Capital Defense Weekly

SUPREME COURT
Mitchell v. Esprarza, 540 US --- (11/3/2003) Ohio’s failure to charge in the indictment that Esparza was a “principal” was not the functional equivalent of “dispensing with the reason-able doubt requirement." The Sixth Circuit should have used a harmless error analysis and here, the Court holds, any error harmless beyond a reasonable doubt.

HOT LIST
Tennessee v. Mellon, 2003 Tenn. LEXIS 1017 (Tenn 10/30/2003) Where the defendant was not adequately informed of his obligation to cooperate in a related proceeding if he wanted to avoid a capital prosecution, guilty plea held "not knowingly and voluntarily entered."

Ault v. Florida, 2003 Fla. LEXIS 1896 (FL 11/6/2003) Relief as to penalty granted as the trial court improperly removed for cause on a juror who stated she opposed the death penalty but would follow the law as instructed by the trial court.

Armstrong v. Florida, 2003 Fla. LEXIS 1861 (FL 10/30/2003) Admission in the penalty phase of a subsequently vacated out of state conviction (indecent assault and battery on a child of the age of fourteen) was not harmless beyond a reasonable doubt.

CAPITAL CASES (Favorable Disposition)

Mollet v. Mullin, 2003 U.S. App. LEXIS 22738 (10th Cir 11/5/2003) The trial court erred under Simmons v. South Carolina in not clarifying for the jury, in response to a jury question, that life in this case meant "life without parole."

Daniel v. Nevada, 2003 Nev. LEXIS 75 (Nev 11/3/2003) Conviction vacated as "[a] number of trial errors occurred in this case. The district court erred in meeting privately with a State witness without making a record of the meeting, in answering questions from the jury without notifying counsel and without making a record of the answers given, in allowing questioning regarding appellant's prior arrests, in limiting appellant's presentation of evidence regarding the violent character of the victims, and in not allowing questioning of a juror about possible prejudice against appellant."

Arizona v. Dann, 2003 Ariz. LEXIS 131 (Az 10/29/2003) Vacateur of death sentence in light of Ring v. Arizona.

North Caolina v. Valentine, 2003 N.C. LEXIS 1266 (NC 11/7/2003) The state submitted one aggravator, that “defendant had been previously convicted of a felony involving the use or threat of violence to the person.” The state put on the stand the putative victim of a prior assualt for which Valentine was convicted. The trial court limited the scope of examination of an alleged recantation made by the victim in the prior case. On appeal the state supreme court holds the trial court erred in limiting Valentine's right to cross-examine the alleged victim/witness as to the recantation.

CAPITAL CASES (Unfavorable Disposition)
Smith v. Mitchell, 2003 U.S. App. LEXIS 21974 (6th Cir 10/28/2003) Relief denied chiefly on claims of whether trial counsel's investigation and preparation for mitigation were sufficient under Ake v. Oklahoma.

Brown v. Head, 2003 U.S. App. LEXIS 22702 (11th Cir 11/4/2003) Petitioner's Rule 60(b) motion and request for a stay of execution denied on a claim arising from the recanting of the testimony of a penalty phase witness.

Flores v. Dretke, 2003 U.S. App. LEXIS 21976 (5th Cir 10/28/2003) (unpublished) COA denied. Guilty plea plea held to be "knowing, intelligent, and voluntary." Trial counsel's failure to investigate and introduce evidence of neurological impairment and history of abuse held to be strategic as it could have "cuts both ways" leading the jury more likely to vote for death.

Melendez v. Dretke, 2003 U.S. App. LEXIS 22111 (5th Cir 10/29/2003)(unpublished) COA denied on Brady claims relating to whether someone impermissibly tampered with the crime scene without informing the defense.

North Carolina v. Squires, 2003 N.C. LEXIS 1265 (NC 11/7/2003) Relief denied, most notably, on sufficiency of the evidence as the aggravator, use of a "short-form" indictment that did not meet the putative requirements of notice (guilt phase) and Ring v. Arizona (penalty phase), application of the felony murder rule under state law to make the underlying murder capital, and that the jury should have been informed that he was serving 105 years on an out of state conviction.

Snyder v. Alabama, 2003 Ala. Crim. App. LEXIS 294 (Ala Crim App 10/31/2003)(dissent) Relief denied most notably, on exclusion of evidence another person committed the crime; bad jury instructions on weighing of life vs. death; and designation of a witness as a "court's witness" and permitting the witness to than be lead on direct by the prosecution.

Howell v. Mississippi, 2003 Miss. LEXIS 556 (Miss 10/23/2003) (dissent) Relief denied most notably on: (1) failure to find that the State's peremptory strikes of African-American venire members was racially discriminatory; (2) failure to allow Howell to conduct individual sequestered voir dire of jurors who indicated a predisposition in the case; and (3) allowing the State, in closing argument, to refer to Howell's failure to tell somebody about his alibi defense or give details.

Jackson v. Virginia, 2003 Va. LEXIS 101 (VA 10/31/2003) Relief denied as the court holds, most notably: (1) Jackson's confession was voluntary; (2) trial court did not err in refusing to strike certain jurors for cause or in denying Jackson's challenge to the jury panel based on Batson v. Kentucky; and (3) trial court's evidentiary rulings regarding expert testimony and negative evidence of reputation.

Echols v. Arkansas, 2003 Ark. LEXIS 567 (Ark 10/30/2003) Relief denied on claims relating to post-conviction trial court's findings, trial counsel's putative conflict of interest, and IAC. Trial counsel's performance held permissible relating to failing to develop expert testimony, not seeking change of venue, voir dire performance, failing to challenge expert witness on the occult, and the quality of the investigation into mitigation issues.

Missouri v. Kinder, 2003 Mo. App. LEXIS 1766 (Mo. App. 11/4/2003) DNA testing denied as Kinder's trial counsel had an opportunity to perform DNA tests.

Ohio v. Hutton, 2003 Ohio LEXIS 2816 (Ohio 11/5/2003) Motion to reopen direct appeal denied.

Franlin, et al, v. Maynard, 2003 S.C. LEXIS 269 (SC 11/3/2003) Numerous death sentenced and death eligible defendants sought procedures to determine what the trial and post-conviction standards for mental retardation claims should encompass. Court holds that for purposes of trial they have been defined by statute and that for purposes of post-conviction, MR must be proven by a simple preponderance of the evidence.

Jones v. Texas, 2003 Tex. Crim. App. LEXIS 712 (Tex. Crim. App. 11/5/2003) Trial court erred in admitting appellant's confessions to two additional murders at the punishment stage but held that such the admission into evidence was harmless.

Owen v. Florida, 2003 Fla. LEXIS 1778;28 Fla. L. Weekly S 790 (FL 10/23/2003) Relief denied on claims that: "(1) the trial court erred in failing to suppress Owen's confession on the basis of voluntariness; (2) the trial court erred in failing to suppress Owen's confession because Owen made an unequivocal invocation of his right to remain silent which was ignored by the law enforcement officers questioning him; (3) the trial court improperly applied the aggravating factor of heinous, atrocious, or cruel (HAC); (4) the trial court improperly applied the aggravating factor of cold, calculated, and premeditated (CCP); (5) the sentence of death is disproportionate; (6) Florida's death penalty statute is unconstitutional; and (7) the aggravating factor of murder in the course of a specified felony is unconstitutional."

OTHER RESOURCES
The Daily Blog noted this week (http://capitaldefenseweekly.com/blognews.html):

President Carter Calls on U.S. to Protect Children's Rights
In a speech urging U.S. leaders to ratify the United Nation's Convention on the Rights of the Child (CRC), which forbids the execution of juvenile offenders, President Jimmy Carter noted that the United States and Somalia are the only two countries in the U.N. that have not approved the guidelines. "My wife (Rosalyn) writes letters to the governors of each state when a child is going to be executed," Carter noted as he praised his wife's work to end the juvenile death penalty. Carter added that America's objection to the CRC because it forbids the juvenile death penalty weakens the United Nation's ability to fight for children's rights in other areas of law, including a ban on the use of juvenile soldiers. "These kids are often 8 and 10 years old, and all they have are AK-47s. The United States is seen as the most prominent world leader...yet, by not supporting the UN Convention, other countries see that the United States does not have an intense commitment to the rights of children." (The Emery Wheel, October 22, 2003) See Juvenile Death Penalty.

Victim's Son Awarded Scholarship from Prisoners on Death Row
Two years after Brandon Biggs first expressed forgiveness for Chante Mallard, the woman who killed his father in a nationally-publicized Texas murder, he has received a $10,000 college scholarship from prisoners on death row. The scholarship is funded through advertising and subscriptions to "Compassion," a two-year-old newsletter edited by and featuring articles by death row inmates across the nation. Biggs, whose father was struck by a car on a Fort Worth highway and left to bleed to death, is the third murder victims' family member to earn the award. During Mallard's trial, Biggs expressed his forgiveness and told her family, "There's no winners in a case like this. Just as we all lost Greg (Biggs's father), you will be losing your daughter." During the scholarship presentation, he added, "If love is what makes the world go round, compassion makes it sincere." Mallard is serving 50 years in prison for the murder, and Biggs is a pastoral ministries sophomore at Southwest Assemblies of God University in Texas. (New York Times, October 23, 2003) See Victims.

NEW RESOURCE: An Expendable Man
A new book by Margaret Edds, an award-winning editorial writer with the Virginian-Pilot, explores the wrongful conviction of former Virginia death row inmate Earl Washington. "An Expendable Man: The Near-Execution of Earl Washington, Jr." provides detailed analysis of the state's prosecution of Washington, a mentally retarded man who spent almost 18 years in prison - nearly 10 of those on death row - for a murder he did not commit. The book reveals the relative ease with which individuals who live at society's margins can be wrongfully convicted and the extraordinary difficulty of correcting such a wrong once it occurs. (New York University Press, 2003) See Resources.

Judge Throws Out Last Piece of Evidence Against Tennessee Man
Michael Lee McCormick has been on Tennessee's death row for 17 years, but a recent court decision throwing out the remaining evidence against him could result in his freedom. Judge Doug Meyer ruled that tapes containing conversations between McCormick and an undercover police officer who had befriended him were inadmissible due to "police misconduct." Meyer noted that McCormick, who is an alcoholic, had continually denied his involvement in the crime "until the authorities made him dependent upon them for his alcohol. Under all these circumstances, it is clear that the crucial motivating factor behind the defendant's statements were the police misconduct in question." The ruling went on to state that Chattanooga Police "conspired with the Georgia parole officer to place the known alcoholic defendant in a manipulative living situation." The state had mainly convicted McCormick based on a hair found on the victim that was linked to him and on the recorded statements thrown out by Meyer's ruling. The DNA evidence was previously discredited because more sophisticated testing found that the hair did not come from McCormick. McCormick remains in prison awaiting a court ruling on the prosecution's appeal involving the loss of the last key piece of evidence in the case. (The Chattanoogan, October 13, 2003). See Innocence.

DUE PROCESS: Mentally Ill Man Convicted, Sentenced to Death In Three Hours
A Tennessee jury took only 2 hours to convict and another hour to sentence Richard Taylor to death. Taylor suffers from mental illness and defended himself. The trial took place 19 years after Taylor's original 1984 death sentence, which was set aside because he had inadequate representation and his complex mental-health history had not been fully investigated. In the years since that ruling, Taylor has been deemed incompetent to stand trial, but a judge recently ruled that Taylor could be retried for the crime if he took his anti-psychotic medications and was able to understand the legal proceedings against him. Before his trial, Taylor told reporters for The Tennessean that he hoped to be convicted in the belief that he would be allowed to stop taking the medications that he claims are fogging his mind, turning him into a woman and silencing the singing voices in his head. This belief continued as Taylor represented himself in the proceedings without any assistance from lawyers. Taylor - who suffers from borderline personality disorder and schizophrenia - put on no evidence, presented no closing argument, and wore sunglasses throughout the proceedings. He offered the jury no explanations or mitigating factors to consider before they sentenced him to death. (The Tennessean, October 17, 2003) See DPIC's report With Justice for Few: The Growing Crisis in Death Penalty Representation.

ARBITRARINESS: Killer of 10 Allowed to Plea to Life Sentence in Federal Case
Stephen "The Rifleman" Flemmi was allowed to plead guilty to 10 murders, drug trafficking, racketeering and extortion, as federal prosecutors agreed not to seek the death penalty against him in exchange for his cooperation with ongoing crime investigations. Under the terms of the agreement, Flemmi - who has also admitted to murders in Florida and Oklahoma - will serve a life without parole sentence in a secure unit reserved for cooperating inmates. Among the murders committed by Flemmi were the murder of his girlfriend and the daughter of another girlfriend. (Boston Globe, October 15, 2003). This plea contrasts sharply with the more aggressive recent use of the federal death penalty and with the Justice Department's rejection of plea agreements in other cases. (See, e.g., Boston Globe, September 20, 2003). Moreover, Flemmi's case bears similarities in terms of the number of victims to the case of John Muhammad and Lee Boyd Malvo, who are facing the death penalty in Virginia. The Justice Department inserted this latter case into Virginia in order to secure death sentences, particularly against Malvo. Neither the federal death penalty nor the statute in Maryland, which was the location of most of the murders, allows the death penalty for someone like Malvo, who was a juvenile at the time of the crimes. See Federal Death Penalty.

Kenya to Abolish Capital Punishment
Kenyan government officials are working to abolish the nation's death penalty and replace the punishment with life in prison. The recommendation is currently under review by Kenya's constitutional review conference, a body comprised of members of parliament, professional bodies and religious and civic leaders. Kenya has not had an execution since 1987, but 2,618 people remain on the nation's death row. Kenya's assistant minister for home affairs, Wilfred Machage, noted, "The practice has been used worldwide in the past but latest trends show that it is an abuse of an individual's right to life and it is not part of the measures that can help a convict fit in society because they will be dead." (ITV.com, October 15, 2003) See International Death Penalty.

NEW RESOURCE: Life on Death Row
"Life on Death Row" is a first-person account of living under a death sentence in Arizona. Written by Arizona death row inmate Robert W. Murray, the book explores how inmates cope with execution warrants, lethal injection, prison politics, and day-to-day life in a supermax prison facility. Find more information about this book. (www.1stbooks.com) ( Albert Publishing Co. in association with 1st Books Library, 2003) See Resources.

25-Year-Old Death Sentence Unanimously Reversed by Alabama Supreme Court
On October 3, 2003, the Alabama Supreme Court unanimously reversed Phillip Tomlin's death sentence and ordered him resentenced to life in prison without parole, marking the Court's first ruling to create a standard of review for judicial override in the state. Tomlin had been on death row for more than 25 years despite the fact that four juries have recommended that he receive a life sentence for his alleged role in a Mobile, Alabama, revenge killing. In each of those cases, the trial judge overrode the jury to impose a death sentence because Tomlin's co-defendant, John Daniels, was sent to death row. In its decision, the Court noted, "It would be inconsistent to hold that Daniels's sentence could properly be used to undermine the jury's recommendation of life imprisonment without the possibility of parole." The Court's opinion also noted an earlier Alabama Supreme Court ruling that concluded that even a 10-2 jury recommendation should be given strong consideration by the sentencing judge. Tomlin was represented by his pro-bono attorney, University of Chicago law professor Bernard Harcourt. Mobile Register, October 4, 2003, and Attorney Press Release, October 7, 2003). See Life Without Parole.

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