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

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

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

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

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

The scheduled executions considered likely for October are:

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

With respect to defense counsel's performance during voir dire, Thompson alleges that counsel failed to (1) inquire about possible racial prejudices despite the fact that Thompson was an African-American who was accused of murdering a white man and woman; (2) question jurors about their beliefs regarding the credibility of police officers; (3) adequately question the panel about their views on the death penalty; (4) question jurors about their opinions concerning mental health experts and mental health mitigation as it related to the guilt and penalty phases; (5) excuse a juror who indicated that she would have difficulty believing that a defendant who remained silent was innocent.

Because we find that these claims are not conclusively refuted by the record, we remand for an evidentiary hearing. We specifically focus our attention on Thompson's claim that trial counsel was ineffective in failing to challenge juror Wolcott for cause. *fn8 The record in this case indicates that juror Wolcott had extreme difficulty accepting the notion that a defendant has a right to not testify. Defense counsel did not seek Ms. Wolcott's removal for cause; nor did he exercise a peremptory challenge to excuse her, even though he had not used, and never did use, any of his ten peremptory challenges. Ms. Wolcott eventually served on the jury. Thompson never took the stand.

The State posits that although juror Wolcott was not individually questioned about her ability to follow the law, counsel was not ineffective because juror Wolcott was nevertheless rehabilitated. The State's position that Ms. Wolcott was rehabilitated is based on the fact that the prospective panel, as a whole, acknowledged several times that the case would have to be decided on the strength of the State's evidence, and that the defendant had a fundamental right to not testify.

The court below summarily denied this claim, concluding that even assuming that counsel's performance was deficient, no prejudice resulted; thus, no relief was warranted. The trial court's conclusion that no prejudice was shown seems to be premised on the fact that this Court had already determined on direct appeal that "the evidence was more than sufficient to support Defendant's two convictions for first- degree murder." Order Denying First Amended Motion to Vacate Judgments of Conviction and Sentences with Special Request for Leave to Amend at 11 (citing Thompson, 648 So. 2d at 695). We disagree with the trial court's decision to not hold an evidentiary hearing on this claim.

Primarily, the trial court's conclusion is misdirected in this analysis. The issue is not whether the evidence was sufficient to support the convictions; *fn9 the real issue is whether, as a result of counsel's performance, the panel which made that ultimate determination was composed of jurors who held the fact that Thompson exercised a fundamental constitutional right against him. See, e.g., Hamilton v. State, 547 So. 2d 630 (Fla. 1989) (finding error, based on conclusion that juror had not been adequately rehabilitated, where juror who indicated difficulty accepting idea that defendant had right to not testify was not excused for cause); see also, e.g., Lowe v. State, 718 So. 2d 920 (Fla. 4th DCA 1998); Lazana v. State, 666 So. 2d 588 (Fla. 2d DCA 1996); Gibson v. State, 534 So. 2d 1231 (Fla. 3d DCA 1988). Notwithstanding this fact, we cannot foreclose the possibility that counsel's failure to challenge juror Wolcott for cause was the product of some reasonable tactical decision. Accordingly, we remand for an evidentiary hearing to permit the trial court to evaluate any evidence as to why, if for any reason, defense counsel did not seek this juror's removal.

Right after Apprendi appeared, no court anywhere in the country had had a chance to decide whether it was retroactive. Are only prisoners whose convictions became final in the year before Apprendi eligible to seek such a declaration, with everyone else queued up until a court in the prisoner's state has held that the Supreme Court's decision is retroactive? Nothing in sec.2255 para.6(3) or sec.2244(b)(2)(A) precludes an application asking the district court itself to hold that a new decision applies retroactively under the principles of Teague. The timeliness of such a petition would depend on resolution of the retroactivity question. Just as a district court possesses jurisdiction to determine its own jurisdiction, it must possess the authority to determine a precondition to the timeliness of an action. This is common in civil litigation. An employment-discrimination suit is timely only if a charge of discrimination was filed with the eeoc. A district judge may decide whether this was properly done, and thus determine whether the suit was timely. So too with retroactivity: A district judge may determine whether a novel decision of the Supreme Court applies retroactively, and thus whether a collateral attack is timely under sec.2244(b)(2)(A) or sec.2255 para.6(3).

Capital Cases Relief Granted 
Wiggins v. Corcoran, No. JFM-99-2420 (D.Md. 09/18/2001)  Relief granted as "the evidence was constitutionally insufficient to sustain his conviction and that his trial counsel was constitutionally ineffective in failing to present mitigation evidence during his sentencing proceeding."

Capital Cases Relief Denied 
Tigner v. Cockrell, 2001 U.S. App. LEXIS 19209 (5th Cir. 08/28/2001) Relief denied, chiefly, on instructions explaining life without parole for 35 years are not required under Simmons & "that Texas law irrationally allowed non-capital defendants to receive jury instructions regarding parole ineligibility, while capital defendants could not demand such an instruction."

Contrary to Tigner's assertions, Simmons provides no support for his due process argument. In Simmons, the Supreme Court expressly held that its ruling does not apply to Texas, because it does not have a life-without-parole alternative to capital punishment. See id. at 168 n.8, 114 S. Ct. at 2196 (noting that Texas and North Carolina do not give juries information about parole status but explaining that they do not have life-without-parole alternatives). The harshest alternative to capital punishment in Texas is a life sentence without the possibility of parole for 40 years.*fn1 In other words, Tigner was not entitled to a jury instruction regarding his 35-year parole ineligibility, because only prisoners who face life sentences without any possibility of parole can demand a Simmons instruction. The Supreme Court recently reiterated this point: "The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law." Ramdass v. Angelone, 530 U.S. 156, 166, 120 S. Ct. 2113, 2120, 147 L. Ed. 2d 125 (2000) (emphasis added).

Stewart v. State, 2001 Fla. LEXIS 1869 (Fla. 09/20/2001) relief denied on claims as to: "(1) public records were withheld; (2) he was innocent of first-degree murder and was denied an adversarial testing; (3) counsel was ineffective at sentencing phase; (4) counsel was ineffective during voir dire; (5) the State violated Brady v. Maryland, 373 U.S. 83 (1963); (6) counsel was ineffective before trial and during the guilt phase; (7) the competency hearing was unreliable; (8) counsel was ineffective in failing to properly prepare mental health experts to make their competency evaluations; (9) Stewart was incompetent to proceed at all material stages; (10) he was provided inadequate mental health assistance due to inadequate time and documentation; (11) the penalty phase jury instructions diminished the jury's sense of responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985); (12) the penalty phase jury instructions shifted the burden to the defense to prove that death sentence was not the appropriate punishment; (13) the finding that the murder was committed in the course of a felony constituted an unconstitutional automatic aggravating factor; (14) the statute providing aggravating circumstances is facially vague and overbroad; (17) [sic] the prosecutor made improper argument on aggravating circumstances in violation of Espinosa v. Florida, 505 U.S. 1079 (1992), defense counsel was ineffective in not objecting to same; (18) [sic] the trial court erroneously refused to find mitigation based on evidence presented and excluded hearsay evidence in the penalty phase; (19) [sic] the mental health evaluation was inadequate as to mitigating factors involving voluntary intoxication; (20) [sic] the prosecutor engaged in misconduct and defense counsel was ineffective for failing to object; (21) [sic] Stewart was denied a proper direct appeal due to an incomplete record and counsel was ineffective in failing to ensure the preparation of the complete record; (22) [sic] the trial was unreliable due to ineffective assistance of counsel and Brady violations and because of newly discovered evidence; (23) [sic] there is newly discovered evidence; (24) [sic] Stewart was improperly shackled during the guilt and penalty phases of the trial; (25) [sic] the death penalty statute is unconstitutional; and (26) [sic] Stewart is entitled to relief due to cumulative error."

State v. Penley, 2001 Tenn. Crim. App. LEXIS 736 (Tenn.Crim.App. 09/13/2001)  Prior to a formal indictment a court can not force the prosecution to chose whether or not it will seek the death penalty.

Williams v. State, 2001 Ark. LEXIS 473 (Ark. 09/20/2001) On state post-conviction relief Appellant denied relief on claims as to whether the trial court's order of dismissal complies with requirements of state rules of procedure in capital cases, ineffective assistance of counsel, & constitutionality of state statute ("(1) has overlapping offenses; (2) limits the jury's consideration of mitigating evidence during the sentencing phase of the trial; and (3) requires the imposition of the death penalty under certain circumstances.").

Miles v. Maryland, 2001 Md. LEXIS 614 (Md. 2001) Relief denied on claims relating to: (1) appellant's motion to suppress pursuant to the Maryland Wiretapping Act; (2) failure to fully disclose the contents of a jury note sent to the judge after seven hours of sentencing deliberations; (3) after seven hours of deliberation the trial courts failure to instuct the jury that it could report its lack of unanimity; (4) improper limitation on jury's consideration of mitgation; (5) trial court's refulsal to instruct the jury during sentencing that it must find, as a non-statutory mitigating circumstance, that appellant was acquitted of premeditated murder; (6) ambiguities and inconsistencies present in the sentencing verdicts; (7) excusal of  four jurors for cause; & (8) refusal to grant defense counsel's motion for mistrial when it was discovered that the jurors had seen appellant in shackles.

Delayed Publication Cases

See above

United States v. Johnson, No. 99-30549; 99-30586 (5th Cir 09/19/2001) A trial court may not sequester a defendant from speaking with his counsel, even if the court recesses during the defendant's testimony,because it deprives the defendant of his Sixth Amendment right tocounsel.

United States v. Valdez, No. 00-50751 (5th Cir 09/21/01) Police violated defendant's Fourth Amendment rights by detaining him pending the completion of a computer check after the stopping officerbecame aware that the defendant had not committed a traffic violation.

In re: Byrd, No. 01-3927 (6th Cir 9/21/2001)Failure to include evidence in support of actual innocence in first pre-AEDPA habeas petition constitutes abuse of writ that will not bypass the gate-keeping functions prohibiting a successive petition under theAEDPA.

Sparing v.  Village of Olympia Fields, No. 00-1021 (7th Cir 9/19/2001) A police officer effectuates an arrest by opening a screen door & stepping into the arrestee's home without consent, exigent circumstances, or a warrant violates the Fourth Amendment even if he hasprobable cause for the arrest.

Dixon v. Snyder, No. 00-2142 (7th Cir 9/20/2001) Defense counsel's misunderstanding of state law that allowed use of awitness's prior inconsistent statements beyond impeachment resulted inineffective assistance of counsel where defense counsel did notintroduce the statements at trial, even if the witness repeated thestatements at trial.

King v. Kenma, No., 99-2047  (8th Cir 09/17/2001)A federal circuit court may consider the issue of procedural default in a habeas petition sua sponte.

Martinez v. Klauser, No. 00-35422  (9th Cir 09/18/2001) The statute of limitations under Idaho Code 19-4906(b) is not a "clear, consistently applied and well-established" state rule to warrant sua sponte dismissal of a habeas petition.

Focus
With the start of the new Supreme Court Term days away, the feature this week is the upcoming Term's criminal appellate docket.  [Note the Criminal Law and Procedure Case Decisions of the October 2000-2001 Supreme Court Term by Solomon L. Wisenberg of Ross, Dixon & Bell, L.L.P, is also no available at Findlaw].

Noted as hot:
 

The Supreme Court has granted certiorari in the following cases involving habeas corpus issues:

Lee v. Kemna
No. 00-6933
(cert. granted 121 S. Ct. 1186 (Feb. 26, 2001)
(lower court opinion: 213 F.3d 1037 (8th Cir. 2000)
Questions Presented: (1.) Did Eighth Circuit err by affirming district court's denial of petition for habeas corpus in view of claims that petitioner's rights under Fifth and Fourteenth Amendments were violated where trial court refused to grant him 19-hour continuance to contact his three subpoenaed alibi witnesses who unexpectedly did not return after lunch break? (2) Should hearing have been held on habeas corpus to at least consider testimony of alibi witnesses to effect that they were told by court personnel to leave? (3) In circumstances in petitioner's case, was his claim of federal violation regarding denial of request for short continuance procedurally barred from federal court? (4) Has petitioner made substantial showing of actual innocence according to standard of Schlup v. Delo, 513 U.S. 298 (1995), for his alibi witnesses to be explored further to prevent fundamental miscarriage of justice?

McCarver v. North Carolina
No. 00-8727
(cert. granted 121 S. Ct. 1401 (Mar. 26, 2001))
Question Presented: Whether Petitioner's execution would violate the Eighth and Fourteenth Amendments to the United States Constitution because Petitioner is retarded and there is now a national consensus against executing the mentally retarded.
 

The Supreme Court has granted certiorari to review the following cases involving Sixth Amendment right-to-counsel issues:
Mickens v. Taylor
No. 00-9285
(stay of execution and cert. granted 121 S. Ct. 1651 (Apr. 16, 2001))
(lower court opinion: 240 F.3d 348 (4th Cir. 2001)
Question Presented: Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?
 

Alabama v. Shelton
No. 00-1214
(cert. granted 121 S. Ct. 1955 (May 14, 2001))
(lower court opinions (both not yet published): Shelton v. State, 2000 WL 1872080 (Ala. Crim. App. Dec. 22, 2000); Ex parte Shelton, 2000 WL 1603806 (Ala. May 19, 2000), rehearing denied & opinion modified, ____WL ___ (Oct. 27, 2000))
Shelton represented himself at trial and, after conviction, received a suspended jail sentence. In Ex parte Shelton, the Alabama Supreme Court considered whether Shelton had a Sixth Amendment right to counsel even though he was never imprisoned. After considering Argersinger v. Hamlin, 407 U.S. 25 (1972), Scott v. Illinois, 440 U.S. 367 (1979), and other cases, the court held that Shelton did have a right to counsel because he was sentenced to a term of imprisonment, even though that sentence was suspended, and that he did not knowingly, intelligently and voluntarily waive that right. The court affirmed Shelton’s conviction but reversed the suspended jail sentence and remanded to the court of criminal appeals. In Shelton v. State, the court of criminal appeals remanded to the trial court to vacate the suspended jail sentence.
 

No. 00-8727
Briefs:

Amicus - Petitioner:
• American Bar Association [PDF]
• American Civil Liberties Union et al. [TEXT]

Diplomat Morton Abramowitz et al. [TEXT]

No. 00-9280

Subject:

[Subject]

Question:

Did the trial judge's refusal to inform a capital defendant's sentencing jury that he would never be eligible for parole if the jury sentenced him to life imprisonment, rather than to death, violate Simmons v. South Carolina, 512 U.S. 154 (1994)?

Decisions:

• Supreme Court of South Carolina, Filed: January 8, 2001
• United States Supreme Court, Cert. Granted: June 25, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

[Coming Soon]

No. 00-860

Subject:

Bivens Claim, Private Prisons

Question:

Whether a private corporation operating a Community Corrections Center that houses and provides services to federal prisoners under a contract with the Bureau of Prisons is subject to suit under the implied damages action this Court recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

Decisions:

• U.S. Court of Appeals - 2nd Circuit, Decided: October 6, 2000
• United States Supreme Court, Cert. Granted: March 5, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Amicus - Petitioner:
United States [PDF] [TEXT] [RTF]

No. 00-6567

Subject:

Administrative Forfeiture, Notice, Prisoners

Question:

Whether the United States satisfied the notice requirements of the Due Process Clause by sending a federal prisoner notice of an administrative forfeiture proceeding by certified mail addressed to the prisoner at the prison where he was incarcerated.

Decisions:

• U.S. Court of Appeals - 6th Circuit, Filed: July 10, 2000
• United States Supreme Court, Cert. Granted: February 26, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Respondent [PDF] [TEXT] [RTF]

No. 00-6933

Subject:

Habeas Corpus

Question:

Did the 8th Circuit err by affirming the district court's denial of a petition for habeas corpus because a defendant's due process rights were violated when the trial court refused to grant him a 19-hour continuance to contact his three subpoenaed alibi witnesses who unexpectedly did not return after a lunch break? (2) Should a habeas corpus hearing have been held to at least consider the testimony of the alibi witnesses? (3) Has Lee made a substantial showing of actual innocence, for his alibi witnesses to be explored further to prevent a fundamental miscarriage of justice?

Decisions:

• U.S. Court of Appeals - 8th Circuit, Filed: May 25, 2000
• United States Supreme Court, Cert. Granted: February 26, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

[Coming Soon]

No. 00-795

Subject:

Child Pornography Prevention Act, First Amendment, Free Speech

Question:

The Child Pornography Prevention Act of 1996, prohibits, inter alia, the shipment, distribution, receipt, reproduction, sale, or possession of any visual depiction that "appears to be[] of a minor engaging in sexually explicit conduct." 18 U.S.C. 2252A, 2256(8)(B) (Supp. IV 1998). It also contains a similar prohibition concerning any visual depiction that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." 18 U.S.C. 2252A, 2256(8)(D) (Supp. IV 1998). The question presented is whether those prohibitions violate the First Amendment to the Constitution.

Decisions:

• U.S. Court of Appeals - 9th Circuit, Filed: December 17, 1999
• U.S. Court of Appeals - 9th Circuit, Filed: July 24, 2000. Order denying petition for hearing and suggestion for rehearing en banc.
• United States Supreme Court, Cert. Granted: January 22, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Petitioner (Petition) [PDF] [TEXT] [RTF]
• Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]

 
• Petitioner [PDF] [TEXT] [RTF]
• Petitioner [PDF] [TEXT] [RTF]

 

 
 
 
 
 

Amicus - Petitioner:

• National Center for Missing & Exploited Children [PDF]
• National Law Center for Children and Families et al. [PDF]

 

 
 
 
 
 

Amicus - Respondent:

• American Civil Liberties Union et al. [PDF]

No. 00-957

Subject:

Sexual Predators, Due Process, Civil Confinement

Question:

Does the 14th Amendment's due process clause require a state to prove that a sexually violent predator "cannot control" his criminal sexual behavior before the state can civilly commit him for residential care and treatment?

Decisions:

• Supreme Court of Kansas, Filed: July 14, 2000
• United States Supreme Court, Cert. Granted: April 2, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

[Coming Soon]

No. 00-730

Subject:

Equal Protection Clause, Fifth Amendment, Subcontractor Compensation Clauses, Affirmative Action

Question:

1. Whether the court of appeals misapplied the strict scrutiny standard in determining if Congress had a compelling interest to enact legislation designed to remedy the effects of racial discrimination.

 
2. Whether the United States Department of Transportation's current Disadvantaged Business Enterprise program is narrowly tailored to serve a compelling governmental interest.

Decisions:

• United States Supreme Court, Decided: June 12, 1995
• U.S. Court of Appeals - 10th Circuit, Filed: March 4, 1999
• U.S. Court of Appeals - 10th Circuit, Filed: September 25, 2000
• United States Supreme Court, Cert. Granted: March 26, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

• Respondent (Petition) [PDF] [TEXT]

 
• Respondent [PDF] [TEXT]

Respondent (Appendix) [PDF] [TEXT]

No. 00-9285

Subject:

Sixth Amendment, Conflict of Interest, Due Process

Question:

Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?

Decisions:

• U.S. Court of Appeals - 4th Circuit, Decided: September 14, 2000 [Vacated]
• U.S. Court of Appeals - 4th Circuit, Order: October 23, 2000
• U.S. Court of Appeals - 4th Circuit, Decided: February 16, 2001
• U.S. Court of Appeals - 4th Circuit, Amended: March 6, 2001
• U.S. Court of Appeals - 4th Circuit, Order: March 26, 2001
• United States Supreme Court, Cert. Granted: April 16, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

• [Coming Soon]

No. 00-1214

Subject:

Right to Counsel, Suspended Sentence

Question:

[Question Presented]

Decisions:

• Supreme Court of Alabama, Filed: May 19, 2000
• Supreme Court of Alabama, Filed: October 27, 2000
• United States Supreme Court, Cert. Granted: May 14, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

• [Coming Soon]

No. 00-973

Subject:

FRCrP 11(c), Guilty Plea, Right to Assistance of Counsel, Standard of Review

Question:

1. Whether a district court's failure to advise a counseled defendant at his guilty plea hearing that he has the right to the assistance of counsel at trial, as required by Federal Rule of Criminal Procedure 11(c)(3), is subject to plain-error, rather than harmless-error, review on appeal when the defendant fails to preserve the claim of error in the district court.

 
2. Whether, in determining if a defendant's substantial rights were affected by a district court's deviation from the requirements of Federal Rule of Criminal Procedure 11(c)(3), the court of appeals may review only the transcript of the guilty plea colloquy, or whether it may also consider other parts of the official record.

Decisions:

• U.S. Court of Appeals - 9th Circuit, Filed: April 20, 2000
• U.S. Court of Appeals - 9th Circuit, Filed: September 14, 2000.
• United States Supreme Court, Cert. Granted: February 26, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Petitioner (Petition) [PDF] [TEXT] [RTF]
• Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]

 
• Petitioner [PDF] [TEXT] [RTF]
• Petitioner - Reply [PDF] [TEXT] [RTF]

No. 00-1260

Subject:

Fourth Amendment, Probation, Warrantless Search

Question:

Whether respondent's agreement to a term of probation that authorized any law enforcement officer to search his person or premises with or without a warrant, and with or without individualized suspicion of wrongdoing, constituted a valid consent to a search by a law enforcement officer investigating crimes.

Decisions:

• U.S. Court of Appeals - 9th Circuit, Filed: August 3, 2000
• United States Supreme Court, Cert. Granted: May 14, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Petitioner (Petition) [PDF] [TEXT] [RTF]
• Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]
• Petitioner [PDF] [TEXT] [RTF]

No. 00-1187

Subject:

Fifth Amendment, Right Against Self-Incrimination, Sexual Abuse Treatment Program

Question:

Whether the Fifth Amendment privilege against compelled self-incrimination prevents a State from encouraging incarcerated sexual offenders to participate in a clinical rehabilitative program, in which participants must accept responsibility for their offenses, by conditioning the availability of certain institutional privileges on participation in the program.

Decisions:

• U.S. Court of Appeals - 10th Circuit, Filed: September 5, 2000
• United States Supreme Court, Cert. Granted: May 14, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Amicus - Petitioner:
United States [PDF] [TEXT] [RTF]

No. 00-1293

Subject:

Child Online Protection Act (COPA), First Amendment, Community Standards

Question:

The Child Online Protection Act (COPA) makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). COPA relies in part on "community standards" to identify material that is "harmful to minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). The question presented is whether the court of appeals properly barred enforcement of COPA on First Amendment grounds because it relies on community standards to identify material that is harmful to minors.

Decisions:

• U.S. Court of Appeals - 3rd Circuit, Filed: June 22, 2000
• United States Supreme Court, Cert. Granted: May 21, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Petitioner (Petition) [PDF] [TEXT] [RTF]
• Respondent (Petition) [PDF] [RTF]
• Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]
• Petitioner [PDF] [TEXT] [RTF]

No. 00-853

Subject:

Prisoner Litigation Reform Act of 1995, Eighth Amendment, Assault or Excessive Use of Physical Force, Exhaustion of Administrative Remedies

Question:

Whether the exhaustion provision of the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e(a) (Supp. V 1999), requires an inmate to exhaust available administrative remedies before filing an action alleging a use of excessive force by a correction officer.

Decisions:

• U.S. Court of Appeals - 2nd Circuit, Decided: August 24, 2000
• U.S. Court of Appeals - 2nd Circuit, Dated: August 28, 2000
• United States Supreme Court, Cert. Granted: June 4, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Amicus - Petitioner:
• United States [PDF] [TEXT] [RTF]

No. 00-1519

Subject:

Fourth Amendment, Search and Seizure, Reasonable Suspicion, Totality-of-the-Circumstances Test

Question:

• Whether the court of appeals erroneously departed from the totality-of-the-circumstances test that governs reasonable-suspicion determinations under the Fourth Amendment by holding that seven facts observed by a law enforcement officer were entitled to no weight and could not be considered as a matter of law.

 
• Whether, under the totality-of-the-circumstances test, the Border Patrol agent in this case had reasonable suspicion that justified a stop of a vehicle near the Mexican border.

Decisions:

• U.S. Court of Appeals - 9th Circuit, Amended: December 1, 2000
• United States Supreme Court, Cert. Granted: June 4, 2001

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:

Parties:
• Petitioner (Petition) [PDF] [TEXT] [RTF]
• Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]
• Petitioner [PDF] [TEXT] [RTF]

U.S. Supreme Court Will Hear Virginia Case to Decide Constitutionality of Executing Inmates with Mental Retardation 
    The U.S. Supreme Court dismissed the case of North Carolina death row inmate Ernest McCarver, which they had taken to decide the issue of whether it is cruel and unusual to execute inmates with mental retardation.  Instead, the Court will hear the case of Daryl Atkins, a Virginia death row inmate with mental retardation.  After the Justices had agreed to review McCarver's case, North Carolina passed a bill prohibiting the execution of the mentally retarded, rendering McCarver's case moot.   (Associated Press, 9/25/01) 
     In 1989, the Supreme Court held that executing persons with mental retardation was not a violation of the Eighth Amendment because a "national consensus" had not developed against executing those with mental retardation.  At the time, only two states prohibited such executions.  Since then, 16 more states and the federal government have enacted laws prohibiting the execution of the mentally retarded.  See also, mental retardation and the death penalty. 
NEW VOICES:In a recent editorial, the Charlotte Observer urged North Carolina to delay executions beyond the stay occasioned by the recent terrorist attacks: 

     Gov. Mike Easley has wisely postponed until Oct. 5 the execution of convicted murderer Robert Bacon, who was scheduled to be executed Friday.  That's the right step, given the overwhelming tragedies of the past week and the disruptions in American life that have followed. 
     An even wiser course of action would be for Gov. Easley to issue an executive order - and for the General Assembly to adopt a law - postponing all executions in North Carolina until officials can demonstrate that capital punishment can be applied in a fair and equitable way in this state. 
(Charlotte Observer, 9/24/01)  See also Editorials and New Voices. 

NEW VOICES: In a recent editorial, the Minneapolis Star Tribune cautioned against using the terrorist attacks to expand the death penalty: 

The vicious attack on America eight days ago likely stirred more support for the death penalty. It is understandable to wrap the mind around vengeance after such a horrible act. What better way to punish the murderers and avenge the memories of thousands of innocents than to take the lives of the guilty? Yet before evil terrorists wounded American hearts, the United States was experiencing a welcome, significant decline in state-sponsored executions. Short of eliminating capital punishment altogether, the next best thing is to fulfill as few death sentences as possible.
(Minneapolis Star Tribune, 9/19/01)  See also Editorials and New Voices. 
 New Web Resources: 

"And then One Night: The Making of Dead Man Walking" - a new Web site for a PBS program on the death penalty and the recent San Francisco Opera production of "Dead Man Walking." The site offers a behind-the-scenes look at the launching of this provocative original opera and allows visitors to explore their own views on capital punishment.   (KQED Public Broadcasting 9/17/01) 

"Wrongfully Convicted: Learning from the mistakes that send innocent people to prison" - This Web site provides a database of wrongfully incarcerated people who have been arrested and/or convicted of a crime and later proven innocent. The database contains almost 300 people who were innocent, yet convicted of a crime - many of whom were sentenced to death.  It contains case summaries and explanations of the errors that led to conviction.  The site also explores DNA's implications in the justice system, and provides links for further study. [Please note that the criteria used for this database differs from that used in DPIC's "Innocence List."]  (9/01) 

NEW VOICES: Texas Legislators Urge Governor to Commute Juvenile Death Sentence 
      Eighteen state legislators asked Texas Governor Rick Perry to commute Napolean Beazley's death sentence, citing the fact that he was only 17 at the time of the crime.  "Texas' practice of executing juvenile offenders like Napoleon runs counter to a well-established worldwide norm," the lawmakers wrote. "Every nation with a working government, except the United States, has ratified the United Nations Convention on the Rights of the Child, which bars giving the death sentence to anyone under 18 at the time of the offense."   The letter also noted that Smith County state District Judge Cynthia Stevens Kent, who presided over Beazley's trial, had also written to Perry and recommended that he commute Beazley's death sentence because of his age at the time of the crime. 
     Another juvenile offender on Texas' death row, Gerald Lee Mitchell, is scheduled for execution on October 22.  (Houston Chronicle, 9/20/01) See also, juveniles and the death penalty and New Voices. 

POSSIBLE INNOCENCE: Federal Judge Overturns Maryland Death Row Inmate's Conviction 
     U.S. District Court Chief Judge J. Frederick Motz overturned Maryland death row inmate Kevin Wiggins' murder conviction and death sentence, holding that there was not enough evidence to convict at trial, and that he received ineffective representation during sentencing. "No rational finder of fact could have found Wiggins guilty of murder beyond a reasonable doubt," said Motz.  Wiggins was convicted for the drowning death of his neighbor Florence Lacs in 1988.  Motz held that the trial judge failed to give due weight to evidence that Wiggins was innocent.  He also stated that Wiggins' lawyers failed to present mitigating information about his childhood of physical and sexual abuse during sentencing.  Motz ordered Wiggins released within the next 30 days unless the state appeals.  Wiggins remains convicted of a robbery of the same victim.  (Baltimore Sun, 9/20/01)  See also, Innocence. 
 

 NEW RESOURCES: "Toward Greater Awareness: The American Bar Association Call for a Moratorium on Executions Gains Ground" - This new report issued by the American Bar Association's Section of Individual Rights and Responsibilities summarizes the legislative, judicial, and public policy developments that have occurred since the ABA's adoption of its death penalty moratorium resolution in February 1997.  Read the report and the 1997 resolution.  See also, studies on the death penalty. 

NEW VOICES: UNC Chancellor Encourages Death Penalty Debate 
     The new University of North Carolina Chancellor, James Moeser, urged the university to take on important social issues, including the death penalty.  "How long will America be the last great nation of the developed world to practice capital punishment?" asked Moeser in his first "State of the University" address. (Durham Herald-Sun, 9/5/01)  See also, New Voices. 

 Upcoming Events: Amnesty International's "National Weekend of Faith in Action on the Death Penalty" 
 will take place October 12-14, 2001.  The program calls upon individuals of all faiths, local congregations, and national religious organizations to unite in action against the death penalty.  The weekend is designed to promote healing for those victimized by acts of violence, to involve religious communities in the abolition movement, and to promote interfaith alliances in working against the death penalty throughout the year.  For more information, visit the program's Web site. See also, Upcoming Events. 

Support for Death Penalty Drops in Canada 

 A survey of Canadians found that 52.9% of respondents supported capital punishment, while 43% opposed it.  This marks a significant shift in public opinion since 1995, when an Angus Ried poll found 69% supported reinstating the death penalty in Canada.  The new poll also found that support for capital punishment dropped even further, to 37.6%, when respondents were offered the alternative sentence of life imprisonment without the possibility of parole. "It's a really important drop," said Jean-Marc Leger, head of the polling firm.  "Canadians' perceptions of the death penalty have changed in the last few years." (Canada Press, 9/16/01)  See also, public opinion and recent poll results. 

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

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.  With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. 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

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.  Although I'm not taking on any additional capital clients, to be on the safe side I am complying with Massachusetts lawyer advertising rules.  If you are in a jam call a lawyer in your state.

CREDITS & PUBLICATION INFORMATION: 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.