The Tennessee Supreme Court has placed all of the pleadings in state and federal court in the Workman case online for those who may be interested in expanding their stay materials.  http://www.tsc.state.tn.us/OPINIONS/TSC/CapCases/Workman/PRWorkman.htm

Seventy years have passed since the crimes that never were led to  nine teens and young men to forever be known as the Scottsboro Boys.  And the focus article this week is a reprinted from AFRO-Americ@'s Black History Museum on the event.

Due to changes in web protocols the current delivery method (and indeed the method that has been used for the past three years) is now being blocked due to the current crack down on unsolicited net advertising, a/k/a spam. While all options are being explored and "tech support" promising to have had the problem fixed this weekend, Recent editions are available at 

http://www.capitaldefenseweekly.com/archives/010319.htm
http://www.capitaldefenseweekly.com/archives/010312.htm
http://www.capitaldefenseweekly.com/archives/010305.htm
http://www.capitaldefenseweekly.com/archives/010219.htm
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Supreme Court 
Buford v. US (US) 18 USC 3742(e) requires appellat courts to give due deference to a district court's  application of a Sentencing Guideline term to  undisputed facts, such as whether an offender’s prior convictions were consolidated, and thus "related," for purposes of sentencing.

Ferguson v. City of Charleston (US)The use of law enforcement to coerce pregnant women into substance abuse treatment does not justify a hospital conducting drug tests and turning the results over to law enforcement agents without the knowledge or consent of the patients.

Carmona v. US Bureau of Prisons (US) A federal prisoner who defaults in pursuit of his administrative remedies will also be denied habeas review absent a showing of cause and prejudice under 28 USC 2241 even if the comity between federal and state courts rationale does not apply.

US v. Dhinsa  (US) Fed. R. Evid. 804(b)(6), which prohibits a defendant accused of killing a witness from making a hearsay objection to dead a witness' statements, is not limited to the witness' testimony to past events or offenses the witness would have testified about had he been available. 

Captial Case Relief Granted
Cone v. Bell (6th Cir) Petitioner was denied the effective assistance of counsel in death penalty case under the Sixth Amendment where, at sentencing, his counsel offered no mitigating evidence, made no argument of any sort prior to sentencing, and refused to plead for petitioner's life.

This court has found that counsel's failure "to investigate and present any mitigating evidence during the sentencing phase so undermined the adversarial process that [defendant's] death sentence was not reliable." Austin, 126 F.3d at 848. Where mitigating evidence was available, but not adequately investigated and not presented at sentencing, this "does not reflect a strategic decision, but rather an abdication of advocacy." Id. at 849.

It is indisputable that Cone's trial attorney presented no mitigating evidence at all and made no final argument; he did not even ask the jury to spare his client's life. However, Cone's attorney testified at the post-conviction hearing that he had several strategic reasons why he decided to waive final argument, admittedly a "radical tactic" at the penalty phase of a capital case. First, he thought that he had presented to the jury during the guilt phase almost every mitigating circumstance available. He claimed that since the jury is charged to consider those factors in its penalty phase deliberations, he did not have to put the evidence on a second time. Second, he claims that he "sucker[ed]" the prosecution into putting on mitigating evidence of Cone's Bronze Star decoration from Vietnam without having Cone testify. Third, he claims he thought the trial judge had "lost control" of the case. Fourth, he claims that Cone told him he would "explode" if he got on the stand. Fifth, he explained that he made his penalty phase "closing argument" in his opening statement during the guilt phase, and therefore, did not need to make a closing argument. Sixth, he explained his use of a rather confusing and convoluted theory on how he planned to get the jury to find an illegal aggravating circumstance, which would be the basis for later having the whole penalty phase thrown out. Last, he claimed that he wanted to prevent the prosecutor from making one of his notorious "devastating" closing arguments.

While these post hoc justifications, given in testimony at Cone's post-conviction hearing, surely amount to explanations for counsel's silence at sentencing and may have been "tactical" decisions, they do not necessarily defeat Cone's claim that his attorney's refusal to plead for Cone's life amounted to constitutional ineffectiveness.

A trial lawyer accused of constitutional ineffectiveness for failing to act where action is ordinarily indicated will almost always have a reason for declining to act. The reason will usually be called the lawyer's "strategy." But the noun "strategy" is not an accused lawyer's talisman that necessarily defeats a charge of constitutional ineffectiveness. The strategy, which means "a plan, method, or series of maneuvers or stratagems for obtaining a specific goal or result," Random House Dictionary 1298 (Rev. ed. 1975), must be reasonable. It need not be particularly intelligent or even one most lawyers would adopt, but it must be within the range of logical choices an ordinarily competent attorney handling a death penalty case would assess as reasonable to achieve a "specific goal."

Here, the goal, the only conceivable goal, was to persuade the jurors not to sentence Cone to death. How counsel's refusal even to ask the jurors to do that could be called a reasonable strategy to achieve the goal, eludes us.

Even if we add up all of counsel's claimed strategic tactics, only one of which was apparently credited by the Tennessee appellate courts and the district court below--avoiding a "devastating" argument by the prosecutor--we think a reasonable attorney would have realized the absolute necessity of arguing for his client's life by making a closing argument. In addition, counsel had plenty of mitigating evidence at his fingertips; yet he failed to present it at the sentencing phase.

We reject out of hand, the argument that a competent attorney would determine that not presenting mitigating evidence of any kind and not making a final argument in a death penalty case is a justifiable "strategy" because doing so might trigger a "devastating" response by the prosecutor--the sole reason assigned by the Tennessee courts for excusing counsel's silence. How much worse off could Cone have been if he were sentenced to death after a "devastating" argument by the prosecutor than if he were sentenced to death after the prosecutor's "mild" request that he be sentenced to death, which was followed by his own attorney's silence? Or, asked differently: How much more devastating for the petitioner could the prosecutor's "devastating" argument have been than the death sentence the petitioner got without such argument?

We can only imagine the effect on the jurors when Cone's defense counsel refused even to ask them to spare his client's life. They could only have inferred that Cone's counsel was, by his silence, acquiescing to the prosecutor's plea that Cone be sentenced to death. See Stewart, 140 F.3d at 1270. Cone may well have fared better if his counsel had left the courtroom entirely for the sentencing phase of the trial. If that had occurred, the jurors could not have inferred, as indeed they must have, that counsel's knowing and purposeful silence was an implicit agreement that justice required that Cone be put to death. When a man faces the gallows and his attorney sitting next to him declines even to ask the jurors to spare his life in the name of simple mercy, the attorney ought to have a most compelling reason for failing to speak--one that would incline a reasonable observer to credit as a sentencing strategy that is legally and factually justified. The reasons Cone's counsel has given are totally unreasonable, given the stakes. This was not "strategic" representation; it was nonrepresentation of the most deadly sort.

Under Cronic, a presumption of prejudice is raised by counsel's behavior; thus, Cone need not show actual prejudice. Essentially, Cone did not have counsel during the sentencing phase of his trial and thus the prosecutor's insistence that justice required that Cone be put to death was not subjected to "meaningful adversarial testing." Cronic, 466 U.S. at 656. We find that counsel's abandonment of Cone at possibly the most "critical stage of his trial" fell below an objective standard of reasonableness and prejudiced him, which resulted in the ineffective assistance of counsel under the Sixth Amendment. Id. at 659.

But the state of Tennessee has held that Cone's lawyer's behavior was not ineffective under Strickland and we may not disturb that ruling unless we are convinced that it constitutes a "decision that is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We conclude that Cone's counsel's refusal to offer any evidence in mitigation and refusal even to address the jurors to ask them to spare Cone's life because counsel feared the prosecutor might make a "devastating" argument denied Cone his Sixth Amendment right to counsel at sentencing and that the Tennessee court's conclusion to the contrary is an unreasonable application of the clearly established law announced by the Supreme Court in Strickland.

Federal Captial Cases Relief Denied
Workman v. Bell (6th Cir) Court holds there was no fraud requiring appointment of a special master concerning possibly misleading statements made by the Attorney General to the court. All filings click here.

After the latest denial of certiorari, the Tennessee Supreme Court set an execution date of March 30, 2001, and the petitioner then filed a motion to stay the execution date and the pending motion to reopen and appoint a special master. This court subsequently denied the motion to stay the execution date. He then filed a second motion to stay the execution date along with the motion to reopen and to appoint a special master.

Workman claims that the grounds for his pending motion are based upon a fraud upon the court. Specifically, he claims that the State asserted in argument before this court that Workman still had the opportunity to request relief under executive clemency in Tennessee. Although Workman was given a clemency hearing in April 2000, he withdrew the request before the governor acted upon it while his petition for rehearing en banc was proceeding. Later, he had another clemency hearing before the Tennessee Board of Probation and Parole (TBPP) on January 25, 2001. The governor of Tennessee has not yet decided his request for clemency, so far as this court is aware. Workman  [*3]  seized upon language in an order that this court entered in 1999, denying the first petition for rehearing en banc, when we stated: 

 
"The traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins, 506 U.S. 390, 417, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993). 

Under Tennessee law, the governor may grant clemency, see Tenn. Code Ann. § 40-27-101, so Workman may produce evidence to the governor that the fatal shot must have come from someone else's gun.

In support of his claim of fraud, Workman makes the following allegations: (1) the Tennessee Attorney General and others from his office, persons associated with the TBPP, representatives of the Shelby County District Attorney's Office and the governor's staff held meetings about the clemency proceedings that were designed to secure his execution; (2) the TBPP was hostile to the witnesses Workman presented during the clemency proceedings; (3) the State presented fabricated expert testimony during the clemency proceedings; and (4) a retired police officer, Clyde Keenan, falsely  [*4]  testified during the clemency proceedings.

In our equally divided opinion denying further relief for the petitioner in Workman, 227 F.3d 331, all of the judges agreed that the court can reconsider the petition if there was a fraud upon the court, as explained in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993). The elements of fraud set out in Demjanjuk are conduct: 

 
(1)On the part of an officer of the court; 

(2)That is directed to the "judicial machinery" itself; 

(3)That is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; 

(4)That is a positive averment or is concealment when one is under a duty to disclose; 

(5)That deceives the court. 

Id. at 348.

Although the State asserted that a clemency proceeding was available in which Workman could present evidence, it did not make a statement concerning the clemency proceeding that was intentionally false, wilfully blind to the truth, or in reckless disregard for the truth. Taking the allegations in the light most favorable to Workman, if there was any fraud, it would have been upon  [*5]  the governor of Tennessee or upon the TBPP.

Death row inmates have no constitutional right to clemency proceedings. See Herrera, 506 U.S. at 414. The Tennessee Governor has the power to pardon, grant reprieves and commutations in all criminal cases except impeachment. See Tenn. Const. art. III, § 6; Tenn. Code Ann. § 40-27-101. The TBPP makes, "upon the request of the governor, . . . nonbinding recommendations concerning all requests for pardons, reprieves or commutations." Tenn. Code Ann. § 40-28-104(a)(10).

We do not sit as super appeals courts over state commutation proceedings. In Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276, 140 L. Ed. 2d 387, 118 S. Ct. 1244 (1998) (plurality opinion), the Court held, "We reaffirm our holding in Dumschat [452 U.S. 458 (1988)], that 'pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.'" However, the court split on the issue of whether clemency proceedings were subject to the constitutional safeguards of the Due Process Clause. See id. at 289. Justice O'Connor's  [*6]  concurring opinion concluded that "some minimal procedural safeguards apply to clemency proceedings" regardless of whether the power to grant clemency is solely entrusted to the executive. Id. (O'Connor, J., concurring). She illuminated the standard by stating, "Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process." Id.

Workman does not allege that his Tennessee clemency proceedings failed to meet the standard set out in Woodard. He attacks the evidence presented at his clemency proceeding by saying that it was erroneous or false. Thus, he attacks the proceedings' substantive merits. We are not authorized to review the substantive merits of a clemency proceeding. See Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir. 1998). Our only review is to see that there are some minimal procedural safeguards. See Faulder v. Texas Board of Pardons and Paroles, 178 F.3d 343, 344 (5th Cir. 1999). It is not our duty to determine  [*7]  the quality of the evidence considered by the governor or his board.

Because we deny the motion to reopen and to appoint a special master, the second motion to stay the execution is also meritless. 

We have carefully considered Kroll's allegations and contentions regarding Massie's history of mental problems and Massie's alleged incompetency during his 1989 trial. However, Massie's prior history of mental  [*11]  problems and alleged incompetency during his 1989 trial concern events which are now twelve and more years old. Kroll must show that Massie is currently incompetent to waive further federal habeas proceedings. Cf. Baal, 495 U.S. at 737 (prior suicide attempts are insufficient to demonstrate present incompetency); cf. also Wells v. Arave, 18 F.3d 658, 660 & n.5 (9th Cir. 1994) (Reinhardt, J., dissenting from denial of en banc review after three-judge panel denied a stay of execution) (arguing that stay was warranted because petitioner had a documented history of serious mental illness including psychosis, delusional thinking, and auditory hallucinations).

Mental incompetency in the "next friend" context must meet the Rees v. Peyton, 384 U.S. at 314, standard. See Whitmore, 495 U.S. at 166 (citing Rees). The putative next friend must present "meaningful evidence" that petitioner is suffering from a mental disease, disorder, or defect that substantially affects his capacity to make an intelligent decision. See id. (citing Rees).

The transcripts of the hearings conducted by the district court in August  [*12]  1999 and December 2000 clearly reveal Massie to be lucid, responsive, logical, coherent, and fully aware of his situation. The district court's painstakingly thorough questioning of Massie demonstrated beyond any doubt that Massie understands the consequences of his actions and that he has made a rational choice to abandon further litigation. Massie testified that he would rather be executed than pursue legal remedies that, at best, would assure that he spend the rest of his life in prison.

The district court expressly found both that Massie satisfied the Rees v. Peyton competency standard, see District Court Order of August 25, 1999 at 3, and that Massie's decision to dismiss his petition was knowing, intelligent, and voluntary, see Transcript of December 21, 2000 hearing. Cf. Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000) (capital petitioner on appeal moved to waive further federal proceedings; this court remanded for competency hearing when prior competency determination was more than a decade old).

Three state doctors who interviewed Massie in late February and early March of this year each concluded that Massie understands he is about to be executed  [*13]  and why. The doctors examined Massie to determine whether he was competent for execution, not whether he was competent to waive federal habeas proceedings. See Ford v. Wainwright, 477 U.S. 399, 422, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986) (Powell, J., concurring); cf. Rees, 384 U.S. at 313-14. However, the doctors also noted that Massie was oriented to time, person, and place; was coherent and exhibiting rational behavior; had fully intact thought processes; and had no indication of mental illness.

In the face of this record, the only evidence of current incompetency that Kroll offers is the following: (1) his own lay declaration in which he states that Massie's history of childhood abuse and neglect and his current depression and "obvious mental illness" render Massie unable "to make a rational decision about whether to continue his appeals;" (2) the declaration of Robert Bryan, counsel at Massie's 1989 retrial, who states both that Massie's current course of action is another manifestation of Massie's suicidal wishes and that on March 21, 2001 Bryan met with Massie and when Bryan asked Massie why Massie's counsel had not raised a speedy trial claim  [*14]  which, if successful, could have led to Massie's release, Massie's thought processes became increasingly disorganized, his responses illogical, and his reasoning was "out of control;" (3) a declaration by George Woods, M.D., who admits he has never examined Massie yet nonetheless opines that Massie is seriously mentally ill and there is a "high probability" that serious mental illness is impairing Massie's capacity to make rational decisions; (4) a declaration by Pablo Stewart, M.D., who states only that Massie should have been tested for competency at his 1989 trial; (5) a declaration by Fred Rosenthal, Ph.D., M.D., a defense psychiatric expert at the 1989 retrial, who states that Massie's current behavior is consistent with his long-standing self-destructive impulses and that Massie's serious mental illness prevents him from being able to make rational decisions now; and (6) a San Quentin prison record showing that in February 1990 Massie complained of "psychological problems" and requested examination by the Unit Psychiatrist for medication. n2

We agree with the district court that Kroll has failed to present "meaningful evidence" of current incompetency because: (1) Kroll's declaration cites no bizarre behavior by Massie and Kroll is not a mental health expert; (2) "Bryant (sic) really says that Mr. Massie has not been stating, to Mr. Bryant's (sic) satisfaction, his explanation or understanding of certain legal concepts," see Transcript of March 23, 2001 Hearing at 5; (3) Dr. Woods has never examined Massie and he bases his opinion on records that are twelve years old; (4) Dr. Stewart expresses no opinion on Massie's current competence; and (5) Dr. Rosenthal's opinion "is based upon absolutely no evidence since 1989," see id. at 6. Cf. Baal, 495 U.S. at 736 (conclusory opinions by doctors who have not personally examined the prisoner are insufficient to establish mental incompetency for next friend purposes). Massie's 1990 request for a psychiatric exam is also insufficient to demonstrate current incompetency because that request is now eleven years old.

Kroll, however, also argues that the district court's two hearings were inadequate because: (1) some of Massie's answers were supposedly nonsensical  [*16]  and demonstrate that Massie does not have the capacity to fully appreciate his position and make rational decisions; (2) counsel for Massie and counsel for the State both misled the court when they each stated they were unaware of any reason to question Massie's competency; and (3) that so misled, the district court's competency determinations are flawed because they were made without the benefit of clinically relevant information.

At the December 21, 2000 hearing, Massie stated he changed his mind because even were he to prevail on one of his four claims, a recent case had convinced him that "the ultimate result would be to reduce the general party bar conviction to the alternative of second degree burglary which would, in my case, amount to a twenty-five years to life sentence ...." See Transcript of December 21, 2000 at 16-17. In context, it is apparent that Massie was saying that he had come to the realization that none of his legal maneuverings would result in an outright acquittal.

We have also considered Kroll's contention that counsel for both the State and for Massie misled the district court when they answered that they were unaware of any reason to question Massie's  [*17]  competency. Given that Massie has had no overt signs of mental illness over the past eleven years, we reject the argument that the attorneys' failure to fully inform the court of Massie's prior history of mental problems fatally flaws the district court's finding that Massie is currently competent.

Kroll insists that the district court's competency determinations are inadequate because Massie's current competency cannot be assessed without reference to Massie's history of mental illness which Kroll alleges is documented as four decades in length. Past mental illness, however, is not enough to upset a current determination of competency. See Brewer v. Lewis, 989 F.2d 1021, 1026 & n.6 (9th Cir. 1993) (concluding that when four experts who had examined petitioner determined he suffered from a personality disorder yet all agreed he was competent, neither petitioner's long standing mental problems, nor even his current belief that after his execution he and the girlfriend he murdered would live together on another planet, constituted "meaningful evidence" that petitioner was suffering from a mental disease, disorder, or defect that substantially affected his capacity to  [*18]  make an intelligent decision); cf. Vargas v. Lambert, 159 F.3d 1161, 1170-71 (9th Cir.) (staying execution because next friend presented meaningful evidence that condemned was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make rational decisions; condemned was currently being medicated with psychotropics, sleeping sixteen hours a day, and one expert diagnosed condemned as psychotic), stay vacated by Lambert v. Vargas, 525 U.S. 925, 142 L. Ed. 2d 274, 119 S. Ct. 313 (1998). All of the evidence of Massie's alleged incompetency relates to time periods predating 1991. The district court's findings of fact on Massie's current incompetency are not clearly erroneous.

Thompson v. Dept of Corrections (CA) Article VI, section 11 of the California Constitution, which gives the Supreme Court exclusive appellate jurisdiction in capital cases, does not apply to dipsutes over the time when a condemned inmate's personal spiritual adviser must leave the inmate before the execution.

Hooks v. State (Okla.Crim.App.)  Relief denied on claims that "appellate counsel was ineffective for failing to raise "material facts in this case, including the nature and scope of the problems with the structure of Oklahoma's current clemency scheme." Hooks appears to include in this claim a larger allegation that appellate counsel failed to reasonably investigate the case or make reasonable decisions regarding investigative issues."

Head v. Carr  (Ga.) "The trial court did not err by ruling that the evidence of Carr's guilt was too great for him to show that actual prejudice resulted from alleged errors in the guilt-innocence phase.  The habeas court found a number of areas where trial counsel's performance was deficient to support the vacation of Carr's death sentence. These findings are either factually unsupportable or legally insufficient to demonstrate actual prejudice."

Other Notable Cases (As reported by Findlaw, and other sources)
US v. Hoskins (7th Cir) Defendant knowingly waived his right to counsel at the sentencing hearing when he affirmatively fired his attorney despite the district court's statement that it would not appoint substitute counsel and advising against defendant's proceeding pro se.

Outrages of the Week
To return next week.

Featured 
This week's featured article is a return to Scottsboro some seventy years after a crime that never occurred. A brief recount of this mockery of justice can be found below and is reprinted from AFRO-Americ@'s Black History Museum. See also  "The Trial of 'The Scottsboro Boys'" By Douglas O. Linder:

The devastating day of March 25, 1931, started with hope for the young men on the freight train chugging away from their home town of Chattanooga, Tenn. For Eugene Williams, 13, the idea of leaving his birthplace and the grinding poverty there had seemed like a good and responsible one. "If I leave her, " he reportedly said of his mother, "it will mean one less mouth to feed." By the end of the day, Williams would become one of nine young black males forcibly taken off the train by a sheriff's gang and charged with raping two white girls.

By the next month, eight of the nine, including Williams, would be convicted and sentenced to death, beginning a long fight which threatened to rend the very fabric of American society apart.Throughout the lengthy judicial proceedings, the AFRO-AMERICAN Newspapers kept track of the case -- interviewing participants, and even dispatching a series of telegrams during some of the most dramatic developments in the battle. The case would drag on for years and leave the lives of the nine decimated by the traumatic events.

The Scottsboro Boys (the young men were named after the Alabama town where they were tried for the first time) ranged in age from 13 to 21. They were: Roy Wright, 13, Eugene Williams, 13, Andy Wright, 17, Haywood Patterson, 17, Olin Montgomery, 17, Willie Roberson, 17, Ozzie Powell, 16, Charles Weems, 21 and Clarence Norris, 21. The nine, who were charged with attacking two white girls, one an admitted town prostitute, Ruby Bates and Victoria Price, immediately pleaded not guilty to the 20 indictments against them. Their pleas were swiftly rejected. An all-white jury in the court room of Judge E. A. Hawkins convicted eight of the boys, declaring a mistrial in the case of 13-year-old Roy Wright. This despite the publication of an expose revealing a frame-up by the communist Daily Worker newspaper just days after the arrest. Tried in three groups, the eight were sentenced to death on the same day - April 9, 1931.

The verdicts were hardly surprising in the climate of the time, where conviction was guaranteed of any black accused of such a crime. A local jurisprudence riddled with racism ensured that the defendants were at a disadvantage; the young men were assigned Milo Moody, a local lawyer, as a defense attorney who had no preparation in the case. According to a report in the April 18, 1931 edition of the AFRO by Managing Editor William N. Jones, who covered the story on location, some 10,000 white mountaineers and villagers came to town the day of the trial. Later that day -- April 6 -- a crowd assembled outside the courthouse and, surrounded by state troopers, reportedly staged a demonstration of approval, complete with a band playing "There'll be a hot time in the old town tonight."

The reaction to the convictions was swift and large scale. Just one day after the death sentences were handed down, the first big demonstration was held at St. Luke's Hall in Harlem. The next week, the International Labor Defense, a well-known communist group, who had entered the case immediately after the guilty verdict, joined with the parents of the boys to secure the services of General Geo W. Chamlee to represent them. The ILD would later clash with the National Association of Colored People (NAACP) over the representation of the youngsters.

From the very beginning, the boys' parents were passionate in the defense of their offspring. Mrs. Janie Patterson, mother of Haywood, spoke before a meeting of 1,000 workers the month her son was sentenced to die, while Ada Wright, mother of Roy and Andy, would be arrested and deported from Belgium after speaking to workers there about the young men.
The support for the boys overseas was dramatic. Demonstrations were held in Dresden, Leipzig and Berlin, Germany as soon as the verdicts came in. And, an international collection of intellectuals and scientists, including Albert Einstein, signed an petition demanding the release of the nine young men. Eventually, supporters would be joined by one of the alleged victims, Ruby Bates, who visited the Washington, D.C. office of the AFRO-AMERICAN Newspaper, where she denied that she had been raped by the young men.

Meanwhile, the petitions flied back and forth. Finally, on Nov. 8, 1932, Judge Hawkins set new trials for all nine boys for the March 1933 term of the Scottsboro court.

The second trial opened in Decatur, Ala. on March 28, 1933, following the filing of two defense motions for a change of venue and to quash the indictment against the boys on the grounds that there had been no blacks on the first jury. Despite this, a lily-white jury was picked to try Haywood Patterson, the first of the nine young men to be brought to trial.  The town seethed with racial hatred as the proceedings began, with cries denouncing Bates and Lester Carter, a white boy who traveled with Bates and Price. Carter also confirmed that the rapes had never taken place. AFRO reporters on the scene flashed a series of telegrams back to their pubilsher Carl Murphy describing the tense scene.

Public appetite for news of the proceedings was unsatiable. AFRO reporters covering the trial delayed returning home to Baltimore, accepting invitations to report to supporters all over the area about what they had seen and heard about the case.

The trials would last for several years and eventually charges were dropped against five of the nine. The other four were retried and convicted; three were later paroled, and the fourth, Patterson, escaped.

But none would escape the scars of the experience.
 

Errata
From the Death Penalty Information Center reports: 

  Pennsylvania Poll Finds Support for a Moratorium 
A recent poll of Pennsylvanians found that 72% favor suspending the death penalty until questions about its fairness can be studied.  The poll also found: 

67% support a sentence of life in prison without parole as an alternative to the death penalty 
69% agreed that the poor are more likely than the wealthy to be executed 
51% agreed that blacks are more likely than whites to be executed 
very few voters (10%) have ever voted for a candidate based on the death penalty issue 
71% favor the death penalty, consistent with national figures 

(Madonna Yost Opinion Research, March 2001)  Read the Press Release.  See also, Public Opinion. 

   EDITORIAL: The Baltimore Sun on Maryland moratorium bill: 

KILL FIRST. Ask questions later. That's what Maryland officials will be doing if the General Assembly doesn't pass a death penalty moratorium bill this session. They'll be strapping prisoners to gurneys -- as many as four this year -- and extinguishing their lives without knowing whether race or some other indecorous factor helped convict them....That's no way to conduct public policy on behalf of all Marylanders, in whose names these lives are taken. It's also completely unnecessary, because the moratorium bill...could help clear up this moral morass.... It would stop the state from executing someone now, only to find out two years down the road that the capital system is skewed or unfair....Simple fairness says we should ask and answer the questions surrounding Maryland's death penalty -- before we take another life in the name of justice.
(The Baltimore Sun , 3/27/01) See also, "Maryland House Passes Death Penalty Moratorium  Legislation" (below) and proposed legislative changes 

Maryland House Passes Death Penalty Moratorium Legislation 
On March 24, a bill to suspend executions in Maryland for 2 years passed the House of Delegates by a vote of 82-54.  The bill, HB 563, calls for a moratorium, starting July 1, pending the results of a University of Maryland study on whether the state's death penalty is applied disproportionately against African-Americans.  "There is a problem with the system," said Del. William H. Cole.  "We want to make sure that it is fair for black and white, rich and poor." Currently, Maryland has the highest percentage of blacks on death row of any state. 
     The bill now moves to the Senate Judicial Proceedings Committee where Chairman Walter Baker said he would not allow a vote for an identical Senate bill, SB 316, even though a majority of the Committee members want to bring the bill to a vote.  Despite Baker's refusal, Senate President Thomas V. Mike Miller has promised a vote on the bill stating, "the people of the state should be allowed to see how their elected representatives feel about this issue."  (Baltimore Sun, 3/24-25/01) 
     See also, proposed legislative changes and www.quixote.org/ej 

U.S. Supreme Court to Decide Whether Executing Inmates with Mental Retardation is "Cruel and Unusual" 
The U.S. Supreme Court agreed to hear the case of Ernest McCarver, a death row inmate in North Carolina with mental retardation.  The Court will consider whether executing those with mental retardation offends society's "evolving standards of decency" and thus violates the Eighth Amendment's ban on cruel and unusual punishment. McCarver's appeal cites "society's newly evolved consensus against executing the mentally retarded" as the basis for prohibiting such executions. (Associated Press, 3/26/01) 
    In 1989, the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment because a "national consensus" had not developed against executing those with mental retardation.  At the time, only two states prohibited such executions.  Since then, 11 more states and the federal government have enacted laws prohibiting the execution of the mentally retarded, and legislation regarding the mentally retarded is pending in at least 7 other states.  On March 27, the U.S. Supreme Court will hear Penry v. Johnson, a case involving jury instructions and the execution of a Texas death row inmate with mental retardation

To return next week.

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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.

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