In light of an extended hiatus, an issue that is already unduly long & the traumatic events of the last few days, let me highlight this edition only briefly. A new section, "Hot List Cases" has been added to discuss the most germane cases . (Note: My selection of what is & is not hot has been called "quixotic" so be forewarned.)  Capital cases not "hot listed" are broken down into only two groups based solely on whether relief has or has not been granted.

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

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

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

Since last issue the following people have been executed:

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

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

Under the sentencing scheme in death penalty cases, the jury is required to find the existence of any mitigating circumstances that have been proven by a preponderance of the evidence. Commonwealth v. Cox, 728 A.2d 923 (Pa. 1999). 42 Pa.C.S. § 9711(e)(1) specifically states that "mitigating circumstances shall include the following: (1) [t]he defendant has no significant history of prior criminal convictions." Consequently, where the absence of a prior record is not in dispute, as in this case, the sentencing jury has no discretion whether or not to find the existence of this fact as a mitigating factor. If we would grant the jury discretion to ignore stipulations of fact, we would be granting the right to arrive at a sentencing verdict in an arbitrary and capricious fashion. Such a conclusion would undercut the very purpose of the death penalty sentencing scheme as developed by our General Assembly. A sentence of death cannot be "the product of passion, prejudice or any other arbitrary factor." 42 Pa.C.S. §9711(h)(3)(i). 

Accordingly, where a mitigating circumstance is presented to the jury by stipulation, the jury is required by law to find that mitigating factor. In the instant case, the jury was not directed to find the existence of (e)(1); nor did the jury herein find that (e)(1) had been proven by a preponderance of the evidence, despite the stipulation. However, the jury did find one aggravating factor had been proven beyond a reasonable doubt. *fn3 As such, the jury failed in its statutorily imposed duty to weigh the mitigating and aggravating circumstances prior to reaching a conclusion as to sentence. Although it could be argued that the aggravating factor found outweighed the mitigating factor stipulated to, it is beyond the purview of this court to render such a finding. As the jury reached its verdict on sentence without undertaking the required weighing of aggravating and mitigating circumstances, the trial court erred in accepting the jury's verdict as to the sentence of death. 42 Pa.C.S. § 9711(c).

As we have stated many times, "[o]ur proportionality review requires us to `consider the totality of circumstances in a case, and to compare it with other capital cases.' " Terry v. State, 668 So. 2d 954, 965 (Fla. 1996) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)); see also Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). The purpose of our proportionality review is to guarantee that "the reasons present in one case will reach a similar result to that reached under similar circumstances in another case." State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973). In carrying out this important task, we are constantly mindful that death "is a unique punishment in its finality," Dixon, 283 So. 2d at 7, and therefore, "its application is reserved only for those cases where the most aggravating and least mitigating circumstances exist." Terry, 668 So. 2d at 965; see also Dixon, 283 So. 2d at 7. Under the circumstances present in this case, we cannot say that appellant's conduct places this case in the category reserved for the most aggravated, least mitigated murders warranting the death penalty. 

The trial court here found only two aggravating factors-that the murder was committed during the course of a robbery and that the defendant was previously convicted of a violent felony. The first aggravator (i.e., that the murder was committed during the course of a robbery) is based solely on the fact that appellant was engaged in the commission of a robbery when the killing occurred. As noted by the trial court in its sentencing order:

In [appellant's] dream, the person who killed John Galloway, a private security guard, the victim in this case, threatened the victim with a gun, stating, "I want your money." When the victim gave the wallet to the perpetrator and tried to use a phone at the security booth the perpetrator, who was laughing, fired hitting the victim in the chest. In this so-called dream sequence the perpetrator took the victim's wallet and an ATM card and attempted to use the ATM card.

In other words, this aggravator is based on the same incident which resulted in Galloway's death. In addition, appellant was separately convicted of this robbery and received an additional sentence for that crime. Further, the exact circumstances surrounding the robbery are unknown as there were no witnesses to the crime and the appellant's statements reflect a variety of bizarre scenarios.

The second aggravator (i.e., that appellant has previously been convicted of violent felonies) is based on appellant's prior convictions for sexual offenses against his two nieces. See supra pages 26-31. While we agree that this is a valid legal aggravator based on the evidence submitted by the State, we cannot help but note that the state presented no facts as to the circumstances surrounding the offenses. Furthermore, the appellant's sister, the mother of the victims of appellant's abuse, testified extensively in support of appellant during the penalty phase of the trial, including offering testimony that she and her daughters have forgiven him for his conduct. See supra note 8.

We also cannot help but note that these offenses actually occurred two years after the murder of Galloway, for which appellant received substantial sentences. At the time Hess committed the murder in this case, however, he had no history of committing violent crimes. While we agree that sexual offenses involving violence clearly qualify as prior violent felonies, we cannot ignore the fact that Hess does not have a significant history of committing violent offenses and both sexual offenses occurred after the murder in this case. See Urbin v. State, 714 So. 2d 411, 418 (Fla. 1998). Thus, the aggravator in this case, albeit established, is not as "weighty" as it normally would be in cases where the defendant has a significant history of prior violent crimes, which includes prior murders. See, e.g., Ferrell v. State, 680 So. 2d 390, 391 (Fla. 1996) (finding single aggravating factor of prior violent felony "weighty" where factor was based on prior second-degree murder conviction bearing many similarities to murder committed in instant case); Hunter v. State, 660 So. 2d 244, 253 (Fla. 1995) (prior violent felony aggravator based on twelve prior felonies, four of which were prior felonies and eight of which occurred contemporaneously with the murder in the instant case); cf. Jorgenson v. State, 714 So. 2d 423, 428 (Fla. 1998) (holding that length of time between prior conviction (1967 second-degree murder) and present crime and factual circumstances surrounding prior conviction "mitigate[d] the weight that a prior violent felony would normally carry").

The two aggravators found in this case must be considered in comparison to the extensive evidence presented in mitigation. In addition, we have held that the trial court erred in not finding as statutory mitigation the fact that appellant had no significant history of criminal activity prior to this crime, an important statutory mitigation not considered by the trial court. Here, the trial court found and weighed sixteen non-statutory mitigating factors.

These factors include the following: (1) appellant is a loving son to his parents; (2) appellant is a loving brother to his siblings; (3) appellant maintained employment throughout most of his life; (4) appellant is a loving and caring father; (5) appellant provided financial support to his family and his siblings' families; (6) appellant lacked a male role model growing up; (7) appellant was traumatized when his two sons were taken from him; (8) appellant was ill at a young age which left him with a learning disability; (9) appellant was treated cruelly by his contemporaries due to his learning disabilities; (10) appellant accepts blame for things he did not do in order to keep loved ones out of trouble; (11) appellant cooperated with law enforcement; (12) the treatment of others involved in the case; (13) appellant was suffering from some mental or emotional disturbance when the murder was committed; (14) appellant's religious devotion; (15) appellant's potential life sentence; and (16) appellant maintained good jail and trial conduct.

Particularly noteworthy is the evidence that appellant has a history of learning disabilities, was considered ten years behind his chronological age, was considered borderline retarded during his school years and was placed in special education classes as a result of his mental or emotional infirmities. The record also reflects that appellant was diagnosed in 1991 as being chronically depressed and suffering from substantial mood swings, for which he was placed on prescription medication. As of the time of the penalty phase proceeding, appellant was still taking medication for depression and had been receiving counseling in jail since October of 1995. Based on this evidence, the trial court found that appellant was suffering from some mental or emotional disturbance at the time of the murder, to which it gave moderate weight. This finding is bolstered by the bizarre circumstances of this crime and appellant's numerous confusing statements. After considering the totality of the underlying circumstances in this case, we conclude that a consideration of the aggravation and mitigation clearly excludes this case from being one of the most aggravated and least mitigated murders for which the death penalty is reserved.

Still, it is perhaps the court which was most at fault. Florida courts are quick to admonish defendants who stymie the efficient procession of cases through our courts by the invidious filing of frivolous, meritless, and impermissibly successive post-conviction motions. These admonishments become hypocrisy when, as in this case, we contribute to the morass of capital cases by our own hand through neglect. Such dereliction undermines public confidence in our system of justice, risks prejudicing defendants, and reduces our capital punishment system to one "that seems unable to function except as a parody of swift or even timely justice." Walton v. Arizona, 497 U.S. 639, 669 (1990) (Scalia, J., concurring). This case serves as an example of why it is incumbent upon our courts to remain vigilant in the administration of swift justice, and for judges to be particularly mindful of our ethical responsibility to "dispose of all judicial matters promptly, efficiently, and fairly." Fla. Code Jud. Conduct, Canon 3B(8). State v. Williams, No. CR80-5117, Div. 10, order at 2-3 (Fla. 9th Cir. Ct. order filed Feb. 1, 1999) (emphasis added). I commend Judge Cohen for addressing frankly this problem.

Neverson v. Bissonnett , No. 00-1044 (1st Cir. 08/20/2001) First Circuit delineates scope of "stay and abeyance" procedures for that Circuit in cases of mixed petitions following Duncan v. Walker.

To be sure, the petitioner could have improved his position by requesting that the district court stay, rather than dismiss, Petition No. 1. See Duncan, 121 S. Ct. at 2130 (Stevens, J., concurring) (observing that "there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies"); see also Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001); Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000); Calderon v. United States Dist. Ct., 134 F.3d 981, 986-87 (9th Cir. 1998). Post-AEDPA, this will be the preferable course in many cases involving "mixed" petitions - and it may be the only appropriate course in cases in which an outright dismissal threatens to imperil the timeliness of a collateral attack.

In the end, then, we return to the question that we posed at the outset of our discussion: Can the case before us be materially distinguished from Lowenfield? We conclude that it cannot and we therefore must reverse the order of the district court granting a conditional writ of habeas corpus. Both the Louisiana statute at issue in Lowenfield and the Ohio statute before us have similar features despite differences in their language. Both require that the jury's recommendation, whether for life or death, be unanimous. And, most significant in our eyes, each statute provides that, if the jury is unable to reach a verdict, the court shall impose a life sentence. Consequently, petitioner's argument that an Allen charge can only favor a verdict for death would apply with equal force in context of the Louisiana statute construed in Lowenfield and was, by implication, rejected by the Supreme Court. Finally, the circumstances surrounding the jury deliberations in Lowenfield imply an even greater danger of coercion than those in the case before us: the trial judge polled the jury twice and a verdict of death was returned within thirty minutes of the Allen charge. Nonetheless, the Supreme Court upheld the verdict.

Although the issue appellant raises regarding VCCR rights is an issue of first impression in this court, it has been raised and addressed in various other courts. At least one court has rejected the claim by holding that Article 36 does not create individually enforceable rights. United States v. Li (C.A.1, 2000), 206 F.3d 56, 62-66. But, see, Breard v. Greene (1998), 523 U.S. 371, 376, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529, 538 (the VCCR "arguably confers on an individual the right to consular assistance following arrest"). Many other courts have held that even if individuals can enforce the treaty provisions, application of the exclusionary rule is not an appropriate remedy for a violation. See, e.g., United States v. Alvarado-Torres (S.D.Cal.1999), 45 F.Supp.2d 986, 993-994; United States v. Page (C.A.6, 2000), 232 F.3d 536, 540; United States v. Chaparro-Alcantara (C.A.7, 2000), 226 F.3d 616; United States v. Jimenez-Nava (C.A.5, 2001), 243 F.3d 192, 198-200; United States v. Lombera-Camorlinga (C.A.9, 2000), 206 F.3d 882 (en banc).

 For the purposes of this case, we assume, without deciding, that upon his arrest appellant had an individually enforceable right under Article 36 to be informed of his right to consular notification and that the appropriate remedy for the violation of that right is the suppression of appellant's post-arrest statement. *fn2 Even applying the foregoing assumptions, we nevertheless reach the conclusion that appellant is not entitled to the relief he seeks.

As stated previously, Article 36(2) of the VCCR provides, "The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State * * *." Thus, claims of error based on violations of the VCCR for failure to notify a defendant of his right to consular access can be procedurally defaulted if not properly raised. Breard v. Greene, 523 U.S. at 375-376, 118 S.Ct. at 1354-1355, 140 L.Ed.2d at 537. This court has long held that failure to raise an issue in the trial court or the court of appeals waives all but plain error in our review. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. Thus, because appellant failed to raise this issue in the trial court, he has waived all but plain error.

Plain error exists when it can be said that but for the error, the outcome of the trial would clearly have been otherwise. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899. We find that even if the trial court erred in admitting testimony regarding appellant's post-arrest statement, that testimony did not affect the outcome of the trial.

"[W] e are aware that defendant's IQ raw score falls into the retarded range and that Governor Michael F. Easley has signed legislation that provides that a mentally retarded defendant shall not be sentenced to death. Act of Aug. 4, 2001, ch. 346, sec. 1, 2001 N.C. Sess. Laws (adding N.C.G.S. § 15A-2005 effective 1 October 2001 for trials docketed to begin on or after that date). This legislation includes a provision applicable to defendants who may be mentally retarded but have already been sentenced to death. Ch. 346, sec. 3, 2001 N.C. Sess. Laws (adding N.C.G.S. § 15A-2006 effective 1 October 2001). At the time of defendant's trial, his counsel had no reason to anticipate that defendant's IQ would have the significance that it has now assumed. Accordingly, we additionally hold that our ruling today as to other issues in defendant's trial shall not prejudice any right of defendant to seek post-conviction relief pursuant to this new legislation.

Supreme Court
No cases reported this week. 

Capital Cases Relief Granted 
Lebron v. State , No. SC93955 (Fla. 08/30/2001) Relief granted due to an invalid aggravator. 

Next, Lebron argues that the trial court erred in instructing the jury that Lebron was on felony probation at the time the crimes for which he was convicted were committed, and then finding this as an aggravating circumstance. This Court has held that, where, as here, the subject felony probation aggravator did not exist at the time the murder was committed, the trial court's finding of this aggravator violates the ex post facto provisions of the United States and Florida Constitutions. See Merck v. State, 763 So. 2d 295, 299 (Fla. 2000); Lukehart v. State, 762 So. 2d 482 (Fla. 2000); Zack v. State, 753 So. 2d 9 (Fla. 2000).

While this Court has held that a defendant can waive ex post facto protections as part of an agreed-upon bargain by both parties, see Bowles v. Singletary, 698 So. 2d 1201 (Fla.1997) (finding that the inmate had waived any ex post facto argument as to forfeiture of gain time upon revocation of control release by accepting terms and conditions of early release under control release program), that is not the situation here. "[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed." State v. Smith, 547 So. 2d 613, 616 (Fla.1989) (quoting with approval Heath v. State, 532 So. 2d 9, 10 (Fla. 1st DCA 1988)), quoted in Bates v. State, 750 So. 2d 6, 19 (Fla.1999) (Harding, C.J., specially concurring). 

Although at least one of Lebron's two remaining aggravators was grave (involving his two prior violent felony convictions), and the death penalty has been upheld in cases similar to this one *fn18 where there was no serious issue of the relative culpability of co-defendants, the judge's error in finding the felony probation aggravator, which was not part of Florida law at the time the murder occurred, requires that we vacate Lebron's sentence of death, and order a new penalty-phase proceeding before a jury.

Capital Cases Relief Denied 
State v. Taylor , No. 505A99 (N.C. 08/17/2001) The trial court did not abuse its discretion in a capital first-degree murder and robbery with a dangerous weapon trial by denying defendant's motion to continue when defendant had twenty-eight days' notice of the trial date, because counsel had adequate notice that the trial was imminent and had a reasonable time to prepare for trial. 
Other issues inculde extradition; prosecutor's use of word “necessary” in jury selection; denial of defense counse;'s attempt to probepossible biases of prospective jurors; in the removal of venirepersons for bias against imposing death penalty;  qualification of experts; exclusion of defendant's expert witness as to his opinion on the N.C.G.S. § 15A-2000(f)(6) mitigating circumstance concerning defendant's mental capacity to appreciate the criminality of his conduct;  combining requested mitigating circumstances and excluding some submitted mitigating circumstances, instead of submitting the proposed circumstances separately and independently; request for peremptory instruction on all mitgating factors.

People v. Weaver , No. S004665 (Cal. 08/20/2001) Though error & potential error noted with the trial, any problems were harmlesss. The Court notes as error: "1) the appointment of Dr. Cutting and Dr. Criswell to examine defendant for sanity when the only issue at the time was his competence to stand trial; (2) permitting the same psychiatrists to testify at the sanity phase; and (3) violating sections 977 and 1043 by permitting defendant voluntarily to absent himself from his trial." The Court notes as potential error: "permitting Carol Bender to testify she had trouble serving defendant's  mother with a subpoena, and giving a limiting instruction concerning the jury's consideration of the VESI videotapes, if error, were both harmless. 

Bronshtein v. Horn, No. 99-2186 (E.D.Pa. 08/16/2001) By order relief was previously granted, Petitioner's Rule 59 (e) motion denied on claims the "Court overlooked a number of claims for relief that challenged the robbery, theft, and conspiracy convictions. Petitioner points to Claims IV, V, VI, and VII. A review of the arguments submitted by petitioner in support of Claims IV, V, and VI belies his assertion that these claims challenged anything other than the murder conviction. Petitioner's voluminous and carefully crafted submissions on these claims can only be read to challenge the murder conviction. Claim IV asserts that the trial court erred in precluding evidence that someone else committed the murder and focuses its discussion on evidence showing that another individual was the "actual murderer." See Petition, at 22-23. Claim V challenges the admission of petitioner's involvement in another homicide for the purpose of showing identity, and again focused its discussion on the murder conviction . See Petition, at 23. ("the prosecution asked the jury to conclude that Petitioner's admission to that police department regarding the Philadelphia murder meant that Petitioner must be guilty of this one"). Claim VI asks solely that petitioner's death sentence be vacated because of prosecutorial misconduct during the sentencing stage. See Petition, at 24. To read these claims to challenge the robbery, theft, or conspiracy conviction requires an act of creative interpretation that is both unwarranted and impermissible." (No web link)

Humphreys v. Gibson , No. 00-7061 (10th Cir. 08/21/2001) Relief denied on Petitioner's claims that "1) his attorney provided ineffective representation; 2) evidentiary errors warrant habeas relief; and 3) Oklahoma's aggravating factor applicable to individuals who murder while serving a "sentence of imprisonment" is unconstitutionally vague and overbroad."

Whitehead v. Cowan, No. 00-2091 (7th Cir. 08/29/2001) Relief denied on claims that Petitioner's "inculpatory statements were admitted in violation of the Fifth and Fourteenth Amendments; that he was not tried before a fair and impartial jury in violation of the Fifth and Fourteenth Amendments; that there was prosecutorial misconduct in violation of the Fifth and Fourteenth Amendments; that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments; and that there was an invalid waiver of a sentencing jury in a capital case, in violation of theFourteenth Amendment."

Miller-El v. Johnson , No. 00-10784 (5th Cir. 08/07/2001) Miller-El sought and wad denied "a COA on each of the following issues: (1) whether the district court erred in overruling his challenges of improper peremptory juror strikes; (2) whether the state court erred in failing to conduct a sua sponte evidentiary hearing regarding his competency to stand trial and in finding that he was competent to stand trial in 1986; (3) whether the district court likewise erred in failing to conduct a hearing regarding his competency; and (4) whether the district court erred finding that his First and Fourteenth Amendment rights were not violated by admission of evidence, during the punishment phase of his trial, relating to his affiliation with the Moorish Science Temple."

Timberlake v. State , No. 49S00-9804-PD-252 (Ind. 08/20/2001) Relief denied on appellants claim relating to: "(1) his competency during trial, direct appeal, and post-conviction relief; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; and (4) bias of the post-conviction court. "

Ben-Yisrayl v. State , No. 64S00-9808-PD-429 (Ind. 08/28/2001) Relief denied on claims relating to "whether his appellate lawyer was ineffective; whether his trial counsel rendered ineffective assistance; whether the post-conviction court properly admitted evidence of George and Ilija Balovski's murders and the shotgun found in Ben-Yisrayl's closet; whether certain procedural rulings of the post-conviction court were erroneous; and whether the trial transcript was so inadequate as to deny Ben- Yisrayl due process or meaningful appellate and collateral review.

Lott v. Coyle , No. 99-4155 (6th Cir. 08/17/2001) Relief denied (primarily on procedural default grounds etitioner-Appellant Gregory Lott appeals from the district court's denial of his petition for a writ of habeas corpus, setting forth four bases for relief: (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.

Franklin v. Catoe , No. 25353 (S.C. 08/27/2001) Post-conviction trial court's grant of relief vacated where the court below found counsel failed to explain to applicant that he had the right to address the jury at the conclusion of the guilt/innocence phase. (Advance sheet only) 

Jeffries v. State, No. SC94994 (Fla. 08/23/2001) Relief denied on all claims including: "(1) whether the trial court erred in denying his motion to suppress his shoes; (2) whether the trial court erred in overruling his objection to the State's use of a peremptory challenge to an African-American juror; (3) whether the trial court erred in denying his motion for judgment of acquittal; (4) whether the trial court improperly evaluated the mitigators; and (5) whether the sentence is proportionate.

Tigner v. Cockrell , No. 01-50238 (5th Cir. 08/28/2001) "First, he claims that the state trial court violated his Eighth and Fourteenth Amendment rights by refusing to tell the jury that he would have been ineligible for parole for 35 years had he been given a life sentence. Second, he argues that Dr. Grigson's testimony that he would pose as a future threat to society deprived him of due process." Relief denied.

State v. Nields , No. 98-20 (Ohio 08/29/2001)(non-html document) Relief denied on: [1] failure to appoint or fund defense experts; [2] suppression of a confressionmaterailas seized from a warrantless search; [3] denial of bond; [4] grand jury evidence & composition; [5] life and death qualifications of jurors; [6] jury instructions; [7] weight of the evidence;  [8]separation of witnesses; [9] jailhouse snitches; [10] inflamatory evidence;  [11] improper aggravators; [12] Brady evidence; [13] Double Jeopardy; [14] shackles; [15] mtigation preclusion; [16] media coverage; [17] prosecutorial misconduct; and [18] ineffective assistance of counsel.
 

Delayed Publication Cases
Young v. Commonwealth , No. 1998-SC-0584-MR (Ky. 04/26/2001) As the Defendant cannot be charged with an aggravator, death sentence vacated: 

At present, the laws of thirty-eight states permit imposition of the death penalty upon conviction of murder.*fn13 All thirty-eight require a finding of at least one statutory aggravating circumstance as a prerequisite to imposition of the death penalty Montana *fn14 and Virginia *fn15 are the only death penalty states that do not include a "for pecuniary gain" aggravator in their statutory schemes. Thirteen states have adopted provisions identical or virtually identical to Section 210.6(3)(g) of the Model Penal Code, i.e., that the offense, as opposed to the offender, was motivated by pecuniary gain. *fn16 Eighteen states, including three of those with provisions identical or virtually identical to Model Penal Code $j 210.6(3)(g), have statutes specifically providing that hiring or otherwise procuring another to commit murder is an aggravating circumstance.*fn17 

Colorado's statute not only has the Model Penal Code aggravator, but also has an aggravating circumstance that the defendant was a party to an agreement to kill another.*fn18 California has both the Model Code aggravator and a separate provision authorizing the death penalty if the defendant was an accomplice with another to whom an aggravating circumstance applies and if the defendant intended that the victim would be killed. *fn19 New Mexico *fn20 and Ohio *fn21 have an aggravating circumstance that the offense "was committed for hire." In addition to Georgia, three other states have provisions with language similar to KRS 532.025(2)(a)4, i.e., that the offender's motive was pecuniary gain, but each, like Georgia, has also adopted the additional aggravating circumstance that "[t]he offender caused or directed another to commit murder . . _ .'*fn22 Kentucky has the only statutory scheme with a "pecuniary gain" aggravator containing neither the Model Penal Code language applying the aggravator to the offense, as opposed to the offender, nor an aggravating circumstance specifically applicable to one who hires or otherwise procures another to commit murder. . . . 

 It is equally clear that individualized consideration is a Constitutional prerequisite for imposition of capital punishment. Id.; see also Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991. As observed by the Supreme Court of Missouri: 

To state the obvious, the death penalty differs from all other forms of criminal sanction. The death penalty reflects a societal judgment that a person's acts render them [sic] no longer fit to be among us. Such a judgment is of such a magnitude and so final that jury deliberations over the subject must be carefully channelled to consider only the legal justifications for the punishment and not the more broad, often emotional response to the crime in general. Thus, jury instructions setting out statutory aggravating circumstances -- those circumstances that, if found, justify the death sentence - must be unquestionably focused on the convicted murderer's own character, record and individual mindset as betrayed by her own conduct. Although it is permissible to find a person guilty of murder for acts done in concert with another, it is never permissible to sentence a person to death for acts of another. State v. Isa, 850 S.W.2d 876, 902-03 (MO. 1993).

In other words, the death penalty cannot be vicariously imposed. Absent a statutory aggravating circumstance specifically applicable to the defendant or the defendant's own conduct, he/she cannot be subjected to the death penalty. Unlike the legislatures of thirty-five of the other thirty-seven states that have death penalty statutes, our legislature has chosen not to include in KRS 532.025(2) an aggravating circumstance applicable to one who hired, procured or directed another to commit murder. Nor has our legislature, unlike the California legislature, enacted a provision authorizing imposition of the death penalty upon one who is an accomplice of another to whom an aggravating circumstance applies. The specification of aggravating circumstances is the legislature's prerogative, not ours. By its unambiguous language, *fn23 KRS 532.025(2)(a)4 applies only to a defendant who commits the offense of murder "for the purpose of receiving money or any other thing of monetary value, or for other profit." While the statute clearly applies to Thomas, the hired killer in this case, it does not apply to Young whose motive in procuring the murder of Shalash was revenge, not monetary gain.

The trial court overlooked Thompson's right to due process when it failed to hold the competency hearing required by KRS 504.100(3). In all fairness to the able and competent trial judge in this case, we note that while Mills holds that a competency hearing cannot be waived, Mills was rendered over three years after the date upon which the trial judge accepted Thompson's guilty plea. 

Now we reach the perplexing issue of Thompson's remedy. Hayden v. Commonwealth, Ky., 563 S.W.2d 720 (1978) held that failure to hold a competency hearing required reversal of the defendant's conviction. Id. at 723. While expressing a preference for merely remanding for a etrospective competency hearing, the Hayden Court felt that reversal was compelled by the holdings of Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896,43 L. Ed. 2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). 

Since the time we decided Hayden, a number of federal circuits have determined that Drope and Pate merely disfavor retrospective competency hearings rather than forbidding them absolutely. These circuits hold that retrospective determinations of competence to stand trial are permissible, i.e., do not violate a defendant's due process rights, in particular cases. See, m, United States v. Renfro, 825 F.2d 763 (3rd Cir. 1987); United States v. Mason, 52 F.3d 1286 (4th Cir. 1996), cert. denied, - U. S. -, 121 S. Ct. 823, 148 L. Ed. 2d 707 (2001); Wheat v. Thiapen, 793 F.2d 621 (5th Cir. 1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 759 (1987); Cremeans v. Chaeleau, 62 F.3d 167 (6th Cir. 1995), cert. denied, 516 U.S. 1096, 116 S. Ct. 822, 133 L. Ed. 2d 765 (1996); Bilyew v. Franzen, 842 F.2d 189 (7th Cir. 1988); Revnolds v. Norris, 86 F.3d 796 (8th Cir. 1996); Moran v. Godinez, 57 F.3d 690 (9th Cir. 1994); Bailey v. Soears, 847 F.2d 695 (1 Ith Cir. 1988).

Other Notable Cases(As reported by Findlaw , and other sources) 
riggs v. Maryland, No. 00-7173 (4th Cir 08/23/2001) A state court's holding that a governor's statement to the press was not a law for purposes of the Ex Post Facto Clause is not a decision
that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.

Hunt v. Mitchell, No. 99-4308 (6th Cir 08/22/2001) A criminal defendant who was denied the right to consult with newly appointed counsel for ten minutes before trial suffered per se ineffective assistance of counsel.

Dixon v. Dormire, No. 00-1215 (8th Cir 08/20/2001) Missouri prisoners seeking federal habeas review must first seek discretionary review with the Missouri Supreme Court.

Moore v. Luebbers, No. 00-2725 (8th Cir 08/20/2001) The failure of the state of Missouri to assert the exhaustion of  remedies requirement of filing for discretionary state supreme court review will allow prisoner to file pro se habeas petition.

Colman v. Kenma, No. 99-4103 (8th cir 08/20/2001) The failure of the state of Missouri to assert the exhaustion of remedies requirement of filing for discretionary state supreme court review will allow prisoner to file pro se habeas petition.

Anderson v. Bowersox, No. 00-2571(8th cir 08/22/2001) Multiple confessions to crime will negate claim of prejudice from alleged ineffective assistance of counsel for failure to cross-examine witness on plea agreement with government.

Hohn v. US, No. 00-3327 (8th cir 08/22/2001) Prisoner on supervised release has moot claim to challenge one conviction if other conviction alone would support term of supervised release.

Fontana v. Haskin, No. 99-56629(9th cir 08/22/2001) An allegation that a police officer sexually harassed a suspect after arrest and in transit to police station states a sufficient claim for a 4th amendment violation for unreasonable search and seizure.

Humphreys v. Gibson, No. 00-7061 (10th cir 08/21/2001) Okla. Stat. tit. 21, 701.12(6), which allows a jury to consider whether the defendant committed a murder while being imprisoned for another murder as an aggravating factor in capital cases, is not unconstitutionally vague and overbroad.

Miller v. Champion, No. 00-6138 (10th cir 08/21/2001) When a defendant alleges that his attorney's ineffective assistance led him to plead guilty, the test for prejudice is whether he can show that he would not have pled guilty had his attorney performed in a constitutionally adequate manner, not whether he would have prevailed at trial.

Fisher v. Gibson, No. 99-6457, 99-7107, 00-7114 (10th cir 08/22/2001) Where petitioner pled guilty in three separate proceedings and was found competent in each one, he may not claim equitable tolling for alleged incompetence for failure to file a habeas petition within one year of AEDPA's effective date, even if one of the prior proceedings used a constitutionally infirm standard for competency.

Dorsey v. Chapman, No. 99-14790 (11th cir 08/20/2001) In a criminal case involving a victim with multiple personalities, defense counsel's decision not to impeach the witness with prior inconsistent statements during witness's dissociative testimony does not constitute ineffective assistance of counsel.

Delaney v. Matesanz, No. 99-1972 (1st cir 09/05/2001) Where a state prisoner sought a writ of habeas corpus in the district court but voluntarily withdrew his application when the government pointed out that it contained unexhausted claims, the statute of limitations under the aedpa is not tolled.

Wenger v. Frank, No. 99-3337 (3rd cir 09/07/2001) Inclusion of unexhausted claims with properly exhausted claims in a habeas petition does not make the petition "mixed," requiring the district court to dismiss the petition, if the unexhausted claims are otherwise procedurally barred.

Givens v. Cockrell, No. 00-40532 (5th cir 09/06/2001) Because the law regarding admissibility of un-adjudicated offenses during the sentencing phase was unsettled, the court did not err in admitting the evidence and petitioner's counsel was not ineffective for failing to object to the admission of the evidence.

Greer v. Mitchell, No. 98-4330 (6th cir 09/04/2001) Failure of appellate counsel to raise ineffective assistance of trial counsel claim on direct appeal may itself constitute ineffective assistance of appellate counsel.

Greene v. Tennesse Dep't of Corr.,  No. 00-5237 (6th cir 09/07/2001) Astate prisoner who seeks habeas relief under 28 usc 2241, but does not directly or indirectly challenge the state court conviction or sentence, must obtain a certificate of appealability.

Northrup v. Trippett, No. 99-2472 (6th cir 09/07/2001) An anonymous tip that two black males, one wearing a particular type of name brand clothing, were selling drugs in a bus station is not alone sufficient to support a reasonable suspicion in order to detain an individual fitting that description.

Morris v. US, No. 98-3306(7th cir 09/04/2001) Even if the petitioner's counsel wa ineffective for failing to address certain evidence, the evidence was cumulative where counsel for a co-defendant vigorously addressed the issue in cross-examination of the government's witness, so petitioner suffered no prejudice.

Ramunno v. US, No. 01-1731 (7th cir 09/04/2001) Disputes about a habeas petition's timeliness do not support an appeal absent a substantial constitutional issue, but if a defective certificate issues, counsel for the petitioner must make every effort to identify an issue that satisfies 18 usc 2253(c)(2), or dismissal of the appeal will follow.

Chambers v. McCaughtry, No. 00-1959 (7th cir 09/05/2001) Instructing the jury that a "crime is not complete until a successful escape is made" was not a constitutionally impermissible enlargement of the scope of the wisconsin felony murder statute.

Johnson v. McCaughtry, No. 00-2217 (7th cir 09/07/2001) A collateral post-conviction action may be "pending" in state court for purposes of tolling the statute of limitations for a habeas petition where further review could have been sought, but only if the original petition for review was properly filed.

Jorss v. Gomez, No. 99-16986 (9th cir 09/04/2001) A district court's erroneous dismissal of a habeas petition for failure to exhaust state remedies constitutes extraordinary circumstances to warrant equitable tolling under the aedpa.

Wixom v. Washington, No. 00-35721  (9th cir 09/05/2001) Under 28 usc 2244(d)(2) of the aedpa, the failure of a state appellate court to unconditionally terminate review of state habeas petition does not necessarily make the case "pending" to toll the statute of limitations.

Rega v. US, No. 00-2287 (2nd cir 08/27/2001) Where defendant's testimony would have done more damage to his case than it would have helped, he cannot show prejudice under the sixth amendment in the asserted failure of  his counsel to let him testify.

Morris v. Reynolds, No. 00-2447 (2nd cir 08/31/2001) The supreme court has "clearly established" that jeopardy attaches upon a trial court's unconditional acceptance of a guilty plea to the lesser included offense in a two-count indictment, so the double jeopardy clause bars subsequent prosecution on a greater felony offense.

Loliscio v. Goord, No. 00-2594 (2nd cir 08/31/2001) After a state court, relying on subjective juror testimony, rejects a defendant's sixth amendment claim predicated on jury consideration of extra-record information, the federal habeas court, excluding the subjective juror testimony, may not then determine that the petitioner's sixth amendment rights were violated.

Tigner v. Cockrell, No. 01-50238 (5th cir 08/28/2001) Defendants in texas are not entitled to a jury instruction regarding a 35-year parole ineligibility because only prisoners who face a life sentence without any possibility of parole can demand a simmons instruction, and texas does not have life without parole.

Henderson v. Collins, No. 99-4046, 99-4088 (6th cir 08/28/2001) Ohio rev. code ann. 2929.03(d)(2) does not require a judge to automatically take away a death penalty case from a jury when it reports a deadlock in the penalty phase.

Magana v. Hofbauer, No. 99-2107(6th cir 08/28/2001) In an ineffective assistance of counsel claim where counsel misinformed defendant of potential maximum sentence for trial compared to plea bargain, the defendant need only prove a "reasonable probability" he would have accepted the plea bargain if given proper advice, not absolute certainty.

Whitehead v. Cowan, No. 00-2091 (7th cir 08/29/2001) Where the judge, counsel, and court reporter retired to chambers while the jury, defendant, and the victim's mother, who was on the witness stand, remained in court, and the victim's mother shouted at the accused and began to cry, but did not provide any information not admitted at trial, the judge's error was harmless.

Henderson v. US, No. 01-2989 (7th cir 08/29/2001) Where the district court fails to advise the mislabeling movant that his motion may be deemed a section 2255 motion and offer a chance to withdraw it, the mislabeled motion will not be deemed a section 2255 motion requiring permission for a subsequent 2255 motion.

Boss v. Pierce ,  no. 98-3665 (7th cir 08/31/2001) For purposes of determining whether evidence was suppressed inviolation of brady, a witness' knowledge is not like a document, so a defense witness' statement may not be otherwise available to the defendant through the exercise of reasonable diligence.

Fisher v. Roe, No. 00-55031; 00-55035 (9th cir 08/27/2001) A defendant has the right for counsel to be present at a readback of testimony, and where the defendant is not afforded that right, a writ of habeas corpus is appropriate.

Gunn v. Ignacio, No. 99-16186(9th cir 08/30/2001) Prosecution breached plea agreement not to oppose concurrent sentencing by agreeing with presentence report that opposed concurrent sentencing.

Bailey v. Newland, No. 99-17654 (9th cir 08/31/2001) A court's holding that officers working closely together may have knowledge imputed to each other despite lack of communication does not violate clearly established federal law.

Neill v. Gibson, No. 00-6024 (10th cir 08/27/2001) Oklahoma may constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment without violating the ex post facto or due process clauses.

Feature
This week's feature is a brief listing of firms in & around the WTC.  Several of the firms in the area have engaged in capital defense work & many law school classmates may also work in the area, so the ripples may be wider & dramatically more personal than you might have originally thought.
Law Firms in  The World Trade Center

New York Law Journal
September 12, 2001 

The following law firms, solo practitioners and inhouse law departments maintained law 
offices in the World Trade Center: 

One World Trade Center 

 Cantor Fitzgerald 

 Carroll, McNulty & Koll 

 H. Taufiq Choudhoury 

 Conway & Conway 

 Kidder Peabody & Co. 

 Drinker Biddle & Reath 

 Martin L Feinberg 

 Hill, Betts & Nash 

 Noah Klarish & Associates 

 Lutnick & Swomley 

 Ohrenstein & Brown 

 Law Offices of Roman Popik 

 Port Authority of New York and New Jersey 

 Serko & Simon 

 Strongin, Rothman & Abrams 

 Stryker, Tams & Dill 

 Hanlon & Lavigne 

 Empire Blue Cross & Blue Shield 

 Jun He Law Offices 

Two World Trade Center 

 Chen, Lin, Lee & Jiang 

 Harris Beach 

 Morgan Stanley 

 Thacher Proffitt & Wood 

 SCOR U.S. Corp. 

 New York Stock Exchange 

 Fiduciary Trust Co. 

 Oppenheimer Funds Inc. 

 Ebasco Risk Mgt Consultants Inc. 

 Wm. H. McGee & Co. Inc. 

Four World Trade Center 

 New York Cotton Exchange 

 Commodity Exchange 

 New York Mercantile Exchange 

 Coffee, Sugar, & Cocoa Exchange 

 Seven World Trade Center 

 Salomon Bros. 

 Federal Home Loan Bank of New York 

Area Surrounding the World Trade Center: 

World Financial Center 

 Dow Jones & Co. Inc. 

 Nomura Securities Int'l Inc. 

 Merrill Lynch & Co., Inc. 

 CIBC Oppenheimer Corp. 
 (Canadian Imperial Bank of Commerce) 

 Refco Securities, Inc. 

 Deloitte Touche 

 CommerzBank 

 Oppenheimer & Co., Inc. 

 Man Group USA Inc. 

 Yasuba Fire & Marine Ins. Co. of America 

Zip Code 10005 

 Buchanan Ingersoll 
 140 Broadway 

 Cahill Gordon & Reindel 
 80 Pine St. 

 Carter Ledyard & Milburn 
 2 Wall Street 

 Clausen Miller 
 1 Chase Manhattan Plaza 

 Conway, Farrell, Curtin & Kelly 
 63 Wall St. 

 Ford Marrin Esposito Witmeyer & Glaser 
 Wall Street Plaza 

 Gould & Willkie 
 1 Chase Manhattan Plaza 

 Herzfeld & Rubin 
 40 Wall St. 

 McElroy, Deutsch & Mulvaney 
 Wall St Plaza 

 Milbank Tweed Hadley & McCloy 
 1 Chase Manhattan Plaza 

 New York Stock Exchange Legal Dept 
 11 Wall St. 

 Rawle & Henderson 
 140 Broadway 

 Richards Spears Kibbe & Orbe 
 1 Chase Manhattan Plaza 

 Schnader Harrison Segal & Lewis 
 140 Broadway 

 Sirota & Sirota
 110 Wall St 

 White, Fleischner & Fino 
 140 Broadway 

Zip Code 10006 

 Cleary Gottlieb 
 1 Liberty Plaza 

 Allegaert Berger & Vogel 
 111 Broadway 

 American Stock Exchange 
 86 Trinity Place 

 Law Offices of Peter G. Angelos 
 115 Broadway 

 Law Offices of Kenneth L. Aron 
 111 Broadway 

 Steven L. Barkan 
 29 Broadway 

 Baumeister & Samuels 
 1 Exchange Plaza 

 Belair & Evans 
 61 Broadway 

 Bolatti & Griffith 
 45 Broadway 

 Brauner Baron Rosenzweig & Klein 
 61 Broadway 

 J. Bruce Byrne 
 61 Broadway 

 Cardillo & Corbet 
 29 Broadway 

 Cichanowicz, Callan, Keane, Vengrow & Textor 
 61 Broadway 

 Cilmi & Assoc 
 39 Broadway 

 Cozen O’Conor 
 45 Broadway 

 Cusack & Stiles 
 61 Broadway 

 Law office of Edgar DeLeon 
 61 Broadway 

 De Orchis, Walker & Corsa 
 61 Broadway 

 Edelman & Edelman 
 61 Broadway 

 Bruce M. Feffer 
 61 Broadway 

 Flemming, Zulack & Williamson 
 1 Liberty Plaza 

 Gersowitz Libo & Korek 
 111 Broadway 

 Godosky & Gentile 
 61 Broadway 

 Jerry S. Goldman & Assoc 
 111 Broadway 

 David S. Gould 
 61 Broadway 

 Healy & Baillie 
 29 Broadway 

 Hill Rivkins & Hayden 
 90 West St. 

 Kittay & Gershfeld 
 55 Broadway 

 Kogan Taubman & Neville 
 39 Broadway 

 Theodore A. Krebsbach & Assoc 
 55 Broadway 

 Krieger & Prager 
 39 Broadway 

 Lambert & Weiss 
 61 Broadway 

 Lambos & Junge 
 29 Broadway 

 Laufer & Halberstam 
 39 Broadway 

 Law Off of Ronald W. Gill 
 61 Broadway 

 Leitner & Getz 
 61 Broadway 

 Litman, Asche & Gioiella 
 45 Broadway 

 Mahoney and Keane 
 111 Broadway 

 Val Mandel 
 40 Rector St. 

 Marulli & Assoc 
 115 Broadway 

 Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski 
 39 Broadway 

 Neiman Ginsburg & Mairanz 
 39 Broadway 

 Nourse & Bowles 
 55 Broadway 

 Pattison & Flannery 
 115 Broadway 

 Pisano Mills & Isgard 
 65 Broadway 

 Poles, Tublin, Patestides & Stratakis 
 46 Trinity Place 

 Ranni Vassalle 
 111 Broadway 

 Royal Bank of Canada 
 1 Liberty Plaza 

 Schindler Cohen & Hochman 
 1 Liberty Plaza 

 Sexter & Warmflash 
 115 Broadway 

 Michael Daniel Sharp 
 111 Broadway 

 Simons & Wiskin 
 90 West St. 

 Stamell & Schager 
 1 Liberty Plaza 

 Treacy, Schaffel, Moore & Mueller 
 111 Broadway 

 Wade Clark Mulcahy 
 111 Broadway 

 Waesche, Scheinbaum & O’Regan 
 111 Broadway 

 Wasserman Schneider Babb & Reed 
 111 Broadway 

 Winget, Spadafora & Schwartzberg 
 45 Broadway 

 American Arbitration Association 
 111 Broadway 

 Zurich U.S. 
 1 Liberty Plaza 

Zip Code 10007 

 St. Paul Companies 
 195 Broadway 

 Dun & Bradstreet Corp. (Moody’s Investor Service) 
 99 Church St. 

 Martin B. Adelman 
 225 Broadway 

 Roger B. Adler 
 225 Broadway 

 Michael Alperstein 
 30 Vesey St. 

 Richard J. Anderson 
 30 Vesey St. 

 Barasch, McGarry, Salzman, Penson & Lim 
 11 Park Place 

 David Blackstone 
 225 Broadway 

 Denise K. Bonnaig 
 277 Broadway 

 Karen S. Burstein 
 258 Broadway 

 Robert J. Krakow 
 225 Broadway 

 Thomas V. Dana 
 225 Broadway 

 Nathan L. Dembin & Assoc 
 225 Broadway 

 Dowd & Marotta 
 277 Broadway 

 Joseph Dubinsky 
 225 Broadway 

 Follick & Bessich 
 225 Broadway 

 Freeman, Nooter & Ginsberg 
 30 Vesey St. 

 Fuchsberg & Fuchsberg 
 100 Church 

 Geoghan & Cohen 
 225 Broadway 

 Gershbaum & Weisz 
 225 Broadway 

 Law Offices of Scott Gilman 
 225 Broadway 

 Ginsberg & Broome 
 225 Broadway 

 Richard A. Glovin 
 20 Vesey St. 

 Law Office of Mark D. Goodwin 
 225 Broadway 

 Gorayeb & Associates 
 136 Church St. 

 Max E. Greenberg, Trager, Toplitz & Herbst 
 100 Church St. 

 Richard A. Gurfein & Assoc 
 11 Park Place 

 Zoltan Hankovszky 
 30 Vesey St. 

 Harold Samuel Herman 
 277 Broadway 

 Holland & Knight 
 195 Broadway 

 Kahn, Gordon, Timko & Rodriques 
 30 Vesey St. 

 Mitchell D. Kessler 
 225 Broadway 

 Jeffrey S. Kimmell 
 225 Broadway 

 Robert Kruger 
 225 Broadway 

 Jeffrey I. Lang 
 30 Vesey St. 

 Charlotte ChoLan Lee 
 277 Broadway 

 Mait, Wang & Simmons 
 217 Broadway 

 Law Offices of Pamela Mann 
 225 Broadway 

 Mayol and Khalik 
 11 Park Place 

 Frederick W. Meeker 
 7 Day St. 

 Morton S. Minsley 
 225 Broadway 

 Moody’s Corporation 
 99 Church St. 

 Joseph T. Mullen & Assoc 
 30 Vesey St. 

 Law Offices of Jonathan B. Nelson 
 225 Broadway 

 Newman & Okun 
 20 Vesey St. 

 NY City Housing Authority law dept 
 250 Broadway 

 Jon L. Norinsberg 
 225 Broadway 

 Polly N. Passonneau 
 20 Vesey St. 

 Pazer & Epstein 
 20 Vesey St. 

 Gary B. Pillersdorf 
 225 Broadway 

 Allen G. Polak 
 225 Broadway 

 Rosiny & Rosiny 
 225 Broadway 

 Shapiro, Beilly, Rosenberg, Aronowitz, Leby & Fox 
 225 Broadway 

 Gary S. Smoke 
 225 Broadway 

 Law Offices of Spar & Bernstein 
 225 Broadway 

 Lance Roger Spodek 
 277 Broadway 

 Stephen H. Weiner 
 20 Vesey St. 

Errata
From the Death Penalty Information Center reports: 

Nevada Legislature Committee to Study Death Penalty 
 An eight member committee was recently appointed to study Nebraska's death penalty before the 2003 Legislative session opens.  Headed by Assemblywoman Sheila Leslie, a death penalty opponent, the group was formed by the Legislative Commission.  A study of the death penalty was ordered after a bill was introduced last session to abolish capital punishment. (Las Vegas Sun, 9/7/01)  Currently, 9 states have commissioned studies on their death penalty systems.  See also, proposed legislative changes. 

 Indiana Trial Court Rules Death Penalty Unconstitutional 
     A trial court judge in Indianapolis ruled that the state's death penalty statute was unconstitutional in light of a recent U.S. Supreme Court decision. Judge Grant W. Hawkins held that the state's statute effectively denied death row inmate Charles Barker his right to trial by jury, and dismissed the death penalty as a sentencing option at Barker's upcoming resentencing hearing. 
    Hawkins based his ruling on Apprendi v. New Jersey (530 U.S. 466 (2000)).  In Apprendi, the U.S. Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 
     In Indiana, the jury makes an unbinding recommendation to the judge, who sentences the defendant.  Judge Hawkins ruled that the Indiana statute violates Apprendi because it is possible that a judge could sentence an inmate to death even though a jury has failed to find, beyond a reasonable doubt, the existence of an aggravating factor. (Order on Supplemental Motion to Dismiss Death Penalty, September 10, 2001) 

British Government To Challenge U.S. Use of the Death Penalty 
    The Foreign Office of the British Government is mounting a legal challenge against the U.S. in order to stop the executions of death row inmates Tracy Housel, on death row in Georgia, and Jackie Elliott, on death row in Texas.  Both inmates have dual U.S. and British nationality, and the Foreign Office stated that it has serious concerns about the trials of both men and the quality of evidence used to convict them.  Britain is considering taking the cases to the International Court of Justice in the Hague.  A spokeswoman for the Foreign Office said government policy was to express Britain's "strong opposition to the death penalty and its imposition on British nationals."  (The Independent 9/11/01)  See also, foreign nationals and international death penalty. 

Executions Stayed in Ohio, Oklahoma, and Texas 
The Federal Court of Appeals in Cincinnati, Ohio granted a one-week stay to John W. Byrd, Jr., who was scheduled for execution on September 12.  Byrd maintains that while he participated in a robbery, he is innocent of murder.  The court denied his appeal but agreed to allow more time to consider whether the entire 6th Circuit should consider the merits of his appeal. (Associated Press, 9/10/01) 
The Oklahoma Court of Criminal Appeals granted an indefinite stay to Mexican National Gerardo Valdez to consider what it termed to be a "unique and serious matter" of international law.  Valdez's appeal is partly based on a decision by the International Court of Justice (ICJ) earlier this year that condemned the U.S. for executing foreign nationals who had been denied consular access upon arrest.  Valdez was also denied consular access in violation of the Vienna Convention.  (The Oklahoman, 9/11/01) See also, foreign nationals. 
In Texas, the September 11 execution of Jeffery Tucker was stayed in light of the day's terrorist attacks which resulted in the closing of federal courts. (Dallas Morning News, 9/12/01) 
Nebraska Prosecutor Decides To "End Suffering" by Not Seeking Death Penalty 
     Lancaster County Attorney Gary Lacey announced that he would not seek the death penalty against Randolph Reeves at an upcoming resentencing hearing.  Reeves, a Native American, was convicted and sentenced to death in Nebraska in 1981 for killing two women.  The case drew national attention when some of the family members of the victims began actively opposing his execution, which was scheduled for January 12, 1999.  The execution was stayed by the state Supreme Court, which ordered a new sentencing hearing for Reeves.  In announcing that he will not pursue the death penalty again, Lacey stated, "I had the power to put an end to all the suffering in this case...I have the power to do that, and over the weekend I decided that's what I'm going to do."  Since the state is not going to seek the death penalty, Reeves will likely be resentenced to life in prison.  (Lincoln Journal Star, 9/8/01)  See also, New Voices. 

Pennsylvania Death Row Inmate's Conviction Voided Because of Prosecutorial Misconduct 
     Eleven years after he was sentenced to death, Dennis Counterman was granted a new trial. Last month, Pennsylvania state court judge Lawrence Brenner threw out Counterman's 1990 conviction for setting a fire that killed his three children, holding that prosecutors withheld critical evidence and repeatedly violated a duty to turn over exculpatory information.  Among the information kept from defense lawyers were statements from neighbors that Counterman's oldest son, Christopher, had a history of setting fires and liked to play with lighters.  In addition, before handing over police interviews to the defense, prosecutors whited out Mrs. Counterman's statement to the police that her husband had been asleep when the fire started. Brenner ruled that these statements would have cast "substantial doubt" on Mrs. Counterman's testimony against her husband. 
     In his opinion, J ; Nearly 18 months after the execution of Malcolm Rent Johnson, the expert testimony used to convict him is being called into question. At Johnson's 1982 trial, prosecutors relied primarily on Gilchrist's testimony to place Johnson at the scene. Gilchrist testified that Johnson's blood type matched sperm collected at the crime scene.  However, a police department memo concerning a re-examination of the evidence shows that the slides from which Gilchrist based her testimony contained no sperm at all. The case came under review after Oklahoma City Police Department forensic scientist Joyce Gilchrist was suspended following the release of an FBI report criticizing her work. 
    Earlier this year, Oklahoma death row  inmate Alfred Brian Mitchell's death sentence was overturned because of what the court called Gilchrist's "untrue" testimony and Jeffrey Pierce was released from prison after DNA tests disproved Gilchrist's testimony against him.  (Los Angeles Times, 8/30/01 and New York Times, 9/2/01)  See also, Innocence. 

 DPIC Announces Thurgood Marshall Journalism Awards Ceremony 
      The Death Penalty Information Center will honor an exceptional eight-part series titled "Judgment  Day" by John Shiffman of The Tennessean and the critically-acclaimed radio program "Witness to  an Execution" by producers David Isay and Stacy Abramson of Sound Portraits Productions during its Fifth Annual Thurgood Marshall Journalism Awards at the National Press Club in  Washington, DC. Also at the September 26 luncheon event, DPIC will recognize the outstanding career achievements of Pulitzer Prize-winning columnist Jim Dwyer of The New York Times. 
      The awards are presented annually for excellence in portraying and analyzing problems associated with capital punishment. The distinguished judges for this year's Awards were veteran  writer, educator, and columnist Colman McCarthy - formerly with the Washington Post - and Dina Hellerstein, a communications expert and attorney. John R. MacArthur, President and Publisher of Harper's Magazine, will deliver opening remarks for the program, which includes a number of  distinguished guests. Entries for next year's awards must be published or produced in 2001, and should be submitted to the Death Penalty Information Center by January 31, 2002.  For more information about the upcoming awards ceremony, see the Press Advisory or contact Brenda Bowser at 293/293-6970.  See also, Thurgood Marshall Journalism Awards. 
 

NEW RESOURCES:  "A Life in the Balance: The Billy Wayne Sinclair Story"(Arcade Publishing 2001) -- A powerful, graphic and disturbing prison memoir from a former death row inmate who has spent 35 years in Louisiana's prison system.  This book exposes the arbitrariness and violence of extreme punishment, and yet also tells the story of a person's ability to change.  See also, Books on the Death Penalty. 

 American Psychological Association Calls for Death Penalty Moratorium 
The American Psychological Association (APA) , the largest association of psychologists worldwide, recently called for a moratorium on executions.  In passing the resolution, the APA cited the number of wrongly convicted inmates exonerated by DNA testing, inconsistencies in prosecutors' decisions to seek the death penalty, and the role that race plays in death penalty cases. The resolution also noted that two-thirds of all death penalty cases from 1973-1995 were reversed because of error. The APA called upon each jurisdiction in the U.S. to halt executions "until the jurisdiction implements policies and procedures that can be shown . . . to ameliorate the deficiencies" cited in the resolution.  (APA Resolution, 8/26/01) See also, New Voices, Articles, and Statements. 

North Carolina Executes Inmate Represented by Alcoholic Lawyer    North Carolina death row inmate Ronald Wayne Frye was executed on August 31st, despite the fact that his attorney was drinking heavily every day of the trial.  Probably because of the drinking, the attorney failed to present much of the evidence of the severe abuse that Frye suffered as a child.  In a recent op-ed, Gene R. Nicol, Dean at the University of North Carolina School of Law, described the attorney's behavior: 

Every night after the trial recessed, instead of preparing for the next day, the lawyer went home and drank a bottle of rum. According to his own testimony, Frye's counsel consumed at least 12 shots of 80-proof rum every evening, beginning around 5 and continuing until he fell asleep or passed out. He drank a good deal more on the weekends. And these admissions likely understate the case. When the lawyer was involved in a car wreck during the same time period, his blood-alcohol level was a near-lethal 0.436 percent -- even though it was 11 in the morning and he hadn't had anything to drink in hours.  (News and Observer, 8/22/01 
See also, DPIC's Press release. 
New Web site on Frye's case with pictures, audio and more information: 360degrees.org  (enter flash site or html site; click on "Stories"; then click on 3rd picture from left) 

-photo of Ronald Frye, age 9, showing 
abuse marks (never shown to jury) 
 
 

Wrongly Convicted Nebraska Inmate Added to Innocence List 
      Jeremy Sheets, who was released from Nebraska's death row in June, was added to DPIC's Innocence List, bringing the total number of innocent defendants released from death row to 98.  Sheets was released after the U.S. Supreme Court declined to hear an appeal of a Nebraska Supreme Court decision overturning his conviction.  Prosecutors then dropped the charges against him. 
      In September, 2000, the Nebraska high court unanimously ruled that a tape recording made by an alleged accomplice who committed suicide prior to the trial was the kind of statement deemed "highly suspect," "inherently unreliable," and hence inadmissible without the opportunity for Sheets to cross-examine.  The statements (later recanted) were made by Adam Barnett, who was arrested for the 1992 rape and murder of the same victim as in Sheets' case.  Barnett confessed to the crime and implicated Sheets.  In exchange for the taped statement, Barnett received a plea bargain in which he avoided a charge of first degree murder, did not have an additional weapons charge filed, and received a commitment for his safety while incarcerated. Barnett's statement was the key evidence used against Sheets at trial. (State v. Sheets, 618 N.W.2d 117 (Neb. 2000) and Associated Press, 6/12/01)  See also, innocence. 
 NEW VOICES: In a recent editorial, the Orlando Sentinel urged Gov. Jeb Bush to declare a moratorium on executions and create a panel to study the fairness of Florida's death penalty.  The newspaper, which has supported the death penalty for years, wrote: 

 [E]ven death-penalty advocates should support a thorough examination and public discussion of capital punishment. 
 Floridians deserve to know the facts. If capital punishment truly is a fair and effective component of the justice system, then it should have no difficulty standing up to scrutiny. 
 Gov. Jeb Bush, who has the grim responsibility to sign death warrants for executions, is the person who should set in motion an investigation. He should convene a special bipartisan commission to scrutinize capital punishment, and he should delay any further executions until that investigation is completed. 
 . . . 
 The commission should look at a variety of issues, but the major ones include why Florida has had so many people removed from death row; what procedures police use to interrogate suspects and get  confessions; the quality of legal representation provided to indigent defendants being tried for a capital crime; and, finally, whether capital punishment deters others from committing crimes. If so, that last question alone is a very strong argument for keeping it. 
 . . . 
 New questions about fairness and flaws in the judicial system demand that Florida take a renewed, sober look at the deat prayers go out to the families of the victims of violent crime, the families of those incarcerated, and the men & women on death row both here in the states and around the world. 

---

 

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.