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.
