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Two Supreme Court decisions tower over this edition. The Supreme Court rendered potentially the single most important decision in a quarter of a century relating to capital punishment in Atkins v. Virginia on Thursday. Atkins effectively bars execution of the mentally retarded. The language of the Court's decision, however, is not tightly drawn to just the issue of mental retardation but was very sweeping and seemed to lay down the gauntlet for additional "per se" challenges. Where the Court may lead next, whether it is just to the issue of juvenile executions (diminished capacity & the rarity of such executions) or as far as Texas's Special Questions Procedure ("The practice [ ] has become truly unusual, and it is fair to say that a national consensus has developed against it.") is an issue for brighter minds & another day to contemplate. What is clear from Atkins , however, that it is the work of thousands of activists who worked tirelessly to get mental retardation bans passed in the various state houses around the country that carry much, if not most, of the credit. Earlier in the week in a per curiam the Court remanded a Third Circuit grant of penalty phase relief on jury instructions in a case originating from Pennsylvania, Horn v. Banks . The Court in Banks remanded on the issue of the applicability of Teague v. Lane to the Mills v. Maryland unanimity requirement. Answering the question whether Teague survives the AEDPA the Court answers that it does and the Third Circuit erred by not considering Teague prior to granting relief on Mills. The Court left open the possibility that Banks could still win below, however, that chance appears today to be much slimmer than even a week ago. The third case earning a hot list slot this week is Bell v. Virginia . In Bell the Virginia Supreme Court, in denying relief, examines several currently hot issues, including Vienna Convention, right to an expert witness to address conditions relating to the future dangerous question and the meaning of the term "life without parole." Several non capital cases were also decided this week by the Supreme Court. In Carey v. Saffold , the Court took a much anticipated move towards defining what "pending" consists of when it comes to the AEDPA & the various relevant state post-conviction &/or post-trial motion & appeal. In United States v. Drayton a split Court held the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Last week's of other note dealt with the pending execution of Wallace Fugate. Mr. Fugate has received a stay from a state trial level court on the grounds that the pardon's board had an unfilled seat. The court held, according to wire service reports, that before Mr. Fugate's pardon application could be evaluated and, assuming denial, an execution ensue, the empty seat would need to be filled. In the "Focus" section this week is Capital Defense Network 's " Current Development's & Recent Cases ." The Capdefnet.org site is the single best site on the net for death penalty defense at the federal level and if you haven't visited that site yet, you must. The following update to the training schedule is noted for early July: The Washington Death Penalty Assistance Center will be holding a training session in Yakima, Washington on July 11 and 12, 2002, at the Doubletree Hotel, 1507 North First Street. For further information, please contact Mark Larranaga at (206) 447-3900, Est. 774.Finally, the long overdue update to the Capital Defense Weekly site (capitaldefenseweekly.com) is underway with the main page's overhaul completed and the remaining pages to follow in the next few weeks. Visit, drop a note/make a call, & feel free to criticize, as comments & suggestions are always encouraged as to how to improve the site and weekly. The weekly will run a very abbreviated edition next week (if it runs at all), my apologies in advance. Execution Information
Recently scheduled serious dates that have been stayed : JuneThe following executions dates for this summer are considered serious:* JuneAvailable at http://capitaldefenseweekly.com/archives/020617.htm The singular hot listed case this week is Brewer v. Mississippi. The case deserves a thorough reading. Although the court makes clear that the record is yet to be sufficiently developed to grant relief on exculpatory DNA evidence it orders a remand to grant further analysis. Counsel's performance in Brewer offers a good solid guide to DNA litigating, its pitfalls & what counsel must do if they believe DNA &/or innocence may be at issue. The Supreme Court in McKune v. Lile , held on Monday that the Fifth Amendment does not prohibit all penalties levied in response to a persons refusal to incriminate himself or herself it prohibits only the compulsion of such statements. Four justices would hold that the Sandin v. Conner, 515 U.S. 472 (1995) rule of "atypical and significant hardship" regarding prison life should govern such cases. Justice O'Connor, the fifth vote in the majority, expressly distances herself from Sandin & states that merely on the facts of this particular case because the penalties assessed at issue are not compulsive on any reasonable test. The rule from McKune, as espoused by the narrowest opinion of a majority of justices, is that the Fifth Amendment does not prohibit all penalties levied in response to a persons refusal to incriminate himself or herself, it prohibits only those that could produce the compulsion of such statements. The "Focus" topic of the week is upcoming capital CLE's from around the nation. If you have a training event and would like to spread the word please feel free to contact me at karl@capitaldefenseweekly.com , (908) 454-7988, or by fax at (908) 847-0229 and the event will go out in the next issue. Check http://capitaldefenseweekly.com/training.html for the quarterly update of all training events . In news of the week Walter Mickens, who lost in the Supreme Court by one vote earlier this year, was executed this week by the Commonwealth of Virginia. Congressional hearings are scheduled next week on the Innocence Protection Act (S. 486/H.R. 912) passage in the Senate is still a toss-up at this point. A new itinerant section has been added this week, called "Of Other Note." The new section will appear a few times each month and cover topics that don't neatly fit anywhere else such as letters to the weekly & information on upcoming notable executions. This edition's "Of Other Note" is information on the upcoming execution of Wallace Fugate whose attorneys lacked any semblance of qualification to try a criminal case, nonetheless a capital one. For more information on Mr. Fugate please contact Sara J. Totonchi of the Southern Center for Human Rights . On a much lighter note & wrapping up this week's intro, for those in the Northeast, the irrepressible Ron Tabak has New York Yankee tickets (well below the current scalping price) for several upcoming games. Any profit from the tickets goes to various human rights & antideath penalty groups. The tickets are all good to great seats and include this weekends Yankees v. Mets & the upcoming Red Sox v. Yankee games. This edition is availabe at http://capitaldefenseweekly.com/archives/020609.htm Two cases are hot listed this week, Roche v. Davis and Arizona v. Phillips . In Roche v. Davis the Seventh Circuit vacates an Indiana judicial override to death following a dead locked sentencing phase jury. Trial counsel objected only objected once to the shackling of his client in the courtroom & never developed a record of the shackling. Noting that the mitigating and aggravating circumstances in the case were a close call (referencing the jury deadlock) the Roche panel held that counsel's performance on the shackling required a new sentencing. The Arizona Supreme Court in Arizona v. Phillips vacated one of two capital convictions, premeditated & felony murder, flowing from the death of Kevin Hendricks. The Phillips Court held that the court below conflated felony murder with premeditated murder in its instructions. Arizona, like most states, draws a bright line between the two. Since the state supreme court upheld the felony murder conviction a new trial was not ordered. A three justice dissent from a stay in Moore v. Texas is also noted this week. The stay at issue in Moore involves the issue of mental retardation & the Supreme Court's soon to be released decision in Atkins v. Virginia. The dissenters strenuously argue that the Court below, the Texas Court of Criminal Appeals, rested their opinion on an "independent and adequate" state ground, procedural default. Additionally, the dissenters note, one of the IQs at issue in the mental retardation claim is above 70 possibly 75. Whether this dissent foreshadows a favorable decision in Atkins v. Virginia remains to be seen. The Focus section is likely to return next week with a focus on upcoming CLEs, recent law reviews, and like information. Execution Information
MayThe following executions dates for this summer are considered serious:* JuneOnline at http://capitaldefenseweekly.com/archives/020602.htm The news of the week leads with the Supreme Court's holding in Bell v. Cone . The U.S. Supreme Court upheld the death sentence of Cone despite the fact that his lawyer presented no mitigating evidence on Cone's behalf and passed up an opportunity to argue for his life. The Court ruled 8-1 that the attorney's inaction did not amount to a complete absence of representation under United States v. Cronic , and that the state court did not act unreasonably when it held that the attorney might have been making a tactical decision in not presenting evidence. The case is the lead "hot list" case & some analysis of the decision is offered as well. Three other cases also make the "hot list." Fullwood
v. Lee , from the Fourth Circuit made the list this week as a panel
of that court ordered an evidentiary hearing on juror misconduct.
The Sixth Circuit in Jamison
v. Collins is hot listed in light of the the gross prosecutorial misconduct
which forced that court to order an new trial. The final case of the week
to make the hot list is
In other news of the week, the Eastern District of Pennsylvania in Henry v. Horn granted relief on bad penalty phase "unanimity" instructions. In New Jersey polling data recently released shows a considerable drop in the state, and that the majority of residents support a moratorium on executions until issues of accuracy, fairness and cost effectiveness can be examined (see the "other news" section below). In Missouri Christopher Simmons has received a stay from the state court on pending the outcome of Atkins v. Virginia and potential applicability of Atkins to the juvenile death penalty. Religious imagery is the source of this weeks "Focus" article. Elizabeth A. Brooks, Note, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments , 33 Ga. L. Rev. 1113 (1999), exhaustively studies the case law surrounding the issue of religious imagery in the court room. While her conclusion are somewhat controversial, her research is first rate. A "zip" of all the prior editions of the weekly is available at http://capitaldefenseweekly.com/archives/cdw.zip Execution Information
MayThe following executions dates for this summer are considered serious:* JuneOnline at http://capitaldefenseweekly.com/archives/020527.htm Three cases are listed as hot this week. The cases all focus on the limits imposed on prosecutors either by the federal constitution, judicial order or the canons & rules of ethics. In the first of the cases defining the limits on prosecutions is Ohio v. Lamar . The Ohio Supreme Court in Lamar examines how little a prosecutor must divulge concerning potential witnesses. Without ever once citing United States v. Jencks, the Lamar Court held that what is commonly referred to as Jencks material need not be turned over to meet state and federal constitutional requirements. Summaries of statements of witnesses without the names attached suffice for Brady under the unique circumstances of Lamar. In Osband v. Woodford the Ninth Circuit again evaluates whether a district court's protective order preventing the prosecution of any trial counsel file turned over in federal habeas discovery was permissible. The order below was "designed to ensure that the prosecution on retrial will not use the discovery permitted in the habeas proceeding to circumvent the more limited discovery available in criminal prosecutions." Noting that Circuit precedent clearly placed the decision in the hands of "the very broad discretion" of the district court in ordering discovery, the court affirms the order. In the third hot listed case of the week the Colorao Supreme Court clarifies how far a prosecutor may go before risking disciplinary action in In the Matter of Pautler . Attorney Pautler was brought before the disciplinary board after he had impersonated a public defender in order to secure the surrender of a person accused of capital murder. The Pautler Court notes that attorney Pautler is unrepentant and states that he would repeat his actions if the unique circumstances underlying this matter would arise again. The Pautler Court holds, however, that the unique situation involved in the instant circumstance and Pautler's long history of public service, among other mitigating factors, justifies a suspended sentence (3 months suspension of license) instead of disbarment. Two noncapital Supreme Court cases are also noted this week. In United States v. Cotton etal. a unanimous Court held failure to object may waive putative "Apprendi" error. In Alabama v. Shelton a sharply split Court held that the right to counsel exists even where the sentence imposed is a suspended sentence. The Focus article of the week is by Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BFLR 469 (1996). Mr. Gross's article is oft cited in the current debate on how to improve the death penalty and reduce the chances of executing the innocent and worthy of a quick review as part of the actual nuts and bolts as to how the system is failing. In other news of the week, the execution of Johnny Martinez in Texas has quietly begun to raise, once again, about the quality of Texas's rules and protocols in capital cases. The family of Martinez's victim, Clay Peterson, pleaded for Martinez's life to be spared. The Texas Board of Pardon and Parole, by a 9-8 vote , decided, however, to turn a deaf ear to the victim's family members and to deny clemency. Two more executions (including that of Napoleon Beazley) are scheduled in Texas before the end of the month and five additional executions scheduled for June. Execution Information
MayThe following executions dates for this summer are considered serious:* MayAvailable online at http://capitaldefenseweekly.com/archives/020520.htm Three cases make the hot list this week, two wins, one loss. The first case in the spotlight is North Carolina v. Rogers . The North Carolina Supreme Court in Rogers examines how that Court will treat prosecutors who attack the defense's expert as a "liar for hire." The prosecution's improper disparagement of the defense's expert, the Rogers court concludes, entitles the defendant to a new capital sentencing proceeding. The Tennessee Supreme Court in State v. Dellinger examines the application of New Jersey v. Apprendi to capital cases in that state. Dellinger gives a good analysis of what the state must prove to not have a problem with Apprendi. Whether the five requirements listed in Dellinger will be applicable following any potential United States Supreme Court decision Ring v. Arizona is unclear, however the Tennessee Supreme Court's decision (excerpted below) should be reviewed if an Apprendi issue might be present in your case. In the final hot listed case, Jennings v. Woodford , is a guilt phase grant of relief from the Ninth Circuit. Trial counsel in Jennings used an alibi defense and pointed the finger at someone else. Problems arose at trial, however, when confusion over daylight savings time prevented the establishment of an alibi. Trial counsel failed to explore alternate defenses. The Ninth Circuit concludes "counsel's failure to conduct any investigation into possible mental defenses was unreasonably ineffective." This week the "Focus" section will not run this week and will return
next week. Two upcoming editions will address CLE's/upcoming events
and new books, articles & website germane to the subject. If
you have any recommendations please do forward them to karl@capitaldefenseweekly.com
Since the last edition the following have been executed: MayThe following executions dares are considered serious:* MayAvailable online at http://capitaldefenseweekly.com/archives/020513.htm The most important events relating to capital defense this come not from the courts but from the political realm. In Maryland the second state governor this week announced a moratorium on executions. Governor Parris Glendening of Maryland issued a moratorium Thursday on all executions in that state pending completion, and General Assembly review of, a study on the state's use of the death penalty currently in progress at the University of Maryland College Park. This is the first state moratorium since Illinois Governor George Ryan halted executions in that state in January 2000. The immediate effect is a stay for Wesley Baker who was scheduled to be executed next week, the long term effects remain to be seen. The moratorium movement will be covered in depth in a future edition. The current edition highlights as hot just one case, Caldwell v. Bell . In Caldwell a split panel of the Sixth Circuit granted relief on a the trial court's error in instructing the jury on "presumed malice." The panel split not on whether the instruction was error, but how that error impacted the proceedings. Relief granted. The Focus section this week examines the constitutionality lethal injection as currently practiced. Excerpts from Denise Denno's "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us" Ohio State Law Journal's Death Penalty Symposium Issue appear below. Additionally, excerpts from motions challenging lethal injection that have won evidentiary hearings recently in Tennessee and Georgia also appear below. Additional materials on lethal injection will be posted on the new Capital Defense Weekly website in the next few days. As noted briefly in the last edition several severe technical glitches have troubled the site (coramnobis.com) where the weekly has been housed for the last three years. The troubles included no email for most April. Effective as of this issue I have moved the site for Capital Defense Weekly The new website location is www.capitaldefenseweekly.com. The new site is up but being seriously "remodeled" and should be fully functioning in a few days. Having mentioned websites, deathpenaltydefense.com is another site to add to your hotlinks. The site covers all the nuts and bolts of death penalty defense at trial in a concise and thought provoking manner. If you have not visited the site yet, please do. Deathpenaltydefense.com is run by Prof. William S. Geimer of Washington and Lee University. Prof. Geimer has defended capital cases in the courtroom, and as director of Virginia Capital Case Clearinghouse, has provided direct trial-level assistance to defense attorneys in more than 400 death penalty cases. His work has appeared here in the past and I have added the site to the very small list of "five star websites" that appears in the footer of every edition. A reminder that the the Montana Bar Association on June 6-7 is holding their Capital Crimes Defense Certification (http://montanabar.org/cle/capitalcrimescle.html). The CLE examines the nuts and bolts of trying a capital case, including such classes as "Trying Your First Death Penalty Case and Voir Dire in Capital Cases" and "Deathics: What the Defense Lawyer Must Do and the Prosecutor Must Not." The course include many of the leading experts in the field of capital defense and looks to be quite rewarding. Finally, Thomas H. Kimbell, Jr., became the 101st former death row inmate (at least) to be released for reasons of actual innocence and freed since 1973. Kimbell had been sentenced to death in 1998 following his conviction for the murder of four members of a family in Lawrence County, Pennsylvania in 1994. The Pennsylvania Supreme Court overturned his conviction in 2000 because evidence which might have thrown doubt on his guilt was not admitted at his trial. Kimbell was acquitted of all charges at his re-trial on May 3. Execution Information
MayThe following executions dares are considered serious:* May Leading off this week's edition are two interesting new "breakthroughs" in developing areas of the law. Twists on claims of innocence & international law are the hot issues of the week. In Valdez v. Oklahoma , the Oklahoma Court of Criminal Appeals granted relief on a successor post-conviction motion. The issue raised to the court concerned the Vienna Convention's guarantees relating to the right of consul for foreign nationals accused of crimes. The Court denied relief on the international law claim as presented but held trial counsel was ineffective for not seeking assistance from his client's consulate. Valdez is believed to be the first appellate opinion granting relief on issues touching upon the Vienna Convention. A federal district court in the Southern District of New York held last Thursday in United States v. Quinones that he was ready to declare the federal death penalty unconstitutional unless the government can quickly explain why so many condemned inmates turn out to be innocent. Although noted in last week's edition the opinion was not widely available until after that edition was sent to the list. The opinion's unique holding renders it hot. The motion by counsel in Quinones is the "Focus" topic of the week. Three other cases saw favorable outcomes in capital or potentially capital cases. The Seventh Circuit in Wright v. Walls vacated a death sentence where sentencing judge erred by not considering mitigating evidence related to appellant's traumatic childhood. The Ninth Circuit in Visciotti v. Woodford vacated petitioner's sentence on the basis of counsel's ineffectiveness including, most notably, trial counsel's concession of several potential mitigating factors while providing the jurors essentially no reason not to impose the death penalty. Finally, in a case with clear capital implications, the Tennessee Court of Criminal Appeals held in Tennessee v. Hagerty that the accused's request for experts to develop a "battered woman syndrome defense" granted. In South Carolina Richard Johnson has been denied clemency. Johnson's case is notable as the evidence of actual innocence is substantial. In 2000, the state Supreme Court ruled that one of Johnson's co-defendants was not credible when she recanted her testimony given at Mr. Johnson's trial and said she killed state trooper Bruce Smalls. Former state chief justice, Ernest Finney was not part of that 3-2 vote, but he said the razor-thin margin wasn't enough to "justify the imposition of the ultimate punishment." "When the court divides three to two on the question of whether a man on death row is actually guilty of committing the crime, I believe clemency is warranted," Finney wrote in seeking clemency for Mr. Johnson. In other news of the week, the Alabama has finally abolished the electric chair . Polls in New York and Illinois show support for the alternative of life without parole and moratorium (respectively) beating out execution as the preference of the majority of those polled. The San Jose Mercury News found after an in-depth study of the 72 cases reversed by state and federal courts since 1987 and 150 appeals now pending in the federal courts that the problems endemic to states known for spending less on capital cases, such as Texas and Alabama, are endemic in California cases. Several have asked where they can go to find out more information on
a given client's press coverage or the press coverage of a given inmate
on death row. Other than the Nexis database, the best national archive
of such stories and discussion of events can be found at the Abolish list
archives. That information can be found by point your browser
to http://maelstrom.stjohns.edu/archives/abolish.html
(to search by date) or http://maelstrom.stjohns.edu/CGI/wa.exe?S1=abolish
Finally on a technical note, the site will be changing names. The website will be moving to CapitalDefenseWeekly.com starting May 8, 2002. capitaldefenseweekly.com will be continued to be maintained through early June. My apologies for the ongoing problems with server and email problems at capitaldefenseweekly.com. Execution Information
AprilThe following executions dares are considered serious:* May This week's edition is available online at http://capitaldefenseweekly/archives/020429.htm Coverage this week includes four cases of potential innocence in the appellate courts of Florida and Illinois. In three of the cases of potential innocence the state Supreme Court ordered a new trial ( Illinois v. Tenney and Garcia v. Florida ) or additional evidence to be heard ( Illinois v. Johnson ). In the fourth case, Swafford v. Florida , a bitterly divided Florida Supreme Court upholds conviction and a sentence of death despite a case of potential innocence that goes to the very marrow of Florida's death penalty scheme and the competency of that legal system in capital cases. The systemic problems highlighted by the dissent in Swafford v. Florida are "hot listed" this week. The stay granted in Abdur' Rahman v. Bell reported last week has become a certiorari grant. [ Petition for Certiorari ] The issue before the court is the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244. The Federal District court for the Southern District of New York dropped a bombshell on Thursday holding that the death penalty may no longer be permissible under the Eighth Amendment in light of the large number of innocence cases. The Federal Death Penalty Resource Counsel website should have the decision and/or motion sometime Friday morning (http://www.capdefnet.org/fdprc/contents/recent_dev/recent_developments.htm). Further briefing has been ordered and a final decision on the issue should be handed down sometime this summer. As if to punctuate the decision, across the East River from the Southern District, New York's third noncapital murder conviction, Hector Gonzalez , in as many months was reversed. Three more cases of probable innocence may, purportedly, result in exonerations in New York in the next few weeks thanks to the hard work of the Innocence Project , the legendary Legal Aid Society of New York , and lawyer turned talk show host Ron Kuby . In light of these developments the New York State Defenders Association 's Innocence section is the Focus of the week. Execution Information
April 18 Gerald Casey TXThe following executions dares are considered serious:* April 26 Alton Coleman OhioThis week's edition is available online at http://capitaldefenseweekly.com/archives/020422.htm In this double issue two cases are hot listed, Langley v. Louisiana and Kutzner v. Texas . Reinforcing the need for counsel to search diligently and to the "four corners" of a case, relief granted and indictment quashed in Langley v. Louisiana , on the basis of racial discrimination in the selection of a grand jury foreman. The Louisiana Supreme Court offers a brilliant precedent on how to construct claims of racial bias infecting a capital case. The Louisiana Crisis Assistance Center, who successfully argued for Langley, has a materials relating to the developments of grand jury claims available at http://www.lidb.com/Part%20K.htm . The Texas Court of Criminal Appeals in Kutzner v. Texas has denied a request for DNA testing. The Kutzner Court focuses the opinion on counsel's failure to show that the purpose of the request was for a reason other than "to unreasonably delay the execution of sentence or administration of justice." The Focus section is not presented this week as this is a double issue. Additionally, in the week that saw the Illinois Commission on Capital Punishment Report any other in depth examination of the death penalty would be fruitless. The report favors retention of the death penalty but noted: "The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death." The practical results, in the private words of one well known death penalty lawyer after reading the report has been noted as simply "This is the beginning of the end for capital punishment in the United States." In other news of the week, former death row inmate Ray Krone was released from prison on Monday in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years ago; Ray is the 100th person so released. The Supreme Court has granted a stay in Abdur Rahman on the issue of the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.[ Petition for Certiorari] Contact information for the weekly has changed, the new contact information is Karl Keys; Capital Defense Weekly; PO Box 504; Bloomsbury, NJ 08804-0504. Execution Information
AprilCurrently listed as "serious" are: AprilThis week's edition is available online at http://capitaldefenseweekly.com/archives/020415.htm
Breaking news from the Supreme Court this week, again, steals the headlines. The execution of Gary Leon Brown in Alabama has been stayed by the Court. The issue appears to be either related to Apprendi v. Arizona &/or Alabama's retention of the electric chair . This week's lead case is the Seventh Circuit's en banc opinion in Bracy v. Schomig . A split court holds the real possibility that the trial judge, who was subsequently convicted of fixing criminal cases, engaged in compensatory bias by fixing the punishment at death in this case. Evidence of guilty phase misconduct, however, was not held sufficient to require reversal. The Tennessee Court of Criminal Appeals in Tennessee v. Huskey addresses the issue of when a trial court may remove counsel in a capital case. Noting that other, less draconian remedies remain available to the trial court, the Court of Criminal Appeals reinstates lead counsel. "[R]emoval of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed." Three additional cases are listed as hot. In Booth-El v. Nuth , the Fourth Circuit has reversed a district court grant of relief as the district court erred in granting relief on the ground that the removal of intoxication as a statutory mitigating factor at his 1990 re-sentencing violated the Ex Post Facto Clause. A split Fifth Circuit panel in Mayo v. Cockrell , has held that for purposes of the Sixth Amendment a motion for new trial is not "critical stage" of prosecution. Finally, one of the most conservative jurists in the nation, Judge Luttig of the Fourth Circuit, concurring on the denial of rehearing en banc Harvey v. Horan , notes his belief that there is a constitutional right for inmate's to have access to DNA testing independent of habeas corpus proceedings. In other news of note, the first death sentence in over 150 years was returned this week in Michigan, with the return of a federal death sentence against Marvin Gabrion for the murder of 19-year-old Rachel Timmerman. The verdict, while notable, does not stand alone as the federal prosecutors are more aggressively seeking death sentences in abolitionist states most notably in New England and Michigan. In light of this verdict, Focus this week covers the use of the federal death penalty in states that have abolished capital punishment, Death isn't welcome here: evaluating the federal death penalty in the context of a state constitutional objection to capital punishment by Sean M. Morton. 64 Alb. L. Rev. 1133-1466 (2001). Elsewhere, the American
Bar Association formally launched their moratorium project's website.
Nationally, there are just under 2000 communities and organizations that
have called for moratoria, with such groups as People
of Faith Against the Death Penalty (North Carolina) and New
Yorkers Against the Death Penalty , aggressively seeking additional
communities and organizations.
Execution Information
AprilCurrently listed as "serious" are: April5 Gary Brown Alabama (stayed) 10 Paul Kreutzer Missouri10 Abu-Ali Abdur'Rahman Tennessee 10 Jose Santellan Sr. TexasThis week's edition is available online at http://capitaldefenseweekly.com/archives/020401.htm |
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