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Archives Overview for June 2002
through September 2002
Leading off the list this week is another access to DNA testing case from Texas, Dinkins v. Texas . In Dinkins the Court of Criminal Appeals has denied, yet again, another DNA request basing its decision on counsel's putative inartful pleading as the basis of the denial of testing. The Eleventh Circuit in Brownlee v. Haley has granted penalty phase relief to an Alabama death row inmate. Of note in the Brownlee decision is that the basis of the grant was on trial counsel's ineffectiveness in front of the penalty phase jury. "[T]he jury was asked to decide Virgil Brownlee's fate without hearing anything about his borderline mental retardation, his schizotypal personality disorder, his antisocial personality disorder, his many drug and alcohol dependencies, or his history of seizures." Finally, the Court notes that the ineffectiveness was prejudicial even though juries in Alabama make only an advisory opinion to the trial court and do not render a sentence. The Third Circuit in Marshall v. Hendricks has remanded the case that many court observers thought would lead New Jersey's first execution in forty years. The Marshall panel holds, most notably, that the reasonableness of the state's ineffective assistance of counsel analysis can not be discerned due to the lack of an evidentiary hearing. In the last of the "Hot List" cases, the Ninth Circuit a split en banc court in Valerio v. Bayer examines the issue of appellate fact finding in jury trials. The Valerio Court holds that when the penalty phase fact finder is a jury and not a judge such appellate fact-finding to cure an error caused by an unconstitutionally vague jury instruction is impermissible. In other cases of note this week, the Arkansas Supreme Court has offered a spate of favorable orders -- Howell v. Arkansas ("complete record"), Echols v. Arkansas (stay of appellate proceedings) & Newman v. Arkansas , (waiver of direct appeal) -- that may be of some interest to those who handle direct appeals. The Florida Supreme Court in Sheppard & White v. City of Jacksonville weighs in on attorney compensation in capital cases with plenty of very helpful language about payment that can readily find its way into motions and/or briefs. The Ninth Circuit in Williams v. Woodford , has denied Nobel Prize nominee "Tookie" Williams relief, but takes a highly unusual step in stopping just short of outright calling for Tookie's pardon. In other news, the impact of Ring v. Arizona continues to be felt, with Ring having called into question about 1/3rd of all the death penalty statutes in the country. Delaware has reportedly, as of last Friday, stayed all capital trials in the state pending a determination of that state's statute under Ring. New Jersey, likewise, has reportedly stayed all capital prosecutions in that state pending the state supreme court's determination of whether Ring requires the grand jury's indictment to contain all aggravating circumstances -- note, however, that the stay in at least one capital prosecution has been lifted, the trial Thomas Koskovitch, but that may be due to pending retirement of the trial judge in that case. The Death Penalty Information Center, is intensely tracking these developments, http://www.deathpenaltyinfo.org/Ring.html, Finally, this coming Tuesday Rex Mays is scheduled to be the 800th person executed since the resumption of the death penalty in this country. It was twenty years from the execution of Gary Gilmore to Flint Hunt, who was number 400. It has been just five years from Mr. Hunt to Mr. Mays. Execution Information SeptemberThe following executions dates for the next few weeks that are considered serious:* SeptemberAvailable at http://capitaldefenseweekly.com/archives/020916.htm In the first of these case, Murphy v. Oklahoma , examines the question of how to apply the United States Supreme Court's opinion in Atkins v. Virginia. The Murphy Court adopts a standard of an IQ 70 with several other attendant factors. As the Oklahoma Court of Criminal Appeals decision is among the first in the nation to adopt a standard for such claims both at trial and in cases in which a sentence of of death has been imposed it earns the hot designator. The Mississippi Supreme Court in Puckett v Mississippi examines the issue of filing petitions for state post-conviction review. The Puckett Court has permitted the filing of a post-conviction motion outside the normal time and gives a good analysis as to why. In one other case of note this week, the Texas Court of Criminal Appeals on Wednesday, Texas v. Patrick , as it has been want to do, greatly increased the chance of executing the innocent in that state. The Patrick Court has held that the state's DNA testing law was inappropriately used to grant a death row inmate such testing & that mandamus should issue as to the order. The practical effect of the mandamus is to further limit the system's safety valves for protecting the innocent. Mr. Patrick will, save some extraordinary intervention, be executed early next week. A correction is also noted this week. The last edition ran a seriously flawed analysis of Knese v. Missouri . A major thank you to the small phalanx of Missouri attorneys who spotted the error. That case should have read: Knese v. Missouri , 2002 Mo. LEXIS 89 (Mo 8/27/2002) Knese's trial counsel was ineffective in failing to question, during voir dire, two of the eventual jurors about questionnaire responses suggesting they automatically would vote to impose death after a murder conviction. The attorney admitted he should have struck these jurors for cause, and his failure to do so was the most egregious mistake he ever has made in trying a case. This complete failure in jury selection affected the penalty phase only, as nothing in the questionnaires indicated either of these jurors was predisposed to vote for guilt or innocence automatically. The penalty phase of the trial is reversed accordingly, and the case is remanded.As CLE information on upcoming courses comes in it will be placed in a new column at the end of the weekly labeled, surprisingly enough "CLEs." Kicking off the columns is October's mental health training in Atlanta being offered by HAT and the Administrative Office of the Courts. Execution Information SeptemberThe following executions dates for the next few weeks that are considered serious:* SeptemberAvailable at http://capitaldefenseweekly.com/archives/020909.htm
In Missouri v. Baumruk , the Missouri Supreme Court held that a change of venue is necessary where there is a pattern of deep and bitter prejudice or a wave of public passion that makes impossible the seating of an impartial jury. In this case the passage of time did not diminish the memories of fact that most people in Baumruk's prospective jury pool recalled hearing about the shooting in the same courthouse and environment where the trial occurred. Baumruk must be tried in a venue other than where those shootings occurred. Additionally, an earlier finding of incompetency did not preclude a subsequent finding that he had regained competency, but since competency is judged at the time of trial it may again be an issue on remand. United States v. Church makes the list not for its legal opinion but for its political impact. District Court Judge James Jones of the Western District of Virginia seemingly answers the question posed by this summer's earlier holding by another district court judge that the federal death penalty is unconstitutional. Judge Jones stops just short of calling Judge Ratkoff's earlier opinion striking the federal death penalty a dangerous usurpation of the prerogatives of the elected parts of the government. Four other capital cases also note positive results. In Arizona v. Prion the state supreme court reverses for failure to admit evidence of third party liability. In Scott v. Mullin , the Tenth Circuit has granted relief on the grounds of a Brady violation. The Ninth Circuit in Beatty v. Stewart has ordered an evidentiary hearing as to the voluntariness of Beatty's confession. Finally, the Missouri Supreme Court has ordered a new penalty phase hearing in Missouri v. Thompson due to confusion centered around the polling of the jury that seemed to indicate that it was unanimous in its vote for life. In other news of the week, three United States Supreme Court Justices noted in very brief dissents ( Stevens , Ginsburg & Breyer ) that they believe the time has come to review the constitutionality of juvenile executions. The Death Penalty Information Center this week also notes that (see the Other Resources section below) a disturbing trend in the dramatically lower rates that the death penalty is sought for Latino victims of murder versus those of non-Hispanics victims. Finally, the Washington Death Penalty Assistance
Center is putting on a two-day tuition free seminar entitled, "Mental Health
Issues in Capital Litigation" on September 12 - 13 at the Madison Hotel 515
Madison Avenue. Seattle, WA 98104. The topics will include: Malingering,
Mental Health Mitigation, Post-Traumatic Stress Disorder, Forensic Psychology,
Future Dangerousness, Mental Retardation, and Neuropsychological Testing.
For more information or to register by email, contact Mark A. Larranaga at
206.447.3900 ext. 774 or malarranaga@msn.com or Mark Cook at 206.447.3900
ext. 630 or cook@defender.org Execution Information AugustThe following executions dates for the next few weeks that are considered serious:* SeptemberFull edition available at http://capitaldefenseweekly.com/archives/020826.htm The Eighth Circuit's decision in Simmons v. Luebbers is the week's lone hot listed case. The decision in Simmons earns the distinction for its demonstration of the potential pitfalls of certain types of mitigation. The panel in the end grants relief concluding that trial counsel failure to investigate and present even the bare bone basics of mitigation, such as evidence of a trouble childhood, constitutes ineffective assistance of counsel. Two other cases are also of note this week althoug neither are covered at great length. The Fourth Circuit in Kasi v. Angelone has denied relief for yet another death row inmate who claimed to be held in contravention of an international treaty, this time an Extradition with a American ally in the war on terror. The other notable case is in the arena of civil rights, the Ninth Circuit in Watson v. County of Riverside has held that for purposes of § 1988 a party may be considered prevailing if they win a preliminary injunction even if no other relief sought in the lawsuit is granted. Finally, just a quick note to report on one of my favorite non-profits, as well as a favorite of many others on the list, the Engaged Zen Foundation. Kobutsu Malone reports that as of yesterday he's down to about $50.00 and that the bills are (as usual) mounting. EZF is a buddhist human rights resource for American prisoners, with a special emphasis for those on death row.. EZF, like many others organizations that work for the public good, runs from day to day on dedication and commitment, and every once in a while, it needs a real infusion of money. If you have a chance moment to stop at the EZF web site http://www.engaged-zen.org/. Execution Information
AugustThe following executions dates for the next few weeks that are considered serious:* AugustAvailable at http://capitaldefenseweekly.com/archives/020819.htm 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 & A mici 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
AugustRecent stays include:
August The following executions dates for the next few weeks that are considered serious:* AugustAvailable at http://capitaldefenseweekly.com/archives/020812.htm The Alabama Supreme Court in Ex parte Taurus Carroll has sidestepped the issue of whether Ring invalidates that state's capital sentencing scheme to hold that the trial court's override to death was improper. Decisive factors in the decision to reverse were Carroll's age at the time of the offense, his lack of a significant criminal history, and the recommendation of the victim's family that he be sentenced to life imprisonment without parole. The jury's recommendation was 10-2. The Fifth Circuit in Janecka v. Cockrell , denied relief on several claims of note. One of these claims related to how far the compulsory process clause of the Sixth Amendment extends. The panel holds that the state may execute a defense witness without falling afoul of the Sixth Amendment. Similarly, on this appeal from retrial, the panel holds that the use of the former prosecutor (now a judge) as a victim impact witness was not error. In the final spotlighted case of the week, Sample v. Tennessee , a remand is ordered as Brady evidence was properly before the post-conviction trial court. The Sample Court holds that precedent does not mandate "dismissal of all late-arising suppression of exculpatory evidence claims, and that the record in this case preponderates against the trial court's determination that the petitioner's liberty interest in raising such an issue was outweighed by the State's interest in finality." The Focus section will return soon. Available at http://capitaldefenseweekly.com/archives/020805.htm
Four cases are listed as hot this week. Three cases are "wins" but all four deal with simple, gutsy lawyering & old fashion sweat. The first of the four cases is California v. Cash . Cash deals with how much leeway trial counsel should be allowed in examining potential jurors for penalty phase bias. The trial court erred, the state supreme court holds, when it limited the defense's questioning to establish a "for cause" basis for removing potential jurors for bias. In Sofar v. Cockrell the Fifth Circuit sitting en banc has reversed a panel's grant of relief. The question before the Court was whether Sofar's numerous specific questions concerning the right to counsel constituted an assertion of that right. Additionally, the majority addressed whether misleading statements made by the interrogating officers rendered any statement invalid. The New Jersey Supreme Court in New Jersey v. Nelson has granted relief. The instructions given by the trial court are not erroneous per se, the ambiguous wording, coupled with the jury's confused response and the failure of the trial court to obtain clarification, renders the death verdict unreliable. Additionally, the prosecutor erroneously implied at several points during summation that the testimony of the defense experts was contrived because they were “partisan” and had an “agenda,” while the testimony of the State’s expert was above reproach. In Connecticut v. Sostre the state Supreme Court substantially narrowed one of that state's aggravating circumstance. The Sostre Court holds that the aggravating circumstance relating to ''consideration,'' ''receipt'' and ''expectation'' of "pecuniary value" covers contract murder but not robbery. In other news, Larry Osborne has become the latest exonerated former death row inmate. Mr. Osborne is the 102nd person so released in the modern era and the fourth person released this year. Highlighting the dangers of juvenile facing capital punishment, Mr. Osborne was just 17 at the time of his arrest. Congratulations to Gail Robinson & the lawyers of the Department of Public Advocacy for this hard fought win. The Focus section is on vacation and will return next week. Execution Information
JulyThe following executions dates for this summer are considered serious:* AugustAvailable at http://capitaldefenseweekly.com/archives/020729.htm Three cases lead off this week on the "Hot List." The first of these is Cannon v. Mullin. In Cannon the Tenth Circuit examines Ring v. Arizona in the context of a successive petition filed under warrant. The Cannon panel concludes in this stay proceeding to side step the substantive issue of whether Oklahoma's death penalty statute does or does not meet Ring. The panel instead dismisses the petition by addressing the gateway procedural holding that Ring does not meet the threshold requirements, in pertinent part, for 28 USC § 2244's successive petition requirements until the US Supreme Court holds that Ring is retroactively applicable. Stay denied. In Tennessee v. Torres that state's Supreme Court examines instructions to deadlocked juries in the penalty phase. The Torres Court concludes that the trial court erred by giving a coercive jury instruction in an attempt to break the deadlock rather than accepting the jury's report of a deadlock. On remand the jury can only chose between LWOP and life with the possibility of parole. The South Carolina Supreme Court in South Carolina v. Stone grants relief on penalty phase jury instructions. The Court holds that trial court should have instructed the jury properly that life means "life without the possibility of parole." The instruction by by the trial court that "[u]nder our law life imprisonment means that a person will be– will serve the balance of his life in prison, okay?” was deemed insufficient. In other news, Richard I. Targow, a California appellate attorney has written a stunningly insightful article in the Recorder that notes Ring v. Arizona apparently calls into question portions of California's death penalty statute that permits juries to return a death verdict as long as all jurors agree that at least one aggravator is present even if the jurors don't all agree on the same aggravator. For other sources on Ring see the Moussaoui electronic docket sheet -- which include numerous well argued federal death penalty and federal criminal practice memos, particularly the Standby Counsel's Supplemental Motions To Dismiss Notice of Intent to Seek Penalty of Death ( July 10th ) & ( July 25th ) -- and the Amos King website which has all the briefs for King & amici filed in the Florida Supreme Court. Both the Amos King website & the Moussaoui electronic docket are updated daily and are invaluable resources due in no small measure to the exceptionally talented lawyering in both cases. The Second of Moussaoui's standby counsel's Supplemental Motions is the "Focus" of the week. Please note, several states' Departments of Corrections have sought to have inmate IQ testing done on all death row inmates in order to blunt any potential Atkins/mental retardation claims before they are filed. A special happy birthday and a job well done to Michael Mears and the Multi-County Public Defender Office which completes ten years of service this month. The office serves as a shining example of what indigent defense not only can be, but should be. The Multi-County Public Defender Office was created in 1992 to provide assistance in death penalty cases by: (1) providing training and assistance to attorneys who have been appointed to defend defendants charged with a capital offense; (2) serving as co-counsel to assist local appointed lead counsel in the trial and direct appeal of cases involving defendants facing the death penalty; (3) accepting appointments to provide direct representation as lead counsel in death penalty cases based upon the circumstances of each individual case. For the period of time from July 1992 through July 1, 2002, the staff of the Multi-County Public Defender Office has assisted in resolving more than 225 death penalty cases through negotiated plea agreements. Execution Information
JulyThe following executions dates for this summer are considered serious:* JulyAvailable at http://capitaldefenseweekly.com/archives/020722.htm
"Focus" this week looks at the law of penology. The highlights and, more often the lowlights, of prison law is something most experienced criminal attorneys have faced, and in the area of capital defense necessary to help stave off "volunteers" and to deal with a cacophony of voices calling for ever more kafkaesque and draconian approaches to treatment of the incarcerated and condemned. As an overview that combines the law of prison with the under girding theories of that field of practice, excerpts from James E. Robertson's "The jurisprudence of the PLRA: inmates as "outsiders" and the countermajoritarian difficulty" from The Journal of Criminal Law & Criminology, Vol. 92, Number 2, Winter 2002 are this week's "Focus." Making the Case for Life V will be held from 8 a.m. Friday, September 27, 2002, through noon, Sunday, September 29, 2002, at the Sheraton Capital Center Hotel in Raleigh, North Carolina. The primary focus of this CLE program is the investigation, development, and presentation of penalty phase mitigation evidence in capital cases, particularly in such areas as mental illness, physical and psychological trauma, substance abuse, learning disabilities, and mental retardation. Certain presentations will target mitigation investigators. Faculty will also address interviewing skills, document gathering, plea negotiations, victim impact considerations, ethical issues, as well as conduct in-depth discussions of the science of capital jury selection. A portion of the program will be two-tiered to allow appropriate training for newer and more experienced lawyers as well as mitigation investigators. The faculty for Making the Case for Life annually brings together many of the top capital defenders, experts, and mitigation investigators. Faculty this year is a truly all-star line-up including: Richard Burr, Scharlette Holdman, Russell Stetler, Mary Ann Tally, Kevin McNally, and many others in Raleigh. . The Registration fee is $185 for attorneys ($145 for all others) with CLE credit available. Please contact Chris Adams, cadams@schr.org or 404-688-1202, to confirm registration, request special accommodations, and for the cancellation policy. In other news of note, Mississippi, despite the rather heroic work of counsel to stave off, in retrospect, the inevitable, executed Tracy Hansen this week; it was the first execution at Parchman since the eighties. In the four judicial override states (Alabama, Delaware, Florida, & Nebraska) the various state supreme courts have asked for, or already received, briefing on the impact if Ring v. Arizona with executions in each of those four states either formally or informally being put on hold until the issue of whether override survived Ring is decided. In Washington D.C. the Judiciary Committee Thursday voted out of committee the Innocence Protection Act. In Phoenix the ACLU has filed suit on behalf of Stop Prisoner Rape , Citizens United for Alternatives to the Death Penalty , and The Canadian Coalition Against the Death Penalty : to enjoin Arizona's "gag rule" on inmates (especially death row inmates) using the internet to publicize their cases and plight. Also his week saw the release of the long anticipated report from the National Coalition to Abolish the Death Penalty concerning lethal injection and pharmaceutical companies, "Drug Companies and Their Role in Aiding Executions ." Finally, this year's so-called executioner's ball is scheduled to begin in Las Vegas starting July 24, 2002 and will feature, most notably, Cynthia Rapp from the United States Supreme Court's Clerk's Office discussing how to prosecutor can more effectively deal with her office and the Court. Execution
Information JulyRecently scheduled serious dates that have been stayed : JulyThe following executions dates for this summer are considered serious:* July
This combination issue is packed with more cases granting relief or a favorable result than any prior issue with eighteen cases noting either an out right reversal, remand or some other kind of positive relief. The Supreme Court left
town with an unusually heavy end of the year fury. In the second landmark
death penalty decision of the term, the Court in
Ring v. Arizona
held, at the risk of over simplification, that juries and not judges must
decide who lives and who In news from the lower courts, the decision by Judge Rakoff of the Southern District of New York holding that the federal death penalty violates the United States constitution due to the grave risk of killing the innocent makes the hot list. The South Carolina Supreme Court's decision in South Carolina v. Burkhart also makes the hot list due to its excellent analysis of when a defendant is entitled to a self defense instruction and the prosecution's burden of proof when it is given. Two additional notable grants of relief, not included on this week's hot list include Beltran v. Cockrell, (5th Cir) (IAC on "defense counsel's unreasonable strategic decisions and investigative failures" and Williams v. True (4th Cir) (juror bias & prosecutorial misconduct). Several notable stays have been had since last issue. Punctuating the need to never stop investigating a case, counsel for Jose Briseno (Dick Burr & Mandy Welch) won a stay after they found a prison record that indicated, unbeknownst to anyone involved in the case, that Mr. Briseno had tested below the threshold for mental retardation (no opinion is yet available). In Florida Linroy Bottoson and Amos King won very hard fought stays (Bottoson had already had his "last meal") in the Florida Supreme Court on the question of whether Ring applies to the Florida sentencing scheme -- the United States Supreme Court refused to lift the stay (the Florida Supreme Court opinion is not yet available). In Texas, Gary Etheridge received a stay on claims that the judge who had set the execution date should have recused himself based on prior statements he had made about Mr. Etheridge; a new judge has sent an execution date of August 20, 2002. In other news, the European Union has earmarked approximately 7 million dollars in grants for work against the death penalty both here in the states and around the world. Grants are available for between $300,000 and $1.5 million. There are many stipulations and the process appears from those who have looked at it seems VERY involved. And the application deadline is July 29. The URL is http://europa.eu.int/comm/europeaid/projects/eidhr/cfp_en.htm. Next week's edition may not run due to a very tight filing deadline. Execution
Information JuneRecently scheduled serious dates that have been stayed : JuneThe following executions dates for this summer are considered serious:* July Available at http://capitaldefenseweekly.com/archives/020708.htm |
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