Only two cases appear to deserve much more than summary mention this week.  In Pike v. State Tennessee Supreme Court concludes that their state's post-conviction regime was not mandatory in capital cases, but that if a defendant waives post-conviction review they can seek to revoke the waiver in a reasonable period of time.  In United States v. Green the First Circuit has reversed a trial court order that had ordered two juries hear the FDPA case, one for each phase of the trial.

May
18  Vernon Brown  (Missouri)
18  Bryan Wolfe (Texas)
19  Richard Cartwright (Texas)

May

25 Gregory Johnson (Indiana)

Pike v. State, 2005 WL 1118211 (Tenn 5/12/2005) "We conclude that post-conviction review is not mandatory and may be waived by a competent death-sentenced inmate. We also conclude that a competent death-sentenced inmate may revoke a waiver of post-conviction review so long as the revocation occurs within thirty days of the trial court's order permitting the inmate to waive post-conviction review. Our holding is limited to death-sentenced inmates who seek to revoke an initial waiver of post-conviction relief. Our holding does not apply to death-sentenced inmates who attempt to manipulate and to delay the judicial process by repeatedly seeking to waive and thereafter to reinstate post-conviction review. "

United States v. Bodkins,  2005 WL 1118158 (W.D. Va 5/11/2005) Pretrial order holding that, in relevant part: (1) motion to unseal previously filed ex parte motions, applications and pleadings and to prohibit further ex parte filings without notice to the Government filed by the Government, largely denied; (2) motion to bar tokens/insignia substantial granted; and (5) motion in limine--penalty phase filed as to residual doubt  as a mitigator granted.

Williams v. Dretke, 2005 WL 1131237 (N.D.Tex 5/11/2005) Magistrate's report recommending relief due to youth of petitioner  under Simmons submitted.

United States  v. Green, 2005 WL 1119791 (1st Cir 5/12/2005) Pretrial order calling for the empanelment of two separate juries, one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty reversed as running afoul of the FDPA.

Ross ex rel. Dunham v. Lantz, 2005 WL 1120272 (2nd Cir. 5/12/2005) Next friend status denied for condemned's sister. 

Ross ex rel. Dunham v. Lantz, 2005 WL 1124704 (D.Conn. 5/12/2005) Next friend status denied for condemned's sister.

State v. Ross, 2005 WL 1109462 (Conn 5/9/2005) ) Despite special counsel's extraordinary performance, Ross held competent to waive all appeals.

Moody v. Polk, 2005 WL 1118275 (4th Cir 5/12/2005)  Relief denied on "Moody['s] claims that his counsel were ineffective because they failed to perform an adequate investigation into mitigation, because they did not adequately prepare Dr. Noble for his mitigation testimony, and because they unreasonably failed to present evidence to undermine the state's case in aggravation."

Palmer v. Clarke, 2005 WL 1123560 (8th Cir 5/13/2005)  Clerk's office notes as to the opinion: "Claims upon which district court denied habeas relief are affirmed: application of modified state's marital privilege rule to third conviction did not violate ex post facto and the state court's disposition of claim was not contrary to nor an unreasonable application of federal law; change in rule was not a bill of attainder; double jeopardy claim was successive claim and must be dismissed; 17- week delay in retrial was not presumptively prejudicial and thus did not violate the Speedy Trial Act; admission of identification by victim's wife did not violate due process or other constitutional protections; and claim that death by electrocution is cruel and unusual was procedurally defaulted. Claims upon which district court's partially granted habeas corpus relief are reversed. State court's proportionality review is not subject to federal review; claim that defendant was deprived of two-tier process was procedurally defaulted; State court's reformulation and reweighing of aggravating and mitigating circumstances was sufficient to justify imposition of death penalty even though exceptional depravity aggravating circumstance was vague; defendant was not deprived of fair notice; Ring claim was foreclosed by Supreme Court's decision in Schriro v. Summerlin; death penalty is satisfied by conviction for felony murder because defendant actually killed victim; ineffective assistance of counsel claim from deficiency in first sentencing hearing were cured by second and third sentencing hearing; counsel's other deficiencies were not prejudicial."

State v. Roseberry, 2005 WL 1111208 (Ariz 5/11/2005) Relief denied on claims relating to ex post facto clause; presentment of aggravators to grand jury; jury qualifications; insufficient evidence of pecuniary gain; separation of powers; jury instructions (reasonable doubt; definition of aggravators; and significant impairment); double punishment; dismissal of a juror; and failure to giver effect to mitigation evidence.

Washington v. State, 2005 WL 1118036 (FL 5/12/2005) Appellant has defaulted any putative era under State v. Keen concerning the trial court's .sentencing order

State v. Turner, 826 N.E.2d 266 (Ohio 5/11/2005)  Relief denied on claims relating to: waiver of jury trial;  course of conduct aggravator; and aggravator that victim was witness to an offense and was purposely killed in retaliation for victim's testimony.

Calhoun v. State, 2005 WL 995489  (Ala.Crim.App. 4/29/2005) Relief denied on claims including (1) Brady; (2) search of clothes;  (3) race & jury selection; (4) Batson; (5) evidentiary issues; (6) prosecutor's conduct of the trial (including calling the Defendant's mother to the stand); (7) sufficiency of robbery aggravator; (8) victim impact evidence;  (9) failure to charge lesser included charges; and  (10) mental retardation.

Bryant v. State, 2005 WL 995481 (Ala.Crim.App. 4/29/2005) Relief denied on claims including: (1)  for cause removal of  two jurors; (2) use of strikes to remove four of eight African-American jurors; (3) determination of witness unavailability; (4) residual doubt jury instruction; (5) double counting of the  kidnapping as an aggravators; (6) failing to enter certain specific written findings regarding the existence/nonexistence of aggs/mits; and (7) failure to use verdict forms as to each aggravator.

Texas Defender Service Study Contains Blueprint for Reform
A new study from the Texas Defender Service calls for substantial changes in the way Texas handles capital murder cases. The report recommends that Texas implement a series of reforms, including uniform investigation procedures, a life-without-parole sentencing option, and a statewide public defender's office.

Drawing from recommendations made by the blue-ribbon Illinois Commission on Capital Punishment that was established to address wrongful convictions in that state, the Texas Defender report notes, "Texas has executed 340 people in the modern death penalty era, 28 times the number executed by Illinois, yet its nine exonerations lag far behind those of Illinois. Texas is at unacceptable risk for wrongful conviction and execution, an especially troubling fact given its status as the undisputed leader in executions among the 38 states with the death penalty."

The report, "Minimizing Risk, A Blueprint for Death Penalty Reform in Texas," was sent to Texas Governor Rick Perry's Criminal Justice Advisory Council, which was created this year to recommend changes that could improve the state's criminal justice system.  (San Antonio Express-News, May 13, 2005). Read the full report in PDF format. See also Innocence and Resources.


NEW RESOURCE: Research On Victim Impact Statements
A new research paper by Wayne A. Logan of the William Mitchell College of Law examines the constitutional, ethical and legal issues raised by victim impact evidence.  In his article, "Victims, Survivors and the Decisions to Seek and Impose Death," Logan notes that the U.S. Supreme Court's landmark 1991 decision in Payne v. Tennessee opened the door for survivors of murder victims to testify about the social, emotional, and economic losses resulting from the murder of their loved one.  Since this ruling, such testimony has been broadly used throughout the nation and can often be a major factor considered by jurors in capital punishment trials.  (William Mitchell Legal Studies Research Paper No. 12, in WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY, James R. Acker, David R. Karp, eds., Carolina Academic Press, 2005)  Read the paper. See also Victims and Resources.


NEW VOICES: Connecticut Justice Questions Capital Punishment
Justice Flemming L. Norcott Jr. of the Supreme Court of Connecticut dissented from the Court's refusal to stay the execution of Michael Ross, the first person to be executed in New England in over 40 years:

This case illustrates, however, the sheer irrationality of the capital punishment system because this defendant's election to forgo further appeals or collateral relief, a decision that in any other context would lend some economy to the proceedings, has in fact spawned seemingly endless litigation over his fate.

I do not dispute the need for an abundance of caution given the tremendous stakes of this case; indeed, after the execution has taken place, no court will have the option of reconsideration. These proceedings have, however, been cruel and traumatic for the victims' families and a significant part of the punishment for the defendant himself, and also have come at great financial cost for all parties involved, as well as the courts. And yet, at the end of the day, the question remains: After the execution, what will the state of Connecticut have gained from all of this? The answer seems to be that, minimally, the state has secured the proverbial pound of flesh for the crimes of this one outrageously cruel man. But now, what is to be? Has our thirst for this ultimate penalty now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road?

I opened this opinion by mentioning that my opposition to the death penalty has often been set forth in the Connecticut Reports. I close with my belief that the totality of the costs that are attendant to capital punishment vastly outweigh its marginal benefits.

Hopefully, the death penalty jurisprudence reported in those volumes soon will become nothing more than legal artifacts of interest and import not to the active bench and bar, but only to historians. Until such time, however, I respectfully dissent.

(Hartford Courant, May 10, 2005).  See New Voices.


Independent Audit of Virginia's DNA Lab Prompts Review of 150 Cases
An independent audit of Virginia's central crime laboratory initiated by the present governor found that the lab had botched DNA tests in the death penalty case of Earl Washington (pictured). The finding prompted Gov. Mark Warner to order a review of 150 other criminal cases and the development of procedures to insulate the lab from outside political pressures.

The audit was conducted by the American Society of Crime Laboratory Directors. It found that the Virginia lab's internal review process was flawed, and it raised concerns that lab workers had felt pressured to produce quick and conclusive results in the Washington case, even when the evidence was unclear. Washington had been sentenced to death for a 1982 murder and rape. His death sentence was commuted in 1994 after DNA tests first threw doubt on his guilt. He was eventually granted an absolute pardon in 2000 and freed from prison. Tests commissioned by defense lawyers in 2004 have implicated another suspect, who is in prison in an unrelated rape case. The audit concluded that the state lab improperly excluded this suspect as the source of DNA found on the victim.

Betty Layne DesPortes, a defense attorney who heads a legal panel for the American Academy of Forensic Science, commented about the audit's findings: "You have to have doubts about the reliability of any case coming out of there. How can we be sure that this case wasn't typcial." Virginia is second only to Texas in the number of executions carried out since 1976. (N.Y. Times, May 8, 2005). See Gov. Warner's Press Release, with link to the entire report.  See also Innocence.


NEW RESOURCE: Index of Death Penalty Articles for 2004
In the course of its research, DPIC collects relevant death penalty articles that have appeared in print and on media Web sites.  Our collection certainly does not contain all such articles, nor do we claim that it represents the "best" articles.  It is only a representative sample of the extensive coverage given to capital punishment in print in a particular year.  For those interested in examining this coverage, we have prepared an index of the articles from 2004 in PDF format.  For more information about this index, click here.  See also, Articles.


Support for the Death Penalty Drops Sharply in Leading Execution City
Public support for the death penalty has dropped sharply in Houston, Texas according to the 2005 Houston Area Survey conducted by Rice University.  For many years Texas has led the country in executions, and Harris County (Houston) has led all Texas counties in sending inmates to death row and in executions.  But most Houston residents would prefer the sentence of life without parole rather than the death penalty for those who commit murder.  Sixty-four percent chose life without parole, increasing from 57% who chose that option in 2003.  Overall, support for the death penalty (with no alternative offered) dropped to 60% this year, down from 68% support in 1999, according to the survey.  (See poll results, Houston Chronicle, May 6, 2005).  See Public Opinion and Life Without Parole.


NEW VOICES: Louisiana Chief Justice Demands Fair Trials for the Poor
Chief Justice Pascal Calogero of the Louisiana Supreme Court called upon the state legislature to provide adequate funding for indigent defendants in his State of the Judiciary address.  The court had earlier ruled that judges may halt prosecutions in cases where funds have not been made available for an adequate defense.  The Justice concluded:


(2005 State of the Judiciary Address to the Louisiana Legislature, Pascal F. Calogero, Jr., Chief Justice, Supreme Court of Louisiana, May 3, 2005).  See also Representation and New Voices.


MAJOR STUDY Finds Arbitrary Application of the Death Penalty
In a comprehensive study covering 20 years and thousands of capital cases in Ohio, the Associated Press found that the death penalty has been applied in an uneven and often arbitrary fashion.  Among the conclusions of the study that analyzed 1,936 indictments reported to the Ohio Supreme Court by counties with capital cases from October 1981 through 2002 were:

    * Offenders facing a death penalty charge for killing a white person were twice as likely to go to death row than if they had killed a black victim. Death sentences were handed down in 18% of cases where the victims were white, compared with 8.5% of cases where victims were black.

    * Nearly 1/2 of the 1,936 capital punishment cases ended with a plea bargain. That includes 131 cases in which the crime involved two or more victims; 25 people had killed at least 3 victims.

    * In Cuyahoga County, a Democratic stronghold, just 8% of offenders charged with a capital crime received a death sentence. In conservative Hamilton County, 43% of capital offenders ended up on death row.

State Supreme Court Justice Paul Pfeifer, who co-sponsored the death penalty law in 1981 when he was a member of Ohio's Legislature, said the findings are disturbing and confirmed his fears that race would be a contributing factor:  "That has to be very disconcerting and alarming to all of us," he said.  (Associated Press, May 5, 2005).  See Race and Studies.


Death Row Inmate's Mental Health Crumbles Even As Relief May Be Near
During 25 years on Texas' death row, Cesar Fierro's mental health has deteriorated to the extent that his attorney hardly recognizes him. Since being sentenced to death in 1980, his mother has died, his brother has died, his wife divorced him and his daughter stopped visiting him. Gradually, he refused to even speak with his lawyers.

"He wouldn't come out of his cell for months at a time unless he was forcibly extracted," says David Dow, a constitutional law professor at the University of Houston Law Center and director of its Texas Innocence Network. "He refused to shower and there were feces on his cell wall. It was very disturbing . . . ."

Dow said that when Fierro was sent to death row in 1980, he was a soft-spoken, slightly overweight man in his mid-20s who was highly respectful of his lawyers and the process, which he felt would set him free.

"When I saw him last year, he had long, stringy hair and a strong wind could have blown him over," says Dow. Even when told of some good news from the courts, Fierro raged and rambled incoherently, banging the phone against the glass partition of the visiting room.

Fierro's case is one among about 50 similar cases in which the International Court of Justice recently ruled that the convictions and death sentences of Mexican nationals should be given further review in U.S. courts. President Bush has ordered the courts in Texas and elsewhere to comply with the World Court's ruling, but Texas authorities have said Bush lacks the proper authority. The issue of the effect of the World Court's ruling is currently before the U.S. Supreme Court. (Texas Lawyer, May 2, 2005). See Foreign Nationals; also DPIC's description of Medellin v. Dretke (in U.S. Supreme Court); Mental Illness and Time on Death Row.

The Ninth Circuit has invited the Solicitor General to join in a fundamental examination of the constitutionality of the 1996 law passed by Congress to curb habeas corpus in federal courts -- the Antiterrorism and Effective Death Penalty Act. The order significantly escalates a judicial inquiry that could lead to a major inter-branch conflict with Congress.

In an order issued Wednesday (and posted at midday Thursday by Howard Bashman at How Appealing blog), two judges on a three-judge panel in the case of Irons v. Carey (Circuit docket 05-15275) have certified the constitutional question to the Justice Department, as federal law requires when a federal law's validity is at issue.

The panel held a hearing on the Irons case on May 11, and began probing the constitutional issue at that time. The two judges on the panel who support the constitutional inquiry examined lawyers closely on it. (Those two judges do not have the support of the third for this inquiry.)

In the new order, the panel told parties on both sides of the case to file supplemental briefs within four weeks, to discuss whether AEDPA intrudes on the Judicial Branch's independent authority to determine the sources of law guiding its decisions on habeas. The specific questions posed to counsel were the same as the panel had told lawyers to be prepared to argue at the May 11 hearing.

Certifying the constitutional question to the Justice Department, the Court said the Department -- represented, of course, by the Solicitor General -- may intervene and file a brief, also due within 28 days. The Court left open the possibility of further oral argument, and invited interested parties to seek permission within two weeks to file amici briefs.

Circuit Judges Stephen Reinhardt and John T. Noonan, Jr., are supporting the constitutional probe. Circuit Judge Ferdinand P. Fernandez, also on the Irons panel, is refusing to join in the orders.

Sentencing Law & Policy Notes

This appeal presents two determinative issues: (1) whether post-conviction review of a death sentence should be mandatory and should proceed over the objection of a competent death-sentenced inmate; and if not, (2) whether, and under what circumstances, a competent death-sentenced inmate may revoke her waiver of post-conviction review. We conclude that post-conviction review is not mandatory and may be waived by a competent death-sentenced inmate. We also conclude that a competent death-sentenced inmate may revoke a waiver of post-conviction review so long as the revocation occurs within thirty days of the trial court’s order permitting the inmate to waive postconviction review. Our holding is limited to death-sentenced inmates who seek to revoke an initial waiver of post-conviction relief. Our holding does not apply to death-sentenced inmates who attempt to manipulate and to delay the judicial process by repeatedly seeking to waive and thereafter to reinstate post-conviction review.

Index of Death Penalty Articles
The DPIC has an index of many print and website articles that appeared in 2004 on the death penalty here.  [Mark Godsey]

Creative Defense Attorney
Gail Heriot at The Right Coast blogs about a death row inmate who wants to hurry up the process and be executed.  His lawyer is trying to stop the execution by arguing that it would constitute assisted suicide in violation of state law.  [Mark Godsey]

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.