This issue is dominated, as many issues 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 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