death penalty, we must be as certain as is humanly possible that executions are restricted to the guilty. States should be encouraged to make sure that is the case. Even if 66 percent of Americans support the death penalty, it is no argument to say (as some conservatives have done) that the death of an innocent person here or there is not enough to reconsider what we are doing.
   ... 
During a moratorium, the state would keep its electricity and gas bills paid .and its stockpiles of potassium chloride intact against the day when the moratorium ends and executions resume -- presumably following improvements in the way convictions are produced. Surely no one could reasonably object to making sure we execute only the guilty." (Washington Times, 6/6/00) 

U.S. Supreme Court Strikes Down Texas Race-Based Death Sentence 
The U.S. Supreme Court ordered Texas courts to provide a new sentence hearing to death-row inmate Victor Hugo Saldano because prosecutors used racial and ethnic stereotypes in order to obtain a death sentence. (Saldano v. Texas, 99-8119) Texas Attorney General John Cornyn conceded that the state erred in allowing a psychologist to testify about Saldano's "future dangerousness" based on factors that included the fact that Saldano is Hispanic, and joined Saldano in asking the Court for a new sentencing hearing. The Texas Court of Criminal Appeals had previously upheld Saldano's death sentence, stating that the prosecution's use of ethnicity as a factor to be considered in death sentencing was not a "fundamental error" requiring reversal. (Associated Press, 6/5/00) See also, New from the Supreme Court

 New Resources "The Death Penalty in Georgia: A Modern History 1970-2000" by Michael Mears, Director of the Multi-County Public Defender Office in Atlanta, Georgia, is now available from the Georgia Indigent Defense Council. This history of the modern era of the death penalty in Georgia is designed to provide background information and an overview of the events which have shaped the use of the state's death penalty since its reinstatement on March 28, 1973. (The Georgia Indigent Defense Division of Professional Education, 1999) 

 Texas and Virginia Governors Allow Inmates to have DNA Tests
Texas Governor George W. Bush and Virginia Governor Jim Gilmore each approved DNA tests to inmates claiming innocence. Gov. Bush granted Ricky McGinn a stay less than a half-hour before his scheduled execution to allow a DNA test. This is the first time in 131 executions that Gov. Bush has exercised his power to grant a one-time 30-day reprieve. (Associated Press, 6/2/00) 

 In Virginia, Gov. Gilmore approved a DNA test for former death row inmate Earl Washington, Jr. In 1994, then-Governor L. Douglas Wilder commuted Washington's death sentence to life in prison because DNA tests suggested that Washington did not commit the crime. Now, with advances in DNA technology, Gov. Gilmore has ordered more sophisticated tests, which could provide more precise results. "To the extent that a piece of forensic evidence -- a chemical test-- can produce a more reliable result, I think any governor who has responsibility over these life-and death decisions wants the best possible information in order to make a good judgment," Gilmore said. (Associated Press, 6/2/00 and Washington Post, 6/2/00) Texas and Virginia account for almost half of all executions in the country. See also, Innocence. 

Texas Argues that Sleeping Lawyer is Sufficient Representation
The State of Texas is appealing a federal judge's ruling that death row inmate Calvin Burdine should receive a new trial. The State acknowledges that Burdine's attorney, Joseph Cannon, slept during the death penalty trial, but maintains that Burdine received sufficient representation. Last year, a federal judge threw out Burdine's conviction and ruled that he should be retried because "sleeping counsel is equivalent to no counsel at all." The case is to be argued before the U.S. Court of Appeals in New Orleans on June 5. (DPIC press release, 6/1/00). Read complete press release. 

Bush Supports DNA Testing Texas Governor George W. Bush recently said that he supports DNA testing if it can "erase any doubts" about guilt in a capital murder case. "If the DNA testing helps to settle a case, or erase any doubts or concerns, we would support that," Bush said. (Associated Press, 5/26/00) Texas leads the nation in executions this year with 18, followed by Oklahoma, with 6 executions. See also, innocence.

Cardinal Urges California Governor to Impose a Moratorium on Executions
Cardinal Roger Mahony, the Roman Catholic archbishop of Los Angeles, has urged California Gov. Gray Davis to impose a moratorium on executions and to conduct a "comprehensive and objective study" of the state's "fatally flawed" death penalty system. In a letter to Davis, who is Catholic, Cardinal Mahony stated, "I believe that an objective study will provide substantial factual data to support moral and ethical questions raised by the Catholic bishops of California and the United States regarding the death penalty." Citing the moratorium in Illinois and the New Hampshire Legislature's vote to abolish the death penalty, Cardinal Mahony wrote that "California has no less an obligation to conduct a thorough assessment of its system in order to identify the inequities, weaknesses, and biases of the process used to try those charged with capital crimes and administer the death penalty." (New York Times, 5/27/00) California has the largest death row in the nation, with 568 inmates as of April 1, 2000. See also, statements.

Growth of Death Row is Slowing; Executions in Texas Increasing
According to the latest numbers published by the NAACP Legal Defense and Education Fund, the number of inmates on death row is 3,670, as of April 1, 2000. This is an increase of only 18 inmates since January 1, 2000. If this trend continues throughout the year, it will be the lowest increase in death row since the death penalty was reinstated. (Death Row USA, Spring 2000) This slow down can be partially attributed to the high number of executions taking place, but may also signal a decline in new death sentences.
After executing three inmates in three days, and with eight more scheduled before the end of June, Texas is on a pace to surpass its previous record of 37 executions in a single year (1997). Through May 26, Texas has executed 18 inmates, and if executions continue at this pace, they will surpass 40 for the year. See also, executions.

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