In Errata this week information on several upcoming training courses are listed, as well as information on the 8th Annual "Starving  for Justice" vigil at the Supreme Court commemorating Gregg and Furman.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010514.htm.

Supreme Court
No cases covered this week.

Captial Case Relief Granted
No cases reported this week.

Captial Cases Remanded for Further Adjudication 
No cases reported this week.

Federal Captial Cases Relief Denied 
No cases reported this week.

State Captial Cases Relief Denied 
Hall v. Moore (FL) Relief denied on claims that  appellate counsel committed fundamental error for failing to argue on direct appeal that Hall is mentally retarded and that his execution would be unconstitutional;  that appellate counsel was ineffective by failing to argue on appeal that the circuit court's finding that Hall was the leader of the criminal acts committed by Hall and the codefendant Ruffin was not supported by the evidence;   that appellate counsel was ineffective in failing to argue in the appeal that the pretrial deposition testimony of Detective  Bernard Bishop contradicted the trial judge's findings on this issue; that appellate counsel was ineffective for failing to argue that it was error to use Hall's 1968 conviction for assault with intent to commit rape as an aggravating circumstance because the conviction was obtained in a racist atmosphere; and, that it would violate the Eighth Amendment's prohibition against cruel and unusual punishment to execute Hall, who may be incompetent at the time of execution. 

Ferguson v. State, (FL)  Relief denied on claims that (1) trial court's failure to conduct fair and reasonable inquiry into Ferguson's competence to stand trial; (2) ineffective assistance of counsel due to their failure to investigate and present sufficient evidence concerning Ferguson's incompetence; (3) trial court's improper limitation on the jury's and the judge's consideration of nonstatutory mitigating circumstances in violation of Hitchcock v. Dugger, 481 U.S. 393, 95 L. Ed. 2d 347, 107 S. Ct. 1821 (1987); (4) ineffective assistance of counsel in the investigation and presentation of nonstatutory mitigating circumstances; and (5) denial of a fair and reliable sentencing determination in violation of Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In his sixth and final claim, Ferguson claimed that the State, in the prosecution of the Carol City Murders, withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). 

Gonzalez v. State (FL) Relief denied on claims that Gonzalez contends: (1) this Court improperly used a harmless error analysis based on the hearsay rule rather than one based on the confrontation clause to determine whether or not the admission of codefendant statements was proper during Gonzalez's trial; (2) using the victim's status as a police officer as an aggravator as well as to increase the penalty for homicide from twenty-five years without eligibility for release to life without parole constitutes impermissible  [*9]  doubling; (3) substantial organic and behavioral support existed for the expert opinion that was erroneously rejected by the Court when it considered the mental distress mitigator; (4) prosecutor's passionate closing and impermissible personal statements were error; and (5) proportionality analysis requires that Gonzalez's death sentence be vacated. 

State v. Scott (download only) (OH)   Claim of incompetency under R.C. 2949.28(A) dismissed for want of probable cause. No prohibition against cruel and unusual punishment precludes the execution of mentally ill persons who understand their crimes and the capital punishment they face.  R.C. 2949.28(B) does not require a hearing to determine probable cause.  Burden to challenge competency is on the defense.  R.C. 2949.29(C). 

Ex parte Grayson (web unavailable)Summary affirmance of the Alabama Court of Criminal Appeals

Other Notable Cases (As reported by Findlaw, and other sources) 
Johnson v. Norton (1st Cir) Where defendant passed out unconscious several hours after commencement of trial, the court needs to consider his competency both after the event and for that time period prior to manifestation of illness.

Dunlap v. U.S. (6th Cir) While equitable tolling applies to the one-year limitation period for habeas petitions under 28 USC 2255, applying the doctrine is only appropriate after a court properly considers and balances the factors in Andrews v. Orr, unless there is congressional authority to the contrary. Good review of tolling.

Brannigan v. U.S.  (7th Cir) While 28 USC 2244(b)(2)(A) provides an independent reason for denying a successive application based on Apprendi, a court of appeals must deny an application that presents a claim omitted from a prior application, unless that claim was "previously unavailable" to the prisoner.

Jacovs v. McCaughtry (7th Cir) Habeas petition is not a second or successive petition that could not be filed without prior authorization from the court under 28 USC 2244(b)(3) where the first petition was filed pretrial and not while petitioner was "in custody pursuant to a judgment of a state court."

Wilkinson v. Dormire (8th Cir) Petitioner's question to the police - "Could I call my lawyer?" - is neither a clear, unambiguous request for counsel under the Fifth Amendment requiring law enforcement officials to stop their interrogation, nor does it justify a petition for habeas relief.

Tamalini v. Stewart (9th Cir) Criminal defendants do not have a Sixth Amendment right to choose appellate counsel.

Bunney v. Mitchell (9th Cir)California Supreme Court certified to determine whether summary denial of habeas petition is "final" 30 days after filing or at some later date.

Moore v. Gibson (10th Cir) The prisoner mailbox rule does not apply to filings in Oklahoma district courts for post-conviction relief made pursuant to Okla. Stat. Ann. tit. 22, 1081.

Judd v. Haley (11th Cir) A claim that trial court violated defendant's right to a public trial is not subject to the doctrine of procedural default, which requires a state prisoner seeking federal habeas relief to first raise the issue in the state courts.
 

Featured 
No articles this week.

Errata

Upcoming Training

June 14-17, 2001  (PLEASE NOTE THE RECENT DATE CHANGE)
Anthony G. Amsterdam Post Conviction Skills Seminar
New York University Law School, New York City, New York
Contact:  Hunter Labovitz:  800.788.9908
Email:  Hunter_Labovitz@ao.uscourts.gov
This program is an intense "learning-by-doing" seminar designed to teach the skills necessary to prepare for and conduct a post-conviction hearing in a capital case. The program is offered to CJA panel attorneys, federal defenders and other attorneys who either currently represent, or are interested in representing, a person sentenced to death in post-conviction proceedings.

July 19 - 22, 2001
NAACP Legal Defense Fund Capital Punishment Seminar
Warrenton, Virginia
Contact:  Deb Fins:  212.965.2257 
Email:  straitfins@aol.com 
Attendance at this seminar is limited and is by invitation only. This seminar covers a wide spectrum of timely capital punishment topics for the experienced capital defense practitioner, investigator, and other members of the defense community.

August 9 - 12, 2001
National Federal Habeas Corpus Seminar
Nashville, Tennessee
Contact:  Hunter Labovitz:  800.788.9908
Email:  Hunter_Labovitz@ao.uscourts.gov
Nationally recognized habeas experts discuss legal developments since the implementation of the Antiterrorism and Effective Death Penalty Act of 1996, and how to handle a capital post-conviction proceeding. This program focuses on representation in a capital habeas case in toto, i.e. issue identification, investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. This seminar is designed for, and attendance is limited to, Federal Defenders, Criminal Justice Act panel attorneys, and state court practitioners who are currently appointed to or seeking appointment to, a capital habeas corpus proceeding.

WHO: Anyone who is against the DP -- seasoned abolitionists and those new to the movement alike. Come, learn some new tricks, make an impact and meet others who work for the cause....  Abolition work made fun!

WHAT: A four day vigil maintaining a presence at SCOTUS, The Supreme Court Of The United States. Some of the participants fast during this time, but fasting is not required. To be clear, we do not engage in civil disobedience during the Fast & Vigil.

WHERE:  In front of SCOTUS, (the U.S. Supreme Court), on Capital Hill in Washington, DC

WHEN:  June 29 to July 2 - to attend the full event, arrive on June 28, depart on July 3, 2001

WHY:  The purpose of this event is to maintain a presence at SCOTUS between the dates of the anniversaries of when the death penalty was ruled unconstitutional in practice in 1972, and when new laws were upheld in 1976. Much of the time is spent talking to individuals and educating people about the death penalty.  Several larger events are held at key times during the event to highlight specific concerns.

COST:  Minimal - mainly transportation to DC and personal expenses.

LODGING: Participants may make their own sleeping arrangements or they stay with the main group at The Community for Creative Nonviolence. The Community for Creative Nonviolence (CCNV) is a homeless shelter that has a specially designated room for people who come to D.C. to do advocacy work. We have stayed at CCNV since the 1997 Fast & Vigil and at several other abolitionist events. We have had good experiences there and enjoy excellent relations with the staff and tenants. The setting is simple and the sleeping arrangements are bunk beds separated in cubicles. Bathrooms are shared with shelter staff and tenants. Participants need to bring their own bedding and towels. This room is usually air conditioned but that is not guaranteed. CCNV is a 15 minute walk from the Supreme Court. CCNV is wheelchair friendly. The AAC requests a minimum donation of $10 a night to cover security and other CCNV related costs. Registration must be handled through the AAC. Please try to register in advance, but there is usually plenty of room if you decide to come at the last minute.

Other Options

REGISTRATION Registration forms and additional information will be available the first week of April. Please contact the AAC c/o CUADP at 800-973-6548 Fax: 561-743-4483, e-mail aac@abolition.org, or snail-mail: PMB 297 177 U.S. Highway #1, Tequesta, FL 33469.

Moratorium and Legislation News from around the Nation 

Maine - The House of Representatives overwhelmingly rejected a bill to reinstate the death penalty by a vote of 111-29. 
Nevada - A bill to halt executions for two years was rejected by the Assembly Judiciary committee, thus ending consideration of the moratorium this year. 
Maryland - A de facto moratorium on executions is in place while the state's high court prepares to rule on the constitutionality of the state statute in the fall. 
Georgia - Executions are effectively on hold until the state's Supreme Court resolves the use of the electric chair. 
All of the executions originally scheduled for this week (May 14-18) in Ohio, Texas, North Carolina and Terre Haute (federal) have been stayed. 

 EDITORIAL:  In a recent editorial, USA Today expressed concern about the potential for error in capital cases: 

 McVeigh's execution was delayed because the FBI failed to provide more than 3,000 documents to his defense attorneys before trial. 
 . . .[This] error illustrates that the capital system is far more prone to error than its defenders admit. If the federal government can't prosecute a slam-dunk case without making potentially prejudicial mistakes, imagine what's happening in the states, where capital crimes are tried by less-skilled lawyers with fewer resources. 
 . . . 
 If McVeigh can't be cleanly convicted and condemned with all of the resources of the federal government, it's certain that the states are also making errors and that not all of them are being discovered. A sentence of life without parole obviates the fear of killing an innocent person that can accompany the death penalty. 
 . . . 
  The death penalty requires infallibility, which relies on perfect jurisprudence. McVeigh may be as guilty as sin, but rushing an execution isn't the path to justice. It is the path to greater error.

(USA Today, May 16, 2001) 

New Voices: In a recent piece in the New York Post, Rod Dreher urged conservatives to rethink the death penalty: 

FBI Director Louis Freeh did what Pope John Paul II has not been able to do: turn this law-and-order Catholic conservative against the death penalty. 
   . . . 
After the McVeigh debacle, who can trust our government to administer capital punishment? 
We know all about McVeigh's saga. But what of the anonymous cases where the defendant's guilt is less obvious, and law enforcement feels less of an obligation to do things by the book? 
   . . . 
We conservatives cannot afford to let our justified outrage at unrepentant killers like McVeigh make us morally indifferent to the deadly and irrevocable peril in which society places the truly guiltless on trial for their lives. 
At some point in this death-penalty debate, the sanctity of innocent life demands that men and women of conservative conscience have to say: Enough.

(New York Post, 5/15/01)s 

Florida Governor Appoints Former Prosecutor to Head Death Row Appeals Office 
Longtime prosecutor Bill Jennings was appointed by Florida Gov. Jeb Bush to head one of the offices that represents death row inmates on appeal.  The governor has faced criticism for passing up applicants with more death penalty experience and appointing prosecutors like Jennings to the state's three capital counsel positions.  Since Jennings' appointment, 16 people, about half the staff, have been fired.  Many of the new hires, according to records, are those who contributed to Jennings' unsuccessful campaign last year for Hillsborough state attorney.  "It was a massacre," said Dianne Abshire, who works with the support group Families and Friends of Death Row Inmates.  "They gutted the office of all its experience.  They simply want to keep the execution machine well-oiled." (St. Petersburg Times, 5/9/01) 

Texas Warden Questions Capital Punishment 
In a recent op-ed for the Washington Post, Jim Willett, who presided over 89 executions as the warden on Texas' death row, stated: 

Has an innocent man ever been executed? Probably. The judicial system is designed to promote fairness, but anyone who expects perfection is asking for an impossibility. Any revamping might make the system better, but because human nature is involved, it won't make it perfect. 
. . . 
By far the question people ask me most is how I feel about the death penalty. I can only tell you this: Apparently, our society believes that some people need to be removed permanently and completely. As the warden, and a servant of the taxpayer, I tried to do the best job that I could. As a human being, I see it as a sad affair. But it is as a Christian that I struggle most. . . . I have watched men being put to death for hideous crimes and wondered at that moment if we were doing the right thing.

(Washington Post, 5/13/01) 

"The Judge as Lynch Mob: How Alabama judges use judicial overrides to disregard juries and impose death sentences." This article by Ken Silverstein appears in the May 7, 2001 edition of The American Prospect.

The Washington Post and the New York Times each expressed concern about the application of the death penalty in light of the Justice Department's belated acknowledgment of over 3,000 pages of materials related to the McVeigh case: 

The new material isn't likely to cast Mr. McVeigh's conviction in a different light. But if this type of error could happen even in this case, which has been under the closest of public scrutiny since the moment the bomb went off, think what must happen in countless cases -- particularly at the state level -- in which nobody is watching carefully. The death penalty relies on complex interactions of human systems, any one of which can fail in any given case. . . . [T]he incident shows once again the likelihood of error and caprice. To have a death penalty means, in practical terms, accepting that mistakes will be made and that they will be, at least in some cases, discovered too late. 

(Washington Post, 5/12/01)

 Beyond Mr. McVeigh, and the serious problems with the F.B.I., this episode has exposed yet another imperfection in the justice system that calls into question this nation's reliance on the death penalty. People have been executed because of inadequate legal representation, corrupt or inaccurate scientific evidence, faulty eyewitness testimony and racial prejudice. Now there is the added danger to worry about of defendants being sentenced while evidence relevant to their cases sits unreviewed in government files. 

(New York Times, 5/12/01)

Missouri Bill to Ban Execution of Mentally Retarded Passes Legislature; Awaits Governor's Signature 
The Missouri Legislature approved a bill to prohibit the imposition of the death penalty on a defendant who suffers from mental retardation.  The bill provides for life imprisonment for a person with mental retardation who is found guilty of first-degree murder.  Governor Bob Holden has indicated that he will sign the bill. (St. Louis Post-Dispatch, 5/11/01) 
A bill to ban the execution of those with mental retardation is also awaiting the governor's signature in Florida (see below).  If both the bills are signed, Florida and Missouri would bring the total number of states banning such executions to 16. 

President Bush Urges People to Heed Pope's Message 
The newsletter of Catholics Against Capital Punishment notes an apparent irony in a statement made by President George W. Bush.  The President recently stated at a reception prior to the dedication of the new Pope John Paul II Cultural Center in Washington, DC.: 

The best way to honor Pope John Paul II, truly one of the great men, is to take his teaching seriously; is to listen to his words and put his words and teachings into action here in America.  This is a challenge we must accept.

Pope John Paul II has spoken out against capital punishment in the U.S. has asked for an end to the death penalty.  His Holiness frequently writes letters seeking clemency for inmates facing execution.  (CACP News Notes, 5/7/01) 

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement. 

Post message: capitaldefense@onelist.com
Subscribe: capitaldefense-subscribe@onelist.com
Unsubscribe: capitaldefense-unsubscribe@onelist.com
List owner: capitaldefense-owner@onelist.com

RELATED RESOURCES   You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA)  & www.capdefnet.org (federal defender)  have many prepackaged motions and law guides dealing with death penalty issue.  Finally, the discussion groups above can help you with any questions you might have.

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Volume IV, issue 18

Please note: due to the large number of requests for assistance, the office cannot respond to all requests.  Your letter alone will not constitute the establishment of an attorney-client relationship.   Similarly, due to  relocation any correspondence will be substantially delated.