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| updated 7/10 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 Another key, but unpublished, opinion comes from the Sixth Circuit, In re Lott.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 full edition here  |
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| updated 6/23 The Court Monday morning decided Rompilla v. Beard. Rompilla is a 5-4 win. "We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial. " For practitioner's in many ways this is the major case of the term even if it is not grabbing the headlines like race & the death penalty in Miller-El or the juvenile death penalty decision in Simmons. A more detailed analysis below. The Court also released several other criminal law & habeas decisions since the last edition: Mayle v. Felix (under Fed.R.Civ.Proc 15 "so long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order, if not AEDPA's one year statute of limitations could bar relief"), Halbert v. Michigan (even those who plead guilty are entitled to counsel on appeal), Gonzalez v. Crosby (Rule 60(b) applicable in habeas corpus proceedings, however, it may be treated as a successive habeas petition in some circumstances), and Dodd v. United States (AEDPA's one-year limitation period starts from the date on which the Supreme Court initially recognized the right asserted). Please note, save for Dodd, I am still reading these opinions, however, more detailed public analysis is linked below. The Oklahoma Court of Criminal Appeals, McCarty v. State also offers a major holding. The OCCA holds in McCarty that at least one state forensic scientist faked test results to "frame through forensics" a capital defendant. "Ms. Gilchrist, while acting as an agent of the State and in relation to her role as an expert in Petitioner's case, withheld evidence, most likely lost or intentionally destroyed important and potentially exculpable (or incriminating) evidence, provided flawed laboratory analysis and documentation of her work, testified in a manner that exceeded acceptable limits of forensic science, and altered lab reports and handwritten notes in an effort to prevent detection of misconduct." The OCCA notes in footnote 18: "We were 'greatly disturbed' by allegations Ms. Gilchrist may have been pressured to give expert opinion beyond scientific capabilities, but the record did not permit us to find the prosecutors knowingly used false or misleading evidence." Elsewhere, the Governor of Texas signed into law the option of life-without-parole which will likely have the long term effects of a continuation of the long-term down turn in the number of death sentences. Molly Ivins offers a stinging analysis of Miller-El. For the first time in 40 years, a death penalty trial is taking place in Vermont. Vermont doesn't have the death penalty but DoJ sought death anyway in federal court. In Indiana Michael Allen Lambert has received a stay of his June 22 execution date in order to consider if his death sentence violated Ring. Texas Governor Rick Perry has commuted the death sentences of 28 juvenile offenders to life in prison, an act that brings the state into compliance with a recent U.S. Supreme Court ruling that deemed the practice of executing those who were under 18 at the time of their crime unconstitutional. Last week's posting included kudos for a small number of people relating to Miller-el. Several emails responded to those kudos by noting several notables who were left off the kudos list, such as Deb Finns (LDF), Liz Semel (Boalt Hall), & George Kendall. I was remiss in not noting George, Liz & Deb, who, either directly or indirectly, have seemingly been involved in every major case win in the Supreme Court in recent years and without whose efforts we would likely be facing the 100+ executions a year many feared just a few short years ago. I am hoping to get something out next week, however, I will be on the road and may be little later in the week than normal, however, there should be a web update late Monday (assuming that is the last day of Term); if not the blogosphere is doing an exceptionally good job at looking at Supreme Court cases so far to date: SCOTUSblog, Volokh Conspiracy, PRACDL blog, US Supreme Court Blog, Sentencing Law & Policy & CrimProf Blog. As always thanks for reading. - k Full edition here |
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updated 6/17 Miller-El v. Dretke,
as expected, was decided Monday. Miller-El holds, 6-3,
majority
opinion by Souter, that Batson
has real teeth. "[W]hen
illegitimate
grounds like race are in issue, a prosecutor simply
has got to state his reasons as best he can and stand or fall on the
plausibility of the reasons he gives. A BatsonPrawfsBlog
has the best publicly available analysis I have seen.
In Johnson v. California the Court, by Justice Stevens, concludes that California's "Wheeler" standard for Batson claims is unduly deferential to prosecutorial abuse in jury selection. Wheeler required a defendant to present not merely enough evidence to permit an inference that discrimination has occurred, but sufficiently strong evidence to establish that the challenges, if not explained, were more likely than not based on race. Johnson gives "teeth" to what the appropriate standard under Batson should be. Johnson & Miller-El when read in concert, clearly indicate that 20 years of experiments in the states to deal with Batson-qualifications has created a monster and that "cookie cutter" pretexts will no longer be allowed to stand. Two other Supreme Court cases should be noted. In Bradshaw v. Stumpf Justice O'Connor, for all nine justices, reverses the Sixth Circuit's grant of relief but remands on whether prosecutorial inconsistency theory bars a death sentence; dueling concurrences offer differing views on what the Sixth Circuit should do on remand. In Wilkinson v. Austin the Court unanimously holds: (1) that an inmate has a protected liberty interest in staying out of Supermax, but (2) Ohio's procedures afford an appropriate level of process. Please note there is a major decision in next week's edition from the Oklahoma Court of Criminal Appeals, McCarty v. State. The OCCA holds in McCarty that there exists a real possibility that least one state forensic participated in "framing through forensics" by faking test results. "Ms. Gilchrist, while acting as an agent of the State and in relation to her role as an expert in Petitioner’s case, withheld evidence, most likely lost or intentionally destroyed important and potentially exculpable (or incriminating) evidence, provided flawed laboratory analysis and documentation of her work, testified in a manner that exceeded acceptable limits of forensic science, and altered lab reports and handwritten notes in an effort to prevent detection of misconduct." The OCCA notes in footnote 18: "We were 'greatly disturbed' by allegations Ms. Gilchrist may have been pressured to give expert opinion beyond scientific capabilities, but the record did not permit us to find the prosecutors knowingly used false or misleading evidence." This was a win by pro bono counsel. Other than the Court's opinions, there is a good FDPA memorandum opinion out of Vermont, United States v. Fell , in which Judge Sessions examines when a juror must in a capital case be excused for cause. In Schofield v. Gulley relief is granted by the Georgia Supreme Court as counsel failed to present evidence that Gulley had previously saved the lives of two people. In United States v. Catalan-Roman a federal district court judge in Puerto Rico held that in order "to safeguard the integrity of the proceedings as to both defendants, sequential penalty phase hearings were warranted." The Georgia Supreme Court finally holds in Miley v. State that a supporting affidavit for the search warrant in that case failed to establish that probable cause existed. Several interesting law review notes / articles are also noted this week. Laura Dietz has published in the Albany Law Review a review of the Georgia Supreme Court's death penalty jurisprudence in THE SHIFTING OF THE SUPREME COURT OF GEORGIA'S DEATH PENALTY DECISIONS FROM 1998-2003, 68 Alb. L. Rev. 409. The issue of the federal use of the death penalty in Puerto Rico is examined in light of the rejection of the death penalty in the Commonwealth in the note, "NO EXISTIRA LA PENA DE MUERTE": DOES THE UNITED STATES VIOLATE REGIONAL CUSTOMARY LAW BY IMPOSING THE DEATH PENALTY ON CITIZENS OF PUERTO RICO?" 30 Brook. J. Int'l L. 727, by Monique Marie Gallien. The law of innocence in federal court is examined in INNOCENCE, HARMLESS ERROR, AND FEDERAL WRONGFUL CONVICTION LAW, 2005 Wis. L. Rev. 35 by Brandon L. Garrett. (As always, if you have published materials that you want to publicize feel free to email the specific, otherwise it is hit and miss as to whether the information will be seen here.) Finally, an interesting footnote about the Michael Jackson trial, Tom Mesereau, Jackson's lead counsel, honed his skill not only in the court rooms of California, but also as a relentless pro bono advocate for those facing capital charges in Alabama & Mississippi on behalf of the ABA's Death Penalty Representation Project. challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false." As always, thanks for
reading. - k
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updated 6/10 United States v. Green from the District of Massachusetts leads the way this week. In Green, a bizarre federal capital pretrial case, the district court strikes a prior unadjudicated crimes aggravator from the government's notice to seek the death penalty. The Green Court finds, in a very narrowly drawn opinion, that Blakely requires presentment in an indictment of at least the prior unadjudicated crimes aggravator. The potential impact of Green, despite its narrowly drawn language, is broad due to the clarity of the analysis it offers in one of the most murky areas of the law. Elsewhere, in Rosales v. Dretke the Fifth Circuit grants a COA on the applicability of a procedural bar to Rosales's Baston claim. The Virginia Supreme Court has granted penalty phase relief in Morrisette v. Warden of Sussex I State Prison for counsel's failure to object to the verdict form which was incomplete. In State of Delaware v. Keyser, Kent County Superior Court Judge William Carpenter, in a very passionate opinion, has overridden the jury's recommendation for death sentencing the defendant instead to natural life without parole. Finally, an opinion so out of the mainstream that it could only come from the Fifth Circuit, in Brewer v. Dretke a panel of that Court offers radical rewrite of the holding of Penry II in order to hold permissible an instruction indistinguishable from the one the Supreme Court invalidated. In the news, murders in the U.S. last year declined by 3.6 even as the execution rate dropped; DPIC notes that the "South" had the highest murder rate even though it continues to account for 85% of all executions. The June 9th execution of Robert McConnell in Nevada was halted when McConnell decided it might not be a bad idea to appeal after all. Death row inmates, raising money from sales of "Compassion" magazine, have presented a $5,000 college scholarship to Zach Osborne, the brother of a 4-year-old murder victim, who plans to attend East Carolina University to pursue a career in law enforcement Finally, the Houston Crime Lab, as if things couldn't get worse, have been found in a recent audit to have engaged in "drylabbing," a dubious practice that has already been proven to have sent at least one innocent man to prison. As I try to do every few months, find below in the Focus section a brief look ahead at upcoming CLE's, including the annual NYC City Bar introduction to issues in capital litigation seminar. Unfortunately, the updated class schedule comes just in time to have missed several recent CLE's including the annual Tony Amsterdam Lectures. As always, thanks for reading. - k Click here for the full edition edition. |
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updated 6/3 The
Supreme Court decided this week
to grant certiorari in Kansas v.
Marsh. The Court expressed concern in the grant of cert. about
the procedural problems with the case, and it remains opens whether the
Court will resolve the substantive question of "[d]oes a statute
violate the Eighth Amendment if it provides for the death penalty to be
imposed when the sentencing jury finds the aggravating and mitigating
factors to be equal?" For those practicing outside of Kansas this
is an almost all upside cert. grant as there is a possibility
(arguably a strong possibility) that the Court will require states to
prove, at least by a preponderance evidence, that the aggravators
outweigh the mitigators. Unless there are five clear votes for
one position or another, a DIG (Dismiss as Improvidently Granted) is
likely due to issues on whether the Kansas Supreme Court
sufficiently relied on federal law to permit review.
In
case law from around the country, the Florida Supreme Court
in Marshall
v. Crosby appears to finally reach two questions that it has long
avoided, whether following Ring & Apprendi a trial court can
override a
recommendation of life to death, and, assuming a trial court can, how
is a trial court to handle the inherent tension
between Tedder & Apprendi/Ring [see Sentencing
Law & Policy]. The Utah Supreme Court in State
v. Lovell has remanded in order to permit a hearing on Lovell's
request to withdraw his guilty plea. In Duke v. State yet another
death
sentence is vacated in light of Roper v. Simmons.
Two germane noncapital Supreme Court opinions are also noted. In Arthur Anderson v. United StatesCutter v. Wilkinson the Court upholds, at least for Establishment Clause purposes, the Religious Land Use and Institutionalized Persons Act of 2000 which subjects claims of violations of religious freedom by people in prison to favorable standards of review. The SCOTUS Blog has an excellent analysis of both opinions. In other news, Jim Slater, chair of the Florida Public Defender Death Penalty Steering Committee, has died exceptionally young, 57, after a brief illness; a memorial website for him can be found at http://jimslater.blogspot.com/. In its annual report on human rights around the world, Amnesty International noted the abolition of the death penalty in five nations in 2004. Last year, Bhutan, Greece, Samoa, Senegal and Turkey. the Court holds the jury instructions that were given “failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction under § 1512(b).” In Time has been short
here of late with trial call after trial
call. Instead of posting something in the Focus section I'd
like to note some
recently posted law review articles (normally forthcoming) at the SSRN
site. Steven Calabresi and
Stephanie Dotson Zimdahl's "The Supreme Court and Foreign
Sources of Law: Two
Hundred Years of Practice and the Juvenile Death Penalty Decision"
( http://ssrn.com/abstract=700176)
what has the
Supreme
Court's actual historical practice been from 1789 to 2005 in citing
foreign sources of law. Sam Kamin and Jeff Pokorak look at
building on the
work of the Massachusetts Governor's Council's on Capital Punishment
and the ideas developed at a conference at Indiana University, using
both as a spring-board for the formulation of an appropriate set of
procedures for death-qualification in capital trials.
"Death-Qualification and True Bifurcation: Building on the
Massachusetts Governor's Council's Work
" (Indiana Law Journal, Vol. 80, p. 131, 2005 http://ssrn.com/abstract=711923).
Finally, William Michael Treanor in "Judicial Review before
Marbury" (Stanford Law Review, Forthcoming http://ssrn.com/abstract=722443)is
an incredible read for those who use historical analysis
(specifically analysis of jurisprudence at the time of
ratification) including the use of judicial review at the time of
ratification, the use of international law in state courts in the
years immediately following independence, as well as the use of juries
in
setting punishment.
Full edition here As always, thanks for reading. - k |
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| updated 5/26 Two Supreme
Court cases are noted, Medellin
v. Dretke
and Deck
v. Missouri, the results in both
decisions were expected. In Medellin
the Court side-steps a potentially historic decision by
DIGging (Dismissed as Improvidently Granted) the case. The
decision to DIG, 5-4,
appears to have been based on the desire to address the applicability
of the Vienna Convention to domestic prosecutions in a case with less
procedural problems. Such an opportunity may again present itself
with Medellin, the Court noted, as Medellin has sought review of this
exact issue in the Texas Court of Criminal Appeals
in light of the International Court of
Justice's ruling in Avena
and President Bush, in his role as the nation's top
diplomat, ordering all states to give effect to the Avena ruling.
Justice O'Connor, writing for the dissent, offers a stinging critique
of the majority's opinion and provides an excellent examination of
the appropriate standards of deference in AEDPA litigation.
The Court's holding in Deck v. Missouri is more straightforward. There the Court, 7-2, holds the constitution prohibits penalty phase shackling save exceptional circumstances. In dicta the Court suggests that whenever a Defendant appears before a jury, save truly extraordinary circumstances, such an appearance must be unshackled. Sentencing Law & Policy and SCOTUSBlog both proved have a more nuanced look at these opinions. In United States v. Roman a federal district in Puerto Rico has pronounced its rationale on why it struck certain aggravators prior to the start of the penalty phase. The three aggravators struck were: lack of remorse, substantial planning and killing a helpless victim. The jury ultimately returned a life verdict. The jury's decision has been widely viewed as another setback to the Department of Justice's effort to "nationalize" the death penalty by initiating capital prosecutions in states that have rejected the death penalty. Other notable decisions noted include another Texas sleeping attorney case, this time in Ex parte McFarland the Court of Criminal Appeals holds that just because lead counsel habitually took an afternoon nap at counsel table did not mean he was ineffective since the trial court had appointed a second chair. The Kentucky Supreme Court in Mills v. Com. remanded for an evidentiary hearing on trial counsel's performance, as well as the failure to disclose evidence of actual innocence. The Texas Court of Criminal Appeals in Salinas v. State & Ex parte Barraza, as well as the Pennsylvania Supreme Court in Commonwealth v. Lee, vacated sentences in light of the Defendant's youth at the age of offense. The Ohio Court of Appeals has remanded for an evidentiary hearing in State v. Lorraine on mental retardation in a decision that included favorable discussion of standards for such claims. Elsewhere, the Texas near passage of a historic life-without-parole bill that could substantially reduce the number of executions in coming years. Full "edition" here As always, thanks for stopping by. - k |
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| updated 5/20 Only two cases appear to
deserve much more than summary mention this week. In Pike
v. StateUnited
States v. Green the First Circuit has reversed a trial court order
that had ordered two juries hear the FDPA case, one for each phase of
the trial.
Tennessee Supreme Court concludes that their state's post-conviction regime was not mandatory in capital cases, but that if a defendant waives post-conviction review they can seek to revoke the waiver in a reasonable period of time. In From around the country, DPIC has released a compilation of articles on the death penalty, although it currently appears to be limited to just the last year or so. In Missouri Vernon Brown was executed after being strapped for three hours to a gurney when the Supreme Court, 5-4, issued a temporary stay then denied action on claims relating to lethal injection. The scheduled execution of Garry Allen (Oklahoma) was stayed out of concerns of competency Last week I was remiss in not addressing in more detail the Ohio Associated Press study of 2,543 capital indictments from October 1981, when the law reinstating the state's death penalty took effect, through 2002. The study began in January 2003 and involved numerous Ohio news organizations that helped with research. The Washington Post reports that Ohio Supreme Court Justice Paul Pfeifer, who co-sponsored the death penalty law in 1981 when he was a member of Ohio's Legislature, said the findings are disturbing. Defendants facing a death penalty charge for killing a white person were twice as likely to be sentenced to death than defendants charged with killing a black person. Nearly half of the cases in which the state said it was seeking the death penalty ended with a plea bargain and a sentence less than death. Geography appeared to play a major role in who was sentenced to death with Cuyahoga County (Cleveland) having just 8.5% of capitally charged defendants receiving a death sentence but in Hamilton County (Cincinnati) 43% of those capital charged received a death sentence. The Law Librarian Blog & DPIC have more information. There is a real possibility something was missed this week as I had a felony jury verdict returned after normal court hours on Thursday when I normally do the bulk of the writing & research. If something was missed this, or any other week, (or you are afraid something might be missed) feel free to drop a line to karl - at - capitaldefenseweekly.com.. Full edition here As always, thanks for reading. - k |
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updated 5/13
United States v. Allen from the Eighth Circuit leads off the edition. On remand from the Supreme Court following Ring, Allen holds the Fifth Amendment (grand jury clause) requires at least a statutory aggravating factor and requisite mens rea to be charged in an indictment. Unfortunately for Allen, the error here held harmless because any rational grand jury would have found the existence of the requisite mental state and one or more statutory aggravating factors based on the actual evidence which was presented to the grand jury in the case -- that defendant created a grave risk of death to others while committing the bank robbery and in fleeing apprehension and that he acted with the required mental state when he intentionally shot and killed a bank guard. A new Texas Defender Service study, "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas," concludes that "Texas does not comply with 80% of the safeguards of the criminal justice system" recommended by the Illinois Commission on Capital Punishment and notes an urgent need for "death penalty reform in nine specific areas to reduce the risk of wrongful convictions and arbitrary death sentences." Stephen Bright and Virginia Sloan of the Southern Center for Human Rights, make the case that Congress should grant death row inmates the same degree of judicial review extended to Terry Schiavo. Michael Ross has been executed in Connecticut marking the first execution in New England (more next week) in over four decades; like every other execution north of the Mason-Dixon line in the northeast in the modern era, this execution was a "volunteer." Eight years ago this week the site that would eventually become Capital Defense Weekly was launched. It was ugly, brutish and -- thankfully -- quickly evolved. The first "email" edition of the weekly would be launched a few months after the launch. I guess, this is my way of saying thanks as always for reading. Please note that I continue to be out to trial in a felony matter and hope to have be back to the normal pace in two weeks. Full edition here |
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| updated 5/6 Walton v. Johnson from the Fourth Circuit dominates this week. Walton remands on two different grounds, mental retardation and competence to be executed. Either holding would make the case the lead decision. The Atkins discussion in Walton is one of just five published appellate opinions on the so-called "Flynn Effect" (as testing instruments age they increasingly score a subject higher than their actual intelligence) as it relates to mental retardation. Likewise the opinion is one of a small handful that favorably treats a competency to be executed claim under Ford v. Wainwright. Five additional "wins" are noted. In Shuffield v. State the Texas Court of Criminal appeals remanded for a hearing on a Batson claim. The Alabama Court of Criminal Appeals in Wilson v. State holds the post-conviction trial court erred in failing to permit WIlson's fourth and fifth motion to amend his first Rule 32 petition. The same Court in Martin v. State remands as the trial court did not give sufficient mititgatory effect to the jury's recommendation for life. Finally, in the last two "decisions for life" of the week, the same court, the Alabama Court of Criminal Appeals, remands in Wimberly v. State & Bond v. State, for imposition of a life without parole sentence under Simmons Elsewhere, in Indiana a trial court has barred the State from seeking death on the penalty phase retrial of Zolo Azania finding too much time, 24 years, has passed from the underlying murder to permit death as a sentencing option. Ninth Circuit panel has asked for oral argument on teh question of the constitutionality (at least as applied) of the deference standards of the AEDPA (hat tip to How Appealing). The DoJ has lost yet another Puerto Rican federal death penalty trial when a jury returned two verdicts for life this week; Puerto Rico has not used the death penalty for almost 80 years and forbids the practice in its constitution. Scott Sundby's new book, "A Life and Death Decision: A Jury Weighs the Death Penalty" draws on data collected by the Capital Jury Project (and others) to examine jury dynamics in the decision for life and death. The Christian Science Monitor reports that a computer program designed by a team of criminologists and computer scientists has ben able to predict the outcome of death penalty cases with better than 90% accuracy analysis the actual chances of someone being executed -- it bases its analysis solely on factors such as age, race, sex, and marital status of the offend. Finally, Gary Sterling's execution date has been reset, most likely for the late summer. Three cases could not be covered this week due to time limitations, Calhoun v. State, 2005 WL 995489 (Ala.Crim.App. 4/29/2005), Bryant v. State, 2005 WL 995481 (Ala.Crim.App. 4/29/2005), and Nicklasson v. Roper, 2005 WL 1005126 (W.D.Mo. 4/26/2005). Full edition available here |
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The Colorado Supreme
Court's warning about the dangers of "quick fixes" to death penalty
schemes leads off this edition -- People
v. Canister & People
v. Hagos. Both Canister and Hagos were convicted of
capital murder but prior to the penalty phase challenged the Colorado
sentencing scheme and the "quick fix" resolution rushed through the
Colorado legislature after the Supreme Court's opinion in Ring v.
Arizona. Holding that the "quick fix" unconstitutional, the Court
expounds that the statute inappropriately served as "special
legislation" prohibited under the Colorado constitution.
The Supreme Court on Monday agreed to hear five cases, including Oregon v. Guzek (docket 04-928). Guzek examines whether a Defendant can bring into the penalty phaseevidence that would cast doubt on the conviction. The case seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh. The Court below noted “the Supreme Court’s Eighth Amendment jurisprudence suggests that defendant’s alibi evidence is the type of evidence that a defendant is constitutionally entitled to introduce during the penalty phase for the jury’s consideration.” More in the Focus section. The Supreme Court has handed down three opinions impacting on criminal law, Pace v. DiGuglielmo, Small v. United States, and Pasquantino v. United States. Pace holds a state post-conviction petitions filed out of time will not normally toll the one-year statute of limitations requirements of the AEDPA, however the Court appears to hold open the possibility that some out of time petitions will, in fact, toll the AEDPA's draconian one-year rule. In Small (felon in possession law doesn't apply to those who get their felony overseas) and Pasquantino (plot to defraud a foreign government of tax revenue violates the U.S. federal wire fraud law) the Court examines obscure areas of federal criminal law against the backdrop of the Court's ongoing discussion (as noted in Atkins) of how US law fits in to the global legal landscape, including deference to foreign courts and how much leeway US courts have to interpret foreign law. Two other cases are worthy of brief note. In Boyde v. Brown the Ninth Circuit has granted relief, in an opinion by Judge Kozinski, holding trial counsel erred in not presenting Boyde's history of being abused and by comparing Boyde to an infamous mass murderer. In State v. Brown the North Carolina Court of Appeals, in this former capital case, denies relief on a fairly unusual claim that the proceedings below were impermissible as the matter was tried before a popularly elected local judge (brief here). The NAACP Legal
Defense Fund has released
a new report that indicates that the number of people sentenced to
death last year fell to the lowest level since the Supreme Court
reinstated the penalty in 1976, this is the second year in the row
these post-Gregg lows have been hit. Additionally, there were 125
people sent to death row in 2004, down from 144 the previous year and
the sixth consecutive annual decline, in 1998, the first full year of
the Weekly, 300 people received death sentences. Recently
published is: Executed on a Technicality: Lethal
Injustice on America's Death Row, by Professor David Dow (University of
Houston Law Center and founder of the Texas Innocence Network),
provides case histories illustrating serious flaws in the death penalty
system. In New Jersey a poll released this week indicates
by nearly a 2-1 margin for that state's version of LWOP.
On the web at http://capitaldefenseweekly.com/archives/050425.htm. As always, thanks for reading. - k |
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| April 22, 2005 Bronshtein v.
Horn leads off this edition. The District Court in Bronstein
had granted relief as to both conviction (jury charge on first degree
murder) and sentence (failing to define life as life without
parole). Although the panel reinstated Bronstein's conviction,
the vacatuer of the death sentence must remain as the prosecution put
future dangerousness in play through its questioning of witnesses and
closing but the trial court refused to give a "Simmons" charge that
life in this case meant life without parole.
Three other favorable dispositions are also noted. In Ex Parte Dale Scheanette the Texas Court of Criminal Appeals has remanded, without substantive explanation, for an evaluation of claims relating to ineffective assistance of counsel. The Utah Supreme court in State v. Lovell, permits withdrawal of a guilty plea that subsequently resulted in a death sentence as the thirty day right to withdrawal a plea under state precedent begins to run after entry of the judgment of conviction and not 30 days after the plea was taken, even where death is imposed. Finally, in State v. Fudge a seriously fractured Arkansas Supreme Court appears to uphold relief on claims of ineffective assistance of counsel, however see the disclaimer below. Milton Mathis received a stay of his April 20th execution death on an order from the Texas Court of Criminal Appeals on claims relating to mental retardation. In Arizona, Mohave County Superior Court Judge Richard Weiss overturned the 1989 murder conviction of Clarence David Hill, when DNA evidence surfaced that indicated Hill had not killed his landlord, Dale Edmundson, who was burned alive in Mohave County. In Kentucky, the civil trial on whether lethal injection inflicts undue pain and suffering heard testimony that the last person executed in that state was likely conscious during the entire of the execution, but paralyzed. This week's focus is a story of leaving death row, Deadman Walking into Life, a letter by Gary Hart II. Hart 's death sentence was invalidated in light of Roper v. Simmons. Project Hope is covering the inspiring story of Lisa Thomas who is walking from Alabama to Washington D.C. Ms. Thomas is walking to end the death penalty and hunger. She's being followed by a friend in a van, covered with signs referring to both. Full edition here As always, thanks for reading. - k |
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| April 15, 2005 Leading off this week is not a a case but a vote. The New York Assembly's Code Committee voted 11-7 against the reinstatement of the death penalty after writing a fairly detailed report of the testimony relating to the failures of the death penalty in that state. Although two men reportedly remain housed on death row in that state, capital punishment is considered dead in the Empire State with its obituary already published. New York becomes the thirteenth state to relinquish capital punishment as a sentencing option. Like neighboring Massachusetts, which has annually seen attempts to bring back capital punishment following the Supreme Judicial Court's striking down of that state's death penalty, the New York legislature appears likely to attempt to bring back state killing again next session. Few decisions are actually noted this week. In Alabama, the state supreme court held in Ex parte Jenkins that the Court of Criminal Appeals improperly held that claims in an amended petition could not be considered as they "did not relate back" since civil rules do not apply to Rule 32 petitions. The North Carolina Supreme Court in State v. Chapman vacates in light of Roper v. Simmons. In Lovitt v. True not even Ken Starr could save Robin Lovitt from this Kafkaesque Fourth Circuit opinion that holds failure to investigate (and hence present) evidence of a "nightmarish childhood" that included an "extensive history of childhood sexual abuse and rape" was not required under Supreme Court precedent. The Lancet in its April 16th edition will publish an article authored by three U.S. anesthesiologists and one lawyer that analyzed toxicology results from 49 executions concluding that the executed were likely conscious after being administered the lethal drug cocktail that kills them. Specifically, the authors studied toxicology reports from 49 executed inmates - seven in Arizona, eight in Georgia, 11 in North Carolina and 23 in South Carolina. They found that 43 out of the 49 inmates had post-mortem blood thiopental levels below that required for surgery. And 21 inmates had levels consistent with awareness. "Thus," the authors concluded, "lethal injection anesthesia methodology is flawed and some inmates might have experienced awareness and suffering during execution." Brooklyn
Law School's Journal of Law and Policy has several articles of note
in its most recent edition. Among the most notable contents of
Journal is Alex Lesman's Note: STATE
RESPONSES TO THE SPECTER OF RACIAL DISCRIMINATION IN CAPITAL
PROCEEDINGS: THE KENTUCKY RACIAL JUSTICE ACT AND THE NEW JERSEY SUPREME
COURT'S PROPORTIONALITY REVIEW PROJECT, which attempts to breath
life back into claims relating to race and the death penalty. Of
other note is that edition's focus on scientific evidence: NUCLEAR
AND MITOCHONDRIAL DNA IN THE COURTROOM (Julian Adams, Ph.D.); MITOCHONDRIAL
DNA: EMERGING LEGAL ISSUES (Edward K. Cheng); COMPOSITIONAL
ANALYSIS OF BULLET LEAD AS FORENSIC EVIDENCE (Michael O.
Finkelstein & Bruce Levin, Ph.D.); and FINGERPRINT
EVIDENCE (Sandy L. Zabell, Ph.D.)
The Texas Senate approved
a law (S.B. 60) that would require
capital juries to be advised that if they did not return a death
sentence the defendant would be required to serve life with no parole;
life with parole would no longer be an option. Last Friday an
interesting array of former federal judges, prosecutors and innocence
projects filed this cert.
amicus brief in Kelley v. Crosby, a Florida capital case on the
failure to disclose impeachment evidence; Kirkland & Ellis (Ken
Starr again), as well as Goldstein & Howe, are counsel of
record. On April 26, the Supreme Court will hear oral arguments
in Bell v. Thompson with the issue before the Court being whether or
not the Sixth Circuit abused its discretion by withdrawing its opinion
affirming the denial of habeas corpus relief six months after Federal
Rule of Appellate Procedure 41(d)(2)(D) made issuance of the
mandate mandatory; more at the SCOTUSBlog.
Kurdish leader and new Iraqi President Jalal Talabani indicates he will
believes the death penalty is inappropriate even for Saddam
Hussein. A Georgia Superior Court overturned the murder
conviction of death row inmate Willie Palmer after finding that
prosecutors hid a $500 payoff to the state's key trial witness, an act
the judge said was "in defiance of (the state's) legal and ethical
duties."
Since the last edition there have been no executions in the States. As always, thanks for reading. - k Full edition is here. |
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| April 8, 2005 Leading of this week is People v. Harlan. The court below in Harlan found that jurors
had used "the Bible during deliberations." On appeal the
Colorado Supreme Court, holding that the resulting death sentence was
inappropriate, stated that "it was improper for a juror to bring the
Bible into the jury room to share with other jurors the written
Leviticus and Romans texts during deliberations; the texts had not been
admitted into evidence or allowed pursuant to the trial court's
instructions." The Court ultimately concludes that all jurors
bring their own "backgrounds and beliefs to bear on their deliberations
but [must] give ultimate consideration only to the facts admitted and
the law as instructed."
In Johnson v. United States the Supreme Court examines what happens when a federal sentence has been enhanced due to prior state court convictions but those prior state convictions are vacated subsequent to the imposition of the federal sentence. Specifically, the Court holds that if Johnson's attempts to vacate his prior state convictions were committed due diligence then he would have one year from those convictions being vacated to challenge his federal sentencing enhancements. Here, however, the Court finds that Johnson did not act with due diligence. Two Louisiana Supreme Court opinions of note are also had. In State v. Higgins the Louisiana Supreme Court vacates a capital murder conviction and imposes a second degree murder conviction in light of a questionable state's witness. In State v. Citizen the same court has held that "the trial judge may halt the prosecution of these [murder] cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel." In slower weeks both cases would have been the lead case of the week. Elsewhere, the Northern District of Iowa has held in United States v. Johnson that "in this case, 'case specific' questions are appropriate--indeed, necessary--during voir dire of prospective jurors to allow the parties to determine the ability of jurors to be fair and impartial in the case actually before them, not merely in some 'abstract' death penalty case." The Fifth Circuit in Brooks v. Dretke grants a COA on jury misconduct claims relating to a juror being arrested during the course of the trial for trying to smuggle a gun into the courthouse. Finally, in Georgia state prosecutors are again shut down in their attempt to hamstring the defense by removing counsel who refuse roll over and play dead (here Matthew Rubenstein) in Williams v. State . Prof. Jeff Kirchmeier's
article in the Oregon Law Review entitled a "Tear
in the Eye of the Law..." (83 Or. L. Rev. 631) is covered in the
"Focus" section. Although one might argue with the philosophical
points Prof. Kirchmeier raises, his extensive list of citations to
statutory and non-statutory mitigating circumstance is unbeatable,
including some mitigating circumstances in case law that are rather
unique.
Several new (or new to me) web sites of note should also be mentioned. The Defense Newsletter Blog by the Federal Public Defenders for the Southern District of Florida examines case law from the Eleventh Circuit and an exceptionally timely analysis of major federal developments in criminal law. Robert Fratta, on Texas' death row, has also started a blog. Finally, Google has provided a great new investigation tool, especially to those unfamiliar with a given area, http://maps.google.com, that gives overhead satellite and/or map views of any address in the United States (save for several national security areas). These, and a few other sites, will be added in the next update of the "handout" capital & criminal defense sites of note. Finally, the death of
Pope John Paul II has again pushed the issue of the morality of capital
punishment back onto the center of the national stage in light of his
tireless efforts to reaffirm the sanctity of all life. The
Conference of Catholic Bishops have republished on the net his views
on the subject.
Since the last edition Glen Ocha was executed in Florida; Ocha was a volunteer. Vernon Evans in Maryland received an unopposed stay. As always, thanks for reading. - k Full edition is here. |
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April 1, 2005 The Supreme Court's
decision in Rhines
v. Weber leads off this week. The federal district court
determined Rhines filed a mixed petition of exhausted and unexhausted
claims challenging his conviction and death sentence. Rhines moved for
a stay of the federal habeas corpus proceeding so he could return to
state court and exhaust his unexhausted claims. By the time of
the district court's decision the AEDPA's one-year statute of
limitations had already run, however the court granted the
stay. The Tenth Circuit held a district court can not hold
a federal habeas petition in abeyance for purposes of exhaustion.
Reversing, the Supreme Court holds that a district court may, in
circumstances like those here, stay federal habeas litigation so that a
petitioner can exhausts his remedies.
The other lead off case, Floyd v. State, is fairly straight forward. The prosecution in Floyd failed to turn over evidence someone else committed the crime. The trial court in post-conviction refused to even hold an evidentiary hearing. The Florida Supreme Court remanded. On remand the trial court again decided not to grant relief. The Floyd Court, not bothering to let the trial court have yet another chance to correct itself, grants relief. Specifically, relief was granted as the confidence in the outcome of the trial was sufficiently undermined to warrant relief as the state failed to reveal "that two unidentified men were acting suspiciously at the place and time of the crime [and] that the testimony of the defendants cell mate regarding the defendant's alleged confession was unworthy of reliance." In other case law developments, the Supreme Court has granted certiorari on California's death penalty scheme in Brown v. Sanders. The Florida Supreme Court in Parker v. State has ordered an evidentiary hearing on counsel's failing to adequately prepare for trial. The Sixth Circuit in Bates v. Bell grants relief on penalty phase closing by the prosecution that was more than a little over the line of what is acceptable argument. A great new law review article on admissibility of evidence in the penalty phase, "When Trial and Punishment Intersect: New Defects in the Death Penalty,” 26 W. New Eng. L. Rev. 233( 2004), Alexander Bunin, is the Focus section this week. The article examines the interplay of Ring v. Arizona, Crawford v. Washington and Eighth Amendment jurisprudence. The out take below gives a flavor of Bunin's article Elsewhere, the ScotusBlog has a great look at the oral arguments in Medellin and the recent cert grant in Sanders. In Oklahoma a County District Judge has found Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. In Virginia a two-year study of 11 wrongful conviction cases in Virginia found that mistaken eyewitness identification is the leading reason innocent people have been convicted in the state. Two new "resources" are
also noted, both of which are "blawgs" or law related web
logs. The first is the Ninth Circuit Blog where
federal defenders cover criminal law developments in, as if the name
didn't already give it away, the Ninth Circuit. The other is an
interesting experiment with "blogging" by Vernon Evans who was
scheduled to be executed the week of April 18; at the site Evans
answers questions posed to him by the public but does not appear (at
least at the moment) to be used to generate help with gaining clemency.
Finally, if you can't
shill for your good friends who can you shill for? Bill Pelke's
book, Journey
of Hope, details the birth of the Journey of Hope.... From Violence to
Healing after the murder of his grandmother. The book is
featured by the Death Penalty
Information Center (see below) this week as a new resource.
Bill is currently the chairman of the board of the National Coalition
to Abolish the Death Penalty.
As always, thanks for reading. - k Full edition is here. |
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| March 24, 2005 The Court's holding in Brown
v. Payton leads of the week. The Payton Court ultimately concludes
that although there was error in the case (a prosecutor's misstatement
of the law concerning Payton's religious conversion in prison as
mitigation) but that the state court's adjudication was simply not
unreasonable enough to warrant relief. The decision is especially
note worthy for several reasons. First, the Court appears to suggest
that had this case reached them on direct appeal rather than from
federal habeas corpus review relief may well have been granted.
Second, it marks the first time (and if not the first, one of the first
times) Justice Breyer has been the deciding vote for death.
Finally, as the dissent points out at some length, the state conceded
that the prosecution's closing was erroneous.
In another decision, the Court in Muehler v. Menas, holds handcuffing occupants of a house that are not the subject or target of a search warrant did not violate the Fourth Amendment. Elsewhere, in Illinois legislation continues to move throughout the legislature changing the burden of proof in death penalty cases to beyond all doubt from beyond a reasonable doubt. The March 23 scheduled execution of Steven Staley in Texas has been stayed on grounds that he may be incompetent. International LawProf Sarah H. Cleveland of Texas Law was published in the Washington Post this past Sunday for an essay entitled Is There Room for the World in Our Courts?. A new Zogby poll finds that support among Catholics for the death has dropped to 48% as the Chuch's Bishops have assumed a more assertive role in its denunciation of state killing during Holy Week. Finally, the convictions of dozens of death row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice." As always, thanks for reading. - k Full edition here |
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