The Supreme Court on Monday agreed to hear five cases, including Oregon v. Guzek (docket 04-928). Guzek examines whether a Defendant can bring into the penalty phaseevidence that would cast doubt on the conviction. The case seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh.  The Court below noted “the Supreme Court’s Eighth Amendment jurisprudence suggests that defendant’s alibi evidence is the type of evidence that a defendant is constitutionally entitled to introduce during the penalty phase for the jury’s consideration.”  More in the Focus section.

The Supreme Court has handed down three opinions impacting on criminal law, Pace v. DiGuglielmo, Small v. United States, and Pasquantino v. United States.  Pace holds a state post-conviction petitions filed out of time will not normally toll the one-year statute of limitations requirements of the AEDPA, however the Court appears to hold open the possibility that some out of time petitions will, in fact, toll the AEDPA's draconian one-year rule.  In Small (felon in possession law doesn't apply to those who get their felony overseas) and Pasquantino (plot to defraud a foreign government of tax revenue violates the U.S. federal wire fraud law) the Court examines obscure areas of federal criminal law against the backdrop of the Court's ongoing discussion (as noted in Atkins) of how US law fits in to the global legal landscape, including deference to foreign courts and how much leeway US courts have to interpret foreign law.

Two other cases are worthy of brief note.   In Boyde v. Brown the Ninth Circuit has granted relief, in an opinion by Judge Kozinski, holding trial counsel erred in not presenting  Boyde's history of being abused and by comparing Boyde to an infamous mass murderer. In State v. Brown the North Carolina Court of Appeals, in this former capital case, denies relief on a fairly unusual claim that the proceedings below were impermissible as the matter was tried  before a popularly elected local judge (brief here).

The NAACP Legal Defense Fund has released a new report that indicates that the number of people sentenced to death last year fell to the lowest level since the Supreme Court reinstated the penalty in 1976, this is the second year in the row these post-Gregg lows have been hit.  Additionally, there were 125 people sent to death row in 2004, down from 144 the previous year and the sixth consecutive annual decline, in 1998, the first full year of the Weekly,  300 people received death sentences. Recently published is: Executed on a Technicality: Lethal Injustice on America's Death Row, by Professor David Dow (University of Houston Law Center and founder of the Texas Innocence Network), provides case histories illustrating serious flaws in the death penalty system.   In New Jersey a poll released this week indicates by nearly a 2-1 margin for that state's version of LWOP. 

Boyde v. Brown, 2005 WL 913434 (9th Cir. 4/21/2005) Judge Kozinski writing for the panel holds that  trial counsel's failure to present a history of abuse, as well as comparing Boyde to a notorious mass murderer in an attempt to engender sympathy for the defendant, was reversible error.

Simpson v. Polk,  2005 WL 928554 (4th Cir. 4/21/2005) Relief denied on claims that: "(1) his death sentence violated the Confrontation Clause of the Sixth Amendment because the state trial court allowed the prosecution to cross-examine Dr. Coleman concerning the diagnoses and opinions of other providers; (2) his Eighth Amendment right to introduce evidence in mitigation was violated by the trial court's exclusion of certain testimony by Ms. Landreth; and (3) that his guilty plea was not knowing and voluntary. "

Muhammad v. Com, 2005 WL 925711 (Va., 4/22/2005)  (dissent)  Relief denied on 102 claims, most notable is whether Muhammad was a first (capital) or second (noncapital) degree principal.

Stopher v. Conliffe, 2005 WL 924261 (Ky 4/21/2005) Indigents in post-conviction proceedings, including those under death sentence, are not entitled to funds under state public defender funding statute to retain an expert.

In re Bowling,  2005 WL 924323 (Ky 4/21/2005) (unpublished) Request to interview jurors in post-conviction denied.

State v. Brown, 2005 WL 892708 (N.C.App. 4/19/2005) (unpublished) Defendant fails to show evidence to support his claim that his due process rights were violated when he was tried before a popularly elected local judget. (Brief here)

State v. Rollins, 2005 WL 924292 (Tenn.Crim.App. 4/21/2005) Relief denied on claims "that the trial court erred in failing to suppress his statements to investigating officers, in refusing to permit his co-defendant to invoke his privilege against self-incrimination in the jury's presence, and in denying his motion to dismiss the state's notice of intent to seek the death penalty."

Nealy  v. Dretke,  2005 WL 887795 (N.D.Tex. 4/13/2005) Report and recommendation suggesting denial of relief on claims including:
"(1) that there is insufficient evidence to support Petitioner's conviction for capital murder, (2) that the trial court failed to inform the jury of parole eligibility, and (3) that there is insufficient evidence to support the special issue verdict on future dangerousness. Petitioner also contends that he is entitled to an evidentiary hearing."

Humphrey v. Com., 2005 WL 924188  (Ky 4/21/2005) This death row inmate lacks standing to intervene in the post-conviction appeal of a co-defendant who did not receive a death sentence.

McFall v. Bednar, 2005 WL 896453 (10th Cir 4/19/2005) In yet another case of wrongful termination of a capital defense attorney who zealously defend their client, claim that OIDS termintated her exercising her free speech rights appropriately permitted to proceed despite  proffered qualified immunity defense.

[1][2] Article V, section 25 of the Colorado Constitution decrees:


This provision, which has been part of the Colorado Constitution since its adoption in 1876, has no counterpart in the United States Constitution. The prohibition against special legislation was enacted, in part, "for the purpose of preventing class legislation--that is, legislation that applies to some classes but not to others without a reasonable basis for distinguishing between them." City of Montrose v. Pub. Util. Comm'n of the State of Colorado, 732 P.2d 1181, 1190 (Colo.1987). Prior to our announcement in Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884, 886 n. 3 (Colo.1980), that article II, section 25 of the Colorado Constitution implicitly guarantees equal protection, many discrimination claims were brought under article V, section 25. Dale A. Oesterle & Richard B. Collins, The Colorado State Constitution: A Reference Guide 132 (2002). Despite the concern with class composition, article V, section 25 is "more than a redundant equal protection clause." In re Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, 814 P.2d 875, 886 (Colo.1991)(hereinafter "Interrogatory "). The ban on special legislation was also intended to curb favoritism on the part of the General Assembly, prevent the state government from interfering with local affairs, and preclude the legislature from passing unnecessary laws to fit limited circumstances. See Oesterle & Collins, supra, at 132; Citizen's Assembly on the State Constitution, The Colorado Constitution: Is it Adequate for the Next Century? 14 (1976). The provision creates a strong preference for the enactment of general legislation. Most importantly, the provision acts as a limitation on the power of the legislature. See In re Senate Bill No. 95 of the Forty-Third General Assembly of the State of Colorado; 146 Colo. 233, 239-40, 361 P.2d 350, 354 (1961) ("The limitations upon the power entrusted to those in positions of authority cannot be brushed aside as having no application to projects or enterprises considered by those in official positions, as desirable or necessary to serve a special and local purpose.")(hereinafter "Senate Bill No. 95 ").

Since the adoption of the state constitution, we have only rarely held that a statute violated article V, section 25. See People v. Sprengel, 176 Colo. 277, 279, 490 P.2d 65, 67 (1971); Senate Bill No. 95, 146 Colo. at 238, 361 P.2d at 353; In re Senate Bill No. 9, 26 Colo. 136, 139, 56 P. 173, 174 (1899). Section 18-1 .4-102(1)(e) bears the characteristics of those unusual statutes we have held to be special legislation.

*4 [3][4] Modern approaches to the analysis of whether a statute amounts to special legislation differ depending on whether one of the express prohibitions enumerated in the constitutional provision is implicated. See Interrogatory, 814 P.2d at 886. When the statute addresses an enumerated prohibition, we must first answer a threshold question of "whether the classification adopted by the legislature is a real or potential class, or whether it is logically and factually limited to a class of one and thus illusory." Id. If the class created by the legislation is illusory, it is prohibited special legislation. Id.; see also Senate Bill No. 95, 146 Colo. at 233, 361 P.2d at 350. Once it is determined that the legislation affects a genuine class, we then address whether the classification is reasonable. Interrogatory, 814 P.2d at 886. Where an enumerated prohibition is not implicated, we are unconcerned with the composition of the class "so long as the legislature has not abused its discretion." Id., citing Morgan County Junior College Dist. v. Jolly, 168 Colo. 466, 471, 452 P.2d 34, 36-37 (1969).

We first consider whether the statute addresses one of the prohibited categories listed in the constitutional provision. Several of the explicit prohibitions relate to court proceedings. For example, the first enumerated prohibition prevents the legislature from enacting a statute to grant a divorce to specific persons. Two of the enumerated prohibitions are relevant to the case now before us. One clause prohibits special legislation "regulating the practice in the courts of justice." Another clause prohibits the legislature from enacting special legislation summoning or impaneling petit (i.e., trial) juries.

Section 18-1.4-102(1)(e) involves two of the enumerated prohibitions. First, it regulates the practice in the courts of justice by directing that two specific capital cases be handled in a specific manner. Second, it involves the summoning and impaneling of new juries for these two cases. Both cases were tried to juries and the juries were discharged after returning guilty verdicts. The legislation would require summoning and impaneling a new jury in each case so that the new jury could determine the appropriate sentence. Because the section comes within at least one enumerated prohibition, we next address the question of whether the statute creates a real or illusory class.

In one of the earliest cases applying article V, section 25, we determined that the statute at issue was not special legislation because it was written generally and was "unlimited as to time in its operation." Darrow v. People ex. rel Norris, 8 Colo. 417, 418, 8 P. 661, 662 (1885). The statute created a superior court in any city or town containing more than 25,000 inhabitants. Id. Although at the time of the case the statute only applied to Denver, the court noted that "there is nothing unreasonable in the supposition that other towns and cities within the state will eventually contain 25,000 inhabitants." Id. Because the statute had no time limit and would equally apply to those towns as well, the class was genuine, and the court rejected the argument that the legislation was prohibited special legislation. Id.

*5 Later decisions have followed the reasoning in Darrow in determining that statutes challenged as special legislation create a genuine class. In Interrogatory, we held that a bill designed to provide incentives to United Airlines to build a maintenance facility in Colorado was not special legislation. 814 P.2d at 888. Like the statute in Darrow, the bill contained no time limit, and had no provisions that necessarily limited the benefits provided by the bill to United Airlines. Id. at 887. Because of these features, it could not be said that "no entity other than United Airlines will ever meet the statutory criteria set forth in H.B. 1005." Id. (emphasis added). Consequently, we concluded that the class created by the statute was "not so logically and factually restricted that it amount[ed] to an illusory class of one," and was not unconstitutional. Id.

Potential future applicability again persuaded us to hold that a statute which only applied to two stream systems at the time of the case was general, and did not constitute special legislation, in American Water Development, Inc. v. City of Alamosa, 874 P.2d 352, 371 (Colo.1994)(hereinafter "AWDI "). We explained


Id.

More recently, we relied on the logic of all three of these cases to decide that a statute regarding municipal annexation proceedings was not special legislation. City of Greenwood Village v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 440-44 (Colo.2000). We observed that although a dispute between two particular cities "clearly affected the timing and enactment of the 1999 Act," the legislation was "generic in its application" and "applicable to other foreseeable situations." Id. at 442. A genuine class had therefore been created by the legislation, and "thus passes constitutional muster under [a]rticle V, section 25." Id. Our special legislation precedent illustrates that, even when the legislature had a specific entity in mind when drafting the legislation, the class created by the legislation is not illusory if it could include other members in the future.

By contrast, a class that is drawn so that it will never have any members other than those targeted by the legislation is illusory, and the legislation creating such a class is unconstitutional special legislation. Senate Bill No. 95, 146 Colo. at 239, 361 P.2d at 354. We found a bill annexing the town of Glendale into the City and County of Denver to be special legislation because it created such an illusory class. Id. Although the language of the bill was general, it contained a clause that would provide for its automatic repeal shortly after its enactment. Id. This time limitation "made absolutely certain that the bill can apply only to a town now in existence and meeting the very special requirements" incorporated in the bill. Id. The bill also could not "operate prospectively because it is impossible that before July 1, 1962, any circumstance can occur to allow another town" to fit its requirements. We remarked that


Id. We reasoned that such legislation was "exactly what the constitution forbids in plain language." Id.

The above description of Senate Bill No. 95 could apply equally to section 18-1.4-102(1)(e). The General Assembly convened for only four days, from July 8, 2002, through July 11, 2002. The statute at issue became effective on the next day July 12, 2002, when it was approved by the Governor. During that brief period, the section was "conceived, cut and tailored" to accomplish the purpose of ensuring that the death penalty was available for Canister and Hagos. Although, unlike the proponents of the legislation at issue in Senate Bill No. 95, the 2002 legislature did not refer to Canister and Hagos by name during debate, there were no other individuals who could fit within the requirements of section 18-1.4-102(e). [FN9] As of July 12, 2002, the date the statutory class created by section 18-1.4-102(1)(e) closed, as well as the date the statute became effective, Canister and Hagos were the only two people in Colorado for whom the prosecution had announced it was seeking the death sentence, who had been convicted at trial of a class 1 felony, and for whom a sentencing hearing had not yet been held. The precise drafting of section 18-1.4-102(1)(e) leaves no doubt as to the identity of the individuals to whom it was intended to apply.

Because of the time limitation built into the section, Canister and Hagos are the only two people to whom it will ever apply. Like the legislation in Senate Bill No. 95, section 18-1.4-102(1)(e) cannot operate prospectively, and will have no future effect after accomplishing its purpose of making the death penalty available as a punishment for Canister and Hagos. In contrast to the potential future applicability of the statute in Interrogatory, it is absolutely certain that no one, other than Canister and Hagos, will ever meet the statutory criteria set forth in section 18-1.4- 102(1)(e). Contrary to the statutes in Darrow and AWDI, it is impossible that, before July 12, 2002, another defendant will be convicted of a class 1 felony, but not sentenced, in a case where the prosecution has announced it is seeking the death penalty. Here, the statutory category was closed at the same time the statute became effective, and only Canister and Hagos were in it.

Section 18-1.4-102(1)(e) does not contain the features that saved other statutes with readily identifiable targets from violating the prohibition against special legislation. The general language used does not disguise the fact that the section was designed to solely apply to two people. See Senate Bill No. 95, 146 Colo. at 239, 361 P.2d at 354 (dismissing the "thin veneer of language used to 'get around' the constitutional prohibition, and to give the measure a mask of general application"); Senate Bill No. 9, 26 Colo. at 138, 56 P. at 174 (general character of school charter bill irrelevant because "the legislature could not by law directly provide that specified school districts, organized under the general laws of the state, should be consolidated with one existing under a special charter; and what it is prohibited from doing directly it cannot do indirectly."). Because those two people are the only individuals to whom the statute will ever apply, the classification adopted by the legislature is logically and factually limited to a "class of one," and thus is illusory. An illusory classification is not rational, and the section violates the constitutional prohibition against special legislation. No matter how abhorrent the crimes that Canister committed are, the legislature cannot single him out for special punishment.

*7 Accordingly, the prosecution cannot seek the death penalty against Canister under section 18-1.4-102(1)(e). Moreover, the three-judge capital sentencing procedure in place at the time of Canister's crimes and convictions cannot be applied to him because it is unconstitutional under the Sixth Amendment right to a jury trial. Ring, 536 U.S. at 609; Woldt, 64 P.3d at 259. As a result, the only sentence constitutionally available for Canister is a life sentence without the possibility of parole. See § 18-1.3-401(4), C.R.S. (2004) (providing that "a person who has been convicted of a class 1 felony shall be punished by life imprisonment in the department of corrections unless a proceeding held to determine sentence... results in a verdict that requires imposition of the death penalty").
Canister also raised arguments challenging the constitutionality of section 18-1.4-102(1)(e) under state and federal constitutional prohibitions against bills of attainder and ex post facto laws, as well as claiming the section violated due process. Because we have decided that the section is unconstitutional special legislation, we do not reach the remaining arguments.

PENDING DECISIONS

• Oregon v. Guzek, No. 04-928
  To be scheduled for oral argument, October Term 2005-2006
  
  On April 25, 2005, the Supreme Court granted certiorari in an Oregon death penalty case involving a defendant’s attempt to introduce evidence that would cast doubt on his conviction during the sentencing phase of his trial. Following his conviction and during his penalty-phase proceeding, Randy Lee Guzek sought to introduce alibi evidence that, if believed, would have shown that he had not been present at the victims' home at the time of the murders. On direct appeal, the Oregon Supreme Court held that the trial court erred in excluding the alibi evidence from Guzek’s penalty-phase proceeding, reasoning that the offered alibi evidence was "highly relevant to a critical issue" in the penalty phase, and therefore was required to be considered by the jury under the Eighth Amendment and Oregon statutory law.
  
  The state sought review from the U.S. Supreme Court, arguing that that Supreme Court cases discussing "residual doubt" arguments suggest that alibi evidence is not relevant to a "circumstance of the offense" and, therefore, the Eighth Amendment does not require its admission. In Lockett v. Ohio, the Supreme Court had ruled that states may not limit the presentation of relevant mitigating evidence. However, in Franklin v. Lynaugh, the Court held that a defendant is not constitutionally entitled to a jury instruction on considering lingering doubt about a person’s conviction during the penalty phase of the trial.
  
  The Supreme Court granted certiorari to answer the following question:
  
  Does a capital defendant have right under Eighth and Fourteenth Amendments to offer evidence and argument in support of a residual-doubt claim – that is, that a jury in penalty phase proceeding should consider doubt about defendant’s guilt in deciding whether to impose death penalty?
  
  Opinion below is 86 P.3d 1106 (Or. 2004).
  
  
• Brown v. Sanders, No. 04-980
  To be scheduled for oral argument, October Term 2005-2006
  On March 28, 2005, The Supreme Court agreed to decide whether the courts below properly applied the doctrine of harmless error in reviewing the death sentence of California inmate Ronald Sanders.
  
  On automatic appeal, the California Supreme Court invalidated two of the "special circumstances" that the jury had found at the guilt phase of Sanders' trial. Nevertheless, the Court upheld Sanders' conviction and sentence reasoning that there was little chance that Sanders was prejudiced by the jury's consideration of the special circumstances. Sanders filed a petition for a writ of habeas corpus in the federal district court, which was denied. The U.S. Court of Appeals for the Ninth Circuit reversed the district court and overturned Sanders' death sentence.
  
  The U.S. Supreme Court has set the procedures appellate courts must follow when an aggravating factor has been held invalid. In weighing states (those in which the finding of aggravating factors is part of the jury's sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating factors), the state appellate court must either itself reweigh without the invalid aggravating factor, or determine that the jury's weighing of the invalid factor was harmless error beyond a reasonable doubt. If a state appellate court has not adhered to these principles, the federal court applies a second level of harmless-error review in order to determine whether the state court's failure to properly conduct the constitutionally mandated review was itself harmless.
  
  Although California's system has features that are not present in all weighing states, the Ninth Circuit held that Sanders demonstrated (1) that California is a weighing state; (2) that the California Supreme Court neither remanded for re-sentencing nor conducted an independent reweighing with a proper harmless-error review; and (3) that the failure to conduct such a review had a substantial and injurious effect on his sentencing (i.e., was not itself harmless error).
  
  The U.S. Supreme Court granted certiorari on two of the three questions raised by California in challenging the Ninth Circuit's opinion:
  
  
  • "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 phrase 'harmless error' or 'reasonable doubt' in determining that there was no 'reasonable possibility' that the invalid special circumstance affected the jury's sentence selection?"

2004-2005 Term
PENDING DECISIONS

• MILLER-EL v. DRETKE, No. 03-9659
Argued on December 6, 2004
In 2002, Thomas Miller-El asked the U.S.Supreme Court to enforce the rule of Batson v. Kentucky, which prohibits racial discrimination in the exercise of preemptory challenges in jury selection. In 2003, the Supreme Court held that reasonable jurists could differ on whether Miller-El had appealable issues and ordered that the U.S. Court of Appeals for the 5th Circuit grant a certificate of appealability to further review the case. The Court, in an 8-1 opinion, criticized the 5th Circuit's "dismissive and strained interpretation" of critical facts, ruled that the lower court's refusal to consider Miller-El's Batson claim was based upon a standard of review that was too demanding, and remanded the case for further consideration. On remand, the 5th Circuit again found that prosecutors had not intentionally excluded African Americans from Miller-El's capital jury. On June 28, 2004 the Supreme Court granted certiorari a second time, in order to address whether the 5th Circuit again erred in reviewing Miller-El's claim that the prosecution purposefully excluded African Americans from his capital jury in violation of Batson v. Kentucky.



• ROMPILLA v. BEARD, No. 04-5462 (Formerly Rompilla v. Horn)
  Argued on January 18, 2005
  The Court granted cert. in the case of a Pennsylvania death row inmate who says that jurors should have been instructed that life without parole was an option in his sentencing. The defendant's brief states that Pennsylvania and South Carolina are the only two states with life-without-parole that do not require such instructions to the jury. The U. S. Court of Appeals ruled against Rompilla, who also argued that his appointed public defenders presented inadequate evidence of his mental retardation and other mitigation. (Associated Press, September 28, 2004) The defendant asked the Court to consider the following questions:
  
  • 1. Does Simmons v. South Carolina, 512 US 154 (1994), require a life-without-parole instruction where: the only alternative to a death sentence under state law is life without possibility of parole; the jury asks the court three questions about parole and rehabilitation during eleven hours of penalty-phase deliberations; the prosecution's evidence is that the defendant is a violent recidivist who functions poorly outside prison and who killed someone three months after being paroled from a lengthy prison term; and the prosecutor argues that the defendant is a frightening repeat offender and cold-blooded killer who learned from prior convictions that he should kill anyone who might identify him?
    
  • 2. Is the state court decision denying the Simmons claim "contrary to" and/or an "unreasonable application" of clearly established Supreme Court law where the state court held that a history of violent convictions is irrelevant to the jury's assessment of future dangerousness, while ignoring the jury's questions about parole-eligibility and rehabilitation and the prosecution's actual evidence and argument?
    Questions related to counsel's ineffective assistance at capital sentencing:
    
  • 3. Has a defendant received effective representation at capital sentencing where counsel does not review prior conviction records counsel knows the prosecution will use in aggravation, and where those records would have provided mitigating evidence regarding the defendant's traumatic childhood and mental health impairments?
    
  • 4. Has a defendant received effective representation at capital sentencing where counsel's background mitigation investigation is limited to conversations with a few family members; where the few people with whom counsel spoke indicated to counsel that they did not know much about the defendant and could not help with background mitigation; where other sources of background information, including other family members, prior conviction records, prison records, juvenile court records and school records, were available but ignored by counsel; and where the records and other family members would have provided compelling mitigating evidence about the defendant's traumatic childhood, mental retardation and psychological disturbances?
    
  • 5. Does counsel's ineffectiveness warrant habeas relief under AEDPA where the state court sought to excuse counsel's failure to obtain any records about the defendant's history by saying the records contained some information that was "not entirely helpful," by saying counsel hired mental health experts (even though those experts did not do any background investigation and never saw the records), and by saying counsel spoke to some family members (even though those family members told counsel they knew little about the defendant and could not help with mitigation); and where the state court did not even try to address counsel's failure to interview other family members (who knew the defendant's mitigating history) or counsel's complete failure to investigate the aggravation that the prosecution told counsel it would use?


• DECK v. MISSOURI, No. 04-5293
  Argued on March 1, 2005
  In the case of Deck v. Missouri, the Court agreed to decide whether it is unconstitutional to shackle and handcuff a defendant - in full view of the jury - in a sentencing proceeding that could lead to the death penalty. The Court has previously limited the shackling of defendants during the trial of a case, but now faces the question of whether to extend those limits to the penalty phase of a capital proceeding.
  The case involves Carman L. Deck, who received two death sentences for killing an elderly couple in 1996. After his conviction and first death sentences were upheld by the Missouri Supreme Court, Deck won a new sentencing in a post-conviction challenge. During that new penalty phase, he was shackled with leg irons and hand chains, over the objection of defense counsel. The restraints remained throughout. The Missouri Supreme Court found no constitutional violation, saying the use of restraints was a matter within the trial judge's discretion.
  Opinion is State v. Deck, 136 S.W.3d 481 (Mo. 2004).


• MEDELLIN v. DRETKE, No. 04-5928
  Argued on March 28, 2005
  On December 10, 2004, the Supreme Court granted certiorari in the case of Jose Medellin to determine what effect U.S. courts should give to a recent ruling by the United Nations' highest tribunal, the International Court of Justice at the Hague (the World Court). In the case of Medellin and 50 other Mexican nationals on death row, the World Court recently ordered U.S. courts to reconsider the convictions and death sentences because the defendants were not given their rights under the Vienna Convention on Consular Relations to seek help from their consulate.
  The Vienna Convention enables consular officials to protect their citizens who are detained in foreign countries. The United States and Mexico are parties to the treaty. The Vienna Convention applies to Americans abroad and to foreigners arrested in the United States. Under the treaty, authorities who detain a foreign national must notify the foreign national of his right to request assistance from the consulate of his own country, and must tell the consulate that one of their nationals has been detained.
  Upon his arrest, Medellin told police that he was a Mexican citizen, but the Mexican consulate was not informed of his arrest. A court appointed attorney with a suspended law license represented Medellin at trial. Medellin's trial lawyer's license was suspended for ethics violations. Mexican consular authorities were first notified of Medellin's detention when he wrote them from death row after the conclusion of his direct appeal. The Mexican consular authorities immediately began aiding in Medellin's defense.
  Mexico petitioned the World Court on behalf of Medellin and other Mexicans on death row in the U.S. The Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention, and directed that U.S. courts give these inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims.
  The United States Court of Appeals for the Fifth Circuit acknowledged the ruling of the World Court, but held that it was precluded from giving effect to the judgment by prior U.S. Supreme Court precedent in Breard v. Greene. In Breard, the Supreme Court said that the Vienna Convention does not prevent the United States from applying its procedural default rules to bar consideration of a Vienna Convention claim. Because he had not raised the Vienna Convention claim at the trial stage (during the time that he was represented by unlicensed counsel) the Fifth Circuit rejected Medellin's appeal as procedurally defaulted. The circuit court further stated that the treaty does not serve to confer rights upon individuals.
  
  • See Medellin's Petition for a Writ of Certiorari; Texas' Brief in Opposition; Medellin's Reply; and Amici briefs
  • See T. Mauro, "The World According to the Supreme Court," Legal Times, Nov. 22, 2004
  • See International Justice Project's Medellin Summary
  • See DPIC's page on Foreign Nationals

• BRADSHAW v. STUMPF, No. 04-637
  Scheduled to be argued April 19, 2005
  On January 7, 2005, the Supreme Court granted a writ of certiorari in the Ohio case of John Stumpf. During the course of a robbery, Mary Jane Stout was shot and killed. John Stumpf pleaded guilty to the robbery and aggravated murder but argued that the fatal shots were filed by a co-defendant, Wesley. At a hearing at the time of his guilty plea, Stumpf and his attorneys argued that although Stumpf participated in the robbery, he did not shoot the victim and was not present when the victim was shot. In response, the state argued that Stumpf was the shooter, and the three-judge panel that heard the case agreed with this assertion and sentenced him to death. Later, at the co-defendant Wesley's trial, the state presented the testimony of a jailhouse informant to establish that Wesley was the shooter. Stumpf tried to withdraw his guilty plea on the basis of Wesley's conviction, however the state then argued that its own informant's testimony, which established Wesley as the shooter, was unreliable.
  The United States Court of Appeals for the Sixth Circuit found that Stumpf was not aware of the details of the crime of aggravated murder to which he pleaded guilty and held that Stumpf's guilty plea was "unknowing and involuntary" and thus unconstitutional. Further, the Sixth Circuit found that Stumpf's constitutional right to due process was violated when the state secured convictions of both Stumpf and Wesley, using inconsistent theories.
  The Supreme Court will address these questions:
• Is representation on record from defendant's counsel and/or defendant that defense counsel has explained elements of charge to defendant sufficient to show voluntariness of guilty plea under Henderson v. Morgan, 426 U.S. 637 (1976)?
• Does Due Process Clause require that defendant's guilty plea be vacated when state subsequently prosecutes another person in connection with crime and allegedly presents evidence at second defendant's trial that is inconsistent with first defendant's guilt?
  
  
• BELL v. THOMPSON, No. 04-514
  Scheduled to be argued in April 26, 2005
  On January 7, 2005, the Supreme Court granted a writ of certiorari in response to a petition filed by the state of Tennessee in the case of Gregory Thompson. Last year a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a split decision denying Thompson's Sixth Amendment ineffective assistance of counsel claim in a 2-1 vote and three separate opinions. The same three judges later unanimously announced their decision to consider whether this prior ruling was mistaken in light of available evidence that Thompson was suffering from schizophrenia at the time of the offense. After reconsidering the case and expanding the record on appeal, the Sixth Circuit corrected its earlier decision, and remanded the case to the district court for further proceedings, stating that trial counsel failed to conduct a reasonable investigation of Thompson's social history, failed to present powerful, readily available mitigating evidence, and failed to pursue known leads that might have helped them to prepare their case in mitigation. The state of Tennessee is challenging the Sixth Circuit's power to withdraw its prior opinion, especially since Thompson's case had progressed in reliance on the Circuit's first opinion.
  The Supreme Court will address this question:
• Did the Sixth Circuit abuse its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Fed.R.App.P 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court's action was necessary to prevent a miscarriage of justice, particularly where state judicial proceedings to enforce the inmate's death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings?

Los Angeles Times Calls for Moratorium on California Death Penalty
A recent Los Angeles Times editorial called on California lawmakers to impose a moratorium on executions until a state commission charged with examining the fairness and accuracy of California's death penalty laws can finish its work. The paper noted that a similar review led by New York state lawmakers resulted in findings that effectively ended capital punishment in that state for this year. The editorial stated:


(Los Angeles Times, April 21, 2005).  See Editorials and Recent Legislative Activities.

 
NEW RESOURCE: "A Life and Death Decision" Examines Jury Deliberations
"Scott Sundby's new book, "A Life and Death Decision: A Jury Weighs the Death Penalty" is an impartial look at capital jury deliberations through the examination of data collected by the Capital Jury Project and other studies of group decision-making.  Drawing on the Capital Jury Project's interviews with more than 1,000 jurors from across the country who had taken part in death penalty cases, the book addresses crucial issues such as jury instructions, jury room setup, and voir dire procedures. While focusing on a single case, Sundby also sheds light on broader issues, including the roles of race, class, and gender in the justice system.

Sundby is a professor of law at Washington and Lee University. He has worked on both the prosecution and defense sides in a variety of criminal cases, and has testified as an expert witness on the death penalty and other legal issues.  (Palgrave Macmillan, 2005). See Books.


Death Penalty Prosecutions May be Halted if Funding is Inadequate
The Louisiana Supreme Court recently ruled that trial judges can halt prosecutions of poor defendants until the state comes up with the money to pay for an adequate defense.   Louisiana has in the past failed to adequately fund indigent defense programs. "I think it's a warning," said Phyllis Mann, appointed counsel for Benjamin Tonguis and Adrian Citizen, two death penalty defendants whose cases were reviewed by the state supreme court.  "The court is saying as plainly as they possibly can not to let people languish."  Tonguis and Citizen have been awaiting trial with limited or no funds to prepare a defense since their arrests in April and October 2002. When funding for these two cases ran out, the trial judge tried to tap into a parish-imposed tax. He ordered the Calcasieu Parish Police Jury to provide $200,000 for appointed counsel and $75,000 to be placed in escrow for other case-related expenses, but the Louisiana Supreme Court forbid such a tax because it is the state legislature's responsibility to fund indigent defense expenses.  (ABA Journal, April 15, 2005).  See Representation.


NEW RESOURCE: "Executed on a Technicality"
Executed on a Technicality: Lethal Injustice on America's Death Row, by Professor David Dow, is a behind-the-scenes look at the death penalty through the lens of an attorney who formerly supported capital punishment. Dow, who teaches at the University of Houston Law Center and founded the Texas Innocence Network, provides case histories illustrating serious flaws in the death penalty system. He uses these cases to guide readers through a web of coerced confessions, incompetent representation, racist juries, and unfair judges, all of which he believes contribute to the arbitrariness of capital punishment.

In many cases, obscure technicalities in the law prevented courts and juries from hearing evidence that would have prevented an execution or a death sentence. Dow relates the case of one man who was executed because the jury never heard from two eyewitnesses who swore he was not the murderer. In another case, a man was allowed to represent himself despite the fact that his mental imbalance - as evidenced by his attempts to issue a subpoena to Jesus Christ and dressing as a cowboy during the trial - was obvious. (Beacon Press, April 2005). See Resources.


POSSIBLE INNOCENCE: DNA Evidence Could Free Man From Arizona's Death Row
An Arizona court has overturned the conviction of death row inmate Clarence Hill because of new DNA evidence.  The court noted that, "It is more likely than not that no reasonable juror would have convicted Mr. Hill in light of the present DNA evidence." Hill has spent 15 years on death row for the murder of his landlord, but new DNA tests have revealed that the victim was not the source of the blood found on Hill's clothing and bedsheets during the investigation. The blood was used as evidence in the state's case against Hill.  Defense attorneys are now seeking his release. The state's Attorney General must decide within weeks whether to appeal the court's ruling or have the case sent back to Mohave County, where prosecutors can decide if Hill will face a new trial.  (The Arizona Republic, April 20, 2005).

Since 1973, 119 persons have been exonerated and freed from death row, including 13 who have been found innocent through DNA testing. Seven people have been exonerated from Arizona's death row, including Ray Krone who was freed based on DNA evidence.  See Innocence.

Five cases granted review
The Supreme Court on Monday agreed to hear five cases, including one that could have an impact on the coming sentencing hearing of admitted terrorist Zacarias Moussaoui.  The case is Oregon v. Guzek (docket 04-928), involving a convicted individual's attempt to bring into a death sentencing hearing evidence that would cast doubt on the conviction. The case seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh.
 
When the sentencing hearing is held for Moussaoui, who pleaded guilty on Friday to six conspiracy counts -- including four that could carry the death penalty, he is expected to attempt to offer as mitigating evidence statements by captured Al Qaeda operatives that may suggest he was not directly involved in the September 11, 2001, terrorist attacks. That kind of evidence might also seem to undercut, at least in part, the factual basis for a death sentence because it could affect the degree of his culpability for the nearly 3,000 deaths that occurred in the attacks.

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.
ISSN: 1523-6684

* Execution date information per Rick Halperin and other sources.