Featured this week is an analysis of the Texas Fair Defense Act.  The Act can be found at http://www.capitaldefenseweekly.com/txfairdefact.html.  The analysis can be found at http://www.capitaldefenseweekly.com/txfairdefanalysis.html.  A germane snippet of the Act's analysis by Rodney Ellis of the Texas Senate Research Center is offered below.

Since last issue one person domestically has been executed:

June 19   Juan Raul Garza       Federal

June 26   Miguel Richardson       Texas 
June 27   Jim Lowery                Indiana 

This issue is located at http://www.capitaldefenseweekly.com/archives/010625.htm. 

Supreme Court
No cases noted this edition.

Captial Case Relief Granted
No cases noted this edition.

Captial Cases Remanded for Further Adjudication
Matheney v. Anderson  (7th Cir) Remand ordered  for an evidentiary hearing on issues related to Matheney's alleged incompetency to stand trial and his lawyer's performance on issues related thereto.

Under the section of the Indiana Criminal Code at issue, an Indiana trial court is required to hold a competency hearing before submitting the case to the jury if, at any time, it has "reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense." Ind. Code sec. 35-36-3-1(a). Matheney argues that he received ineffective assistance of counsel because his defense team did not pursue his request for a hearing on his competency to stand trial prior to the commencement of trial. To establish a claim for ineffective assistance of counsel, a petitioner must establish that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) the attorney's deficient performance actually prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts deferentially review defense counsel's performance under the first prong, presuming reasonable judgment unless the factual record rebuts such a presumption. Strickland, 466 U.S. at 689. With regard to the second prong, the prejudice element, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

From the record before us, we cannot authoritatively state that defense counsel performed reasonably under Strickland's first prong when, for reasons unexplained, they allowed Matheney to proceed to trial without first obtaining the hearing on his competency to stand trial that they had previously filed with the court. The record is unclear, at best, as to why defense counsel, after filing a petition requesting that the trial court order independent psychiatrists to perform both a competency evaluation and a sanity examination, failed to follow through with the competency request when it became apparent that the trial court's order asked Drs. Batacan and Berkson for opinions solely related to the question of Matheney's sanity at the time of his offense. An adequate record is imperative to properly evaluate ineffective assistance claims. United States v. Draves, 103 F.3d 1328, 1335 (7th Cir. 1997). An evidentiary hearing must therefore be held to determine whether trial counsel performed reasonably with respect to the issue of Matheney's competency to stand trial.

 As to the second prong of Strickland, Matheney argues that there is a reasonable probability he would have been found incompetent to stand trial and would not have been convicted if he had been allowed to proceed with a hearing on his competency to stand trial. A defendant who is tried and convicted of a crime while legally incompetent has been denied his due process right to a fair trial. Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966). The Supreme Court has held that if a state fails to observe its statutorily prescribed procedures aimed at testing whether a defendant is competent to stand trial, then that defendant's right to procedural due process has been violated. Drope, 420 U.S. at 172. Certainly, a question has been raised as to Matheney's mental capacity to stand trial by Dr. Morrison's deposition testimony, which reads in pertinent part:

He [Matheney] was not rational. He continued through the time that I had seen him to believe that this was a conspiracy on the part of Michael Barnes and Lisa Bianco, that he would not be in the position if it had not been for them, that those tapes were the only thing that would exonerate him. I think I was asked a question about a session where those were the primary thoughts that continued with him. He had no concept in my opinion of what was going on as far as his role in the trial was concerned. To him the only thing that was important and the only thing that this trial was going to do was to prove that he had not threatened Lisa Bianco because those tapes could be available.

He was not capable of [rationally consulting with trial counsel] because the delusion that he maintained interfered with any ability to look at the reality of what he needed to go through as far as the trial was concerned, what the charges were. Everything to him remained and remains a conspiracy. (emphasis added).

Based upon the legitimate questions raised in the record relating to Matheney's competency to stand trial, we are of the opinion that Matheney was entitled to and should have received an evidentiary hearing on his petition. We thus remand Alan Matheney's case to the district court to hold an evidentiary hearing on three issues raised in his appellate brief surrounding his competency to stand trial: (1) whether Matheney was competent to stand trial in 1990; (2) whether Matheney's counsel were ineffective when they failed to pursue the initial request for a competencyhearing; and (3) whether the state trial court was obligated to hold a competency hearing sua sponte. See Lewis v. Lane, 822 F.2d 703 (7th Cir. 1987).

The district court will have access to the medical records from three doctors (Berkson, Batacan, and Morrison) who examined Matheney in 1989, including, but not limited to, psychiatric evaluations both before and after the commission of his crimes. In addition, the district court has the testimony from Matheney's criminal defense counsel and civil counsel that is already in the record. Finally, as the district court enjoys broad discretion in fashioning the scope of the hearing, Wright v. Gramley, 125 F.3d 1038, 1044 (7th Cir. 1997), it may well desire to consider any additional information that would assist the court.*fn16

State Captial Cases Relief Denied 
State v. Hooks  (Ohio) Application for reopening appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel denied where claimant fails to demonstrate that his allegations of ineffectiveness of appellate counsel have any merit 

Commonwealth v. Rivera (PA) Relief denied on claims, amongst others,  that:  the shooting was an accident;  the trial court erred in failing to sever his trial from his co-defendants;  the trial court should have severed his trial from his co-defendants because the admission of his co-defendant's confession violated his confrontation clause; and,  the trial court erred when it instructed the jury on "carjacking" rather than the formal statutory term "robbery of a motor vehicle." 

Ex Parte Dobyne (net unavailable) (Ala.) Post-conviction petition alleging chiefly juror misconduct (jury foreperson not disclosing of prior relationship with the condemned) and ineffective assistance of counsel, amongst other claims, affirmed.

New York State Association of Criminal Defense Lawyers v. Kaye (N.Y.)  Affirming lowering of counsel 's rate in death penalty cases from lead counsel at $175 & associate counsel at $150 to lead counsel at $100 for services before the prosecution announces its intent to seek the death penalty and $125 for post- notice representation, as well as, reducing the associate counsel rate to $75 pre-notice and $100 post-notice.

People v. Cunningham (CA) The trial court's conducting a death-penalty specific voir dire prior to guilt phase of trial did not unduly prejudice the defendant.

Solomon v. Texas (Tx Crim App) Evidence that defendant said he intended to "jack" the victim was sufficient evidence to connect defendant to the robbery and placing him at the scene of capital murder.

Other Notable Cases (As reported by Findlaw, and other sources) 
Cruz v. Miller (2nd Cir) A state court's determination that pointing a gun at a suspect and saying "Police! Don't move! Put your hands up!" is not custody for Miranda purposes is a reasonable application of clearly established
Supreme Court law.

Moore v. Morton (3rd Cir) In rape case, prosecutor's closing remark that defendant had preference for women of victim's race based on race of defendant's wife and argument that because his wife was nursing a child defendant had an aroused sexual appetite may have unduly prejudiced the trial.

Martinez v. Johnson (5th Cir) Ineffective assistance of counsel during state habeas proceedings does not excuse failure to raise issue of ineffectiveness of trial counsel because the client bears the risk of attorney error in proceedings where there is no constitutional right to representation.

Doe v. Bowles (6th Cir) Appellate courts lack jurisdiction to review denial of a motion for summary judgment on the grounds of qualified immunity where defendants refuse to stipulate to material facts most favorable to plaintiff.

Oniffer v. Tyszkiewicz (6th Cir)Although some circumstances of re-sentencing may implicate due process rights of prisoners because of the expectation of finality of judgments, in this case the Michigan appellate court did not violate existing federal law in reversing the sentencing error of the trial court.

Garza v. Lappin (7th Cir) Decisions by the Inter-American Commission on Human Rights are not binding obligations on member counties, so its recommendation that petitioner not be executed is not a substantial ground upon which to grant habeas relief under 28 USC 2255.

Carter v. Kemna (8th Cir) State court's refusal to reverse conviction based on improper exclusion of an alternate juror was objectively reasonable, and could not affect the makeup of the jury that convicted defendant where the alternate juror never deliberated on the verdict.

Gumangan v. United States (8th Cir) Where petitioner forged and negotiated some checks by herself, without her alleged abuser's help, her claim that her attorney failed to advised her about duress, coercion, and battered women's syndrome defenses does not amount to ineffective assistance of counsel.

Tillema v. Long   (9th Cir) The tolling provisions of the AEDPA apply during the pendency of a state application challenging the pertinent judgment, even if the application does not include a claim later raised in the federal habeas
petition.

Hasan v. Galaza (9th Cir) Statute of limitations for filing habeas petition for ineffective assistance of counsel alleging failure to investigate conversation between prosecution witness and juror begins to run upon defendant's discovery of the romantic relationship between witness and juror.

Reynolds v. Chapman (11th Cir) While multiple public defenders representing multiple co-defendants does not qualify as a conflict of interest, appointment of one public defender to represent two co-defendants in post-trial proceedings may.

Featured 
Featured this week is an analysis of the Texas Fair Defense Act.  The Act can be found at http://www.capitaldefenseweekly.com/txfairdefact.html.  The analysis can be found at http://www.capitaldefenseweekly.com/txfairdefanalysis.html.

Senate Research CenterS.B. 7
By: Ellis, Rodney

Art. 26.04.  New heading:  PROCEDURES FOR APPOINTING COUNSEL.  (a)
Requires the judges of the county courts, statutory county courts, and
district courts trying criminal cases in each county, by local rule, to
adopt and publish written countywide procedures for timely and fairly
appointing counsel for an indigent defendant in the county arrested for or
charged with a misdemeanor punishable by confinement or a felony.  Requires
the procedures to be consistent with this article and Articles 1.051,
15.17, 26.05, and 26.052.  Requires a court to appoint an attorney from a
public appointment list using a system of rotation, unless the court
appoints an attorney under Subsections (f), (h), or (i).  Requires the
court to appoint attorneys from among the next five names of the
appointment list in the order in which the attorney's names appear on the
list, unless the court makes a finding of good cause on the record for
appointing an attorney out of order.  Requires an attorney who is not
appointed in the order in which the attorney's name appears on the list to
remain next in order on the list. 

  (b)  Sets forth conditions for the procedures adopted under Subsection
(a). 

(c)  Requires a court or the courts' designee, whenever the court or the
courts' designee authorized under Subsection (b) to appoint counsel for
indigent defendants in the county determines that a defendant charged with
a felony or a misdemeanor punishable by confinement, rather than
imprisonment, is indigent or that the interests of justice require
representation of a defendant  in a criminal proceeding, to appoint one or
more practicing attorneys to defend the defendant in accordance with this
subsection and the procedures adopted under Subsection (a).  Requires the
court or the courts' designee, under certain conditions, to make an effort
to appoint an attorney who is capable of communicating in a language
understood by the defendant. 

(d)  Requires a public appointment list from which an attorney is appointed
as required by Subsection (a) to contain the names of qualified attorneys,
who meet certain specific criteria. 

 (e)  Requires certain judges in certain counties, by formal action, to
establish a public appointment list of attorneys qualified to provide
representation in the county in misdemeanor cases punishable by confinement
and to specify the objective qualifications necessary for an attorney to by
included on the list.  Authorizes certain judges in certain counties, by
formal action, to establish, if determined by the judges to be appropriate,
more than one appointment list graduated according to the degree of
seriousness of the offense and the attorney's qualifications. 

Requires certain judges in certain counties, by formal action, to establish
a public appointment list of attorneys qualified to provide representation
in felony cases in the county and to specify the objective qualifications
necessary for an attorney to be included on the list.  Authorizes certain
judges in certain counties, by formal action, to establish, if determined
by the judges to be appropriate, more than one appointment list graduated
according to the degree of seriousness of the offense and the attorney's
qualifications. 

(f)  Authorizes the court or the courts' designee, in a county in which a
public defender is appointed under Article 26.044, to appoint the public
defender to represent the defendant in accordance with guidelines
established for the public defender. 

(g)  Provides that in a countywide alternative program for appointing
counsel for indigent defendants in criminal cases is established by a
formal action in which twothirds of the judges of the courts designated
under this section vote to establish the alternative program.  Authorizes
an alternative program for appointing counsel in misdemeanor and felony
cases to be established in the manner provided by this subsection by the
judges of the county courts, statutory county courts, and district courts
trying criminal cases in the county.  Authorizes an alternative program for
appointing counsel in misdemeanor cases to be established in the manner
provided by this subsection by the judges of the county courts and
statutory county courts trying criminal cases in the county.  Authorizes an
alternative program for appointing counsel in felony cases to be
established in the manner provided by this subsection by the judges of the
district courts trying criminal cases in the county.  Sets forth conditions
for the establishment and administration of an alternative program in a
county. 

(h)  Authorizes a court or the courts' designee, in a county in which an
alternative program for appointing counsel is established as provided by
Subsection (g) and is approved by the presiding judge of the administrative
judicial region, to appoint an attorney to represent an indigent defendant
by using the alternative program.  Prohibits the judges of the courts
establishing an alternative program under Subsection (g) from obligating
the county by contract or by the creation of new positions or the creation
or adoption of new programs that cause an increase in expenditure of county
funds, without the approval of the commissioners court. 

(i)  Authorizes a court or the courts' designee required under Subsection
(c) to appoint an attorney to represent a defendant accused of a felony to
appoint an attorney from any county located in the court's administrative
judicial region. 

(j)  Reletters existing text of Subsection (a) as Subsection (j), as
follows.  Requires an attorney appointed under this article, rather than
subsection, to make every reasonable effort to contact the defendant not
later than 24 hours after the attorney is appointed and to interview the
defendant as soon as practicable after the attorney is appointed and
represent the defendant until charges are dismissed, the defendant is
acquitted, appeals are exhausted, or the attorney is relieved of the
attorney's duties by the court or replaced by other counsel for legal cause
stated on the record. 

 (k)  Authorizes a court to replace an attorney who violates Subsection
(j)(1) with other counsel.  Authorizes a majority of the judges of the
county courts and statutory county courts or the district courts, as
appropriate, trying criminal cases in the county to remove from
consideration for appointment an attorney who intentionally or repeatedly
violates Subsection (j)(1). 

(l)  Requires procedures adopted under Subsection (a) to include procedures
and financial standards for determining whether a defendant is indigent.
Requires the procedures and standards to apply to each defendant in the
county equally, regardless of whether the defendant is in custody or has
been released on bail. 

(m)  Reletters existing text of Subsection (b) as Subsection (m) as
follows.  Authorizes, rather than requires, the court or the courts'
designee, in determining whether a defendant is indigent, to consider the
defendant's income, source of income, assets, property owned, outstanding
obligations, necessary expenses, the number and ages of dependents, and
spousal income that is available to the defendant.  Deletes existing text
regarding the defendant's posting of bail.  Prohibits the court or the
courts' designee from considering whether the defendant has posted or is
capable of posting bail, except to the extent that it reflects the
defendant's financial circumstances as measured by the considerations
listed in this subsection.  Deletes existing text regarding the denial of
appointed counsel. 

Reletters existing text of Subsections (c) and (d) as Subsections (n) and
(o) making nonsubstantive changes. 

(p)  Reletters existing text of Subsection (e) as Subsection (p) as
follows.  Provides that a defendant who is determined by the court to be
indigent is presumed to remain indigent for the remainder of the
proceedings in the case unless a material change in the defendant's
financial circumstances occurs.  Authorizes the defendant, the defendant's
counsel, or the attorney representing the state, if there is a material
change in financial circumstances after a determination of indigency or
nonindigency is made, to move for reconsideration of the determination. 

  Reletters existing text of Subsection (f) as Subsection (q).

(r)  Prohibits a court from threatening to arrest or incarcerate a person
solely because the person requests the assistance of counsel. 

SECTION 7.  Amends Article 26.044, Code of Criminal Procedure, as follows:

 Art. 26.044.  New heading:  PUBLIC DEFENDER.  (a)  Defines "public
defender." 

(b)  Reletters existing text of Subsection (a) as Subsection (b), and
amends as follows. Authorizes the commissioners court of any county, on
written approval of a judge of a county court, statutory county court, or
district court trying criminal cases in the county, to appoint a
governmental entity or nonprofit corporation, rather than one or more
attorneys, to serve as a public defender.  Deletes existing text regarding
the number of county and district courts.  Authorizes the commissioners
courts of two or more counties to enter into written agreement to jointly
appoint and fund a regional public defender.  Deletes existing text
regarding the public defender serving at the pleasure of the commissioners
court.  Requires the commissioners court or the commissioners courts, in
appointing a public defender under this subsection, to specify or to
jointly specify, if appointing a regional public defender certain
information. 

(c)  Requires the commissioners court or commissioners courts, before
appointing a  public defender under Subsection (b), to solicit proposals
for the public defender.  Sets forth information the proposal must include. 

(d)  Requires the commissioners court or commissioners courts, after
considering each proposal for the public defender submitted by a
governmental entity or nonprofit corporation, to select a proposal that
reasonably demonstrates that the proponent will provide adequate quality
representation for indigent defendants in the county or counties. 

(e)  Prohibits the total cost of the proposal from being the sole
consideration in selecting a proposal. 

(f)  Reletters existing text of Subsection (b) as Subsection (f), and
amends as follows. Requires the governmental entity or nonprofit
corporation, to be eligible for appointment as a public defender, to be
directed by a chief public defender who meets certain criteria. 

(g)  Reletters existing text of Subsection (c) as Subsection (g), and
amends as follows. Provides that a public defender is entitled to receive
funds for personnel costs and expenses incurred in operating as a public
defender in amounts fixed by the commissioners court and paid out of the
appropriate county fund, or jointly fixed by the commissioners courts and
proportionately paid out of each appropriate county fund if the public
defender serves more than one county.  Deletes existing text regarding an
annual salary. 

(h)  Authorizes a public defender to employ attorneys, licensed
investigators, and other personnel necessary to perform the duties of
public defender as specified by the commissioners court or commissioners
courts under Subsection (b)(1). 

(i)  Reletters existing text of Subsection (d) as Subsection (i), and
amends as follows. Prohibits the chief public defender or an attorney
employed by a public defender from engaging in the private practice of
criminal law, or accepting anything of value not authorized by this article
for services rendered under this article. 

(j)  Authorizes a public defender to refuse an appointment under Article
26.04(f) if certain conditions exist. 

(k)  Reletters existing text of Subsection (e) as Subsection (k), and
amends as follows. Authorizes the judge to remove a public defender who
violates a provision of Subsection (i), rather than Subsection (d) of this
article. 

(l)  Deletes existing text of Subsections (f).  Reletters existing text of
Subsection (g) as Subsection (l). 

(m)  Reletters existing text of Subsection (h) as Subsection (m), and
amends as follows. Provides that if it is necessary that an attorney other
than a public defender be, rather than is appointed, the attorney is
entitled to the compensation provided by Article 26.05.  Deletes existing
text of Subsections (i) - (j). 

SECTION 8.  Amends Article 26.05, Code of Criminal Procedure, as follows:

(a)  Requires a counsel, other than an attorney with a public defender,
rather than public defender's office, appointed to represent a defendant in
a criminal proceeding, including a habeas corpus hearing, to be paid a
reasonable attorney's fee for performing certain services, based on the
time and labor required, the complexity of the case, and the experience and
ability  of the appointed counsel. 

(b)  Requires all payments made under this article to be paid in accordance
with a schedule of fees adopted by formal action of the judges of the
county courts, statutory county courts, and district courts trying criminal
cases in each county.  Requires a copy of the schedule, on adoption of a
schedule of fees as provided by this subsection, to be sent to the
commissioners court of the count.  Deletes existing text regarding certain
counties adoption of a schedule. 

(c)  Requires each fee schedule adopted to state, rather than to include,
reasonable fixed rates or minimum and maximum hourly rates, taking into
consideration reasonable and necessary overhead costs and the availability
of qualified attorneys willing to accept the stated rates, and to provide a
form for the appointed counsel to itemize, rather than to report,  the
types of services performed.  Prohibits payment from being made under this
article, rather than section, until the form for itemizing, rather than
reporting, the services performed is submitted to the judge presiding over
the proceedings and the judge approves the payment.  Requires the judge, if
the judge disapproves the requested amount of payment, to make written
findings stating the amount of payment that the judge approves and each
reason for approving an amount different from the requested amount.
Authorizes an attorney whose request for payment is disapproved to appeal
the disapproval by filing a motion with the presiding judge of the
administrative judicial region.  Requires the presiding judge of the
administrative judicial region, on the filing of a motion, to review the
disapproval of payment and determine the appropriate amount of payment.
Authorizes the presiding judge to conduct a hearing in reviewing the
disapproval. Requires the commissioners court, not later than the 45th day
after the date the application for payment of a fee is submitted under this
article, to pay to the appointed counsel the amount approved by the
presiding judge of the administrative judicial region and that is in
accordance with the fee schedule for that county.  Deletes existing text
regarding approval by the court. 

(d)  Requires a counsel in a noncapital case, other than an attorney with a
public defender, appointed to represent a defendant under this code to be
reimbursed for reasonable and necessary expenses, including expenses for
investigation and for mental health and other experts.  Requires expenses
incurred with prior court approval to be reimbursed in the same manner
provided for capital cases by Articles 26.052(f) and (g).  Requires
expenses incurred without prior court approval to be reimbursed in the
manner provided for capital cases by Article 26.052(h). 

(e)  Authorizes a majority of the judges of the county courts and statutory
county courts of the district courts, as appropriate, trying criminal cases
in the county to remove an attorney from consideration for appointment if,
after a hearing it is shown that the attorney submitted a claim for legal
services not performed by the attorney 

 (f)  Reletters existing text of Subsection (d) as Subsection (f).

(g)  Reletters existing text of Subsection (e) as Subsection (g).  Requires
the court to order the defendant to pay during the pendency of the charges
or, if convicted, as court costs the amount that it finds the defendant is
able to pay if the court determines that a defendant has financial
resources that enable him to offset in part or in whole the costs of the
legal services provided, including any expenses and costs. 

(h)    Reletters existing text of Subsection (f) as Subsection (h).  Makes
a nonsubstantive citation change. 

SECTION 9.  Amends Article 26.052, Code of Criminal Procedure, by amending
Subsections (d) and (e) and adding Subsection (m), as follows: 

(d)  Requires the local selection committee (committee) to adopt standards
for the qualifications  of attorneys to be appointed to represent indigent
defendants in capital cases in which the death penalty is sought.  Deletes
existing text regarding appointment to death penalty cases.  Sets forth
requirements of an attorney appointed to a death penalty case the standards
must include. Requires the committee to prominently post the standards in
each district clerk's office in the region with a list of attorneys
qualified for appointment.  Requires an attorney, not later than the second
anniversary of the date the attorney is placed on the list of attorneys
qualified for appointment in death penalty cases and each year following
the second anniversary, to present proof to the committee that the attorney
has successfully completed the minimum continuing legal education
requirements of the State Bar of Texas, including a course or other form of
training relating to the defense of death penalty cases.  Requires the
committee to remove the attorney's name from the list of qualified
attorneys if the attorney fails to provide the committee with proof of
completion of the course or other training. 

(e)  Requires the presiding judge of the district court in which a capital
felony case is filed to appoint two attorneys, at least one of whom must be
qualified under this chapter, rather than counsel, to represent an indigent
defendant as soon as practicable after charges are filed, unless the state
gives notice in writing that the state will not seek the death penalty.
Deletes existing text regarding appointment for death penalty cases. 

(m)  Requires the committee to annually review the list of attorneys posted
under Subsection (d) to ensure that each listed attorney satisfies the
requirements under this chapter. 

SECTION 10.  Amends Article 102.075(h), Code of Criminal Procedure, to
require the comptroller to deposit money received under this article to the
credit of certain specific accounts in the general revenue fund according
to certain specified percentages, including to the fair defense account at
13.98 percent. 

SECTION 11.  Amends Chapter 51, Family Code, by adding Section 51.101, as
follows: 

Sec. 51.101.  APPOINTMENT OF COUNSEL PLAN.  (a)  Requires the juvenile
board of each county to adopt a plan containing certain information and
with certain functions. 

  (b)  Sets forth criteria for a plan adopted under Subsection (a).

SECTION 12.  Amends Section 71.001, Government code, to define "ad hoc
assigned counsel program," "contract defender program," "crime,"
"defendant," "indigent defense support services," "juvenile offense," and
"public defender." 

SECTION 13.  Amends Chapter 71C, Government Code, by adding Section
71.0351, as follows: 

Sec. 71.0351.  INDIGENT DEFENSE INFORMATION.  (a)  Requires a copy of all
formal and informal rules and forms that describe the procedures used in
the county to provide indigent defendants with counsel in accordance with
the Code of Criminal Procedure, including the schedule of fees, not later
than January 1 of each year, in each county, to be prepared and sent to the
Office of Court Administration (OCA) of the Texas Judicial System (TJS) in
the form and manner prescribed by OCA.  Requires the local administrative
district judge in each county, or the person designated by the judge,
except as provided by Subsection (b), to prepare and send to OCA a copy of
all rules and forms adopted by the judges of the district courts trying
felony cases in the county.  Requires the local administrative statutory
county court judge in each county, or the person designated by the judge,
to prepare and send to OCA a copy of all rules and forms adopted by the
judges of the county courts and statutory courts trying misdemeanor cases
in the county. 

(b)  Requires the local administrative judge serving the courts having the
jurisdiction over offenses with the highest classification of punishment,
or the person designated by the judge, to prepare and send to OCA a copy of
the rules and forms if the judges of  two or more levels of courts adopt
the same formal and informal rules and forms as described by Subsection
(a). 

(c)  Requires the county auditor, or the person designated by the
commissioners court if the county does not have a county auditor, in each
county, to prepare and send to OCA in the form and manner prescribed by the
office and on a monthly, quarterly, or annual basis, with respect to legal
services provided in the county to indigent defendants during each fiscal
year, certain specific information. 

(d)  Requires each district and county clerk, as a duty of office, to
cooperate with the county auditor or the person designated by the
commissioners court and the commissioners court in retrieving information
required to be sent to OCA under this section and under a reporting plan
developed by the Task Force on Indigent Defense under Section 71.061(a). 

(e)  Requires OCA, on receipt of information required under this section,
to forward the information to the Task Force on Indigent Defense. 
 

Prominent Citizens' Group Voices Concern About Garza Execution; Justice Department Orders Further Study of Federal Death Penalty 
     Citizens for a Moratorium on Federal Executions (CMFE), a Washington-based group of prominent citizens concerned about the death penalty, criticized the recent execution of federal death row inmate Juan Raul Garza.  Prior to the execution, the group called on President Bush to halt federal executions until questions about its disparate application could be resolved.  Garza - a Hispanic man convicted in Texas - was executed on June 19, 2001, despite serious questions about whether the federal death penalty is racially and geographically biased. "Mr. Garza's execution should have been delayed to permit the full investigation of the troubling evidence that mars the federal death penalty process,Ó CMFE said in a recent press release. 
      Last year, a Justice Department study found racial and geographic bias in the federal death penalty, but a recent follow-up report under Attorney General Ashcroft concluded that there was no such bias (see below).  The report was widely criticized, and Senator Russell Feingold (D-Wisconsin) chaired a Senate judiciary sub committee hearing to address the issue.  Following the hearing, the Justice Department announced that a more comprehensive follow-up study of the federal capital punishment system would be completed by the National Institute of Justice.  The comprehensive review will attempt to explain the current racial and geographic statistical disparities in cases where federal prosecutors seek the death penalty. 
 (CMFE Press Release, 6/19/01 and New York Times, 6/14/01)  Read the CMFE Press Release, the new Justice Department study, the September 2000 study, and testimony from the Senate hearing,   See also, Federal death penalty. 

Colosseum Lights Up for Chile 
The Colosseum in Rome was lit up on June 19 to celebrate Chile's abolition of the death penalty.  The historic arena has become the international symbol of opposition to the death penalty and, as part of an international campaign against capital punishment, is bathed in golden light whenever a country abolishes the death penalty or whenever a death row inmates has his or her sentence commuted.  Sponsors of the Colosseum campaign include the Vatican, the United Nations, the city of Rome, Amnesty International, Hands off Cain, and the Community of Sant' Egidio.  This week's golden illumination marks the first time this year the Colosseum has been lit - the arena was lit up 14 times last year. (Associated Press, 6/19/01) See also, International death penalty 

Council of Europe Leader Denounces U.S. Death Penalty 
      At the first World Congress Against the Death Penalty, Walter Schwimmer, the secretary-general of the Council of Europe, denounced the United States' use of capital punishment.  As head of the Council, Schwimmer said the death penalty in the U.S. was ineffectual against crime and a morally wrong choice that has put innocent people on death row.   In his opening remarks, Schwimmer cited the case of Joaquin Jose Martinez, a Spanish national who was recently acquitted after spending over 3 three years on Florida's death row.  The Congress, a three-day conference in Strasborg, France, was organized by the 24-member Council of Europe, the continent's biggest human rights organization.  (Associated Press, 6/21/01)  See also, International death penalty 

DNA Exoneration Changes Former Detective's Mind About Capital Punishment 
       Mark Schlein, a former detective who helped secure four murder convictions against Jerry Frank Townsend in the 1970s, recently spoke out against the death penalty.  Although Schlein was a death penalty supporter when he worked on the Townsend case, he changed his mind after recent DNA tests pointed to another suspect and Broward County, Florida, prosecutors decided to  drop the murder charges against Townsend.  "This is a case that shows the criminal justice system in America is not perfect.  We've all seen heinous crimes.  But in a perfect world -- and it's not a perfect world -- a big part  of me says the state of Florida ought not be in the business of killing people," said Schlein, who is now an assistant attorney general.  "I'm deeply grateful he's alive today so he can walk free from jail."  Townsend was convicted in the 1980s based almost entirely on his confession, but his lawyers note that Townsend has an IQ of 51 and could have been coached by police.  (Sun-Sentinel, 6/2/01)  See also, New Voices and Innocence. 

 Nearly 1,300 Executions Reported This Year 
     Since January 2001, there have been 1,290 executions  around the world, according to Hands Off Cain.  The group noted that the United States is historically among the nations with the most executions.  So far this year, China tops the list, with more than 1,100 executions this year and 500 in April alone. China was trailed by Iraq with at least 400 executions, Iran with at least 153, and Saudi Arabia with 121 executions. Last year, the United States ranked fifth in the world with 85 executions.  (AAP, 6/19/01)  This year the U.S. has executed 37 inmates, including two federal prisoners.  See also, International Death Penalty. 

 Oklahoma Governor Grants Stay to Mexican National Scheduled for Execution 
     Governor Frank Keating granted a 30-day stay of execution to Gerardo Valdez, a Mexican national who was scheduled to be executed in Oklahoma on June 19.  Earlier this month, the state Pardon and Parole board recommended clemency for Valdez, but the reprieve came after Keating spoke with Mexico's President Vicente Fox, who asked the governor to commute Valdez's sentence.  Keating had previously spoken with Mexican government officials, who also sought clemency for Valdez, arguing that not informing Valdez of his right to contact the Mexican consulate upon his arrest was a violation of international law.  "Officials of the U.S. State Department have acknowledged that the failure of Mr. Valdez to speak with the [Mexican] consulate violated the Vienna Convention, and they have asked that I take it into consideration when determining whether to grant clemency, " said Keating. 
      Currently, the United Nation's principal court, the International Court of Justice (ICJ), is considering the case of Germany v. United States of America.  Germany is suing the United States for violating international laws and treaties by executing two German foreign nationals who, like Valdez, were denied consular access as required by the Vienna Convention.  A ruling in that case is expected on June 27th.   (Reuters, 6/17/01 and New York times, 6/18/01)  See also, clemency and foreign nationals. 

 Texas Governor Vetoes Legislation to Ban Execution of those with Mental Retardation 
     A bill to prohibit the execution of the mentally retarded in Texas was vetoed by Governor Rick Perry on June 17.  The bill would have prohibited the death penalty if jurors determine that the defendant is mentally retarded.  Under the proposed law, if the jury decided that a defendant was not mentally retarded, the defense could petition the trial judge to order an evaluation by independent mental health experts.  In vetoing the legislation, Perry stated that although their is no statutory prohibition, "we do not execute mentally retarded murderers [in Texas] today."  Without a legislative ban, those with mental retardation can be sentenced to death because jurors are only required to consider a defendant's mental capacity as a mitigating factor during sentencing. 
      Legislation similar to that rejected by Perry was signed last week by Florida Governor Jeb Bush, and is still under consideration by the governors in Connecticut and Missouri.  (Washington Post, 6/18/01) 

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.

CAPITAL DEFENSE WEEKLY SUBSCRIPTION INFORMATION:  To subscribe just drop an email to cdw@karlkeys.com & remember to put subscribe somewhere in the e-mail.

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.

DISCLAIMER & CREDITS -- Anti-copyright 1997-2001. ISSN: 1523-6684. Karl R. Keys,, Esq, is an attorney duly admitted in the Commonwealth of Massachusetts and under the Court rules governing attorney conduct this weekly and related website may be construed as legal advertising.  Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational & information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.This letter and related website materials may be freely redistributed with attribution save for the copyrighted works of others. In short, reading this newsletter does not make me (or those I work with, for or for me)  your lawyer and you can use my stuff.  Submissions related to this letter may be reproduced without further notice.  Please note all rights to terminate a subscription are retained by the editorial staff. Although I am always glad to help where I can , I am in private practice and receive no financial remuneration for the this weekly, the related web site or the discussion list,  as such  requests for assistance can not always timely be answered as the bills still need to be paid.

FAIR USE NOTICE: This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
Volume IV, issue 23

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.