The Third Circuit's decision in Szuchon v Horn requires top billing. The Szuchon Court holds reversal was necessary on the issue of jury qualification. In Szuchon a venireperson unambiguously stated they opposed capital punishment. The prosecution moved to exclude for cause without the defense's chance to rehabilitate the venireperson.  The failure to provide the opportunity to rehabilitate, the Szuchon panel held, was reversible error.

The two remaining hot listed victories include Ward v. North Carolina & Mayfield v. Woodford. The Ward Court holds that the government's improper comment on defendant's silence in the penalty phase requires reversal.  In Mayfield a unanimous Ninth Circuit sitting en banc holds that counsel failed to conduct an adequate investigation before the penalty phase as noted by billing and money left over from county budgeting figures.  (Note that because this opinion is very fact intensive only the "case squib" is listed in the hot list section.

Two Texas capital case losses are also of note.  In Briseno v. Cockrell a Fifth Circuit panel holds that appellate counsel was not ineffective as  Ake v. Oklahoma could not reasonably be foreseen  to include assistance to indigents on issues other than mental health.  to cases.  In Ripkowski v. Texas a bitterly split Texas Court of Criminal Appeal denies relief holding  that appellant "invited" error when he chose not to submit to the jury a special issue that, if answered in the affirmative, would have resulted in a life sentence.

In light of time constraints on this week's issue, the annual review of websites of notes will be pushed back one edition.  This week, examines the interplay of international law, extradition and the death penalty. Amnesty International this week released "UNITED STATES OF AMERICA: No return to execution -The US death penalty as a barrier to extradition." Available on the web at http://www.web.amnesty.org/ai.nsf/recent/AMR511712001?OpenDocument

Note that Findlaw lists Szuchon v Horn as a loss focusing on shackling issues, where it is a writ grant, as noted above, on jury qualification issues.

Since the last edition there have been three domestic executions.

     13   Fred Gilreath          Georgia
     14   Jeffery Tucker        Texas
     15   Emerson Rudd       Texas

The following are the remaining scheduled executions considered likely for November & December:

     30   John Hardy Rose    North Carolina

      December
      4    Lois Nadean Smith  Oklahoma---female
      6    Sahib Al-Mosawi     Oklahoma
      6    David Dunster          Nebraska--volunteer
     12   Vincent Cooks         Texas
 
 

HOT LIST CASES
Ward v. North Carolina,  2001 N.C. LEXIS 1097 (N.C. 11/9/2001) Improper comment on defendant's silence in the penalty phase requires reversal.

    By assignment of error, defendant contends that, during sentencing arguments to the jury, the prosecutor improperly commented on defendant's invocation of his constitutional right to remain silent. Defendant did not object to the prosecutor's remarks. Nonetheless, he argues that the trial court's failure to intervene ex mero motu to control the prosecutor's argument rendered the proceedings fundamentally unfair.
    “As a general rule, counsel is allowed wide latitude in the jury argument during the capital sentencing proceeding.” State v. Smith, 351 N.C. 251, 268, 524 S.E.2d 28, 41, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000). Accordingly, counsel is entitled to argue all of the evidence presented at trial and all reasonable inferences drawn therefrom. State v.Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999). Whether counsel exceeded the latitude afforded him “is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there [was] such gross impropriety in the argument as [was] likely to [have] influence[d] the verdict of the jury.” State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976)).
    Where, as in this case, the defendant failed to object to the prosecutor's comments during the closing argument, the question for this Court is “whether the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu.” State v. Call, 353 N.C. 400, 416-17, 545 S.E.2d 190, 201 (2001). We recognize that “the prosecutor in a capital case has a duty to strenuously pursue the goal of persuading the jury that the facts of the particular case at hand warrant imposition of the death penalty.” State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994). Therefore, “only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). Furthermore, statementsmade during closing arguments will not be examined in isolation. Guevara, 349 N.C. at 257, 506 S.E.2d at 721. “'Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.'” Id. (quoting Green, 336 N.C. at 188, 443 S.E.2d at 41).
    In the instant case, the prosecutor argued the following regarding defendant's post-arrest silence while at Dorothea Dix Hospital:
        He started out that he was with his wife and child or wife and children or something that morning. We know he could talk, but he decided just to sit quietly. He didn't want to say anything that would “incriminate himself.” So he appreciated the criminality of his conduct all right.

        He was mighty careful with who [sic] he would discuss that criminality, wasn't he? He wouldn't discuss it with the people at Dix.

    It is well established that a criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. Mitchell, 353 N.C. at 326, 543 S.E.2d at 840. A defendant's decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant's exercise of his right to silence is unconstitutional. Id. “A statement that may be interpreted as commenting on a defendant's decision [to remain silent] is improper if the jury would naturally and necessarily understandthe statement to be a comment on the [exercise of his right to silence.]” Id. at 326, 543 S.E.2d at 840-41.
    Applying these principles to the argument in question, we hold that the prosecutor impermissibly commented on defendant's silence in violation of his rights under the state and federal Constitutions. As we noted in Mitchell,

district attorneys and assistant district attorneys have a duty as officers of the court and as advocates for the people to conduct trials in accordance with due process and the fair administration of justice and should thus refrain from arguments that unnecessarily risk being violative of a defendant's fundamental constitutional rights, thereby necessitating new trials.

Id. at 326-27, 543 S.E.2d at 841. Hence, the trial court's failure to intervene ex mero motu amounted to an abuse of discretion. Because we cannot conclude that this omission had no impact on the jury's sentencing recommendation, we set aside the sentence of death and remand for a new capital sentencing proceeding. 

Under Witt, therefore, the proper inquiry on pre-AEDPA habeas review of a Witherspoon claim is whether there is fair support in the record for the judge's finding that the prospective juror's views on the death penalty would have prevented or substantially impaired the performance of his or her duties as a juror in accordance with the instructions and oath. We must factor the decision of Szuchon's counsel to state "no objection" to the exclusions into our assessment of the transcript. n18 As noted, Szuchon takes issue with the exclusion of six prospective jurors, but we conclude that there is no need to address all six, as the improper exclusion of even  [*64]  one veniremen in violation of Witherspoon warrants relief. See Gray, 481 U.S. at 657-68 (holding that erroneous exclusion of one potential juror based on her views on the death penalty was reversible constitutional error); see also United States v. Chanthadara, 230 F.3d 1237, 1268 (10th Cir. 2000) ("Because the erroneous exclusion of even one potential juror mandates reversal of a death sentence, our analysis takes us no further than potential juror Joy Phillips."); Fuller v. Johnson, 114 F.3d 491, 500 (5th Cir. 1997) ("Where the court finds that even one juror was improperly excluded, the defendant is entitled to a new sentencing, because the right to an impartial adjudication is 'so basic to a fair trial that [its] infraction can never be treated as harmless error.' ") (quoting Gray, 481 U.S. at 668). We will focus, therefore, solely on the exclusion of Floyd Rexford. The relevant portion of Rexford's voir dire is as follows:

[Prosecutor]: If the evidence were to establish, sir, a case of first degree murder, in other words, the type of case that would show that Mr. Szuchon shot and killed that woman intentionally,  [*65]  that he did it with malice and that he did it with premeditation and those are the elements of first degree murder, would you have any conscientious scruple or any hesitation to find him guilty of first degree murder? 

[A]: I do not believe in capital punishment. 

[Q]: You do not believe in capital punishment? 

[A]: No. 

[Q]: I challenge for cause, your Honor. 

[Defense Counsel]: No objection. 

[Prosecutor]: Thank you, Mr. Rexford. 

[Court]: Thank you Mr. Rexford . . . .
App. 2116. 

This limited questioning provided no evidence that Rexford's lack of belief in capital punishment would have prevented or substantially impaired his ability to apply the law. As the Court emphasized in Adams v. Texas, 448 U.S. at 47-48, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State's power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on any broader basis than inability to follow the law or abide by their oaths, the death sentence cannot be carried out.  [*66]  Rexford's mere lack of a belief in capital punishment was a "broader basis" for exclusion than inability to follow the law. Indeed, "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986). Neither the Commonwealth nor the trial court, however, questioned Rexford about his ability to set aside his beliefs or otherwise perform his duty as a juror. As a result, there was no evidence or even a suggestion that Rexford would act in a biased fashion due to his lack of belief in capital punishment, and the trial court, therefore, failed in its duty to determine that there was a proper basis for the exclusion. Cf. Gall v. Parker, 231 F.3d 265, 330-32 (6th Cir. 2001) (holding that exclusion violated Witherspoon because "notwithstanding the deference owed to the trial judge, we find that the factual record does not fairly support [the prospective juror's] exclusion under the standards of Adams and Witt";"[the  [*67]  prospective juror] not once stated that his beliefs would deter him from serving as an impartial juror"). Thus, while we begin with the presumption that the trial court's determination of bias is correct, that presumption cannot adhere in the absence of record support for the exclusions. 

Our precedents are not to the contrary. In Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991), for example, the prospective juror "initially stated to the prosecutor that she would be willing to vote for the death penalty in a proper case," id. at 1548, but "provided an ambiguous response to defense counsel's query about whether 'irrespective of the evidence' she would 'vote automatically for the death penalty' for a defendant convicted of murdering a police officer." Id. The judge then queried the prospective juror, and she "responded affirmatively to the court's inquiry about whether 'under all circumstances' and 'irrespective of [the] evidence' her opposition to capital punishment would prevent her from participating in a decision to impose the death penalty." Id. Under those circumstances, we held that the judge did not err in excluding the prospective juror because the  [*68]  "statements on voir dire established a likelihood that her opposition to capital punishment would have substantially impaired her ability to comply with the trial court's sentencing instructions." Id. Here, in contrast, no reasonable inference can be drawn that Rexford's lack of belief in capital punishment would have prevented or impaired his ability to follow the court's sentencing instructions. Even affording the trial court the deference it is owed in its assessment of Rexford's credibility and demeanor, and even accepting that juror bias need not be proved with "unmistakable clarity," the determination of bias in this case is unsupported. 

The District Court concluded that the six exclusions (including Rexford's) were proper under Witt because "in each instance, the prospective juror was unable to look past the possible imposition of the death penalty to answer the specific question posed and each of the prospective jurors expressed unwillingness to sentence this defendant to die for the crime of first degree murder." We find no support in the record for this conclusion. The question posed did not probe willingness to vote in a certain way, but, rather, sought out any scruples  [*69]  or hesitation. Rexford apparently interpreted the question as seeking his views and, in responsive fashion, he noted his lack of belief. n19 At that point, Rexford's views on the death penalty became the issue, and the prosecutor asked, "You do not believe in the death penalty?" Rexford simply replied "no," and the prosecutor moved to exclude him. The prosecutor failed, however, to meet his burden under Witt of asking even a limited number of follow-up questions to show that Rexford's views would render him biased. Thus, the only supportable inference on this record is that Rexford was excluded because he voiced opposition to the death penalty. Rexford also did not "express unwillingness" to impose the death penalty. He merely stated that he did not "believe" in capital punishment, which is by no means the equivalent of being unwilling to impose it. Again, even those firmly opposed to the death penalty can serve as jurors if they are "willing to temporarily set aside their own beliefs in deference to the rule of law." Lockhart, 476 U.S. at 176. 

In short, Rexford's exclusion violated Szuchon's rights under Witherspoon. It is settled that a Witherspoon violation is not subject to harmless error analysis. Gray, 481 U.S. at 668; Davis v. Georgia, 429 U.S. 122, 123, 50 L. Ed. 2d 339, 97 S. Ct. 399 (1976). It is of no moment, therefore, that the Commonwealth had seven unused peremptory challenges with which it could have struck the six prospective jurors. See Gray, 481 U.S. at 664 (rejecting the argument that "a Witherspoon violation constitutes harmless error when the prosecutor has an unexercised peremptory challenge that he states he would have used to excuse the juror"). The relief that must be afforded is a new sentencing proceeding. Witherspoon, 391 U.S. at 523 n.21; see Fuller, 114 F.3d at 500. Accordingly, we will affirm, on alternative grounds, the District Court's decision to grant the writ. 

Briseno v. Cockrell, 2001 U.S. App. LEXIS 25135 (5th Cir 11/26/2001) Relief denied, chiefly on claims related to ineffective assistance of appellate counsel for the failure to raise an Ake claim.

Briseno asserts that the standard of prejudice to be utilized in an ineffective assistance of direct appellate counsel claim as stated in Goodwin conflicts with the Supreme Court's recent decision in Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). In Goodwin, we clarified the prejudice requirement of the test to show ineffective assistance of counsel, which the Supreme Court announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, to prove that counsel afforded ineffective assistance, a petitioner must show 1) that his attorney's performance was deficient and 2) that such deficiency prejudiced the defense. Id. at 2064. Goodwin held that the presence or absence of Strickland prejudice as a result of unconstitutionally deficient performance of counsel at either the trial or appellate level hinges upon the fairness of the trial and the reliability of the judgment of conviction resulting therefrom. Goodwin, 132 F.3d at 174. That is, we rejected the outcome determinative aspect  [*8]  of petitioner's argument that Strickland prejudice is established if there is a reasonable probability that the allegedly deficient performance would have caused a reversal on direct appeal. Instead, the focus had to be on the fairness of the proceeding and the reliability of its result. Id. at 176. "To the extent that the appellate process is merely a vehicle for correcting errors at trial, the fairness and reliability of an appeal are necessarily functions of the fairness and reliability of the trial." Id.

Recently, in Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), the Supreme Court appears to have rejected Goodwin's holding. Indeed, the director concedes this point. Smith generally involved whether some of the Court's statements in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), reciting an acceptable procedure for treating frivolous appeals by criminal defendants, were obligatory upon the states and whether California's procedure, as stated in People v. Wende, 25 Cal. 3d 436, 600 P.2d 1071, 1074-75, 158 Cal. Rptr. 839 (Cal. 1979),  [*9]  violated the Fourteenth Amendment. Although the Court concluded that the Anders procedure was not obligatory and that California's Wende procedure was not constitutionally infirm, see Smith, 120 S. Ct. at 763, it noted that the petitioner's appeal may not have been frivolous and that he may have been entitled to more than a Wende brief. In remanding the case, the Court reiterated Strickland as the appropriate standard. Id. at 764. And it stated that to demonstrate prejudice, the petitioner had to show a reasonable probability that, but for his counsel's unreasonable failure (in this case, to file a merits brief), he would have prevailed on his appeal. Id.

. . . .

We disagree. As the director maintains, Briseno's appellate counsel appears not to have performed deficiently. At the time of Briseno's appeal, neither the Supreme Court or the Texas Court of Criminal Appeals had explicitly extended Ake to the area of serology. Admittedly, the Court of Criminal Appeals ultimately extended the Ake rationale to fields other than psychiatry. See Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995) ("Ake is not limited to psychiatric experts . . . ."). And various other courts had recognized the applicability of Ake in contexts other than psychiatry prior to Briseno having filed his direct appellate brief. See, e.g., Terry v. Rees, 985 F.2d 283, 284 (6th Cir. 1993); Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987). In light of those developments, one could argue that, notwithstanding the lack of an explicit pre-appeal holding by the Supreme Court or the Court of Criminal Appeals, the failure to raise the Ake issue amounted to appellate representation  [*13]  that fell below an objective standard of reasonableness. But there is a qualitative difference between expert psychiatric testimony required to prepare an insanity defense and expert testimony concerning serology. In the former, testimony from experts can be crucial as there is often no single, accurate psychiatric conclusion on legal insanity. Ake, 105 S. Ct. at 1095. Psychiatry is not an exact science, and juries remain the primary factfinders on legal insanity and "must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party." Id. In the case of serology, a blood sample either has a certain marker, which fits within a certain group in a statistical compilation of the population, or it does not. There can be problems associated with the handling and testing of samples and some differences of opinion may arise, but the vagaries of human behavior are not rampant within serology. Enough of a distinction between expert psychiatric testimony on insanity and expert testimony on serology exists to suggest a tenable, and not unreasonable, basis for believing that Ake would not necessarily  [*14]  be extended.

Appellant now contends that the trial court erred in denying his challenge to the constitutionality of Article 37.071.  [*24]  He contends that the statute, as interpreted by our decision in Mosley v. State, n29 nullifies the Supreme Court's decision in Penry v. Lynaugh n30 by forcing the defendant to choose between the mitigation issue and victim impact testimony. Alternatively, appellant contends that Tong v. State n31 retracted the rule permitting waiver of the mitigation special issue, and hence appellant's waiver was invalid. In addition, appellant claims that trial counsel was rendered ineffective because either (1) he was forced to choose between two detrimental actions, or (2) the inability to waive the issue means that counsel conveyed incorrect sentencing information to the defendant.

a. Authority to Withdraw the Issue

The first difficulty appellant's claims face is the estoppel rule recognized  [*25]  in Prystash v. State. n32 In Prystash, the defense asked the trial court not to submit the anti-parties special issue. n33 We held that the defendant was estopped from complaining on appeal about the absence of the issue - regardless of whether the issue was waivable. n34 We reasoned that a crucial distinction exists between the concepts of "waiver" and "invited error": "The question was not whether [appellant] could waive a right, it was whether he could complain of an action he requested." n35 We held that the definition of what can constitute error "excludes those actions of the trial court actually sought by the party to that tribunal." n36 Although Mosley distinguished Powell v. State n37 by emphasizing the differences between the deliberateness and mitigation special issues, n38 Prystash subsequently overruled Powell by holding that a party could estop himself from complaining about the failure to submit any issue, regardless of the nature of the issue involved. n39 Thus, Prystash's holding goes beyond Mosley in barring a defendant from complaining on appeal when he has procured the absence of a special issue. Even if Mosley's dicta on  [*26]  waiving the mitigation issue were completely disavowed, Prystash would still stand as a bar to relief in this case. Because appellant requested that the mitigation issue be omitted, he cannot now complain about the trial court's alleged lack of authority to withdraw the issue from the jury's consideration.

Nothing in Tong contradicts this conclusion. The defendant in that case asserted that he had the right to waive the mitigation issue. n40 Prystash did not address whether a trial court was required  [*27]  to withdraw an issue from the jury's consideration at the defendant's request; rather, it held that a defendant cannot complain on appeal when he succeeds in having the issue so withdrawn. Moreover, Tong did not actually address whether a defendant has a right to waive the mitigation special issue. We simply held that the Mosley language about waiving the mitigation issue was dicta; we did not decide whether that dicta was a correct or incorrect rule of law. n41

b. Defense Counsel's Dilemma

One might be able to argue that Prystash-estoppel consequences should not result from decisions that were not freely made. Appellant's challenge to the constitutionality of the statute and his ineffective assistance of counsel claims appear to invoke this type of argument. Appellant claims that counsel, and appellant himself, were forced to choose between two very undesirable courses  [*28]  of action. However, facing a dilemma is not enough to create an actionable claim. The Supreme Court has recognized that defendants are often required to make hard choices: "A hard choice is not the same as no choice." n42 At a minimum, for a dilemma to be considered "no choice," the competing options must all be illegal. If one of the options were legal, then the defendant could have chosen the legal option, and so would not have been forced to choose the improper course. While an all-illegal-options dilemma does not necessarily excuse the particular option chosen, n43 we will assume arguendo that such a dilemma could exempt a defendant from the estoppel considerations articulated in Prystash.

Appellant fails to present an all-illegal-options dilemma. In Payne v. Tennessee, the Supreme Court rejected the claim that the admission of victim impact evidence violates the United States Constitution. n44 Similarly, in Mosley we rejected the claim that the admission of victim impact evidence constituted a per se violation of our statutory scheme. n45 Instead, we held such evidence to be admissible, subject to limitations imposed by Tex. R. Evid. 403. n46 Appellant does not allege that any of the State's proposed victim impact testimony would have been inadmissible under our law had the mitigation special issue been submitted. So, appellant does not dispute that he had at least one legal option: allow the admission of victim impact testimony by retaining the mitigation special issue. While that option may not have been a desirable one, it was a legal one, so appellant's "forced choice" claim must fail. n47

Finally, counsel's advice did not constitute inaccurate information. Appellant received exactly what counsel told him he would get: the withdrawal of the mitigation special issue in exchange for the exclusion of the State's proposed victim impact testimony. Points of error fifteen through eighteen are overruled. 

POSITIVE CAPITAL CASE RESULTS
Florida Dept of Corrections v. Watts, 2001 Fla. LEXIS 2264 (FL 11/8/2001) Postconviction court's order of transfer for psychiatric treatment until the condemned is sane enough to finish postconviction process held permissible.

Peterkin v. Horn, No. 95-CV-3989 (E.D.Pa. 11/07/2001)  Relief granted on:

(1) The improper admission of the hearsay testimony of Stanley Trader and Clarence Sears;

(2) prosecutorial misconduct in the introduction of evidence of uncharged crimes and in closing arguments at both the guilt/innocence and sentencing phases of the trial;

(3) ineffective assistance of trial and appellate counsel; and

(4) the insufficiency of the properly admitted evidence to support the jury's verdict.

Kinder v. Bowersox,  2001 U.S. App. LEXIS 24564 (8th Cir 11/16/2001)  Relief denied on claims relating to [a] failure to grant money to perform DNA testing; [b] trial judge's failure to recuse; [c] juror qualifications; [d] ineffectiveness for failing to object; and [e] closing arguments.

Pellegrini v. State, 2001 Nev. LEXIS 80 (Nev. 11/15/2001) "Pellegrini failed to allege a sufficient basis to show good cause to excuse the procedural bars or to conclude that a fundamental miscarriage of justice would occur from the failure to consider his claims for relief on the merits. The district court did not err in declining to conduct an evidentiary hearing on these issues."

Hertz v. State, 2001 Fla. LEXIS 2209 (Fla. 11/08/2001) Relief denied on claims that:  (1) The trial court improperly excused for cause a venire member whose opposition to the death penalty did not prevent or substantially impair her ability to perform her obligations; (2) Hertz was not competent to stand trial; (3) the trial court erred by admitting gruesome photographs of the bodies at the crime scene and the autopsy; (4) the details of the collateral crimes in Volusia county became a feature of the trial causing prejudice that substantially outweighed the probative value of the evidence; (5) the evidence was insufficient as a matter of law to sustain the convictions; (6) the statute authorizing the admission of victim impact evidence is an unconstitutional usurpation of the Court's rulemaking authority under article V, section 2, of the Florida Constitution, making the admission of such testimony unconstitutional and reversible error; (7) the trial court erred in denying the defense motion to require a unanimous verdict; (8) four of the seven aggravating factors upon which the jury was instructed and which the trial court found are legally inapplicable and their consideration was not harmless error; and (9) the death sentence in this case is disproportionate.

Carter v. Galetka, 2001 UT 96; 2001 Utah LEXIS 179 (Utah 11/6/2001) Relief denied on expert conflicts, juror misconduct, nonreatroactive application of state law precedent did not create a "substantial injustice" and ineffective assistance of counsel on appeal & trial/retrial.

Brown v. Head, 2001 U.S. App. LEXIS 24505 (11th Cir 11/15/2001) Relief denied on claims relating to knowing use of perjured testimony, suppression of evidence & failure to investigate.

Feldman v. Texas, 2001 Tex. Crim. App. LEXIS 109  (Tex. Crim. App 11/21/01) Relief denied on claims relating to failure to grant challenges  for cause to venirepersons;  refusing to instruct the jury on the lesser-included offense of murder, evidence during the guilt/innocence phase of an unadjudicated extraneous offense that appellant committed just over a week after the offense alleged in the indictment, t informed the jury about the forty year minimum for parole eligibility if a life sentence were assessed,  but then further instructed the jury not to consider that minimum in answering the future dangerousness issue, lack of definition of key terms in the penalty phase jury instructions & statutory construction constitutional challenge.

North Carolina v. Parker, 2001 N.C. LEXIS 1090 (N.C. 11/9/2001) Relief denied on claims relating to  [a] sufficiency of the evidence; [b] prosecutorial argumentss outside the record in closing argument; [c]ell as  the counsel's use of the statutory mitigating circumstance that defendant had no significant history of prior criminal activity

Fox v. Coyle, 2001 U.S. App. LEXIS 24387; 2001 FED App. 0400P (6th Cir. 11/14/2001) Relief denied on: (i) whether the Ohio courts erred by using a separate crime for which Fox was neither charged nor convicted as an aggravating circumstance in imposing the death penalty; and (ii) whether the Ohio courts erroneously considered the violence and planning of the crime as  aggravating factors in imposing the death penalty.

Grayson v. Mississippi,  2001 Miss. LEXIS 303 (Miss 11/8/2001) Relief denied on claims relating to: [a] motion to suppress statements given to law enforcement; [b] change of  venue; [c] introduction of photographs of the victim and of the crime scene into evidence; [d] constitutionality of sentencing scheme & prosecutorial use aggravating circumstances as applied; [e]  mistrial based on comments made by potential jurors during voir dire; [f] striking jurors for Witherspoon; and [g]  motion for funds for private investigator and jury consultant.

Ex parte State of Alabama; (In re: State of Alabama v. Larry Eugene Hutcherson) ; 2001 Ala. Crim. App. LEXIS 282 ( Ala. Crim. App11/9/2001) State's interlocutory motion  on dismissal  for filing more than two years after the certificate of granted.

DELAYD PUBLICATION, AMENDED & DEPUBLISHED OPINIONS
Santellan v. Cockrell, No. 00-50222 (5th Cir. 10/17/2001) (as amended 11/13/2001) "[T], the Texas Court of Criminal Appeals did not unreasonably apply clearly established federal law to Santellan's insufficiency of the evidence, due process or ineffective assistance of counsel claims."

OTHER NOTABLE CASES 
Smaldone v. Senkowski, No. 00-2519 (2d Cir. 11/16/2001) Attorney error not enough to prove equittable tolling.

Valentine v. Francis, No. 00-3660 (6th Cir 11/08/2001) A state petition for post-conviction or other collateral review that does not address one or more of the grounds of the federal habeas petition does not toll the one-year statute of limitations under 28 USC 2244(d)(2) of the AEDPA.

FOCUS
In light of time constraints on this week's issue, the annual review of websites of notes will be pushed back one edition.  This week, examines the interplay of international law, extradition and the death penalty. Amnesty International this week released "UNITED STATES OF AMERICA: No return to execution -The US death penalty as a barrier to extradition." Available on the web at http://www.web.amnesty.org/ai.nsf/recent/AMR511712001?OpenDocument
 
 

Introduction: Out of step with an evolving consensus

Since 1990, around 40 countries have abolished the death penalty in law. In the same period more than 600 men and women have been killed in execution chambers in the United States of America (USA). Today, as some 3,700 prisoners await execution in the USA, 109 countries have abandoned capital punishment in law or practice. In other words, a clear majority of countries have concluded that justice is not to be found at the hands of state executioners.

The USA's growing isolation on this fundamental human rights issue has significant consequences for its foreign relations. Nine senior former US diplomats said as much in a brief filed in the United States Supreme Court in June 2001, in which they argued that the execution of people with mental disabilities - one of numerous aspects of the US death penalty which violate specific international safeguards - had become ''manifestly inconsistent with evolving international standards of decency''. Such executions, the brief asserted, ''strain diplomatic relations with close American allies, provide ammunition to countries with demonstrably worse human rights records, increase US diplomatic isolation, and impair the United States foreign policy interests''.(2) In the same month, the Parliamentary Assembly of the Council of Europe adopted a resolution calling into question the USA's observer status because of its continuing resort to capital punishment. The resolution reaffirmed that the Council of Europe - 43 member countries with 800 million inhabitants - ''considers that the death penalty has no legitimate place in the penal systems of modern civilized societies, and that its application constitutes torture and inhuman or degrading punishment within the meaning of Article 3 of the European Convention of Human Rights''.(3)

Half a century after the international community adopted the Universal Declaration of Human Rights, the use of the death penalty against anyone, regardless of the nature of their crimes, strays from evolving global standards of justice. One clear sign of this emerging consensus is the fact that the death penalty is not permitted under the statutes of the International Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda or the International Criminal Court, even though each was established to prosecute the most serious crimes, including genocide, war crimes, and crimes against humanity. Another indication, and the subject of this report, is that governments, in unprecedented numbers, are refusing to extradite criminal suspects to retentionist countries, at least without first obtaining guarantees that the death penalty will not be sought or imposed.

• In November a prosecutor with the Ministry of Foreign Affairs in Thailand noted that his country's use of the death penalty was making it ''doubly difficult'' to obtain the extradition of suspects from abroad and suggested that his government should abandon capital punishment for certain crimes.(4) 

• In July it was reported that Russia would be unwilling to extradite ''terrorists'' to the USA if they might face the death penalty.(5) 

• It was reported on 23 November that Spain would not extradite eight alleged members of the al-Qaeda network to the USA while there was a risk that they could face the death penalty and/or trial by special military commissions proposed by a recent presidential order.(6)

The atrocities of 11 September 2001 in New York and Washington have prompted calls from some quarters for the abandonment of extradition assurances against the death penalty.(7) However, countries which have abolished the death penalty cannot be expected to compromise their own principles by returning suspects to the United States, or any other retentionist country, without such assurances. Obtaining this guarantee has become a standard practice of abolitionist nations, a practice which has been upheld time and again by national courts and international human rights bodies. 

The fair and timely return of individuals to face justice is an essential element of international law enforcement. However, the possibility of an execution as a consequence of extradition, deportation or expulsion introduces human rights concerns of the highest importance. Amnesty International, which unreservedly opposes the death penalty in all cases, is mandated to oppose the sending of persons from one country to another where they can reasonably be expected to face the death penalty, torture or other cruel, inhuman or degrading treatment or punishment.(8) The organization's position is consistent with the international legal principle of non-refoulement, which prohibits sending individuals to another country when there is a serious risk that they would face grave violations of their fundamental human rights as a consequence of that move. 

Amnesty International is concerned that in the context of the so-called ''war on terrorism'' announced after the 11 September attacks, the US administration - a strong proponent of judicial killing - may seek to circumvent extradition protections against the death penalty. In October, for example, the USA sent a confidential document to the leaders of the European Union proposing a series of measures to enhance international cooperation against ''terrorism''. Among the list of 47 proposals made by the USA was reportedly a call on the EU to ''eliminate discrimination against United States and third (non-EU) countries' extradition requests to members states'' and to ''explore alternatives to extradition including expulsion and deportation, where legally available and more efficient''.(9) 

In this regard, a recent landmark ruling by the South Africa's Constitutional Court is instructive. Ruling that government officials had acted unlawfully in summarily handing a ''terrorist'' suspect over to the US Federal Bureau of Investigation (FBI) without seeking assurances that he would not face the death penalty in the USA, the Court made it clear that such an expulsion was unlawful whether characterized as a deportation or an extradition. Similarly, under the European Charter of Fundamental Rights adopted last year: ''No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment''(10) (emphasis added). 

There is a history of US conduct that fuels concern in this area. In June this year, Juan Garza became only the second federal death row prisoner to be executed in the USA in nearly four decades. There is evidence that the US authorities engineered his original deportation from Mexico in such a way as to avoid having to give assurances against the death penalty under the Mexico/USA extradition treaty. In another case in 1990, US agents forcibly abducted a Mexican national from Mexico and the US Supreme court ruled that the manner of his apprehension - a violation of international law - did not prohibit his trial in the USA. In 1998, the Virginia Supreme Court cited that precedent in upholding the death sentence of a Pakistan national abducted in Pakistan by FBI agents and flown back to the USA where he awaits execution today. 

The USA's use of the death penalty has frequently called into question its commitment to an international system for the protection of fundamental human rights. Successive US administrations have adopted a self-serving approach to the ratification of major international human rights treaties, a strategy formulated in part to allow the US justice system to ignore international safeguards governing the use of capital punishment and to defend the US death penalty against the global abolitionist tide. Some of the most damaging conditions it has attached to human rights treaties were lodged in part in response to a landmark ruling in 1989 by the European Court of Human Rights, in which the Court blocked extradition to the United States because of aspects of the USA's use of the death penalty.(11)

As the United States continues to seek an international alliance in responding to the crimes of 11 September, it has been suggested that one result of such coalition-building might be a greater future respect for international treaties and organizations on the part of the USA. This remains to be seen. In any event, the USA must now recognize that its continuing resort to judicial execution in an increasingly abolitionist world not only flouts world trends and damages its reputation abroad, but also blocks international cooperation on law enforcement. If it wishes to facilitate the return of criminal suspects from other countries, and to be seen to be pursuing justice rather than revenge, it should reject the use of the death penalty. Pending abolition of this outdated punishment, any refusal by US authorities to provide extradition assurances against imposition of the death penalty when required to do so can only result in lengthy and unnecessary delays in the administration of justice. 

NEW RESOURCES: "No return to execution - The US death penalty as a barrier to extradition" 
   This new report by Amnesty International examines the practice of foreign governments which refuse to extradite suspects to the U.S. without first obtaining assurances that the death penalty will not be sought or imposed. (Amnesty International, AMR 51/171/2001) Read the report.  See also, International Death Penalty and Forum on Capital Punishment and Responses to Events of   September 11.

Carolina Prepares Execution Despite Inmate's Inadequate Representation 
  John Hardy Rose is scheduled for execution on November 30. At trial Rose was represented by two 
attorneys: one, Jay Coward, who was only a few years out of law school and had never defended a murder case, much less a capital case, and the other, Marcellus Buchanan, who:
had never defended a capital case and was a career prosecutor 
was found to have engaged in misconduct as a prosecutor.  Buchanan also hid exculpatory evidence and threatened alibi witnesses during his tenure as a prosecutor 
had a daughter who worked in the DA's office and signed Rose's indictment 
In addition, Mr. Rose's legal team did not use a mental health expert and never informed the  jury about Mr. Rose's extensive childhood sexual abuse.  North Carolina Governor Mike Easley has yet to decide whether or not to grant clemency to Rose.  (Carolina Justice Policy Center, press release, 11/26/01)  For more information about the Rose case, see the press release by the Office of the Appellate Defender and the Center for Death Penalty Litigation. 
NEW VOICES: Conservative Columnist William Safire on military tribunals, especially in capital cases: 

   "The [Uniform Code of Military Justice] demands a public trial, proof beyond reasonable doubt, an accused's voice in the selection of juries and right to choose counsel, unanimity in death sentencing and above all appellate review by civilians confirmed by the Senate. Not one of those fundamental rights can be found in Bush's military order setting up kangaroo courts for people he designates before 'trial' to be terrorists. Bush's fiat turns back the clock on all advances in military justice, through three wars, in the past half-century." 
(W. Safire, New York Times, 11/26/01)  Read the entire article.  See also, Forum on Capital Punishment and Responses to Events of September 11. 

NEW VOICES: The latest issue of the Catholics Against Capital Punishment's Newsletter features numerous statements regarding the death penalty from Catholic officials.  In addition, Christian Josi, Executive Director of the American Conservative Union and consultant on the campaign of former Vice President Dan Quayle, writes: 

    My fundamental problems with the death penalty began as a result of my personal concern, echoed by many on all sides of the political spectrum, that it was inconsistent for one to be "pro-life" on the one hand and condone government execution on the other. Pope John Paul II weighed in and cleared up the issue for me a bit, but dare I say, I still had my doubts. 
    Then came the talk of margin of error; the fact that in the course of business, the government had sentenced innocent people to death based on either just plain poor legal representation or discoveries obtained through advanced DNA technology. 
    . . . 
    The time has come for us to get beyond government executions. 
(CACP News Notes, 11/26/01)  See also, Statements and Resolutions from Religious Organizations and Leaders. 

Spain Will Refuse to Extradite Terrorists If U.S. Seeks Death Penalty 
A Spanish Foreign Ministry spokesman said that Spain will not extradite terrorist suspects to the U.S. without assurances that they will not be subject to capital punishment. The spokesman cited European Union agreements that prevent members from extraditing suspects to countries where judicial norms are seen as falling below those in the Union.  (Associated Press, 11/23/01) See also, Forum on Capital Punishment and Responses to Events of September 11. 

Police Chemist's Missteps Cause Oklahoma Scandal 

      "Harold 'Gene' Weatherly, then 25, maintained his innocence through numerous voluntary interrogations, a trial in which forensic evidence nailed him, and two parole hearings in which his refusal to admit guilt cost him early release. He served 15 years in prison. 
      ". . . The truth, the FBI declared this year, was that the fibers on his tennis shoes did not match those from the crime scene. . . . 
      "Weatherly is just one of hundreds of inmates -- former and current -- caught up in arguably the biggest law enforcement scandal in Oklahoma history.  [Joyce] Gilchrist, who was fired in September, has been accused of egregious misrepresentations of forensic evidence over two decades. Already, a reexamination of her work has freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year." 
(L. Romano, Washington Post, 11/26/01)  For additional information on the Gilchrist investigation, see innocence news.  See also, innocence. 

 NEW RESOURCES: "Religious Conservatives and the Death Penalty" 
William and Mary Bill of Rights Journal, Vol. 9, No. 1, December 2000, by THOMAS BERG, University of St. Thomas; Available from the SSRN Electronic Paper Collection: 
http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID259152_code010822560.pdf?abstractid=259152 
 

 NEW VOICES: "No simple way to speed it up" says Former Georgia Attorney General of Death Penalty Process 
Michael Bowers, the former Georgia Attorney General, says that delays in death penalty cases are a necessary part of the death penalty process: 

It's a frustrating system, but there is no simple way to speed it up.  Overwhelmingly, people say it [the death penalty] should exist for certain heinous crimes.  At the same time, people are just as adamant that every avenue should be exhausted to make sure there is no chance they are not guilty.  The surer you are, the slower you move. . . . It takes forever.  Even if a case goes strictly as planned, you're going to have 10 steps in each case, 10 separate legal proceedings. . . . And at each one of those steps you have the potential of a reversal. . . . And you're talking many, many more years. 
(Atlanta Constitution, 10/27/01)  See also, New Voices. 
NEW RESOURCES: CQ Researcher on "Rethinking the Death Penalty" 
The latest issue of Congressional Quarterly's CQ Researcher written by Kenneth Jost contains valuable information and analysis on the current death penalty debate, including reviews of recent studies of flaws in the system, public opinion, the innocence issue, the question of executing the mentally retarded, and an exchange of views regarding a moratorium on executions.  (K. Jost, "Rethinking the Death Penalty," 11 CQ Researcher 945-968 (Nov. 16, 2001)). 

Illinois Group Urges Capital Punishment Reforms 
The Illinois Death Penalty Education Project (IDPEP) has proposed 12 reform measures designed to create a more fair and equitable capital punishment system in Illinois.  The Project, a non-partisan organization that promotes informed public dialogue about the death penalty, is urging the Illinois General Assembly to adopt the suggested measures.  "These reforms address the most egregious problems in the administration of the state's death penalty laws," said Edwin Colfax, executive director of the IDPEP.  The  proposed reforms, developed by the Project in cooperation with the Center for Wrongful Convictions at Northwestern University and the MacArthur Justice Center, include: 

Excluding the death penalty and establishing life without parole as the maximum penalty when the sentencing jury is not unanimous, when a conviction depends on the testimony of a single eyewitness, when testimony against a defendant is given in exchange for special treatment, or when any juror harbors residual doubt about the guilt of the defendant 
Requiring videotaping of interrogations of suspects 
Permitting expert testimony concerning the fallibility of eyewitness testimony in capital cases 
Requiring police to develop protocols for photo and live lineup identification procedures. 
Retired U.S. District Court Judge George N. Leighton, a member of IDPEP's advisory board, said, "Most Illinoisans don't understand the very real risk that we will execute an innocent person. When they know the truth, they overwhelmingly support common-sense reforms like these."  (Illinois Death Penalty Education Project Press Release, 11/18/01)  See also, studies on the death penalty. 

 Catholic Bishops Renew Call to End the Death Penalty 
The United States Conference of Catholic Bishops renewed their opposition to capital punishment, citing "its sheer inhumanity and its absolute finality, as well as concern about its inequitable use and an imperfect legal system that has condemned innocent people."  (Press Release, United States Conference of Catholic Bishops, 11/14/01).  See also, Statements and Resolutions from Religious Organizations and Leaders. 
 Call for Clemency Petitions in Capital Cases 
The Capital Punishment Research Initiative (CPRI) at the School of Criminal Justice, University at Albany, is seeking clemency petitions and related materials filed in capital cases throughout the United States since the 1970s.  Please send hard copies to Sara Ward at the University at Albany, School of Criminal Justice, 135 Western Avenue, Albany, NY 12222; electronic versions to: storm44@capital.net. 

POLLS: Texas Voters Prefer Life Sentence for Andrea Yates 
 A Houston Chronicle/KHOU-TV poll found that most voters in Harris County, Texas don't support the death penalty for Andrea Yates.  Although prosecutors are seeking the death penalty against Yates, the poll found that 57.3% of respondents said she should receive a life sentence; only 19.4% favored the death penalty.  Yates has pleaded not guilty by reason of insanity to two charges of capital murder in the death of children.  (Houston Chronicle, 11/14/01)  See also, public opinion. 

LIFE WITHOUT PAROLE: U.S. Supreme Court Allows New Sentencing Ruling to Stand 
 The U.S. Supreme Court refused to hear an appeal by prosecutors in the case of Oklahoma death row inmate Mark Johnson.   The appeal was brought by the state after a federal appeals court overturned Johnson's death sentence, stating that the trial judge "told the jury that parole eligibility could not be considered when  plainly it could be."  The U.S. Supreme Court has held in the past that, under certain circumstances, juries must be told that a life sentence means that an inmate will never be paroled.  During Johnson's sentencing trial, jurors sent a note to the judge that stated, "We need to know!  Is life without parole firm -- does it mean he can never be paroled?" After the judge replied that it was "inappropriate for [the jurors] to consider the question asked," the jurors sentenced Johnson to death.  He is scheduled for resentencing in December.  (Associated Press, 11/13/01)  See also, Life Without Parole. 

Indiana Death Penalty Commission Prepares to Release Study 
  The Indiana Criminal Law Study Commission met recently to review the final draft of a year-long study on the state's death penalty. The draft report indicates that race of the victim plays a role in death penalty sentencing.  The report included a cost analysis that indicates it costs the state 35-37% more to have the death penalty than it would if life without parole were the most severe punishment available.  Governor Frank O'Bannon asked the Commission to review the state's death penalty system after innocent inmates were discovered and freed from death rows in other states.  The final report is due to be released in December. (Indianapolis Star, 11/9/01) See also, studies on the death penalty. 

Another Death Penalty Conviction Overturned 
    Pennsylvania death row inmate Otis Peterkin's conviction was overturned on November 9, 2001.  U.S. District Judge J. Curtis Joyner granted Peterkin a new trial, citing the trial judge's improper admission of hearsay evidence and inflammatory and inappropriate statements by the prosecutor.  Joyner also noted that Peterkin's defense attorney failed to investigate or present a purported alibi witness and didn't present any character evidence on behalf of Peterkin during the penalty phase of the trial. "In light of the instances of prosecutorial misconduct, trial counsel ineffectiveness and trial error, we cannot now find from the evidence properly admitted of record that the jury's findings that [Peterkin] was guilty of the robbery . . . and of [murder] in the course of that robbery are supported by sufficient evidence," said Joyner.  (Philadelphia Inquirer, 11/10/01)  See also, innocence. 

NEW VOICES: New Mexico Governor Convinced that Innocent People Have Been Executed 
     Governor Gary Johnson recently said he no longer supports the idea of a two-year cap on the time death-row inmates can appeal their sentences and he wold support a public dialogue on the usefulness on the death penalty.   Johnson, who introduced the idea of limiting death-row appeals in 1997 as part of a broader package of crime-fighting legislation, said he now believes limiting death-row appeals would probably lead to innocent people being executed.  "I am convinced that has been done in the past, and it will happen in the future.  I am convinced that in the future New Mexico will make a mistake," said Johnson.  (Albuquerque Tribune, 11/6/01) See also, New Voices. 

Federal Court Unanimously Strikes Down California Death Sentence 
    A federal appeals court struck down the death sentence of Demetrie L. Mayfield, who was sentenced to death in California in 1983. The 11 judges on the 9th Circuit Court of Appeals, including several staunch conservatives, said Mayfield's court-appointed lawyer failed to adequately represent him. Court records show that Mayfield's attorney, S. Donald Ames, spent only 40 hours preparing for the guilt and penalty phase of the case. Four of the 11 justices said the attorney's performance was so inadequate that Mayfield's conviction should also be overturned. 
    This marks the second time that the 9th Circuit has reversed a death sentence in a case in which Ames was the defense lawyer.  Currently, another case involving ineffective representation by Ames is pending before the U.S. Supreme Court. (Los Angeles Times, 11/7/01) See also, DPIC's report on representation, With Justice for Few: The Growing Crisis in Death Penalty Representation 
 
 

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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. 

DISCUSSION LIST FOR  LEGAL PROFESSIONALS: 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

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