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Posted October 1,
2004
One
case this week makes the win column. In Ohio
v. Williams that state's supreme court examines whether certain
modifications to the state's sentencing scheme may apply retroactively.
Specifically before the Court was the issue of whether modifications to the Ohio
statute permitting a trial court to impanel a new jury to reconsider
imposing a death sentence after a death sentence was vacated will apply
retroactively. The Williams Court holds the new statute will not
apply retroactively
Three criminal cases were granted certiorari this week including, one capital case. The questions in those cases are: Will the Court further clarify the 1994 ruling in Simmons v. South Carolina on the right of an individual, seeking to avoid a death sentence, to have the jury instructed that it may consider a life sentence without parole? Is a defense lawyer ineffective for a failure to review prior convictions that counsel knows the prosecution will use to support a death sentence? Rompilla v. Beard, 04-5462 May a habeas petition be considered filed on time in federal court if the one-year filing deadline has been suspended by pursuit of a post-conviction challenge in state court, even though the state challenge was denied because it was filed too late under state law? Pace v. DiGuglielmo, 03-9627. If an individual is given an enhanced prison sentence in a federal case, based upon a prior state conviction, does the nullification of the state conviction compel a reduction of the federal sentence? Johnson v. U.S., 03-9685. This week's Focus section covers the pending issues before the Court. The Court granted certiorari on just two additional criminal cases from the summer's filings, other than those as noted above, United States v. Booker & United States v. Fan, both of which deal with the federal sentencing guidelines and the impact of Blakely v. Washington. At this point in time it appears there will be approximately fifty (50) cert. denials in capital cases this Monday (depending on how broadly the Court holds in light of its pending cert list). Finally, in a case where I have neither the Arkansas Supreme Court's opinion or an order, the execution of Rickey Dale Newman in Arkansas, scheduled for the night of September 28, appears to have been stayed. Newman had waived his appeals. Nevertheless, there is evidence that he may be mentally retarded. As always, thanks for reading, - k Full edition located here EXECUTION INFORMATION Since
the last edition there have been the following executions in the United
States:
September 30 David Hocker Alabama --- volunteer Pending execution
dates believed to be serious include:
October 5 Edward Green III Texas 6 Peter Miniel Texas 8 Sammy Perkins North Carolina 12 Donald Aldrich Texas 13 Adremy Dennis Ohio 20 Ricky Morrow Texas 22 Charles Roache North Carolina----volunteer 26 Dominique Green Texas Posted September 26, 2004 Sentencing Report notes this on the upcoming Blakely sequels on the federal sentencing guidelines (USA v. Fanfan & USA v. Booker): These
amicus briefs are available here
and I have discussed them collectively here
and here.
In addition, Jason Hernandez at the Blakely Blog has started his
ambitious plan for discussing these briefs, as he now has a full CliffsNotes
here version of the FAMM brief
Two cases originating out of Oklahoma lead off this week. In a solid analysis of the application of the Supreme Court's relatively recent decision in Crawford v. Washington, the Oklahoma Court of Criminal Appeals in Miller v. Oklahoma reverses finding admission of a nontestifying codefendant's confession denied the right to cross-examination. In Cannon v. Mullin the Tenth Circuit orders a remand to determine whether the district court erred in denying relief as to trial counsel's failure to notify "the court of improper contacts between prosecution witnesses and jurors during trial recesses" and whether "his trial counsel prevented him from testifying in his own defense at trial;" court below, however, to first consider potential defenses of procedural default on remand. Elsewhere, in Workman v. Bell a federal district court has granted a stay pending the outcome of the Sixth Circuit's en banc determination how it will treat Rule 60(b) motions in habeas corpus proceedings in Rahman v. Bell; the district court's stay appears to have survived appeal to the Sixth Circuit. In another Sixth Circuit matter, Hicks v. Collins, a sharply divided panel denies relief on highly inflammatory prosecutorial statements in the penalty phase that in many jurisdictions would have required a near automatic reversal. In a Fourth Circuit case, United States v. Moussaoui, a panel on an interlocutory appeal holds the district court erred in striking the ability of the United States to seek death as an excessive sanction for alleged discovery abuses by the government. In what was another federal death penalty prosecution where the jury returned life, United States. v. Lentz, a panel remands for new trial as the jury was impermissibly given items of evidence explicitly excluded from its purview at trial, however, the panel reversed the findings of the court below which had found post-trial that the prosecutor had intentionally & surreptitiously given these items to the jury. Finally, the Arizona Supreme Court in State v. Murdaugh denies relief holding non-jury sentencing error under Ring v. Arizona in this case was harmless beyond a reasonable doubt. Next week will (schedule permitting) include the annual Supreme Court preview. NACDL, acting as amici in one of the cases to watch next term, United States v. Booker, has published their amicus brief on the issue of the applicability of Blakely v. Washington to the federal sentencing guidelines. As always, thanks for reading, - k Full edition available here Posted September 19, 2004 Two state post-conviction matters from the east coast lead off this week, Pennsylvania v. Malloy & Van Dohlen v. South Carolina. The respective state supreme courts granted relief in those cases in light of trial counsel's falure to adequately prepare and present mitigation evidence in the penalty phases of those trials. Elsewhere, a split panel of the Eighth Circuit held in Clemons v. Luebbersthat Clemons' claim of being denied a fair jury under Witherspoon v. Illinois (a claim on which the district court had granted relief) was procedurally defaulted and hence he should die for his counsel's mistakes. The Sixth Circuit denied relief in Workman v. Summers in an unpublished opinion concerning clemency proceedings; note, however, that Mr. Workman's pending execution date has been stayed by the federal district court on a Rule 60(b) motion relating apprently to actual innocence, more on this next edition. Tech & scheduling issues delayed this edition, my apologies. Scheduling issues here remain tight, however the next few editions should go out on time, assuming the technical issues have been resolved. - k This edition archived here EXECUTION INFORMATION Since
the last edition there have been the following executions in the United
States:
September 9 James Edward Reid Virginia Pending execution
dates believed to be serious include:
September
21 Andrew Flores Texas 22 Philip Workman Tennessee 28 Ricky Dale Newman Arkansas----volunteer 30 David Hocker Alabama --- volunteer October Posted September 12, 2004 Starting over the course of the next week new resources will be uplinked to the site inlcuding pleadings and materials from various capital & non-capital cases in the news, in PDF & other formats. The goal simply is to get back on track to provide "one stop shopping" for defense needs that aren't or (for institutional reasons) can't be met by other outlets. Posted September 7, 2004 Just some quick good news until the next edition as I am out of town.
Pennsylvania
v. Malloy, 2004 WL 1946291 (Pa 9/1/2004)counsel's failure
to adequately investigate and present mitigating evidence stated claim
of ineffective assistance of counsel, warranting resentencing.
Sherman v. McDaniel, 2004 WL 1949647 D.Nev. (8/30/2004) Leave granted to conduct limited discovery. Pennsylvania v. D'Amato, 2004 WL 1950256 (PA 9/2/2004) Remand ordered for a hearing on recanting witness. Leading
off this edition is California
v. Haley. In Haleythe
Court holds that failure to instruct jury on intent to kill was
reversible error under the facts of this case. The Court in dicta
the court also finds error in the trial court's failing to
instruct jury that it must find defendant specifically intended to
commit general intent crimes of rape and sodomy.
Other wins noted include cases from the deep South. In Banks v. Dretke, a Fifth Circuit panel reluctantly remands for an evidentiary hearing in light of the Supreme Court's remand on prosecutorial misconduct. In Morrow v. Alabama the Court of Criminal Appeals remands for a hearing on mental retardation issues and orders the trial court to correct several errors in its sentencing decision. Finally, on the win list, in Florida a remand is had in Dilbeck v. Crosby, so that the trial court can correct errors in it sentencing orders Several noticeable losses are also had. A split Third Circuit panel denies relief in Hackett v. Price as any penalty phase instruction error on unanimity was harmless. A split Tenth Circuit panel reversed the district court's grant of relief on whether trial counsel reasonably chose not to present testimony about the impact long term steroid use had on Petitioner. In California the state supreme court in In re Seaton has proceeded to create yet another bizarre and byzantine procedural default doctrine. In Willey v. Mississippi relief is denied , and new procedures set for future litigants, on a mental retardation claim. Finally, Judge Wolfe, a federal district court judge from Massachusetts, in United States v. Sampson has released a small tome on federal death penalty practice in a memorandum opinion in that matter explaining his actions in the first death sentence in that state in generations. Making the Case for Life capital seminar which the Southern Center and NACDL put on every fall, this year will be October 1- 3 in Arlington, Virginia. This year features Barbara Bergman, Craig Cooley, Scharlette Holdman and many others. The link to the NACDL page where people can see the schedule, logistics, etc. is here. Time limits (for reasons discussed in greater detail below) discussion of Woods v. Alabama, 2004 Ala. Crime. App. LEIS 164; 2004 WL1909291 (Ala.Crim.App. 8/27/2004), Minor v. Alabama,2004 Ala. Crim. App. LEXIS 156; 2004 WL 1909380 (Ala.Crim.App. 8/27/2004), and Thompson v.Kentucky, 2004 Ky. LEXIS 195; 2004 WL 1906848 (Ky 8/26/2004) which will be covered in the next emailed edition and should be available at capitaldefenseweekly.com later in the day Friday. The
next few weeks are touch & go as I am at a conference next week,
have tentatively scheduled trial for the week after that what amounts
to an LWOP trial &, finally, the laptop on which I do the weekly
has decided to unexpectedly die during the prep of this week's edition
(limiting the time in which I can prep the weekly both this week &
prospectively until it can be replaced). As always thanks for
reading. - k
This edition can be found here. EXECUTION INFORMATION Since
the last edition there have been no executions in the United States:
Pending execution
dates believed to be serious include:
September
9 James Edward Reid Virginia 21 Andrew Flores Texas 22 Philip Workman Tennessee 28 Ricky Dale Newman Arkansas----volunteer 30 David Hocker Alabama --- volunteer Posted August 28, 2004 Making the Case for Life capital seminar which the Southern Center and NACDL put on every fall, this year will be October 1- 3 in Arlington, Virginia. This year features Barbara Bergman, Craig Cooley, Scharlette Holdman and many others. The link to the NACDL page where people can see the schedule, logistics, etc. is here. Posted August 27, 2004 This edition has just one winner, Pennsylvania v. Duffey. In Duffey the Pennsylvania Supreme Court orders a remand to examine whether defense counsel should have "objected to the references to Appellant's post-arrest silence" and whether counsel had a reason not to object to comments that should have resulted in a mistrial. Elsewhere, as summer closes to an end, here are few opinion, negative or positive, to report, indeed, there is little case or law related news to report. One of few end of summer "news" items to report, however, is a crop of relatively new death penalty blogs ("web logs") which are covered this week in the "From Around the Web" section including: the Lonely Abolitionist (lonelyabolitionist.blogspot.org), Stand Down Texas, and the NCADP (http://deathpenaltyusa.blogspot.com/). Also, in an end of summer experiment, the Death Penalty Information Center DPIC is beginning an email service that will provide the previous week’s "What’s New" items (to subscribe simply send an email from the address where you wish to receive the updates to [update@deathpenaltyinfo.org] with the Subject Header "SUBSCRIBE."), Since
the last edition the following executions in the United States:
August 25 Jason Busby Texas 26 James Allridge III Texas 26 Windel Workman Oklahoma Pending execution
dates believed to be serious include:
September
9 James Edward Reid Virginia 21 Andrew Flores Texas 22 Philip Workman Tennessee 28 Ricky Dale Newman Arkansas----volunteer Posted August 21, 2004 In what was an ugly week, the only positive case noted in the initial sweep of capital appellate decisions, Pennsylvania v. Duffey, 2004 Pa. LEXIS 1898 (PA 8/18/2004), appears to be limited to solely a remand to clean up the record. Posted August 18, 2004 Five "wins" are noted in this edition, four from state courts of appeal & one from the Fifth Circuit. Teresa Norris and her South Carolina crew scored an amazing win in Hall v. Catoe where the state supreme court held appellant's counsel was "ineffective for not objecting to the [prosecutor's] closing argument, which included an instruction to the jury to compare the worth of Hall's life with the lives of his victims." Two North Carolina wins are also noted, North Carolina v. Tirado & North Carolina v. Boggess, based on very fact driven grants of relief (delay in polling the jury & improperly re-opening voir dire without permitting use of peremptories, respectively). In Arizona another sentence vacateur, Arizona v. Moody, is had in light of Ring. Finally, rounding out the wins, the Fifth Circuit ordered a remand in Kelly v. Dretke as the district court improperly granted summary judgment on claims relating to whether the state knowingly used coerced/perjured testimony. The cases from the Carolina state courts are examined in the Hot List section. In other cases of note, three bad rolls of the death dice are noted, as well as one important noncapital habeas decision. In Matchett v. Dretke a panel stops just short of stating that if a defendant is unlucky enough to get a string of bad attorneys then he deserves to die (or in legal terminology "claims procedurally defaulted as ineffective assistance of state habeas counsel is not "cause" for procedural default, even with respect to constitutional claims that could only be raised for first time in state post-conviction proceedings"). In Ohio the state supreme court held in Ohio v. Lamar that lack of an attorney who understands the intricacies of Ohio appellate law is not "good cause for missing the 90-day deadline to reopen appeal." The Sixth Circuit in Williams v. Bagley denies relief most notably on what the dissent argues was stacking of the jury pool to guarantee a death verdict; note like Lamar, Williams had (in what appears an all to often problem in Ohio) procedurally defaulted his ineffective assistance of appellate counsel claims. Finally, in Felix v. Mayle, noting a circuit split, a Ninth Circuit panel holds relation-back doctrine applies for purposes of the AEDPA to habeas petitions. In
other news, the North Carolina Governor signed a bill into law that
requires prosecutors to share their files in all felony cases. In
New York attorneys created an unsual opening for political reformers to
exploit (after the Court of Appeals struck down the law in June, saying
its sentencing provisions were coercive) and the resulting opposition
to "a quick fix" from many legislators halted attempts to pass a death
penalty reinstatement bill before the summer recess at the end of
July. Professor James R. Eisenberg's new book, "Law, Psychology,
and Death Penalty Litigation," provides a thorough introduction
to the role that forensic psychology plays in capital trials
including the various tasks that might confront the forensic
psychologist in a death penalty trial, including issues of competency
to be executed, mental retardation, risk assessment, and related
ethical dilemmas. Benjamin Fleury-Steiner's recently released "Jurors'
Stories of Death: How America's Death Penalty Invests in Inequality"
(University
of Michigan Press, 2004) is out and gives a fascinating continuation of
the recent analyses offered by academics on the subject of why juror's
vote for life and death. For those who hadn't heard, veteran
abolitionist and civil rights lawyer Diann Rust-Tierney will join NCADP
as its new executive director. "The abolition movement is turning a
corner," said Rust-Tierney, who has directed the ACLU's Capital
Punishment Project since 1991. The Houston Crime lab scandal
has escalated in recent weeks following the possible exoneration of a
man convicted of rape in 1987 has led investigators of the Houston
police department crime laboratory to conclude that the lab's
reliability crisis will raise the number of crime lab cases to be
reexamined from 360 to an estimated 5,000 - 10,000 cases, a number that
would surely include some capital murder trials from Harris County.
On the web Lawrence Solum, has been reviewing some recent habeas corpus & international law articles, including two that struck me as fairly interesting: Thomas H. Lee (Fordham University - School of Law) has posted The U.S. Supreme Court as Quasi-International Tribunal: Reclaiming the Court's Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States against States (Columbia Law Review, Vol. 104) & Benjamin J. Priester (Florida State University - College of Law) has posted Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants; some of Prof. Solum's law review coverage is had in the "From Around the Web" coverage & his blawg is at lsolum.blogspot.com. Also, Deadline the movie now has a blog, over at http://deadlinethemovie.com/blog/ A couple of quick corrections, in Reid v. Johnson, covered in the last email edition, the Supreme Court has lifted the stay . Additionally, I failed to mention that Ryan Matthews in Louisiana, an alleged juvenile offender, became the nation’s 115th death row inmate to be freed according to the Death Penalty Information Center. Finally,
as promised, capitaldefenseweekly.com is now being updated almost daily
& not everything in the site will make it into the weekly
email. As always thanks for reading & thanks again for all
those who sent congratulations on my recent engagement. - k
This edition archived at here EXECUTION INFORMATION Since
the last edition the following executions in the United States:
August 12Terry Dennis Nevada----volunteer 18 James Hudson Virginia Pending execution
dates believed to be serious include:
August
September 9 James Edward Reid Virginia 21 Andrew Flores Texas 22 Philip Workman Tennessee 28 Ricky Dale Newman Arkansas----volunteer Posted August 18, 2004 Just
a quick preview, here is the rough of the wins, save for one (US v.
Roane, et al,, 2004 U.S. App. LEXIS 16366 (4th Cir 8/9/2004) which is a
mix of winners & losers). This week looks like a mix of wins
& losses. What this week's article will be is still open for
discussion.
Hall v. Catoe, --- S.E.2d
---, 2004 WL 1773859 (S.C. 8/9/220004) "Hall's counsel was
ineffective for not objecting to the solicitor's closing argument,
which included an instruction to the jury to compare the worth of
Hall's life with the lives of his victims."
Kelly v. Dretke, 2004 WL
1777082 (5th Cir. 8/10/2004) Remand ordered as the district court
improperly granted summary judgment on claims relating to whether the
state knowingly used coerced/perjured testimony. Arizona v. Moody, --- P.3d
--- , 2004 WL 1772151 (Az 8/9/2004) Sennteence vacated in light of
Ring.
North Carolina v. Tirado, --- S.E.2d --- , 2004 WL 1801791 (NC 8/13/2004) & North Carolina v. Queen, --- S.E.2d --- , 2004 WL 1801791 (NC 8/13/2004) Tirado granted relief under the unique facts here as the delay in polling the jury rquired the verdict to be set aside ("it unlikely that any juror who was wavering when the verdict was returned on 7 April would have expressed any doubts when polled on 11 April"). Queen affirmed. Catching up on the case law thingie, congrats go out to Teresa Norris & crew for their unexpected win in Hall v. Catoe, --- S.E.2d ---, 2004 WL 1773859 (S.C. 8/9/2004) last week. Still catching up on cases.. For
those who hadn't heard, veteran
abolitionist and civil rights lawyer Diann Rust-Tierney will join NCADP
as its new executive director. "The abolition movement is turning a
corner," said Rust-Tierney, who has directed the ACLU's Capital
Punishment Project since 1991.
Posted August 17, 2004 Today
kicks off the return to the roots of the weekly with a greater focus on
TIMELY coverage and a lessened focus on the weekly email. Not
quite sure how it will play out but the goal is to make case law
updates more timely & available even during those weeks I am on
trial.
Benjamin Fleury-Steiner's recently released "Jurors' Stories of Death: How America's Death Penalty Invests in Inequality" (University of Michigan Press, 2004) is out and gives a fascinating continuation of the recent analyses offered by academics on the subject of why juror's vote for life and death (available at Amazon, BN.com & other fine bookmongers). Quick update in Reid v. Johnson, covered in the last email edition, the Supreme Court has lifted the stay in that case. Posted August 12, 2004 Two ineffective assistance of counsel cases lead off this week. In Smith v. Mullin a panel of the Tenth Circuit grants relief on the failure of counsel to adequately investigate. Smith is especially notable as the panel notes the apparently strong case the prosecutor makes for death. Trial counsel's stark admission about his shortcomings appears to have tipped the scales (counsel during the trial stated that he was in over his head & "admitted at the evidentiary hearing that he was unaware Mr. Smith's 'mental state or mental illness could be introduced as mitigation in the second stage'."). Likewise, in In re Lucas, the California Supreme Court unanimously reversed on ineffective assistance of counsel where pro bono counsel had been recruited to handle post-conviction (Cooley Godward, including Paul Renne, Steven Friedlander and Chuck Schaible). The Lucas Court's opinion is quoted below at some length & demonstrates a step by step checklist of what trial counsel & post-conviction counsel must do. As noted in that opinion: "[b]etween the ages of three and seven years, he was beaten regularly, given inadequate food, dressed in rags during Ohio winters, forced to sleep under the bed, disciplined by being burned with a cigarette and by the administration of chili peppers to his genitals, and excoriated because of the circumstances of his birth. His sister was not subject to abuse; petitioner often was fed solely on her leftovers." Elsewhere, the Supreme Court by 5-4 in a vote, despite a split in circuit courts on the issue, denied certiorari & a stay to the Eleventh Circuit's holding in Hubbard v. Campbell; the Hubbard panel in the court below held that circuit precedent requires abuse of the writ analysis for all competency to be executed claims. In a technical habeas opinion a Fourth Circuit panel in Reid v. Johnson remands to the district court to determine applicability of Nelson v. Campbell. In a similiar techinical opinion a Sixth Circuit panel in King v. Bell remands on the question of the applicability of equittable tolling. Over the course of the next few weeks I will be trying to catch up & as always thanks for reading. - k This edition archived at here EXECUTION INFORMATION Since
the last edition the following executions in the United States:
August 5 James Hubbard Alabama Pending execution
dates believed to be serious include:
August September
21 Andrew Flores Texas 22 Philip Workman Tennessee 28 Ricky Dale Newman Arkansas----volunteer Posted July 30, 2004 Leading off this week is Johnson
v. Oklahoma. Johnson
explicitly rejects commutation as a sentencing consideration in the a
penalty phase, please note, however, that this decision rests solely on
state law. The Johnson
court also grants penalty phase relief on claims relating to the
failure to adequately voir dire jurors on their ability to sentence the
accused to a sentence less than death.
Elsewhere, the Fifth Circuit examines a messy habeas procedural case in Billiot v.Epps that examines when a district court's order purporting to deny relief is a "final” & "appealable" order. In the Eleventh Circuit Judge Tjoflat authored three denials of relief in as many days (Kelley v. Secretary For Dept. Of Corrections, Peoples v. Campbell, & Sibley v. Culliver), including a reversal of a grant of relief in Kelley, I want to strongly
suggest to those who do noncapital criminal defense work to take a look
at the SCOTUSblog
& the Blakely blog,
Ths post-Blakely practice of criminal law is rapidly changing &
both sites have key briefs & links to memos on all the latest
issues raised by that decision. Those sites note what appears to
be the likely next Apprendi cases, Booker (from the Seventh
Circuit) or Pineiro (from the Fifth Circuit), Fanfan
(from the Maine District Court), and Bijou (a case involving
an enhancement based essentially on "acquitted conduct" decided by the
Fourth Circuit before Blakely), all of which are currently
before the Court (the vote here is for Booker & Bijou as the
"cleanest" cases procedurally to be granted cert.).
Since
the last edition there have been no executions in the United States:
Pending execution
dates believed to be serious include:
August Posted July 23, 2004 Leading off this week is In re
Hearn. The Hearn opinion reflects a potential major shift in
the Fifth Circuit's jurisprudence as it relates to both "late inning"
stay litigation & mental retardation. On the first point
counsel is appointed & a stay is granted to prepare a successive
petition. On the second point, the stay is granted on a claim of
mental retardation despite a test score indicating an IQ test result of
82.
Other key wins this week
include, California
v. Stewart where the court concludes that "the trial court erred in
excusing five prospective jurors for cause based solely upon their
checked responses and written answers on a jury questionnaire." Doss
v. Mississippi, also covered in the "Hot List" section gives an
excellent example of the nuts & bolts of what needs to be done both
by trial & post-conviction counsel as it relates to penalty phase
investigations.
Elsewhere, in a bizarre stay case from the Supreme Court, a 4-4 final vote on staying Georgia's execution of Eddie Crawford on claims relating to his actual innocence; it appears that Justices O'Connor & Breyer could not initially be reached in time to vote on at least one stay application, but that Justice Breyer was subsequently contacted in time to vote for a stay, but Justice O'Connor could not be reached . The American Bar Association has web posted the various briefs in Roper v. Simmons to their website. Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. The award-winning documentary "Deadline," which takes viewers directly into the emotional and legal storm surrounding former Illinois Governor Ryan's decision to commute the death sentences of all those on death row, will air on NBC during a special 2-hour "Dateline" program at 8 p.m. on July 30th. In the "Focus" section
covers my annual review of the internet websites relating to criminal
& capital defense. The big addition this year is the Ninth Circuit Capital Punishment
Handbook, which covers both habeas & Eighth Amendment law.
Several "blawgs" (legal web logs) have also been added. If I missed
something on the list that should be there please let me know so that
that resource list can be updated & sent out to the list &
counsel.
Two other notes relating
to the site & list. The first is that the weekly website will
slowly being returning to blog format to make working on it easier
& more timely; during this transition I will be switching back to
westlaw cites & adding some district court coverage over the course
of the remainder of the summer. Second, I am being forced out on three
separate one week "felony trials" in a four week period (one last week,
and one each of the next two weeks), the weekly will run only if it
will not impact on those trials.
Since
the last edition the following people were executed in the United
States:
July 19 Eddie
Crawford Georgia
20 Scott Mink Ohio----volunteer 22 Mark Bailey Virginia Pending execution
dates believed to be serious include
August Posted July 9, 2004 Several notable Texas
related developments are noted this edition in what appears to be a
continuation of the Court's review of Texas's death penalty in light of
that state's outlier status. Troy Kunkle received a stay earlier
this week from the SCOTUS apparently on a claim arising out of Tennard
v. Dretke about whether jurors who deliberated his death sentence
weren't allowed to properly consider his drug and alcohol abuse
history. On June 28th a second grant of certiorari in Miller-El
v. Dretke (see focus) & summarily vacated Billy Ray Nelson in light
of Tennard v. Dretke. Mauro Barraza, also in Texas, received a
stay by the SCOTUS pending a decision on the constitutionality of the
juvenile death penalty in Roper.
Turning attention to the
SCOTUS's non-capital opinions, the Court since the last edition handed
down numerous cases of interest. Most notable are the three war
powers / habeas cases, Hamdi
v. Rumsfeld (due process requires that citizen enemy combatants be
given a meaningful opportunity to contest the factual basis for that
detention before a neutral decisionmaker), Rasul v.
Bush (habeas review may be had for those at Gitmo) & Rumsfeld
v. Padilla (proper venue for a habeas petition is the district
where Respondent is located), that have been rehashed ad nauseum
elsewhere. Two plurality opinions concerning Miranda are also
noted: United
States v. Patane (fruits of an unlawful interrogation may be
admitted under certain circumstances) & Missouri
v. Seibert (two-stage interrogations, one portion pre-Miranda
& one post-Miranda, will normally produce tainted statements for
purposes of Miranda).
In the lower courts, the
Sixth Circuit, in Thompson
v. Bell, in a somewhat complicated Rule 60(b) decision, permitted
the record to be expanded on appeal, issued a stay in order to permit
the district court to address issues raised by a new affidavit in that
matter. In Georgia the state supreme court granted relief on the
denial of the accused's right to self-representation in Lamar
v. Georgia. In Ward v. Indiana the state supreme court
remanded for a new trial as "the trial court abused its discretion in
failing to grant Ward's motion for change of venue from the county, or
in the alternative to draw the jury from another county."
Elsewhere, Darnell Williams, who was scheduled to be executed in Indiana on July 9, was granted a commutation of his death sentence to life without parole by Governor Joe Kernan -- it was the first commutation in a death penalty case in that state in 48 years. Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. Note that in addition to Tennard, noted above, the ripples of several other Supreme Court decisions are already being felt. The fall out from Blakely v. Washington, arguably the most important criminal law case of the Term, is being covered at the Sentencing Law & Policy blog, Blakely Blawg & NACDL's Blakely resource page. Following the decision in Beard v. Banks the Third Circuit has begun moving cases that appear to have been held pending the outcome in that case, including Mumia Abu-Jamal's case. Further impacts from the term can be found by watching streaming video or reading the transcript of the American Constitution Society's "Supreme Court Roundup" at the National Press Club. Please note that due to time limitations several opinions, Deardorff v. Alabama, Berry v. Mississippi, Pennsylvania v. Edmiston, Pennsylvania v. Harris, Cantu v. Texas, & Escamilla v. Texas, will have to be covered next week. Please note, the Weekly regularly misses cases, if there is something that is missed or wrong please contact me off-list. As always thanks for reading. - k This edition archived at http://capitaldefenseweekly.com/archives/040705.htm EXECUTION INFORMATION Since the last edition
the following people were executed in the United States:
June
30 David Harris Texas July 1 Robert Hicks Georgia Pending
execution dates believed to be serious include
July August
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