Mental retardation returns to center stage as a "Hot List" issue of the week. The Sixth Circuit in  Hill v. Anderson, has remanded an unexhausted mental retardation claim. In the process the panel sets out the procedures for a claim reaching it (and presumably other Courts of Appeal) when the issue of mental retardation has not previously been addressed. Additionally, two recent stays, Brian Davis (Texas) and Gregory Lott (Ohio) have been granted on the issue of mental retardation.

Three additional stay battles (the opinions, orders and briefs from which are not yet available) are also impacting hard this week.  The stay fight to save the life of Javier Medina in one of the most notable and broad reaching this year.  Mr. Medina's trial was held in violation of the Vienna Convention.  His contention as to his rights under the Convention fell on deaf ears despite considerable and weighty mitigation evidence found by his government that would readily support a sentence less than death.  Sandra Babcock, backed by the full force of the Mexican legal community & Amici governments spanning the globe, fought a hard fight that may well have won had the case not originated in Texas.  Following Mr. Medina's execution Mexico's President Vincente Fox canceled a high-profile business trip to Texas as well as an extended meeting with Mr. Bush scheduled for this month.  Whether the economic & political fall-out from Mr. Medina's execution will give those in Austin and Washington pause before they execute foreign nationals again in violation of the Vienna Convention remains to be seen.

In the other two cases stays were obtained, but in at least one of the cases subsequently vacated. In Missouri  Daniel Basile was executed following a 24 hour stay that flowed from a witness coming forward at the last minute that gave Mr. Basile an alibi that would have made it physically impossible to commit the murder. Finally, in the third set of stay litigation, Wallace Fugate has received a stay while the Georgia Supreme Court examined the claim that the state Pardons and Paroles Board had a conflict of interest as it held a clemency hearing for Fugate after asking the state Supreme Court to overturn a prior stay.

In what is a must read & listen for any lawyer (or judge) involved in death penalty litigation  "Deadly Decisions," (http://americanradioworks.org/index.html) offers a rare glimpse into capital deliberations.  The new documentary from American Radio Works, is now airing on public radio stations around the nation and is available on the Internet. The program, created by independent producer and veteran journalist Alan Berlow, explores court cases where death sentences were handed down, even though jurors were confused or racially biased.  In recent years, a sizable number of former jurors in capital cases have stepped forward to assert that they did not fully understand their responsibilities. Others have said they were confused by the instructions given to them by a judge or failed to understand basic concepts such as mitigation. In a handful of prominent cases, jurors have acknowledged sentencing defendants to death as an "insurance policy" because they were unaware that life without parole was an alternative.

Also available & new on the web is the materials developed in Georgia by Multi-County Public Defender relating to lethal injection.  The testimony of Dr. Daniel Rahn, President of the Medical College of Georgia, discussing the restrictions on doctors participating in executions is also included.  The exhibits contain records of executions, excerpts from protocols for lethal injection, and information on botched executions. View the Transcripts  & View the Exhibits

The Focus section will return the first week in September with that month offering a  Supreme Court preview, another visit to international law & an examination of clemency, not necessarily in that order.

Finally, a brief reminder, everything in the Weekly and at its parent site has been formally released into the public domain & may be used without attribution or prior permission.  I have two caveats. The first is anything reproduced here under the "fair use" exception can not, understandably, have its intellectual property rights waived by me. Second, the waiver doesn't apply if you are going to use the materials for commercial archival purposes.

Execution Information
Since the last edition the following have been executed:

August
     14   Javier Medina            Texas----for. natl.
     14   Daniel Basile              Missouri

           August
                13   Brian Davis                Texas   (mental retardation)
                14   Wallace Fugate         Georgia (due process in clemency process)
                19   Christa Gail Pike        Tennessee (withdraw of waiver of appeal)
                27   Gregory Lott              Ohio (mental retardation)

The following executions dates for  the next few weeks that are considered serious:*

August
      20   Gary Etheridge           Texas
     23   Anthony Green            South Carolina
     28   Toronto Patterson        Texas---juvenile

September
     10   Tony Walker             Texas
     17   Jessie Patrick             Texas
     18   Ronald Shamburger   Texas
     24   Rex Mays                  Texas
     25   Robert Buell              Ohio

In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment's ban on cruel and unusual punishments. See 122 S. Ct. at 2250. This holding applies retroactively; in Penry v. Lynaugh, when the question was last  [*6]  before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane's ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded "beyond the State's power." 492 U.S. 302, 330, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) (discussing Teague, 489 U.S. 288, 301-02, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989)). Although Atkins barred the execution of the mentally retarded, it did not set down a procedure for determining whether an individual is sufficiently retarded to escape execution, leaving it to the states to develop "appropriate ways to enforce the constitutional restrictions" on executing the mentally retarded, just as they developed new safeguards to prevent the execution of the insane following the Court's ruling in Ford v. Wainwright. Atkins, 122 S. Ct. at 2252 (citing Ford, 477 U.S. 399, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986)). In Atkins, Virginia contended that the petitioner was not retarded, so the Court remanded his case to state court.

The Supreme Court's decision to return Atkins's case to state courts suggests that we should return Hill's  [*7]  Eighth Amendment retardation claim to the state for further proceedings. Here, as in Atkins, the state of Ohio has not formally conceded that the petitioner is retarded. Though Ohio courts reviewing his case have concluded that Danny Hill is retarded, see, e.g., Hill, 595 N.E.2d at 901, and voluminous expert testimony supported this conclusion, J.A. at 3264-67, 3332-35, 3379-80, Hill's retardation claim has not been exhausted or conceded. Ohio should have the opportunity to develop its own procedures for determining whether a particular claimant is retarded and ineligible for death. We note that, when discussing retardation in Atkins, the Supreme Court cited with approval psychologists' and psychiatrists' "clinical definitions of mental retardation," and presumably expected that states will adhere to these clinically accepted definitions when evaluating an individual's claim to be retarded. See 122 S. Ct. at 2245 n.3, 2250-2251.

B. The mixed petition problem

Because Hill's Eighth Amendment mental retardation issue is raised for the first time in this federal habeas proceeding, and has not been raised in state court, it creates a so-called  [*8]  "mixed" petition. Under the Antiterrorism Act, we may not grant a petition containing unexhausted claims except in a narrow range of special circumstances, not present here, or unless the State explicitly waives the exhaustion requirement, which it has not done. See 28 U.S.C. § 2254(b).

We may deny a mixed petition on its merits, see id. § 2254(b)(2), but we will not do so here because the issue regarding the voluntariness of Hill's confession raises a serious question. "[A] confession cannot be used if it is involuntary." United States v. Macklin, 900 F.2d 948, 951 (6th Cir. 1990), cert. denied, 498 U.S. 840 (1990) (citing United States v. Washington, 431 U.S. 181, 186-87, 52 L. Ed. 2d 238, 97 S. Ct. 1814 (1977)). A confession is involuntary only if there is (1) police coercion or overreaching which (2) overbore the accused's will and (3) caused the confession. See Colorado v. Connelly, 479 U.S. 157, 165-66, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986); United States v. Brown, 66 F.3d 124, 126-27 (6th Cir. 1995) . When a suspect suffers from some mental incapacity,  [*9]  such as intoxication or retardation, and the incapacity is known to interrogating officers, a "lesser quantum of coercion" is necessary to call a confession into question. United States v. Sablotny, 21 F.3d 747, 751 (7th Cir. 1994); see also Nickel v. Hannigan, 97 F.3d 403, 410 (10th Cir. 1996).

According to the record, Hill first came to the attention of police when he inquired about a reward offered for information on Raymond Fife's death. Questioned twice, he consistently denied any involvement in the killing. Then his uncle was assigned to the case. After being brought to the station again and left alone with his uncle for a few minutes, Danny Hill made an abrupt about-face and confessed to involvement in the crime. In evaluating these events, Danny Hill's previous interactions with his uncle are important: twice before, when Hill was in police custody, his uncle struck him when he refused to talk. Even accepting his uncle's version of events, in which Detective Hill simply told Danny Hill he believed he was involved in the killing, this episode raises a serious question of coercion. That any officer had struck a suspect is troubling; of special  [*10]  concern here is that Danny Hill was struck by an officer who was also a close family member.

A suspect's "mental condition is surely relevant to an individual's susceptibility to police coercion." Colorado v. Connelly, 479 U.S. 157, 165, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). State courts, including the Ohio Supreme Court, have clearly stated that Hill is retarded. See Hill, 595 N.E.2d at 901. The retarded have, "by definition . . . diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Atkins, 122 S. Ct. at 2250. See also Morgan Cloud et al., Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 511-12 (2002) (noting that the retarded are "unusually susceptible to the perceived wishes of authority figures. . . ," have "a generalized desire to please . . . ," "are often unable to discern when they are in an adversarial situation . . . ," and "have difficulty distinguishing between  [*11]  the fact and the appearance of friendliness"); Welsh S. White, What is an Involuntary Confession Now?, 50 Rutgers L. Rev. 2001, 2044 (1998) (stating there is "ample support for [the] conclusion that mentally handicapped suspects are 'especially vulnerable to the pressures of accusatorial interrogation'." ).

In Zarvela v. Artuz, the Second Circuit faced a similar mixed petition problem. See 254 F.3d 374, 380 (2001), cert. denied, 122 S. Ct. 506 (2001). Crafting a solution consistent with the purposes of the Antiterrorism Act, the court remanded to the district court with instructions to dismiss the unexhausted claim and stay the exhausted claims, but conditioned the stay on the petitioner promptly seeking state remedies and, when the state remedies were exhausted, promptly returning to federal court. See id. at 381. Zarvela has been cited with approval by this Court. See Palmer v. Carlton, 276 F.3d 777, 778 (6th Cir. 2002).

Here we adopt Zarvela's approach and remand Hill's case to district court with instructions to dismiss his Atkins claim to be considered by state court and to  [*12]  stay his remaining claims pending exhaustion of state court remedies. To ensure that Hill does not draw out his state court proceedings, we instruct the district court to condition the stay on Hill's seeking relief from a state court on his Atkins claim within 90 days of the date the mandate issues from this Court.

The Court is in summer recess.

Cooper v. Moore, 2002 S.C. LEXIS 136 (SC 08/12/2002) Under state law a defendant who is on trial for a capital charge may make a statement to the jury on related noncapital charges and that  the defendant where was prejudiced by his attorneys' failure to inform him of his statutory right to make a guilt phase closing statement to the jury.

CAPITAL CASES (Unfavorable Disposition)
Ohio v. Cassano, 2002 Ohio LEXIS 1739 (Oh 08/7/2002) Relief denied on a panoply of arguments including: (1) self-representation; (2) admission of other acts evidence; (3) shackling; (4) striking of juror for cause where husband was a prison guard and the defendant was accused of killing a fellow inmate; (5) right to public trial during a defense requested closure; (6) the trial court erred in denying Cassano his right to attend the jury view; and (7) trial phase instructions on self defense.

Ohio v. Davie, 2002 Ohio LEXIS 1738 (Oh 08/7/2002) Relief denied on claims of appellate ineffectiveness.

New Jersey v. DiFrisco, 2002 N.J. LEXIS 1110 (NJ 08/14/2002) Relief denied on claims  DiFrisco was provided inadequate representation at his sentencing retrial by counsel that was devoid of capital experience and whose presentation of the case in mitigation was incoherent, ill-conceived, and scattershot, betraying the internal disagreements, disregard of mentors’ advice, incompetent investigation, and a lack of preparation that took place behind the scenes.
 

Robinson v. Moore, 2002 U.S. App. LEXIS 15902 (11th Cir 08/8/2002) Relief denied on Robinson's claim that his counsel failed to investigate and present available mitigation evidence.

Isaacs v. Head, 2002 U.S. App. LEXIS 15857 (11th Cir 08/6/2002) Isaacs loses on appeal with claims relating, most notably,  to: (1.)  the trial being opened with a prayer; (2) admission of statements made by Isaacs while in custody concerning two escape attempts violated his constitutional rights; and (3) by the presentation of evidence, argument and jury instructions concerning his lack of remorse.

United States v. Church, 2002 U.S. Dist. LEXIS 14328 (W.D. Va 08/5/2002) The accuse moved a transfer of  change of venue based on pretrial publicity in this case, as well as the publicity surrounding the recent trial of his co-defendant. Finding no presumed prejudice due to such publicity motion denied.

OTHER  NOTABLE  CASES
Miller v. Straub,  No. 00-2150/2163 (6th Cir 08/08/2002) Failure of defense counsel to inform defendants of prosecution's  right to appeal the imposition of juvenile sentences constituted denied effective assistance of counsel as the accused would otherwise likely have pled not guilty.

Sawyer v. Hofbauer, No. 99-2090, 01-1167 (6th Cir 08/09/2002) (dissent) Evidence of actual evidence (a semen stain on victim's underwear source other than defendant) requires an evidentiary hearing when coupled with a Brady claim.

Clement v. Gomez, No. 01-16088 (9th Cir 08/06/2002) Use of pepper spray by prison officials is entitled to qualified immunity for inmates' claims of excessive force, but  not to deliberate indifference to medical needs..

Gentry v. Roe,  No. 00-55691 (9th Cir 08/08/2002)  Right to counsel denied where trial counsel's chose to highlight detrimental record and non-record evidence closing argument & to ignore evidence in the record that would help his client.

Knight v. Jacobson,  No. 01-15506 (11th Cir 08/06/2002) As probable cause existed to believe plaintiff had committed a misdemeanor assault a mere violation of state arrest law cannot itself support a 42 U.S.C. section 1983 claim.

FOCUS

The Focus section will return the first week in September with that month offering a  Supreme Court preview, another visit to international law & an examination of clemency, not necessarily in that order.

     "Deadly Decisions," a new documentary from American RadioWorks, is now airing on public radio stations around the nation and is available on the Internet. The program, created by independent producer and veteran journalist Alan Berlow, explores court cases where death sentences were handed down, even though jurors were confused or racially biased.  In recent years, a sizable number of former jurors in capital cases have stepped forward to assert that they did not fully understand their responsibilities. Others have said they were confused by the instructions given to them by a judge or failed to understand basic concepts such as mitigation. In a handful of prominent cases, jurors have acknowledged sentencing defendants to death as an "insurance policy" because they were unaware that life without parole was an alternative. Learn more about Deadly Decisions and listen to the program. See also, DPIC's Audio and Video page.

Mexican President Cancels U.S. Trip to Protest Execution of Foreign National
    Mexican President Vincente Fox canceled a trip to Texas scheduled for late August to protest the state's August 14th execution of Mexican foreign national Javier Suarez Medina, whom Mexican officials say was denied his right to contact the Mexican consulate following his arrest. (See below.) "This decision is an unequivocal sign of our rejection of the execution of our citizen, Javier Suarez Medina . . . . Mexico is confident that the cancellation of this important presidential visit contributes to a strengthening of the respect by all states of the rule of international law," said the president's spokesman, Rodolfo Elizondo. Prior to the execution, Fox wrote a letter to Texas Governor Rick Perry calling on the state to halt the execution because the punishment violated the 1963 Vienna Convention on Consular Relations, which requires foreigners detained by authorities to be notified of their consular rights. Fox also spoke with President George W. Bush on the eve of the execution. The Texas trip would have taken Fox to four cities and to President Bush's Crawford ranch. (Dallas Morning News, August 15, 2002). See also, Foreign Nationals and International Death Penalty.

NEW VOICES: Rosalynn Carter Calls for Moratorium on Executions, End to Juvenile Death Penalty
    During an address at the American Bar Association's annual conference in Washington, DC, former first lady Rosalynn Carter called for a national moratorium on executions and condemned the death penalty as a violation of human rights. Carter commended Governors Parris Glendening of Maryland and George Ryan of Illinois for their state moratoriums on executions, and she offered her support to federal legislative proposals that would nationally suspend capital punishment and increase access to DNA testing in capital cases. During her remarks, Carter characterized the execution of juvenile offenders and the mentally ill as "an embarrassment to every American," and she noted that the Supreme Court's recent decision to ban the execution of those with mental retardation should also apply to these offenders. "The United States is the only country in the industrialized world that still executes anyone, and executing children puts us in the company of Somalia --- only Somalia," she said. (Atlanta Journal-Constitution, August 13, 2002). See also, Juveniles and the Death Penalty and New Voices.

Mexican Officials Claim Execution of Foreign National is Illegal
    Texas death row inmate Javier Suarez Medina, a condemned foreign national whom Mexican officials say was denied his right to contact the Mexican consulate following his arrest, was executed on August 14. In a letter sent to Texas Governor Rick Perry prior to the execution, Mexican President Vicente Fox called on the state to halt the execution, saying the punishment is "illegal" because it violates the 1963 Vienna Convention on Consular Relations, which requires foreigners detained by authorities to be notified of their consular rights. In his letter to Perry, President Fox stated, "As a consequence of this serious violation, Mr. Suarez Medina was not only deprived of the assistance of his country when he needed it, but the Mexican government was also prevented from providing the priority assistance that could have influenced the result of the trial." Following decisions to deny Suarez Media a hearing before the Texas appeals court and the state's board of pardons and paroles, attorneys for Suarez Medina filed petitions with the U.S. Supreme Court. The Court also received a second petition signed by an unprecedented 14 nations, including Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Panama, Paraguay, Poland, Spain, Uruguay and Venezuela. (Associated Press, August 12, 2002). See the Press Release from Suarez Medina's Legal Counsel. See also, Foreign Nationals.

$Citing High Costs, Ohio Judge Won't Allow Prosecutors to Seek Death Penalty
     Vinton County, Ohio, Judge Jeffrey L. Simmons ruled that prosecutors could not seek the death penalty against Gregory McKnight.  Simmons' ruling stated that the county could not guarantee that McKnight would receive an adequate defense in his capital trial.  "The court finds that the potential impact of financial considerations could compromise the defendant's due process rights in a capital murder case," said Simmons.  "The court finds that this risk is unacceptable in this case."  The cost of a death penalty trial for McKnight was expected to exceed $75,000 for legal fees, investigators, and witness travel.  (The Columbus Dispatch, August 9, 2002)  See also, Costs.

 NEW RESOURCE: "Death Row USA" Summer 2002
     NAACP Legal Defense & Education Fund's latest "Death Row USA" is now available on DPIC's Web site. The report states that as of July 1, 2002, the overall number of inmates on death rows across is 3,718.  Although this represents a small increase since LDF's April 1 report, the size of death row is still smaller than in LDF's report of January 1, 2001.  The report indicates that in 58% of the jurisdictions the number of death row inmates either decreased or remained the same since this time last year.  Additional statistics include:
  The jurisdictions with the greatest increase in size of death row since last July:
   California (+11)
   Georgia (+10)
   Delaware (+4)
   Louisiana (+4)
   Tennessee (+4)
 Jurisdictions with the highest percent of minorities on death row:
   U.S. Military (86%)
   Colorado (80%)
   U.S. Government (77%)
   Louisiana (72%)
   Pennsylvania (70%)

States with the highest number of juvenile offenders on death row:
   Texas (28)
   Alabama (14)
   Louisiana (6)
   Mississippi (6)

 NEW RESOURCE: Material Used in Challenge to Lethal Injection in Georgia
     The transcripts and exhibits used in a recent hearing challenging Georgia's use of lethal injection are available on DPIC's Web site.  The transcripts include the testimony of Georgia Department of Corrections staff, doctors and nurses who participate in executions.  The testimony of Dr. Daniel Rahn, President of the Medical College of Georgia, discussing the restrictions on doctors participating in executions is also included.  The exhibits contain records of executions, excerpts from protocols for lethal injection, and information on botched executions.  For more information, contact Michael Mears, Director, or Matthew Rubenstein, Senior Staff Attorney, at the Multi-County Public Defender at (800) 676-4432.

View the Transcripts
View the Exhibits

Note: both the transcripts and exhibits are in pdf format and are bookmarked for convenience.  (To access bookmarks, click the left arrow in the lower left hand side of the browser screen.)
     See also, the audio "Execution Tapes" recorded by the Georgia Department of Corrections, which narrate the executions of 22 inmates in the electric chair.

If you have found this e-zine useful you might want to visit: www.lidab.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender).  These other resources  have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).

SUBSCRIBING & ARCHIVES
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CITATION
This edition may be cited as:
Capital Defense Weekly, Volume V, Issue  29, http://capitaldefenseweekly.com/archives/020812.htm

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CONTACT INFORMATION
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Karl Keys
Capital Defense Weekly
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karl@capitaldefenseweekly.com