In three additional  cases, State v. Hartman,  King v. State & Young v. Commonwealth arguments often considered boilerplate find fruition. In King v. State the Mississippi Supreme Court holds the trial court erred in informing jury sympathy could play no role in deliberating during the penalty phase. In Young v. Commonwealth the Kentucky Supreme Court holds that  insufficient evidence as to the aggravating circumstance required a new penalty phase.  The Tennessee Supreme Court in State v. Hartman holds the trial court erred in not allowing  the defendant to present evidence relevant to establish residual doubt as a mitigating circumstance and insufficient evidence to an aggravator.

On the remaining capital case victories the cases are more difficult to group.  In Warner v. State the Oklahoma Court of Criminal Appeals holds that the trial court erred in not removing for cause certain jurors.  In Powell v. Commonwealth  the Virginia Supreme Court holds that rape of a person already dead does not aggravate murder to capital murder. In Echols v. State  the Arkansas Supreme Court remands for correction of the trial court's rush to process to deal with the post-conviction motion before it, a rush that caused several rules of court not to be followed.  Finally in Ex parte Carroll the Alabama Supreme Court remands, yet again, for the trial court to clarify why it sentenced Carroll to death.

Chief among the losing federal cases is  Bracy v. Schomig, Seventh Circuit, in which a split court held that petitioner had not shown prejudice where state court judge was taking bribes in other cases. The Tenth Circuit in an unpublished opinion, Johnson v. Gibson, denied relief on chiefly Simmons penalty phase jury instruction issues. Finally in In re Goff  the Fifth Circuit denied permission to file a successive petition where the question before the court is possible innocence.

The Supreme Court's opinion in Atwater v. City of Lago Vista, greatly broadened the power of police to arrest and detain individuals, for even the most minor of infractions.

As a special concession to the two character and fitness committees currently reviewing my bar application to join their respective bars (reciprocity want possible which meant, yes bar exams),  the feature this week is from a concurrence in Butts v. Georgia (covered next week in full) about civility in capital cases.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010430.htm.

Supreme Court 
Atwater v. City of Lago Vista The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation, punishable only by a fine. 

Texas law makes it a misdemeanor, punishable only by a fine, either for a front-seat passenger in a car equipped with safety belts not to wear one or for the driver to fail to secure any small child riding in front. The warrantless arrest of anyone violating these provisions is expressly authorized by statute, but the police may issue citations in lieu of arrest. Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her mug shot and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seatbelt misdemeanors and paid a $50 fine. She and her husband (collectively Atwater) filed suit under 42 U.S.C. 1983, alleging, inter alia, that the actions of respondents (collectively City) had violated her Fourth Amendment right to be free from unreasonable seizure. Given her admission that she had violated the law and the absence of any allegation that she was harmed or detained in any way inconsistent with the law, the District Court ruled the Fourth Amendment claim meritless and granted the City summary judgment. Sitting en banc, the Fifth Circuit affirmed. Relying on Whren v. United States, 517 U.S. 806, 817818, the court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, the result is rarely in doubt where an arrest is based on probable cause. Because no one disputed that Turek had probable cause to arrest Atwater, and there was no evidence the arrest was conducted in an extraordinary manner, unusually harmful to Atwaters privacy interests, the court held the arrest not unreasonable for Fourth Amendment purposes. 

Held:The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Pp.433.

     (a)In reading the Fourth Amendment, the Court is guided by the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. E.g., Wilson v. Arkansas, 514 U.S. 927, 931. Atwater contends that founding-era common-law rules forbade officers to make warrantless misdemeanor arrests except in cases of breach of the peace, a category she claims was then understood narrowly as covering only those nonfelony offenses involving or tending toward violence. Although this argument is not insubstantial, it ultimately fails. Pp.424.

          (1)Even after making some allowance for variations in the prefounding English common-law usage of breach of the peace, the founding-era common-law rules were not nearly as clear as Atwater claims. Pp.514. 

               (i)A review of the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, demonstrates disagreement, not unanimity, with respect to officers warrantless misdemeanor arrest power. On one side, eminent authorities support Atwaters position that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See, e.g., Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352. However, there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. See, e.g., Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805, 805806; 2 M. Hale, The History of the Pleas of the Crown 88. Thus, the Court is not convinced that Atwaters is the correct, or even necessarily the better, reading of the common-law history. Pp.611.

               (ii)A second, and equally serious, problem for Atwaters historical argument is posed by various statutes enacted by Parliament well before this Republics founding that authorized peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence, including, among others, nightwalking, unlawful game-playing, profane cursing, and negligent carriage-driving. Pp.1114.

          (2)An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwaters position. Pp.1424.

               (i)Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers warrantless misdemeanor arrest authority to instances of actual breach of the peace, and the Courts review of framing-era documentary history has likewise failed to reveal any such design. Nor is there in any of the modern historical accounts of the Fourth Amendments adoption any substantial indication that the Framers intended such a restriction. Indeed, to the extent the modern histories address the issue, their conclusions are to the contrary. The evidence of actual practice also counsels against Atwaters position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, regularly authorized local officers to make warrantless misdemeanor arrests without a breach of the peace condition. That the Fourth Amendment did not originally apply to the States does not make state practice irrelevant in unearthing the Amendments original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, and the fact that many of the original States with such constitutional limitations continued to grant their officers broad warrantless misdemeanor arrest authority undermines Atwaters position. Given the early state practice, it is likewise troublesome for Atwaters view that one year after the Fourth Amendments ratification, Congress gave federal marshals the same powers to execute federal law as sheriffs had to execute state law. Pp.1418.

               (ii)Nor is Atwaters argument from tradition aided by the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become woven into the fabric of American law. E.g., Wilson, supra, at 933. The story, in fact, is to the contrary. First, what little this Court has said about warrantless misdemeanor arrest authority tends to cut against Atwaters argument. See, e.g., United States v. Watson, 423 U.S. 411, 418. Second, this is not a case in which early American courts embraced an accepted common-law rule with anything approaching unanimity. See Wilson, supra, at 933. None of the 19th-century state-court decisions cited by Atwater is ultimately availing. More to the point are the numerous 19th-century state decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. Finally, legal commentary, for more than a century, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. Small wonder, then, that today statutes in all 50 States and the District of Columbia permit such arrests by at least some (if not all) peace officers, as do a host of congressional enactments. Pp.1824.

     (b)The Court rejects Atwaters request to mint a new rule of constitutional law forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government can show no compelling need for immediate detention. She reasons that, when historical practice fails to speak conclusively to a Fourth Amendment claim, courts must strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 299300. Atwater might well prevail under a rule derived exclusively to address the uncontested facts of her case, since her claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her. However, the Court has traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e.g., United States v. Robinson, 414 U.S. 218, 234235. Complications arise the moment consideration is given the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted. The assertion that these difficulties could be alleviated simply by requiring police in doubt not to arrest is unavailing because, first, such a tie breaker would in practice amount to a constitutionally inappropriate least-restrictive-alternative limitation, see, e.g., Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 629, n.9, and, second, whatever guidance the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes arresting would serve an important societal interest. That warrantless misdemeanor arrests do not demand the constitutional attention Atwater seeks is indicated by a number of factors, including that the law has never jelled the way Atwater would have it; that anyone arrested without formal process is entitled to a magistrates review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U.S. 44, 5558; that many jurisdictions have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses; that it is in the polices interest to limit such arrests, which carry costs too great to incur without good reason; and that, under current doctrine, the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was conducted in an extraordinary manner, unusually harmful to his privacy or physical interests, e.g., Whren, 517 U.S., at 818. The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and peace officers, is a dearth of horribles demanding redress. Thus, the probable cause standard applies to all arrests, without the need to balance the interests and circumstances involved in particular situations. Dunaway v. New York, 442 U.S. 200, 208. An officer may arrest an individual without violating the Fourth Amendment if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officers presence. Pp.2433.

     (c)Atwaters arrest satisfied constitutional requirements. It is undisputed that Turek had probable cause to believe that Atwater committed a crime in his presence. Because she admits that neither she nor her children were wearing seat belts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwaters arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, unusually harmful to her privacy or physical interests. See Whren, 517 U.S., at 818. Whether a search or seizure is extraordinary turns, above all else, on the manner in which it is executed. See, e.g., ibid. Atwaters arrest and subsequent booking, though surely humiliating, were no more harmful to her interests than the normal custodial arrest. Pp.3334.

195 F.3d 242, affirmed.

     Souter, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Scalia, Kennedy, and Thomas, JJ., joined. OConnor, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

[B]y its own terms § 2254(d)  [*15]  applies only to claims already "adjudicated on the merits in State court proceedings." It follows that when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in Williams do not apply. See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999), aff'd, 528 U.S. 225, 145 L. Ed. 2d 727, 120 S. Ct. 727 (2000) ("When a petitioner has properly presented a claim to the state court but the state court has not adjudicated the claim on the merits, however, our review of questions of law and mixed questions of law and fact is de novo."); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) (declining to apply § 2254(d)'s deferential standards because the Texas state courts had dismissed petitioner's claim on procedural grounds rather than on its merits); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998) ("A prerequisite for applying [§ 2254(d)] is that the state court adjudicated the issue before us on the merits."). 

In such an instance, the federal habeas court must conduct a de novo review  [*16]  over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). However, the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). 

The District Court recognized that AEDPA was applicable to Appel's habeas petition. Because the District Court's opinion was filed before the Supreme Court's opinion in Williams v. Taylor, the District Court proceeded under the interpretation of AEDPA that this court applied in its decision in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (en banc). Nevertheless, nothing in Williams would change the District Court's determination that the AEDPA deference standard is inapplicable in Appel's habeas proceeding. 

The District Court first determined that "the claim at the center of Appel's habeas petition, [i.e.] that he was constructively denied his Sixth Amendment right to the assistance of counsel during the time before the trial court accepted his waiver of counsel,  [*17]  " was presented to the Pennsylvania Supreme Court and therefore Appel exhausted his state court remedies. District Court Memorandum at 12. In fact, the Pennsylvania Supreme Court expressly recognized that it must resolve "whether Appel is entitled to relief because he was denied assistance of counsel during the original trial court proceedings." Appel II, 547 Pa. at 184, 689 A.2d at 897. However, the Pennsylvania Supreme Court's analysis of this claim always characterized the claim as alleging ineffective assistance of counsel, and not constructive denial of counsel. The two claims, of course, are different. The claim of ineffective assistance of counsel must be evaluated from a federal constitutional basis under the standards set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The constructive denial of counsel analysis, on the other hand, stems from the Supreme Court's decision in United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). 

In rejecting Appel's PCRA petition, the Pennsylvania Supreme Court described Appel's claim as one for ineffective assistance of counsel asserting  [*18]  that his "stand-by counsel were deficient because they: (1) did not investigate Appel's background; (2) spoke to no one who knew Appel; (3) did not obtain records about Appel; and (4) provided no information about Appel's alleged history of mental illness to the court-appointed psychiatric experts or to the court itself." Appel II, 547 Pa. at 198, 689 A.2d at 904. Then, the Court, relying on its precedent in Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994), held that "claims of ineffective assistance of counsel are not cognizable during post-trial proceedings, when the defendant has previously insisted on representing himself." Appel II, 547 Pa. at 198, 689 A.2d at 904 (emphasis added). 

Nevertheless, the Court considered the substance of Appel's claim and rejected "Appel's argument that stand-by counsel must ignore the pleadings of their criminal defendant clients and undertake an exhaustive survey of the client's personal background in an attempt to establish incompetency." Id. at 202, 689 A.2d at 906. The Court accordingly concluded that Appel's standby counsel did not act unreasonably in respecting their client's wishes  [*19]  not to investigate his competency. 

The District Court recognized that because the Pennsylvania Supreme Court recharacterized Appel's claim as arguing that "stand-by counsel" were ineffective and consistently referred to Kraft and Crowe as only "stand-by counsel," it failed to adjudicate Appel's denial of counsel claim on the merits. See District Court Memorandum at 14-15. As the District Court stated, "the state courts thus condoned Kraft's and Crowe's conduct based on the trial court's post-hoc finding that Appel was competent, when the relevant questions were whether they were counsel or stand-by counsel prior to June 20, 1986, and what they were obligated to do when faced with a potentially incompetent client on June 12, 1986, who might be unable to make the rational, strategic choices which Pennsylvania law accords to criminal defendants (including waiver of counsel), and for whom a competency hearing had been scheduled by the trial judge for June 20, 1986." Id. at 15-16. 

Our reading of the Pennsylvania Supreme Court's opinion leads us to agree with the District Court that the Pennsylvania Supreme Court "never considered Appel's claim that the actions of Kraft and Crowe from  [*20]  June 12, 1986, to June 20, 1986, constituted a constructive denial of counsel." Id. at 16. As the District Court stated, the Pennsylvania Supreme Court "failed to address Appel's arguments that Kraft and Crowe were actually his counsel during the time leading up to the trial court's competency hearing." Id. While the allegations that Crowe and Kraft failed to investigate Appel's background are relevant to Appel's habeas claim before us, their relevancy is not in the context of ineffective assistance of counsel, as the Pennsylvania Supreme Court treated them, but in the constructive denial of counsel, the issue that the state courts did not consider. It is informative that throughout its opinion, the Pennsylvania Supreme Court failed to cite to Cronic, the relevant Supreme Court case on constructive denial of counsel. 

It follows, as the District Court held, that "AEDPA's standards are inapplicable to Appel's constructive denial of counsel claim, and this court must examine, without 'special heed to the underlying state court decision,' whether Appel was constructively denied his Sixth Amendment right to counsel during the time before the trial court accepted his waiver of counsel.  [*21]  " District Court Memorandum at 17. Therefore, the District Court did not err by conducting a de novo review of this claim. We will conduct a plenary review over questions of law and mixed questions of law and fact.

The offer of proof established that subsequent to the original trial, defense counsel discovered that certain prosecuting attorneys had conferred with defendant's cellmate Kenny King and agreed to pay King $ 1000, both to tape-record the defendant making statements about the charges that he was facing and to provide a witness to authenticate the recording. King had indicated that he would not testify under any circumstances, so prosecutors realized that the authenticating witness would be someone other than King, but they were not aware of the witness's identity. Because the tape-recorder malfunctioned, King  [*26]  was unable to record the defendant's statements; however, he provided the name of an authenticating witness - Raven "Snake" Frazier. Prosecutors did not discuss paying Frazier for his testimony because they admitted that supplying such a witness was "just part of the other [$ 1000] deal." Frazier advised the prosecutors that he had heard the defendant make incriminating statements and agreed to testify. The $ 1,000 was deposited into King's prison account, with some of the money paid from the personal funds of certain prosecutors. One of the prosecutors had contacted the TBI before paying the money and was informed the money would be repaid by that agency. When asked if he had felt bound to pay Kenny King the $ 1000 even though he had provided no recording and only the testimony of Frazier, the former district attorney general replied: "Oh yeah - I felt - I had that obligation." The former district attorney general also admitted that he had agreed to write a letter on behalf of Frazier to the Board of Pardons and Paroles indicating Frazier's cooperation with the State in the defendant's case. None of this information was disclosed to Hartman's defense attorney prior to trial. 

The  [*27]  trial court concluded that the proffered evidence was impeachment evidence relating to Frazier's testimony at the original trial. The court further noted that Frazier did not testify at the re-sentencing hearing and that this testimony would be relevant for the sole purpose of impeaching the first jury's verdict of guilt. The trial court disallowed its introduction, finding that the evidence did not relate to punishment. . . . .

While we agree with the trial court and the Court of Criminal Appeals that not all impeachment proof will be relevant to show residual doubt, it does not logically follow that impeachment proof will never be relevant to establish residual doubt about the defendant's guilt. Where, as here, the proffered residual doubt proof is impeachment of the testimony of the only witness who offered direct rather than circumstantial proof of the defendant's involvement in the crime, such proof clearly is relevant and admissible to establish residual doubt as a mitigating circumstance. Although we did not explicitly address the admissibility of such evidence in Teague IV, we certainly implied that it was relevant and admissible when we referred to the alleged withheld evidence of a "'deal' with Skinner for his incriminating testimony" when discussing the evidence that Teague maintained established his innocence. See Teague IV, 897 S.W.2d at 256. 

In holding that the trial court erred, we reject the State's assertion that the proffered evidence was not admissible because Frazier did not testify at the re-sentencing hearing and therefore the defendant "cannot rebut something that  [*36]  is not presented." The simple and obvious answer is that the defendant was not offering the evidence in rebuttal. Instead, the defendant was offering the evidence to establish a mitigating circumstance - residual doubt. Since Frazier testified before the jury that determined the defendant's guilt, evidence that impeached his testimony was relevant and admissible to establish residual doubt about the defendant's guilt. We also reject the State's argument that this issue was litigated in Hartman's prior post-conviction action that eventually was considered by this Court. While the same course of events was considered in the post-conviction action to determine whether the defendant's rights under either Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964) or Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) were violated, the discussion of those issues has no bearing upon whether this proof is relevant and admissible to establish residual doubt as a mitigating circumstance. The residual doubt question at issue in this appeal was presented for the first time only after this Court reversed the defendant's  [*37]  sentence of death and remanded for a re-sentencing hearing. In fact, as a general rule, only in re-sentencing hearings will trial courts be faced with determining what evidence is relevant and admissible to establish residual doubt as a mitigating circumstance because, when the same jury determines guilt and innocence such evidence will have been properly admitted at the guilt phase of the trial. While trial courts have the discretion to control the introduction of such proof to avoid undue delay, or the needless presentation of cumulative evidence, n11 doubts about the admissibility of reliable proof relevant to show residual doubt should be resolved in favor of admissibility. The trial court erred by refusing to allow the defendant to offer impeachment evidence to establish residual doubt at this re-sentencing hearing. 

P19. King contends that the trial court erred in instructing the jury that sympathy could have no part in the case. King notes that even before the parties presented their cases, the trial court instructed the jury venire: 

Jurors must be as free as humanly possible from bias, prejudice or sympathy. None of these have any part in any of your deliberations. You must be free-must not be biased, you must not be prejudiced, you're not-must not consider sympathy as part of the case. 

Further, King notes that in closing argument, defense counsel asked the jury for "understanding," "compassion," and "mercy." The trial court cut off this line of argument in a bench conference and said, "You can't ask for sympathy in any way." After closing argument, King notes that immediately before the jury deliberated, the trial court instructed the jury: 

I thought I heard one of them say go back there and have sympathy. You remember when we started I instructed you that what the attorneys said was not  [*12]  evidence. The evidence you have to base your decision on has come from this stand and the exhibits offered and received into evidence and I told you that-uh-bias or prejudice or sympathy have no part in your deliberations. You recall that? 

(Panel responds affirmatively.) 

P20. We have repeatedly held that under the Eighth Amendment to the U.S. Constitution, "a jury may not be instructed to disregard, in toto, sympathy" in a capital case. Pinkney v. State, 538 So. 2d 329, 351 (Miss. 1988), vacated and remanded on other grounds, 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990). King insists that no two instructions could have more clearly instructed the jury to disregard sympathy in toto than "you . . . must not consider sympathy as part of this case" and "sympathy [can] have no part in your deliberations." 

P21. In Blue v. State, 674 So. 2d 1184, 1225 (Miss. 1996), we approved an instruction which read in pertinent part as follows: 

You are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. 

"Because the instruction does not inform  [*13]  the jury that it must disregard in toto sympathy . . . the instruction is a proper statement of the law." Id. While we have approved this type of general instruction admonishing the jury not to be swayed by "sympathy" unrelated to the evidence, we have guarded against any undue emphasis of the anti-sympathy admonition so as not to fetter unduly reasoned consideration of factors offered as mitigating. See Willie v. State, 585 So. 2d 660, 677 (Miss. 1991). We do this in full recognition of the fact that the line between a rational and an emotional response is often dim. 

P22. Miss. Code Ann. § 99-19-101(1) provides in pertinent part: "The state and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence of death." Clearly, it is appropriate for the defense to ask for mercy or sympathy in the sentencing phase. It is equally appropriate for the state to further its goal of deterrence by arguing to "send a message" in the sentencing phase. Both of these arguments are recognized as legitimate considerations to be had by those who argue "for or against" the death penalty. In  [*14]  Humphrey v. State, 759 So. 2d 368, 374 (Miss. 2000), we allowed the prosecution to present a "send a message" argument to the jury during the sentencing phase of a bifurcated capital trial. We based our decision on Wells v. State, 698 So. 2d 497, 513 (Miss. 1997), where we chose "not to fault the prosecution for arguing that the 'message' conveyed by a death penalty verdict would be different than that urged by the defense." We stated, "To do so would be disingenuous given the inescapable reality that deterrence is, in fact, an established goal of imposing the death penalty, which goal necessarily entails, to some extent, sending a message." 

P23. We today follow the above-cited statute and hold that in closing argument during the sentencing phase each side may argue its respective position on the death penalty. Of course, neither side may ever argue these positions during the guilt phase; for a conviction or an acquittal must be based solely on law and fact. It should be noted further that neither side is entitled to a jury instruction regarding mercy or deterrence. To the extent that our holding is contrary to previous case law on  [*15]  the subject, those cases are expressly overruled. 

P24. A jury's willingness to sympathize or to send a message is developed through the broad range of human experience that jurors bring to the proceedings. The belief that jurors could erase the natural human considerations that underlie their decisions would be naive. To insist that they do so would be futile and, according to the law of this state, erroneous. 

P25. The line we have carefully established has been breached. The error is all the more harmful as it occurred at the close of oral argument just before the jury retired to deliberate and after the State had ample opportunity in closing to respond to the defendant's arguments. The court's decision to single out one aspect of its prior instructions took on an adversary tone which may have placed the judge on the side of the prosecution in the eyes of the jury. This is improper. "We have made clear that we will not hesitate to reverse where the trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided with the prosecution." Layne v. State, 542 So. 2d 237, 242 (Miss. 1989).  [*16]  We have also recognized that "it is a matter of common knowledge that jurors . . . are very susceptible to the influence of the judge . . . jurors watch his conduct and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict." Thompson v. State, 468 So. 2d 852, 854 (Miss. 1985). For the foregoing reasons, we find that the trial court's statements constitute reversible 
error. 

The defendant committed the offense of Murder for himself or another, for the purpose of receiving money or any other thing of monetary value, or for other profit.
Thus, the instruction parroted the language of KRS 532.025(2)(a)4, and Thomas does not assert on appeal that there was insufficient evidence to warrant application of the aggravating circumstance to him. The jury was instructed that it could impose capital punishment upon Young, who hired Thomas to kill Shalash, only if it believed from the evidence beyond a reasonable doubt that:

The defendant committed the offense of Complicity to Murder and the murder was committed by Erskin Thomas, for the purpose of receiving money or any other thing of  [*7]  monetary value, or for other profit.
Of course, the jury had already found Young guilty of complicity to murder; and there was no evidence that Young's motive in hiring Thomas to kill Shalash was "for the purpose of [Young] receiving money or any other thing of monetary value, or for other profit." The instruction authorized the imposition of capital punishment upon Young if the jury believed that Thomas killed Shalash "for the purpose of [Thomas] receiving money or any other thing of monetary value, or for other profit." The issue here is whether an accomplice to murder, whose motive was revenge, can be sentenced to death because the killer's motive was monetary gain. n2 We have not previously been required to decide whether KRS 532.025(2)(a)4 authorizes imposition of the death penalty upon one who hires another to kill, but whose motive in doing so is unrelated to "receiving money or any other thing of monetary value, or for other profit." n3 . . .1

In other words, the death penalty cannot be vicariously imposed. Absent a statutory aggravating circumstance specifically applicable to the defendant or the defendant's own conduct, he/she cannot be subjected to the death penalty. Unlike the legislatures of thirty-five of the other thirty-seven states that have death penalty statutes, our legislature has chosen not to include in KRS 532.025(2) an aggravating circumstance applicable to one who hired, procured or directed another to commit murder. Nor has our legislature, unlike the California legislature, enacted a provision authorizing imposition of the death penalty upon one who is an accomplice of another to whom an aggravating circumstance applies. The specification of aggravating circumstances is the legislature's  [*26]  prerogative, not ours. By its unambiguous language, n23 KRS 532.025(2)(a)4 applies only to a defendant who commits the offense of murder "for the purpose of receiving money or any other thing of monetary value, or for other profit." While the statute clearly applies to Thomas, the hired killer in this case, it does not apply to Young whose motive in procuring the murder of Shalash was revenge, not monetary gain. 

We find the cases cited in the dissenting opinion, ante, to be inapposite. Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993), Commonwealth v. Yeager, Ky., 599 S.W.2d 458 (1980), and Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977), all were cases in  [*27]  which an accomplice was found guilty by complicity of an offense that was enhanced to a higher degree because it was committed while the principal actor was armed with a deadly weapon or because the principal actor inflicted physical injury on the victim. Those cases simply hold that under KRS 502.020(1), the accomplice is guilty of the same offense as the principal. In fact, KRS 502.020(1) provides: "A person is guilty of an offense committed by another person when . . . ." (Emphasis added.) However, those cases do not hold that the accomplice must be punished the same as the principal. For example, a principal might be ineligible for probation, shock probation, or conditional discharge because he/she was on probation or parole at the time of the offense. KRS 533.060(2). That does not mean that an accomplice who was not on probation or parole at the time of the offense would also be ineligible for probation, shock probation or conditional discharge. More specifically, the fact that a principal might be subject to capital punishment because he/she has a prior record of conviction for a capital offense,  [*28]  KRS 532.025(2)(a)1, does not mean that an accomplice without such a prior record would also be subject to capital punishment. Of course, a different result would obtain if the aggravating circumstance, itself, was a separate offense, e.g., robbery in the first degree, KRS 532.025(2)(a)2, and the accomplice was also guilty by complicity of the aggravating offense. 

In Tison v. Arizona, supra, note 19, the issue was not, as here, whether an aggravating factor applicable only to the principal could be vicariously applied to an accomplice. In fact, there were three aggravating factors specifically applicable to the accomplice's conduct in Tison. 481 U.S. at 142, 107 S. Ct. at 1680. The only issue was whether Enmund v. Florida, supra, note 19, precluded imposition of the death penalty because the non-triggerman accomplice to a fatal robbery did not intend that the robbery victims be killed. Tison held that Enmund does not preclude capital punishment in a situation where the non-triggerman accomplice was a major participant in the robbery, he knew that lethal force would be  [*29]  employed to accomplish the robbery, and his participation with such knowledge amounted to reckless indifference to human life. 481 U.S. at 158, 107 S. Ct. at 1688. As here, the accomplice's eligibility for capital punishment depended not on the mens rea of the triggerman, but on his own mens rea and the nature of his own conduct. 

Having determined that Young was improperly sentenced to death, we need not address the other issues on appeal that apply only to death penalty cases. Nor are we bound by the mandate of KRS 532.075(2) to consider other issues that were not properly preserved for appellate review. 

He claims questioning in voir dire established that each of these prospective jurors possessed an actual bias which required dismissal for cause. 
Appellant complains in his seventh proposition that the trial court abused its discretion in refusing to grant his request for a continuance from Friday afternoon until Monday morning. "The decision to grant or deny a motion for continuance is addressed to the sound discretion of the trial court whose decision will not be disturbed unless an abuse of discretion is proved." Douglas v. State, 1997 OK CR 79, P56, 951 P.2d 651, 669,  [*17]  cert. denied, 525 U.S. 884, 119 S. Ct. 195, 142 L. Ed. 2d 159 (1998). The State responds that because defense counsel did not follow the proper procedure and file a written motion for continuance accompanied by an affidavit, the trial court cannot be found to have abused its discretion in denying the motion. See 12 O.S. 1991, § 668. See also Harris v. State, 1992 OK CR 74, PP8-9, 841 P.2d 597, 599-600. 

It is true that defense counsel did not file a written motion for a continuance, as is required by Oklahoma law. However, we will not automatically dismiss Appellant's argument based upon defense counsel's failure to follow this procedural mandate for to do so would discount the importance of mitigating evidence to a capital trial. It is beyond dispute that mitigating evidence is critical to the sentencer in a capital case. See Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). "As the Supreme Court has often noted, the Constitution requires individualized sentencing, and mitigating evidence  [*18]  is an important factor in ensuring this right." Fitzgerald v. State, 1998 OK CR 68, P41, 972 P.2d 1157, 1173, citing Lockett, 438 U.S. at 605, 98 S. Ct. at 2965. While the Eighth Amendment does not require mitigating evidence be presented in a capital trial, it does require that a defendant be given the opportunity to present such evidence. See Pickens v. State, 2001 OK CR 3, P47, 19 P.3d 866, 882. 

Thus, in light of the indisputable importance of mitigating evidence to the second stage of a capital trial, we find that defense counsel was ineffective for failing to follow the statutorily mandated procedure for requesting a continuance in this case so that he could present evidence in mitigation. It was incumbent upon defense counsel to make sure that his second stage witnesses would be available and ready to testify when required. When Ms. Jacinto had not arrived in Oklahoma City by Thursday, defense counsel should have contacted her to find out whether she would be there by Friday morning. If he learned that she would not be there or if he could not reach her, he should have prepared a proper motion  [*19]  for continuance to present to the trial court if necessary. By failing to do this, we find that defense counsel's performance was deficient. We further find that Appellant was prejudiced by the deficient performance as it deprived him of a substantial right to which the law entitled him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). 

We also find that in the present case, even absent a written motion for continuance and supporting affidavits, the trial court had information sufficient to support Appellant's request for a one day continuance. That this continuance would not have caused any inconvenience upon the trial court is evinced by the trial court's offer to the jury to receive instructions and begin deliberations on Monday. Thus, under the specific and limited circumstances of this case, we find the trial court abused its discretion in refusing to allow defense counsel one additional day to procure the second stage mitigation witness. 

Powell assigns error to the trial court's failure to strike the evidence as to the abduction of Kristie on the ground that the evidence was insufficient to support a jury finding that the restraint used exceeded that necessary to accomplish the crime of rape. We disagree. 

 
A defendant may be convicted of abduction in addition to "another crime involving restraint of the victim, both growing out of a continuing course of conduct, . . . only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime." Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). Here, there is sufficient evidence to support the finding of the jury that Powell used greater restraint than was necessary to commit rape. n11 First, Powell ordered Kristie to go to a more secluded  [*53]  part of the home prior to the rape. See, e.g., Wilson v. Commonwealth, 249 Va. 95, 103, 452 S.E.2d 669, 675, cert. denied, 516 U.S. 841, 133 L. Ed. 2d 76, 116 S. Ct. 127 (1995). Although Powell did not display a weapon to her at that time, it is clear under the circumstances that Kristie was in reasonable fear for her life having just discovered her sister's lifeless body and being aware that Powell was usually armed. Moreover, after the rape was complete, Powell bound Kristie and left her for some time before returning to attempt to kill her. This restraint clearly exceeded that necessary to accomplish the rape. See Hoke v. Commonwealth, 237 Va. 303, 311, 377 S.E.2d 595, 600, cert. denied, 491 U.S. 910, 105 L. Ed. 2d 709, 109 S. Ct. 3201 (1989). Accordingly, we hold that the trial court did not err in failing to strike the evidence as to the charge of abduction. 

Within the same assignment of error, Powell also asserts that the evidence was insufficient to support his conviction for the capital murder of Stacey "during the commission of or subsequent to" the rape of Kristie. There is simply no evidence upon which the jury could have found that Powell committed the rape of Kristie before or during the murder of Stacey. Indeed, it is undisputed that the rape occurred after the murder was completed. Accordingly, the evidence was insufficient to support Powell's conviction for capital murder as charged in the amended indictment. n12 

In sum, because Echols has been sentenced to death, we remand this case to the trial court for entry of a written order in compliance with Rule 37.5(i) and this court's holding in Wooten. We limit, however, the trial court's duties on remand to making factual findings and legal conclusions only as to the issues raised by Echols on appeal, as all other claims raised below but not argued on appeal are considered abandoned. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996);  [*10]  Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Thus, this remand should not be construed by Echols as an opportunity to reopen the evidence or to raise new issues. Additionally, to avoid any lengthy delay in this matter, the order is to be completed within sixty days from the date the mandate is issued. We will then consider the issues raised on appeal. 

Carroll also argues that the trial court should be bound by the recommendation of the jury to impose the sentence of life imprisonment without the possibility of parole. In arguing that the trial court should be bound by the jury's recommendation, Carroll "concedes that this argument is not current law, and the current law is to the contrary." (Brief of petitioner at 26.) Indeed, the Legislature has provided that the jury's sentence recommendation is advisory only and that the trial court bears the responsibility of determining the appropriate sentence to impose. § 13A-5-47(a), Ala. Code 1975. The Court of Criminal Appeals and this Court have affirmed the constitutionality of the  [*14]  Legislature's sentencing scheme. See Hooks v. State, 534 So. 2d 329 (Ala. Crim. App. 1987), aff'd, 534 So. 2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 102 L. Ed. 2d 1005, 109 S. Ct. 883 (1989). Further, the United States Supreme Court has reviewed Alabama's sentencing scheme and in its review it did not find the scheme to violate the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. See Harris v. Alabama, 513 U.S. 504, 130 L. Ed. 2d 1004, 115 S. Ct. 1031 (1995). 

This Court has recently addressed this issue in Ex parte Taylor, [Ms. 1991307, March 9, 2001]     So. 2d    , 2001 Ala. LEXIS 62 (Ala. 2001). In that case, we held:

"In Harris, the Supreme Court reasoned that 'the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results,' 513 U.S. at 504, and that the 'disparate treatment of jury verdicts simply reflects the fact that, in the subjective weighing process, the emphasis given to  [*15]  each decisional criterion must of necessity vary in order to account for the particular circumstances of each case.' Id. at 515. Thus, the question is whether Alabama's capital-sentencing procedure 'adequately channels the [trial judge's] discretion so as to prevent arbitrary results.' 513 U.S. at 504. We conclude that it does."

    So. 2d at    , 2001 Ala. LEXIS 62, *5. Proceeding further, however, this Court also held in Taylor:

"Under Alabama's capital-sentencing procedure, the trial judge must make specific written findings regarding the existence or nonexistence of each aggravating circumstance and each mitigating circumstance offered by the parties. § 13A-5-47(d), Ala. Code 1975. In making these findings, the trial judge must consider a jury's recommendation of life imprisonment without parole. See § 13A-5-47(e), Ala. Code 1975 ('in [weighing the aggravating and mitigating circumstances] the trial court shall consider the recommendation of the jury contained in its advisory verdict'). Construing subsection (e) together with subsection (d), we conclude that the trial judge must state specific  [*16]  reasons for giving the jury's recommendation the consideration he gave it. McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala. 1986)(stating that subsections of a statute 'should be construed together to ascertain the meaning and intent of each')."

    So. 2d at    , 2001 Ala. LEXIS 62, *7-8. (Footnote omitted.) (Emphasis added.) 

In this case, the trial judge stated both in his original sentencing order and in his sentencing order on remand:

"Upon considering and weighing the aggravating [circumstance] against the mitigating circumstances, the Court finds that the aggravating [circumstance] outweighs any mitigating circumstances. In making this determination the Court has considered the jury recommendation of life without parole. The Court finds that the aggravating [circumstance] outweighs any mitigating circumstances when the jury recommendation of life without parole is taken into consideration."

(C.R. at 247-48; C.R. on remand at 6-7.) This order does not satisfy the Taylor requirement, announced after the trial judge had entered his order on remand, that "the trial judge must state specific reasons for giving the jury's recommendation  [*17]  the consideration he gave it."     So. 2d at    , 2001 Ala. LEXIS 125, *15-16. (In Taylor, we concluded that the trial court had properly given reasons by stating that "some jurors' outburst of emotion after they found the defendant guilty of capital murder indicated that they were overwhelmed by their impending duty to consider the death penalty as required by law."     So. 2d at    .) Accordingly, we remand this case with instructions for the Court of Criminal Appeals to remand it so that the trial judge may have an opportunity to expand his sentencing order to the extent necessary to state specific reasons for giving the jury's recommendation the consideration he gave it.

Bracy v. Schomig (11th Cir) Pettitioner has not met his burder on allegations that the state court judge was taking bribes in other cases and those bribes had a negative impact on his case

But we must consider more closely the findings of the district judge on remand and the evidence on which they are based. To begin with, the judge found that McDonnell had never practiced law with Maloney and had pulled no punches in his defense of Bracy. This finding is  [*9]  not clearly erroneous, and so it binds us and wipes out the theory of bias that was the focus of the Supreme Court's discussion of the need for discovery. 

The district judge noted that during his allocution before being sentenced, Maloney had spoken of the convictions and sentences of Bracy and Collins as "a credit to his record as a judge and evidence that he was not corrupt." 79 F. Supp. 2d at 907. This led up to the judge's last and critical finding in the part of his opinion captioned "findings of fact," which was that ( id. at 908) 

during the same time petitioners' case was pending, other cases were pending in which Maloney took bribes, particularly the close in time Chow and Rosario cases. Before and after this time, Maloney was engaged in a pattern of receiving money. Based on the evidence in the record, it is a possible and reasonable inference in this case that Thomas Maloney was motivated, at least in part, to maintain a prosecution-oriented attitude and to make pro-prosecution rulings by a desire to deflect suspicion from cases in which he accepted bribes. Other documented instances of Maloney so acting to deflect suspicion from his corrupt  [*10]  conduct are reported in the Hawkins and Titone cases. 

This finding has no factual support; it is merely conjecture. It was natural for Maloney, at his sentencing for accepting bribes from criminal defendants, including defendants in murder cases, to point to a case before him in which the murderers had been convicted and sentenced to death, though the jury, not he, had convicted them and had made a recommendation for death that bound him. It does not follow that when he presided at the defendants' trial he was thinking of how their convictions and sentences might stave off future accusations of bribe taking, or even how they might dispel suspicions of it if he was even aware at that time, early in his bribe-taking career, that there were any suspicions--probably he was not, or he would not have continued taking bribes for nine more years. The two cases to which the district judge referred as examples of Maloney's "acting to deflect suspicion from his corrupt conduct" are cases in which Maloney accepted bribes, but in one he returned the bribe because he realized that he was under investigation and in the other he convicted the defendant anyway. Neither case had anything to do with  [*11]  compensatory bias. 

State Captial Cases Relief Denied 
State v. Sims (TN)  Relief denied on claims including: "1) whether the evidence is sufficient to support the verdict of first degree premeditated murder; 2) whether the trial court erred in refusing to charge the law of self-defense; 3) whether the record supports the aggravating circumstance that the defendant had been previously convicted of a felony whose statutory elements involve violence to the person; 4) whether the trial court erred in  [*2]  allowing the State to cross-examine defense witnesses at the sentencing hearing about the defendant's prior criminal convictions; 5) whether the trial court erred in refusing to allow the defendant to present hearsay evidence at the sentencing hearing; 6) whether prosecutorial misconduct during closing argument at the sentencing phase of the trial denied the defendant his constitutional rights; 7) whether the evidence is sufficient to support aggravating circumstance (i)(5), that the murder is especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; 8) whether the jury instruction on aggravating circumstance (i)(5) denied the defendant his constitutional right to a unanimous jury finding; and 9) whether the sentence should be upheld under the Court's mandatory review under Tenn. Code Ann. § 39-13-206(c)(1)."

In re Pers. Restraint of Brown (WA) Relief denied on: "(1) Whether Petitioner was deprived of effective assistance of counsel during the guilt and penalty phases of his trial and on direct appeal to this court; (2) Whether there is newly discovered evidence which entitles Petitioner to a new capital sentencing hearing; (3) Whether this court's denial of funding for a psychiatrist during postconviction proceedings and the trial court's limited funds for experts deprived Petitioner of due process guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution; (4) Whether RCW 10.95.070(1) violates the Eighth and Fourteenth Amendments to the United States Constitution because the word "relevant" in the statute is vague when interpreted in the context of Petitioner's "prior criminal activity"; and (5) Whether Petitioner's sentence of death was imposed arbitrarily because of budgetary constraints in violation of the "cruel and unusual punishment" clause of the Eighth Amendment to the United States Constitution."

Arthur v. State (AL) (not web available)  State post-conviction petition filed outside of  two year statute of limitations set forth in  Rule 32.2(c), Ala.R.Crim.P.

Dawson v. State (DE) Retroactive changes to governing penalty phase statute not cognizable on successive state post-conviction petition.

Gore v. State (FL) Relief denied on claims that: "(1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State's questioning of Jessie Casanova about whether she had an "intimate relationship" with Gore; (3) the trial court erred in denying Gore's motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore's hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase."
. 
Terry v. State (Tenn) Relief denied on: "(1) no prosecutorial misconduct occurred when the prosecutor asked the jury to consider certain facts and circumstances when weighing statutory aggravating circumstances against mitigating evidence; (2) the trial court did not err in allowing the jury to consider relevant facts and circumstances tending to establish aggravating circumstances or to rebut mitigating circumstances; (3) the evidence is sufficient to support a finding that the murder was especially heinous, atrocious, or cruel in that it involved depravity of mind; (4) the evidence is sufficient to support a finding that the defendant committed murder to avoid lawful arrest or prosecution; and (5) the sentence of death is not disproportionate to the sentence imposed in similar cases."

State v. Goodwin (MO) Relief denied as: "(1) The state did not fail to disclose evidence in its possession favorable to the accused and material to guilt or punishment in violation of Brady v. Maryland or Missouri disclosure rules. Goodwin claimed an undisclosed witness would have impeached a state witness that Goodwin had threatened the victim with a sledgehammer. The undisclosed witness does not impeach the state's witness as it is questionable the two were speaking of the same event. The undisclosed witness contradicts other defense claims. The state did not call the undisclosed witness. Goodwin's trial preparation was not materially hindered. (2) No error occurred in the prosecutor's asking about Goodwin's racist remarks about black school children. The question probed a potential alternative cause for his low intelligence scores--unhappiness leading to poor test performance--rather than low intelligence as his defense raised. (3) A transcript of Goodwin's confession that mistakenly included a statement edited from the audio did not constitute evidence of uncharged crimes. The statement at issue was vague and did not implicate any specific incident or act. (4) The evidence is sufficient to establish the requisite intent. On the facts, Goodwin knew his attack was practically certain to cause the victim's death. (5) The trial court did not abuse its discretion in permitting the state's cross-examination of a defense expert as to prior bad acts. Where the defendant concedes killing the victim and the only issue is whether his mental state absolves him from responsibility, psychological expert testimony is particularly crucial. The expert's opinion was based in part on lack of significant history of crimes or violence. The state was entitled to test the depth of her knowledge about that history, upon which she relied to draw her conclusions. (6) No plain error is evident in admitting a police officer's testimony as to what the victim told the officer before she died. It was cumulative to Goodwin's statements. (7) The evidence was sufficient to support the statutory aggravators found by the jury. (8) Even if an instruction was in error because the aggravating circumstances were improperly conjoined, reversal would not be necessary as a death sentence will be affirmed on even one valid aggravator. There were two others. The jury did not seem confused or misled. (9) The death penalty in this case passes independent review pursuant to section 565.035."

Mills v. State (FL) Relief denied on arguments: "(1) that the recent decision in Apprendi v. New Jersey, 528  U.S. 1018 (2000), establishes that the override scheme under which Mills was convicted violates the United States and Florida Constitutions; and (2) Tedder v. State, 322 So. 2d 908 (Fla. 1975), was arbitrarily applied in this case as established by Keen v. State, 775 So. 2d 263 (Fla. 2000)." 

Jordan v. State  (MS) (possibly the oldest dp case in the country) Relief denied with a split court as to prosecutorial vindictiveness and the evidentiary support for the especially heinous, atrocious and cruel aggravator.

Commonwealth v. Fisher (PA) Relief denied where Appellant's counsel aggressively attacked evidence linking him to the crime including sufficiency of the evidence in both phases of trial, lineups, and statements.

State v. Shuler (SC) Relief denied on claims presented under Batson (racial composition of the jury),  admissibility of statements, lesser included instructions and impeachment.

Lenz v. Commonwealth (VA) Relief denied on direct appeal on issues relating to capital voir dire, victim impact as a mitigator, procedural bars  as to issues not raised below or waived on appeal, penalty phase instructions & proportionality.

Stopher v. Commonwealth (KY) (no link available) Divided court denies relief on direct appeal relating to issues whether a particular juror could follow the law or was impermissibly predisposed to a sentence of death.

State v. Jones (OH)  Application for reopening appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel -- Application denied when applicant fails to establish a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal -- Court of appeals' denial of application affirmed. 

Commonwealth v. Morris (PA) Trial court's order staying execution dissolved since the trial court failed to follow the requirements of section 9545(c) of the PCRA.

Other Notable Cases (As reported by Findlaw, and other sources) 
 Bragan v. Pointdexter (6th Cir.) While petitioner may have presented sufficient evidence to show a presumption of prosecutorial vindictiveness, respondent successfully rebutted that presumption where the State turned the case over to a prosecutor pro tem with no stake in deterring petitioner's First Amendment rights 

Fann v. Bowersox (8th Cir)ttorney's failure to anticipate change in law does not constitute ineffective assistance of counsel and does not serve as cause to excuse a procedural default. 

Stokes v. DA of the County of Philadephia (3rd Cir.) Petitioner's time to file a federal habeas corpus petition under 28 USC 2244(d)(1) is not tolled under 28 USC 2244(d)(2) for the ninety day period during which he could have filed a petition for certiorari to the U.S. Supreme Court.

Dunn v. Colleran (3rd Cir.) Prosecutor breached the terms of a plea bargain with defendant by promising to recommend a minimum sentencing guidelines recommendation, and then seeking a minimum sentence beyond the upward maximum sentence range previously promised, and the state court's decision that there was no breach is an unreasonable application of federal law.

Johnson v. US (6th Cir.) Rule 33 motions based on new evidence and filed after the ten-day period in Fed. R. App. P. 4(b)(3) must be treated as collateral challenges for purposes of the one-year statute of limitations under 28 USC 2255, and has no per se impact on 28 USC 2255.

Montenegro v. US (7th Cir.) Where petitioner had the docket sheet revealing that an appeal for his conviction had not been filed about six months after his conviction and sentence became final, petitioner's own failure to exercise due diligence to timely pursue an appeal precludes habeas relief under 28
USC 2255.

Ellsworth v. Levenhagen (7th Cir.) Petitioner's Sixth Amendment rights were not violated when a state trial court answered two written questions from the jury without consulting and outside the presence of defense counsel where the questions concerned the jury's ability to review exhibits.

Hill v. Hopkins (8th Cir.) Nebraska Supreme Court did not retroactively deny time served credits to prisoner sentenced to life in prison because legislative purpose of the statute was not meant to apply to prisoners serving life sentences. 

Gonzales v. McKune (10th Cir) In a rape case, the prosecution's failure to disclose that a semen sample found on victim's body lacked sperm is a Brady violation, even if it would not completely exonorate defendant.
 

Featured 
This week's edition visits the issue of courtesy in capital cases from one judge's perspective, although not one I necessarily endorse. From Butts v. Georgia:

Appellant, by contending that his counsel was ineffective because he showed respect for and friendship with opposing counsel, raises an interesting question: is civility incompatible with advocacy? The main opinion rightly resolves this enumeration of error by holding that it is professionally reasonable for civility to be a part of a lawyer's strategic plan in the trial of a case. Being in total agreement with the main opinion, I write separately to further explain the role of civility. 

The practice of law is an honorable profession that requires a high standard of conduct of its members. It is a high calling where competence, civility,  community service, and public service are integral parts of the professional standards. It is not a profession where disrespectful, discourteous, and impolite conduct should be nurtured and encouraged. Such conduct should be alien to any honorable profession. 

Those who hold themselves out as lawyers should realize that they help shape and mold public opinion as to the role of the law and their role as lawyers. The law sets standards for society and lawyers serve as problem solvers when conflicts arise. To fulfil their responsibility as problem-solvers, lawyers must exhibit a high degree of respect for each other, for the court system, and for the public. By doing so, lawyers help to enhance respect for and trust in our legal system. These notions of respect and trust are critical to the proper functioning of the legal process. 

While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary, civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism's main building block is civility and it sets the truly accomplished lawyer apart  from the ordinary lawyer. 

Civility is more than good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible. 

To avoid incivility's evil consequences of discord, disrespect, unresponsiveness, irresponsibility, and blind advocacy, we must encourage lawyers to embrace civility's positive aspects. Civility allows us to understand another's point of view. It keeps us from giving vent to our emotions. It allows us to understand the consequences of our actions. It permits us to seek alternatives in the resolution of our problems. All of these positive consequences of civility will help us usher in an era where problems are solved fairly, inexpensively, swiftly, and harmoniously. The public expects no less and  [*38]  we must rise to the occasion in meeting those expectations. 
 

ABC News Webcast Spotlights Death Penalty
A new ABC News Webcast, available exclusively on the Internet, offers a discussion on the current death penalty debate in streaming video.  The Webcast features Sam Donaldson interviewing Innocence Protection Act cosponsor Rep. Ray LaHood (R-Illinois), and Richard Dieter, Executive Director at the Death Penalty Information Center.  Video highlights include arguments for and against the death penalty, results of a recent ABC News/ Washington Post poll (see below), whether capital punishment deters crime, and a discussion of how lawmakers hope to protect the innocent.  To view the Webcast, visit http://abcnews.go.com/webcasts/samdonaldsonnew/20010504/index.html

UPCOMING EVENTS:  "Did Gregg v. Georgia Fulfill its Promise to Create a Fair and Equitable Administration of the Death Penalty in the United States."  The program, which marks the 25th Anniversary of the Gregg decision, will feature panelists Professor Anthony Amsterdam and Judge John L. Hill, Jr., who were among the original litigators in the Gregg ruling.  Sponsored by Amnesty International USA and American University, Washington College of Law, the debate will take place at American University on Tuesday, May 8, 2001 at 7:30 pm.  For more information, call American University at (202) 274-4075 or email secle@wcl.american.edu  See also, Upcoming Events

ABC News Poll Finds Drop in Support for Death Penalty and Majority in Favor of Moratorium
An ABC News Poll found that 51% of Americans support a nationwide moratorium on executions while a commission studies whether the death penalty is applied fairly.  The poll also found that overall support for the death penalty has dropped to 63%, down from 77% just five years ago. Support drops further to 46% when respondents are given the sentencing options of life without parole or the death penalty, with 45% choosing life without parole. The poll also found:

• 52% believe that the death penalty is not a deterrent to murder; up from 31% in 1985 and 41% in 1991
• 51% support replacing the death penalty with life in prison with no chance of parole
• 68% believe the death penalty is unfair because of mistaken executions
• 63% believe the death penalty is unfair because of geographical differences
• 37% believe the death penalty is unfair because it is applied unequally to blacks compared to whites

(ABC News Poll, Press Release, 4/24/01, embargo 5/2/01)  See also, Public Opinion and Recent Poll Results

Audio Tapes of Georgia Executions Air on NPR, ABC-News Nightline, and Pacifica national radio
Audio tapes describing executions in Georgia were broadcast nationally by National Public Radio and ABC-News Nightline on May 2, and by Democracy Now! Pacifica national radio on May 3.  The tapes, recorded by members of Georgia's Department of Corrections, became public record after defense attorney Mike Mears subpoenaed them in a lawsuit he brought challenging the state's use of the electric chair. These "Execution Tapes," which narrate the executions of 22 inmates in Georgia's electric chair, can be found on-line at http://www.soundportraits.org/on-air/execution_tapes/

Study Finds Witnessing an Execution Can be Emotionally Damaging
In a recent Washington Post piece, David Spiegel, a professor of psychiatry and behavioral sciences at Stanford University School of Medicine, reported on his study of the reporters who witnessed the 1992 execution of Robert Alton Harris in California.  The study results, which were published in the American Journal of Psychiatry in 1994, found that the journalists suffered severe post-traumatic symptoms after witnessing the execution:

These men and women were displaying many of the reactions usually associated with acute stress. They had difficulty managing the emotions that the execution aroused. More than half of our sample said they felt distant from their own emotions, a third reported that they felt "confused and disoriented," 60 percent were "estranged or detached from other people," and more than half said they tried to "avoid thoughts or feelings about the execution." One-third reported feeling "despair or hopelessness," and 20 percent felt "uncontrollable and excessive grief."

(Washington Post, 4/29/01)  Read the entire article.  See also, recent articles on the death penalty
.
Arizona Governor Signs Law Prohibiting the Execution of the Mentally Retarded
On April 26, 2001, Arizona Governor Jane Hull signed legislation to ban the state from seeking the death penalty for persons with mental retardation.  The legislation also prohibits the execution of defendants with mental retardation who are already on death row.  Arizona is now the 14th state to forbid such executions.  (Ariz. Rev. Stat. Sect. 13-3982 )  See also, mental retardation and the death penalty.

Louisiana Residents Overwhelmingly Support Moratorium
A recent poll in Louisiana found that 81% of Louisiana residents favor a moratorium on executions while the state's capital punishment system is studied.  In addition 55% of respondents said they would be more likely to re-elect a legislator who voted for a moratorium; 16% said they would be less likely and the remainder said it would not make a difference.  Currently, the Louisiana Senate is considering a bill that would halt executions until September 1, 2001 and establish the Louisiana Death Sentence Study Commission.  (New Orleans Times-Picayune, 4/29/01)  See also, Polls and proposed legislative changes

Investigation of Police Chemist Leads to Review of Oklahoma Death Penalty Cases
The Oklahoma Attorney General's office announced that it will review several death penalty cases involving Oklahoma City police chemist Joyce Gilchrist.  Gilchrist is suspected of misidentifying evidence and giving testimony "that went beyond the acceptable limits of forensic science."  Attorney General Drew Edmonston requested the Oklahoma State Bureau of Investigations to review cases handled by Gilchrist for violations of state law.   The Attorney General's office is also reviewing the 13 death penalty cases in which Gilchrist testified.  One of those cases is that of Marilyn Kay Plantz, a death row inmate scheduled to be executed on May 1st. (she was executed)  "There could be some [inmates] already executed [whom] this chemist testified on," said Oklahoma City Police Chief M.T. Berry.   (The Oklahoman, 4/26/01)

Minorities Dominate Federal Death Penalty Prosecutions
Since 1988, the federal govenment has authorized seeking the death penalty against 211 defendants.  Of the 211 approved prosecutions, 158 (75%) were against minority defendants.  Of these defendants, 53 have been white, 39 Hispanic, 12 Asian/Indian/Pacific Islander, 2 Arab and 105 African American. Of the twenty inmates currently on federal death row,  17 (85%) are members of a minority group. (Federal Death Penalty Resource Counsel Project, 3/14/01)  For a summary of the cases authorized for the federal death penalty, see http://www.capdefnet.org/2_summ_cases_auth_frames.htm   See also, Federal Death Penalty

Amnesty International Report Finds Increase in Death Penalty "Volunteers"
A new report about volunteers and the death penalty by Amnesty International, "The Illusion of Control," found that since the death penalty was reinstated, 89 of the 707 executions (12.5%) carried out in the U.S. have been of those who dropped their appeals and volunteered to be executed.  Amnesty states that the number of volunteers is increasing and about  2/3 of these "consensual" executions have been in the past 6 years, including 5 so far this year.  Of the volunteers, more than 90% were white, although whites account for about 55% of all executions.   The report cites several instances of volunteers who had histories of mental illness. (USA Today, 4/24/01)  Read the full report and Amnesty International's Press Release.  See also, Studies and reports on the death penalty

 NEW VOICES: Conservative Nevada Republican Supports Death Penalty Moratorium and Study
Sen. Mark James (R-Las Vegas) is urging the state Assembly to pass a bill that will provide for a moratorium on executions while Nevada's capital punishment system is studied (see below).   "[N]ever has the death penalty been the subject of a study in this state that I know of," said James.  "Never. And the system is broken."  James, who in the past worked on bills to toughen the state's criminal laws, expressed his concern about who receives the death penalty in Nevada. "The Assembly passed a bill unanimously which prohibits racial profiling in traffic stops and yet 40 percent of those on death row are African Americans and nobody says a thing about it."  He added,  "There is not a single person on death row that had a fully funded private defense.  If you're rich, you're not going to get capital punishment - period."   (Nevada Appeal, 4/21/01)  See also, proposed legislative changes

U.N. Commission Urges Worldwide Death Penalty Moratorium
The United Nations Human Rights Commission approved a European Union motion asking countries to halt executions as a step toward the eventual abolition of the death penalty.  The motion, which also called for the prohibition of executing juvenile offenders, was opposed by the United States and seventeen other member states. (Reuters, 4/25/01)  Read the United Nations' press release.  See also, International Death Penalty
 
 

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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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