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As happens from time to time, two weeks are covered here.  Neither week was particularly eventful in the way of case law.  The news (or by now the history) is Justice O'Connor's resignation, the Chief Justice's all but guaranteed resignation in the coming days and an unusually draconian habeas bill creeping its way through Congress.  

Of the case law developments most notable of these decisions is Russeau v. State out of Texas.  In Russeau the Texas Court of Criminal Appeals reverses finding that the use of incident reports rather than live testimony denied the right to confront one's accusers.

Another key, but unpublished, opinion comes from the Sixth Circuit, In re Lott.  In Lott there was a claim of actual innocence.  The district court below held that such a claim waives attorney work product & attorney-client privilege.  Granting mandamus, a split panel in Lott holds that such a claim does not waive the privilege. 

The Supreme Court also issued arguably the least important death penalty opinion of the last few terms,  Bell v. Thompson.  Bell holds, in a hyper-technical opinion, that even assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition.  Put another way, this case applies to a very small universe of cases, including possibly a universe of one. 

While staying with the Supreme Court, the Court in House v. Bell granted cert on how should the lower federal courts deal with claims of actual innocence, here DNA exonerates and the Sixth Circuit split;  this was at least a 5-4 (if not 6-3) winner before Justice O'Connor resigned and is a key case (along with Oregon v. Guzek) as to how the new composition in the Court will handle habeas and Eighth Amendment jurisprudence.  The ACLU's SCOTUS year in review can be found here, the Heritage Foundation's video review here

There is a significant trial court opinion on lethal injection (opinion here).  Press accounts were slightly off, as they failed to note that the trial court appeared to hold in the Bowling, et al., litigation in Kentucky that cut-down procedures are unconstitutional (at least that state's protocol) and appears to also hold that the protocol must be shown start to finish.  More, if time permits, next week. 

In the news, DPIC notes the growing concerns state appellate courts are having about the use of lethal injection, especially as it relates to the drug Pavulon.  The Sentencing Blog (see below) has posted a history of O'Connor's votes on capital punishment and some insight into what may come next.  The Houston Chronicle reviews the Fifth Circuit's recalcitrance in capital cases in this editorial.  Robin Lovitt is scheduled to be executed for the 1998 murder of Clayton Dicks, he says he is innocent but the state has destroyed all the DNA evidence in his case that might prove whether he is or not.

The Focus section makes a return this week with a "stealth" habeas bill making its way through Congress that would eviscerate federal review in most capital cases and severely restrict the ability to grant relief in noncapital cases. Senators Jon Kyl (R-AZ) and John Cornyn (R-TX) have introduced the “Streamlined Procedures Act” in the Senate, S. 1088, and Representative Dan Lungren (R-CA) has introduced H.R. 3035, the companion bill, in the House.  Rather than repeating someone else's work below, find below instead the text of the new legislation as it alone makes the point.  There are several other "stealth" habeas jurisdiction stripping bills in Congress, for example barring habeas relief for any person convicted of killing a child, so be aware.  At the moment there is reason to believe that this bill will not pass, however, this is the most serious attempt since the passage of the AEDPA to gut habeas.  Make sure to keep informed through such sources here, NACDL, the Sentencing Blog and Talkleft. 

Looking to the other side of counsel table, the annual Association of Government Attorneys in Capital Litigation's convention meets in two wweks and has posted their schedule of planned programs.   If their program is any guide as to where they think the defense bar is succeeding it appears to be with mental retardation claims (with what appears to be almost twice as much time devoted to that subject than mitigation evidence) AND, oddly, the public relations aspects capital litigation (with almost as much time devoted to that subject as mental retardation) .

Finally, a little closer to home, the Annual ABCNY CLE (NYC city bar) happened a mere few hours after the horrid events in London. As a result of those events we had many, many extra copies of materials that had been dutifully prepared by Skadden Aarps.  If you are interested in yourown copy of these materials please drop an email or phone expressing how many copies you need of the materials.

- k

Serious X- Dates

July
11 Robin Lovitt   Virginia
12 Robert Dale Conklin Georgia
19 Mike Pennington   Oklahoma
26 Rickey  Newman   Arkansas / vol
27 Kevin Conner    Indiana
28 David Martinez   Texas

August
4    George Sibley Alabama
10 Gary Sterling    Texas
11 Kenneth Turrentine  Oklahoma
23  Robert Shields  Texas


Full edition archived at http://capitaldefenseweekly.com/archives/050627.htm


Leading Cases

In re Lott, 2005 WL 1515367 (6th Cir. 6/22/2005) (unpublished)  Mandamus issued blocking the discovery of certain information relating to  prior counsel.

Russeau v. State, 2005 WL 1523774 (Tex.Crim.App. 6/29/2005)  Use of incident reports instead of live testimony denied confrontation clause protections.


Decisions Reversing, Remanding or Otherwise Holding Death in Check

Madrigal v. Bagley, 2005 WL 1503864 (6th Cir. 6/27/2005) Ohio Supreme Court unreasonably found confrontation clause violation was harmless beyond a reasonable doubt.

Dickens v. Dretke, 2005 WL 1509992 (5th Cir. 6/24/2005) (unpublished) Sentence reduced to life by Governor.  COA had been granted apparently on just penalty phase issues.

Ex parte Dewberry, 2005 WL 1459546 (Tex.Crim.App. 6/22/2005) Death sentence vacated due to age of offender.


Decisions Favoring Death
Bell v. Thompson, No. 04-514 (6/27/2005) Even assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition. 

Brown v. Polk, 2005 WL 1489456 (4th Cir. 6/23/2005) (unpublished)  Relief denied on claims including: "(1) that his death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution because the jury was instructed that it must unanimously find the existence of any mitigating circumstances; and (2) that his appellate counsel rendered constitutionally ineffective assistance by failing to argue this unanimity issue on direct appeal to the North Carolina Supreme Court."

Ford v. Dretke, 2005 WL 1484033 (5th Cir. 6/22/2005) (unpublished)  Relief denied on claims relating to  (1) whether the trial court erred in denying Ford a court-appointed expert, (2) whether Ford's trial attorneys were ineffective for failing to pursue the motion for an expert on eyewitness identification, and (3) whether Ford's appellate attorney was ineffective for failing to challenge the performance of his trial attorneys on appeal.

People v. Ward, 2005 WL 1530423 (Cal.  6/30/2005) Relief denied on claims including removal of lead counsel on the first day of trial.

People v. Samuels, 2005 WL 1500853 (Cal. 6/27/2005) (dissent)  Relief denied on claims including admission on defendant's lifestyle after murder; certain evidentiary rulings; failure to grant defense witness judicial immunity; removal of juror during penalty phase;  prosecutor using  biblical references in penalty phase; state's reference to right to appeal and possibility of clemency; LWOP instruction; and  financial gain instruction.
 
Brooks v. State, 2005 WL 1475401 (Fla. 6/23/2005)  " We have determined that five errors of law occurred during the course of Brooks' retrial, including the erroneous admission of Madero's testimony regarding the child support record, the erroneous admission of the notes recovered from Davis's leg cast, the improper impeachment of Melissa Thomas, the trial court's failure to provide the coconspirator hearsay instruction as requested by defense counsel, and the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse. . . .  [W]e determine that there is no reasonable possibility that the cumulative effect of the errors in this case contributed to Brooks' conviction."

Halprin v. State, 2005 WL 1523798 (Tex.Crim.App. 6/29/2005) Relief denied on claims that  the trial court excluded evidence that he was a follower and not a leader in a prison escape that resulted in murder and prosecutor's examination of venire in the voir dire.

Com. v. Robinson,  2005 WL 1475552 (Pa. 6/22/2005) (dissent) Relief denied on failure  to investigate and challenge defendant's competency prior to trial and mitigation in the penalty phase; prosecutor's opening statements in the guilt phase including noting the decedent was "a single black Christian male;" instruction on malice; applicability / overbreadth of felony murder; cross of Robinson's witness in the penalty phase as to uncharged bad acts;  prosecutor's comments during penalty phase concerning defendant's lack of remorse were not improper; prosecutorial comments on the lack of remorse; proportionality.

Com. v. Taylor, 2005 WL 1459836 (Pa. 6/21/2005) Relief denied on sufficiency of evidence; failure "to charge the jury on diminished capacity and third-degree murder;"  permitting the Commonwealth's psychiatric expert to testify in rebuttal (examination of appellant in May of 2001 provided an insufficient and inadequate basis to support his expert testimony and testimony "violated appellant's right to be free from self-incrimination and his right to counsel under both the Pennsylvania and United States Constitutions."); testimony of excessive and cumulative victim impact evidence; and mental retardation.

Williams v. State, 2005 WL 1432379 (Mo. 6/21/2005) Relief denied on claims including: prosecutorial misconduct (Brady); Ineffective Assistance of Counsel (failure to investigate and impeach, failure to request a limiting instruction; failure to introduce mitigation evidence; failure to file a motion to quash the indictment); Ineffective Assistance of Appellate Counsel (failure to appeal motion for continuance and failure to raise a claim that the trial court erred in precluding expert testimony); post-conviction discovery; constitutionality of Lethal Injection; conflict of interest; and failure to accept Williams' rejection of post-conviction counsel

State v. Allen, 2005 WL 1527624 (La. 6/29/05) (dissent) Relief denied on numerous claims of error including  death qualification procedures to mask racially motivated jury selection and the use of certain hearsay in the penalty phase.

State v. Juniors,  2005 WL 1527667  (La. 6/29/05) (dissent)  Relief denied on 30+ claims of error, most notably claims relating to the Miller-El v. Dretke (death qualification as a pretext for a racially biased voir dire) and exclusion of evidence that may have indicated a reduced moral culpability.

Henderson v. State, 2005 WL 1541855  (Tenn.Crim.App. 6/28/2005)  Relief denied including: "(1) the trial judge erred in failing to recuse himself at both the trial and the post-conviction hearings; (2) the post-conviction court's findings were clearly erroneous; (3) trial counsel was ineffective; (4) appellate counsel was ineffective; (5) the post-conviction court erred in prohibiting a witness from testifying; and (6) the imposition of the death penalty is unconstitutional."

Harbison v. State, 2005 WL 1521910 (Tenn.Crim.App. 6/27/2005)  Facts simply don't support claims for a writ of error coram nobis.  Put another way, "[i]n light of the petitioner's confession and the fact that the police found property stolen from the victim's home in the petitioner's girlfriend's apartment and fragments from the murder weapon in the petitioner's car, the petitioner is not entitled to error coram nobis relief."

Irvin v. State, 2005 WL 1491996 (Ala.Crim.App. 6/24/2005)  Relief denied on numerous claims including: sufficiency; delay of 32 months between arrest and trial; use of prior murder committed  to show identity, intent, and motive; admission of statement to girlfriend that he would "blow [her] fucking brains out like he did [victim]" was admissible statement against interest;  Miranda; voluntariness of confession;
Ring; and  proportionality.

 Clemons v. State,  2005 WL 1492023 (Ala.Crim.App. 6/24/2005)  On return from remand as to "whether the appellant, Eugene Milton Clemons II, is mentally retarded; whether his trial attorneys rendered ineffective assistance by not developing and presenting evidence concerning his limited mental capacity; and whether his sentence is unauthorized as a matter of law. " 

Because the appellant was represented by different counsel at trial and on appeal and because the Jackson procedure was in effect at the time of the appellant's conviction, any ineffective-assistance-of-trial-counsel claims should have been raised in a motion for a new trial and on direct appeal.

Pinnell v. Palmateer, 2005 WL 1459989 (Or.App. 6/22/2005) (unpublished)  Post-conviction relief denied on claims "pertaining to the constitutionality of Oregon's death penalty statute, [ ] the dismissal of a claim concerning trial court error in the second penalty-phase proceeding, and [ ]the post-conviction trial court's disposition of his post-conviction claims.  Those specific claims including motion to recuse, impeachment evidence, constitutionality of Oregon's death penalty statute; trial court error in the second penalty-phase proceeding; and IAC (failure to call certain witnesses; cross-examination of certain witnesses; failure to locate and present percipient witnesses; supervision of investigator;  opening statement; performance during voir dire and jury selection; closing argument; failure to raise voluntary intoxication/diminished capacity defenses; failure to investigate evidence of petitioner's organic brain deficiency and fetal alcohol syndrome; penalty-phase counsel's failure to object to verdict form.

State v. Williams,  2005 WL 1532625 (Ohio App. 6 Dist.  6/30/2005)  Relief denied on claims relating to  standing to bring a claim of the violation of "First Amendment" rights and jurors prayer session during ("Give us guidance in the decision we're about to make, and after that decision has been made, give us peace in our hearts with the decision that was made.")


Disciplinary matters of note
In re Jordan, 2005 WL 1527693  (La. 6/29/05) (dissent)  Prosecutor suspended for three months (suspended for one-year) for failing to timely disclose to the defense evidence tending to negate the guilt of the accused or mitigate the offense.  Dissent demands a more severe punishment.

Excerpts from Leading Cases

Russeau v. State, 2005 WL 1523774 (Tex.Crim.App. 6/29/2005)  Use of incident reports denied confrontation clause protections.

*6 [15][16] In points of error sixteen and sixteen-A, appellant argues that the trial court violated his Sixth Amendment right to confront the witnesses against him when the court admitted in evidence, at the punishment phase, State's Exhibits numbers 242-254, which were Smith County Jail "incident reports," and State's Exhibits numbers 255-260, which were TDCJ "disciplinary reports." The trial court admitted these reports under the business records exception to the hearsay rule. See Tex.R. Evid. 803(6). The reports contained statements which appeared to have been written by corrections officers and which purported to document, in the most detailed and graphic of terms, numerous and repeated disciplinary offenses on the part of appellant while he was incarcerated. It further appeared that, in writing the statements, the corrections officers relied upon their own observations or, in several instances, the observations of others. None of the individuals who supposedly observed appellant's disciplinary offenses testified at his trial. Appellant's alleged disciplinary offenses included threatening physical harm and even death to others, refusing to work or cooperate, breaking out of his cell at night, exposing himself and masturbating in front of jailers and other inmates, verbally abusing jailers and other inmates, fighting with other inmates, and possessing contraband, including improvised weapons. The record also reflects that most of the written reports detailing appellant's alleged disciplinary offenses were read aloud to the jury at the punishment phase and that the prosecutor referred to the reports numerous times during his closing argument at that phase.

[17][18] The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." This procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and bars the admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him, Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Generally speaking, a statement is "testimonial" if it is a solemn declaration made for the purpose of establishing some fact. Id. at 51.

The reports in question contained testimonial statements which were inadmissible under the Confrontation Clause, because the State did not show that the declarants were unavailable to testify and appellant never had an opportunity to cross-examine any of them. Indeed, the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence the Clause was intended to prohibit. Id. at 50. The trial court erred in admitting those portions of the reports that contained the testimonial statements.

Having found constitutional error, we need not reverse the trial court's judgment if we conclude beyond a reasonable doubt that the error did not contribute to appellant's punishment. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See generally W. LaFave, et al., Criminal Procedure § 27.6(e) (2d ed.1999). We cannot so conclude, however. Given the highly damaging nature of the reports and the fact that the prosecutor repeatedly emphasized them during his closing argument, we find it impossible to say beyond a reasonable doubt that the reports did not influence the jury in its assessment of appellant's future dangerousness. We sustain points of error sixteen and sixteen-A.

In re Lott, 2005 WL 1515367 (6th Cir. 6/22/2005) (unpublished)  Mandamus issued blocking the discovery of certain information relating to  prior counsel.

While discovery orders are not typically subject to interlocutory appellate review, courts of appeals have utilized mandamus review when important interests such as privilege are at issue. See, e.g., In re Regents of University of California, 101 F.3d 1386 (Fed.Cir.1996), cert. denied 520 U.S. 1193, 117 S.Ct. 1484, 137 L.Ed.2d 695; In re Bieter, 16 F.3d 929, 931- 33 (8th Cir.1994); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.1992). Two courts of appeals, confronting discovery orders issued over claims of attorney-client or work product privilege, have taken a different approach and found these rulings immediately appealable under the collateral order doctrine. See In re Ford Motor Co., 110 F.3d 954, 964 (3d Cir.1997); United States v. Philip Morris, 314 F.3d 612, 617 (D.C.Cir.2003). Due to the importance of the interest asserted, the novelty of the district court's waiver determination, and Lott's likelihood of success, this Court grants an immediate stay of discovery pending further consideration by this Court of the issues raised by Lott.
In determining whether to grant a stay, this Court considers (1) the likelihood that the party seeking the stay will prevail on the merits, (2) the likelihood that the moving party will be irreparably harmed absent a stay, (3) the prospect that others will be harmed if the court grants the stay, and (4) the public interest in granting the stay. Grutter v. Bollinger, 247 F.3d 631, 632, (6th Cir.2001); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991).

*2 Regardless of the jurisdictional basis and the concomitant standard of review, it is likely that Lott will succeed in blocking the execution of the District Court's discovery order. The question at issue is whether the attorney-client and work product privileges have been waived. To be certain, "the [attorney-client] privilege is not an inviolable seal upon the attorney's lips." Johnson v. Alabama, 256 F.3d 1156, 1178-79 (11th Cir.2001). Nor is the protection typically afforded attorney work product inviolable. A habeas petitioner like any other litigant may waive these privileges. Here, this Court must review the District Court's determination that Lott's assertion of actual innocence effected a waiver of the attorney-client and work product privileges.

Generally, "the 'attorney-client privilege is waived by voluntary disclosure of private communications by an individual or corporation to third parties. In addition, a client may waive the privilege by conduct which implies a waiver of the privilege or a consent to disclosure.' " In re Columbia /HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir.2002) (internal citations omitted). The work-product privilege may also be subject to implied waiver. In re Perrigo Co., 128 F.3d 430, 445 (6th Cir.1997). For example, "the affirmative use of the work product to advance the claimant's interests" would implicitly waive any privilege. Id.

In the habeas context, courts have found implied waiver of the attorney-client privilege when the petitioner "injects into [the] litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys' conduct." Johnson, 256 F.3d 1156, 1178 (11th Cir.2001). But, this implied waiver has typically been the result of a petitioner's assertion of his own counsel's ineffectiveness. See id. ("By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [the petitioner] put at issue-and thereby waived--any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices."); see also Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003); Tasby v. United States, 504 F.3d 332, 336 (8th Cir.1974) ("When a client calls into public question the competence of his attorney, the privilege is waived.").

Implied waivers are consistently construed narrowly. Courts "must impose a waiver no broader than needed to ensure the fairness of the proceedings before it." Bittaker, 331 F.3d at 720. In a different context, the Court of Appeals for the Third Circuit found that a "party waives the privilege only when he or she "has made the decision and taken the affirmative step in the litigation to place the advice of the attorney in issue." U.S. Fire Insurance Co. v. Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir.1999); see also Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 (7th Cir.1995). ("[T]he attorney-client privilege is generally waived when the client asserts claims or defenses that put his attorney's advice at issue in the litigation.").

*3 To be sure, litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case. "[T]he attorney-client privilege cannot at once be used as a shield and a sword." United States v. Blizerian, 926 F.2d 1285, 1292 (2d Cir.1991). But, while the sword stays sheathed, the privilege stands.

In this case, the District Court applies implied waiver in a completely new context with no citation to any legal authority. Rather than finding that Lott had put his attorney's performance or strategic decisions at issue and determining that he took the affirmative action to waive the privilege, the court finds waiver in Lott's assertion that the police invented the confession and in his assertion that he is innocent. Neither of Lott's assertions relate to what his attorney knew or did in this case. Instead, they are assertions about Lott's actions, i.e, whether he killed McGrath and whether he confessed to the killing. We have not been able to discover a single case where a court has found that implied waiver applied in a similar fashion.

The link between the waived privilege and the actual communications injected into the litigation by the petitioner was noted in another recent case from the northern district. See Mason v. Mitchell, 293 F.Supp.2d 819, (N.D.Ohio 2003). In Mason, the district court found that the petitioner implicitly waived attorney-client privilege by putting his attorney's performance at issue, but was careful to note that "the waiver in habeas cases should be limited to the extent necessary to litigate a petitioner's ineffective assistance of counsel claims." Mason, 293 F.Supp.2d at 823 (citing Bittaker, 331 F.3d at 722). As such, the Mason court rejected the warden's request "to question the Petitioner about what he told his trial counsel regarding his involvement in the crime." Id. Also, in Mason, while the district court found the petitioner had implicitly waived the work product privilege regarding a psychiatric examination, that waiver did not extended to the privilege surrounding any inculpatory statements the Petitioner may have made to the psychiatrist. Id. at 825.

The only authority that the District Court cites in support of this novel finding of implied waiver is an unreported order from the northern district. Lott's Petition for Mandamus, Exhibit 1, Discovery Order at 9-10 (quoting Phillips v. Bradshaw, No. 5:03 CV 0875 at 2-3 (N.D.Ohio Apr. 30, 2004) (order granting in camera inspection of documents)). Moreover, the cited order does not address the injection of actual innocence as an implied waiver of the privilege. Instead, that order appears to address the more typical implied waiver that is triggered by an ineffective assistance of counsel claim. See id. at 9 (quoting Phillips ) ("Although the privilege typically is the client's to assert or waive, courts have recognized that a client implicitly waives the attorney-client privilege by putting the attorney's performance at issue during subsequent litigation."). Likewise, the warden, responding in opposition to the stay of discovery, cites no authority and provides only scant reasoning for why the attorney-client privilege has been waived:

*4 The only area in which Lott would assert harm then is discovery for which he would claim attorney-client and work-product privileges, but there the question has to be whether Lott can assert harm in the discovery of documents concerning a topic that Lott directly put in issue. If there is harm permitting discovery into otherwise privileged material, Lott has brought that harm onto himself. He simply cannot argue that he is innocent and expect the Court to shield him from disclosing information that shows his guilt.

Respondent's Opposition to Stay at 4. Given that the district court's order appears to be an unsupported departure from the law of implied waiver, it is likely that relief will be granted by this Court.

In considering whether or not to issue a stay, the petitioner's likelihood of success on the merits is only one factor. This Court should also consider (2) the likelihood that the moving party will be irreparably harmed absent a stay, (3) the prospect that others will be harmed if the court grants the stay, and (4) the public interest in granting the stay.

This Court has noted, in a similar civil context, the inherent harmfulness resulting from the discovery of privileged communications: "We find, as have several courts, that forced disclosure of privileged material may bring about irreparable harm." In re Perrigo, 128 F.3d at 437. In a similar case, an appellate court found that the breach of privilege alone constituted irreparable harm: "Although [the party] 'has not asserted any specific irreparable injury that would occur' if it produced the [document], the general injury caused by the breach of the attorney-client privilege and the harm resulting from the disclosure of privileged documents to an adverse party is clear enough." United States v. Philip Morris, Inc., 314 F.3d 612, 621-22 (D.C.Cir.2003); see also In re Ford Motor Co., 110 F.3d 954, 962-64 (3d Cir.1997) ("Appeal after final judgment cannot remedy the breach in confidentiality occasioned by erroneous disclosure of protected materials.... [T]he cat is already out of the bag.... [T]here is no way to unscramble the egg scrambled by the disclosure....").

The warden's strongest argument concerns the third factor: the prospect that others will be harmed by the issuance of a stay. Any stay, even a short stay, could arguably injure the interests of the State of Ohio. The State has expressed that "[t]he State has waited eighteen years to carry out the death sentence," and that "[e]very day [the] stay of execution remains in place is an injury to the State of Ohio." Certainly, a stay of discovery would further prolong review of what very well may be a just sentence imposed almost two decades ago. The State certainly has an interest in the efficient use of judicial resources and in achieving final resolution of criminal cases. This factor does weigh against the issuance of a stay.

Finally, this Court has noted that the scope of the attorney-client privilege is a matter that is inherently linked to the "public end" of adequate legal representation:

*5 [A]ttorney-client privilege is a matter of common law right, "the oldest of the privileges for confidential communication known to the common law." It is not a creaxture of contract, arranged between parties to suit the whim of the moment.

 Focus

This week's Focus is the pending Streamline Procedurs Act, or "SPA."   The bill, as written, will make the current AEDPA seem like child's play.  How the post-Act habeas statutes would read is below, the actual bill is readily available.  Note that in addition to the provisions below the SPA purports to strip federal courts of jurisdiction to hear challenges to clemency and all provisions are purported to apply to pending cases.  The most oidous portion of the SPA permits the Attorney General of the United States to designate which states are opt-in and which are not; modifies the opt-in rules so that any state with a capital trial unit &/or internal guidelines for appointment will be argued by the various prosecutorial authorities to qualify as opt-in, and opt-in states appear to have almost all habeas stripped.   WIthout further adieu, here are the provisions to kill habeas as we know it, deleted portions of text are struck through, new text is in bold / italics.

2244. Finality of determination

(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. reheard in the court of appeals or reviewed by writ of certiorari..

(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.

(c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein, unless the applicant for the writ of habeas corpus shall plead and the court shall find the existence of a material and controlling fact which did not appear in the record of the proceeding in the Supreme Court and the court shall further find that the applicant for the writ of habeas corpus could not have caused such fact to appear in such record by the exercise of reasonable diligence.

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment orAn application that was otherwise improperly filed in State court shall not be deemed to have been properly filed because the State court exercises discretion in applying a rule or recognizes exceptions to that rule..***

(3) In this section, an application for State post-conviction or other collateral review--

(A) is pending from the date on which the application is filed with a State court until the date on which the same State court rules on that application; and

(B) is not pending during any period of time between the date on which a State court rules on that application and the date on which the application or a related application is filed, or is otherwise presented, for adjudication to such State court on rehearing authorized by State law or to a higher State court.

(4) The period of limitation under paragraph (1) may be tolled, suspended, or extended only as provided under this subsection..

(e)(1) An application for a writ of habeas corpus may be amended once as a matter of course before the earlier of the date on which an answer to the application is filed or the expiration of the 1-year period described in subsection (d).

(2) Except as provided under paragraph (1), an application may not be amended to modify existing claims or to present additional claims, unless the modified or newly presented claims would qualify for consideration on the grounds described in subsection (b)(2).



2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.


(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.



(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(4) Any unexhausted claim that does not qualify for consideration on the grounds described in this subsection shall be dismissed with prejudice.


(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State courts determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State courts factual determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(h)(1) A court, justice, or judge shall not have jurisdiction to consider an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court with respect to any claim that was found by the State court to be procedurally barred, or any claim of ineffective assistance of counsel related to such claim, unless--

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

(i) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(j) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

(k) A court, justice, or judge shall not have jurisdiction to consider an application with respect to an error relating to the applicants sentence or sentencing that has been found to be harmless or not prejudicial in State court proceedings, unless a determination that the error is not structural is contrary to clearly established Federal law, as determined by the Supreme Court of the United States.

(l) In review by a court of appeals of a district courts determination of an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, the following shall apply:

2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.



(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(4) Any unexhausted claim that does not qualify for consideration on the grounds described in this subsection shall be dismissed with prejudice..


(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State courts determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State courts factual determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(h)(1) A court, justice, or judge shall not have jurisdiction to consider an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court with respect to any claim that was found by the State court to be procedurally barred, or any claim of ineffective assistance of counsel related to such claim, unless--

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

(i) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(j) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

(k) A court, justice, or judge shall not have jurisdiction to consider an application with respect to an error relating to the applicants sentence or sentencing that has been found to be harmless or not prejudicial in State court proceedings, unless a determination that the error is not structural is contrary to clearly established Federal law, as determined by the Supreme Court of the United States..

(l) In review by a court of appeals of a district courts determination of an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, the following shall apply:


OPT-IN PROVISIONS

§ 2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment

(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

(b) This chapter is applicable if--
(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record--

(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;

(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or

(3) denying the appointment of counsel upon a finding that the prisoner is not indigent.

(d) No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner at trial or on direct appeal in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.

(e) The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254. This limitation shall not preclude the appointment of different counsel, on the courts own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings


 2262. Mandatory stay of execution; duration; limits on stays of execution; successive petitions

unchanged


2263. Filing of habeas corpus application; time requirements; tolling rules

unchanged


§ 2264. Scope of Federal review; district court adjudications

(a) Whenever a State prisoner under capital sentence files a petition for habeas corpus relief to which this chapter applies, the district court shall only consider a claim or claims that have been raised and decided on the merits in the State courts, unless the failure to raise the claim properly is--

(1) the result of State action in violation of the Constitution or laws of the United States;

(2) the result of the Supreme Courts recognition of a new Federal right that is made retroactively applicable; or

(3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.

(b) Following review subject to subsections (a), (d), and (e) of section 2254, the court shall rule on the claims properly before it.

Sec. 2264. Scope of Federal review


2265. Application to State unitary review procedure

(a)(1) For purposes of this section, a "unitary review" procedure means a State procedure that authorizes a person under sentence of death to raise, in the course of direct review of the judgment, such claims as could be raised on collateral attack.
A) the Attorney General of the United States certifies that a State has established by rule of its court of last resort or by statute by statute, or by agency rule a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in the unitary review proceedings, including expenses relating to the litigation of collateral claims in the proceedings. ; The rule of court or statute must provide
(B) the rule of the court, the statute, or the agency rule provides standards of competency for the appointment of such counsel. ; and

C) the order required under subsection (b) is entered on or after the effective date of the Attorney Generals certification under section 2267.

(b) To qualify under this section, a unitary review procedure must include an offer of counsel following trial for the purpose of representation on unitary review, and entry of an order, as provided in section 2261(c), concerning appointment of counsel or waiver or denial of appointment of counsel for that purpose. No counsel appointed to represent the prisoner in the unitary review proceedings shall have previously represented the prisoner at trial in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.

(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation to cases involving a sentence of death from any State having a unitary review procedure that qualifies under this section. References to State "post-conviction review" and "direct review" in such sections shall be understood as referring to unitary review under the State procedure. The reference in section 2262(a) to "an order under section 2261(c)" shall be understood as referring to the post-trial order under subsection (b) concerning representation in the unitary review proceedings, but if a transcript of the trial proceedings is unavailable at the time of the filing of such an order in the appropriate State court, then the start of the 180-day limitation period under section 2263 shall be deferred until a transcript is made available to the prisoner or counsel of the prisoner.

 2266. Limitation periods for determining applications and motions

(a) The adjudication of any application under section 2254 that is subject to this chapter, and the adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters.

(b)(1)(A) A district court shall render a final determination and enter a final judgment on any application for a writ of habeas corpus brought under this chapter in a capital case not later than 180 days 15 months after the date on which the application is filed.

(B) A district court shall afford the parties at least 120 days in which to complete all actions, including the preparation of all pleadings and briefs, and if necessary, a hearing, prior to the submission of the case for decision.

(C)(i) A district court may delay for not more than one additional 30-day period beyond the period specified in subparagraph (A), the rendering of a determination of an application for a writ of habeas corpus if the court issues a written order making a finding, and stating the reasons for the finding, that the ends of justice that would be served by allowing the delay outweigh the best interests of the public and the applicant in a speedy disposition of the application.

(ii) The factors, among others, that a court shall consider in determining whether a delay in the disposition of an application is warranted are as follows:

(I) Whether the failure to allow the delay would be likely to result in a miscarriage of justice.

(II) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate briefing within the time limitations established by subparagraph (A).

(III) Whether the failure to allow a delay in a case that, taken as a whole, is not so unusual or so complex as described in subclause (II), but would otherwise deny the applicant reasonable time to obtain counsel, would unreasonably deny the applicant or the government continuity of counsel, or would deny counsel for the applicant or the government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

(iii) No delay in disposition shall be permissible because of general congestion of the courts calendar.

(iv) The court shall transmit a copy of any order issued under clause (i) to the Director of the Administrative Office of the United States Courts for inclusion in the report under paragraph (5).


(2) The time limitations under paragraph (1) shall apply to--

(A) an initial application for a writ of habeas corpus;

(B) any second or successive application for a writ of habeas corpus; and

(C) any redetermination of an application for a writ of habeas corpus following a remand by the court of appeals or the Supreme Court for further proceedings, in which case the limitation period shall run from the date the remand is ordered.

(3)(A) The time limitations under this section shall not be construed to entitle an applicant to a stay of execution, to which the applicant would otherwise not be entitled, for the purpose of litigating any application or appeal.

(B) No amendment to an application for a writ of habeas corpus under this chapter shall be permitted after the filing of the answer to the application, except on the grounds specified in section 2244(b).

(4)(A) The failure of a court to meet or comply with a time limitation under this section shall not be a ground for granting relief from a judgment of conviction or sentence.

(B) The State may enforce a time limitation under this section by petitioning for a writ of mandamus to the court of appeals. The court of appeals shall act on the petition for a writ of mandamus not later than 30 days after the filing of the petition.

(5)(A) The Administrative Office of the United States Courts shall submit to Congress an annual report on the compliance by the district courts with the time limitations under this section.


(B) The report described in subparagraph (A) shall include copies of the orders submitted by the district courts under paragraph (1)(B)(iv).


(c)(1)(A) A court of appeals shall hear and render a final determination of any appeal of an order granting or denying, in whole or in part, an application brought under this chapter in a capital case not later than 120 days after the date on which the reply brief is filed, or if no reply brief is filed, not later than 120 days after the date on which the answering brief is filed.

(B)(i) A court of appeals shall decide whether to grant a petition for rehearing or other request for rehearing en banc not later than 30 days after the date on which the petition for rehearing is filed unless a responsive pleading is required, in which case the court shall decide whether to grant the petition not later than 30 days after the date on which the responsive pleading is filed.

(ii) If a petition for rehearing or rehearing en banc is granted, the court of appeals shall hear and render a final determination of the appeal not later than 120 days after the date on which the order granting rehearing or rehearing en banc is entered.

(2) The time limitations under paragraph (1) shall apply to--

(A) an initial application for a writ of habeas corpus;

(B) any second or successive application for a writ of habeas corpus; and

(C) any redetermination of an application for a writ of habeas corpus or related appeal following a remand by the court of appeals en banc or the Supreme Court for further proceedings, in which case the limitation period shall run from the date the remand is ordered.

(3) The time limitations under this section shall not be construed to entitle an applicant to a stay of execution, to which the applicant would otherwise not be entitled, for the purpose of litigating any application or appeal.

(4)(A) The failure of a court to meet or comply with a time limitation under this section shall not be a ground for granting relief from a judgment of conviction or sentence.

(B) The State may enforce a time limitation under this section by applying for a writ of mandamus to the Supreme Court.

(5) The Administrative Office of the United States Courts shall submit to Congress an annual report on the compliance by the courts of appeals with the time limitations under this section.

Sec. 2267. Judicial Review



Around the Web

DPIC notes:

Doubts Raised About Guilt in Upcoming Virginia Execution
Robin Lovitt is scheduled for execution on July 11 in Virginia despite doubts about his guilt and the state's weak and circumstantial case against him.  Lovitt's attorneys maintain that DNA testing of evidence in his case would prove that he is not guilty of the 1998 murder of Clayton Dicks, but the tests are not possible because a court clerk mistakenly destroyed the evidence. Columnist Margaret Edds of the The Virginian-Pilot recently wrote about the upcoming execution and the doubts that remain:

The scheduled execution of Robin Lovitt on July 11 spurs the latest dust-up in the state’s intensifying scrutiny of capital punishment.

At issue is whether it’s proper to execute a man, one who proclaims his innocence, even though a clerk mistakenly destroyed evidence in the case.
...
For Gov. Mark Warner, who - barring a U.S. Supreme Court reprieve - must weigh a clemency petition as the execution approaches, the clerk's error forces Solomonic judgments:

How certain is Lovitt's guilt?

What difference, if any, would it make if all of the unresolved questions about the DNA evidence were decided in Lovitt’s favor?
...
Two witnesses who walked in while the attack was under way, and then left to call police, couldn't identify Lovitt. One said at trial that he was 80 percent sure Lovitt was the man. Closer to the actual event, the same man said he wasn’t certain.

No fingerprints from Lovitt were found on the alleged murder weapon or at the crime scene. None of the victim’s blood was found on Lovitt’s clothes. (More about that later.) The primary person linking Lovitt to the crime was a fellow inmate, who, it turned out, had testified in several other trials. The label "jailhouse snitch" comes to mind.
...
It's fair to say that discussion of DNA occupied a relatively minor portion of the overall trial testimony. But related comments weren’t negligible either.

Two issues emerged. First, a spot of blood on the scissors (used as the murder weapon) clearly belonged to the victim. A second stain, an unidentified substance, largely matched Dicks also. But one faint genetic marker, identified by the number "17," could not have come from him.

The state analyst revealed that Lovitt had a "17" as 1 of 2 genetic markers at that point on the gene.

Did the jury see the link as significant? No one outside the jury room knows. Could an updated test have ruled Lovitt out altogether as a contributor to the stain? Yes, potentially.

At one point, the prosecutor called the 2nd stain "not a big deal."

Later, however, she observed that it could have come from sweat and that "you know when the defendant arrived at [his cousin’s house] he was sweating."

And further, "What was on there was just one little piece, and it told you that there was an allele No. 17. And what you know is that the defendant has an allele No. 17."

Ditto for a discussion of blood found at the waistline of Lovitt’s jacket. The state lab report was marked "inconclusive" as to the source of the blood. But that didn’t stop the prosecutor from intimating that it belonged to Dicks.

"Certainly it [blood from the victim] could have gotten on his clothing, and certainly there is blood on the jacket in the stomach area," she noted in closing remarks.

In fact, however, lab notes strongly suggest that the blood actually belonged to Lovitt. An updated test almost certainly could have answered the question. Frankly, that’s information an appeals court or the governor should have had.

After reviewing various documents, here’s one person’s opinion:

Could a jury reviewing the evidence against Lovitt have reasonably concluded that he committed the crime?

Absolutely.

Is the evidence against him foolproof?

No.

Might updated DNA testing have clarified the matter somewhat?

Yes, potentially.

Should he then be executed?

For opponents of the death penalty, such as me, that’s not a hard call. Certainty ought to be a given. The real challenge is to the majority of Virginians who favor capital punishment.

For them, when it comes to taking a life, how much doubt is acceptable? How much error?

Given all we have learned about the reality of wrongful convictions in seemingly airtight cases in recent years, is a "reasonable" execution still good enough?
(The Virginian-Pilot, July 3, 2005). See Innocence and Clemency.


Executions by Lethal Injection Being Challenged around the Country
A number of states are grappling with the question of whether the lethal injection drug Pavulon, also known as pancuronium bromide, paralyzes a condemned inmate's muscles in a way that masks horrific pain felt during an execution, a side-effect that experts say could violate of the Eighth Amendment's ban on cruel and unusual punishment. The Tennessee Supreme Court heard arguments about this issue in a death row case in June 2005 and a similar case is expected to reach the Kentucky Supreme Court soon. In May 2005, a Missouri inmate was given a last minute stay so that the U.S. Supreme Court could review his death penalty procedure case. His claim was denied 5-4, and he was later executed.

Opponents of Pavulon say the drug could render the most widely-used lethal injection proceedure in the U.S. unconstitutional, noting that the paralyzing drug has been banned by the American Veterinary Medical Association for animal euthanasia because it can mask any signs that an anesthetic has failed to work. During the lethal injection process, the first drug administered is an anesthetic that puts an inmate to sleep. Pavulon is the second drug used and it is designed to paralyze the person's muscle system. The third drug, potassium chloride, stops the heart.  A University of Miami study of autopsy toxicology report data in 49 U.S. executions using Pavulon revealed that 21 of those inmates were probably conscious when they received potassium chloride, which meant that Pavulon had masked the ability to determine if there was pain and suffering. (The Tennessean, July 5, 2005). See Methods of Execution.


Concerns About Innocence, Adequate Counsel Shaped Justice O' Connor's Views On Death Penalty
Retiring Justice Sandra Day O'Connor's evolving skepticism about capital punishment has played a significant role in a number of key decisions regarding the death penalty throughout her 24 years on the U.S. Supreme Court. During public appearances in recent years, she has often mentioned her concerns about innocence and the need to protect a capital defendant's constitutional right to adequate representation. In a 2001 speech she stated, "Serious questions are being raised about whether the death penalty is being fairly administered in this country. If statistics are any indication, the system may well be allowing some innocent defendants to be executed."

From the bench, O'Connor was a key vote in the 2002 ruling to ban the execution of those with mental retardation and she has been among the U.S. Supreme Court Justices who have criticized Texas courts and the U.S. Court of Appeals for the 5th Circuit.  In 2004, she questioned the Texas Court of Criminal Appeals for upholding a death sentence despite a ruling by the U.S. Supreme Court that the instructions given to jurors had been constitutionally flawed. In that case, she wrote that the ruling "has no foundation in the decisions of this court" and said the judges had relied on "precisely the same 'screening test' we held constitutionally inadequate" in a previous decision.

Capital defense attorney George Kendall, who has worked on many cases before the U.S. Supreme Court during O'Connor's tenure, noted, "As time went on, she became less enamored with the death penalty. She took a case-by-case approach. Her instincts were largely quite conservative, but like many people in the past 5 or 6 years, she began to have questions and to see that there are a lot of problems with the administration of the death penalty." (Houston Chronicle, July 4, 2005). See Supreme Court, New Voice, Innocence, and Representation.


Supreme Court Allows Death Sentence Despite Lower Court’s Admitted Mistake
By a vote of 5-4, the U.S. Supreme Court reversed a lower court's grant of relief to Tennessee death row inmate Gregory Thompson.  The U.S. Court of Appeals for the Sixth Circuit had announced that its initial denial of Thompson’s appeal was mistaken. After first denying Thompson’s habeas corpus petition, the Sixth Circuit discovered previously unconsidered evidence that Thompson was suffering from schizophrenia at the time of the offense. The court reconsidered the case in light of the evidence of major mental illness, and issued a corrected decision finding that Thompson’s trial was unconstitutional. The Supreme Court held that the Sixth Circuit had abused its discretion by withdrawing its first opinion and issuing a second opinion. In dissent, Justice Breyer wrote, "When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result. The American judicial system has long sought to avoid that divorce. Today’s decision takes an unfortunate step in the wrong direction." The case is Bell v. Thompson, No. 04-514. (Washington Post, June 28, 2005). See Supreme Court and Representation.


NEW RESOURCE: Murdering Myths - The Story Behind the Death Penalty
Murdering Myths: The Story Behind the Death Penalty, a new book by Judith W. Kay, uses the personal experiences of both crime victims' families and those on death row to examine America's beliefs about crime and punishment. Noting that researchers have raised questions about the execution of innocent people, racial bias in sentencing, and capital punishment's failure to act as a deterrent, Kay asks why Americans still support the death penalty.  She uses interviews with those most closely impacted by violent crime and capital punishment to examine whether punishment corrects bad behavior, suffering pays for wrong deeds, and if the  victims' desire for revenge is natural and inevitable.  Kay is an associate professor of religion at the University of Puget Sound. ("Murdering Myths: The Story Behind the Death Penalty," Rowman & Littlefield Publishers, Inc., June 2005).  See Books.  See also, Victims.


Governor Announces Appointments to New Texas Criminal Justice Advisory Council
Texas Governor Rick Perry has announced the appointment of the members of the state's new Criminal Justice Advisory Council, including three judges, two prominent state legislators, a defense attorney, a prosecutor, and 13 additional ex-officio members. The commission will study potential flaws and recommend changes to the state's justice system. This is the first group in many years to have broad-ranging authority to look at the Texas criminal justice system from arrest to final appeal. Among the issues the panel will review are the death penalty, the mishandling of evidence by local crime labs, the fairness and accessibility of the appellate system, the use of new technology to improve the justice system and police investigations, and possibly changes in state law or procedures that could improve public safety and confidence in the system.

Gov. Perry created the council in March 2005 in order to enhance public confidence in Texas' justice system and improve pubic safety. Dale Pat Campbell, Jr., vice chancellor and general counsel of the Texas Tech University System, will chair the diverse and bipartisan group. Among the Council's membership are State Senator Rodney Ellis, State Representative Dan Gattis, Court of Criminal Appeals Judge Barbara Hervey, and Brownsville criminal defense lawyer Robert Lerma.

"It's a big step in the right direction, and the governor is to be commended for taking it. The potential for this council is great," stated Sen. Ellis, a Democrat from Houston. House Corrections Committee Chairman Jerry Madden, a Republican from Richardson, Texas, who will serve as an ex-officio member of the advisory council, added, "This could end up being more than significant. It could be a major step, a very good step for Texas."  Prof. David Dow of the University of Houston Law School who has represented numerous death row inmates and is the director of the Texas Innocence Network, will also serve in an ex-officio capacity.  (Austin American-Statesman, June 29, 2005). See Texas, Innocence, and Recent Legislative Activity.


Supreme Court Agrees to Consider Standards for Claims of Innocence
The U.S. Supreme Court has agreed to hear a capital case challenging the standard of proof needed for claims of innocence based on new evidence.  The Justices will consider an appeal filed by Paul House, a Tennessee death row inmate who says new DNA evidence proves he was wrongfully convicted.  In 1993 in Herrera v. Collins, a 5-member majority of the Court said a claim of innocence based on new evidence alone is generally not enough to merit a new hearing in federal court.  However, in 1995 in Schlup v. Delo, the Court ruled that a convicted murderer who had other constitutional claims in addition to an innocence claim could get a new hearing if he could show that his new evidence makes it probable that "no reasonable juror would have found him guilty beyond a reasonable doubt." Last year in House’s case, the U.S. Court of Appeals for the Sixth Circuit voted 8 to 7 that House's evidence did not meet this standard. Six of the dissenters believed his new evidence was strong enough to show his innocence.  The issue before the Supreme Court is what standard should be used by federal courts to evaluate claims of innocence on the basis of newly discovered evidence.  The case is House v. Bell, No. 04-8990. (See New York Times, June 28, 2005). See Supreme Court and Innocence.


NEW VOICES: "Hanging Judge" Calls for End to the Death Penalty
Retired Orange County, California Superior Court Judge Donald A. McCartin, who was once known as "the hanging judge," recently called for an end to the death penalty. In a column he published in the Orange County Register, McCartin revealed that a number of recent death penalty cases and rulings by the U.S. Supreme Court have led him to now oppose capital punishment because it is expensive and can never be applied in a fair and balanced way. He wrote:

This may seem strange coming from a man known as the "hanging judge" of Orange County, but I think it's time to abolish the death penalty. During my 15 years on the bench (1978- 1993), I sent 9 men to death row. I believed then it was the appropriate punishment for certain murders, but recent events have altered my view.
...

[L]egal debates result in staggering expenses and years of irresolution. These expenses have helped convert me. In times of huge budget deficits, too much money is squandered in murder trials and retrials.

Studies show capital cases cost triple the amount of non-capital cases. When I tried Randy Kraft, one of this country's most prolific serial killers, the tab exceeded $10 million. This hemorrhage of taxpayers' money continues as his case and hundreds more crawl through the legal labyrinth, but anyone sentenced to die is justly entitled to his Supreme Court-mandated appeals. It currently costs $90,000 more every year to house a convict on death row. Clearly, waste could be drastically curbed by simply dumping capital punishment.

I recognize that basing my decision on systemic failures opens me to the argument that once the problems are corrected, capital punishment would be acceptable. Though this sounds logical, I believe fixing these deficiencies is searching for the Holy Grail. The chances of establishing faultless government, impeccable industry or immaculate religious organizations border on nonexistent.

This also applies to the quest for perfect justice. Human error, inequities, biases and personal ideologies create the problems that have caused my rejection of the death penalty. Because these frailties will not magically vanish, capital punishment cannot be implemented with any sense of balance or fairness, thus it must be abolished.

(Orange County Register, June 24, 2005) See New Voices and Costs.


Virginia to Review DNA Evidence Testing After Critical Lab Audit
After an audit of Virginia's Division of Forensic Science resulted in criticism of the crime laboratory's procedures in testing DNA evidence, the state announced that it will now review the lab's findings in 160 cases, including approximately 24 death penalty cases that hung on DNA evidence. Robert J. Humphreys, a Virginia Court of Appeals judge, is leading the review effort to examine cases that date from 1994. This marks the first time Virginia has volunteered to revisit findings in the cases of executed felons on a large scale.

In an earlier lab audit that prompted this most recent review, the American Society of Laboratory Directors criticized the crime lab's role in the case of death row exoneree Earl Washington, Jr. The audit concluded that a chief lab scientist failed to follow proper procedure when testing a piece of evidence in Washington's case. The report stated that the analysis of this evidence was wrong and that internal review of the testing failed to properly identify the errors made by the scientist. Washington spent 17 years on Virginia's death row before DNA evidence confirmed his innocence and led to his pardon in 2000. Experts say that the review led by Humphrey's team of six national forensics experts will determine whether Washington's case was an isolated incident or an example of long-standing problems within the lab. The review team will not test or retest DNA evidence, but will determine whether scientists who handled the evidence followed proper procedures. Their work will take approximately eight weeks to complete.

David B. Albo, a member of the Virginia House Courts of Justice Committee and co-chairman of the Virginia State Crime Commission noted, "You need to have impeccable credentials to go into court. If they can't show that tests were done properly, that hurts prosecuting crimes." (Washington Post, June 21, 2005 and Richmond Times-Dispatch, June 22, 2005) See Innocence.


Indiana Editorial Calls For End to "Costly" Death Penalty
An editorial in the Fort Wayne Journal Gazette stated that the death penalty is more expensive than life without parole and offers Indiana residents no measurable benefit for their tax dollars. The paper said that ending the death penalty and reallocating funds currently put toward capital punishment would improve programs such as victim's assistance, grassroots police programs, and social service agencies that work with at-risk youth. The Journal Gazette editorial noted:

The death penalty is not solely an issue of morality and justice. The state and counties face costs, which taxpayers finance. From the murder trial through execution, the death penalty is expensive. In fact, it costs taxpayers more to execute someone than it costs to incarcerate the same person for life without parole.

State legislators know this because the Legislative Service Agency issued fiscal-impact statements earlier this year for two death-penalty-related bills filed in the General Assembly. As the state is preparing to execute three men in the next two months, including former Allen County resident Joseph Corcoran, Hoosiers ought to ask: If it’s less expensive to lock a murderer away for life, why is the death penalty an acceptable option?

...

Let’s face it: The state doesn’t get much out of executions. The deterrence argument is dubious, as is the notion that it’s better for the public’s safety.

As for costs, the state and counties spend on average $741,000 over 16 years to execute a 30-year-old offender sentenced to murder, according to the Legislative Service Bureau. The figure includes jail costs, prosecutor’s and defender’s fees from murder trial through appeals, and execution costs.

It costs states and counties $622,000 to lock the same person up for life, estimated to be 47 years in prison. That includes appeals, which aren’t automatically triggered as they are in death penalty cases, as well as health care costs. It costs $506,000 to imprison someone sentenced to 65 years with a 50 % reduction for good behavior.

The money saved could be redistributed to the juvenile justice system, victim’s assistance, offender re-entry schemes, grassroots police programs and social service agencies that work with at-risk youth.

The money and resources saved by ending the death penalty would have a more profound effect to the greater good of Indiana than executing murderers.

Other than politics, why is the death penalty immune to Indiana’s budgetary woes?

(Fort Wayne Journal Gazette, June 22, 2005) See Costs, Life Without Parole, and Editorials.



SCOTUSBlog notes:

Today's Opinion in Bell v. Thompson
Posted by Anisha Dasgupta at 03:19 PM

Bell v. Thompson
One of the opinions handed down by the Court today was a decision in Bell v. Thompson. The majority declined to reach the question of whether the Federal Rule of Appellate Procedure 41 permitted the court of appeals to withhold a mandate until it had resolved this case. Rather, the majority found that, even assuming that Rule 41 authorizes stay of a mandate following denial of certiorari, and further assuming that a court can stay the mandate without entering an order, the Sixth Circuit's decision to do so in this case constituted an abuse of discretion.

Justice Kennedy delivered the opinion of the Court, which Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas joined. Justice Breyer filed a dissenting opinion which Justices Stevens, Souter, and Ginsburg joined.

Justice Kennedy's majority opinion offered several reasons why the Sixth Circuit's action amounted to an abuse of discretion. Justice Breyer's dissent emphasized the extensive document review undertaken by Judge Suhrheinrich of the Sixth Circuit and the judge's correspondingly extensive explanation (30,000 words) of why an amended opinion was necessary.

Justice Kennedy’s Majority Opinion
Justice Kennedy's majority opinion offered several reasons why the Sixth Circuit's action amounted to an abuse of discretion. First, Sixth Circuit's decision to delay its issuance of a mandate without either an order or notice to the parties imposed substantial costs on the time and resources of the state's criminal justice system, which had proceeded with scheduling Thompson's execution and competency proceedings on the assumption that the federal habeas case was final. Second, the Sultan deposition that formed the basis for the Sixth Circuit's decision was not actually unknown to the panel. As Justice Kennedy explained, "[a]lthough the Sultan evidence was not part of the . . . summary judgment record, the documents were included in the certified record on appeal as attachments to Thompson's Rule 60(b) motion." Justice Kennedy also addressed the dissent's argument that the petition for rehearing "did not adequately bring the Sultan evidence to the attention of the Court of Appeals," finding that "[t]his is simply untrue. . . . The petition for rehearing . . . placed the Sultan evidence front and center."

The third reason for the majority's disapproval of the Sixth Circuit action was its determination that "[r]elevant though the Sultan evidence may be . . . there are ample grounds to conclude the evidence was unlikely to have altered the District Court's resolution of Thompson's ineffective-assistance-of-counsel claim." The fourth reason was that subsequent evidence of Thompson's mental illness did not necessarily mean that trial counsels' decision to pursue a mitigation strategy emphasizing Thompson's positive character traits, rather than his possible mental illness, had been unreasonable. Thompson’s trial counsel had interviewed the witnesses that Dr. Sultan relied on to draft her report but "[c]onsultation with these witnesses when combined with the opinions of [two expert witnesses] provided an adequate basis for Thompson's attorneys to conclude that focusing on Thompson's mental health was not the best strategy." According to Justice Kennedy, while "Sultan's testimony provides some support for the argument that the strategy of emphasizing Thompson’s positive attributes was a mistake in light of Thompson’s deteriorated condition 13 years after the trial . . . [t]his evidence, however, would not come close to satisfying the miscarriage of justice standard" established by the Court in Calderon v. Thompson, 523 US 538 (1988).

In concluding, Justice Kennedy cited the importance of federalism concerns to the Court's decision. "Here a dedicated judge discovered what he believed to have been an error, and we are respectful of the Court of Appeals' willingness to correct a decision that it perceived to have been mistaken. A court's discretion under Rule 41, however, must be exercised in a way that is consistent with the 'State's interest in the finality of convictions that have survived direct review within the state court system.' . . . Tennessee expended considerable time and resources in seeking to enforce a capital sentence . . . that reflects the judgment of the citizens of Tennessee . . . By withholding the mandate . . . the Court of Appeals did not accord the appropriate level of respect to that judgment."

Justice Breyer’s dissent
Justice Breyer's passionate and passionately delivered dissent focused on the "unusual circumstances" of this case and the dilemma facing the court of appeals judge who "[a]fter an appellate court writes and releases an opinion, but before it issues its mandate . . . comes across a document that (he reasonably believes) shows not only that the court's initial decision is wrong but that the decision will lead to a serious miscarriage of justice." In coming to the conclusion that there was no "abuse" of discretion in the panel's effort to "correct a decision that it perceived to have been mistaken," Justice Breyer's opinion emphasized the extensive document review undertaken by the judge and his staff and the judge's correspondingly extensive explanation (30,000 words) of why an amended opinion was necessary.

For Justice Breyer, this case presented the Court with a problem of jurisprudence and principle. As Justice Breyer commented, "A legal system is based on rules; it also seeks justice in the individual case. Sometimes these ends conflict. To take account of such conflict, the system often grants judges a degree of discretion, thereby providing oil for the rule-based gears. When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result." To Justice Breyer and the Justices joining in his dissent, the majority opinion in Bell "takes an unfortunate step in the wrong direction." To bolster his point, Justice Breyer included as an appendix to his opinion excerpts from Dr. Sultan's psychological assessment of Gregory Thompson.

Procedural History
In 1985, a Tennessee state court jury convicted Gregory Thompson for the killing of newspaper reporter Brenda Blanton Lane. Thompson's state-appointed counsel did not put any defense on at trial but did, at sentencing, seek to show that Thompson was schizophrenic. Thompson was examined by psychologists hired by the state and by his counsel. Both reached the conclusion that Thompson was not ill at the time of the examination. The jury hearing Thompson's case sentenced Thompson to death.

Thompson initiated state post-conviction proceedings in 1990. An expert witness retained to assist in these proceedings testified to Thompson's serious schizophrenic symptoms. The State conceded that, since incarceration, Thompson had been on a regime of antipsychotic drugs. Yet Thompson's mental state at the time of the crime remained an open question, as Thompson's expert witness declared herself unable to determine this without further investigation.

After losing his appeals in the Tennessee state courts, Thompson filed for habeas relief, claiming that he had received ineffective assistance at trial, due to his counsel's failure to bring in evidence of his mental health background. Dr. Faye Sultan, the expert witness hired to assist in this proceeding conducted an extensive investigation of Thompson's mental health history, interviewing his family members and reviewing his legal, military, medical, and prison records. She concluded that Thompson had been suffering "serious mental illness . . . that would have substantially impaired [his] ability to conform his conduct to the requirements of the law" at the time of his 1985 offense. However, the district court dismissed Thompson's habeas petition, finding that Thompson had not "provided this Court with any significant probative evidence that [he] was suffering from a significant mental disease that should have been presented to the jury during the punishment phase as mitigation evidence." In June 2003, the Sixth Circuit affirmed the district court's summary denial of Thompson’s habeas claim, finding that Thompson's counsel had not been negligent in failing to present information about his mental illness to the jury during his sentencing hearing. Like the district court, it emphasized that none of Thompson's post-trial experts had indicated that Thompson suffered from a mental illness at the time of his crime.

Thompson then sought cert. and the court of appeals withheld issuance of its mandate while the case was under review by the Supreme Court. In December 2003, the Supreme Court denied cert. Thompson's execution was scheduled for August 19, 2004.

In June 2004, Thompson filed another petition for writ of habeas corpus in the United States District Court for the Eastern District of Tennessee, asserting a claim of incompetency for execution under the Supreme Court's 1986 decision in Ford v. Wainwright. While Thompson's Ford claim was pending with the district court, the Sixth Circuit issued an amended opinion in Thompson's initial federal habeas case. The basis offered for this amended opinion was that Dr. Sultan's deposition, which was "probative of Thompson's mental state at the time of the crime," had been "apparently negligently omitted" from the record. The authority was the court of appeal's "inherent authority to reconsider our opinion prior to the issuance of a mandate, which has not yet issued in this case."

Around the blogs
Crime & Federalism notes:

Nothing New Under the Needle
Norm Pattis
The law prizes finality, and a host of doctrines have evolved over time to assure it. We want the litigation of a case or controversy to come to an end. We even tolerate a certain amount of error in order to assure finality.
But isn't death different? Suppose we send an innocent man to death? Can we tolerate that?
Surprisingly, David Dow, a law professor at the University of Houston and sometime litigator on behalf of those sentenced to death, seems willing to tolerate the death of a few innocents. He declares that focusing on the killing of a few innocent defendants is the wrong question. No, what really bothers him is the injustice of it all.
His latest book, "Executed on a Technicality: Lethal Injustice on America's Death Row," (Beacon Press, Boston, 2005), treads familiar water. Errors are made in capital cases. A failure to investigate can deprive a jury of key mitigating evidence. Raise the wrong issue in a state habeas, and lose the right to fight the issue in federal court. The book would be a good first-week assignment in a course of post-conviction relief in capital cases. It is a good and reliable summary of leading cases written in clear lay terms.

Beyond that, there is little to recommend the book.

I've not met Dow, but were my life on the line he would not be part of the defense team I would select. In his view, a defendant is guilty at least 90 percent of the time. The real issue isn't guilt or innocence, but mitigation. He sounds less like a lawyer than a mitigation specialist.

Like so many anti-death penalty crusaders he is in love with nothing so much as the clarity of his own convictions.  At some level, he seems to prefer the messianic role of savior of the condemnd to that of advocate for the man presumed innocent.

He is dead on target with his observations about "mob rule," however. We glorify victims and permit them to pollute public prosecutions with private rage and grief. Why? Because it feels good, I suppose. It's good entertainment. Ask Oprah.

I have been involved in only a handful of capital cases, so I lack Professor Dow's experience and his track record. But complaining about the injustice of the criminal process is a little too, well, prissy, for my tastes. Nothing is perfect. Dow's declaration that first this lawyer and then that was incompetent in one caseor another smells a little of the wick. What is it that is said of those who cannot do, i.e., manage a law practice and advocate for clients? They teach.

The best argument against capital punishment is, in my view, its finality and the fact that errors cannot be corrected.  But let's face it, there is nothing new under the Sun, or is that now under the needle?, when it comes to the debate about capital punishment.

Read Dow's book. It won't change your mind. But it is concise and generally readable. It will serve as an arrow in your quiver some dark night when all seems lost and you know not where to turn before facing yet another jury ...


Sentencing Law & Policy notes

Notable ruling on constitutionality of lethal injection
As detailed in this AP article, a "state judge yesterday upheld the use of lethal injection in Kentucky, saying it is not cruel and unusual punishment."  This ruling is noteworthy in part because, as detailed in this post, the Kentucky court had conducted a full and balanced evidentiary hearing on this issue before ruling. 

As noted in this recent article, the Tennessee Supreme Court heard arguments last month in a case challenging the use of a particular drug in the lethal injection process, and this Kentucky ruling is likely to work its way up the appellate process.  The constitutionality of lethal injection protocols is an issue that will likely keep lower courts busy until the US Supreme Court takes it up.  In the meantime, the prior posts below provide more background on the issue:



Considering O'Connor's capital sentencing legacy
As discussed here and here, I think the biggest sentencing story in the wake of Justice O'Connor's retirement concerns the fate and future of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  But, given the Supreme Court's capital sentencing fetish (lamented here and  here and here), I suppose it is not surprising that others are discussing Justice O'Connor's role in death penalty cases.  Unable to resist a trend, I have a few thoughts to share on the subject.

Actually, this post over at the Supreme Court Nomination Blog purports to be about "Justice O'Connor's positions on several key criminal law issues."  However, the post only covers the death penalty, habeas corpus and ineffective assistance of counsel, and these later two areas of law usually come before the High Court in capital cases.  That SCONo post does effectively highlight O'Connor's "case-by-case approach" in all these areas, although I would add to the discussion a point emphasized in this O'Connor item from the Death Penalty Information Center:  O'Connor's "evolving skepticism about capital punishment" during her tenure on the Court seemed to shift her from a fairly consistent vote to uphold death sentences to an uncertain vote who became hard to predict in capital cases. 

Of course, the evolution of Justice O'Connor's views was not nearly as dramatic as Justice Blackmun's transformation on capital punishment.  (Recall that Justice Blackmun went from being a dissenter in Furman to the Court's only abolitionist by the time he retired.)  Nevertheless, I have an inkling that Justice O'Connor, who in a 2001 speech publically expressed her concerns about innocent persons sentenced to death, was a key player in the Supreme Court's recent trend of giving capital cases heightened scrutiny.  And, as I discussed here last week, I believe the Court's heightened scrutiny in capital cases has played a consequential role in recent declines in the use of the death penalty in the United States.

House hearing on death penalty and habeas bills
Thanks to a link from CrimProf Blog, I just discovered that the US House Subcommittee on Crime, Terrorism, and Homeland Security yesterday held a legislative hearing entitled "Does an Accurate and Swift Death Penalty Deter Crime and Save Lives?".  This legislative hearing concerned two bills introduced last week: HR 3060, the "Terrorist Death Penalty Enhancement Act of 2005" (available here); and HR 3035, the "Streamlined Procedures Act" (available here).  The first bill appears to make a number of modifications to the federal death penalty, and the second bill appears to make a number of modifications to the federal habeas corpus provisions of AEDPA.

A press advisory about the hearing from the office of Committee Chair Sensenbrenner is available here, and a webcast of the hearings along with links to the written testimony is available here.  The written testimony of Professor Bernard Harcourt, available here, begins with this ominous account of the habeas provisions of HR 3035:

I would like to focus my remarks today on H.R. 3035, the "Streamlined Procedures Act of 2005," for the very simple reason that this proposed bill is radical. It seeks a radical cutting and slashing of our existing process of federal habeas corpus review of state convictions under the Anti-Terrorism and Effective Death Penalty Act reform package that Congress carefully crafted in 1996 (the "AEDPA"). This new bill would effectively gut federal habeas corpus review where states have imposed a sentence of death — in other words, in the most important habeas cases — as well as in non-capital cases.

Since these bills are news to me, I have no clear sense of their origins or prospects.  Readers with more information about these bills are encouraged to use the comments to report any pertinent news.


The impact of SCOTUS's heightened scrutiny in capital cases
I have been kvetching a lot, most recently in posts here and here, about the Supreme Court's expenditure of so much time and energy on death penalty cases when there is so much post-Blakely and post-Booker work to be done.  Nevertheless, spurred by this interesting and insightful commentary by Andrew Cohen about criminal cases in the Term just ended, I should note that the Supreme Court's work in the capital arena seems to be having an impact on the administration of capital punishment. 

Cohen's commentary effectively spotlights "that there's a majority on the court no longer willing to wait for lower courts or state legislators or Congress to ensure more fairness and accuracy in capital cases in particular."  And Cohen reasonably links the Court's recent capital work to modern concerns about innocent persons getting sentencing to death:

These decisions are some of the practical consequences of the concerns Justice Sandra Day O'Connor raised in a speech four years ago when she said: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed.... Serious questions are being raised about whether the death penalty is being fairly administered in this country."

Perhaps even more interesting than these observations are the stories to be found inside the numbers.  As detailed in this post and others linked therein, there are many numerical indicators of recent declines in the use of the death penalty in the United States.  Though the work of SCOTUS surely does not account for all these declines, the Court's heightened scrutiny in capital cases likely does account in part for why so many executions have recently been stayed and also surely in part explains why we are on pace for the fewest execution this year since 1996.


The impact of SCOTUS's heightened scrutiny in capital cases
I have been kvetching a lot, most recently in posts here and here, about the Supreme Court's expenditure of so much time and energy on death penalty cases when there is so much post-Blakely and post-Booker work to be done.  Nevertheless, spurred by this interesting and insightful commentary by Andrew Cohen about criminal cases in the Term just ended, I should note that the Supreme Court's work in the capital arena seems to be having an impact on the administration of capital punishment. 
Cohen's commentary effectively spotlights "that there's a majority on the court no longer willing to wait for lower courts or state legislators or Congress to ensure more fairness and accuracy in capital cases in particular."  And Cohen reasonably links the Court's recent capital work to modern concerns about innocent persons getting sentencing to death:
These decisions are some of the practical consequences of the concerns Justice Sandra Day O'Connor raised in a speech four years ago when she said: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed.... Serious questions are being raised about whether the death penalty is being fairly administered in this country."
Perhaps even more interesting than these observations are the stories to be found inside the numbers.  As detailed in this post and others linked therein, there are many numerical indicators of recent declines in the use of the death penalty in the United States.  Though the work of SCOTUS surely does not account for all these declines, the Court's heightened scrutiny in capital cases likely does account in part for why so many executions have recently been stayed and also surely in part explains why we are on pace for the fewest execution this year since 1996.


More death and habeas from SCOTUS
Fittingly, only hours after I kvetched here about all the capital and habeas cases clogging up the Supreme Court's docket, we get word from Lyle Denniston in this post at SCOTUSblog that the Court today has granted cert on another capital case from the Sixth Circuit and another habeas case from the Ninth Circuit. 

Relatedly, Tom Goldstein in this post provides a copy of this informative document questions that seem, at least to me, to be much more pressing and of much greater national import. listing all of the SCOTUS cases granted for next Term.  Based on that list, which seems to comprise about half of the Court's likely docket for next Term, I see the Court has already taken four capital cases and a number of habeas cases, but not a single case that deals with any of the post-Blakely and post-Booker

Considering my prior rants here and here about the Supreme Court's expenditure of so much time and energy on death penalty cases, I suppose I should just stop tilting at Blakey/Booker windmills.  Nevertheless, last month I outlined in this post just some of the post-Blakely and post-Booker questions that I think merit the Supreme Court's attention, and none of these issues have gone away.  Moreover, now that the Supreme Courts of Tennessee and California have issued questionable rulings about Blakely's reach, I think the cert. worthy issues in this arena only continue to grow.

Given the Supreme Court's tendency of late, in the sentencing arena and elsewhere, to make modern doctrines even more opaque and confusing, perhaps I should be thankful that we will all have to wait at least until next spring before getting any more Blakey/Booker "wisdom" from the Court.  In the meantime, I will continue to speculate (and kvetch) about why only those defendants who are sentenced to death now capture the Supreme Court's attention.


Initial end-of-Term reflections on criminal justice and sentencing
Though the blogsphere and the media are still focused principally on Monday's Ten Commandments and file sharing rulings from the Supreme Court, it will soon be time for end of Term reflections.  Indeed, Scripps Howard News Service already has this review of the Term just completed, and I trust we will see more of the same soon from many sources. 

and To beat the rush, here are my first-cut anecdotal impressions (biased by my inevitable sentencing focus) of the Supreme Court's criminal justice work this Term: (1) there were a lot of capital and habeas cases, (2) there were relatively few police practices cases, and (3) criminal defendants and prisoners generally did better than I have come to expect.   Notably, if you count Cutter and MedellinRaich as criminal justice decisions, half of Tom Goldstein's ten biggest rulings of the Term are criminal cases.  However, because I view those cases as examples of the common intersection of federalism and constitutional law in the midst of the criminal justice system, in my mind only Booker and Roper should be remembered as big criminal justice decisions from this past Term.
I believe the limited number of big criminal justice rulings flows directly from Supreme Court's apparent obsession with capital cases (which I have lamented in previous posts here and here and here and here), as well as its constant need to sort out procedurally intricate habeas/AEDPA issues.  Effectively capturing my own frustrations with the Supreme Court's sentencing docket, Mike at Crime & Federalism has these astute and potent comments:
What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.  Why not ensure that only those found guilty by a jury of their peers spend time in prison?
UPDATE:  Also getting a jump on end-of-Term coverage is Tony Mauro, who has this great piece at Legal Times (which can be accessed by all thanks to law.com).  Tony's piece has lots of perspectives on the Court's work this Term, and it closes with a set of great NBA analogies that now have me trying to decide if SCOTUS had a year more like the Spurs or the Pistons.  (Perhaps the High Court's home-town Washington Wizards might be the best comparison, since the Wizards had a pretty exciting and often surprising year.)


NBA/SCOTUS comparisons seem especially apt today.  Tonight is the NBA's draft, and all the buzz over who might soon play in the NBA seems pretty comparable to all the buzz over who might soon be a Justice if there is a retirement announcement.  Perhaps we might even see some NBA general manager, looking for a sleeper pick late in the NBA draft, drawn in by the Draft Prado campaign.

Capital ruling and Booker GVRs from SCOTUS
Though other rulings on the 10 Commandments and file sharing are capturing most of the headlines and the blogsphere commentary, the Supreme Court today did decide a capital case with an interesting procedural angle in Bell v. Thompson, 04-514 (S. Ct. June 27, 2005) (available here).  Anisha Dasgupta at SCOTUSblog explains in this post that, in a 5-4 decision, the "majority found that, even assuming that Rule 41 authorizes stay of a mandate following denial of certiorari, and further assuming that a court can stay the mandate without entering an order, the Sixth Circuit's decision to do so in this case constituted an abuse of discretion."  The AP's summary of the decision is available here.

Also not to be overlooked, we had a few more Booker-inspired GVRs today.  My rough estimate suggests the running count of these GVRs has to be approaching 800 with the additional five to be found today on this order list.


Talk Left writes:

Judge: Lethal injection not cruel, unusual
by Last Night in Little Rock
bCNN reports today that a Kentucky trial judge upheld lethal injection as a form of execution, as long as the state does not use the jugular vein if another vein is not available.

While upholding lethal injection, the judge said the state should not be allowed to administer the fatal drugs through an intravenous catheter stuck into the prisoner's jugular vein, in the neck, if no suitable veins can be found in the arms or legs.

He said it was unconstitutionally cruel and should be removed from the process. Officials said they had already removed that step as an option.

Unless somebody has witnessed an execution, one cannot say that even lethal injection is completely painless. I've watched two clients die, and the experience never leaves you. They gasp for air and their face turns gray as life slips away. 'They' say it is peaceful, but it isn't. Why anybody would volunteer to witness an execution is beyond me. I did it because I was obligated to as counsel and among the last friend the clients seemingly had.


Republicans Try to Speed Up Death Penalty
Republicans have introduced a bill to speed up the death penalty by limiting habeas appeals.

    The "Streamlined Procedures Act of 2005," introduced into the House of Representatives by California Rep. Dan Lungren and in the Senate by Arizona Sen. Jon Kyl, would limit the ability of defendants facing the death sentence to have their cases reviewed by federal courts in what are known as habeas corpus appeals.

    ...Virginia Rep. Bobby Scott, the ranking Democrat on the subcommittee considering the bill, conceded there was little chance of blocking it in the House. "The House has been very supportive of anything that would strip the innocent of a fair hearing. This bill will ensure that more innocent people will be put to death," he said in a telephone interview.

This is a** backwards. One of the principal reasons death penalty appeals take so long is that people languish on death row for years before a lawyer is appointed to represent them. If we raised the compensation levels and provided adeqate expense money for forensic testing and experts, more qualified lawyers would volunteer to defend death cases on appeal and in habeas proceedings and they wouldn't last so long.

Also, if we raised the standards for representation of capital defendants at the trial level, and required DNA testing where such evidence exists, and made the ABA standards for qualification mandatory, there would be far fewer claims of ineffective assistance of counsel at the trial level.

We should not do anything legislatively that might increase the risk that an innocent person will be put to death. It's not the American way.



Supreme Court Agrees to Hear Death Penalty Appeal
The Supreme Court today agreed to hear a Tennessee death penalty case to resolve the issue of when an inmate has the right to have a court consider DNA evidence.

"This will be the first time the Supreme Court considers the impact of DNA evidence on the constitutional right to a fair trial," said Nina Morrison, an attorney with the Innocence Project in New York. "The potential implications are significant." Morrison said that her project is handling about 100 cases involving prisoners who want a chance to prove their innocence.

The death row inmate in the case, Paul House, wants a new trial. DNA tests confirmed the semen inside the murder victim was not his, but her husband's:

House, a convicted sex offender, was accused of sexually assaulting and killing a neighbor in 1985. He was convicted of Carolyn Muncey's murder, but later DNA tests, which were not widely available at the time, revealed that semen on Muncey's underwear and nightgown came from her husband.

The 6th Circuit split 8-7 last year against House. One of the dissenting judges wrote:

"I am convinced that we are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed," ...."Was Carolyn Muncey killed by her down-the-road neighbor Paul House, or by her husband Hubert Muncey?" Gilman said. "At the end of the day, I am in grave doubt as to which of the above two suspects murdered Carolyn Muncey. I am also puzzled as to why more of my colleagues are not similarly in doubt."


CrimProf Blog writes:

"Hanging Judge" Speaks Out Against Death Penalty
Story here.  [Mark Godsey]


Abolish the Death Penalty

Analyzing the Fifth Circuit
The Houston Chronicle recently had an interesting article pointing out that the Fifth Circuit Court of Appeals is, essentially, a lawless court when it comes to the death penalty:

    5th Circuit Court rules in its own way
    Its decisions have a history of defying the Supreme Court

    By HARVEY RICE
    Copyright 2005 Houston Chronicle
    - - - - -
    DEFIANT HISTORY
    In at least six cases in the past five years, the U.S. Supreme Court has rebuked the 5th U.S. Circuit Court of Appeals for not following the law laid down by the higher court in death-penalty cases.

    • June 2001: Supreme Court overturns the 5th Circuit Court for the second time in the case of Texas killer Johnny Paul Penry. The high court said in a
    6-3 ruling that the lower court failed to enforce the spirit of its 1989 decision in the same case requiring juries to consider evidence that could lead to a life sentence rather than death.

    • February 2003: The court finds in an 8-1 decision that the 5th Circuit should have given Thomas Miller-El a chance to appeal his capital murder conviction. The court explicitly outlines how the 5th Circuit should analyze the case.

    • February 2004: Citing what it calls prosecutorial misconduct, the Supreme Court throws out the sentence of Delma Banks Jr. Ruling 7-2, the court says Bowie County prosecutors allowed two key witnesses to lie to the jury and did not tell the defense that one witness was a paid police informant and the other a two-time felon whose arson charge was dropped in exchange for his testimony.

    • June 2004: The Supreme Court rejects a method of review devised by the 5th Circuit Court for cases in which the accused has low intelligence. In a 6-3 ruling in the case of Robert Tennard, the court says the test "has no foundation in the decisions of this court."

    • June 15: The Supreme Court again reverses the 5th Circuit in the Miller-El case, saying in a 6-3 ruling that the lower court's reasoning "blinks reality." During oral arguments, the justices express displeasure that the 5th Circuit adopted the reasoning of the lone dissenting opinion in the Supreme Court's previous rebuke to the lower court.
    - - - - -
[snip]

 
New web site
There's a great new web site on the death penalty. Check it out here.


Sandra's resignation
NCADP's statement:
NCADP MARKS RESIGNATION OF JUSTICE O’CONNOR
July 1, 2005 – The National Coalition to Abolish the Death Penalty issued the following statement Friday by Executive Director Diann Rust-Tierney:

    “Justice Sandra Day O’Connor has played an important role as the SupremeCourt has begun to grapple more directly with the unfairness in the administration of the death penalty. She often cast the pivotal vote in close cases.

    “Justice O’Connor expressed concern about the risk of innocent people being sentenced to death. Addressing a group of women lawyers in Minnesota, she once said, ‘If statistics are any indication, the system may well be allowing some innocent defendants to be executed. More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.’”


Message from Colombia
This message popped up in my email inbox this morning. It is in response to the previous post about the 12th Annual Fast and Vigil to Abolish the Death Penalty.\
Re: Starving for Justice
Dear Sirs:
Please receive my wholehearted support in your effort to abolish the death penalty. I firmly believe nobody has the right to end another human being's life, for any reason whatsoever.
Allow me to recall the heartrending case of Timothy Evans. Mr. Evans was hung in England in 1950 for supposedly killing his wife and baby daughter, Geraldine. He happened to be the neighbor of notorious serial killer John Christie and was posthumously pardoned after police found both Mr. Evan's wife and daughter buried beneath the floorboards of Christie's house. Imagine the excruciating anguish suffered by this innocent man wrongly put to death for murdering the two people he probably loved most in the entire world.
What horror!
Cordially,
Louis J. de Deaux
Cali, Colombia

 
Live from the 12th Annual Fast and Vigil
Today is the first full day of the 12th Annual Fast and Vigil to Abolish the Death Penalty. We walked over to the steps of the U.S. Supreme Court to attend an annual rally that is part of the event and it was pleasing to see so many familiar faces – Kristin and Sue from Amnesty International, Jack from Virginians for Alternatives to the Death Penalty, Abe from CUADP, Shari from the Quixote Center and Brenda from the Death Penalty Information Center, just to name a few.

Here are some excerpts from the speeches that were given:

Bill Pelke, chair of NCADP’s Board of Directors and leader of Journey of Hope: From Violence to Healing, talked of his experience when his grandmother was killed. The murderer was a 15-year-old African American girl who was sentenced to death. (In the 1980s, the state of Indiana allowed 15-year-olds to be executed.) Pelke campaigned relentlessly against her death sentence; her sentence was subsequently commuted and she remains in prison.

“We’re supposed to hate the sin but love the sinner,” Pelke said. “And you cannot love the sinner if you want to put them in the death chamber and have their life taken away from them.”

Diann Rust-Tierney, NCADP’s executive director, reminded the audience of the power and ability of one activist to change the future. “Whether you are a person who considers yourself to be a religious person or not, this is a faith-based movement – faith in the fact that one person can make a difference.”

Matthew Fogg served as master of ceremonies. He was a great person to serve in this capacity – he is a U.S. Marshall, vice president of Blacks in Government and a member of Amnesty International’s board of directors.

“The world is a dangerous place to live in, not because of the evil people in it, but because of the people who don’t do anything about changing it,” Fogg said.

Quoting Coretta Scott King, Fogg added, “An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by legalized murder.”

Martina Correia of Savanah, Georgia, has a brother on death row. His name is Troy Anthony Davis and he has one of the most exceptionally strong innocence claims I have ever seen. “I am on death row because that is where my brother is,” Martina said. “My family is on death row. The victim’s family is on death row because my brother is innocent.”

One of the most moving speeches was given by George White. George was convicted of murdering his spouse and sentenced to life in prison in Alabama before it was discovered that prosecutors withheld evidence that conclusively proved his innocence.

George talked about the night his wife, Char, was shot and killed. He was shot also. “Char died in my arms and I can’t remember if I said goodbye.”

He quoted the poet Oscar Wilde:

I know not whether laws be right
or whether laws be wrong
all that we know who lie in jail
is that the walls are strong
and that each day is like a year
a year whose days are long

Next up was Abe Bonowitz, who spoke of the importance of using public education to first change the minds of the general public, who will then change the minds of state legislators. “We have to change the direction of the wind,” Abe said. “Politicians stick their finger in the air and they check which way the wind is blowing. So we have to change the direction of the wind!”

The rally ended with the singing of a traditional hymn from the civil rights era

we shall not, we shall not be moved
we shall not, we shall not be moved
just like a tree that’s planted by the water
we shall not be moved

no more killing in my name,
we shall not be moved
no more killing in my name
we shall not be moved

we shall not, we shall not be moved
we shall not, we shall not be moved
just like a tree that’s planted by the water
we shall not be moved

we’re standing for the victims
we shall not be moved
we’re standing for the victims
we shall not be moved

we shall not, we shall not be moved
we shall not, we shall not be moved
just like a tree that’s planted by the water
we shall not be moved

no more executions,
we shall not be moved
no more executions
we shall not be moved

we shall not, we shall not be moved
we shall not, we shall not be moved
just like a tree that’s planted by the water
we shall not be moved

972 people have been executed since 1976 in the United States, including 28 this year. Sixteen people currently have execution dates over the next few months.

The 12th Annual Fast and Vigil continues until midnight Saturday.

 
The significance of House
On Tuesday of this week, even though the U.S. Supreme Court already had released all of its opinions for the term, it still was dealing with unfinished business. It ended up agreeing to review the case of Paul House, a person on Tennessee's death row.

At first, the significance of this escaped me, but upon further review, it is significant indeed. This will be the first time since the advent of sophisitcated DNA technology that the Court will weigh whether an actual and credible claim of innocence should serve as a constitutional bar to execution.

What's that, you say? Isn't it unconstitutional per se to execute an innocence person?

Well...the Supreme Court has never held that it is. In 1993, the Court ruled in Herrera v. Collins that a Texas man on death row named Leonel Torres Herrera had no right to reopen his case 10 years after conviction based solely on a claim of new proof of innocence. Chief Justice William Rehnquist, an ardent supporter of the death penalty, wrote that opinion.

However, in 1995, the Court ruled 6 to 3 that a convicted murderer who had other constitutional claims in addition to an actual innocence claim could get a new hearing even after exhausting all otherwise permitted opportunities, if he could show new evidence that makes it probable "no reasonable juror would have found him guilty beyond a reasonable doubt."

In House's case, last year, the full 14-judge U.S. Court of Appeals for the 6th Circuit voted 8 to 6 that House's evidence did not meet this standard. The vote was strictly along party lines, you might say: the 8 judges who voted against House were appointed by Republican presidents while the six judges who voted for House were appointed by Democratic presidents.

Writing in dissent, one judge said, "I am convinced that we are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed. Was Carolyn Muncey killed by her down-the-road neighbor Paul House, or by her husband
Hubert Muncey?"

The question of whether it is constitutional to execute an innocent person if he has exhausted all of his appeals is simply not an academic one. People with innocent claims that are at least somewhat credible are executed every year in the United States. And one day soon, perhaps tomorrow, perhaps next week, perhaps next year, we will have scientific proof that at least one innocent person has been executed in the United States since executions were allowed to resume in 1976.

 
'Gross incompetence and flagrant stupidity'
Earlier today we noted the problems with Ohio's death penalty. But which state truly has the worst system? Now comes Alabama, wanting to be heard.

In light of last week's Rompilla ruling, in which the Supreme Court elevated the standard of effectiveness that defense attorneys must meet, there is talk that many cases around the nation could be affected -- particularly in Alabama.

This comes from the Birmingham News:

No one can predict how many of Alabama's 190 Death Row inmates could successfully challenge their sentences based on the new ruling, but defense lawyers such as John Mays of Decatur said it could be significant.

"In Alabama, we have what is often referred to as the 15-minute penalty phase," said Mays, who serves on a committee that gives capital-defense training and advice to less-experienced lawyers. "You prepare absolutely nothing to try to explain your client's conduct so as to save his life.

"So when you get to the penalty phase, you go out into the hallway and grab the defendant's mother and the defendant's cousin, and you put them on the witness stand and they say they do not want Junior to die, and they call that a penalty phase. I call that gross incompetence and flagrant stupidity."


To read the entire article go here.

 
Blogging Ohio
There's yet another new death penalty blog in town!

Joe D'Ambrosio: Innocent on Ohio's Death Row examines what could be yet another wrongful conviction in the Buckeye State. What is it with Ohio lately?

Anyway, check it out by going here.
 

All out for the Annual Fast & Vigil!
Every year around this time people come to Washington, D.C. for the Annual Fast & Vigil to Abolish the Death Penalty. The event begins Wednesday, June 29 and ends Saturday, July 2. June 29 is the 33rd anniversary of Furman v. Georgia, in which the U.S. Supreme Court struck down existing death penalty statutes. July 2 is the 29th anniversary of Gregg. v. Georgia, in which the Supreme Court allowed executions to resume.

Since that time there have been 972 executions in the U.S., including 28 this year (as of this week.)

To learn more about the Fast & Vigil and to see a schedule of events, go here.


Lonely Abolitionist notes:

Paul Gregory House
I know there is other DP news that I've missed this week and I'm sorry. I will try to get to it. However, I just have to share this news!

The Supreme Court has accepted Paul House's petition for certiorari! Paul is trying to get a new trial after DNA evidence (and other evidence) has pointed the finger at the victim's husband. I've written about Paul before. He's been on death row for years, has always claimed his innocence, and is currently suffering from MS. The Sixth Circuit decision in his appeal split the judges 8-7 in favor of the state. It was one of the worst opinions I've read in awhile. In fact, some of the dissenting judges opined that they believed Paul is innocent! Yet, the court refused him a new trial. This is where the system gets quirky.

Paul House is suffering greatly from his MS. If he gets his new trial and the jury finds him not guilty, I just pray that it is in time for him to get back out into the world and enjoy some of his life. If this doesn't happen soon, Paul may die in the infirmary on death row. Whether he is executed or dies of his MS behind bars, the result is the same if he is an innocent man: an innocent man spent his last days on earth (and his last YEARS) behind the bars of Tennessee's death row.

I don't know if Paul is innocent, and I haven't reviewed all the evidence, but the DNA evidence alone is compelling. I have to leave that decision to a jury. However, for now, I'm pleased that Paul will get the chance to fight for his life a little bit longer.

DNA evidence on Supreme Court agenda


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ISSN: 1523-6684

* Execution date information per Rick Halperin and other sources.