Capital Defense Weekly

We cannot affirm, however, the district court's denial of Lewis's claim that defense counsel was ineffective in failing to investigate mitigating evidence of his abusive childhood. n1 In our previous [*5] order of remand, we expressed concern about the amount of time that defense counsel spent more accurately, might not have spent in preparing for Lewis's punishment phase, and with defense counsel's failure to adduce mitigating evidence of Lewis's abusive childhood. This concern was aggravated by the fact that the lead defense counsel testified at Lewis's sentencing hearing that the defense's investigation of punishment phase issues was incomplete. The district court's findings on remand were not sufficiently focused on whether defense counsel reasonably fulfilled their duty to investigate mitigation in general and Lewis's abusive childhood in particular.

"In the context of a capital sentencing proceeding, defense counsel has the obligation to conduct a 'reasonably substantial, independent investigation' into potential mitigating circumstances." Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)(citation omitted). "In assessing counsel's performance, we look to such factors as what counsel did to prepare for sentencing, what mitigating evidence he had accumulated, what additional 'leads' he had, and what results he might reasonably have expected from these leads." Id. at 237. The focus of this inquiry is "not whether counsel should have presented a mitigation case," but "whether the investigation supporting counsel's decision not to introduce mitigation evidence . . . was itself reasonable." Wiggins v. Smith, 156 L. Ed. 2d 471, 123 S. Ct. 2527, 2536 (2003)(emphasis in original). n2 A limited investigation into mitigating evidence may be reasonable only if counsel has a basis for believing that further investigation would be counterproductive or fruitless. See id. at 2537 (and cases cited therein).

1. Deficiency of Performance

In its current state, the record does not reveal whether defense counsel conducted an investigation into Lewis's childhood abuse and, if so, whether such investigation was sufficient under the aforementioned standards. As noted, one difficulty with this case is the understandably hazy memories of both defense counsel as to the extent of their investigation. The magistrate judge nevertheless found that counsel did attempt to speak with family members about Lewis's abusive background, but that the family members were "not forthcoming." This finding is based, however, on but one brief passage in the testimony of defense co-counsel, Jan Hemphill: "I don't believe they were [forthcoming] and I don't know if I didn't probe enough or they weren't forthcoming or if I didn't ask the right questions."

This mere modicum of evidence is insufficient to support the district court's conclusion. Counsel was obviously straining to remember what had occurred, and she even qualified her statement by conceding that the lack of response from family members might have been attributable to her failure to ask the right questions. Significantly, defense attorney Hemphill [*8] could provide no details about whom she questioned, what questions she asked, and what responses were forthcoming. Additionally, her pardonably vague testimony is contradicted by the specific testimony of petitioner's sisters, Tammy Lewis, Peggy Clemmons, and Arlisa Lewis, each of whom testified at the habeas hearing that, inter alia, they were present at Lewis's trial but that counsel never spoke with any of them.

The State endeavors to support defense counsel's failure to adduce evidence of an abusive childhood by classifying it as a tactical decision. The State argues that defense counsel could have reasonably believed that, if adduced, evidence of severe childhood abuse would be more harmful than helpful under then existing law, because the court's instructions would not give the jury an avenue under which it could use the evidence in mitigation. Nothing in counsel's testimony, however, supports the theory of their decision having been tactical. This likely explains why the district court did not advert to the grounds of tactics or strategy to justify counsel's failure to adduce evidence of Lewis's abusive childhood.

It is axiomatic particularly since Wiggins [*9] that such a decision cannot be credited as calculated tactics or strategy unless it is grounded in sufficient facts, resulting in turn from an investigation that is at least adequate for that purpose. It may well be that here the district court harbored concerns that counsel had not established that they conducted a sufficiently thorough investigation of abuse to be in a position to make a strategic decision not to use the evidence. The district court observed that counsel adduced evidence of child abuse through the testimony of Lewis's grandmother, Lula. Yet, her conclusional testimony contained none of the details provided by Lewis's siblings at the habeas hearing, which could have been truly beneficial. Lula's skeletal testimony concerning the abuse of her grandson was wholly inadequate to present to the jury a true picture of the tortured childhood experienced by Lewis.

We are always reluctant to question a district court's factual finding when it is grounded in the credibility (or lack thereof) of a witness who that court hears and views in person but of whom we see nothing more than a cold record. Nevertheless, reversing such a call under review for clear error (much [*10] less de novo) is certainly not unheard of. Indeed, this is one of those rare instances in which we are constrained to reverse the district court's rejection, on credibility grounds, of the testimony of Lewis's siblings at the habeas hearing. A careful reading of their testimony and supporting portions of the record leaves us with the clear belief that a mistake has been made.

First, the testimony of Lewis's sisters is remarkably consistent. Each testified that their (and Lewis's) father beat all of them with extension cords, switches, sticks, or anything else within his reach. They testified further that he regularly made them undress, then whipped them in the area of their genitals, and that this conduct occurred at least every other day. According to Lewis's sisters, all of the children lived in constant fear of their father's rages, particularly when he was unable to get the drugs to which he was addicted.

Each of Lewis's sisters testified that she attended his trial, but added that counsel never asked her to testify. Tammy Lewis testified further that defense counsel did not make an effort to speak with her; and that, despite her indication to counsel that she was willing [*11] to testify, counsel never followed up and never called her to the stand.

We must also disagree with the district court's statement that there was no corroborating evidence to support the testimony of these three witnesses. There is abundant record evidence that Lewis's father was a violent drug abuser; that he shot Lewis's mother in the stomach and leg, almost killing her; and that, in the presence of Lewis and the other children, he beat their mother on numerous occasions. Additionally, medical records in evidence show that the children made numerous trips to the hospital emergency rooms for treatment of injuries that were consistent with the described beatings. The record reveals, inter alia, that Lewis had to be hospitalized for cuts on his penis and for an infection he developed when a hypodermic needle was stuck into his foot. And these records also reflect that Lewis's sister, Arlisa, was treated for severe burns on her back and that their mother had suffered a gunshot wound. This record evidence is consistent with the testimony of the sisters, as is the evidence of approximately seven "domestic disturbance" calls to 911 from the Lewis household between 1975 and 1978. [*12]

The district court reached its conclusion that defense counsel's performance was reasonable despite the absence of the kind of inquiry and focus required in the Supreme Court's subsequent opinion in Wiggins. We therefore have no choice but to reject that conclusion.

2. Prejudice Prong of Strickland.

Likewise flawed is the district court's conclusion that Lewis was not prejudiced by defense counsel's deficient performance. It is obvious to us that the level of abuse to which Lewis was exposed mandates the conclusion that, had this evidence been produced, it is quite likely that it would have affected the sentencing decision of at least one juror. The district court examined the testimony presented by Lewis's family members at the evidentiary hearing and held that such testimony would either be inadmissible or be given little weight under the nexus requirement set forth in Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). The court based this holding on the time that elapsed between the alleged child abuse and the commission of the crime of conviction, and on the fact Lewis had intervening criminal convictions. n3 Mitigating evidence of childhood [*13] abuse, however, was considered in Williams v. Taylor, 529 U.S. 362, 398, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000), and in Wiggins, 123 S. Ct. at 2532, 2542- 43, despite the fact that in each of those cases, the time that elapsed between the instances of abuse and the commission of the crime of conviction were greater than such period in the instant case. Furthermore, the defendant in Williams had many intervening criminal convictions. See Williams v. Taylor, 163 F.3d 860, 867 (4th Cir. 1998), reversed by Williams, 529 U.S. at 399. The district court's conclusion regarding the temporal nexus requirement was therefore erroneous.

Hamblin v. Mitchell , 2003 U.S. App. LEXIS 26291 (6th Cir 12/29/2003) (dissent) Counsel was ineffective in failing to investigate. Note heavy reliance on the 2003 ABA Guidelines.

Prior to the Wiggins case, our Court in a series of cases had dealt with the failure of counsel to investigate fully and present mitigating evidence at the penalty phase of the case. Our analysis of counsel's obligations matches the standards of the 1989 Guidelines quoted by the Supreme Court in Wiggins. In Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), Judge Nelson for himself and Judge Guy (Judge Siler dissenting) set aside the death verdict on grounds of ineffective assistance of counsel at the penalty phase. The Court held that counsel must perform a full and complete investigation of mitigating evidence including the defendant's "history, background and organic brain damage." 71 F.3d at 1207. The Court also held that this investigation should be conducted before the guilt phase of the case. It said that the "time consuming task of assembling mitigating witnesses [should not wait] until after the jury's verdict ...." Id. (quoting Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir. 1991)). The Court faulted the lawyers because they "made no systematic effort to acquaint themselves with their client's social [*7] history" -- for example, they "never spoke to any oof his numerous brothers and sisters," and "never examined school records" or "medical records" or "records of mental health counseling." Id. at 1208. In a similar case, Austin v. Bell, 126 F.3d 843, 847-48 (6th Cir. 1997), Judge Suhrheinrich, for a panel including Judges Martin and Merritt, relied on Judge Nelson's opinion in Glenn v. Tate to explain that prevailing standards require a full and complete investigation of mitigating evidence. Then in Coleman v. Mitchell, 268 F.3d 417, 449-52 (6th Cir. 2001), Judge Clay for himself and Judge Cole (Judge Batchelder dissenting), reviewed the holdings of Glenn and Austin and reached a similar conclusion. Like the Supreme Court in Wiggins, Judge Clay explicitly relied on the 1989 ABA Guidelines.

The 1989 Guidelines adopted as "prevailing norms" in Wiggins reinforce and support our court's previous rulings in Glenn, Austin and Coleman applying similar norms to cases tried in the 1980's. Although the instant case was tried before the 1989 ABA edition of the standards was published, the standards merely represent [*8] a codification of longstanding, common-sense principles of representation understood by diligent, competent counsel in death penalty cases. The ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as "prevailing professional norms" as "guided" by "American Bar Association standards and the like." We see no reason to apply to counsel's performance here standards different from those adopted by the Supreme Court in Wiggins and consistently followed by our court in the past. The Court in Wiggins clearly holds at 123 S. Ct. at 2535, that it is not making "new law" on the ineffective assistance of counsel either in Wiggins or in the earlier case on which it relied for its standards, Williams v. Taylor, 529 U.S. 362, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000).

New ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous [*9] cases concerning counsel's obligation to investigate mitigation circumstances. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 The 2003 ABA Guidelines at section 10.7 contain ten pages of discussion about counsel's "obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty." The description of counsel's obligation to investigate mitigating evidence for the sentencing phase of the case is as follows (omitting quotation marks and the lengthy footnotes attached to the test):Counsel's duty to investigate and present mitigating evidence is now well established. The duty to investigate exists regardless of the expressed desires of a client. Nor may counsel sit idly by, thinking that investigation would be futile. Counsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client's competency to make such decisions unless counsel has first conducted a thorough investigation with respect to both phases of the case.

Because the sentences in a capital case must consider in mitigation, anything in the life of the defendant which might militate against the appropriateness of the death penalty for the defendant, penalty phase preparation requires extensive and genearlly unparalleled investigation into personal and family history. In the case of the client, this begins with the moment of conception [i.e., undertaking representation of the capital defendant]. Counsel needs to explore:

(1)Medical history, (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage).

(2)Family and social history, (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities);

(3)Educational history (including achievement, performance, behavior, and activities), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof, and activities;

(4)Military service, (including length and type of service, conduct, special training, combat exposure, health and mental health services);

(5)Employment and training history (including skills and performance, and barriers to employability);

(6)Prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services);

The mitigation investigation should begin as quickly as possible, because it may affect the investigation of first phase defense (e.g., by suggesting additional areas for questioning police officers or other witnesses), decisions about the need for expert evaluation (including competency, mental retardation, or insanity), motion practice, and plea negotiations.

...

It is necessary to locate and interview the client's family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation or parole officers, and others. Records -- from courts, government agencies, the military, employers, etc. -- can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, and corroborating witnesses' recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment. The collection of corroborating information from multiple sources -- a time-consuming task -- is important wherever possible to ensurre the reliability and thus the persuasiveness of the evidence.ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases P 10.7 (2003) at pp. 80-83.

- - - - - - - - - - - - End Footnotes

In sum, we recognize that we must measure counsel's performance in this case against the prevailing standards at the time of Hamblin's trial. We cite the 1989 and 2003 ABA Guidelines simply because they are the clearest exposition of counsel's duties at the penalty phase of a capital case, duties that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995). Since that trial took place even before the trial in the present case, the same standards regarding counsel's duty to investigate mitigating evidence, as articulated in the ABA Guidelines, are relevant here.

* * * * *

The district court below found two justifications for counsel's performance. First the court found that defense counsel did not further investigate Hamblin's mental condition for the "strategic" reason that such an investigation might not reveal any psychological problems or brain injury, thereby preventing a mitigation theory based on those factors. The court said mitigation evidence "could hurt him as easily as help him if exposed to a jury," and so "Hamblin's attorneys made a strategic decision not to [investigate or] present mitigating evidence about Hamblin's deplorable childhood and wretched upbringing." App., Vol. I, p. 67. Second, the court found that counsel did not investigate or prepare mitigation because his client told him not to present [*20] evidence in mitigation.

The first reason for not investigating is not asserted by defense counsel in the record before us and, even if it were, does not make sense. Because counsel does not know what an investigation will reveal is no reason not to conduct the investigation. Counsel was obligated to find out the facts, not to guess or assume or suppose some facts may be adverse. Counsel admitted he was not sure what further investigation or testing might reveal about Hamblin's psychological health or any organic brain damage. In addition, because the district court did not hold an evidentiary hearing or allow any discovery, many details of why counsel failed to investigate are not known. And between the time the habeas petition was filed in late 1995 and the issuance of the district court's order in early 2000, Fred Jurek, the lawyer responsible for the penalty phase, died. This complete failure to investigate simply cannot be condoned and constitutes a clear constitutional violation.

As to the second justification, the district court said that counsel cannot be ineffective when counsel is simply following a defendant's wishes not to investigate or prepare for the mitigation [*21] phase of the case. There is no evidence in the record that counsel informed Hamblin about the importance of mitigation to the penalty phase or the consequences of limiting the penalty phase to his unsworn statement and the testimony of Rhonda Lezark. Since the district court did not permit an evidentiary hearing or discovery in this case, it is not clear what Hamblin said to Jurek about investigating the case or what Jurek advised Hamblin. But ABA and judicial standards do not permit the courts to excuse counsel's failure to investigate or prepare because the defendant so requested, assuming that this finding is factually accurate. The Guidelines state that "the investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented," becausecounsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client's competency to make such decisions, unless counsel has first conducted a thorough investigation ...ABA Guidelines § 10.7 (2003) at pp. 80-81. This guideline is [*22] supported by our decisions in Austin v. Bell, supra, 126 F.3d at 849, and Coleman v. Mitchell, supra, 268 F.3d at 447, as well as by a number of cases from other circuits, see, e.g., Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir. 1991) (counsel ineffective for "latching onto" client's assertions that he did not want to call penalty phase witnesses and failing to conduct an investigation sufficient to allow client to make an informed decision to waive mitigation); United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) ("counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made"); Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir. 1984) (petitioner entitled to relief if record shows that "counsel could not make a valid strategic choice because he had made no investigation").

Therefore, the two "strategic" justifications for failing to investigate mitigating factors by the court below are insufficient to excuse counsel's performance. Counsel's [*23] performance fell well below minimum standards in capital cases.

CAPITAL CASES (Favorable Disposition)

Pennsylvania v. King, 2003 Pa. LEXIS 2564 (PA 12/30/2003) Trial court's recusal upheld on appeal where the court below based its recusal on its desire to expedite the post-conviction proceedings and to explicitly deny the condemned a potential issue in any additional rounds of post-conviction review.

Pennsylvania v. Rush , 2003 Pa. LEXIS 2399 (PA 12/19/2003) Remand ordered of this post-conviction action on the issue of whether trial counsel was ineffective in investigating and presenting evidence relating to mitigating evidence.

Nevada v. Bennett , 2003 Nev. LEXIS 83 (Nev 12/30/2003) New penalty phase granted where the state hid various pieces of exculpatory evidence.

CAPITAL CASES (Unfavorable Disposition
Dennis v. Mitchell , 2003 U.S. App. LEXIS 26283 (6th Cir 12/29/2003) Relief denied on claims that: (1) a juror that sat intentionally misled the trial court as to whether she was a recent victim of violent crime; (2) that the trial court improperly removed to death hesitant jurors; (3) failure to permit questioning on specific mitigating factors during voir dire; (4) removal of death hesitant jurors by the prosecution; (5) Batson; and (6) failure of trial counsel to timely object.

United States v. Higgs , 2003 U.S. App. LEXIS 25904 (4th Cir 12/22/2003) Relief denied on claims including whether: the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and that the evidence supports the special finding of the existence of an aggravating factor required to be considered under section 3592

Powers v. Mississippi , 2003 Miss. LEXIS 850 (Miss 12/18/2003) Relief denied on claims including: (1) the evidence of attempted rape was insufficient to support the capital murder charge; (2) ineffective assistance of trial counsel during the motion to suppress; (3) ineffective assistance of trial counsel during the guilt phase; (4) ineffective assistance of trial counsel during jury selection; (5) ineffective assistance of trial counsel for failing to have the capital murder charge reduced to simple murder or manslaughter; (6) ineffective assistance of trial counsel in instructing the jury; and (7) ineffective assistance of trial counsel during the sentencing phase.

Gordon v. Florida , 2003 Fla. LEXIS 2155 (FL 12/18/2003) Relief denied on claims including: "(1) ineffective assistance of counsel in failing to present an alibi defense; (2) ineffective assistance for failing to challenge the admissibility of DNA evidence and to conduct a hearing pursuant to Frye v. United States, 54 U.S. App. D.C. 46, 293 F.1013 (D.C. Cir. 1923); (3) ineffective assistance of counsel for failing to move to sever; and (4) ineffective assistance of counsel for failing to thoroughly investigate and prepare for trial."

Pennsylvania v. Mitchell, 2003 Pa. LEXIS 2553 (PA 12/30/2003) (dissent) Relieve denied, most notably, on issues pertaining to: sufficiency; prosecutorial comment on right to remain silent and Brady. Claims relating to ineffective assistance of counsel and Atkins held to be best brought on collateral attack.

Pennsylvania v. Johnson , 2003 Pa. LEXIS 2400 (PA 12/18/2003) Relief denied on claims relating to: (1) trial court's admission of testimony concerning other-crimes evidence; (2)ineffective assistance of trial counsel in failing to request a cautionary, limiting instruction regarding other-crimes evidence; (3) admission of testimony concerning inculpatory statements made to her by a third participant in Johnson's illicit-drug-trade group (4) admission of testimony read to jurors by the court reporter during their deliberations;(5) prosecutor's closing noting absence of identified alibi witness; (6) testimony concerning remarks made by Johnson to another inmate; (7) use of a flight/concealment charge; (8) sufficiency of aggravator; (9) initial jury selection process was tainted due to a racially imbalanced jury pool, as well as (10) trial counsel was ineffective in failing to: object; request an instruction that life imprisonment means life imprisonment without the possibility of parole; and investigate, develop, and present mental health and personal history mitigation evidence.

Tennessee v. Reid , 2003 Tenn. Crim. App. LEXIS 1086 (Tenn. Crim. App. 12/29/2003) Relieve denied, most notably, on issues pertaining to: validity of search warrants; crime scene video; failure to produce grand jury notes; limited jury questionnaire; information on past performance of prospective jurors; constitutionality of Tennessee juror qualification statute; exclusion of jurors based on religion; constitutionality of Tennessee death penalty (for reasons set forth united states v. fell); failure to dismiss indictment pursuant to article I; section 19 of Tennessee constitution; failure to dismiss indictment because aggravating factors not listed in indictment; reliability of DNA testing; admission of victim impact evidence; amendment of indictment; failure to consolidate this case with Davidson county cases; competency of appellant to stand trial; failure to grant a sua sponte mistrial; violation of witness seclusion rule; failure to admit certain police reports; sufficiency; prosecutorial misconduct in guilt phase; photographs of victims; photographs of victims at crime scene; exclusion of certain defense expert's testimony; jury charge of mitigating factors; prosecutorial misconduct during penalty phase; HAC; sufficiency of decision for death; proportionality review

OTHER NOTABLE CASES
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OTHER RESOURCES
The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Rate of Death Sentencing at Its Lowest Point Since Reinstatement
Posted: January 8, 2004
While the number of death sentences in the United States has fallen in recent years, the drop in the rate of death sentencing has been even more dramatic. [ More ]

For the First Time, No Death Sentences in Chicago in 2003
Posted: January 7, 2004
In the year since former Illinois Governor George Ryan's decision to grant clemency to all those awaiting execution in the state, no one has been sentenced to death in Cook County, which includes Chicago. [ More ]

States Slow to Implement ABA Defense Counsel Guidelines
Posted: January 6, 2004
More than a year after the American Bar Association overwhelmingly passed guidelines to raise the quality of defense counsel in death penalty cases, no state has adopted the standards and the ABA continues to voice concern that trials are proceeding under "a system that is desperately broken." [ More ]

HIGHLIGHTS From DPIC's Year End Report
Posted: January 3, 2004
The Death Penalty Information Center's 2003 Year End Report, which has been the focus of numerous editorials and news articles across the nation, features a series of significant death penalty developments from the past year. [ More ]

NEW VOICES: Federal Judge Criticizes Ashcroft's Override of Local Prosecutors
Posted: January 2, 2004
Judge John Gleeson, a prominent federal judge in New York, recently criticized U.S. Attorney General John Ashcroft for regularly overruling local prosecutors by directing them to seek the death penalty though they have recommended against it. [ More ]

Georgia Jurors, Prosecutors Favor Life Without Parole
A decade after Georgia legislators established the sentencing option of life in prison without parole, the number of Georgia defendants sentenced to death has dropped from an annual average of 10 to 4 or fewer each year. The decline is the result of jurors opting to sentence defendants to life without parole and plea bargains in capital cases. District Attorney J. Tom Morgan noted that life without parole is in effect a death sentence: "It takes a little bit longer, but it is more certain [because of appeals of death sentences]." Prosecutors also indicated that it allows divided juries to agree on a verdict. Over the past 10 years, 369 people in Georgia have been sentenced to life without parole, and 162 of them pleaded guilty. In DeKalb County, where jurors have not issued a death sentence since life without parole became a sentencing option in 1963, Morgan says that jurors are choosing the alternative sentence because of lingering doubts that an innocent person may be executed. Michael Mears, the new head of the Georgia Public Defender Standards Council, pointed to another benefit of life without parole sentences: they are significantly less expensive than the death penalty. (Atlanta Journal-Constitution, December 28, 2003). See Life Without Parole; DPIC's 2003 Year End Report.

Editorial Questions Maryland's Commitment to Addressing Racial Disparities
A recent Baltimore Sun editorial criticized state leaders for failing to respond to a series of studies showing that race plays a disturbing role in capital punishment in Maryland. The paper noted that a study conducted by University of Maryland Professor Raymond Paternoster agreed with four other reviews that all revealed similar findings regarding race and the death penalty in Maryland. The paper stated:
Of the 1,311 death penalty-eligible cases that the University of Maryland researcher reviewed, he found the same troubling news: Defendants who are accused of killing white victims are more likely to be charged with capital murder and, if convicted, sentenced to death than those charged with killing non-whites. Nearly a year later, his disturbing findings have yet to compel a response from the state. What's it going to take?
. . .
The death penalty is the ultimate punishment, yet concerns about racial disparity have been raised time and again for more than a decade. That's why the issue demands a vigorous response, a serious inquiry and a passionate advocate.
(Baltimore Sun, December 22, 2003) See Race.

COSTS: Former Death Row Inmate Awarded $2.2 Million Wrongful Conviction Settlement
The Chicago City Council finance committee quickly approved a $2.2 million wrongful conviction settlement for former death row inmate Ronald Jones. "I think it is a good deal for the city," said Chicago Alderman William Beavers, indicating that he and other aldermen breathed a sigh of relief that the city will get off so cheaply in its settlement with Jones, who was coerced into a confession to a 1985 rape and murder that he did not commit. Jones spent 14 years on Illinois's death row before DNA tests excluded him as the perpetrator. Former Illinois Governor George Ryan pardoned Jones in 2000. (Chicago Tribune, December 16, 2003) See Innocence; Costs.

Jurors Sentence Lee Malvo to Life Without Parole
Jurors in Virginia sentenced juvenile offender Lee Boyd Malvo to life in prison without parole after finding him guilty of murdering Linda Franklin, who was one of 10 victims killed during a series of shootings in October 2002. Malvo was 17 at the time of the crime. Attorney General John Ashcroft had cited Virginia's ability to impose "the ultimate sanction" in sending Malvo and his mentor, John Muhammad, to Virginia for prosecution. Virginia is one of only 21 states that allow the execution of those who were 16 or 17 at the time of their crime. Since the death penalty was reinstated in 1976, Virginia is one of only six states that have executed someone whose crime was committed as a juvenile. (Associated Press, December 23, 2003) See Juvenile Death Penalty and Life Without Parole.

ABC Poll Shows Public Opposed to Death Penalty for Malvo
A new poll conducted by ABC News revealed that only 37% of the public supports the death penalty for Lee Boyd Malvo, who was recently convicted of murder in Virginia. Malvo was 17 at the time of a series of shootings in the Washington, DC area. 52% of respondents preferred a sentence of life without parole for Malvo. Even stronger opposition to the death penalty for juveniles in general was revealed in the same poll: only 21% were in favor of the death penalty for juveniles, versus the 62% who preferred the sentence of life without parole. The poll was conducted Dec. 10-14 (ABC News, Dec. 19, 2003). See Juveniles; Public Opinion.

Costly Death Penalty Takes Toll on State Budgets
A report in the Polk County (Florida) Lakeland Ledger examined the financial impact of costly capital trials on states that are struggling to make ends meet. The report noted that death penalty cases negatively impact county governments because the hundreds of thousands of dollars that is spent annually on capital cases takes away funding from crucial indigent care programs and other important services. As an example, the paper notes, "Take the case of Tavares Wright. The legal bill stands at $200,000 and a 3rd murder trial for the Lakeland man is pending after the first 2 ended in mistrials." During the early 1990's, two capital trials in Jefferson County, Florida caused significant debt for the county. The trials were so expensive that they forced significant cuts in the county budget, such as a freeze on employee raises and a 20% reduction in the library budget. The article notes that counties in Texas, Indiana, Georgia, and elsewhere face similar budget challenges. (Lakeland Ledg
er, December 14, 2003). See Costs.

Pentagon List Gives Names of 169 Military Members Who Were Executed
A list containing the names of 169 members of the U.S. military who were executed between 1942 and 1961 was recently discovered at the Pentagon. The list also contains a few dozen additional cases where persons were sentenced to death, but not executed, and the names of 7 German prisoners of war who were executed. The 1961 execution of Pvt. John Bennett, who was hung after convictions for rape and attempted murder, was the military's last execution. The ledger also includes the name of Pvt. Eddie Slovik, who is the only member of the U.S. military to be executed for desertion since the Civil War. The list was discovered by accident by Pentagon employees and was made public as the military prepares to try accused terrorists currently held at the detention center in Guantanamo Bay, Cuba. The death penalty is a possible sentence in such military tribunals. (Associated Press, December 12, 2003) See U.S. Military Death Penalty.

Murder Victims' Families for Reconciliation Releases Juvenile Report
On December 17, 2003, Murder Victims' Families for Reconciliation released a report regarding the perspectives of family members on the juvenile death penalty: "I Don't Want Another Kid to Die." The report opens a window into murder victims' families struggles with the death penalty in general, and more specifically, how the issue changes when the defendant is a juvenile. Read their Press Release. Read the Report (in PDF format).

ADDITIONAL RESOURCES
If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY), TalkLeft.com (general criminal defense news) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).