Three wins dominate the issue, Harries v. Bell, Silva v. Brown and Ex parte Perkins. All three lead cases deal with barriers preventing fact-finders from hearing evidence that could aid in truth finding. In Harries v. Bell, for example, trial counsel failed to investigate and present certain mitigation evidence depriving the jury of the information it needed to fully determine whether Harries should live or die. In Silva v. Brown the prosecution failed to disclose to that its star witness had severe psychiatric problems but if they went to a psychiatrist before testifying it would void the deal in place. In Ex parte Perkins the Alabama Court of Criminal Appeals seemingly permits broad post-conviction discovery of all records relating to Perkins and most of the prosecutor's file -- everything but work-product.
The Supreme Court in a short order placed on hold the retrial of Kenneth Richey in Ohio. For those who haven't been following the case, Richey has an unusually strong claim of innocence. The problem for Richey is that Ohio's post-conviction procedures are remarkably bad & the question on certiorari is likely to be that the AEDPA lack of meaningful review prevents habeas relief in this case.
On the Streamlined Procedures Act front this week Conference of Chief Justices, representing almost every state judicial system in the country, called on Congress study the whole issue further before rushing the SPA into law as, in their words, "federal habeas corpus review of both capital and non-capital convictions is an established part of the legal structure of this country." Ted Frank of American Enterprise Institute debated Washington and Lee professor David Bruck about federal habeas reform on Legal Affairs this week, it looks like David won the argument.
New resources this week include DoJ's issuance of new recommended protocols for forensic examiners investigating sexual assault. Professors Kamin & Pokorak have completed a new work entitled Death-Qualification and True Bifurcation: Building on the Massachusetts Governor's Council's Work, to appear in the Indiana Law Journal, Vol. 80, p. 131, 2005, but now available on SSRN. The dedication of the National Death Penalty Archive at the State University of New York at Albany will take place on August 9, 2005, including portions of the Capital Jury Project I's archives.
Looking
ahead to next edition, the Fifth Circuit on Tuesday upheld Louisiana's
infamous Supreme Court Rule XVII, § 3(B) barring most foreign born
attorneys, especially those visiting as part of Reprieve UK (and
similar organizations) in LeClerc, et al v. Webb.
In a potential innocence case, the Eighth Circuit
has granted relief on claims of ineffective assistance of counsel in White v. Roper as counsel's "investigation
was too superficial to reveal the comparative strength" of eyewitnesses
who tended to exonerate Leamon White. The Eastern District of
Texas
granted a stay of Ricky Lewis's September execution date, Lewis v. Dretke.
In the past few issues I have overlooked three annual events that didn't deserve to be given short shrift. The NAACP LDF's annual Airlie Conference just completed and was, by all accounts, a great experience and a shining example of what is going right in the face of all too often bad judges, bad laws, and bad prosecutors. The annual Thurgood Marshall awards by the Death Penalty Information Center held its annual awards luncheon and awarded: the Thurgood Marshall Journalism Award for Excellence in the Posthumous Exploration of Innocence to Chicago Tribune reporters Steve Mills and Maurice Possley for their article about the capital conviction of Cameron Todd Willingham, who was executed in Texas last year; the Award for Excellence in Print Journalism to Carla Crowder, a reporter with The Birmingham News for her achievements in giving voice to both sides of the death penalty debate in Alabama; and Directors Katy Chevigny and Kirsten Johnson of the New York-based Big Mouth Productions will receive the Award for Excellence in Broadcast Journalism for their documentary “Deadline.” Finally, the Santa Clara University School of Law just completed the annual Bryan R. Shechmeister Death Penalty College which spent six days teaching 72 lawyers from 23 different states on the fundamentals of winning in capital cases. In these self-congratulatory times when execution and new death sentencing rates are remarkably down it has been too easy to forget the fundamentals and the tireless heroes who have long sacrificed to bring us to the historic moment we are now facing, my apologies for any unintentional slight.
Finally, on an at least an experimental basis, I have set up (once-again) a daily updates page, that will, hopefully, provide coverage within 36-hours of most opinions released and include developments that wouldn't otherwise be covered here or on various other lists.
As always, thanks for reading. - k
Executed
July
27 Kevin Conner Indiana
28 David Martinez Texas
August
4 George Sibley Alabama
Serious X- Dates27 Kevin Conner Indiana
28 David Martinez Texas
August
4 George Sibley Alabama
August
10 Gary Sterling Texas
11 Kenneth Turrentine Oklahoma
23 Robert Shields Texas
31 Arthur Baird Indiana
10 Gary Sterling Texas
11 Kenneth Turrentine Oklahoma
23 Robert Shields Texas
31 Arthur Baird Indiana
Leading Cases
Harries v. Bell,
2005 U.S. App. LEXIS 15427 (6th Cir 7/28/2005) Relief granted on claims
relating to failure to investigate, and hence present, mitigation
evidence.
Silva v. Brown,
2005 U.S. App. LEXIS 15252 (9th Cir 7/26/2005) Failure to
disclose to
"the defense that the plea agreement that secured the testimony of the
prosecution's star witness, Norman Thomas, required Thomas not to
undergo a psychiatric evaluation before testifying" was error under
Brady.
Ex
parte Perkins, 2005 Ala. Crim. App. LEXIS 136 (AlaCrimApp
7/29/2005)
Alabama Court of Criminal Appeals, seemingly issues order permitting
discovery of everything but work-product.
Miller-El v. Dretke,
2005 U.S. App. LEXIS 15476 (5th Cir 7/28/2005) Fifth Circuit
in Miller-El III finally gets it right, remand and
relief ordered.
Rollins v. Horn, 2005 U.S. Dist. LEXIS 15493 (ED. Pa. 7/26/2005) Relief granted as "Petitioner's counsel was ineffective in failing to adequately prepare for the penalty phase of the trial, and failing to investigate potentially mitigating evidence concerning Petitioner's abusive upbringing [and] the Pennsylvania Supreme Court unreasonably applied federal law established in Boyde in reviewing a potentially ambiguous jury instruction regarding mitigating and aggravating factors at sentencing."
Rollins v. Horn, 2005 U.S. Dist. LEXIS 15493 (ED. Pa. 7/26/2005) Relief granted as "Petitioner's counsel was ineffective in failing to adequately prepare for the penalty phase of the trial, and failing to investigate potentially mitigating evidence concerning Petitioner's abusive upbringing [and] the Pennsylvania Supreme Court unreasonably applied federal law established in Boyde in reviewing a potentially ambiguous jury instruction regarding mitigating and aggravating factors at sentencing."
Decisions Favoring Death
Brown v Dretke,
2005 U.S. App. LEXIS 15612 (5th Cir 7/29/2005) COA denied on
claims:
"(1) the trial court's failure to sever Brown's trial from that of his
co-defendant; (2) his trial counsel's ineffective assistance; (3) the
trial court's limitation of cross-examination of prosecution witness
Mary Patrick; (4) the trial court's admission of unadjudicated criminal
conduct during the punishment phase of trial; and (5) the adjudication
of his state habeas application by a judge who did not preside over the
trial or a portion of the state habeas hearing."
Salazar v. Dretke , 2005 U.S. App. LEXIS 15610 (5th Cir 7/29/2005) The application of a state bar on juror testimony relating to alleged misconduct upheld . Specifically, one of the jurors allegedly had information concerning parole calculations if the jury chose to impose a life -- unfortunately the information was wrong.
Bradshaw v. Post, 2005 U.S. App. LEXIS 15575 (6th Cir 7/29/2005) A split panel of the Sixth Circuit refuses to use Rule 60 to reopen the proceeding below to permit additional discovery.
Boltz v. Mullin, 2005 U.S. App. LEXIS 15370 (10th Cir 7/27/2005) Relief denied on ineffective assistance, sufficiency of the "continuing threat" aggravating factor found by the jury, and failure to instruct the jury on heat of passion manslaughter.
Richie v. Mullin, 2005 U.S. App. LEXIS 15232 (10th Cir 7/27/2005) Defense counsel did not render ineffective assistance of counsel in cross-examining Dr. Robert Hemphill, a medical examiner employed by the State of Oklahoma.
Reed v. Dretke, 2005 U.S. Dist. LEXIS 15019 (ND Tx 7/26/2005) Northern District of Texas denies relief on grab bag of issues, including use of perjured testimony, Batson, and whether teh special questions were sufficient for the mitigation evidence offered.
Banks v. Crosby, 2005 U.S. Dist. LEXIS 15427 (ND FL 7/29/2005) Petition for habeas relief filed out of time.
People v. Kennedy, 2005 Cal. LEXIS 8149 (CA 7/25/2005) Relief denied including: eyewitness identification testimony; grant of transactional immunity for one of prosecution's witnesses; alleged prosecutorial misconduct; and instructions relating to prior crimes in the penalty phase jury instructions.
People v. Blair, 2005 Cal. LEXIS 8227 (CA 7/28/2005) Affirming on issues relating to self-representation, delay in adjudicating the appeal (including eight years to certify record), and advisory counsel's ineffectiveness for being absent from the courtroom, preparing the experts as he did, failing to keep confidential the appointment of a defense pathologist, or failing to present evidence regarding defendant's incompetence to stand trial.
State v. Coleman, 2005 Ohio 3874 (Ohio Ct App 7/29/20005) Relief denied on claim another committed the crime for which Coleman was sentenced to death, as well as claims relating to Brady.
Salazar v. Dretke , 2005 U.S. App. LEXIS 15610 (5th Cir 7/29/2005) The application of a state bar on juror testimony relating to alleged misconduct upheld . Specifically, one of the jurors allegedly had information concerning parole calculations if the jury chose to impose a life -- unfortunately the information was wrong.
Bradshaw v. Post, 2005 U.S. App. LEXIS 15575 (6th Cir 7/29/2005) A split panel of the Sixth Circuit refuses to use Rule 60 to reopen the proceeding below to permit additional discovery.
Boltz v. Mullin, 2005 U.S. App. LEXIS 15370 (10th Cir 7/27/2005) Relief denied on ineffective assistance, sufficiency of the "continuing threat" aggravating factor found by the jury, and failure to instruct the jury on heat of passion manslaughter.
Richie v. Mullin, 2005 U.S. App. LEXIS 15232 (10th Cir 7/27/2005) Defense counsel did not render ineffective assistance of counsel in cross-examining Dr. Robert Hemphill, a medical examiner employed by the State of Oklahoma.
Reed v. Dretke, 2005 U.S. Dist. LEXIS 15019 (ND Tx 7/26/2005) Northern District of Texas denies relief on grab bag of issues, including use of perjured testimony, Batson, and whether teh special questions were sufficient for the mitigation evidence offered.
Banks v. Crosby, 2005 U.S. Dist. LEXIS 15427 (ND FL 7/29/2005) Petition for habeas relief filed out of time.
People v. Kennedy, 2005 Cal. LEXIS 8149 (CA 7/25/2005) Relief denied including: eyewitness identification testimony; grant of transactional immunity for one of prosecution's witnesses; alleged prosecutorial misconduct; and instructions relating to prior crimes in the penalty phase jury instructions.
People v. Blair, 2005 Cal. LEXIS 8227 (CA 7/28/2005) Affirming on issues relating to self-representation, delay in adjudicating the appeal (including eight years to certify record), and advisory counsel's ineffectiveness for being absent from the courtroom, preparing the experts as he did, failing to keep confidential the appointment of a defense pathologist, or failing to present evidence regarding defendant's incompetence to stand trial.
State v. Coleman, 2005 Ohio 3874 (Ohio Ct App 7/29/20005) Relief denied on claim another committed the crime for which Coleman was sentenced to death, as well as claims relating to Brady.
Noncapital Opinions of Note
Miller v. Dretke, No. 04-40419 (5th Cir 7/28/2005) Relief granted on failure to investigate and present evidence at noncapital sentencing relating to the mental and emotional injuries flowing from an earlier car accident.
Outtakes from Opinions of Note
Harries v. Bell,
2005 U.S. App. LEXIS 15427 (6th Cir 7/28/2005) Relief granted on claims
relating to failure to investigate, and hence present, mitigation
evidence.
Harries also maintains that he received ineffective assistance of counsel during the sentencing phase because his attorneys failed to investigate and, consequently, present mitigating evidence. The district court agreed.
1. Performance
To evaluate counsel's performance, we "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. Strickland mandates that we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and make every effort "to eliminate the distorting effects of hindsight." Id. at 689.
Counsel's constitutional duty to investigate a defendant's background in preparation for the sentencing phase of a capital trial is "well-established." Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir. 2001); see also Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997). The "prospect of being put to [*12] death unless counsel obtains and presents something in mitigation" magnifies counsel's responsibility to investigate. Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999). And notwithstanding the deference Strickland requires, neither this court nor the Supreme Court has hesitated to deem deficient counsel's failure to fulfill this obligation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 523-28, 156 L. Ed. 2d 471, 123 S. Ct. 2527 (2003) (concluding that counsel's failure to expand their investigation of the defendant's personal background, which included physical and sexual abuse, beyond the presentence [**5] investigation and Department of Social Services reports constituted constitutionally deficient performance); Williams v. Taylor, 529 U.S. 362, 395, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) (finding counsel's failure "to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood" deficient); Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir. 2000) (concluding that defense counsel's failure to investigate the defendant's family, social, or psychological background "constituted [*13] representation at a level below an objective standard of reasonableness").
Accordingly, "our principal concern in deciding whether [counsel] exercised reasonable professional judgment is . . . whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Harries's] background was itself reasonable." Wiggins, 539 U.S. at 522-23 (internal quotations and citations omitted). "In assessing counsel's investigation, we must conduct an objective review of their performance, measured for 'reasonableness under prevailing professional norms.'" Id. at 523 (quoting Strickland, 466 U.S. at 688). The Tennessee Supreme Court established the standard for defense counsel in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), where it stated that competence would be measured by the "duties and criteria" set forth inUnited States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197 (D.C. Cir. 1973), the Sixth Circuit standard in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and the American Bar Association Standards for the Administration of Criminal [*14] Justice. More recent ABA Guidelines, which the United States Supreme Court has recognized as reflecting prevailing professional norms, emphasize that "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Wiggins, 539 U.S. at 524 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases � 11.4.1 (C), p. 93 (1989) and adding emphasis).
Guided by the binding precedent just discussed, we cannot escape the conclusion that Harries's counsel failed to conduct a constitutionally adequate investigation. Counsel limited their investigation to contacting by telephone Harries's mother and brother, sending requests for information to some of the institutions in which Harries had been confined, and interviewing Harries, Harries's codefendant, and two state witnesses. Although counsel requested two court-ordered competency evaluations, they declined to seek the assistance of a mental health expert or conduct a thorough investigation of Harries's mental health, even after Harries's [*15] mother alerted them that Harries suffered from mental illness. Nor did counsel adequately investigate Harries's family background, despite indications of Harries's troubled childhood.
Attempting to defend their failure to investigate and present this mitigating evidence, Harries's counsel pointed to Harries's instructions that they not pursue mental illness as a defense and their belief that evidence of Harries's background would not persuade the jury. But our prior decisions foreclose such arguments here. In Coleman v. Mitchell, we reiterated that "defendant resistance to disclosure of information does not excuse counsel's duty to independently investigate." 268 F.3d at 449-50. We cited our prior decision in Carter v. Bell, in which we emphasized: "The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Id. at 450 (quoting Carter, 218 F.3d at 596). In Austin v. Bell, we rejected counsel's argument that he "did not present any mitigating evidence [*16] because he did not think that it would do any good," concluding that such reasoning "did not reflect a strategic decision, but rather an abdication of advocacy" given the availability of witnesses willing to testify on the defendant's behalf. 126 F.3d at 849.
The Supreme Court's recent decision in Rompilla v. Beard, 162 L. Ed. 2d 360, 125 S. Ct. 2456 (2005) reconciles easily with these prior holdings. Defense counsel in Rompilla, like Harries's counsel here, abandoned their search after interviewing the defendant and a few family members (in addition to three mental health witnesses) without developing any useful mitigation evidence. Id. at 2462-63. [**6] In dicta, the Rompilla Court noted that "there [was] room for debate about trial counsel's obligation to follow" other leads, as counsel may have had good reason to think further investigation would have been fruitless. Id. But interviews conducted by Harries's counsel, unlike Rompilla, produced viable leads regarding Harries's poor mental health and troubled family background. Counsel's failure to follow these promising leads leaves no "room for debate" that their truncated [*17] investigation was deficient.
We thus conclude that "counsel failed to conduct a constitutionally adequate pretrial investigation into potential mitigation evidence which, in turn, hampered [their] ability to make strategic choices regarding the penalty phase proceedings." Coleman, 268 F.3d at 447 n.15 (internal citation, quotation marks, and alterations omitted).
Harries also maintains that he received ineffective assistance of counsel during the sentencing phase because his attorneys failed to investigate and, consequently, present mitigating evidence. The district court agreed.
1. Performance
To evaluate counsel's performance, we "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. Strickland mandates that we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and make every effort "to eliminate the distorting effects of hindsight." Id. at 689.
Counsel's constitutional duty to investigate a defendant's background in preparation for the sentencing phase of a capital trial is "well-established." Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir. 2001); see also Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997). The "prospect of being put to [*12] death unless counsel obtains and presents something in mitigation" magnifies counsel's responsibility to investigate. Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999). And notwithstanding the deference Strickland requires, neither this court nor the Supreme Court has hesitated to deem deficient counsel's failure to fulfill this obligation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 523-28, 156 L. Ed. 2d 471, 123 S. Ct. 2527 (2003) (concluding that counsel's failure to expand their investigation of the defendant's personal background, which included physical and sexual abuse, beyond the presentence [**5] investigation and Department of Social Services reports constituted constitutionally deficient performance); Williams v. Taylor, 529 U.S. 362, 395, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) (finding counsel's failure "to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood" deficient); Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir. 2000) (concluding that defense counsel's failure to investigate the defendant's family, social, or psychological background "constituted [*13] representation at a level below an objective standard of reasonableness").
Accordingly, "our principal concern in deciding whether [counsel] exercised reasonable professional judgment is . . . whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Harries's] background was itself reasonable." Wiggins, 539 U.S. at 522-23 (internal quotations and citations omitted). "In assessing counsel's investigation, we must conduct an objective review of their performance, measured for 'reasonableness under prevailing professional norms.'" Id. at 523 (quoting Strickland, 466 U.S. at 688). The Tennessee Supreme Court established the standard for defense counsel in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), where it stated that competence would be measured by the "duties and criteria" set forth inUnited States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197 (D.C. Cir. 1973), the Sixth Circuit standard in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and the American Bar Association Standards for the Administration of Criminal [*14] Justice. More recent ABA Guidelines, which the United States Supreme Court has recognized as reflecting prevailing professional norms, emphasize that "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Wiggins, 539 U.S. at 524 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases � 11.4.1 (C), p. 93 (1989) and adding emphasis).
Guided by the binding precedent just discussed, we cannot escape the conclusion that Harries's counsel failed to conduct a constitutionally adequate investigation. Counsel limited their investigation to contacting by telephone Harries's mother and brother, sending requests for information to some of the institutions in which Harries had been confined, and interviewing Harries, Harries's codefendant, and two state witnesses. Although counsel requested two court-ordered competency evaluations, they declined to seek the assistance of a mental health expert or conduct a thorough investigation of Harries's mental health, even after Harries's [*15] mother alerted them that Harries suffered from mental illness. Nor did counsel adequately investigate Harries's family background, despite indications of Harries's troubled childhood.
Attempting to defend their failure to investigate and present this mitigating evidence, Harries's counsel pointed to Harries's instructions that they not pursue mental illness as a defense and their belief that evidence of Harries's background would not persuade the jury. But our prior decisions foreclose such arguments here. In Coleman v. Mitchell, we reiterated that "defendant resistance to disclosure of information does not excuse counsel's duty to independently investigate." 268 F.3d at 449-50. We cited our prior decision in Carter v. Bell, in which we emphasized: "The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Id. at 450 (quoting Carter, 218 F.3d at 596). In Austin v. Bell, we rejected counsel's argument that he "did not present any mitigating evidence [*16] because he did not think that it would do any good," concluding that such reasoning "did not reflect a strategic decision, but rather an abdication of advocacy" given the availability of witnesses willing to testify on the defendant's behalf. 126 F.3d at 849.
The Supreme Court's recent decision in Rompilla v. Beard, 162 L. Ed. 2d 360, 125 S. Ct. 2456 (2005) reconciles easily with these prior holdings. Defense counsel in Rompilla, like Harries's counsel here, abandoned their search after interviewing the defendant and a few family members (in addition to three mental health witnesses) without developing any useful mitigation evidence. Id. at 2462-63. [**6] In dicta, the Rompilla Court noted that "there [was] room for debate about trial counsel's obligation to follow" other leads, as counsel may have had good reason to think further investigation would have been fruitless. Id. But interviews conducted by Harries's counsel, unlike Rompilla, produced viable leads regarding Harries's poor mental health and troubled family background. Counsel's failure to follow these promising leads leaves no "room for debate" that their truncated [*17] investigation was deficient.
We thus conclude that "counsel failed to conduct a constitutionally adequate pretrial investigation into potential mitigation evidence which, in turn, hampered [their] ability to make strategic choices regarding the penalty phase proceedings." Coleman, 268 F.3d at 447 n.15 (internal citation, quotation marks, and alterations omitted).
Silva v. Brown,
2005 U.S. App. LEXIS 15252 (9th Cir 7/26/2005) Failure to
disclose to
"the defense that the plea agreement that secured the testimony of the
prosecution's star witness, Norman Thomas, required Thomas not to
undergo a psychiatric evaluation before testifying" was error under
Brady.
The
district court found (and the State does not dispute) that the
prosecution made a deal requiring that its witness Norman Thomas
refrain from undergoing a psychiatric evaluation before testifying
against Silva. The existence of this deal evidencing the prosecution's
concern as to the mental state of Thomas was obviously impeachment
evidence favorable to the defense. The deal was never disclosed to the
defense. The only question the parties debate is whether it was
material.
We answer this question in the affirmative. "We cannot overemphasize the importance of allowing a full and fair cross-examination of government witnesses whose testimony is important to the outcome of the case." Silva I, 279 F.3d at 854 (quoting United States v. Brooke, 4 F.3d 1480, 1489 (9th Cir. 1993)). Had the full extent of the prosecution's deal with Norman Thomas been disclosed to the defense, a full cross-examination of this critical witness would have revealed that even the prosecution viewed [*15] Thomas's testimony with some doubt. The existence of the deal would have put Thomas in a different light for the jury. The legitimate question whether Thomas was competent, or perhaps insane, creates, in our minds, a reasonable probability of a different result. In the absence of disclosure of Thomas's questionable mental state to the defense and the jury, the guilty verdict returned on the murder charge is not one worthy of our confidence.
We begin with an examination of Norman Thomas's role in Silva's trial. Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution's case. See, e.g., Banks, 540 U.S. at 700 (holding that impeachment evidence was material where it pertained to a witness whose testimony was "crucial to the prosecution" and was in the prosecution's own judgment "of the utmost significance"); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc) (holding that impeachment evidence was material where it pertained to "the prosecution's star witness"); see also East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997) ("When the withheld [*16] evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material." (emphasis added) (citation and internal quotation marks omitted)).
The testimony of Norman Thomas was crucial to the state's prosecution of Silva for murder. Though other evidence at trial confirmed Silva's involvement in the abduction of Thorpe and Craig and suggested Silva's recognition of his own guilt, Norman Thomas was -- as both this court and the district court have previously recognized -- the only witness who provided an account of how Thorpe's murder took place and the only witness who identified Silva as his killer. Silva I, 279 F.3d at 852, 854-55; see also Silva v. Calderon, No. CV 90-3311 DT, slip op. at 10 (C.D. Cal. Jan. 27, 1999) (prior opinion of the district court, affirmed in part and reversed in part in Silva I) ("The most devastating evidence against Silva was Thomas's testimony informing the jury of the two tales told by Shelton and Silva's contemporaneous smile."). Thomas's testimony as to Joe Shelton's account of the events and Silva's damning response [*17] is uncorroborated anywhere else in the record. Without Thomas, the prosecution had no evidence of how -- or by whom -- Thorpe was killed.
Thomas's testimony was not only the prosecution's most specific evidence about the murder; it was also the most powerful. Silva's "adoptive admission" of Shelton's account of Thorpe's murder was tantamount to a confession. "As the Supreme Court has observed: 'A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.' " Hayes, 399 F.3d at 986 (quoting Arizona v. Fulminante, 499 U.S. 279, 296, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991)) (further citation and internal quotation marks omitted). Thus Thomas's account of the exchange between Silva and Shelton was in more than one respect the crux of the prosecution's case against Silva for Thorpe's murder. See Silva I, 279 F.3d at 852, 854-55. It follows that Thomas's credibility was "a critical issue." Id. at 854. n2
Had the prosecution's deal foreclosing a psychiatric examination of Thomas been revealed, it could have had a profound effect on the jury's assessment of Thomas's testimony. As we have previously recognized, evidence that calls into question a witness's competence to testify is powerful impeachment material. See, e.g., Benn v. Lambert, 283 F.3d 1040, 1054, 1056 (9th Cir. 2002) (holding that undisclosed evidence of a crucial government witness's drug use during the defendant's trial was material because it would "reflect on [that witness's] competence and credibility as a witness"); United States v. Service Deli, Inc., 151 F.3d 938, 942-44 (9th Cir. 1998) (holding that a set of handwritten notes taken by a government attorney during an interview with the government's key witness was material "most significantly" because the notes included a statement by the witness that he had sustained a stroke that affected his memory).
The fact of the undisclosed deal bears critically and directly on Thomas's "competence and credibility as a witness." See Benn, 283 F.3d at 1056. Had the defense known that the prosecution had required, as [*19] a condition of Thomas's plea bargain, that he agree not to be psychiatrically evaluated before testifying, competent defense counsel would have ensured that the jury was "made aware of the potentially devastating fact that the state itself doubted Thomas's mental competency." Silva I, 279 F.3d at 855. As a result, the jury might not have believed the most important piece of Thomas's testimony -- his uncorroborated account of Silva's "adoptive admission" -- because of concerns about Thomas's capacity clearly to remember who said what to whom.
Such concerns would have been exacerbated by other evidence in the record that competent counsel would have brought out on cross-examination in connection with the question of Thomas's competence. In particular, Thomas's trial testimony that he was in the cabin with Laura Craig when Thorpe was killed is in conflict with Thomas's previous statement to the DA that he was with Silva when Thorpe was killed. Thomas's several admissions of confusion during his direct examination would have assumed greater importance and presumably been a subject of emphasis for the defense had the prosecution's doubts about Thomas's mental capacity [*20] been revealed. Finally, the very fact that the prosecution had sought to keep evidence of Thomas's mental capacity away from the jury might have diminished the State's own credibility as a presenter of evidence.
In sum, the fact of the prosecution's undisclosed deal with Thomas, had it been presented to the jury, would have put the testimony of this critical witness in a substantially different light, both directly, by casting doubt on the accuracy of Thomas's testimony, and indirectly, by inducing the defense to focus the jury's attention on Thomas's lapses and inconsistencies and by calling into question the prosecutor's faith in the competence of his own witness. With the murder prosecution so heavily dependent on Thomas's testimony, and given the powerful effect the revelation of the prosecution's own doubts about its star witness would likely have had on the jury, we cannot say that, in the absence of this evidence, Silva "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434.
According to the district court and the State, the impeachment of Thomas that actually occurred at trial was sufficient to render [*21] further impeachment material superfluous. Because Thomas testified that he would receive a reduced sentence for his testimony, that murder charges could still be filed against him if he did not cooperate, and that the co-conspirator Shelton had told him to place all the blame on Silva, the district court concluded that "it is not reasonably probable that such additional impeachment evidence [i.e., the undisclosed deal] would have made a difference to this jury's assessment of Silva's guilt." Along similar lines, the State urges that "since the other methods used to impeach Thomas failed, this lesser tool [i.e., the undisclosed deal] would also have failed."
Our precedent rejects this strained logic. The failure of a defendant's efforts to impeach a witness does not prove that additional impeachment would have been ineffectual, or merely cumulative, any more than it supports the opposite conclusion. As we explained in Benn v. Lambert, a defendant's conviction in spite of his attempt at impeaching a key government witness demonstrates only the inadequacy of the impeachment material actually presented, not that of the suppressed impeachment material; in light of the failure [*22] of the impeachment attempt at trial, the suppressed impeachment material may "take[] on an even greater importance." 283 F.3d at 1055; see also Service Deli, 151 F.3d at 944 ("It makes little sense to argue that because [the defendant] tried to impeach [the witness] and failed, any further impeachment evidence would be useless. It is more likely that [the defendant] may have failed to impeach [the witness] because the most damning impeachment evidence in fact was withheld by the government.").
In Benn, we held that the evidence of a witness's drug use during trial and history of misconduct was material under Brady even though the witness had been impeached at trial by questions about his history as a paid informant, his prior convictions, and benefits he received from the state in connection with his testimony in the case. 283 F.3d at 1054-56. The undisclosed evidence, we explained, "would have provided the defense with a new and different ground of impeachment" than those introduced at trial. Id. at 1056. Likewise, in Carriger v. Stewart, we determined that a witness's long history of burglaries and [*23] of lying to the police was material notwithstanding the jury's knowledge that the witness in question was a burglar testifying with immunity. 132 F.3d at 481-82. As we stressed there, "the government cannot satisfy its Brady obligation to disclose exculpatory evidence by making some evidence available and claiming the rest would be cumulative. Rather, the government is obligated to disclose all material information casting a shadow on a government witness's credibility." Id. (citation and internal quotation marks omitted) (emphasis in original).
In Silva's case, the undisclosed evidence was not duplicative of the impeachment evidence actually presented, but rather was of a different kind. It "would have provided the defense with a new and different ground of impeachment." Benn, 283 F.3d at 1056. Thomas's admissions on cross-examination that murder charges could still be filed against him and that Shelton had instructed him to blame Silva, could cast doubt only on Thomas's forthrightness, not his competence to testify. See Silva I, 279 F.3d at 852. The deal regarding psychiatric evaluation, of course, relates to reliability: [*24] because of questions as to Thomas's competence, completely apart from motive, was his testimony reliable?
We are influenced by the potency of the undisclosed impeachment material as well as its subject matter. Even though the jury heard Thomas admit to being confused several times during his direct examination, a few moments of hesitation on the part of a witness recalling year-old events pale in comparison to the fact that the party proffering the witness harbors such doubts about his competency that it has taken affirmative steps to prevent a psychiatric evaluation of that witness. Cf. Carriger, 132 F.3d at 481 ("Although the jury heard [the prosecution's star witness] Dunbar admit he had once slapped his stepdaughter, they heard no evidence of Dunbar's lifelong history of violence."). The fact of the undisclosed deal was not at all cumulative of the impeachment evidence Silva offered at trial; on the contrary, the fact of the prosecution's secret deal would have raised new and more powerful doubts about the reliability of Norman Thomas's testimony.
The prosecutor's own conduct in keeping the deal secret underscores the deal's importance. While the government's [*25] Brady obligation exists "irrespective of the good faith or bad faith of the prosecution," Banks, 540 U.S. at 691 (citation and internal quotation marks omitted), we have recognized that a prosecutor's assessment of undisclosed evidence can support a finding of materiality by highlighting the importance of that evidence. For example, in Singh v. Prunty, 142 F.3d 1157 (9th Cir. 1998), we considered the materiality of impeachment evidence the disclosure of which the prosecutor conceded would have been "the kiss of death" to the government's case. Id. at 1163. We "deemed [this] candid concession to be highly significant," because "the prosecutor, more than neutral jurists, can better perceive the weakness of the state's case." Id.
The prosecutor's actions can speak as loud as his words. Recently, in considering the materiality of a prosecutor's secret agreement to drop felony charges against his star witness in a capital murder trial, our en banc court found the prosecutor's furtive conduct highly relevant: "Presumably, the importance to the State's case of [the witness] James's testimony is what initially led the prosecution [*26] to make the secret deal; likewise, the importance to James's credibility of his false testimony regarding the absence of a deal is what led the prosecution to endeavor to keep that deal secret." Hayes, 399 F.3d at 987.
Here, Thomas's attorney Rex Gay declared in his uncontroverted affidavit that the prosecutor agreed with Gay's assessment that a psychiatric evaluation of Thomas could be damaging to the State's case against Silva. The prosecutor took his concern one step further, concluding that the very fact of the deal regarding Thomas's psychiatric evaluation needed to be concealed from the jury. The State's deliberate and strategic decision to make the deal and not to disclose it suggests the weakness of its post hoc claims that the evidence was irrelevant.
We answer this question in the affirmative. "We cannot overemphasize the importance of allowing a full and fair cross-examination of government witnesses whose testimony is important to the outcome of the case." Silva I, 279 F.3d at 854 (quoting United States v. Brooke, 4 F.3d 1480, 1489 (9th Cir. 1993)). Had the full extent of the prosecution's deal with Norman Thomas been disclosed to the defense, a full cross-examination of this critical witness would have revealed that even the prosecution viewed [*15] Thomas's testimony with some doubt. The existence of the deal would have put Thomas in a different light for the jury. The legitimate question whether Thomas was competent, or perhaps insane, creates, in our minds, a reasonable probability of a different result. In the absence of disclosure of Thomas's questionable mental state to the defense and the jury, the guilty verdict returned on the murder charge is not one worthy of our confidence.
We begin with an examination of Norman Thomas's role in Silva's trial. Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution's case. See, e.g., Banks, 540 U.S. at 700 (holding that impeachment evidence was material where it pertained to a witness whose testimony was "crucial to the prosecution" and was in the prosecution's own judgment "of the utmost significance"); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc) (holding that impeachment evidence was material where it pertained to "the prosecution's star witness"); see also East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997) ("When the withheld [*16] evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material." (emphasis added) (citation and internal quotation marks omitted)).
The testimony of Norman Thomas was crucial to the state's prosecution of Silva for murder. Though other evidence at trial confirmed Silva's involvement in the abduction of Thorpe and Craig and suggested Silva's recognition of his own guilt, Norman Thomas was -- as both this court and the district court have previously recognized -- the only witness who provided an account of how Thorpe's murder took place and the only witness who identified Silva as his killer. Silva I, 279 F.3d at 852, 854-55; see also Silva v. Calderon, No. CV 90-3311 DT, slip op. at 10 (C.D. Cal. Jan. 27, 1999) (prior opinion of the district court, affirmed in part and reversed in part in Silva I) ("The most devastating evidence against Silva was Thomas's testimony informing the jury of the two tales told by Shelton and Silva's contemporaneous smile."). Thomas's testimony as to Joe Shelton's account of the events and Silva's damning response [*17] is uncorroborated anywhere else in the record. Without Thomas, the prosecution had no evidence of how -- or by whom -- Thorpe was killed.
Thomas's testimony was not only the prosecution's most specific evidence about the murder; it was also the most powerful. Silva's "adoptive admission" of Shelton's account of Thorpe's murder was tantamount to a confession. "As the Supreme Court has observed: 'A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.' " Hayes, 399 F.3d at 986 (quoting Arizona v. Fulminante, 499 U.S. 279, 296, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991)) (further citation and internal quotation marks omitted). Thus Thomas's account of the exchange between Silva and Shelton was in more than one respect the crux of the prosecution's case against Silva for Thorpe's murder. See Silva I, 279 F.3d at 852, 854-55. It follows that Thomas's credibility was "a critical issue." Id. at 854. n2
Had the prosecution's deal foreclosing a psychiatric examination of Thomas been revealed, it could have had a profound effect on the jury's assessment of Thomas's testimony. As we have previously recognized, evidence that calls into question a witness's competence to testify is powerful impeachment material. See, e.g., Benn v. Lambert, 283 F.3d 1040, 1054, 1056 (9th Cir. 2002) (holding that undisclosed evidence of a crucial government witness's drug use during the defendant's trial was material because it would "reflect on [that witness's] competence and credibility as a witness"); United States v. Service Deli, Inc., 151 F.3d 938, 942-44 (9th Cir. 1998) (holding that a set of handwritten notes taken by a government attorney during an interview with the government's key witness was material "most significantly" because the notes included a statement by the witness that he had sustained a stroke that affected his memory).
The fact of the undisclosed deal bears critically and directly on Thomas's "competence and credibility as a witness." See Benn, 283 F.3d at 1056. Had the defense known that the prosecution had required, as [*19] a condition of Thomas's plea bargain, that he agree not to be psychiatrically evaluated before testifying, competent defense counsel would have ensured that the jury was "made aware of the potentially devastating fact that the state itself doubted Thomas's mental competency." Silva I, 279 F.3d at 855. As a result, the jury might not have believed the most important piece of Thomas's testimony -- his uncorroborated account of Silva's "adoptive admission" -- because of concerns about Thomas's capacity clearly to remember who said what to whom.
Such concerns would have been exacerbated by other evidence in the record that competent counsel would have brought out on cross-examination in connection with the question of Thomas's competence. In particular, Thomas's trial testimony that he was in the cabin with Laura Craig when Thorpe was killed is in conflict with Thomas's previous statement to the DA that he was with Silva when Thorpe was killed. Thomas's several admissions of confusion during his direct examination would have assumed greater importance and presumably been a subject of emphasis for the defense had the prosecution's doubts about Thomas's mental capacity [*20] been revealed. Finally, the very fact that the prosecution had sought to keep evidence of Thomas's mental capacity away from the jury might have diminished the State's own credibility as a presenter of evidence.
In sum, the fact of the prosecution's undisclosed deal with Thomas, had it been presented to the jury, would have put the testimony of this critical witness in a substantially different light, both directly, by casting doubt on the accuracy of Thomas's testimony, and indirectly, by inducing the defense to focus the jury's attention on Thomas's lapses and inconsistencies and by calling into question the prosecutor's faith in the competence of his own witness. With the murder prosecution so heavily dependent on Thomas's testimony, and given the powerful effect the revelation of the prosecution's own doubts about its star witness would likely have had on the jury, we cannot say that, in the absence of this evidence, Silva "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434.
According to the district court and the State, the impeachment of Thomas that actually occurred at trial was sufficient to render [*21] further impeachment material superfluous. Because Thomas testified that he would receive a reduced sentence for his testimony, that murder charges could still be filed against him if he did not cooperate, and that the co-conspirator Shelton had told him to place all the blame on Silva, the district court concluded that "it is not reasonably probable that such additional impeachment evidence [i.e., the undisclosed deal] would have made a difference to this jury's assessment of Silva's guilt." Along similar lines, the State urges that "since the other methods used to impeach Thomas failed, this lesser tool [i.e., the undisclosed deal] would also have failed."
Our precedent rejects this strained logic. The failure of a defendant's efforts to impeach a witness does not prove that additional impeachment would have been ineffectual, or merely cumulative, any more than it supports the opposite conclusion. As we explained in Benn v. Lambert, a defendant's conviction in spite of his attempt at impeaching a key government witness demonstrates only the inadequacy of the impeachment material actually presented, not that of the suppressed impeachment material; in light of the failure [*22] of the impeachment attempt at trial, the suppressed impeachment material may "take[] on an even greater importance." 283 F.3d at 1055; see also Service Deli, 151 F.3d at 944 ("It makes little sense to argue that because [the defendant] tried to impeach [the witness] and failed, any further impeachment evidence would be useless. It is more likely that [the defendant] may have failed to impeach [the witness] because the most damning impeachment evidence in fact was withheld by the government.").
In Benn, we held that the evidence of a witness's drug use during trial and history of misconduct was material under Brady even though the witness had been impeached at trial by questions about his history as a paid informant, his prior convictions, and benefits he received from the state in connection with his testimony in the case. 283 F.3d at 1054-56. The undisclosed evidence, we explained, "would have provided the defense with a new and different ground of impeachment" than those introduced at trial. Id. at 1056. Likewise, in Carriger v. Stewart, we determined that a witness's long history of burglaries and [*23] of lying to the police was material notwithstanding the jury's knowledge that the witness in question was a burglar testifying with immunity. 132 F.3d at 481-82. As we stressed there, "the government cannot satisfy its Brady obligation to disclose exculpatory evidence by making some evidence available and claiming the rest would be cumulative. Rather, the government is obligated to disclose all material information casting a shadow on a government witness's credibility." Id. (citation and internal quotation marks omitted) (emphasis in original).
In Silva's case, the undisclosed evidence was not duplicative of the impeachment evidence actually presented, but rather was of a different kind. It "would have provided the defense with a new and different ground of impeachment." Benn, 283 F.3d at 1056. Thomas's admissions on cross-examination that murder charges could still be filed against him and that Shelton had instructed him to blame Silva, could cast doubt only on Thomas's forthrightness, not his competence to testify. See Silva I, 279 F.3d at 852. The deal regarding psychiatric evaluation, of course, relates to reliability: [*24] because of questions as to Thomas's competence, completely apart from motive, was his testimony reliable?
We are influenced by the potency of the undisclosed impeachment material as well as its subject matter. Even though the jury heard Thomas admit to being confused several times during his direct examination, a few moments of hesitation on the part of a witness recalling year-old events pale in comparison to the fact that the party proffering the witness harbors such doubts about his competency that it has taken affirmative steps to prevent a psychiatric evaluation of that witness. Cf. Carriger, 132 F.3d at 481 ("Although the jury heard [the prosecution's star witness] Dunbar admit he had once slapped his stepdaughter, they heard no evidence of Dunbar's lifelong history of violence."). The fact of the undisclosed deal was not at all cumulative of the impeachment evidence Silva offered at trial; on the contrary, the fact of the prosecution's secret deal would have raised new and more powerful doubts about the reliability of Norman Thomas's testimony.
The prosecutor's own conduct in keeping the deal secret underscores the deal's importance. While the government's [*25] Brady obligation exists "irrespective of the good faith or bad faith of the prosecution," Banks, 540 U.S. at 691 (citation and internal quotation marks omitted), we have recognized that a prosecutor's assessment of undisclosed evidence can support a finding of materiality by highlighting the importance of that evidence. For example, in Singh v. Prunty, 142 F.3d 1157 (9th Cir. 1998), we considered the materiality of impeachment evidence the disclosure of which the prosecutor conceded would have been "the kiss of death" to the government's case. Id. at 1163. We "deemed [this] candid concession to be highly significant," because "the prosecutor, more than neutral jurists, can better perceive the weakness of the state's case." Id.
The prosecutor's actions can speak as loud as his words. Recently, in considering the materiality of a prosecutor's secret agreement to drop felony charges against his star witness in a capital murder trial, our en banc court found the prosecutor's furtive conduct highly relevant: "Presumably, the importance to the State's case of [the witness] James's testimony is what initially led the prosecution [*26] to make the secret deal; likewise, the importance to James's credibility of his false testimony regarding the absence of a deal is what led the prosecution to endeavor to keep that deal secret." Hayes, 399 F.3d at 987.
Here, Thomas's attorney Rex Gay declared in his uncontroverted affidavit that the prosecutor agreed with Gay's assessment that a psychiatric evaluation of Thomas could be damaging to the State's case against Silva. The prosecutor took his concern one step further, concluding that the very fact of the deal regarding Thomas's psychiatric evaluation needed to be concealed from the jury. The State's deliberate and strategic decision to make the deal and not to disclose it suggests the weakness of its post hoc claims that the evidence was irrelevant.
Ex parte Perkins, 2005 Ala. Crim. App. LEXIS 136 (AlaCrimApp 7/29/2005) Alabama Court of Criminal Appeals, seemingly issues order permitting discovery of everything but work-product relating to Perkins himself and the instant case.
Perkins
argues that the circuit court abused its discretion in denying him
access to records in the State's possession. Perkins contends that he
is entitled to the production of various items that are in the State's
possession including: all reports and test results pertaining to
State's Exhibit 51 and 52 -- two halves of a bloody shirt the victim
was wearing; Perkins's fingerprints and latent prints lifted in the
case and all test results pertaining to the fingerprints; all "tests
performed or relied on by Dr. [Kenneth] Warner in this case, the
results of those tests, the methodologies used, and any and all reports
and analyses made or relied on by Dr. Warner"; n8 photographs of the
victim before her death; custody logs for exhibits that were introduced
at trial; and tests conducted on the semen recovered from the rape kit.
Essentially, Perkins requests access to the State's file on this [*19] case. Perkins is entitled to this information. See Ex parte Monk, 557 So. 2d 832 (Ala. 1989); Hooks v. State, 822 So. 2d 476 (Ala.Crim.App. 2000). However, Perkins is not entitled to the State's work-product because work-product materials contained in the district attorney's file are privileged and thus not discoverable. Monk.
As part of this claim Perkins requests access to notes made by the district attorney made during voir dire examination. The State asserts that these notes are work-product and are privileged. It cites this Court's opinion in Rogers v. State, 417 So. 2d 241 (Ala.Crim.App. 1982), to support its assertion.
In Rogers, this Court held that the original notes made by a detective while investigating a case were work-product and were privileged. However, Alabama has never specifically addressed whether a prosecutor's notes made during voir dire examination are likewise privileged. Our neighboring states of Florida, Georgia, and Mississippi have addressed this issue and have held that a prosecutor's personal notes compiled during voir dire examination are work-product and are not discoverable by the defense. [*20] See Patton v. State, 784 So. 2d 380 (Fla. 2000); Thorson v. State, 721 So. 2d 590 (Miss. 1998); Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988). See also State v. Carter, 641 S.W.2d 54 (Mo. banc 1982). We join those jurisdictions that hold that a prosecutor's notes compiled during jury selection are privileged and are not subject to discovery.
Essentially, Perkins requests access to the State's file on this [*19] case. Perkins is entitled to this information. See Ex parte Monk, 557 So. 2d 832 (Ala. 1989); Hooks v. State, 822 So. 2d 476 (Ala.Crim.App. 2000). However, Perkins is not entitled to the State's work-product because work-product materials contained in the district attorney's file are privileged and thus not discoverable. Monk.
As part of this claim Perkins requests access to notes made by the district attorney made during voir dire examination. The State asserts that these notes are work-product and are privileged. It cites this Court's opinion in Rogers v. State, 417 So. 2d 241 (Ala.Crim.App. 1982), to support its assertion.
In Rogers, this Court held that the original notes made by a detective while investigating a case were work-product and were privileged. However, Alabama has never specifically addressed whether a prosecutor's notes made during voir dire examination are likewise privileged. Our neighboring states of Florida, Georgia, and Mississippi have addressed this issue and have held that a prosecutor's personal notes compiled during voir dire examination are work-product and are not discoverable by the defense. [*20] See Patton v. State, 784 So. 2d 380 (Fla. 2000); Thorson v. State, 721 So. 2d 590 (Miss. 1998); Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988). See also State v. Carter, 641 S.W.2d 54 (Mo. banc 1982). We join those jurisdictions that hold that a prosecutor's notes compiled during jury selection are privileged and are not subject to discovery.
Around the Web
DPIC notes:
Convictions Overturned In Pennsylvania and New Jersey through DNA Testing
Thomas Doswell of Pennsylvania and Larry Peterson of New Jersey recently had their convictions overturned as a direct result of DNA testing. Each defendant had served 18 years in prison. In Peterson's case, the prosecution had sought the death penalty but the jury could not agree and he was sentenced to life. His case marked the first time a New Jersey court has overturned a conviction because of DNA evidence. Both reversals stemmed from the work of attorneys at the Innocence Project of the Benjamin Cardoza School of Law in New York City.
Though he has consistently maintained his innocence, Doswell was convicted of the 1986 rape of a nursing home employee. After a request for DNA testing filed by the Innocence Project, a Common Pleas court judge ordered evidence from the crime scene tested and the results cleared Doswell of any involvement in the crime. He was released from prison following the state's withdrawal of charges. In 1999, Doswell had filed a motion with the court to allow DNA testing, but a judge ruled in favor of prosecutors who challenged the motion because it was filed three weeks too late. "Really, this could have been taken care of in 1999. . . . I don't see it as a victory. It's a major loss of 18 years that nobody can compensate; nobody can give back. This is a guy who got railroaded," said one of Doswell's attorneys, James DePasquale. (Pittsburgh Tribune-Review, July 30, 2005; Associated Press, Aug. 2, 2005).
In New Jersey, the reviewing judge has ordered a new trial for Peterson based on the results of DNA testing on 30 hairs found at the crime scene and mircroscopic examinations of 130 additional hairs that were not DNA tested. Prosecutors stated that they will retry the case based on the testimony of five witnesses who claim Peterson told them about the killing. Peterson remains incarcerated. "The bottom line is, witnesses lie. DNA doesn't," said defense attorney Vanessa Potkin of the Innocence Project. (Associated Press, July 30, 2005).
PUBLIC OPINION: Majority in Alabama Supports a Temporary Halt to Executions
A recent Alabama opinion poll found that less than half of those surveyed believe Alabama's death penalty is applied fairly and 57% of respondents support a temporary halt to executions in the state until questions about fairness and reliability are studied. In other findings, 96% of those surveyed support the use of DNA in cases where it might prove guilt or innocence and 62% said they would be more likely to vote for a candidate who supported suspension of the death penalty until questions about the use of DNA testing have been answered.
"The evidence of unfairness surrounding the administration of the death penalty is so overwhelming that it's not surprising that more folks are acknowledging it," said Bryan Stevenson, Director of the Equal Justice Initiative in Montgomery.
The statewide poll was conducted in July 2005 by Capital Survey Research Center, the polling arm of the Alabama Education Association. (Associated Press, July 29, 2005)
NEW RESOURCE: Dedication Scheduled for National Death Penalty Archive
The dedication of the National Death Penalty Archive at the State University of New York at Albany will take place on August 9, 2005. Hugo Bedau of Tufts University will keynote the program, which will also feature William J. Bowers, Scott Christianson, David Kaczynski, and Michael Radelet. The Archive is a partnership between the Capital Punishment Research Initiative at the School of Criminal Justice and the M.E. Grenander Department of Special Collections and Archives at the University of Albany Libraries. This collection of historical materials is an excellent resource for scholars, students, and members of the public who are interested in the history of capital punishment in America and in the legal and political battles related to the death penalty. Among other resources, the collection includes The Hugo Adam Bedau Papers, The William J. Bowers/Capital Jury Project Collection, The Alvin Ford Collection, and The Joe Ingle/Southern Coalition on Jails and Prisons Papers. It also includes a program of oral history interviews featuring prominent activists and professionals involved in death penalty work. View more information about the National Death Penalty Archive. Protecting Human Life Should be at Least as Important as Protecting Property Rights
In a recent Washington Post column, Richard Cohen compared the deep objections voiced by many Americans after the U.S. Supreme Court ruled that communities can condemn property in distressed areas to make way for economic development to the tepid reaction to strong evidence that a Missouri man may have been wrongly executed for a crime he did not commit. Cohen, noting that it seems "far easier for the government to wrongfully take a life than a parcel of run-down real estate," wrote:
The
city of New London, Conn., narrowly (5 to 4) won the right last month
from the Supreme Court to condemn a parcel of land in a distressed part
of the town to make way for economic development. The ruling has
generated a tsunami of objection and an effort in many states and
localities to have its effects undone . . . .
At the same time, in a far different area of the law, authorities are wondering if two men long ago convicted of murder might be innocent. This has generated almost no interest, no nationwide protest movement, suggesting that in this country it is far easier for the government to wrongfully take a life than a parcel of run-down real estate. Is this a great country or what?
. . .
Since 1973, 119 people have walked off death row, exonerated by DNA or evidence, according to the Death Penalty Information Center. Had the wheels of justice turned as swiftly as the hang 'em high crowd would have liked, some of those people would exist in memory only and we would console ourselves that they were probably guilty of something -- or why else would the cops have been on to them. The logic is fiercely circular.
Now, though, we have two such cases and they are worth pondering for a number of reasons. The first involves Olmado Hidalgo, a New York City man who was convicted 13 years ago of murder -- on what the district attorney's office now concedes was weak evidence. The authorities are not saying that Hidalgo is innocent. But to their credit, they are now saying that some new evidence has surfaced that gives everyone pause. Lucky for Hidalgo that he was not convicted in another state where justice is swifter -- if somewhat less certain.
The other case involves the late Larry Griffin, who was executed by Missouri in 1995 for a drive-by shooting. The main witness against him, now dead, turns out to have had a pliable memory and an ugly résumé. He was a career criminal and drug addict who happened to be facing serious felony charges at the time. After he usefully turned witness to the murder, he got to walk. Lucky man.
. . .
Both the Griffin and Hidalgo cases are important for what they lack -- DNA evidence. In this, they are typical. The victims were both shot at a distance: no DNA evidence. This is often the case. In the average crime, there is no exchange of body fluids (as in rape) and no tissue under the victim's fingernails or anything like that. DNA testing has done wonders -- both in getting convictions and in exonerating the innocent. But it cannot be used where it is not a factor. For that reason, capital punishment remains fraught with the possibility of injustice.
(Washington Post, July 26, 2005).
NEW VOICES: Victim's Family Opposes Federal Death Sentence
The parents and three children of Louisiana murder victim Kim Groves have asked the federal government to forgo seeking the death penalty for co-defendants Paul Hardy and Len Davis. In a letter to prosecutors, the Groves family urged U.S attorneys to halt proceedings that might lead to death sentences in rehearings for both defendants.
"Executing these two men will not bring Kim Groves back to life. It will not ease the deep sorrow and loss that her family has and will continue to experience as a result of her death...Perversely, it appears that he (Davis) has enjoyed the attention and notoriety which his vulnerability to the death penalty has provided. The family believes the death penalty would in fact be the lesser of the punishments and that the finality and duration of a life sentence would be much more difficult and severe to Mr. Davis, in particular, than death," the letter stated.
The letter, which was also addressed to U.S. Attorney General Alberto Gonzales, was entered into the court record last week. The presiding judge ruled that if prosecutors have family members testifying about the facts of the crime, the letter may be used on Davis' behalf. (Times-Picayune, July 27, 2005). See Victims and Federal Death Penalty.
Attempt to Strip the Federal Courts' Review Power in Death Penalty Cases Meets Conservative Opposition
The following article by Henry Weinstein appeared in the Los Angeles Times, July 28, 2005:
(DPIC Note: The Senate Judiciary Committee put off markup of the Streamlined Procedures Act, probably until September. Also, see Letter from former Attorneys General and prosecutors opposing this legislation.)
THE NATION
Bid to Speed Death Penalty Appeals Under Fire
Conservatives and former prosecutors are among foes of a bill, before a Senate panel today, to curtail 'endless' delays in cases.
By Henry Weinstein
Times Staff Writer
The Senate Judiciary Committee will take up legislation today meant to
streamline the death penalty appeals process — something critics fear could lead to the execution of the wrongly convicted.
Opposition is mounting to the Streamlined Procedures Act introduced in the Senate by Jon Kyl (R-Ariz.) and in the House by Dan Lungren (R-Gold River). Concerns come not only from death-penalty opponents but from individuals and groups not often thought of as vocal supporters of the rights of criminal defendants.
Among the critics are the Rutherford Institute, a conservative legal group that specializes in religious freedom and antiabortion issues; Bob Barr, the conservative Republican former congressman from Georgia; more than 50 former prosecutors; and more than a dozen former federal judges.
The legislation, opponents say, would dramatically restrict federal courts' ability to consider habeas corpus petitions from state prisoners who claim that their constitutional rights have been violated or that they have evidence they are innocent.
Habeas corpus is the centuries-old method of challenging allegedly illegal imprisonments by giving inmates a day in court to assert that a serious error has been made in their case.
Kyl and Lungren introduced virtually identical bills in the Senate and House to remedy "endless delays" between convictions in capital cases and executions.
They say that restrictions Congress imposed in the Anti-Terrorism and Effective Death Penalty Act of 1996 are not enough.
Kyl said the number of habeas corpus petitions pending in federal district courts had increased to 23,218 in fiscal year 2003, from 13,359 in fiscal year 1994, citing Administrative Office of the Courts data.
The bill would impose a host of restrictions on an inmate's ability to get a federal court to hear a habeas corpus petition.
A group of former federal judges, in a letter of opposition, told the Senate Judiciary Committee that "there are now too many instances to ignore in which innocent people were sentenced to prison, or even to death, and it took years for the evidence of their innocence to come to light."
Kyl said the bill had an exception that would enable innocent people to obtain relief from a wrongful conviction.
But the former judges — including William H. Webster and William S. Sessions, both of whom served as directors of the FBI in Republican administrations — countered that "the language of the exception is so narrow that it will cover virtually no one."
The former jurists also said the bill would overturn several recent Supreme Court decisions interpreting the 1996 death penalty act "as well as several other decisions of the Rehnquist court, many of which have helped to further streamline the system and eliminate delays. It serves no one's interests to engender the kind of delays that this bill will create" by precipitating more litigation.
Moreover, the judges said, the impact of the bill would be "far more sweeping" than death penalty cases. The restrictions it would impose would cover "every state criminal conviction," including cases involving businesses, firearms and the environment.
The sweep of the measure is troubling and unwarranted, Barr said in a letter sent Wednesday to Judiciary Committee Chairman Arlen Specter (R-Pa.).
"I stand second to no one in believing in swift and certain justice," wrote Barr, a former prosecutor and one of the authors of the 1996 law. He said he thought the law was "working well to restrict [habeas corpus] petitions" and had seen "no evidence to the contrary."
"As a former member of Congress, I know that unfortunately there are times when political pressures lead to imprudent decisions that can be destructive to basic constitutional liberties…. [This] is an example of legislation that is being pressed without sufficient deliberation, and without any real evidence that it is needed.''
Among the former prosecutors against the bill are Ira Reiner, who served as Los Angeles County district attorney from 1984 to 1992, and Gil Garcetti, who held the position for eight years after that.
Reiner, who is a proponent of the death penalty and sought it dozens of times while running the district attorney's office, said he strongly opposed "this ill-conceived bill … whose transparent purpose is to strip the federal courts of their jurisdiction to review state criminal court proceedings."
He said it would "eviscerate the role of the federal courts in ensuring that innocent persons are not mistakenly convicted of crimes and that state courts do not send people to prison in violation of their constitutional rights."
At the first Senate hearing on the bill, Kent Cattani of the Arizona attorney general's office testified in support of the measure. Specter asked him whether Congress had "the authority to strip the courts of jurisdiction on constitutional issues." Cattani replied, "Yes, I think Congress has the authority to do so."
At the same hearing, Seth P. Waxman, who was U.S. solicitor general in the Clinton administration, described four death penalty cases in the last four years in which the Supreme Court found major constitutional violations overlooked by state courts. In one instance, prosecutors hid critical information from the defense. In another, the Supreme Court found that prosecutors had improperly kept blacks off a jury. If the Kyl-Lungren bill had been in effect, none of those cases would ever have been reviewed by a federal court, Waxman said.
"The title of this bill suggests that it would streamline the processing of habeas corpus cases," Waxman said. But Waxman said he found "something else entirely: Section after section of the bill would eliminate federal court jurisdiction to decide federal questions" in such cases.
Attorney Barry Scheck, co-founder of the Innocence Project, which had played a key role in freeing more than 100 wrongly convicted people — eight of whom had been on death row — said a number of those people would be in prison or dead if the proposed legislation had been in effect.
Scheck told the Judiciary Committee that the proposed law turned the lesson of those cases "on its head. It threatens to make what is already a torturous, difficult mountain for the wrongfully convicted to climb into a wholly impenetrable steel wall."
"Finding innocence is a fits-and-starts kind of process," said New York attorney George Kendall, who has litigated death penalty cases for more than two decades. "Habeas corpus was never supposed to be about innocence alone. It was always about whether the state courts faithfully applied federal constitutional law.
"This bill turns that on its head," insulating state courts from any meaningful review, he said.
Six people exonerated as a result of federal habeas corpus proceedings attended the first Senate hearing, including Thomas Goldstein, who was freed last year after 24 years in prison for a wrongful conviction in a Long Beach murder.
Goldstein's challenges to his conviction fell on deaf ears in state court. But five federal judges in California who reviewed the case found that his constitutional rights had been violated by prosecutors who used an unreliable jailhouse informant and by police who steered an eyewitness into incorrectly identifying Goldstein.
- - - - -
Virginia Insists on Execution Even in "Close Case" of Mental Retardation
Even though the state of Virginia admits that the question of Daryl Atkins' mental retardation is a "close case," it is still pursuing a lengthy jury trial to ensure his execution. The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that those with mental retardation must be excluded from the death penalty, but they issued no opinion with regard to Mr. Atkins' mental status. As the trial in Virginia began this week, Atkins' mother and former teachers testified about his long-term struggles in dealing with his disability, noting that he did not finish high school, could not get a driver's license, and was cut from the football team because he could not grasp the rules.
Atkins scored 59 on an IQ test in 1998, but recorded scores of 67 and 74 on more recent tests. Psychologist Evan Nelson, who administered the tests, believes that one explanation for the higher scores may be how many times Atkins has taken the exam, how long the test has been around, and the eight years Atkins has spent in jail. Nelson stated, "Oddly enough, because of his constant contact with the many lawyers that worked on his case. . . Mr. Atkins received more intellectual stimulation in prison that he did during his late adolescence and early adulthood."
The trial is expected to include testimony from nearly 100 witnesses, including teachers, relatives, acquaintances, and crime victims. Possibly interfering with a simple objective determination of Atkins' mental ability, the jury has been informed that this was a death penalty case. Knowledge of the crime could influence their willingness to grant him a lesser punishment through a finding of mental retardation. A verdict is expected in August. (DPIC analysis, New York Times, July 27, 2005, and Washington Post, July 23, 2005).
New Trial Ordered for Death Row Inmate Following DNA Testing
A North Carolina Superior Court judge orderd a new trial for death row inmate Rex Penland following DNA testing that discredited the state's case. Penland was convicted of a rape and murder 11 years ago, but DNA testing at the time of his trial was inconclusive. More recent testing was favorable to Penland and did not place him at the scene of the crime. Penland was convicted largely on the basis of testimony from his two nephews who were also involved in the crime. Ken Rose, one of the Penland's attorneys, said: "I think there are substantial questions about whether they got the wrong person. We have other evidence calling into question the [nephews'] testimony."
(Associated Press, July 25, 2005).
Editorial Criticizes Proposed Bill to Limit Death Penalty Appeals
A recent Philadelphia Inquirer editorial criticized the proposed "Streamlined Procedures Act," federal legislation that would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from those on death row. Noting that the measure would increase the possibility of executing an innocent person, the editorial stated:
Amid
Washington lawmakers' latest drive to further restrict the appeals of
(capital) defendants, they need to recognize what could be at risk with
their tough-on-crime crackdown - innocent lives.
In both Senate and House versions, the innocently titled Streamlined Procedures Act amounts to an unconscionable assault on federal court oversight of the fairness of criminal trials in the state courts.
The Republican-sponsored measure would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from convicts. These claims range from whether adequate legal counsel was provided to indigent (and often minority) defendants, on up to whether an innocent person may have been convicted wrongly.
In death-row cases, the stakes are as high as they come. In other criminal matters, the federal judiciary's policing of such cases assures that our criminal justice system is truly just.
Strict limits on such appeals were already imposed in 1996 under a post-Oklahoma City bombing, Clinton-era antiterrorism law - and there's no good reason to tighten them further.
At a recent Senate hearing, proponents argued unimpressively that the appeals delayed "closure" for crime victims, while running up government legal bills.
Isn't the cost of responding to appeals simply the price of successful anticrime efforts that have put 2.1 million people behind bars? Lock up the bad guys, by all means, but don't turn around and scrimp on fairness.
The impact of lengthy appeals on crime victims cannot be ignored. But there is a psychological toll, too, on convicts sitting behind bars who know they are innocent, some of them on death row.
There have been dozens of people exonerated while awaiting execution in recent years, often after years of painstaking appeals and probing of their claims of innocence. What if these inmates had not succeeded in their appeals in time?
Surely advocates of limiting convicts' federal appeals don't mean to respond to the troubling fact of death-row exonerations by strapping the possibly innocent to a gurney sooner.
Isn't it odd how some in Congress - mostly Republicans, but some Democrats, too - regard the federal courts as the best venue for class-action lawsuits involving consumer-product safety, environmental pollution and civil rights. Yet they don't want to bother the same highly regarded federal bench with cases concerning the fundamental rights of life and liberty?
A system of justice streamlined to the degree proposed under this measure would not be justice at all.
In both Senate and House versions, the innocently titled Streamlined Procedures Act amounts to an unconscionable assault on federal court oversight of the fairness of criminal trials in the state courts.
The Republican-sponsored measure would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from convicts. These claims range from whether adequate legal counsel was provided to indigent (and often minority) defendants, on up to whether an innocent person may have been convicted wrongly.
In death-row cases, the stakes are as high as they come. In other criminal matters, the federal judiciary's policing of such cases assures that our criminal justice system is truly just.
Strict limits on such appeals were already imposed in 1996 under a post-Oklahoma City bombing, Clinton-era antiterrorism law - and there's no good reason to tighten them further.
At a recent Senate hearing, proponents argued unimpressively that the appeals delayed "closure" for crime victims, while running up government legal bills.
Isn't the cost of responding to appeals simply the price of successful anticrime efforts that have put 2.1 million people behind bars? Lock up the bad guys, by all means, but don't turn around and scrimp on fairness.
The impact of lengthy appeals on crime victims cannot be ignored. But there is a psychological toll, too, on convicts sitting behind bars who know they are innocent, some of them on death row.
There have been dozens of people exonerated while awaiting execution in recent years, often after years of painstaking appeals and probing of their claims of innocence. What if these inmates had not succeeded in their appeals in time?
Surely advocates of limiting convicts' federal appeals don't mean to respond to the troubling fact of death-row exonerations by strapping the possibly innocent to a gurney sooner.
Isn't it odd how some in Congress - mostly Republicans, but some Democrats, too - regard the federal courts as the best venue for class-action lawsuits involving consumer-product safety, environmental pollution and civil rights. Yet they don't want to bother the same highly regarded federal bench with cases concerning the fundamental rights of life and liberty?
A system of justice streamlined to the degree proposed under this measure would not be justice at all.
(Philadelphia Inquirer, July 23, 2005)
Birmingham News, Chicago Tribune, "Deadline" Documentary to Receive DPIC Journalism Awards
The Death Penalty Information Center (DPIC) will honor journalists from The Birmingham News and The Chicago Tribune, and directors from Big Mouth Productions during its 9th Annual Thurgood Marshall Journalism Awards at the National Press Club on Monday, July 25. The awards recognize those journalists who have made an exceptional contribution to the understanding of problems associated with capital punishment.
This year’s ceremony will feature the first-ever Thurgood Marshall Journalism Award for Excellence in the Posthumous Exploration of Innocence. The honor will go to Chicago Tribune reporters Steve Mills and Maurice Possley for their article about the capital conviction of Cameron Todd Willingham, who was executed in Texas last year. Willingham had been convicted and sentenced to death for the arson murder of his three daughters, but had maintained his innocence since his arrest. An investigation of the state’s case against Willingham revealed that his conviction was based primarily on arson theories that have since been repudiated by scientific advances.
The Award for Excellence in Print Journalism will be awarded to Carla Crowder, a reporter with The Birmingham News. Crowder will receive the honor for her achievements in giving voice to both sides of the death penalty debate in Alabama. Crowder’s articles have profiled the individual life histories of the executed, the economic and personal struggles faced by those who have been exonerated from death row, and the stories of those who continue to await their executions. In 2004, Crowder wrote about the life of David Hocker, who was executed in Alabama late last year. Hocker was convicted of capital murder after a one-day trial, sentenced to death after his attorney presented no mitigation evidence, and was executed with no post-conviction review. In her series on Hocker, Crowder did what no attorney or social worker had ever done before: tell Kevin Hocker’s life story.
Directors Katy Chevigny and Kirsten Johnson of the New York-based Big Mouth Productions will receive the Award for Excellence in Broadcast Journalism for their documentary “Deadline.” This film, which was featured last year by Dateline NBC, gave viewers a first-hand look at the emotional events surrounding former Illinois Governor George Ryan’s historic decision to pardon four men and offer clemency to the remaining 167 people on the state’s death row due to his concerns about the fairness and accuracy of Illinois’s death penalty. Though he had been a tough-on-crime death penalty supporter for nearly two decades, Ryan’s opinion about capital punishment was shaken when he watched a group of journalism students discover evidence that exonerated a man from death row just before his scheduled execution. In the film, Chevigny and Johnson give viewers an insider’s look at Ryan’s courageous actions and America’s death penalty debate.
New York Assemblyman Joseph Lentol will deliver the keynote address at the awards luncheon. Earlier this year, Lentol, who is Chair of the Assembly’s Committee on Codes, played a pivotal role in the committee’s historic vote not to reinstate capital punishment in New York. A former death penalty proponent, Lentol’s position on the issue began to evolve after the state’s statute was declared unconstitutional in 2004 and the Assembly held a series of public hearings to determine the best course of action regarding the future of capital punishment in New York.
The Thurgood Marshall Journalism Awards are named in honor of the late Supreme Court Justice who believed that people would see the death penalty in a new light once they understood how it works in practice. “The question with which we must deal,” Justice Marshall wrote, “is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in light of all information presently available.”
The distinguished judges for this year’s Awards were Loren Ghiglione, Dean of the Medill School of Journalism at Northwestern University, and Virginia Sloan, Executive Director of The Constitution Project.
Entries for next year’s awards must be published or produced in 2005 and should be submitted to the Death Penalty Information Center by January 31, 2006.
Federal Death Penalty in Non-Death Penalty States
The federal death penalty was reinstated in 1988 with a limited statute for murders in the course of a drug conspiracy. It was expanded to 60 offenses in 1994 and included crimes such as carjacking and drive-by shootings if a death results. During the Clinton administration, no one from a non-death penalty state was sentenced to death. Since 2000, there have been at least 5 individuals in non-death states who have received death sentences: 2 in Iowa (Dustin Honken and Angela Johnson), 1 in Massachusetts (Gary Sampson), 1 in Michigan (Marvin Gabrion), and most recently, 1 in Vermont (Donald Fell). A total of 40 people are now under a federal death sentence (in some cases, a judge has not formally imposed the sentence).
Massachusetts Governor's Proposed Death Penalty Law Meets Strong Opposition at Hearing
Massachusetts Governor Mitt Romney recently testified that the proposed "foolproof" death penalty statute he hopes will bring capital punishment back to the state does not eliminate the possibility that an innocent person could be executed. Romney acknowledged to members of the joint House and Senate Judiciary Committee that the proposed law cannot protect the state against the potential for human error, stating, "A 100 percent guarantee? I don't think there's such a thing in life. Except perhaps death - for all of us."
Representative Michael A. Costellow, one of the lawmakers who questioned Romney during the hearing, said that the Governor's admission "does knock out the initial premise" that the plan is foolproof, adding, "I think they put the best and the brightest together to try to come up with a foolproof policy, and it isn't foolproof."
Massachusetts is one of 12 states that does not have the death penalty. The last execution in the state was in 1947. (Boston Globe, July 14, 2005). Almost all of the testimony presented at the hearing opposed the governor's bill. Romney's response to many of the criticisms of the proposed law was that the threat of execution would at least lead to more plea bargains to life sentences. Some objected that it might also lead to innocent people pleading guilty to avoid the death penalty. Read testimony given by DPIC's Executive Director, Richard Dieter, during the Massachusetts hearing.
Around the blogs
CrimProf Blog states:
Minister of mercy
This interesting piece was published recently in the South Bend (Indiana) Tribune:
Elkhart resident answers her calling and prays with those on death row
By MAY LEE JOHNSON
Tribune Staff Writer
ELKHART -- The mornings of executions are the roughest.
"On those mornings, I get up early to pray," the Rev. Wanda Callahan says. "I say something like, 'Jesus, God, help me. Don't let me fall apart.' "
Callahan has been ministering to men on death row for more than 30 years and has witnessed five executions, four in Florida and one in Indiana.
It never gets easier.
Kevin A. Conner, who was executed last week for killing three people in Indianapolis in 1988, didn't want any last-minute appeals or clemency from Gov. Mitch Daniels. He was the fourth person executed by the state so far this year; as many as eight might be executed by the end of the year.
Callahan takes the deaths personally.
"I remember the morning Scott Johnson was killed," she said. Gregory Scott Johnson was executed in May for the murder of Ruby Hutslar at Hutslar's Anderson, Ind., home."I was not his minister, but I talked with men who knew him, so I, too, felt like I knew him. On the morning of his execution, I just fell apart.
"My son James came in and found me a mess. I remember the words he said to me, 'Mom, don't cry. You can't save them all.'
"But I would if I could."
She knows many people don't identify with her quest.
"People ask me all the time," she says, 'Why do you even care about these murderers?'
"I tell people to go back to the Gospel. Look at Jesus. He cared about everyone and hung out with all kinds of people. If we call ourselves Jesus' disciples, we too have to keep ministering to so-called throwaways of today. And who is more thrown away in our society than the inmates on death row?"
To read the whole story go here.
Amnety"s
DP blog writes:
Washington Post calls for more attention to death penalty issue in reviewing Supreme Court nominee
Capital Punishment and Public Opinion
According to a recent poll, a majority of those polled in Alabama favor a temporary halt in capital punishment in the state until issues such as fairness in application and access to DNA can be studied. [Mark Godsey]
St. Louis DA's Innocence Program Leads to 3 Exonerations
Story here. This is the office investigating whether the office prosecuted a man who was innocent of the murder he was executed for. [Jack Chin]
Abolish the
Death Penalty Blog notes:According to a recent poll, a majority of those polled in Alabama favor a temporary halt in capital punishment in the state until issues such as fairness in application and access to DNA can be studied. [Mark Godsey]
St. Louis DA's Innocence Program Leads to 3 Exonerations
Story here. This is the office investigating whether the office prosecuted a man who was innocent of the murder he was executed for. [Jack Chin]
This interesting piece was published recently in the South Bend (Indiana) Tribune:
Elkhart resident answers her calling and prays with those on death row
By MAY LEE JOHNSON
Tribune Staff Writer
ELKHART -- The mornings of executions are the roughest.
"On those mornings, I get up early to pray," the Rev. Wanda Callahan says. "I say something like, 'Jesus, God, help me. Don't let me fall apart.' "
Callahan has been ministering to men on death row for more than 30 years and has witnessed five executions, four in Florida and one in Indiana.
It never gets easier.
Kevin A. Conner, who was executed last week for killing three people in Indianapolis in 1988, didn't want any last-minute appeals or clemency from Gov. Mitch Daniels. He was the fourth person executed by the state so far this year; as many as eight might be executed by the end of the year.
Callahan takes the deaths personally.
"I remember the morning Scott Johnson was killed," she said. Gregory Scott Johnson was executed in May for the murder of Ruby Hutslar at Hutslar's Anderson, Ind., home."I was not his minister, but I talked with men who knew him, so I, too, felt like I knew him. On the morning of his execution, I just fell apart.
"My son James came in and found me a mess. I remember the words he said to me, 'Mom, don't cry. You can't save them all.'
"But I would if I could."
She knows many people don't identify with her quest.
"People ask me all the time," she says, 'Why do you even care about these murderers?'
"I tell people to go back to the Gospel. Look at Jesus. He cared about everyone and hung out with all kinds of people. If we call ourselves Jesus' disciples, we too have to keep ministering to so-called throwaways of today. And who is more thrown away in our society than the inmates on death row?"
To read the whole story go here.
Washington Post calls for more attention to death penalty issue in reviewing Supreme Court nominee
This week, Washington Post
columnist Charles Lane urged further questioning
of how John G. Roberts
would vote on Supreme Court cases involving the death penalty if
confirmed. Lane argued:
"Every death sentence in the country comes before the court not once but twice or more: first on direct appeals, the vast majority of which are brushed aside, and then on habeas corpus challenges claiming constitutional violations at trial or sentencing."See "On a Big Issue, Little Is Known."
"And the substitution of Roberts for Justice Sandra Day O'Connor could make a difference on the death penalty."
Project
Hope notes
Birmingham News editorial endorses the moratorium0
Administrator posted in Uncategorized on August 4th, 2005
Take a breather on death penalty
Tuesday, August 02, 2005
Alabamians overwhelmingly support capital punishment in principle, but a sizable number have grave concerns about capital punishment in practice. That’s the undeniable conclusion from a new poll by the Capital Survey Research Center in Montgomery.
Dale
Project Hope Announces Important Polling Data on the Death Penalty in Alabama0
Administrator posted in Uncategorized on July 29th, 2005
We thank the Capital Survey Research Center for so graciously responding to our request for a death penalty survey in Alabama and we thank all who contributed to this survey. It confirms that a solid majority of the people of Alabama believe that the time has come for a moratorium on executions while an independent study is conducted into the fairness of the application of the death penalty. It also confirms that most Alabamians do believe in justice and that candidates running for election can embrace it and win. Looking at the numbers, it is obvious that Alabamians are uneasy about the application of capital punishment in their state.We hope that the candidates are listening as they develop their platform!
Education remains the key and so we look to you to help spread the word. When I wrote last week 300 organizations, churches, businesses etc had come out in support of a moratorium. We now stand at 340! Does that not tell you that the time for a moratorium is NOW?
Please spread this survey widely!
On this page, we include a news report on the polling data and then we’ll have a look at the particulars. First, here’s an Associated Press news item regarding the poll.
Poll finds concerns about fairness of death penalty
* * *
Death Penalty
1. The second issue concerns the death penalty. How do you feel about the use of the death penalty in Alabama? Do you:
Support death penalty……………70.8%
Oppose death penalty…………….19.6%
Don’t Know / No Reply…………….9.5%
2. Do you believe the death penalty is applied fairly in Alabama regardless of gender, race, income or age?
Yes, applied fairly……………………47.0%
No, not applied fairly……………….35.9%
Don’t Know / No Reply……………17.1%
3. Do you believe an innocent person may be convicted and executed?
No…………………………………………….14.3%
Yes……………………………………………79.6%
Don’t Know / No Reply………………6.1%
4. There have been cases in which someone sentenced to be executed was found not guilty based on new evidence, usually DNA testing. How do you feel about suspending the death penalty in Alabama until questions about the fairness and accuracy of the death penalty have been studied and confirmed? Do you:
Support suspension……………………57.1%
Oppose suspension…………………….30.3%
Don’t Know / No Reply………………12.6%
5. How do you feel about the use of DNA testing in cases where it might prove a person’s innocence or guilt? Do you:
Support use of DNA…………………….95.8%
Oppose use of DNA……………………….1.4%
Don’t Know / No Reply………………….2.9%
6. Would you be more or less likely to support a candidate for public office who supports the use of DNA testing in cases that involve the death penalty?
Much more likely………………………….54.5%
Somewhat more likely………………….33.0%
Somewhat less likely………………………3.0%
Much less likely………………………………1.9%
Don’t Know / No Reply…………………..7.6%
7. Would you be more or less likely to support a candidate for public office who supports a suspension of the death penalty until questions about the use of DNA testing have been answered?
Much more likely…………………………..32.2%
Somewhat more likely…………………..30.2%
Somewhat less likely……………………..12.8%
Much less likely……………………………..12.5%
Don’t Know / No Reply…………………..12.2%
There are some important things to note in this data.
First, and perhaps the biggest news is that in spite of the fact that most Alabamians support the death penalty, and this is no surprise, a majority would now appear to support a moratorium.
Second, note the near-unanimous support of the use of DNA. Many of us who dialog regularly with death penalty supporters routinely find that they are shocked to learn that there is no automatic right afforded a defendant to have his or her DNA tested and used in his or her defense.
Third, a finding that is baffling and somewhat disheartening, 70% support the death penalty and nearly 80% concede that “an innocent person may be convicted and executed.” Aren’t we forced to conclude, here, that those who favor the death penalty favor it so strongly that they are willing to accept the execution of innocent people?
Birmingham News editorial endorses the moratorium0
Administrator posted in Uncategorized on August 4th, 2005
Take a breather on death penalty
Tuesday, August 02, 2005
Alabamians overwhelmingly support capital punishment in principle, but a sizable number have grave concerns about capital punishment in practice. That’s the undeniable conclusion from a new poll by the Capital Survey Research Center in Montgomery.
According to a survey of more than 850 registered voters, almost 71
percent of Alabamians favor the death penalty. But only 47 percent
believe capital punishment is fairly applied in Alabama, and a striking
80 percent believe an innocent person could be put to death under the
current system. Perhaps not so surprisingly, 57 percent said they
support putting a hold on executions until the questions of fairness
and accuracy can be resolved.
Are Alabama leaders listening?
State Sen. Hank Sanders, D-Selma, for years has tried to get his legislative colleagues to call a temporary halt to executions. But the effort has come to nothing, even though at least 37 local governments and more than 300 churches, businesses and political groups have signed a petition in support of a moratorium.
Attorney General Troy King not only refuses to consider a moratorium, he pitched a fit when an esteemed Birmingham lawyer merely proposed the Alabama State Bar publish a pro/con brochure on the issue.
What is it that Alabamians get that their leaders don’t?
They obviously recognize that giving government the power to take life is an awesome and serious thing. They recognize that if we’re going to grant it to our government, it needs to be administered in a way that is as fair and foolproof as possible. They know the recent history of DNA exonerations - where seemingly airtight cases have been found full of holes - casts doubt on the accuracy of the entire criminal justice system.
That doesn’t mean they suddenly don’t believe in capital punishment. Clearly, that’s not the case. But according to the findings of a respected polling operation, most Alabamians believe it’s time to take a breather to make sure the death penalty is carried out correctly.
Are our leaders listening?
Are Alabama leaders listening?
State Sen. Hank Sanders, D-Selma, for years has tried to get his legislative colleagues to call a temporary halt to executions. But the effort has come to nothing, even though at least 37 local governments and more than 300 churches, businesses and political groups have signed a petition in support of a moratorium.
Attorney General Troy King not only refuses to consider a moratorium, he pitched a fit when an esteemed Birmingham lawyer merely proposed the Alabama State Bar publish a pro/con brochure on the issue.
What is it that Alabamians get that their leaders don’t?
They obviously recognize that giving government the power to take life is an awesome and serious thing. They recognize that if we’re going to grant it to our government, it needs to be administered in a way that is as fair and foolproof as possible. They know the recent history of DNA exonerations - where seemingly airtight cases have been found full of holes - casts doubt on the accuracy of the entire criminal justice system.
That doesn’t mean they suddenly don’t believe in capital punishment. Clearly, that’s not the case. But according to the findings of a respected polling operation, most Alabamians believe it’s time to take a breather to make sure the death penalty is carried out correctly.
Are our leaders listening?
Dale
Project Hope Announces Important Polling Data on the Death Penalty in Alabama0
Administrator posted in Uncategorized on July 29th, 2005
We thank the Capital Survey Research Center for so graciously responding to our request for a death penalty survey in Alabama and we thank all who contributed to this survey. It confirms that a solid majority of the people of Alabama believe that the time has come for a moratorium on executions while an independent study is conducted into the fairness of the application of the death penalty. It also confirms that most Alabamians do believe in justice and that candidates running for election can embrace it and win. Looking at the numbers, it is obvious that Alabamians are uneasy about the application of capital punishment in their state.We hope that the candidates are listening as they develop their platform!
Education remains the key and so we look to you to help spread the word. When I wrote last week 300 organizations, churches, businesses etc had come out in support of a moratorium. We now stand at 340! Does that not tell you that the time for a moratorium is NOW?
Please spread this survey widely!
On this page, we include a news report on the polling data and then we’ll have a look at the particulars. First, here’s an Associated Press news item regarding the poll.
Poll finds concerns about fairness of death penalty
* * *
Death Penalty
1. The second issue concerns the death penalty. How do you feel about the use of the death penalty in Alabama? Do you:
Support death penalty……………70.8%
Oppose death penalty…………….19.6%
Don’t Know / No Reply…………….9.5%
2. Do you believe the death penalty is applied fairly in Alabama regardless of gender, race, income or age?
Yes, applied fairly……………………47.0%
No, not applied fairly……………….35.9%
Don’t Know / No Reply……………17.1%
3. Do you believe an innocent person may be convicted and executed?
No…………………………………………….14.3%
Yes……………………………………………79.6%
Don’t Know / No Reply………………6.1%
4. There have been cases in which someone sentenced to be executed was found not guilty based on new evidence, usually DNA testing. How do you feel about suspending the death penalty in Alabama until questions about the fairness and accuracy of the death penalty have been studied and confirmed? Do you:
Support suspension……………………57.1%
Oppose suspension…………………….30.3%
Don’t Know / No Reply………………12.6%
5. How do you feel about the use of DNA testing in cases where it might prove a person’s innocence or guilt? Do you:
Support use of DNA…………………….95.8%
Oppose use of DNA……………………….1.4%
Don’t Know / No Reply………………….2.9%
6. Would you be more or less likely to support a candidate for public office who supports the use of DNA testing in cases that involve the death penalty?
Much more likely………………………….54.5%
Somewhat more likely………………….33.0%
Somewhat less likely………………………3.0%
Much less likely………………………………1.9%
Don’t Know / No Reply…………………..7.6%
7. Would you be more or less likely to support a candidate for public office who supports a suspension of the death penalty until questions about the use of DNA testing have been answered?
Much more likely…………………………..32.2%
Somewhat more likely…………………..30.2%
Somewhat less likely……………………..12.8%
Much less likely……………………………..12.5%
Don’t Know / No Reply…………………..12.2%
There are some important things to note in this data.
First, and perhaps the biggest news is that in spite of the fact that most Alabamians support the death penalty, and this is no surprise, a majority would now appear to support a moratorium.
Second, note the near-unanimous support of the use of DNA. Many of us who dialog regularly with death penalty supporters routinely find that they are shocked to learn that there is no automatic right afforded a defendant to have his or her DNA tested and used in his or her defense.
Third, a finding that is baffling and somewhat disheartening, 70% support the death penalty and nearly 80% concede that “an innocent person may be convicted and executed.” Aren’t we forced to conclude, here, that those who favor the death penalty favor it so strongly that they are willing to accept the execution of innocent people?
THE SMALL PRINT
SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible at http://capitaldefenseweekly.com/index.html. CDW is on Yahoo Groups to guarantee that deliver of the weekly will continue to your email box. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. RSS feed http://rss.groups.yahoo.com/group/capital_defense_weekly/rss. The Daily Copy's RSS/Atom feed at http://capitaldefenseweekly.com/atom.xml.
© 1997-2005 COPYRIGHT & FAIR USE NOTICE: In plain English, you can use these materials for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc) but don't use materials I list below as being the intellectual property of others because under federal law I simply can't give away the rights of others to their own intellectual property. In legalesse, the copyright, disclaimers, notices, & terms of usage are available at capitaldefenseweekly.com/disclaimthis.htm and http://creativecommons.org/licenses/by-nc-sa/2.0/ This edition may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. CDW waives the its intellectual property rights, such as copyright, for noncommercial use, save for the intellectual property owned by others, most notably found in the "Focus," "Around the Web" and "Around the Blogs" sections. We are making such material available in our efforts to advance understanding of political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
DISCLAIMER: Note that on a semi-regular basis cases in which I have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent attempt to show what a given Court held, not whether they reached the right opinion. Those views do not reflect the views of my employer or my views on the merits of any matter in which I have participated. The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Please also note, to protect private discussion & a consolidation of ideas, the newsletter has made it an affirmative policy NOT to subscribe to or review posting on habeas-l or similar lists, as such the weekly is not always on the same page as the rest of the "death bar" and may exclude notable evolving trends, pleae due your own due diligence.
AVAILABILITY OF OPINIONS: Most opinions can be found at Lexisone.com. If you can't access an opinion you need contact Capital Defense Weekly.
ISSN: 1523-6684
* Execution date information per Rick Halperin and other sources.
SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible at http://capitaldefenseweekly.com/index.html. CDW is on Yahoo Groups to guarantee that deliver of the weekly will continue to your email box. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. RSS feed http://rss.groups.yahoo.com/group/capital_defense_weekly/rss. The Daily Copy's RSS/Atom feed at http://capitaldefenseweekly.com/atom.xml.
© 1997-2005 COPYRIGHT & FAIR USE NOTICE: In plain English, you can use these materials for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc) but don't use materials I list below as being the intellectual property of others because under federal law I simply can't give away the rights of others to their own intellectual property. In legalesse, the copyright, disclaimers, notices, & terms of usage are available at capitaldefenseweekly.com/disclaimthis.htm and http://creativecommons.org/licenses/by-nc-sa/2.0/ This edition may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. CDW waives the its intellectual property rights, such as copyright, for noncommercial use, save for the intellectual property owned by others, most notably found in the "Focus," "Around the Web" and "Around the Blogs" sections. We are making such material available in our efforts to advance understanding of political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
DISCLAIMER: Note that on a semi-regular basis cases in which I have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent attempt to show what a given Court held, not whether they reached the right opinion. Those views do not reflect the views of my employer or my views on the merits of any matter in which I have participated. The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Please also note, to protect private discussion & a consolidation of ideas, the newsletter has made it an affirmative policy NOT to subscribe to or review posting on habeas-l or similar lists, as such the weekly is not always on the same page as the rest of the "death bar" and may exclude notable evolving trends, pleae due your own due diligence.
AVAILABILITY OF OPINIONS: Most opinions can be found at Lexisone.com. If you can't access an opinion you need contact Capital Defense Weekly.
ISSN: 1523-6684
* Execution date information per Rick Halperin and other sources.