Two wins are noted this edition.
New scholarship is noted. The Harvard Civil Rights-Civil Liberties Law Review's summer 2006 edition focuses on the AEDPA.. Four articles are noted on that subject:The Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996 by Thomas C. O'Bryant; Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases by Bryan Stevenson; "The Power of the Pen": Jailhouse Lawyers, Literacy, and Civic Engagement by Jessica Feierman; and A Corrections Quandary: Mental Illness and Prison Rules by Jamie Fellner. Of the four articles perhaps the most notable is that by Thomas C. O'Bryant as he may be the first inmate author in a major American law review.
As promised last week, find
below Poindexter
v. Mitchell.
Relief was granted to Poindexter on claims of counsel's failure to
investigate and present certain mitigation evidence. In concurrence the
Circuit's Chief Judge throws a bombshell, that, bluntly put states, "it
might well appear to a disinterested observer that the most incompetent
and ineffective counsel that can be provided to a convicted and
death-eligible defendant is a fully-investigated and competent
penalty-phase defense under the precedents of the Supreme Court and of
our court."
In Ex Parte Stanley Stephens
the Alabama Supreme Court granted relief
as the trial court judge incorrectly instructed the jury about
aggravating
circumstances during the sentencing phase. The jury recommended 10-2
for a death sentence. Under Alabama law ten is the minimum number of
votes required to recommend a death
sentence, a change of one vote could have altered the
outcome of the case.
New scholarship is noted. The Harvard Civil Rights-Civil Liberties Law Review's summer 2006 edition focuses on the AEDPA.. Four articles are noted on that subject:The Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996 by Thomas C. O'Bryant; Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases by Bryan Stevenson; "The Power of the Pen": Jailhouse Lawyers, Literacy, and Civic Engagement by Jessica Feierman; and A Corrections Quandary: Mental Illness and Prison Rules by Jamie Fellner. Of the four articles perhaps the most notable is that by Thomas C. O'Bryant as he may be the first inmate author in a major American law review.
In other new scholarship, the
current
issue of the Cardozo Public Law, Policy
and Ethics Journal reports on a year-long pilot program using
blind sequential lineups by Nancy Steblay ("an eyewitness
scientist" at Augsburg College in Minneapolis), Amy Klobuchar (now
serving her second term as Hennepin
County Attorney), and Hilary Lindell Caligiuri (an Assistant Hennepin
County Attorney) entitled “Improving
Eyewitness Identifications:
Hennepin County’s Blind Sequential Lineup Pilot Project.” An
article in the July Scientific American
examines the extent to which the television program "C.S.I." and
similar forensically-focused programs have increased the expectations
of jurors in criminal trials. M.
Houck, "CSI:
The Reality," Scientific American,
July 2006,
pp.84-89 (podcast).
In highlights from the daily blog, the Innocence Institute of
Point Park University's website has an exceptionally good post on innocence
stories around the web, including a state by state breakdown of
developing innocence related stories. DPIC
notes the "California
Commission on the Fair Administration of Justice has unanimously
recommended that state lawmakers require electronic recording of all
jailhouse interrogations." The ABA has published the long awaited Ethics
Opinion 06-441
that calls upon indigent defenders to refuse additional cases or
withdraw from current cases where the ABA/NLADA case load standard per
year
(150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health, 25
appeals, or any combination thereof) is exceeded if such an overload
impairs an attorney's ability to zealously advocate for their clients.
Looking ahead to
the next edition, at least two wins will be noted. In Getsy
v. Mitchell a Sixth Circuit panel tackles the issue of moral
culpability and rationality in sentencing finding that the a death
sentence for the least culpable member of a murder for hire plot (where
no one else received a death sentence) violates the Eighth Amendment.
In State
v. Roberts the Ohio Supreme Court remands for a new
sentencing as the trial
court received the "assistance" of the trial prosecutor in preparing
its sentencing opinion.
As
always, thanks
for
reading. -
k
Full edition is available at http://www.capitaldefenseweekly.com/archives/060731.htm.
Full edition is available at http://www.capitaldefenseweekly.com/archives/060731.htm.
Recent Executions
August
3 William Wyatt Jr. (Texas)
Scheduled Executions
AugustMore Execution information
8 Darrell Ferguson (Ohio--vol)
11 David Dawson (Montana--vol)
17 Richard Hinojosa (Texas)
18 Samuel Flippen (North Carolina)
22 James Malicoat (Oklahoma)
24 Justin Chaz Fuller (Texas)
28 Elijah Page (South Dakota--vol)
29 Eric Patton (Oklahoma)
31 Derrick Frazier (Texas)
In Favor of Life or Liberty
Dewaine Poindexter v. Mitchell, 2006 U.S. App. LEXIS 18469 (6th Cir. 7/24/2006) In a bitter set of concurring opinions relief is granted as "any mitigation strategy to portray Poindexter as a peaceful person was unreasonable since that strategy was the product of an incomplete investigation."
Ex Parte Stanley Stephens (In Re: Stanley Stephens v. State of Alabama) (dissent), 2006 Ala. LEXIS 183 (Ala 7/28/2006) The trial court's misinstructed the jury on the governing law as it at existed at the time of the offense.
United States v. Chadrick Evan Fulks, 2006 U.S. App. LEXIS 18799 (4th Cir 7/27/2006) Relief denied on claims relating to: "(1) the district court erroneously permitted the prosecution to present testimony from two witnesses not included on its pretrial witness list; (2) the court abused its discretion in qualifying three jurors who were unconstitutionally prone to impose the death penalty; (3) the court abused its discretion in denying Fulks a new trial on the basis of a juror's failure to disclose during voir dire that her first husband had been murdered; (4) the court abused its discretion in qualifying two jurors whose life experiences rendered them incapable of impartially deciding Fulks's case; (5) the court abused its discretion in excluding testimony concerning three polygraph examinations of Fulks; (6) the court abused its discretion in permitting Donovan's sister to read to the jury a 1990 letter that Donovan had written her; and (7) the court erred in concluding that the relaxed evidentiary standard applicable to capital sentencing proceedings is constitutional."
United States v. Shannon Wayne Agofsky, 2006 U.S. App. LEXIS 19085 (5th Cir 7/28/2006) "[W]e hold that Federal Murder, as charged in this indictment, is the same offense for double jeopardy purposes as Murder by a Federal Prisoner. Accordingly, we vacate Agofsky's convictions for Federal Murder and Murder by a Federal Prisoner; on remand the district court should enter a guilty verdict, as the Government may elect, of either Federal Murder or Murder by a Federal Prisoner." Relief deneid on other claims relating to a cryptic jury note about polling; sufficiency of evidence as to "especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim," aggravator, and inconsistent verdicts between the guilt and penalty phases.
United States v. Carlos Ayala-Lopez, 2006 U.S. App. LEXIS 18798 (1st Cir 7/27/2006) Relief denied in this interlocutory appeal. "The order denying the "Motion to Strike the Government's 'Third Notice of Intent to Seek the Death Penalty Against Carlos Ayala Lopez'" is affirmed. The "United States' Motion to Strike Interlocutory Notice of Appeal for Lack of Jurisdiction" is denied as moot."
State v. Tyree Roberts, a/k/a Abdiyyah Ben Alkebulanyahh, 2006 S.C. LEXIS 250 (S.C. 7/24/2006) In the sole issue on direct appeal relief denied on "whether the trial court erred in requiring him to remain present during the sentencing phase of his trial. "
State v. John Martini, 2006 N.J. LEXIS 1143 (NJ 7/25/2006) (dissent) On successive post-conviction petition relief denied on "claims that the trial court erred in instructing the penalty phase jury that, to the extent possible, it should attempt to "reach agreement" on the existence of the mitigating factors, and that his appellate counsel was ineffective for failing to raise that issue on direct appeal."
State v. Carey Moore, 272 Neb. 71 (Neb 7/28/2006) Challenge to manner of execution can not be brought in Nebraska pursuant to a post-conviction motion.
Chauncey S. Starling v. State, 2006 Del. LEXIS 407 (Del 7/24/2006) "This Court has concluded that the death sentence for Starling for each murder conviction was not imposed either arbitrarily or capriciously. This Court has also determined that Starling's death sentence for each murder conviction is not disproportionate to the sentences imposed in other First Degree Murder cases that have proceeded to a penalty hearing pursuant to the Delaware death penalty statute. Accordingly, the sentence of death for each murder conviction is affirmed."
Selected Excerpts from, & Commentary on, this Edition's Cases
Dewaine
Pondexter v. Mitchell,
2006 U.S. App. LEXIS 18469 (6th Cir. 7/24/2006) In what should
have
been a low publicity grant of relief due to counsel's failure to
investigate the Sixth Circuit's Chief Judge goes out of his way to
continue to fan the flames of that circuit's "civil war" around the
death penalty.
Poindexter had a troubled upbringing and suffers from a paranoid disorder that likely caused him to distrust others and be defensive of his own actions. [*42] Further, Eisenberg's testimony would have helped the jury understand Poindexter's attitude towards Tracy Abernathy. However, trial counsels' investigation was so minimal that they never uncovered available evidence of Poindexter's difficult upbringing and paranoid personality disorder. Both the Supreme Court and this Court have acknowledged that evidence of a psychological condition, a history of mental illness within the family, and a background of abuse and neglect are mitigating factors that a capital defendant has a right to present at sentencing. See, e.g., Wiggins, 539 U.S. at 536-37; Williams, 529 U.S. at 370-71; Powell, 332 F.3d at 396; Glenn, 71 F.3d at 1207. In short, we conclude that had counsel investigated and presented a fuller and more accurate description of Poindexter's troubled childhood, and paranoid personality disorder, there is a reasonable probability that the jury would not have recommended the death sentence. See Wiggins, 539 U.S. at 537 (noting that the prejudice prong is satisfied if "there is a reasonable probability that at least one juror would have struck a different balance"); [*43] cf. Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 2468-69, 162 L. Ed. 2d 360 (2006) (holding that had counsel conducted an adequate investigation, the jury would have heard evidence of alcohol abuse, schizophrenia, and a highly abusive family life, which would have destroyed the "benign conception" presented by the petitioner and some family members and likely would have influenced the jury's appraisal of the petitioner's culpability).
For these reasons, any mitigation strategy to portray Poindexter as a peaceful person was unreasonable since that strategy was the product of an incomplete investigation.
Ex Parte Stanley Stephens (In Re: Stanley Stephens v. State of Alabama), 2006 Ala. LEXIS 183 (Ala 7/28/2006) The trial court's misinstruction on the governing law as it at existed at the time of the offense and not the statutory change that came in to effect only after the incident was error.
Poindexter had a troubled upbringing and suffers from a paranoid disorder that likely caused him to distrust others and be defensive of his own actions. [*42] Further, Eisenberg's testimony would have helped the jury understand Poindexter's attitude towards Tracy Abernathy. However, trial counsels' investigation was so minimal that they never uncovered available evidence of Poindexter's difficult upbringing and paranoid personality disorder. Both the Supreme Court and this Court have acknowledged that evidence of a psychological condition, a history of mental illness within the family, and a background of abuse and neglect are mitigating factors that a capital defendant has a right to present at sentencing. See, e.g., Wiggins, 539 U.S. at 536-37; Williams, 529 U.S. at 370-71; Powell, 332 F.3d at 396; Glenn, 71 F.3d at 1207. In short, we conclude that had counsel investigated and presented a fuller and more accurate description of Poindexter's troubled childhood, and paranoid personality disorder, there is a reasonable probability that the jury would not have recommended the death sentence. See Wiggins, 539 U.S. at 537 (noting that the prejudice prong is satisfied if "there is a reasonable probability that at least one juror would have struck a different balance"); [*43] cf. Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 2468-69, 162 L. Ed. 2d 360 (2006) (holding that had counsel conducted an adequate investigation, the jury would have heard evidence of alcohol abuse, schizophrenia, and a highly abusive family life, which would have destroyed the "benign conception" presented by the petitioner and some family members and likely would have influenced the jury's appraisal of the petitioner's culpability).
For these reasons, any mitigation strategy to portray Poindexter as a peaceful person was unreasonable since that strategy was the product of an incomplete investigation.
From Chief Judge
Boggs' concurrence:
While I do not assert that the counsel in this or any other case made such a judgment, either consciously or unconsciously, I do note that our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorne
From Judge Daughtrey's concurrence:
While I
concur in Judge
Suhrheinrich's opinion [*63] as an accurate statement of
the current
state of the law in our circuit, I write separately to note the
continuing oddity of the circumstances in cases such as this. To put it
bluntly, it might well appear to a disinterested observer that the most
incompetent and ineffective counsel that can be provided to a convicted
and death-eligible defendant is a fully-investigated and competent
penalty-phase defense under the precedents of the Supreme Court and of
our court. Mills v. Maryland, 486 U.S. 367, 375-84, 108 S. Ct. 1860,
100 L. Ed. 2d 384 (1988). That is, the primary means by which a
prisoner escapes the affirmance of a death sentence in this circuit has
become a finding that "ineffective" counsel was provided at the penalty
phase. See Harries v. Bell, 417 F.3d 631, 637-39 (6th Cir. 2005);
Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003), cert. denied, 543
U.S. 925, 160 L. Ed. 2d 223, 125 S. Ct. 344, 160 L. Ed. 2d 223 (2004);
Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), cert. denied, 541
U.S. 1095, 124 S. Ct. 2815, 159 L. Ed. 2d 261 (2004); Mason v.
Mitchell, 320 F.3d 604 (6th Cir. 2003); Greer v. Mitchell, 264 F.3d 663
(6th Cir. 2001), [*64] cert. denied, 535 U.S. 940,
152 L. Ed. 2d
231, 122 S. Ct. 1323 (2002); Cone v. Bell, 243 F.3d 961 (6th Cir.
2001), rev'd and remanded by Bell v. Cone, 535 U.S. 685, 122 S. Ct.
1843, 152 L. Ed. 2d 914 (2002); Skaggs v. Parker, 235 F.3d 261 (6th
Cir. 2000), cert. denied, 534 U.S. 943, 122 S. Ct. 322, 151 L. Ed. 2d
241 (2001); Gall v. Parker, 231 F.3d 265 (6th Cir. 2000), cert. denied,
533 U.S. 941, 121 S. Ct. 2577, 150 L. Ed. 2d 739 (2001) (suggesting
that penalty phase faults might have been sufficient for habeas relief
had guilt phase faults not been sufficient for relief); Carter v. Bell,
218 F.3d 581 (6th Cir. 2000); Combs v. Coyle, 205 F.3d 269 (6th Cir.),
cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533 (2000);
Austin v. Bell, 126 F.3d 843 (6th Cir.), cert. denied, 523 U.S. 1088,
118 S. Ct. 1547, 140 L. Ed. 2d 695 (1998); Glenn v. Tate, 71 F.3d 1204
(6th Cir. 1995), cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed.
2d 196 (1996). See also Lorraine v. Coyle, 291 F.3d 416 (6th Cir.
2002), cert. denied, 538 U.S. 947, 123 S. Ct. 1621, 155 L. Ed. 2d 489
(2003) [*65] (reversing district court's grant of
habeas relief
based on ineffective assistance of counsel during penalty phase);
Henderson v. Collins, 262 F.3d 615 (6th Cir. 2001), cert. denied, 535
U.S. 1002, 122 S. Ct. 1572, 152 L. Ed. 2d 492 (2002) (same);
Abdur'Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. denied, 534
U.S. 970,122 S. Ct. 386, 151 L. Ed. 2d 294 (2001) (same); Scott v.
Mitchell, 209 F.3d 854 (6th Cir.), cert. denied, 531 U.S. 1021, 121 S.
Ct. 588, 148 L. Ed. 2d 503 (2000) (same). Thus, if counsel provides
fully-effective assistance, and the jury simply does not buy the
defense, then the defendant is likely to be executed. However, if
counsel provides ineffective assistance, then the prisoner is likely to
be spared, certainly for many years, and frequently forever.
And yet, in most cases, and including this one, the ineffectiveness consists in not making greater efforts to dig up and present material that, the courts speculate, would help rather than hurt the defendant. Frazier v. Huffman, 343 F.3d at 794-99. Indeed, our courts, have specifically held that there is no need to show that the evidence [*66] that might have been discovered would have been helpful -- only that a proper judgment could not be made without the investigation when the failure to investigate is thought to be sufficiently serious. Mason v. Mitchell, 320 F.3d at 619-27; Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000); Skaggs v. Parker, 235 F.3d at 269-71; Mapes v. Coyle, 171 F.3d 408, 425-29 (6th Cir.), cert. denied, 528 U.S. 946, 120 S. Ct. 369, 145 L. Ed. 2d 284 (1999). But see Coleman v. Mitchell, 268 F.3d 417, 444-45 (6th Cir.), cert. denied, 534 U.S. 977, 122 S. Ct. 405, 151 L. Ed. 2d 307 (2001). But see also Tyler v. Mitchell, 416 F.3d 500 (6th Cir. 2005); Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000). While no adequate empirical studies seem to have been made, it is just as easy to speculate that the type of "troubled childhood" evidence whose absence is usually faulted would be as damaging as it would be helpful. See generally, Ursula Benetele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation requires Death; and Mitigation is No Excuse [*67] , 66 Brooklyn L. Rev. 1011 (2001); James M. Doyle, Representation and Capital Punishment: The Lawyers' Art: "Representation" in Capital Cases, 8 Yale J.L. & Human. 417 (1996); Paul Litton, The "Abuse Excuse" in Capital Sentencing Trials, 42 Am. Crim. L. Rev. 1027 (2005); Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. L. Rev. 143 (1999); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); Scott Sundby, The Jury as Critic: An Empirical Look at how Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997).
In fact, the usual speculation as to mitigating factors goes in two exactly opposite directions. Some would believe that a person's life should be spared if he had a troubled and violent childhood, which made it difficult to grow up to be the kind of citizen who does not murder people in the especially culpable ways necessary for a death sentence. On the other hand, it is exactly such evidence that might lead a jury [*68] to believe that the convict's life is particularly unworthy, is unlikely ever to improve, and thus he is unworthy of mercy. See Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005). The strength of the opposite line of reasoning is shown by the fact that frequently, when such evidence is available, defense attorneys attempt to show that a person instead possesses considerable redeeming qualities, acquired talents, and turns of mind from a supportive and nurtured youth that makes his life more valuable and particularly worthy to be spared. I hold no brief for either side of this argument, either as a prospective juror myself, or as a prediction as to what jurors will in fact do. I lay this out only to indicate that it is wholly speculative to conclude that the presence of the type of evidence, whose absence ostensibly harms the petitioner, would in fact have spared him had it been presented to the jury.
And thus, we return to the "moral hazard" presented by our current jurisprudence. A somewhat prescient attorney, years ago, in the cases we are now seeing, might implicitly have reasoned (and any sensible attorney today, reading our cases, would have to be blind not to [*69] reason) as follows:
And yet, in most cases, and including this one, the ineffectiveness consists in not making greater efforts to dig up and present material that, the courts speculate, would help rather than hurt the defendant. Frazier v. Huffman, 343 F.3d at 794-99. Indeed, our courts, have specifically held that there is no need to show that the evidence [*66] that might have been discovered would have been helpful -- only that a proper judgment could not be made without the investigation when the failure to investigate is thought to be sufficiently serious. Mason v. Mitchell, 320 F.3d at 619-27; Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000); Skaggs v. Parker, 235 F.3d at 269-71; Mapes v. Coyle, 171 F.3d 408, 425-29 (6th Cir.), cert. denied, 528 U.S. 946, 120 S. Ct. 369, 145 L. Ed. 2d 284 (1999). But see Coleman v. Mitchell, 268 F.3d 417, 444-45 (6th Cir.), cert. denied, 534 U.S. 977, 122 S. Ct. 405, 151 L. Ed. 2d 307 (2001). But see also Tyler v. Mitchell, 416 F.3d 500 (6th Cir. 2005); Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000). While no adequate empirical studies seem to have been made, it is just as easy to speculate that the type of "troubled childhood" evidence whose absence is usually faulted would be as damaging as it would be helpful. See generally, Ursula Benetele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation requires Death; and Mitigation is No Excuse [*67] , 66 Brooklyn L. Rev. 1011 (2001); James M. Doyle, Representation and Capital Punishment: The Lawyers' Art: "Representation" in Capital Cases, 8 Yale J.L. & Human. 417 (1996); Paul Litton, The "Abuse Excuse" in Capital Sentencing Trials, 42 Am. Crim. L. Rev. 1027 (2005); Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. L. Rev. 143 (1999); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); Scott Sundby, The Jury as Critic: An Empirical Look at how Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997).
In fact, the usual speculation as to mitigating factors goes in two exactly opposite directions. Some would believe that a person's life should be spared if he had a troubled and violent childhood, which made it difficult to grow up to be the kind of citizen who does not murder people in the especially culpable ways necessary for a death sentence. On the other hand, it is exactly such evidence that might lead a jury [*68] to believe that the convict's life is particularly unworthy, is unlikely ever to improve, and thus he is unworthy of mercy. See Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005). The strength of the opposite line of reasoning is shown by the fact that frequently, when such evidence is available, defense attorneys attempt to show that a person instead possesses considerable redeeming qualities, acquired talents, and turns of mind from a supportive and nurtured youth that makes his life more valuable and particularly worthy to be spared. I hold no brief for either side of this argument, either as a prospective juror myself, or as a prediction as to what jurors will in fact do. I lay this out only to indicate that it is wholly speculative to conclude that the presence of the type of evidence, whose absence ostensibly harms the petitioner, would in fact have spared him had it been presented to the jury.
And thus, we return to the "moral hazard" presented by our current jurisprudence. A somewhat prescient attorney, years ago, in the cases we are now seeing, might implicitly have reasoned (and any sensible attorney today, reading our cases, would have to be blind not to [*69] reason) as follows:
If
I make an
all-out investigation, and analyze and present to the jury every
possible mitigating circumstance, especially of the "troubled
childhood" variety, it is my professional judgment that I may thereby
increase the probability of this extremely repellant client escaping
the death penalty from 10% to 12%. On the other hand, if I present
reasonably available evidence that I think has as good a chance as any
other in securing the slim chance of mercy from the jury, I will have a
50-99% chance of overturning the extremely likely death penalty
judgment 10-15 years down the road. I will thus have secured many
additional years of life for the client, and he may very likely avoid
capital punishment altogether.
While I do not assert that the counsel in this or any other case made such a judgment, either consciously or unconsciously, I do note that our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorne
From Judge Daughtrey's concurrence:
While
I, too, concur in Judge Suhrheinrich's opinion, I write separately in
order to express my dismay at Judge Boggs's unjustified attack directly
on both the capital defense bar and indirectly on the members of this
court. For the chief judge of a federal appellate court to state that
it is "virtually inevitable" that "any mildly-sentient defense
attorney" would consider playing the equivalent of Russian roulette
with the life of a client is truly disturbing. Such a comment is an
affront to the dedication of the women and men who struggle tirelessly
to uphold their ethical duty to investigate fully and present
professionally all viable defenses available to their clients. It also
silently accuses the judges on this court of complicity in the alleged
fraud by countenancing the tactics outlined.
The fact that the Judge Boggs's sensibilities have been offended by a delay in the State of Ohio's rush to execution in order to ensure compliance with constitutional mandates is, I believe, less indicative of the existence a vast, diabolical, defense-bar conspiracy to derail our criminal justice system than it is consistent with [*72] the persistent problems plaguing the administration of capital punishment. If we are to continue to sanction imposition of the death penalty, we must be willing to guarantee a level of acceptable legal representation for capital defendants that will protect the interests of the accused, as the constitution demands. My experience over more than 30 years on the state and federal appellate benches leads me to the inescapable conclusion, contrary to Judge Boggs's intimations, notthat capital defense attorneys are engaged in a demented, premeditated game of "gotcha" with the courts, but rather that those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both. If Judge Boggs truly wishes to bring finality to murder prosecutions in this circuit, I would invite him to spend less time denigrating the dedicated, but often overwhelmed, attorneys who have accepted the responsibility of representation in these very difficult cases, and more time working for improvement of the system.too, concur in Judge Suhrheinrich's opinion, I write separately in order to express my dismay at Judge Boggs's unjustified attack directly on both the capital defense bar and indirectly on the members of this court. For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.
The fact that the Judge Boggs's sensibilities have been offended by a delay in the State of Ohio's rush to execution in order to ensure compliance with constitutional mandates is, I believe, less indicative of the existence a vast, diabolical, defense-bar conspiracy to derail our criminal justice system than it is consistent with [*72] the persistent problems plaguing the administration of capital punishment. If we are to continue to sanction imposition of the death penalty, we must be willing to guarantee a level of acceptable legal representation for capital defendants that will protect the interests of the accused, as the constitution demands. My experience over more than 30 years on the state and federal appellate benches leads me to the inescapable conclusion, contrary to Judge Boggs's intimations, notthat capital defense attorneys are engaged in a demented, premeditated game of "gotcha" with the courts, but rather that those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both. If Judge Boggs truly wishes to bring finality to murder prosecutions in this circuit, I would invite him to spend less time denigrating the dedicated, but often overwhelmed, attorneys who have accepted the responsibility of representation in these very difficult cases, and more time working for improvement of the system.too, concur in Judge Suhrheinrich's opinion, I write separately in order to express my dismay at Judge Boggs's unjustified attack directly on both the capital defense bar and indirectly on the members of this court. For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.
The fact that the
Judge Boggs's sensibilities have been offended by
a delay in the State of Ohio's rush to execution in order to ensure
compliance with constitutional mandates is, I believe, less indicative
of the existence a vast, diabolical, defense-bar conspiracy to derail
our criminal justice system than it is consistent with
[*72] the
persistent problems plaguing the administration of capital punishment.
If we are to continue to sanction imposition of the death penalty, we
must be willing to guarantee a level of acceptable legal representation
for capital defendants that will protect the interests of the accused,
as the constitution demands. My experience over more than 30 years on
the state and federal appellate benches leads me to the inescapable
conclusion, contrary to Judge Boggs's intimations, not
that capital defense attorneys are engaged in a demented, premeditated
game of "gotcha" with the courts, but rather that those lawyers
representing the absolute pariahs of society are frequently hamstrung
by a critical lack of relevant experience, an obvious lack of time and
resources, or both. If Judge Boggs truly wishes to bring finality to
murder prosecutions in this circuit, I would invite him to spend less
time denigrating the dedicated, but often overwhelmed, attorneys who
have accepted the responsibility of representation in these very
difficult cases, and more time working for improvement of the system.
Ex Parte Stanley Stephens (In Re: Stanley Stephens v. State of Alabama), 2006 Ala. LEXIS 183 (Ala 7/28/2006) The trial court's misinstruction on the governing law as it at existed at the time of the offense and not the statutory change that came in to effect only after the incident was error.
Based on these
facts, the State argued during the sentencing phase that
the statutory aggravating circumstance found in § 13A-5-49(8),
Ala.
Code 1975 - that the murders were especially heinous, atrocious, or
cruel when
compared to other capital offenses - existed. The State also introduced
evidence indicating that the statutory aggravating circumstance found
in Based
on these facts, the State argued during the sentencing phase that the
statutory aggravating circumstance found in § 13A-5-49(8), Ala.
Code
1975§ 13A-5-49(2)
- that the defendant had previously been cconvicted of a violent felony
- existed because Stephens had been conviccted of second-degree assault
for firing a shotgun at Annie in 1992. This evidence was sufficient for
the jury to find that those two statutory aggravating circumstances
existed. By special interrogatory, the jury indicated that it had found
beyond a reasonable doubt that both of these statutory aggravating
circumstances were present.
However, the trial court also instructed the jury that the fact that Stephens "intentionally caused the death of two or persons by one act" [*5] was a statutory aggravating circumstance, and that the guilty verdict in the penalty phase established that this aggravating circumstance applied to Stephens. If the offense had been committed on or after September 1, 1999, that instruction would have been correct. n2 Stephens committed the murders on August 2, 1999. The jury should have been instructed that it could find a maximum of two aggravating circumstances - that the offense was especially heinous, atrocious, or cruel and that the offense was committed by an individual who had previously been convicted of a violent felony. Instead, the jury was effectively instructed that it was required by its verdict in the guilt phase to find as a matter of law the existence of one aggravating circumstance -that Stephens caused the deaths of two persons by a single act - and that it could find as many as two others. n3
To its credit, the State brought this error to the trial court's attention while Stephens's motion for a new trial was pending. The trial court immediately continued the motion and ordered briefs and oral arguments on whether a new sentencing hearing was required. Answering that question in the negative, the trial court denied Stephens's motion for a new trial and again sentenced Stephens to death.
* * * *
It was error for the trial court to instruct Stephens's jury that it could consider as a [*15] statutory aggravating circumstance a circumstance that was not listed in the statute at the time of the offense. Moreover, we cannot conclude beyond a reasonable doubt that the error was harmless.
An error in a penalty-phase jury instruction is subject to harmless-error review. Ex parte Broadnax, 825 So. 2d 233, 236 (Ala. 2001). However, "[t]he harmless error rule is to be applied with extreme caution in capital cases." Ex parte Whisenhant, 482 So. 2d 1247, 1249 (Ala. 1984). To find the error in this capital case harmless, we must be able to state "beyond a reasonable doubt" that a properly instructed jury would nevertheless have recommended a sentence of death. 482 So. 2d at 1248. After reviewing the evidence presented of the aggravating circumstances and the mitigating circumstances, we cannot say with the necessary certainty that the error did not affect the jury's recommendation.
Stephens's defense counsel presented significant mitigating evidence during the sentencing phase of trial. Catherine Lee Boyer, a forensic psychologist, testified that Stephens has a verbal IQ of 73 and a performance IQ of 86, and a combined full-scale [*16] IQ score of 77. She described this score as "borderline." Boyer also testified that the circumstances of the murders were consistent with rage or "extreme emotional state," as opposed to a calculated or planned killing, and that Stephens's behavior in the hours following the murder indicated remorse. Stephens's mother testified that Stephens loved his children, including Nicholas, that he had been a caring and responsible father, and that he "could not have been in his 'right mind'" when he committed the murders.
Despite evidence of the heinous, atrocious, and cruel nature of the offense, and despite Stephens's 1992 attack on Annie, two jurors voted for a sentence of life imprisonment without parole. The jury might have voted for the death penalty if it had been instructed on only the two valid statutory aggravating circumstances. However, we are unable to conclude, beyond a reasonable doubt, that it would have done so.
A recommendation of death must be based on a vote of at least 10 jurors. § 13A-5-46(f), Ala. Code 1975. In this case, a change in only one juror's vote would have prevented the jury from recommending a death sentence. At that point, [*17] one of several things might have happened - the trial court might have instructed the jury to deliberate further, resulting in a vote for either life imprisonment or death, or the court might have declared a mistrial and empaneled a new sentencing jury. § 13A-5-46(g), Ala. Code 1975. This uncertainty requires us to reverse Stephens's sentence and remand the case for resentencing.
However, the trial court also instructed the jury that the fact that Stephens "intentionally caused the death of two or persons by one act" [*5] was a statutory aggravating circumstance, and that the guilty verdict in the penalty phase established that this aggravating circumstance applied to Stephens. If the offense had been committed on or after September 1, 1999, that instruction would have been correct. n2 Stephens committed the murders on August 2, 1999. The jury should have been instructed that it could find a maximum of two aggravating circumstances - that the offense was especially heinous, atrocious, or cruel and that the offense was committed by an individual who had previously been convicted of a violent felony. Instead, the jury was effectively instructed that it was required by its verdict in the guilt phase to find as a matter of law the existence of one aggravating circumstance -that Stephens caused the deaths of two persons by a single act - and that it could find as many as two others. n3
To its credit, the State brought this error to the trial court's attention while Stephens's motion for a new trial was pending. The trial court immediately continued the motion and ordered briefs and oral arguments on whether a new sentencing hearing was required. Answering that question in the negative, the trial court denied Stephens's motion for a new trial and again sentenced Stephens to death.
* * * *
It was error for the trial court to instruct Stephens's jury that it could consider as a [*15] statutory aggravating circumstance a circumstance that was not listed in the statute at the time of the offense. Moreover, we cannot conclude beyond a reasonable doubt that the error was harmless.
An error in a penalty-phase jury instruction is subject to harmless-error review. Ex parte Broadnax, 825 So. 2d 233, 236 (Ala. 2001). However, "[t]he harmless error rule is to be applied with extreme caution in capital cases." Ex parte Whisenhant, 482 So. 2d 1247, 1249 (Ala. 1984). To find the error in this capital case harmless, we must be able to state "beyond a reasonable doubt" that a properly instructed jury would nevertheless have recommended a sentence of death. 482 So. 2d at 1248. After reviewing the evidence presented of the aggravating circumstances and the mitigating circumstances, we cannot say with the necessary certainty that the error did not affect the jury's recommendation.
Stephens's defense counsel presented significant mitigating evidence during the sentencing phase of trial. Catherine Lee Boyer, a forensic psychologist, testified that Stephens has a verbal IQ of 73 and a performance IQ of 86, and a combined full-scale [*16] IQ score of 77. She described this score as "borderline." Boyer also testified that the circumstances of the murders were consistent with rage or "extreme emotional state," as opposed to a calculated or planned killing, and that Stephens's behavior in the hours following the murder indicated remorse. Stephens's mother testified that Stephens loved his children, including Nicholas, that he had been a caring and responsible father, and that he "could not have been in his 'right mind'" when he committed the murders.
Despite evidence of the heinous, atrocious, and cruel nature of the offense, and despite Stephens's 1992 attack on Annie, two jurors voted for a sentence of life imprisonment without parole. The jury might have voted for the death penalty if it had been instructed on only the two valid statutory aggravating circumstances. However, we are unable to conclude, beyond a reasonable doubt, that it would have done so.
A recommendation of death must be based on a vote of at least 10 jurors. § 13A-5-46(f), Ala. Code 1975. In this case, a change in only one juror's vote would have prevented the jury from recommending a death sentence. At that point, [*17] one of several things might have happened - the trial court might have instructed the jury to deliberate further, resulting in a vote for either life imprisonment or death, or the court might have declared a mistrial and empaneled a new sentencing jury. § 13A-5-46(g), Ala. Code 1975. This uncertainty requires us to reverse Stephens's sentence and remand the case for resentencing.
THE
SMALL PRINT
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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. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. The Weekly's RSS feed can be found at http://rss.groups.yahoo.com/group/capital_defense_weekly/rss. The Daily Copy's RSS/Atom feed at http://capitaldefenseweekly.com/atom.xml.
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