Four cases earn a hot listing this week.

In Hain v. Gibson the Tenth Circuit upheld on the merits a death sentence for a crime committed as a juvenile.  Key to the breadth of this opinion, the Court held that international human rights treaties and law are inapplicable in U.S. federal courts save specific enabling language by Congress.  Put another way, the federal courts can not entertain claims relating to violations international human right standards. In light of the Supreme Court's recent Atkins v. Virginia cert grant & their prior interest in the issue of juvenile executions during recent terms, such as that expressed by the various orders entered in Domingues v. Nevada (though cert was not granted in that matter),  Hain is an excellent candidate for certiorari.

The Illinois Supreme Court in Illinois v. Fuller (one of two cases it reversed this week) revisits the bane of every first year criminal law student, mens rea.  When charging the jury in the penalty phase the trial forget to include the element of mens rea.  Even though trial counsel failed to object, under the plain error doctrine of that court, a reversal was required as the element of knowledge or intent was never put to the jury in either phase of the trial.

In what some may take as a sure sign of the closing of the age, the Fifth Circuit in Cockerham v. Cain granted relief  in a capital case.  The Fifth Circuit held that jury instructions, under Cage v. Louisiana, permitted the possibility of a "conviction based on a lesser degree of proof than required by the Due Process Clause." The court granted relief by sidestepping a potential Teague/retroactivity problem holding that the out-of-time appeal to the state supreme court on the Cage issue reset the date that "finality" would be determined.

The Ninth Circuit's grant of relief in Caro v. Woodford, marks the fourth and final hot listed case of the week. The panel holds, in a split decision, that counsel was unduly impuissant in failing to investigate the effects of neurotoxic poisoning from certain now banned (?) pesticides.  The damage done to the mind of a person exposed to neurotoxins, the majority notes with heavy quotes to Lord Blackstone,  may well have convinced a jury to spare Caro's life despite the heinous nature of the crime.  Finally the impact of neurotoxins from pesticides were sufficiently known as to place counsel on notice about the possibility of neurological damage.

Finally, Alexander Williams was granted clemency clemency by the Georgia Board of Pardons and Paroles on February 25.  A spokeswoman for the Board stated that Williams's mental illness, his status as a juvenile offender, and his history of abuse as a child were factors leading to the Board's decision to commute his death sentence to life without parole.  The Board received many pleas for clemency, including those from the United Nations Commission on Human Rights, the European Union, the American Bar Association, and former First Lady Rosalynn Carter

Focus is taking a one week break & will return next week, as will news from Florida about the minimum standards for counsel.

Since the last edition there have been no domestic executions.

Feb 28 Monty Delk (Texas)

March
      6   Jeffrey Tokar                  Missouri
      7   Gerald Tigner                  Texas
     12   Rodolfo Hernandez         Texas
     12   Tracy Housel                  Georgia---for. national

April
      5    Gary Brown                     Alabama
     10   Abu-Ali Abdur'Rahman    Tennessee
     11   William Burns                   Texas
     14   James Earl Patterson        Virginia--volunteer

HOT LIST CASES
Hain v. Gibson, 2002 U.S. App. LEXIS 2610 (10th Cir. 02/20/2002) In a case well poised for certiorari review, relief is denied on claims relating to the: "(1) the propriety of the trial court's decision to instruct on alternative theories of malice aforethought and felony murder; (2) ineffective assistance of counsel; and (3) whether the International Covenant on Civil and Political Rights prohibited the execution of juveniles;" "[4] whether the trial court erred in admitting victim impact testimony and [5] whether the trial court violated Hain's right against self-incrimination by ordering him to answer the prosecutor's questions about unadjudicated crimes that occurred in the State of Kansas." On the juvenile execution question the court holds: [Note that the Supreme Court ordered additional briefing on the issue below several terms ago, but denied cert, in Domingues v. Nevada (Domingues cert petition).]

Assuming, arguendo, that Hain adequately presented his arguments to the OCCA, we find no merit to them. "In 1992, the United States Senate ratified the ICCPR with various reservations, understandings, [and] declarations." Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S. Ct. 329 (2001); see Buell v. Mitchell, 274 F.3d 337, 371 (6th Cir. 2001) (same). Included among these was the following proviso:

[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. 138 Cong. Rec. S4783 (1992).

Thus, contrary to Hain's arguments, Article 6 paragraph 5 of the ICCPR does not prohibit Oklahoma from imposing capital punishment for crimes committed by a person under eighteen years of age.

Even if, as suggested by Hain, the above-quoted reservation were void (for any of the reasons suggested by Hain), it is clear that the ICCPR is not binding on the federal courts. See Buell, 274 F.3d at 372. "`Courts in the United States are bound to give effect to international law and to international agreements, except that a `non-self-executing' agreement will not be given effect as law in the absence of necessary authority.'" Id. (quoting Restatement (Third) of Foreign Relations Law § 111 (1987)). When the Senate ratified the ICCPR, it specifically declared that the provisions thereof were "not self-executing." 138 Cong. Rec. S4784. And, since that time, Congress has never "enacted implementing legislation for" the ICCPR. Buell, 274 F.3d at 372; see Beazley, 242 F.3d at 267-68 (citing cases and other sources indicating that the ICCPR is not self-executing).

Finally, there appears to be no basis for granting Hain federal habeas relief on the grounds that imposition of the death penalty for crimes committed while a juvenile would violate jus cogens norms of international law. It is far from certain that abolition of the death penalty for juveniles is a customary norm of international law that has "risen to the level that the international community as a whole recognizes it as jus cogens, or a norm from which no derogation is permitted." Buell, 274 F.3d at 373. Instead, it appears the countries that have abolished the death penalty in these instances have done so for "moral" or "political" reasons (as opposed to any "sense of legal obligation"). Id. Even if the abolition of the death penalty for juveniles could be considered a "customary norm of international law" or "jus cogens," this does not appear to be a sufficient basis to invalidate Hain's death sentences. Id. In Stanford v. Kentucky, 492 U.S. 361, 380 (1989), a majority of the Supreme Court held that the imposition of capital punishment on an individual for a crime committed at sixteen or seventeen years of age does not constitute cruel and unusual punishment under the Eighth Amendment. Although the dissent in Stanford argued that, "[w]ithin the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved," id. at 390 (Brennan, J., dissenting), the majority implicitly rejected this argument in holding the practice constitutional and in noting that "no modern societal consensus" forbids the imposition of the death penalty on individuals age sixteen or seventeen. In light of Stanford, which essentially authorizes the imposition of the death penalty upon a criminal defendant such as Hain, "the determination of whether customary international law prevents [the] State [of Oklahoma] from carrying out the death penalty . . . is a question that is [properly] reserved to the executive and legislative branches of the United States government, as it [is] their constitutional role to determine the extent of this country's international obligations and how best to carry them out." Buell, 274 F.3d at 376.

[W]e invoke the plain error doctrine to consider the issue because we find that the failure to give the instruction under  [*56]  the circumstances presented in this case deprived the defendant of a substantial right and denied him a fair sentencing hearing. See People v. Simms, 143 Ill. 2d 154, 170, 157 Ill. Dec. 483, 572 N.E.2d 947 (1991). The function of instructions is to convey to the jurors the correct principles of law applicable to the facts so that they can arrive at a correct conclusion according to the law and the evidence. People v. Williams, 181 Ill. 2d 297, 318, 229 Ill. Dec. 898, 692 N.E.2d 1109 (1998). Fundamental fairness requires the trial court to give correct instructions on the elements of the offense in order to insure a fair determination of a case by a jury. Williams, 181 Ill. 2d at 318.

While the right to a jury trial under the sixth amendment to the United States Constitution does not apply to sentencing, even in capital cases, Illinois law establishes a liberty interest, protected by the due process clause of the fourteenth amendment, in having a jury make particular findings relative to sentencing. See People v. Mack, 167 Ill. 2d 525, 534, 212 Ill. Dec. 955, 658 N.E.2d 437 (1995). Under Illinois law, if the prosecution  [*57]  seeks the death penalty, the defendant is entitled to have a jury decide whether the death penalty should be imposed. 720 ILCS 5/9-1(d) (West 1996). Moreover, during the eligibility phase of the sentencing hearing, the State must prove all of the elements of the aggravating factor beyond a reasonable doubt. 720 ILCS 5/9-1(f) (West 1996).

The jury instructions in the present case, just like those in Ramey, failed to mention that the defendant acted with knowledge or intent in causing the death of the victim. Also like Ramey, the required finding was not made by the jury at any other stage of the proceeding and the requisite mental states were not blatantly evident from the facts. The State's argument that the defendant's guilty pleas obviated the necessity for a jury finding as to the required elements must be rejected as contrary to the statute providing that the jury decide eligibility (720 ILCS 5/9-1(d), (f) (West 1996)). Moreover, we note that while the defendant's guilty pleas to intentional and knowing murder might be significant evidence of the defendant's eligibility, they are not conclusive  [*58]  proof and do not establish eligibility per se. In other words, the State was yoked anew with the burden of proving that the defendant acted with knowledge or intent in killing the victims. See Mack, 167 Ill. 2d at 534; Simms, 143 Ill. 2d at 170-71; Stewart, 958 F.2d at 1387 (despite defendant's guilty pleas, State set out to prove at eligibility phase of sentencing defendant's intent to kill).

We acknowledge that defense counsel did not strenuously object to the defendant's death eligibility. At the same time, however, counsel did not concede that the defendant's intent to kill was "blatantly evident" from the facts. Thus, we do not, as the State suggests, find this case distinguishable from Ramey.

People v. Mack, 167 Ill. 2d 525, 212 Ill. Dec. 955, 658 N.E.2d 437 (1995), though not directly on point, is instructive here. In Mack, the defendant pled guilty to three counts of murder, which included intentional, knowing and felony murder. See People v. Mack, 105 Ill. 2d 103, 108-09, 85 Ill. Dec. 281, 473 N.E.2d 880 (1984). The State subsequently sought to prove the defendant death eligible  [*59]  based on the aggravating factor set forth in section 9-1(b)(6). The jury was properly instructed as to the aggravating factor, but the verdict form supplied to and returned by the jury in connection with the aggravating factor failed to specify that the defendant acted with the requisite mental state of intent or knowledge. On the State's appeal from the defendant's successful post-conviction petition, this court addressed the defendant's challenge to his death sentence on the basis that the jury's verdict did not specify that the defendant acted with the requisite mental state.

In affirming the reversal of the defendant's death sentence, this court held that "where the verdict purports to set out the elements of the offense as specific findings, it must do so completely or be held insufficient." Mack, 167 Ill. 2d at 538. Despite the defendant's guilty pleas and the significant evidence in the record that the defendant intentionally killed the victim, this court rejected the State's argument that the defect in the verdict was cured by the correct jury instructions on the requisite mental state requirements which were additionally emphasized by the prosecutor during  [*60]  closing argument. Mack, 167 Ill. 2d at 535-36.

In the instant case, the jury instructions as well as the verdict form failed to set forth the requisite mental state for the aggravating factor as listed in section 9-1(b)(6). Thus, the error in the present case is arguably even more egregious and prejudicial than the one in Mack. While the Mack court noted that the same type of general verdict form used in the present case is appropriately used when only one statutory aggravating factor is at issue ( Mack, 167 Ill. 2d at 538), we believe that the use of the general verdict form presumes a correct instruction will be given especially when the trier of fact has not found the requisite mental state at any other stage in the proceeding. Simms, 143 Ill. 2d at 170-71 (jury's return of a general verdict of eligibility does not cure error in the instructions).

The Anti Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), forbids any federal court from granting habeas relief based on a claim that was adjudicated on the merits in state court unless the State adjudication involved, inter alia, "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (Emphasis added). In Williams v. Cain, 229 F.3d 468 (5th Cir. 2000), we considered the effect of the emphasized language on the applicability of new rules on federal habeas. A new rule is one that was not established until after the petitioner's conviction became final on direct appeal. Id. at 475 n.6. We held that unless the Supreme Court has clearly established that the new rule falls within one of the exceptions to the non-retroactivity principle of Teague v. Lane, 109 S.Ct. 1060 (1989), that new rule could not be considered with regard to petitions governed by the AEDPA. Id. at 475. We also observed that the Supreme Court had not yet held that the Cage rule satisfies any Teague exception. In Tyler v. Cain, 121 S.Ct. 2478 (2001), the Supreme Court made clear that it has indeed not yet held that the Cage rule satisfies any Teague exception (and that, therefore, Cage does not come within the 28 U.S.C. § 2244(b)(2)(A) exception to AEDPA's bar of successive petitions). Thus, under our decision in Williams, we can consider Cockerham's Cage claim only if his conviction became final after Cage was decided.

Cockerham's errors patent appeal was affirmed on October 9, 1986. Cockerham was granted an out of time appeal in 1994 which he pursued until the Louisiana Supreme Court denied review on February 6, 1998. Cage was decided on November 13, 1990. Whether Cage represents a new rule turns on when Cockerham's conviction became final--after resolution of his 1986 errors patent appeal or after his 1994-98 out of time appeal. Because a primary purpose behind the AEDPA and Teague's non-retroactivity rule is respect for the finality of state court judgments, we believe consideration of Cage is only appropriate if, under Louisiana law, Cockerham's conviction did not become final until his out of time appeal was resolved.

The Louisiana Code of Criminal Procedure sheds no determinative light on this question. Two decisions from the Louisiana Supreme Court do. First, in State v. Fournier, 395 So.2d 749 (La. 1981), Fournier was convicted of simple burglary in 1973 and failed to appeal. At that time, the Louisiana Supreme Court had extended the statutory presumption of La.R.S. 15:432 "that the person in the unexplained possession of property recently stolen is the thief" to simple burglary. Subsequently, in State v. Searl, 339 So.2d 1194 (La. 1976), the Louisiana Supreme Court held that this presumption, as applied to simple burglary, was unconstitutional. After Searl was decided, Fournier obtained an out of time appeal. The Fournier court, after observing that it had previously "held that the rule of Searl was applicable to those cases not yet final prior that decision", went on to state "[T]his case is now before us as an out-of-time appeal and therefore defendant's conviction was not final prior to our decision in Searl." Fournier, 395 So.2d at 750. The dissent disagreed with the majority's conclusion that "an out-of-time appeal can affect the finality of the trial court's judgment." Id. at 751 (Chiasson, J. dissenting). Second, in State v. Counterman, 475 So.2d 336, 340 (La. 1985), the Louisiana Supreme Court characterized an out of time appeal as a "reinstatement of [the defendant's] right to appeal." The Louisiana Third Circuit Court of Appeal interpreted this language to mean that an out of time appeal should be treated as rendering the conviction non-final until resolution of the out-of-time appeal so as to entitle the defendant to the benefit of rules established before the out of time appeal was resolved. State v. Boyd, 503 So.2d 747, 750 (La. Ct. App. 3 Cir. 1987) (holding that the rule of State v. Jackson, 480 So.2d 263 (La. 1985), which stated that it applied to "convictions which have not become final" when Jackson was decided, applied to cases which otherwise became final prior to Jackson but in which out-of-time appeal was granted after Jackson). Contra State v. Johnson, 598 So.2d 1288, 1292 (La. Ct. App. 4 Cir. 1992) (refusing to apply a state rule established before the defendant's second out of time appeal was resolved); State v. Patterson, 572 So.2d 1144, 1148 (La. Ct. App. 1 Cir. 1990) (refusing to apply Batson v. Kentucky, 476 U.S. 79 (1986) notwithstanding that the defendant's out of time appeal was resolved after Batson).

Fournier compels the conclusion that, for the purpose of determining whether the defendant may avail himself of a particular rule in challenging his conviction, the Louisiana Supreme Court would not consider Cockerham's conviction final until after his out of time appeal was resolved. We agree with the Boyd court that Counterman supports this conclusion as well. Neither Johnson nor Patterson cite Fournier. We conclude that the Louisiana Supreme Court's decision in Fournier, on point and never called into question by that court, controls. Accordingly, because Cockerham's out of time appeal was not resolved until after Cage was decided, Cockerham may avail himself of the benefit of Cage. (emphasis added).

The State urges us not to find deficient performance for two reasons: first, it argues that counsel did conduct a reasonable investigation into Caro's possible brain damage. In the alternative, it argues that counsel's failure to investigate was not unreasonable due to the paucity of literature regarding the link between exposure and brain damage at the time of Caro's trial.

First, it contends that counsel did, in fact, launch an investigation into the chemical poisoning of Caro's brain by ordering a blood test but desisted after the test results were negative. Thus, the State argues, counsel fulfilled his duty to conduct a reasonable investigation into Caro's possible brain damage.

This contention is unpersuasive. First and most notably, the blood test taken by counsel did indicate that Caro had been exposed to a fungicide. Dr. Ecobichon has asserted that this fact alone should have put counsel on notice that further investigation was necessary. Nonetheless, assuming arguendo that the only blood tests ordered by counsel came back negative for presence of pesticides, Caro's extraordinary history of exposure should have prompted counsel to ask an expert about the risks of Caro's chronic exposure. A reasonably competent attorney would have known that a blood test would not have told the whole story; it was capable only of showing that certain chemicals indicative of pesticide exposure were in Caro's bloodstream at that moment in time. It would certainly not reveal the entirety of the cumulative effect that a lifetime of exposure to neurotoxicants and abuse would have on Caro's neurological system.

The State also contends that we cannot find deficient performance because the medical community was not yet aware of the effects of neurotoxicants on one's neurological system at the time of Caro's trial. If true, this fact would preclude a finding of deficient performance because the reasonableness of counsel's performance must be evaluated from his perspective at the time of the trial, not in hindsight. Strickland, 466 U.S. at 689-90.

However, the State is mistaken -- the dangers of pesticides were known in 1980-1981. Each of the expert witnesses testified at the evidentiary hearing that the literature and data then available would have led him to conclude that Caro suffered brain damage as a result of his exposure to neurotoxicants, childhood injuries and abuse, or a combination thereof.

Dr. Ecobichon testified that, as early as the 1950's, studies had specifically linked exposure to pesticides with aggressive behavior and that "any competent toxicologist or neurologist who was interested in this area" would have been aware of data sufficient to diagnose Caro's brain damage. Dr. Bear testified that the link between cholinesterase inhibitors and violence became known as early as 1960, and between cholinesterase inhibitors and brain damage in the early 1970's. By the early 1970's, well-known studies had documented long-term effects of exposure. He also testified that, by 1980 or 1981, a psychiatrist should have known about the studies linking behavioral disorders to exposure to cholinesterase inhibitors. And, although only some of the tests used to test Caro were available at the time of his trial, Dr. Pincus testified that the "most important tool" -- the gathering of the patient's history from his family and friends -- existed then.

Because counsel failed either to conduct a reasonable investigation into the effects of Caro's exposure to neurotoxicants and his personal background on his brain or to provide a strategic or tactical justification therefor, we hold that his performance was constitutionally deficient.

2. Prejudice

A finding of deficient performance does not end our inquiry, however. We must also find that Caro was prejudiced by his attorney's incompetence. Strickland, 466 U.S. at 687. To show prejudice under Strickland, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

In a challenge to a death sentence, the question presented is "whether there is a reasonable probability that, absent the errors, the sentencer -- including an appellate court, to the extent it independently reweighs the evidence -would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695. This inquiry thus compels us to couple the omitted evidence with the mitigating evidence presented at trial and reweigh it against the aggravating evidence to determine whether the omitted evidence "might well have influenced the jury's appraisal of . . . [the defendant's] moral culpability." Williams, 529 U.S. at 397-98.

We have held that "all relevant mitigating information [must] be unearthed for consideration at the capital sentencing phase." Caro, 165 F.2d at 1227. This is critical because: "The determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors give the jury broad latitude to consider amorphous human factors, to weigh the worth of one's life against his culpability." Id. (quoting Hendricks, 70 F.3d at 1044); cf. Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 1920 (2001) ("[T]he jury [must] be able to consider and give effect to [a defendant's mitigating] evidence in imposing sentence" so "that we can be sure that the jury has treated the defendant as a uniquely individual human bein[g ] and has made a reliable determination that death is the appropriate sentence.") (emphasis in original) (internal quotations omitted).

The District Court concluded that Caro suffered brain damage as a result of his acute and chronic exposure to neurotoxicants and his personal background. It is incumbent upon us to find that this fact was relevant mitigating information and should have been explained to and considered by the sentencing jury. The omission of this evidence renders Caro's death sentence unreliable.

The State contends that Caro was not prejudiced by this omission because the aggravating evidence before the jury was "substantial." The factors in aggravation included evidence that Caro stalked Hatcher before killing him, lured Donner and Lucchesi to come near him so that he could shoot them at close range, attempted an alibi, had previously kidnaped and sexually assaulted other victims, and had made two escape attempts.

The State's argument does not dissuade us from our conclusion. We recently held that "[e]ven in the face of this strong aggravating evidence," a death sentence is rendered unreliable "if we cannot conclude with confidence that the jury would unanimously have sentenced . . . [the defendant] to death if . . . [counsel] had presented and explained all of the available mitigating evidence." Mayfield , 2001 U.S. App. LEXIS 24030, at *34 (citing Williams, 529 U.S. at 368-69, 399).

It is significant, in considering the impact of the omitted evidence on the reliability of Caro's sentence, that the evidence presented by the defense as mitigation consisted primarily of lay background and character evidence. The only expert testimony presented relating to Caro's mental health did not shed light on his brain damage.

The first of the two experts presented at trial was Dr. Errol Leifer, a psychologist, who was unfamiliar with defendant's background and who, consequently, did not provide much in the way of compelling mitigation evidence. He surmised that Caro "was of superior intelligence but that he seemed periodically to lapse into a lower level of functioning in which he appeared to lose his grip on reality and to indulge in hostile and aggressive thoughts." This did not explain Caro's behavior and tended, rather, to paint him as a violent psychopath.

Defense also presented the testimony of Lynn Woodward, a social worker, who testified that Caro had suffered abuse, and as a result, "had a lot of suppressed rage and . . . that his bottled emotions could conceivably manifest themselves in periods of explosive, uncontrolled aggression." She also opined that Caro probably killed the two teenagers because his girlfriend had recently left him and he became enraged "at seeing what appeared to be a happy couple sharing something he felt he could never have." While this testimony might have shed some compassionate light on Caro's frame of mind, it certainly did not reduce his moral culpability for his own lack of control over his emotions.

Furthermore, the evidence that was omitted is compelling. The jury was not afforded the benefit of expert testimony explaining the effects that Caro's physiological defects would have on his behavior, such as causing him to have"impulse discontrol" and irrational aggressiveness. By explaining that his behavior was physically compelled, not premeditated, or even due to a lack of emotional control, his moral culpability would have been reduced. Cf. Williams, 529 U.S. at 398 (finding prejudice when the omitted evidence suggested that defendant's "violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation.").

This omission becomes even more compelling in light of the fact that "the evidence [of premeditation ] was not particularly strong" in the prosecution's case against Caro. Caro, 761 P.2d at 689. This fact is significant because a"conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696.

More than any other singular factor, mental defects have been respected as a reason for leniency in our criminal justice system. 4 WILLIAM BLACKSTONE, COMMENTARIES *24-*25 ("[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. . . . [A] total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses. . . .") (quoted in Penry v. Lynaugh , 492 U.S. 302, 331 (1989)). We query whether the jury would have wavered on sentencing Caro to death if it had known that, on the night of August 20, 1980, a mental defect might have caused him to suddenly lash out uncontrollably. We will never know for certain, but fortunately we need not resort to telepathy. It is sufficient that we are not confident the jury's selection of sentences would have been the same.

Because it has been established that Caro suffers from brain damage, the delicate balance between his moral culpability and the value of his life would certainly teeter toward life. Therefore, we find that counsel's errors prejudiced Caro by rendering the results of his penalty phase trial unreliable.

Without filing a grievance under applicable Connecticut Department of Correction procedures, plaintiff-respondent Nussle, a state prison inmate, commenced a federal court action under 42 U.S.C. 1983, charging that corrections officers, including defendant-petitioner Porter, had subjected him to a sustained pattern of harassment and intimidation and had singled him out for a severe beating in violation of the Eighth Amendments ban on cruel and unusual punishments. The District Court dismissed Nussles suit, relying on a provision of the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e(a), that directs: No action shall be brought with respect to prison conditions under section 1983 , or any other Federal law, by a prisoner until such administrative remedies as are available are exhausted. The Second Circuit reversed, holding that exhaustion of administrative remedies is not required for a claim of the kind Nussle asserted. The appeals court concluded that 1997e(a)s prison conditions phrase covers only conditions affecting prisoners generally, not single incidents that immediately affect only particular prisoners, such as corrections officers use of excessive force. In support of its position, the court cited legislative history suggesting that the PLRA curtails frivolous suits, not actions seeking relief from corrections officer brutality; the court also referred to pre-PLRA decisions in which this Court distinguished, for proof of injury and mens rea purposes, between excessive force claims and conditions of confinement claims.

Held:The PLRAs exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Cf. Wilson v. Seiter, 501 U.S. 294, 299, n.1. Pp.514.

     (a)The current exhaustion provision in 1997e(a) differs markedly from its predecessor. Once within the district courts discretion, exhaustion in 1997e(a) cases is now mandatory. See Booth v. Churner, 532 U.S. 731, 739. And unlike the previous provision, which encompassed only 1983 suits, exhaustion is now required for all action[s] brought with respect to prison conditions. Section 1997e(a), designed to reduce the quantity and improve the quality of prisoner suits, affords corrections officials an opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmates grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Id., at 737. In other instances, the internal review might filter out some frivolous claims. Ibid. And for cases ultimately brought to court, an administrative record clarifying the controversys contours could facilitate adjudication. See, e.g., ibid. Pp.57.

     (b)Determination of the meaning of 1997e(a)s prison conditions phrase is guided by the PLRAs text and context, and by this Courts prior decisions relating to [s]uits by prisoners, as 1997e is titled. The pathmarking opinion is McCarthy v. Bronson, 500 U.S. 136, in which the Court construed the Federal Magistrates Acts authorization to district judges to refer prisoner petitions challenging conditions of confinement to magistrate judges. This Court concluded in McCarthy that, read in its proper context, the phrase challenging conditions of confinement authorizes the nonconsensual reference of all prisoner petitions to a magistrate, id., at 139. The McCarthy Court emphasized that Preiser v. Rodriguez, 411 U.S. 475, had unambiguously placed cases involving single episodes of unconstitutional conduct within the broad category of prisoner petitions challenging conditions of confinement, 500 U.S., at 141; found it telling that Congress, in composing the Magistrates Act, chose language that so clearly paralleled the Preiser opinion, 500 U.S., at 142; and considered it significant that the latter Acts purposeto lighten overworked district judges caseloadwould be thwarted by allowing satellite litigation over the precise contours of an exception for single episode cases, id., at 143. The general presumption that Congress expects its statutes to be read in conformity with this Courts precedents, United States v. Wells, 519 U.S. 482, 495, and the PLRAs dominant concern to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court, see Booth v. Churner, 532 U.S., at 737, persuade the Court that 1997e(a)s key words prison conditions are properly read through the lens of McCarthy and Preiser. Those decisions tug strongly away from classifying suits about prison guards use of excessive force, one or many times, as anything other than actions with respect to prison conditions. Nussle misplaces principal reliance on Hudson v. McMillian, 503 U.S. 1, 89, and Farmer v. Brennan, 511 U.S. 825, 835836. Although those cases did distinguish excessive force claims from conditions of confinement claims, they did so in the context of proof requirements: what injury must a plaintiff allege and show; what mental state must a plaintiff plead and prove. Proof requirements, once a case is in court, however, do not touch or concern the threshold inquiry at issue here: whether resort to a prison grievance process must precede resort to a court. There is no reason to believe that Congress meant to release the evidentiary distinctions drawn in Hudson and Farmer from their moorings and extend their application to 1997e(a)s otherwise invigorated exhaustion requirement. It is at least equally plausible that Congress inserted prison conditions into the exhaustion provision simply to make it clear that preincarceration claims fall outside 1997e(a), for example, a 1983 claim against the prisoners arresting officer. Furthermore, the asserted distinction between excessive force claims and exhaustion-mandatory frivolous claims is untenable, for excessive force claims can be frivolous, and exhaustion serves purposes beyond weeding out frivolous allegations. Pp.712.

     (c)Other infirmities inhere in the Second Circuits disposition. See McCarthy, 500 U.S., at 143. In the prison environment, a specific incident may be symptomatic of a systemic problem, rather than aberrational. Id., at 143144. Nussle urges that his case could be placed in the isolated episode category, but he might equally urge that his complaint describes a pattern or practice of harassment climaxing in the alleged beating. It seems unlikely that Congress, when it included in the PLRA a firm exhaustion requirement, meant to leave the need to exhaust to the pleaders option. Cf. Preiser, 411 U.S., at 489490. Moreover, the appeals courts disposition augurs complexity; bifurcated proceedings would be normal thereunder when, for example, a prisoner sues both the corrections officer alleged to have used excessive force and the supervisor who allegedly failed adequately to monitor those in his charge. Finally, scant sense supports the single occurrence, prevailing circumstance dichotomy. For example, prison authorities interest in receiving prompt notice of, and opportunity to take action against, guard brutality is no less compelling than their interest in receiving notice and an opportunity to stop other types of staff wrongdoing. See id., at 492. Pp.1214.

224 F.3d 95, reversed and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
 
 

Illinois v. Wooley, 2002 Ill. LEXIS 282 (Ill 2/22/2002) (dissents) On resentencing, "the trial court erred in informing a panel of prospective jurors that defendant had previously been sentenced to death in this case and in denying defendant's motion for a mistrial, we need not address defendant's remaining issues."
 

CAPITAL CASES - RELIEF DENIED
Illinois v. Davis, 2002 Ill. LEXIS 286 (Ill 2/22/2002) (dissents) Relief denied on admissibility of witness testimony, Apprendi/Ring requirements as to the burden of proof and failure to weigh proffered mitigating evidence properly.

Feldman v. Texas, 2002 Tex. Crim. App. LEXIS 39 (Tex Crim App 2/20/2002) Relief denied most notably on claims relating to the sitting of "life hesitant" jurors & exclusion of vacillating "death hesitant" jurors, denial of lesser included offense jury charge & admission of extraneous offenses in the guilt phase.

Commonwealth v. Rice, 2002 Pa. LEXIS 304 (Pa. 02/20/2002)  (dissents) A sharply divided court holds that although a  jury instruction regarding victim impact evidence is "legally inaccurate" any error is harmless.

Morris v. Florida, 2002 Fla. LEXIS 325 (FL 2/21/2002) Relief denied on claims that "(1) the trial court erred in excluding the proffered testimony of defense witness, Toni Maloney; (2) Morris should receive a new trial due to the improper contacts between members of the jury and a backstruck juror who attended the trial as a spectator; (3) the trial court erred in finding that Morris's history of drug abuse is not mitigating; (4) the trial court erred in refusing to instruct the jury on specific nonstatutory mitigating circumstances; and (5) the death sentence is disproportionate. "

Banks v. State, 2002 OK CR 9 (Okla.Crim.App. 02/21/2002) Relief denied on sufficiency of the evidence, the calling of the defendant's brother to the stand in the presence of the jury know the brother would assert the constitutional protection against self-incrimination, penalty phase instructions on culpability, use of improper aggravators, prosecutorial misconduct, & ineffective assistance of counsel, most notably for not testing the DNA of the appellant's brother to see whether it was his (the brother's) DNA and not that of defendant. (unavailable on the net at time of publication)

Williams v. State, 2002 Ark. LEXIS 123 (Ark. 02/21/2002) Williams correctly asserts that the issue of escape in the first degree as an underlying felony in capital murder was submitted  to the jury in error, but the capital-murder conviction and sentence of death is affirmed as there remains a separate valid aggravator, a aggravated robbery.
 

LATE PUBLICATION, AMENDED & DEPUBLISHED OPINIONS
State v. Papasavvas, 2002 N.J. LEXIS 51 (N.J. 02/14/2002)  Death sentence stricken as disproportionate. Appellant's "culpability is less than that of the only death-sentenced defendant in the[ ] category and equal to or less than fourteen of the seventeen life- sentenced [ ] defendants [in this category]. When Papasavvas's crime is recategorized and compared with murders involving a sexual offense against a vulnerable victim, the disproportionality of his death sentence becomes even more stark."

State v. Canez, 2002 Ariz. LEXIS 201 (Ariz. 02/14/2002)  Verdicts affirmed on challenge relating to racism in jury selection, improper removal of death hesitant jurors, limitations on jury questioning, contamination of the jurors through extraneous contacts, insufficiency of the evidence, suggestive identification procedures, admission of statements to the police, limitations on cross-examinations, and admission of gruesome photographs.

OTHER NOTABLE CASES
Currie v. Matesanz, No. 01-1108 (1st Cir. 02/19/2002) An application for post-conviction relief is pending "from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures."

White v. Klitzkie, No. 00-16347 (9th Cir. 02/20/2002)  Time not tolled under the AEDPA for taking discretionary reviews to the either the US Supreme Court or the Supreme Court of Guam

In re Doe, No. 01-6250, 01-6251, 01-6252 (2nd Cir 2/22/2002) The work product privilege bars the compulsion of testimony by an attorney regarding her representation of a client with respect to his past commission of a crime, as to admissions (or denials) the client made in the attorney's presence that tend to prove guilt with respect to that past crime.

Monzo v. Edwards, No. 00-3733 (6th Cir 2/22/2002) Destruction of the victim's rape-kit prior to identification of the petitioner as a suspect was not bad faith and not a violation of due process.

Jones v. Senkowski,  No. 00-2145 (2nd Cir 2/21/2002)  The district court erred in using its discretion under 28 U.S.C. § 2254(b)(2) to deny an unexhausted claim on the merits when the petitioner has "made a substantial showing of the denial of a constitutional right" sufficient to warrant a certificate of appealability under 28 U.S.C. § 2253(c)(2).

Malcolm v. Payne, No. 00-35770 (9th Cir 2/22/2002) A  petition for clemency does not toll the AEDPA  statute of limitations.

McAlphin v. Toney, No. 01-2016 (8th Cir 2/20/02) Allegation of "imminent danger of serious physical injury" within the meaning of 28 U.S.C. section 1915(g) met, where tooth extract ions were delayed due to deliberate indifference to his medical needs thereby causing a rampant mouth infection

United States v. Angevine, No. 01-6097 (10th Cir 2/22/2002) No reasonable expectation of privacy exists in deleted files on a computer as the defendant agreed to a policy governing computer use at the university where he was employed.

Keenan v. Superior Court of Los Angeles, No. S080284 (CA 2/21/2002) California's "Son of Sam law," Civil Code section 2225(b)(1) (seizure of monies generated by a convicts for story telling of a violent crime), is facially invalid under  the First Amendment  and the liberty of speech clause of the California Constitution.

People v. More, No. 3 No. 3  (NY 2/19/2002) A body cavity search as part of a search incident to arrest, save exigent circumstances,  is impermissible under Fourth Amendment.

FOCUS

To return next week.

ERRATA
The Death Penalty Information Center reports:

Upcoming Tennessee Execution Planned Despite Questions of Shoddy Representation (See streaming video presentation below)

     Various organizations and individuals have raised serious concerns about an upcoming execution in Tennessee.  Abu-Ali Abdur'Rahman is scheduled for execution on April 10, 2002, even though new information and the quality of his defense raise doubts about his guilt:
Abu-Ali Abdur'Rahman

Molly Secours, writing in The Tennessean, noted that the jury was never informed about a forensic report establishing that no blood was on Abu-Ali's clothing after the crime, despite the bloody nature of the murder, or about Abu-Ali's long history of physical and sexual abuse.  She further noted:
Since the facts of this case surfaced, eight of the twelve jurors signed sworn affidavits stating they should have known all the information in Abu-Ali's case before delivering a verdict.  Some expressed anger, and several said it was devastating to have unjustly sentenced a man to death.  (The Tennessean, 2/10/02)
Click here for a video prepared by a support group for Abu-Ali, Bryan Stevenson, Director of the Equal Justice Initiative in Alabama, discusses the poor quality of representation in this case.  To view the you will need Realplayer.

A press release from Tennessee Coalition Against State Killing (TCASK) states:

During the nine months that [Abu-Ali's defense attorney Lionel] Barrett represented Abu-Ali before his Capital Murder trial, no work was done on Abu-Ali's behalf until approximately two weeks before his trial.  Barrett never talked to [Abu-Ali's former attorney] Neil McAlpin about Abu-Ali's case, and was unaware of the crime lab reports that no blood was on Abu-Ali's clothes, which indicated that Abu-Ali was not the assailant.
For more information on this case, visit the TCASK Web site.
Georgia Board of Pardons and Paroles Commutes Sentence to Life
     Alexander Williams (see below) was granted clemency by the Georgia Board of Pardons and Paroles on February 25.  A spokeswoman for the Board stated that Williams's mental illness, his status as a juvenile offender, and his history of abuse as a child were factors leading to the Board's decision to commute his death sentence to life without parole.  The Board received many pleas for clemency, including those from the United Nations Commission on Human Rights, the European Union, the American Bar Association, and former First Lady Rosalynn Carter.   (New York Times, 2/26/02)  This was the second death penalty clemency granted this year and the 48th since 1976.  See also, Clemency.
NOW AVAILABLE: "Death Row USA," Winter 2002
    The latest edition of this NAACP Legal Defense Fund publication is now available on DPIC's Web site.  The report provides the number of death row inmates by state, and information on race and gender.
  Number of inmates on death row declined:
January 1, 2001 - 3,726
January 1, 2002 - 3,711
Reversing a trend of increasing death row populations since 1976, the overall number of inmates on death rows across the country has decreased from last year.  In 65% of the jurisdictions with the death penalty, the number of death row inmates either decreased or remained the same compared to last year.

 The only states with an increase in the size of their death row were:  California (+16)
Texas (+7)
Arizona (+6)
South Carolina (+6)
Pennsylvania (+4)
Delaware (+2) Mississippi (+2)
Ohio (+2)
Oregon (+2)
South Dakota (+2)
New Jersey (+1)
Tennessee (+1)
 

Jurisdictions with the highest percent of minorities on death row:
U.S. Military (86%)
U.S. Government (83%)
Colorado (83%)
Illinois (69%)
Louisiana (69%)
Pennsylvania (69%)
 Race of victims in underlying crime for those executed since 1976:
White -             80.80%
Black -              13.58
Latino/a-             3.37
Asian-                 1.99
Native American-  .26

(Source: NAACP Legal Defense & Educational Fund, "Death Row USA" Winter 2002 (as of 1/1/02), as a pdf document (requires the free program Acrobat Reader)).

EDITORIALS: "Practice does not make perfect"
    An editorial by the New York Times considers the death penalty in light of recent studies conducted at Columbia University:

    America's death penalty system is badly broken. Just how broken was underscored two years ago when a study of capital appeals by a team at Columbia University unearthed the fact that fully 68 percent of all death sentences reviewed by appellate courts between 1973 and 1995 were reversed because of serious error.
    A new follow-up study by the same researchers finds that states and counties that make most use of the death penalty - applying it to a wide range of crimes instead of reserving it for "the worst of the worst" - are also the most prone to flawed verdicts. When it comes to the death penalty, as Senator Patrick Leahy, the Vermont Democrat, has observed, practice does not make perfect.
(New York Times, editorial, 2/23/02) For more information on the Columbia study, see below.  See also, Editorials.
 NEW VOICES - Candidate for Illinois Governor On Ending the Death Penalty:
    Illinois gubernatorial candidate Ronald Burris said he would sign legislation to end the death penalty if it was presented to him.  Burris, a former Illinois Attorney General, says he supports the death penalty in principle, but added that the release of 13 innocent inmates from Illinois's death row has changed his mind about the death penalty in practice.  "I don't think we'll ever see the death penalty executed in Illinois again," said Burris.  (St. Louis Post-Dispatch, 2/20/02)  See also, New Voices.
 

NEW RESOURCES: Mental Illness in Mothers Who Kill
Andrea Yates is on trial in Texas for murdering her children.  The prosecution is seeking the death penalty.  An opinion piece in the Dallas Morning News, Karen Patterson provides some insights into the mental illness which can lead to such acts:

    Matching threads weave through much of the research on filicidal mothers. Compared with other such mothers, those who are severely disturbed are more likely to be older. They are more likely to be married. They tend not to conceal their act. They more often try to kill themselves at the same time. And they are more likely than other such mothers - who kill during abuse or moments after childbirth - to murder more than one child.
    . . .
    "Most are women who really care a lot about being mothers," Dr. Stanton, of the University of Auckland, found. "It's very important to them ... and I think that's partly why, when they develop the illness, the delusional stuff tends to relate to their children."
    . . .
    Among the mothers with severe mental illness, the decision to kill a child can arise abruptly. But then, so can the mental problems.
    . . .
    "They all had either a new illness that nobody knew about ... or their illness changed," Dr. Stanton says. "When you listen to these stories you can hear that they had signs and symptoms of illness, but they hadn't been recognized."
    . . .
    The mothers themselves wear a mantle of guilt and grief for years. "When I interviewed these women," Dr. Stanton recalls, "it was just so painful, still incredibly painful for them. It's a terrible thing to have to live with."
(Dallas Morning News, opinion, 2/17/02)  Read the entire article.

CORECTIONS

No corrections noted.

OTHE RESOURCES   You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA)  & www.capdefnet.org (federal defender)  have many prepackaged motions and law guides dealing with death penalty issue.  Finally, there are a few legal professional only discussion groups that can help you with any questions you might have (please drop an email to find out more)

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WARNING: Although the newsletter aims to be informative, insightful & educational be forewarned it is usually written under the influence of extrreme caffeination at very late hour of the night/morning & normally without consultation of others. Perfection takes time that doing this newsletter on a weekly basis for free, on top of a busy work, practice & play schedule, simply does not allow. Please use caution before citing as case law changes quickly.  Where possible Lexis cites are provided (see Lexisone.com) to allow a quick double check of the case summations. Translation: This is the first draft of history & of case law review, the goal is to get timely, accurate and germane information to those involved in capital litigation.  In the balance between speed and accuracy, speed sometimes wins. Double check the cases cited just as I would double check your citations.

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