Leading
off this edition (covering cases from November 10-16, 2003) is the
Texas Court of Criminal Appeals order in
Ex
parte Soffar . The Court of Criminal Appeals in
Soffar
has ordered extensive briefing on a very technical issue relating to
that court's "two forum" rule (that a state habeas petition will be
dismissed whenever a federal habeas petition is pending). An
excellent discussion is found in
Soffar
on what the AEDPA, exhaustion and the growing federal court practice
of "stay and abeyance" procedure means for state
courts.
As if one technical opinion on the so-called "Rules
of Death Penalty Procedure" wasn't difficult enough, several others
are noted. The Texas Court of Criminal Appeals in
Wolfe
v. Texas established a new barrier to DNA testing holding that
it lacks jurisdiction to hear some types of appeals under the Texas
DNA statute. The Fifth Circuit in
In
re Campbell , examines, in yet another aspect of capital
practice, how much is enough to permit a successive habeas petition
to be filed on a claim of mental retardation to be permitted to
proceed. In
Attorney
Grievance Commission of Maryland v. Gansler Maryland's highest
court examines how much an attorney (especially a prosecutor) can
say about a capital case without putting their license to practice
law in danger. Finally, the Delaware Supreme Court in
Stevenson
v. Delaware , examines when is a post-conviction relief appeal
properly filed.
As always thanks for reading and warm
Thanksgiving wishes. - k
EXECUTION INFORMATION
Executed since the last
edition.
Several
cases of national import are noted in this edition (covering
cases from October 27 through November 9, 2003) as well as an
unsurprising Supreme Court reversal. More on those cases
follows, but what is perhaps most notable this week is the decline
in death sentences and executions recently. As the annual DoJ study
on capital punishment notes: "[t]he 159 admissions to death row in
2002 marked a further decline from the 163 admissions recorded in
2001, and represented the smallest number received in a year since
44 persons were admitted in 1973. Between 1994 and 2000, in
contrast, an average of 297 inmates per year were admitted."
In 2003, assuming no further death warrants being set and no further
stays, a total number of just 68 executions marks a drop in the
recent level of executions and is the second lowest number of
executions in the last 7 years. The credit for these two feats
goes to the entire of the defense community who have stubbornly
refused to give up in the face of adversity.
Turning to
this edition's decisions, the Tennessee Supreme Court in
Tennessee
v. Mellon reverses a plea bargain that eventually resulted in
the death penalty. Holding that the defendant was not properly
instructed on the consequences of cooperating with the state the
trial court permitted the case to go to pernalty phase where a death
verdict was retunred. The Mellon Court held that where a defendant
was not adequately informed of his obligation to cooperate in a
related proceeding if he wanted to avoid a capital prosecution a
guilty plea is "not knowingly and voluntarily
entered."
Turning to Florida the thorny question of juror
voir dire arises in
Ault v.
Florida . The Court below in
Ault
struck for cause a death hesitant juror who stated, after defense
counsel's rehabilitiation, that despite any personally held believes
on the death penalty she would follow the law. The juror's
stating she could follow the law, the
Ault
Court holds, means she was not subject for dismissal under
Witherspoon and its progeny. That the prosecutor had unused
peremptories remaining held irrelevant.
In another Florida
death penalty case,
Armstrong
v. Florida , the Florida Supreme Court emphasizes how important
challenging prior conviction can be. Armstrong had previously
been convicted a violent crime and these crimes were the sole basis
on which death was sought. One of these crimes, a
Massachusetts' conviction, was challenged and subsequently
vacated. The vacateur of out of state conviction
(indecent assault and battery on a child of the age of fourteen), in
light of the sole aggravator being prior violent felony
convictions, was hed not to be harmless beyond a reasonable doubt
and resentencing was ordered.
Other cases of note include the
summary reversal by the United States Supreme Court in
Mitchell
v. Esprarza which held that Ohio’s failure to charge in the
indictment that Esparza was a “principal” was in fact harmless
beyond a reasonable doubt if error at all. The Tenth Circuit
in
Mollet
v. Mullin held the trial court erred in not clarifying, in
response to a jury question under Simmons v. South Carolina, that
life in this case meant "life without parole." In
Daniel v.
Nevada a long litany of errors by the trial court, including
failig to make a proper record, as well as limiting defense
counsel's questioning of witnesses and venireman, mandates
reversal. In
North
Caolina v. Valentine the state Supreme Court also holds the
trial court improperly limited the defendant's right to
cross-examine the state's penalty phase witnesses.
Elsewhere,
this week's Focus section examines one of the main reasons for the
decline in new death verdicts, Kevin McNally. A great piece
was done by the Louisville Courier-Journal on Mr. McNally and is
reposted below as a reminder of how lucky the defense bar is to have
Kevin on our side.
As always thanks for reading. - k
EXECUTION INFORMATION
Executed since the last
edition.
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