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Then
there were
36. The Kansas Supreme Court, as noted in the last edition,
has struck down that state's death penalty statute
in Kansas
v. Marsh. The Kansas statute permits a jury to return a
death verdict
even it found the aggravators and mitigators in equipoise.
Holding that death should not win by default, the
Marsh Court holds that the prosecution should prove that the
aggravators outweigh mitigators by at least a simple preponderance
overruling State v. Kleypas. The
Court also vacated Marsh's conviction on claims relating to exclusion
of evidence that someone else committed the crimes for which the
appellant was
convicted.
In the Sixth Circuit the long awaited en banc decision In re Abdur’Rahman v. Bell is noted. Overruling McQueen v. Scroggy, Abdur'Rahman holds that a Rule 60(b) motion may be entertained in a habeas proceeding and thensets forth when a district court may entertain such a motion. The practical effect means all but two circuits (Tenth & Eleventh Circuits) now permit such motions. A panel of the Sixth Circuit, applying Abdur'Rahman in Alley v. Bell has found, in that death penalty case, however, that at least in Alley's case his motion was to be treated as a successive petition. A key decision with substantial overtones of actual innocence is noted out of the Sunshine state. In Mordenti v. Florida the Florida Supreme Court reverses the appellant's conviction holding that the state withheld key evidence of innocence that cast serious doubt on the state's only witness linking Mordenti to the crime. "There was no money trail, no eyewitnesses, no confession, no murder weapon, no blood, no footprints and no DNA evidence linking Mordenti to the murder." Elsewhere, the Alabama Supreme Court has ordered a new trial in Ex parte McGriff, as the trial court improperly instructed the jury on the need of the state to disprove heat of passion beyond a reasonable doubt. In Johnson v. Dretke the Fifth Circuit has granted -- in a successive habeas case -- a COA on the issue of prosecutorial misconduct and due diligence to overcome the requirement of 28 U.S.C. § 2244(b)(2)(B)(i). The Fifth Circuit has also granted a COA in Mines v. Dretke on Tennard and Penry II issues. The web roundup this week notes posts from the CrimProf Blog & TalkLeft. 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
19 Troy Kunkle Texas 19
Donald Beardlee California
20
Jose
Briseno Texas
|
26 Michael Ross Connecticut----volunteer 27 George Jones Texas Posted December 17, 2004 Florida v. Nixon leads of this edition. The Supreme Court in Nixon held that counsel's concession that his client committed murder, made without the defendant's express consent, does not automatically rank as prejudicial ineffective assistance of counsel under United States v. Cronic. In reaching the conclusion Justice Ginsburg sets out a very blunt analysis of viable strategies for capital trial counsel including concession of guilt. The case is bad for those already in the "pipeline" with similar "Cronic" type issues but the Court's reliance on the 2003 revisions of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and their markedly more favorable language than the prior Guidelines, as well as several other reasons, provides a very strong silver lining to this otherwise miserable opinion. Several favorable
cases
are also noted. In Hutchinson
v. Missouri the Court grants relief as trial counsel were
ineffective in failing to investigate and present
evidence of the defendant's impaired intellectual functioning. In
Ohio
v. Burke
the intermediate appellate court has held that counsel erred
in not timely filing a motion for new trial. In State
ex rel Mayes v. Wiggins
the Missouri Supreme Court held the trial court below erred in not
imposing a life sentence when "the verdict fail[ed] to show
that the jury found all facts necessary for the imposition of death."
The Alabama Supreme Court in Ex Parte Martin remands to permit the
trial court to reconsider the weight it gave to the jury's
recommendation to spare Martin's life.
Finally there is late word that Kansas has struck down its death penalty in Kansas v. Marsh, 36 states now retain the death penalty.. Full edition is
located here
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
19 Troy Kunkle Texas 19 Donald Beardlee California 20 Jose Briseno Texas 26 Michael Ross Connecticut----volunteer 27 George Jones Texas Updated December 10, 2004 "This is a regrettable case in which the attorneys involved--the prosecutor, defense counsel, and even the trial judge--failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case" the Ohio Supreme Court notes in Ohio v. Yarbrough. The opinion ultimately concludes that Ohio's murder statute does not authorize a death sentence for a murder committed in Pennsylvania, a point apparently missed by the attorneys in the case at trial. The Yarbrough opinion earns the first slot this week on the "hot list" for the Court's frankness in dealing with the issue of jurisdiction. The Louisiana Supreme Court's opinion in State Ex Rel Williams v Louisiana earns the only other slot this week. Williams is a technical opinion about the scope of the Louisiana funding mechanism for capital post-conviction cases. Pro bono counsel managed to attack that state's scheme by a number of different mechanisms ultimately resulting in a remand for further proceedings to expand the record. Counsel's creativity is why Ex rel Williams is highlighted. Arguably the most
important
post-Crawford case relating to the Confrontation Clause is the Sixth
Circuit's recent noncapital decision in United States v.
Cromer. The panel's decision there holds that under Crawford
testimonial hearsay is any statement made in
circumstances in which a reasonable person
would realize that it likely would be used in investigation and
prosecution of a crime. The Confrontation Blog
has more on post-Crawford developments post-Crawford including Cromer.
As this edition is going to press it the Supreme Court announced it would hear Medellin v. Dretke apparently on the issue of rights under the Vienna Convnention, more information at the Supreme Court blog (http://goldsteinhowe.com/blog). As noted here previously, Cameron Todd Willingham was strapped to a gurney earlier this year. To his death he proclaimed his innocence. This week the Chicago Tribune presents exceptionally strong evidence of his innocence. The Tribune's investigation concludes that rather than arson and homicide it was likely a tragic accident that lead killed his three daughters with that tragedy only being compounded by the execution of a probably innocent man. Similar questionable arson investigations resulted in the wrongful convictions and death sentences of Madison Hobley and Ernest Ray Willis, both of whom were later exonerated. At least one arguably innocent person, Kenny Richey remains on death row despite a similarly flawed arson investigation. In light of the problems with arson investigation the Trib's article highlights the article is the "Focus" article of the week. In other news of the week, the Supreme Court this week (again) heard argument in Miller-El v. Dretke to address the issue of the fairly blatant use of racial bias in the selection of jurors by the prosecution, and unofficially, to highlight its noted growing concern with the so-called "machinery of death" in the Fifth Circuit. Elsewhere, an analysis of the Innocence Protection Act of 2004 is now available from DPIC. Finally, New Jersey's acting Governor, Richard Codey, has called for a moratorium on executions as that state appears ready to set its first real execution date in forty years. The
ful edition is here
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 Updated December 3, 2004 Just a quick correction to the last edition. I missed a case a rehearing in Soffar Dretke and inadvertently failed to double check the analysis provided by a commercial service in Black v. Missouri. Additionally, Black would have likely been spotlighted on the hotlist as it addresses a common issue contested in trial courts (the scope of cross) but rarely addressed favorably by courts on appeal. The correction, which will be added to the archives on Monday, will have the following correction. Thanks to everyone (and I mean everyone) who brought these cases to my attention. Correction here Updated December 3, 2004 Since the last edition there have been four stays of serious execution dates. No executions are scheduled for the remainder of the year. In Kentucky the Thomas Bowling execution date was stayed based on a challenge to that state's lethal injection protocol and on claims of mental retardation. In North Carolina Charles Walker received a stay on claims that he had been convicted solely on the basis of unreliable testimony by co-defendants and others who could have been charged in the case. In Pennsylvania George Banks received a stay and a hearing on his claims regarding his competency to be executed. Finally, in the last stay of the year, Governor Rick Perry of Texas has stayed the pending execution of Frances Newton to permit the retesting of certain physical evidence. The orders and opinions relating to the stays are currently unavailable. In light of the unavailablity of the stay litigation materials the "Hot List" case of the week is Howell v. Tennessee. Howell earns this status as it appears to be one of the first, if not the first, post-Atkins case striking down portions of a state mental retardation statute. Specifically, the Tennessee Supreme Court holds that the state mental retardation statute places an undue burden on those whose cases had been litigated prior to Atkins. Three other wins are also noted. In Florida v. Duncan a new penalty hearing is ordered as trial counsel failed to present certain mitigation evidence to the jury. In Thomas v. Florida a remand was ordered on mental retardation claims. Finally, in Pennsylvania v. Smith a orosecutor's reference to a prior conviction that was not in evidence was held to be reversible error. Available
here
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 Updated Novembeer 18, 2004 The turning tide leads off this week. The number of prisoners in the United States on death row dropped for the third consecutive year in 2003, resulting from in the lowest total number (144) of death sentences in 30 years, according to a report by the Justice Department's Bureau of Justice Statistics. Likewise, the number of executions this year is expected to hit a seven-year low coming in slightly lower than last year's total of 65 (assuming no further execution warrants). A big thank you to all those who made these numbers a reality, one case and life at a time. Leading off the case law news this week the Supreme Court's holding in Smith v. Texas. A 7-2 majority in Smith held that the "nullification instruction" routinely given, as here, until the early 90's in Texas is constitutionally inadequate because it did not allow the jury to give " 'full consideration and full effect to mitigating circumstances'. " Specifically, here the Court found that Smith's jury did not have an adequate vehicle for considering evidence that included organic learning disabilities and low IQ. The case is the Capital Punishment Clinic at The University of Texas School of Law's second win in the U.S. Supreme Court in five months. The scheduled execution of Troy Kunkle was stayed by the Court just hours before his execution in light of Smith. Kunkle's fate at this time still remains to be decided. Three big wins out of Georgia are also noted, including this week's "Hot List" case. The "Hot List" case is Height v. Georgia where the Georgia Supreme Court remanded as favorable polygraph results should have been permitted as mitigating evidence in the penalty phase of capital murder trial if those results were taken under conditions deemed reliable. In Henry v. Georgia appellant's death sentence as the trial court seriously erred when it allowed the State to argue during the sentencing phase that defendant deserved the death penalty because he posed a future danger to those in the prison system simply because he killed while free. In Jenkins v. Georgia relief is had in light of Crawford v. Washington as admission of statements made by a deceased relative of the accused was never subject to the gauntlet of cross but was introduced at trial anyway. Three other victories are also noted. In New Jersey the state supreme court reverses in Reddish v. New Jersey as the admission of evidence that Reddish was in custody on unrelated charges when he confessed and erroneous instructions on the inability of police to locate the victim's body were errors that, cumulatively, warranted reversal of conviction. In Ex Parte Bell and Ex Parte Valdez the Texas Court of Criminal Appeals vacates the respective death sentences in light of findings of mental retardation. Elsewhere, Aya Gruber of Florida International has posted an interesting new paper on SSNR that was recently published in the Temple Law Review titled, "Victim Wrongs: The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victim's Rights." A general criminal law news resource is online and quickly finding a unique niche, the CrimProf Blog, by Professors Jack Chin (U of Ariz SoL) and Mark Godsey (U of Cincy SoL). In Texas, a new poll finds that 70% of Texans believe that their state has killed an innocent person and yet the death penalty in the same poll finds support among 75% of Texans. In an overdue notice to the community, Capital Punishment Research Initiative (CPRI) at SUNY-Albany has several projects relating to the empirical and historical studies of the death penalty. CPRI research is conducted by the University's graduate students and professors are especially seeking clemency petitions (and related documents) in capital cases, as well as other historical documents, such as files that attorneys might have in storage lockers and the like. Finally, several requests for copyright information have been received. Just to clarify I have waived copyright (with attribution) for noncommercial purposes to all materials created in relation to the "weekly." This is waiver for noncommercial purposes applies to all materials created in the last seven years (unless otherwise noted). As always, thanks for reading and a special thank you to Sandrine Ageorges for the work in making sure every Texas case, no matter what court, is brought to my attention. - k Full edition available here. EXECUTION INFORMATION Since
the last
edition there have been the following executions in the United States:
November 17 Anthony Fuentes Texas Pending execution
dates believed to be serious include:
November
30 Thomas Bowling Kentucky December 1 Frances Newton Texas----female 2 George Banks Pennsylvania 3 Charles Walker North Carolina Updated November 12, 2004 Leading off this week is United States v. Green. Although just a federal district court opinion the opinion is a good glimpse in what can be done to get two separate juries for the guilt-innocence and penalty phase. Key in the opinion is the analysis of how death qualification of a jury would result in a jury made up disproportionately of white men. In dicta the Court also suggests that it has deep concerns about recent studies linking death qualification to an increased likelihood of conviction. Other wins noted this week include Busby v. Florida where the trial court improperly denied Busby’s challenge for cause against a juror whose responses during voir raised doubt as to his fitness to serve as juror. The Sixth Circuit in Mapes v. Tate grants relief on an appellate ineffective assistance counsel claim after counsel for Mapes failed to present a claim relating to limitations placed on the presentment of mitigation evidence. Finally, the Washington Supreme Court in In re Davis vacates the Defendant's death sentence after the jury had observed him in chains. Elsewhere, in Tennessee the execution of Donnie E. Johnson has received a stay pending the resolution of the Sixth Circuit's en banc hearing in Abdur 'Rahman v. Bell. (Motion for stay./ Motion for Relief). In Ohio an unexpected coalition of Republicans and Democrats joined together in the Ohio House to approve a bill requiring an in-depth study Ohio's capital punishment system. As always, thanks for reading. - k Since
the last
edition there have been the following executions in the United States:
November 9 Demarco McCullum Texas 10 Frederick McWilliam Texas 12 Frank Chandler North Carolina Pending execution
dates believed to be serious include:
November
17 Anthony Fuentes Texas 18 Troy Kunkle Texas 30 Thomas Bowling Kentucky December 1 Frances Newton Texas----female 2 George Banks Pennsylvania 3 Charles Walker North Carolina Leading off this week is a case with a familiar name Harris v. Alabama. After the Supreme Court upheld the "advisory" jury system in Alabama in her case Ms. Harris filed for post-conviction relief asserting, among other claims, that her trial counsel failed to adequately investigate. In a somewhat stunning opinion, the Alabama Court of Criminal Appeals lays out one of the best step-by-step analysis of failure to investigate mitigation, solid language on mental retardation, and a good discussion of battered woman syndrome a mitigating factor. It should be noted that in Harris counsel chose to go with "residual doubt" as its penalty phase theory of the defense. Elsewhere, in addition to the recent political developments, the news from Washington is that the Chief Justice has fallen seriously so Focus this week looks at what What The Supreme Court Might Look Like Without Him in an essay by Marci Hamilton. What the election results will mean for the next few years of federal criminal practice will be addressed in a coming edition. As always, thanks for reading. - k Full edition here EXECUTION INFORMATION Since
the last edition there have been the following executions in the United
States:
November 2 Lorenzo Morris Texas 4 Robert Morrow Texas Pending execution
dates believed to be serious include:
November
9 Demarco McCullum Texas 10 Frederick McWilliam Texas 12 Frank Chandler North Carolina 16 Donnie E. Johnson Tennessee 17 Anthony Fuentes Texas 18 Troy Kunkle Texas December 1 Frances Newton Texas----female 2 George Banks Pennsylvania 3 Charles Walker North Carolina Decisions from Pennsylvanian lead off this edition. In Comm. v. Moore and Comm v. DeJesus the Pennsylvania Supreme Court does something still relatively unusual for it, it reverses in a capital case. Notably in Moore, the Court reverses as trial counsel failed to present any mitigating evidence of defendant's troubled upbringing. The Moore Court reminds trial counsel everywhere that mitigation, like so many other things, begins at home; here trial counsel failed to place the Defendant's mother and sister on the stand despite their being present in the courtroom, as well as failed to impress on defendants wife why she needed to testify in the penalty phase. In Comm v. DeJesus, the Pennsylvania Supreme Court again reverses. That Court had previously stated that prospectively it would not tolerate "send a message" penalty phase closings. Keeping its word, and even after a cautionary instruction, the Court strikes down DeJesus's death sentence and indicates that it will do so in any future case where such arguments are made. Several other decisions of note are also had this week, the problem is that they are unpublished (at least for now). The a panel in the Fifth Circuit has granted rehearing to its opinion in In re Hearn, and stays with its prior decision to grant leave to file a successive petition on Atkins grounds, upholds the appointment of counsel on a successive petition, and keeps the standards it had previously set forth for both. The Fourth Appellate, First Division in California has, in Brown v. San Diego Superior Court, given good language about the securing services of experts, market rates and the need for ex parte proceedings under state law. On a more personal note, thanks to all those on the list who put me up (and put up with my shenanigans) during my recent "vacation," this edition is for you. As always, thanks for reading. - k The entire edition here EXECUTION INFORMATION Since
the last
edition there have been the following executions in the United States:
October 26 Dominique Green Texas Pending execution
dates believed to be serious include:
November
2 Lorenzo Morris Texas 4 Robert Morrow Texas 9 Demarco McCullum Texas 10 Frederick McWilliam Texas 12 Frank Chandler North Carolina 17 Anthony Fuentes Texas 18 Troy Kunkle Texas December 1 Frances Newton Texas----female 2 George Banks Pennsylvania 3 Charles Walker North Carolina In the
second case, Connecticut v. Peeler, the Appellant got life below; so
why is it spotlighted? Following the life verdict below the state
supreme court, in a split decision, orders a new penalty phase
proceedings where death will once again be on the table. The
Peeler court holds that the trial court should have ordered a mistrial
in the penalty phase following bad instructions on unanimity that
favored the defendant and should not have accepted a deadlock
verdict. Watch for this case to be revisited soon as
this is one of a small handful of similar cases and a growing
trend in recent months around the country. Focus
this week covers the ongoing aftermath of House v. Bell. Noting
that House is an exceptionally strong innocence case, an editorial by
Dwight Lewis in the Tennessean examines that case's facts and the
unfortunate intersection of the case meeting the full Sixth Circuit en
banc while it has a majority of Republican political appointees. Now for some house-keeping matters. The lawyer discussion list capital-defense is open again for new subscribers (please email off list for subscription information). Thanks to Stephen Bedrick for the information update (actually press release) on the district court win in the Constantino Carrera case out of the Eastern District of California. Thanks to Panera Bread for the wi-fi hotspot for this on the road edition. Finally, on a more personal note, thank you to all those who in recent days have filled out the online request for Thomas Bowling, a former client of mine (indeed my first client out of law school in the mid-90s); the petition is online at http://www.thepetitionsite.com/takeaction/849542885 As always, thanks for reading. - k Archived here EXECUTION INFORMATION Since
the last edition there have been the following executions in the United
States:
October 12 Donald Aldrich Texas 13 Adremy Dennis Ohio 20 Ricky Morrow Texas 22 Charles Roache North Carolina----volunteer Pending execution
dates believed to be serious include:
October
26 Dominique Green Texas
Posted October 8, 2004 Elsewhere, Texas released Ernest Willis from death row today after serving there for 17 years with the district attorney being quoted as saying that he does not even think a crime was committed and that even if there was that Willis wasn't guilty. The exoneration of Willis is in stark contrast to the majority opinion in House v. Bell, where the Sixth Circuit en banc, in an eight to seven vote, note that this is a case of possible actual innocence but, nonetheless, deny relief "despite the uncertainties that remain" as conceded by the majority. Likewise, in Gary v. Schofield the federal district court denied relief on claims relating to actual innocence including denial of a fingerprint and serological expert (neither purportedly match Gary), as well as failure to turn over certain odontological evidence and results of serological examinations of semen (again, neither purportedly matched Gary). Finally, on the same topic, this week's Focus involves the recent book review of Innocent: Inside Wrongful Conviction Cases by Scott Christianson in the New York Law Journal and reviewed by Norman Greene. As always, thanks for reading, - k Available here EXECUTION INFORMATION Since
the last edition there have been the following executions in the United
States:
October 5 Edward Green III Texas 6 Peter Miniel Texas 8 Sammy Perkins North Carolina Pending execution
dates believed to be serious include:
October 12 Donald Aldrich Texas 13 Adremy Dennis Ohio 20 Ricky Morrow Texas 22 Charles Roache North Carolina----volunteer 26 Dominique Green Texas 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 |
