Leading off this edition is Head v. Thomason from the Supreme Court of Georgia.  The Thomason Court held that the court below was correct in finding that counsel missed key pieces of evidence in mitigation and relied too much on their subjective belief that the trial judge would never give death. The other reason Head v. Thomason leads the Hot List this week is who won the case, counsel recruited by ABA Death Penalty Representation Project, Matthew H. Feinberg and Matthew A. Kamholtz from Feinberg & Kamholtz in Boston.

The "In Focus" section is a copy of the "Briefbank" materials of the website which have been substantially overhauled in recent weeks.  The new brief bank includes search engines that permits searching all briefs filed in the 8th Circuit since 2000, most Florida Supreme Court briefs since (at least) 1998, all Capital Defense Weekly material and the entire online database of motions (capital and noncapital) from the DC Federal Defenders.  Also in the new brief bank are ipdated links to the brief banks of (almost) every online death penalty defense organization (available without password), as well as links to litigation guides on a wide variety of subjects. The "Briefbank" (http://www.capitaldefenseweekly.com/briefbank.html) will be a key focus for coming year & if something that should be there is missing please feel free to drop a line at cdw@capitaldefenseweekly.com.  Note, the "testy" nature of the search engines contained below are the reason there  no hot links in most of this edition. 

The United States Supreme Court in a fairly technical plurality opinion in Woodford v. Garceau that can be reduced to simply "McFarland Motion" is not enough for a case to be "pending" before the district court, rather " a case does not become “pending” until an actual application for habeas corpus relief is filed in federal court." Other notable capital cases include Louisiana v. Edwards where the  Louisiana Supreme Court  remanded for a hearing on whether the relator is mentally retarded under Atkins. In Ex parte Jerry Jerome Smith the Alabama Supreme Court holds the appellant was improperly prevented from presenting mitigating evidence.  The Florida Supreme Court in Harris v. Florida orders a new penalty phase proceeding as the pecuniary gain aggravator was unsupported by the evidence.  Finally, the former Nebraska death penalty statute was held volitive of Ring v. Arizona by the Nebraska Supreme Court in Nebraska v Gales.

Finally, this is a critical time in Texas.  Texas Defender Service has had several large wins recently but unfortunately TDS has extreme financial difficulties (foundations have not renewed grants, individual donors feel the effects of the economy, vouchers have been slashed, etc.).  If you can help with a tax deductible donation please feel free to forward it to Texas Defender Service, 412 Main St, Suite 1150, Houston, TX 77002, or donate online at http://www.texasdefender.org/donations.htm. 

The Weekly should be returning to its normal schedule in the coming weeks.

EXECUTION INFORMATION
The following person's have been executed since the last edition:

March
    18    Louis Jones                 Florida
    18    Walanzo Robinson      Oklahoma
    20    Keith Clay                   Texas
    25    John Hooker               Oklahoma
    25    Larry Moon                 Georgia
    26    James Colburn             Texas
April
    3     Scott Hain                   Oklahoma---juvenile

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

April
     8     Don Hawkins Jr.          Oklahoma
     9     Earl Bramblett             Virginia
    15    Kenneth Morris            Texas
    17    Larry Jackson              Oklahoma
    22    Juan Chavez                Texas
    23    Robert Ladd                 Texas
    24    Gary Brown                 Alabama 
    29    David Brewer               Ohio

Also highlighted this week is the Indiana Supreme Court's decision in Indiana v. Dye.  The Dye Court examine when a juror's omissions and false responses on jury questionnaires and during voir dire amount to the denial of a fair trial.  The Dye Court holds that a juror's failure to mention [1] her being a victim of a violent crime, [2] failure to mention her brother had been sentenced to death, and [3] failure to mention that for anyone, including her brother, who was convicted of murder should be killed, denied Dye a fair trial..

Three other capital cases also deserve mention. In  Kubsch v. Indiana the Indiana Supreme Court holds the trial court erred in admitting Kubsch's entire videotaped interrogation into evidence including portions that showed the invocation of the right to silence. In Florida v. Coney the Florida Supreme Court holds the trial court correctly found "trial counsel's performance was plainly deficient" in failing to adequately investigate.  The Supreme Court has stayed the execution of Delma Banks in Texas pending determination of whether to grant certiorari, details to follow as they become available.

Finally, the U.S. Supreme Court  40 years ago Tuesday issued Gideon v. Wainwright.  NACDL has developed a comprehensive page on the topic (http://www.nacdl.org/gideon) and NLADA have done a superb job as well as detailing the shortcomings nationally on the anniversary of Gideon (http://www.nlada.org/Defender/Defender_Gideon/Gideon_Reviewed).

EXECUTION INFORMATION
The following person's have been executed since the last edition:

March
     13    Michael Thompson     Alabama
     18    Louis Jones                 Indiana---Federal

March
     18    Walanzo Robinson      Oklahoma
     20    Keith Clay                   Texas
     25    John Hooker               Oklahoma
     25    Larry Moon                 Georgia
     26    James Colburn             Texas
     27    David Jay Brown         Oklahoma

April
      3     Brandon Hedrick          Virginia
      3     Scott Hain                    Oklahoma---juvenile
      8     Don Hawkins Jr.           Oklahoma 
      9     Earl Bramblett               Virginia
     15    Kenneth Morris             Texas
     16    Lewis Willilams             Ohio
     17    Larry Jackson               Oklahoma
     22    Juan Chavez                  Texas
     23    Robert Ladd                 Texas
     29    David Brewer               Ohio 

Leading off this week is In re Sterling-Suarez from the First Circuit.  The First Circuit previously granted mandamus to appoint counsel in this capital prosecution arising from the District of Puerto Rico. Sterling-Suarez comes again before that circuit to enforce that mandamus on the question of whether the prior writ guaranteed  appointment of  not only counsel but "learned counsel." Counsel for Sterlng-Suarez has never handled a capital case .  Holding that the term "learned counsel" found in 18 U.S.C. 3005 as the law currently stands is ambiguous the Sterling-Suarez panel denies mandamus relief.  The powerful dissent by Reagan appointee Judge Juan Torruella examines at length qualification of counsel and what experience counsel should meet in order to meet the qualifications of  § 3005 is the reason that Sterling-Suarez makes the hot list.

In a spate of noncapital  Supreme Court decisions the Court addressed sex offender registration statutes and "three strikes" laws. In Lockyer v. Andrade the Court holds two consecutive terms of 25 years to life in prison for a "third strike" conviction, was not an unreasonable application of the "clearly established" federal law, and equally as important "objectively unreasonable" for the purposes of habeas jurisprudence does not mean mere "clear error."  In Ewing v. California a plurality holds that the Eighth Amendment does not prohibit the State of California from sentencing a repeat felon to a prison term of 25 years under the state's "three strikes" law.  The Court in Smith v. Doe holds that the Alaska Sex Offender Registration Act is non-punitive, thus application of its registration requirement is not a retroactive punishment barred by the Ex Post Facto clause. Finally, in Connecticut Dep't of Pub. Safety v. Doe the Court upholds Connecticut's Megan law which requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices upheld.

Elsewhere, the Alabama Court of Criminal Appeals in Frazier v. Alabama orders a remand " "to conduct, if necessary, an evidentiary hearing, and to make written specific findings with regard to each of the claims presented," with special attention to be focused on ineffective assistance of counsel. 

The Focus section this week is taken from Prof. Carol S. Steiker, "Things Fall Apart, but the Center Holds: The Supreme Court and the Death Penalty" a commentary  December 2002 edition of the New York University Law Review.(C)  Professor Steiker's premise is that the center of the Supreme Court is holding and that "neither judicial abolition of the death penalty nor abolition of the Supreme Court's Eighth Amendment jurisprudence currently commands a majority of the Court.. . . [T]he cautious and slowly reforming middle has held—and seems likely to hold—the reins of the Court’s capital jurisprudence for the foreseeable future."

Delma Banks, scheduled to be executed Wednesday night, will be the 300th person executed by that state, he also happens to have a very strong claim of actual innocence. As the Death Penalty Information Center notes: "Attorneys for Banks assert that, in addition to evidence of racial bias in this case and the failure of Banks' trial attorney to provide an adequate defense, the underlying case against their client depends upon the testimony of two unreliable witnesses who have since recanted their testimony. Banks is now seeking relief from the U.S. Supreme Court. The Honorable William S. Sessions, the former director of the FBI, has joined other distinguished former judges and prosecutors to file a brief in the Supreme Court supporting Banks because his claims "by their very nature raise issues that threaten the ability of the adversarial system to produce just results."

In other news missed in recent weeks, the January 2003 edition of the Cornell Law Review has published "Symposium, Victims and the Death Penalty: Inside and Outside the Courtroom" has published an edition dedicated, as the name suggests, to crime victims, the death penalty and how the legal process treats them.  Also, in a new resource available on the net the Seventh and Eighth Circuits are now web-publishing briefs that appear before that court, as is the Florida Supreme Court; the briefs from the  Eighth Circuit and the Florida Supreme Court are completely searchable and free.  At capitaldefenseweekly.com the search engine is again working & the archives fully updated.

EXECUTION INFORMATION
The following person's have been executed since the last edition:

March
     11    Bobby Cook              Texas

March
     12    Delma Banks, Jr.        Texas
     13    Michael Thompson     Alabama
     18    Louis Jones                 Indiana---Federal
     18    Walanzo Robinson      Oklahoma
     20    Keith Clay                   Texas
     25    John Hooker               Oklahoma
     26    Ernest Martin              Ohio
     26    James Colburn            Texas
     27    David Jay Brown        Oklahoma

Other  notable cases of the week include Towery v. Arizona.  In Towery the Arizona Supreme Court borrows adopts the United States Supreme Court's holding in Teague v. Lane relating to retroactivity as operative as a rule of state criminal procedure.  Using the Teague retroactivity analysis the Towery Court holds that Ring v. Arizona does not apply retroactively to final cases. 

The other hot listed case is Flowers v. Mississippi.  In Flowers the Mississippi Supreme Court reverses as "the prosecution went far beyond the realm of admissible evidence in this case in order to improperly enhance the likelihood of a conviction of Flowers."  The reason that this case is considered "hot," however, is the emphasis by the Flowers Court that the prosecution's flagrant use of inadmissible evidence has unnecessarily increased the pain of the victims' families by forcing a retrial and the  Flowers Court's statement that inappropriate conduct that may guarantee a conviction below will surely be reversed by that court on appeal. 

In other cases in the Colorado Supreme Court holds in  Woldt v. Colorado "that the three-judge panel penalty statute [ ] is unconstitutional on its face" following Ring.  The South Carolina Supreme Court in South Carolina v. Haselden holds the trial court in refusing to instruct the jury that if sentenced to life imprisonment he would be ineligible for parole committed reversible error.  In Clay v. United States the United States Supreme Court held unanimously that for purposes of the one-year limitation of 28 U.S.C. section 2255, a judgment of conviction becomes final when the time expires for filing a petition for certiorari. The Second Circuit in United States v. Orlandez-Gamboa refuses relief on the suppression of the government's evidence of statements made by the defendant to Colombian prosecutors in the course of plea negotiations.  Finally, in In re Boston Herald, Inc., v. Connolly the First Circuit holds in a case of first impression that there is no right of the press to documents submitted by a criminal defendant to show financial eligibility for CJA funds and even assuming there was, the district court did not abuse its discretion in refusing access. 

Focus this week examines the recent "Final Report of the Pennsylvania Supreme Court committee on Racial and Gender Bias in the Justice System," and specifically the chapter on Racial and Ethnic Disparities in the Imposition of the Death Penalty (http://www.courts.state.pa.us/Index/Supreme/BiasCmte/FinalReport.ch6.pdf). The introduction and the conclusion of that chapter are repeated below. Most striking is the call for a moratorium, a Racial Justice Act, and a desperately needed overhaul of how the Commonwealth handles its death penalty cases. 

EXECUTION INFORMATION
The following person's have been executed since the last edition: 

February 
    25    Richard Williams         Texas 
    26    Amos King                 Florida

March 
     11    Bobby Cook              Texas 
     12    Delma Banks, Jr.        Texas 
     13    Michael Thompson     Alabama 
     18    Louis Jones                 Indiana---Federal 
     18    Walanzo Robinson      Oklahoma 
     20    Keith Clay                   Texas 
     25    John Hooker               Oklahoma 
     26    Ernest Martin              Ohio 
     26    James Colburn            Texas 
     27    David Jay Brown        Oklahoma 

---

The Arkansas Supreme Court examines in Sanders v. Arkansas what is needed to get an evidentiary hearing in that state. Sanders argues that he was denied his right to fair trial through illegal activity between defense counsel and the prosecution.  "Appellant has submitted a petition that states facts sufficient to render his allegations more than conclusory" as defense counsel was later "indicted on charges of racketeering and conspiracy along with the man who prosecuted Appellant." 

In another Fourth Circuit case, Brown v. Lee, the panel also reaches a favorable result, a remand.  Delving into the depths of the habeas corpus minutiae, the Brown panel holds that North Carolina has not regularly and consistently applied its procedural default rule to claims challenging unanimity instructions.  The net result of this failure to "regularly and consistently" apply the state's "procedural default rule" is that the  putative "state bar" can not be held to be "an adequate and independent ground" to bar federal federal habeas review. 

In other cases of note, the Georgia Supreme Court in Georgia v. LeJeune has ordered excluded from an upcoming trial certain evidence that the trial court had held permissible as evidence gathered pursuant to a search under the automobile exception to the Fourth Amendment's warrant requirement. The Fifth Circuit in Saldano v. O'Connell holds that even though the state has conceded error on racial bias in the penalty phase the District Attorney may intervene in the habeas proceedings to try to save the death sentence.  Finally, in a noncapital case, the Eleventh Circuit in Bui v. Haley has reversed on the basis of Batson. 

The Focus section will return next week. 

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

February 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 
     26    Amos King                 Florida 

March 
     11    Bobby Cook              Texas 
     12    Delma Banks, Jr.        Texas 
     13    Michael Thompson     Alabama 
     18    Louis Jones                 Indiana---Federal 
     18    Walanzo Robinson      Oklahoma 
     20    Keith Clay                   Texas 
     25    John Hooker               Oklahoma 
     26    Ernest Martin              Ohio 
     27    David Jay Brown         Oklahoma 

---

This edition can be located at:

A split Eighth Circuit en banc in Moore v. Kinney addresses the questions left unanswered in Gregg, Furman and Jurek, how much discretion is too much. Examining the Nebraska death penalty statute it holds that it is valid "on its face" despite the appellant's claims  that it is "open-ended and vague, and it fails to channel application of the death penalty" as to the "exceptional depravity" aggravator.  The Moore majority goes on to conclude that  there was no error in how the Nebraska courts constructed the statute on resentencing. The dissent perhaps explains it more succinctly, the majority's holing "permits trial courts to decide for themselves what criteria would support a death sentence after hearing all the evidence on the matter, and then conclude if the evidence presented fits within their newly-established criteria." 

Closing out the Hot List is an unusually fiery dissent in Ex Parte Rojas from the Texas Court of Criminal Appeals.  The Rojas  dissent notes that for purposes of  post-conviction  proceedings condemned was appointed an attorney who should not have been appointed for purposes of post-conviction.  Indeed, post-conviction counsel for Rojas did such a poor job that he failed to raise a single claim from outside the record.  Rojas, joins a growing list of Texas death sentenced inmates who were represented by counsel who so negligent as to actually be worse than no counsel at all, including counsel in at least five cases who filed federal habeas petitions outside the statute of limitations thereby abandoning that avenue of revenue. 

In the other cases of note the Missouri Supreme Court reversed in Wolfe v. Missouri on trial counsel's ineffectiveness relating to the scientific testing of evidence that may have resulted in an actually innocent person being sentenced to death.  A fractured Eighth Circuit en banc in Singleton v. Norris upholds the medicating of prisoners to make them sane enough to execute, at least under certain conditions.  Finally, in a rare move, the Fourth Circuit offers a positive capital case decision holding (albeit unpublished) in United States v. Lentz upholding the exclusion of certain statements  made pretrial by a capitally charged defendant. 

The Focus section will run next week. 

Now a quick appeal for a friend's antideath penalty work. CUADP (Citizen's United for Alternatives to the Death Penalty), one of the movement's most vocal opponents of the death penalty, notes the following."We're in the red.  Donations have practically stopped.  Now is not the time for CUADP to be grounded for a lack of funds.  If you can spare even just a few dollars, now is the time.  CUADP needs your help. To reach CUADP's secure server, please click here:  https://www.compar.com/donation/donateform.html .If you would like to contribute but don't wish to do so over the internet, 
please call 800-973-6548 or mail your contribution to the address shown below CUADP/ PMB 297/ 177 US Highway 1/ Tequesta, FL 33469." 

EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States: 

February 
     12    Richard Fox                Ohio 
     13    Bobby Joe Fields         Oklahoma

February 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 
     26    Amos King                 Florida 

March 
     11    Bobby Cook              Texas 
     12    Delma Banks, Jr.        Texas 
     13    Michael Thompson     Alabama 
     18    Louis Jones                 Indiana---Federal 
     18    Walanzo Robinson      Oklahoma 
     20    Keith Clay                   Texas 
     25    John Hooker               Oklahoma 
     26    Ernest Martin              Ohio 
     27    David Jay Brown         Oklahom 

A split Sixth Circuit panel in Davis v. Mitchell granted relief on the issue of  a confusing "unanimity" penalty phase jury instruction.  Notable about the holding in Davis is the Court's examination of the interplay not only the syntax of the instruction but how that instruction must be read against the backdrop of Ohio's death penalty statute. 

In third, and last, of this week's "Hot" list cases comes a case of much symbolic importance but of questionable practical help Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America).  In Mexico v. United States the International Court of Justice has requested the United States  take " 'all measures necessary' to prevent the execution of three Mexican nationals,  pending its final judgment."  The Death Penalty Information Center has noted "[a]s U.S. leaders work to enforce recently passed U.N. resolutions and to strengthen ties with allies around the world, Texas has announced that it will ignore a United Nations' World Court order to stay the execution of two Mexican foreign nationals, Cesar Fierro and Roberto Ramos." Texas officials have stated that "[a]ccording to our reading of the law and the (Vienna Convention on Consular Relations) treaty, there is no authority for the federal government or this World Court to prohibit Texas from exercising the laws passed by our legislature." 

The ABA has ratified new "Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
Complete Recommendations."  The complete draft recommendations are available at http://www.abanet.org/leadership/recommendations03/107.pdf.  The complete text (including History of the Guidelines, Related Standards, and Commentary of the revised ABA Guidelines For the Appointment and Performance of Defense Counsel in Death Penalty Cases”) is available in draft form at http://www.abanet.org/leadership/recommendations03/107link.pdf  Among the recommendations are bolstering defense teams to include two lawyers, an investigator, a mitigation specialist, and in some cases an expert to help with jury selection. 

In Focus this week is an essay by Elaine Cassel  borrowed from the Writ section of Findlaw.com.  Ms. Cassel's essay examines, "Did the Beltway Sniper Case Influence the Supreme Court's Recent Decision to Decline to Review the Juvenile Death Penalty?"  Her examination of the interplay of headline news and constitutional jurisprudence leaves as more unsettling questions than it answers. 

Finally, there is a noncapital case noted this week that deserves some attention from public defenders.  The Ninth Circuit, en banc, in Miranda v. Clark County, Nevada has opened the door for some public defenders and  public defender agencies to be sued under § 1983.  The policy at issue in the § 1983 suit is the use of polygraphs to allocate resources to those who "pass" and to drive trial strategy, a practice that is looked upon by many with suspicion but still fairly common. 

EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States: 

February 
      4     John Elliott                  Texas  (British National) 
      5     Kenneth Kenley          Missouri 
      6     Henry Dunn                Texas

February 
     12    Richard Fox                Ohio 
     13    Bobby Joe Fields         Oklahoma 
     18    Gregory Van Alstyne  Texas 
     18    Larry Jackson           Oklahoma 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 
     26    Amos King               Florida 

Four other grants of relief are also noted.   In  Cargle v. Mullin a Tenth Circuit panel reverses conviction "based, individually, on ineffective assistance of counsel and, cumulatively, on the combined impact of this error and prosecutorial misconduct," as well as for multiple listed additional reasons for reversing the actual death sentence.  The Ninth Circuit reverses in Douglas v. Woodford on penalty phase ineffectiveness.  In Garden v. Delaware the Delaware Supreme Court reverses on the trial court's override to death holding  that the trial judge failed to give adequate "weight" to the jury's recommendation. The California Supreme Court in California v. Burgener remands as the trial court applied the wrong standard on appellant's motion  for modification of verdict. 

This week's Focus section comes from FindLaw.com's  essayist and Rutgers Law Professor Sherry F. Colb.  Prof. Colb's essay, "When a Prostitute Kills: The Execution Of Aileen Carol Wuornos" covers familiar territory in a new light, the execution of Aileen Carol Wuornos.  Prof. Colb's essay makes a strong argument about the law of rape and self-defense, and ends up asking two questions for everyone it answers. 

Finaly, in an event most are now familiar with, just days before Florida released its 23rd exonerated man from death row, Rudolph Holton (discussed last week), Governor Jeb Bush announced a proposal to abolish the Capital Collateral Regional Counsel (CCRC) offices that oversee Florida's death penalty appeals. Lawyers from the CCRC were instrumental in securing the release of Holton, as well as other Florida death row inmates who were exonerated, including Juan Melendez and Frank Lee Smith. Bush said that he favors providing the death row inmates currently represented by the regional offices with private attorneys who voluntarily register to take on capital cases, a proposal that has drawn sharp criticism from experienced defense attorneys in the state. 
 

EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States: 

January 
     28   Alva Curry                Texas 
     29   Richard Dinkins         Texas 
     30   Granville Riddle         Texas

February 
      4     John Elliott                  Texas  (British National) 
      5     Kenneth Kenley          Missouri 
      6     Henry Dunn                Texas 
     12    Richard Fox                Ohio 
     13    Bobby Joe Fields         Oklahoma
     18    Gregory Van Alstyne  Texas 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 

---

---

This edition can be located at:
http://capitaldefenseweekly.com/archives/030127.htm

---

Louisiana v. Watts leads this edition with a grant of relief based on newly discovered evidence. The relief grant lies, in this factually complex case, not on actual innocence but on the degree of moral culpability.  Since the Watts Court carefully examines how one piece of evidence can be stacked on another to achieve reversal on the issue of lesser included offense, the holding is repeated at some length below. 

Two Georgia cases are also noted this week.   In Rogers v. Georgia,  the Georgia Supreme Court has granted a hearing on wither Rogers is actually mental retardation as the court below  was improperly held Rogers could waive his right to a mental retardation evaluation.    In Georgia v. Johnson the Georgia Supreme Court has ordered that, in at least some circumstances, the mental health evaluation of a defendant done by the state's expert can be sealed until after the jury returns a verdict in the guilt/innocence phase of the proceedings to protect the right against self-incrimination . 

Florida death row inmate Rudolph Holton was released on January 24, 2003, making him, according to the Death Penalty Information Center,  the 103rd person exonerated and freed from death row nationwide since 1973. Holton's conviction for murder was overturned in 2001 and prosecutors announced today that the state was dropping all charges against Holton, who had spent 16 years on death row.  Crucial evidence had been withheld from the defense that pointed to another perpetrator. 

In Focus this week is a small out take from Jennifer Van Bergen's "Brain Chemistry and Criminal Defenses,  A Legal & Philosophical Inquiry" from Criminal Defense Weekly.

Finally, the Weekly has moved to the beginning of the work week due to scheduling conflicts. 

EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States: 

January 
     22   Robert Lookingbill      Texas

The following stays have been granted: 

January 
     23   Elkie Taylor               Texas  (mental retardation) 
     24   Henry Hunt               North Carolina (Ring/indictment did not state the aggravators)

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

January 
     28   Alva Curry                Texas 
     29   Richard Dinkins         Texas 
     30   Granville Riddle         Texas 

February 
      4     John Elliott                  Texas  (British National) 
      5     Kenneth Kenley          Missouri 
      6     Henry Dunn                Texas 
     12    Richard Fox                Ohio 
     13    Bobby Joe Fields         Oklahoma 
     18    Gregory Van Alstyne  Texas 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 

---

This edition can be located at:
http://capitaldefenseweekly.com/archives/030113.htm

---

Two cases are covered as "Hot" this week, both delve into the byzantine world of habeas corpus jurisprudence and the death penalty. 

Following remand from the Supreme Court a Third Circuit panel upholds its prior grant of relief in Banks v. Horn. The Supreme Court had remanded in previously instructing the Court of Appeals to analyze the applicability of "Teague" to Mills v. Maryland.   On remand from the Supreme Court the panel holds that Mills did not announce a new rule of constitutional law for retroactivity purposes.  Of interesting note is Judge Sloviter's concurring opinion that would hold, in at least some limited instances, that the time from which "Teague" analysis is made is the most recent state supreme court opinion. 

The Fourth Circuit in Rouse v Lee remands on the issue of equitable tolling.  Examining when, if at all, equitable tolling is applicable the Rouse Court, over dissent, holds that equitable tolling may be used where the Petitioner is one day out of time due to a putative misunderstanding of state and federal procedural rules, has a potential meritorious claim (juror bias), and the penalty is death.  The dissent notes that prior Fourth Circuit precedent seemingly does not permit equitable tolling. 

The United States Supreme Court has delivered another loss this week in Sattazahn v. Pennsylvania. In a very narrow opinion the Court holds 5-4 that double jeopardy does not bar a sentence of death under Pennsylvania law following a successful appeal as to guilt where the original jury deadlocked as to sentence. 

As the repercussions of Governor Ryan's blanket commutations continue to reverberate, the law and politics of clemency are at note in this week's Focus section.  The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?, 81 Or. L. Rev. 231 (2002), by Beau Breslin and John J.P. Howley from the recent "Wayne Morse Center for Law and Politics Symposium: 
The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?" examines the history and law of clemency.  A 
small "taste" of that article is noted this week. 

Finally, as noted last week, this edition kicks off a tracking program of covered cases on innocence and on race claims.  The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved: 

*PCI from the face of the decision a possible claim of actual innocence appears possible. 
*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had. 
*RC from the face of the decision questions about the interplay of race is made.

EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States: 

January 
    14   Samuel Gallamore     Texas 
    15   John Baltazar            Texas 
    16    Daniel Revilla           Oklahoma

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

January 
     22   Robert Lookingbill      Texas 
     23   Elkie Taylor               Texas 
     24   Henry Hunt               North Carolina 
     28   Alva Curry                Texas 
     29   Richard Dinkins         Texas 
     30   Granville Riddle         Texas 

February 
      4     John Elliott                  Texas  (British National) 
      5     Kenneth Kenley          Missouri 
      6     Henry Dunn                Texas 
     12    Richard Fox                Ohio 
     13    Bobby Joe Fields         Oklahoma 
     18    Gregory Van Alstyne  Texas 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas 

---

This edition can be located at:
http://capitaldefenseweekly.com/archives/030106.htm

---

The news this week comes, as most already know, not from the courts but from the political realm.  The week was punctuated by two earth shatter news stories one out of Maryland dealing with race and the other, of course, out of Illinois dealing with innocence.  In honor of these two stories, starting next edition, the Weekly will informally begin tracking all claims of innocence in published opinions that get reported, as well as an informal tracking of all race based claims for the foreseeable future. 

On Saturday, January 11, 2003, Illinois Governor George Ryan declared that capital punishment was flawed, unfair, arbitrary, and immoral. With that, he commuted the death sentences of 163 men and 4 women--every person on the Illinois death row. These 167 people had their sentences changed to life without parole. Gov. Ryan, a death penalty supporter, three years ago established a commission to study the death penalty. Based on their findings, Gov. Ryan made this decision as he prepared to leave office.  For his efforts, Governor Ryan, Governor Ryan has not only earned a Nobel Prize nomination but is considered by some to be on a short list of favorites for it. 

Half way across the country and over shadowed by the events in Illinois, the findings of  Maryland's Governor -commissioned death penalty study have been released. Researchers at the University of Maryland found that state's death penalty system is tainted with racial bias, and that geography plays a significant role in who faces a capital conviction. The study, one of the nation's most comprehensive official reviews on race and the death penalty, concluded that defendants are much more likely to be sentenced to death if they have killed a white person. The Maryland study is examined in "Focus" this week. 

One other story of note, whose legal pleadings are not available, Mexico has filed a complaint against the United States in the International Court of Justice charging that American officials have violated the rights of all 54 Mexicans on death row in the U.S. and asking that their sentences be commuted to life in prison. Juan Manuel Gomez Robledo, the Foreign Ministry attorney who filed the case with the U.N. court in The Hague, claims that U.S. authorities frequently provide Mexican nationals facing capital charges with public defenders who "speak little or no Spanish and have no experience in death penalty cases." Robledo asserts that the U.S. has violated the Vienna Convention on Consular Relations, which guarantees access to consular assistance when foreign nationals are accused of a crime, and as a result Mexican missions are denied the opportunity to provide Spanish-speaking lawyers who have more experience with capital cases. 

Hot listed this week is the Ohio Supreme Court's analysis of the interplay between the First and Sixth Amendments in  State ex rel. Beacon Journal Publishing Co. v. Bond. 

---

This edition can be located at:
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
The following executions dates for the next few weeks that are considered serious:* 

January 
      2    Daniel Revilla           Oklahoma 
      8    Ronald Foster          Mississippi----juvenile 
      8    Daniel Revilla           Oklahoma 
     14   Samuel Gallamore     Texas 
     14   Bobby Joe Fields     Oklahoma 
     15   John Baltazar            Texas 
     22   Robert Lookingbill    Texas 
     23   Elkie Taylor              Texas 
     28   Alva Curry                Texas 
     29   Richard Dinkins         Texas 
     30   Granville Riddle         Texas 

February 
      4     John Elliott                 Texas 
      5     Bobby Cook              Texas 
     12    Richard Fox               Ohio 
     18    Gregory Van Alstyne  Texas 
     25    Richard Williams         Texas 
     26    Michael Johnson         Texas