Capital Defense Weekly

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As always thanks for reading. - k

EXECUTION INFORMATION

Since the last edition there have been no executions in the United States.

Potentially serious executions noted are:

January 2005

4     James Porter    Texas
20 Jose Briseno     Texas
26 Michael Ross    Connecticut----volunteer
27 George Jones Texas

SUPREME COURT

No cases noted. Oral arguments were heard this week, however, in Howell v. Mississippi on when instructions on lesser included offense of capital murder must be presented to juries & whether Howell had sufficiently preserved the issue for Supreme Court review.

CAPITAL CASES (Favorable)

Florida v. Duncan, 2004 WL 2699063 (FL 11/24/2004) "[C]ounsel knew or should have known of the existence of various mitigating factors that could have been presented during the penalty phase."

Thomas v. Florida, 2004 WL 2609249 (FL 11/18/2004) Remand ordered on mental retardation claims. Relief otherwise denied on claims relating to sufficiency of evidence and claims of whether record supported finding that defendant and knowingly, voluntarily, and intelligently waived his Miranda rights prior to giving confession, even though defendant had a limited IQ.

Pennsylvania v. Smith, 2004 WL 2607981 (PA 11/17/2004) Prosecutor's reference to defendant's prior conviction for assaulting an inmate, which was fact not in evidence, requires reversal.

Howell v. Tennessee, 2004 WL 2601045 (Tenn 11/16/2004) Remand and hearing ordered on mental retardation claims with the opinoin striking down portions of Tennessee mental retardation as inconsistent with due process.

CAPITAL CASES (Other Than Favorable)

Sterling v. Dretke, 2004 WL 2664247 (5th Cir 11/23/2004) (unpublished) Relief denied on counsel's failure to question a certain juror about racial bias during voir dire whom trial counsel knew personally and who was known to harbor certain racist attitudes.

Pursley v. Dretke, 2004 WL 2617939 (5th Cir 11/18/2004) (unpublished) Relief denied on claims of: "(1) whether the district court erred in concluding that Pursley was not denied his Eighth Amendment and due process rights to a fair trial when victim impact evidence was presented by the state during the guilt-innocence phase; and (2) whether the district court erred in concluding that Pursley was not denied his federal constitutional rights to a fair trial and a presumption of innocence when the trial court ordered him to appear during voir dire in shackles and handcuffs, and further compounded the error when the trial court excluded him from being present during individual voir dire."

Bieghler v. McBride, 2004 WL 2609591 (7th Cir 11/18/2004) Relief denied on claims of whether prosecutor impermissibly commented on defendant's post-arrest silence and ineffective assistance of counsel claims relating to failing to "(1) object to evidence of his past drug usage; (2) present mitigating evidence during the penalty phase of his trial; and (3) present alibi evidence."

Rodgers v. Florida, 2004 WL 2694947 (FL 11/24/2004) (dissent) Relief denied on claims relating to evidentiary issues including excluding certain items of evidence retrieved from codefendant's residence in the penalty phase; failure to establish mitigating circumstance during penalty phase that his confession statement was falsified because he was suicidal; handwritten notes by codefendant, which included a list of material needed to commit murder offense, was admissible during penalty phase under coconspirator exception to hearsay rule ; refusal to allow defendant to withdraw guilty plea before imposition of sentence was not abuse of discretion; and waiver of the right to be present at hearing in judge's chambers regarding conflict between his attorneys. An interesting issue to watch on rehearing in this case is how the Court deals with admission in the penalty phase of the co-conspirator statement in light of Crawford v. Washington.

Cole v. Florida, 2004 WL 2696901 (FL 11/24/2004) Relief denied holding Cole failed to establish entitlement to postconviction DNA testing.

Waiwright v. Florida, 2004 WL 2694943 (FL 11/24/2004) Relief denied on claims including: " (1) trial counsel was ineffective regarding the admission of additional DNA evidence; (2) trial counsel was ineffective regarding Wainwright's statements and admissions; (3) trial counsel was ineffective regarding evidence of Wainwright's out of state crimes; (4) trial counsel was ineffective regarding a microphone discovered in Wainwright's cell; (5) trial counsel was ineffective for failing to object to the penalty phase instructions on the aggravators; (6) trial counsel was ineffective for failing to object to the prosecutor's argument at the guilt and penalty phases; (7) trial counsel was ineffective for failing to maintain a proper attorney-client relationship, failing to ensure that Wainwright received adequate mental health evaluations and failing to investigate and present additional mitigating evidence; (8) trial counsel was ineffective for allowing the victim's family to testify at sentencing; (9) trial counsel was ineffective for failing to object to an alleged Caldwell v. Mississippi, 472 U.S. 320 (1985), error; (10) initial counsel, Victor Africano, was ineffective in his pretrial representation of Wainwright; (11) trial counsel was ineffective for failing to be prepared for trial; (12) trial counsel was ineffective for introducing statements of the codefendant; (13) trial counsel was ineffective for committing an alleged discovery violation; (14) trial counsel's illness during trial rendered him ineffective."

Bowling v. Kentucky, 2004 WL 2623968 (Ky 11/18/2004) Relief denied as appellant has not demonstrated "good cause" for untimely filing of motion for new trial based on newly discovered evidence. Jurors' alleged statements were inadmissible to impeach jury's verdict and the defendant lacked right to be present at judge's post-trial meeting with jurors.
.
Cole v. Missouri, 2004 WL 2663608 (Mo 11/23/2004) Relief denied on claims presented as ineffective assistance of counsel that were raised and addressed on direct appeal; prosecutor's comments during sentencing phase were not plain error; and counsel's failure to present favorable adjustment to incarceration, religious upbringing, and mental or emotional disturbance at time of crime.

Black v. Missouri, 2004 WL 2663641 (Mo 11/23/2004) Relief denied on claims "trial counsel was ineffective in failing to impeach four witnesses with prior inconsistent statements that he argues showed that the murder was not the result of deliberation."

Ohio v. Adams, 817 N.E.2d 29 (Ohio 11/17/2004) Relief denied, in what the state supreme court itself calls a strong claim of actual innocence, on claims including counsel's decision not pursue certain motions, pretrial publicity, use of a stun belt during trial; and competence to stand trial.

Pennsylvania v. Wilson, 2004 WL 2660746 (PA 11/19/2004) Relief denied on claims relating to (1) out-of-court statements of identification did not constitute hearsay; (2) prior out-of-court consistent statements of witness were admissible in order to rehabilitate witness; (3) grave risk aggravating factor applied to defendant's firing of gun in crowded bar; (4) counsel was not ineffective for failing to anticipate later change in law; and (5) counsel was not ineffective by following defendant's wishes in not presenting mitigation evidence.

Pennsylvania v. Fletcher, 2004 WL 2624040 (PA 11/18/2004) Relief denied on claims relating to the sufficiency of evidence; penalty phase instruction that killing was to prevent victim from testifying in pending criminal proceeding; overbreadth of prior murder conviction aggravating circumstance; failure to give penalty phase instruction on the commutation of life imprisonment sentences; failure announce aggravating and mitigating circumstances in such a matter to permit jurors to be polled as to their finding and penalty phase closing arguments in which prosecutor commented that the jury should consider defendant's demeanor, his composure, his actions, his conduct and his behavior in the courtroom during trial, and how he acted on the morning of the murders, were not improper.

Tennessee v. Thompson, 2004 WL 2676534 (Tenn 11/24/2004) Relief denied as evidence was sufficient to support finding that Thompson was not insane at the time of the offense and amendment to insanity statute as it pertains to expert testimony did not apply retroactively. Remand ordered to dispose of remaining claims in new trial motion.

In re Stenson, 2004 WL 2677038 (Wash 11/24/2004) Personal restraint petition challenging state proportionality review as insufficient denied on procedural bar grounds.

OTHER NOTABLE CASES

None currently noted.

HOT LIST

Howell v. Tennessee, 2004 WL 2601045 (Tenn 11/16/2004) Granting a mental retardation hearing and striking down portions of Tennessee mental retardation as inconsistent with due process.

[10] All petitioners who are now, through post-conviction proceedings, claiming exemption from capital punishment due to mental retardation under Atkins or Van Tran have one fact in common-they were not afforded an opportunity to raise these claims at trial, yet the right to do so has been applied to them retroactively. See Van Tran 66 S.W.3d at 811. This includes defendants filing an initial petition for post-conviction relief as well as those, such as the petitioner in the present case, who have concluded post-conviction proceedings but now attempt to reopen them based on this newly recognized constitutional right. To apply this right retroactively, yet at the same time hold post-conviction petitioners to a higher burden of proof than defendants at trial is fundamentally unfair. Therefore, we hold that applying the "clear and convincing" burden of proof to petitioners who are now for the first time, in either an initial petition for post-conviction relief or in a motion to reopen post-conviction proceedings, able to raise a claim of mental retardation to avoid capital punishment violates the due process rights of the post-conviction petitioners.
*12 The issue of proper burden of proof was addressed in Cooper v. Oklahoma, in which the United States Supreme Court stated:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'

Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996)(quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).
At issue in Cooper was whether a defendant could be required to prove incompetence to stand trial by clear and convincing evidence. Id. at 350, Although the defendant could not prove his claim clearly and convincingly, the Court found that he had shown he was more likely than not incompetent to stand trial. 116 S.Ct. 1373.Id. at 355, 116 S.Ct. 1373. The Court analyzed both the traditional manner in which burdens of proof are allocated along with the State's interest in the case at bar. The Court stated:

The deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.

Cooper, 517 U.S. at 368, 116 S.Ct. 1373. Finding that executing a defendant who was more likely than not incompetent would violate due process, the Court held that the defendant must be allowed to prove incompetency by a preponderance of the evidence. Id. at 369, 116 S.Ct. 1373.

As previously noted, executing the mentally retarded has been found by both the Tennessee Supreme Court and the United States Supreme Court to violate constitutional protections. A majority of this Court, in Van Tran, held that evolving standards of decency in society argued against executing mentally retarded defendants. 66 S.W.3d at 801. We recognized that the Tennessee General Assembly had enacted legislation prohibiting such executions, Tenn.Code Ann. § 39-13-203 (2003), and we viewed this as a valid reflection of society's views on this issue. Van Tran, 66 S.W.3d at 805. We also noted the parallel concerns raised regarding incompetency to stand trial and mental retardation. Id. at 806-807. We point out that the statute to which we refer allows a capital defendant to prove mental retardation by a preponderance of the evidence. Tenn.Code Ann. § 39-13-203(c) (2003).

[11] As evidenced in both statutory and case law, society does not wish to execute mentally retarded individuals. Therefore, as a burden of proof should reflect the degree of confidence our society thinks most appropriate in making a determination, see Cooper, 517 U.S. at 362, 116 S.Ct. 1373, then mental retardation should be determined by preponderance of the evidence, as set forth in Tennessee Code Annotated section 39-13-203(c). Just as the Supreme Court held in Cooper regarding incompetency, we conclude that it would violate due process to execute a defendant who is more likely than not mentally retarded.

*13 [12] As Van Tran and Atkins make clear, mentally retarded individuals have a constitutional right not to be executed. [FN7] We recognize that our holding today is at odds with the standard set out in Tennessee Code Annotated section 40-30-117. However, were we to apply the statute's "clear and convincing" standard in light of the newly declared constitutional right against the execution of the mentally retarded, the statute would be unconstitutional in its application. Therefore, in light of the fact that the petitioner could not have litigated his claim at any earlier proceeding, we hold that at an evidentiary hearing, he will have the opportunity to prove mental retardation by preponderance of the evidence.

We are mindful that holding the petitioner to a preponderance of the evidence standard at this hearing may increase the burden upon the State in defending against the claim. In the present case, however, the risk to the petitioner of an erroneous outcome is dire, as he would face the death penalty, while the risk to the State is comparatively modest. See Cooper, 517 U.S. at 364-365, 116 S.Ct. 1373 (comparing the risk of incompetent defendant standing trial versus State's risk of incorrect competency determination). The balance, under these circumstances, weighs in favor of the petitioner and justifies applying a preponderance of evidence standard at the hearing.

FOCUS

The American Psychological Association's journal, Psychology, Public Policy, & Law, devotes its December 2004 issue to the death penalty. These articles may be downloaded (for a fee) at http://www.psycinfo.com/psycarticles/index.cfm?fuseaction=toc&jrn=law&vol=10&iss=4:

Death is Different: An Editorial Introduction to the Theme Issue. by Craig Haney & Richard L. Wiener, 2004 Dec Vol 10(4) 373-378
Stuck in the Dark Ages: Supreme Court Decision Making and Legal Developments, by James. R. Ogloff & Sonia R. Chopra, 2004 Dec Vol 10(4) 379-416
Searching for Uniformity in Adjudications of the Accused's Competence to Assist and Consult in Capital Cases.by John T. Philipsborn, 2004 Dec Vol 10(4) 417-442
Exploring the Effects of Attitudes Toward the Death Penalty on Capital Sentencing Verdicts, by Kevin M. O'Neil, Marc W. Patry & Steven D. Penrod, 2004 Dec Vol 10(4) 443-470
Dangerousness, Risk Assessment & Capital Sentencing.by Aletha M. Claussen-Schulz, Marc W. Pearce & Robert F. Schopp, 2004 Dec Vol 10(4) 471-491
The Prejudicial Nature of Victim Impact Statements: Implications for Capital Sentencing Policy, by Bryan Myers & Edith Greene, 2004 Dec Vol 10(4) 492-515
Guided Jury Discretion in Capital Murder Cases: The Role of Declarative and Procedural Knowledge, by Richard L.Wiener, Melanie Rogers, Ryan Winter, Linda Hurt, Amy Hackney, Karen Kadela, Hope Seib, Shannon Rauch, Laura Warren, & Ben Morasco, 2004 Dec Vol 10(4) 516-576
Capital Punishment, the Moratorium Movement, and Empirical Questions: Looking Beyond Innocence, Race, and Bad Lawyering in Death Penalty Cases, by Charles S. Lanier & James R. Acker, 2004 Dec Vol 10(4) 577-617
The Death Penalty in the United States: A Crisis of Conscience, by Richard L. Wiener & Craig Haney, 2004 Dec Vol 10(4) 618-621

FROM AROUND THE WEB

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Louisiana's Death Penalty Record Comparable to Illinois's: Moratorium Called For
A review of Louisiana's death penalty in recent years revealed that twice as many condemned inmates have walked free from death row than have been executed. Since 1999, of the 22 people whose cases were finally resolved, 12 had their death sentences reversed and were ordered to serve lesser sentences, 6 were freed after courts ordered their charges dismissed, 1 died of natural causes, and 3 were executed. Of the three who were executed, two were represented by attorneys no longer allowed to practice law. One of the disbarred lawyers was found to have participated in a long list of improper behavior over several cases, and the other attorney lost his license because of mental health problems. "That 27% of all capital convictions led to exonerations is shocking. I can't see how any criminal justice system can tolerate that level of error, particularly in the matter of the death penalty. It is unacceptable," said Stuart Green, a Louisiana State University law professor specializing in constitutional and criminal justice issues.

Four years ago, the State Bar of Louisiana adopted a resolution asking the governor to halt executions while state death penalty statutes were reviewed. At the time, then-Governor Mike Foster refused to take that step, but current Governor Kathleen Blanco has stated that she would consider a moratorium if statistics indicated problems. Backed by the numbers of mistakes, many attorneys and legal experts are urging Blanco and other lawmakers to impose a moratorium and authorize a capital punishment review in order to ensure the fairness and accuracy of the system. "No matter how you feel about the death penalty, people of integrity want to make sure that we take particular care when the sentence is death. These numbers say we are not careful," said Denise LeBoeuf, director of the Capital Post-Conviction Project of Louisiana. (The Advocate, November 29, 2004). See Representation and Innocence.

NEW RESOURCES: Groups Issue Report on Women Facing Execution
(Note: Dec. 1 execution of Frances Newton has been stayed by the governor.) As Texas plans to carry out the scheduled execution of Frances Newton on December 1, a new report documenting the results of a national survey of women currently on death row found that many women have been subjected to harsh living conditions and that most were sentenced for the murder of someone they knew. The report, The Forgotten Population: A Look at Death Row in the United States Through the Experiences of Women, was preapred by the ACLU and details the experiences of 56 women living on death row. It also reviews the cases of the 10 women who have been executed since 1976. It found that while women face problems similar to men's, such as inadequate defense counsel and struggles with drug and alcohol addiction, women are often subjected to harsher living conditions because of their small numbers. The following are among the key findings of the report:

Women on death row often had ineffective counsel and were victims of misconduct by prosecutors or law enforcement.

More than half of the women had suffered regular physical abuse by family members or spouses.

Half of the women on Death Row acted with at least one other person, but in most of those cases, the co-defendant received a sentence other than death - even in cases where they appeared to be equally culpable.

Many women on death row live in almost complete isolation, which puts them at a serious risk of developing mental illness, or exacerbating existing mental illness

The report recommends establishing a training program for defense lawyers to encourage investigation of abuse of their female clients and the raising of this issue at trial; integrating women on death row into regular prison units and providing them with opportunities to work; adopting prison staffing policies to prevent abuse; and amending the Prison Litigation Reform Act to provide women who are sexually abused in prison with access to the court. Since 1973, 148 women have been sentenced to death in the United States. There are currently 50 women on death row, and Newton would be 11th woman executed in the U.S. since 1976. (ACLU Press Release, November 29, 2004). Read the report. See Women and the Death Penalty. Note: the Texas Board of Pardon and Paroles has voted 5-1 in favor of granting Newton a 120-day stay. The governor's response is expected soon.

NEW VOICES: Former FBI Chief and Texas Judge Call for Halt to Texas Executions
William S. Sessions, who served as director of the FBI from 1987 to 1993, and Charles F. Baird, a former Texas Court of Criminal Appeals Judge from 1990 to 1998, have called for a halt to executions in Texas because of the risk of executing an innocent person. Sessions and Baird, both of whom are native Texans, cited the problems at the Houston Crime Lab as a principal reason for their doubts about the reliability of the death penalty system:

Since November 2002, when its police department's crime lab problems first surfaced, Houston citizens have reacted with dismay to each new revelation

The problems initially seemed limited to fairly minor physical breakdowns at the lab building. At every turn, however, these problems have multiplied. Most recently, authorities discovered about 280 boxes filled with crime evidence involving as many as 8,000 cases. What is most worrisome is that these cases were considered closed, many with a perpetrator behind bars and the victims seemingly assured that justice had been done. But because these boxes remain uninventoried, we cannot be sure that the right person is in prison, or if the true perpetrator is still on the streets, endangering us all

We are Texans and members of a bipartisan committee sponsored by the Constitution Project's Death Penalty Initiative. We joined the committee in 1999 because we believe the risk of convicting and executing the wrong people is unacceptably high. Since the initiative's creation, the number of individuals who have been exonerated and released from death row has reached 117 nationwide, including eight from Texas. The discovery of the boxes from the Houston crime lab raises the potential that many more wrongfully convicted people are being housed in our Texas prisons.

While our committee includes members who support the death penalty, and others who oppose it, we all agree that the risk of wrongful convictions is too high and that systemic reforms are urgently needed to try to make the system fairer and more accurate.

One of our recommendations is that states allow DNA and other biological evidence to be properly tested in any case and any time if the evidence might shed light on the guilt or innocence of the inmate, so that we can be as sure as possible that we are prosecuting the right person.

Our committee has not taken a position on a moratorium, but the Houston travesty requires us to join with the many prominent Texans who are now calling for a moratorium until the evidence in the Houston crime lab boxes is inventoried and, if appropriate, tested.

We are in good company. Houston Police Chief Harold Hurtt has noted,'I think it would be very prudent for us as a criminal justice system to delay further executions until we have had time to review the evidence.' The dean of the Texas Senate, John Whitmire, who represents part of Houston and also chairs the Senate Criminal Justice Committee, joined in the chief's call for a moratorium. In a letter to Gov. Rick Perry, Whitmire stated, 'It's just nuts, to sum it up, that we would not hold off on executions until we go through each and every piece of evidence.'

Former Gov. Mark White and Charles Terrell, a former chairman of the Texas Department of Criminal Justice, have also called on the governor to act, as have major Texas newspapers. Judge Tom Price of the Texas Court of Criminal Appeals has also recently joined the call for a moratorium.

Yet, within the last few weeks, five executions have gone forward involving death row inmates from Houston, with another scheduled for early December. District Attorney Chuck Rosenthal has resisted an independent review of the crime lab and has joined the trial judges in opposing a postponement of the executions, even just until a proper inventory and any appropriate testing of the evidence is done.

We cannot understand this position. If the evidence confirms the guilt of the person scheduled to be executed, the execution should go forward. But if the evidence exonerates the inmate, no Texan would want to see an execution.

Texans know that the crime lab problems are not just theoretical and are not limited to death row inmates. In 2003, Josiah Sutton was exonerated of a crime he did not commit after spending four years in prison. Earlier this month, George Rodriguez was released after spending more than 17 years in prison. He was convicted on the basis of faulty DNA analysis

Since reintroduction of the death penalty, Texas has executed 336 men and women. Our state has been responsible for more than 35 percent of all the executions in America. Too many of these executions occurred despite of profound questions about the facts of these cases, including in some instances questions about whether the defendant was actually innocent

The two safety valves that supposedly prevent our state from executing an innocent person have not worked as they should, and in some cases have failed entirely. The Court of Criminal Appeals, an elected and partisan body, has been criticized by the U.S. Supreme Court for not properly reviewing cases. A just released Texas Monthly article about the court is called 'And Justice for Some.' And -- borrowing a phrase from the Texas oil fields -- clemency in Texas is simply a dry hole, with critical facts either not presented to the governor or not meaningfully considered.

Many experts believe that the death penalty does not deter crime. Some of us are not sure one way or the other. But, we should not be deterred from exercising common sense. We have a runaway train with no one at the controls, and that is no way to run a railroad. We support a moratorium.

(Op-ed, Austin American-Statesman, November 25, 2004). See New Voices. See also Innocence.

PUBLIC OPINION: Gallup Poll Finds Decline in Support for the Death Penalty
A recent Gallup Poll measuring public opinion regarding the death penalty revealed a decline in support for capital punishment. The poll found that 66% of Americans support the death penalty for those convicted of murder, down 5% from an earlier 2004 poll and significantly lower than the high of 80% in 1994. In an analysis of Gallup polls on this question from 2001 to 2004, women were more likely to oppose the death penalty than men. Among African-American respondents, 49% opposed the death penalty and 44% were in favor of it. Catholics were less supportive of the death penalty than Protestants, and Catholics who attended church regularly were even less likely to support it than Catholics who seldom attended church. (Gallup Poll Analysis, November 16, 2004). See Public Opinion.

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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, & 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). If you are a lawyer currently representing capital defendants or death row inmates or considering representing them, please feel join the capital defense discussion list by sending an email and a short one sentence bio to capitaldefense-subscribe@onelist.com

DISCLAIMER: Note that on a semi-regular basis cases which I have participated in one manner or another may be covered here. My comments on the case in no way should be taken as comments on the merits of any case in which I may currently or in which I may have participated but rather only notes a plausible reading of a given case.

* Execution date information per Rick Halperin and other sources.