This edition brings no fresh web released capital decisions.  One capital cert grant is noted in Shafer v. South Carolina, as to whether Simmons v. South Carolina survives Ramdass v. Angelone. 

The Feature article this week comes from Federal Capital Defense Counsel on "Statutory Procedures Governing Modern Federal Capital Prosecutions."

Several stories that are breaking as this  issue goes to print are developing.  First, Earl Washington, the death row inmate whose case reached the Supreme Court in Strickland v. Washington,  has been cleared by DNA as actually innocent of the crime for which he was sentenced to death.  Stacey Lawton, who was scheduled to be executed this week, has received  a reprieve until after the November elections. Finally, U.S. District Judge Albert V. Bryan Jr of the E.D. of Virginia in a seven-page ruling (decision to be forwarded once available)has found the 14th Amendment and U.S. code allow state prisoners to file federal civil rights suits seeking DNA testing; Congress is currently working on additional legislation in this area. 

Finally,  after much gnashing of teeth and caffeine, a site map has been added to "A Capital Defender's Toolbox" making the site slightly easier to navigate has been uploaded at http://capitaldefenseweekly.com.

SOUTH CAROLINA LAW (Jury Instructions)

Question 1 asks:

Whether petitioner's due process rights under Simmons v. South Carolina, 512 U.S. 154 (1994), were violated by the trial court's refusal to instruct the sentencing jury that "under South Carolina law, [petitioner] would be ineligible for parole if the jury were to vote for a life sentence," Ramdass v. Angelone, 120 S.Ct. 2113, 2119 (2000) (plurality opinion), and by the South Carolina Supreme Court's holding that Simmons no longer applies to South Carolina's capital sentencing scheme. 

The issue is this South Carolina case is whether the trial court erred in refusing to instruct the jury that the appellant was parole ineligible.  The appellant and two friends arrived at the Hot Spot, a local convenience store, and attempted to rob the store.  After a few moments, appellant approached the checkout counter and shot the store clerk, Broome.  Eight seconds later, appellant shot Broome again in the head.  Under the new statutory scheme, a defendant can be sentenced to death, life without possibility of parole or a mandatory minimum thirty year sentence.  The court held that under the new statutory scheme, parole ineligibility is not required because life without the possibility of parole is not the only alternative to death.  Additionally, the court held that refusal to give parole illegibility instruction does not violate the Eight Amendment because parole eligibility or illegibility is not mitigating evidence or relevant to punishment.   Finally, the court held that refusing to allow defense to argue God or religion in its closing argument was not prejudicial.  Additionally, refusing to allow the defense to argue whether the death penalty has deterrent value was not an error.

United States v. Kennedy, No. 98-1421 (10th Cir. 09/20/2000) "Petitioner William R. Kennedy, Jr. appeals from the district court's denial of an evidentiary hearing and other relief regarding Mr. Kennedy's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging prosecutorial misconduct and ineffective assistance of counsel. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253, and deny Mr. Kennedy's request for a certificate of appealability and dismiss his appeal."

United States v. Martin, No. 99-55478 (9th Cir. 09/22/2000)  "The pivotal question in this case is whether there is any time limit within which a party to a 28 U.S.C. S 2255 proceeding may file a motion to reconsider a district court's order resolving the merits of a S 2255 petition when that order contemplates resentencing, but the resentencing has not yet occurred." Relief denied.

Fernandez v. Sternes, No. 99-2887 (7th Cir. 09/21/2000) The panel address how to count the AEDPA time limits when "when a state court permits an untimely filing. There are four possibilities, in order of increasing amounts excluded: Time between the order allowing the untimely filing and the final decision on the merits.  Time between the application for leave to file out of time and the final decision on the merits.  Time between the application for leave to file out of time and the final decision on the merits, plus the time originally available (but not used) to file a timely application.  Time between the previous adjudication of petitioner's claim and the final decision on the merits." Petitioner's petition is out of time.

 King v. Kemna, No. 99-2047 (8th Cir. 09/22/2000)  "Because King was denied his Sixth Amendment right to effective assistance of counsel, and because the state courts failed to hold counsel to the standards enunciated by the Supreme Court and interpreted by this court, we vacate King's sentence for first degree assault *fn4 and remand to the district court with instructions to issue the writ, unless the State of Missouri commences proceedings to retry him within a reasonable time."

Brown v. O'Dea, No. 97-6355 (6th Cir. 09/22/2000) On remand in light of Williams the Sixth Circuit notes: 

As we stated in our prior decision, "'[w]hen a denial of a continuance forms the basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.'" Bennett v. Scroggy, 793 F.2d 772, 774 (6th Cir. 1986) (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981)). Based upon the foregoing, we cannot conclude that it was objectively unreasonable for the Kentucky Supreme Court to reject Petitioner's claim. As noted supra, defense counsel effectively cross-examined Dr. Shaler, eliciting a number of "admissions" that could have potentially discredited Dr. Shaler's conclusions. Furthermore, when presented with the opportunity to cross-examine Dr. Shaler regarding his misgivings, defense counsel chose not to do so. Accordingly, we are satisfied that Petitioner is not entitled to habeas relief with respect to this claim either.

United States v. McAllister, No. 99-3397 (8th Cir. 09/18/2000)  "This appeal raises a matter of first impression. 'Does 18 U.S.C. § 4246(e) [relating to "insanity defenses"]require a district court to conduct a hearing prior to conditionally releasing an individual who has been committed to the custody of the Attorney General of the United States pursuant to 18 U.S.C. § 4246(d)?' We find that § 4246(e) does not require a hearing. We also find that the conditions imposed upon Appellant as part of his release do not violate his constitutional or statutory rights."

Statutory Procedures Governing Modern Federal Capital Prosecutions

Because of growing constitutional questions, the use of the death penalty in federal prosecutions fell out of favor in the 1960's.  Following the Supreme Court's capital case decisions in 1972 and 1976, it was clear that federal death sentencing procedures were unconstitutional. See United States v. Woolard, 981 F.2d 756 (5th Cir.), reh. denied, 990 F.2d 819 (5th Cir. 1993); United States v. Cheely, 21 F.3d 914 (9th Cir. 1994).  Nothing was done to revise these procedures until 1988.

After many unsuccessful Congressional attempts to enact enforceable death penalty procedures during the 1970s and 1980s, the first modern statute became effective on November 18, 1988.  Commonly referred to as the "drug king-pin" statute, the passage of 21 U.S.C. § 848 (e)-(r) -- the Anti-Drug Abuse Act of 1988 -- ushered in the modern federal death penalty era. The reach of this statute was only to so-called "drug king-pin" murders and to drug-related murders of law enforcement officials.

Six years later, Congress enacted the Federal Death Penalty Act of 1994 as a part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L.No. 103-322, 108 Stat. 1796, effective September 13, 1994.  Dramatically expanding the reach of the federal death penalty, this statute modernized the capital sentencing procedure for every existing federal capital crime and created a number of new capital offenses.  The law created three general categories of capital offenses:

1) espionage and treason;

2) most homicides for which federal jurisdiction exists; and

3) continuing criminal enterprise drug offenses that do not involve the killing of anyone, but instead involve

(a) large quantities of drugs or money, or 

(b) the attempted murder of any public officer, juror, witness, or member of such person's family.

See 18 U.S.C. § 3591(a)(1), (a)(2), and (b).  All categories are tried under the same procedure, see 18 U.S.C. § 3593-97, but each category has its own set of statutory aggravating circumstances.  See 18  U.S.C. § 3592.

Under either death penalty statute, § 848 or § 3591 et seq., the procedure is similar:

An accused is entitled to appointment of at least two counsel, one of whom, must be experienced in death penalty defense, when he or she is indicted for a federal offense that is punishable by death.

Before the United States may seek the death penalty for the capital offense, the Attorney General personally must authorize the local United States Attorney to do so.  Even if the United States Attorney decides not to seek death, the case must be reviewed by the Attorney General.

Under either death penalty statute, the trial is bifurcated between the guilt-innocence determination and the sentencing determination.  The same jury tries both questions.

The government has the burden of proving aggravating circumstances beyond a reasonable doubt.  Aggravating circumstances are enumerated in the statutes but are not limited to the statutory lists.  The prosecution may also craft non-statutory aggravating circumstances that may be considered by the jury so long as the defendant is given notice of these factors.

The defense has the burden of proving mitigating circumstances by a preponderance of the evidence.  Mitigating circumstances are enumerated in the statutes but are not limited to the statutory lists. 

In the penalty phase, the government must establish:

(i) that the death(s) of the victim(s) was sufficiently intentional to satisfy Eighth Amendment requirements,

(ii) that at least one statutory aggravating circumstance exists,

(iii) that the statutory and non-statutory aggravating circumstances found to exist justify the imposition of death,

(iv) that the aggravating circumstances outweigh the mitigating circumstances, and

(v) that the balance of aggravating and mitigating circumstances warrants the imposition of death.

Appointment of Counsel; Role of Federal Defender

Upon indictment in federal court for any death-eligible offense, an accused person is entitled to appointment of two attorneys, at least one of whom must be "learned in the law of capital cases." 18 U.S.C. § 3005.  Judicial Conference policy is that "[o]rdinarily, 'learned counsel' should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure high quality representation."  Recommendation 1(b), Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning The Cost And Quality of Defense Representation ("Spencer Report") (adopted by the Judicial Conference September 15, 1998).  More than two attorneys can be appointed to represent a defendant in a capital case. 21 U.S.C. § 848(q)(4).  Additionally, the statute provides a role for the federal defender in the recruitment of qualified counsel, and instructs the court to "consider the recommendation of the federal defender organization ...." 18 U.S.C. § 3005.

In addition to the "learned counsel" requirement of § 3005, minimum experience standards for attorneys appointed in capital cases are set forth in 21 U.S.C. § 848(q).  Procedures for appointment of counsel and attorney qualification requirements are further detailed in Volume VII, Chapter VI, section 6.01 of the Judiciary Guide to Policies and Procedures.

Highly skilled and experienced counsel is critical at every stage of a federal death penalty proceeding, and it is important from the outset of a case that death qualified counsel be appointed to provide representation to defendants charged with a capital crime.  Attorneys faced with the possibility of appointment to a death-eligible case are urged to consult with their local Federal Defender Office and the Federal Death Penalty Resource Counsel Project for resources and legal support.
 
 

Department of Justice Authorization Procedures

The Department of Justice authorization procedures are set forth in Section 9-10.000 of the United States Attorney's Manual.  Promulgated in early 1995, the Department of Justice Death Penalty Guidelines and Procedures are intended to set forth the criteria to be utilized by local United States Attorneys and the DOJ in deciding whether to seek the imposition of the death penalty under federal law.  The procedures also outline certain steps to be followed by United States Attorneys and Main Justice in considering death penalty authorization requests.

The following is a summary of the Department of Justice policy and procedures in all federal cases in which a defendant is charged with an offense subject to the death penalty, regardless of whether the United States Attorney intends to request authorization to seek the death penalty:

The local United States Attorney's Office (USAO) cannot seek the death penalty without prior written authorization of the Attorney General.  A detailed death penalty evaluation memo must be prepared and sent to DOJ by the USAO in every death-eligible case, whether or not the U.S. Attorney wishes to seek the death penalty.

The United States Attorney must give notice and an opportunity to be heard to defense counsel before deciding whether to request death penalty authorization from the Attorney General.  Defense counsel must be given an opportunity to present facts, including mitigating factors, to the United States Attorney for consideration.

Within the Department of Justice, a review committee has been established to review each death-eligible case and to recommend to the Attorney General whether the death penalty should be sought.  The DOJ review committee is appointed by the Attorney General and includes representatives of the Deputy Attorney General and the Assistant Attorney General for the Criminal Division.  Members of a newly-created Capital Crimes Unit within the Criminal Division participate in the review process, but are not voting members of the committee.

Defense counsel is provided the opportunity to present to the DOJ review committee, orally or in writing, reasons why the death penalty should not be sought.  The Attorney General will conduct a review and make the final decision about whether the death penalty will be sought by the government.

If the Attorney General authorizes the United States Attorney to seek the death penalty, the defense is given notice of the decision by a "Notice of Intent to Seek the Death Penalty," in which the statutory and non-statutory aggravating circumstances that the government will try to establish are set forth. Notice of the government's intent to seek death must, under either death penalty statute, be given "a reasonable time" before trial.

The Department will reconsider decisions to authorize the death penalty whenever changed circumstances are brought to its attention.  These may include, among other things, newly-discovered evidence bearing on guilt, degree of guilt, relative culpability of co-defendants, and non-capital dispositions for equally culpable co-defendants.
 
 

Resources for the Defense

18 U.S.C. §§ 3006A(d)-(e) and 21 U.S.C. §§ 848(q)(4)-(10) govern the provision of counsel and other services in capital cases involving defendants "financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services...." § 848(q)(4)(B).  These sections should be read together.  They are overlapping but § 848 sets forth the specific (and overriding) provisions for resources in capital cases in the federal courts.

The monetary amounts in § 848 presumptively govern because they apply to capital cases, while the amounts in § 3006A apply to all federal criminal cases.  This is important, because the monetary amounts specified in § 848 are much higher.

Under both statutes, defense counsel's requests for funds for services other than counsel may be made ex parte. § 3006A(e)(1) expressly permits application for such services ex parte; § 848(q)(9) forbids ex parte application unless "a proper showing is made concerning the need for confidentiality."  Because of this language in § 848, it is necessary to establish early (whenever the first application for services other than counsel is made), that the need for the defense to be able to develop its case in confidence calls for standing permission to file all applications for services other than counsel ex parte. 

Case budgets are not yet required by legislation.  However, they are recommended by the Spencer Report. See Recommendations 9(a)-(k), Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning The Cost And Quality of Defense Representation ("Spencer Report") (adopted by the Judicial Conference September 15, 1998). T he logic behind cases budgets is "to require the lawyer to incorporate cost considerations into litigation planning" and to "encourage the use of less expensive means to achieve the desired end," as well as to "assist the court in monitoring the overall cost of representation in the case and [in] determining the reasonableness of costs."  Id. at 54.  In addition, case budgets assist in complying with a provision added to § 848(q) in 1996.

The Antiterrorism and Effective Death Penalty Act of 1996 amended 21 U.S.C. § 848(q)(10) to require district court "certifi[cation]" and circuit court "approval" when "[f]ees and expenses paid for investigators, experts, and other reasonably necessary services authorized under paragraph [(q)] (9)" exceed a total of $7,500. ( Note that attorney fees are not included within this process of review.)  By using budgets, this requirement can be met in a more efficient and meaningful way.  Two budgets should be prepared.  The first is a pre-authorization budget at the beginning of the case, which sets out the need for and estimates the cost of early investigative efforts focused on the authorization process. Since this budget is likely to exceed $7,500 in most cases, district court and circuit court approval can be sought at one time for a variety of investigators, consulting experts, and investigative expenses.  After the case is authorized, a second, more specific, more extensive, and more comprehensive budget can be developed for the remainder of the pretrial and trial proceedings.  This budget, of course, will have to be refined as trial approaches, but once it has been through the certification and approval process its amendment may be effected much more efficiently.  The budgeting process has the distinct advantage of helping the courts understand the need for particular services and expenses within a developing holistic view of the case, and for this reason, is extremely valuable in the court's assessment of whether expenses are reasonably necessary.
 
 

Other Statutory Provisions Governing Capital Cases

While most of the provisions governing capital cases are set out in 18 U.S.C. § 3005, 18 U.S.C. §§ 3591 et seq. and 21 U.S.C. §§ 848(e)-(q), two other provisions govern particular aspects of capital cases:

18 U.S.C. § 3281 provides that "[a]n indictment for any offense punishable by death may be found at any time without limitation."

18 U.S.C. § 3432 requires disclosure of government witnesses and a list of venire members at least three days before trial.

New Resources
"Diminishing Returns: Crime and Incarceration in the 1990s" by Jenni Gainsborough and Mark Mauer, is the first study to analyze the relationship between incarceration and crime at the state level in the 1990s.  The study, released by The Sentencing Project, finds little support for the notion that massive prison construction is the most effective may to reduce crime, and assesses the role that other factors have played in contributing to the decline in crime.  (Executive Summary, September, 2000)

Gore and Bush on the Death Penalty
The American Bar Association recently asked presidential candidates Al Gore and George W. Bush whether they would support a federal moratorium on the death penalty in light of the concern over whether racial and geographic disparities exist. [The following answers were given before the release of the Justice Department report showing such a disparity in the federal death penalty.]
Governor Bush:  "I do not support a national moratorium on the death penalty.  I believe that individual states should make every effort to ensure that their criminal justice systems are fair and impartial....  Any time DNA evidence...is deemed relevant in determining guilt or innocence of a person on death row, I believe we need to use it."
Vice President Gore's campaign responded:  "Al Gore will continue to support the death penalty in appropriate cases.  However, we must be vigilant not to allow race, class, or absence of competent counsel to have any influence in such crucial decisions.
"There does not seem to be a need at this time for a moratorium on federal executions...If clear evidence emerges that justifies a moratorium, Al Gore would not hesitate to support that step."  (ABA Journal, October, 2000)  See also, Federal Death Penalty
 

Foreign National Scheduled for Execution in Texas Despite Inadequate Representation
Miguel Flores, a Mexican national, is scheduled for execution in Texas on November 9, 2000. Flores's trial lawyer failed to offer any mitigating evidence during the sentencing phase of his trial.  He did not present evidence that Flores had no criminal record, nor did he call any members of the Flores family who were willing to testify to his good character and positive attributes.   "When one considers the conduct of Flores's trial attorney, it takes little inquiry to determine that this case is troubling," said a federal judge who reviewed the case.
Mexican consular officials have stated that had Flores been informed of his right, as a Mexican national, to seek assistance from the Mexican consulate, they would have ensured that he was represented by competent counsel.  Texas, however, failed to inform Flores of his right, as required under Article 36 of the Vienna Convention on Consular Relations.  (Amnesty International, AI Index: AMR 51/146/00, 9/26/00)

 Audio Interview on Justice Department Study
"Between the Lines," a weekly radio newsmagazine recently featured an excerpt from the talk show "Counterpoint." The show focused on a Justice Department report revealing racial and geographic disparities in the federal death penalty, and featured an interview with Death Penalty Information Center executive director, Richard Dieter, who examined the findings of the study and recent developments in the capital punishment debate.  The show is available on line at http://www.wpkn.org/wpkn/news/dieter092900.ram  (Needs RealPlayer G2, 7 or 8).
 

 Commentary
- Mary McGrory in the Washington Post (9/24/00):
"In Italy...I met a humble couple from a suburb of Venice who wanted to chat with an American tourist....  It turned out all the Italian couple needed to know [to decide about our presidential candidates] is the large number of executions in Texas.  La pena di morte  -- the death penalty -- the woman intoned.  The phrase reverberated through my stay."

-Richard Cohen in the Washington Post (9/26/00):
"[G]overnment...has the obligation to set an example.  Never mind that DNA testing has proved that mistakes can be made, or that the death penalty is exorbitantly expensive to administer or, for that matter, that the rich never are executed.  Just ask yourself what capital punishment preaches.  It is that, under certain circumstances, a life can be taken, a killing revenged.  But if the state has its reasons, the killer had his.  We play his game, accept his logic."

Martha W. Barnett, ABA President in the ABA Journal (October, 2000):
"While there may be a wide disparity of views on capital punishment, there is almost universal consensus that we should not be executing people who are innocent.
[P]roblems in the administration of the death penalty continue to haunt the system.  This is especially true in the provision of competent, adequately compensated indigent defense counsel.  Many states set unconscionably low limits on how much a court-appointed lawyer can receive, and a number of states cap reimbursable expenses at levels that do not permit reasonable investigative steps to be undertaken."

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