Capital Defense Weekly 

A sole capital case is covered this week, and like most cases out of the Fifth Circuit it is a lost.  The panel in ROBERTSON v. JOHNSON holds that failure to instruct via special issue in a a capital case about mitigating evidence is not reversible error where the jury instructions instruct on mitigation through other means.

Bush v. Gore, which looked as possibly offering a promising new venture into the realm of equal protection analysis, will not be covered in this edition.

The feature article this week examines actual innocence.

To obtain a COA, Robertson must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Barrientes v. Johnson, 221 F.3d 741, 771 (5th Cir. 2000). To meet this standard, Robertson must demonstrate "`that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Barrientes, 221 F.3d at 771 (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000)). 

"[T]he determination of whether a COA should issue must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Id. Under that section, we are required to defer to a state habeas court's adjudication of a state prisoner's habeas claims on the merits unless the state habeas court's decision: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or (2) constituted an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). 

The purpose and intent of § 2254(d) is to restrict the number of cases in which competent adjudications by our state courts are subjected to open-ended and unfettered review by the federal courts. For that reason, a state habeas court's decision will generally not be considered "contrary to" clearly established federal law unless: (1) the court's legal conclusion is in direct opposition to a prior conclusion of the United States Supreme Court on the same legal issue, or (2) the court reaches a different result than a prior decision of the United States Supreme Court on a set of materially indistinguishable facts. See Barrientes, 221 F.3d at 772. Similarly, a state habeas court's decision will not be considered an "unreasonable application" of clearly established federal law unless, notwithstanding the fact that the state court has correctly identified the controlling legal principles, the state habeas court applies those principles to the petitioner's case in an unreasonable manner. Id.

AEDPA likewise obligates the federal habeas courts to afford the state habeas court's factual determinations substantial deference. Indeed, we must presume that the state habeas court's factual determinations are correct, unless rebutted with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). 

Robertson has not, in this case, satisfied AEDPA's rigorous standard for establishing error in the legal conclusions or factual determinations made by the state habeas court when adjudicating his claims. With respect to Robertson's first issue, his argument that due process required that his jury be given an instruction on the lesser included offense of murder, the state habeas court's legal analysis was appropriately premised upon the Supreme Court's decision in Beck. Robertson does not identify any other Supreme Court authority capable of calling the state habeas court's reliance upon that case or its application of that case unreasonable. Rather, Robertson's essential point is that the jury could have acquitted on the capital murder charge and convicted on a murder instruction because the jury could have rationally found that he did not form the intent to rob Mrs. Brau until after the offense was completed. We take his point to be primarily a challenge to the state habeas court's factual and record-based findings: (1) that there was ample record evidence to establish that Robertson formed the intent to rob Mrs. Brau before he killed her, and (2) that there was absolutely no record evidence to support Robertson's speculative contention that he could have formed the intent to rob Mrs. Brau after he shot her. 

Having reviewed the record in light of Robertson's claim, we find no basis for finding that the state habeas court's factual determinations in this regard are either unreasonable or rebutted by clear and convincing evidence to the contrary. Robertson has not identified any actual record evidence, let alone clear and convincing evidence, that the factual conclusions of those courts were in error. Robertson's claims to the contrary are nothing more than supposition, which do not deserve encouragement and could not have served as the foundation of a rational jury finding. We therefore deny Robertson's motion for COA as to his argument that the trial court's refusal to give a murder instruction violated his constitutional rights.

With respect to Robertson's second issue, his argument that the jury instructions failed to provide an adequate vehicle for the consideration of constitutionally relevant mitigating evidence, Robertson's primary argument is that the state habeas court's decision was either contrary to or constituted an unreasonable application of the Supreme Court's decision in Penry v. Lynaugh, 109 S. Ct. 2934 (1989).

We disagree. Robertson proceeded to trial in August 1990, and he was sentenced to death in February 1991. At that time, the Texas death penalty scheme, codified at Texas Code of Criminal Procedure article 37.071, required affirmative answers to two special issues: one on deliberateness and one on future dangerousness. The statute further required an instruction on provocation, if warranted by the evidence. 

In 1989, the Supreme Court reviewed this same version of the Texas statute in Penry. Penry held that the statutory issues standing alone, without further instructions to the jury, did not provide Penry's jurors with an adequate vehicle for rational consideration of constitutionally relevant mitigating evidence of Penry's mental condition. See Penry, 109 S. Ct. at 2949-52. The Supreme Court remanded the case for resentencing, requiring that additional instructions be given on the issue of mitigating evidence. The Supreme Court did not, however, direct that any particular scheme be used to permit consideration of mitigating evidence. Moreover, the Supreme Court framed its discussion primarily in terms of additional instructions that might be given to the jury, rather than in terms of an additional special issue. See id. at 2952; see also id. at 2943-44, 2948, 2949, 2951. Thus, Penry left the issue of precisely what instructions were required to permit proper consideration of mitigating evidence to the discretion of Texas trial judges. 

When Robertson was tried, Texas courts were approaching the Penry issue on a case by case basis, with many employing instructions similar to those used in Robertson's case. See Goff v. State, 931 S.W.2d 537, 551 & n.3 (Tex. Crim. App. 1996); Lewis v. State, 911 S.W.2d 1, 6 & n.12 (Tex. Crim. App. 1995); Patrick v. State, 906 S.W.2d 481, 493-94 (Tex. Crim. App. 1995); Heiselbetz v. State, 906 S.W.2d 500, 503 (Tex. Crim. App. 1995); Riddle v. State, 888 S.W.2d 1, 7-8 (Tex. Crim. App. 1994); Garcia v. State, 887 S.W.2d 846, 860 (Tex. Crim. App. 1994); Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). Robertson has not identified any portion of Penry or any other then-applicable Supreme Court authority that would render the approach taken by the Texas courts in general or his state habeas court in particular contrary to or an unreasonable application of clearly established federal law. Moreover, this Court has already rejected the argument that the approach taken by the Texas courts constituted an unreasonable application of the Supreme Court's decision in Penry. See Penry v. Johnson, 215 F.3d 504, 508-09 (5th Cir. 2000), pet. for cert. filed, (U.S. Nov. 16, 2000) (No. 900-6677).(3) We, therefore, deny Robertson's motion for COA as to his argument that the trial court's jury instructions on the issue of mitigating evidence failed to provide an adequate vehicle for the jury's discretion in this capital case. 

WASHLEFSKE v. WINSTON (4th Cir 12/06/00 - No. 99-7321) State prisoners do not enjoy constitutionally protected property  interest in wages or interest earned from work programs advancing the state's important interest in managing its inmate population and pursuing rehabilitation efforts.

To read the full text of this opinion, go to:

QUINN v. HAYNES (12/06/00 - No. 99-7520) A state's interest in protecting victims of sexual abuse from needless harassment, humiliation and unnecessary invasions of privacy justifies requiring some showing of falsity, not mere denials, before inquiring about allegations of prior abuse.

WILKERSON v. CAIN (12/06/00 - No. 98-30693) Where prosecution's case hung on the testimony of a single eye-witness,  the district court committed clear error in not allowing evidence suggesting that the witness was testifying in exchange for transfer to  a different prison.

WOODS v. CITY OF CHICAGO (7th Cir 12/08/00 - No. 99-4069) Criminal complaint filed by assault victim with police alleging plaintiff committed assault gave police probable cause to arrest plaintiff, and act reasonably without a warrant for misdemeanor assault one day after the criminal complaint was filed.

MARX v. GAMMON (8th Cir12/06/00 - No. 99-3812) Properly filed post conviction petitions toll the one-year statute of limitations under 28 USC 2244(d), making timely a habeas petition filed one year and 40 days after final judgment.

MCROBERTS v. BOWERSOX (12/08/00 - No. 99-3844) Even though petitioner's failure to produce proposed witnesses at his post-conviction proceeding meant that the court was unable to rely on that testimony, substantial evidence of his guilt precluded a  likelihood that the evidence would change the outcome of the trial.

NUCKOLS v. GIBSON (12/04/00 - No. 99-6325) Where admissibility of defendant's murder confession hinges on credibility of officer who solicited the confession, evidence that officer may have been himself a suspect in the underlying murder should be admitted.

PRESTON v. GIBSON (12/07/00 - No. 00-7069) Habeas petition filed three years after administrative and criminal penalties is untimely under 28 USC 2244(d)(1), and is not tolled by recent cases applying state law.

PEOPLE v. DUARTE (12/04/00 - No. S068162) Co-conspiratot's post-arrest statement that he and defendant had committed a drive-by shooting in retaliation for an earlier shooting,  is not sufficiently reliable to be a statement against penal interest because it implicated defendant more than co-conspirator.

 
The Innocence Project was created in 1992 when Barry Scheck and Peter Neufeld used new DNA testing techniques to prove that an alleged rapist had been wrongly convicted.  Following this case Scheck and Neufeld received hundreds of letters from prisoners throughout the United States all begging for assistance in proving their innocence.  At the time of writing the book, Actual Innocence, in August 1999, the Innocence Project had helped to free thirty-seven wrongly convicted people, including several who had been sentenced to death.  The book examines the reasons why mistakes are made, including:
 

False Confessions
In 1987 in Oklahoma, Robert Miller, a regular drug user, suggested to the police that he had some kind of psychic link to a murderer who had raped and killed a number of elderly women.  In the twelve hours of interview that followed, Miller, prompted by police, gave a hit-and-miss account of the crime as seen through his ÒvisionsÓ.  Miller was convicted of the murders and sentenced to death.  In 1991 and 1993, DNA tests proved that Miller could not have been the rapist.  Despite this and the fact that another man had been arrested and convicted of almost identical rapes in the same neighborhood, Miller was not freed until 1998.

Many people consider a confession to be the strongest kind of evidence of guilt.  Studies show that up to 73% of juries will convict on confession evidence, even when the admissions have been repudiated by the defendant and contradicted by physical evidence.  Among DNA exonerations studied by the Innocence Project, 23% of the convictions were based on false confessions or admissions.
 

White Coat Fraud
Fred Zain was frequently called as an expert witness by the state to testify that blood and semen evidence matched that of accused persons.  In 1993, an investigation showed that Zain did no tests on some evidence and could not have reached the conclusions he testified to based on the tests he did carry out.  The West Virginia state supreme court said, "as a matter of law, any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable, and inadmissible."  By this time Zain had moved from West Virginia and was continuing his work in Texas, a death penalty state.  Evidence suggests that ZainÕs is not an isolated case.  ÒExpertÓ evidence is often given special weight by juries who have no way of  knowing exactly what the expertÕs qualifications are.

Snitch Evidence and Junk Science
In 1987 Ronald Williamson and Dennis Fritz were convicted of a brutal rape and murder in Oklahoma when a jailhouse snitch claimed that she had heard Williamson confess to the crime.  Hair found at the scene of the crime was said to be "consistent" with Fritz's hair.  Williamson was sentenced to death and Fritz was given a life sentence.   Williamson and Fritz were released in 1999 when DNA evidence exonerated them and implicated another man.

Thirteen other men (some 21% of Innocence Project cases) ultimately freed by DNA evidence were convicted through snitch testimony.  New DNA tests carried out on the seventeen hairs found at the crime scene in the Williamson case and supposedly ÒmatchedÓ to Williamson and Fritz found that not one belonged to either defendant - a 100% error rate.  Other proficiency testing programs have shown that error rates in making matches between hair samples were between 27.6 to 67.8% - little better than flipping a coin.
 

Prosecutorial Misconduct
Two investigators in the sheriff's office in DuPage County, Illinois, quit in disgust when the county pressed on with a case against Rolando Cruz and Alejandro Hernandez and ignored mounting evidence that the men were not guilty of the rape and murder of a child.  A prosecutor in the attorney general's office also resigned after declining to prosecute the case.  After twelve years and three trials, the charges against Cruz and Hernandez were eventually dropped.  Following the case, three prosecutors and four sheriff's office investigators were indicted for perjury and obstruction of justice.  All of the officials were acquitted.

Prosecutorial or police misconduct played a part in 63% of the convictions that DNA testing by the Innocence Project later overturned.  Since 1963, at least 381 murder convictions in the United States have been reversed because of misconduct by police or prosecutors.
 

Representation
Dennis William's attorney in Illinois was so ineffective at his trial for capital murder that a Supreme Court judge stated that Williams had not gotten a decent day's work from his attorney.  William's death sentence was later overturned.  Lawyers who sleep through cases, do not understand the relevant law, or who were under the effects of drugs or alcohol during the trial, have been held to be effective counsel by the courts.  Studies by the Innocence Project found that 27% of those wrongfully convicted had sub-standard legal assistance.

In many states those convicted of a capital crime have no right to assistance in the post-conviction appeals process and are therefore obliged to represent themselves.  Stephen Bright of the Southern Center for Human Rights says, ÒMany of those poor people, particularly the illiterate or the mentally retarded, are no more prepared to file and litigate a postconviction challenge without a lawyer than  a passenger can be expected to fly the Concorde to France without a pilot.Ó
 

DNA Evidence
At the center of many of the stories recounted in Actual Innocence is DNA evidence that eventually freed the innocent men.  Kirk Bloodsworth spent nine years on death row in Maryland until DNA evidence proved that he was innocent of the horrific rape and murder of a young girl.  The true killer has never been found.  At the time Actual Innocence was written, seven men had been released from death row as a result of DNA evidence.

Oklahoma Prepares to Execute First Woman Since 1903
Wanda Jean Allen is scheduled to become the first woman executed in Oklahoma since statehood on January 11, 2001. Oklahoma City NAACP president Roosevelt Milton and others are urging the state Pardon and Parole Board to recommend that Governor Keating commute Allen's sentence to life without parole, saying her case illustrates the injustices of the death penalty.   Allen's trial attorney, who had no previous experience with capital cases, tried the case with no co-counsel, no investigator, and no resources to hire expert witnesses.  The trial court denied his offer to act as co-counsel for free if an experienced public defender was appointed as lead counsel.  Mitigating evidence, such as Allen's low IQ and her psychological state and brain trauma from previous injuries, were not raised at trial.
     Allen's clemency hearing before the state Pardon and Parole Board is scheduled for December 15. If executed, Allen will be the first African American woman to be put to death in the United States since Betty Butler was executed in Ohio in 1954.  The last woman to be executed in Oklahoma was Dora Wright in 1903.  (The Daily Oklahoman, 12/12/00 and National Coalition to Abolish the Death Penalty Press Release, 12/00)   See also, Women and the Death Penalty
 

 Philippine President to Commute Over 1,500 Death Sentences
On December 9, Philippine President Joseph Estrada announced plans to commute all of the country's death sentences to life imprisonment.  The announcement came after Estrada was urged by Bishop emeritus Antonio Fortich to release all political prisoners before Christmas.  Estrada agreed to release the prisoners, and added that he would commute the sentences of those under sentence of death.  Earlier this year, Estrada approved a request by Catholic bishops for a moratorium on executions.  According to press secretary Ricardo Puno, Estrada is also likely to commute the sentences of prisoners sentenced to death in the future.  (Associated Press, 12/10/00)  See also, International Death Penalty

Thailand Proposes Ban on Juvenile Death Penalty
In Thailand, a bill to ban the death penalty and life imprisonment for juvenile offenders was submitted by the Attorney-General's office to be put on the agenda for a December 12 cabinet meeting. If passed, the bill, which will replace the sentences with a maximum penalty of 50 years imprisonment, will bring Thailand's laws in line with international conventions that prohibit such penalties for juveniles. See also, Juveniles and International Death Penalty

 Clinton Grants Stay of Execution for Garza; Texas Breaks Execution Record
Citing the findings of a Justice Department study showing racial and geographic disparities in the federal death penalty, President Clinton granted a six month reprieve to Juan Raul Garza, who was scheduled to be executed on December 12.  "I am not satisfied that, given the uncertainty that exists, it is appropriate to go forward with an execution in a case that may implicate the very issues at the center of the uncertainty," said Clinton. (New York Times, 12/8/00)  Considerable opposition to the execution had been expressed by major civil rights leaders, religious organizations, and legal experts from around the country.  See New Voices.
     Meanwhile, executions in Florida and Texas brought the total number of executions so far this year to 84. Claude Jones's execution marked the 40th execution in Texas this year, the most executions by any state in a single year in U.S. history.  (Houston Chronicle, 12/7/00) Florida death row inmate, Robert Glock, II, whose execution was scheduled for December 8th, received a stay from the Florida Supreme Court.

Poll Finds Wrongful Convictions Leave Jurors Less Inclined to Impose Death Sentences
A recent poll of potential jurors by The National Law Journal and DecisionQuest found that recent exonerations of death row inmates, both by DNA and outside investigations, have made 31% of potential voters more inclined to vote for life imprisonment instead of the death penalty.  In addition, the poll found that less than half of those surveyed believe that current procedures for reviewing death sentences are adequate. (National Law Journal, 12/11/00)  See also, Recent Poll Findings

The Federal Death Penalty
The United States federal death penalty was first used on June 25, 1790, when Thomas Bird was hanged for murder in Maine.  Since then, 336 men and 4 women have been executed under federal auspices.  Of these inmates, 134 (39%) were white; 118 (35%) black; 63 (19%) Native American; and 25 (7%) were Hispanic or unknown.  In the Twentieth Century, 61% of federal executions were of minority defendants.
     The federal government has utilized hanging, electrocution, and the gas chamber to execute these 340 prisoners.  The majority of inmates were executed for murder or crimes resulting in murder, but convictions for piracy, rape, rioting, kidnapping, and spying and espionage also yielded federal executions.   There have been no federal executions since Victor Feguer was hanged in Iowa for kidnapping in 1963.  See also, federal death penalty.

 New Resources
The latest version of the NAACP Legal Defense Fund's "Death Row USA" (October 1, 2000) is now available on DPIC's Web site. The report shows that although there was a relatively small increase in the number of death row inmates since July 1, 2000, the increase of blacks on death row was more than double the increase of whites.

Former Pro-Death Penalty Legislator Plans to Introduce Aboliton Bill in Virginia
Republican Del. Frank D. Hargrove Sr., (R-Hanover) recently stated his intent to introduce a death penalty abolition bill in the upcoming General Assembly.

"One of the responsibilities of government is to protect the public. I have voted for the death penalty over the years numerous times."  "But now that we have life without parole I believe that addresses the situation without a sentence that is irreversible." He said if you make a mistake in the death penalty, "you can't go back and reverse it."   He said the death penalty cannot be shown to be a deterrent, that it probably costs no more to imprison an inmate for life than it does to pursue a death case through trial and appeals and that it's still an imperfect process even with DNA.  "I know, politically, some folks will say they think I'm crazy, but I'm not interested in the politics of it," said Hargrove. "This eliminates the possibility of the awful mistake.  It's not a political issue, it's not an economics issue." (Richmond Times-Dispatch, 11/14/00)

See also, New Voices
 

 New Resources
Published by the International Commission of Jurists, "The Death Penalty: Condemned" (September, 2000) contains a collection of papers presented at the International Commission of Jurists's April 12, 1999 roundtable, "The Death Penalty: Some Key Questions."  Papers address such issues as the needs of victims, and the use of the death penalty in the United States, the Russian Federation, and Trinidad and Tobago.  Visit International Commission of Jurists's Web site to read the introduction. See also, additional resources
 

As always, this newsletter was put together,flying by the seat of my pants,and only reviewed while under the influenceof a caffeine induced stupor,or put another way, please excuse any creativeuse of the mother tongue,typos and/or errors.

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Volume III, issue 43.
 
 
 
 
 

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