The South Carolina Supreme Court in Ernest Riddle v. Ozmint, grants relief when Relief granted on Brady and Napue claims.  In Riddle the state failed to disclose prior inconsistent statements that undercut the credibility of a key prosecution's witness. Then, after the witness testified falsely as to the existence and contents of that prior statement, the prosecution failed to correct the errors from its witness. Counsel for Mr. Riddle were Diana Holt and Teresa Norris, both of Columbia, South Carolina.

The Pennsylvania Supreme Court in Comm. v. Freeman May granted relief on postconviction as the jury was not permitted to hear testimony from family members about the extent of abuse May, his mother and his siblings had suffered at the hands of his father.  The claim was layered around an ineffective assistance of appellate counsel for failing to raise it on appeal   Press accounts report the prosecution will again seek death despite protests from the victim's family members in this matter.  May was represented by the Capital Habeas Unit of the federal Community Defender Office for the Eastern District of Pennsylvania.

The Alabama Court of Criminal Appeals in Andrew Apicella v. State remands in this override to death case. Juries convicted Apicella and another man, Stephen Pilley in the deaths of five people at a lounge in Birmingham,. The same judge presided over both matters. Pilley was tried first to a death sentence.  A separate jury, however, recommended, 8-4, life without parole for Apicella. A remand here was ordered on whether the trial court impermissibly overrode the jury's recommendation in Apicella's case to 'balance the scales', as the trial court judge himself noted he did in  a later newspaper article.

Ernest Riddle v. Ozmint, 2006 S.C. LEXIS 177 (S.C. 5/22/2006) Relief granted on Brady and Napue claims.

Timothy Howard v. State, 2006 Ark. LEXIS 325 (Ark 5/25/2006) Remand ordered so that the condemned can "verify" his postconviction petition.

State v. Hon Silvia Arellano / Michael & Rudi Apelt, 2006 Ariz. LEXIS 61 (Az 5/24/2006) "Defendant can establish a rebuttable presumption of mental retardation through IQ scores and that evidence from lay witnesses of post-age-eighteen adaptive behavior may be relevant to a determination of mental retardation." Here DoC officers can be called to rebut the presumption created by the scores and other testimony. (Counsel were Dana Carpenter for Michael Apelt  and  for Rudi Apelt, Michael Burke & Jon Sands of the Federal Public Defender's office).

Andrew Apicella v. State, 2006 Ala. Crim. App. LEXIS 78 (Ala. Crim. App. 5/25/2006) In this override to death, an evidentiary hearing ordered on remand as Apicella alleged that the trial court overrode the jury's recommendation in Apicella's case to 'balance the scales'."

Comm. v. Freeman May, 2006 Pa. LEXIS 850 (PA 5/25/2006) The jury was not permitted to hear testimony from family members about the extent of abuse May, his mother and his siblings had suffered at the hands of his father.

Charles Nealy v. Dretke, 2006 U.S. App. LEXIS 12943 (5th Cir 5/24/2006) "The Texas Court of Criminal Appeals's determination that the evidence, viewed in the light most favorable to the verdict, was sufficient to allow a rational juror to find beyond a reasonable doubt that Nealy, as opposed to Claude, killed Jiten Bhakta, is not objectively unreasonable."

Johnathan Moore v. Dretke, 2006 U.S. App. LEXIS 12942 (5th Cir 5/24/2006) COA denied. "Moore's central claim is that he received ineffective assistance of counsel at trial because his court-appointed attorneys failed to present sufficient available evidence--namely, the testimony of defense experts--to the trial judge to support their request that a jury be empaneled to determine whether Moore was competent to stand trial."

Robert Henry v. State, 2006 Fla. LEXIS 943 (FL 5/25/2006) Postconviction relief denied on claims including: "trial counsel failed to develop a mitigation strategy that emphasized his drug addiction, both to demonstrate the effects of his long-term polysubstance abuse disorder and to show that he was operating under a cocaine-induced psychosis at the time of the crime. Henry also claims that both the scope and the depth of his mental evaluation were constitutionally inadequate and that trial counsel failed to follow up Henry's initial psychological screening with a full mental health mitigation workup." Habeas relief denied on claims that "(1) whether appellate counsel failed to raise numerous issues which warranted reversal due to the page number limitation imposed on appellate briefs by this Court; (2) whether appellate counsel failed to raise claims on direct appeal concerning an incomplete record and change of venue; and (3) whether the constitutionality of the first-degree murder indictment must be revisited in light of Ring v. Arizona and Apprendi v. New Jersey."

Melvin Trotter v. State, 2006 Fla. LEXIS 940 (FL 5/25/2006) Relief denied on postconviction IAC and MR claims. The IAC claims include that: "(1) that Trotter's mental health expert did not provide competent and effective assistance under Ake v. Oklahoma, 470 U.S. 68 (1985) (holding where sanity at the time of crime is at issue and in capital penalty proceedings where expert assistance is needed, due process requires that an indigent defendant have psychiatric expert assistance); (2) that trial counsel was ineffective for failing to investigate Trotter's background and develop available mitigation; and (3) that trial counsel was constitutionally ineffective for failing to file a timely motion to vacate a prior conviction."

Richard England v. State, 2006 Fla. LEXIS 942 (FL 5/25/2006) "England raises fourteen issues on appeal. These claims include: (A) fundamental error occurred because Jackson's testimony included a reference to facts excluded by the trial judge; (B) the jury should have been presented with a special verdict form; (C) certain crime scene and autopsy photographs should not have been admitted because they were gruesome and overly prejudicial; (D) the trial judge admitted testimony in violation of the best evidence rule; (E) the trial judge erred in permitting certain testimony from witness DeLeon; (F) there was juror misconduct; (G) the trial judge erred in finding the heinous, atrocious, or cruel (HAC) aggravator; (H) the trial judge violated England's right to a fair sentencing hearing by gagging England during the penalty phase; (I) England's right to testify was violated; (J) the trial judge erred in refusing to permit reverse Williams rule evidence during the penalty phase; (K) the trial judge treated England disparately from codefendant Jackson in sentencing; (L) England's death sentence violates Roper; (M) England's death sentence was not proportional; and (N) England's death sentence violates Ring."

George Ochoa v. State, 2006 OK CR 21 (Okla Crim App 5/25/2006) Relief denied on contention that "the jury should not have received any information relating to his custodial status and he should not have been "forced" to proceed at trial in prisoner clothing and the shock sleeve. "

State v. Nathaniel Jackson, 2006 Ohio 2651 (11th Ohio App 5/26/2006) Relief denied on claims that: "[1] The trial court erred when it denied [appellant's] postconviction petition without first affording him the opportunity to conduct discovery; [2] The trial court erred when it refused to grant [appellant] funds to employ experts; [3] The postconviction assistant prosecutor erred by not providing [appellant] with the information contained in the prosecutor's files which was necessary to support the claims contained in the amended petition; [4] The postconviction trial judge erred by not recusing himself; [5] The trial court erred by applying the doctrine of res judicata to bar certain of [appellant's] causes of action; and [6] The trial court erred in dismissing [appellant's] amended postconviction petition where he presented sufficient operative facts to merit relief or, at a minimum, an evidentiary hearing."

McFadden's Batson challenge is dispositive. It has been long recognized that racial discrimination in jury selection violates the Equal Protection Clause.(FN3) In Batson v. Kentucky, the United States Supreme Court held that a defendant could make out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" of the prosecutor's behavior during the defendant's trial.(FN4)

In State v. Parker, this Court set forth the procedure to be followed when a defendant makes a Batson challenge.(FN5) First, a defendant must challenge one or more specific venirepersons struck by the State and identify the cognizable racial group to which they belong.(FN6) Second, the State must provide a race-neutral reason that is more than an unsubstantiated denial of discriminatory purpose.(FN7) Third, the defense must show that the State's explanation was pretextual and the true reason for the strike was racial.(FN8)

To show pretext, the defense can present "side-by-side comparisons" of venirepersons allegedly struck for racially discriminatory reasons with those who were allowed to serve.(FN9) Evidence of purposeful discrimination is established when the stated reason for striking an African-American venireperson applies to an otherwise-similar member of another race who is permitted to serve.(FN10) In evaluating a Batson challenge, the trial court's "chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case."(FN11)

The trial court's findings with regard to a Batson challenge will be set aside if they are clearly erroneous.(FN12) A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made.(FN13) In light of the totality of the following facts and circumstances, this Court is left with the definite and firm conviction that the trial court was mistaken in this case. . . .

The State used its peremptory strikes to remove five of the six qualified African-American venirepersons. In response to the defense's properly-raised Batson challenge, the State offered explanations for its strikes – some of which, when examined in isolation, appear to have some validity. However, in light of the totality of the facts and circumstances, it becomes obvious that these explanations were merely pretext for the State's exercise of its peremptory strikes for racially discriminatory reasons. "To excuse such obvious prejudice because the challenged party can also articulate nondiscriminatory reasons for the peremptory strike would erode what little protection Batson provides against discrimination in jury selection."(FN25)

"However guilty a defendant may be, the law requires that a conviction only be obtained through a fair trial. The right to sit before a jury of one's peers, chosen not because of race, but because of their standing as citizens doing their civic duty, is essential to a fair trial."(FN26) The trial court's denial of the McFadden's Batson challenge was clearly erroneous. Accordingly, the judgment can not be allowed to stand.(FN27)

Petitioner is on firmer ground in challenging the constitutional adequacy of his trial counsels' performance at the penalty phase of the trial. Initially, James Bruno, Esquire was appointed by the court to represent the petitioner in all of his cases. At that time, the Defender Association [*20]  did not handle capital cases, but it had been decided that the Defender Association would accept such appointments in the near future. Accordingly, it became necessary for lawyers in the Defender Association office to gain experience with capital trials. In furtherance of that goal, an attorney named Dean Owens, Esquire was appointed as co-counsel with Mr. Bruno. Mr. Owens was present during the guilt phase of the trial, but did not participate in conducting the defense. Mr. Owens was not qualified to handle a capital case, in accordance with Philadelphia Criminal Rule 406.

After the jury found petitioner guilty of first degree murder, it was agreed between Mr. Bruno and Mr. Owens that the latter would take the lead during the penalty phase. Although petitioner argues that this was done without petitioner's consent, and served to deprive him of counsel of his choice, I conclude that the real issue is whether, in its totality, petitioner's representation by counsel at the penalty phase complied with constitutional requirements. I have no hesitation in concluding that it did not.

Petitioner had had a particularly deplorable upbringing. He was abandoned by his father at a very early [*21]  age, was frequently absent from school because he had no shoes or warm clothing to wear, was physically beaten by siblings at the behest of his mother, who was an alcoholic and largely bereft of maternal instincts. According to his school records, he was, at best, borderline retarded, and suffered from learning disabilities and other psychological problems. As a teenager, he was struck in the head with a metal jack-handle, and suffered severe injuries. He was hospitalized for nine days, and at least two expert witnesses have now opined that he suffered permanent brain damage as a result.

It is very clear that, if counsel had fulfilled their obligation of conducting a reasonable investigation, see Rompilla v. Beard, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), very significant evidence could have been presented to the jury in mitigation of the penalty.

Mr. Bruno did interview some of the family members before any of the trials, and also arranged to have petitioner interviewed by a psychologist, Dr. Tepper. Dr. Tepper interviewed petitioner for a period of about an hour and a half, and gave Mr. Bruno a written report of his findings, which were rather non-committal and [*22]  non-specific. Apparently, Mr. Bruno sought Dr. Tepper's advice primarily on the issue of whether petitioner had the mental capacity to understand his Miranda warnings, and to validly waive his right to counsel before giving his confession.

Mr. Bruno had not obtained any of petitioner's school records, or the hospital records concerning his head injury, and Dr. Tepper did not consider any of the information disclosed by those records.

Mr. Bruno and Mr. Owens did not actually begin to prepare for the penalty phase in this case until after the jury had found petitioner guilty of first degree murder. At that point, they notified petitioner's mother and arranged to have various family members available to testify and, apparently in consultation with other lawyers from the Defender Association, decided what their trial strategy would be. It was agreed that Mr. Owens would take the lead in presenting the case to the jury, because he was the son of a prison official, and had more knowledge of prison conditions than Mr. Bruno. It was thought that Mr. Owens might be able to persuade the jury that, on the one hand, prison life itself provided severe punishment for crime, and, on the other hand,  [*23]  that many prisoners could be successfully reformed and rehabilitated.

At the start of the penalty-phase trial, petitioner's counsel proceeded on the assumption that both lawyers would be able to make an opening presentation to the jury, but the trial judge (understandably enough) ruled that only one lawyer could make an opening statement, and that only one lawyer could examine each witness.

Mr. Owens then proceeded to present the testimony of petitioner's mother, sister, and other family members. The apparent intent of counsel was to establish that petitioner had had a difficult childhood, with few advantages; that he was fun-loving and good-humored, that he had been close to his "stepfather" who had recently died, and had been devastated by that loss; and that he was extremely disappointed because he had narrowly failed to pass the exam for his GED.

Unfortunately, the trial record makes clear that Mr. Owens had not given much thought to the specific questions he would ask each witness; more importantly, it is clear that the witnesses did not know what questions to expect, and were frequently surprised and caught off guard by the questions that were asked. Mr. Owens did establish,  [*24]  with some difficulty, that, on occasion, petitioner had been known to help out older people by running errands, without accepting compensation. No evidence contained in, or derived from, petitioner's school records or medical records was presented.

At the PCRA hearing, petitioner's new counsel presented the testimony of two experts, Dr. Barry Crown and Dr. Richard Dudley, who testified that the petitioner has organic brain damage which substantially impaired his ability to conform his conduct to the requirements of law, and that he suffered from Post-Traumatic Stress Syndrome. The PCRA court found that petitioner's trial counsel satisfied the Strickland standard because the testimony of petitioner's experts was "thoroughly refuted by Dr. John Gordon, a neuropsychologist, who testified for the Commonwealth at the July 16, 1997 PCRA hearing." This factual finding is, in my view, not supported by the record. Although Dr. Gordon disagreed with some of the conclusions expressed by the other two experts, he simply did not address all of their opinions, and certainly did not "thoroughly refute" their testimony. Moreover, and more importantly, I believe the state courts have addressed [*25]  the wrong issue. The issue is whether petitioner's counsel did or did not conduct a reasonably adequate investigation (clearly, they did not), and whether, if they had, they would have unearthed evidence which might very well have persuaded the jury that there were mitigating circumstances of sufficient weight to justify a sentence of life imprisonment.

It must be remembered that petitioner's counsel at trial suggested only two possible mitigating factors -- petitioner's young age (but he was 25) and his alleged lack of a previous history of criminal violence (but, by stipulation, he had just committed felony-murder a few days before the killing involved in this case). Petitioner's counsel cannot be held responsible for the weakness of the two mitigating factors which were tendered to the jury, but they were patently ineffective in a constitutional sense for failing to investigate and to uncover readily available evidence in support of additional specific mitigating factors.

The failure to conduct a reasonable investigation in preparation for the penalty-phase trial would, without more, warrant vacating the death sentence in this case. But there is more: petitioner's counsel seemed [*26]  to be operating on the assumption that sympathy for the defendant's plight could be accepted by the jury as a reason for choosing a life sentence. Indeed, Mr. Owens submitted a point for charge to that effect, and argued to the jury in that vein. Under Pennsylvania law, however, sympathy is not to be considered unless it arises from the evidence of other, authorized, mitigating factors. Under the governing statute, the jury was permitted to consider two specific mitigating factors (age of the defendant, and absence of previous crimes of violence) and a "catch-all" factor based upon evidence concerning the circumstances of the crime and the characteristics of the defendant. Thus, if the jury was paying attention to the judge's charge in this case, the only valid mitigating factor presented by defendant's counsel which the jury could properly consider, was the age of the defendant. And, as noted above, he had attained the age of 25.

In addition to the constitutional ineffectiveness of petitioner's counsel at the penalty phase, the jury arguments advanced by the prosecutor are a cause for concern. The prosecutor's opening address, and closing argument at the guilt-phase trial were decidedly [*27]  aggressive, replete with expressions of the prosecutor's own opinions about the case, etc. The closing argument at the penalty phase went even further, and seems designed to create a lynch-mob mentality on the part of the jury. At the very least, it represents an unacceptable appeal to class prejudice, an "us against them" approach to the case. It is to be hoped that, if there is to be a retrial of the penalty phase, these errors will be avoided.