The stay granted in Ex parte Beazley dominates this week's edition.  Why Beazley was afforded the stay remains unknown, however, the National Law Journal  (law.com) states the reason could be claims relating to ineffectiveness of state post-conviction counsel raised in another case pending before the Texas Court of Criminal Appeals, Ex Part Graves (the ironically titled  "Graves error").  The pleadings for both Beazley & Graves  in the Texas Court of Criminal Appeals are available through Dave's Bar Association  (davesbar.org) in Austin.  The NLJ's discussion of Beazley is this week's featured article.

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

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

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

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

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

Since last issue one person domestically has been executed.

August 16    Jeffery Doughtie        Texas

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

Supreme Court
Of note is the Supreme Court's refusal 3-3 to hear the certioriari petition of Beazley.  With three justices abstaining the Court has seeming reaffirmed what many had long feared, in capital cases, ties go to the executioner.

Capital Case Relief Granted
Mitchell v. Gibson, No. 99-6364 (10th Cir. 08-13-2001)When deciding if improperly withheld exculpatory evidence prejudiced a capital defendant, the proper standard of review is whether the evidence could have effected the sentence, not whether the sentence could still be imposed without the predicate convictions.

Based on newly discovered exculpatory evidence, Mr. Mitchell argued to the district court that his convictions for rape and sodomy were constitutionally infirm on several grounds, asserting that the state failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), that testimony by the state's forensic chemist was false and misleading, and that the prosecution engaged in egregious misconduct by capitalizing on this testimony to mislead the jury. The state did not respond to those allegations. Following an evidentiary hearing, *fn10 the district court struck down the rape and sodomy convictions in a scathing decision describing the state's "blatant withholding of unquestionably exculpatory evidence [as] absolutely indefensible," the forensic chemist's testimony as "without question, untrue," and the state's closing argument as "absolutely untenable." Rec., vol. III, doc. 68 at 46, 48. Nevertheless, the court declined to vacate Mr. Mitchell's death sentence. Citing Romano v. Oklahoma, 512 U.S. 1, 13 (1994), the court concluded that such relief was not warranted because "[t]he jury had sufficient evidence to justify its conclusion that the three aggravating circumstances it found were present, even without the rape and sodomy convictions." Rec., vol. III, doc. 68 at 51.

Mr. Mitchell argues on appeal that the district court used an incorrect legal standard in evaluating the impact of the withheld exculpatory evidence on the jury's sentencing determination. He contends the proper inquiry is that set out in Kyles v. Whitley, 514 U.S. 419 (1995), under which "favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 433 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985), (Blackmun, J., concurring)). Given the district court's finding that this case involves the knowing presentation by the prosecution of false evidence or argument, Mr. Mitchell further argues relief is required "if the `false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'" Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)).

In response, the state does not assert that the findings upon which the district court relied in striking down the rape and sodomy convictions are clearly erroneous. Nor does the state take issue with the district court's holding that a Brady violation occurred, necessitating the vacation of those convictions. Rather, the state contends the district court properly relied on Romano in refusing to vacate the death penalty, arguing that the appropriate inquiry for assessing whether a Brady violation merits habeas relief is "whether the State's evidence in support of the three alleged aggravators was such that, even without consideration of the rape and sodomy convictions, the jury had sufficient evidence to support its conclusion that the aggravators were present." Br. of Aplee. at 4. Finally, the state contends the district court correctly determined under this standard that vacation of the rape and sodomy convictions does not require vacation of the death penalty.

When, as here, the state courts have not heard the claim on the merits, "we review the district court's legal conclusions de novo and its factual findings, if any, for clear error." Hale, 227 F.3d at 1309. *fn11 We first determine whether the district court erred in assessing the impact of the Brady violation under the standard set out in Romano rather than that set out in Kyles. We conclude that Kyles provides the proper analysis. Romano was not concerned with either a Brady violation or with the knowing presentation of false evidence and it is therefore simply inapposite. *fn12 Here, the state withheld exculpatory evidence and the issue is therefore governed by the analysis set out in Kyles, which specifically addresses the showing a habeas petitioner must make to obtain relief in these particular circumstances. We have previously applied the standard articulated in Kyles to alleged Brady violations asserted by petitioners on habeas. See Romano v. Gibson, 239 F.3d 1156, 1172 (10th Cir. 2001) (Brady evidence material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"). We have discovered no case in which we applied the Romano test used by the district court to such a claim. Accordingly, we conclude that the district court applied the wrong standard in assessing whether the vacated convictions impermissibly tainted the jury's imposition of the death penalty. *fn13

In Kyles, the Supreme Court reiterated and explained its prior holding that "favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles, 514 U.S. at 433 (quoting Bagley, 473 U.S. at 667, 682 (1985) (opinion of Blackmun, J.); id. at 685 (White, J., concurring in part and concurring in judgment)). The Court emphasized four aspects of materiality from its prior precedents, see id. at 434, two of which are particularly pertinent here.

First, the Court pointed out that "a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Id. The court expressly rejected a standard that would require a defendant "to demonstrate that the evidence if disclosed probably would have resulted in acquittal." Id. (citation omitted). The Court cautioned that

Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Id. (quoting Bagley, 473 U.S. at 678).

Second, the Court emphasized that materiality under Bagley "is not a sufficiency of the evidence test." Id.

A defendant need not demonstrate that after discounting the inculpatory evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Id. at 434-35.

Thus the state and the district court are wrong as a matter of law in stating that Mr. Mitchell is not entitled to vacation of his death penalty because the jury had sufficient evidence to justify its sentence even without the rape and sodomy convictions. The appropriate inquiry under Bagley and Kyles is whether the favorable evidence the jury never heard creates a reasonable probability that the sentencing outcome would have been different. This involves an assessment of the withheld evidence "in light of the entire record in order to determine if `the omitted evidence creates a reasonable doubt that did not otherwise exist.'" Banks v. Reynolds, 54 F.3d 1508, 1518 (10th Cir. 1995) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)). In determining whether we can be confident the jury would have returned a death sentence had it known Mr. Mitchell did not rape or sodomize the victim, we bear in mind that "`[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.'" Kyles, 514 U.S. at 422 (quoting Burger v. Kemp, 483 U.S. 775, 785 (1987); see also Banks, 54 F.3d at 1521 (same).

In striking down the rape and sodomy convictions, the court relied on the following factual findings, which are equally relevant to our inquiry here. Joyce Gilchrist, a forensic chemist with the Oklahoma City Police Department, testified she found six sperm on the vaginal swab taken from the victim but was unable to identify any donor. She found ten sperm on the rectal swab and determined the donor had the same blood type as both Mr. Mitchell and the victim's boyfriend, Phillip Taylor. She also stated that blood, semen and sperm found on the sheet in which the victim's body had been transported from the crime scene were consistent with both men, as were semen stains on the victim's panties. Finally, she testified that a viable semen or sperm sample would be present in a woman's body for up to twelve hours after intercourse if she were up and moving around. This latter testimony is significant because the jury had been told that Mr. Taylor had not had sexual relations with the victim for the last eight days.

Ms. Gilchrist had sent the swabs and cuttings from the panties to Special Agent Michael Vick in the FBI laboratory DNA unit. The laboratory performed DNA testing on these items and prepared a report, which was couched in convoluted language that did not clearly recite the test results. Ms. Gilchrist characterized the report at trial as inconclusive. Ms. Gilchrist also sent samples to Mr. Brian Wraxall at the Serological Research Institute in California, who determined the samples either were too small to test or did not contain semen at all. *fn14

Mr. Mitchell requested and received permission to conduct discovery in this habeas proceeding. As a result, he obtained hand-written notes taken by Ms. Gilchrist during telephone conversations with Agent Vick indicating that the agent had conducted two DNA probes on the samples. These probes showed that the semen on the panties matched that of Mr. Taylor only, that no DNA was present on the rectal swab, and that the only DNA on the vaginal swab was consistent with the victim. The results thus completely undermined Ms. Gilcrhist's testimony.

The district court held an evidentiary hearing, at which Agent Vick admitted there was no way to tell from his report that he had obtained no DNA results from the rectal swab, no DNA profile other than that of the victim on the vaginal swab, and no DNA profile other than that of the victim and Mr. Taylor on the panties. An expert testified at the evidentiary hearing that the DNA testing performed by Agent Vick unquestionably eliminated Mr. Mitchell as a source of the sperm. This expert reviewed Ms. Gilchrist's trial testimony implicating Mr. Mitchell through her testing and that of Mr. Wraxall, and stated that the testimony was based on the use of test methods Ms. Gilchrist knew were less precise than the DNA tests which eliminated Mr. Mitchell.

Moreover, he pointed out that one of the tests she performed in fact excluded Mr. Mitchell. Mr. Mitchell was not provided the actual test results developed by Agent Vick or the notes taken by Ms. Gilchrist indicating her knowledge that Mr. Mitchell had been excluded by the FBI's DNA testing.

Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim which she knew was rendered false and misleading by evidence withheld from the defense. Compounding this improper conduct was that of the prosecutor, whom the district court found had "labored extensively at trial to obscure the true DNA test results and to highlight Gilchrist's test results," and whose characterization of the FBI report in his closing argument was "entirely unsupported by evidence and . . . misleading." Rec., vol. III, doc. 68 at 46-47. As a result, the jury convicted Mr. Mitchell of rape and forcible anal sodomy despite evidence it did not hear indicating that no such assault had taken place.

We are compelled to address the obvious by pointing out that the state's conduct in this case strikes a heavy blow to the public's "trust in the prosecutor as `the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles, 514 U.S. at 439 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). The Supreme Court has cautioned that proper disclosure under Bagley is required in order "to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations." Id. at 440. Nonetheless, as the state takes pains to point out on appeal, our task is not to impose punishment for improper behavior but to assess whether the improperly withheld evidence raises a reasonable probability that, had it been disclosed to the jury, the result of the sentencing proceeding would have been different.

At the commencement of the sentencing proceeding, the state asked the court to incorporate all the evidence presented in the guilt stage so that the jury could consider everything it heard during that phase in assessing punishment. In its closing argument to the jury in the guilt stage, the state had voiced its intent to focus on the murder, rape and sodomy charges, and at several points in that argument the state had tied the three charges together. In so doing, the state referred to bruising on the victim's hips as "consistent with a 250 pound man raping a woman against her will." Trial Trans., vol. VII at 1335. The state also asserted "the defendant had learned his lesson the last time. The last time he left a witness alive and he ended up at the Rader Center incarcerated. He wasn't going to let that happen this time. Ladies and gentlemen, there was never any question that Elaine Scott was to die." Trial Trans., vol. VIII at 1438. Finally, the state told the jury, "[w]e know what his idea of sex is. It includes power, violence, humiliation, degrading his victim. That's what he was after." Id. at 1464.

At the beginning of the sentencing stage, the state again told the jury that Mr. Mitchell had learned from his earlier rape adjudication, arguing that he killed Ms. Scott to avoid arrest and prosecution for his sexual assault. "After he was through with Elaine Scott, after he had his way with her, knowing that she knew him, knew who he was, the fact that she was afraid of him before, he murdered her, he beat her to death, because she was the only living witness to the crime that he had committed." Sent. Trans. at 8. *fn15

 In view of the district court's unchallenged findings and conclusions vacating the rape and sodomy convictions, there is at least a reasonable probability that if the defense had been provided the withheld evidence, it would have succeeded in getting those charges dismissed prior to the trial. *fn16 Sexual assault charges are by their nature highly inflammatory and prejudicial. As Mr. Mitchell's defense counsel pointed out at the federal evidentiary hearing, in representing a capital defendant there is a qualitative difference in terms of culpability between a defendant who rapes and sodomizes a victim and then kills her to silence her, and a defendant who kills in a fit of rage. Had the rape and sodomy charges not been before the jury, the state would have been unable to infuse the murder with prior sexual abuse or to argue that Mr. Mitchell killed the victim in a premeditated plan to avoid arrest and prosecution. All of the highly charged arguments that we have recited above would not have been presented to the jury. Both the guilt and sentencing stages would necessarily have had an entirely different focus and character.

These circumstances undermine the fairness of the sentencing proceeding that resulted in Mr. Mitchell's death sentence; we simply cannot be confident that the jury would have returned the same sentence had no rape and sodomy evidence been presented to it. First and foremost, the rape and sodomy evidence impacted all three of the aggravating circumstances found by the jury: that the murder was heinous, atrocious and cruel; that it was committed to avoid arrest for the rape and sodomy; and that Mr. Mitchell posed a continuing threat to society. Moreover, the defense presented considerable mitigating evidence for the jury to weigh against the aggravating circumstances it found. That evidence included Mr. Mitchell's youth (18); his loving relationships with his extended family and friends, which showed a totally different side of his character; and his intelligence (he had been in a program for the gifted and talented children in his elementary school). In addition, Dr. Wanda Draper, a psychologist with a PhD in human development, testified at the sentencing hearing about Mr. Mitchell's developmental history, concluding that he would do well in a structured environment such as the one he experienced in the juvenile facility where he was a leader among his peers. This evidence enabled defense counsel to argue that Mr Mitchell's life was worth saving and that he would do well in a prison environment if the jury sentenced him to life without parole. Under these circumstances, we are persuaded Mr. Mitchell has met the Kyles standard by showing that absent the Brady violation, there is a reasonable probability the result of the sentencing proceeding would have been different. See Kyles, 514 U.S. at 435. Mr. Mitchell is therefore entitled to habeas relief on this claim.

Proof of other crimes, wrongs or bad acts is generally not admissible evidence in any criminal proceeding. *fn32 Although there are several exceptions to this general rule, even relevant evidence of other crimes or wrongs is only admitted after the trial judge performs three important safeguarding functions. First, the trial judge must make a specific determination that the proposed evidence of other crimes, wrongs or bad acts is relevant to something fairly at issue in the trial. *fn33 Second, even if such evidence is relevant, the trial judge may exclude that relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury." *fn34 Third, after making that independent judicial determination, if the trial judge concludes that the relevant evidence of other crimes, wrongs or bad acts is admissible, the jury must be given a limiting instruction that restricts the jury's use of the evidence to its proper scope. *fn35

Most significantly, if proof of other crimes, wrongs or bad acts is admitted into evidence in the courtroom, the defendant has the assistance of counsel in not only cross-examining the witness who presents that evidence but also in arguing the defendant's perspective on that evidence to the jury. Those protections can be exercised effectively only if evidence of other crimes, wrongs, or bad acts is presented in the courtroom. *fn36 Nevertheless, even with all of the foregoing procedural safeguards, it would be extremely unlikely that evidence of the defendant's involvement with another homicide would ever be properly admitted into evidence at a defendant's separate trial for murder.

The threshold question is whether Flonnory has presented a case of egregious circumstances so inherently prejudicial as to raise a presumption of prejudice in his favor. This Court has held "fairness and, indeed, the integrity of the judicial process, make it imperative that jurors receive information about the case only as a corporate body in the courtroom." *fn37 The record reflects credible uncontradicted evidence that, outside of the courtroom, Juror Number Six became an unsworn and uncross-examined witness who presented inadmissible evidence to the other jurors that Flonnory had previously been accused of murder. *fn38 In an analogous context, this Court held that a presumption of prejudice was established because improper juror knowledge of a defendant's prior conviction of the very crime for which he is being tried is "so fraught with prejudice that the constitutional due process defect is not cured either by jurors' assurances that they could remain impartial or by the judge's admonition to disregard the knowledge." *fn39 Similarly, juror Number Six's improper statement to the other jurors that Flonnory had previously been accused of murder - the exact same type of crime he stood trial for here - presented a case of egregious circumstances so inherently prejudicial as to raise a presumption of prejudice.

The trial judge's decision, after interviewing jurors Six, Four and Nine, to make no further inquiry or to give any type of curative instruction to the jury is difficult to understand. The record reflects that earlier in the trial, the parties stipulated before the jury that Flonnory was prohibited from possessing a firearm because of unspecified conduct for which he had been adjudicated to be delinquent when he was a juvenile. Consequently, at this stage of Flonnory's trial, the jury had heard properly admitted evidence in the courtroom that when Flonnory was a juvenile, he had committed an "unspecified" crime that would have been a felony if he had been an adult.

The trial judge should have made certain that no juror was thinking that unspecified felonious conduct was a prior murder. The trial judge attributes his inaction to the failure of the attorneys to make a request. The United States Supreme Court has held, however, that it is the duty of the trial judge to take effective action to assure that the balance in a trial is not unfairly shifted against the accused. *fn40

 Because the guilt phase of Flonnory's trial had been completed when juror Number Twelve testified that inherently prejudicial information had been communicated to the other jurors by juror Number Six, there was a manifest necessity to declare a mistrial. *fn41 Flonnory's motion should have been granted. Therefore, we hold that the communication of highly prejudicial improper and inadmissible information by juror Number Six to the other jurors, outside of the courtroom, violated Flonnory's right to a fair trial by an impartial jury under both the United States Constitution and the Delaware Constitution. Consequently, Flonnory's convictions must be reversed and this matter will be remanded for a new trial.

The presented issue involves the application and interaction of two separate and distinct ethical requirements; namely, Tenn. Sup. Ct. R. 8, Canon 5, DR 5-101(A) (refusing employment when the interests of the lawyer may impair the lawyer's independent professional judgment), and Tenn. Sup. Ct. R. 8, Canon 9 (avoiding the appearance of impropriety). We will examine both requirements and whether a conflict is waivable.

(1) Conflict and Waiver

Although one seeking post-conviction relief has no constitutional right to counsel or effective assistance of counsel, he or she does have a statutory right to counsel. See Tenn. Code Ann. § 40-30-207(b)(1); Leslie v. State, 36 S.W.3d 34, 38 (Tenn. 2000). By implication, we believe this statutory right, even though not a Sixth Amendment right, includes the right to be represented by conflict-free counsel. See Wilcoxson v. State, 22 S.W.3d 289, 320 (Tenn. Crim. App. 1999) (noting right to conflict-free counsel is inherent in cases which involve the Sixth Amendment right to counsel).

Generally, an attorney with an "actual conflict of interest" should withdraw or be subject to disqualification. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). An "actual conflict of interest" usually involves one attorney representing two or more persons with diverse interests. State v. Tate, 925 S.W.2d 548, 552 (Tenn. Crim. App. 1995). In essence, it is where an attorney is placed in a position of divided loyalties. Id. at 553 (citations omitted).

Most conflicts can be waived by the client after full disclosure. See id. However, trial courts should have substantial latitude in refusing waivers of conflicts since the likelihood and dimensions of conflict are often difficult to predict. Wheat v. United States, 486 U.S. 153, 162-63, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). The Wheat allowance of substantial latitude to the trial court in accepting or refusing waivers appears to be based, at least in part, upon the federal courts' independent interest in ensuring ethical compliance and the appearance of fairness. Id at 160. Since the State of Tennessee has the same independent interest, we see no reason to deviate from the Wheat rationale.

(2) DR 5-101: Independent Professional Judgment

Withdrawal or disqualification under DR 5-101 is required only when "professional judgment . . . will be or reasonably may be affected by the lawyer's own financial . . . or personal interests." We further note that the rule expressly provides that the conflict may be waived "with the consent of the client after full disclosure." DR 5-101.

(3) Canon 9: Appearance of Impropriety
Withdrawal or disqualification may also be required where there is an "appearance of impropriety" as set forth in Canon 9. *fn1 See Clinard, __ S.W.3d at __, 2001 WL 530834, at *6; Culbreath, 30 S.W.3d at 313. The existence of an appearance of impropriety is determined from the perspective of a reasonable layperson. Clinard, __ S.W.3d at __, 2001 WL 530834, at *7 (citation omitted). The mere possibility of impropriety is insufficient to warrant dismissal. Id. at ___, 2001 WL 530834, at *6. Disqualification of counsel on this basis alone is a "drastic remedy" to be employed only in "rare case[s]." Id. at ___, 2001 WL 530834, at *7.

(4) Summary

In summary, a post-conviction petitioner is statutorily entitled to conflict-free counsel. A violation of DR 5-101 (impaired independent professional judgment) or Canon 9 (appearance of impropriety) creates a conflict. These conflicts may usually be waived after full disclosure, except the trial court is given substantial latitude in determining whether to accept a waiver. The appellate court reviews the trial court's determination on disqualification issues under an abuse of discretion standard; however, this court closely scrutinizes disqualification since it involves an interpretation of rules governing ethical behavior of attorneys.

C. Analysis: DR 5-101

Watkins' testimony at the hearing revealed that she is distantly related to the victim (second cousin once removed); she never met the victim; she was unaware of the post-conviction proceedings until September 2000; she was unaware that the PCD's Office was appointed to represent petitioner until she called the district attorney general's office; she had limited contact with the victim's family; the petitioner's continued representation by the PCD's Office would not affect her work on the commission; she is one of nine commissioners on the PCD Commission; the commission meets one or two times per year mostly by telephone or video conference; and she has no real involvement as a commission member with the day-to-day operations of the PCD. The affidavit of the PCD states that Watkins' situation would not affect the representation of the petitioner.

 The only argument that can realistically be made with regard to an actual conflict is that, as one of nine commission members, Watkins votes to hire the PCD and oversees the budget. We conclude that Watkins' distant familial relationship with the victim and his family and her de minimus authority over petitioner's counsel are not sufficient to establish an actual conflict or a serious potential for a conflict. We further conclude that there is no indication that the PCD's professional judgment will be or reasonably may be affected by these circumstances. Thus, there is no violation of DR 5-101.

Federal Capital Cases Relief Denied 
Williams_v._Coyle, No. 98-3793 (6th Cir. 08-16-2001) In a case full of rich analysis of procedural issues relating to the AEDPA (including positive language on procedural default & holding that where there is not a state opinion on point analysis is purusnt  pre-AEDPA standards), relief is denied, albeit  over a  strong dissent on the role of mitigation.  Relief was  denied on claims that " the district court erred by (1) denying Williams's request for an evidentiary hearing, (2) finding that the Ohio court's ruling on Williams's ineffective assistance of counsel at the sentencing stage claim was not contrary to or an unreasonable application of the law, (3) finding that the Ohio court's ruling on Williams's Brady violation claim as it related to the testimony of Anderson and Brooks was not contrary to or an unreasonable application of the law, and (4) finding that the Ohio court's ruling on Williams's Eighth Amendment claim--that the trial court incorrectly instructed the jury on the Ohio's death penalty statute--was not contrary to or an unreasonable application of the law."

[T]he Supreme Court has held, "[t]he threshold question under [this section] is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 569 U.S. 362, 390 (2000).*fn8 A rule of law is clearly established if it is directly based on a "holding[], as opposed to the dicta, of [the Supreme Court] as of the time" the conviction became final. Id. at 412.

A decision can be contrary to such law in one of two ways. First, when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent. See id. at 406-07. Second, when the state court "applies a rule that contradicts the governing law set forth in" Supreme Court cases. Id. at 406.

A decision is an unreasonable application of clearly established federal law if it identifies the correct principle of law but unreasonably applies it. See id. at 407. "[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s 'unreasonable application' clause, then, a federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410 (original emphasis).

We pause here to emphasize that the Court did not, contrary to some opinions from this and other circuits, hold that a decision might be an unreasonable application if it unreasonably extended or declined to extend an existing principle of law. The Court mentioned that theory, but only in the context of reviewing for the reader what the Fourth Circuit had previously ruled constituted an unreasonable application of the law.

The Court began, The Fourth Circuit's interpretation of the "unreasonable application" clause of § 2254(d)(1) is generally correct. That court held in Green that a state-court decision can involve an "unreasonable application" of this Court's clearly established precedent in two ways. . . . Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407 (citations omitted).

But the Court then went on to emphasize that it was not ruling on the unreasonable extension principle.

 The Fourth Circuit also held in Green [that] state-court decisions that unreasonably extended a legal principle from our precedent to a new context where it should not apply (or unreasonably refuse to extend a legal principle to a new context where it should apply) should be analyzed under § 2254(d)(1)'s "unreasonable application" clause. Although that holding may perhaps be correct, the classification does have some problems of precision. . . . Today's case does not require us to decide how such "extension of legal principle" cases should be treated under § 2254(d)(1). For now it is sufficient to hold that when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision's "unreasonable application" clause. Id. at 1521 (emphasis added) (internal citation omitted). . . . . .

**** 

Our review of Williams's Brady claim will be under pre-AEDPA standards because no state court reviewed the merits of that claim. Under that standard, we review mixed questions of law and fact de novo. See Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000). Allegations of Brady violations are mixed questions of law and fact, accordingly, we review the claim under that standard. See id. We review the district court's factual findings only for clear error. See id.

Styron v. Johnson (08/15/01 - No. 99-40539) Murder of a child under six is a sufficiently narrow statutory aggravating factor for consideration of the death penalty, so capital punishment on the basis of the victim's tender age is not a violation of the prohibition against cruel and unusual punishment.

Lott v. Coyle  No. 99-4155(6th Cir. 08 - 17 -01) Relief denied on claims that : (1) Lott's case is prematurely before this Court inasmuch as the district court erroneously denied his request to conduct discovery and to hold an evidentiary hearing; (2) the three-judge panel that convicted him lacked jurisdiction;  3) Lott never executed a valid knowing, intelligent, and voluntary waiver of his constitutional right to trial by jury; and (4) the State of Ohio suppressed exculpatory evidence.

Fugate v. Head (11th Cir) Defense counsel's decision to not introduce evidence that defendant thought victim would not be in her house when he went there is not rejudicial in capital case where other evidence suggested the belief, defendant broke in, and violated a restraining order in being there.

State Capital Cases Relief Denied 
State v. Pandeli, No. CR 98-0376-AP (Ariz. 07-17-2001) Relief denied on cliams that the trial court erred in the EXCLUSION of the defendant's confession and its refusal to grant a manslaughter instruction.  Pusuant to its precedent, the court undertook an exhaustive review as to the weighing of aggravating and mitigating factors (including religious faith).

Brown v. State, No. 1998-DR-01266-SCT (Miss 8-9-2001)  Relief denied on claims of prosecutorial misconduct; ineffective assistance of counsel; conflict of interest; and miscellaneous errors.

Porter v. State, No. 26645 (Idaho 08-14-2001) Porter has procedurally defaulted all of  issues raised in his second state post-conviction pleading by not filing them within 42 days of judgment or a timely period after their discovery.  Five months after filing identical claims in federal court is not timely.

Farina v. State, No. SC93050 (Fla. 08-16-2001)  Relief denied on claims that: (1) the State improperly used peremptory challenges to strike two African-American jurors; (2) the trial court erred in denying his motion in limine to prohibit the introduction of his taped conversation with his brother Jeffery; (3) the trial court erred in denying his motion to suppress this taped conversation; (4) the trial court erred in denying his motion to sever his resentencing proceeding from Jeffery's; (5) the trial court erred in admitting victim impact evidence, in allowing the evidence to become the main feature of the trial, and in refusing to give a requested limiting instruction; (6) the HAC aggravating circumstance was improperly found; (7) the CCP aggravating circumstance was improperly found; (8) the avoid arrest/witness elimination aggravating circumstance was improperly found; (9) the death sentence is not proportionally warranted; (10) Florida's death penalty is unconstitutional on numerous grounds; (11) he is entitled to a new sentencing proceeding so that the judge and jury can consider Jeffery's life sentence under Brennan in determining the appropriate sentence for him; and (12) death is disproportionate in light of other cases where the triggerman received a life sentence.

Capano v. State, No. 110, 1999 (Del. 08-10-2001) Reversible error not had on claims that:  [1] reference to a lie detector test rendered the trial fundamentally unfair; [2] hearsay admitted through the testimony of the decedent's psychotherapists and friends;.[3] that  the trial judge erred in not instructing the jury that it could c.onvict Capano of the lesser offenses of Murder Second Degree, Manslaughter or Criminally Negligent Homicide;  [4] that the trial judge improperly denied him the right to discuss or argue facts already in evidence at the guilt phase, and that the trial judge's harsh treatment in cutting him off in the presence of the jury unfairly prejudiced him; [5] the statute unconstitutionally permits the trial judge, after a unanimous jury finding of guilt that authorizes the possibility of the death penalty, to decide to impose death without a unanimous jury recommendation in the penalty phase.

State  v. Jackson, 92 Ohio St.3d 436 (Ohio 08-15-2001) Relief denied on a grab bag of claims including: imposition of the death sentence violates constitutional norms; failure to file a separate opinion properly detailing the reasons for following the jury's recommendation;   failure to follow the statutory requirements of R.C. 2929.03(F);  the trial court's allowance of the alternate jurors to retire to the jury room with the twelve regular jurors; change in the Ohio Constitution, which provides less review to capital appellants (whose crimes were committed on or after January 1, 1995)  admission of relative culpability evidence which might serve as a basis for a sentence of less than death and is, therefore, admissible as mitigating evidence; prosecutorial misconduct in the penalty phase; a jury is not required to unanimously rule out the death penalty before considering a life sentence; a jury instruction that requires that a life sentence recommendation be unanimous; cumulative effect of such errors 

Other Notable Cases (As reported by Findlaw, and other sources) 
Sellan v. Kuhlman (2nd Cir)  A state court decision as to a particular federal claim can constitute an "adjudication on the merits" within the meaning of AEDPA even when the state court does not explicitly refer to the federal claim or to relevant federal case law.

Green v. United States   (8th Cir)  Court's finding that prisoner may proceed in forma pauperis in a 28 USC 2255 proceeding entitles prisoner to appointed counsel in evidentiary hearing as "financially unable to obtain counsel".

Smith v. United States  (6th Cir) A defendant who does not meet the "in custody" requirement of 28 USC 2254 may not attack the constitutional validity of predicate state convictions under the Armed Career Criminal Act in a 28 USC 2255 proceeding.

Henderson v. Scott (10th Cir) An Oklahoma law that retroactively reduced the frequency of parole reviews does not violate the ex post facto clause.

Montgomery v. Anderson (7th Cir)Under 28 USC 2254 prisoner may collaterally attack a claim of constitutional error in a decision affecting the rate of earning good-time credits, but must challenge a placement in disciplinary challenge under 42 USC 1983.

Wildman v. Johnson (9th Cir) Where there were two separate trials, one for arson and attempted murder and the other for felon-in-possession of firearm, defense counsel did not provide ineffective assistance by failing to retain a ballistics expert in attempted murder trial where attempt did not allege firearm use.

Glover v. Miro (4th Cir) Limited contact with one attorney, limited time that a second attorney had to prepare defendant's case and to investigate the potential alibi witnesses, extreme press of business for the second attorney, and allegations of severe crimes do not strip the trial of all its integrity so that a per-se rule of prejudice is justified.

Berg v. Maschner  (8th Cir) Evidence that officers saw defendant shoot and kill fellow officer and immediately apprehended defendant after the shooting is sufficient evidence of guilt to make admission of confession at trial harmless error.

Koste v. Dormire (08/13/01 - No. 00-3791) A court should conduct an evidentiary hearing when defendant raises a potential conflict of interest claim against his attorney at the plea allocution alleging ineffective assistance of counsel from the same attorney for a prior conviction.

Khaalid v. Bowersox (8th Cir) Under Missouri law, courts may exclude testimony that the defendant had attention deficit disorder in determining whether defendant engaged in "cool deliberation" for first-degree murder where testimony does not rise to the level of mental disease or defect.

Burns v. Gammon (8th Cir)  Defense counsel's failure to raise constitutional objection to prosecution's closing argument, that going to trial subjected victim to humiliation by having to testify and look at defendant, constitutes ineffective assistance of counsel.

Siers v Weber  (8th Cir) State court determination that defendant did not suffer ineffective assistance of counsel where counsel did not interview defendant's sister as an alibi witness is not objectively unreasonable where the only non-biased witness identified defendant.

Woodward v. Williams (10th Cir) A victim's statement to neighbors that she thought her husband was going to kill her after she left her residence when her husband broke into it in violation of a restraining order was an "excited utterance" admissible at the murder trial.

Featured 
The stay afforded Napolean Beazley by the Texas Court of Criminal Appeals remains a mystery, however, the National Law Journal  (law.com) this week examines a few possible reason, including  possibly claims relating to ineffectiveness of state post-conviction counsel  (so-called "Graves error").  The pleadings for both Beazley & Graves  in the Texas Court of Criminal Appeals are available through Dave's Bar Association  (davesbar.org) in Austin.  The NLJ's discussion of Beazley is this week's featured article.

Last-Minute Execution Stay Shows Shift in Texas Court 
Mary Alice Robbins
Texas Lawyer 

August 20, 2001 

In a case that's drawn international attention, the Texas Court of Criminal Appeals stayed the execution of Napoleon Beazley on Aug. 15 only hours before he was scheduled to die for a murder committed when he was 17. 

By all accounts, this is not the firmly conservative Court of Criminal Appeals of the late 1990s, where last-minute death penalty appeals were almost certainly denied. Attrition at the court, including the departure of longtime Presiding Judge Michael J. McCormick in December 2000, has created a moderate shift at the CCA. 

David Dow, a University of Houston Law Center professor, says the court has "surprised" the death penalty community in Texas three times in the last four months by granting stays within two days of inmates' scheduled executions. 

CCA Clerk Troy Bennett says the all-Republican court has granted five stays of execution -- including one to allow an inmate to undergo DNA testing under a new state law -- in the term that began on Sept. 1, 2000. 

"That's an indication the Court of Criminal Appeals is looking at some of these cases more seriously than it has in the last five or six years," Dow says. 

"Two years ago, the Court of Criminal Appeals was a non-existent court in death penalty cases," he says. "You didn't get reversals in that court in habeas cases. Now it's a little bit different." 

In a 6-3 split, Judges Lawrence Meyers, Tom Price, Sue Holland, Paul Womack, Cheryl Johnson and Charles Holcomb voted for the stay. Dissenters included Presiding Judge Sharon Keller and Judges Mike Keasler and Barbara Hervey. 

The CCA had denied Beazley's direct appeal, which is automatic in death penalty cases, in February 1997. His habeas appeal was denied in January 1998. 

Tim Floyd, a professor at Texas Tech University School of Law, says the court's decision to stay Beazley's execution was "stunning" given that the U.S. Supreme Court on Aug. 13 voted 3-3, with three justices abstaining, against the request for a stay. 

But legal experts disagree about the court's reason for granting the stay in Beazley's case. 

The two-page order in Ex Parte Napoleon Beazley does not specify which of the 10 issues raised in Beazley's petition the judges found compelling. 

"The main issue we're raising is that Napoleon's death sentence is illegal because he was under 18 when the murder was committed," says Walter Long, one of the Austin lawyers who represents Beazley. 

"I think Beazley was stayed for the age issue," Dow says. "My opinion is the court is going to address the age issue in a more direct way than ever before." 

Smith County District Attorney Jack Skeen did not return a phone call seeking comment by press time. 

RECUSAL REASONS 

Beazley, now 25, was convicted of murdering a Tyler businessman during an attempted carjacking in 1994 when he was 17. The victim, 63-year-old John Luttig, was the father of 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig. 

The younger Luttig had clerked for Justice Antonin Scalia and advised Justices Clarence Thomas and David Souter during their confirmation hearings, prompting all three to abstain from voting on Beazley's case. 

Neil McCabe, a professor at South Texas College of Law, suggests that the court may not be interested in the Beazley case itself but is trying to give the nation's highest court more time to decide what to do about it. 

"Essentially, they're stepping in and saying, 'We're not going to let him [Beazley] be executed while his case is pending in the U.S. Supreme Court,' " McCabe says. 

Floyd is doubtful that's the reason. "The three who recused themselves are not going to get back in the case," he says. "I'd be even more surprised if the three votes for not granting the stay would grant cert to hear the case." Beazley's petition for writ of certiorari is still pending before the U.S. Supreme Court. 

A number of legal experts and lawyers say they believe Beazley was granted a stay because of a case pending before the CCA. Ex Parte Anthony Graves deals with the issue of ineffective counsel on a habeas writ. 

Austin criminal-defense attorney David A. Schulman says presumably the six judges who voted to stay the execution wanted to consider granting relief on a Graves claim under the proper circumstances. 

"I think that's all this case means at this point," Schulman says. 

The CCA stayed the executions of Gary Wayne Etheridge in November 2000 and Michael Patrick Moore in March of this year. Graves claims were raised in both of their cases, Long says. 

Roy Greenwood, the Austin criminal-defense lawyer who represents Graves, says there are easily 15 to 30 more death row inmates who may have issues that would entitle them to relief if their lawyers had done any kind of investigation at all. 

At the center of the controversy is a law passed by the Texas Legislature in 1995 that requires the state to provide a lawyer for a death row inmate in habeas appeals. The same law limits an inmate, in most instances, to only one application for a state habeas writ. 

If the CCA holds in Graves that an inmate has a right to claim ineffective assistance of counsel in habeas proceedings, "then you've got another black hole in the writ system," says Chuck Mallin, chief of the appellate section at the Tarrant County District Attorney's Office. 

But Greenwood says the CCA appointed some lawyers who did not know what they were doing to represent inmates in habeas writ proceedings and they "screwed up." 

El Paso attorney Robin Norris, who represented Beazley in the writ proceedings, has admitted making mistakes in an affidavit filed with the CCA. 

"I acknowledged that the investigation of Mr. Beazley's case was inadequate to discover all of the potentially important issues affecting the legality of his conviction and death sentence," Norris, a former CCA staff attorney, says in the affidavit. 

Norris says the investigator he hired did not follow his instructions in conducting the investigation. Among other things, Norris says, the investigator failed to talk to his client's co-defendants, Cedric and Donald Coleman, who testified that Beazley had said he wanted to know what it would be like to kill or hurt someone -- testimony that made Beazley appear to be a cold-blooded killer. The Coleman brothers recanted those statements in a July 13 affidavit. 

According to Norris, he and his partner, Gary Hart, another former CCA staff attorney, were appointed to 10 habeas cases in December 1996. 

"I know you cannot do 10 of those cases all at one time," says Greenwood, who specializes in direct appeals and habeas writs. 

Another unusual aspect of Beazley's case is a letter that 114th District Judge Cynthia Kent of Tyler wrote to Gov. Rick Perry requesting that Beazley's sentence be commuted from death to a life sentence. Kent was the presiding judge for Beazley's trial. 

Elaine Holmes, Kent's court administrator, says the judge "cannot make a statement on any case that is pending in the court." 
 

Louisiana Victims' Group Supports State Funding for Death Row Appeals 

Victims' advocates in Louisiana want the state to adequately finance  capital post-conviction appeals, saying that a sloppy legal process only drags out the appeals.  "It doesn't do the victim...any good to have someone who is not guilty convicted or even a guilty person convicted with an improper trial," said Sandy Krasnoff, director of Victims and Citizens Against Crime.  Currently, 14 of the men on Louisiana's death row are without attorneys.  (New Orleans Times-Picayune, 8/20/01)  See also, New Voices. 

 POLLS: Support For the Death Penalty Remains Low 
A July 2001 Harris Interactive survey found that: 

94% of Americans believe innocent people are sometimes convicted of murder 
those surveyed believe that, on average, 12% of those convicted of murder are innocent 
only 42% believe the death penalty deters crime; the smallest percentage in 25 years 
26% favor a decrease in executions, up from 14% in 1997 and 22% last year; the percent of those who would like to see executions increase has fallen to 35%, down from 53% in 1997 and 43% in 1999. 
Support for the death penalty is at 67%, up slightly from last year's 64%, but still down from 75% in 1997.  (PR Newswire, 8/17/01)  See also, Public Opinion

Oklahoma Governor Grants Temporary Reprieve for Mexican National 
     Governor Frank Keating granted a 30-day stay of execution for Gerardo Valdez, a Mexican citizen on Oklahoma's death row. (The Oklahoman, 8/17/01)  Valdez, who was scheduled to be executed on August 30, was denied consular access upon his arrest, a move Keating acknowledged was a "clear violation" of the Vienna Convention.  Notwithstanding, Keating denied clemency for Valdez in July, despite a personal appeal from Mexico's President, Vincente Fox.  (New York Times, 7/21/01 and Associated Press, 7/22/01)  See also, Foreign Nationals. 
Oklahoma Death Sentence Overturned Because of Misconduct by Prosecutors and Police Chemist 
      A federal court overturned the sentence of Oklahoma death row inmate Alfred Brian Mitchell because of the false and misleading testimony by Oklahoma City police chemist Joyce Gilchrist at trial.  The court said that Gilchrist, who is currently suspended while state and local agencies review cases in which she testified,  knew her testimony was false because of other evidence that was withheld from the defense.  The judges also denounced prosecutors for withholding exculpatory evidence from the defense and for deliberately misleading jurors, stating that such conduct  "strikes a heavy blow to the public's trust" of prosecutors.  The prosecutor's duty is not to win cases, said the court, it is to see "that justice is done." (The Oklahoman, 8/14/01)  For more information on Gilchrist, see below. 

California Death Row Reaches 600 
     The latest edition of the NAACP Legal Defense & Education Fund's "Death Row USA" is now available on DPIC's Web site.  The Summer 2001 figures indicate that while the number of inmates on death row increased slightly since the last report (4/1/01), the total on death row is still down from the start of the year.  Also among the report's findings: 

There are 3,717 inmates on death row (as of July 1, 2001). 
California, with 600 inmates, continues to lead the nation in death row population.  The other leading death row sates are Texas (454), Florida (382), Pennsylvania (246), and North Carolina (239). 
The states with the highest percentage of minority defendants are Colorado (71%), Louisiana (70%), Pennsylvania (70%), and Illinois (69%). 
54 women and 84 juvenile offenders are on death row. 
The report also includes death row statistics, a state-by-state list of prisoners on death row, an execution breakdown by state, and information on current and pending decisions in the U.S. Supreme Court.  Read Death Row USA, Summer 2001. 
Texas Court Grants Stay for Juvenile Offender 
Napoleon Beazley was granted a stay of execution by the Texas Court of Criminal Appeals just hours before his scheduled execution. (Associated Press, 8/15/01)  Beazley, who was 17 at the time of the crime, would have been the 18th juvenile offender executed since the death penalty was reinstated, and the 10th juvenile offender executed in Texas. 
   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 Beazley's sentence.  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."  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.  See also, Juveniles and the death penalty 

Journalism Students Help Missouri Death Row Inmate Get New Trial 
    A federal judge ordered a new trial for Missouri death row inmate Richard D. Clay after a journalism class at Webster University helped discover that prosecutors had allowed a key witness to mislead jurors. 
    Clay was convicted for the 1995 murder of Randy Martindale.  A co-defendant testified against Clay and told the jury that he was going to be sentenced to 10 years as part of a plea agreement.  Later, during an interview with the journalism students, the co-defendant explained that he knew his plea deal called for a maximum sentence of just five years behind bars (he eventually received a suspended sentence) and that prosecutors urged him to mischaracterize his punishment to make his testimony appear more credible.  (St. Louis Post-Dispatch, 8/9,13/01 and  Associated Press, 8/10/01)  See also, Innocence

New Jersey Supreme Court Report Finds Race of Victim Bias in Death Penalty Cases 
     A report recently released by the New Jersey Supreme Court found that the state's death penalty is more likely to be sought against defendants who kill white victims. "There is unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving killers of African-American victims," the report states.   Appellate Division Judge David S. Baime, who conducted the study, said that the findings that more capital cases are considered in white, suburban neighborhoods should be examined by the attorney general's office. (Asbury Park Press, 8/13/01)  Read the report.  See also, studies on the death penalty. 

 Fifth Circuit Grants New Trial in Texas Sleeping Lawyer Case 
     The U.S Court of Appeals for the Fifth Circuit ruled that Texas death row inmate Calvin Burdine's Sixth Amendment right to counsel was violated when his attorney slept through parts of the trial.  The full court decided the case after a 3-judge panel of the same court ruled earlier that Burdine's conviction could stand because his lawyer, Joe Cannon, did not sleep through "crucial" parts of the trial and because Burdine did not, on his own accord, make a record of Cannon's sleeping. ÒFinally, common has sense prevailed,Ó stated Robert McGlasson, BurdineÕs lawyer in the appeals process. ÒThe full court affirmed what we have said all along, namely, that a sleeping attorney is the same as no attorney, and that a death penalty trial conducted under these circumstances violates basic notions of fairness and decency.Ó  (Associated Press, 8/14/01 and The Justice Project Press Release, 8/14/01)  Read the opinion. 

 NEW RESOURCES: Seattle Post-Intelligencer Features Series on Inadequacy of Death Penalty Defense 
A recent 3-part investigative series by Lise Olsen examines problems associated with Washington's representation of capital defendants.  Some highlights of the series, which is available in its entirety at http://seattlep-i.nwsource.com/specials/deathpenalty/, include: 

Monday, August 6 - This first part of the series finds that one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. The article notes that judges contributed to the problem by appointing inexperienced local lawyers to defend capital defendants instead of those recommended by the state.  Counties often pay these defense attorneys so poorly that they cut corners, putting convictions and sentences on shaky legal ground.  The article also found that of the three cases that have led to executions, each was tainted by poor lawyering; one man was defended by a lawyer who was later disbarred, one by a prosecutor who was later disbarred, and the third man represented himself. 
Tuesday, August 7 - This piece highlights the lack of uniformity in how elected prosecutors deal with potentially capital cases.  The article notes that cost and location are critical elements.  Prosecutors in some counties face pressure to plea-bargain a case rather than endure costly trials followed by years of appeals.  "We're so small, I could never afford a death penalty case,"  said John R. Henry, a prosecutor in tiny Garfield County who has vowed never to pursue a capital conviction.  In addition, the article notes that only 20 of the 39 counties in Washington have used the death penalty as a prosecution tool. 
Wednesday, August 8 - Olsen reports on the disparity in how defense attorneys are paid throughout the state.  Capital defense lawyers in Clark County are paid a flat rate of $12,500 per case - a rate that breaks down to $12.50 - $25 an hour, based on the 500 - 1,000 hours of pretrial work experts say cases usually require. Elsewhere in the state, though, death penalty attorneys are paid six times that much. Kate Jones, an indigent-defense expert with the National Association of Criminal Defense Lawyers says that flat fees are the worst way to pay for public defense because they encourage lawyers to cut corners, push for guilty pleas and neglect clients. 
(Seattle Post-Intelligencer, August 6-8, 2001) See also, articles about the death penalty. 

To be updated.

To be updated.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

CAPITAL DEFENSE WEEKLY SUBSCRIPTION INFORMATION:  To subscribe to Capital Defense Weekly just drop an email to cdw@karlkeys.com & remember to put subscribe somewhere in the e-mail.  The introduction to Capital Defense Weekly is published at http://capitaldefenseweekly.com/CDW.  Back issues  can alsobe located at http://capitaldefenseweekly.com/CDW.  Capital Defense Weekly is published 40 times (or so) a year.

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals invoved with capital litigation has been formed.  The list is private & limited to just legal professionals at this time due to the natue of the conversations.  The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe: capitaldefense-subscribe@onelist.com

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

DISCLAIMER--  Karl R. Keys, Esq*, is an attorney duly admitted in the Commonwealth of Massachusetts.  This weekly has been prepared for educational & information purposes only save as noted below.  Pursuant to the applicable  rules governing attorney conduct this weekly & related website may or may not be construed as legal advertising, however, at of an abundance of caution please treat it as such. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.  Submissions related to this letter may be reproduced without further notice. Translation:  Reading this newsletter & writing to me does not make me (or those I work with, for or for me)  your lawyer.  To be on the safe side we are complying with Massachusetts lawyer advertising rules.  If you are in a jam call a lawyer in your state.

CREDITS & PUBLICATION INFORMATION: Volume IV, issue 29  ISSN: 1523-6684

* Karl Keys is an attorney living in the Northeast.  For the last three years he has been the editor of Capital Defense Weekly.  He can be reached at karl@karlkeys.com.