Captial Defense Weekly 2007

Recent legal scholarship is quite voluminious. At the end of this edition find a section entitled "New Scholarship" which covers most, though not all, of the recent scholarship pertaining to capital litigation and the death penalty, as well as select noncapital crimial law articles.

As promised, find likewise the "Year in Review." I had hoped to include the "Year in Review" in just one edition, however, due to the size of that review (and the amazing amount of developments in 2006) the second part of the "Year in Review" will be carried in a future edition. The Death Penalty Information Center's year end report is here.

Billy Ray Nelson v. Quarterman, 2006 U.S. App. LEXIS 31814 (5th Cir 12/11/2006) The Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analysis of the death penalty in Texas.

Ralph Menzies v Galetka, 2006 Utah LEXIS 222 (Utah 12/15/2006) A state statutory right to effective assistance of counsel exists in post-conviction. Counsel performance here is so bad that it was a constructive denial of counsel and hence client need not show prejudice, which is presumed. Note that the language here is strong and undeniable in the support for the ABA standards and good on the issue of fee caps & work-product privilege.

Michael Morales v. Tilton, No. 5:06-cv-00219-JF (N.D. CA 12/15/2006) California's lethal injection protocol, as practiced, is unconstiutional, however it can be fixed.

Ex parte S.K. Hamilton, 2006 Ala. LEXIS 370 (Ala. 12/22/2006) The delay in bringing Hamilton to trial was presumptively prejudicial under Barker v. Wingo.

Corey Smtih v. State, 2006 Ala. Crim. App. LEXIS 306 (Ala. Crim. App 12/20/2006) “Based on the Alabama Rules of Criminal Procedure and the Alabama Supreme Court caselaw quoted above, the circuit court erred when it set a deadline for amendments and stated that it would allow further amendments 'only upon showing of good cause with evidentiary basis.' Instead, the circuit court could have properly denied an amendment only upon a finding of undue delay or undue prejudice.”

Vernon Evans v. State, 2006 Md. LEXIS 836 (Md. 12/19/2006) State regulatory law requires lethal injection regulations to be implemented in the same manner as any other regulation.

Stanley Stephens v. State, 2006 Ala. Crim. App. LEXIS 295 (Ala. Crim. App. 12/20/2006) On remand from the state supreme court new penalty phase trial ordered.

Ex Parte Juan Jose Reynoso, No. WR-66,260-01 (Tex. Crim App. 12/20/2006) Altough unpublished, the Texas Court of Criminal Appeals recognizes what amounts to a minimum threshold of “effectiveness” in postconviction proceedings

Richard Cooey v. Taft, No. 2 :04-cv-01156-GLF (E.D. Ohio 12/21/2006) Judge Frost notes that several other Courts have found undue delay as a reason not to grant a preliminary injection. Biros moved to intervene in the lethal injection litigation on October 18, 2006. On November 30, 2006 the Ohio Supreme Court set an execution date. Finding that Biros should be granted the district court seemingly gives dispositive weight to the fact Biros moved to intervene in the Ohio lethal injection litigation prior to the setting of an execution date.

Comm. v. Samuel Carson, 2006 Pa. LEXIS 2555 (PA 12/27/2006) Remand ordered for a hearing on counsel's performance at trial.

Calvin Shuler v. Jon Ozmint, 2006 U.S. App. LEXIS 30377 (4th Cir 12/11/2006) (unpublished) Relief denied on claims relating to ineffective assistance of counsel for failing to adequately investigate, subornation of perjury by the State's counsel & failing to turn over key impeachment evidence of the State's "star" witness.

In re Angel Diaz, 2006 U.S. App. LEXIS 30274 (11th Cir 12/11/2006) Successor petition denied on "three claims as grounds for his application to file a successive habeas petition: (1) newly discovered evidence of innocence establishes that but for constitutional error no reasonable fact finder would have found Diaz eligible for death; (2) Diaz's conviction and sentence are in violation of Brady v. Maryland; and (3) Diaz's right of confrontation was violated at his trial."

Angel Diaz v. McDonough, 2006 U.S. App. LEXIS 30533 (11th Cir 12/13/2006) Challenge to lethal injection denied.

Paul Hildwin v. State, 2006 Fla. LEXIS 2876 (FL 12/14/2006) Relief denied on the: "(1) denial of a new trial and new penalty phase based on newly discovered DNA evidence that excludes him as the source of semen on underpants and saliva on a wash cloth found at the top of a laundry bag in the victim's car; (2) exclusion of the results of "mock jury" presentations conducted using the new evidence; (3) denial of a new trial on grounds that the evidence suggesting he raped the victim constituted a fatal variance from or constructive amendment of the indictment; and (4) cumulative error."

David Jones v. State, 2006 Fla. LEXIS 2881 (FL 12/14/2006) Relief denied on whether: "(1) whether the trial court erred in denying Jones' claim of ineffective assistance of trial counsel during jury selection and the guilt phase; and (2) whether the trial court erred in denying Jones' claim of ineffective assistance of trial counsel during the penalty phase. " The issues include the subissues of whether the "claims are: (1) appellate counsel was ineffective for failing to raise on direct appeal that the State improperly presented evidence and argument on sexual battery; (2) appellate counsel was ineffective for failing to raise on direct appeal that a witness improperly commented on Jones' credibility; and (3) appellate counsel was ineffective for failing to raise on direct appeal that the State improperly presented evidence and argument regarding a knife and unsubstantiated stab wounds."

Norman Timberlake v. State, 2006 Ind. LEXIS 1103 (Ind 12/15/2006) Relief denied on competency to be executed.

Quinez Hodges v. Mississippi, 2006 Miss. LEXIS 692 (Miss 12/14/2006) Relief denied on post-conviction relief. Trial counsel had less than a year of experience and has since been involuntarily committed to a state psychiatric facility. Issues denied include: (1) prosecutorial misconduct; (2) admission of evidence of other offenses; (3) iac; (4) jury instructions on parole eligibility; (5) improper comments by prosecution during sentencing closing argument; (6) indictment failed to properly charge offense; (7) indictment failed to charge a death penalty eligible offense; (8) jury allowed to consider duplicative aggravating circumstance; (9) removal of juror; (10) introduction of evidence of other crimes; (11) admission of photograph of victim; (12) lesser offense instructions; and (13) failure to include jury instructions in record.

State v. Alexander Polke, 2006 N.C. LEXIS 1297 (N.C. 12/15/2006) Relief denied, on nonpreservation claims, relating to: "(1) whether the trial court abused its discretion by denying defendant's pretrial motion to question prospective jurors about the relative cost of executions versus life imprisonment, (2) whether the trial court committed plain error by submitting the N.C.G.S. § 15A-2000(f)(1) mitigating factor to the jury, (3) whether the trial court committed plain error by failing to submit the N.C.G.S. § 15A-2000(f)(2) and (f)(6) mitigating factors to the jury, (4) whether the trial court committed structural error by failing to submit the N.C.G.S. § 15A-2000(e)(5) aggravating factor to the jury, and (5) whether the trial court committed plain error by failing to intervene ex mero motu during the State's closing argument."

State v. Marvin Johnson, 2006 Ohio LEXIS 3410 (Ohio 12/13/2006) Relief denied on twenty-three propositions of law on direct appeal.

State v. Elmore, 857 N.E.2d 547 (Ohio 12/13/2006) Relief denied on claims including: (A) trial court's denying a request from the jury to allow smoke breaks during deliberations; (B) sufficiency; (C ) trial counsel's effectiveness including failure to present witnesses in the penalty phase; (D) prosecutor's closing; (E) jury instructions (burglary); and (F) proportionality / statutory review.

State v. Michael Rimmer, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 12/15/2006) "Appellant Rimmer timely appeals presenting for our review the following issues: (1) whether the trial court erred in denying the motion for recusal; (2) whether the trial court erred in denying the motion for a continuance; (3) whether the trial court erred in excluding mitigation evidence; (4) whether the prosecutor engaged in misconduct; (5) whether the jury instruction on reasonable doubt was error; (6) whether the Appellant knowingly and voluntarily waived his right to testify; (7) whether it was error for the jury to be informed that the Appellant had been on "death row;" (8) whether the jury verdict was complete; (9) whether cumulative error requires reversal; and (10) whether the Tennessee death penalty statutes are constitutional. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's imposition of the sentence of death in this case."

Richard Austin v. State, 2006 Tenn. Crim. App. LEXIS 970 (Tenn. Crim. App. 12/13/2006) "The coram nobis court below did not abuse its discretion in summarily denying the petition without an evidentiary hearing because the recanted testimony here failed to meet the prerequisite threshold of trustworthiness."

Anthony Graves v. Quarterman, 2006 U.S. App. LEXIS 31233 (5th Cir 12/18/2006) (unpublished) Release of former death row inmate under federal bond does not impede state authority to set bail, even a ridiculiously high bail.

Oba Chandler v. McDonough, 2006 U.S. App. LEXIS 31049 (11th 12/18/2006) Relief denied on “claim that his trial counsel rendered ineffective assistance by failing to move a second time for a change of venue.”

In re Andre Burton, 2006 Cal. LEXIS 14988 (CA 12/18/2006) (dissent) From the dissent: “In this case we are concerned not with petitioner's guilt or innocence or with the competence of his counsel, but with petitioner's fundamental constitutional right to put on a defense at trial.. . . In my view, a defendant who has repeatedly told his attorney he did not commit the crime and wants to contest the charges; who has asserted his confession was false; who has provided the attorney, through the defense investigator, with names of alibi witnesses and eyewitnesses to support his innocence claim; who has responded negatively to his attorney's suggestion that the guilt phase trial could not be won, thereby creating an issue of strategy that the attorney acknowledges was constantly present between them; and who before trial moved four times to have the attorney relieved, complaining in open court, with the attorney present, that the attorney had accepted the prosecution allegations as incontestable and had no interest in investigating the defendant's alibi, is a defendant who has 'clearly expressed [his] desire to present a defense' at the guilt phase of trial'.”

Gerald Marshall v. State, 2006 Tex. Crim. App. LEXIS 2444 (Tex. Crim. App 12/20/2006) Relief denied (including repeated findings of harmless error) on: (A) constitutionality of the Texas scheme following Apprendi; (B) admission of varoius statements attributed to Marshall; (c ) failure to grant a mistrial following admission of certain evidence; (D) confrontation clause issue when a different doctor than the one who performed the autopsy testified to it at trial; (E) failure to admit evidence that another person may have used the weapon previously; (F) failure of the State to correct false testimony; (G) failure to turn over exculpatory evidence; and (H) failure to grant a new trial.

Randy McKinney v. State, 2006 Ida. LEXIS 155 (Id 12/19/2006) Relief denied on claims relating to: (A) perjury by expert witness, (B) retroactivity of Ring; and (C ) prosecutorial misconduct (Brady).

Roy Swafford v. State, 2006 Fla. LEXIS 2947 (FL 12/21/2006) Interlocutory opinion denying relief for additional additional DNA testing. Remand previously ordered for DNA testing.

State v. Tony Gross, 2006 Ohio App. LEXIS 6852 (Ohio 5th App 12/20/2006) Petition held to be untimely filed.

Terry Short v. Sirmons, 2006 U.S. App. LEXIS 31758 (10th Cir 12/26/2006) Denial of a habeas corpus petition in a death penalty case is affirmed over claims of error regarding: 1) exclusion of testimony of a defense witness, which the trial court imposed as a sanction for failure to comply with a discovery order; 2) improper victim impact evidence that resulted in an unconstitutional sentencing process; 3) prosecutorial misconduct; 4) ineffective assistance of counsel in failing to object to the unconstitutional portions of the victim impact evidence and to the prosecutorial misconduct; and 5) cumulative error. [Findlaw's analysis only]

People v. Bob Williams, 2006 Cal. LEXIS 15409 (Cal 12/28/2006) In an automatic appeal in a death penalty case, the conviction and sentence are affirmed in their entirety over claims of error regarding: 1) a failure to appoint Keenan counsel; 2) inadequate investigative funds; 3) prosecutorial failure to give required notice of aggravating evidence; 4) judicial error for indicating during voir dire that the murder was premeditated; 5) a refusal to allow voir dire on question of religious affiliation; 6) Wheeler/Batson challenges; 7) erroneous admission of aggravating evidence; 8) exclusion of tape recording and video recording showing remorse; 9) improper exclusion of mitigating evidence; 10) prosecutorial misconduct; 11) jury instructions; 12) responses to jury questions on a life sentence; 13) juror misconduct; 14) consideration of a probation report prior to a ruling on a section 190.4 motion; 15) constitutional challenges to the death penalty statute; and 16) cumulative error. [Findlaw's analysis only]

Charles Summers v. State, 122 Nev. Adv. Rep. 112 (Nev 12/28/2006) (noncapital) (dissent) Confrontation Clause does not apply to the penalty phase, relying chiefly, on Williams v. New York. Note that the dissent's conclusions about the viability of Williams means this opinion is unlikely to be given wide usage outside of Nevada.

Donte Johnson v. State, 122 Nev. Adv. Rep. 113 (Nev 12/28/2006) Confrontation Clause does not apply to the penalty phase.

Marlo Thomas v. State, 122 Nev. Adv. Rep. 114 (Nev 12/28/2006) Confrontation Clause does not apply to the penalty phase.

State v. Paul Reid, 2006 Tenn. LEXIS 1203 (Tenn 12/27/2006) “We hold that (1) the trial court did not err by finding the defendant competent to stand trial; (2) the trial court did not err by admitting the testimony of the defendant's former employer; (3) the trial court did not err by denying the motion to limit proof regarding the defendant's financial condition; (4) the trial court did not err by refusing to recuse itself from the case; (5) the trial court did not err by allowing the State to introduce evidence of the murders at the Captain D's restaurant to establish the "mass murder" aggravating circumstance; and (6) the defendant's sentences of death are not invalid under the mandatory review criteria of Tennessee Code Annotated section 39-13-206(c)(1). “

William Stevens v. State, 2006 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. 12/29/2006) Relief denied. “On appeal, the petitioner presents a number of issues: (1) the petitioner was denied his right to due process and a fair hearing when the post-conviction court refused to reset the evidentiary hearing even though counsel had not had time to prepare; (2) trial and appellate counsel were ineffective; (3) the State committed prosecutorial misconduct during the petitioner's trial; (4) the trial court erred in refusing to sequester prospective jurors during the jury selection process; (5) the evidence is insufficient to support the convictions; (6) imposition of a death sentence violates the petitioner's constitutional rights; and (7) the rights of Dr. William Kenner were violated when he was not properly compensated for services rendered in this matter.”

As discussed above, egregious lawyer misconduct constitutes an exceptional circumstance that may allow a litigant relief from a default judgment under rule 60(b)(6). Menzies argues that Brass' actions in this case amount to ineffective assistance of counsel and thus he is entitled to relief under rule 60(b)(6). Before addressing whether Brass' actions qualify as ineffective assistance of counsel, however, we must determine whether Menzies has a right to the effective assistance of counsel. Menzies advances three arguments on this point: (1) he [*77] has a statutory right to the effective assistance of counsel pursuant to Utah Code section 78-35a-202 (2002); (2) he has a right to the effective assistance of counsel under the Utah Constitution; and (3) he has a right to the effective assistance of counsel under the United States Constitution.

Several sections of the Utah Code are relevant to Menzies' first argument. Section 78-35a-202(1) provides that "[a] person who has been sentenced to death and whose conviction and sentence has been affirmed on appeal shall be advised in open court, on the record . . . of the provisions of this chapter allowing challenges to the conviction and death sentence and the appointment of counsel for indigent defendants." In addition, section 78-35a-202(2)(a) states as follows:

If a defendant requests the court to appoint counsel, the court shall determine whether the defendant is indigent . . . . If the court finds that the defendant is indigent, it shall promptly appoint counsel who is qualified to represent defendants in death penalty cases as required by Rule 8 of the Utah Rules of Criminal Procedure.

Finally, section 78-35a-202(2)(b) provides [*78] that "[a] defendant who wishes to reject the offer of counsel shall be advised on the record by the court of the consequences of the rejection before the court may accept the rejection."

In T.S. v. State, 2003 UT 54, 82 P.3d 1104, we considered an argument very similar to that made by Menzies, albeit in the context of a proceeding to terminate parental rights. In that case, the petitioner's parental rights had been terminated, and her appointed counsel had failed to file an appeal within thirty days, as required by rule 4(a) of the Utah Rules of Appellate Procedure. Id. PP 1-3. The petitioner moved to file an overdue notice of appeal, arguing that the failure should be excused due to "excusable neglect or good cause" under rule 4(e) of the Utah Rules of Appellate Procedure. Id. P 1. The district court denied the motion, and the Utah Court of Appeals affirmed, relying on the principle that a party is accountable for her attorney's neglectful conduct. Id. PP 4-5.

On certiorari review, we reversed the court of appeals, holding that "rule 4(e)'s 'good cause' exception . . . includes within its reach the unusual circumstance where [*79] a person who is entitled to appointed counsel under [the Utah Code] does not receive effective counsel." Id. P 9. Citing Utah Code section 78-3a-913(1)(a) (1999)--which contains language that is strikingly similar to section 78-35a-202(1)(a)--we stated that "[t]he legislature has expressly codified a parent's right to be represented by counsel at every stage of a termination proceeding." Id. P 7. We noted that "the statute would be meaningless or illusory if it guaranteed only ineffective assistance of counsel. The legislature's omission of 'effective' should not be read to suggest an intent to provide only ineffective assistance of counsel." Id. (internal quotation marks omitted).

Our analysis in T.S. is equally applicable to the case before us. "[B]y extending the right to appointed counsel to [death penalty defendants in post-conviction cases], our legislature has expressly recognized that [these] proceedings are unlike the traditional civil case." Id. P 6. This intent is consistent with our habeas corpus jurisprudence and with the underlying nature and policy of post-conviction death penalty proceedings. Given [*80] the high stakes inherent in such proceedings--life and liberty--providing a petitioner the procedural safeguard of appointed counsel is an important step in assuring that the underlying criminal conviction was accurate. We refuse merely to pay lip service to this legislatively created protection by holding that a petitioner in a post-conviction death penalty proceeding is only entitled to ineffective assistance of appointed counsel. Therefore, we hold that Menzies has a statutory right to effective assistance of counsel under Utah Code section 78-35a-202.

* * *

Having established that Menzies has a statutory right to the effective assistance of counsel, we now address whether he has demonstrated that Brass' performance was ineffective. The analytical framework for assessing ineffective assistance of counsel was originally developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In the federal context, the right to the effective [*85] assistance of counsel is premised on a defendant's right to counsel under the Sixth Amendment to the United States Constitution. Id. at 687. As the Supreme Court has noted, this right is designed to ensure that criminal defendants receive a fair and reliable proceeding before life or liberty are taken. Id. at 686; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (noting that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair [proceeding]" (citation and internal quotation marks omitted)). This fairness is "derive[d] from the adversarial nature of our justice system, which is premised on the 'well-tested principle that truth--as well as fairness--is best discovered by powerful statements on both sides of the question.'" United States v. Collins, 430 F.3d 1260, 1264 (10th Cir. 2005) (quoting Penson v. Ohio, 488 U.S. 75, 84, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988)); see also Strickland, 466 U.S. at 688 (recognizing "the law's presumption that counsel will fulfill [*86] the role in the adversary process that the [Sixth] Amendment envisions"). The right to the effective assistance of counsel therefore ensures the fairness and reliability of proceedings by requiring counsel to adequately discharge his or her role in the adversary process. See, e.g., Flores-Ortega, 528 U.S. at 482 (discussing how the Strickland test requires a litigant to "show[] how specific errors of counsel undermined the reliability of the [proceedings]" (citation and internal quotation marks omitted)); Strickland, 466 U.S. at 691-92 ("The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding."). Thus, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

Michael Morales v. Tilton, No. 5:06-cv-00219-JF (N.D. CA 12/15/2006) California's lethal injection protocol, as practiced, is unconstiutional, however it can be fixed. From Deborah Denno:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

Ex Parte Juan Jose Reynoso, No. WR-66,260-01 (Tex. Crim App. 12/20/2006) Altough unpublished, the Texas Court of Criminal Appeals recognizes what amounts to a minimum threshold of “effectiveness” in postconviction proceedings.

On December 11, 2006, the Fifth Circuit issued an en banc decision granting habeas relief to Billy Nelson on a Penry claim. Nelson v. Quarterman. The opinion was authored by Judge Stewart. A three-judge panel had previously affirmed the denial of habeas relief. The Supreme Court granted Nelson’s petition for writ of certiorari and remanded for reconsideration in light of Tennard v. Dretke, 542 U.S. 274 (2004). On remand, a panel again affirmed the denial of relief. Rehearing en banc was ordered sua sponte and a majority of the en banc court held that “there is a reasonable likelihood that the Texas capital-sentencing scheme precluded the jury from giving full effect to Nelson’s mitigating evidence as required by the Supreme Court.”

The mitigating evidence that Nelson had presented involved: (1) rejection by his mother, who completely abandoned him by age 14; (2) abuse of drugs and alcohol; (3) a troubled relationship with his brother and with women; (4) having fathered a child out of wedlock and being denied a relationship with his child; and (5) testimony that he suffered from a borderline personality disorder. Under the sentencing scheme in effect at the time of Nelson’s trial, the sentence was determined by the jury’s answer to two questions, one about whether the killing was deliberate, and the other about whether Nelson would pose a future danger. When Nelson argued in state court that the jury was not able to give effect to his mitigating evidence, the state court disagreed, noting that the jury was instruction to consider all aspects of his background and character when answering the special issues. Because the case is governed by AEDPA, the Fifth Circuit had to decide whether this ruling was contrary to, or involved an unreasonable application of, clearly established federal law as of the time the state court ruled back in 1994. The majority found that the clearly established law at that time was that a jury had to be able to give “full effect” to all of the defendant’s mitigating evidence. If there was a reasonable likelihood that the instructions were interpreted to preclude full consideration of the evidence, a new sentencing hearing was required. Looking to the evidence Nelson presented, the majority concluded that while the jury may have been able to give partial effect to some of the mitigation through the two special issues, that was insufficient to allow the jury “to express its reasoned moral response” and the Texas court’s contrary conclusion was an unreasonable application of Supreme Court precedent. The State’s belated argument that a Penry violation is subject to harmless error review was rejected by the majority.

Judge Dennis wrote a concurrence in which, among other things, he explained that he had erred when on the three-judge panel in this case he had found that the Brecht harmless error test was applicable to the Penry claim.
Dissents from grant of relief in Nelson v. Quarterman

Chief Judge Jones, joined by Judges Jolly, Smith, Barksdale, Garza and Clements, dissented. Jones pointed out that the same type of evidence presented by Nelson had been presented in many other cases where the Fifth Circuit rejected Penry claims. Therefore, according to Jones, the majority decision suggests a “sea change” from the Fifth Circuit’s understanding of Supreme Court case law. Jones further contended that if “‘full effect’ has become the test for mitigating evidence, rather than ‘some effect’ or ‘within the effective reach of the jury,’ then the majority’s decision is irreconcilable with the Jurek-Franklin-Johnson-Graham line of cases.” In finding that Nelson’s jury was able to give some effect to his evidence by answering the two special issues, Jones argued that Nelson’s mental condition was treatable, unlike Penry’s, so it could provide a basis for the jury to find that Nelson would not pose a danger in the future. Noting that the decision in this case is contrary to prior Fifth Circuit case law construing the relevant Supreme Court precedent, Jones questioned how the state court could be deemed “unreasonable” in its application of the same Supreme Court holdings. Jones concluded with the hope that the Supreme Court will definitively answer whether or not the majority is correct when it issues decisions in the pending Texas cases that raise Penry issues.

Judge Smith issued a separate dissent, although stating that he “enthusiastically join[ed] in the superb dissenting opinions” by the Chief Judge and Judges Clement and Owen. Smith wrote “to highlight the embarrassing procedural tangle caused by the various actions of the Supreme Court and [the Fifth Circuit] in Penry-related cases.” According to Smith, “[a]ny well-intentioned plan” by the Fifth Circuit “to step back and comprehensively review [its] Penry jurisprudence has crashed and burned.” Among other things, Smith noted the disparate treatment by the circuit of cases with Penry issues and pointed out the “peculiar” development of the Supreme Court granting certiorari review in the Brewer case even though a petition for rehearing en banc is still pending in the Fifth Circuit. He concluded by expressing regret that the en banc court issued this decision now instead of waiting for guidance from the Supreme Court.

Judge Clement dissented, joined by the Chief Judge and Judges Jolly, Smith, Barksdale and Garza. She focused on the fact that this case falls under AEDPA and contended: “Since the Supreme Court has not spoken to the precise type of mitigating evidence at issue here – and certainly had not done so by 1994, when Nelson’s conviction became final – it will be difficult to say that, under AEDPA, the state habeas court acted contrary to or unreasonably applied federal law as determined by the Supreme Court.”

Finally, Judge Owen, joined by Judges Jolly and Smith, dissented. She also emphasized “the standard of review that must be applied” and argued that “[i]t was not objectively unreasonable to conclude that Nelson’s mitigating evidence was distinguishable from the mental retardation and low intelligence at issue” in Penry, Tennard and Smith, and was instead more like the “transient qualities of youth” at issue in Johnson v. Texas and Graham v. Collins.

Although the year 2006 has just barely come to a close, many of the lessons of the year are now unavoidable. Slightly over 50 people were executed this year, the lowest number since 1994 and down nearly 50% from the highs of late 90s. Of 2006’s executions well over 80% took place in the South. Of executions occurring outside the South, Ohio conducted more than half. Fourteen states had at least one execution in 2006. Texas killed the most followed by Ohio. The Northeast had no executions in 2006 with the death penalty barely hanging on (outside of Pennsylvania & Delaware) in that region of the country.

Future trends in capital punishment are highlighted by (what is believed to be) just 14 new death sentences in Texas this year & just four in Ohio. In New Jersey a report on the death penalty’s future in the Garden State is due soon. In November, criminal reform candidates, including ardent abolitionists, won widely. Several northeastern Republican candidates, in one of the electoral seasons sharpest surprises, used opposition to the death penalty as a way to court democratic & centrist voters. Electoral changes in Ohio makes continued widespread executions in the nation’s second largest executing state (at least in recent years) seemingly less likely. It was a year not of national changes, although there were many, but of repeated low-key wins in state courts and the lower federal courts.

But 2006 is likely to be remembered not as the year of the needle.

Few people could have suspected that when the Eleventh Circuit denied a stay to Clarence Hill in January 2006 that a firestorm would soon engulf the manner in which executions are carried out. The United States Supreme Court stayed Hill’s execution date. The ultimate question before the Court in Hill was not lethal injection — a three-drug cocktail that anesthetizes, paralyzes the lungs and then causes a massive heart attack – but rather how a challenge to that method of execution is best brought in the federal courts. The resulting year in lethal injection have been tracked regularly here at our blog & Boalt Hall’s DP Project have been tracking the developments all year.

The Court’s ultimate decision in Hill was well summarized by the Habeas Assistance Project:

On June 12, 2006, the Supreme Court unanimously held that Clarence Hill was entitled to challenge the constitutionality of Florida’s lethal injection practice in a civil rights law suit under 42 U.S.C. section 1983, rather than through a habeas corpus proceeding. Hill v. McDonough. This was because Hill’s action, if successful, did not necessarily prevent the State from executing him by lethal injection. Instead, Florida would only be prevented from using a lethal injection procedure that causes a foreseeable risk of gratuitous and unnecessary pain. The Court rejected respondent’s argument that in order to challenge an aspect of an execution procedure in a civil rights law suit, the plaintiff must be required to identify an alternative, authorized method a execution.

The dramatic tension that marked the year in lethal injection perhaps was best offered up by very odd juxtaposition on the same Wednesday night in September. The same Clarence Hill whose botched opinion by the Eleventh Circuit that started off the year of the needle was eventually executed by Florida. His death came hours after the U.S. Supreme Court rejected his final appeal on a 5-4 vote. The same day the Texas Court of Criminal Appeals in Ex parte John Alba ordered in an unpublished memorandum opinion / order, the Texas Court of Criminal Appeals orders expanded briefing on lethal injection procedure in Texas.

Then there was the end of the year spate of lethal injection decisions & reprieves. The flurry of activity started in Kentucky with Franklin Circuit Judge Sam McNamara holding that the state’s administrative procedures act applied to the the lethal injection protocol and then changing his mind and holding that it does not. Vernon Evans would win an indefinite stay when the Maryland Court of Appeals concluded that the regulations governing lethal injection were no different than any other regulation and needed to comply with the state’s administrative law rules. Michael Morales likewise was indefinitely stayed, in his case owing to problems with how California administers its lethal injection protocol; a protocols whose viability wasn’t helped when it was learned that following a putatively botched execution guards responded curtly “shit does happen.” Finally there was Florida where, following the horrible botched execution of Angel Diaz, Governor Jeb Bush stayed that state’s death machine.

The Federal Courts of Appeals

Perhaps the least noted lethal injection story, however, was a stay in Missouri. Justice Alito’s first vote on the Supreme Court appears to have involved “Show Me” state lethal injection litigation. The litigation over the fate of Michael Taylor is ongoing. The district court enjoined Taylor execution save for a protocol it crafted as a remedy. The State appealed. While the appeal was pending Missouri revised its protocol for lethal injections. In the most recent move an Eight Circuit panel held in Michael Taylor v. Crawford that a remand was now needed to determine the constitutionality of the new protocol. Briefs available here. The practical impact of the Taylor litigation appears to be that, save for volunteers & Nebraska’s electric chair, the death chambers in the Eight Circuit – Arkansas, Missouri, & South Dakota – are shuttered for now. The details and breadth of the Taylor related stays have not been worked through, at least not in the public press.

The Eighth Circuit’s jurisprudence details may not have been worked out but the ground rules in the Sixth Circuit defy explanation. Panels of that Court, without much rationale, have let some executions occur & stayed others. As the judge sorting out the lethal injection mess in Ohio has noted:

The other Courts of Appeals are split in to two camps, not having substantively addressed the issue or yet to find the appropriate case to address the merits. Of the circuits that have circumvented the issue of lethal injection three have done so by holding that every claim, or virtually every claim, hae been brought too late – the Fourth, Fifth & Eleventh Circuits, the so-called heart of the death belt.

In addition to the courts of appeal U.S. District Court Judge Ellen Huvelle issued a preliminary injunction staying the three federal executions that had been scheduled for May (of James H. Roane Jr., Richard Tipton and Cory Johnson), apparently, out of concerns over lethal injection.

The States

As previously mentioned, the year end with a bang with courtroom shoot-outs in Maryland and California. With that stated, lethal injection litigation impacted more courts than just those two states & more than just the Sixth & Eighth Circuits.

In California, following the on again, off again execution of Michael Morales, California’s death chamber is again off. First stayed in February the California death chamber appeared to be cranking up when they found a doctor to address some concerns about but at the last moment before the execution of Morales two anesthesiologists retained by DoC refused to take part, saying that it was “medically unethical.” By the of the year the Judge Fogel the federal district court judge sorting out the lethal injection mess in California issued a “memorandum of intended decision ” concluding that California’s “implementation of lethal injection is broken, but it can be fixed.”

Gov. Jeb Bush in Florida suspended all executions in December following a horribly botched lethal injection where the the execution team simply blew it. As the New York Times noted:

Governor Bush’s decision came two days after an executioner failed to properly inject lethal chemical into an inmate. Officials said the needle administering the chemicals punctured the vein and then delivered the dose into the inmate’s soft tissue, rather than the vein itself. A second dose was required, and the inmate died 34 minutes after the initial injection.

As a National Coalition to Abolish the Death Penalty spokesman put it:, “Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether its electrocution or lethal injection.”

In Kentucky that state’s supreme court, while conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, it heldthat using them did not violate the Constitution’s prohibition on cruel and unusual punishment.“ Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain,” Justice Donald C. Wintersheimer wrote for the unanimous court. “The prohibition is against cruel and unusual punishment and does not require a complete absence of pain.” Days thereafter, Franklin Circuit Judge Sam McNamara held, like the Maryland Court of Appeals would a few a days later, that lethal injection is like any other administrative regulation and subject to th administrative procedures act -- unfortunately within days he would reconsider his opinion and find no error.

Maryland’s highest court made the Old Line State the latest court to at least temporarily shutter its death chamber following an effective state court litigation strategy under a state’s administrative procedures act challenging lethal injection regulations. The opinion in Vernon Evans v. State of Maryland holds that state law requires prison officials to submit their lethal injection procedures to public.

As noted above, Missouri’s death chamber is shut for now as it works out its lethal injection protocol. Curiously, the state’s Department of Corrections attempted to have a anesthesiologist participate in the execution process to ensure that its executions were within the parameters set down for it by the Taylor Court. That position drew a harsh rebuke from Am. Soc. of Anesthesiologists. The ASA’s response was quick and sharp: “The legal system has painted itself into this corner and it is not our obligation to get it out,” seemingly ending that option for corrections officials trying to figure out a way to carry out their obligations in a constitutonally permissible and humane manner.

In New Jersey the state’s lethal injection protocol, despite hearings on the subject, was never finalized & proposed regulations appeared to lapse after that state’s legislature voted to impose a moratorium on executions.

In North Carolina, the Fourth Circuit in Brown v. Beck refused to halt the scheduled execution of Willie Brown. Just days before the execution corrections officials changed the lethal injection protocol to include a Bispectral Index monitor or BIS. Fourth Circuit Judge M. Blane Michael dissented from the three-judge panel’s order, and in his dissenting opinion Judge Michael writes, “The clear weight of evidence, however, reveals that the State’s use of the BIS monitor will not adequately ensure that Brown will remain unconscious throughout his execution.”

In Ohio, Judge Gregory Frost, an Ohio federal district court judge has had the unenviable task of sorting through that state’s lethal injection litigation, including who should and should not get stays based on that litigation. The problem for Judge Frost is that the Sixth Circuit can’t figure out what standards are applicable. “Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is.“ “In other words, there is apparently no substantive law of the case [governs] here because there is no apparent consistency to the appellate decisions that have arisen from this litigation. “

In South Dakota Governor Rounds halted the execution of Elijah Page on lethal injection grounds. Governor Rounds purportedly halted the execution saying the 1984 state law detailing how to administer lethal drugs is obsolete. Rounds and the Attorney General said the law requires the state to use two drugs to kill a condemned person — but that prison officials planned to use a three-drug combination, potentially putting them in legal trouble. The execution is tentatively rescheduled for summer 2007.

Finally, the Texas Court of Criminal Appeals in Ex parte John Alba ordered expanded briefing on lethal injection procedure in Texas. For a brief moment it seemed that the nation’s largest death chamber might be slowed or even stopped. That hope was short lived as the Texas death chamber resumed in October with the killing of Greg Summers and, a few days later, both Donell Jackson and Willie Shannon.

And there you have it.

By the end of the year the death chambers in three states, Kentucky, Maryland, and New Jersey, were shuttered out of the failure of their departments of corrections to comply with their respective administrative procedural laws. Governors in Florida and South Dakota shuttered their death chambers for state specific concerns relating to lethal injection. Challenges to the constitutionality of lethal injection has stopped – save volunteers – for now executions by that method in California and the Eight Circuit. The mess in Ohio & the Sixth Circuit appears to mean that executions there will continue on a case – by – case basis.

“I find that confusing — that some inmates have been allowed a stay and others have not,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “It just seems like an arbitrary way of doing it.”

And in 2007? Look for key lethal injection challenges potentially in Oklahoma with the Corey Hamilton execution date (the first since the horrible Florida botch), Ohio with various dates in late January & February (what is the standard in the Sixth Circuit), various Tennessee executions dates scheduled for the coming months (whether the Sixth Circuit’s on again, off again stays are an Ohio only event), and the federal execution of Bruce Webster (in light of the Spring 2006 stays are federal executions on permanent hold).

Next edition the year that was, non-lethal injection developments.

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 capital_defense_weekly-subscribe@yahoogroups.com http://rss.groups.yahoo.com/group/capital_defense_weekly/rss http://capitaldefenseweekly.com/rss.xml

© 1997-2007 COPYRIGHT & FAIR USE NOTICE: In plain English, you can use these materials with attribution for any noncommercial purposes you see fit, (such as professional education, your newsletter, et) but don't take this as as meaning you can use the intellectual property of others because under federal law I simply can't give away the rights of others to their own intellectual property (I have listed some of those items below). Any derivative works must provide at least as equal or greater waiver of intellectual property rights. In legalese, the copyright, disclaimers, notices, & terms of usage are available at capitaldefenseweekly.com/disclaimthis.htm http://creativecommons.org/licenses/by-nc-sa/2.5/http://www.law.cornell.edu/uscode/17/107.shtml

DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. 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 my attempt to show what a given Court held, not whether they reached the right decision. The views expressed herein 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. Note we purposefully do not use Blue Book, or any other traditional, citation form.

AVAILABILITY OF OPINIONS: Most opinions can be found at Lexisone.com Capital Defense Weekly

ISSN: 1523-6684

* Execution date information per Rick Halperin and other sources
As always, please forgive the typos & unorthodox citation methods. Thanks for the tip-offs, thanks for reading & most importantly thanks for all the hard work. - k