Leading of this week is People v. Harlan.   The trial court found that jurors had used "the Bible during deliberations."  Finding that the resulting death sentence was inappropriate the Court holds "that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions." All jurors bring their own "backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed."

In Johnson v. United States the Supreme Court addressed what happens when a federal sentence has been enhanced with state court convictions that were vacated after the imposition of sentence.  Specifically, the Court holds that if the petitioner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence they would have one year from the vacateur.  Here, however, the Court finds that Johnson did not act with due diligence.

Two Louisiana Supreme Court opinions of note are also had.  In State v. Higgins the Louisiana Supreme Court vacates a capital murder conviction and imposes a second degree murder conviction in light of a questionable state's witness (please note that case is being tracked as a possible innocence case).  In State v. Citizen the same court has held that  "the trial judge may halt the prosecution of these [murder] cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel."    In slower weeks both cases would have been the lead case of the week.

Elsewhere, Georgia state prosecutors once again have again tried to remove counsel that have a reputation for excellence (here Matthew Rubenstein) and in Williams v. State are again shut down.  The Northern District of Iowa has held in United States v. Johnson that "in this case, 'case specific' questions are appropriate--indeed, necessary--during voir dire of prospective jurors to allow the parties to determine the ability of jurors to be fair and impartial in the case actually before them, not merely in some 'abstract' death penalty case." The Fifth Circuit in  Brooks v. Dretke grants a COA on jury misconduct claims relating to a juror being arrested during the course of the trial for trying to smuggle a gun into the courthouse.

Since the last edition Glen Ocha was executed in  Florida; Ocha was a volunteer.  Vernon Evans in Maryland received an unopposed stay.  The following cases are pending:

Com. v. Reyes, 2005 WL 737526 (Pa.  3/30/2005)  Vacateur of death sentence on post-conviction not appealed.  Relief otherwised ednied on (1) alleged violation of corpus delicti rule;  (2)  Miranda; (3) IAC of trial counsel and appellate counsel as to Miranda related issues; and (4) so-called  "layered" claims of ineffective assistance of appellate counsel.

Com. v. Fisher,  2005 WL 723933 (Pa. 3/30/2005) "Appellant's PCRA petition was untimely and did not meet any of the exceptions to the PCRA timeliness requirements. We therefore affirm the order of the PCRA court dismissing the instant petition."

Com. v. Long,  2005 WL 729656 (Pa.Super. 3/31/2005) No right of media to access to names and addresses of jurors in capital murder proceeding.

1. Trial Court's Findings of Fact--Extraneous Information Before the Jury
Evidence that jurors introduced and used Bibles, a Bible index, and hand-written notes on biblical passages in the jury room first surfaced during discussions with investigator Knapp in 1995. She spoke with five jurors who confirmed the consideration of such material before the jury reached its death verdict.

All twelve jurors testified at the Bible Motion hearing in 2003. As required by CRE 606(b), we limit ourselves to evidence and trial court findings that concern only whether extraneous prejudicial information was improperly brought to a juror's attention by another juror before the jury reached a verdict. See Wadle, 97 P.3d at 935-36. In addition, we may consider the nature of the extraneous information. See id.
The court found that several of the jurors researched the Bible for passages pertaining to the penalty for murder and shared them with other jurors:

[s]everal jurors researched and reviewed [B]ibles on Friday evening, June 30, 1995, to locate biblical passages pertaining to the penalty for murder. Some of the jurors wrote down the biblical passages they located so that they could take them to the jury deliberation room to share with other jurors on Saturday morning, July 1, 1995, when the jury reconvened to continue their deliberations.

*11 This finding considers facts that are permissible for inquiry under CRE 606(b), Wadle, and Wiser to show: (1) the source of the extraneous information; (2) that jurors initiated the search for the information; and (3) the content of the extraneous material.
The following testimony from juror Eaton-Ochoa at the Bible Motion hearing clearly shows that she studied from her Bible Friday night and wrote down information about the Leviticus and Romans passages:
Q. I'm going to read to you from 13:1 Romans, this Bible [belonging to Yantis-Cummings], all right?
....
"Let every soul be subject to the governing authorities for there is no authority except from God and the authorities that exist are appointed by God." Does that sound more familiar to you?
A. Yes.
Q. Would that be one of the scriptures that you researched?
A. Yes.
....
Q. Now, when you were researching in your Bible index, were you taking notes?
A. Yes.
....
Q. Now, when you were researching, do you also specifically remember looking up a passage, "Eye for an eye, life for a life"?
A. Yes.
Q. And, "If you take a life, you shall be killed"?
A. Yes.
....
Q. Now, I'm going to read to you from [Yantis-Cummings's] Bible....
Your honor, Leviticus, Chapter 24:20.
"Fracture for fracture, eye for eye, tooth for tooth, as he has caused disfigurement of a man, so shall it be done to him." Does that sound familiar as one of the passages that you looked up?
A. There were several scriptures in the Bible that were similar and that's similar to what I was referring to, yes.
Q. All right.
And then it goes on 24:21: "And whoever kills an animal shall restore it, but whoever kills a man shall be put to death." Does that also sound familiar as one of the passages you looked up[?]
A. That's close to it, yes.
Q. And again, you researched and took notes of the passages you looked up?
A. I didn't take notes, I wrote addresses, which would be scripture reference.

Jurors Nowakowski, Yantis-Cummings, and Trujillo also testified at the hearing that they read from Bibles Friday night. Jurors Yantis-Cummings and Trujillo testified that they took notes from their Bibles.

Thus, the court's finding that "jurors researched and reviewed [B]ibles on Friday evening" and "wrote down biblical passages" is supported by competent evidence in the record.

The trial court also found that Bibles and notes concerning biblical passages were taken into the jury room on Saturday morning during the death penalty deliberations and were discussed prior to the death penalty verdict:

[j]urors took [B]ibles and notes with biblical passages concerning the penalty for murder into the jury deliberation room on Saturday morning, July 1, 1995. These materials were read and discussed among and between jurors prior to a verdict being reached.

The evidence supporting these findings is admissible under CRE 606(b) and the Wiser and Wadle standards to establish: (1) the presence of improperly introduced extraneous materials; (2) the content of the extraneous information; (3) whether the materials were used by jurors; and (4) whether they were used before the jury reached its verdict.

*12 In making these findings, the trial court had to engage in difficult credibility determinations. The jurors' testimony was confused and contradictory. Jurors testifying in 2003 at the Bible Motion hearing had difficulty remembering events of 1995. Several who gave statements to investigator Knapp in 1995 contradicted those statements in 2003. Of course, we cannot second-guess determinations of the trial court regarding witness credibility. See People v. Pitts, 13 P.3d 1218, 1221 (Colo.2000)("It is the function of the trial court, and not the reviewing court, to weigh evidence and determine the credibility of the witnesses."); Wilson v. Bd. of County Comm'rs, 703 P.2d 1257, 1259 (Colo.1985)("[I]t is not the province of this court to judge the weight of the evidence or the credibility of the witnesses.").

In the 1995 interviews, conducted three months after the trial, jurors Eaton-Ochoa, Nowakowski, Wright, Trujillo, and Salter mentioned that they saw, brought, or might have seen Bibles, a Bible index, or notes on biblical passages in the jury room during deliberations Saturday morning before the jury reached the death verdict. At the 2003 hearing, Wright and Salter denied or expressed doubt about these prior statements.

But juror Eaton-Ochoa stated in both 1995 and 2003 that she brought a Bible and notes of Bible passages into the jury room. Juror Nowakowski told investigator Knapp that she saw a Bible containing a study index in the room and did not contradict that statement at the hearing. Juror Eaton-Ochoa stated that she used a Bible to show the Leviticus and Romans passages to juror Cordova on Saturday morning in the jury room:

Q. When you resumed your deliberations the following morning, did you bring a Bible into the deliberation room with you?
A. Yes, I did.
....
Q. Was Jesus [Cordova]--did you show [those scriptures] to Jesus [Cordova] before a decision was made?
A. Yes.

In addition to this evidence, juror Cordova stated there was no Bible present during deliberations and no discussion of biblical passages. However, he also stated, erroneously, that the trial court had told the jurors not to bring in Bibles or discuss verses. In addition, he testified that the jurors considered no evidentiary exhibits during their deliberations and that he did not have a roommate during sequestration at the hotel, all of which is contradicted by the record. The testimony of three witnesses impeached all or portions of juror Cordova's 2003 testimony.

Two other jurors, Smith and Taylor, denied the presence of Bibles or discussion of verses. Both stated that someone mentioned biblical information in the jury room Saturday morning, but Smith cut the person off because the discussion was inappropriate. No other juror corroborated this statement.

The trial court noted that some jurors "appeared defensive and at times resentful" about testifying at the hearing, that "the significant lapse of time since the trial had taken a toll on their abilities to recall," and that some jurors granted interviews in 1995 and "[o]thers refused." The court found "[a]ll of these circumstances ... of considerable importance and significantly weighty in assessing the credibility of the witnesses." The court properly made its determinations on credibility, see Pitts, 13 P.3d at 1221, and its finding is supported by competent evidence. Accordingly, we will not second-guess the court's credibility determinations.

*13 Finally, the trial court found that the jurors were exposed in the jury room to passages relating a biblical command for imposition of the death penalty before the verdict was reached.

[j]urors were exposed to [B]ibles and [B]ible passages concerning God's view on punishment for murder while they were sequestered during their deliberations on the penalty phase of the Defendant's trial. This occurred when they took the evening recess on Friday, June 30, 1995 and when they resumed their deliberation on Saturday, July 1, 1995. The biblical passages were read and discussed in the jury room. This occurred prior to the jury reaching a unanimous verdict. The credible evidence does not indicate that jurors were at a particular step in the four step process. What is certain is that a verdict imposing the death sentence had not been reached at the time the extraneous materials were considered.

(emphasis added).

This finding is also supported by evidence that is permissible under CRE 606(b), Wiser, and Wadle to show: (1) the nature of the extraneous information considered; and (2) during which phase of deliberations it was presented.

Perhaps the most telling evidence of extraneous materials again came from juror Eaton-Ochoa. Her testimony was clear that she showed the Leviticus and Romans passages to juror Cordova Saturday morning before the jury reached its death penalty verdict.

Because they are supported by evidence in the record admissible under CRE 606(b), we defer to the trial court's findings of fact that jurors, without authorization from the trial court: (1) researched Bible verses and took notes on them on Friday night; (2) brought one or more Bibles, a Bible index, and notes on certain biblical passages into the jury room during sentence phase deliberations on Saturday morning; and (3) shared in the jury room an authoritative passage commanding the imposition of the death penalty for murder before they reached their verdict imposing the death penalty on Harlan.

We now turn to our legal conclusions based on this evidence and these findings.

2. Conclusions of Law
Our inquiry involves the same two-step process guiding the trial court: whether extraneous information was improperly before the jury and whether use of that information could have influenced the verdict to Harlan's detriment.

a. The Extraneous Information was Improperly Introduced into Consideration
[11] The trial court properly found that one or more jurors introduced one or more Bibles, a Bible index, and notes of Bible passages into the jury room for consideration by other jurors. The trial court had not admitted these materials into evidence, nor did the court's instructions allow their use. Accordingly, these materials were extraneous and their introduction was improper and constituted misconduct.

CRE 606(b) and the standards of Wiser and Wadle do not require a trial court order prohibiting use of particular material before that material may be found to be extraneous and improperly before the jury. The information is improper and its introduction by one juror for consideration by another prior to the verdict constitutes juror misconduct as long as the trial court has delivered standard instructions limiting the jury's consideration to admitted evidence and the court's legal instructions. See Wiser, 732 P.2d at 1141. The court's instructions in this case were sufficient to admonish the jury that they could only consider the evidence and law presented during the trial.

*14 Exposure of a jury to information or influences outside of the trial process itself may require reversal of a criminal conviction "whether or not that exposure occurred as the result of deliberate juror misconduct." Wadle, 97 P.3d at 935. Because the trial court's admonitions were thorough and sufficient to instruct a capital sentencing jury, and because the written biblical materials used in the jury room were neither admitted into evidence nor permitted by court instruction, their use in this case was improper.

b. Prejudice Inquiry
[12] Turning now to the prejudice examination required by Wiser and Wadle, we conclude that there is a reasonable possibility that the Bible material introduced into the jury room could have influenced a typical juror to vote for the death penalty instead of a life sentence, to Harlan's obvious detriment.

Under the state's two-phase jury process in cases where the prosecution seeks the death penalty, the jury may be called upon to reach two verdicts. First, the jury determines whether the defendant is guilty beyond a reasonable doubt of first degree murder. This verdict must be unanimous. Second, employing the four-step process as instructed by the trial court, the jury determines whether to impose life imprisonment or death. See People v. Dunlap, 975 P.2d 723, 736 (Colo.1999). Colorado has tailored its four-step death penalty process to center on the proposition that any individual juror may ultimately trigger life imprisonment by not agreeing to a death penalty verdict.

The first three steps are: (1) the prosecution must prove beyond a reasonable doubt that at least one aggravating factor exists; (2) each juror must consider whether any mitigating factors exist; and (3) the jury must unanimously decide whether any mitigating evidence outweighs the aggravating factors. See Woldt v. People, 64 P.3d 256, 264 (Colo.2003); Dunlap, 975 P.2d at 736. Only if the jury finds that the mitigating evidence is outweighed by aggravating factors does it proceed to the fourth step. Dunlap, 975 P.2d at 736.

In order to impose the death penalty, during the fourth step the jury must find that it is convinced beyond a reasonable doubt that death is the appropriate sentence, its verdict must be unanimous, and its imposition of the death penalty must not be influenced by passion, prejudice, or any other arbitrary factor. See Harlan, 8 P.3d at 499; Dunlap, 975 P.2d at 736; see also Woldt, 64 P.3d at 264 ("Colorado's fourth step requires the trier of fact to consider all relevant evidence.")(emphasis added). In reaching its ultimate verdict, the jury may consider all the evidence introduced at trial, as well as the defendant's statement in allocution. Any one juror, by holding out against a unanimous verdict of death, can require imposition of life imprisonment without parole. See Woldt, 64 P.3d at 264.

Both Wiser and Wadle address jury verdicts in the guilt phase of criminal trials. Of course, it is only the unusual criminal case in which the jury is called upon to reach a second verdict, such as in the unique circumstances in which a jury might impose the death penalty. The Wiser and Wadle precedent is especially appropriate in a capital case, where the extraneous information improperly introduced into consideration may influence a typical juror to vote for a death sentence instead of voting for life imprisonment without parole.

*15 We now consider the same prejudice factors we considered in the Wiser and Wadle analyses.

First, we consider how the extraneous information related to critical issues in the case. Here, the written biblical material was directly related to the ultimate issue for jury determination, a sentence of life or death.

Second, we consider the degree of authority represented by the extraneous information. In Wadle we found that scientific information from the internet would be considered authoritative by typical lay jurors. 97 P.3d at 937-38.

The Bible and other religious documents are considered codes of law by many in the contemporary communities from which Colorado jurors are drawn. The book of Leviticus is one of the first five books of the Old Testament, which are considered the books of law, and it contains "ritual laws prescribed for the priests" and is "almost entirely legislative in character." Holy Bible (Papal Edition), "Introduction to the Books of the Old Testament" at xiii. Romans is contained in the New Testament and may be characterized as "a powerful exposition of the doctrine of the supremacy of Christ and of faith in him as the source of salvation." Id., "Introduction to the Books of the New Testament" at xxxix. There can be little doubt that the Bible, including these two texts, is more authoritative to many typical citizens than the internet. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989)(considering jurors' consultation of a Bible and holding that "[e]specially when, as here, such arguments come from a source which 'would likely carry weight with laymen and influence their decision,' the effect may be highly prejudicial to the defendant")(internal citations omitted).

Third, we consider how the information was acquired. Without authorization from the trial court, one or more jurors independently researched the extraneous written biblical material for presentation to other jurors.

Fourth, we consider whether the information was shared with other jurors in the jury room. It was. Juror Eaton-Ochoa showed the passages to juror Cordova, and the discussion of the texts possibly included other jurors.

Fifth, we consider whether the information was considered before the jury reached its verdict. After hearing admissible testimony and making its credibility determinations, the trial court found that jurors considered the Leviticus and Romans passages before they reached their death penalty verdict. Reviewing the evidence, the court found that it could not determine at what step in the four-step deliberation process jurors considered the Bible texts. In any event, Wiser and Wadle require only that the improper, extraneous information is considered before the jury reaches its verdict and could influence the verdict to the detriment of the defendant.

Finally, we consider whether a typical juror could have been influenced by the Leviticus and Romans passages and whether such influence would or would not be detrimental to Harlan. The question here is not whether the jury's verdict actually turned upon consideration of the Bible texts, but whether a typical Colorado juror could be influenced to vote for the death penalty by biblical text introduced into the jury room without authorization.

*16 The Leviticus text is written in the first person voice of God and commands death as the punishment for murder. The Romans text instructs human beings to obey the civil government. Here, the State of Colorado was seeking the death penalty. If the jury was unable to reach a unanimous verdict of death, the trial court would have been required to impose a life sentence without the possibility of parole. Drawn from an array of typical jurors in Colorado, at least one juror in this case could have been influenced by these authoritative passages to vote for the death penalty when he or she may otherwise have voted for a life sentence. All the indicia of prejudice considered by Wiser and Wadle for reversal of jury verdicts are more than met here.

In Dunlap, we cited with approval the United States Supreme Court's admonition that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Dunlap, 975 P.2d at 763 (quoting Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). The Caldwell Court was referring to a prosecutor's argument that the jury need not be concerned about imposing the death sentence because it would be automatically appealed to the state supreme court.

How much more persuasive to a typical juror, then, is a biblical text relieving the juror from his or her individual responsibility to determine whether to commit a person to death because God commands that result? A religious text mandating the death penalty meets the Wiser and Wadle standard of extraneous information creating a reasonable possibility that a typical juror could be influenced in voting on the verdict.

In so holding, we do not suggest that the jurors who served in this case were unable to distinguish between religious and state law. Neither do we hold that consideration of the text actually produced the death penalty verdict. To the contrary, CRE 606(b) prevents us from considering any juror testimony that addresses the jury's deliberations or a juror's thought process. Our legal analysis here is far from an inquiry that emphasizes the form of the religious texts considered here over their substance. Rather, our jurisprudence has developed the Wiser and Wadle objective typical juror test for ascertaining prejudice as a means to prevent invasion of the jury's deliberative process while protecting the defendant's right to a verdict untainted by extraneous prejudicial texts. We conclude that introduction of the Bible by a juror to demonstrate to another juror a command of death for murder created a reasonable possibility that a typical juror could have been influenced to vote for a death sentence instead of life; consequently, we must uphold the trial court's judgment vacating the death sentence and sentencing Harlan to life imprisonment without parole. [FN5]

*17 We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs in making the extremely difficult "reasoned judgment" and "moral decision" he or she is called upon to make in the fourth step of the penalty phase under Colorado law. We hold only that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions.

We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed. The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations; jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts that could prejudicially influence the verdict.

The written word persuasively conveys the authentic ring of reliable authority in a way the recollected spoken word does not. Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a "fact" is not one presented in evidence in this case and such a "legal instruction" is not the law of the state or part of the court's instructions.

From 1861 until 1901, the law of Colorado did impose a mandatory death sentence for those who committed first degree murder. See, e .g., Act of Nov. 5, 1861, div. IV, § 20, 1861 Colo. Terr. Sess. Laws 290, 292-93 ("The punishment of any person or persons of the crime of murder shall be death."). In 1901, reinstating capital punishment after a four-year period during which it was abolished, the General Assembly introduced jury discretion in choosing a life sentence or the death sentence when a defendant was convicted of first degree murder. Act of May 2, 1901, ch. 64, Sec. 2, § 1176, 1901 Colo. Sess. Laws 153, 154 ("if murder of the first degree, the jury shall in its verdict fix the penalty to be suffered by the person so convicted, either at imprisonment for life at hard labor in the penitentiary, or at death").

In 1994, when Harlan killed Rhonda Maloney and shot Jaquie Creazzo, the law of Colorado provided that a jury must determine whether a defendant convicted of first degree murder must be sentenced to life or death according to a very specific and discrete decision-making process, which was the process the jury was charged to use in this case. See § 16-11-103(2)(a),(b) 8A C.R.S. (Cum.Supp.1994)(providing for the four-step jury deliberation process outlined above); Woldt, 64 P.3d at 264. Not only does the law provide for jury discretion on this matter, but it allows for a single juror to cause the imposition of a life sentence if he or she does not agree that the death sentence is required. See Dunlap, 975 P.2d at 736.

*18 In a community where "Holy Scripture" has factual and legal import for many citizens and the actual text introduced into the deliberations without authorization by the trial court plainly instructs mandatory imposition of the death penalty, contrary to state law, its use in the jury room prior to the penalty phase verdict was prejudicial to Harlan.

Throughout history, members of society have committed acts that violate a social code, and society's dilemma has been the question of how to deal with these crimes. Punishment issues are of such import to humans that world religions and mythology often include tales of punishments for transgressions. For example, *632 the gods punished Prometheus for stealing fire, [FN2] and Sisyphus' punishment was to eternally roll the stone up the hill. [FN3] God punished Adam and Eve for eating from the Tree of Knowledge. [FN4] Cain later slew Abel, so God banished Cain, [FN5] who responded, "My punishment is greater than I can bear." [FN6] Similarly, the Qur'an, the Hindu Bhagavad Gita, and Buddhist Dhammapada address retribution for the wicked. [FN7]

Today, the struggle continues as American society debates the benefits of tough prison sentences, the death penalty, and "three strikes" laws. The theories used to justify the use of punishment usually center on two main justifications: (1) utilitarian justifications such as deterrence, incapacitation, and rehabilitation; and (2) retributive justifications. Under utilitarian theory, punishment is used to prevent offenders from hurting other people and to serve as a warning to others. [FN8] Under retributive theory, some people just "deserve" punishment on moral grounds. [FN9] The utilitarian and retributive justifications appear throughout the history of our criminal justice system in both case decisions [FN10] and in scholarship. [FN11] And while the former justification embraces the theory that criminal behavior may be controlled by the threat of *633 punishment, the latter embraces the theory that some people simply are unquestionably evil. [FN12]

There is, however, another view about the relationship between crime and punishment that has been around for centuries. Some philosophers, writers, lawyers, and judges have argued that criminals have no choice in how they act not because they are inherently "evil" but because they are a product of their genes and their environment. Plato wrote, "For no man is voluntarily bad; but the bad becomes bad by reason of an ill disposition of the body and bad education, things which are hateful to every man and happen to him against his will." [FN13] Victor Hugo predicted that society eventually would come to see crime as a "disease" because crime is caused by factors beyond the actor's control. [FN14] In 1884, John Peter Altgeld wrote the book Our Penal Machinery and Its Victims, which argued that society should focus its resources on addressing the causes of crime instead of punishing wrongdoers. [FN15] The book would influence Clarence *634 Darrow, [FN16] who would later argue that the criminal justice system should be abolished. [FN17] In the 1970s, Judge David Bazelon of the U.S. Court of Appeals for the D.C. Circuit raised the argument that when assigning criminal culpability, courts should consider the "rotten social background" of defendants. [FN18]

Other commentators have made similar arguments, though such arguments have never been popular. Today, the public is often unsympathetic toward possible explanations of crime that might lessen a criminal's punishment. [FN19] Recently, the famous defense attorney Professor Alan Dershowitz wrote that the growing use of "the legal tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation . . . is a dangerous trend, with serious and widespread implications for the safety and liberty of every American." [FN20]

Yet, in narrow areas, the law implicitly accepts the view of crime as a disease to be cured rather than punished. For example, insanity is a defense to crimes in most states. [FN21] Many courts now allow evidence of battered spouse syndrome to help jurors understand the state of mind of some defendants. [FN22] On a more experimental level, new problem-solving courts are experimenting with different approaches to crime. [FN23]

The most subversive acceptance of the "crime as disease" theory *635 in recent years has been in the area of capital punishment. Since 1976, the Supreme Court has required courts and jurors to give consideration to the causes of capital murder in the form of mitigating factors. [FN24] As a result, in the following years, attorneys have created court records about the causes of violent crime and the moral justifications for punishing certain individuals. [FN25]

For example, consider the mitigating evidence in a recent Supreme Court decision, Williams v. Taylor. [FN26] The Supreme Court found Terry Williams's attorneys constitutionally ineffective for failure to investigate and discover:

Juvenile records described the home where Williams grew up as "a complete wreck . . . . There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms." [FN28] Additionally, the parents were too intoxicated to find clothes for the dirty children, several of whom were also "under the influence of whiskey." [FN29]

In addition to noting the importance of Mr. Williams's childhood conditions in mitigating his sentence, the Court also noted the relevance of the following evidence: "Williams was 'borderline mentally retarded' and did not advance beyond sixth grade in school"; prison records "recording Williams'[s] commendations for helping to crack a prison drug ring and for returning a guard's missing wallet"; "the testimony of prison officials who described Williams as among the inmates 'least likely to act in a violent, dangerous or provocative way"'; "a certified public accountant *636 who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams 'seemed to thrive in a more regimented and structured environment"'; and that "Williams was proud of the carpentry degree he earned while in prison." [FN30]

The Court stated that this information was relevant to the capital sentencing of Mr. Williams without any explanation for why the childhood abuse or other evidence related to his sentencing for the murder. [FN31] Mr. Williams had killed an intoxicated man with a mattock because the man refused to loan him a couple of dollars, and after Mr. Williams's initial trial he was sentenced to death. [FN32] Mr. Williams had confessed to the crime, yet the Court found that his sentencing hearing was unfair and his death sentence was reversed because his attorney did not discover the above evidence. [FN33] It is important to understand the reasons why any mitigating evidence should be considered for such a horrible crime. This Article addresses the question of why mitigation is legally and morally relevant to the use of the death penalty in the United States.

This Article examines how mitigating circumstances reveal moral problems in the foundation of the capital punishment and criminal justice systems. Part I begins by discussing the main punishment theories that justify consideration of mitigating factors: utilitarian, retributive, and disease theories. Part II discusses Judge Bazelon's writings on disease theory and the "rotten social background" defense. Part III discusses the Supreme Court's jurisprudence on the use of mitigating factors in capital cases, and Part IV lists a broad range of mitigating factors that have been used in capital cases, placing them into four categories and addressing the criminal justice justifications for each category. [FN34]

*637 Part V examines one of the categories of mitigation and the empirical, philosophical, and practical issues raised by the use of mitigating factors in that category. The Article explains how the use of that type of mitigating factor indicates that the criminal justice system is following science toward embracing disease theory. Part VI then examines how a legal, philosophical, and scientific understanding of this category of mitigating factors can have a broad impact on the law. Thus, the Article concludes, the development of the law of mitigating factors is taking the criminal justice system to new understandings of human responsibility.

Georgia Death Penalty Conviction Overturned Because of Prosecutorial Misconduct
 A Georgia Superior Court overturned the murder conviction of death row inmate Willie Palmer after finding that prosecutors hid a $500 payoff to the state's key trial witness, an act the judge said was "in defiance of (the state's) legal and ethical duties." The judge also threw out Palmer's death sentence on the grounds that his trial lawyer failed to investigate and present evidence of Palmer's mental retardation.

In his opinion, the judge noted that prosecutors "intentionally hid" a deal made with the a state witness, and that prosecutors "aggressively resisted" the deal's disclosure until a hearing that took place 6 years after Palmer's 1997 trial. "It appears logically inescapable that the state knew, only too well, how extremely material this evidence was in this case. It is difficult, if not impossible, to conceive of how this suppression could have been done in good faith.... Without the jury being informed that the state has provided an important witness a pecuniary motivation to testify, the trial transforms into a basically corrupt process in which the jury is deprived of a major key to seeking and deciding the truth - and determining a man's fate," the judge wrote in ordering a new trial for Palmer. The State Attorney General's Office is appealing the ruling.

(Atlanta Journal-Constitution, April 4, 2005).  See Representation and Mental Retardation.


Amnesty International Releases Annual International Death Penalty Report
According to a new report issued by Amnesty International, the United States is among four countries that carried out the vast majority of the 3,797 executions around the world in 2004. Amnesty's report states that the nations carrying out the most executioners last year were China (3,400), Iran (159), Vietnam (64), United States (59), Saudi Arabia (33), Pakistan (15), Kuwait (9), Bangladesh (7), Egypt (6), Singapore (6), and Yemen (6). The report notes that the increase in executions in China is partly due to a new way of estimating such executions since the government does not publicly release this data.  The use of the death penalty declined in the U.S. in 2004 compared to 2003.

Five nations abandoned the death penalty in 2004 (Bhutan, Greece, Samoa, Senegal, and Turkey), bringing the total number of countries that have abolished the death penalty in law or practice to 120. A third of those countries have abandoned the death penalty in the past 15 years, a trend that Amnesty International says shows a "continued move closer to the universal abolition of capital punishment." Only 76 countries retain and use the death penalty, but few of those nations carry out executions each year. "The death penalty is cruel and unnecessary, does not deter crime, and runs the risk of killing the wrongly convicted, " the report concludes.

(The (London) Independent, April 4, 2005, and "Facts and Figures on the Death Penalty," Amnesty International, April 2005). See Amnesty's Report and DPIC's International Death Penalty.


New York State Legislature Issues Comprehensive Death Penalty Report
 In the most comprehensive examination of a statute in the history of the New York State Legislature, state lawmakers released a report highlighting the testimony of 170 witnesses at five statewide hearings on the state's death penalty law. The report, issued by Assembly Speaker Sheldon Silver along with the Chairs of  the Committees on Codes, the Judiciary and Correction, is a thorough examination of the statute and its troubled history.

"We have spent more than $170 million administering the death penalty since 1995, but not a single person has been executed during that time," said Joseph Lentol, Chair of the Committee on Codes, who also noted that only seven persons had been sentenced to death and that the first four of these sentences to reach the Court of Appeals had been struck down on various grounds. He continued, "These facts obviously cried out for a thorough examination of whether the death penalty should be re-enacted in New
York."

"When the Court of Appeals in essence struck down New York's death penalty law in LaValle, we in the Legislature faced an important choice: act quickly or act deliberately. We chose the latter option and conducted a series of extraordinary public hearings to solicit the widest possible range of views on the death penalty in New York before deciding what action, if any, to take with respect to the statute," said Silver. The report presents a detailed discussion of racial problems, religious views, mental illness, costs, innocence, and deterrence, among other subjects.

Helene Weinstein, Chair of the Judiciary Committee, noted that testimony heard during the hearings revealed that much of the legal landscape surrounding the death penalty had changed in the years since New York re-enacted its statute, including a series of overturned wrongful convictions and the development of investigation technologies such as DNA. "During our hearings, we heard testimony from a number of persons who had been wrongfully convicted of murder and, in some cases, placed on death row before being exonerated. The criminal justice system makes mistakes, but when the death penalty is applied, those mistakes can never be corrected," she said.

Jeffrion Aubry, Chair of the Committee on Correction, said that the most compelling testimony came from victims' family members. He stated, "Persons who had suffered inconceivable loss opened their hearts and told us what they thought was the most appropriate way to bring the killers of their loved ones to justice. These courageous individuals presented varied views on capital punishment. We heard their stories and have presented their views in this landmark report."

(Press Release, New York  State Assembly, "Assembly Releases Death Penalty Report," April 4, 2005).  Read the Press Release. Read the Complete Report. See also DPIC's Web Page on People v. LaValle.


RELIGIOUS VIEWS: Pope John Paul II's Statements on the Death Penalty
 During his 26 years as leader of the Roman Catholic Church, the late Pope John Paul II frequently called for an end to the death penalty. Among his statements on this issue were the following:



Opposition to the Death Penalty Mounts in Puerto Rico
 As two men convicted of capital murder under the federal death penalty statute await their sentencing on April 11, Puerto Rican Governor Anibal Acevedo and the Association of American Jurists, a non-governmental organization acting as a consultant at the United Nations, protested the use of the death penalty in Puerto Rico. Though Puerto Rico's Constitution prohibits the death penalty and its residents have consistently voiced strong opposition to it, residents who commit a federal capital crime can be sentenced to die.  Opposition to this practice is pervasive, crossing political and religious lines.  (El Diario, March 31, 2005).  See Federal Death Penalty.


NEW VOICES: Victims Testify About the Death Penalty
Recently, various victims and relatives of victims have testified before state legislatures concerning the death penalty.  In Connecticut, a woman who had been attacked by convicted murderer Michael Ross, testified that she nevertheless opposes his execution.  And in North Carolina, the sister of a man who was murdered in 2003 urged state legislators to reconsider the death penalty.

Vivian Dobson, who was attacked by Ross in 1983, said that the death penalty re-traumatizes victims' family members and wrongly focuses public attention on the guilty offender instead of the innocent victims.  Dobson recently told members of the Connecticut House of Representatives that she does not want Ross executed, noting, "I don't want to be a part of killing somebody else. . . . I can't do it. That's not me." The Connecticut House, however, voted 89-60 against a bill to replace the state's death penalty with life without parole.  (Hartford Courant and Associated Press, March 30, 2005).

In North Carolina, Patricia Parker, whose brother was murdered by an unknown assailant, joined five other victims' family members to urge lawmakers to pass a bill that would impose a two-year moratorium on executions while legislators review the current system. Parker noted that her brother's death forced her to re-examine the judicial system and the death penalty, which she now believes is applied unfairly and risks innocent lives. Parker stated, "I do not want anything done that makes another mistake. I don't want to ever have to think that the wrong person was punished for my brother's death. It will only bring more heartache in the world." (Associated Press, March 30, 2005).


Virginia Study Says Mistaken Eyewitness Identification 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.

For the second time in two weeks, the Supreme Court yesterday resolved a circuit split regarding an important but obscure issue arising under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). The two decisions appear to be at once a blessing and a curse for habeas petitioners; both adopt petitioner-friendly constructions of AEDPA but impose additional, judge-made barriers whose reach is unclear.

The 5-4 decision in Johnson v. United States (No. 03-9685) addressed the latest in a series of questions relating to AEDPA’s strict one-year statute of limitations. When federal prisoners petition for a writ of habeas corpus challenging their sentence, the one-year limitations period begins to run on the latest of four dates, one of which is “the date on which the facts supporting the [prisoner’s] claim or claims could have been discovered through the exercise of due diligence.” 28 U.S.C. §2255, 6(4). The Supreme Court granted cert to decide whether, when the prisoner is challenging an increased (or “enhanced”) sentence that was based on prior state convictions, a state court order vacating those convictions is a “fact” that supports the prisoner’s claim and thus postpones the start date of the statute of limitations.

Justice Souter’s majority opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Thomas, and Breyer. Justice Kennedy dissented, in an opinion signed by Justices Stevens, Scalia, and Ginsburg. This decision marks the first time the Justices have aligned in this manner and the second case this term in which a group has formed a five-Justice majority for the first time. The other case was Smith v. Massachusetts (03-8661), discussed in Chris Houpt’s earlier post here: http://www.scotusblog.com/movabletype/archives/2005/02/20-week/index.html. (Thanks to Anton Metlitsky of Harvard Law School for confirming my hunch as to the novelty of the vote.)

The serpentine procedural history of the case requires some explanation. In 1994, Johnson pled guilty to a federal charge of distributing cocaine. Based on Johnson’s two 1989 convictions in Georgia state court, the district court found him to be a “career offender” and enhanced his sentence. By the time Johnson’s first set of appeals ended in 1996, AEDPA had taken effect. Johnson then sought and was denied habeas relief in federal court. He returned to the Georgia courts, eventually securing an order “vacating”—or nullifying—his 1989 convictions on the ground that he had not properly waived his right to counsel. With the “vacatur” order in hand, Johnson returned to federal court in an effort to invalidate the “career offender” sentence enhancement. He asserted that the state court decision constituted a new “fact” that supported his claim and that the limitations period should have run from the date of the state court order—the date as of which he could have “discovered” that “fact.” The federal district court and a divided panel of the Eleventh Circuit rejected Johnson’s argument, ruling that the AEDPA’s statute of limitations barred reconsideration of the enhanced sentence.

By a 5-4 vote, the Supreme Court rejected the Eleventh Circuit’s reasoning but affirmed its judgment. The Court unanimously answered the question presented in the affirmative, holding that “an order vacating a predicate conviction” is a fact “subject to proof or disproof like any other factual issue.”

The majority, however, proceeded to reject Johnson’s argument that his habeas corpus petition was “timely” because he had filed it within one year of the state court’s vacatur order. Writing for five Justices, Justice Souter worried that Johnson’s proposal would undermine AEDPA’s overriding purpose of finality. Prisoners, he wrote, “might wait a long time” before challenging their past convictions, since they would have a year to file in federal court “no matter how long [they] may have slumbered before starting the successful [state] proceeding.” Souter thus found that the statute’s “due diligence” language required prisoners to act “diligently” not by filing their habeas petition immediately after the state court ruling, but by taking “prompt action” as soon as they realize that their prior convictions might affect a future sentence. Prisoners should recognize their interest in overturning prior convictions when they are convicted in federal court, and because Johnson sought state court relief three years after his federal conviction, he did not act diligently. His federal habeas petition was therefore untimely.

Writing for the four dissenters, Justice Kennedy agreed with the majority that the state court vacatur order is a “fact” that activates AEDPA’s limitations period. He dissented, however, from the Court’s holding that the habeas petitioners must show that they used due diligence in seeking the state court order that gave rise to the federal claim. The majority’s due diligence rule, Kennedy wrote, was inconsistent with the statute and “unnecessary,” since most states have their own time limits on vacating prior convictions. The rule might also “allow for the same delay it seeks to avoid” and might force already-strapped defense attorneys to “divert scarce resources” from trial and appellate duties in order to challenge prior convictions.

Talk Left writes:

Lonely Abolitionist notes:



THE SMALL PRINT
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.