The second of the stay cases, Richardson v. Luebers,  involves  "[w]hether there now exists a national consensus against executing a retarded person, so that such executions are now categorically prohibited by the Eighth Amendment (Penry revisited)."  Last week in McCarver v. North Carolina the Supreme Court granted a a stay on similar grounds.  The Penry amici briefs are now available (American Association on Mental Retardation et al. [PDF] International Association for the Scientific Study of Intellectual Disabilities et al. [PDF] National Association of Criminal Defense Lawyers [PDF] Criminal Justice Legal Foundation [TEXT]).

Finally in Dawson v. Delaware the Third Circuit has stayed a serious  execution date pending disposal of a  writ of certiorari, the actual issues on which the stay has been issued, however, remains unclear.

The Florida Supreme Court in Carpenter v. State has granted relief on a Brady question on direct appeal.

The remaining capital cases covered in this edition are not so joyous. The Sixth Circuit in West v. Bell revisits the old question of who has standing when a person wants to kill themselves by dropping all their appeals.  In Weaver v. Bowersox the Eighth Circuit examines the extent of a trial judge's decision to exclude jurors and holds he indeed had great leeway that he had not abused that discretion in excluding jurors of color. Finally the Fifth Circuit in Tucker v. Johnson examines  ineffective assistance of counsel at the penalty phase and  a challenge to the constitutionality of the AEDPA

This week also saw the execution of the 700th person, Dennis Dowthitt, since the resumption of executions a quarter of a century ago. 

The feature this week is from the Canadian Supreme Court's decision in United States v. Burns and the adaptation of a near blanket rule that it will not deport save for cases in which the death penalty has been explicitly disavowed.

The private discussion list for  legal professionals doing capital litigation that is sponsored by the newsletter is up and going strong with over 100 members. The list's aim 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. To subscribe send an email to capitaldefense-subscribe@onelist.com.

This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010305.htm & http://karlkeys.com/010305.htm. The last issue is still available at http://www.capitaldefenseweekly.com/archives/010219.htm & http://karlkeys.com/010219.htm.

Supreme Court
Legal Serv. Corp v. Velaquez (US) Section 504(a)(16) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, which excludes LSC representation in cases which "involve an effort to amend or otherwise challenge existing law", violates the First Amendment and distorts the legal system by altering the traditional role of the attorneys. 

Captial Case Relief Granted
Carpenter v. State (Florida) Carpenter's conviction vacated and remanded for a new trial because the trial court prohibited Carpenter from presenting certain evidence to the jury during the guilt phase of the trial. Defendant's Initial Brief Government's answer Defendant's reply

It is also clear that the State presented sufficient evidence for the trial court to submit Carpenter's case to the jury on a felony murder theory with sexual battery as the underlying predicate felony offense. Carpenter's hypothesis of innocence in connection with this theory is that he, Powell, and Pailing had consensual sexual intercourse as a threesome, and then Pailing killed Powell when she belittled Pailing for prematurely ejaculating. The State presented evidence  [*35]  showing that Powell was a religious, church-going, sixty-two year old woman who had not had sexual relations with her close friend John Post even though she and Post had slept in the same bed on several occasions. Further, the State presented evidence demonstrating that Powell suffered several injuries to her vagina which were consistent with forceful penetration. n10 Moreover, the evidence showed that Powell's own bra was placed across her mouth as a gag while she was still alive, which was inconsistent with consensual behavior and with one of Carpenter's statements to the police that Powell's bra was still on her chest "with one breast exposed." Finally, the State presented evidence that there was no semen found in Powell's vagina, which was inconsistent with Carpenter's statement to the police that Powell belittled Pailing for prematurely ejaculating and that Pailing was not wearing a condom. Based upon all of the evidence presented by the State, as well as the inconsistencies in Carpenter's various versions of events, it is clear that the trial court properly submitted Carpenter's case to the jury for consideration on a felony murder theory with sexual battery as the underlying  [*36]  offense. See Hitchcock v. State, 413 So. 2d 741, 745 (Fla. 1982) (finding that the totality of the circumstances, including the age of the victim and her previous chaste character, refuted defendant's claim that his sexual contact with the victim was consensual, and the jury thus "could easily have considered Hitchcock's contention that the girl consented to be unreasonable"). 

As for premeditation, however, we determine that the State failed to present sufficient evidence to warrant the trial court's submission of Carpenter's case to the jury on that theory. Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as the nature of the act to be committed and the probable result of that act. 

Norton v. State, 709 So. 2d 87, 92 (Fla. 1997)  [*37]  (quoting Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997)). "Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted." Holton v. State, 573 So. 2d 284, 289 (Fla. 1990) (quoting Larry v. State, 104 So. 2d 352, 354 (Fla. 1958)). During the guilt phase, the State presented evidence that Carpenter had arranged for the "party" at which Powell was killed, and the State also presented evidence that Powell died as a result of blunt trauma and neck compression, with the neck compression requiring total occlusion of the blood vessels in Powell's neck for two to three minutes to cause her death. As discussed above, the State also presented the testimony of Stephen Dakowitz, who testified that Carpenter had implicated himself in the murder of Ann Powell. The State argues that this evidence supports a finding of premeditation, while Carpenter argues that such evidence does not exclude every reasonable hypothesis  [*38]  that Powell's death was effected without a premeditated design. After reviewing the evidence and relevant case law, we find that Carpenter's position on this issue must prevail. 

Most instructive on this issue is our prior decision in Kirkland v. State, 684 So. 2d 732 (Fla. 1996). In that case, the victim's death was caused by a "very deep, complex, irregular wound of the neck," which cut off the victim's ability to breathe and caused extensive bleeding. Id. at 733. The jury found the defendant guilty of first-degree murder, and he challenged that finding on appeal, arguing that the evidence was insufficient to support a premeditation theory. See id. at 734-35. The State argued that a premeditation theory was supported by the nature of the victim's neck wound, which required multiple slashes, combined with other wounds caused by blunt trauma, as well as the existence of friction between the defendant and the victim. See id. In rejecting a finding of premeditation, we reasoned: 

The State's evidence was insufficient in light of the strong evidence militating against a finding of premeditation. First and foremost, there was no suggestion  [*39]  that Kirkland exhibited, mentioned, or even possessed an intent to kill the victim at any time prior to the actual homicide. Second, there were no witnesses to the events immediately preceding the homicide. Third, there was no evidence suggesting that Kirkland made special arrangements to obtain a murder weapon in advance of the homicide. Indeed, the victim's mother testified that Kirkland owned a knife the entire time she was associated with him. Fourth, the State presented scant, if any, evidence to indicate that Kirkland committed the homicide according to a preconceived plan. Finally, while not controlling, we note that it is unrefuted that Kirkland had an IQ that measured in the sixties. 

In Hoefert v. State, 617 So. 2d 1046, 1048 (Fla.1993), we were unable to find evidence sufficient to support premeditation in a situation in which Hoefert had established a pattern of strangling women while raping or assaulting them. Evidence was presented in that case indicating that the homicide victim, found dead in Hoefert's dwelling, was likewise asphyxiated. Despite the pattern of strangulation, the discovery of the victim in Hoefert's dwelling, and efforts by Hoefert  [*40]  to conceal the crime, this Court found that premeditation was not established. Hoefert, 617 So. 2d at 1049. In this case, there is no evidence that Kirkland had established a pattern of extreme violence as had Hoefert. A comparison of the facts in Hoefert and the instant case requires us to find, if the law of circumstantial evidence is to be consistently and equally applied, that the record in this case is insufficient to support a finding of premeditation. 

684 So. 2d at 735; see also Green v. State, 715 So. 2d 940, 944 (Fla. 1998) (rejecting State's argument that the nature of victim's wounds, which included strangulation, supported a finding of premeditation, relying on this Court's decisions in Kirkland and Hoefert). The State's reliance on our decisions in Holton and Hitchcock is misplaced here because even though both of those cases involved a strangulation death, there were other factors present in those cases that supported a finding of premeditation. See Holton, 573 So. 2d at 289-90 (involving defendant who had fresh scratch marks on his chest the day after the murder and victim with long fingernails,  [*41]  suggesting that a struggle occurred which belied the defendant's assertion that the killing was accidental); Hitchcock, 413 So. 2d at 745 (finding that defendant's statement to jailmate that he choked the victim, took her outside, then choked her again--all to quiet her--supported a finding of premeditation). While Carpenter's version of the events may not be true, the evidence does not exclude the reasonable hypothesis that Powell was killed, without premeditation, after she rebuffed sexual advances made by Carpenter and Pailing. Accordingly, we determine that the trial court should have granted Carpenter's JOA motion with regard to only the premeditation theory of first-degree murder. 

Federal Captial Cases Relief Denied
West v. Bell (6th Cir) Attorneys do not have standing to petition for a stay of execution when the convicted prisoner is competent and expressly refuses to authorize  a petition, and a putative "next friend" must demonstrate, not merely assert, the prisoner's incompetence.

 
     There is no question that West can invoke the jurisdiction of the federal courts by filing a petition for habeas corpus. 28 U.S.C. § 2254. He has not chosen to do so. How, then, can a federal court get involved in this case? Supreme Court case law tells us that a "next friend" may sue in place of a death-sentenced prisoner only when that person clearly shows that the prisoner is not competent. Whitmore v. Arkansas, 495 U.S. 149, 164-66 (1990); Rees v. Peyton, 384 U.S. 312, 314 (1966). Those holdings were in the context of cases where a prisoner sought to withdraw proceedings already pending in federal court, where the court clearly had jurisdiction to consider the withdrawal.

     In the rarer cases where there has been a failure to take any action in federal court, the basic principles have been the same. Harper v. Parker, 177 F.3d 567, 572 (6th Cir. 1999). See also Lonchar v. Thomas, 58 F.3d 588, 589 (11th Cir. 1995); Brewer v. Lewis, 989 F.2d 1021, 1025-26 (9th Cir. 1993); Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir. 1985). From these cases, it is clear that the burden is still on the putative "next friend" to demonstrate, not simply assert, the incompetence of the prisoner.

     In our case, this clearly did not happen. At most, counsel have shown some conceivable difficulties in West's mental health, but no evidence that, in the words of Rees, the prisoner does not have "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or . . . suffer[s] from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees, 384 U.S. at 314.

     Here, counsel disclaim that they are seeking, or have obtained, next friend status. Opposition to Motion to Vacate, at 10, n. 6. They seek simply to have West's execution stayed so that they may, apparently, undertake the process of qualifying as next friend, so that they can then contemplate the process of filing a petition for habeas corpus on West's behalf. There is no authority for such a process. McFarland applies, at most, to a prisoner's seeking counsel to file a habeas, or, perhaps, a qualified next friend seeking time to prepare a habeas petition. In re Parker, 49 F.3d 204, 208-11 (6th Cir. 1993). Counsel have not pled or proved their entitlement under this provision.

     Viewed on the merits, the basis of a grant of such status would be tenuous. Counsel have made many claims in their briefs before us, but they presented little evidence before the district court. Some material presented to us was docketed in the district court, but only minutes before Judge Collier actually ruled, and there is no indication in the judge's order or in the record that he considered such material.

     West was examined in 1986 and found competent to stand trial. He was examined extensively in 1995 in connection with his post-conviction processes, finding him to be of average or above average intelligence, though with some difficulties Mr. West is typically quite passive, detached, avoidant, and almost schizoid. Mr. West is an individual who is subject to periods of detachment, depersonalization, and identity diffusion, particularly when under extreme stress. That material was available to the lawyers, and some was submitted with the briefing in this court. There is no indication that the lawyers sought to have any current examination done in advance of filing this petition, or whether West did or would have objected to such an examination.

     The timing of this petition shows that it is not the State of Tennessee that is seeking to manipulate the time constraints of the law. After the Tennessee Supreme Court denied a petition for rehearing on June 7, 2000, in West's appeal of the denial of post-conviction relief, West did not seek certiorari. Counsel should have known that a potential problem with West's willingness to seek federal court review existed at that time. Tennessee did not set an execution date for five more months, and then set that date 113 days in the future. Knowing that West had still not authorized any habeas petition, the putative next fiends were certainly on notice that time was running. Even when West, on February 13, took the unusual step of affirmatively choosing death by electrocution (lethal injection is the default option in Tennessee), counsel still did nothing. Only on February 20, less than nine days before the scheduled execution, did counsel seek to raise before the federal courts a desire to investigate West's competence to make his own decisions.

     This history contrasts starkly with the actions of counsel in our somewhat comparable case of Harper, 177 F.3d at 568-69. There, counsel moved for next friend status in federal court 8 days after the denial of certiorari after the termination of state post-conviction processes. This was even before an execution date had been set. Seven days later, Kentucky set an execution date only 35 days in the future. Counsel pressed their motion, and within two days the district court began proceedings to determine, in accordance with Whitmore, whether next friend status should be given. It is not Tennessee that has caused this case to be handled on a very tight schedule, nor is it Tennessee who chose what evidence to present and when.

     It may properly be noted that in Harper the prisoner had affirmatively stated, by letter and then in open court, that he did not wish to pursue any further court proceedings. But that only goes to the substantive correctness of the district court's decision there, not to the standards to be applied or the burden on those who purport to speak for West.

     It is true that West has not affirmatively waived any rights. However, he never invoked the right to file a habeas so that it would be necessary to waive it. Unless the standards of Whitmore are met, West is entitled to be free from being dragged about for mental examinations, hearings, and the like, in processes that he has not invoked, even if purportedly for his benefit. Finally, it should be noted that neither statute nor case law indicate that AEDPA gives a death-sentenced prisoner a free one-year period in which state execution processes cannot touch him. If this argument were correct, an extension of AEDPA's window to 2 years (which some have argued for) would concomitantly act as a stay of execution for the 2 years, and the pre-AEDPA rule that a habeas could be filed at any time would have meant that a prisoner could never be executed, because it might cut off a prospective future habeas filing. There simply is no such rule.

     It is true that this case occasions some unease. It is conceivable that West has a meritorious habeas claim, should he wish to bring it. There are some factors in West's record that could conceivably support a claim of incompetence, though the books are replete with cases where stronger claims, with histories of depression, suicidal attempts, and bad childhoods have been found insufficient (See, e.g., Harper, 177 F.3d at 569-70; Rumbaugh, 753 F.2d at 397; see also Hamilton v. Texas, 497 U.S. 1016, 1019 n. * (1990) (Brennan & Marshall, JJ., dissenting); Demosthenes v. Baal, 495 U.S. 731, 740 (1990) (Brennan & Marshall, JJ., dissenting); Schornhorst v. Anderson, 77 F. Supp. 2d 944, 953 (S.D. Ind. 1999)). But these facts cannot provide what petitioner has failed to provide -- a jurisdictional basis for us to assume control of the state's processes. In the absence of an adequate finding of incompetence, West is a responsible human being entitled to enter or stay out of federal court. Even at this late hour, he need only choose to invoke the court's jurisdiction and it will attach.

     However, contrary to Judge Collier's statement that, "as a society we assume a fully competent individual would wish to pursue every avenue . . . to avoid execution," an infinite desire to thwart the just processes of the law is not the only sign of mental competence. We must not assume that it is impossible for even a death-sentenced prisoner to recognize the justice of his sentence and to acquiesce in it. If there is a case to the contrary, under our precedents it is up to the putative next friends to make that case. They have not done so, and the district court erred in granting a stay without the jurisdiction prerequisites necessary for that action.

     The stay of execution granted on February 23 is vacated, and the underlying proceeding should be dismissed as there is no one with standing to proceed with it.

The state trial court rejected Weaver's Batson challenge, explaining that "no prima facie showing of discrimination in the jury selection has been made." We regularly defer to the fact-findings of trial courts because those courts are uniquely positioned to observe the manner and presentation of evidence. Our deference to trial court fact-finding is doubly great in the present circumstance because of the "unique awareness of the totality  [*14]  of the circumstances surrounding voir dire," Moore, 895 F.2d at 486, and because of the statutory restraints on the scope of federal habeas review. 

First, a trial court's determination of the Batson prima facie step is highly fact-intensive. The determination is based largely upon information "that will not be evident from a reading of the record," such as the ability to "evaluate general demeanor; to observe attention span, alertness, and interest; and to assess reactions indicating hostility or sympathy towards or fear of the parties." Id. at 485-86. Second, on habeas review, we accord state trial courts broad latitude in determining questions of fact by virtue of the statutory presumption in favor of state court fact-findings, see 28 U.S.C. § 2254(e)(1). 

Weaver's showing falls short of rebutting the presumptive correctness of the state trial court's determination that Batson wasn't violated. Weaver points to the fact that the state trial court's express findings were limited to comments about the racial composition of the jury-a "numbers analysis." He directs us to our earlier precedent that a numbers analysis  [*15]  cannot, on its own, negate a prima facie case. See United States v. Johnson, 873 F.2d 1137, 1139-40 (8th Cir. 1989). But Weaver advances no additional support for his claim that the state trial court determined the facts "unreasonably" in light of the totality of the evidence presented. See 28 U.S.C. § 2254 (d)(2). 

Contrary to Weaver's assertions, we believe that the district court's numbers analysis entails precisely the opposite conclusion. Our early Batson cases (decided during roughly the same time period as the instant state court decision) suggest that a numbers analysis is relevant in determining whether a defendant has established a prima facie case. E.g., Moore, 895 F.2d at 486 n. 5; United States v. Fuller, 887 F.2d 144, 146 (8th Cir. 1989). Of course, the trial court's decision does not stand or fall on a numbers analysis alone. The state trial judge personally observed the venirepersons' demeanor during voir dire, and doubtless developed a sense for those their acumen. Likewise, the state trial judge personally observed the prosecutor during the exercise of peremptory strikes, and later  [*16]  when he explained his conduct. 

In addition, we agree with the State of Missouri's contention that Weaver failed to provide additional evidence at the Batson hearing to establish a prima facie case. Weaver argued only against the weight of the race-neutral reasons proffered by the prosecutor, without demonstrating that the prosecutor's reasons were pretextual. 

In sum, the trial court's use of numbers analysis (a relevant factor), coupled with the court's unique opportunity to observe the entirety of voir dire, coupled with Weaver's failure to provide additional evidence at the Batson hearing, supports the state trial court's decision to deny Weaver's Batson claim. See Luckett v. Kemna, 203 F.3d 1052, 1054 (8th Cir. 2000). Weaver has failed to overcome the statutory presumption of correctness afforded the state court's fact-finding. Because he cannot denigrate the state trial court's factual determinations, we cannot conclude that the state trial court's decision was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2). 

Tucker raises a broad claim of ineffective assistance during the punishment phase. He argues that the district court erred in concluding that he had not shown prejudice as a result of counsel's deficient performance in failing to investigate or present vital mitigating evidence with respect to the abuse he suffered as a child. In Williams v. Taylor, the Supreme Court recently reaffirmed the familiar two-prong test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

120 S. Ct. at 1511 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To demonstrate that counsel was ineffective, a petitioner must establish that counsel's representation fell  [*10]  below an objective standard of reasonableness. See id. To show prejudice, he must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See 120 S. Ct. at 1511-12. We will assume that counsel's performance with respect to this claim was deficient and determine whether Tucker has shown prejudice as a result. 

Tucker asserts that had counsel conducted an adequate investigation into his personal background they would have discovered that he suffers from organic brain impairment, was severely sexually, physically, and emotionally abused as a child, and ultimately became addicted to cocaine. 

The State counters that the evidence Tucker asserts should have been introduced is both mitigating and aggravating and therefore does not establish prejudice. In Williams v. Taylor, however, the Supreme Court recognized that not all of the additional evidence need be favorable to the petitioner. 120 S. Ct. at 1514. The Court explained that while the newly proffered evidence "may not have overcome a finding of future dangerousness, the graphic description of Williams' childhood, filled with abuse and privation,  [*11]  or the reality that he was borderline mentally retarded, might well have influenced the jury's appraisal of his moral culpability." 120 S. Ct. at 1515 (internal quotation marks and citation omitted). Further, "mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case." Id. at 1516. Had counsel presented and explained the newly proffered mitigating evidence to Williams' jury, there was a reasonable probability that the result of the sentencing hearing would have been different. See id. Thus, the Supreme Court concluded that the state court's rejection of Williams' claim was contrary to, or involved an unreasonable application of, clearly established federal law. See id. 

In the case at bar, the district court found that counsel presented evidence of Tucker's "neglectful, absent father and the dysfunctional home life he had with his mother, his isolation and low self-esteem; his substance abuse problems; his stays in residential treatment programs at both Buckner and the Wichita Falls state hospital; and his relatively limited exposure to male role  [*12]  models." The court denied relief, concluding that "the additional evidence Tucker now asserts should have been presented would have had little mitigating effect, whether considered alone or in conjunction with the evidence already in the jury's possession, and fails to meet the second prong of Strickland." Therefore, the court concluded that Tucker had "not demonstrated that the state court's rejection of his claim of ineffective assistance of counsel was unreasonable." 

After reviewing the record, we are convinced that Williams v. Taylor is distinguishable from Tucker's case in that there apparently was no evidence offered by counsel with respect to the mistreatment, abuse, and neglect of Williams' "nightmarish" childhood. n7 In contrast, Tucker's trial counsel did elicit mitigating evidence from several family members with respect to his upbringing. 

Essentially, Tucker's argument is that counsel should have put on a stronger case in mitigation of the death penalty. We do not profess to be unmoved by the dreadful circumstances of Tucker's childhood, and we understand the relevance of such evidence to the jury's determination of Tucker's moral culpability at the time he committed the murder. Nevertheless, we are persuaded that, although counsel could have presented additional mitigating evidence, the evidence before the jury illustrated the bleakness of Tucker's home life. Indeed, a reading of the cold trial record demonstrates Tucker was raised in an environment of rejection and neglect. 

Notwithstanding Tucker's assertions to the contrary, defense counsel did present a sympathetic picture of Tucker's life to the jury. As the district court stated, the evidence revealed to the jury that Tucker was emotionally abused and neglected as a child and that he had a problem with illegal drugs. 

At the punishment phase, Tucker's aunt testified that her sister, Cecelia, did not want to give birth to Tucker and that Tucker's maternal grandfather "forced" Tucker's father to marry Cecelia, who was only sixteen years old at the time. His aunt  [*14]  further testified that Tucker's mother admitted that "she didn't love him, never wanted him." 

Tucker's parents divorced and remarried and then divorced again approximately a year after Tucker's brother was born. The testimony indicated that Tucker's home environment was very dysfunctional. His mother had problems with respect to her sexual orientation, and relatives testified that she would dress Tucker in girl's clothing. 

Tucker's relatives described him as insecure, "love-starved," and "very sick" with "deep-seated problems." Several witnesses related that Tucker's father was "never around" during his childhood and was "not supportive." 

The jury was made aware that his mother sent him to a "state home" in Wichita Falls, and on another occasion, Tucker was admitted to the residential program at Buckner's Children's Home. Most disturbing, Tucker, as an adolescent, contacted the state authorities and successfully requested that he be removed (at least temporarily) from the custody of his mother. 

Tucker asserts the jury should have been informed that at one point during his childhood his behavior had improved due to certain medication that had been prescribed. Despite this improvement,  [*15]  his mother failed to refill the prescription. Such evidence, he argues, would have demonstrated that he was "treatable" but his family did not care enough to follow through with the treatment. n8 

Notwithstanding Tucker's assertion otherwise, his mother did testify that at one time she perceived a particular treatment was helping Tucker, but the treatment was discontinued  [*16]  because she could not afford it. As such, the jury did have before it some indication that Tucker was "treatable." 

Although Tucker now presents additional mitigating evidence, including evidence of physical and sexual abuse, we believe the evidence at trial--especially the testimony that Tucker was able to have himself removed from the custody of his mother--spoke volumes to the jury with respect to how intolerable his home environment was both subjectively (to Tucker) and objectively (to the authorities). Further, some of the newly proffered evidence arguably would have been aggravating as opposed to mitigating. For instance, a psychologist who examined Tucker wrote that there was a "psychological time bomb" in Tucker that "detonated" at the time of the murder. 

We are mindful that we must give proper consideration to the "quality and volume of the additional mitigating evidence." Neal v. Puckett,     F.3d    , 2001 U.S. App. LEXIS 659, *32, 2001 WL 43274, *11 (5th Cir. Jan. 18, 2001). Further, as we previously have recognized, this inquiry is very difficult. Id. Nevertheless, we remain unconvinced that the state court's conclusion (Tucker was unable to show that, if the newly proffered evidence  [*17]  had been presented and explained by counsel, there is a reasonable probability that the result of the sentencing phase would have been different) was erroneous. 

Even assuming arguendo that the state court's conclusion was erroneous, applying the previously set forth deferential AEDPA standard, we believe we are constrained to hold that the state court's conclusion was not contrary to, or an unreasonable application of, established federal law. See id. at *12-14 (holding that although the state court's decision was erroneous, because it did not involve an unreasonable application of Strickland, the AEDPA requires that the habeas petition must be denied). We must therefore deny relief on this claim. 

Lee v. State (Arkansas) Conviction and sentence uphold in post-convictioner on claims relating to ineffective assistance of counsel, most notably the  right to conflict-free counsel. 

Bradley v. State (Florida) Relief denied on issues that include: "(1) the evidence was insufficient to support Bradley's conviction for premeditated first-degree murder because there was conflicting evidence regarding his intent to kill; (2) the evidence was insufficient to support his conviction for felony-murder (burglary) because he was allowed entry into the home by one of the occupants; (3) even assuming the finding of premeditation, he is entitled to a new trial because the jury may have convicted him on a legally insufficient theory (felony murder/burglary); (4) the evidence was insufficient to prove conspiracy to commit first-degree murder; (5) the trial court erred in admitting evidence that Bradley vandalized Carrie Davis's car on October 31, 1995, where such evidence was not relevant to any material issue and served only to attack his character; (6) the trial court erred in admitting an out-of-court statement by Detective Redmond to the effect that Bradley's van had been detailed five times since the murder; (7) the trial court erred in instructing the jury on and in finding the CCP aggravator; (8) the sentence was disproportionate and the trial court erred in instructing the jury on and in finding the burglary aggravator" Defendant's Initial Brief Government's answer Defendant's reply

Rogers v. State (Florida) Relief denied on: "(1) the trial court erred in failing to grant a judgment of acquittal on the first-degree murder charge because the State failed to present sufficient evidence to support either premeditated or felony murder; (2) the evidence does not support the pecuniary gain or HAC aggravators; (3) the trial court erred by failing to find applicable the mitigating circumstance that the "capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance," § 921.141, Fla. Stat. (1995), and to give both statutory mental mitigating circumstances great or significant weight; (4) the trial court erred by failing to consider and appropriately weigh all mitigating circumstances in accordance with Campbell v. State, 571 So. 2d 415 (Fla. 1990); (5) the trial court erred in denying the defense's motion to have a Positron Emission Tomography Scan ("PET-Scan") performed on Rogers prior to trial; (6) the trial court committed reversible error by failing to grant Rogers' motion for a mistrial after witnesses testified during the penalty phase regarding Rogers' prior criminal misdemeanor conviction in California; (7) the trial court committed reversible error by failing to declare a mistrial based on improper prosecutorial argument during the penalty phase closing argument; (8) the trial court erred by denying the defense's motion to disqualify the Hillsborough County State Attorney's Office; (9) the trial court erred by denying a defense motion for a new trial based on newly discovered evidence; and (10) the imposition of the death penalty is disproportionate in this case."   Defendant's Initial Brief Government's answer Defendant's reply

State v. Lafferty (Utah) Relief denied on claims that: ": (1) whether the trial court erred in determining that he was competent to stand trial; (2) whether the trial court erred in granting the State's challenge for cause to remove Juror 220; (3) whether Utah's insanity defense, section 76-2-305 of the Utah Code, violates the Eighth Amendment to the United States Constitution  [*2]  and article I, section 9 of the Utah Constitution; (4) whether the trial court erred by admitting victim impact evidence during the penalty phase; (5) whether the trial court erred by allowing the introduction of statements made by defendant and his brother Dan Lafferty to the media; (6) whether the trial court erred by refusing to give defendant's requested instruction that the jury could consider sympathy or mercy in reaching its verdict during the penalty phase; (7) whether Utah's death penalty statute, section 76-3-207 of the Utah Code, is unconstitutional under the Eighth Amendment of the United States Constitution and article I, sections 7 and 9 of the Utah Constitution; and (8) whether the retrial of defendant violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and   article I, section 12 of the Utah Constitution."
 

Other Notable Cases (As reported by Findlaw, and other sources)
Cooperwood v. Cambra Jr.(9th Cir) Evidence that prosecutor excluded one black male from the jury panel is insufficient to make a prima facie case for race-based preemption under Batson where the prosecutor also excluded two white members, and three black women eventually ended up on the jury. 

Fryer v. US (7th Cir) Trial judge's decision to allow the jury to learn about a prior conviction did not prejudice petitioner in the jury's consideration of the three counts of armed bank robbery, where an analysis under Teauge showed that the likelihood of his accurate conviction was not
diminished. 

Ward v. Williams (10th Cir) Resentenced defendant, after a successful challenge to the legality of the prior jail sentence, may not claim a Double Jeopardy violation on resentencing because he may not legitimately expect finality in previous, illegal sentence.

Browning v. US (10th Cir) The US Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), does not apply retroactively. 

Betts v. Litscher (7th Cir) Unless the court is satisfied that a defendant who is constitutionally entitled to the assistance of counsel on direct appeal would be making  a frivolous appeal, it must instruct counsel to continue representing the appellant or appoint a new lawyer. 

Betts v. Litscher (7th Cir) Unless the court is satisfied that a defendant who is constitutionally entitled to the assistance of counsel on direct appeal would be making a frivolous appeal, it must instruct counsel to continue representing the appellant or appoint a new lawyer. 

Flagner v. Wilkinson (6th Cir) Prison officials who cut prisoner's hair and beard in 1996 in violation of prisoner's religious beliefs, but pursuant to prison policy, are entitled to qualified immunity from money damages under 42 USC 1983, but prisoner's constitutional challenge to the grooming regulation required further investigation. 

Glenn v. City of Tyler (5th Cir) Handcuffing too tightly, without more, does not amount to excessive force. Where officers had probable cause to arrest plaintiff and did  not act unreasonably in detaining her, they are entitled to qualified immunity even if they did mistakenly violate her constitutional rights. 

US v. Jones (4th Cir) Where an anonymous tip proved to be unreliable and the driver of the car was obeying the rules of the road, the stop violated the Fourth Amendment, and evidence discovered on the person of one of the passengers in the case should have been excluded from trial. 

US v. Youla(3rd Cir) Two-page Ander's brief submitted by criminal appellant's attorney, lacking any case law and discussion of extensive issues raised by appellant, warrants appellate counsel's discharge under Local Appellate Rule 109.2(a) and rejection of the brief. 

US v. Pultrone (3rd Cir) Defendant waived every of allegation of error when he failed to pursue a direct appeal from the initial judgment, so the appellate court lacks jurisdiction. 

US v. Richards(02/26/01 - No. 99-3966) Evidence implicating the "friend" of a co-defendant violated defendant's Sixth Amendment rights because it was obvious that the defendant was the "friend." However, the violation of Bruton v. United States, 391 US 123 (1968), was not plain error under Fed. R. Crim. P. 52(b). 

Rauser v. Horn (02/26/01 - No. 99-4013) Once a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in an official decision, prison officials must prove that they would have made the same decision for reasons reasonably related to a legitimate penological interest. 

Gov't of the Virgin Islands v. Albert (3rd Cir)Where a videotape is sgnificantly probative as evidence that defendant committed the murder, the prejudicial aspects of the graphic and gruesome depictions of the victim do not require a ruling of inadmissibility. 

US v. Jones (4th Cir) Where an anonymous tip proved to be unreliable and the driver of the car was obeying the rules of the road, the stop violated the Fourth Amendment, and evidence discovered on the person of one of the passengers in the case should have been excluded from trial. 

Ryees -Requena v. US (5th Cir) Because Bailey v. US, 516 US 137 (1995), is a substantive, non-constitutional decision concerning the reach of a federal statute, a second 28 USC 2255 claim based on that case will not lie, but a prisoner may still challenge the legality of a conviction under 28 USC 2241. 

Outrages of the Week
To return next week.

Featured
The Canadian Supreme Court in United States v. Burns has refused to extradite an American national back to the states where the death penalty was a potential penalty holding "the factors for and against unconditional extradition therefore leads to the conclusion that assurances are constitutionally required in all but exceptional cases."  From the syllabus in that case:

The respondents are each wanted on three counts of aggravated first degree murder in the State of Washington. If found guilty, they will face either the death penalty or life in prison without the possibility of parole. The respondents are both Canadian citizens and were 18 years old when the father, mother and sister of the respondent Rafay were found bludgeoned to death in their home in Bellevue, Washington, in July 1994. Both Burns and Rafay, who had been friends at high school in British Columbia, admit that they were at the Rafay home on the night of the murders. They claim to have gone out on the evening of July 12, 1994 and when they returned, they say, they found the bodies of the three murdered Rafay family members. Thereafter, the respondents returned to Canada. As a result of investigative work by undercover RCMP officers, they were eventually arrested. The Attorney General of British Columbia decided against a prosecution in that province. United States authorities commenced proceedings to extradite the respondents to the State of Washington for trial. The Minister of Justice for Canada, after evaluating the respondents' particular circumstances, including their age and their Canadian nationality, ordered their extradition pursuant to s. 25 of the Extradition Act without seeking assurances from the United States under Article 6 of the extradition treaty between the two countries that the death penalty would not be imposed, or, if imposed, would not be carried out. The British Columbia Court of Appeal, in a majority decision, ruled that the unconditional extradition order would violate the mobility rights of the respondents under s. 6(1) of the Canadian Charter of Rights and Freedoms. The Court of Appeal therefore set aside the Minister's decision and directed him to seek assurances as a condition of surrender. On further appeal to this Court,

     Held:  The appeal should be dismissed.

     Section 25 of the Extradition Act creates a broad ministerial discretion whether to surrender a fugitive, and if so, on what terms. While constitutionally valid, the Minister's discretion is limited by the Charter. The authority of the Minister under s. 25 is predicated on the existence of an extradition treaty. In respect of seeking assurances under Article 6 of the treaty, the Minister took the position that assurances were not to be sought routinely in every case in which the death penalty was applicable; such assurances should be sought only in circumstances where the particular facts of the case warranted that special exercise of discretion. Although it is generally for the Minister, not the court, to assess the weight of competing considerations in extradition policy, the availability of the death penalty opens up a different dimension. Death penalty cases are uniquely bound up with basic constitutional values and the court is the guardian of the Constitution.

     The death penalty is a justice issue and is only marginally a mobility rights issue. Section 6(1) of the Charter, standing alone, does not invalidate an extradition without assurances. Although extradition is a prima facie infringement of the s. 6(1) right of every Canadian citizen to "remain in" Canada, efforts to stretch mobility rights to cover the death penalty controversy are misplaced.

     Nor is s. 12 of the Charter ("cruel and unusual treatment or punishment") the most appropriate head of relief. The Charter guarantees certain rights and freedoms from infringement by "the Parliament and government of Canada" and "the legislature and government of each province" (s. 32(1)). The Canadian government would not itself inflict capital punishment, although its decision to extradite without assurances would be a necessary link in the chain of causation to that potential result. However, the degree of causal remoteness between the extradition order to face trial and the potential imposition of capital punishment as one of many possible outcomes to this prosecution makes this a case more appropriately reviewed under s. 7 of the Charter. The values underlying various sections of the Charter, including s. 12, form part of the balancing process engaged in under s. 7.

     Section 7 ("fundamental justice") applies because the extradition order would, if implemented, deprive the respondents of their rights of liberty and security of the person since their lives are potentially at risk. The issue is whether the threatened deprivation is in accordance with the principles of fundamental justice. Section 7 is concerned not only with the act of extradition, but also with its potential consequences. The balancing process set out in Kindler and Ng is the proper analytical approach. The "shocks the conscience" language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience.

     The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context. The outcome of the appeal turns on an appreciation of these principles, which in turn are derived from the basic tenets of our legal system. While these basic tenets have not changed since 1991 when Kindler and Ng were decided, their application 10 years later must take note of factual developments in Canada and in relevant foreign jurisdictions.

     In this case, it is said that a number of factors favour extradition without assurances: (1) individuals accused of a crime should be brought to trial to determine the truth of the charges, the concern being that if assurances are sought and refused, the Canadian government could face the possibility that the respondents might avoid a trial altogether; (2) justice is best served by a trial in the jurisdiction where the crime was allegedly committed and the harmful impact felt; (3) individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents; and (4) extradition is based on the principles of comity and fairness to other cooperating states in rendering mutual assistance in bringing fugitives to justice, subject to the principle that the fugitive must be able to receive a fair trial in the requesting state.

     Countervailing factors favour extradition only with assurances. First, in Canada, the death penalty has been rejected as an acceptable element of criminal justice. Capital punishment engages the underlying values of the prohibition against cruel and unusual punishment. It is final and irreversible. Its imposition has been described as arbitrary and its deterrent value has been doubted. Second, at the international level, the abolition of the death penalty has emerged as a major Canadian initiative and reflects a concern increasingly shared by most of the world's democracies. Canada's support of international initiatives opposing extradition without assurances, combined with its international advocacy of the abolition of the death penalty itself, leads to the conclusion that in the Canadian view of fundamental justice, capital punishment is unjust and should be stopped. While the evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty, it does show significant movement towards acceptance internationally of a principle of fundamental justice Canada has already adopted internally -- namely, the abolition of capital punishment. International experience thus confirms the validity of concerns expressed in the Canadian Parliament about capital punishment. It also shows that a rule requiring that assurances be obtained prior to extradition in death penalty cases not only accords with Canada's principled advocacy on the international level, but also is consistent with the practice of other countries with which Canada generally invites comparison, apart from the retentionist jurisdictions in the United States.

     Third, almost all jurisdictions treat some personal characteristics of the fugitive as mitigating factors in death penalty cases. Canada's ratification of various international instruments prohibiting the execution of individuals who were under the age of 18 at the time of the commission of the offence, and the language of the new Extradition Act which permits the Minister in certain circumstances to refuse to surrender persons who were under 18 at the time of the offence, support the conclusion that some degree of leniency for youth is an accepted value in the administration of justice. Accordingly, even though the respondents were 18 at the time of the crime, their relative youth constitutes a mitigating circumstance in this case, albeit of limited weight.

     Fourth, the accelerating concern about potential wrongful convictions is a factor of increased weight since Kindler and Ng were decided. The avoidance of conviction and punishment of the innocent has long been in the forefront of "the basic tenets of our legal system". The recent and continuing disclosures of wrongful convictions for murder in Canada and the United States provide tragic testimony to the fallibility of the legal system, despite its elaborate safeguards for the protection of the innocent. This history weighs powerfully in the balance against extradition without assurances when fugitives are sought to be tried for murder by a retentionist state, however similar in other respects to our own legal system.

     Fifth, the "death row phenomenon" is another factor that weighs against extradition without assurances. The finality of the death penalty, combined with the determination of the criminal justice system to try to satisfy itself that the conviction is not wrongful, inevitably produces lengthy delays, and the associated psychological trauma to death row inhabitants, many of whom may ultimately be shown to be innocent. The "death row phenomenon" is not a controlling factor in the s. 7 balance, but even many of those who regard its horrors as self-inflicted concede that it is a relevant consideration.

     Factors for and against extradition without assurances must be balanced under s. 7. The objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. There is no convincing argument that exposure of the respondents to death in prison by execution advances Canada's public interest in a way that the alternative, eventual death in prison by natural causes, would not. Other abolitionist countries do not, in general, extradite without assurances.

     Extradition of the respondents without assurances cannot be justified under s. 1 of the Charter. While the government objective of advancing mutual assistance in the fight against crime is entirely legitimate, the Minister has not shown that extraditing the respondents to face the death penalty without assurances is necessary to achieve that objective. There is no suggestion in the evidence that asking for assurances would undermine Canada's international obligations or good relations with neighbouring states. The extradition treaty between Canada and the United States explicitly provides for a request for assurances and Canada would be in full compliance with its international obligations by making it. As well, while international criminal law enforcement including the need to ensure that Canada does not become a "safe haven" for dangerous fugitives is a legitimate objective, there is no evidence that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a "safe haven" than does the death penalty. Whether fugitives are returned to a foreign country to face the death penalty or to face eventual death in prison from natural causes, they are equally prevented from using Canada as a "safe haven". Elimination of a "safe haven" depends on vigorous law enforcement rather than on infliction of the death penalty by a foreign state after the fugitive has been removed from this country.

     A review of the factors for and against unconditional extradition therefore leads to the conclusion that assurances are constitutionally required in all but exceptional cases. This case does not present the exceptional circumstances that must be shown. A balance which tilted in favour of extradition without assurances in Kindler and Ng now tilts against the constitutionality of such an outcome.

Errata
From the Death Penalty Information Center reports:

 Federal Legislation Aimed at Preventing Wrongful Executions Introduced In Congress 
On March 7, 2001, U.S. Senators Patrick Leahy (D-Vt.), Gordon Smith (R - Ore.), Susan Collins (R-Maine), and Russ Feingold (D-Wisc.), joined U.S. Representatives William Delahunt (D-Mass.) and Ray LaHood (R-Ill.) to reintroduce the Innocence Protection Act in Congress. The bipartisan legislation seeks to address problems of fairness in the death penalty in order to avoid the risk of wrongful convictions and executions. The bill requires states to provide qualified and experienced attorneys to all defendants facing the death penalty, and allows for greater access to DNA testing.  Both bills (S.486 and HR.912) began with record levels of bipartisan support - 16 (4 R, 12 D) original cosponsors in the Senate and 119 (19 R, 100 D) in the House.  Since the death penalty was reinstated, 95 people have been released from death row after new evidence led to their exoneration. (The Justice Project, Press Release, 3/7/01) 
    Read about the Innocence Protection Act at www.thomas.loc.gov/bss/d107query.html (search by bill number S.486 or HR.912).  See also, Innocence 

 Texas Carries Out 700th U.S. Execution Since Reinstatement of the Death Penalty 
The March 7th execution of Dennis Dowthitt in Texas marks the 700th execution in the U.S. since the death penalty was reinstated.  Over 80% of those executions occurred in the South, and 326 of the 700 (46%) were carried out in Texas and Virginia alone.  See also, Number of executions by state since 1976. 

Georgia Supreme Court Halts Electric Chair Execution; U.S. Supreme Court Grants Stay to Mentally Retarded Inmate in Missouri 

The Georgia Supreme Court granted a stay to Ronald Spivey until the court decides whether use of the electric chair constitutes "cruel and unusual punishment."  Georgia has not used its electric chair since 1998.  The state has since passed legislation to change its method of execution to lethal injection, but the statute only applies to those sentenced after May 1, 2000.  In a concurring opinion issued just four hours before Spivey's execution, Justice Sears noted that the Legislature changed the method of execution to lethal injection because electrocution "offends the evolving standards of decency that characterize a mature, civilized society." (Atlanta Journal-Constitution, 3/6/01) See also, methods of execution. 

The U.S. Supreme Court halted the execution of Antonio Richardson, a mentally retarded juvenile offender scheduled to be executed in Missouri on March 7, 2001.  The Court granted the reprieve to give the Justices more time to consider whether to hear his case.   The Supreme Court will hear Penry v. Johnson, a case related to mental retardation and the death penalty on March 27.  (St. Louis Post-Dispatch  3/7/01 ) For more information on Antonio Richardson's case, see below.  The Supreme Court also granted a stay in the Case of Ernest McCarver (see below), a mentally retarded defendant in North Carolina. 

Victims' Mother Asks Governor to Grant Clemency in Case of Juvenile Offender Recently Granted a Stay by the U.S. Supreme Court 
Antonio Richardson, who was scheduled to be executed on March 7, 2001 in Missouri, was granted a stay by the U.S. Supreme Court.  Among those trying to prevent his execution is Ginny Kerry, mother of the murder victims, who asked the Governor to spare Richardson's life.  (See Fox2 News, St. Louis (go to "news"), 3/1/01) 
 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. (American Bar Association's Juvenile Justice Center, Execution Alert, 2/15/01). 
     For more information on Antonio Richardson and his case, including recent news articles, please visit the ABA Juvenile Justice Center's Web page at www.abanet.org/crimjust/juvjus/richardson.html.  See also, juveniles and mental retardation and the death penalty. 
 

Texans Believe State Has Executed Innocent People 
A Scripps-Howard poll in Texas found that 65% of those surveyed believe that the state of Texas has executed an innocent person.  The belief in wrongful executions has gone up since June 2000, when 57% said an innocent person had been executed.  The poll also found that a majority of Texans support reform issues that are currently being considered by the legislature: 

85% believe that inmates should have access to free DNA testing if it may prove their innocence 
71% favor changing state law to include the sentencing option of life without parole. 
66% are opposed to the state executing an inmate who has mental retardation 

(Fort Worth Star-Telegram, 3/1/01)  See also, polls and proposed legislative changes. 

U.S. Supreme Court Grants Last Minute Stay for North Carolina Man with Mental Retardation 
Ernest Paul McCarver, who was scheduled to be executed at 2:00 am on March 2, was granted a reprieve by the U.S. Supreme Court.  The stay was granted after a denial of clemency from the Governor, despite McCarver's mental retardation. (Charlotte News & Observer, 3/2/01) The Supreme Court will be hearing a case related to mental retardation and the death penalty on March 27 (Penry v. Johnson, 00-6677). 
    Legislation to ban the death penalty for those with mental retardation passed an initial House vote in Missouri.  (Associated Press, 3/2/01)  See also, mental retardation and proposed legislative changes. 
 

Oklahoma Pardon and Parole Board Recommends First Clemency for Death Row Inmate 
By a 4-1 vote, the state Pardon and Parole Board recommended clemency for Phillip Smith, an Oklahoma death row inmate whose execution was scheduled for March 8th.  The move, which  marks the first time in 35 years that the Board has recommended clemency in a capital case, allows Gov. Frank Keating to consider commuting Smith's sentence to life in prison without parole.  The Board's decision was based on doubts about Smith's guilt.  "The board was concerned Mr. Smith may be innocent," said Smith's attorney Randy Bauman.  Keating granted Smith a 30-day stay , and will use the time to decide whether to commute Smith's sentence. (The Oklahoman, 3/1/01)  See also, clemency 

  Victims' Mother Asks Governor to Grant Clemency in Case of Juvenile Offender Scheduled for Execution in Missouri 
Antonio Richardson is scheduled to be executed on March 7, 2001 in Missouri.  Among those trying to prevent his execution is Ginny Kerry, the mother of the murder victims, who has asked the Governor to spare Richardson's life.  (See Fox2 News, St. Louis (go to "news"), 3/1/01) 
    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 Association's Juvenile Justice Center, Execution Alert, 2/15/01). 
     For more information on Antonio Richardson and his case, including recent news articles, please visit the ABA Juvenile Justice Center's Web page at www.abanet.org/crimjust/juvjus/richardson.html.  See also, juveniles and mental retardation and the death penalty. 
 

 Upcoming Conferences in Washington, DC and Ohio Focus on Religious and Legislative Responses to the Death Penalty 

The Interdisciplinary Program in Law and Religion with The School of Religious Studies at the Catholic University of America, Columbus School of Law is presenting "The Morality of the Death Penalty: The Challenge for Law, Society and Religion."  The conference, to be held in Washington, DC on March 29-30, 2001 brings together an international collection of eminent scholars to address the issue of state sanctioned execution of criminals in an interdisciplinary setting. For more information, visit the conference Web site at http://law.cua.edu/conference/DeathPenalty.shtm 
Addressing Capital Punishment Through Statutory Reform will bring a number of prominent law and social science professors, legislators, and attorneys together at the Ohio State University College of Law on March 30-31, 2001 to discuss the problems said to be plaguing the current system of capital punishment, and to assess the prospects for legislative reform of the modern administration of the death penalty.  For additional information, visit www.osu.edu/units/law/LawJournal/dpsymposium.html. 
See also, Upcoming Events 

NEW VOICES: Death Penalty for Terrorists? 
In a recent op-ed in the New York Times, Jessica Stern, who served on the National Security Council from 1994 to 1995, warned of the danger in executing terrorists: 

As a nation, we have decided that terrorism that results in loss of life should face the possibility of the death penalty. But is this wise? 
. . . 
[E]xecutions play right into the hands of our adversaries. We turn criminals into martyrs, invite retaliatory strikes and enhance the public relations and fund-raising strategies of our enemies. 
. . . 
[O]ther countries with far more experience in counterterrorism have concluded that imprisoning terrorists is the better option in the long run. 
. . . 
Our most powerful weapon against terrorists is our commitment to the rule of law. We must use the courts to make clear that terrorism is a criminal act, not jihad, not heroism, not holy war. And then, we must not make martyrs out of murderers.

(New York Times, 2/28/01)  Read the complete op-ed. See also, New Voices. 

Illinois Lawmakers Propose Death Penalty Abolition 
A group of five Illinois legislators introduced a bill to repeal the death penalty in the state.  The move comes a year after Gov. George Ryan declared a moratorium on executions and appointed a commission to study the state's capital punishment system. The bill would replace the death penalty with a sentence of life without parole. (Chicago Tribune, 2/26/01)  See also,proposed legislative changes. 

Despite New Evidence, U.S. Supreme Court Dismisses Appeal of Tennessee Death Row Inmate 
 The U.S. Supreme Court has refused to review the case of Tennessee death row inmate Philip Workman, who claims his new evidence should be sufficient to overturn his conviction. The Court granted Workman a stay of execution in February, but with this ruling Tennessee is now free to re-set the execution date.  Workman is still seeking clemency from Gov. Don Sundquist. (New York Times, 2/27/01). An execution date has been set for March 30. 
     Rep. Frank Buck, D-Dowelltown, one of the Tennessee Legislature's leading death penalty supporters, recently wrote to Governor Don Sundquist urging  him to grant clemency to Workman.  Citing new evidence and a recanting witness, Buck believes "justice may not have been done in this case."  Workman, who was convicted of killing Memphis police Lt. Ronald Oliver, has new evidence to support his claim that he could not have fired the shots that killed Oliver.  "Governor, this case just does not sit right on my conscience," wrote Buck, the chairman of the House Judiciary Committee. "There is enough doubt here that if I were on the jury, I would never vote for the death penalty in this particular case." (Knoxville News-Sentinel, 2/3/01).  See also, clemency. 

 NEW RESOURCES 
The Spangenberg Report, Feb. 2001 - offers the latest developments in standards and resources for indigent defense representation.  For information, contact The Spangenberg Group at tsg@spangenberggroup.com 

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. 
 

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