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.

Supreme Court
No cases noted

Captial Case Relief Granted
Evans v. State (Nev) Trial & appellate counsel ineffective for failing to challenge prosecutor's closing remarks.

Evans contends that his counsel failed to respond effectively to prosecutorial misconduct during closing argument in the penalty phase. We agree that some of the prosecutor's remarks were erroneous and prejudicial.

First, the prosecutor made a number of comments that Evans says expressed personal opinion and lacked factual support. The prosecutor offered his view that the penalty hearing was not a rehabilitation hearing and asserted that its purposes were retribution and deterrence of Evans and others. He argued that when a person kills four people in a systematic way as in this case, "in my view, based upon this evidence, such a person has forfeited the right to continue to live." He also asked when the death penalty could be appropriate if not this case. We perceive no error in these remarks. A prosecutor in a penalty phase hearing may discuss general theories of penology, such as the merits of punishment, deterrence, and the death penalty.*fn48 And statements indicative of opinion, belief, or knowledge are unobjectionable when made as a conclusion from the evidence introduced at trial.*fn49

The prosecutor also deplored "an era of mindless, indiscriminate violence" perpetrated by persons who "believe they're a law unto themselves." He argued that Evans "is one of these persons. This is his judgment day." Federal courts have held that it is improper for a prosecutor to urge the jury to convict in order to solve a social problem.*fn50 This court has similarly condemned comments in the penalty phase of a murder prosecution that diverted jurors' attention from their correct task, "which is the determination of the proper sentence for the defendant before them, based upon his own past conduct."*fn51 The remarks here inappropriately invoked circumstances beyond the case at hand, but we believe that they were not extreme and did not, standing alone, divert the jury from its proper task of sentencing Evans for his own crimes.

Other prosecutorial remarks were excessive and unacceptable and should have been challenged at trial and on direct appeal. In rebuttal closing, the prosecutor asked, "do you as a jury have the resolve, the determination, the courage, the intestinal fortitude, the sense of commitment to do your legal duty?" Asking the jury if it had the "intestinal fortitude" to do its "legal duty" was highly improper.*fn52 The United States Supreme Court held that a prosecutor erred in trying "to exhort the jury to 'do its job'; that kind of pressure . . . has no place in the administration of criminal justice."*fn53 "There should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality."*fn54 The prosecutor's words here--"resolve," "determination," "courage," "intestinal fortitude," "commitment," "duty"--were particularly designed to stir the jury's passion and appeal to partiality.

The question is whether the prosecutor's improper remarks prejudiced Evans by depriving him of a fair penalty hearing.*fn55 Again, considered alone, perhaps they did not, but the prosecutor erred further. Commenting on penalty phase evidence that Evans was involved in cocaine trafficking and convicted of leaving the scene of a car accident, the prosecutor told the jury:

Ms. Erickson argues that you can't consider or discuss that evidence unless you find that aggravating circumstances had been proven beyond a reasonable doubt. And it may be a semantical thing again, but regardless of the punishment you select, it doesn't seem inappropriate to have all the information you can get about the character of a defendant. I just take issue with the remark that you have to wait until a certain point in the deliberation to consider that someone has two prior felony convictions, and that he made his living by selling poison. It seems to me regardless of the punishment that ought to be a factor, as reasonable men and women, that you can consider. (Emphasis added.)

This argument was absolutely incorrect.

To determine that a death sentence is warranted, a jury considers three types of evidence: "evidence relating to aggravating circumstances, mitigating circumstances, and 'any other matter which the court deems relevant to sentence.'"*fn56 The evidence at issue here was the third type, "other matter" evidence. In deciding whether to return a death sentence, the jury can consider such evidence only after finding the defendant death-eligible, i.e., after it has found unanimously at least one enumerated aggravator and each juror has found that any mitigators do not outweigh the aggravators.*fn57 Of course, if the jury decides that death is not appropriate, it can still consider "other matter" evidence in deciding on another sentence.*fn58

The State contends that the prosecutor was simply amending a statement by defense counsel, who told the jurors that they could not consider the "other matter" evidence introduced by the prosecution unless they first found an aggravating circumstance. The State maintains that the prosecutor's argument was therefore proper. We disagree. Defense counsel's argument was incomplete in that she did not tell the jurors that they could also consider the other evidence if they decided that death was not an appropriate sentence.*fn59 However, even if we assume that the prosecutor's improper argument was an attempt to cure the omission, it failed to do so. Instead, it incorrectly informed the jurors that they did not "have to wait until a certain point in the deliberation" to consider the other evidence. This was incorrect and in no way remedied defense counsel's incomplete argument.

Nor does it appear that defense counsel was trying to mislead the jury or somehow gain an unfair advantage when she failed to address the use of "other matter" evidence in the event that the jury rejected death and considered a lesser sentence. She was understandably concerned with the possibility of a death sentence and wished to prevent the other evidence from improperly influencing the jury's finding of statutory aggravating circumstances. Her argument was correct in that regard, as was her concern--the jury returned a death sentence and never reached the stage of considering sentences less than death. Of course, if the prosecutor was concerned that the jury might reach that stage, he had a right to inform the jury of the omission in the defense argument; instead, however, he made an incorrect argument that introduced affirmative error.

The State also asserts that the jury received proper written instructions. The instructions were accurate as far as they went but did not explain the restricted use of "other matter" evidence. Thus, they did not cure the error introduced by the incorrect argument.*fn60

For future capital cases, we provide the following instruction to guide the jury's consideration of evidence at the penalty hearing:

In deciding on an appropriate sentence for the defendant, you will consider three types of evidence: evidence relevant to the existence of aggravating circumstances, evidence relevant to the existence of mitigating circumstances, and other evidence presented against the defendant. You must consider each type of evidence for its appropriate purposes.

In determining unanimously whether any aggravating circumstance has been proven beyond a reasonable doubt, you are to consider only evidence relevant to that aggravating circumstance. You are not to consider other evidence against the defendant.

In determining individually whether any mitigating circumstance exists, you are to consider only evidence relevant to that mitigating circumstance. You are not to consider other evidence presented against the defendant.

In determining individually whether any mitigating circumstances outweigh any aggravating circumstances, you are to consider only evidence relevant to any mitigating and aggravating circumstances. You are not to consider other evidence presented against the defendant.

If you find unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists and each of you determines that any mitigating circumstances do not outweigh the aggravating, the defendant is eligible for a death sentence. At this point, you are to consider all three types of evidence, and you still have the discretion to impose a sentence less than death. You must decide on a sentence unanimously.

If you do not decide unanimously that at least one aggravating circumstance has been proven beyond a reasonable doubt or if at least one of you determines that the mitigating circumstances outweigh the aggravating, the defendant is not eligible for a death sentence. Upon determining that the defendant is not eligible for death, you are to consider all three types of evidence in determining a sentence other than death, and you must decide on such a sentence unanimously.

In this case, we conclude that Evans's trial and appellate counsel were deficient in not challenging the prosecutor's improper argument, and we conclude that Evans was prejudiced as a result. This court has recognized the heightened need for reliability in capital cases and the "tremendous risk that improperly admitted character evidence will influence a jury in setting a punishment for a convicted defendant. This risk is unacceptably high when the defendant has been convicted of murder and faces the death penalty."*fn61 Although the evidence here was not improperly admitted, the prosecutor directed the jury to consider it improperly to determine death eligibility.

The Supreme Court has held that the Constitution requires a capital sentencing process to "'genuinely narrow the class of persons eligible for the death penalty.'"*fn62 A sentencing scheme must direct and limit the sentencer's discretion to minimize the risk of arbitrary and capricious action.*fn63 It must provide a principled basis for the sentencer to distinguish defendants who deserve capital punishment from those who do not.*fn64 In Nevada, the finding of enumerated aggravators is essential to this narrowing function, and so is the weighing of such aggravators against any mitigating evidence. If the jurors relied prematurely on "other matter" evidence to find or give weight to enumerated aggravators, then the narrowing contemplated by the Nevada statutes and required by the federal Constitution did not occur.*fn65 A new penalty hearing is therefore required.

Neither the Due Process clause nor the Eighth Amendment forbid the giving of an Allen charge in the sentencing phase of a capital proceeding. Lowenfield v. Phelps, 484 U.S. 231 (1988); see also Jones v. United States, 527 U.S. 373 (1999) (no constitutional requirement that capital jury be informed of consequences of its failure to agree). Whether an Allen charge is unconstitutionally coercive must be judged "in its context and under all the circumstances." Lowenfield, supra. While recognizing the State's strong interest in having a jury determine the sentence, Lowenfield reaffirmed that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Id. (internal citations omitted). The Court also noted that the societal costs of a retrial are not a factor in those cases where, as in South Carolina, the law provides for a life sentence if a capital sentencing jury hangs. Id.

Lowenfield is the definitive United States Supreme Court decision on the constitutionality of an Allen charge in a capital sentencing proceeding. The test for determining whether a given charge is unconstitutionally coercive is very fact intensive. For that reason, we have discussed Lowenfield in some detail below.

After the jury convicted Lowenfield of two counts of manslaughter and three counts of murder, the initial charge in the sentencing phase admonished the jurors to consider the view of others with the object of reaching a verdict, but also instructed them not to give up their own honest beliefs in order to do so. The jury deliberated late into the night and resumed the next day. During that afternoon, the foreman sent a note that the jury was unable to reach a verdict at that time and asked for a recharge on the jurors' responsibilities. In response to the judge's inquiry, eleven of the jurors responded that further deliberations would probably allow them to reach a verdict. The trial judge charged the jury:

When you enter the jury room it is your duty to consult with one another to consider each other's views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment.

Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to re-examine your own views and to change your opinion if you are convinced you are wrong but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

Thirty minutes later, the jury returned a death sentence on all three murder counts.

In upholding the constitutionality of this charge, the Court considered:

(1) the charge did not speak specifically to the minority juror(s);

(2) the judge did not include in his charge any language such as "You have got to reach a decision in this case"

(3) there was no inquiry into the jury's numerical division, which is generally coercive; and

(4) while the jury returned a verdict shortly after the supplemental charge, which suggests a possibility of coercion, weighing against this is the fact that trial counsel did not object either to the inquiry into whether the jurors believed further deliberation would result in a verdict, nor to the supplemental charge.

 The Lowenfield court concluded:

We hold that on these facts the combination of the polling of the jury and the supplemental instruction was not "coercive" in such a way as to deny petitioner any constitutional right. By so holding we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body.

Lowenfield sets the standard by which petitioner's constitutional claim is to be judged. We therefore apply the Lowenfield factors to petitioner's facts....

Petitioner and his attorneys were denied a meaningful opportunity to protect petitioner's rights. The judge did not disclose the contents of the jury's first note, which revealed a 10-2 deadlock in favor of the death penalty, but rather told the attorneys only that the jury wished to rehear some testimony. When the jury sent a note the next day, the judge did inform the attorneys that the jury was divided 11-1, but again did not reveal that the jury was in favor of death, nor that the foreman had used the term "hopelessly deadlocked," nor that he had written "I do not feel we will ever get an unanimous verdict."

We find the combination of withholding pertinent information from the parties, thereby depriving them of the facts necessary to make informed decisions; failing to instruct the jury to omit from its future communication any reference to the nature of its division; and giving an unconstitutionally coercive Allen charge, with its emphasis on a collective result, shocking to the universal sense of justice. We emphasize that it is the combination of factors, in the setting, which compel us to grant petitioner a writ of habeas corpus and to order a new sentencing proceeding.

Federal Captial Cases Relief Denied 
Beck v. Angelone  (4th Cir) Relief denied as Petitioner was competent a the time of trial & Petitioner's affidavit stating that he would not have pled guilty if his attorneys had explained the case better is not sufficient evidence that he would not have pled guilty but for counsels' alleged errors.

With respect to counsels' performance, the record indicates that Beck was adequately informed of the nature and consequences of his guilty pleas and understood the charges against him. According to the affidavit submitted by Beck's trial counsel on state habeas, counsel discussed the guilty plea with our client, repeatedly, at length, and in great detail. We both have experience with Arlington juries and serious crimes and we both felt it highly likely that an Arlington jury would convict our client and sentence him to death. We discussed the advisability of a jury versus a judge sentencing with other attorneys in the areas, and they concurred that a jury was likely to sentence Beck to death.

We knew from the outset that Judge Newman would try this case, that he had no prior capital case experience, and that he was fair in sentencing in other serious felony cases. We also believed that the evidence in mitigation we intended to present would be more favorably received by a judge than a jury. We recommended to Beck that he plead guilty and have judge sentencing as presenting only a better likelihood of avoiding a death sentence. The decision to plead guilty and have Judge Newman sentence was ultimately Beck's decision, after our recommendation and numerous discus- sions of the pros and cons of the different options.

We discussed, at length, with Beck the elements of all offenses charged and in detail what the Commonwealth would have to prove to convict him. We discussed the possi- bility that Beck could avoid a rape conviction, based on his denials of that offense, and the possible effort to defeat the robbery charges on the theory that the taking of property was independent of the killings. We discussed with Beck the fact that his statements included remarks indicating that he intended to take property from the Miller house. The evi- dence of the taking of Florence Marks' purse and David Kaplan's wallet, easily could be seen as robbery plain and simple and not as an effort to make it "look like robbery." Beck's tearing the wallet from Kaplan's trousers and col- lecting items to steal as Kaplan arrived, along with other cir- cumstances, made it likely that his conduct would meet the Virginia Supreme Court's definition of robbery in capital murder cases.

We also discussed with Beck the fact that even if we some- how could defeat the robbery and rape components of the charges, we still would be left with a capital mur- der/multiple murders, where the jury had heard all the same evidence, and still likely would sentence him to death.

Beck participated in the discussions about the offenses, ask- ing relevant and intelligent questions concerning the ele- ments and possible defenses, and clearly understood the issues involved in pleading guilty. He refused to acknowl- edge guilt in the rape of Florence Marks or the related fire- arms charge for rape. He pleaded guilty to the capital murder of Florence Marks, understanding that the underly- ing felony charged was rape or robbery.

Prior to the plea hearing, Beck executed a plea memorandum. The plea memorandum detailed Beck's understanding of his trial rights and the advice he received regarding his pleas, including advice about the charges:

My attorneys have explained to me what the Common- wealth (the prosecutor) must prove in order to convict me of the crime that I am pleading guilty to. I have told my attorneys everything I know about the charges against me. I have discussed with my attorneys any possible defenses I might have to the charges against me.

According to Beck's trial counsel,

[t]he plea memorandum that was executed in connection with the guilty pleas accurately sets out the offenses and the discussions we had with our client. We had the memoran- dum several days before the date the pleas were entered and thoroughly discussed it with Beck. Because we knew of our client's difficulty in reading, we read the agreement memo- randum to him and discussed the provisions over and over to make sure he understood everything. At the time he pleaded guilty, Beck knew the significance of his pleas of guilty, he understood the rights he waived, and he made the decision to plead.

At the plea hearing, the state trial court conducted an extensive col- loquy with Beck concerning the voluntariness and intelligence of his guilty pleas. Beck's replies to the state trial court's questions were clear and responsive, and Beck repeatedly demonstrated his under- standing of the charges and the trial proceedings. Indeed, in the collo- quy with the state trial court, Beck acknowledged that he had discussed the entire plea memorandum with his attorneys and that he understood everything contained in it, that he understood the nature of the charges against him, that he had discussed the elements of each of the offenses with his attorneys, that his counsel had explained the elements of each of the offenses to him, that he was pleading guilty to all of the charges except two because he was in fact guilty, that he was entering an Alford plea with respect to two of the charges because it was in his best interest to plead guilty to these two charges, that he was waiving certain constitutional rights, and that he understood the possible sentences he could receive.

In the face of the overwhelming evidence that Beck's plea was knowingly, voluntarily, and intelligently made, Beck relies on an affi- davit he submitted on state habeas. In the affidavit, Beck states that his counsel "did not explain the elements of any crime to me." Beck further states:

My lawyers did not explain to me that capital murder was different than murder. I did not understand that. If I had understood there was a difference, I would not have pled guilty to the capital murder of Florence Marks, because I did not rape her, and I told my lawyers that I didn't rape her. I would not have pled guilty to any of the capital murder charges if I had understood that taking property by itself was not robbery. Beck's reliance on his affidavit is misplaced. "Absent clear and con- vincing evidence to the contrary," Beck "is bound by the representa- tions he made during the plea colloquy." Burket, 208 F.3d at 191; see also Fields v. Attorney General of State of Maryland , 956 F.2d 1290, 1299 (4th Cir. 1992). Beck has presented no evidence of sufficient evidentiary force to demonstrate that his representations were untruth- ful or involuntary. Cf. Brady, 397 U.S. at 755 (holding that a guilty plea is made knowingly and intelligently if the defendant is fully aware of the "direct consequences" of his guilty plea and was not induced "by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no relationship to the prosecutor's business (e.g. , bribes)") (citation and internal quotation marks omitted). Beck is, therefore, bound by his representations. Burket, 208 F.3d at 191.

In any event, there is no "reasonable probability" that, but for coun- sels' alleged errors, Beck "would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. In trial counsels' opinion, Beck's chances of receiving a life sentence were better if a judge, rather than a jury, sat as the trier of fact. Obviously, if trial counsel had done all that Beck now says they should have, trial coun- sels' view of the case would not have changed. And, given the over- whelming evidence of guilt, the circumstances of the crime, and the lack of available defenses, we believe that, even absent the alleged errors of counsel, Beck would not have insisted on going to trial.
In summary, "reasonable jurists" could not disagree with the dis- trict court's determination that Beck's counsel were not constitution- ally ineffective in connection with Beck's pleas of guilty. Slack, 529 U.S. at 484. Therefore, we deny Beck's request for a certificate of appealability as to this issue.

Puckett v. State (Miss.) "[T]hough the trial judge erred in finding that Puckett failed to establish a prima facie case of discrimination, the trial judge correctly determined that the explanations offered by the State were race-neutral and that Puckett failed to demonstrate that the State's proffered reasons were pretextual." 

State v. Jaynes, No. 194A92-2 (N.C. 07/20/2001)  Relief denied on claims concerning: jury selection did not follow state law guidelines, that trial counsel erred in his manner of selecting a jury, limitations on "life qualifying" the jury, the death qualification process, limitation on mitigation evidence, jury instructions in the penalty phase & cumulative error.

State v. Fowler, No. 164A00 (N.C. 07/20/2001) Relief denied on claims pertaining to admission of certain hearsay statements,  in court identification, exclusion of exculpatory statements, sufficiency of the evidence, instructions in the guilt phase for related crimes, & submission of the aggravating circumstance of murder to "avoid subsequent detection and apprehension for a crime."

State v. Hooks  (N.C.) Relief denied on claims that  the trial court committed plain error while instructing the jury by defining reasonable doubt in a manner that was legally incorrect and that lowered the State's burden of proof;  committed prejudicial error by submitting as the sole aggravating circumstance that the murder was especially heinous, atrocious, or cruel;  trial court erred in failing to submit the (f)(2) mitigating circumstance, that defendant committed the murder under the influence of mental or emotional disturbance & that when the prosecutor offered a victim-impact statement it exceeded the allowable scope of such statements.
 

Other Notable Cases (As reported by Findlaw, and other sources) 
United States v. Teeter (1st Cir) An advance waiver of appellate rights contained in a plea agreement may be valid, but the district court must address on the record any waiver of appellate rights to sufficiently assure a knowing and voluntary plea.

Fortini v. Murphy (1st Cir) While it is error to prohibit introduction of evidence showing the victim's state of mind if it tends to prove the defendant's claim of self-defense, only the most extreme errors are violations of federal due process.

Kerman v. City of New York (2nd Cir) An uncorroborated and anonymous 911 call that a person is about to commit suicide is not sufficient to establish exigent circumstances for a warrantless entry into a dwelling.

Pavel v. Hollins (2nd Cir) Trial attorney that did not prepare a defense, on the theory that the charges against defendant would be dismissed at the close of the prosecution's case, provided ineffective assistance of counsel.

United States v. Clark (5th Cir)  In determining whether an amendment to a habeas petition would be futile, district courts may need to determine whether Apprendi announces a substantive change in the law requiring retroactivity or a change in procedure requiring application of Teague v. Lane, 489 U.S. 288 (1989).

Steverson v. Summers (6th Cir) Habeas petitioner is not "in custody" for purposes of challenging expired state criminal convictions used to enhance federal sentence.

Dahler v. United States (7th Cir) Apprendi does not apply to certain sentence enhancements, such as the designation of armed career criminal found in 18 USC 924(e)(1), that might require the jury to consider the fact of a previous conviction.

Pennington v. Norris (8th Cir) A prisoner who files a habeas petition that challenges the execution of his sentence and validity of a conviction previously challenged has the option of having the exhausted conviction claims dismissed and proceeding with the unexhausted sentence claims.

Featured 
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."

Amnesty International accused the United States yesterday of "contempt for international law and common standards of decency" for the planned execution this month of a convicted murderer who was a juvenile, aged 17, at the time of his crime. 

 
Napoleon Beazley has admitted shooting dead an elderly man in a 1994 car theft. John Luttig, 63, was shot twice in the head in front of his wife at their home in Tyler, Texas. Beazley's bloody footprint was found beside Luttig's body. 

However, with only a fortnight to go before Beazley is due to die by chemical injection, his lawyers are pointing out that he had no prior criminal record and demonstrated profound remorse over the killing, to the point of contemplating suicide. 

The statements used by the prosecution to persuade the trial jury that he would pose a future threat to society if allowed to live were part of a plea bargain by Beazley's two friends who also took part in the theft of Luttig's Mercedes. 

The two accomplices, Cedric and Donald Coleman, later recanted statements that helped the prosecution describe Beazley as an "animal", in a trial Amnesty alleges was tinged with racism. Beazley is black and his victim was not only white (as in 80% of US murder cases which lead to execution) but also the father of a federal appeal court judge, Michael Luttig, who is tipped as a possible supreme court justice. The jury was all white. 

One of the prosecutors in the case, Jack Skeen, denied that the victim's race or family links had anything to do with the death penalty. 

"We went in and prosecuted the triggerman. And all the evidence supports that Beazley was the triggerman," Mr Skeen said. 

Amnesty and US human rights groups note that Beazley was 17 at the time of the murder. "In Texas, under 18s are considered too young to vote, drink or serve on a jury - yet the state shows no qualms in sentencing them to death," Amnesty said yesterday in a report. 

While 23 states still permit the death penalty for juvenile offenders, only seven have carried out such executions in recent times. 

Since resuming capital punishment in 1982 after a decade-long moratorium, Texas has put to death nine convicts who were 17 at the time of their crimes. The state currently has 31 juvenile offenders on its death row. 

"In the last decade the United States has executed more juvenile offenders than all the world's nations combined," the American Bar Association (ABA) claimed in a report on the Beazley execution. The report said that only the US, Iran and Congo still executed juvenile offenders and that both Iran and Congo had shown signs of rethinking. 

In 1992, when the Senate ratified the international covenant on civil and political rights, it reserved the US right to exempt itself from a clause barring the death penalty for juvenile offenders. 

The ABA argued that the execution of juveniles like Beazley "runs counter to basic American standards of justice and fairness" which reserve capital punishment for the "worst of the worst" offenders. 

"By their very nature, teenagers are less mature, and therefore less culpable, than adults who commit similar acts but have no such explanation for their conduct," the ABA report said. 

There are signs in the US, that the mood is changing about executing juvenile offenders. After a year-long study, a bipartisan commission including prominent prosecutors and death penalty supporters issued a list of recommendations on how to reduce the number of wrongful capital convictions. One of them was to stop executing convicts who were under 18 at the time of their crime. 

Beazley, who is on death row in Livingston, Texas, is unlikely to get a stay of execution in a state with a reputation for rejecting appeals for clemency or stays of execution. 

"Death is inevitable," he was quoted as telling the Associated Press news agency. "It's not like it's my adversary." 

Mr Skeen said: "I'm confident the jury's verdict was correct, and the death penalty was appropriate. We've done our job and the justice is being carried out."
 

Nebraska Legislative Study Finds Wealth Influences Death Penalty Decisions 
     A study commissioned by the Nebraska legislature and released today (Aug. 1) found that death sentences are almost 4 times more likely when the victim in the underlying murder was well-to-do than when the victim is poorer, even when similar crimes are compared.  This result raises the prospect that the lives of the wealthy are counted as more valuable in the criminal justice system than the lives of the poor.  The study also found evidence of geographical disparities in seeking the death penalty.  Prosecutors in rural counties were less likely to seek the death penalty than those in urban counties.  This tendency was neutralized by a reverse trend by Nebraska judges in handing down death sentences.  The study did not find racial bias in the application of Nebraska's death penalty, nor did it find that death sentences were disproportionate to the crimes committed.  The study examined over 700 homicide cases that resulted in a conviction between 1973 and 1999. (Executive Summary: The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999); A Legal and Empirical Analysis). Read the Executive Summary. 

 Prominent Organizations Urge Texas Governor to Grant Clemency to Juvenile Offender 
   The American Bar Association, the Children's Defense Fund, the European Union, and the National Mental Health Association have all written letters to Texas Governor Perry asking that he commute the sentence of Napoleon Beazley, a juvenile offender scheduled to be executed on August 15th.  The letters note the international consensus against executing juvenile offenders, and point out that executing Beazley is contrary to the International Covenant on Civil and Political Rights and the American Convention on Human Rights. 
     Among those calling for clemency is Amnesty International, which released a report on Beazley's case, "United States of America: Too young to vote, old enough to be executed - Texas set to kill another child offender."  The report highlights the international, racial, and fairness issues surrounding Beazley's case.  Beazley, an African-American, was sentenced to death by an all-white jury for the 1994 killing of John Luttig, a white businessman whose son is a federal appeals court judge.  At Beazley's trial, his co-defendants testified against him, but have since signed affidavits admitting that much of their critical trial testimony was untrue. They also admit that they testified for the state against Beazley on the basis of an undisclosed deal that secured them life sentences.  (Amnesty International News Release, 7/31/01 and the American Bar Association's Juvenile Justice Project) 
     Read Amnesty International's Press Release and the report, "United States of America: Too young to vote, old enough to be executed."  For more information, see the American Bar Association's Juvenile Justice Project's Web page on Napoleon Beazley. 

 Psychiatrist Finds Brain Damage and Childhood Abuse Prevalent Among Death Row Inmates 
    Dr. Dorothy Otnow Lewis, a professor of psychiatry at New York University, has spent years evaluating death row inmates and has found that most of those she examined have damaged brains and were victims of physical battering or sexual abuse as children.  In her studies, Dr. Lewis has interviewed and sorted through the medical and family histories of 150-200 murderers.  Her longtime collaborator, Dr. Jonathan H. Pincus, the chief of neurology at the Veterans Administration Hospital in Washington, supplements Dr. Lewis' interviews with neurological examinations of the inmates. 
    Dr. Lewis and Dr. Pincus' 1986 study of 15 death row inmates found that all had suffered severe head injuries in childhood, about half had been injured by assaults, and six were chronically psychotic.  For many of the inmates, childhood medical records and interviews with family members were necessary, because the inmates had been so traumatized that they could not remember how they received their scars.  "Far from invoking an 'abuse excuse,' Dr. Lewis said, all but one had minimized or denied their psychiatric disorders, figuring it was better to be bad than crazy."  (New York Times, 7/21/01)

Arizona Supreme Court Favors Judge's Discretion in Capital Cases 
     A majority of the justices on the Arizona Supreme Court say judges should be allowed to consider any "residual doubt" on their part when imposing sentencing. "What harm is done by showing mercy because there is a possibility of the defendant's innocence?" wrote Justice Stanely Geldman.  Currently in Arizona, a jury determines whether or not the defendant is guilty, and if a guilty verdict is rendered, a judge decides the appropriate sentence.  The justices said trial judges should be able to impose a life sentence instead of the death penalty if they have any doubt about the jury's guilty verdict.  Although all three justices agreed with the concept, it will not automatically become law because Justice Charles Jones said that such a move would require legislation.  He noted that it is the state legislature's duty to decide what judges can consider in imposing sentencing.  (Arizona Daily Star, 7/18/01) 

NEW RESOURCES: A recent article in the New York Times, "Argument Escalates on Executing Retarded,"  examines the debate about whether or not people with mental retardation should be subject to capital punishment.  The article offers background on the issue, including information on the Johnny Paul Penry case and the Supreme Court's decision to consider the constitutionality of such executions.  The piece also highlights the cases of three mentally retarded inmates who have been executed, and reviews recent legislation banning the execution of those with mental retardaton.  (New York Times, 7/23/01) Read the entire article.  See also, recent articles on the death penalty. 

 NEW VOICES: Texas Judge Questions Fairness of the Death Penalty 
      Senior State District Judge C.C. "Kit" Cooke recently expressed his concerns about the fairness of the death penalty during a legal seminar.  The Texas judge recalled how the 11 death penalty cases he presided over during his 23-years as a judge altered his feelings about capital punishment.  Cooke helped craft the state's death penalty law when he served as a state representative.  "I was looking at it as a young politician, with about 90 percent of my district supporting the death penalty.  Now, from a judge's perspective and taking care of people's rights, I think it has a lot of flaws."  Among the flaws cited by Cooke were inadequate legal representation, access to DNA testing and the racial disparity of those executed. "I think the mood is changing in this country and people are realizing there are deficiencies in the system," said Cooke.  "We always think we've got the right person, but the system is not infallible."  (Fort Worth Star-Telegram, 7/24/01)  See also, New Voices. 

Now available on DPIC's Web site: "Race and the Death Penalty in North Carolina - An Empirical Analysis:  1993-1997"  The study, released earlier this year by researchers from the University of North Carolina, is the most comprehensive review of the death penalty ever conducted in North Carolina.  It found that race plays a significant role in who gets the death penalty. For more information, read the Common Sense Foundation Press Release and DPIC's Press Advisory regarding the study.  See also, Studies on the Death Penalty. 

 North Carolina Legislature Passes Bill to Prohibit Executing those with Mental Retardation; Could Affect McCarver Case 
     On July 24th, a bill to ban the execution of the mentally retarded was approved by the North Carolina General Assembly.  The new version of the bill is a compromise between the House and Senate versions.  The bill allows capital defendants to seek to have themselves declared mentally retarded in a pre-trial hearing if the prosecutor consents, or after their trial.  The post-trial determination requires a unanimous jury verdict.  To be ruled mentally retarded, defendants must score 70 or below on an IQ test and must prove they had intellectual and adaptive disabilities before age 18.  The bill now goes to Governor Mike Easely. If signed, North Carolina will be the 18th state to ban the execution of the mentally retarded. (Associated Press, 7/24/01 and Charlotte Observer 7/24/01) 
    The bill could also affect whether or not the U.S. Supreme Court will hear the case of Ernest McCarver, a North Carolina death row inmate with mental retardation.  Earlier this year, the Court decided to hear the case to determine the constitutionality of executing those with mental retardation.   Because the bill has a retroactive provision that would make it applicable to McCarver,  it is possible that the Court will dismiss his case as moot. (News and Record, 7/26/01)  See also, mental retardation and the death penalty and proposed legislative changes. 

 Nebraska Death Penalty Study to Be Released 
     On August 1, the results of a capital punishment study commissioned by the Nebraska legislature in 1999 are expected to be released.  The study, conducted by the Lincoln law firm Keating, OÕGara, Davis and Nedved and University of Iowa Law School professor David Baldus, one of the countryÕs leading death penalty researchers, examined the cases of approximately 200 people convicted of first degree murder in Nebraska since 1973.  The cases include both capital cases and cases in which the death penalty was not sought, and the study is expected to compare the two.  "The question is always going to be, those people who don't get the death penalty, but are eligible for it, what are the factors that determine that?" said Jerry Soucie, an attorney with the Nebraska Commission of Public Advocacy. "I think it's going to be hard to find objective factors." 
     George Kendall, a staff attorney with the NAACPÕs Legal Defense and Education Fund in New York, said the Nebraska study is reflective of a mounting nationwide concern with the death penaltyÕs fairness.  "20 states ([this] year) had moratorium bills introduced, 14 states had bills to abolish the death penlaty," he said.  "You never would have seen those numbers a few years ago."  (Lincoln Journal Star, 7/25/01)  See also, studies on the death penalty. 

 Pope Expresses Death Penalty Opposition to President Bush 
    Pope John Paul II admonished President Bush for his support of capital punishment, saying the death penalty does not belong in "a free and virtuous society."  At his summer residence in Castelgandolfo, the pontiff told the visiting President, "In defending the right to life, in law and through a vibrant culture of life, America can show the world the path to a truly humane future."  The Pope, an ardent opponent of the death penalty, told Bush that America "must reject practices that devalue human life."  (Agence France Presse, 7/23/01)  See also, New Voices. 

 NEW RESOURCES:  The Tennessean Features Series on the Death Penalty 
     This week, the Tennessean will take a five-part look at whether or not Tennessee fairly imposes the death penalty.  The series, available at http://tennessean.com/special/dp/ will feature many articles about the death penalty, including: 

 Sunday, July 22 - Missing files raise doubts about death sentences 
 Monday, July 23 - Half of death sentences overturned on appeal 
 Wednesday, July 25 - Dozens of defense lawyers have been in trouble themselves. 
 Friday, July 27 - One-in-four blacks sent to death row by all-white juries. 
 Sunday, July 29 - Experts suggest ways to make the death penalty more fair. 
See also, articles about the death penalty. 

Oklahoma Will Review Three Death Penalty Cases In Which Suspect Police Chemist Testified 
     Oklahoma's Attorney General, Drew Edmonson, said additional forensic testing was needed in the cases of Oklahoma death row inmates John Michael Hooker, Michael Hooper and Curtis McCarty.   The Attorney General's office has been reviewing the cases in which police chemist Joyce Gilchrist played a role.  Gilchrist was a police chemist for 21 years and worked on over 1,300 cases.  She helped send 23 people to death row, 11 of whom have been executed. 
     After coming under fire from defense attorneys, local police, and the FBI, Gilchrist is currently suspended pending an administrative hearing while state and local agencies review the criminal cases in which she testified.  Investigators have reopened the files of 12 prisoners currently on death row, and found that Hooker, Hooper and McCarty's caseses require further study. 
     Earlier this year, Jeffrey Pierce, who spent 15 years in prison for a rape he didn't commit, was released because DNA testing proved he did not commit rape.  At his trial, Pierce was placed at the crime scene by Gilchrist's testimony.  (Washington Post, 7/20/01 and Associated Press, 7/22/01) 

Upcoming Training

August 9 - 12, 2001
National Federal Habeas Corpus Seminar
Nashville, Tennessee
Contact:  Hunter Labovitz:  800.788.9908
Email:  Hunter_Labovitz@ao.uscourts.gov
Nationally recognized habeas experts discuss legal developments since the implementation of the Antiterrorism and Effective Death Penalty Act of 1996, and how to handle a capital post-conviction proceeding. This program focuses on representation in a capital habeas case in toto, i.e. issue identification, investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. This seminar is designed for, and attendance is limited to, Federal Defenders, Criminal Justice Act panel attorneys, and state court practitioners who are currently appointed to or seeking appointment to, a capital habeas corpus proceeding.

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

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement. 

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

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Volume IV, issue 27

Please note: due to the large number of requests for assistance, the office cannot respond to all requests.  Your letter alone will not constitute the establishment of an attorney-client relationship.   Similarly, due to  relocation any correspondence will be substantially delayed.