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Five capital cases of note are covered this week, three wins, two losses.
Possibly the most wide reaching is Fahy v. Horn (3rd Cir) which deals with
the technicalities of the AEDPA's statute of limitations. With similar
potential for broad impact is the Florida Supreme Court's holding in Rogers
v. Florida vacating the condemned's conviction due to prosecutorial
misconduct. Likewise the Illinois Supreme Court in People v. Lee
vacates a death sentence due to the trial court's lack of statutory authority
to order a capital defendant to submit to a psychiatric examination during
the penalty phase of a trial. In Romano,
et. al. v. Gibson the Tenth Circuit in this Oklahoma double prosecution
denies relief where the petitioners attempted to put on evidence
inculpating others & were denied. Finally, the Fifth Circuit in Kutzner
v. Johnson holds conflicting or inconsistent testimony alone did
not meet the materiality requirements for prosecutorial error.
The Illinois
Supreme Court's death penalty proposed rules are now available
at http://www.capitaldefenseweekly.com/briefbank/illinois/illinoisdeathpenaltyrules.pdf.
My apology for the delay as they were difficult to obtain.
The briefbank at the Toolbox is being overhauled & the hope is to
have about 400 briefs & motions from around the country online by the
of the summer (they are scanned it is just a question of getting them indexed).
As part of the overhaul links the weekly will link to the briefs in a covered
case where possible. At the moment it is largest public collections
of briefs & motions relating to capital defense (or more appropriately
links to briefs and motions) on the net. If you have a motion,
brief or pleading you are proud of and would like to share please feel
free to forward to cdw@karlkeys.com. Noncapital materials are always
appreciated as well. If your briefs are already online, drop a line and
say where and it will be included in a complimentary link. At the
moment the briefbank update appears to be relying heavily on Florida
capital materials and links to federal motions and appellate brief. Details
of the project will be released as the project appears fruition sometime
this summer. A big thanks goes out to the technical consultants on
this project, who have helped figure out how to acquire the needed briefs
& get the briefbank into shape.
Featured this week is the DC federal defenders and their amazing briefbank.
For those who receive this newsletter in a hard copy format, get to a web
browser, otherwise point and click to http://www.dcfpd.org/motions.
The DC brief bank is not readily navigable, from either search engines
or even from the website proper, however, what it lacks in layout, it more
than makes up in content. For those online, many of the briefs
& motions are linked below.
The last week's edition of Capital Defense Weekly was sent out on the
fourteenth. The weekly appears to have vanished into
the ether of the net with no one apparently to locate where it went. A
remailing has been sent out as well, that too has disappeared into the
ether of the net. The link is http://www.capitaldefenseweekly.com/archives/010212.html.
This week's edition is available at http://www.capitaldefenseweekly.com/archives/010219.html
Capital Defense Weekly will most likely not run next week due to an out
of town commitment.
Supreme
Court
Illinois
v. McArthur (US) "Police officers . . . believed that a man had
hidden marijuana in his home, prevented that man from entering the
home for about two hours while they obtained a search warrant. .
. .. We conclude that the officers acted reasonably. They did not violate
the Amendment’ s requirements."
Held: Given the nature of the intrusion and the law enforcement
interest at stake, the brief seizure of the premises was permissible under
the Fourth Amendment. Pp. 3-10.
(a) The Amendment's central requirement is
one of reasonableness. Although, in the ordinary case, personal property
seizures are unreasonable unless accomplished pursuant to a warrant, United
States v. Place, 462 U. S. 696, 701, there are exceptions to this rule
involving special law enforcement needs, diminished expectations of privacy,
minimal intrusions, and the like, see, e.g., Pennsylvania v. Labron, 518
U. S. 938, 940-941. The circumstances here involve a plausible claim of
specially pressing or urgent law enforcement need. Cf., e.g., United States
v. Place, supra, at 701. Moreover, the restraint at issue was tailored
to that need, being limited in time and scope, cf. Terry v. Ohio, 392 U.
S. 1, 29-30, and avoiding significant intrusion into the home itself, cf.
Payton v. New York, 445 U. S. 573, 585. Consequently, rather than employing
a per se rule of unreasonableness, the Court must balance the privacy-related
and law enforcement-related concerns to determine if the intrusion here
was reasonable. Cf. Delaware v. Prouse, 440 U. S. 648, 654. In light of
the following circumstances, considered in combination, the Court concludes
that the restriction was reasonable, and hence lawful. First, the police
had probable cause to believe that McArthur's home contained evidence of
a crime and unlawful drugs. Second, they had good reason to fear that,
unless restrained, he would destroy the drugs before they could return
with a warrant. Third, they made reasonable efforts to reconcile their
law enforcement needs with the demands of personal privacy by avoiding
a warrantless entry or arrest and preventing McArthur only from entering
his home unaccompanied. Fourth, they imposed the restraint for a limited
period, which was no longer than reasonably necessary for them, acting
with diligence, to obtain the warrant. Pp. 3-6.
(b) The conclusion that the restriction was
lawful finds significant support in this Court's case law. See, e.g., Segura
v. United States, 468 U. S. 796; United States v. Place, supra, at 706.
And in no case has this Court held unlawful a temporary seizure that was
supported by probable cause and was designed to prevent the loss of evidence
while the police diligently obtained a warrant in a reasonable period.
But cf. Welsh v. Wisconsin, 466 U. S. 740, 754. Pp. 6-7.
(c) The Court is not persuaded by the countervailing
considerations raised by the parties or lower courts: that the police proceeded
without probable cause; that, because McArthur was on his porch, the police
order that he stay outside his home amounted to an impermissible "constructive
eviction"; that an officer, with McArthur's consent, stepped inside the
home's doorway to observe McArthur when McArthur reentered the home on
two or three occasions; and that Welsh v. Wisconsin, 466 U. S. 740, 742,
754, offers direct support for McArthur's position. Pp. 7-10.
304 Ill. App. 3d 395, 713 N. E. 2d 93, reversed and remanded.
Captial
Case Relief Granted
Rogers
v. Florida (Florida) Conviction vacated where government suprressed
earlier confession by a co-defendant thta was favorable to the condemned's
defense, suppressed exculpatory police reports, & evidence of
unduly coached testimony.Defendant's
brief Government's
Brief
(1) The second confession by McDermid. McDermid wrote a list
of robberies to which he confessed, and Rogers obtained a copy of this
first confession. However, McDermid later wrote a more extensive list of
robberies and stated in the second confession that Rogers participated
in each robbery listed. Rogers was not given a copy of this second confession.
There is no doubt that this second confession was in the State's possession
in this case since that confession has on it the initials of Detective
Edmonson, who was a police investigator in the Winn-Dixie case. For the
reasons stated below, the second confession was material, and the Court's
conclusion that the availability of McDermid's first confession sufficed
is legally erroneous.
(2) The report from the Jacksonville police concerning a Pantry Pride
robbery in Jacksonville in December 1981. This report, dated January 30,
1982, states in pertinent part:
The 2nd lead in this case is information developed at the beaches area
on suspects named George William Cope, Carolyn Woods, and Dennis L. Herman.
A confidential [*23] informant reported that he overheard a
conversation with these subjects in a bar at the beaches area that they
were possibly involved or he was led to believe that they may have been
involved in the robbery/murder of the Winn-Dixie Manager in St. Augustine
that occurred after this robbery occurred. The subject forwarded the name
of Billy Cope to this office . . . . the writer requested records on all
these people from the Ohio police and instead of sending them to me, they
sent them to Sg. Nicklo in St. Augustine who is working the robbery/murder
there. The writer is still trying to get this information from Ohio police
or Sgt. Nicklo, but as of this date has been unsuccessful in getting it."
(Emphasis added.)
(3) A cassette tape of a witness preparation conference in which McDermid
discusses what his trial testimony will be with one of the prosecutors
and Detective Edmonson.
We also do not agree with the trial court's conclusion that the documents
were not material under Brady. The overarching theory of Rogers' defense
was that he had been misidentified and was not McDermid's accomplice. The
State's case, to a substantial extent, relied upon McDermid's testimony
[*24] that Rogers was the other person involved in robbing the Winn-Dixie
and who fired the fatal shot resulting in the murder.
. . .
In reviewing the impact that withheld materials might have on defendants,
courts must assess the cumulative effect of the evidence. See Kyles, 514
U.S. at 441. In other words, courts should assess the importance of the
suppressed materials taken together. See id. In addition, courts should
consider not only how the State's suppression of favorable information
deprived the defendant of direct relevant evidence but also how it handicapped
the defendant's ability to investigate or present other aspects of the
case. See United States v. Bagley, 473 U.S. 667, 683, 87 L. Ed. 2d 481,
105 S. Ct. 3375 (1985) (reviewing court may consider directly any adverse
effect that prosecutor's failure to respond to request for information
from defendant might have had on preparation or presentation of defendant's
case).
The materials that the State withheld from Rogers are bedrock Brady
materials of the sort upon which many [*35] courts have relied
in ordering new trials. We conclude that the individual as well as the
cumulative effect of the suppression of the materials discussed above indeed
undermines confidence in the outcome of the trial.
In light of this Brady error, we conclude that Rogers is entitled to
a new trial. Accordingly, we reverse the order denying Rogers' motion for
postconviction relief and remand to the trial court with directions that
a new trial be conducted without delay.
People v. Lee (Illinois) (Available only from Lexisone.com) No statutory
authority existed to order a capital defendant to submit toa psychiatric
examination during the penalty phase for the purposes of the state to rebut
mitigating evidence.
It is clear that Dr. Markos' testimony at the death penalty
hearing was critical. For purposes of this appeal, however, the critical
question is whether the trial court could require that defendant submit
to the examination by Dr. Markos. The State concedes, and we agree, that
section 115-6 of the Code of Criminal Procedure does not authorize the
psychiatric examination in question. Section 115-6 comes into play if a
defendant gives notice that he may rely upon the defense of insanity at
trial or if the defendant indicates that he intends to plead guilty but
mentally ill or the defense of intoxicated or drugged condition. See 725
ILCS 5/115-6 (West 1996); People v. Harlacher, 262 Ill. App. 3d 1, 7-8,
199 Ill. Dec. 527, 634 N.E.2d 366 (1994). Defendant informed the trial
court and the State that he would not rely upon any of these defenses at
trial. Indeed, defendant did not present any testimony at trial.
The State also concedes, and we agree, that Supreme Court [*20]
Rule 413 does not authorize a psychiatric examination of a defendant. Pursuant
to Rule 413, a judicial officer may require that an accused submit to a
reasonable physical or medical inspection of his body. See 134 Ill. 2d
R. 413(a)(ix). However, a psychiatric examination is not "a 'medical inspection'
of the type contemplated by the rule." People v. Larsen, 74 Ill. 2d 348,
352, 24 Ill. Dec. 538, 385 N.E.2d 679 (1979).
Nevertheless, the State maintains that the trial court's order requiring
that defendant submit to the psychiatric examination was proper because
the examination was necessary to provide the State a fair opportunity to
rebut the expert testimony defendant presented in mitigation. Defendant
counters that the supreme court rules governing discovery in criminal trials
(134 Ill. 2d Rs. 411 through 415) are not applicable at a death penalty
hearing. We agree that, as presently written, the supreme court rules governing
discovery do not apply to death penalty hearings.
In People v. Foster, 119 Ill. 2d 69, 115 Ill. Dec. 557, 518 N.E.2d 82
(1987), this court considered the defendant's claim that the State was
required to disclose notes on interviews [*21] it conducted
with witnesses testifying in aggravation. The court noted that Rule 411
provides that the criminal discovery rules shall be applied in all criminal
cases wherein the accused is charged with an offense for which, upon conviction,
he might be imprisoned in the penitentiary. Thus, the criminal discovery
rules were designed for use in connection with criminal trials. The court
reasoned:
"[A] defendant at the sentencing stage of a felony prosecution has
already been convicted and, therefore, is 'entitled to fewer procedural
safeguards than one who has not been convicted at all.' [Citations.] Indeed,
it has repeatedly been held that the admissibility of evidence at the aggravation
and mitigation phases of a sentencing hearing is not governed by the restrictive
rules of evidence in effect at the guilt stage of the trial. [Citations.]
As stated, discovery is not constitutionally required. We consider that
the defendant's request to change our discovery rules to include sentencing
hearings is unnecessary in light of the present safeguards afforded a defendant
in sentencing hearings." Foster, 119 Ill. 2d at 102-03.
See also People v. Williams, 147 Ill. 2d 173, 264, 167 Ill. Dec. 853,
588 N.E.2d 983 (1991). [*22]
In the case at bar, the trial court convicted defendant of murder and
aggravated vehicular hijacking on November 7, 1997. On December 3, 1997,
following opening arguments at the second phase of the death penalty hearing,
the trial court ordered that defendant submit to a psychiatric examination
by the State's expert. The trial court's order was not authorized either
by statute or by rule. As such, the trial court's order was improper.
The State maintains that it must be afforded an opportunity to rebut
the mitigation evidence presented by defendant. The State argues that the
only way it could effectively rebut the mitigation evidence was to have
its expert perform the psychiatric examination in question. The State requests
that this court "impose a rule which is grounded in equity" allowing the
psychiatric examination. We are cognizant of the problems confronting the
State. However, the actions of the trial court and the actions of this
court must be guided by the supreme court rules as presently written. At
the time the trial court ordered defendant to submit to the psychiatric
examination, such action was not authorized.
Having determined that the trial court's order requiring [*23]
that defendant submit to a psychiatric examination was improper, we must
determine whether the error prejudiced defendant. We find that it did.
Defendant was 23 years old when he killed Officer Samfay. Defendant did
not have a criminal history; the murder and aggravated vehicular hijacking
were his first criminal offenses. Defendant presented substantial evidence
in mitigation, including the testimony of three experts regarding defendant's
mental health. Discounting Dr. Markos' testimony, the State's evidence
in aggravation consisted of the facts of the offenses defendant committed;
defendant's admission that he transported a gun under the passenger seat
of his car; testimony that defendant possessed certain periodicals and
catalogs related to weapons and ammunition; and testimony that defendant
was able to deal with stress at work and did not appear to be upset on
the day of the shooting. With respect to the periodicals and catalog, the
State did not, and could not, contend that it is illegal to possess these
items. As to the testimony that defendant did not appear to be upset at
work, defendant left work at 3 p.m., had a discussion with his adoptive
mother regarding the proposed [*24] wedding when he returned
home, left the house to go target shooting, and had the tragic encounter
with Officer Samfay shortly thereafter.
Dr. Markos' testimony was critical to the State. Dr. Markos contradicted
the defense theories that mental disorders ran through defendant's biological
family; that defendant suffered harm from his abandonment by his biological
mother, placement in foster care, separation from his foster care family
and adoption by his adoptive family after he had bonded with his foster
care family; that defendant was a troubled adolescent who was hospitalized
for latent psychotic problems, but did not receive follow-up care after
his discharge from the hospital; that defendant continued to experience
problems after his discharge from the hospital and was less capable than
others of dealing with stress; and that the murder of Officer Samfay was
an explosive manifestation of the mental disorders from which defendant
suffered. Dr. Markos also testified that defendant had adjusted to prison
life and was not receiving psychiatric treatment in the penitentiary, even
though, having been convicted of the present offenses, defendant was in
a situation most people would find [*25] very stressful. Moreover,
Dr. Markos' testimony had several indicia of reliability. The jury was
informed that Dr. Markos' examination of defendant was done pursuant to
a court order. Further, Dr. Markos was able to relate to the jury information
given by defendant regarding defendant's state of mind on the day of the
shooting.
We believe that defendant was prejudiced by the order requiring that
he submit to the psychiatric examination. Accordingly, we remand to the
trial court with instructions to hold a new death penalty hearing.
Captial
Cases Remanded for Further Adjudication
Fahy v. Horn (3rd Cir) (Available only from Lexisone.com) Appellee
's petition was not out of time under the AEDPAdue to equitable tolling.
I. Statutory Tolling
Three provisions of the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") are relevant to Fahy's habeas petition. First, the AEDPA
sets a statute of limitations period of one year to apply for a writ of
habeas corpus challenging state court action. See 28 U.S.C. § 2244(d)(1);
Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999). This period begins running
from "the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review." Id.
However, the statute of limitations may be statutorily tolled during "the
time during [*6] which a properly filed application for State
post-conviction relief or other collateral review with respect to the pertinent
judgment or claim is pending." Id. (emphasis added). Second, § 2254
requires petitioners to exhaust their state court remedies "unless there
is an absence of available corrective state process or state remedies are
ineffective." Morris, 187 F.3d at 337; see also Rose v. Lundy, 455 U.S.
509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); 28 U.S.C. § 2254(b)(1).
Third, the AEDPA "severely limits the extent to which a federal habeas
petitioner can file a 'second or successive' habeas petition." Morris,
187 F.3d at 338; see also 28 U.S.C. § 2244(b). The AEDPA statute of
limitations can only be statutorily tolled when a collateral petition for
state relief was "submitted according to the state's procedural requirements,
such as the rules governing the time and place of filing." Morris, 187
F.3d at 338 (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998)).
Thus, in the AEDPA Congress set forth the requirement that only [*7]
a properly filed petition for state collateral relief can toll the statute
of limitations for filing a federal habeas petition, and in Lovasz, 134
F.3d at 146, we defined "properly filed" as being submitted in accordance
with the state's procedural requirements. State petitioners therefore must
file their state claims promptly and properly under state law in order
to preserve their right to litigate constitutional claims that are more
than one year old in federal court. As the Ninth Circuit has stated, "had
Congress intended to toll the statute of limitations for the period during
which even improper applications were pending in state court, it would
not have included the 'properly filed' limitation." Dictado v. Ducharme,
189 F.3d 889, 892 (9th Cir. 1999).
Fahy argues that we must decide whether his state PCRA petition was
"properly filed" as a matter of federal law and that the state court's
determination of this issue is not binding on us. Fahy is correct that
in applying a federal statute we must construe its terms as a matter of
federal law. However, the AEDPA explicitly directs us to toll the statute
of limitations only when a collateral [*8] petition for state
relief was "submitted according to the state's procedural requirements,
such as the rules governing the time and place of filing." Morris, 187
F.3d at 338. Therefore, to apply this statute as a matter of federal law
we must look to state law governing when a petition for collateral relief
is properly filed. The AEDPA requires us to interpret state law as we do
when sitting in diversity cases, and we therefore must defer to a state's
highest court when it rules on an issue. Here the Pennsylvania Supreme
Court has specifically ruled that Fahy's PCRA petition was not properly
filed as a matter of state law. As a result, because final judgment in
Fahy's case occurred on October 21, 1986, before the new habeas statute
became effective on April 24, 1996, Fahy had one year from the statute's
effective date to file his habeas petition. See Burns v. Morton, 134 F.3d
109, 111 (3d Cir. 1998). The one year filing deadline thus expired well
before Fahy filed his habeas petition in 1999. Fahy's petition was therefore
not statutorily tolled because his PCRA petition was not properly filed.
II. Equitable Tolling
Fahy delayed filing his federal [*9] habeas petition because
he believed he was required to pursue a fourth petition for collateral
relief in state court. At the time Fahy made this ill-advised choice, he
reasonably believed that the state petition was properly filed. The Pennsylvania
Supreme Court eventually disagreed, but the filing period for Fahy's federal
habeas petition had run by the time the Court ruled. Fahy claims, and the
District Court ruled, that the statute of limitations for filing his habeas
petition should have been tolled to allow him to determine if he could
maintain his state petition.
We have explained that the one year filing deadline contained in 28
U.S.C. § 2244(d)(1) can be subject to equitable tolling
only when the principle of equity would make the rigid application of
a limitation period unfair. Generally, this will occur when the petitioner
has in some extraordinary way been prevented from asserting his or her
rights. The petitioner must show that he or she exercised reasonable diligence
in investigating and bringing the claims. Mere excusable neglect is not
sufficient.
Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998).
[*10] We later enumerated three circumstances permitting equitable
tolling:
if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff
has in some extraordinary way been prevented from asserting his rights,
or (3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum.
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted).
In non-capital cases, attorney error, miscalculation, inadequate research,
or other mistakes have not been found to rise to the "extraordinary" circumstances
required for equitable tolling. See Freeman v. Page, 208 F.3d 572 (7th
Cir. 2000) (finding no basis for equitable tolling where the statute of
limitations was changed to shorten the time for filing a PCRA only four
months prior to the filing of the petition); Taliani v. Chrans, 189 F.3d
597 (9th Cir. 1999) (finding lawyer's inadequate research, which led to
miscalculating the deadline, did not warrant equitable tolling); Seitzinger
v. Reading Hosp. and Medical Ctr., 165 F.3d 236 (3d Cir. 1997) (finding
that an attorney's deception, which caused a prisoner to miss the habeas
[*11] filing deadline, merits equitable tolling); Doherty v. Teamsters
Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386 (3d Cir. 1994)
(allowing time to toll because of the death of the petitioner's attorney).
As the Supreme Court has repeatedly stated, however, "death is different."
See Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 2639,
86 L. Ed. 2d 231 (1985) ("The qualitative difference of death from all
other punishments requires a correspondingly greater degree of scrutiny
of the capital sentencing determination."); Gardner v. Florida, 430 U.S.
349, 357-58, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977) ("Death is a
different kind of punishment from any other which may be imposed in this
country. . . . It is of vital importance to the defendant and to the community
that any decision to impose the death sentence be, and appear to be, based
on reason rather than caprice or emotion."). In a capital case such as
this, the consequences of error are terminal, and we therefore pay particular
attention to whether principles of "equity would make the rigid application
of a limitation period unfair" and whether the petitioner [*12]
has "exercised reasonable diligence in investigating and bringing the claims."
Miller, 145 F.3d at 618.
If the limitation period is not tolled in this case, Fahy will be denied
all federal review of his claims. Here the penalty is death, and courts
must consider the ever-changing complexities of the relevant provisions
Fahy attempted to navigate. Because the consequences are so grave and the
applicable law is so confounding and unsettled, we must allow less than
"extraordinary" circumstances to trigger equitable tolling of the AEDPA's
statute of limitations when a petitioner has been diligent in asserting
his or her claims and rigid application of the statute would be unfair.
The subsequent question, therefore, is whether Fahy diligently and reasonably
asserted his claims.
First, at the time Fahy filed his fourth PCRA petition Pennsylvania
law was unclear on the operation of the new PCRA time limit. The Pennsylvania
courts could have accepted Fahy's petition as timely because of its role
within the capital case, see Banks v. Horn, 126 F.3d 206 (3d Cir. 1997),
or could have found the government interference exception applicable. See
Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000). [*13]
The law at the time of Fahy's petition was inhibitively opaque. Fahy filed
his fourth PCRA petition in November, 1997, months before the Pennsylvania
Supreme Court announced that it would no longer observe the relaxed waiver
rule in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Further,
the Pennsylvania Supreme Court did not clarify that the state PCRA statute
was jurisdictional and not waivable until 1999 in Commonwealth v. Banks,
556 Pa. 1, 726 A.2d 374 (1999). In Banks, 126 F.3d at 214, we rejected
the Commonwealth's claim that a PCRA petition would be timebarred and required
Banks to return to state court because we could not confidently determine
that the state court would not apply the relaxed waiver rule it had applied
in previous capital cases. If we could not predict how the Pennsylvania
court would rule on this matter, then surely we should not demand such
foresight from the petitioner. Fahy's misjudgment, therefore, was reasonable.
Second, it was also objectively reasonable for Fahy to believe that
if he filed a § 2254 petition at the time he filed his fourth PCRA
petition, the § 2254 petition would be [*14] dismissed
as unexhausted. As we stated in Banks, at the relevant time we could not,
"with confidence," predict the Pennsylvania court's position regarding
procedural bars on unexhausted claims. Banks, 126 F.3d at 214. In light
of this uncertainty, the changes wrought by the AEDPA, and our strong opinions
regarding exhaustion, it was reasonable for Fahy to believe that a fourth
petition was necessary.
If we refuse to equitably toll the statute, then we would deny this
capital defendant federal review of his claims. Fahy diligently asserted
his claims and the strategic choices he made during the appeal process
were reasonable. When state law is unclear regarding the operation of a
procedural filing requirement, the petitioner files in state court because
of his or her reasonable belief that a § 2254 petition would be dismissed
as unexhausted, and the state petition is ultimately denied on these grounds,
then it would be unfair not to toll the statute of limitations during the
pendency of that state petition up to the highest reviewing state court.
We will therefore equitably toll the AEDPA's statute of limitations. We
elect to exercise this leniency under the [*15] facts of this
capital cases where there is no evidence of abuse of the process.
We therefore affirm the order of the District Court, albeit on equitable
tolling grounds and not on statutory tolling grounds.
Federal
Captial Cases Relief Denied
Kutzner v.
Johnson (5th Cir) Conflicting or inconsistent testimony is not
perjury, and petitioner failed to show that the government knew of any
material falsity, or that the the state habeas court's resolution of this
issue was not eminently reasonable.
Kutzner argues first that the state knowingly introduced perjured
testimony when it introduced the testimony of Tommy McDonald that Rome
Cable electrical wiring was not common in the Montgomery County area. Kutzner
bases his contention on an affidavit by Carl Schmidt, an employee of another
local electrical products company, that at least two wholesalers in Conroe,
Texas stock Rome Cable electrical wiring and that it is also available
at local home improvement stores. Kutzner also relies on a facsimile communication
from Rome Cable that states that the company sells approximately 41,000
feet of wire in the Houston market monthly. The state habeas court considered
Kutzner's claim and specifically found that McDonald did not commit perjury.
For Kutzner to establish that his right to the due process of law has
been violated, he must show (1) the actual falsity of a witness's testimony,
(2) that the testimony was material, and (3) that the prosecution knew
the witness's testimony was false. Giglio v. United States, 405 U.S. 150,
153-4, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Fuller v. Johnson, 114 F.3d
491, 496 (5th Cir. 1997); [*9] Koch v. Puckett, 907 F.2d 524,
531 (5th Cir. 1990). At most, Kutzner has established that McDonald's opinion
about the availability of Rome Cable electrical wiring conflicts with or
is inconsistent with the affidavit of Schmidt and the communication from
Rome Cable. Conflicting or inconsistent testimony is insufficient to establish
perjury. Koch, 907 F.2d at 531. In any event, McDonald's testimony was
hardly unequivocal. He stated on cross-examination that his opinion about
the availability of Rome Cable products in the Montgomery County area was
based on his employer not stocking those products; he stated that he did
not know if any other firms might stock them. Furthermore, Kutzner has
made no showing that this testimony was material in light of the overwhelming
evidence of his guilt, or that the prosecution team knew of the testimony's
falsity. In sum, Kutzner has made no showing that the state habeas court's
resolution of this issue was not eminently reasonable.
Romano v. Gibson
(10th Cir) Relief denied where petitioners' attempts to put on evidence
inculapting others was denied at trial and where an officer's testimony
about the temperature of the victim's apartment would have been cumulative
and would not have ultimately bolstered the defendant's theory about the
decomposition rate of the victim's body, the State's failure to disclose
the officer's recollection did not violate Brady.
Oklahoma has an evidentiary rule that a criminal defendant
cannot put on evidence that someone else might have committed the charged
offense, absent proof that person took an overt act toward the commission
of the crime. See, e.g., Dennis v. State, 879 P.2d 1227, 1232 (Okla. Crim.
App. 1994). Proof of another's motive is not enough. See, e.g., id.
In this case, Woodruff and Romano sought to cast suspicion for Sarfaty's
robbery and murder on T.R. "Tippy" Ballard, Kathy Ford, and Susan Babbitt.
The state trial court admitted some evidence connecting these three individuals
with Sarfaty, but excluded other such evidence. Applying Oklahoma's evidentiary
rule, the Oklahoma Court of Criminal Appeals upheld the trial court's exclusion
of this evidence. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at
1137-38.
Although, on direct appeal, Woodruff and Romano did challenge the trial
court's exclusion of this evidence on federal constitutional grounds, the
Oklahoma Court of Criminal Appeals addressed these claims only under state
law. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at 1137-38.
[*19] We, therefore, review de novo the federal district court's
denial of habeas relief on these due process and Sixth and Eighth Amendment
claims. See Thomas, 218 F.3d at 1220.
Of course, sitting as a federal habeas court applying 28 U.S.C. §
2254, it is not for us to review a state court's evidentiary rulings. See,
e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 116 L. Ed. 2d 385, 112 S.
Ct. 475 (1991). Rather, a federal habeas court reviews only for violation
of "the Constitution, laws, or treaties of the United States." Id. at 68
(citing, e.g., 28 U.S.C. § 2241). Further, state evidentiary determinations
ordinarily do not present federal constitutional issues. See Crane v. Kentucky,
476 U.S. 683, 689, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (noting Court's
"traditional reluctance to impose constitutional constraints on ordinary
evidentiary rulings by state trial courts"). However, the Supreme Court,
in, e.g., Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297,
93 S. Ct. 1038 (1973), and Green v. Georgia, 442 U.S. 95, 97, 60 L. Ed.
2d 738, 99 S. Ct. 2150 (1979) [*20] (capital sentencing proceeding),
has provided an exception, under some circumstances, if a state court applies
the State's evidentiary rules unfairly to prevent a defendant from presenting
evidence that is critical to his defense. See also, e.g., Washington v.
Texas, 388 U.S. 14, 16, 23, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). This,
however, is not such a case. The state trial court did not exclude any
evidence critical to Woodruff's or Romano's defense. n3
Here, Woodruff and Romano were in fact able to put on a significant
amount of evidence concerning these three individuals. See Boyd, 179 F.3d
at 921; see also Richmond v. Embry, 122 F.3d 866, 873-74 (10th Cir. 1997).
They first presented evidence that it was generally well known that Sarfaty
frequently carried lots of jewelry and money with him. Additionally, Sarfaty
had been a crime victim on several previous occasions, having had things
taken from his home and jewelry stolen from him. Sarfaty told a friend
he suspected "some woman" had perpetrated these crimes. Within two weeks
prior to the murder, Sarfaty had reported separate incidents of assault
and burglary and, immediately prior to the murder, Sarfaty told a friend
that he anticipated another robbery attempt against him. His friend urged
Sarfaty to change the way he did business, late at night in bars and clubs.
Woodruff and Romano also presented evidence at trial specifically pertaining
to Ballard, Babbitt and Ford. T.R. Ballard was Sarfaty's acquaintance.
They occasionally went to the same pool hall, and had, at times, also discussed
business together at the Celebrity Club. Prior to Sarfaty's [*22]
death, Ballard had indicated that he was broke. Yet, immediately after
the murder, Ballard appeared to have a large amount of money and jewelry.
No one had seen Ballard in the pool hall or Celebrity Club after Sarfaty
was killed. However, a detective investigating Sarfaty's death testified
that, although he had come across Ballard's name early in the investigation,
the detective never considered him a suspect. Nor could the detective find
a link between Ballard and either Kathy Ford or Susan Babbitt.
The detective did come across Kathy Ford's name during his investigation,
but he was never able to find her or even verify that she existed. He indicated
she may have been a prostitute. The owner of a pawn shop and his employee
testified that they knew Ford and had sold her a knife just before Sarfaty's
murder. The medical examiner could not rule out that knife as the murder
weapon.
The investigating detective had also come across the name of Susan Babbitt,
purportedly another prostitute, but the detective was unable to link her
to either Ballard or Ford. The only connection he could make between Babbitt
and Sarfaty was that they were acquaintances from the Celebrity Club.
Based upon [*23] this evidence, defense counsel could have
argued to the jury that someone other than Woodruff and Romano killed Sarfaty.
Nonetheless, Woodruff and Romano assert that the trial court erred in excluding
additional evidence concerning Ballard, Ford and Babbitt. The record, however,
does not support their contention that the trial court excluded evidence
that Ballard had threatened Sarfaty. The trial court did sustain an objection
to defense counsel's cross-examination of Sarfaty's friend as to whether
Sarfaty ever had any problems with Ballard. In response, defense counsel
asserted to the court that one of the witnesses had indicated that, on
one occasion, Ballard had slapped Sarfaty, but defense counsel was not
sure which witness it was. The trial court then instructed defense counsel
to find out which witness it was before counsel posed the question, and
indicated counsel could recall this witness if it was necessary to do so.
Defense counsel, however, never recalled that witness, nor did she attempt
to elicit this information from any other witness. The trial court, therefore,
did not preclude the defense from introducing this evidence. Cf. United
States v. Ramone, 218 F.3d 1229, 1237 [*24] (10th Cir.) (noting
defense counsel's failure to seize opportunity to cross-examine did not
show that trial court unfairly limited right to confront witnesses), cert.
denied, 148 L. Ed. 2d 512, 121 S. Ct. 598 (2000).
Nor could we find any instance in the record that the trial court prevented
Woodruff or Romano from asserting any evidence specifically concerning
Susan Babbitt. The trial court, therefore, did not deprive petitioners
of any opportunity to present evidence concerning these two uncharged individuals.
The trial court did exclude some defense evidence concerning Kathy Ford.
At trial, defense counsel made an offer of proof that Sarfaty's friends
had mentioned that Kathy Ford had possibly set up and robbed Sarfaty on
previous occasions. Sarfaty himself had told friends that she had robbed
him and, on one occasion, Sarfaty had asked a pawn shop owner to help him
find Ford so that he could get back the property she had stolen from him.
Nonetheless, this evidence was not critical to Woodruff's and Romano's
defense. Rather, the state court's application of Oklahoma's evidentiary
rule pertaining to uncharged individuals only prevented Woodruff and Romano
from [*25] presenting incremental evidence concerning another
individual who might have been involved in this crime. It did not deprive
them of significant and fundamentally exculpatory evidence. See Boyd, 179
F.3d at 921 (holding evidence must be material; that is, that it might
have affected trial's outcome); see also Richmond, 122 F.3d at 872, 874-75.
See generally United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73
L. Ed. 2d 1193, 102 S. Ct. 3440 (1982).
Woodruff and Romano argue that it is somehow unfair to apply the state-law
overt act requirement concerning uncharged individuals who may have committed
the crime because no similar requirement applies in order for the State
to convict the individual charged. This particular argument is like comparing
apples and oranges. At trial, the jury unavoidably has to focus on whether
the charged individual did or did not commit the crime alleged. Crimes
can be proven by circumstantial evidence; there is no requirement that
substantive crimes must be proven only through direct evidence. See generally
Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998) (reviewing sufficiency
[*26] of both direct and circumstantial evidence to support conviction).
Moreover, the jury did have to find that Woodruff and Romano had committed
overt acts toward commission of robbery and murder. The jury could do so,
however, based on circumstantial evidence.
The ability to cast aspersions on uncharged individuals, however, is
a very different story. See Irvin v. State, 11 Okla. Crim. 301, 146 P.
453, 464 (Okla. Crim. App. 1915) ("While it is competent for the defendant
to show, by any legal evidence, that some other person committed the crime
with which he is charged, . . . evidence which could have no further effect
than to cast a bare suspicion upon another is incompetent and inadmissible.").
The main purpose of Oklahoma's evidentiary rule requiring proof of an overt
act by an uncharged individual is to prevent juries from embarking on wild
goose chases. See, e.g., 146 P. at 464-66 (citing authority). Here, there
was no proof, either direct or circumstantial, that Ballard, Ford or Babbitt
ever took any overt act toward commission of these offenses. The jury,
then, had to remain focused on the trial's central issue--whether the charged
individuals committed the [*27] crimes alleged. See id. at
466 (citing Horn v. State, 12 Wyo. 80, 73 P. 705 (Wyo. 1903)).
In any event, here, in light of Green and Chambers, we need ask no more
than whether the trial court's application of this state evidentiary rule
excluded critical exculpatory evidence. See Green, 442 U.S. at 97; Chambers,
410 U.S. at 302. It did not.
State
Captial Cases Relief Denied
Jackson
v. Delaware (Delaware) Relief denied on claims relating to (1)
failure of the state to disclose that it had made a deal wth its star wtinessl(2)
failure of the trial court to grant forensic funds; as well as, (3)
ineffective assistance of counsel as second chair had only sixteen days
to prepare for trial, which amounted to ineffective assistance of counsel,
per Se; trial counsel failed to conduct independent forensic tests of the
physical evidence; and trial counsel failed to object to certain propensity
testimony that Jackson argues was inadmissible under D.R.E. 404.
Singleton
v. Florida (Florida) Relief denied on claims that Singleton that:
(1) the trial court erred in denying Singleton's cause challenges for four
jurors; (2) the trial court erred in admitting a videotape of Singleton
wearing jail clothing and handcuffs while in custody the night of his arrest;
(3) the trial judge failed to evaluate each mitigating factor proposed
by the defense and to explain how he weighed the mitigating factors found
to be established; (4) the trial court erred by directing a witness wearing
prosthetics to raise her right hand to be sworn and to point to Singleton;
(5) the trial court erred in admitting evidence of Singleton's lack of
remorse for prior crimes; (6) the trial court erred in finding and considering
nonstatutory aggravating circumstances; (7) the trial court erred by allowing
a State expert to testify about Singleton's credibility; and (8) the death
sentence is disproportionate.
Defendant's
Initial Brief
Government's answer Defendant's
reply
Other
Notable Cases
US v. Kaczynski
(9th Cir) Where the district court determines that the defendant asserted
his right to self-representation solely to delay the trial, and lacked
valid reasons for waiting until after trial proceedings had begun to assert
the right, denial of defendant's request is proper.
Roberts v. Rhode
Island (1st Cir ) Rhode Island Department of Corrections policies
providing that all males committed to the state prison be subject to a
strip search and a visual body cavity search are unreasonable and therefore
unconstitutional.
US v. Zaccaria
(1st Cir) A witness' failure to defend his evidence after being given Miranda
warnings cannot be used later in the trial of a confederate to impeach
his testimony that he was an innocent dupe, absent special circumstances
exist in a given case that materially shift the balance in favor of
US v. Cruz
(2nd Cir) Defendant's convictions for drug distribution under 21 USC 841(a)
violate the Double Jeopardy Clause of the Fifth Amendment since they
are lesser included offenses of convictions for drug distribution within
1000 feet of a school under 21 USC 860. District court has discretion
to depart from USSG 5G1.2's "stacking" provisions.
US v. Ramirez
(6th Cir) Under Apprendi, aggravating factors, other than a prior conviction,
that increase the penalty from a non-mandatory minimum sentence to a mandatory
minimum sentence, or from a lesser to a greater minimum sentence, are now
elements of the crime to be charged and proven. Where the government
fails to charge or attempt to prove to the jury a quantity of drugs that
would permit a mandatory sentence under 21 USC 841(b)(1)(CD), the case
must be remanded to district court for re-sentencing under the Guidelines.
US v. Hoults
(7th Cir) The sentencing court may not rely on assumed additional facts
that were not in the record in order to classify defendant as a career
offender under USSG 4B1.1.
Abdullah
v. US (8th Cir) Petitioner procedurally defaulted on his Bailey
claim by failing to raise it before the district court. Even assuming that
petitioner could show actual innocence, petitioner's claim is time-barred,
precluding the court from authorizing a successive habeas on the Bailey
issue.
Rigler v. Ferguson
(10th Cir) District court's adequate explanation as to why it was
not unreasonable for the state courts to find that none of petitioner's
allegations rose to the level of ineffective assistance of counsel is sufficient
to deny petitioner's certificate of appealability.
Etheridge
v. US (8th Cir) Denial of ineffective assistance of counsel claim
for counsel's failure to conduct an evidentiary hearing on sentencing issue
relating to leadership enhancement is appropriate where petitioner failed
to show prejudice, violation of Sixth Amendment right or error in not holding
evidentiary hearing.
Cruz v. City
of Laramie, Wyoming (10th Cir) Where a suspect suffers from diminished
mental capacity apparent to law enforcement officers, whether intoxication,
a discernible mental condition or any other situation where use of the
"hog-tie" restraint presents a significant risk to the suspect's health
or well being, the individual's condition mandates the use of less restrictive
means for physical restraint.
Collins
v. Dormire (8th Cir) Given evidence against defendant, witness's
in-court identification could only have been harmless error; so defendant
could not show ineffective assistance of counsel from prejudice by deficient
performance of appellate counsel for failing to raise and brief the claim
of unreliable identification.
Hanes
v. Dormire (8th Cir) State court's finding that defendant's counsel
discussed case and possible defenses, and was aware of content of police
report is entitled to deference, so that counsel's actions were not constitutionally
deficient, and defendant could not show prejudice to support ineffective
assistance of counsel claim for lack of trial preparation.
Outrages
of the Week
US v. White
(7th Cir) Sentence enhancement for obstruction of justice under USSG 3C1.1
is proper when defendant took the stand in his own defense and submitted
perjured testimony denying any involvement or participation in the criminal
scheme for which he was convicted, after government witnesses uniformly
testified that defendant was personally involved in the criminal scheme.
US v. Crickon
(7th Cir) District court had discretion to decline sentence reduction of
sixty-year-old defendant under 18 USC 841(b)(1)(A)(viii) following his
conviction for possession of narcotics with intent to distribute in violation
of 18 USC 846, and defendant's claims of drug dependence and abuse are
not a basis for downward departure under USSG 5H.4.
US v. Larrabee
(1st Cir) Evidence that defendant possessed material, nonpublic information
concerning a merger between two banks, and that he conveyed that information
to
a stockbroker with whom he had a close personal and financial
relationship is sufficient for conviction for securities fraud.
Featured
Featured this week is the DC federal defender's amazingbriefbank
(strictly noncapital) (http://www.dcfpd.org/motions). The brief bank
is not readily navigable, from search engines or even from the website
proper, however, what it lacks in notice, it more than makes up in content.
Additionally, the site contains a substantial onlinebriefbank.
Unless your interest in criminal defense is purely academic, this is a
must see site.
Fed.R.Evid.
403 and 404
-including Old Chief motions
-evidence of prior felonies/convictions
Fed.R.Evid.
609
Appeals
-including motions for extension
of time to file appeallate brief
Appointment
of Counsel
Addiction
Prevention Recovery Administration
Bail
Pretrial Detention
-modifications of pretrial detention
order
-Singleton release motion 922(g)
Bifurcation
Bill
of Particulars
Compel or Resist
-resist compulsion of fingerprinting
-resist compulsion of testifying
Competency
Consolidation
Continuance
-continuance of trial or to file
pre-trial motions
-(see also: Continuance of Sentencing
below)
Disclosures
Discovery
-Includes Confidential Informant
and Exculpatory Information
-Includes Brady, Jencks, Giglio
Motions Request Letters
-Motions to Compel Production of
Discovery
-Includes demand for notice from
government of its intention
to rely upon other crimes evidence
Dismissal
-dismissal for Speedy Trial Act
violations
-dismissal for Double Jeopardy/collateral
estoppel violations
-dismissal of indictment
-duplicity of counts
-failure to state a claim
Ex
Parte
-motion to compel records
-issuance of subpoenas
Experts
-to admit expert testimony
Furlough
-for travel outside of DC area
-emergency situations
Jury
Instructions
-proposed jury instructions
Late
File
-late file of pre-trial motions
-late file withdrawl of guilty
plea
-late file motion to suppress
Mandamus
Multiplicitous
Counts
-compel election between and handgun/ammunition
counts
New
Trial
Probable
Cause - Terry Stops
Property
Return
Recusal
Sentencing Related Motions . .
.
Continuance of Sentencing
Memorandum
in Aid of Sentencing
Probation
Revocation
Vacate,
Set Aside, Correct, or Modify Sentence
Supervised
Release
Severance
-severance of defendants and/or
counts
Motions to Suppress . . .
Evidence
-to suppress tangible/physical
evidence
-to reopen suppression hearing
Identification
Statements
Travel
Expenses
Voir
Dire
-proposed question for voir dire
-statement of the case
All Motions
SECTION
1 - PROCEDURAL MOTIONS (Procedur) (top)
Additional
Time
Adopt
Co-Defendants Motions
Amend
Conditions of Release
Appeal
Bond
Birfurcate
Forfeiture
Compel
Election Between Multiplicitous Counts
Continue
Trial 1
Continue
Trial 2
Continue
Trial Due to Complexity
De
Nevo Review of Bond
Dissolution
of Stay
Emergency
Release
Emergency
Release
Exparte
Meeting with Judge
Insanity
Notice
Inspect
Jury Records
Inventory
and Return of Propery
Opposition
to Government Deposition
Preclude
AUSA From Filing Documents Under Seal
Preclude
AUSA From Making Reference to Marine Service
Preserve
Dispatch Tapes
Preserve
Evidence
Preserve
IRS Records
Pretrial
Subpoena Duc Tecum
Quash
Government Subpoena
Reconsider
Conditions of Release
Release
Pending Detention
Reply
to Governments Motion to Amend Conditions of Release
Rule
17(b) Subpoena
Sever
Counts
Sever
Counts
Sever
Counts and Defendants
Sever
Counts and Defendants
Sever
Counts and Defendants
Speedy
Trial Act
Strike
Surplusage
Strike
Surplusage
Strike
Surplusage
Transport
Defendant
Travel
Funds for Defendant
Venue
Venue
Venue
Venue
Withdraw
Writ
Ad Testificacdum
Writ
Habeas Corpus
SECTION
2 - MOTIONS TO DISMISS INDICTMENT (Dismiss)
(top)
1326(b)
Underlying Felony is not an Aggravated Felony
1326(b)
Underlying Felony is not an Aggravated Felony
922(g)
Unconstitutional
Civil
Defendant
is a Juvenile
Deportation
Proceeding in Violation of Due Process
Destruction
of Evidence
Dismiss
Indictment
Dismiss
Indictment, Access to Grand Jury Transcripts, In Camera Review
Dismiss
Count
Double
Jeopardy After Mistrial
Double
Jeopardy, Same Offense
Duplicity
Estoppel
Estoppel
Failure
to Allege an Offense
Failure
to Allege an Offense
Failure
to Preserve Exculpatory Evidence
Fifth
Amendment
Hobbs
Act (No Interstate Nexis, Double Jeopardy with 924(c))
Lack
of Jurisdiction of SAUSA
Lack
of Subject Matter Jurisdiction
Lopez
Pre-Grand
Jury Publicity
Racially
Applied Statute
Racially
Biased Grand Jury Selection Process
Racially
Biased Jury Selection
Repressed
Memory Evidence
Statute
of Limitations
Unconstitutional
Statute -car jacking
Unconstitutional
Statute -unregistered firearm
Unconstitutional
Statute - interstate commerce
Unconstitutional
Statute -vaguenss
Unconstitutional
Statute -child support
Violation
of Interstate Agreement on Detainers
SECTION
3 - DISCOVERY MOTIONS (Discover)
(top)
404b
and Inspect Evidence
Bill
of Particulars
Bill
of Particulars
Bill
of Particulars
Bill
of Particulars
Brady
Brady
Brady
Brady,
Specific
Brady
Violation
Co-Defendant's
Statement
Compel
Compel
Polygraph Results of Government Witness
Drug
Dog
Electronic
Surveillance
Electronic
Surviellance
Expert
Testimony
Expert
Testimony
Forfeiture
Proceedings
Grand
Jury Proceedings
Grand
Jury Proceedings
Hearsay
Evidence
Impeachment
Evidence of Government Witnesses
Informant
Information
Informant
Information
Informant
Information
Informant
Information
Informant
Information
Inspect
evidence
Inspect
and Test
Jencks
Jencks,
In Camera Inspection of Law Enforcement Notes
Notice
of 404B
Pretrial
Discovery
Pretrial
Jencks
Prior
Bad Acts
Promises
and leniency
Promises
and leniency
Promises
and leniency
Racially
Applied Statute
Retain
Notes
Reveal
the Deal
Rule
16
Scientific
Evidence
Selective
Prosecution
Severance
Sentencing
Guideline
State
Police Reports
Stipulation
Regarding Discovery
True
ID of Informant
Witness
List and Statements
SECTION
4 - MOTIONS TO EXCLUDE (Exclude)
(top)
404B
Evidence
404B
Evidence
404B
Evidence
801d2e
Agent
from Courtroom
Co-conspirator
Hearsay
Civil
Judgement
Civil
Violation
Drug
Dog
Drug
ID Expert Testimony
Dying
Declaration
Expert
Expert
Extrinsic
Evidence
Extrinsic
Evidence
Handwriting
Expert
Handwriting
Expert
Hearsay
from a Child
ID
Expert
In
Court Identification
In
Limine, Exclusion of Evidence
James
Hearing
James
Hearing
Prior
Arrest
Prior
Conviction
Prior
Sex Acts
Repressed
Memory Expert
Rule
701
Rule
701
Settlement
in Civil Case
Tape
Recordings
Tape
Recordings
Tape
Recordings
SECTION
5 - MOTIONS TO SUPPRESS (Suppress)
(top)
Bad
Warrant
Border
Stop
Detention
of Luggage
Evidence
Entry
Without Consent
Franks
Hearing
Frisk
Frisk
Identification
Identification
Identification
INS/Sentencing
INS/Sentencing
ID
Reply
Jackson/Denno
Hearing
No
Knock Warrant
No
Probable Cause for Warrant
Photographic
Line-up
Port
of Entry Search
Port
of Entry Search
Singleton
Statement
of Defendant
Statement
of Defendant
Statement
of Defendant
Statement
of Defendant
Statement
of Defendant/Right to have Attorney Present
Statement
of Defendant/Right to have Attorney Present
Traffic
Stop
Traffic
Stop
Vehicle
Search
Violation
of State Law
SECTION 6
- TRIAL MOTIONS (Trial)
(top)
Admit
ID Expert
Admit
Polygraph
Admit
Polygraph
Admit
Polygraph
Admit
Testimony Regarding Veracity
Admit
Testimony Regarding Veracity
Attorney
to Participate in Voir Dire
Attorney
to Participate in Voir Dire
Batson
In
Court Lineup
Judgement
of Acquittal
Judgement
of Acquittal
Judgement
of Acquittal
Jury
Questions on Pornography
Jury
Questions
Jury
Questions
Jury
Questions
Jury
Selection
Jury
Selection
Notice
of Government's Intent to Introduce Certain Evidence
Prohibit
Witness from Viewing Defendant
Objection
to Giving Deliberate Ignorance Charge
Objection
to Giving Deliberate Ignorance Charge
Old
Chief
Old
Chief
Redact
Statement
Response
to Gov.'s Motion Precluding Theory of Defense
Transcript
of Preceding
Waive
Defendant's Presence
SECTION
7 - SENTENCING MOTIONS (Sentenc)
(top)
1326(b)
Aggravated Felony
5K2.0
Aberrant
Behavior
Assorted
Grounds for Departure
Battered
Woman
Diminished
Capacity
Entrapment
Family
Circumstances
Guidelines
Departure, Crack
In
Aid of Sentencing
Mental
Illness
Mental
Illness
Reconsider
Substantial Assistance
SECTION
8 - POST CONVICTION MOTIONS (Post_Con)
(top)
Application
for Post Conviction Relief
Correct
Sentence
Correct
Sentence
New
Trial
New
Trail
Rule
35 (Allocution)
Vacate
Sentence
Post
Trial Motions
Post
Trial Motions
Appeals
Sentencing
Motion
to Dismiss
Anders
Brief
Errata
From the Death
Penalty Information Center reports:
International Perspective
In a recent op-ed in the Washington Post, Felix G. Rohatyn, the former
U.S. Ambassador to France from 1997 to 2000, and current counselor of the
Council on Foreign Relations expressed his concern about America's use
of the death penalty:
During my nearly four years in France, no single issue evoked as much
passion and as much protest as executions in the United States. Repeated
protests in front of the embassy in Paris, protests at our consulates and,
just recently, a petition signed by 500,000 French men and women delivered
to our embassy in Paris were part of a constant refrain. My colleague in
Germany, Ambassador John Kornblum, had indicated to me that he was challenged
as frequently in Germany on this issue as I was in France.
. . .
[T]he United States is seen as executing people who have not had appropriate
legal assistance, people who may be innocent, people who are mentally retarded
as well as minors. We are viewed as executing disproportionate numbers
of minorities and poor people, and there is no compelling statistical evidence
that the death penalty is a greater deterrent to potential criminals than
other forms of punishment.
...
Some 300 million of our closest allies think capital punishment is
cruel and unusual and it might be worthwhile to give it some further thought.
(Washington Post, 2/20/01) Read the complete editorial. See also,
International Death Penalty.
Poll Finds Support for Death Penalty Has Dropped in Canada
A recent Ipsos-Reid poll for the Toronto Globe and Mail and CTV shows
that support for capital punishment has fallen to 52% among Canadians -
down from 69% in 1995 and 73% in 1987. The poll also showed a rise
in opposition to the death penalty to 46% - up from 24% in 1987 and 29%
in 1995. Ipsos-Reid spokesperson Darrell Brickier suggested that
the decline in support is due to increasing media attention on the issue
of wrongful convictions. Canadian legislators outlawed the death penalty
in 1976. (Toronto Globe and Mail, 2/16/01) See also, Polls
and International Death Penalty.
Canada Supreme Court Holds No Extradition to the U.S. if the Death Penalty
will be Sought
The Canadian Supreme Court held 9-0 that two Canadian men wanted on
murder charges in the U.S. cannot be extradited for trial without assurances
that the men will not face the death penalty. "[S]uch assurances," the
Court held, "are constitutionally required in all but exceptional cases."
The men, Atif Rafay and Glen Sebastian Burns, are wanted in Washington
state for the murder of Rafay's father, mother, and sister. (Canadian Press,
2/15/01). Read the Canadian Supreme Court opinion.
Juvenile Offender with Borderline Mental Retardation Scheduled
for Execution in Missouri
Antonio Richardson is scheduled to be executed on March 7, 2001 in
Missouri. Richardson, who was 16 at the time of the crime, was originally
offered a life sentence in exchange for a guilty plea. Pressured
by a local activist, Richardson rejected the plea and was convicted.
Richardson's lawyer had never participated in the penalty phase of a capital
trial, and failed to present expert testimony as to Richardson's mental
retardation and brain damage. When the jury deadlocked on whether or not
to impose the death penalty, the decision went to the judge, who sentenced
Richardson to death. Currently, a bill is pending in the Missouri legislature
to exclude the mentally retarded from execution. If not granted clemency,
Richardson will be only the second 16-year-old offender executed
since the death penalty was reinstated. (American Bar AssociationÕs
Juvenile Justice Center, Execution Alert, 2/15/01).
For more information on Antonio Richardson
and his case, or the juvenile death penalty, please go to www.abanet.org/crimjust/juvjus/juvdp.html.
See also, juveniles and mental retardation and the death penalty.
From
the mailbox
From this week's inbox:
Please consider the attached for posting to your members or
web site. Should you have any questions, please feel free to contact me.
[Always glad to post press releases if not to the weekly than to the
site. - k]
Case Closed Productions, LLC
c/o Paul J. Ciolino & Associates, Inc.
800 E. Northwest Highway Suite 1080
Palatine, IL 60607
847-963-6500 Fax: 847-963-0200
Contact: Grace Castle or Paul Ciolino
PRESS RELEASE
The nation’s leading experts on wrongful conviction investigations
will gather in Chicago, Illinois, in May, for the first North American
Conference on Wrongful Conviction Investigations.
Sponsored by Case Closed Productions, LLC, the May 18 and 19 event is
designed to provide top quality forensic science, and specialized investigation,
education for investigators, attorneys, journalists, educators, students,
Innocence Project Coordinators, and others involved in the struggle to
find justice for the wrongly convicted.
Paul Ciolino and Grace Castle, Chicago area investigators who have long
been among the nation’s leaders in this struggle, are bringing to Chicago
such noted experts as Profiler Ray Pierce, retired Captain of the New York
Police Department; Dr. Fred Whitehurst, the laboratory scientist and attorney
who blew the whistle on the FBI’s lab procedures; South Dakota Attorney
Bruce Ellison, renowned defender of Native American prisoners; Chicago
Attorney Andrea Lyon, noted death penalty defense expert; Prof. David Protess,
whose unique classroom projects for journalism students has set the standard
for other universities, and a multitude of others who will be teaching
on topics ranging from profiling to minority issues; from record gathering
to interviewing.
Ciolino will facilitate a workshop on difficult interviews, instructed
by Kitty Hailey, nationally-known investigator/writer from Philadelphia;
Illinois Investigator Steven Kirby; and Canadian Investigation Specialist
Brian King. Castle will present sessions on case evaluation and developing
a timeline. A new scientific technique known as Brain Fingerprinting will
be presented by Iowa Professor Larry Farwell.
A special panel discussion at the end of the conference will be moderated
by Prof. Larry Marshall of Northwestern University’s Center on Wrongful
Convictions, and will feature two persons who were wrongly convicted and
imprisoned for 18 years before being released, and one who, though wrongly
charged, was acquitted, despite police and prosecutorial misconduct.
A second panel discussion will focus on the role of the media in overturning
wrongful convictions. Led by Chicago author and director of Northwestern
University’s Center on Wrongful Convictions Rob Warden, the panel will
include popular, hard-hitting NBC journalist Dave Savini, award-winning
television investigative reporter; Chicago Tribune columnist Eric Zorn;
Atlanta Constitution Journal reporter Maurice Tamman; Chicago Sun-Times
Investigative Reporter Brian Smith, and CBS News/48 Hours’ reporter Erin
Moriarity.
This two-day event, to be held at the Holiday Inn O’Hare in Rosemont,
a Chicago suburb, near the O’Hare Airport, is being co-sponsored by the
Illinois Association of Criminal Defense Lawyers, Northwestern University
Medill School of Journalism’s Innocence Project, DePaul University Law
School Center for Justice in Capital Cases, and CLUESONLINE™.
For additional information, see the website at www.caseclosedprod.com,
or request a brochure from conference@caseclosedprod.com.
CAPITAL
DEFENSE DISCUSSION LIST: A discussion list for legal professionals
doing capital litigation has been formed. The hope of the list is to get
some cross-pollination of ideas, as well as to give those practitioners',
who may not be at a public defender's office or similar non-profit, a forum
to seek advice & bounce ideas around. The list is private & moderated
only to try to weed out prosecutors & law enforcement.
Post message:capitaldefense@onelist.com
Subscribe: capitaldefense-subscribe@onelist.com
Unsubscribe: capitaldefense-unsubscribe@onelist.com
List owner: capitaldefense-owner@onelist.com
RELATED
RESOURCES You might want to check out the following internet
resources other than this newsletter. Findaw.com's new service provides
e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com,
including both a free weekly criminal law and state court decisions. Similarly,
www.lidb.com (Louisiana's public defender), probono.net (ABA) &
www.capdefnet.org (federal defender) have many prepackaged motions
and law guides dealing with death penalty issue. Finally, the discussion
groups above can help you with any questions you might have.
ARCHIVES
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