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.

Supreme Court
Out fo the Summer

Captial Case Relief Granted
Williams v. State (Fla.) "[W]e reverse William's conviction for first-degree murder and vacate his sentence of death, holding that, whenever a juror becomes unable to continue jury service after guilt phase deliberations have commenced but before a guilt phase verdict is returned, a new guilt phase trial is required."

 We recognize that here, the trial judge, under challenging circumstances, endeavored to do his very best to salvage the enormous resources invested in this lengthy case. Further, the State urges that there is overwhelming evidence of Williams' guilt, suggesting that a harmless error rule should be applied. When viewed in the proper, broader, context, however--a context cognizant that our jurisprudence requires, most particularly in capital cases, that the issue of guilt or innocence be decided by a properly-constituted jury--we are constrained to determine that whenever, as here, a juror becomes unable to proceed during deliberations, a new trial of the matter which was the subject of those deliberations is required.

While the spectre of jury taint requires a new trial any time a juror becomes incapacitated during deliberation, this concern is particularly underscored where, as here, the removed juror's incapacitation arises directly from participation in the deliberative process. While the trial court determined in this case that juror number ten's emotional incapacitation was purely personal, the exchange between the court and the juror clearly reflects that it was the juror's previous negative experiences with the criminal justice system, along with the pressures or circumstances of the deliberative process itself, which rendered her presently unable to participate as a juror; thus, juror number ten's problem, rather than being purely "personal," was inextricably tied to her activities as a juror.

Further, had juror number ten, during initial voir dire, disclosed the eventual cause of her incapacitation (her past, negative experiences with the criminal justice system), this arguably would have subjected her to challenge for cause. Cf. Jennings v. State, 512 So. 2d 169, 173 (Fla. 1989) (observing that a juror's concealment on voir dire of information which may have been material to whether the juror would have been excused on peremptory challenge or for cause, and which is not revealed or discovered until after trial, can justify the granting of a new trial). We note in passing that, although this juror failed to disclose her son's involvement in the criminal process during voir dire, she did reveal that she had not given any prior thought to the death penalty, perhaps presaging some future difficulties and warranting further inquiry. The State moved to strike her as a prospective juror on that basis, indicating "her potential inability to not be able to impose the death penalty pursuant to laws." Defense counsel objected on the ground that "it's a racially motivated strike," citing State v. Neil, 457 So. 2d 481 (Fla.1984). The trial court, not finding the stated basis to be race-neutral, denied the strike.

Based upon the foregoing, we reverse William's conviction for first-degree murder and vacate his sentence of death. This case is remanded to the trial court with directions that a new trial be conducted. Because we are remanding for a new trial, we need not address any remaining issues which Williams has presented on appeal. 

The Warden maintains that the "serious, perhaps irreparable, consequences" of permitting the DNA testing to go forward include: (1) "the potential destruction of the Commonwealth's evidence"; (2) "a guaranteed loss of the chain of custody"; (3) "the undeniable damage to federalism and finality that has `special importance' in the context of federal review of state court convictions"; and (4) "an opening of the floodgates to a host of similar ill-advised demands upon the federal district courts." Appellant's Br., at 12-13. We address these purported consequences in turn.

First, the Warden's concern about destruction of the evidence is, at best, premature. As the district court made clear, its January 9, 2001 Order

did not provide for the final testing of the evidence, only for its preservation and for testing funds. At the time of the Court's January 9 Order -- and presently -- the Court intended to conduct a hearing to determine how the DNA testing would proceed. The Court expected both the Commonwealth and the parties to participate in structuring conditions for the testing of the requested evidence in order to protect the integrity of the evidence and to ensure equal access to all parties.

The procedure the Court adopts for the analysis of the evidence will address the Petitioners' concern that Cherrix may consume the remaining forensic evidence and that the integrity of the evidence be maintained. 

Cherrix, 131 F. Supp. 2d at 771-72 (internal citations omitted). Indeed, the district court went on to discuss at length the procedural issues related to post-conviction DNA testing identified in a 1999 report sponsored by the Attorney General of the United States,6 including the type of DNA analysis to be utilized, the choice of laboratory to perform the testing, and the amount of sample to be available for testing and replicate testing. See id. at 772-73.

Furthermore, even if the Commonwealth's supposition were realized and the evidence were destroyed, it is doubtful that harm would flow to anyone other than Cherrix. That is, as Cherrix aptly points out, he

already stands convicted and condemned, and the Commonwealth does not need the biological evidence in order to carry out his death sentence. . . . [This] evidence has been sitting in some storage box(es) for years, and that is where it will remain, untested and unused, unless the [Commonwealth] is compelled to make it available.

Appellee's Br., at 15. The Warden counters that, if the evidence is consumed during retesting, the Commonwealth might lose the ability to use it "on retrial if necessary or during clemency proceedings." Appellant's Reply Br., at 7. The Warden does not explain, however, how this would lead to irreparable harm to the Commonwealth, i.e., why it would need the evidence for even more retesting. Most significantly, the district court has stated its intention to protect the evidence's integrity and to conduct the DNA testing in an objective manner with the participation of all parties. If the evidence is depleted during this testing, these results could be used -- or challenged -- by the Commonwealth upon any retrial or clemency proceeding.

Second, and similarly, with regard to the custody of the evidence to be retested, the district court declared that it "fully intends to impose procedures to protect the chain of custody when 

the Court actually orders that the evidence be moved to permit the DNA testing." Cherrix, 131 F. Supp. 2d at 772 n.13 (citing for comparison In re Warden, Kentucky State Penitentiary v. Gall, 865 F.2d 786, 788 n.1 (6th Cir. 1989) (stating that mandamus petitioner's fears regarding integrity of evidence and chain of custody appeared to be "vastly overblown" because petitioner was free to send representative to monitor retesting, and petitioner could argue the vitiating effects of time if retesting produced different results)).

In support of his third purported consequence, the "undeniable" damage to, in particular, the finality of state court convictions, the Warden relies on the Supreme Court's decision in McCleskey v. Zant, 499 U.S. 467, 491 (1991). In McCleskey, during a discussion of the doctrines of procedural default and abuse of the writ, the Court illuminated the potential risks of reexamining state convictions on federal habeas review. Though we recognize the ramifications of, inter alia, granting a habeas petitioner a new trial, we fail to comprehend how McCleskey supports the Warden's challenge to an interlocutory order that has only the potential to someday upset the finality of Virginia's conviction of Cherrix. Moreover, as the district court acknowledged, "[T]his Court, by statute [28 U.S.C. § 2254], has the duty to examine actions taken by the Commonwealth to make sure that the final result obtained is one in keeping with Cherrix's constitutional rights." Cherrix, 131 F. Supp. 2d at 784; see also id. (citing Jackson v. Virginia, 443 U.S. 307, 323 (1979) for the proposition that "[a]lthough the notion of `finality' is important, such finality is not desirable when the result is the `finality' of the deprivation of liberty at the expense of a constitutional right").

Finally, though the Warden asserts that the district court's January 9, 2001 Order will "open the floodgates" to similar requests, he offers no support for this stark assertion. Moreover, he fails to explain how, if there were an influx of motions for DNA testing and preservation of evidence in the district courts, this would result in "serious, perhaps irreparable consequences," where the courts presumably would dispose of the motions on their merits in the regular course of business. 

2.

In next addressing why the January 9, 2001 Order can be "effectually challenged" only by immediate appeal, the Warden asserts that "[a]bsent an immediate appeal, the Commonwealth will have to turn over its evidence [] with all the dangers attendant to that action[.]" Appellant's Br., at 14. We are not at all persuaded by this contention, which merely revisits the purported "serious, perhaps irreparable" consequences of tendering the evidence. If a discovery order could be challenged under § 1292(a)(1) any time there was the remotest possibility, despite the best efforts of the issuing court, that evidence could be destroyed or the chain of custody broken, we would be inundated with the very piecemeal appeals that our system so disfavors. In essence, the Warden asks us to rewrite the rules for appellate review of interlocutory orders so that "almost every pretrial . . . order might be called `effectually unreviewable' [on appeal from final judgment] in the sense that relief from error can never extend to rewriting history." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872 (1994).7 This we are unwilling and unable to do.

Rather, we are constrained to agree with Cherrix that the propriety of the district court's January 9, 2001 Order can be adequately reviewed on appeal from final judgment. If, for example, the district court awards habeas relief to Cherrix based on the findings of the DNA analysis, the Warden may appeal that decision on the ground that, inter alia, the retesting was unlawfully authorized by the court. This same contention may also be proffered by the Warden if Cherrix appeals the denial of habeas relief. 

In summary, because the Warden has failed to establish that the district court's January 9, 2001 Order might have "serious, perhaps irreparable, consequences," and because this order cannot be "effectually challenged" only by immediate appeal, we must dismiss the Warden's appeal for lack of § 1292(a)(1) jurisdiction.8
 

Cooper argues that he was denied effective assistance of counsel when his trial attorney decided to forego lesser included offense instructions of second degree murder. He contends that this decision was based on his lawyer's erroneous belief that no first degree murder convictions were required to reach the penalty phase. A petitioner seeking habeas relief based on the ineffective assistance of counsel must show (1) that the counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that but for the counsel's unprofessional errors the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

During a conference on jury instructions, Cooper's trial counsel, David Negus, objected to the court's suggestion that it provide instructions on second degree murder. As he explained, "It's first degree or it is nothing. " Negus informed the court that "Mr. Cooper and I both agreed that we don't want a second degree instruction. Correct?" and Cooper responded, "That's true." Negus asserted that he and Cooper realized that they were foreclosing the possibility of a potentially lesser conviction, but nevertheless did not want the jury to compromise on second degree murder. In any event, Negus said that he did not believe that the evidence supported a finding of second degree murder. Thereafter, the trial court requested a waiver from the defendant personally, which was obtained.

Cooper argues that Negus either misunderstood the law or deliberately misled his client when he caused Cooper to waive his right to second degree instructions by informing him that two second degree murder convictions resulted in a penalty phase. The district court, after a thorough evidentiary hearing, found that Negus's decision to forego second degree murder instructions was not based on any misinterpretation of the law, but was rather based upon counsel's sound and reasonable decision to avoid a compromise verdict and attempt to obtain a hung jury. However, because Cooper must prove both deficient performance and prejudice, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697.

Cooper must "affirmatively prove prejudice." Id. at 693. This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him. See id. Whether an error actually prejudiced a defendant is weighed against the"totality of the evidence before the judge or jury." Id. at 695. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696.

Here, even assuming error, there is no possibility that Cooper was actually prejudiced. As the California Supreme Court observed, and the district court also held:

If the jury found defendant was the killer, it necessarily would find he took the murder weapons, the hatchet and knife, with him from the Lease house.

This showed planning prior to the killing. He has an obvious motive both for stealing the Ryen car -- to get transportation away from the area -- and for killing the family -- to facilitate the theft and gain time to perfect his escape. To have argued for second degree murder verdicts might merely have undercut the credibility of the defense -- which was that the investigation had been so badly botched the prosecution simply had the wrong person. Cooper, 53 Cal.3d at 832, 281 Cal. Rptr. at 125.

The California Supreme Court further pointed out that the evidence suggested that the two children were killed after the parents. Id. As a result, even if the jury could have found second degree murder as to the parents, perhaps as a result of jury compromise, "it surely would have found the murders of the children to have been in the first degree. This would have subjected defendant to the death penalty." Id.

In sum, overwhelming evidence indicated that Cooper, an escaped convict without transportation, entered the Ryens' house with a hatchet and buck knife (both missing from the Lease house where he had stayed), murdered four people, including two children, and left another child nearly dead.

Douglas Ryen had 37 separate wounds, Peggy Ryen had 32 separate wounds, Jessica Ryen had 46 separate wounds, and Chris Hughes had 25 separate wounds. The wounds came in three varieties: chopping wounds inflicted by a hatchet, stabbing wounds inflicted by a knife, and chest wounds on Jessica inflicted by an ice pick.*fn4 Cooper suggests that rational jurors could have returned a second degree murder verdict, but each case he offers in support is distinguishable.*fn5 Given the number and types of wounds inflicted on the four murder victims, together with the multiple wounds suffered by Josh Ryen, and the killing of the two children after the killing of the parents (which Cooper does not contest), it is not reasonably probable the jury would have returned any second degree murder conviction, let alone four of them.

Thus, Cooper has not shown that his trial counsel's decision to forego second degree murder instructions prejudiced the outcome of his case. Likewise, as Cooper has failed to explain how the jury could have reasonably returned four second degree murder verdicts -- the only result that could have avoided a penalty phase -- he cannot escape the fact that whether or not the second degree murder instructions were given, he would have been subjected to a penalty phase and the death penalty.

Johnson contends that his trial attorneys were ineffective by failing to attack the State's showing on intent and by failing to advance the "third man" theory. Johnson's argument starts from the premise that trial counsel did not understand the intent element of a capital murder charge, and therefore failed to recognize the significance of Mrs. Cantrell's trial testimony. This factual allegation also underlies Johnson's broader claim that trial counsel unreasonably advanced a flimsy defense -- that he was not present at the scene of the crime -- rather than a stronger defense based upon the his lack of intent to kill and his non-participation in the murder. The Alabama Court of Criminal Appeals explicitly found that "[t]rial counsel [were] aware that intent to kill was a required element of the capital offense." Johnson v. State, 612 So.2d at 1298. That court also found that "counsel made a reasoned, strategic decision not to argue . . . that Johnson was present but did not intend that the victim be killed" based upon a desire to avoid making alternative arguments to the jury as well as a "judgment that, as a practical matter, there was little or no chance that the jury would fail to find . . . intent to kill if [it] concluded that [Johnson] had been at the scene." Id. at 1296. *fn10

Johnson fails to meet his heavy burden of proving that his trial counsel performed unreasonably by pursuing the strategy that they did. On this record, the strategic choices made by trial counsel were reasonable and constitutionally adequate in the circumstances.

In formulating their strategy before trial, Johnson's lawyers were aware of statements by Johnson himself that he was the second man involved in the robbery and that he had shot at Mr. Cantrell. *fn11 Johnson's now-preferred "third man" defense, therefore, was not compatible with the information he conveyed to his lawyers at the time. See Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000) (counsel not ineffective in choosing particular defense strategy in capital case where reasonable counsel would have determined that petitioner's alternative theory "was inconsistent with Petitioner's own description of the killing"). Notably, Johnson does not, and cannot, argue that these communications with his trial counsel are protected in this context by the attorney-client privilege. As we have explained, a party "waives its attorney-client privilege when it injects into this litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys' conduct." GAB Bus. Servs., Inc. v. Syndicate 627, 809 F.2d 755, 762 (11th Cir. 1987). By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, Johnson put at issue --and thereby waived -- any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices.

In Laughner v. United States, 373 F.2d 326 (5th Cir. 1967), we rejected the argument of a § 2255 petitioner who asserted that his trial counsel should not have been permitted to testify regarding their confidential communications, even though the petitioner put those conversations at issue by attacking the attorney's performance. The petitioner sought to vacate his conviction by arguing that his attorney provided inadequate representation. The district court, in accordance with this Court's instructions, conducted a hearing at which it heard testimony from the attorney who represented the petitioner at the time of his conviction. On the basis of that testimony, the court denied the § 2255 motion. We affirmed, and rejected the petitioner's claim of a violation of the attorney-client privilege:

We are met with the remarkable contention that appellant's rights were infringed upon by reason of the fact that the attorney he charged with failure to represent him adequately at his arraignment and sentencing was called as a witness by the government and permitted by the court to testify in this post-conviction proceeding with respect to the factual issues raised by appellant's motion. Having demanded and obtained a factual judicial inquiry into his claim that the attorney appointed to render him the assistance of counsel for his defense failed to discharge his responsibilities properly, appellant now proposes to invoke the privilege accorded confidential communications between an attorney and his client to eliminate the one source of evidence likely to contradict his allegations. We are unable to subscribe to this proposition. The privilege is not an inviolable seal upon the attorney's lips. It may be waived by the client; and where, as here, the client alleges a breach of duty to him by the attorney, we have not the slightest scruple about deciding that he thereby waives the privilege as to all communications relevant to that issue. The rule that a client waives his privilege by attacking the attorney's performance of his duties seems to have been adopted unanimously by those courts which have dealt with the question. . . . There is no contention nor any indication in the record that the testimony elicited from the attorney in this case exceeded the scope of that waiver. Consequently, appellant's claim that his privilege was violated is baseless. Id. at 327 & n.1 (citations omitted).

Laughner is the law of this Circuit and has been applied in subsequent decisions from this Court. See Crutchfield v. Wainwright, 803 F.2d 1103, 1121 (11th Cir. 1986) (en banc) (Edmondson, J., concurring) (noting in § 2254 proceeding that "[a]lthough the attorney-client privilege, in particular, and attorney-client confidentiality, in general, are important concerns due genuine deference, courts have never treated them as inviolable. When a defendant has challenged his conviction by asserting an issue that makes privileged communications relevant, he waives the privilege in respect to those communications."); Smith v. Estelle, 527 F.2d 430, 434 n.9 (5th Cir. 1976) (stating that "[n]otwithstanding the fact that counsel's decision to have his client take the stand may have involved communication with his client, [petitioner] would not be able to invoke the attorney-client privilege on remand in a post-conviction case" where petitioner alleged that he would not have testified at his trial but for the admission of a constitutionally invalid confession).

Simply put, when a habeas petitioner such as Johnson launches an attack on the reasonableness of his attorney's strategy in conjunction with a claim of ineffective assistance of counsel, he puts at issue his communications with counsel relating to those strategic choices. As Strickland itself emphasizes, the "reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, . . . on information supplied by the defendant . . . [and] . . . inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's . . . litigation decisions." 466 U.S. at 691, 104 S. Ct. at 2066; see also Chandler, 218 F.3d at 1318-19 ("Because the reasonableness of counsel's acts . . . depends critically upon information supplied by the [petitioner] or the [petitioner]'s own statements or actions, evidence of a petitioner's statements and acts in dealing with counsel is highly relevant to ineffective assistance claims." (citations and internal quotation marks omitted)). Although the precise boundaries of the waiver will vary from case to case, and in many instances will require careful evaluation by the district court, there should be no confusion that a habeas petitioner alleging that his counsel made unreasonable strategic decisions waives any claim of privilege over the contents of communications with counsel relevant to assessing the reasonableness of those decisions in the circumstances. The importance of that rule to proper resolution of a § 2554 proceeding is amply illustrated by this case -- the communications between Johnson and his trial counsel clearly reveal the incompatibility between what Johnson told his lawyers at the time and the theory of defense that his present lawyers insist their predecessors should have advanced.

Not only would a "third man" theory have been incompatible with the information supplied by Johnson to his counsel at the time, it would have had little foundation in other evidence available to counsel before the start of the trial. Mrs. Cantrell's pretrial testimony made no suggestion of a "third man." There was no evidence from the preliminary hearing, or information gleaned from defense counsel's pretrial investigation, reasonably suggesting that a "third man" defense would be successful. Indeed, the available evidence supported a two-shooter robbery theory. Accordingly, trial counsel had little if any basis to pursue a "third man" theory. And without the "third man" theory, no plausible challenge could be made to the State's proof of intent, as the second man participated in a shoot-out and clearly displayed an intent to help his partner kill Mr. Cantrell.

Given the evidence available at the time and Johnson's own admissions, the strategy actually chosen by trial counsel -- a "Johnson was not there" defense -- was reasonable. Although the evidence tying Johnson to the scene of the crime was persuasive, it still was all circumstantial and not wholly iron-clad. Counsel knew that no eyewitness could identify Johnson as being present at the crime scene. The .357 magnum handgun that was found with Johnson at the motel in Oxford was not clearly matched to any of the bullets at the crime scene. The bullet found in Johnson's back could not itself be traced definitively to Mr. Cantrell's gun. A hair found in a brown cap allegedly worn by the Johnson during the robbery and murder did not match Johnson's hair. And boots allegedly worn by Johnson during the shooting did not contain glass fragments from a shattered glass door pane. *fn12 In short, Johnson's trial attorneys had a basis to argue that a sufficient link could not be forged between Johnson and the crime. Their decision to pursue a "Johnson was not there" defense was within the range of professionally competent assistance.

Johnson nevertheless contends that, whatever the reasonableness of his lawyers' pretrial strategy, that strategy had to change once Mrs. Cantrell offered her testimony at trial. As noted above, apparent confusion in Mrs. Cantrell's testimony arguably could suggest that Johnson was not one of the two shooters, but merely a third robber. Johnson contends that Mrs. Cantrell's testimony created an opening to challenge the State's evidence on intent, and argues that it was unreasonable for his counsel not to have exploited this opportunity.

We are not persuaded that Johnson's trial attorneys provided professionally incompetent assistance by failing to alter their reasonable strategy in favor of pursuing a "third man" defense. First, the relevant portion of Mrs. Cantrell's testimony was very brief, not altogether clear, and at odds with other portions of her account of the incident. We cannot say that, under the circumstances, every reasonably competent attorney would have realized or attempted to take advantage of the potential significance of this portion of Mrs. Cantrell's testimony. Second, counsel were committed to the "Johnson was not there" defense, and to shift gears and argue in the alternative that Johnson was there, but only as the "third man," would have been risky. *fn13 The district court found that counsel had already presented to the jury the theory Johnson was not present at the robbery. See 58 F. Supp. 2d at 1344 (citing transcript of evidentiary hearing). That theory, as explained above, was reasonable. As we have explained in similar circumstances, "[a]lthough inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury." Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988). To argue in the alternative that if Johnson was there, he was a "third man" and not one of the two shooters, might well have undercut the credibility of Johnson's lawyers with the jury.

 Finally, there was little meaningful evidence beyond the highlighted portion of Mrs. Cantrell's testimony to aid a "third man" argument. Johnson himself could not have taken the stand, in light of his contrary admissions to his counsel. There remained Lindsey's testimony that Johnson had admitted to firing at Mr. Cantrell during the robbery. In addition, the physical evidence including the bullet holes in the carport door suggested that the second shooter was behind the door and not where Mrs. Cantrell seemingly indicated during her trial testimony. As the district court observed, even Mrs. Cantrell's trial testimony indicated, with the exception of a few inconsistencies, that two intruders were involved in the crime and that both participated in the murder of her husband. Given all of these circumstances, we do not find it performance error that counsel did not aggressively pursue a "third man" theory or other intent-related defenses during trial. See Waters, 46 F.3d at 1512 (performance inquiry "has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.").

Davis v. State (Fla.) Pro se filings in direct appeals of capital cases in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief will be stricken from the court's docket.

Commonwealth v. Ligons (Pa.) Relief denied on claims that: [A] the Commonwealth failed to disclose during discovery certain evidence; [B]  the prosecutor's closing argument in the penalty phase improperly interjected victim impact evidence into the case, when such evidence had not been presented during the penalty hearing; & [C] improper interjecting of non-statutory factos into the deliberation of life and death.

Other Notable Cases (As reported by Findlaw, and other sources) 
Henderson v. Norris (8th Cir) Life imprisonment imposed on first-time offender for selling 0.238 grams of crack cocaine violated the 8th Amendment prohibition on cruel and unusual punishment.

Galarza v. Keane (2nd Cir) Appellate courts are not bound by a previous habeas decision for codefendant on same issue where pre-AEDPA standards applied in one habeas petition and post-AEDPA standards applied to the other petition.

Leka v. Portuondo (2nd Cir) An off-duty police officer's eye-witness testimony that was inconsistent with prosecution witnesses' testimony regarding the killer's identity was information favorable to defendant and subject to Brady disclosure.

Raheem v. Kelly (2nd Cir) Witness identifications resulting from an unconstitutionally suggestive procedure are not admissible even if corroborated by other evidence that was inadmissible or not introduced at trial.

Hughes v. US (6th Cir) Defense counsel's failure to strike a juror who stated, on voir dire, that she did not think she could be fair, constituted ineffective assistance where neither counsel used follow-up questions and trial court did not specifically question juror.

McGraw v. Holland (6th Cir) A minor who states an unwillingness to talk about the crime because she is uncomfortable with the subject matter and feared retaliation from other defendants has effectively invoked her right to remain silent under Miranda.

Payton v. Brigano (6th Cir) Under 28 USC 2244(d), an application for state post conviction or other collateral relief does not serve to delay the date on which a judgment becomes final. Rather, such limitations merely toll the running of the statute of limitations.

Mitchell v. Mason (6th Cir)  Court-appointed counsel's failure to communicate with petitioner or conduct discovery on his behalf violated petitioner's 6th Amendment right to effective counsel, and the absence of trial counsel testimony at an evidentiary hearing does not preclude appellate review of habeas claims.

Piaskowski v. Bett (7th Cir) Where one witness with suspect credibility places defendant at the scene of the crime, and another witness relays hearsay that "everybody" hit the victim, the conclusion that defendant conspired with the others to kill the victim in order to hide the crime of battery does not amount to proof of involvement in a murder conspiracy beyond a reasonable doubt.

Tezak v. US (7th Cir) Defendant's failure to obtain a better bargain with the government than he obtained is insufficient to support a claim for ineffective assistance of counsel and establish prejudice warranting habeas relief.
To read the full text of this opinion, go to:[PDF File]

Ford v. Bowersox (8th Cir) Defendant's statement to his counsel that he believed that divine intervention would lead to his acquittal for murder alone did not require his counsel to investigate whether he was competent to stand trial.

Dukes v.  US (8th Cir ) While Apprendi will apply retroactively to cases on direct appeal at the time of that decision, it will not apply retroactively to collateral challenges to sentences.
 

Cooper v. Calderon (9th Cir) Overwhelming evidence that defendant killed victim's children after killing the victim was sufficient to show first-degree murder of children, so counsel's failure to seek lesser-included-offense instructions for second-degree murder did not prejudice petitioner.

Johnson v. Alabama (10th Cir) Where defense hinged on whether two or three men robbed and murdered victim, eyewitness testimony that after victim shot one of the robbers "they" helped wounded robber get away may still be sufficient evidence that only two men were involved.

Smith v. Jones (11th Cir) A defendant whose conviction was affirmed by the Alabama Court of Criminal Appeals must file a petition for discretionary certiorari review in the Alabama Supreme Court in order to exhaust state remedies and avoid an appellate default procedural bar.
 

Featured 

News from Equal Justice Initiative of Alabama
In its most recent newsletter, EJI Legal Quarterly, the Equal Justice Initiative of Alabama reported a number of developments in the stateÕs death penalty debate: 

• After six years on AlabamaÕs death row, Gary Wayne Drinkard was released in May when a jury acquitted him of all charges in the killing of junkyard dealer Dalton Pace. Drinkard was awarded a new trial after the state Supreme Court found that evidence presented during the first trial was unfairly prejudicial.  He is the third man to walk off of the stateÕs death row in the last eight years having been found completely innocent of the charges against him.
• Important legislative reforms concerning indigent appellate defense, judicial override, lethal injection and the wrongfully incarcerated were introduced during the 2001 Alabama legislative session. Of these measure, state lawmakers passed legislation that will provide compensation for wrongly convicted inmates.
• The State Supreme Court expressed concern over the summary rejection of jury life verdicts in capital cases. In its March decision Ex parte Taylor, the court declared for the first time that a sentencing judge who overrides a jury sentencing decision "must state specific reasons for giving the jury's recommendation the consideration he gave it." (___ So. 2d ___,  (Ala. Mar. 9, 2001))
• Death row inmates Tommy Arthur and Chris Barbour were granted stays of execution by federal courts after the state Supreme Court ordered execution dates this fall for both men.  Their dates were set despite the fact that they missed filing deadlines due to absence of counsel. Nearly 30 other death row inmates remain without counsel while their filing deadlines approach.

(EJI Legal Quarterly, Spring 2001) See also, innocence and recent legislative changes.
 

Jury Returns Life Sentence for Second Embassy Bomber
     A federal jury in New York deadlocked on a sentence for Khalfan Khamis Mohamed for his role in the 1998 bombing of the U.S. Embassy in Tanzania that killed 11 people and hence he will be sentenced to life without parole.  The same jury spared the life of Mohamed's co-defendant, Mohamed Rashed Daoud Al-'Owhali, last month when they deadlocked on whether to impose the death penalty in his case.  Without a unanimous verdict, Al-'Owhali could not receive the death penalty.
    In Mohamed's case, the jurors could not agree that the death penalty was appropriate.  Among the reasons cited by the jurors for Mohamed's life sentence were that he was not the leader of the conspiracy, that equally or more culpable conspirators did not receive the death penalty and that execution could make Mohamed a martyr.  In addition, all 12 jurors believed that executing Mohamed would cause his family to suffer grief and loss.  (CNN.com, 7/10/01)  See also, federal death penalty.

Connecticut Governor Signs Bill to Ban Execution of the Mentally Retarded
     In Connecticut, Governor John Rowland signed a bill to prohibit the execution of those with mental retardation.  The bill, signed on July 6th, also provides for a study of the state's death penalty system. The study will examine whether there are disparities in prosecutors' decisions to seek the death penalty based on a defendant's or victim's race or economic status.  The bill is effective as of July 1, 2001.  (CT Public Act No, 01-151)
     Connecticut is the fourth state this year to ban the execution of those with mental retardation (others are Arizona, Florida and Missouri), bringing the total number of states prohibiting such executions to seventeen, plus the federal government.  See also, mental retardation.

Briefs Filed in McCarver Case Urge Supreme Court to End Executions of the Mentally Retarded
    Several briefs by prominent national and international groups have been filed in the pending U.S. Supreme Court case of McCarver v. North Carolina, involving a death row inmate in North Carolina with mental retardation.  In its next term, the Court will consider whether executing those with mental retardation offends society's "evolving standards of decency" and thus violates the Eighth Amendment's ban on cruel and unusual punishment.  Among those filing briefs in support of McCarver are: nine veterans of the American Foreign Service (see below), the European Union, the American Bar Association, the U.S. Catholic Conference, the American Association on Mental Retardation, the American Psychological Association, and the American Civil Liberties Union.  (Supreme Court Docket, 7/10/01) 
    Read McCarver's petition for certiorari, the European Union's amicus brief (located under "Action on U.S. Death Cases"), and the former American Foreign Servicemen's brief.  See also, Mental Retardation and Supreme Court.

NEW VOICES: Federal Judge Considers Likelihood of Wrongful Executions 
Federal Judge Michael Ponsor recently wrote about his experience presiding over the case of Kristen Gilbert, the first death penalty case in Massachusetts in several decades:

The experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people - not too often, one hopes, but undoubtedly sometimes.  Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time.  Any honest proponent of capital punishment must face this fact. 

To be forthcoming

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

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Volume IV, issue 25

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