The Fifth Circuit has denied relief in In re Garza denying this habeas petition for failing to meet the gatekeeping provisions of the AEDPA for second or successive habeas petitions.

This week's featured article is from the New York Times and comments on the McVeigh execution entitled "History and Timothy McVeigh."  Next week will examine the case of Juan Garza.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010604.htm. 

Supreme Court
No cases covered this week.

Captial Case Relief Granted
State v. Rimmer (Tenn.Crim.App.) Trial court failed to conform an ambigious jury verdict with law and therefore reversal must be had.

The trial court committed additional errors in its reception of the verdict. As we have outlined above, the jury's statement relative to aggravating circumstances was anomalous. The trial court did not have the jury clarify the aggravating circumstance(s) it found, and when the trial court announced the verdict, it read the crimes listed by the jury, minus theft and burglary, as the "aggravating circumstances" found by the jury. The court made no effort to inquire of the jury's intent with respect to the (i)(2) or (i)(7) aggravator. The court also did not inform the parties of its revision of the list of "aggravating circumstances." The trial court's polling of the jury, at least insofar as it is reflected in abridged form in the transcript, did not clarify the jury's verdict.

Tennessee law provides that if a jury returns an imperfect or incomplete verdict, the trial court has a duty to instruct the jury to amend it to proper form and have them return to the jury room for that purpose. State v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994); State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993); State v. James Lee Cannon, No. 03C01-9808-CR-00272, slip op. at 13-14 (Tenn. Crim. App., Knoxville, Sept. 27, 1999), perm. app. denied (Tenn. 2000); Gwinn v. State, 595 S.W.2d 832, 835 (Tenn. Crim. App. 1979); Meade v. State, 530 S.W.2d 784, 787 (Tenn. Crim. App. 1975).

In this case, the trial judge abdicated his responsibility to have the jury render a verdict that unquestionably reflected its findings. As discussed above, the jury clearly found the (i)(2) aggravator, but its determination as to the (i)(7) aggravator is ambiguous. Some of the crimes listed as "aggravating circumstances" on the verdict form are crimes which are ineligible for consideration both under the (i)(2) and (i)(7) aggravators. The court's failure to see that the jury returned an intelligible verdict was error. See State v. Henley, 774 S.W.2d 908, 915 (Tenn. 1989) ("Since the reception of a verdict is not solely a ministerial as distinct from a judicial act, when the jury return (sic) into court with a verdict, it is not a matter of course to receive it in the form in which it is rendered. It is the duty of the Court . . . to look after its form and substance, so far as to prevent an unintelligible, or a doubtful, or an insufficient verdict from passing into the records of the court.") (quoting 23A C.J.S.2d Verdict § 388).

A second area of concern is the trial court's sua sponte revision of the verdict without informing counsel that a revision was being made. The majority believes that the trial court was without authority to covertly and substantially revise the jury's verdict. Cf. State. v. Morris, 788 S.W.2d 820, 825 (Tenn. Crim. App. 1990) (trial judge has duty to mold judgment to conform with verdict, but court does not have the authority to substitute a judgment that is substantially different).

 C. Effect of Errors

The ultimate question, of course, is that of the effect that these errors had on the outcome of the trial.

First, we must visit the state's argument that the defendant waived any objection to these errors by failing to object when the verdict was returned or in the motion for new trial. To be sure, a defendant's failure to object to a defective verdict prior to discharge of the jury has been held to constitute waiver of any later complaint. See Mounce, 859 S.W.2d at 322-23. The defendant in the case at bar also did not later raise the issue in his motion for new trial. Ordinarily, this is a basis for waiver, as well. See Tenn. R. App. P. 3(e).

However, in capital cases this court is statutorily charged that we "shall" consider, inter alia, whether the death sentence was imposed arbitrarily and whether the evidence supports the jury's determination that the aggravating circumstance outweighs the mitigating circumstances. Tenn. Code Ann. § 30-13-206(c)(1)(A), (C) (1997). The errors present here are components of these questions and are therefore not beyond the scope of our review, notwithstanding the defendant's failure to raise them in the trial court. See State v. Nesbit, 978 S.W.2d 872, 880-81 (Tenn. 1998) (under Code section 39-13-206, supreme court had jurisdiction to review appellate issues in capital case despite defense counsel's failure to file a motion for new trial), cert. denied, 526 U.S. 1052, 119 S. Ct. 1359 (1999).

Errors affecting the jury's consideration of an invalid aggravating circumstance in a capital sentencing proceeding must result in reversal unless the reviewing court concludes that the error was harmless beyond a reasonable doubt. See, e.g., State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993). That is to say, the error is harmless only where the reviewing court concludes beyond a reasonable doubt that the sentence would have been the same had the jury not considered the improper evidence in aggravation. See id. at 262. This standard likewise applies in situations where an aggravating circumstance has been proven in part by evidence which was erroneously admitted. See State v. Campbell, 664, S.W.2d 281, 284 (Tenn. 1984) (trial court erred in admitting defendant's prior convictions of grand larceny and second degree burglary to prove prior violent felony aggravator, but error was harmless beyond a reasonable doubt where two eligible prior convictions were also admitted and there were two additional aggravating circumstances).

 Moreover, multiple errors may require reversal of a capital sentencing, even if the errors when considered separately do not require relief. State v. Bigbee, 885 S.W.2d 797, 812 (Tenn. 1994); see also State v. Brewer, 932 S.W.2d 1, 28 (Tenn. Crim. App. 1996).

The errors in this case all relate generally to the jury's consideration of the aggravating circumstance and the conclusions that were drawn by the court from the jury's report of the aggravating circumstance. The jury erred in considering extraneous crimes in determining the existence of the (i)(2) aggravating circumstance and by including these crimes in the weighing process. The trial court then committed error in accepting an ambiguous verdict relative to the findings of aggravating circumstances, in failing to require the jury to clarify its verdict relative to aggravating circumstances, and in unilaterally revising the verdict relative to aggravating circumstances without informing counsel of the action. Our assessment of the effect of these errors includes, of course, consideration of the valid aggravating circumstance found by the jury as contrasted with the countervailing mitigating evidence. In that regard, we are constrained by our lack of knowledge of the submitted mitigating factors, if any, the jury found in making its weighing determination. See generally Tenn. Code Ann. § 39-13-204 (2000) (containing no provision requiring the jury's verdict to include a listing of mitigating factor(s) found). While precise knowledge of the mitigating factors found by the jury is not fatal to our harmless error analysis, it adds to our uncertainty. Upon consideration, the majority cannot conclude that, given the multiplicity of errors affecting the integrity and reliability of the verdict itself, these errors pass harmless error scrutiny. In other words, we cannot say beyond a reasonable doubt that absent the errors, the result of the sentencing proceeding would have been the same. As such, the defendant must receive a new sentencing hearing.

"Although 'the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal,' Britt v. North Carolina, 404 U.S. 226, 227 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971), 'the availability of alternative devices that would fulfill the same functions as a transcript,' id., 404 U.S. at 227, 92 S.Ct. at 434, provides an adequate substitute for a transcript in many cases." Id.

However, in the present case, the trial court refused to allow defense counsel to use his notes from the prior trial or his memory in order to impeach the witnesses. Thus, there were no alternatives available to the appellant.

"'A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.' Britt v. North Carolina, 404 U.S. 226, 235, 92 S.Ct. 431, 435, 30 L.Ed.2d 400 (1971). See also Dunn v. State, 733 S.W. 2d 212, 215 (Tex.Cr.App. 1987) (The appellant 'must show due diligence in requesting [the transcript] and that failure to file or have the [transcript] timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant or his counsel, indeed, the circumstances in such cases should be viewed from the appellant's standpoint, and any reasonable doubt is resolved in favor of the appellant.')" Harris v. State, 552 So. 2d 866, 873 (Ala.Crim.App. 1989).

Moreover, as to a required showing of particularized need by a defendant for a copy of a transcript of a prior trial, this Court has echoed the United States Supreme Court's language in Britt that "'[o]ur cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.'" Harris v. State, supra at 874. Moreover, in distinguishing the necessity of a transcript of a co-defendant's prior trial, this Court held that in the latter situation the defendant must make a showing of particularized need as opposed to the former situation, where a specific need might be presumed. "'The United States Supreme in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), held that an indigent defendant must be provided with transcripts of a prior trial that ended in a mistrial without showing a specific need. The necessity of the transcripts to an effective defense was to be presumed.'" Grayson v. State, [CR-95-1511, November 19, 1999] ___ So. 2d ___, ___ (Ala.Crim.App. 1999), quoting State v. Tyson, 129 Ariz. 526 540, 633 P.2d 335, 349 (1981). In McKinney v. State, 665 So. 2d 209, 211 (Ala.Crim.App. 1995), this Court stated that "[a]lthough Britt provides that the value to the defense of a transcript of prior proceedings may usually be presumed, this Court has not extended the rationale of Britt so far as to recognize the value that a transcript of proceedings in juvenile court my have in every case where a defendant is transferred to the circuit court for trial as an adult." However, in the present case, the appellant clearly made a showing of particularized need to the trial court.

The trial court's ruling did not address the appellant's showing of particularized need or the availability of alternatives. The trial court's ruling was based on its finding that the State was not being provided with a copy of the transcript of the prior mistrial either, so that both parties were on "equal footing." This reason was improper and insufficient. In McKinney v. State, 665 So. 2d 209, 210 (Ala.Crim.App. 1995), a defendant argued that he was entitled to the transcript of the hearing transferring him from juvenile court to circuit court for prosecution as an adult. Although this Court affirmed the trial court's denial, reasoning that adequate substitutes existed and no particularized need was shown by the defendant, the Court also stated:

"The trial court's apparent reason for denying the appellant's motion for funds for a transcript of the juvenile transcript hearing was that the state did not have a copy of the transcript and had indicated that it did not intend to obtain one. ... [T]his reason alone would not be sufficient." Id.

In the present case, because the appellant, as an indigent, was entitled to the transcript of his prior mistrial of this case, or the use of an adequate alternative, McKinney v. State, 665 So. 2d 209 (Ala.Crim.App. 1995) (wherein possible alternatives to a transcript are discussed); Nickerson v. State, supra (same), the judgment is due to be reversed and the cause remanded for a new trial.

Defendant argues that the legislature has decided that the lack of a significant criminal history is a mitigating factor (see 720 ILCS 5/9-1(c)(1) (West 1994)) and that a trial prosecutor lacks the authority to change that legislative determination. In response, the State argues that, when the comment is viewed in context, the trial prosecutor was not really arguing that defendant's lack of a criminal history is a reason to sentence him to death but, rather, the fact that defendant had not previously been convicted of a crime showed that he knew right from wrong and that, in this instance, he consciously chose the evil action. The State further contends that this is particularly relevant here because defendant argued that his diminished intellectual capacity was a basis for not imposing the death penalty.

We agree with the State that defendant's intellectual capacity was a significant question to be considered at the death sentencing hearing. However, this is not what the trial prosecutor argued.

 The State asserts that the trial prosecutor was not arguing that defendant's lack of a criminal history is a reason to sentence him to death. The dissent accepts this view of the prosecutor's remark. Slip op. at 35-37 (Fitzgerald, J., dissenting). This argument is simply untenable. Defendant's trial counsel argued that the jury should consider defendant's lack of criminal history as a mitigating factor. In rebuttal, the trial prosecutor specifically told the jury: "you can consider that [defendant's lack of criminal history] as aggravation." Subsequently, the jury was properly instructed that: "Aggravating factors are reasons why the defendant should be sentenced to death. Aggravating factors include *** Any other reason supported by the evidence why the defendant should be sentenced to death." See Illinois Pattern Jury Instructions, Criminal, No. 7C.06 (3d ed. 1992). Clearly, by her choice of words, the trial prosecutor was arguing to the jury that defendant's lack of criminal history was a reason to sentence him to death.

We turn now to the question of whether the State's argument was proper. If a state wishes to impose the death penalty, it must have a statutory scheme that channels the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and that make the process for imposing a death sentence rationally reviewable. Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 406, 100 S. Ct. 1759, 1764-65 (1980). Here, the legislature has chosen to "channel the sentencer's discretion" by defining specific aggravating factors that justify the imposition of the death penalty. 720 ILCS 5/9-1(b) (West 1994). Moreover, the legislature has further channeled this discretion by identifying five specific mitigating factors that demonstrate why a defendant should not be sentenced to death. 720 ILCS 5/9-1(c)(West 1994). In considering the constitutionality of our death penalty statute, this court has held that the statute provides "precisely the kind of capital sentencing procedure approved by the Supreme Court; this procedure both prevents the arbitrary imposition of the death penalty by specifying the class of murderers who are eligible for the death penalty, and provides for consideration of mitigating factors unique to the offense and offender." People v. Bean, 137 Ill. 2d 65, 139 (1990).

The legislature has chosen a specific scheme to ensure that the death penalty is not applied in an arbitrary and capricious manner. As part of this legislative scheme, the legislature has defined certain facts as inherently mitigating. One of these is that "the defendant has no significant history of prior criminal activity," which, we note, the jury was told in its written instructions. See 720 ILCS 5/9-1(c)(1) (West 1994). Thus, the legislature has determined that, if a defendant lacks a criminal history, that is a fact that weighs in favor of a defendant's not being sentenced to death. This does not mean that, if the factor exists, the defendant should not be sentenced to death. The sentencer is vested with the discretion to determine what weight to assign that fact and may, if it chooses, place little or no weight on that factor. However, neither this court nor a trial prosecutor has the authority to change the legislative scheme and convert a fact that the legislature has determined to weigh in favor of not sentencing a defendant to death into a fact that weighs in favor of sentencing a defendant to death.

 This does not mean that other legitimate inferences cannot be drawn from the same fact. We have previously recognized that the State may argue that a defendant's evidence of a mitigating factor does not fit within the statutory definition of that factor and, therefore, the jury may consider that factor as aggravating rather than mitigating. See People v. Macri, 185 Ill. 2d 1, 66-67 (1998); People v. McNeal, 175 Ill. 2d 335, 368 (1997). Moreover, this court has held that, when the defendant presents non-statutory mitigating factors, the State need not agree with the defendant's characterization of the factors as mitigating and may even argue that the factors are aggravating. See People v. Hudson, 157 Ill. 2d 401, 454 (1993); People v. Page, 155 Ill. 2d 232, 279 (1993). We cannot countenance, however, an argument that admits that the facts meet the statutory definition of a mitigating factor, but argues that, regardless of this legislative determination, the jury should consider the factor to be aggravating.

 Here, the trial prosecutor argued that the jury should employ the factor in a manner directly opposite to the way in which the legislature intended. Such an argument is clearly improper and prejudicial. The jury was instructed in writing that defendant's lack of a prior criminal history is a mitigating factor. However, the jury was also instructed in writing that aggravating factors include any other reason supported by the evidence why defendant should be sentenced to death. The prosecutor argued to the jury that one such reason was the identical factor that the jury was instructed was mitigating, i.e., defendant's lack of a prior criminal history. Sentencing jurors cannot be expected to engage in a meaningful process of weighing aggravation and mitigation when they are given such irreconcilable directions. Such a misstatement of the law in closing argument is improper, particularly where, as here, the legal principle misstated is a critical one in the case. See People v. Holman, 103 Ill. 2d 133, 170 (1984).

After reviewing the entire closing argument, we conclude that these improper remarks by the State were so inflammatory that defendant could not have received a fair sentencing hearing, or were so flagrant as to threaten deterioration of the judicial process and necessitates the vacatur of defendant's death sentence. See People v. Sims, 192 Ill. 2d 592, 637 (2000).

 B. "Five Free Murders"

Defendant also asserts that he was deprived of a fair death sentencing hearing when the trial prosecutors argued that, if the jury voted not to impose the death penalty, they would be giving defendant five free murders. We agree.

During the State's opening argument, a trial prosecutor argued:

"If you do not sentence him to death he will be sentenced to life in prison without parole, unless, of course, some governor down the road grants an order of executive clemency.

Life without parole is the minimum sentence in this case. He does not deserve the minimum sentence for killing four children and three adults.

The law in Illinois is that if you kill two people you go to jail for life without parole. He killed seven people. If you do not sentence him to death that will be giving him five freebies.

Which five ladies and gentlemen? The Frausto family? The five who are above the age of five? Which five?

The minimum sentence would be like grounding him, sending him to his room. It will be like he has beaten the system. He will get down there and they will say, oh, there goes Julius Kuntu. He got five free dead people." (Emphasis added.)

During the State's rebuttal argument, the other trial prosecutor argued:

"You must determine is this defendant deserving of the minimum sentence or the death penalty.

What are the lives of all of these victims worth? What did defendant's actions demonstrate? Does he get five murders for free, because that is what he is looking for. He's looking for the sale of the year here, just like he always has from the date that he has gotten caught." (Emphasis added.)

Defendant asserts that the State committed misconduct when it argued that not sentencing defendant to death would be like giving him five free murders.

 We find error in allowing the State to argue to the jury that, if it should fail to vote to sentence defendant to death, the jury will be giving defendant five free murders. Contrary to the view of the dissent (see slip op. at 38 (Fitzgerald, J., dissenting)), this is neither an accurate statement of the law nor a reasonable inference from the evidence. Rather, it is simply an inflammatory statement with no basis in either law or fact; it is tantamount to the conclusion that, as a matter of law, a person who kills more than two persons should be sentenced to death.

This is not to say that the State may not rely on the severity of the crime or the number of victims to argue that the death penalty should be imposed. What the State may not do is argue that, because two murders result in a minimum sentence of life imprisonment, a defendant who commits more than two must be sentenced to death or be deemed to have received one or more "freebies," "free dead people," or "murders for free." These fundamental principles must be remembered:

"It is of vital importance to society and to the defendant that any decision to impose the death penalty is, and appears to be, based upon reason rather than emotion. [Citation.] Because of the qualitative difference between a sentence of death and other forms of punishment, a high standard of procedural accuracy is required in a hearing to determine whether the death penalty will be imposed [citation]. The focus in death penalty hearings must be on the particular nature of and the circumstances surrounding the offense, and the individual character and record of the defendant. [Citation.] It is axiomatic that parties in closing argument may not go beyond the scope of the evidence presented and facts fairly inferable therefrom [citation], misstate the law [citation], or express their personal opinions on the evidence [citation] or on defendant's guilt [citation]. Further, arguments which are calculated to play upon the jurors' emotions are clearly improper. A penalty of death that may have been imposed under the influence of passion or prejudice cannot stand." People v. Williams, 161 Ill. 2d 1, 77-78 (1994).

For this reason, we conclude that the remarks constitute plain error and are of a nature to warrant reversal of defendant's death sentence.

The dissent asserts that "[t]he State's comments were clearly indelicate. They were not, however, so flagrant as to threaten the judicial process." Slip op. at 39 (Fitzgerald, J., dissenting). We disagree. The remarks of the trial prosecutors clearly appealed to the passions of the jury. "A penalty of death that could have been imposed under the influence of passion or prejudice cannot stand." People v. Szabo, 94 Ill. 2d 327, 367 (1983).

Also, the dissent notes that "the jury was properly admonished about the law in Illinois and would have correctly understood the remarks not as statements of law but as comments on the evidence." Slip op. at 39 (Fitzgerald, J., dissenting). We disagree. Instructing the jury that arguments are not evidence will not, in every instance, cure the defect caused by the remarks. Whether the remarks constitute error depends, in each case, on the nature and extent of the statements. People v. Blue, 189 Ill. 2d 99, 132 (2000). In this case, "we find that the generic instructions tendered by the State were not likely to undo the damage to defendant's case inflicted by the State's pointed remarks." Blue, 189 Ill. 2d at 132. In light of the closely balanced evidence presented at the penalty phase of the death sentencing hearing, the risk is simply too great that the prosecutor's comments improperly influenced the jury's sentencing decision.

Because we conclude that defendant is entitled to a new death sentencing hearing, we consider the remaining challenged remarks to the extent that they are likely to arise again. See, e.g., People v. Johnson, 159 Ill. 2d 97, 135 (1994); People v. Gacho, 122 Ill. 2d 221, 260 (1988).

 We next turn to the judge's reference to sentencing comments made by his father, a Kane County circuit judge, in a 1966 murder case:

 "And in thinking about this case, I also recalled in the summer of 1966 my father before me was called upon to pass sentence in a case which bears substantial resemblance to this case. At that time I was a lawyer of about five years' experience-I'll take that back, that was before I even became a lawyer. But I remembered how he anguished at home over what he should do. And what he did in that case is of no consequence here today, but what he said in relationship to the circumstances in which he found himself at that time applies to the circumstances which I find myself in at this time.

And on July 8th of 1966 in the case of the People of the State of Illinois versus Veronica Crews, case number 66-904, he said in part as follows:

`I take it that it goes without saying that when any man or woman is elected to the bench no one forces them to that position, no one makes them accept that position.

`When one human being accepts that position and signs his oath of office and raises his hands to follow the laws of the constitution of the State of Illinois, he or she alone assumes those burdens, that he or she, the same as I, is the only person responsible for the decisions that he or she gives, the sentences that are handed out. And I am the only person who must live with my own conscience.'

He also stated: `I am here to carry out the laws as I find them as fairly and impartially as I know how within the limits of my own capabilities, but I cannot in my experience recall to mind a more horrible death than is witnessed in this case.' I can say the same thing in this case, particularly when it comes to the manner in which Rachel Renee Dameron died."

By recalling his father's anguish over imposing a death sentence and by comparing the brutality of the 1966 case to that in the defendant's case, the judge aligned himself with his father in imposing the death penalty. Again, the judge looked outside the record. *fn3

In the hearing on the defendant's post-trial motion, the judge said, "[N]othing contained in that [Butterfield] volume or any of the other dozens of volumns [sic] that I have read over the years dealing with matters of criminal jurisprudence *** controlled any portion of my decision in this case." A judge need not give controlling weight to the improper evidence to trigger our reversal; even giving "very little weight" is improper. People v. Simms, 121 Ill. 2d 259, 274 (1988) (victim impact statements). Here, the judge felt compelled to comment upon the Butterfield book and acknowledged its significance to the defendant's case. He also noted the substantial resemblance between the defendant's case and the 1966 case over which his father presided. Additionally, the judge's comments about and quotations from the Butterfield book, together with his references to his father's comments, comprise nearly half of his total sentencing comments. The judge's references to these sources show that he gave some weight to them.

In Rivers, we stated: "When a defendant in a criminal case waives trial by jury and submits his rights and liberty to a judge, that judge is in the identical position of the jury and all the recognized rules for the protection of the defendant's rights apply with equal force. [Citation.] It is axiomatic that any unauthorized information reaching the jury is prejudicial error." Rivers, 410 Ill. at 419. We reach the same conclusion here. "[T]he trial court may search within reasonable bounds for facts in an inquiry relative to aggravation and mitigation. Here, the trial court's search passed such bounds and was improper." Crews, 38 Ill. 2d at 339. Our resolution of this issue alone is sufficient to reverse the defendant's death sentence and remand for a new sentencing hearing.

The trial judge sought alternative avenues of information in his effort to reach the correct result. Unfortunately, that effort led to the error here. Accordingly, in order to remove any suggestion of unfairness, this case should be assigned to a different judge on remand.

It has come to this Court's attention that the trial court erred in adjudicating Dorsey guilty of two counts of felony murder and the underlying offense of robbery. Dorsey was sentenced for each conviction. The underlying offense of robbery is encompassed in the two counts of felony murder. As we stated in Weaver v. State, 763 So. 2d 973, 982 (Ala. 1998), rev'd on other grounds, 763 So. 2d 982 (Ala. 1999), on remand, 763 So. 2d 987 (Ala.Crim.App. 2000):

"`For purposes of former jeopardy, the felony which provides the component necessary to elevate an intentional killing to capital murder is a lesser included offense of the capital offense. Section 13A-5-41; J. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 254 (1982) ("In the ordinary case, lesser included offenses will include some or all lesser degrees of homicide and the lesser degrees of crimes within the definition of the aggravating component. Additionally, lesser included offenses may themselves include lesser offenses supported by the evidence."); E. Carnes, Alabama's 1981 Capital Punishment Statute, 12 Alabama Lawyer 456, 472 (1981). See also Sekou v. Blackburn, 796 F.2d 108, 110 (5th Cir. 1986) ("the Double Jeopardy Clause prohibits prosecution and conviction for both felony murder and the enumerated felony.... The underlying felony is considered a lesser included offense of felony murder and thus the `same offense' for double jeopardy purposes."). Therefore, robbery is a lesser included offense of the capital offense of the capital offense involving murder-robbery.' "Connolly v. State, 539 So. 2d 436, 441 (Ala.Cr.App. 1988)." (Emphasis added).

The trial court is directed to vacate Dorsey's conviction and sentence for robbery. However, Dorsey's convictions for two counts of felony murder for the murders of Cary and Williams are valid convictions and are not affected by this decision.

 In order to file a successive petition for review under 28 U.S.C. § 2255, Garza must demonstrate either: "(1) newly discovered evidence that, if proven and reviewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable." 28 U.S.C. § 2255 (2000); Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001). Garza's sole claim, which falls under the second prong of the test, is based on the Supreme Court's recent decision in Shafer v. South Carolina, 121 S.Ct. 1263 (2001). Shafer clarified the application of the Supreme Court's earlier decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), to South Carolina's death penalty procedures. Relying on Shafer, Garza argues that the trial court's failure to instruct Mr. Garza's sentencing jury that the court was required to sentence him to life without the possibility of parole if the jury did not sentence him to death, violated his rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. However, Shafer does not create a new rule of constitutional law. Neither does it expressly declare the rule retroactively applicable to cases on collateral review or apply the rule in a collateral proceeding. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). In addition, the rule Garza seeks to apply was not "previously unavailable." Garza has already been afforded full review in his original direct appeal of the Simmons claims he seeks to present in this successive motion.

State v. Woods (Wash.) Relief denied on claims that prosecutorial mismanagement unduly delayed the case, jury instructions guilt phase as to the evidence, admission of hearsay,  penalty phase denial of continuance, proportionality review. 

Abshier v. State (Ok.Crim.App.) Relief denied on allegations including: claimed ineffective counsel - first stage, ineffectiveness of counsel - second stage closing, ineffectiveness of counsel - mitigation witnesses, voir dire issues , the severity of abuse, earlier instances of abuse - victim's broken arm, victim-impact evidence presented by grandparents, color photographs of homicide victim's body, same conduct supporting guilt and aggravator, sufficiency of evidence to support each aggravator, claims that aggravators are unconstitutional, meaning of "life without parole", relevance of certain opinions and exhibits, instruction: unreasonable force is "more than that  amount ordinarily used as a means of discipline," vagueness of child murder statute - constitutionality, &  fair trial - accumulation of errors.

State v. Burks (Tenn.Crim.App.) Relief denied on claims that: (1) denial of his motions to suppress; (2) admission of prior bad acts of the defendant; (3) jury instructions regarding prior bad acts; (4) admission of autopsy photographs of the victim; (5) refusal to instruct on the lesser-included offense of reckless homicide; (6) finding that the evidence is sufficient to support a conviction of second-degree murder; and (7) imposition of the maximum sentence of forty years.

Ventura v. State (FL) Relief denied on the following claims: (1) withholding of public records; (2) ineffective assistance of counsel at the pretrial and guilt phases; (3) ineffective assistance of counsel during the penalty phase; (4) violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); (5) ineffective assistance of counsel due to a conflict of interest; (6) newly discovered evidence; (7) trial judge's use of Ventura's silence to find aggravating circumstances; (8) trial court's failure to find mitigating circumstances set out in the record; (9) burden-shifting penalty-phase instructions; (10) violation of Espinosa v. Florida, 505 U.S. 1079 (1992); (11) trial court's use of defendant's silence and declaration of innocence during sentencing to support aggravating circumstances; (12) trial court's failure to find mitigating circumstances supported by the record; (13) burden-shifting jury instructions; (14) improper instruction and imposition of aggravating circumstances; and (15) cumulative error.

State v. Stokes (S.C.) Relief denied on questions of: [1.] Did the trial court err in redacting portions of Stokes' statement to police which indicated Snipes had willingly gone to Branchville in order to kill Doug Ferguson? and [2.] Did the trial court err in limiting Stokes' discussion of religion in his closing statement to the jury?

State v. Stevens (Tenn.Crim.App.) Relief denied on (1) whether it was error to limit the testimony of crime-scene expert Gregg McCrary; (2) whether it was error to exclude evidence which tended to show that Corey Milliken had an independent motive to commit the murders; (3) whether it was error to admit a redacted version of Sandi Stevens' diary; (4) whether the trial court failed to apply the hearsay and other evidentiary rules in an evenhanded manner; (5) whether the hearsay statements of Corey Milliken to Sarah Suttle should have been excluded as not being "in furtherance of the conspiracy"; (6) whether the cumulative effect of all errors at trial violated the Defendant's right to due process of law; (7) whether instructing the jury that it must agree unanimously in order to impose a life sentence and prohibiting it from being told the effect of a non-unanimous verdict violates the Eighth and Fourteenth Amendments; (8) whether the Tennessee Code Annotated section 39-13-204(i)(4) aggravating circumstance fails to narrow the class of death-eligible defendants in violation of the Eighth and Fourteenth Amendments; (9) whether the failure to articulate meaningful standards for proportionality review mandated by Tennessee Code Annotated section 39-13-206 violates the Defendant's right to due process under the Fourteenth Amendment; (10) whether the unlimited discretion vested in the prosecutor as to whether or not to seek the death penalty violates the Eighth and Fourteenth Amendments; and (11) whether the death penalty is imposed in a discriminatory manner in violation of the Eighth and Fourteenth Amendments.

Other Notable Cases (As reported by Findlaw, and other sources) 
Coady v. Vaughn (3rd Cir)28 USC 2253(c)(1) requires a certificate of appealability in a 28 USC 2254 proceeding challenging the constitutionality of a denial of parole because only the "detention complained of" must arise out of process issued by the state court and not the action of the parole board.

Tayborn v. Scott (7th Cir) Inconsistencies in witness testimony on the number of shots fired, the description of defendant's accomplices and the specific name of defendant's accomplices is insufficient to support a claim that prosecution used perjured testimony.

Barnes v. Dormire (8th Cir) State court's decision, that failure to disclose the identity of an informant did not deny petitioner a fair trial, was not objectively unreasonable where two detectives testified adequately to defeat defendant's claim of mistaken identity.

Hawekins v. Comparet-Cassani (9th Cir) Sheriffs may use stun belts on criminal defendants if defendants present a risk to courtroom security, but not if a defendant is merely disruptive.

Patterson v. Stewart (9th Cir) Federal Rule of Civil Procedure 6(a), the general rule for counting time in federal courts, applies to the calculation of the statute of limitations for habeas petitions under the Anti-terrorism Effective Death Penalty Act of 1996.

US v. Odom (11th Cir) Receipt of donations from two out-of-state donors, use of a handful of Bibles and prayer books purchased from out-of-state, and indirect contributions to an out-of-state organization are too passive, too minimal and too indirect to substantially affect interstate commerce under 18 USC 844(i).
 

Featured 
This week's featured article is from the New York Times and comments on the McVeigh execution entitled "History and Timothy McVeigh."  Next week will examine the case of Juan Garza.

In late 1994, Timothy McVeigh wrote a letter to the American Legion. "Does anyone even study history anymore?" he asked. The word "study" was in capital letters, and the sentence closed with three question marks. Mr. McVeigh was 25 years old and only a few months away from entering history himself by blowing up the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people. Today, he is to be put to death for his crime in a federal penitentiary in Terre Haute, Ind., the first person to be executed by the federal government since 1963. Into a saline drip, a technician will inject, in sequence, drugs to induce unconsciousness, stop breathing and cause cardiac arrest. Twenty-four witnesses will attest to whatever they can attest to — the fulfillment of the sentence, the prisoner's manner of dying, the silence of the procedure itself.

 
Mr. McVeigh falsely believed that he had studied American history and that its meaning was embodied in the bomb blast he set off at 9:03 a.m. on April 19, 1995. He had, in his own mind, stepped out of the whirlwind of pamphlets and diatribes — the world of demented gun-show prophets and paranoid fantasies like "The Turner Diaries," from which he learned his history — and into the whirlwind of action. As a very young man, something gave Mr. McVeigh the conviction that he understood the irreducible logic of history, when, in fact, all he could see were the crumbs of paranoid propaganda that he swept together for himself. That something — the key to his reading of America — was the gun. He always carried one. All other rights, to Mr. McVeigh, were secondary to that right. To him, it defined the behavior of the federal government and the obligations of private citizens. No other relationship, no other ethic mattered. 

We have had six years to look into Mr. McVeigh's face. What his eyes show us again and again is the sight of a man who is lost in his own delusional convictions. Many people, especially those who knew him as a boy, have insisted on his politeness, his self-control, on the normal person they knew within him. Nearly everyone who has thought about him has tried, one way or another, to imagine the path that took him from his boyhood in Pendleton, a small town in western New York, to his death in Terre Haute. What is striking about Mr. McVeigh, however, is how short that path really was. He foreclosed on history right out of high school, converting himself into a survivalist, obsessing about guns, working out a way of life that led, in the words of the poet William Carlos Williams, to a "final and self-inflicted holocaust." The Army did not form Mr. McVeigh. The gulf war did not alienate him. He left the military only a little more completely who he was than when he joined it. He was his own invention, formed in the vacuum of a broken family, seduced by an ideal of militant self-control, tutored only in the infallible but utterly fallacious reasoning of outcasts devoted to overturning the government in pursuit of rights they already possessed.

We are left to wonder what chance event might have turned Mr. McVeigh into one of us, or perhaps into one of the merely embittered men who taught him so much about hatred but never chose to act upon it. Instead, he built a bomb in a truck, parked it in front of a building that to him symbolized the government role at Ruby Ridge and Waco, and then blew it up. It was an act of supreme cowardice, veiled, in Mr. McVeigh's mind, by the sterile language of warfare. 

What makes his act more frightening, even now, is the realization that the Oklahoma City bombing was a work of vengeance by a man who had never been wronged. He had gone to Waco while the siege of the Branch Davidian compound was still going on, and he had done there what "The Turner Diaries" encouraged him to do — imagine himself on the inside, fighting the F.B.I. and the Bureau of Alcohol, Tobacco and Firearms. He could imagine that, but he could not imagine settling down, working, marrying, becoming "domesticated," as he put it. The gun he always carried dictated the role he played in his own self-dramatization. He was politically naïve, a cold-blooded murderer, a slow suicide, but a victim of only one thing, the power he felt when he thought about how much harm he could do. 

Despite the administrative fumblings of the F.B.I., Mr. McVeigh's guilt is as certain as certain can be. There are no racial overtones to his conviction, no questions about his mental capacity or the quality of his legal representation. He has expressed no remorse and, since his trial, has only damned himself further in the eyes of the American public with his brutally unfeeling comments about the Oklahoma City bombing. It remains to be seen whether Mr. McVeigh will have an afterlife in the martyrology of the survivalist fringe. But to him, this execution is the final moment in the personal martyrdom he has been imagining for years, the very act he expects from the federal government. 

Some will say that there are at least 168 reasons to execute Timothy McVeigh. His death, foregone though it is by now, will redeem none of those lives. As a society, we must value life more than he valued the lives he destroyed. That is a faith that Timothy McVeigh was unable to reach but which still lies within our power.

Another Case of Innocence
Former death row inmate Joaquin Martinez was acquitted of all charges today (6/6/01) at his retrial for a 1995 murder in Florida.  Spanish Prime Minister Jose Maria Aznar welcomed the verdict, saying: "I'm very happy that this Spaniard was declared not guilty.  I've always been against the death penalty and I always will be."  Aznar will be meeting with President Bush next Tuesday in the first stop of Bush's European 0tour.  Both the Pope and the King of Spain had tried to intervene on Martinez's behalf.  He is a Spanish national.  Martinez's earlier conviction was overturned by the Florida Supreme Court because of improper statements by a police detective at trial.  The prosecution did not seek the death penalty in Martinez's second trial.  (Tampa Bay Tribune (AP) 6/6/01).  Florida has had more death row inmates exonerated and freed than any other state since the reinstatement of the death penalty.  See also Innocence.

Court Rules Death Penalty Applies in Puerto Rico
A federal appeals court in Boston held that the federal death penalty applies in Puerto Rico.  The ruling overturns a district court decision last year that held the death penalty could not apply because citizens of Puerto Rico cannot vote in Congressional elections, and thus have no voice on the issue.  See also, international death penalty.

 New Voices: Former CIA agent believes Death Penalty Hurts Anti-Terrorism Efforts
In a recent Wall Street Journal op-ed, Milt Bearden, a former CIA station chief in Pakistan and Sudan, expressed his concern about the impact the death penalty could have on future extraditions:

The administration seems to understand that, almost to a man, the convicted terrorists serving sentences in federal prisons were brought to American justice with the assistance of friendly nations, sometimes acting boldly and just barely within the limits of their own laws.
   That reality, inevitably, brings into question the sentencing hearings currently underway in New York. Put bluntly, the death penalty for these murderers might not be such a good idea. . . .  It might not be a good idea because it will ultimately work against a process of international teamwork that has been so successful thus far.
   ...[T]hree of those convicted in New York last week were delivered to our courts by Kenya and South Africa, also without formal extradition. Several more terrorists linked to these same crimes are now sitting in European jails awaiting extradition. Bringing the death penalty into play could complicate, or limit, this vital cooperation in the future.

(Wall Street Journal op-ed, 6/4/01) See also, New Voices..
 Justice Department Releases New Race Data as Federal Executions Near
      The Justice Department has released a study five days before the first federal execution in 38 years claiming that there is no racial bias in federal capital prosecutions.  The report is a follow-up to a study released last year by the Justice Department that found racial and geographic disparities in the federal death penalty.  James Alan Fox, a criminologist at Northeastern University, said that the survey does little to answer the basic question of bias.  "The prosecutorial decision-making here is what needs to be reviewed," Fox said.  "The problem may well be at the front end, and this seems to ignore that."  (Washington Post, 6/7/01) 
     Criticism of the new study also came from U.S. Senator Russ Feingold (D-Wisc.), who stated: 

The supplemental report released yesterday lacks credibility:  It is a case of "we looked at ourselves and there's no evidence of bias."  Instead of completing a thorough analysis of the racial and regional disparities with outside experts, as outlined by Attorney General Reno, Attorney General Ashcroft collected the additional data - also ordered separately by Attorney General Reno - threw in some statements that there is no evidence of bias and then simply released it as a supplemental report.  This report does not dig behind the raw data in the way that an in-depth research and analysis could do.

Read Senator Feingold's complete statement, the new Justice Department study and the September 2000 study.  See also, federal death penalty.

Another State Legislature Passes Bill to Ban Execution of Mentally Retarded; Awaits Governor's Signature
     The Connecticut Legislature passed a bill to prohibit the imposition of the death penalty on a defendant who suffers from mental retardation.  The bill, which was approved by the state Senate on June 5, also provides for a study of the state's death penalty.  The study will examine whether there are disparities in prosecutors' decisions to seek the death penalty based on a defendant's or victim's race or economic status.  The bill now awaits final approval by Governor John G. Rowland.  (Hartford Courant, 6/6/01) 
     Earlier this year, Arizona's Governor signed a bill to ban the execution of those with mental retardation, and similar bills are awaiting the governor's signature in Florida, Missouri and Texas.  If these three bills and Connecticut's are signed, the total number of states prohibiting such executions will rise to 18.  See also, Mental retardation and the death penalty; Press Release regarding mentally retarded Arizona inmate still facing execution. 

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.

As always, our thoughts and prayers go out to the families of the victims of violent crime, the families of those incarcerated, and the men & women on death row both here in the states and around the world.

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
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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 21

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 delayed.