This edition leads off with the Supreme Court's spectacular grant of relief in Wiggins v. Smith.  While no mere excerpting of Wiggins can do justice to the importance of that decision, its reliance on the ABA standards for what competent counsel must do pursuant to their obligations can not be underscored.  This reliance is even more important in light of the recent "racheting up" of the ABA's standards for what counsel must do in a capital case.  Although other cases may have obtained more ink in the mainstream media, Wiggins is arguably the one case this term of greatest import to any practitioner with a capital case, at any level.

Joining  Wiggins in the lead off cases this week is the Florida Supreme Court's decision in Marshall v. Florida.  Marshall matters for its grant of an evidentiary hearing on the issue of juror misconduct.  In the course of granting the hearing the Florida Supreme Court rounds up the law of juror misconduct & offers a concrete reason why counsel needs to investigate such claims.

In the lower courts, the Ninth Circuit handed an important victory in  Rohan v. Gates  when it held a federal habeas proceeding should be stayed when the petitioner becomes incompetent.  The Ninth Circuit, likewise, in Alcala v. Woodford, granted relief on numerous issues including evidentiary matter and ineffective assistance of counsel.  In Robbins v. Arkansas the Arkansas Supreme Court, ordering state post-convictin proceedings reopened citing, amongst other reasons, "it is now incumbent on the states to do a comprehensive state-court review in all death cases in order to eliminate the need for multiple federal habeas corpus proceedings." The Mississippi Supreme Court in Foster v. Mississippi has set out that state's mental retardation standards. The  Oklahoma Court of Criminal Appeals in  Fitzgerald v. Hanson, has held that the trial court erred in not allowing questioning, amongst other claims,  of whether  "potential jurors, including sitting jurors, would automatically impose the death penalty for malice murder." The Missouri Supreme Court in Missouri v. Barriner held that the trial court improperly excluded hair comparison evidence that tended to exonerated the accused.

The Supreme Court, not to be out done by the lower courts has issued a litany of opinions that have placed a check on the power of the state. In Stogner v. California, it ruled states may not extend the statute of limitations for certain crimes without offending the Constitution's Ex-Post Facto Clause, Art. I, section 10, cl. 1.  In Lawrence v. Texas, in part relying on international law, held certaint intimate physical relationships are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment.  In Nguyen v. United States the Court reminds the lower judiciary Article IV territorial-court judges do not have authority to decide appeals.  In  Sell v. United States, the court placed severe checks on the administration of psychotropic drugs to render a petitioner competent. 

A separate mailing relating to the "best of the death penalty web" will be sent out in the next few days.

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

June
    11  Kia Johnson          Texas
    13  Joseph Trueblood   Indiana
    18  Ernest Martin         Ohio
July
     1  Lewis Gilbert II        Oklahoma
     2     Hilton Crawford     Texas

The following execution dates are believed to be serious:

July
      8     Robert Don Duckett    Oklahoma
      9     Christopher Black       Texas
      9     Riley Noel                  Arkansas
     18    Joseph Bates             North Carolina
     22    Bryan Toles               Oklahoma
     23    Cedric Ransom          Texas
     24    Allen Janecka            Texas
     24    Jackie Lee Willingham Oklahoma
     24    Richard Cooey            Ohio
     29    Harold McElmurry III    Oklahoma--volunteer

August
      1    Darnell Williams           Indiana
      6    Curtis Moore                Texas
      6    Jose Rivera                  Texas
      7    Ricky Lynn Lewis         Texas
      7    Tommy Fortenberry      Alabama
     20    Mark Robertson           Texas

Three capital case decisions lead off this week. The first of the three is a loss, Pennsylvania v  Freeman.  What is notable about Freemanis the Pennsylvania Supreme Court's abandonment of  its so-called "relaxed waiver" rule for capital cases.  The end result is that issues that were not preserved by trial counsel will be subject to review under less favorable standards of review in postconviction.

The other two case results are more favorable. In a fairly complex ruling in People v. Hernandez, the California Supreme Court reverses a death sentence reversed on the basis of the rule of lenity as "the 1978 death penalty law is most plausibly construed as not authorizing the charging of special circumstances for the crime of conspiracy to commit murder."  The Eleventh Circuit in In re Holladay has granted a stay on a successive habeas petition to determine whether the condemned suffers from mental retardation, even though it notes some of the prior IQ testing results indicated scores above 70.

Several other notable cases are also had this week. In Shafer v. Bowersox, the Eighth Circuit has  granted relief as "the state supreme court unreasonably applied clearly established federal law in finding that Shafer's waivers of counsel and guilty pleas were knowing, voluntary, and intelligent."  The Ninth Circuit en banc has upheld in Bittaker v. Woodford a  district court's "protective order precluding use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies." In an unpublished opinion the Arkansas Supreme Court in Anderson v. Arkansas has vacated a death sentence as "there is no evidence the jury considered a stipulated mitigating factor in the sentencing phase of the trial." The Nevada Supreme Court in Nevada v. Haberstroh has vacated a death sentence as the jury's finding of depravity of mind as an aggravating circumstance, without a proper limiting instruction, was improper.

The focus section this week deals with a recent article in The Atlantic that addresses some of the clemency memos from then Governor Bush's time in Texas.  The Atlantic article (found in the current edition online at http://www.theatlantic.com/issues/2003/07/media-preview/berlow.htm) is aptly titled the "The Texas Clemency Memos" was written by Alan Berlow.

A spate of new law review article have come out on the New York death penalty & related topics spurred on by the indefatigable Norman Greene and the Association of the Bar of the City of New York's Capital Punishment Committee. More articles are coming out relatively soon from this group.  Some of the recent articles include: 

The Death Penalty in New York Before 1965 (38 Crim. L. Bull. 510; 38 Crim. L. Bull. 516) (a historical analysis of how the New York death penalty system worked prior to the reintroduction under Gov. Pataki).

The Death Penalty in the Age of Terrorism, 41 Cath. Law. 187 (2003) (as the name implies, an examination of the contemporary use of the death penalty & the moral issues associated with it)

Dying Twice: Conditions On New York's Death Row, 22 Pace L. Rev. 347 (Spring 2002) (examines the so-called "death row phenomenon" with specific attention to, obviously, New York)

Finally, I am about to do a presentation here (read NYC metro) on death penalty legal resources available on the internet to pro bono counsel and others.  If you have a suggestion please feel free to forward.  All suggestions are welcome & the materials from the presentation will be posted in an upcoming edition. Additionally, a regular brown bag luncheon, hosted by the ABCNY will be beginning in the coming months to help assist those in the NYC area currently representing death row inmates or interested in representing death row inmates; more details in the coming weeks.

Capital Defense Weekly 
This edition can be located at: 
http://capitaldefenseweekly.com/archives/030609.htm 
cdw@capitaldefenseweekly.com
Three capital case decisions lead off this week. The first of the three is a loss, Pennsylvania v  Freeman.  What is notable about Freeman is the Pennsylvania Supreme Court's abandonment of  its so-called "relaxed waiver" rule for capital cases.  The end result is that issues that were not preserved by trial counsel will be subject to review under less favorable standards of review in postconviction. 

The other two case results are more favorable. In a fairly complex ruling in People v. Hernandez, the California Supreme Court reverses a death sentence reversed on the basis of the rule of lenity as "the 1978 death penalty law is most plausibly construed as not authorizing the charging of special circumstances for the crime of conspiracy to commit murder."  The Eleventh Circuit in In re Holladay has granted a stay on a successive habeas petition to determine whether the condemned suffers from mental retardation, even though it notes some of the prior IQ testing results indicated scores above 70. 

Several other notable cases are also had this week. In Shafer v. Bowersox, the Eighth Circuit has  granted relief as "the state supreme court unreasonably applied clearly established federal law in finding that Shafer's waivers of counsel and guilty pleas were knowing, voluntary, and intelligent."  The Ninth Circuit en banc has upheld in Bittaker v. Woodford a  district court's "protective order precluding use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies." In an unpublished opinion the Arkansas Supreme Court in Anderson v. Arkansas has vacated a death sentence as "there is no evidence the jury considered a stipulated mitigating factor in the sentencing phase of the trial." The Nevada Supreme Court in Nevada v. Haberstroh has vacated a death sentence as the jury's finding of depravity of mind as an aggravating circumstance, without a proper limiting instruction, was improper. 

The focus section this week deals with a recent article in The Atlantic that addresses some of the clemency memos from then Governor Bush's time in Texas.  The Atlantic article (found in the current edition online at http://www.theatlantic.com/issues/2003/07/media-preview/berlow.htm) is aptly titled the "The Texas Clemency Memos" was written by Alan Berlow. 

A spate of new law review article have come out on the New York death penalty & related topics spurred on by the indefatigable Norman Greene and the Association of the Bar of the City of New York's Capital Punishment Committee. More articles are coming out relatively soon from this group.  Some of the recent articles include: 

The Death Penalty in New York Before 1965 (38 Crim. L. Bull. 510; 38 Crim. L. Bull. 516) (a historical analysis of how the New York death penalty system worked prior to the reintroduction under Gov. Pataki). 

The Death Penalty in the Age of Terrorism, 41 Cath. Law. 187 (2003) (as the name implies, an examination of the contemporary use of the death penalty & the moral issues associated with it) 

Dying Twice: Conditions On New York's Death Row, 22 Pace L. Rev. 347 (Spring 2002) (examines the so-called "death row phenomenon" with specific attention to, obviously, New York)
Due to time constraints four Alabama cases will be covered next week. The cases are: Lewis v. Alabama, 2003 Ala. Crim. App. LEXIS 135 (Ala. Crim. App 5/30/2003);  McGahee v. Alabama, 2003 Ala. Crim. App. LEXIS 133 (Ala. Crim. App. 5/30/2003); Martin v. Alabama, 2003 Ala. Crim. App. LEXIS 136 (Ala. Crim. App 5/30/2003); and Periata v. Alabama, 2003 Ala. Crim. App. LEXIS 137(Ala. Crim. App 5/30/2003) 
Finally, I am about to do a presentation here (read NYC metro) on death penalty legal resources available on the internet to pro bono counsel and others.  If you have a suggestion please feel free to forward.  All suggestions are welcome & the materials from the presentation will be posted in an upcoming edition. Additionally, a regular brown bag luncheon, hosted by the ABCNY will be beginning in the coming months to help assist those in the NYC area currently representing death row inmates or interested in representing death row inmates; more details in the coming weeks. 

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

June
     5    Kenneth Charm           Oklahoma
    11    Kia Johnson               Texas

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

June
     13    Joseph Trueblood        Indiana
     18    Ernest Martin              Ohio
     24    Lewis Williams             Ohio
     27    Jerome Campbell          Ohio 

Leading off this week's edition is Lynn v. Reinstein from the Arizona Supreme Court. Following on the heel's of the last edition's examination of the briefs from a Louisiana case where a murder victim's family member wanted to testify for the defense for life, the Arizona High Court holds that murder victim family members may not tell a jury they want life and not death as a matter of federal constitutional law.

Joining Lynn on the "Hot List" is the South Carolina Supreme Court's decision in South Carolina v. Bryant.  In Bryant the Court holds that law enforcement's contact with jurors' family members compromised the jury's verdict. In that case police contact went so far as to ask family members whether a given juror would return death and to tell the spouse of at least one juror that the police wanted the jury to return death for the defendant, an alleged cop-killer.

Elsewhere, in Harlan v. Colorado a state trial court has held that Bible study during the jury's deliberations to determine the fate of the defendant was error.  The trial court's opinion, in part, can be found below in the "Focus" section.  With the grant of relief in Harlan & the Supreme Court's decision in Ring, Colorado is left with just one person on death row.

The United States Supreme Court, now in its final weeks for this Term, has handed down two germane opinions.  In Bunkley v. Florida the Court held that due process may be violated in certain circumstances if a Defendant is not afforded the benefit of changes in law that came down after his direct appeal became final. In Chavez v. Martinez the Court holds where a confession is coerced and the state does not prosecute there is no Fifth Amendment violation that would permit a § 1983 suit.

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

May
     27    Robert Knighton         Oklahoma

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

June
      5    Kenneth Charm           Oklahoma
     11    Kia Johnson               Texas
     13    Joseph Trueblood        Indiana
     18    Ernest Martin              Ohio
     18    Kenneth Thomas         Texas
     18    Abu-Ali Abdur'Rahman   Tennessee
     24    Lewis Williams             Ohio
     27    Jerome Campbell          Ohio
     27    Roberto Arguelles         Utah
     28    Troy Kell                      Utah

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This edition can be located at:

Three cases lead off this edition.  In Olsen v. Wyoming the Wyoming Supreme Court  has held that victim impact evidence is not admissible at the sentencing phase of capital trials in Wyoming. In Missouri the state supreme court has held in Ex rel Armine v. Roper that "upon a clear and convincing showing of actual innocence" relief may be had.  In  Powell v. Collins the Sixth Circuit examines the right to expert assistance in Ake & grants penalty phase relief.

Elsewhere, the United States Supreme Court in a clear shot across the bow of the Texas Court of Criminal Appeals has issued a summary grant and reversal in Kaupp v. Texas on the issue of a confession obtained as a fruit of unlawful arrest.The Seventh Circuit in Aki-Khuam v. Davis, has granted relief on a Batson claim. In Bryant v. Maryland, the trial court was held to have "erred by not finding by a preponderance of the evidence that youthful age was a mitigating circumstance" where the age at the time of the offense was 18.

A stay for  Newton Slawson was granted by the Florida governor to determine competency to be executed.  The same holds true for Paul Reid of Tennessee who was granted a stay by the Sixth Circuit. Both men were volunteers, Mr. Reid has since withdrawn his "consent" to be executed.

A cut from the amicus brief filed on behalf of Murder Victims' Families for Reconciliation (MVFR) on behalf of one of their members is noted in the Focus section this week.  MVFR in the brief seeks to have "victim impact" testimony that family members don't want death introduced in the penalty phase.

Finally, my apologies for the erratic publication dates of late and the brevity of analysis as my "docket" has been trial heavy of late.

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

May
      2    Kevin Hough              Indiana
      6    Roger Vaughn            Texas
     6    Carl Isaacs                Georgia
     15    Bruce Jacobs            Texas
     15    Newton Slawson        Florida-- volunteer

May
     27    Robert Knighton         Oklahoma
     28    Percy Walton             Virginia
     29    Glenn Holladay          Alabama

June
      5    Kenneth Charm           Oklahoma
     11    Kia Johnson               Texas
     13    Joseph Trueblood        Indiana
     18    Ernest Martin              Ohio
     18    Kenneth Thomas         Texas
     18    Abu-Ali Abdur'Rahman   Tennessee
     24    Lewis Williams             Ohio
     27    Jerome Campbell          Ohio
     27    Roberto Arguelles         Utah
     28    Troy Kell                      Utah

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For the first time in several months and despite this being a double issue, there is no "Hot Case" listed for the covered period. The one germane Supreme Court opinion covered this week,  Massaro v. United States holding an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. section 2255 even if it could have been  raised the on direct appeal, likewise offered nothing that was  unexpected.  The Court has, however, granted certiorari in Banks v. Cockrell, four issues were presented to the Court, which one(s) it is interested in remains unknown.

A stay was had of the previously scheduled execution for Robert Ladd in Texas on the basis of Atkins v. Virginia by the Fifth Circuit. In Tennessee a stay was had when the Sixth Circuit ordered a full blown competency to be executed & to waive appeals hearing.  Opinions for both cases are not yet available.

Excerpts from the Petitioner's brief in Banks v. Cockrell are the covered this week in the Focus section.

Finally, in the last edition it was improperly noted in the introduction that Darks v. Mullinswas a win. The body of the edition was correct when it noted,  "habeas denied even though the court below 'held that the trial court had violated Beck v. Alabama by failing to instruct on first degree manslaughter as a lesser included offense of capital murder and had unconstitutionally coerced the death verdict by giving the jury a supplemental instruction.'"  My apologies for any confusion.

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

April
     9     Earl Bramblett             Virginia
    17    Larry Jackson              Oklahoma

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

May
      2    Kevin Hough              Indiana
      6    Roger Vaughn            Texas
      6    Carl Isaacs                Georgia
     14    Jerome Campbell       Ohio
     14    John Clayton Smith    Missouri---volunteer
     15    Newton Slawson        Florida
     15    Bruce Jacobs            Texas
     21    Eric Moore                Texas
     27    Robert Knighton         Oklahoma
     28    Percy Walton             Virginia
     29    Glenn Holladay          Alabama

June
      5    Kenneth Charm           Oklahoma
     11    Kia Johnson               Texas
     13    Joseph Trueblood        Indiana
     18    Ernest Martin              Ohio
     18    Kenneth Thomas         Texas
     18    Abu-Ali Abdur'Rahman   Tennessee
     24    Lewis Williams            Ohio
     28    Troy Kell                     Utah
 

Leading off this week is the California Supreme Court's holding in California v. Dent. In Dent that court held the he trial court impermissibly abridged, pursuant to Faretta, the appellant's right to self representation below.  Specifically,  regardless of "whether or not defendant's request to proceed in propria persona was equivocal the trial court's response foreclosed any realistic possibility defendant would view self representation as an available option."

Several other cases are likewise of note. The Eighth Circuit in Whitfield v. Bowersox has held that the state trial court fatally erred when it did not secure an explicit waiver of his right to testify during the penalty phase of the trial.  In Darks v. Mullins a panel of the Tenth Circuit has reversed a district court's grant of habeas relief where relief below was had on claims under Beck v. Alabama and  coercive impact in the penalty phase of a certain supplemental instruction.  In a noncapital case the Sixth Circuit in Mitchell v. Mason, holds that de minimis contact with a client pretrial (less than 10 minutes pretrial) is a denial of the right to counsel.

The Focus section will return next week.

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

April
     9     Earl Bramblett             Virginia
    17    Larry Jackson              Oklahoma

A stay was had of the previously scheduled execution for Kenneth Morris on April 15 in Texas on the basis of Atkins.

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

April
    22    Juan Chavez                Texas
    23    Robert Ladd                 Texas
    24    Gary Brown                  Alabama
    29    David Brewer                Ohio

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