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http://capitaldefenseweekly.com/archives/021223.htm Two Texas cases lead off this edition, one capital and one non-capital. In the first of the pair, Herrin v. Texas, the Texas Court of Criminal Appeals holds the "evidence legally insufficient to support appellant's conviction for capital murder based on the aggravating elements of kidnapping and robbery." In the noncapital case, Ex Pate Tuley, the Texas Court of Criminal Appeals favorably examines free standing constitutional claims of actual innocence following Herrera. Nine capital cases, several of which in a normal week would have been extensively highlighted, are also noted as wins covering: proportionality (North Carolina v. Kemmerlin), jury instructions penalty phase (North Carolina v. Berry), jury instructions guilt phase (North Carolina v Millsaps), ineffective assistance of counsel on jury instructions (Pirtle v. Morgan, ), penalty phase mitigation (Hooper v. Mulin), DNA testing (Illinois v. Kliner), Brady (Illinois v. Harris), Ring (Johnson v. Nevada), and sufficiency of evidence relating to aggravating circumstances (Leslie v. McDaniel). Additionally, two noncapital cases are noted of import, Schultz v. Page (relief granted on Ake ground with good habeas language) and Catalan v. Cockrell (failure to ask for a continuance held reversible error). In the Focus section this week is Oregon Law Review's current edition Wayne Morse Center for Law and Politics Symposium: The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform? The out takes from that edition, in light of the current issues of race and politics in the national political forum, is Black Man's Burden: Race and the Death Penalty in America? by Professor Charles J. Ogletree, Jr., 81 Or. L. Rev. 15. EXECUTION INFORMATION
January
http://capitaldefenseweekly.com/archives/021216.htm This week's edition notes two "hot" cases and several additional victories. The first case is from the Tenth Circuit, Ellis v. Mullin. Ellis was diagnosed pre-trial as suffering schizophrenia. The trial court excluded this critical evidence. Despite the deference of the AEDPA and the usual reluctance to examine evidentiary issues such as this on habeas, the panel concluded that under Chambers v. Mississippi the trial court improperly excluded Ellis's insanity. In a very facts intensive decision, the Florida Supreme Court grants relief in Florida v. Lewis. Trial counsel, with over 40 years experience including some capital work, held ineffective. Counsel, despite this experience, belatedly started the search for mitigating evidence in part because the defendant did not want to put on mitigation evidence in the penalty phase. Regardless of the client's wishes, the Lewis Court holds, Counsel has an independent obligation to investigate mitigating evidence. Elsewhere, the Ohio Supreme Court in Ohio v. Lott has ordered a hearing on the issue of mental retardation (State v. Lott set that state's standard for mental retardation in post-conviction). In Roberts v. Florida, the Florida Supreme Court has remanded for an evidentiary hearing on Brady issues. The past summer's shocking finding that the federal death penalty was unconstitutional has been reversed by the Second Circuit in United States v. Quinones. In the Focus section this week is the Death Penalty Information Center's year end report. In a year that brought us Ring and Atkins, also brought a slight up-tick in the number of executions (71). The introduction to report, including some of the highlights and lowlights of the year, are noted below. EXECUTION INFORMATION
January, 2003 In this tech plagued edition covering case from the first week in December no cases are noted as hot. The Supreme Court has dismissed the the certiorari grant in Rahman v. Bell,. The dissent by Justice Stevens notes that the interplay of Rule 60(b) and habeas corpus proved to complex for the justices. Temporary "work arounds" are being used for some of the technical that, in addition to the scheduling issues, have kept the weekly from running the last few weeks. In theory the "work arounds" should work until permanent solutions are found. Scheduling should return to normal during the week of December 16. Due to the tech glitches, Focus will run next week. EXECUTION INFORMATION
6 Ernest Basden North CarolinaThe following executions dates for the next few weeks that are considered serious:* December This delayed edition covers no less than seven favorable capital case decisions w from jury selection through closing arguments by counsel, and just about everything in between. A quick run down of the winning cases includes:
2) Depew v. Anderson, (6th Cir) Prosecution's closing improperly commented on jury's ability to consider mitigators; 3) Azania v. Indiana, (Indiana) Computer glitch lead to systemic under representation of persons of color in jury pools; 4) North Carolina v. Barden, (North Carolina) Remand ordered for a Batson hearing; 5) Pennsylvania v. Saranchak, (Pennsylvania) Appellant's waiver of post-conviction appeal permitted to be withdrawn; 6) South Carolina v. Shafer, (South Carolina) " better practice is for trial judges to give the capital sentencing jury a parole ineligibility charge whether it is requested or not;" and 7) Turner v. Alabama, 2002 Ala. Crim. App. LEXIS 245 (Ala. Crim. App. 11/22/2002) Defendant improperly found liable for both murder during robbery and rape and the lesser included offenses of robbery and rape, as well as errors in the trial courts findings as to aggravators and mitigators. The "Focus" this week, however, is not on prosecutorial misconduct but the tragically sad state of Texas capital representation. This week Texas Defender Service's landmark, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeal was released. The executive summary is reprinted (without permission) below. TDS dedicated staff, along with a small core of truly exceptional attorneys such as Dick Burr and Mandy Welsh, and activists like Rick Halperin, (amongst countless other activists and attorneys), Lethal Indifference teaches, can't save everyone and shows what happens too often when they don't get involved due to their lack of resourcing and the overwhelming need in the western world's most lethal criminal justice system Finally a brief note on why the Weekly hasn't been running regularly recently. As some of you know, I have agreed to assist in the pro bono representation of death sentenced inmate by ghost writing the direct appeal on top of my already hectic schedule. In recent weeks I have been frantically been trying to put together that appeal, as well as maintain my normal business schedule and run the "ICLE" gauntlet for New Jersey recent admittees (30 credit hours over 5 five weeks with 30+ hours of "homework" that is not waiveable regardless of the numbers of years one has been practicing elsewhere). In short, it was a bad convergence of timing unlikely to repeat itself anytime soon. My apologies for any inconvenience, and I look forward to returning the weekly and the related website to its traditional format. Thank you for your patience as it will take a few weeks to get back on course. EXECUTION INFORMATION
11/19 Craig Ogan TX Lethal InjectionStays have been granted in the following cases: 12/2 Amos King (Gubernatorial stay granted for DNA testing) The following executions dates for the next few weeks that are considered serious:* December
Updated 11/15/2002 This edition can be located at: http://capitaldefenseweekly.com/archives/021111.htm In this Edition, which spans several weeks worth of opinions, the number of truly "Hot" decisions is overwhelming. As a sample token of this slew of opinions just one opinion has been chosen for the "Hot List." Esparza v. Mitchell, makes the "Hot List" this week not for the actual holding of the case (death sentence volitive of Furman v. Georgia in failing to properly narrow), but rather for how the Sixth Circuit panel reached that decision. As if prescient of the coming lurch rightward in the federal judiciary, the Esparza Court demonstrates how the opinions of some of the most conservative Supreme Court justices can be, if carefully sculpted, used to great effect. The United States Supreme Court in Woodford v. Visciotti examines the deference by the court below to the California Supreme Court's "prejudice" prong of Strickland; as so often happens with the opinions from the Ninth Circuit, the Visciotti Court reverses. In other United States Supreme Court news, the Court has granted a stay on the issue of whether and how competency to be executed can be brought in a successive habeas in Colburn v. Cockrell. The Court also directed additional briefing in Abdur Rahman v. Bell on an issue related to the confluence of successive habeas and traditional civil practice. Several additional holdings that would normally be on the "Hot List" should also be noted: (1) Bell v. Florida: Reduction to life on sentence due to age of offender; Due to an editorial error during the last edition there was some confusion as to the wording of the Supreme Court's action in In re Stanford. The Court was reviewing an original petition not a certiorari petition, my apologies for any confusion. The "Focus" section will return in the next edition. Finally, my apologies for any inconvenience caused by the irregular schedule over the last two months; as every litigator knows, your sheudle is not always your own to determine. Next week there will not be an edition however, thereafter, through the end of the year the weekly should actually run weekly. EXECUTION INFORMATION
November:Stays have been granted in the following cases: The following executions dates for the next few weeks that are considered serious:* November: (http://capitaldefenseweekly.com/archives/021014.htm) Two cases of note make the Hot List this week. The first is the Supreme Court's refusing to hear In re Stanford addressing the issue of killing juvenile offenders. The other case is Illinois v. Brown, examining "life qualifying" during voir dire. The Court in In re Stanford appears to dodge, at least for now, the issue of juvenile executions in refusing to hear Stanford's original action. Four Justices, led by Justice Stevens in a blistering dissent, note that the Court is throwing the issue back to the states where the issue will continue to be fought in state houses, state supreme courts and governor mansions around the country for years to come. In re Stanford also highlights that while four votes are normally enough to grant cert recent Supreme Court practice in capital cases five votes appear to now be needed for cert. In re Stanford is important for another reason, it strongly suggests that the question is no longer if the juvenile death penalty will be ended, it is a question of when it will be ended; unfortunately for Stanford he may well be dead when it happens. An online petition that will be submitted to Governor Patton in consideration for Kevin Stanford can be found at www.petitiononline.com/clemency/petition.html. [Note: the use of online petitions and other methods to garner support for clemency will be examined in an upcoming edition.] The second case, Illinois v. Brown, deals with the continuing issue of voir dire and how much is enough in a capital case. The Illinois Supreme Court in Brown defines how little is too little. Here "the trial court's questioning was not sufficient to discover the beliefs and opinions of prospective jurors and did not allow for the removal of those prospective jurors who would automatically vote for the death penalty in every case." The issue of how to deal with Atkins v. Virginia is also ongoing and noted this week. Two decisions this week, Illinois v. Pulliam and Bell v. Cockrell, deal with mental retardation remands. In focus this week deals with this issue by posting a recent winning motion in New Mexico v. Ruben Flores. The United States Supreme Court has also jousted on a cert denial on
the issue of the so-called "death row" phenomenon in Foster v. Florida.
In Foster the issue is whether the a 27 year stay on death row prior to
third trial. Denying cert Justices Thomas and Breyer (perhaps illustrating
why five justices are now required for cert) clash on the issue.
Justice Thomas noting that Foster is free to end any putative injury by
dropping his appeals offers a quite skeptical eye to the claim; Justice
Thomas's acid tongued barb was not joined by any other justice.
Likewise, Justice Breyer's opinion was not joined by any other justice.
Execution Information
November (http://capitaldefenseweekly.com/archives/021014.htm) Two cases makes the hot list this week, Murray v. Florida and In-re Sterling-Suarez. In Murray v. Florida the Florida Supreme Court offers an excellent reminder that DNA isn't always admissible and how to challenge that evidence. In Murray the DNA testing procedures were sufficiently flawed to be inadmissible under Frye. Additionally, the jury was never permitted to hear testimony of possible evidence tampering. Singularly, and in combination, the trial court's errors require reversal. The First Circuit's decision in In-re Sterling-Suarez, following on the heels of United States v. Quinones and United States v. Fell, levels yet another blow to the Department of Justice's unbridled pursuit of the death penalty. The United States Attorney in Sterling-Suarez sought to deny the accused "learned counsel" with the meaning of 18 U.S.C. § 3005 until the the Attorney General determined the government would seek death. Reviewing a broad swath of death penalty appointment cases in the federal system, the panel concludes that heightened standards of § 3005 are applicable "until it becomes clear that the death penalty is no longer an option." In the Focus section this week is the final report of the Illinois Commission on Capital Punishment (the "Ryan Commission"). As clemency hearings are ongoing in Illinois due to the failed scheme of capital punishment there, the Focus section examines a broad cross-comparison of death penalty jurisdictions (Florida, New Jersey, New York, Pennsylvania, & the federal system) to the Ryan Commission's findings. The initial results are that few states meet even 1 in 5 of the recommendations, while many, such as Florida and Pennsylvania, meet less than 1 in 8 if not 1 in 10. A word of caution, the work on these jurisdictions is very rough at this point, however as final draft may be so delayed as to be potentially untimely I am running it now. A master cross-indexof the Ryan Commissions findings available on the net, from these jurisdictions others added (both from the Weekly and by others) wiill be linked at http://capitaldefenseweekly.com/comparisons/index.html as will additional Ryan Commission resources. The current execution information through the remainder of the year has been updated and it appears Texas will execute slightly more than half of all those executed this year with a total number of executions at about the same rate as last year. In other news, the Supreme Court section examines a small handful of cases that the Supreme Court, although yet to grant cert or to otherwise dispose, appears interested, including more jury selection questions. The Supreme Court on Wednesday heard Miller-El v. Cockrell and while the nose counting is uncertain, in the words of Seth Waxman who argued the case, "[w]hatever this court decides, this case is going to stand as a benchmark." http://search.news.yahoo.com/search/news?c=&p=miller-el. The Second Circuit is scheduled to hear United States v. Quinones this coming Monday, the Death Penalty Information Center has assembled a fine collection of Quinones materials that is worthy of perusal. http://www.deathpenaltyinfo.org/Quinones.html. Finally, as has been evident for several weeks, the "Weekly" has been running on a rough bi-weekly schedule. Unfortunately, this will most likely continue through at least mid-November due to my own tight schedule. My apologies in advance. Execution Information
OctoberThe following executions dates for the next few weeks that are considered serious:* November Updated October 5, 2002 This edition can be found at (http://capitaldefenseweekly.com/archives/020930.htm ) Two cases are noted as unduly hot in this edition and several more as very positive. The hot listed cases reflect the precarious nature of the death penalty in the closing months of 2002 and may reflect a growing unease in the lower federal courts of the overly broad use of the death penalty as currently practiced. The Eleventh Circuit in Bradley v. Pryor has held that access to DNA evidence under Section 1983 does not constitute a habeas proceeding. The net effect of Bradley is to give valuable ammunition to those seeking to get access to DNA evidence but who have been denied state law. The decision in Bradley immediately sets up a conflict on the issue as the Fourth Circuit has recently reached the opposite conclusion, hence making it ripe for Supreme Court review. In the second hot listed case, United States v. Fell , Judge Sessions becomes the second federal district court judge in the Second Circuit to strike the federal death penalty in the case before him as unconstitutional. This time the reason for finding the federal statute unconstitutional deals with the burden of proof required for aggravators under the Sixth Amendment. The language is strong and clear, "[i]f the death penalty is to be part of our system of justice, due process of law and the fair-trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected." The federal death penalty does not meet these arduous requirements Judge Sessions finds. The growing federal unease can also be found in a recent speech noted by the Death Penalty Information Center. Former Chief Judge of the Sixth Circuit, Gilbert Merritt said in Nashville before a group of state and federal judges, that capital punishment is "by far the most difficult, time-consuming, frustrating, and critical joint problem (judges) have to grapple with on a daily basis." Merritt noted that, despite the intense scrutiny of death penalty cases, he has reviewed two cases in which he has "serious doubts" the right man was sentenced to death. He described Tennessee's death penalty system as "still broken" and stated that other judicial issues "pale in comparison." The reliability of that system has been muddied by passion, politics, "extremely zealous" prosecutors, and a lack of training for defense attorneys, he said. The Supreme Court has added another capital case to their docket, this time looking at the question of whether a "McFarland"/§ 848 petition meets the AEDPA's one year filing requirement in Woodford v. Garceau. The Focus section returns this week and examines the upcoming Supreme Court docket, save Woodford v. Garceau. Several favorable decisions are also noted. The Northern District of Illinois in U.S. ex rel. Madej v. Schomig , in dicta has provided some great language on the Vienna Convention, as well as that the Ring & Atkins are "watershed" cases within the meaning of Rule 59(e) of the Federal Rules of Civil Procedure. In Alabama a long litany of cases have had favorable rulings in this edition including: Ex parte Taurus Carroll (jury override); Ex parte Andy Dwight Pierce (ineffectiveness relating to jury's contact with sheriff); and Ex parte Jimmy Lee Brooks (judicial recusal since he may be a witness). Finally, please note, over the next few weeks, as it has been the last few weeks, the schedule for the weekly will be abnormally erratic due to my own schedule currently being in chaos. Every attempt will be made to get it out weekly, even it means, as this edition, a few days late. - k Execution Information
SeptemberThe following cases have been stayed: OctoberThe following executions dates for the next few weeks that are considered serious:* October |
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