With the First Monday in October only days away, this week features the annual Supreme Court preview.  Following a summer in which three Justices in remarkable candor expressed concern about current administration of the death penalty the Court again  signaled its willingness to continue to define the "evolving standard of decency" in the administration of capital punishment.  In a bit of docket juggling on the issue of mental retardation & the death penalty the Court in its September 25, 2001 pre-Term order list dismissed the certiorari grant in McCarver v. North Carolina, No. 00-8452 (changes in North Carolina's capital sentencing scheme & factual controversy meant a return to state court for further adjudication of the issue) & granted certiorari instead in Atkins v. Virginia, No. 00-8452, where the condemned has a markedly more severe case of mental retardation. Atkins was the only late September certiorari grant in a criminal matter; if you have a petition for certiorari pending safely assume it has been denied.

Hot listed this week are two cases, one capital & the other with clear capital implications.  Holding the post-conviction record was underdeveloped, the Florida Supreme Court in Thompson v. Florida remanded for an evidentiary hearing on various claims including a rather interesting issue concerning ineffective assistance of  counsel during voir dire.  The Seventh Circuit in Ashley v. United States, a delayed publication case, opened the door via remand to the retroactive application of Apprendi (but see In re Carnell Turner below).

Of other note is the Sixth Circuit's denial of habeas relief to Kevin Stanford in whose earlier appeals the Supreme Court held that the execution of juveniles is permissible.  In light of the Supreme Court's recent reexamination of mental retardation in Penry & now Atkins, as well as the Court's interest in juvenile executions in  Domingues v. Nevada (even though cert was not granted after asking for the Solicitor General's comments), Stanford's case remains a case to watch. 

The ABA &  Association of the Bar of the City of New York is looking for volunteer lawyers to help with disaster efforts at: http://www.probono.net/areas/about.cfm?Area_ID=811&geographic_area=NY

On the potentially capital case front, to date 350+ Americans & foreigners have been detained &/or arrested here in the states with another 350+ being sought in the largest round-up of foreign nationals & American citizens since the internment of Japanese- & Italian Americans during World War II. The text of the Government's proposed legislation on the subject is available at http://jurist.law.pitt.edu/terrorismbill.htm,  & web updates available as time permit & the situation warrants at  http://capitaldefenseweekly.com/thetroubles.htm & http://jurist.law.pitt.edu/terrorism.htm.
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Since the last edition there have been no domestic executions.

The scheduled executions considered likely for October are:

      3    Michael Roberts      Missouri 
      5    Robert Bacon          North Carolina 
      8    John Byrd Jr.           Ohio 
     12    David Ward            North Carolina 
     18    Alvie Hale Jr.          Oklahoma 
     18    Christopher Beck    Virginia 
     22    Gerald Mitchell        Texas
     24    Stephen Johns          Missouri 
 
 

This issue is located at http://www.capitaldefenseweekly.com/archives/010924.html.

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The Missouri Supreme Court in Driscoll examines the holding in Dawson v. Delaware. Noting the interplay among propensity evidence,  the First Amendment's right to association & the Sixth Amendment's right to a fair trial, the Driscoll Court holds the trial court erred in admitting evidence of membership in the Aryan Brotherhood in both phases of the trial.  Withholding judgment on the issue of penalty phase error, the Court concludes that "though the evidence clearly constitutes a submissible case . . . a reasonable juror could harbor reasonable doubt" as to guilt. 

The Eight Circuit's decision in Carter v. Bowersox is likewise positive.  The Carter panel held that appellate counsel was ineffective for failing to raise a state law claim relating to penalty phase instruction error.  Specifically, appellate counsel failed to raise claims relating to "the requirement that the jury be instructed to impose the death penalty only when they unanimously agree that it is warranted by aggravating circumstances plays an essential role in Missouri's capital sentencing scheme."

In way of friendly reminder, the Supreme Court's first day of the new term is October 1, 2001.  Assuming the Court follows recent tradition, sometime between now & the First Monday in October the court will be handing down the cert granted list.  The cert denied list will be handed down October 1.  In light of the one year statue of limitations for the AEDPA & many state post-conviction rules/statutes, if you don't see your case cert granted either on the Supreme Court's web site (www.supremecourtus.gov) assume you have been denied & act accordingly to protect your client's interest. The  next edition will run only after the Court announces the cert list

Since the last edition the following people have been executed:

September 18   James Knox               Texas 

This issue is located at http://www.capitaldefenseweekly.com/archives/010917.html.

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The Feature this week is a listing of the firms in the WTC & in surrounding areas. To donate to the Rescue Relief effort please visit: http://store.yahoo.com/redcross-wtc1/. 

On a personal note, before turning to the edition, few here in the Greater NYC area have not been personally touched by the recent bombing. As a former Marine Corps Gulf War vet I understand that the emotional need for revenge & vengeance, is not only natural but to be expected.  This issue did not run Tuesday night as scheduled in order to prevent any appearance of callousness.  Today this edition runs, however,  as a reminder that in time of national crisis as long as the American ideals enshrined in the Bill of Rights & the Reconstruction Era Amendments still stand as the law of the land we are the victors in any struggle.

In light of the obvious capital implications of the numerous arrests & "detentions," resource links (such as case reviews from the ACLU & analysis of the various parts of the AEDPA unassociated with criminal habeas corpus)   will be going up as soon as relevant materials can be located (sometime Monday-Tuesday at capitaldefenseweekly.com).  The next edition will be sent out on (or about) 9/19/2001. 

Since last issue the following people have been executed:

August 24   Clifton White          North Carolina
August 28   Jack Walker           Oklahoma
August 28   James Elledge         Washington --- volunteer
August 31   Ronnie Frye            North Carolina

September 8     John Byrd Jr.            Ohio 
September 18   James Knox               Texas 
September 21   Robert Bacon             North Carolina 

This issue is located at http://www.capitaldefenseweekly.com/archives/010910.html.

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The positive news for Beazley is not the only capital case news of note. The Tenth Circuit in Mitchell v. Gibson vacated the condemned's sentence as the state's chief witness rendered testimony "she knew was [ ] false and misleading" and failed to disclose potentially exculpatory penalty phase information.  The Delaware Supreme Court has ordered a new trial in Flonnory v. State, on claims of juror misconduct.  Finally, the Tennessee Court of Criminal Appeals addresses, and rebuffs, the prosecution's attempts to remove the Office of the Post-Conviction Defender in Burns v. State. 

Of the federal capital case losses, Williams v. Coyle (6th Cir.) (standards of review); Styron v. Johnson (5th Cir) (constitutionality of aggravators); Fugate v. Head (11th Cir) (ineffectiveness of counsel); Lott v. Coyle (6th Cir) (procedural default); two  are of special concern. The Fifth Circuit in Styron examined when an aggravator is volitive of constitutional norms, to few people's surprise, the aggravator of murder of a victim under six was not found to be impermissible.  Williams from the Sixth Circuit curiously notes that where a state court summarily dismisses a claim adjudication is to use the pre-AEDPA standards (compare this with Sellan v. Kuhlman (2nd Cir) (below) which reached the opposite conclusion), but in its application of the AEDPA to the case before it, significantly ratchets up the standard of review for what will constitute reversible error.

Williams, as well as  Lott, also mark another trend of note for the Sixth Circuit.  Although the Sixth Circuit (representing Tennessee, Kentucky, Ohio, & Michigan) joined the modern execution regime late (the first execution in that circuit in modern times occurring in just the Summer 1997) the "backlog" of cases, especially in Ohio, appears now be breaking loose.  In the past few months these cases, at least in the published opinions, have been breaking hard against the condemned with the first "execution swarm" in the Sixth Circuit (almost entirely from Ohio) likely sometime later this year or the beginning of 2002.

Alabama is again desperately seeking counsel for capital appellate & capital post-conviction work.  This represents an excellent chance for both private and "resource center" counsel to broaden their skills.  If you (or even anyone you know) would be interested,  contact Ruth Friedman at EJI at 202-393-8070 or  ruthindc@aol.com, or Judy Gallant at the ABA Death Penalty Representation Project at  202-661-6823 or jgallant@probono.net.  In short this is desperate situation and your consideration, as always, is appreciated in advance.

A new feature starting this issue will be additional  identifying information for the various capital cases covered. Although the request for cites has been routine in the past few years, the last few  several weeks saw an unexpected upswing in requests. As the rules of citation vary from court to court please consult your local rules on the proper form of citation.  In many locales the appropriate citation should be something akin to Styron v. Johnson, --- F.3d ---; No. 99-40539 (5th Cir. Aug. 15, 2001).  The expanded citation method will also permit "freshness" dating of an opinion, as several "newly reported" cases here, are often "stale law" by the time they are covered.

Since last issue one person domestically has been executed.

August 16    Jeffery Doughtie        Texas

24   Clifton White          North Carolina
28   Jack Walker           Oklahoma
28   James Elledge         Washington --- volunteer
30   Gerardo Valdez      Oklahoma  ---foreign national
31   Ronnie Frye            North Carolina

This issue is located at http://www.capitaldefenseweekly.com/archives/010820.htm.

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The much anticipated opinion in Burdine v. Johnson, the so-called "sleeping lawyer case," has been issued by the Fifth Circuit sitting en banc.  The nine judge majority has vacat ed Mr. Burdine's capital murder conviction. 

Several miles to the north of Texas, the Nebraska Supreme Court has vacated two death sentences.  In State v. Hochstein & State  v. Anderson  the Nebraska Supreme Court has held that a three-judge panel must vote unanimously for a sentence of death before the death penalty can be imposed, a simple majority of the three judges is not enough.

Elsewhere, in light of a change in North Carolina law making it more difficult to execute the retarded, state prosecutors asked the U.S. Supreme Court to dismiss McCarver v. North Carolina which had been expected to allow the court to decide whether mentally retarded killers can be put to death.  With three justices recusing themselves, an evenly divided Kafkaesque Supreme Court Monday refused to grant a stay of execution to a  Napoleon Beazley who murdered the father of federal appeals Judge J. Michael Luttig; Beazley was a juvenile when he committed the murder, and his effort to use his age as a reason to set aside his death sentence was considered to have a better chance now that the justices have a renewed interest in reviewing some aspects of capital punishment. 

The Connecticut Supreme Court in a bitterly split opinion has refused to permit an examination of race bias in the implementation of capital punishment as pat of its statutorily mandated proportionality review.  Two recent studies, the first in New Jersey "Report to the Supreme Court Systemic Proportionality Review Project 2000-2001 Term"  by Hon. David S. Baime ("White victim cases are more likely to progress to a penalty trial than African-American victim cases and the race of victim factor is statistically significant."), Special Master ("Baime Report"), &  the other in North Carolina, "Race and the Death Penalty in North Carolina - An Empirical Analysis:  1993-1997", have both concluded that the race of the victim does, in fact, inject racial bias into proceedings.  The Connecticut proportionality decision, although lacking in terms of positive relief, does offer an excellent encapsulation of comparative proportionality review from around the country.

The ABA's "Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States" is now available.

Please note, as a matter of editorial policy, all online district court capital decision will be covered starting this week. Due to size limitations, cases in which the condemned has lost, no matter in what court or what stage, will be addressed in a mere "snippet" manner.  Exceptions will be made for unusual or  notable cases such as Miller-El v. Johnson (5th Cir) covered this week. 

Since last issue one person domestically has been executed.

08    Mack Hill              Texas  (Texas's 250th in the modern era)

15   Napoleon Beazley  Texas - juvenile 
16   Jeffery Doughtie      Texas 
24   Clifton White          North Carolina 
28   Jack Walker           Oklahoma 
28   James Elledge         Washington --- volunteer
30   Gerardo Valdez      Oklahoma  ---foreign national 
31   Ronnie Frye            North Carolina 

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com. 

This issue is located at http://www.capitaldefenseweekly.com/archives/010813.htm.

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Two victories are noted this week, both from very unlikely sources.  The South Carolina Supreme Court has found in Tucker v. Catoe  that an Allen Charge denied the condemned due process. The Nevada Supreme Court, which until recently held the highest per capita execution rate in the counrty, has found that trial & appellate counsel were ineffective for not challenging the prosecution's closing remarks in  Evans v. State.

The Fourth Circuit though has not provided any suprises this week as it has denied relief in Beck v. Angelone on grounds including trial counsel's performance in explaining the consequences of a plea in a capital case.

This week's feature was published on Wednesday, August 1, 2001 in the Guardian of London by Julian Borger is titled "Too Young To Vote, Old Enough To Be Executed."

A new computer virus called Sircam has meant several subscribers have unwittingly sent documents (including sensitive case related materials) to me & others in their e-mail address book. Please protect your files, your client's confidentiality, & your bar card by talking to tech support or visiting CNET.com to update your antivirus programming.

Since last issue no one domestically has been executed.  The scheduled executions for August that are noted as serious dates are:

     08    Mack Hill              Texas  (Texas's 250th in the modern era)
     15   Napoleon Beazley  Texas - juvenile 
     16   Jeffery Doughtie      Texas 
     24   Clifton White          North Carolina 
     28   Jack Walker           Oklahoma 
     28   James Elledge         Washington --- volunteer 
     30   Gerardo Valdez      Oklahoma  ---foreign national 
     31   Ronnie Frye            North Carolina 

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com. 

This issue is located at http://www.capitaldefenseweekly.com/archives/010730.htm.
 

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Four capital cases of note are covered in this edition. In the first the Washington Supreme Court has vacated conviction in State v. Marshall as  the trial court failed to permit withdraw of a guilty plea based on asserted lack of competence. The Sixth Circuit in Porterfield v. Bell remands for clarification the certificate of appealability in that case noting hat  a court should make an individualized determination as to each procedurally defaulted claims rather than making a blanket denial or grant of all claims. In Grayson v. Thompson  the Eleventh Circuit has held that trial counsel was not constitutionally deficient for failing to use hospital records relating to defendant's intoxication on the night of the murder where additional hospital records indicated defendant knew of the crime and appreciated the criminality of his conduct on the night in question.

A very notable dissent in a state case is also had this week. The dissent in the Missouri case of  State_v._Black would hold that the United State Supreme Court's opinion in  Cooper Industries v. Leatherman Tool Group, Inc. (de novo review of punitive damages) (briefs from Leatherman) should be applicable in capital cases. Note: should anyone have the briefs from State v. Black, please don't be stingy as I suspect I will not be the only one wanting to use peruse, if not plagiarize, the brief.

The featured article this week marks the 250th execution in Texas with a little background information from Amnesty International on the life and impending death of  Richard William Kutzner (see http://www.cuadp.org/pressrel32.html for complete details). 

Please note that due to two websites "disappearing" from the internet the Texas series will be modified and run once the original materials, or like materials, can be located. With the intended subject matter missing the question became what to run in its place. I had considered running  Professor Victor L. Streib's current lists and reports of women on death row (http://www.law.onu.edu/faculty/streib/femdeath.htm ) and juvenile offenders on death row (http://www.law.onu.edu/faculty/streib/juvdeath.htm). Likewise I considered running parts of the brief bank (http://tcdla.com/mockup/framepages/motionbank.htm) of the Texas Criminal Defense Lawyers Association. Likewise, the recent University of Chicago Journal of Legal Studies article Forecasting Life and Death: Juror Race, Religion, and Attitude toward the Death Penalty by Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells
(http://www.journals.uchicago.edu/JLS/journal/issues/v30n2/013009/013009.web.pdf).    Likewise the extensive death penalty news index  (http://www.nysda.org/Defense_Services/NY_Capital_Defense/ny_capital_defense.html) offered by the New York State Defender Association was considered.  Finally, the growing controversy in Nashville about missing evidence for proportionally review in capital cases (http://www.cuadp.org/exinfo.html) was also considered and dismissed, but may be run in the future. In light of significance of Mr. Kutzner's execution, however, information his execution was decided upon. 

Until the site's briefbank is online, a  search engine covering the three largest death penalty/criminal defense publicly accessible brief banks is available at http://www.capitaldefenseweekly.com/index.htm.
The site's briefbank is currently having he kinks worked out of it & the very expanded list of 2000+ searchable briefs should be available September 1, 2001.

Since last issue one person domestically has been executed:

July 11    Jerald Harjo            Oklahoma

July 25   Richard Kutzner          Texas 

This issue is located at http://www.capitaldefenseweekly.com/archives/010723.htm.

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Two loses in federal habeas corpus are noted as well.  The Tenth Circuit in  Johnson v. Alabama  held counsel was not ineffective by not making various arguments. Similarly the Ninth Circuit has held in Cooper v. Calderon that  failure to seek lesser-included-offense instructions for second-degree murder did not prejudice petitioner.

A special thank you to Michelle Brace for sending up In re Bratton which otherwise would have "slipped under the radar."  Also, a special please visit, probono.net, the ABA's fantastic death penalty website with more information available than can ever be posted here, especially Texas & Virginia materials.

Due to copyright constraints, the ongoing examination of the death penalty in Texas will be continued next week.

Since last issue two people domestically have been executed:

July 11  Jerome Mallett           Missouri 
July 11  James Wilkens Jr.        Texas 

July 17  Jerald Harjo             Oklahoma 
July 25  Richard Kutzner          Texas 

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com. 

This issue is located at http://www.capitaldefenseweekly.com/archives/010716.htm.

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Three  federal court of appeals habeas denials are also noted.  The Fifth Circuit has held that a claim requesting a competency hearing prior to execution is subject to the AEDPA's limits upon successive writs in Richardson v. Johnson. Likewise the Fifth Circuit in Rudd v. Johnson denied relief on Brady and IAC claims.  In Thomspson v. Haley The Eleventh Circuit has held that the police did not unduly coerce defendant into confessing where they lied to him.

The Supreme Court's tern end is also covered in this edition. This week's Focus section is on the past term's decisions, with one decision, Tyler v. Cain, (examining the retroactively of the Cage Rule) being covered at length.  Note also Justice O'Connor's statements at the Minnesota Women Lawyers annual which included two very notable comments including "the system may well be allowing some innocent defendants to be executed''  and "[p]erhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.''  Justice O'Connor's comments were made, coincidentally (or not) on the twenty-fifth anniversary of Gregg v. Georgia.

Since last issue one person domestically has been executed:

June 26   Miguel Richardson       Texas 
June 27   Jim Lowery                Indiana 

July 11  Jerome Mallett           Missouri 
July 11  James Wilkens Jr.        Texas 

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com. 

This issue is located at http://www.capitaldefenseweekly.com/archives/010709.htm.

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In this first issue of summer, one case of national note is reported, Matheney v. Anderson. The Seventh Circuit in Matheney has remanded for an evidentiary hearing allegations that the condemned was incompetent to stand trial and that his lawyer's performance on issues related thereto was constitutionally infirm.

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. 

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The last issue of Spring 2001 brings good news on several fronts with no less than five capital case reversals noted this week.  The New Jersey Supreme Court in State v. Koskovich (has reversed due to cumulative error  relating to the trial court's instruction to the jury in respect of the victim- impact evidence, the court's instruction concerning defendant's likely non-capital sentences, and the court's instruction in respect of the balancing of aggravating and mitigating factors as the death-sentence determiner. The North Carolina Supreme Court in State v. Allen  has held that the prosecution's closing argument from outside the record was reversible error.  The Virginia Supreme Court in Powell v. Commonwealth has held that the trial court erred in permitting the Commonwealth to amend the indictment for capital murder.  In Delaware the state high court in Stevenson v. State  has held that the trial judge should have recused himself as he was too close to the events surrounding the murder at issue. In the final reversible error column case of this edition the Virginia Supreme Court in Green v. Commonwealth has held the trial court erred in not removing for cause two jurors.

Several notable Supreme Court cases are also noted.  As a non-trial lawyer most disconcerting personally was Duncan v. Walker which held a first federal habeas petition does not toll the limitation period for subsequent petitions. In Alabama v. Bozeman the Court explored the Interstate Agreement on Detainers, holding states receiving criminal defendants prior to the termination of a sentence in another state may not arraign the defendant and then return the prisoner before trial. In  Saucier v. Katz the Court broadened the defense of qualified immunity holding courts must determine whether a right was clearly established in light of the cases' specific contexts, not as a broad general proposition.  Finally, and perhaps the most important privacy case this term, perhaps even this decade, in Kyllo v. US  Justice Scalia writing for a simple majority held the government's use of a device that is not in general public use, to  explore details of a private home that would previously have been  unknowable without physical intrusion, is a Fourth Amendment "search" and presumptively unreasonable without a warrant. 

As noted above this is a double issue.  Beginning with this issue the goal will be to get editions out at the beginning of each week for cases decided the prior week, unless case scheduling will simply not permit it which has been the cause for the last few issues to be double issues.  Due to the accelerated schedule, please feel free to contribute any decision in your state you feel is warranted.  I hope to have all the administrative adds to the list done this week & to start uploading the brief collections this weekend with 1000 briefs, motions & pleadings up by mid-Summer.

Since last issue three people have been executed:

6/11 Timothy McVeigh  US  Lethal Injection
6/13 John Wheat  TX Lethal Injection
6/14 Jay Scott  OH Lethal Injection

6/19  Juan Raul Garza         Indiana - federal 
6/22  Glenn Holladay          Alabama 

Please excuse the abnormally large number of typos this week.  As some of you already know,  I rolled my jeep in the foothills of the Kittanies/Appalachian mountains and broke part of my left hand requiring me to type one handed for the foreseeable future. (I am fine & the jeep is running great too, the roll cage literally saved my life). 

On one final personal note, a special thank you goes out to my dear friend Abe Bonowitz, the director of Citizens United for Alternatives to the Death Penalty (www.CUADP.org). I don't recall ever explicitly pitching anything in the weekly, that is, until now.  CUADP personally is my favorite anti-death penalty organization as it knows how to stretch a dollar & make an impact.  Due to a large number of events CUADP has spearheaded this year, however, their funds are tapped. Abe, like most who do this work, has passed up much more lucrative opportunities to fight in the trenches & if you can spare even a few dollars, frequent flyer miles, etc. please contact  800-973-6548 or CUADP/PMB 297/177 US Highway #1/Tequesta, FL  33469.  CUADP also has some fantastic message t-shirts, etc., at http://www.cuadp.org/abolitionwear.html.

This issue is located at http://www.capitaldefenseweekly.com/archives/010618.htm. 

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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. 
 

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The briefs in this case may be as helpful as the opinoin and are available as follows:

Briefs:

Amicus - Petitioner:
American Association on Mental Retardation et al. [PDF] http://supreme.lp.findlaw.com/supreme_court/briefs/00-6677/00-6677fo2.pdf
International Association for the Scientific Study of Intellectual Disabilities et al. [PDF] http://supreme.lp.findlaw.com/supreme_court/briefs/00-6677/00-6677fo1.pdf
National Association of Criminal Defense Lawyers [PDF] http://supreme.lp.findlaw.com/supreme_court/briefs/00-6677/00-6677fo3.pdf
Amicus - Respondent:
Criminal Justice Legal Foundation [TEXT] http://www.cjlf.org/briefs/Penry.htm

this update edition is now available
 

This delayed issues focuses on two capital case victories, both state court wins out of the South.  In Ex Parte Varelas the Texas Court of Criminal Appeals found that was ineffective for failing to request an instruction as to reasonable doubt finding as to degree liability extraneous acts should be given.  In Hess v. State  the Florida Supreme Court has stricken as inappropriate the death sentence finding that in light of the nature of the crime and the mitigating factors involved death is not appropriate.

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

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

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

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

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

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

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

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

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

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

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

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

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In three additional  cases, State v. Hartman,  King v. State & Young v. Commonwealth arguments often considered boilerplate find fruition. In King v. State the Mississippi Supreme Court holds the trial court erred in informing jury sympathy could play no role in deliberating during the penalty phase. In Young v. Commonwealth the Kentucky Supreme Court holds that  insufficient evidence as to the aggravating circumstance required a new penalty phase.  The Tennessee Supreme Court in State v. Hartman holds the trial court erred in not allowing  the defendant to present evidence relevant to establish residual doubt as a mitigating circumstance and insufficient evidence to an aggravator.

On the remaining capital case victories the cases are more difficult to group.  In Warner v. State the Oklahoma Court of Criminal Appeals holds that the trial court erred in not removing for cause certain jurors.  In Powell v. Commonwealth  the Virginia Supreme Court holds that rape of a person already dead does not aggravate murder to capital murder. In Echols v. State  the Arkansas Supreme Court remands for correction of the trial court's rush to process to deal with the post-conviction motion before it, a rush that caused several rules of court not to be followed.  Finally in Ex parte Carroll the Alabama Supreme Court remands, yet again, for the trial court to clarify why it sentenced Carroll to death.

Chief among the losing federal cases is  Bracy v. Schomig, Seventh Circuit, in which a split court held that petitioner had not shown prejudice where state court judge was taking bribes in other cases. The Tenth Circuit in an unpublished opinion, Johnson v. Gibson, denied relief on chiefly Simmons penalty phase jury instruction issues. Finally in In re Goff  the Fifth Circuit denied permission to file a successive petition where the question before the court is possible innocence.

The Supreme Court's opinion in Atwater v. City of Lago Vista, greatly broadened the power of police to arrest and detain individuals, for even the most minor of infractions.

As a special concession to the two character and fitness committees currently reviewing my bar application to join their respective bars (reciprocity want possible which meant, yes bar exams),  the feature this week is from a concurrence in Butts v. Georgia (covered next week in full) about civility in capital cases.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010430.htm.

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This edition brings tales of good news in the cases covered in depth.. The Florida Supreme Court in Brooks v  State has granted relief on the cumulative impact of improperly admitted hearsay evidence. The Louisiana Supreme Court in State v. Kennedy has carefully narrowed that state's capital rape statute holding that holds that prior convictions can not be used to show "lustful disposition" in the current prosecution. The Louisiana Supreme Court, affirming in part and reversing  in part holds in State v. Deruise that  evidence was insufficient to support the jury's finding during the penalty phase that one of the two victims  was killed in an especially heinous and cruel manner.  Finally the Eleventh Circuit, en banc, in
McGregor v, Gibson has granted the writ as petition was found competent under an unconstitutional burden of proof.

Three additional cases not covered this week (but to be covered in the next issue) in which stays with serious dates.  In Thompkins v. Florida a state trial court has granted relief as to punishment, based on Brady concerns. The Maryland Supreme Court has likewise entered a stay  in Oken v. Maryland effectively imposing a de minimis 18 month moratorium that state. Finally in Scott v. State a state was granted on "mental status" of the condemned.

Of the remaining federal cases, both are losses.  In United_States_v._Allen  the Eighth Circuit denied relief on the voluntarily of  a confession  and jury instructions about the  about the nature of capital bank robbery principle vs. accomplice.  In Hernandez v. Johnson the Fifth Circuit held the government may call as a sentencing witness the defense expert  who performed the psychiatric evaluation, without violation of the Sixth Amendment even though the defendant did not have counsel present at the psychiatric examination. 

The Supreme Court  in Shaw v. Murphy has held that the first Amendment does not give an absolute right for an inmate's right to the assistance of a fellow inmate in preparing a federal cause of action

This week's Featured article is on the prison-industrial complex. by Sean Gonsalves called "Four Walls v. Three Squares."

Due to a very heavy litigation docket & some computer upgrades last week's edition did not run & this edition is sent late.  For the same reasons the next edition will be delayed and should be sent out the weekend of May 4-6.  Briefs in this issue are not available for the Florida decisions. If anyone needs them please email.

Subscription to the weekly is available by sending an email to karl@karlkeys.com with the word "subscribe" in the subject line.  This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010416.htm & http://karlkeys.com/010416.htm.

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This week's edition brings glad tidings for several death row inmates, but marks another tragic loss in the United States Supreme Court. The Court in Texas v. Cobb held that even where a person is arrested and in custody for the aggravating circumstance in a capital crime, the Sixth Amendment right to counsel does not extend from the interrogation on the aggravator to the interrogation of the underlying murder.

The Tenth Circuit in Rojem v. Gibson held that a trial court must provide jury instruction on weighing mitigating evidence even if it provided other instructions to consider all the evidence, and to consider lesser penalty of life imprisonment.  The Alabama Court of Criminal Appeals held in  Snyder v. State  failing to define the proper use of prior convictions during the penalty phase is plain error.  In widely watched case, State v. Workman, the Tennessee Supreme Court held that due process demands that an evidentiary hearing be held where evidence exists that may free a person from a death sentence.  The Alabama Court of Criminal Appeals in Smith v. State also remanded, for a second time, for clarification as to aggravating and mitigating circumstances so that it could perform review of the sentence.

The only other case covered, in depth, Coleman v. Mitchell m, is from the Sixth Circuit holding, chiefly, that petitioner procedurally defaulted his "cause" (ineffective assistance of appellate counsel) that he sought to use to forgive his default on several other issues.

As this issue is going out late there is no "Focus" session this week.

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Three federal decisions are noted this week.  The Sixth Circuit, in a post-AEDPA case, Cone v. Bell, grants relief holding the Tennessee Supreme Court's findings were unreasonable as to prejudice in the penalty phase. The Sixth Circuit, this time in Workman v. Bell, denied relief on last ditch stay proceedings where the ultimate question is actual innocence.  Finally, the Ninth Circuit in Massie v. Woodford has denied "next friend" standing to a challenge to Massie's (know successful) attempts to drop all his appeals.

The Tennessee Supreme Court has placed all of the pleadings in state and federal court in the Workman case online for those who may be interested in expanding their stay materials.  http://www.tsc.state.tn.us/OPINIONS/TSC/CapCases/Workman/PRWorkman.htm

Seventy years have passed since the crimes that never were led to  nine teens and young men to forever be known as the Scottsboro Boys.  And the focus article this week is a reprinted from AFRO-Americ@'s Black History Museum on the event.

Due to changes in web protocols the current delivery method (and indeed the method that has been used for the past three years) is now being blocked due to the current crack down on unsolicited net advertising, a/k/a spam. While all options are being explored and "tech support" promising to have had the problem fixed this weekend, Recent editions are available at 

http://www.capitaldefenseweekly.com/archives/010319.htm
http://www.capitaldefenseweekly.com/archives/010312.htm
http://www.capitaldefenseweekly.com/archives/010305.htm
http://www.capitaldefenseweekly.com/archives/010219.htm
http://www.capitaldefenseweekly.com/archives/010212.htm

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The Supreme Court this week granted relief in Shafer v. South Carolina.   In reaffirming Simmons v. South Carolina (which held that a jury must be fully informed as to all sentencing options where the choice is only between  death or life without parole) the Court eased fears that Simmons may be in trouble. This edition, however, is otherwise void of good news.  In the only other case covered in more than a passing fashion, Parker v. Head a loss is noted on issues relating to counsel's performance and an issue relating to the use of incriminating statements in the absence of counsel.

The Focus this week, is mental retardation and the death penalty following the exhaustive report of Human Rights Watch,  BEYOND REASON: The Death Penalty and Offenders with Mental Retardation
http://www.hrw.org/reports/2001/ustat/.

Due to changes in web protocols the current delivery method (and indeed the method that has been used for the past three years) is now being blocked due to the current crack down on unsolicited net advertising, a/k/a spam. While all options are being explored and "tech support" promising to have had the problem fixed this weekend, Recent editions are available at 

http://www.capitaldefenseweekly.com/archives/010312.htm
http://www.capitaldefenseweekly.com/archives/010305.htm
http://www.capitaldefenseweekly.com/archives/010219.htm
http://www.capitaldefenseweekly.com/archives/010212.htm

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Four Ninth Circuit cases dominate this edition, all four wins.  In Lambright v. Stewart a remand is had remand for the district court to determine whether Lambright was denied effective assistance of counsel at sentencing because of the failure to investigate and present evidence of his psychiatric condition and social history. In the companion case to Lambright, Smith v. Stewart,  is likewise remanded for if allegations that counsel neither investigated his mental condition nor presented adequate mitigating psychiatric testimony during the  sentencing phase are true  he was denied  effective assistance of counsel. The Ninth Circuit has ordered a third remand in Petrocelli v. Angelone as the lower court erred in applying the abuse of the writ principles to that petition.  Finally, in Paradis v. Arave the prosecution's withholding of a doctor's notes that concluded that the time and place of victim's death was unknown required a new trial where jurisdiction of murder was at issue.

Subscription to the weekly is available by sending an email to karl@karlkeys.com with the word "subscribe" in the subject line.  This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010312.htm & http://karlkeys.com/010312.htm. The last issue is still available at http://www.capitaldefenseweekly.com/archives/010305.htm & http://karlkeys.com/010305.htm.

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As this edition goes to press three breaking cases (stays and details are somewhat sketchy) are noted although substantial  elucidation is not possible at this time.  The Georgia Supreme Court in Spivey v. Georgia,  4-3, has issued a stay for purposes of determining the continuing constitutionality of the electric chair. The Supreme Court of Georgia granted Spivey's motion for a stay "until it addresses whether death by electrocution violates the Eighth Amendment . . . or until further order of this Court."  A concurrence by Justice Sears in which Chief Justice Benham joined noted that the legislature has provided for execution by lethal injection for all persons sentenced for capital crimes committed after May 1, 2000: "Thus, this Court is charged with resolving whether the same evolving standards of decency that led to a prospective change in the method of executing condemned persons also require a retroactive change in the method of execution employed by the State. Furthermore, this Court is charged with the responsibility of protecting the State from the indignity of exacting punishment that exceeds the bounds of humane sensibilities." (For more information on the electric chair click here).

The second of the stay cases, Richardson v. Luebers,  involves  "[w]hether there now exists a national consensus against executing a retarded person, so that such executions are now categorically prohibited by the Eighth Amendment (Penry revisited)."  Last week in McCarver v. North Carolina the Supreme Court granted a a stay on similar grounds.  The Penry amici briefs are now available (American Association on Mental Retardation et al. [PDF] International Association for the Scientific Study of Intellectual Disabilities et al. [PDF] National Association of Criminal Defense Lawyers [PDF] Criminal Justice Legal Foundation [TEXT]).

Finally in Dawson v. Delaware the Third Circuit has stayed a serious  execution date pending disposal of a  writ of certiorari, the actual issues on which the stay has been issued, however, remains unclear.

The Florida Supreme Court in Carpenter v. State has granted relief on a Brady question on direct appeal.

The remaining capital cases covered in this edition are not so joyous. The Sixth Circuit in West v. Bell revisits the old question of who has standing when a person wants to kill themselves by dropping all their appeals.  In Weaver v. Bowersox the Eighth Circuit examines the extent of a trial judge's decision to exclude jurors and holds he indeed had great leeway that  he had not abused that discretion in excluding jurors of color. Finally the Fifth Circuit in Tucker v. Johnson examines  ineffective assistance of counsel at the penalty phase and  a challenge to the constitutionality of the AEDPA

This week also saw the execution of the 700th person, Dennis Dowthitt, since the resumption of executions a quarter of a century ago.

The feature this week is from the Canadian Supreme Court's decision in United States v. Burns and the adaptation of a near blanket rule that it will not deport save for cases in which the death penalty has been explicitly disavowed.

The private discussion list for  legal professionals doing capital litigation that is sponsored by the newsletter is up and going strong with over 100 members. The list's aim 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. To subscribe send an email to capitaldefense-subscribe@onelist.com.

This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010305.htm & http://karlkeys.com/010305.htm. The last issue is still available at http://www.capitaldefenseweekly.com/archives/010219.htm & http://karlkeys.com/010219.htm.

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Five capital cases of note are covered this week, three wins, two losses.  Possibly the most wide reaching is Fahy v. Horn (3rd Cir) which deals with the technicalities of the AEDPA's statute of limitations.  With similar potential for broad impact is the Florida Supreme Court's holding in Rogers v. Florida vacating the condemned's conviction due to prosecutorial misconduct.  Likewise the Illinois Supreme Court in People v. Lee vacates a death sentence due to the trial court's lack of statutory authority to order a capital defendant to submit to a psychiatric examination during the penalty phase of a trial.  In Romano, et. al. v. Gibson the Tenth Circuit in this Oklahoma double prosecution denies relief  where the petitioners attempted to put on evidence inculpating others & were denied. Finally, the Fifth Circuit in Kutzner v. Johnson holds conflicting or inconsistent testimony alone did not meet the materiality requirements for prosecutorial error.

The Illinois Supreme Court's death penalty proposed rules are now available at http://www.capitaldefenseweekly.com/briefbank/illinois/illinoisdeathpenaltyrules.pdf.  My apology for the delay as they were difficult to obtain.

The briefbank at the Toolbox is being overhauled & the hope is to have about 400 briefs & motions from around the country online by the of the summer (they are scanned it is just a question of getting them indexed).  As part of the overhaul links the weekly will link to the briefs in a covered case where possible.  At the moment it is largest public collections of briefs & motions relating to capital defense (or more appropriately links to briefs and motions) on the net.   If you have a motion, brief or pleading you are proud of and would like to share please feel free to forward to cdw@karlkeys.com.  Noncapital materials are always appreciated as well. If your briefs are already online, drop a line and say where and it will be included in a complimentary link.  At the moment the briefbank update appears to be relying heavily on  Florida capital materials and links to federal motions and appellate brief. Details of the project will be released as the project appears fruition sometime this summer.  A big thanks goes out to the technical consultants on this project, who have helped figure out how to acquire the needed briefs &  get the briefbank into shape. 

Featured this week is the DC federal defenders and their amazing briefbank.  For those who receive this newsletter in a hard copy format, get to a web browser, otherwise point and click to http://www.dcfpd.org/motions.  The DC brief bank is not readily navigable, from either  search engines or even from the website proper, however, what it lacks in layout, it more than makes up in content. For those online, many of the briefs & motions are linked below.

The last week's edition of Capital Defense Weekly was sent out on the fourteenth.   The weekly  appears to have vanished into the ether of the net with no one apparently to locate where it went. A remailing has been sent out as well, that too has disappeared into the ether of the net.  The link is  http://www.capitaldefenseweekly.com/archives/010212.html.  This week's edition is available at http://www.capitaldefenseweekly.com/archives/010219.html  Capital Defense Weekly will most likely not run next week due to an out of town commitment.

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Three cases are examined this week in depth, The Ninth Circuit in Odle v. Woodford  remands on the issue of  whether the trial court erred in not conduct a mental competency hearing even if defendant appeared calm in court.  In Arkansas the state supreme court has remanded for further proceedings in  Jackson v. State due to the breakdown in postconviction proceedings which  led to dismissal of appellant's petitions on procedural grounds. Finally, the Fifth Circuit in  Hudson v. Johnson dismisses several challenges to the Texas death penalty scheme and further holds that petitioner cannot attack credibility of a hearing witness through habeas review when he failed to challenge the witness' credibility at the actual hearing

Featured this week is Harlow M. Huckabee's  "Dodging The Insanity Defense with Diminished Capacity." Mr. Huckabee's analysis of diminished capacity is too large to be reprinted in full, however, the entire of the article is available on Mr. Huckabee's website, www.diminishedcapacity.com.

Several weeks ago the newsletter changed formats and as a result several areas were no longer being covered as fully as they formerly were.   Findlaw is now offering much of noncapital coverage formerly offered by this newsletter, http://guide.lp.findlaw.com/lists/casesummaries.html.  Findlaw is also now offering an archive of all of their newsletters that is fully searchable on such things as criminal law, constitutional law, insurance, etc. (http://caselaw.lp.findlaw.com/casesummary/index.html).

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The Texas Court of Criminal Appeals in Ex parte Varelas has granted relief, in the only death penalty case in which relief was had this issue, on the grounds that counsel was ineffective.  Key in the decision to grant relief was trial counsel's gallant admission that he had not requested jury instructions that could have aided his client not as part of "trial strategy" but rather oversight. 

Events half a continent away from Texas are also noted this week. In State  v. Timmendequas, (the underlying crime spawned "Megan's Law " legislation  nationally) the state supreme court examines the proportionality of the death penalty as the second half of of the two part appeals process in any Garden State capital case and offers an excellent check list for how proportionality reviews should be conducted.  Slightly to the north of New Jersey In a state where the death penalty has been abolished, Massachusetts,  Peter Limone this week, after having spent six years on death row, was  exonerated when information surfaced that the FBI new he had been framed over a generation ago for a murder he had not committed.

The sole federal case this week, Chandler v. Moore, the Eleventh Circuit denied relief chiefly on issues relating to comments  made by the government and the court.

Featured this week  is the story of the Peter Limone case, a reminder to never quit believing in the good fight.

As always, if a case you are working on has been overlooked or you would like to contribute, please feel free to contact the weekly at cdw@karlkeys.com.

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This week's edition examines the three separate state court victories, all three of which are should reads that offer good insights into commonly recurring issues in capital litigation. The Washington Supreme Court inPersonal Restraint Petition of Brett offers an outstanding review of the proof required in a capital case to show ineffective. assistance of counsel & how to  use expert counsel to show ineffectiveness. The Colorado Supreme Court in Colorado v. Martinez clarified how both the three judge sentencing panel & the state Supreme Court  operate under Colorado capital sentencing scheme holding that sentencing judges have broad, virtually unreviewable, leeway in making a decision for life. In Johnson v. Tennessee relief was had as to sentence on the grounds that the prosecution withheld Brady materials relating to the sole aggravating factor. All opinions are available at Lexisone.com.

An interesting development is noted in the area of civil suits alleging prosecutorial misconduct. Justice Thomas has dissented from the denial of certiorari in Michaels v. McGrath (a New Jersey prosecution that ended up in civil suit), stating that section 1983 seemingly provides a method for suing prosecutors who subvert justice.

No capital federal cases are noted. 

The Feature this week's offers links to Findlaw.com's annotated and hyperlinked analysis of the federal constitution and the various amendments. The Findlaw analysis is a great place to start when dealing with areas of federal constitutional law that you are unfamiliar with and a good source for black letter law case summaries.

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com.
 

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Several capital case victories are noted this week, all in state court, several of which are notable. Of the four cases this week in which there was an outright reversals most remarkable perhaps is Muhammad v. State which held the fact that even though no mitigating evidence was presented for the jury's consideration due to the client's wishes there is still an affirmative duty on the trial court and counsel to include into a presentence report any and all relevant mitigation evidence. The Indiana Supreme Court in Prowell v. State examines violations of Indiana's seemingly unique Criminal Rule 24 (limiting the workload of public defenders who have been assigned to represent a capitally charged citizen) and holds counsel was ineffective by being forced to carry too great a caseload while fighting the battle for Mr. Prowell's life. The Alabama Court of Criminal Appeals  reversed the capital conviction in Yancey v. State based on the strong inference of misconduct where the government used 12 of 15 strikes to remove black jurors from the jury pool. A fourth and final capital case is noted as reversed this week, when the police, the Maryland Supreme Court held in Winder v. State, made improper promises to secure a confession. made by police interrogation team.

In three additional cases remands are had. The Louisiana Supreme Court remands in State v. Frank to the trial court for a determination on whether the defendant was entitled to state-funded expert assistance for the sentencing phase of her trial and if so to vacate the sentence of death. In Russell v. State the Mississippi Supreme court has remanded to the trial court (sitting in post-conviction review) several discovery requests ordering, with instructions, the court examine anew the requests. Finally, in People v. Thomas the Illinois Supreme Court clarifies that for purposes of a post-conviction evidentiary hearing  that death is indeed different and state strongly encourages that a hearing be held in almost all capital cases.

Of the federal cases noted, all are losses. In Housel v. Head the use of uncharged crimes to determine aggravating factors, even if it was in error, was barred under Teague. Continuing the Third Circuits prolonged trend of seemingly denying relief to every capital petitioner from Delaware, a panel affirms in Riley v. Taylor holding (chiefly) that the government's peremptory challenges were not based on race. The final decision is out of the so-called "circuit of death" (the Fifth Circuit) which denied relief in Neal v. Puckett on the question of whether or not the Mississippi Supreme Court correctly decided that excluded mitigation evidence was cumulative and would not have altered the jury's decision for death.

Two Supreme Court cases of import are also noted. Fiore v. White is possibly the most notable and indicates a seeming sea change in the Supreme Court's equal protection analysis post-Bush v. Gore holding that a state violates equal protection when it fails to retroactively apply a judicial interpretation redefining whether the conduct at issue is or is not a criminal offense. Significant also is the Court's holding in Glover v. United States in which it held that there where a sentence is increased there is no minimum a standard of significance for Strickland purposes.

As part of the changes with the weekly the website is slowly migrating from www.capitaldefenseweekly.com to www.karlkeys.com as the dotcom venture originally associated with capitaldefenseweekly.com has now been shelved. As the migration occurs changes will continue with the newsletter including the adding of a few sections, the renaming of a few others, such as the renaming of the "In Depth Feature" column this week to simply "Featured," and elimination of a few sections as the "realignment" of the weekly continues.

Featured this week is Edward Lazarus's examination of the federal death penalty landscape. In "The Coming Era of Federal Executions? Legal Challenges We Can Expect If More Federal Defendants Share Mcveigh's Fate," Lazarus offers a sober and realistic examination of how the federal death penalty is working in practice. Lazarus's analysis, while not covering new ground, is an excellent encapsulation of what has gone before and a good general primer to developments with the federal death penalty.

Finally, Issue 12 of the Federal Habeas Corpus Update is now available to be downloaded at http://www.capdefnet.org/FHCU12.htm  Format, searchability and other details are set forth at the website as well.

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