Two federal cases are of note.  In Rose v. Lee the Fourth Circuit has reversed a grant of relief relating to the failure to gather readily available records. Similarly, in Scott v. Mitchell a Sixth Circuit panel has held that  Ohio's method for determining competency to be executed is constitutionally permissibly, note however that Scott has since received a stay minutes before his scheduled

In depth this week kicks off the beginning of several editions over the next few months that will give Texas some long overdue special attention.  This week, a recent Dallas Morning News <http://www.dallasnews.com/> article on the Texas legislature's attempts to overhaul that state's criminal defense system called "A shift in scales of justice: Besieged system gets an overhaul." A special thanks to Rick Halperin for the article.

You may be interested in the following pleadings from the ongoing fallout of the McVeigh case, both of which are excellent reference points for those looking to get Brady & Jencks Act materials before a  court after the initial rounds of habeas or  § 2255 review are completed.

 McVeigh Petition for Stay:
 http://news.findlaw.com/cnn/docs/mcveigh/mcveighstaypt0531.pdf

 McVeigh Motion for Stay:
 http://www.co.uscourts.gov/forms_PDF/96cr68m_stay.PDF

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010528.htm. 
 

Supreme Court
No cases covered this week.

Captial Case Relief Granted
Ex Parte Varelas (Tx Crim App) Trial counsel was ineffective for failing to request a jury instruction requiring the jury to find beyond a reasonable doubt that applicant committed the extraneous acts in murder trial where extraneous acts involved incidents of physical abuse of the victim.

 
The claim of ineffective assistance of counsel is cognizable through an application for writ of habeas corpus, even if it was a claim raised and rejected on direct appeal. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). In most cases, the record on direct appeal is "inadequate to develop an ineffective assistance claim" because "the very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim." Id. Therefore, when an applicant files an application for a writ of habeas corpus, the record can be supplemented by the trial court gathering facts. See id. This "provide[s] an opportunity for a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999). Thus, the first issue presented is whether counsel's performance was deficient for failing to request limiting instructions and for failing to request that the jury be required to find applicant committed the extraneous acts beyond a reasonable doubt before using them in assessing guilt of the charged offense.

At trial, the State presented evidence that L.W.'s death resulted from her being kicked or hit so forcefully in the abdomen that her heart tore in four different places. Additionally, the State presented evidence of the physical abuse that L.W. had sustained over the six weeks before her death. She suffered fractured ribs, bruises all over her body, a burn on her arm, and a cut on her face. There was no eyewitness testimony concerning the cause of L.W.'s injuries or her death.

During applicant's trial, the State submitted evidence of several extraneous acts allegedly committed by applicant against L.W. in an effort to show applicant's state of mind, intent, relationship and motive. Specifically, the State presented evidence that applicant had excessively dunked L.W. in a swimming pool, had "thumped" the back of her head, had pushed her with his foot, had made her sit still on a couch for over two hours, and had hit her the night before her death. The State argued that applicant committed these extraneous acts, and because he had committed these acts, he must have been the person responsible for L.W.'s death. In contrast, applicant's attorneys advanced the theory that applicant's wife, L.W.'s mother, committed the offense in question. Thus, whether applicant had a pattern of abusing L.W. was essential to the State's case against applicant. Applicant's attorneys failed to request that either burden of proof or limiting instructions be included in the guilt/innocence charge regarding these extraneous acts, even though the attorneys noted during pre-trial hearings that such instructions would be proper.

Extraneous acts are generally inadmissible at the guilt/innocence stage of a trial. See Tex. R. Evid. 404(b) (stating that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith."). A defendant is "entitled to be tried on the accusations made in the State's pleading and he should not be tried for some collateral crime or for being a criminal generally." Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987). In some circumstances, however, evidence of an extraneous act is admissible. See id. One such circumstance is delineated in Article 38.36 of the Texas Code of Criminal Procedure, which states:

(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
 

Tex. Code Crim. Proc. art. 38.36 (a). The trial judge in this case found the extraneous acts in question admissible because a jury could find beyond a reasonable doubt that the applicant committed the acts.

Once an extraneous act has been ruled admissible, the jurors must be instructed about the limits on their use of that extraneous act if the defendant so requests. This Court has held for many decades that "when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof." Lankford v. State, 248 S.W. 389, 393 (Tex. Crim. App. 1923). In other words, a jury should be instructed that they are not to consider extraneous act evidence unless they believe beyond a reasonable doubt that the defendant committed that act. See Harrell v. State, 884 S.W.2d 154, 157 (Tex. Crim. App. 1994). "If a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction." Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). Therefore, if applicant's counsel had requested the jury to be instructed that they could not consider the extraneous act evidence unless they believed beyond a reasonable doubt that applicant committed those acts, the requested charge should have been given. (2)

Likewise, when the State is permitted to introduce evidence of defendant's extraneous acts for a limited purpose, the defendant also has the burden of requesting an instruction limiting consideration of those acts. (3) See Abdnor v. State (Abdnor II), 808 S.W.2d 476, 478 (Tex. Crim. App. 1991). When a defendant so requests this instruction, the trial court errs in not giving the instruction. See id. at 478. In pre-trial hearings, the State argued that the extraneous acts were admissible for the limited purpose of showing state of mind, intent, relationship, motive and to rebut defensive issues. Therefore, if applicant's counsel had requested that the jury be instructed that they could consider the extraneous act evidence only for the limited purposes for which it was offered, the trial court would have been required to give the requested instruction. (4) See George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (stating that "if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense.").

On direct appeal of applicant's conviction, we considered the argument that his trial counsel was ineffective. See Varelas v. State, No. 72,178, slip op. at 8 (Tex. Crim. App. - March 4, 1997) (not designated for publication). At that time, we stated,

In light of the number of ways and the degree to which a defendant can suffer harm from the admission of extraneous offense evidence, we have trouble understanding why trial counsel did not request a burden of proof or limiting instruction regarding these offenses. However, the bare record does not reveal the nuances of trial strategy. Further, to hold trial counsel's actions (or inaction) ineffective in the instant case would call for speculation and such speculation is beyond the purview of this Court. Rather, because of the strong presumptions that trial counsel's conduct falls within the wide range of reasonable professional assistance and that such conduct might be sound trial strategy, we must conclude, in light of an otherwise silent record, that appellant failed to meet his burden of showing that his trial counsel's assistance was ineffective.
 

Id. at 10-11 (citations and footnote omitted). At the time of applicant's direct appeal, we were unable to determine his attorney's reasons for failing to object to the omissions in the charge.

But we now have before us an affidavit from applicant's trial counsel and can now determine whether such failure was a product of trial strategy. Trial counsel's affidavit states: 

I have read the Court of Criminal Appeals opinion in which the Court "had trouble understanding why trial counsel did not request a burden of proof or limiting instruction regarding these offenses." . . . I can now assure the Court that my failure to request these instructions was not the result of trial strategy. It was simply an oversight. I was aware of Harrell and George at the time of the trial, but I simply neglected to invoke them and ask the trial court either for a burden of proof instruction or a limiting instruction. I had no reason in fact not to request these instructions, nor can I think of any reason I should not have requested them on the facts of Mr. Varelas's case.
 

Trial counsel further stated in the affidavit that the instructions would have been consistent with the two defensive issues raised at trial: one, that L.W.'s mother killed her or; two, that applicant killed her, but there was not a specific intent to kill L.W. Trial counsel's conduct fell below an objective standard of reasonableness by failing to request the jury instructions. The trial court would have been required to give the instructions had counsel requested them, and reasonable counsel would have requested the instructions given the facts of this case. Therefore, we conclude that trial counsel's performance was deficient for failing to request either an instruction on the burden of proof or limiting instructions regarding the extraneous act evidence admitted at applicant's trial. (5)

Next, we must consider whether there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 694. The function of the trial court's charge is to instruct the jury on how to apply the law to the facts. (6) See Abdnor v. State (Abdnor III), 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). It is designed to "lead and prevent confusion" during jury deliberations. Id. (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). The charge must contain an accurate description of the law, and when it does not, the "integrity of the verdict is called into doubt." See id.

Because this charge did not contain the appropriate burden of proof for the extraneous act evidence, it is reasonable to presume that the jury did not necessarily find beyond a reasonable doubt that the extraneous acts were committed by applicant before using this evidence against him. (7) See id. at 740 (stating that "where no instruction is given, we cannot follow the presumption that the jury properly considered the evidence at trial."). Similarly, the charge did not contain a limiting instruction telling the jury to consider the extraneous acts only for the purposes for which they were admitted - namely state of mind, intent, relationship, motive and to rebut defensive issues. Without such an instruction, the jury was likely to consider the extraneous acts as direct evidence of applicant's guilt; that is, that he acted in conformity with his character. See id. at 738 (stating that "where no limiting instruction is given, . . ., we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated.").

In applicant's trial, evidence of the extraneous acts was central to the State's case-in-chief. The State argued from its opening statement to its closing remarks that applicant was responsible for the injuries to L.W., and consequently, was responsible for her death. To bolster this claim, the State presented evidence that applicant had shoved L.W. with his foot, had excessively dunked her in a pool, had "thumped" her on the head, and had made her sit still on a couch for two hours. By emphasizing that applicant had committed these acts and by characterizing them as "bad" acts, the State hoped to persuade the jury that applicant was physically abusing L.W. If the jury believed applicant was engaged in a pattern of abuse of L.W., then they would probably conclude that he was responsible for her death.

On the other hand, applicant's attorneys attempted to create a reasonable doubt by arguing their defensive theory that L.W.'s mother was responsible for the injuries and death of L.W. To strengthen applicant's defense, they presented evidence of the mother's temper. Through medical testimony, it was shown that the mother could have killed L.W. -- she had both the opportunity and the strength required. Other medical evidence that was presented showed that the CPR efforts used in an attempt to save L.W. could have caused some of the injuries and bruising found on L.W.'s body. Applicant's attorneys also attempted to discredit the one witness, a long-time friend of L.W.'s mother, who testified regarding the extraneous acts. Applicant's attorneys portrayed this witness as a drug-user and highlighted inconsistencies in her testimony. Essentially, applicant's attorneys sought to persuade the jury to question her motivation and truthfulness in testifying. Whether the jury believed this witness's testimony was also key to the State's case. If the jury did not believe her, then they might not believe applicant was physically abusing L.W. or had been the cause of her death. Finally, applicant's attorneys produced testimony that Child Protective Services had investigated L.W.'s household and had found no evidence of child abuse on the part of applicant.

Moreover, the State produced little evidence linking applicant to L.W.'s death aside from the evidence concerning the extraneous acts. An inmate who shared a jail cell with applicant before his trial testified that applicant told him that he kicked a girl, but that it was an accident. In response, applicant's attorneys emphasized that the inmate knew only limited Spanish, while applicant understood only minimal English. The defense questioned how well the inmate could actually understand what applicant stated in the cell and questioned the inmate's motive in giving the testimony. The State also presented evidence that applicant reacted too calmly after finding out that L.W. had died, that L.W.'s siblings were afraid of applicant, and that applicant slept at the police station while waiting to be interviewed. In the videotaped statement of applicant taken by officers, applicant gave his account of the morning L.W. died. He stated that from the time L.W. woke up, she was quiet and kept falling down. When she became unconscious, applicant attempted CPR on her. When that did not work, he then carried her next door and the neighbor called 9-1-1. Applicant denied ever hitting or hurting L.W., and he stated that he treated L.W. better than her own father did.

Considering all of the evidence presented by both the State and applicant's trial attorneys, we conclude that applicant's defense was prejudiced because the jury did not receive instructions on the burden of proof or limiting instructions for the extraneous acts. The jury was specifically instructed in the court's charge that they "may consider all relevant facts and circumstances surrounding the death of [L.W.], if any, and the previous relationship existing between the accused and the deceased . . ." in determining if applicant was guilty. By not requiring the jury to find applicant committed theextraneous acts beyond a reasonable doubt before considering them as evidence during their deliberations, the jury was left with no guidance as to the proper weight to be given to those acts. More than likely, the jury assumed that because the extraneous acts were part of the evidence surrounding the relationship between applicant and L.W., they were proper factors in determining applicant's guilt. The extraneous acts could have been considered as evidence that applicant killed L.W. without the jury so much as even questioning the possibility that applicant may not have committed those acts. Additionally, without the limiting instructions, it is probable that the jury considered the extraneous acts as direct evidence of applicant's guilt, i.e., propensity evidence, rather than for the purposes in which they were offered, which was limited to the applicant's state of mind, intent, relationship, motive and to rebut defensive issues.

Finally, by not requesting the proper instructions, applicant's trial counsel jeopardized the jury's ability to find applicant guilty only of a lesser-included offense. In the charge, the jury was instructed to consider the charges of involuntary manslaughter and criminally negligent homicide if they did not find applicant guilty of capital murder. As previously explained, by not holding the jury to the proper burden of proof and limiting instructions regarding the extraneous acts, the likelihood of the jury finding applicant guilty of capital murder dramatically increased. Conversely, there was a lesser chance that the jury would instead find applicant guilty of involuntary manslaughter or criminally negligent homicide. Under the facts of this case, there is a reasonable probability that applicant would have been convicted only of a lesser-included offense had the proper instructions been given. If the jury did not believe that applicant committed the extraneous acts, then they might not have believed he was engaged in a pattern of abusing L.W. Without a strong pattern of abuse, it would have been increasingly difficult for the jury to find applicant intentionally caused L.W.'s death. Instead, the jury probably would have found appellant not guilty or, at the most, guilty of unintentionally causing L.W.'s death, i.e., involuntary manslaughter or criminally negligent homicide.

Thus, we conclude that applicant has demonstrated prejudice by not having a burden of proofor limiting instruction on the extraneous acts in the charge at guilt/innocence. Applicant was prejudiced because the charged offense was similar in nature to the extraneous acts, and the extraneous acts were likely considered as direct evidence of applicant's guilt. Applicant's defense that L.W.'s mother killed her was undermined because the jury was essentially informed that applicant had harmed L.W. in the past, and therefore, he was the cause of her death. Also, applicant's chances for being convicted only of a lesser-included offenses were severely diminished. We conclude that this harm is "sufficient to undermine confidence in the outcome" of applicant's trial. Strickland, 466 U.S. at 694. There is a reasonable probability that, but for the errors committed by applicant's attorneys, the result of his trial would have been different. We grant the relief applicant requests, and we remand the cause for a new trial.

Particularly noteworthy is the evidence that appellant has a history of learning disabilities, was considered ten years behind his chronological age, was considered borderline retarded during his school years and was placed in special education classes as a result of his mental or emotional infirmities. The record also reflects that appellant was diagnosed in 1991 as being chronically depressed and suffering from substantial mood swings, for which he was placed on prescription medication. As of the time of the penalty phase proceeding, appellant was still taking medication for depression and had been receiving counseling in jail since October of 1995. Based on this evidence, the trial court found that appellant was suffering from some mental or emotional disturbance at the time of the murder, to which it gave moderate weight. This finding is bolstered by the bizarre circumstances of this crime and appellant's numerous confusing statements. After considering the totality of the underlying circumstances in this case, we conclude that a consideration of the aggravation and mitigation clearly excludes this case from being one of the most aggravated and least mitigated murders for which the death penalty is reserved.

When the facts and circumstances in this case are compared to other capital cases involving a murder-robbery, we find that death is not the appropriate penalty. See Urbin v. State, 714 So. 2d 411 (Fla. 1998) (vacating sentence of death where youthful age of defendant (17), disadvantaged childhood, and alcohol and substance abuse outweighed aggravating factors-that defendant had been convicted of prior violent felony and that murder had been committed in course of robbery and for pecuniary gain); Johnson v. State, 720 So. 2d 232 (Fla. 1998) (vacating sentence of death where mitigating circumstances outweighed aggravating factors-that murder was committed during course of robbery and defendant had previously been convicted of four violent felonies); Terry v. State, 668 So. 2d 954 (Fla. 1996) (vacating sentence of death where aggravating circumstances not extensive enough to outweigh mitigating circumstances); cf. Sinclair v. State, 657 So. 2d 1138 (Fla. 1995) (vacating sentence of death where mitigation, including low intelligence and emotional disturbances, outweighed single aggravating factor-that murder was committed for pecuniary gain merged with murder committed during course of robbery); Thompson v. State, 647 So. 2d 824 (Fla. 1994) (vacating sentence of death where significant mitigation outweighed single aggravating factor-that the murder was committed in the course of a robbery).

Indeed, this case is very similar to Terry v. State. In Terry, the defendant robbed a gas station, during the course of which he shot and killed a customer. We upheld Terry's conviction for first-degree murder, but vacated his sentence of death because the crime was not among the most aggravated, least mitigated of capital cases. See 668 So. 2d at 965. We reasoned that while the facts in the case clearly established that the murder occurred during a robbery, the actual circumstances surrounding the murder were unclear. See id. Furthermore, we found that while the case presented marginal mitigation, the aggravating factors were not extensive in light of the totality of the underlying circumstances. See id. at 965-66 (noting that aggravators were based on fact killing occurred during a robbery and co-felon, not defendant, committed assault simultaneously with murder). Viewed in this light, we held that Terry's actions did not satisfy the test set forth in Dixon for identifying which crimes are "the most aggravated, the most indefensible of crimes" for which punishment by death is warranted. See id. at 966. This case, of course, involves much more mitigation than was involved in Terry.

Similarly, in Johnson, the defendant was convicted of first-degree murder and robbery-related offenses for the shooting death of Willie Gaines. The trial court found two aggravators and several mitigators: (1) Johnson was twenty-two at the time of the crime; (2) Johnson voluntarily surrendered to the police; (3) Johnson had a troubled childhood; (4) Johnson was previously employed; (5) Johnson was respectful to his parents and neighbors; (6) Johnson had a young daughter; and (7) Johnson earned his GED and participated in high school athletics. We upheld his conviction for first-degree murder under both premeditated and felony murder theories, but vacated his sentence of death. See 720 So. 2d at 236. In so concluding, we approved the trial court's finding that the murder was aggravated by the defendant's prior convictions of four violent felonies-aggravated assault, aggravated battery, robbery with a firearm, and attempted murder-and the fact the murder was committed during the course of a burglary. See id. at 237-38. However, we found that the prior violent felony aggravator was not strong when the circumstances surrounding the prior offenses were considered. See id. at 238. We reasoned that the aggravated assault charge was based on an offense committed by appellant against his brother and that his brother testified that he was not injured by the affray and that it occurred as a result of a misunderstanding. The two attempt charges resulted from appellant's conviction as a principal to the offenses committed by his brother contemporaneously with the murder of Gaines. See id. When we considered these factors with the mitigating evidence presented and similar other capital cases, we concluded that the crime committed by appellant was "not among those for which the death penalty is specifically reserved under State v. Dixon." Id.

Like the factual circumstances in Terry, the exact circumstances surrounding the robbery-murder in the instant case are unclear. Appellant provided several different recitations to the police as to how the murder occurred. The only other person allegedly present at the time of the crime was appellant's wife who did not actually witness the murder. And, as noted above, while the evidence supports a finding of two aggravating factors, those factors are not as compelling as we have found in other cases, especially in light of the totality of the aggravating and mitigating circumstances in this case.

Finally, we note that the mitigating evidence presented herein and found by the trial court is far more substantial than that presented in both Terry and Johnson. Indeed, based on the evidence presented, this clearly is not a case involving minimal or insignificant mitigation. Thus, we conclude that we are unable to say that this case stands out and qualifies as one of the most aggravated, least mitigated crimes for which the ultimate sanction of death is reserved. 
 

Federal Captial Cases Relief Denied 
Rose v. Lee (4th Cir) Reversal of relief grant on claims relating to ineffective assistance of counsel relating to the failure to gather records reversed.

Turning to the merits of Rose's ineffective assistance of counsel claim, Rose contends that he was denied the effective assistance of counsel at his death penalty proceeding because his attorneys did not adequately investigate the events surrounding his prior violent felony attempted rape conviction that was used by the State as an aggravat- ing factor. Had his counsel investigated the events surrounding the attempted rape conviction, Rose argues, counsel would have discovered significant mitigating evidence relating to Rose's mental health. Specifically, Rose argues that his counsel should have requested his prison records from his prior attempted rape conviction, which contained information indicating that the prison doctors had diagnosed Rose as suffering from sexual and social disorders. Properly applying Strickland, the record supports the State habeas court's ultimate rejection of Rose's ineffective assistance of counsel claim. 

During the evidentiary hearing before the State habeas court, Rose introduced testimony pertinent to the mitigating evidence of mental disorders that he currently says should have been introduced to the jury. Dr. Brown and Dr. Berlin, both psychiatrists, testified separately that Rose relayed to them a dramatically different story regarding Stewart's death than Rose had relayed to his trial counsel, law enforcement officers, and the jury. 

Dr. Berlin testified that Rose told him that he did not have a rela- tionship with Stewart, but he had instead been spying on her through her window on the night of the murder. On this account, Rose waited until Stewart was asleep before entering her apartment through a win- dow. Rose went to Stewart's bed and stabbed Stewart, wounding but not killing her. Stewart told Rose that if he left without killing her, Rose would escape punishment because she would not be able to identify him. Rose placed Stewart's head in his lap and strangled her with a nylon strap until he heard several "pops" and "snaps." (J.A. at 76.) Rose then put her body in the trunk of his car and violated her by inserting numchucks into her vagina. Rose then masturbated by the car's back bumper. Rose told Dr. Berlin that he had, prior to trial, told one of his trial attorneys the truth about Stewart's death, but the attor- ney dismissed it. 

In addition to relaying this version of Stewart's murder, Rose told Dr. Berlin that he had entered as many as 20 homes and stood fanta- sizing over the bed of the occupants, while holding a knife and having thoughts of injuring them, and on more than 100 occasions he also had entered other homes and masturbated over people's beds. Based upon Rose's statements and his prior conviction for attempted rape, Dr. Berlin opined that Rose had sexual disorders, voyeurism and sex- ual sadism, and was mentally impaired respecting his ability to con- form his conduct to the requirements of law. Rose told Dr. Brown a similar story about Stewart's murder, adding that before he assaulted Stewart's vagina with the handles of the numchucks, he burned her vaginal area with a "pencil torch." (J.A. at 259.) 

Other evidence of Rose's disorders included an evaluation from Dorothea Dix Hospital. Prior to trial, the trial court had ordered that Rose undergo a psychiatric evaluation at Dorothea Dix Hospital to gauge Rose's competence to stand trial. The report issued in conjunc- tion with that evaluation concluded that Rose suffered from a provi- sional sexual disorder and a mixed personality disorder, but that Rose was otherwise competent to stand trial. Rose argues that, in light of this preliminary evidence of mental disorders, his trial counsel should have further investigated and presented evidence of his disorders to the jury to support a statutory mitigating factor. 

As the State habeas court noted, however, Mr. J.K. Coward, Jr., Rose's lead trial counsel, testified that Coward and his co-counsel, Marcellus Buchanan, were fully aware of the diagnosis of the disor- ders in the Dorothea Dix report, but they had decided not to pursue a defense that included Rose's sexual disorders because they felt that introducing "further bad elements into the case" would mean that they "would have no chance whatsoever with the jury." (J.A. at 248.) Cow- ard testified that introducing any testimony regarding Rose's sexual disorders during the sentencing phase "would eliminate the chance for any kind of leniency." (J.A. at 248.) Additionally, Coward and Buchanan felt constrained not to introduce evidence of Rose's sexual disorders because Rose explicitly had instructed them not to present any evidence that would expose Rose's children to adverse publicity. 

Instead of pursuing Rose's mental disorders as a defense or a miti- gating factor, counsel attempted to avoid any of the sexual content of Stewart's murder, which they succeeded in doing. Additionally, coun- sel attempted to engender sympathy for Rose by focusing on his trou- bled upbringing, good character, and strong work habits. 
Our review of relevant excerpts from the transcript of the evidenti- ary hearing and the findings of the State habeas court conclusively establishes that Rose's trial counsel acted in an objectively reasonable fashion by declining to pursue a defense based upon Rose's sexual disorders. Rose's trial counsel made a strategic decision to keep any evidence of Rose's sexual disorders out of the trial because they determined that any such evidence was contrary to the express order of their client to protect his children and would decrease their chances of success. See Turner v. Williams, 35 F.3d 872, 904 (4th Cir. 1994) (holding that where there is a conceivable strategic advantage to the decision not to introduce certain evidence, that choice is virtually unassailable on collateral review), overruled on other grounds by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). When counsel make a reasonable strategic choice based upon an investigation of the facts, this Court must defer to that strategic choice. Bunch v. Thomp- son, 949 F.2d 1354, 1364 (4th Cir. 1991) ("Trial counsel is too fre- quently placed in a no-win situation with respect to possible mitigating evidence at the sentencing phase of a capital case. The fail- ure to put on such evidence, or the presentation of evidence which then backfires, may equally expose counsel to collateral charges of ineffectiveness. The best course for a federal habeas court is to credit plausible strategic judgments in the trial of a state case."). In light of their strategic choice to keep sexual content out of the trial, Rose's counsel was entirely justified to decline to further investigate Rose's prison records related to his Mississipi conviction for attempted rape in an attempt to uncover additional information about Rose's sexual disorders. Thus, Rose has failed to overcome the"strong presumption that counsel's conduct [fell] within the wide range of reasonable pro- fessional assistance." Strickland v. Washington, 446 U.S. 668, 689 (1984). 

Nor has Rose established that any alleged constitutional deficiency in the performance of his counsel was prejudicial, that is, that there is a "reasonable probability" that Rose would have been spared the death penalty if his counsel had conducted more extensive investiga- tion into his mental health. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Assuming arguendo that Rose's counsel should have further investi- gated Rose's sexual disorders, Coward testified that full knowledge of the disorders only would have bolstered his strategic decision to veer away from evidence related to Rose's sexual disorders. Addition- ally, Coward testified that the additional evidence of Rose's sexual disorders, including Rose's alternate version of Stewart's murder, would only have further impaired Rose's likelihood of obtaining an acquittal because the evidence would convince the jury "that Rose was a sexual predator as well as a murderer." (J.A. at 79, 250.) Cow- ard further pointed out that Rose's original version of Stewart's mur- der allowed Coward to obtain jury instructions on second degree murder, voluntary manslaughter, self defense, and accident -- none of which would have been available had he presented Rose's second version of the murder. 

Nevertheless, Rose argues that but for his counsel's failure to uncover additional evidence about his sexual disorders, there is a rea- sonable probabilty he would have been spared the death penalty. In support of his argument, Rose points to an affidavit of Samuel Kent Chapman, one of the jurors from Rose's trial, which stated that, if Chapman had found that "Rose suffered from some mental health problem or disorder, [Chapman] would have voted to give him a life sentence rather than a death sentence because [he] do[es] not believe that a person who doesn't appreciate or understand what he is doing needs to be executed."¹² (J.A. at 477-78.) 

Chapman's affidavit is too vague to undermine our confidence in the outcome of the death penalty phase of the proceeding. Chapman's affidavit does not indicate that he was aware of Rose's proffered dis- orders when he averred that a certain type of mental disorders would have influenced his decision to impose the death penalty. Rather, Chapman indicates that when a person has a mental disorder render- ing him incapable of appreciating the nature of his conduct, he would be inclined to vote against the imposition of the death penalty. Rose's evidence regarding his mental disorders does not establish that Rose was incapable of appreciating the nature of his conduct. To the con- trary, Dr. Berlin opined that Rose was capable of appreciating the criminal nature of his conduct but was incapable of conforming his conduct to the requirements of the law. Similarly, Dr. Brown opined that Rose was fully able to premeditate and deliberate at the time he murdered Stewart; "he knew what he was doing and he knew it was wrong." (J.A. at 262.) Thus, Chapman's affidavit simply does not address whether Chapman would have voted against the death penalty if Chapman possessed full knowledge of Rose's particular mental dis- orders and the alternate version of the events surrounding Stewart's murder. Accordingly, we do not believe that Chapman's affidavit is probative of whether Rose has demonstrated a reasonable probability that he would have received life imprisonment had the jury been pres- ented with evidence of Rose's particular mental disorders. 

Mr. Alexander McCoy, who attempted to be certified as a "mitiga- tion specialist," also testified during the evidentiary hearing. The State habeas court declined to accept McCoy as an expert but accepted his testimony and opinions relating to capital trials. McCoy opined that Rose's trial counsel erred by failing to introduce evidence to support a mental health instruction. McCoy admitted, however, that if counsel had introduced Rose's alternative version of Stewart's murder to the jury, it would not have been helpful and would have further supported the statutory aggravating factor. Additionally, he admitted that he knew of no case in which evidence presented to the jury that the defendant suffered from a mental illness that caused him to want to murder, rape, and torture women was found to be persuasive in choosing life over death. (J.A. at 245.) As McCoy admits, his opinion that introduction of such evidence would have been beneficial to Rose amounts to pure speculation. 

The only other evidence offered to support a finding of prejudice is that of Mr. David Belser, an attorney who testified as to the proper standard of care. Belser testified that Coward should have ignored his client's wishes and introduced evidence of the sexual disorders. Bel- ser further testified that there was a reasonable probability that intro- ducing such evidence would have changed the jury's verdict. Belser also admitted, however, that he had never tried a capital case in Hay- wood County, had never put on a defense such as the one proposed by Rose's post-conviction counsel, and knew of no instance where such a defense actually had averted a death sentence. Thus, Belser's opinion is wholly speculative and is unsupported by the evidence in the record. 
Far from undermining confidence in either phase of the State trial, after considering all of the evidence introduced related to Rose's inef- fective assistance of counsel claim, the State habeas court determined that the evidence adduced at the evidentiary hearing constituted a "considerably more shocking version of events" that "would virtually have assured conviction of first degree murder" if offered at trial. (J.A. at 266-67.) Additionally, the State habeas court noted that intro- duction of Rose's second version of Stewart's murder, along with Rose's testimony that he had entered over one hundred other homes and masturbated over people's beds, would have supported the sub- mission of the aggravating factor in N.C. Gen. Stat.§ 15A- 2000(e)(11), that applies when the murder is part of a course of con- duct. Moreover, the State habeas court concluded that, if the jury had been presented with this "repellent" type of sexual disorder evidence, "including as it does rape, torture and murder," the jury "would have been even more likely to recommend a death sentence." (J.A. at 275- 76). We agree that introducing evidence of Rose's sexual disorders would have contributed equally, if not more, to the statutory aggravat- ing factors than it would have contributed to any statutory or non- statutory mitigating factors.¹³ The alleged mitigation value of intro- ducing Rose's voyeurism and sexual sadism could not possibly out- weigh the detrimental effect that would accompany such evidence because the evidence necessarily introduces components of rape and torture into Stewart's murder. Thus, we cannot say that a reasonable probability exists that the unpresented evidence would have resulted in a different sentencing decision or that Rose's counsel's failure to investigate further into Rose's sexual disorders constitutes ineffective assistance of counsel. See Satcher v. Pruett, 126 F.3d 561, 572-73 (4th Cir. 1997) (holding that petitioner did not establish ineffective assistance of counsel based upon counsel's failure to further investi- gate defendant's mental disorders when counsel introduced other types of mitigating evidence and further investigation into mental health would have produced damaging evidence). Accordingly, we reverse the district court's issuance of a writ of habeas corpus on Rose's ineffective assistance of counsel claim. 

     Scott's petition before the district court claims first that Ohio's statutory procedures for determining his competence to be executed are unconstitutional, and that the Ohio courts' applications of those procedures to him violated his rights under the Eighth Amendment and denied him due process. His petition next claims that Ford v. Wainwright, 477 U.S. 399 (1986), is obsolete. Finally, his petition asserts that the Eighth Amendment prohibits the execution of one who is severely mentally ill. The State argues that this petition is not a supplemental petition and that under the AEDPA it is barred in its entirety unless Scott obtains permission from this court to file a second and successive petition. Scott maintains that none of these claims was ripe when he filed his initial petition for habeas relief in 1996, and therefore the AEDPA bar is not applicable.

     We agree with the State that Scott's claim that the Eighth Amendment prohibits the execution of one who is severely mentally ill is barred. Although Scott was not specifically diagnosed as being schizophrenic until well after he filed his initial petition in 1996, his own pleadings make it clear that he had suffered from severe mental illness for years before that petition was filed. Any claim that his execution was prohibited by the Eighth Amendment because he was severely mentally ill was therefore ripe at the time that he filed that petition, but the petition makes no mention of such a claim. Accordingly, we conclude that the district court erred in considering this claim on the merits.

     We do not agree with the State, however, that Scott's claim that he was denied his Eighth Amendment and due process rights because Ohio's procedures for determining competence for purposes of execution are unconstitutional is similarly barred. Scott's first execution date preceded his filing of his initial federal habeas petition, and he certainly could have raised his Ford claim in that petition. However, the State does not dispute Scott's claim that he is schizophrenic; neither does it dispute his claim that this mental disease is progressive and that its victims do not improve but only get worse. Accordingly, Scott's imminent execution and his claim to a declining mental state lead us to conclude, consistent with our opinion in Coe v. Bell, 209 F.3d 815, 824-25 (6th Cir. 2000), that while this claim might not have been ripe six years ago, it is certainly ripe now.

     We therefore conclude that we will address on its merits Scott's challenge to the adequacy of the Ford standard. Under the particular facts of this case, Scott had no reason to challenge the adequacy of that standard until he raised his claim that he is not competent to be executed.

     We find, however, no error in Judge O'Malley's conclusion that we are bound by Ford because "neither the Supreme Court nor the Court of Appeals in this Circuit has ever issued an opinion questioning its vitality." Judge O'Malley is entirely correct, and she is further correct that the Supreme Court's grant of certiorari in McCarver v. North Carolina, 121 S. Ct. 1401 (2001), does not affect this result. We therefore conclude that the definition of insanity set out in Ohio's Ford statute, Ohio Rev. Code Ann. § 2948.28(A), provides the appropriate standard for determining whether Scott is competent to be executed. That definition is: "that the convict in question does not have the mental capacity to understand the nature of the death penalty and why it was imposed upon the convict." Id.

     We are left with Scott's claim that Ohio's courts denied him due process by burdening him with proving his competency under Ford and by denying him an opportunity for an evidentiary hearing on that question. We find no merit to this claim.

     Ford provides that "an insane defendant's Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a 'fair hearing.' Indeed, fundamental fairness is the hallmark of the protections afforded by the Due Process Clause." 477 U.S. at 424 (Powell, J., concurring). Applying this principle, we have recognized that "the state is entitled to exercise discretion in creating its own procedures as long as basic fairness is observed." Coe v. Bell, 209 F.3d 815, 824-25 (6th Cir. 2000) (internal alterations and citation omitted) (concluding that the procedures followed by the Tennessee courts satisfied the requirements of due process and did not constitute an unreasonable application of Ford).

     Ohio's Ford statute provides:

(1) If a convict sentenced to death appears to be insane, the warden or the sheriff having custody of the convict, the convict's counsel, or a psychiatrist or psychologist who has examined the convict shall give notice of the apparent insanity to . . .the judge who imposed the sentence upon the convict . . . .

(2) Upon receiving a notice pursuant to division (B)(1) of this section, a judge shall determine, based on the notice and any supporting information, any information submitted by the prosecuting attorney, and the record in the case, including previous hearings and orders, whether probable cause exists to believe that the convict is insane. If the judge finds that probable cause exists to believe that the convict is insane, the judge shall hold a hearing to determine whether the convict is insane. If the judge does not find that probable cause of that nature exists, the judge may dismiss the matter without a hearing.

Ohio Rev. Code Ann. § 2949.28(B). This statute afforded Scott the basic fairness that Ford requires; namely, the opportunity to be heard. Scott availed himself of that opportunity when, for example, he presented live testimony from Dr. Douglas Mossman. We have acknowledged that Ford allows states "substantial leeway to determine what process best balances the various interests at stake." Coe, 209 F.3d at 828 (quotation omitted). A state process under Ford may even incorporate "some high threshold showing on behalf of the prisoner . . . to control the number of nonmeritorious or repetitive claims of insanity." 477 U.S. at 417 (plurality opinion). Accordingly, that Ohio denied Scott an evidentiary hearing does not violate due process as enunciated in Ford.

     Concerning Scott's argument that the Ohio statute impermissibly placed upon him the burden of proving his competency, we do not read Ford and Coe--the governing cases here--to say that procedural due process requires Ohio's Ford statute to set up a burden-shifting paradigm or to assign the initial burden of establishing probable cause to the state. Ohio's statute does not contemplate burden shifting to establish probable cause. Rather, the statute directs the court to examine the evidence and to make a finding regarding whether there is probable cause to believe that a convict meets the Ford standard. Here, Dr. Mossman testified that Scott suffers from schizophrenia, but he did not state that Scott is unable to "understand the nature of the death penalty and why it was imposed upon" him. The trial court was therefore justified in finding that Scott had presented no evidence of probable cause sufficient to warrant holding a full evidentiary hearing. For this reason, we agree with the district court that "[w]hatever the merits of Scott's Due Process contentions, in the abstract, the Court fails to see how they are meaningful in this case." Scott v. Mitchell, No. 95CV2037, Order at 6 (N.D. Ohio May 14, 2001).

Goodin v State (Miss.) Relief denied as to sentencing instructions, improper closings, effective assistance of counsel, aggravating circumstances instructions, denial of instructions as to lesser includeds, meaning of a life sentence, & proportionality.

Gallego v State (Nev.) Relief denied in this new penalty phase proceeding on issues of denial of self-representation, replacment of counsel,  defendant's exclusion  from in camea proceedings, failure to fuly mark jury sentencing form, propiety of jury instructions & closings, restriction of the right to testify, and proportionality.

Vanisi v. State (Nev.) The primary issue on appeal is Vanisi's claim that the district court erred in denying his motion for self-representation. We reject this claim as well as Vanisi's other contentions and affirm the judgment of conviction and the sentence of death.

State v. Stout (Tenn.) Relief denied on issues of: "1) the evidence was sufficient to support the jury's verdict; (2) the trial court did not commit reversible error in allowing Tonya Woodall to testify as to statements made by Quentin Jordan; (3) the admission of facts underlying the defendant's prior conviction for a violent felony during sentencing did not affect the jury's determination to the prejudice of the defendant; (4) the prosecutor's use of the defendant's prior convictions to cross- examine a defense witness during sentencing did not affect the jury's determination to the prejudice of the defendant; (5) the exclusion of mitigating evidence offered by the defendant during sentencing did not affect the jury's determination to the prejudice of the defendant; (6) the felony murder aggravating circumstance was properly applied; and (7) the sentence of death was not arbitrary or disproportionate."

Other Notable Cases (As reported by Findlaw, and other sources) 
Denny v. Gudmanson (7th Cir) The admission of defendant's brother's inculpatory statements at their joint trial does not violate the Confrontation Clause where the confessions do not shift blame, and they are made in noncustodial conversations with trusted friends and relatives.

Harris v. Taylor (8th Cir) The state trial court's refusal to order the state to disclose the identity of a confidential informant did not deny defendant his constitutional rights, where the Court gave defendant the opportunity to depose the informant before trial, and defendant declined.

May v. Iowa (8th Cir) Iowa's procedural rule requiring that claims of ineffective counsel be raised on direct appeal is both firmly established and regularly followed.

Crouch v. Norris (8th Cir) Petitioner's challenge to the execution of a sentence is not a successive petition under the Antiterrorism and Effective Death Penalty Act of 1996 where the first petition challenged the constitutionality of the conviction.

Grassi v. Hood (8th Cir) Bureau of Prison's Program Statement 5162.04, which excludes from early release programs those drug dealers who carried firearms, is a permissible excercise of the Bureau's discretion under 18 USC 3621.

Agnews v. Leibach (7th Cir) When the bailiff's contact with the jury is extensive and testimony by the bailiff as a witness addresses substantive issues of the defendant's guilt, the presumption of prejudice against the defendant warrants a mistrial.

Porvchia v. Norris (8th Cir) An appellant must prove that necessary preconditions have been met for the appellate court to exercise jurisdiction, including the timely filing of a notice of appeal, and when nothing hindered the proof of timely filing when appellant first appeals, there is no reason to allow for such proof upon remand.

Keller v. Larkins (3rd Cir) Where petitioner failed to assert federal Constitutional reasons for inadmissibility of evidence, he has waived the issue for habeas purposes, and where evidence would have been admitted  dven if counsel had objected, the failure to object is not ineffective counsel.

Hafdahl v. Johnson (5th Cir) Even without evidence corroborating the hearsay account of the kidnapping, defendant's prior arrests on weapons charges and his role as the gun-carrying "enforcer" of a drug trafficking ring establish his future dangerousness, rendering the alleged violation of the Confrontation Clause harmless error beyond a reasonable doubt.

People_v._Lewis, (Cal.)  Code of Civil Procedure section 232 requires prospective jurors to take the jurors' oath before answering the written questionnaires, but failure to do so may not substantially prejudice a capital defendant where questionnaires were signed under penalty of perjury and proper voir dire taken.

People v. Anderson, (Cal.) Where defendant's expert can only speculate as to the cause of minority underrepresentation in the jury pool, and the jury commissioner's procedures are facially race neutral, defendant has not shown systematic exlcusion on the basis of race.

Wilson v. Mitchell (6th Cir) Petitioner's Sixth Amendment right to a speedy criminal trial has not been denied where he actively evaded discovery, and the state was, at worst, passive in its pursuit of him.

Featured 
This week, a recent Dallas Morning News <http://www.dallasnews.com/> article on the Texas legislature's attempts to overhaul that state's criminal defense system called "A shift in scales of justice: Besieged system gets an overhaul."

The swaggering and cocky Texas justice system sat down for a 
reflective session and came away with something akin to a death-row 
conversion. 

Crime bills 
"To a great extent, the glare of that national spotlight did make us take 
a tough look at ourselves, and we didn't like what we saw."
- Sen. Rodney Ellis, D-Houston 

What passed: 
INDIGENT DEFENSE: A measure establishes minimum standards and experience 
for defense lawyers representing the poor in an effort to improve the 
quality of court-appointed lawyers. Also, funding would be provided for 
counties, and attorneys would be appointed within at least three days of 
their being requested. 

RACIAL PROFILING: A measure prohibits law officers from unfairly 
targeting minorities; police and sheriff's departments would have to 
document traffic stops and searches by race and report them annually; and 
$18.5 million would be provided for video cameras for patrol cars 
statewide. 

EXECUTIONS: The execution of the mentally disabled would be banned. 
Juries, after determining guilt in capital cases, would determine whether 
sufficient evidence exists to find that the defendant is mentally 
retarded. If so, the defendant automatically would be sentenced to life. 

DNA TESTS: Those already convicted of a crime can ask a court to provide 
them with a DNA test if it could show their innocence. 

ASSET FORFEITURE: The burden is shifted to police to prove that property 
is part of an illegal enterprise before it is seized. 

WRONGFUL IMPRISONMENT: A measure raises the amount the state provides to 
an innocent person erroneously convicted  from $50,000 to $20,000 for 
each year served, up to a maximum of $250,000. 

HATE CRIMES: A measure increases penalties for those who commit a crime 
targeting a victim based on prejudice, including bias against race, 
religion, sexual orientation and national origin. 

By Monday, gone from law-and-order legislators were their defense of 
sleeping lawyers and executing the mentally retarded. Silenced was the 
refrain that innocents never get the death penalty. 

Instead, after the national spotlight of a presidential election, 
lawmakers accepted responsibility for their criminal justice policies and 
voted overwhelmingly to change them  although many of the same proposals 
had faced defeat time and again in earlier years. 

"Sometimes a picture can say 1,000 words, and the picture of a sleeping 
lawyer defending someone who is facing the death penalty was so vivid in 
the minds of people in this country that it didn't take a rocket 
scientist to figure out that that is not competent representation," said 
Rep. Juan Hinojosa, D-McAllen. 

Mr. Hinojosa, chairman of the House Criminal Jurisprudence Committee, was 
referring to a Texas death row inmate who sought a retrial because his 
lawyer napped during parts of his trial. 

Although prosecutors and defense attorneys say they generally are 
satisfied with the changes, some crime victims say they feel abandoned by 
them, and some law professors say the proposals are, at best, tiny, 
beginning steps toward improvement. 

Claiming victory 
But most lawmakers hailed the bills as a major victory  perhaps the most 
far-reaching efforts of the legislative session  ending the status quo 
and starting toward a fairer system. 

"You know, this is a law-and-order state, and I think we made the point 
that you can be tough on crime and still be compassionate," said Sen. 
Rodney Ellis, D-Houston, who has championed indigent defense reform and 
prohibiting the execution of the mentally retarded. 

"In a state that has the largest prison population in the free world, in 
a state that is the global leader in executions, it is appropriate that 
we be as concerned about justice as we are about justice being swift," 
Mr. Ellis said. 

Currently signed or pending before the governor are measures to: 

 Assure the timely appointment of experienced defense lawyers for the 
poor. 

 Ban death penalties for the mentally retarded. 

 Provide DNA testing for certain inmates. 

 Pay up to $250,000 in compensation for those wrongly imprisoned. 

Lawmakers also sought to deal with unequal applications of the law by 
prohibiting racial profiling and ordering data gathering on police 
searches. And new laws could make law agencies prove that forfeited 
property was gained through illegal activities instead of making the 
owners prove that it wasn't. 

In addition, after drug task forces in Tulia and Hearne targeted blacks 
and sparked a federal civil rights inquiry, the Legislature made drug 
convictions contingent on corroborating evidence, and not solely on the 
testimony of a single drug agent. 

Robert Kepple, general counsel for the Texas District and County 
Attorneys Association, said prosecutors negotiated with lawmakers on many 
of the criminal justice bills. 

"On most of the versions, they've done a good job of trying to reach the 
middle ground, and I think the prosecutors have been open to that," he 
said. 

The need for change was made obvious by the national critiques that 
slapped Texas during the presidential campaign, he said. 

"I don't think there's any problem with stopping and taking a look at how 
you're doing things. I think that's healthy," Mr. Kepple said. 

What about the victims? 
Dianne Clements, president of the victims rights group Justice for All, 
said she views many of the so-called reforms as looming disasters. She 
said the Legislature has forgotten the victims. 
"We've been acting like all those mentally retarded and those who are 
indigent have not had victims attached to their crimes," Ms. Clements 
said. 

She said those who are so mentally disabled that they cannot understand 
the consequences of their actions are precluded from trials by competency 
hearings, and so the state does not need a ban on executing those who may 
be only slightly retarded. 

While everyone deserves a competent lawyer, she said, the system for 
providing attorneys to the poor is likely to be "a can of worms that will 
be a disaster." 

She said that overall, the Texas system of justice is a good one and the 
problem has been the lack of media reports to show how well the system is 
working. 

"These legislators, instead of believing they have something to amend, 
should stand up and be proud that we have a system that offers fair, 
competent counsel and does offer those who are convicted of the most 
heinous crimes the opportunity to appeal at every level," Ms. Clements 
said. 

University of Texas law professor Jordan Steiker, a constitutional 
scholar who follows state legislation, said the Texas criminal legal 
system is not working well, and the changes offered this session will 
make only incremental progress. 

"Texas is unique in having probably one of the harshest, if not the 
harshest, capital punishment systems in the nation," he said, citing 
scant resources afforded defendants, inadequate lawyers, and the lack of 
protections for juveniles, the mentally retarded and poor. 

A larger trend 
Mr. Steiker said establishing minimum standards for appointed lawyers for 
the poor is a modest step. 
While national criticism did help Texas realize its shortcomings, he 
said, he also believes the state is being swept along in a larger trend 
away from high crime rates and anger toward criminals. The focus is now 
on wrongful convictions and the inappropriate use of race by law 
enforcement, he said. 

The Legislature has tried to forge some compromises, and without them, 
"Texas would be falling far behind the curve," Mr. Steiker said. 

For Mr. Hinojosa, who sponsored the bill banning execution of the 
mentally retarded and the indigent defense bill, not everything he wanted 
was accomplished. 

He watched his bill that would have created life without parole as an 
alternative to the death penalty pass the Senate, only to fail in the 
House. 

But, he said, more was done in criminal justice than on any other topic 
considered by the Legislature. "We were very successful in addressing 
some of those areas that were perceived to be defective," he said. 

Mr. Ellis agreed. "To a great extent," he said, "the glare of that 
national spotlight did make us take a tough look at ourselves, and we 
didn't like what we saw." 

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.

UPCOMING EVENTS:  Murder Victims' Families for Reconciliation will host its first national gathering June 7-10 at Boston College. The historic event will bring together MVFR family members and supporters from around the country - including victims' advocates, scholars, legal professionals, and others - to explore alternatives to capital punishment and effective ways to heal in the aftermath of homicide. The conference will feature a number of special events, more than 30 workshops, and presentations by Arun Gandhi and Sister Helen Prejean. For more information about the conference, read MVFR¹s Press Advisory, visit the conference Web page or contact MVFR at 617-868-0007.  See also, Upcoming Events.

Cost Could Determine Who Gets Death Penalty in Arizona
The Arizona Supreme Court recently remanded a death penalty case for re-sentencing to a county that does not have the resources to pay for it.  By law, counties are required to fund a specialist to gather mitigating evidence for the defense to use at the sentencing phase.  Some jurisdictions, however, do not have the money to pay for pre-sentencing investigation. The situation puts smaller counties in the position of choosing to pursue capital sentencing based on cost.  This would make the application of the death penalty in Arizona arbitrary because those who commit capital crimes in the state¹s larger counties (Pima and Maricopa) will more likely be subject to the death penalty simply because of resources. "If you live in Pima or Maricopa county you¹re going to get one form of treatment, while anywhere else you¹re going to get a different form of treatment," said Sen. Elaine Richardson, who earlier this year sponsored a bill to deal with the issue by siphoning state financial support for capital cases.  The bill passed the Senate but failed in the House. (Arizona Capitol Times, 5/29/01) 

NEW RESOURCES: The ACLU Capital Punishment Project's new Web site The ACLU's revamped site contains news, legislation and information on current death penalty issues, as well as links to other sites.

South Africa High Court Finds Extradition Unconstitutional
The South African Constitutional Court recently ruled that the South African government illegally handed over Khalfan Khamis Mohamed, one of the four men convicted for the 1998 bombing of two American embassies in Tanzania and Kenya.  South Africa's constitution does not permit the death penalty and the  Court held that the government violated Mohamed's constitutional rights by extraditing Mohamed without first obtaining assurances from US authorities that he would not be subject to the death penalty if convicted.  "The fact that Mohamed is now facing the possibility of a death sentence is the direct result of the failure of the South African authorities not to secure such an undertaking," said Judge Arthur Chaskalson, the Court's president.  Another suspect, who will be tried later this year, will not face capital prosecution because the German government secured assurances from the U.S. that if it extradited Mamdouh Mahmud Salim to the U.S., he would not be subject to the death penalty.  (Associated Press, 5/28/01)  See also, International death penalty.

Poll Shows Mistakes Shake Oklahomans' Confidence in Justice System
A recent poll by Oklahoma University found that 57% of Oklahomans were less confident in the criminal justice system because of mistakes made by the state's police lab and the FBI's errors in handling the Timothy McVeigh case. Jeff Pierce, who had been convicted on the basis of police chemist Joyce Gilchrist's inaccurate testimony was recently exonerated by DNA testing.  The poll also found:

• 73% think Pierce is not the only innocent person who has been sent to prison.
• 42% believe an innocent person has already been executed.
• Over 25% think innocent people get railroaded by police or prosecutors.

(The Oklahoman, 5/27/01)  See also, public opinion.

Alabama Death Row Inmate Freed After Acquittal on All Charges
Gary Drinkard became the 95th death row inmate to be exonerated since 1973 following his acquittal at a retrial on May 25th.  Drinkard was sentenced to death 6 years ago, but his conviction was overturned by the Alabama Supreme Court in 2000.  A team of lawyers and investigators from Alabama and the Southern Center for Human Rights in Atlanta spent hundreds of hours preparing for the case and were able to prove that Drinkard was at home at the time the crime was committed.  (Decatur Daily, 5/27/01; Washington Post, 5/28/01).  Drinkard is the second person this year to be freed from death row and cleared of all charges.  See also Innocence.

Texas Legislature Passes Bills to Ban Executing Inmates with Mental Retardation and to Improve Representation for Indigent Defendants
As its legislative session drew to a close, Texas passed a bill forbidding the execution of those with mental retardation.  The bill would allow a jury which convicts a defendant to enter a finding of mental retardation, which would then result in a life sentence.  If the jury does not enter such a finding, the defense can request that the trial judge conduct a hearing to determine the issue of mental retardation. (Washington Post, 5/27/01).  If Gov. Perry signs this bill, Texas is in line to become the 17th state to ban such executions and the fourth state this year.  Florida and Missouri legislatures also passed bills to exempt the mentally retarded from the death penalty this year, and the governors of both states are expected to sign the measures.  Similar legislation is pending in Connecticut, North Carolina and California.  The U.S. Supreme Court will consider the issue in the fall.  See Mental retardation and the death penalty, including streaming video.
    Lawmakers also gave final approval to a bill to improve the state's system of providing trial counsel to indigent defendants.  The Texas Fair Defense Act  provides that attorneys be appointed within three days after a defendant requests one, and that the attorney meet minimum standards of representation.  The bill also requires the state to set aside nearly $2 million in grants to help its 254 counties pay for indigent counsel.  Currently, the state sets aside no money to aid these counties, which spend about $90 million a year on indigent defense. The bill now goes to Gov. Rick Perry who has indicated his support for creating minimum standards for court-appointed attorneys in capital cases.  (Houston Chronicle, 5/24/01)  See also, Proposed legislative changes.

Maryland Split on Support for Death Penalty
A recent Gonzales/Arscott Research & Communications poll in Maryland found support for the death penalty at 62%, slightly below the national level as reported by Gallup (67% in March 2001).  Support dropped further -- to 45% -- when respondents were given the choice between the death penalty and life without parole as the more appropriate punishment for murder. The poll also found that Marylanders overwhelmingly favor DNA testing for inmates if it is possible that the test would show their innocence; 89% supported testing and only 7% were opposed.  (Washington Post, 5/24/01)  See also, public opinion and recent poll findings.

NEW RESOURCES: "Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty" - Written in the spirit of "Dead Man Walking," this book by Antoinette Bosco conveys both the powerful personal experience of a mother whose son was murdered and a wealth of information about the criminal justice system in America.  (Orbis Books, 2001) For more information, or to read an excerpt, visit www.maryknoll.org/MALL/ORBIS/more_mercy.htm  See also, books on the death penalty.

USA Today Poll Finds General Death Penalty Support Down to 59%
A nationwide poll released earlier this month by USA Today shows that general support for the death penalty has fallen to  59%.  According to the poll, 22% of respondents who said they oppose the death penalty would support the execution of Timothy McVeigh.  Many of those who voiced opposition to the death penalty noted that they were recent converts to the anti-death penalty cause -- persuaded by the belief that some innocent people are wrongly convicted.  (USA Today, 5/4/01)  See also, public opinion.

NEW RESOURCES: "When the State Kills: Capital Punishment and the American Condition." This new book by Austin Sarat considers what the death penalty does to us as a society, rather than what it does for us. (Princeton University Press, 2001)  See also, books on the death penalty.

Justice Department May Again Release Crucial Information Days Before Federal Execution
Juan Raul Garza, who is scheduled to be executed on June 19th, filed a revised clemency petition asking President Bush to commute his sentence to life without parole.  Last year, President Clinton granted Garza a six-month stay to allow for further investigation of the federal death penalty following a Justice Department study that found racial and geographic disparities. "[T]he examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's study," said Clinton. However, no report on any further examination has been issued with the execution less than 30 days away.  Garza is a Mexican-American who was prosecuted in Texas, one of the few states responsible for more than half of federal capital prosecutions.
      Garza's clemency petition also cites an Inter-American Commission on Human Right's report finding that executing Garza would violate U.S. treaty obligations, and recommending that Bush commute Garza's sentence.  Another issue raised in the clemency petition is whether the jury instruction in Garza's case was unconstitutional in light of a recent Supreme Court case holding that jurors are entitled to know that, if a sentence of death is not handed down, a defendant will be sentenced to life without the possibility of parole.  Garza is the only federal death row inmate whose jury did not receive this instruction.  (Texas Defender Service Press Release, 5/21/01)  Read the Press Release and Garza's clemency petition.  See also, Federal Death Penalty

Nebraska Death Row Inmate To Be Freed
Jeremy Sheets will soon be released after four years on Nebraska's death row.  The U.S. Supreme Court declined to hear an appeal of the Nebraska Supreme Court decision overturning his conviction. Prosecutors have decided not to retry Sheets, who is set to be freed within a month.
      Last fall, the Nebraska high court ruled that the key evidence used against Sheets, a tape recording made by an alleged accomplice who committed suicide prior to trial, was highly suspect,  inherently unreliable, and inadmissible.  The statements were made by Adam Barnett, who was arrested by police for the 1997 rape and murder of 17-year-old Kenyatta Bush.  Barnett confessed to the crime and implicated Sheets.  In exchange for the taped confession, Barnett received a plea bargain in which he avoided a charge of first degree murder, did not have an additional weapons charge filed, and received a commitment for his safety while incarcerated.  (Nebraska v. Sheets, 260 Neb. 325 (2000) and CNN.com 5/15/01)
     DPIC may add Sheets to the list of innocent inmates released form death row once the charges against Sheets are officially dropped.

NEW RESOURCES:  "Mistake and Perjured Eyewitness Identification Testimony in U.S. Capital Cases: An Analysis of Wrongful Convictions since restoration of the death penalty following Furman v. Georgia."  This report from the Center on Wrongful Convictions at the Northwestern University School of Law analyzes the problem of eyewitness identifications as they relate to wrongful conviction cases.  Among the report's findings:

• Of the 86 legally exonerated persons, eyewitness testimony played a role in 53.5% of the wrongful convictions.
• Eyewitness testimony was the only evidence against 38.4% of the defendants.
• Only one eyewitness testified in 69.6% of the cases.

(Center on Wrongful Convictions, Northwestern University School of Law, May 2, 2001) See also, Studies on the Death Penalty and Innocence

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. 

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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 20

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