The
Supreme Court's decision in Rhines
v. Weber
leads off this week. The federal district court determined Rhines
filed a mixed petition of exhausted and unexhausted claims challenging
his conviction and death sentence. Rhines moved
for a stay of the federal habeas corpus proceeding so he could return
to state court and exhaust his unexhausted claims. By the time of
the
district court's decision the AEDPA's one-year
statute of limitations had already run, however the court granted the
stay. The Tenth Circuit held a district court can not hold
a
federal
habeas petition in abeyance for purposes of exhaustion.
Reversing, the
Supreme Court holds that a district court may, in circumstances like
those here, stay federal habeas litigation so that a petitioner can
exhausts his
remedies.
The other lead off case, Floyd
v. State,
is fairly straight forward. The prosecution in
Floyd failed to turn over evidence someone else committed the
crime. The trial court in post-conviction refused to even hold an
evidentiary hearing. The Florida Supreme Court remanded. On
remand the
trial court again decided not
to grant relief. The Floyd Court, not bothering to let the trial
court
have yet another chance to correct itself, grants relief.
Specifically, relief was granted as the confidence in the outcome of
the trial was sufficiently undermined to warrant relief as the state
failed to reveal "that two unidentified men were acting
suspiciously at the place and time of the crime [and] that the
testimony of the defendants cell mate regarding the defendant's alleged
confession was unworthy of reliance."
In other case law developments, the Supreme Court has granted
certiorari on
California's death penalty scheme in Brown v. Sanders. The
Florida Supreme Court in Parker
v. State has ordered an evidentiary hearing on counsel's failing to
adequately prepare for trial. The Sixth Circuit in Bates
v. Bell grants relief on penalty phase closing by the prosecution
that was more than
a little over the line of what is acceptable argument.
A great new law review article on admissibility of evidence in
the penalty
phase, "When Trial and Punishment Intersect: New Defects in the Death
Penalty,” 26 W. New Eng.
L. Rev. 233(
2004), Alexander
Bunin, is the Focus section this week. The article examines the
interplay of Ring v.
Arizona, Crawford v.
Washington and Eighth Amendment
jurisprudence. The
out take below gives a flavor of Bunin's article
Elsewhere, the ScotusBlog
has a great look at the oral arguments in Medellin
and the recent cert grant in Sanders.
In Oklahoma a County District Judge has found Osbaldo Torres, a
Mexican foreign national who was once on Oklahoma's death row, should
have been told before his trial that he had a right to contact his home
country's consulate. In Virginia a two-year study of 11 wrongful
conviction cases in Virginia found that
mistaken eyewitness identification is the leading reason innocent
people
have been convicted in the state.
Two new "resources"
are also noted, both of which are "blawgs" or law
related web logs. The first is the Ninth Circuit Blog where
federal defenders cover criminal law developments in, as if the name
didn't already give it away, the Ninth Circuit. The other is an
interesting experiment with "blogging" by Vernon Evans who was
scheduled to be executed the week of April 18; at the site Evans
answers questions posed to him by the public but does not appear (at
least at the moment) to be used to generate help with gaining clemency.
Finally, if you can't
shill for your good friends who can you shill
for? Bill Pelke's book, Journey
of Hope,
details the birth of the Journey of Hope....
From Violence to
Healing
after the murder of his grandmother. The book is
featured by the Death Penalty
Information Center (see below) this
week as a new resource.
Bill is currently the chairman of the board of the National Coalition
to Abolish the Death Penalty.
As
always, thanks for reading. - k
Serious Execution Dates
April
5 Glen Ocha Florida----vol
15 Richard Longworth South Carolina
18-22 Vernon Evans Jr. Maryland (unconfirmed reports of a stay)
20 Douglas Roberts Texas
21 Bill Benefiel Indiana
27 Donald Jones Missouri
Leading
Cases
Rhines
v. Weber, 2005 WL
711587 (3/30/2005) District court may stay a case to allow
exhaustion of state remedies. If the district does not stay a
petitioner
must
be given the opportunity to drop unexhausted claims.
Floyd
v. State, 2005 WL 673689 (Fl. 3/24/2005) State failed to
disclose evidence including evidence of actual innocence.
Brown
v. Sanders, Questions granted
review:
"Is the California death penalty
statute a 'weighing statute' for
which the state court is required to determine that the presence of an
invalid special circumstance was harmless beyond a reasonable doubt as
to the jury's determination of penalty?"
"If an affirmative answer to the
first question was dictated by
precedent, was it necessary for the state supreme court to specifically
use the phrases 'harmless error' or 'reasonable doubt' in determining
that there was no 'reasonable possibility' that the invalid special
circumstance affected the jury's sentence selection?"
Decisions
Reversing, Remanding or Otherwise Holding Death in Check
Parker
v. State,
2005 WL 673686 (Fl., 3/24/2005) Evidentiary hearing ordered on
counsel's failing to present expert testimony on photography and
tool making as to autopsy photographs and failing to investigate and
present mitigation evidence.
Bates v. Bell, 2005 WL 659069 (6th Cir 3/23/2005) Relief
granted in the penalty phase on a highly inflammatory penalty phase
closing by the state.
The
state
prosecutors engaged in
prejudicial misconduct in violation of the Due Process Clause. In
closing argument at the sentencing phase of the trial, the state
prosecutors repeatedly told the jury that by “permitting” Bates to live
they would “become an accomplice” to the murder and an accomplice to
future crimes, because Bates is a “rabid dog” to whom they will be
issuing a “warrant of execution for someone else.” Suggesting that a
vote for a life sentence for Bates was a vote for a death sentence for
others was a continuing refrain throughout the final argument. The
prosecutors frequently followed these expressions with their negative
personal opinions about Bates’s expert witness and with personal
attacks against Bates’s lawyers. On appeal, the Tennessee Supreme Court
criticized the prosecutors for not following “disciplinary rules.” It
referred to their conduct as “clearly improper,” “inappropriate,” and
“certainly uncalled for.” The misconduct poisoned the atmosphere of the
sentencing hearing and amounted to a denial of Bate’s rights to due
process of law.
Decisions
Favoring Death
Miller
v. Dretke, 2005 WL 675327 (5th Cir. 3/24/2005) COA
denied.
District court granted relief on penalty phase issue based on Brady
which the court states it will address in a subsequent opinion.
COA denied on Brady-claim as applied to guilt/innocence. COA also
denied on IAC
claims "based on trial counsel's failing to object: (1) to introduction
of a non-testifying co-conspirator’s extra-judicial confession admitted
through testimony of another; and (2) to the State’s closing argument.
Howard
v. Dretke,
2005 WL 643253 (5th Cir. 3/21/2005) (unpublished) COA denied on claim
"that his trial attorney provided ineffective assistance of counsel at
the second punishment phase by not objecting when the prosecution
repeatedly informed potential jurors that Howard had been sentenced to
death at the original punishment phase of his trial."
White
v. Dretke,
2005 WL 678209 (5th Cir. 3/24/2005) (unpublished) COA denied on: (1)
whether the evidence admitted at trial and during the punishment phase
was sufficient to support the jury's affirmative answer to the future
dangerousness special issue; and (2) whether he can show cause to
excuse the procedural default of his challenge to the "good-time" jury
instruction given at punishment.
Martinez
v. Dretke, 2005 WL 668802 (5th Cir. 3/23/2005) COA
denied on failure to investigate. COA granted and relief denied
on
failure to present an insanity defense and evidence of neurological
impairment during the guilt/innocence and punishment phases of
Martinez's trial
Staley v. Dretke, 2005 WL 673503 (5th Cir. 5/23/2005)
(unpublished)
Stay vacated on competency to be executed - McFarland stay denied.
Walker
v. True, 2005 WL 678737 (4th Cir. 3/25/2005) Relief denied on
claims "that his Sixth Amendment right to counsel was violated at the
guilt phase of his trial when his counsel failed to challenge
his single trial for two murders, that his due process rights were
violated when the Commonwealth failed to timely disclose Brady
materials, and that his Sixth Amendment rights were violated at the
sentencing phase of his trial when his counsel failed to investigate
and present compelling mitigating evidence. Because reasonable jurists
could debate the district court's assessment of the first two of these
claims (the right to counsel at the guilt phase of trial claim and the
Brady claim) we grant a COA as to these claims; however, upon review of
their merits, we affirm the district court's dismissal. Because
reasonable jurists could not debate the district court's assessment of
the right to counsel at the sentencing phase of his trial claim, we
deny a COA as to this claim and dismiss."
People v. Stitely, 2005 WL 638052 (Cal. 3/21/2005) Even though rape
offense and sodomy-murder offense shared similar traits, and were not
cross-admissible, the rape was not more inflammatory than the murder,
and the circumstantial evidence of the murder was "pretty strong," so
no prejudice shown from joinder. (From the Electric Lawyer Blawg)
Knox
v. State,
2005 WL 674830 (Miss. 3/24/2005) Post-conviction relief denied on
claims relating to: (1) bad instruction on the HAC aggravator;
(2)
ineffective assistance of counsel; (3) failure to included aggravators
in indictment; (4) sufficiency of robbery aggravator; and (5)
trial court's failure to instruct jury during sentencing phase that
jury was required to find a mitigating circumstance if it was proven by
a preponderance of the evidence was not error.
State v. Franklin, 2005 WL 678925 (Ohio App. 2 Dist. 3/25/2005)
Relief
denied. "The Defendant's petition for post-conviction relief challenges
the constitutionality of R.C. 2953.23(A)(2) and argues that he was
suffering from schizophrenia, which prevented him from disclosing facts
to his counsel during his trial and the sentencing phase. The
Petitioner then sets forth sixteen claims for relief, all of which
relate either to claims of ineffective assistance of counsel, or that
the Petitioner was improperly adjudged competent to stand trial. The
Petitioner essentially argues that he was mentally infirm and unable to
disclose information to his counsel and as a result, his counsel
rendered ineffective assistance."
United States v. Williams, 2005 WL 664791 (S.D.N.Y. 3/22/2005) (order)
Application in the trial court for disclosure of home addresses of
jurors and witnesses denied.
Excerpts
from Leading Cases
Rhines
v. Weber, 2005 WL 711587
(3/30/2005) District court may stay a case to allow exhaustion
of state remedy. If the district does not stay a petitioner must
be
given the opportunity to drop unexhausted claims.
*3 [1][2]
Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy,
455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that federal
district courts may not adjudicate mixed petitions for habeas corpus,
that is, petitions containing both exhausted and unexhausted claims. We
reasoned that the interests of comity and federalism dictate that state
courts must have the first opportunity to decide a petitioner's claims.
Id., at 518-519, 102 S.Ct. 1198. We noted that "[b]ecause 'it would be
unseemly in our dual system of government for a federal district court
to upset a state court conviction without an opportunity to the state
courts to correct a constitutional violation,' federal courts apply the
doctrine of comity." Id., at 518, 102 S.Ct. 1198 (quoting Darr v.
Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)). That
doctrine " 'teaches that one court should defer action on causes
properly within its jurisdiction until the courts of another
sovereignty with concurrent powers, and already cognizant of the
litigation, have had an opportunity to pass upon the matter.' " 455
U.S., at 518, 102 S.Ct. 1198.
Accordingly, we imposed a requirement of "total exhaustion" and
directed federal courts to effectuate that requirement by dismissing
mixed petitions without prejudice and allowing petitioners to return to
state court to present the unexhausted claims to that court in the
first instance. Id., at 522, 102 S.Ct. 1198. When we decided Lundy,
there was no statute of limitations on the filing of federal habeas
corpus petitions. As a result, petitioners who returned to state court
to exhaust their previously unexhausted claims could come back to
federal court to present their perfected petitions with relative ease.
See Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d
542 (2000) (dismissal without prejudice under Lundy "contemplated that
the prisoner could return to federal court after the requisite
exhaustion").
[3] The enactment of AEDPA in 1996 dramatically altered the landscape
for federal habeas corpus petitions. AEDPA preserved Lundy's total
exhaustion requirement, see 28 U.S.C. § 2254(b)(1)(A) ("An
application for a writ of habeas corpus ... shall not be granted unless
it appears that ... the applicant has exhausted the remedies available
in the courts of the State"), but it also imposed a 1-year statute of
limitations on the filing of federal petitions, § 2244(d).
Although the limitations period is tolled during the pendency of a
"properly filed application for State post-conviction or other
collateral review," § 2244(d)(2), the filing of a petition for
habeas corpus in federal court does not toll the statute of
limitations, Duncan, supra, at 181-182, 121 S.Ct. 2120.
*4 As a result of the interplay between AEDPA's 1-year statute
of limitations and Lundy's dismissal requirement, petitioners who come
to federal court with "mixed" petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted claims.
If a petitioner files a timely but mixed petition in federal district
court, and the district court dismisses it under Lundy after the
limitations period has expired, this will likely mean the termination
of any federal review. For example, if the District Court in this case
had dismissed the petition because it contained unexhausted claims,
AEDPA's 1-year statute of limitations would have barred Rhines from
returning to federal court after exhausting the previously unexhausted
claims in state court. Similarly, if a district court dismisses a mixed
petition close to the end of the 1-year period, the petitioner's
chances of exhausting his claims in state court and refiling his
petition in federal court before the limitations period runs are slim.
The problem is not limited to petitioners who file close to the AEDPA
deadline. Even a petitioner who files early will have no way of
controlling when the district court will resolve the question of
exhaustion. Thus, whether a petitioner ever receives federal review of
his claims may turn on which district court happens to hear his case.
We recognize the gravity of this problem and the difficulty it has
posed for petitioners and federal district courts alike. In an attempt
to solve the problem, some district courts have adopted a version of
the "stay-and-abeyance" procedure
employed by the District Court below. Under this procedure, rather than
dismiss the mixed petition pursuant to Lundy, a district court might
stay the petition and hold it in abeyance
while the petitioner returns to state court to exhaust his previously
unexhausted claims. Once the petitioner exhausts his state remedies,
the district court will lift the stay
and allow the petitioner to proceed in federal court.
[4][5] District courts do ordinarily have authority to issue stays, see
Landis v. North American Co., 299
U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936), where such a stay
would be a proper exercise of
discretion, see Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636,
137 L.Ed.2d 945 (1997). AEDPA does not deprive district courts of that
authority, cf. 28 U.S.C. § 2254(b)(1)(A) ("An application for a
writ of habeas corpus ... shall not be granted unless it appears that
... the applicant has exhausted the remedies available in the courts of
the State" (emphasis added)), but it does circumscribe their
discretion. Any solution to this problem must therefore be compatible
with AEDPA's purposes.
[6] One of the statute's purposes is to "reduce delays in the execution
of state and federal criminal sentences, particularly in capital
cases." Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155
L.Ed.2d 363 (2003). See also Duncan, 533 U.S., at 179, 121 S.Ct. 2120.
AEDPA's 1-year limitations period "quite plainly serves the
well-recognized interest in the finality of state court judgments."
Ibid. It "reduces the potential for delay on the road to finality by
restricting the time that a prospective federal habeas petitioner has
in which to seek federal habeas review." Ibid.
*5 Moreover, Congress enacted AEDPA against the backdrop of
Lundy's total exhaustion requirement. The tolling provision in §
2244(d)(2) "balances the interests served by the exhaustion requirement
and the limitation period," "by protecting a state prisoner's ability
later to apply for federal habeas relief while state remedies are being
pursued." Duncan, supra, at AEDPA thus encourages petitioners to seek
relief from state courts in the first instance by tolling the 1-year
limitations period while a "properly filed application for State
post-conviction or other collateral review" is pending. 179, 121 S.Ct.
2120.28 U.S.C. § 2244(d)(2). This scheme reinforces the importance
of Lundy's "simple and clear instruction to potential litigants: before
you bring any claims to federal court, be sure that you first have
taken each one to state court." 455 U.S., at 520, 102 S.Ct. 1198.
[7] Stay and abeyance, if employed too
frequently, has the potential to undermine these twin purposes. Staying
a federal habeas petition frustrates AEDPA's objective of encouraging
finality by allowing a petitioner to delay the resolution of the
federal proceedings. It also undermines AEDPA's goal of streamlining
federal habeas proceedings by decreasing a petitioner's incentive to
exhaust all his claims in state court prior to filing his federal
petition. Cf. Duncan, supra, at 180, 121 S.Ct. 2120 ("[D]iminution of
statutory incentives to proceed first in state court would ... increase
the risk of the very piecemeal litigation that the exhaustion
requirement is designed to reduce").
[8] For these reasons, stay and
abeyance should be available only in limited circumstances. Because
granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts,
stay and abeyance is only appropriate when
the district court determines there was good cause for the petitioner's
failure to exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a when his unexhausted
claims are plainly meritless. Cf. stay28 U.S.C.
§ 2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State").
[9][10] Even where stay and abeyance
is appropriate, the district court's discretion in structuring the stay
is limited by the timeliness concerns
reflected in AEDPA. A mixed petition should not be stayed indefinitely.
Though, generally, a prisoner's "principal interest ... is in obtaining
speedy federal relief on his claims," Lundy, supra, at 520, 102 S.Ct.
1198 (plurality opinion), not all petitioners have an incentive to
obtain federal relief as quickly as possible. In particular, capital
petitioners might deliberately engage in dilatory tactics to prolong
their incarceration and avoid execution of the sentence of death.
Without time limits, petitioners could frustrate AEDPA's goal of
finality by dragging out indefinitely their federal habeas review.
Thus, district courts should place reasonable time limits on a
petitioner's trip to state court and back. See, e.g., Zarvela, 254
F.3d, at 381 ("[District courts] should explicitly condition the stay
on the prisoner's pursuing state court
remedies within a brief interval, normally 30 days, after the stay is
entered and returning to federal
court within a similarly brief interval, normally 30 days after state
court exhaustion is completed"). And if a petitioner engages in abusive
litigation tactics or intentional delay, the district court should not
grant him a stay at all. See id., at
380-381.
*6 [11][12] On the other hand, it likely would be an abuse of
discretion for a district court to deny a stay
and to dismiss a mixed petition if the petitioner had good cause for
his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. In such circumstances, the
district court should stay, rather
than dismiss, the mixed petition. See Lundy, 455 U.S., at 522, 102
S.Ct. 1198 (the total exhaustion requirement was not intended to
"unreasonably impair the prisoner's right to relief"). In such a case,
the petitioner's interest in obtaining federal review of his claims
outweighs the competing interests in finality and speedy resolution of
federal petitions. For the same reason, if a petitioner presents a
district court with a mixed petition and the court determines that stay
and abeyance is inappropriate, the
court should allow the petitioner to delete the unexhausted claims and
to proceed with the exhausted claims if dismissal of the entire
petition would unreasonably impair the petitioner's right to obtain
federal relief. See id., at 520, 102 S.Ct. 1198 (plurality opinion)
("[A petitioner] can always amend the petition to delete the
unexhausted claims, rather than returning to state court to exhaust all
of his claims").
The Court of Appeals erred to the extent it concluded that stay and
abeyance is always impermissible.
We therefore vacate the judgment of the Court of Appeals and remand the
case for that court to determine, consistent with this opinion, whether
the District Court's grant of a stay
in this case constituted an abuse of discretion.
Floyd
v. State, 2005 WL 673689 (Fl. 3/24/2005) State failed to
disclose evidence including evidence of actual innocence.
In
the case at bar, Floyd maintained
his innocence of the murder throughout the trial in his defense. There
was no direct evidence of Floyd's guilt, such as eyewitness testimony
or DNA blood evidence or fingerprint evidence at the victim's home.
Rather, this was a circumstantial case in which the most damaging
evidence was arguably Floyd's confession through a jailhouse informant.
It is apparent that the Tina Glenn information would be of great
importance to the defense because it identified other suspects and
would have been consistent with Floyd's innocence defense.
Although we upheld the defendant's conviction on appeal, Floyd v.
State, 497 So.2d 1211, 1212 (Fla.1986), it is clear that the case
against the defendant was not among the strongest we have encountered.
The only physical evidence specifically linking the defendant to the
crime was the victim's checkbook, which the defendant used to forge
checks on the afternoon of the murder and again two days later. The
remainder of the physical evidence only linked the defendant to the
crime at a high level of generality. For example, the sock found in the
defendant's jacket was stained with type O blood, which was the
victim's blood type but is also the blood type of roughly 45 percent of
the American population. [FN7] Similarly, the hair fragments found in
the victim's bedroom were identified only as "Negroid," which applies
to a large percentage of the population. And the tire tracks on the
victim's driveway were identified only as being similar to the treads
of Japanese motorcycles, which were so popular in the mid-1980s that
they became the target of a federal antitrust investigation. [FN8]
The jury may have been justified in finding the defendant guilty of
first-degree murder because all of this circumstantial evidence,
together with the defendant's alleged confession and his false alibi,
pointed uniformly in the direction of guilt, whereas very little (if
any) evidence pointed in the direction of innocence. But that is no
longer the case. The defendant has now identified important information
that was withheld from him by the State and that would have been
favorable to his defense.
The most important evidence that the State withheld from the defendant
is the eyewitness account of Tina Glenn, a neighbor of the victim who
was interviewed twice only days after the murder. According to the
report from the first interview, Glenn told a detective that she last
saw the victim standing outside of her home at 11 a.m. on the day of
the murder. Then, while watching the show "All My Children" between
1:30 and 2 p.m., Glenn heard a car pull up to the victim's house. Two
white males emerged from the car and with a "fast stride" approached
the house. They knocked on the door, and "although [Glenn] did not see
the victim they were led into the house." About thirty to forty-five
minutes later, Glenn heard a door slam at the victim's house. She
watched as the two males returned to their car and, after "looking
around suspiciously," sped off.
*7 The second interview, which was conducted at the police station,
revealed slightly different information. According to the report, Glenn
claimed that she heard a car pull up to the victim's house between 1
and 1:30 p.m. on the day of the murder. Two white males stepped out of
the car, walked "fairly fast" to the front door of the house, and
knocked. They then "walked into the residence," although Glenn "did not
see the victim actually answer the door." Glenn then went outside to
walk her dog, at which time she observed one of the men on the victim's
back porch. She also heard what she called "scrambling noises" inside
the victim's house, which sounded "like people were going through
drawers and other things in the house." About an hour after the two men
arrived, Glenn heard the sound of the front door slamming (which she
distinguished from the sound of the back door) and watched as the men
went back to their car "almost running and looking around very
suspicious." One said to the other, "Come on. Let's go." Glenn recalled
that the vehicle sped off with its tires squealing, possibly running a
nearby stop sign. [FN9]
Glenn's eyewitness account is unsettling, given the circumstantial
nature of this case. She places two white men in a car--as contrasted
with the defendant, a black man who was allegedly driving his
motorcycle--at the victim's house within the estimated time frame of
the murder. She also identifies "very suspicious" behavior that would
be consistent with the crime.
In fact, all of the Brady evidence elicited below, including
impeachment evidence of the jailhouse informant, could have been
persuasive for the defense when weighed against the State's case,
especially when considered in the light of the heavy burden upon the
State to prove guilt in a criminal case beyond any reasonable doubt and
the legal requirement that the jury's verdict be unanimous. In effect,
this means that only one juror finding reasonable doubt would change
the outcome. Glenn's evidence not only identified other suspects, but
it also failed to include the defendant or anyone meeting his
description as being present at the victim's residence at the time of
the crime.
The rest of the suppressed evidence is not as powerful, but does raise
further doubts about the reliability of a crucial piece of evidence:
the defendant's alleged confession. The only witness to that confession
was the defendant's cellmate, Gregory Anderson. As the circuit court
noted in its order denying relief, Anderson's credibility was
undermined by defense counsel at trial:
During a lengthy cross-examination,
[defense counsel] aptly demonstrated to the jury that Anderson had lied
to law enforcement by using different aliases in the past. [Counsel]
also elicited testimony from Anderson indicating he lied about his
origin/whereabouts to law enforcement on a previous occasion.
Additionally, [counsel] brought out on cross-examination that Anderson
harbored a certain animus toward black people. [Counsel] then impeached
Anderson with prior inconsistent statements. Subsequently, [counsel]
proceeded to quite effectively discredit Anderson by questioning him
concerning his letter writing to Judge Walker [which contained
statements that Anderson would "do anything to get out of jail"], his
prior involvement as a "snitch" in other cases, and his apparent
favorable treatment in prior cases.
*8 (Emphasis added.) The evidence suppressed by the State would have
increased Anderson's credibility problem. Undisclosed letters that
Anderson wrote to the prosecutor and to a detective reveal that he
sought a reduction of his robbery charge in exchange for his testimony
against the defendant, and that he claimed he "would rather die [than]
go to prison."
Further, one reason that the defendant's confession carried some weight
at trial, despite Anderson's lack of credibility, was the apparent
discovery of corroborating evidence at the scene of the crime. The
defendant allegedly confessed that he murdered the victim after she
surprised him during the course of a burglary. Witnesses for the State
testified that "what appeared to be fresh pry marks" were found on two
window frames inside the defendant's bedroom, which seemed consistent
with the "surprise" element of the defendant's confession. Witnesses
also testified to the discovery of "Negroid" hair fragments in the
victim's bedroom. These discoveries may have convinced the jurors that
the defendant did, in fact, confess to the crime as Anderson claimed.
However, suppressed police reports cast doubt on both of these
corroborating discoveries. The police reports are entirely inconsistent
as to whether fresh pry marks were found on either of the two window
frames in the victim's bedroom. One report states that "there are fresh
pry marks on the [west] window" but that pry marks on the north window
"did not appear to be as fresh."
Strangely, the exact opposite conclusion appears in a report by the
detective who testified to the fresh pry marks at trial. According to
that report, the north window had fresh pry marks but the west window
did not. This inconsistency has not been explained. The police reports
also leave ambiguity as to whether the hair fragments in the
defendant's bedroom could plausibly have come from the murderer. One
report states that the FDLE lab located "some negro body hair
fragments" on "the sheet and the white bedspread in the victim's
bedroom." But another report states that the victim's bed "was fully
made" when her body was found lying on it. The defendant argues that
the hair fragments on the sheet and bedspread must have come from
someone other than the murderer, because the murder occurred while the
bed was fully made.
Although these suppressed police reports would not have refuted the
evidence corroborating the defendant's confession, they at least would
have given the defendant an avenue through which to challenge that
evidence as being mixed or unreliable. With the corroborating evidence
in question, it would have been even more difficult for the jurors to
rely on the testimony of the jail cellmate, whose suppressed letters
reveal that he may have been even less credible than the jury realized.
After collectively examining the evidence suppressed by the State, it
is apparent that it could have provided a basis for reasonable doubt in
the minds of some jurors. The case against the defendant was, from the
beginning, a circumstantial one. While at the time of trial, those
circumstances may have seemed to point in the direction of guilt, the
circumstances have been changed considerably by the suppressed
evidence, which "put[s] the whole case in ... a different light."
Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435). The
suppressed evidence not only identifies two other men acting "very
suspiciously" at the location of the murder within the time frame of
the murder, but also raises additional concerns about whether the
defendant truly confessed to the crime. It therefore undermines our
confidence in the defendant's conviction. [FN10]
*9 The State claims that this case is similar to Carroll v. State, 815
So.2d 601 (Fla.2002), in which we held that the defendant was not
prejudiced by evidence that another person might have committed the
crime. We disagree. In Carroll, the physical evidence against the
defendant was much stronger than here. "[B]lood was found on [the
defendant's] sweatshirt and genitalia, and semen, saliva, and pubic
hair recovered from the victim were consistent with that of [the
defendant]." Id. at 620. Moreover, hair and blood samples taken from
the other suspect "ruled out his involvement." Id. In this case, the
physical evidence against the defendant is not as strong. Moreover,
there is no evidence that rules out the involvement of the two white
men whom an eyewitness saw at the victim's house around the time of the
murder.
This case is more closely analogous to Rogers v. State, 782 So.2d 373
(Fla.2001), in which we concluded that a defendant was prejudiced by
the suppression of favorable evidence because that "evidence could have
been used to show that another person" committed the crime, and also
"could have been used to directly impeach [the] testimony" of a witness
upon whom "the States case for conviction was substantially
predicated." Id. at 383. The suppressed evidence in this case could
have been used to make essentially the same two points to the jury:
first, that two unidentified men were acting suspiciously at the place
and time of the crime, and second, that the testimony of the defendants
cellmate regarding the defendants alleged confession was unworthy of
reliance. [FN11]
[5] We conclude that our confidence in the defendant's murder
conviction has clearly been shaken by the evidence that the State
suppressed in this case. While there is not a "smoking gun" in the
suppressed evidence that would completely exonerate the defendant,
there was also not a "smoking gun" in the State's case against him.
Just as irrefutable evidence of guilt is not required for a conviction,
irrefutable evidence of innocence is not required for a conviction to
be set aside under Brady. The United States Supreme Court has explained
that suppressed evidence must be examined "collectively, not item by
item," to determine whether it prejudiced the defendant. Kyles v.
Whitley, 514 U.S. at 436.
Based on the above analysis, we conclude that the defendant's trial did
not result in a verdict worthy of confidence.
Focus
Focus
this week looks at the
intersection Ring, Crawford, and admissibility of evidence in the
penalty
phase, "When Trial and Punishment Intersect: New Defects in the Death
Penalty,” 26 W. New Eng.
L. Rev. 233( 2004), Alexander
Bunin. Here is a tease:
A sentencing hearing is fundamentally
different from a trial. It permits evidence that is not admissible to
prove guilt. [FN1] There is no presumption of innocence. [FN2] It may
be decided by a preponderance of the evidence. [FN3] A judge may select
the sentence. [FN4]
A trial is restricted by formal rules of evidence and procedure. [FN5]
*234 A defendant is presumed innocent. [FN6] The prosecution must prove
all elements of the offense beyond a reasonable doubt. [FN7] A jury is
required. [FN8]
Elements of a criminal offense are any facts the prosecution must prove
to make a defendant eligible for the highest punishment set by the
legislature. [FN9] It does not matter how the legislature chooses to
characterize those facts. [FN10] If a fact increases the maximum
punishment for a crime, it is an element of that crime. [FN11] Each
element must then be proven to a jury beyond a reasonable doubt before
a defendant is guilty of the crime. [FN12]
It is only the conviction of a crime, which fixes the sentencing range
required by statute. [FN13] The statutory range is located between the
minimum and maximum sentences for the crime of conviction. [FN14] Once
those parameters are set by the finding of guilt, the selection of
punishment is a choice of sentences within that range. [FN15] The
determination of a sentence within the appropriate range can then be
made, without jury participation, and by a mere preponderance of
evidence. [FN16]
For example, Title 18 of the United States Code contains most of the
criminal offenses enacted by the Congress. Each statute is defined by
certain facts. These facts are elements of a crime that must be proven
to a jury beyond a reasonable doubt before a defendant may be found
guilty. If Congress adds a new fact that increases the maximum
punishment, then Congress has created a new, greater crime. That
additional fact must be proven to a jury beyond a reasonable doubt in
order for a defendant to be guilty of the greater offense.
*235 B. Capital Cases
In a capital case, facts that make a defendant eligible for the death
penalty are elements of the crime. [FN17] These capital elements are
called 'statutory aggravating circumstances.' [FN18] Absent a finding
of at least one statutory aggravating circumstance by a jury, beyond a
reasonable doubt, the crime of capital murder is not proven and the
death penalty may not be considered. [FN19]
In most death penalty cases, the existence of statutory aggravating
circumstances is not decided during the guilt phase of trial, but
rather during the sentencing hearing. [FN20] A capital jury receives
proof of the elements and information for selecting punishment,
together at a unitary proceeding. [FN21] Therefore, in most death
penalty jurisdictions, a capital defendant is prosecuted for some
elements of capital murder without the trial protections available even
to a person charged with a simple misdemeanor.
This manner of bifurcating a capital trial was implemented by
legislatures to answer Eighth Amendment concerns about restricting the
class of persons eligible for the death penalty, and assuring that
those persons could present mitigating evidence. [FN22] These laws *236
were designed before recent Supreme Court cases applying the definition
of offense elements to mandatory sentencing factors. [FN23]
The issue is not whether bifurcation of a capital trial and the
sentencing hearing is proper. It is. The question is at what point must
the trial end and the sentencing hearing begin? The answer is that the
selection of punishment may be decided once the elements of the crime
have been proven. Yet in most capital cases, the sentencing hearing
begins before all the elements of capital murder are decided.
In jurisdictions where statutory aggravating circumstances are not
decided until the sentencing hearing, the following anomaly occurs. At
the guilt phase, a jury may only convict a defendant of a crime that is
less than capital murder. [FN24] After conviction of this lesser crime,
the jury then enters a sentencing phase. [FN25] Only then are the
capital elements decided. [FN26]
The sentencing hearing is not subject to the rules of evidence [FN27]
or the presumption of innocence. [FN28] The jury receives the evidence
of guilt along with other information supporting a death sentence.
[FN29] This other information usually includes the effect on the
victim's family and community, [FN30] predictions of the defendant's
future dangerousness, [FN31] the defendant's prior uncharged conduct,
[FN32] examples of the defendant's bad character, [FN33] and hearsay,
[FN34] none of which is generally admissible at the guilt phase of the
trial. [FN35]
*237 The jury then deliberates upon two very different issues, whether
the defendant is guilty of capital murder and whether a death sentence
is appropriate. [FN36] Although eligibility for the death penalty must
be decided beyond a reasonable doubt, the selection of punishment may
be decided by a preponderance of evidence. [FN37] Selection may be
determined by a judge. [FN38]
By deciding the capital elements at the sentencing hearing, the
defendant does not receive protections provided during the proof of
guilt for any other crime. [FN39] To the extent that capital elements
are proved, it is a sentencing hearing in name only. Calling it a
sentencing hearing does not resolve the discord caused by deciding the
capital elements without traditional trial protections. Three related
areas of law have converged to cause this conflict: the right to a jury
in criminal trials, traditional sentencing law, and modern capital
sentencing law. Although these areas overlap, their development has
generally received separate treatment.
Virginia Study Says Mistaken Eyewitness Indentification Is Major Factor
In Wrongful Convictions
A two-year study of 11 wrongful conviction cases in Virginia found that
mistaken eyewitness identification is the major reason innocent people
have been convicted in the state. The report's recommendations note
that Virginia could dramatically reduce the number of wrongful
convictions through a series of reforms, such as changing a variety of
police procedures, relaxing the state's 21-day rule to allow evidence
of innocence to be considered beyond this time restriction, ensuring
that prosecutors provide defense attorneys with evidence favorable to
defendants, and improving the quality of legal help given to poor
people in Virginia. The state currently pays court-appointed lawyers
the lowest fees in the nation. Researchers conducting the study closely
examined the cases of 11 wrongly convicted persons in Virginia who had
spent a total of 118 years in prison for crimes they did not commit.
Nine of the 11 cases involved mistaken identity by victims or other
eyewitnesses, especially when the eyewitness was of one race and the
alleged perpetrator or another. The review was spearheaded by the
Innocence Commission for Virginia, a collaborative effort of The
Mid-Atlantic Innocence Project, the Administration of Justice Program
at George Mason University, and The Constitution Project. (Richmond
Times-Dispatch, March 30, 2005) See Innocence. Read the study: A Vision
for Justice.
NEW RESOURCE: Book Details Pelke's Journey To Death Penalty Opponent
Bill Pelke tells of the life-altering transformation that occurred
after his 78-year-old grandmother was murdered by four teen-aged girls
in his book, Journey of Hope...From Violence to Healing. Though at
first he supported the death penalty for 15-year-old Paula Cooper, one
of the young girls who had murdered his grandmother in her home for $10
and an old car, he later opposed her execution and successfully fought
to have Cooper's death sentence overturned. The book follows his
personal journey over many years and features a forward by Sister Helen
Prejean. (Xlibris Corporation, September 2003). See Victims, Juvenile
Death Penalty, and Books.
POSSIBLE INNOCENCE: Florida Supreme Court Vacates 1985 Capital
Conviction
The Florida Supreme Court has vacated James Floyd's 1985 conviction and
death sentence, ruling that critical evidence was withheld by the
prosecution and that the evidence might have been enough to change the
verdict at trial. In its 4-2 decision, the Court ruled that the
prosecutor's failure to inform Floyd's defense counsel that an
eyewitness had seen two white men entering the victim's home on the day
of the murder and saw them leave in a suspicious manner approximately
one hour later "severely compromised Floyds' constitutional right to a
fair trial." The ruling noted that the state's case against Floyd, who
is black, was based mainly on circumstantial evidence, and included no
eyewitness, fingerprint or DNA evidence linking him to the murder. "We
conclude that our confidence in the defendant's murder conviction has
clearly been shaken by the evidence that the State suppressed in this
case. While there is not a 'smoking gun' in the suppressed evidence
that would completely exonerate the defendant, there was also not a
'smoking gun' in the State's case against him," the court wrote. Bernie
McCabe, the state attorney in Pinellas County, said he didn't know if
the state would attempt to bring Floyd to trial again. (Associated
Press, March 24, 2005). See Innocence.
Upcoming Supreme Court Arguments and Recent Decisions in Capital Cases
The Death Penalty Information Center Web site contains summaries of the
issues in upcoming Supreme Court arguments related to the death
penalty, as well as summaries of recent Supreme Court decisions.
Upcoming Arguments
* March 28, 2005: Medellin v. Dretke - See DPIC's
Summary
* April 19, 2005: Bradshaw v. Stumpf - See DPIC's
Summary
* April 26, 2005: Bell v. Thompson - See DPIC's
Summary
Recent Decisions
* Brown v. Payton - See DPIC's Summary
* Roper v. Simmons - See DPIC's Summary
See also, Supreme Court.
NEW RESOURCE: The Lack of Constitutional Protections in Capital
Sentencing Proceedings
A recent article in the Western New England Law Review examines ways in
which the rules of evidence and procedures at capital sentencing trials
are less rigorous than those applied at the guilt-phase of the trial.
In capital sentencing hearings, evidence is permitted that would not be
admissible to prove guilt. The defendant does not receive traditional
trial protections at the sentencing trial. For example, hearsay may be
received by the jury during sentencing, but is generally inadmissible
at the guilt phase of the trial because it is considered unreliable. In
his article, “When Trial and Punishment Intersect: New Defects in the
Death Penalty,” Alexander Bunin, the Federal Public Defender of the
Districts of Northern New York & Vermont and Adjunct Professor at
Albany Law School, concludes that recent Supreme Court decisions, such
as Ring v. Arizona, which identifies part of the capital sentencing
process as properly belonging to the guilt-or-innocence process, cast
doubt upon the reliability and constitutionality of current capital
sentencing procedures. (26 Western New England Law Review 2 (2004)).
See Supreme Court and Resources.
Oklahoma Judge Finds Foreign National Was Denied Right to Contact
Consulate
An Oklahoma County District Judge has determined that Osbaldo Torres, a
Mexican foreign national who was once on Oklahoma's death row, should
have been told before his trial that he had a right to contact his home
country's consulate. Judge Twyla Mason Gray also found that Torres had
ineffective counsel at his trial. Her findings stem from a December
hearing held at the request of the State Court of Criminal Appeals. The
appeals court wanted Judge Gray to hear evidence about Torres'
representation and to determine if American officials had violated
protections guaranteed by the Vienna Convention on Consular Relations.
The findings have been sent to a higher appeals court for review.
Though it is uncertain when they will rule in the case, those judges
could decide to order a new trial for Torres or affirm his conviction.
After Torres had spent more than a decade on death row, Oklahoma
Governor Brad Henry commuted Torres' death sentence to life in prison
without parole in May 2004. (The Oklahoman, March 22, 2005). See
Foreign Nationals. See also, DPIC's Web page on Medellin v. Dretke.
In the case involving Jose Medellin and other Mexican nationals on
death row in the U.S., the Supreme Court will consider the implications
of a recent World Court ruling that ordered a U.S. review of the
Mexicans' convictions and death sentences because the defendants had
not been given their rights under the Vienna Convention on Consular
Relations to seek help from their consulate.
Medellin case: the Court hesitates
Posted by Lyle Denniston at 12:55 PM
The Supreme Court spent a fascinating hour Monday canvassing a whole
host of difficult constitutional and international law questions in a
Texas death penalty case, but also spent a good deal of that time
talking about ways to avoid answering those questions. Among the ways
they discussed: simply dismissing the case without a ruling.
Meanwhile, the procedural status of the case grew newly complicated
over the weekend, as attorneys for the death row inmate in the case --
a Mexican national named Jose Ernesto Medellin -- filed a new habeas
challenge in the Texas Court of Criminal Appeals, then asked it to hold
off while the Supreme Court ponders what to do. (UPDATE: In a letter to
the Court, Medellin's counsel, Donald F. Donovan, said that the new
state petition had been filed on March 24 to avoid any argument that it
was filed too late after the World Court ruling that is a key to the
petition.)
Medellin's attorneys already had asked the Supreme Court to put the
case pending there on hold, until after they could pursue a possible
remedy in state court. That idea, to which the Court had not previously
reacted, got a chilly reception from the Justices this morning -- with
the exception of Justice Stephen G. Breyer, who speculated that it
might be the best tack to take.
Justice Sandra Day O'Connor called the idea of delaying Supreme
Court action "very unusual; usually, a state court holds off until this
Court acts...Why not go ahead and decide this case?"
But, as the Court moved on to explore how to decide Medellin v. Dretke
(04-5928),
a number of the Justices grew openly hesitant about doing so. Deciding
the case, several of them suggested, could require the Court to address
a whole host of fundamental questions. Among such questions the Court
explored this morning were these:
Is the Supreme Court the sole organ to decide what a treaty means as
it applies to a case in American courts? Must the Court accept an
interpretation of a treaty that the President has spelled out? Can an
international court (here, the World Court at The Hague) confer on
individuals private rights that are enforceable in U.S. courts? Must
the Supreme Court act to carry out a decision of the World Court? What
constitutional principle would support the President's view that an
international treaty imposes binding obligations on the Supreme Court?
Can the President dictate to state courts that they must follow a
decision of the World Court in their own state criminal proceedings?
proceeding were allowed to go forward. The outcome, Stevens said, might
make moot the pending case before the Justices. Texas' solicitor
general, R. Ted Cruz agreed.Justice John Paul Stevens suggested that
the Court might not have to decide any of those issues, if the new
Texas habeas
But Cruz and Deputy U.S. Solicitor General Michael R. Dreeben urged
the Court to go ahead and decide the Medellin case,
but on very narrow grounds: that is, that Medellin had no right to try
to take advantage of the World Court ruling in his favor by filing a
federalhabeas case, because there were jurisdictional obstacles under
U.S. law to that proceeding, as the Fifth Circuit had decided.
Dreeben said the federal government did not believe the Court should
now stay the pending case. The new Texas case, he said, can explore
whether Medellin and other Mexican nationals can use the World Court
ruling to their advantage. After that is decided, Drreben said, "this
Court will have the option of granting cert to review whatever the
Texas courts decide." If the Justices were to proceed to decide
anything other than the jurisdictional question in the pending case,
"that would be close to issuing an advisory opinion."
Justice Antonin Scalia commented that state courts in Texas, or in
other states with Mexican nationals on death row who were involved in
the World Court case, might decide that President Bush lacked the
constitutional authority to require state courts to reopen closed
criminal cases. (Bush has directed states holding the 51 Mexican
nationals to "give effect" to the World Court's decision in their
favor.)
Texas' attorney general's office has already advised the Court that it
doubts that the President had that authority.
Medellin's lawyer, Donald Donovan, told the Court that his client was
prepared to go forward with the new habeas case
in Texas. That petition, he says, seeks to rely, first, upon the World
Court ruling, and, second, on the President's order that state courts
should "give effect" to the World Court decision.
That new proceeding, Donovan argued, "should not be compromised by
any decision of this Court" in the meantime. "The best thing to do is
to issue a stay, and not deal with any of the questions raised." But,
he added, if the Court does not stay the case, then it should issue a
ruling that "will give effect to the United States' promises" (through
the President) to carry out the World Court order for the 51 Mexican
nationals' benefit.
The Court is expected to decide the case later this spring.
A bill that would have replaced Connecticut's death penalty with
life imprisonment was defeated
in the state's House of Representatives yesterday by a vote of 89-60.
The bill would have spared serial killer Michael Ross (TalkLeft
background here, here,
and here)
from execution. One of the persons speaking in favor of the bill was a
woman Ross raped in 1983.
"I'm not a killer. I couldn't do it," Vivian Dobson said
through tears. "I'm so sorry to the parents [of the murder victims]
because I lived and their babies died. And I can't change that. But I
don't want to be a part of killing somebody else."
"For 18 years, I've been hiding my feelings and holding
in my feelings to help those poor girls that he took away from
everybody. And I can't. I can't. I can't do it," said Dobson, who
escaped after pulling a knife on him. "I've been carrying guilt because
now his blood's going to be on my hands, too. And I can't do it. That's
not me."
Ruling that juries cannot turn to the Bible for advice during
deliberations, the Colorado Supreme Court on Monday refused to
reinstate the death penalty in a brutal rape and murder because jurors
had studied such verses as "eye for eye, tooth for tooth."
On a 3-2 vote, justices ordered Robert Harlan to serve life in
prison without parole for kidnapping 25-year-old cocktail waitress
Rhonda Maloney in 1994 and raping her at gunpoint for two hours.
Colorado Death Penalty Decisions
The Colorado Supreme Court vacated two death sentences this week.
In one case, deliberating jurors consulted
the Bible, reading the passage prescribing an eye for an eye as
punishment. (Opinion here).
In the other case, a jury was mis-instructed on a capital sentence
based on felony
murder.
The defendant was arrested and in handcuffs when a confereate killed a
police officer; the jury was not correctly instructed on the underlying
crime of burglary, so that the defenant could have been convicted of
felony murder without being guilty of burglary. (Opinion here)
[Jack Chin]
Texas Court of Criminal Appeals Blocks an Execution on Grounds of
Unclear Jury Instructions
The Texas Court of Criminal Appeals stopped the execution of Steven
K. Staley, 42, which was scheduled for March 23. He was granted
reprieve five hours before he would have been executed, on the grounds
that the jurors in his 1991 trial were given unclear instructions
regarding whether they had to recommend Staley for the death
penalty.
Staley was convicted for the 1989 killing of a restaurant manager in
Forth Worth, TX; the killing was part of a robbery gone wrong.
Staley
committed the crimes while on the lam from a Denver halfway
house. In
other attempts to stop the execution, Staley's defense team argued to
the 5th Circuit Court of Appeals in New Orleans that Staley shouldn't
be executed until his mental competency was fully reviewed in
court.
According to the defense's expert, even Staley may have met the Supreme
Court's standards that 1) he was aware that he was going to be put to
death and 2) why he was going to be put to death, he is still
psychotic--Staley claims that he invented the 1969 Chevrolet Impala and
that he works part-time as a secret agent. The TX Court of Criminal
Appeals sent Staley's case back to the trial court. More...
[Mark Godsey]
Capital Cases Pending in the Supreme Court
The DPIC has summaries of the 3 capital cases currently awaiting oral
argument or decision in the Supreme Court here.
[Mark Godsey]
Supreme Court Hears Capital Case Today
The Supreme Court will hear oral arguments today in Medellin v.
Dretke,
No. 04-5928, on appeal from the 5th Circuit. Questions
presented: (1)
In a case brought by a Mexican national whose rights were
adjudicated in the Avena Judgment, must a court in the United States
apply as the rule of decision, notwithstanding any inconsistent United
States precedent, the Avena holding that the United States courts must
review and reconsider the national's conviction and sentence, without
resort to procedural default doctrines? (2) In a case brought by a
foreign national of a state party to the Vienna Convention, should a
court in the United States give effect to the LaGrand and Avena
Judgments as a matter of international judicial comity and in the
interest of uniform treaty interpretation? Details
. . . [Mark Godsey]
Chinas' Death Vans
This article describes the death
vans
used to carry out capital sentences in China, one execution is
described as taking place 14 minutes after sentencing. The article also
reports that for the first time since 1949, there is discussion about
the appropriateness of the death penalty. [Jack Chin]
Vernon Evans is
scheduled to be executed by the state of Maryland the week of April 18,
although a stay is considered possible if not probable.
A
woman named Ginny Simmons has launched what could be a first: A blog
uniquely dedicated to the thoughts of one person facing execution
(there are a lot of web sites out there dedicated to people on death
row, but they are not blogs).
Anyone can send in questions and Ginny will get them to Vernon and
report back with the answers.
Today we have a truly amazing story out of
Connecticut -- thanks to Peter for bringing this to our attention.
A
woman named Vivian Dobson is the only known survivor of Michael Ross,
who killed a number of women and was sentenced to death in Connecticut.
Ross attacked Dobson but somehow she escaped and survived. Today Dobson
is sharing her story with Connecticut legislators.
And she is speaking out against the death penalty.
She
makes the point that the death penalty hurts victims' family members
more than it helps them. Hurts them because of the endless round of
appeals. Hurts them because at the end it is the murderer is shown in
the stagelight of publicity while the victims are forgotten. This is
true even in states like Texas, where executions are routine. It is
especially true in states like Connecticut, where they are not.
In her own words:
"This
really has nothing to do with death," she says. "It has to do with
control, with holding people's lives in his hands. And as long as he
stays on death row, he holds our lives in his hands.
"And this
is the part that they can't see. I see it because I've been living it
for 22 years. I'm at the point now where I'm ready to take control of
my own life."
That is why she has emerged from hiding, why today
she plans to do something she thought she'd never do: leave the
protective bubble she has created out of necessity and stand before a
room full of people to tell her story.
She is afraid people will be angry, that they will think she has
betrayed them.
But she is more afraid of continuing to let others speak for her, of
the state choosing death in her name.
To read the whole column about Dobson's experience, go here.
Breaking the hold of Michael Ross
Today we have a truly amazing story out of
Connecticut -- thanks to Peter for bringing this to our attention.
A
woman named Vivian Dobson is the only known survivor of Michael Ross,
who killed a number of women and was sentenced to death in Connecticut.
Ross attacked Dobson but somehow she escaped and survived. Today Dobson
is sharing her story with Connecticut legislators.
And she is speaking out against the death penalty.
She
makes the point that the death penalty hurts victims' family members
more than it helps them. Hurts them because of the endless round of
appeals. Hurts them because at the end it is the murderer is shown in
the stagelight of publicity while the victims are forgotten. This is
true even in states like Texas, where executions are routine. It is
especially true in states like Connecticut, where they are not.
In her own words:
"This
really has nothing to do with death," she says. "It has to do with
control, with holding people's lives in his hands. And as long as he
stays on death row, he holds our lives in his hands.
"And this
is the part that they can't see. I see it because I've been living it
for 22 years. I'm at the point now where I'm ready to take control of
my own life."
That is why she has emerged from hiding, why today
she plans to do something she thought she'd never do: leave the
protective bubble she has created out of necessity and stand before a
room full of people to tell her story.
She is afraid people will be angry, that they will think she has
betrayed them.
But she is more afraid of continuing to let others speak for her, of
the state choosing death in her name.
To read the whole column about Dobson's experience, go here.
We hear from the Catholics
One of the most important developments in the
campaign to end
executions recently has been a press conference held at the National
Press Club here in Washington, D.C., where it was announced that the
U.S. Conference of Catholic Bishops is launching a new campaign to
effectively end the use of the death penalty in the U.S.
The
Bishops released a poll showing 48 percent of U.S. Catholics in favor
of the death penalty -- down sharply from several years ago. In
addition, the majority of Catholics who "strongly favor" the death
penalty is at 20 percent -- down a whopping 20 points from 2001. And
the poll found that younger Catholics are sharply opposed to the death
penalty and 30 percent of Catholics who once favored capital punishment
now oppose it.
To check out the Bishops' spiffy new web site, go here.
And to look at their new brochure (it's in PDF format) go here.
The price of freedom?
We've blogged in the past about Ray Krone, an
all-around nice guy who
was released from death row in Arizona after DNA proved that another
guy actually did the crime. Now comes welcome news that Ray has settled
with the county that prosecuted him and will be receiving $1.4 million
for his wrongful conviction and incarceration.
Does
that sound like a lot of money? At first glance it does. But then
consider this editorial, which was published by the Daily Record:
The Price of Freedom
Whats
your freedom worth - literally, in dollars and cents? Unless you've
been, say, sentenced to a lifetime behind bars for a murder you didn't
commit, you probably havent given it much thought. But Ray Krone had 10
years with nothing but time on his hands to ponder the question.
Last
week he got an answer: $1.4 million. Thats the settlement amount in a
wrongful murder conviction suit he filed against Maricopa County, Ariz.
As Krones mom, Carolyn Lemming of Dover Township, says: It sounds like
a lot, until you consider:
His lost wages and benefits for a decade.
His legal bills - about $800,000 total.
The misery of 10 years in jail.
Do
the math, and the settlement adds up to about $380 a day rotting in
prison. Subtract his legal fees from that total and he got about $164 a
day - or about $6.80 an hour.
Thats just $1.65 more than minimum wage. Sounds like Maricopa County
got off easy.
An Easter message
Those of us who oppose the death penalty address
the issue from a most
diverse -- and sometimes intense -- variety of perspectives.
For
instance, I don't like the death penalty because the government makes
mistakes. You know, at least once every two weeks, I come home and find
someone else's mail in my mail box. If government cannot even deliver
the mail accurately, how can we possibly expect it to be 100 percent
accurate, 100 percent of the time, when it comes to sentencing people
to death?
Others come at this issue from a religious
perspective. For example, an op-ed just surfaced from conservative East
Texas. It was written by the editor of the Lufkin Daily News and it is
most powerful in its simplicity. Although I do not agree with every
word in the op-ed, I nonetheless find it moving. It concludes:
The
frequency of executions, especially here in Texas, may not indicate it,
but the death penalty in America is endangered, because of advances in
science and legal reasoning. If our moral thought can similarly
advance, perhaps one day soon we will see the death of capital
punishment and a deeper commitment to all life.
Lots of sentencing news from
Connecticut
Aided by the terrific coverage from Kirby's Reports and a
Public Defender,
I see there are interesting sentencing developments coming from
Connecticut. With the execution of serial killer Michael Ross
slated
for May, the state legislature has been considering a bill to abolish
the death penalty. But today the Connecticut House today
considered
and rejected the bill on a vote of 89-60 (details here
and here).
Meanwhile, still under consideration is a bill to equalize the minimum
penalties for crack and powder cocaine offenses under state law
(details here
and here).
Colorado Supreme Court troubled by mixing sentencing and the Bible
As detailed in this
AP article,
the Colorado Supreme Court on Monday, in a divided 3-2 ruling, affirmed
a lower appellate court's determination that a death sentence should be
overturned because jurors consulted the Bible during deliberations in
the penalty phase. The lengthy decision in People v. Harlan,
No. 03SA173 (Colo. Mar 28, 2005), is available
here. The New York Times has this
thoughtful article about the decision, and TalkLeft has a post and
interesting comments on the case here.
This ruling in Harlan stands in interesting contrast to a
decision a few months ago from the Sixth Circuit in Arnett v. Jackson,
No. 03-4375 (6th Cir. Jan. 6, 2005). In Arnett, which I first
discussed in this
post,
a divided panel reversed a grant of habeas corpus for a state prisoner
in a child rape case, concluding that the district court should not
have granted habeas due to the state trial judge's references to the
Bible during petitioner's sentencing hearing.
Below I provide a few links to some other coverage of the
intersection of sentencing issues and religion (which is, in my view, a
fascinating and under-examined topic):
Reports on the Medellin argument
The Medellin case in the Supreme Court is turning out to be
less about the death penalty and more about separation of powers,
federalism and what might be called super-federalism (i.e., US
obligations with respect to international law). Nevertheless, it
still
is making for great drama and theater, as documented by this
post about today’s oral argument from SCOTUSblog and this
AP report. In addition, Emily Bazelon has this discussion of the
case at Slate and Tony Mauro provides this
report at law.com.
SCOTUS grants cert. in a capital case and has still more GVRs
As detailed in this
post
from SCOTUSblog, the Supreme Court this morning granted cert. in a
capital case from California which concerns, inter alia, consideration
of harmless error review, and the Court also issued another two dozen Booker-inspired
GVRs. All the details on today's SCOTUS work can be found at the
order list at
this link, and details about the 500+ prior SCOTUS GVRs can be
found at
this post.
Concerns about (and blogsphere buzz on) DP paper
The Sunstein and Vermeule article that I posted
here last night,
which contends that capital punishment may be morally obligatory if it
saves lives through its deterrent effect, is already generating
blogsphere buzz. In addition to Eugene Volokh's initial post here,
there are now thoughtful discussions of the paper at Crooked Timber here
(with lots of comments) and at Crescat Senentia here
and at Mirror of Justice here
and here.
Because, as I noted before, this topic intrigues me greatly, I wish to
weigh in by highlighting two concerns I have about the paper, one
empirical and one normative:
1. An empirical concern: are the data sound? As
Karl Keyes notes in this
comment
and as others in the blogsphere spotlight, Sunstein and Vermeule rely
heavily on data which are shaky at best. The authors concede that
their arguments depend entirely on evidence that capital punishment
deters, and that evidence is hardly conclusive. (Next month at
Ohio
State, as
detailed here,
Columbia Prof Jeff Fagan is scheduled to give the annual Reckless
Lecture on this topic, and his telling title is "Science and the
Illusion of Deterrence in the Death Penalty: Cold Fusion All Over
Again.")
2. A normative concern: doesn't the argument prove too
much? Sunstein
and Vermeule are focused on murders in their discussion of "a life-life
tradeoff," but their claims would seem readily extended to other kinds
of killings. In my class discussions and in my own thinking, I
find
the deterrence arguments especially challenging when we consider drunk
driving fatalities. Statistics show over 17,000 alcohol-related
driving fatalities each year (data
here),
and I have to think we could significantly reduce that number by
executing just a few drunk drivers. (Drunk driving seems like a
much
more deterrable crime than some other killings, and recent
history suggests
laws and public awareness can have a significant impact on
alcohol-related driving fatalities.) Are Sunstein and Vermeule
prepared to argue that execution of drunk drivers is morally obligatory
(at least in states like California, Florida, and Texas that have a
high number of alcohol-related driving fatalities)?
In short, I ultimately found the Sunstein and Vermeule paper
unsatisfying because they duck what I consider to be the really hard
questions.
The Colorado Supreme Court has vacated the death sentence of
Robert
Harlan and commuted his sentence to life without parole. The Court held
that it was improper for several of Harlan's jurors to look up Bible
passages regarding an "eye for an eye" and copying them for discussion
in deliberations. Colorado law prevents jurors from bringing in any
outside material for deliberation.
This
ruling has put many "people of faith" up in arms. They claim that
jurors should not be required to leave their faith at the door of the
jury room, that they should be allowed to consider their moral stand on
these questions and should not have to erase from their memory moral
teachings. I'm not sure I agree with the principal of that statement.
However, regardless of the main concept expressed by challengers to
this ruling, the situation here is different. In this case, the jurors
did not simply rely on teachings and moral concepts they had developed
throughout life. Rather, they copied down Biblical passages and brought
them in to share with other jurors. It is possible that some juror who
did not share the same moral convictions was influenced by these
materials. It is a wholly different situation than a juror who simply
quotes the Bible from memory. It has a different strength when its seen
in writing...whether the reader would be inclined to believe it as
"God's word" or not.
The funny thing about "eye for an eye" is
that there are plenty of other passages regarding punishment in the Old
Testament portion of the Christian Bible that no one bothers to bring
up in today's society. For example, Biblical society stoned adulterers.
I wonder how many of the jurors (or lawyers involved) would vote for
that punishment. Be consistent; if you are going to advocate death for
murderers based on Biblical principals that are seriously outdated
(certainly for Christians since Jesus reportedly created a "new
covenant" and a "new law"), then you should advocate the other
punishments "required" by God in the Old Testament. Of course, as I
recall, Jesus also advised a group of angry citizens to think carefully
before throwing the first stone on a woman accused of adultery. He
advised "let he who is without sin cast the first stone." Perhaps
consistency is appropriate here as well. I wonder how many of the
jurors would have felt comfortable pulling the switch or pushing the
buttons. I wonder how many could cast that stone.
I also wonder
what the outcry would have been if it had not been the Christian Bible
used in deliberations, but instead had been the Koran or perhaps even
Buddhist teachings on peace and nonviolence. Would religious and moral
teaching have had a place in the jury room then? Or is such teaching
only valuable when it comes from the Christian perspective? Of course,
portions of the Koran advocate removal of the hands for the crime of
theft. Why is that different than "eye for an eye"?
DISCLAIMER: Note that on a semi-regular basis cases in which I
have participated in one manner or another may be covered here. Note
that most opinions noted above are "slip opinions" that may be modified
or withdrawn by the issuing court without notice.
ISSN: 1523-6684
* Execution date information per Rick Halperin and other sources.
