The Feature this week is, of course, "Circus McVeigh."  David Seth Michaels (www.davidseth.com), an  upstate New York lawyer, focuses on the how even a show trial can go wrong.  The essay concludes that if McVeigh is supposed to be the show trial as to how to do the death penalty right, then the time has come to reconsider the death penalty.

One of the three sources used for the weekly, FindLaw, has been providing poor quality case summaries.  If you are using that service please be advised of this problem and note that the noncapital decisions included each week here relies heavily on that service and may repeat their errors.  Additionally, I have noted, due to deadline constraints, several errors in the weekly after it goes out  (mostly grammar and syntax).  Please double check any cite you receive from the newsletter to double-check that in fact what it proclaims to protect yourself from either my or a third parties error.

Florida cases briefs are available via email for all of that state's cases and should be online shortly assuming the current docket eases up at some point in the near future.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010507.htm.

Supreme Court
No cases covered this week.

Captial Case Relief Granted
People v. Silva (CA) Removal of even one Latino juror  based on ethnicity violates Batson.

After the jury had returned the death verdict, the trial court unsealed the transcripts of the ex parte hearings in which the prosecutor had stated his reasons for the peremptory challenges of the five Hispanic prospective jurors. Defendant then moved for a new trial on the ground, among others, that the prosecutor had failed to give valid and sufficient reasons for exercising these peremptory challenges. Defense counsel argued to the court that almost all of the prosecutor's reasons were either unsupported by the record or inherently implausible. When denying the new trial motion, the trial court's only explanation was this: "Well, the Court held an in camera hearing with regard to the exclusion of several jurors, and the Court felt that there was  [*76]  sufficient reason for the exclusion of those witnesses -- I mean for those jurors. So your motion is denied for a new penalty phase trial." 

D. Analysis 

The United States Supreme Court has given this explanation of the process required when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges: "Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination." ( Purkett v. Elem (1995) 514 U.S. 765, 767, 131 L. Ed. 2d 834, 115 S. Ct. 1769.) 

Here, in step one, the trial court ruled for the defense when it found a prima facie case of improper discrimination, and we assume that substantial evidence supports that determination. (See People v. Alvarez (1996) 14 Cal. 4th 155, 197, 926 P.2d 365.) In step two, the prosecutor defended the five challenged strikes by giving reasons  [*77]  that were facially neutral as to Hispanic ancestry or surname. (See Purkett v. Elem, supra, 514 U.S. 765, 768 ["Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."].) Our concern here is with step three: whether the record as a whole shows purposeful discrimination. 

Before addressing that question, however, we note that the trial court erred in excluding the defense from the hearing at which the prosecutor stated his reasons. (See People v. Ayala (2000) 24 Cal. 4th 243, 262; United States v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1257.) The trial court partially alleviated the effect of this error, however, by giving the defense an opportunity to comment on the prosecutor's reasons when it unsealed the transcripts of the ex parte hearings after the jury had returned the penalty verdict. The defense availed itself of this opportunity by arguing, as a ground for new trial as to penalty, that the prosecution's stated reasons were unsupported by the record and pretextual.  . . .

We conclude that the trial court's ultimate determination -- that defendant failed to meet his burden of proving intentional discrimination with respect to the prosecutor's peremptory challenge of Prospective Juror M. -- is unreasonable in light of the evidence of the voir dire proceedings. Although we generally "accord great deference to the trial court's ruling that a particular reason is genuine," we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. ( People v. Fuentes, supra, 54 Cal. 3d 707, 720; see also People v. Jackson (1996) 13 Cal. 4th 1164, 1197-1198, 920 P.2d 1254.) When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient. As to Prospective Juror M., both of the prosecutor's stated reasons were factually unsupported by the record. Because  [*81]  the trial court's ultimate finding is unsupported -- at least as to Prospective Juror M. -- we conclude that defendant was denied the right to a fair penalty trial in violation of the equal protection clause of the federal Constitution ( Batson v. Kentucky, supra, 476 U.S. 79, 84-89, 90 L. Ed. 2d 69, 106 S. Ct. 1712) and was denied his right under the state Constitution to a trial by a jury drawn from a representative cross-section of the community ( People v. Wheeler, supra, 22 Cal. 3d 258, 276-277). 

Our conclusion makes it unnecessary to determine whether the trial court erred in denying the Batson/Wheeler motion as to the other four Hispanic prospective jurors whom the prosecutor removed by peremptory challenge. The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. ( People v. Montiel (1993) 5 Cal. 4th 877, 909, 855 P.2d 1277; People v. Fuentes, supra, 54 Cal. 3d 707, 716, fn. 4; see People v. Howard (1992) 1 Cal. 4th 1132, 1158, 824 P.2d 1315.) 

Here, Bocharski did not forego further mitigation solely for privacy reasons; instead, he made a decision, against the strong advice of his lawyers, based in large part on his growing frustration with the court system and poor jail conditions. The trial court acknowledged the probable existence of further mitigation evidence which may have made a difference in sentencing. Indeed, Mary Durand, who did not testify at the sentencing hearing, had previously told the judge that there were other witnesses she wanted to interview and bring before the court, including the defendant's mother, foster parents, wife, uncle, brother, and the pedophile truck driver to whom the defendant was sold as a child. But the court never heard from these witnesses, at least in part because Yavapai County denied funds for transportation and preparation. These witnesses allegedly would have testified about the family's history of alcoholism and mental illness, among other things. 

We are not comfortable with the record in this case. So long as the law permits capital sentencing, Arizona's justice system must provide adequate resources to enable indigents to defend themselves in a reasonable way. See Ariz. Rev. Stat. § 13-4013(B) (1989) (requiring counties to pay for experts and investigators in capital proceedings upon a showing that it is reasonably necessary to provide an indigent's defense); State v. Cornell, 179 Ariz. 314, 320-21, 878 P.2d 1352, 1358-59 (1994) (stating that "the trial court had both a constitutional and statutory duty to provide [the indigent] with certain essential tools of trial defense"). The process must be orderly and fair. We do not expect mitigation funds to be unlimited, *fn5 nor is there a set amount that will suffice. The unique facts of each case will determine what is "reasonably necessary" for an indigent to adequately present a defense. See Ariz. Rev. Stat. § 13-4013(B). 

Here, funding problems interfered with the fair and orderly administration of justice. See State v. Eastlack, 180 Ariz. 243, 263, 883 P.2d 999, 1019 (1994)(finding that the trial court abused its discretion by failing to provide funding for a psychological expert who was to testify at a capital sentencing hearing); see also Bright v. State, 455 S.E.2d 37, 50 (Ga. 1995) (finding harmful error for failure to grant funds to hire a psychiatrist and toxicologist); Williams v. State, 669 N.E.2d 1372, 1384 (Ind. 1996) (finding an abuse of discretion for limiting the mitigation expert to twenty-five hours of investigation). Accordingly, we must reverse and remand for resentencing. 

Article I, Section 24 of the North Carolina Constitution, which guarantees the right to trial by jury, contemplates no more or no less than a jury of twelve persons. See State v. Bindyke, 288 N.C. 608, 623, 220 S.E.2d 521, 531 (1975) (holding that an alternate's presence in the jury room for a brief period at the beginning of jury deliberations was a violation of this constitutional right); State v. Hudson, 280 N.C. 74, 79, 185 S.E.2d 189, 192 (1971) (holding that notwithstanding defendant's consent, the verdict was a nullity where the trial court proceeded to verdict with a jury of eleven). In State v. Bunning, 346 N.C. 253, 256, 485 S.E.2d 290, 292 (1997), this Court held that the constitutional requirement of trial by a jury of  [*7]  twelve was violated by substitution of an alternate juror for an incapacitated juror after jury deliberations had started, resulting in a verdict rendered by eleven jurors plus two jurors who each participated partially. Similarly, we hold that the requirement of trial by a jury of twelve is violated where, as here, a juror becomes disqualified during deliberations as a result of juror misconduct. 

The State argues that no evidence supports that juror eleven was disqualified during the guilt-innocence phase and that juror eleven was properly removed only for the sentencing proceeding. This position is untenable. First, we note that cases cited by the State are distinguishable. In State v. Allen, 323 N.C. 208, 223, 372 S.E.2d 855, 864 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), the juror who overheard co-workers talking about the case was removed and replaced with an alternate before deliberations began as permitted by N.C.G.S. § 15A-1215. The other cases, State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282 (1980),  [*8]  and State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), did not involve juror misconduct or anything occurring during deliberations. 

In the present case, within an hour after the jury returned its guilty verdict, the trial court determined that it must remove juror eleven; and the basis was clearly juror misconduct during deliberations. Under these facts, if this juror was not qualified to continue serving during the sentencing proceeding, then he became disqualified during the guilt-innocence deliberations. The recordation of the verdict and dismissal of the jury for the recess until the capital sentencing proceeding did not absolve the misfeasant juror's misconduct and render him qualified for purposes of the guilt-innocence phase deliberations. Moreover, the gravity of this juror misconduct was compounded by some of the jurors collectively deciding, in direct contravention of the trial court's instructions, not to tell the trial court about this report of alleged potential harm. Thus, juror eleven's misconduct during jury deliberations resulted in a guilty verdict by  [*9]  a jury composed of less than twelve qualified jurors. 

A trial by a jury that is improperly constituted is so fundamentally flawed that the verdict cannot stand. Bunning, 346 N.C. at 257, 485 S.E.2d at 292. In Bindyke, 288 N.C. at 627, 220 S.E.2d at 533, this Court held that a violation of a defendant's constitutional right to have the verdict determined by twelve jurors constituted error per se. See also State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). Accordingly, this case is not subject to harmless error analysis; and defendant is entitled to a new trial. 
 

Deficient Abstract 

Our rule in Ark. Sup. Ct. R. 4-2 outlines the requirements for abstracting on appeal, and the burden is clearly placed on the appealing party to provide both a record and abstract sufficient to demonstrate error for appellate review. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000); Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997). We have often written that the record on appeal is limited to that which is abstracted, and we will not examine the transcript of a trial to reverse a trial court,  [*5]  although we will do so to affirm. Id. 

In the case before us, it is readily apparent from a review of the abstract that all of the documents and records in the transcript that are necessary for an understanding of the questions presented in this appeal are not abstracted. One of McGehee's primary arguments on his Rule 37 appeal is that Candace Campbell and Robert Diemert were accomplices and that the failure of counsel to seek such a finding entitles him to relief. However, it is apparent that the testimony of several witnesses relevant to this issue, as well as the issue of corroboration of their testimony in the event they were found to be accomplices, was not abstracted at all, including that of Charles McMahan, Dr. Charles Kokes, Anthony Page, and, to an extent, testimony of police officers. Additionally in this regard, the testimony of Charla Bright was only partially abstracted and did not include portions relevant to the issue of corroboration. Other testimony and evidence may also be relevant. The appellant bears the burden of providing a sufficient abstract. While abstracting of evidence relevant to corroboration may not be perceived by McGehee to be in his best interest,  [*6]  Ark. Sup. Ct. R. 4-2(a)(6) requires an impartial condensation of records in the abstract. Also, failure to so comply exposes McGehee to affirmance based upon a flagrantly deficient abstract. Ark. Sup. Ct. R. 4-2(b)(3). See also, Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Affirmance based upon a flagrantly deficient abstract would be too harsh in this case. Therefore, as authorized by this same rule, McGehee is granted permission to revise his abstract and brief at his own expense. 

State Captial Cases Relief Denied 
Happ v. Moore (FL) Relief denied on claims including: (1) Happ is deprived of effective representation because CCR lacks sufficient funds; (2) public records are being withheld; (3) State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and used misleading evidence in violation of Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and as a result counsel was rendered ineffective; (4) ineffective assistance of counsel (guilt phase); (5) newly discovered evidence that Happ is innocent of the crime; (6) jury instruction on cold, calculated and premeditated aggravator violates Espinosa v. Florida, 505 U.S. 1079, 120 L. Ed. 2d 854, 112 S. Ct. 2926 (1992), and trial counsel was ineffective for allowing it to be read; (7) jury instruction on prior violent felony aggravator violates Espinosa and trial counsel was ineffective for not objecting; (8) heinous, atrocious or cruel aggravator is unconstitutionally vague and trial counsel was ineffective for not objecting; (9) murder committed during felony aggravator is unconstitutionally vague and counsel was ineffective for not properly litigating this issue; (10) trial court failed to find mitigating evidence established in the record; (11) prosecutor made improper and inflammatory comments; (12) jury was misinformed of its advisory role and counsel was ineffective for failing to object; (13) the penalty phase jury instructions shifted the burden of proof to the defendant and counsel was ineffective for failing to object; (14) newly discovered evidence established that State witness Richard Miller was working for the State and had lied during his prior testimony; (15) counsel was ineffective for failing to object to improper prosecutorial comments; (16) Florida's capital sentencing scheme is unconstitutional; (17) prosecutor improperly instructed jury that it must recommend death and counsel was ineffective for not objecting; (18) ineffective assistance of counsel (penalty phase); (19) the prohibition in the Florida Bar's Rules of Professional Conduct against interviewing jurors is unconstitutional; (20) juror misconduct; (21) trial court erroneously admitted illegally obtained statements and evidence; (22) police misconduct; (23) Happ's sentence is unreliable because of Miller's perjured testimony; (24) Happ was denied the ability to present crucial testimony on his behalf; (25) Happ was illegally extradited from California; (26) State improperly struck jurors based upon Catholic religion; (27) trial court failed to take a recess before imposing sentence and trial counsel was ineffective for not objecting; (28) jury was never sworn; (29) poor condition of record; (30) cumulative errors deprived Happ of fair trial; (31) the State unconstitutionally used jailhouse informants to obtain incriminating statements; and (32) prosecutorial misconduct and counsel was ineffective for failing to object. 

Butts v. State (GA) Relief denied including claims that: (1) the evidence presented at trial was sufficient to authorize the jury to find beyond a reasonable doubt that Butts was guilty of all charges and that the one statutory aggravating circumstance existed; (2) the trial judge should have recused herself simply because she had previously presided over juvenile proceedings against Butts; (3) his trial counsel rendered ineffective assistance in waiving the issue of recusal by failing to raise it at trial.

Porter v. State (FL) Relief denied on claims including: (1) Porter received ineffective assistance of penalty phase counsel; (2) Porter's due process rights were violated when he was not permitted to appear at the Huff hearing; (3) the trial court failed to grant an evidentiary hearing on Porter's claims that the record on appeal was incomplete; he was incompetent to stand trial; the competency hearing and psychiatric evaluations were inadequate; the Faretta inquiry was inadequate; and the State withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); (4) the trial court impermissibly relied on nonstatutory aggravators; (5) the penalty phase jury instructions impermissibly shifted the burden of proof to Porter; (6) the aggravating circumstance instructions were overbroad and vague; (7) the death sentence is impermissibly based on an unconstitutional automatic aggravating circumstance; (8) the trial court failed to consider mitigating evidence; and (9) the prosecutor engaged in improper prosecutorial conduct during trial. 

State v. Call (NC) Relief denied on claims that: (1) the trial court erred by sustaining the prosecutor's objection to a question posed by defendant during jury selection; (2) the trial court erred in refusing to peremptorily instruct the jury on  three statutory mitigating circumstances; (3) the  trial court erred by permitting only one of his attorneys to object during the prosecutor's direct examination of a witness; (4) the trial court committed reversible error by failing to exercise its discretion when it declined to continue defendant's capital sentencing proceeding; (5) the trial court erred by failing to intervene ex mero motu to prevent improper argument by the prosecutor during closing arguments; (6) the prosecutor improperly argued that four of the five aggravating circumstances submitted to the jury had already been determined to exist; (7) issues to be merely exhausted as previously overruled in other cases; and (8) proportionality review.

Other Notable Cases (As reported by Findlaw, and other sources) 
Chang v. US (2nd Cir) Plaintiff who alleged ineffective assistance of counsel because his attorney prevented him from testifying in his own defense is entitled to an evidentiary hearing.

Curry v. Scott (6th Cir) Where prisoners fully exhausted state remedies and claims prior to filing their amended complaint, and offered documentation clearly confirming that fact, they have satisfied the mandates of Section 1997e of the Prison Litigation Reform Act so that their civil rights claims survive.

Painter v. Iowa (8th Cir) Petitioner's habeas action is time-barred under 28 USC 2244, et seq., since the time between the date that direct review of a conviction is completed and the date that an application for state post-conviction relief counts against the one-year statute of limitation.

Wilcox v. Hopkins (8th Cir) Prisoner's claim that he would not have pled guilty if his attorneys obtained a ballistics report prior to his plea proceedings was not credible where defendant placed his trust in the court at sentencing, chose to enter a guilty plea knowing that a defense was retained, and the expert's report would not refute defendant's own admission.

Cross v. Bruton (8th Cir) A Minnesota Supreme Court decision that the state does not need to prove each act of domestic abuse beyond a reasonable doubt is neither contrary to nor an unreasonable interpretation of a clearly established federal law as determined by the U.S. Supreme Court.

McNeal v. US (8th Cir) Habeas relief will be denied where a Bailey claim is procedurally defaulted, and defendant cannot establish actual innocence since the presence of gun on the table where he was dealing crack amounted to use of the firearm.

Zichko v. Idaho (9th Cir) A habeas petitioner may challenge an underlying expired sex crime conviction while in custody for failing to comply with a state sex offender registration law.

Simpson v. Bouker (10th Cir) Prosecution for failure to pay tax on marijuana under Kan. Stat. Ann. 
79-5204 and for criminal possession of marijuana does not violate the Double Jeopardy clause because the tax statute taxes only "dealers", not mere possession of marijuana.

US v. Gonzalez (10th Cir) In determining whether the government intentionally forced a mistrial to avoid Double Jeopardy constraints, a trial court must focus on the natural and probable consequences of prosecutorial conduct rather than the intent underlying such conduct.

Elliott v. Williams (10th Cir) Under the Antiterrorism and Effective Death Penalty Act of 1996, defense counsel's failure to make opening and closing arguments or present a defense at the close of the prosecution's case was unreasonable even if victim recanted her testimony.

State v. Glatzmayer (FL) When suspects who are considering waiving their Miranda rights ask law enforcement officers if they should invoke the right to counsel, the officer must make a good faith effort to provide a simple and straightforward answer.
 

Featured 
This week's Featured is a reflection by David Seth Michaels <www.davidseth.com> on the "Circus McVeigh."

The trial that was supposed to show that the death penalty could be fairly imposed, the trial that was the cornerstone of arguments in favor of the death penalty, has now proven just the opposite: inexplicable human errors (taking this in the light most favorable to the Government) trump the "perfect" trial.   Can you imagine what has gone on in the more "routine"  711 execution cases that preceeded this case?  If a mistake could be made in this case by the  feds and the FBI, can you imagine what's been going on in some of  the others?

Nobody (taking this again in the light most favorable to the Government) knows what's in the 3100 pages of records that were belatedly turned over.  The hard question, the one that's important to me,  is whether anything in there would have changed the defense's trial strategy.  But the courts won't ask that question: after the verdict the questions are whether the withheld information is material to guilt or punishment and whether it could change the result.  You could lose under this standard even if you would have presented an entirely different defense had you known about the contents of all of the documents.  McVeigh's literary efforts and his admissions are not an excuse to overlook that the defense may have been irreparably sandbagged here.

I am delighted that their error was brought to light by the FBI and Ashcroft.  I can imagine administrations under which there would have been a cover up. You can guess what might have happened if similar documents were in a rural county's district attorney's office and the execution was next week.

The next step for Ashcroft, and for the rest of us during the next 30 days ought to be to reflect on the following:  as humans we're just not good enough, just not perfect enough, just not thorough enough, just not equipped to be fair enough to take life.  We make mistakes, big and small.  No matter how hard we try, we still make mistakes.  Some of these mistakes are minor; others are huge.  It's certain mistakes will be made; learning their magnitude is cold comfort.  Some of us don't have the courage demonstrated by Ashcroft.  Some of us might have shredded the documents.  Or archived them.  Or ignored them.  If this is what's going on in this very important case with all of its safeguards and its huge bureaucracy of supervision and its vast scrutiny by the media, can you imagine what has gone on in Podunk?  Can you imagine when there are other distorting influences in the case: race, intelligence, the quality of representation, sexual orientation,the region of the nation, and on and on and on.

Can you imagine what is going on now for the victims' families in OKC? There is no "closure".  There may never be an execution.   There may ultimately be no revenge. The event for which their healing, their closure has been delayed for years has itself now been delayed.  To be truthful, there is absolutely no end of the suffering in sight. Wouldn't the victims' families' healing have been better promoted by the certainty of life without parole? The only thing promoted by the death penalty imposed in this case is more suffering.  McVeigh's, his victims, his victims' families, the jurors, the judges, the prosecutors, the investigators, his lawyers, their investigators, the American public.  A huge ocean of suffering, growing and growing, fed by all too human presumptuousness.  How dare we kill under these circumstances?

         -- David Seth Michaels, 5/11/01.  No rights reserved; feel free to forward.
 

Correction: The Death Penalty Information Center erroneously listed Joseph Salvati as the 95th person to be exonerated and released from death row.  Although Mr. Salvati was released after spending over 30 years in prison for a crime he did not commit, and despite evidence in news accounts that he had been sentenced to death, DPIC learned that he had originally been given a life sentence. The actual number of wrongful convictions in death penalty cases since 1976 is thus 94. 
 Mr. Salvati's wrongful conviction was exposed earlier this year after a Justice Department task force discovered compelling new evidence that Salvati and his co-defendant Peter Limone were actually innocent of the 1965 murder of Edward Deegan.  Mr. Limone, who was listed with Mr. Salvati on DPIC's innocence list, was in fact sentenced to death and subsequently exonerated. 

Former Assistant Secretary of State Harold Koh, who led two U.S. delegations to the U.N. Human Rights Commission, commenting on the U.S.'s loss of its seat on the Commission: 

Last week's vote is a wake-up call that the era of automatic global deference to U.S. leadership on human rights is over. Our belief in our global exceptionalism has too often led us to vote alone at the commission, falsely assuming that such isolationism has no costs. In the session just past, we stood alone or nearly alone in refusing to support resolutions supporting lower-cost access to HIV/AIDS drugs, acknowledging a human right to adequate food, condemning disappearances and calling for a moratorium on the death penalty. (Wash. Post, 5/8/01, emphasis added)

 Oklahoma Man Freed, Exposing Serious Flaws in State Labs 
Jeffrey Piecre was freed on May 7 after 15 years in Oklahoma prison following DNA tests which contradicted the evidence from an Oklahoma City police chemist long accused of shoddy work.  The same chemist helped put 23 people on Oklahoma's death row, including 11 who have already been executed.  Mr. Pierce, who had been convicted of rape on the basis of false testimony by the state, benefitted from a new Oklahoma law which allows inmates to request DNA testing.  Oklahoma is now reviewing about 3,000 criminal convictions that this chemist or her office helped secure. (NY Times, 5/8/01; Wash. Post, 5/9/01).  See also innocence. 
  Florida Passes Bill to Bar Execution of Mentally Retarded; Awaits Signature by Governor 
The Florida House of Representatives passed, by a 110-1 vote, a bill to prohibit the imposition of the death penalty on a defendant who suffers from mental retardation if the mental retardation is directly related to the defendant's conduct at the time of the crime.  The bill, which unanimously passed the Senate in March, does not contain a set IQ level, but uses a definition that considers intellectual functioning and behavior.  Under the legislation, defendants seek a determination of whether they are mentally retarded after they have already been convicted and sentenced to death.  The measure has been sent to Governor Jeb Bush, who has indicated that he will sign it.  (Associated Press, 5/4/01)  Florida would thus become the 15th state to ban the execution of defendants with mental retardation.  See also, mental retardation and the death penalty and proposed legislative changes. 

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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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Volume IV, issue 17

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