Captial Defense Weekly 2007

Capital Defense Weekly

Decisions from some unusual suspects are noted repeatedly this edition.

The Pennsylvania Supreme Court in two cases, Comm. v. Damon Jones and Comm. v. Samuel Carson, orders a remand for further proceedings on counsel's alleged ineffectiveness. In Carson the court orders an evidentiary hearing on the reasonableness of trial counsel´s investigation which missed his traumatic upbringing and resulted in a failed penalty phase defense. In Jones the remand is ordered on a layered ineffectiveness claim, specifically on whether appellate counsel should have raised an ineffectiveness claim on direct appeal as to trial counsel's failure to investigate.

In a trilogy of cases, Charles Summers v. State, Donte Johnson v. State, and Marlo Thomas v. State, the Nevada Supreme Court holds that the Confrontation Clause is not applicable to the penalty phase of a trial on the basis of the U.S. Supreme Court´s decision in Williams v. New York. Writing in Summers, a LWOP case, the Court holds that "neither the Confrontation Clause nor Crawford apply to evidence admitted at a capital penalty hearing and the decision in Crawford does not alter Nevada´s death penalty jurisprudence. Because Summers did not enjoy a right to cross-examine the declarants who were the source of alleged testimonial hearsay within documentary exhibits admitted at his capital penalty hearing, he has shown no error occurred on this issue."

On January 5, 2006, the Supreme Court granted the cert petition of Texas death row inmate Scott Panetti. Panetti v. Quarterman, 06-6407. The case below is Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006). The question presented is: "Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the State is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?"

A week after the Panetti cert grant the Supreme Court granted cert on the state's petition in Uttecht v. Brown, 06-413. The question presented is: "In Wainwright v. Witt, 469 U.S. 412 (1985), and Darden v. Wainwright, 477 U.S. 168 (1986), this Court held that a state trial judge may, without setting forth any explicit findings or conclusions, remove a juror for cause when the judge determines the juror´s views on the death penalty would substantially impair his or her ability to follow the law and perform the duties of a juror. The Court further held that a federal habeas court reviewing the decision to remove the juror must defer to the trial court´s ability to observe the juror´s demeanor and credibility, and apply the statutory presumption of correctness to the judge´s implicit factual determination of the juror´s substantial impairment. Did the Ninth Circuit err by not deferring to the trial judge´s observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law?" I should note that this is a Judge Kozinski opinion below & a head scratcher as to how it got cert as it is well within the normal range of life/death-qualification jury selection relief granted cases.

Other notable Supreme Court news includes Wednesday’s oral arguments on “Texas Day” at the Supreme Court when the Court will hear three different capital cases from Texas; Wednesday, coincidentally, is the 30th anniversary of the resumption of executions with the killing of Gary Gilmore by firing squad). The transcript of the recent oral argument in Schriro v. Landrigan is here.

In the news, most notably since the last edition, is the New Jersey Study Commission Report which called for abolition of the death penalty and a vastly expanded Life Without Parole law. In Kentucky & Pennsylvania recent polling strongly indicates erosion for the support of the death penalty where an alternative of life without parole or a substantial term of years is an option. The Connecticut Supreme Court, apparently sitting in something that approximates a “single justice session,” issued an order permitting discovery of the state’s capital charging practices.

Looking ahead to the next edition, the South Carolina Supreme Court in State v. Troy Burkhart orders a new penalty phase ordered on the use by the State at trial of evidence of prison conditions. In Brandon Washington v. State the Alabama Court of Criminal Appeals remands as the the trial court sentenced Washington without a presentence investigation and report but rather used an old Pardons & Parole youthful-offender report

Full edition is available at http://www.capitaldefenseweekly.com/archives/070108htm.

As always, thank you for reading. - k

Executions

January
9 Corey Hamilton (Oklahoma)
10 Carlos Granados (Texas)

Pending Executions

January
17 Johnathan Moore (Texas)
23 Kenneth Biros (Ohio) (stayed)
24 Larry Swearingen Texas)
25 Ronald Chambers (Texas)
26 Marcus Robinson (North Carolina)
30 Christopher Swift (Texas-volunteer)

February
13 James Filiaggi (Ohio) (potential LI related stay)
22 Edward Harbison (Tennessee)
22 Newton Anderson (Texas)
27 Donald Miller (Texas)

March
6 Robert Perez (Texas)
7 Joseph Nichols (Texas)
28 Vincent Gutierrez (Texas)

More Execution information

SCOTUS

U.S. v. Resendiz-Ponce, No. 05–998 (01/09/07) Indictment at issue was not defective therefore the Court need not the issue on which it had granted cert, whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error.

Burton v. Stewart, No. 05-9222 (01/09/07) Relief denied as the habeas corpus petition, in a very fact specific determination, was filed out of time.

In Favor of Life or Liberty

Week of December 25, 2006

Comm. v. Samuel Carson, 2006 Pa. LEXIS 2555 (PA 12/27/2006) Remand ordered for a hearing on counsel's performance at trial. “Here, the PCRA court did not conduct an evidentiary hearing on the reasonableness of trial counsel´s investigation. We, therefore, possess only the trial record to evaluate the substance of appellant´s mitigation claims. During appellant´s mitigation case, trial counsel presented testimony from his sister, father, paramour, and childhood friend to demonstrate that appellant was an intelligent and generous man. No testimony at the penalty hearing hinted at the traumatic upbringing appellant claims his trial counsel failed to uncover. In 1990, appellant participated in a court-ordered mental health evaluation where he was labeled as having a Mixed Personality Disorder and was described as exhibiting average intelligence, fair social judgment, and some impulsive tendencies."

Comm. v. Damon Jones, 2006 WL 3831333; 2006 Pa. LEXIS 2565 (PA 12/29/2006) Remanded for further proceedings on Jones’s claim of ineffective assistance of appellate counsel for failing to raise trial counsel’s ineffectiveness. (After Jones was sentenced to death, post-verdict motions were filed by a new attorney alleging ineffective assistance of trial counsel and the subsequent appeal was handled by another attorney. This occurred before the Pennsylvania Supreme Court ruled that all claims of ineffective assistance of trial counsel should be reviewed as part of a collateral appeal.) On remand, the lower court is to decide: (1) whether appellate counsel had a reasonable basis for failing to argue that trial counsel was ineffective for failing to investigate and present evidence regarding two statutory mitigators; and (2) whether appellate counsel´s failure in this regard prejudiced Jones.

Advance Sheet for Week of January 8, 2007

Brandon Washington v. State, 2007 Ala. Crim. App. LEXIS 16 (Ala Crim App 1/11/2007) Remand ordered for a new sentencing hearing as "the trial court erred when it sentenced him without the benefit of a presentence investigation and report.

State v. Troy Burkhart, 2007 S.C. LEXIS 7 (SC 1/8/2007) New penalty phase ordered as the State at trial was permitted to introduce impermissible evidence of prison conditions and privileges Burkhart could earn if sentenced to life without parole.

Favoring Death

Week of December 25, 2006

Terry Short v. Sirmons, 2006 U.S. App. LEXIS 31758 (10th Cir 12/26/2006) Relief denied on claims including: 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; 3) prosecutorial misconduct; 4) ineffective assistance of counsel in failing to object to victim impact evidence and to the prosecutorial misconduct; and 5) cumulative error.

People v. Bob Williams, 2006 Cal. LEXIS 15409 (Cal 12/28/2006) Relief denied despite a juror's use of copied pages from the Bible and reading some of the verses aloud in the deliberations room, including a New Testament exhortation to submit to the authority of magistrates. Holding the error harmless, the Court goes on to find it “merely counseled deference to governmental authority and affirmed the validity of sitting in judgment on one’s fellow human beings according to the law.” Findlaw notes the other issues include: 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.

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. Nawaz Ahmed, 2006 Ohio App. LEXIS 7000 (Ohio App 7th 12/28/2006) Relief denied on: (A) failure to hold an evidentiary hearing; (B) competency for post-conviction purposes; (C) adoption of the State's proposed findings; (D) recusal; (E) failure to address pro se claims for relief; (F) prosecutorial misconduct (race baiting); (G) failure to object & other IAC grounds; (H) inaccurate translation; (I) juror misconduct; (J) Vienna Convention; (K) competency / sanity; (L) communal cross-section for jurors; and (M) cumulative error.

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.”

Week of January 1, 2007

United States v. Ronald Robinson, et al, 2007 U.S. App. LEXIS 299 (2nd Cir 1/5/2007) Dismissed for want of appellate jurisdiction over claim that the death notice was not provided a reasonable time before trial as required by the Federal Death Penalty Act.

Earl Ringo v. Roper, 2007 WL 14360, 2007 U.S. App. LEXIS 97 (8th Cir. 1/4, 2007). Relief denied on claims relating to: whether "counsel was ineffective in failing to investigate and to present testimony at both the guilt and penalty phases of his trial that he suffered from post-traumatic stress disorder (PTSD)"; failure to present evidence "about the violence and neglect that he suffered during his childhood;" and "the state trial court erred by denying his discovery request for the racial and gender composition of the grand jury that indicted him."

Corey Hamilton v. Jones, 2007 WL 18926, 2007 U.S. App. LEXIS 116 (10th Cir. Jan. 4, 2007) Injunctive relief & stay of execution denied on claims relating to lethal injection.

Edwin Turner v. State, 2007 Miss. LEXIS 2 (Miss 1/4/2007) Relief denied on: (A) IAC and (B) Apprendi/Ring

Advance Sheet for Week of January 8, 2007

Melvin Bonnell v. Mitchell, 2007 U.S. App. LEXIS 691 (6th Cir 1/8/2007) (unpublished) Relief deneid on claims that: "(1) that the state improperly suppressed exculpatory evidence, (2) that the district court erred in denying him discovery and an evidentiary hearing on his allegations of suppression and destruction of such exculpatory evidence, (3) that the prosecution failed to correct materially false testimony at trial, and (4) that the prosecution was guilty of misconduct throughout the trial."

United States v. Emile Fort, et al, 2007 U.S. App. LEXIS 323 (9th Cir 1/8/2007) (dissent) In an opinion already called "absurd" the panel reverses a "district court protective order that had disclosure when the government thumbed its nose at the court's request for assistance in drafting.. . .[The majority reasons] that the reports fell under work product and analysis. This case itself dealt with an alleged violent gang in a project." The Federal Defender's of the Ninth Circuit have more.

Rocky Snow v. Sirmons, 2007 U.S. App. LEXIS 325 (10th Cir 1/8/2007) Relief denied on: (1) claims of ineffective assistance of counsel at: (A) trial (failure to challenge the in-court identifications made by Newland and Russell; to request a continuance after Campbell was added at the last minute as a witness for the state;to object to the state's entry of irrelevant evidence; and to investigate and present additional evidence to raise a reasonable doubt as to his guilt) and (B) on appeal (alleged to forgive procedural default), as well as (2) Brady for the suppression of police video and notes relating to witnesses statements.

Ex parte Charles Hood, 2007 Tex. Crim. App. LEXIS 14 (Tex. Crim App 1/10/2007) (majority / dissent) Relief denied on timing of a challenge to the Texas special questions & how those questions in their prior form, the so-called “nullification instruction,” failed to give juries meaningful assistance in channeling jury discretion. The Court holds that the challenge could have been brought following Penry II even though the CCA was consistently holding at that time that such a claim was without merit.

Ronnie Gardner v. Galetka, 2007 Utah LEXIS 4 (Utah 1/12/2007) On "certification of a question of state law from the United States District Court for the District of Utah. The question to be addressed is the following: 'If Mr. Gardner had raised the ineffective assistance of counsel claim at issue in Gardner v. Galetka ("Gardner III") in state court in a successive petition in 1990, would the petition have been procedurally barred?'"

State v. Borchardt, No. K-1999-2077 (Md. 1/12/2007) Loss on IAC claims & geographical disparity, with dissents on both of those issues. The dissent argues that Borchardt should at least be entitled to discovery on the geographical disparity argument. “Additionally, and more important, an adequate presentation of specific evidence of discrimination by the defendant cannot occur without adequate discovery from the State.. . . The Paternoster study illustrates that death-eligible defendants in Baltimore County are more likely to receive a sentence of death than in any other county. This study alone satisfies the [United States v.] Armstrong standard, justifying further discovery.”

Selected Excerpts from, & Commentary on, this Edition's Cases

[T]he Pennsylvania Supreme Court issued its decision upholding the denial of the bulk of Carson’s claims for post-conviction relief. Commonwealth v. Carson, ___ A.2d ___, 2006 WL 3813791 (Pa. Dec. 27, 2006). In finding Carson entitled to a hearing on his “layered” ineffectiveness claim, the Pennsylvania Supreme Court stated: “Here, the PCRA court did not conduct an evidentiary hearing on the reasonableness of trial counsel´s investigation. We, therefore, possess only the trial record to evaluate the substance of appellant´s mitigation claims. During appellant´s mitigation case, trial counsel presented testimony from his sister, father, paramour, and childhood friend to demonstrate that appellant was an intelligent and generous man. No testimony at the penalty hearing hinted at the traumatic upbringing appellant claims his trial counsel failed to uncover. In 1990, appellant participated in a court-ordered mental health evaluation where he was labeled as having a Mixed Personality Disorder and was described as exhibiting average intelligence, fair social judgment, and some impulsive tendencies. Psychological Evaluation by Jules De Cruz at 2. This evaluation was not presented at appellant´s mitigation hearing. Although appellant had one other mental health evaluation immediately following his conviction in this case, appellant refused to cooperate with the licensed psychologist, Lawrence Bryne, M.Ed. Trial counsel attempted to introduce appellant´s Glen Mills records at his sentencing hearing, after being given a copy of them by the prosecutor just before the hearing, but was prevented from doing so without a witness to authenticate them.

[¶] Now, appellant offers medical opinions supporting his claim of brain damage, in the form of signed declarations, from Dr. Barry Crown, a licensed psychologist, and Dr. Richard Dudley, licensed in psychiatry, each post-dating the conclusion of appellant´s direct appeal. Appellant also offers signed declarations from his mother, father, sister, and brother asserting that trial counsel did not question them about appellant´s childhood, which allegedly may have contributed to appellant´s purported medical condition. Most notably, appellant´s trial counsel signed a declaration essentially admitting he was ineffective.

[¶] While the PCRA court summarily dismissed appellant´s underlying claim as meritless, we are unable to reach such a judgment where no hearing was held on appellant´s factual proffer or the reasonableness of trial counsel´s investigation. Although the proffer in this case is not as strong as in some others, and counsel here did put on a case in mitigation which attempted to portray appellant in a positive light, we cannot agree with the PCRA court that the claim respecting trial counsel fails as a matter of law. The deficiencies in appellant´s proffer are certainly fair game, both as a matter of credibility and as a matter of assessing the ultimate question. But they are matters that should be assessed only after a hearing where the credibility of appellant´s experts, his family members, and his trial counsel can properly be evaluated. Accordingly, we find that the appropriate course is to remand this layered ineffectiveness claim to the PCRA court for an evidentiary hearing. In remanding, we make no predetermination concerning the ultimate strength of the claim; that is for the PCRA court in the first instance. We remind the parties, as well, that this claim is layered, and that appellant bears the burden of proving appellate counsel ineffective.”

[T]he Pennsylvania Supreme Court upheld the lower court’s finding that trial counsel was ineffective in the sentencing phase of Damon Jones’s trial, but reversed the grant of a new sentencing hearing. Commonwealth v. Jones, ___ A.2d ___, 2006 WL 3831333 (Pa. Dec. 29, 2006). Instead, the state supreme court remanded for further proceedings on Jones’s claim of ineffective assistance of appellate counsel for failing to raise trial counsel’s ineffectiveness. (After Jones was sentenced to death, post-verdict motions were filed by a new attorney alleging ineffective assistance of trial counsel and the subsequent appeal was handled by another attorney. This occurred before the Pennsylvania Supreme Court ruled that all claims of ineffective assistance of trial counsel should be reviewed as part of a collateral appeal.) On remand, the lower court is to decide: (1) whether appellate counsel had a reasonable basis for failing to argue that trial counsel was ineffective for failing to investigate and present evidence regarding two statutory mitigators; and (2) whether appellate counsel´s failure in this regard prejudiced Jones. As for Jones’s claims relating to the guilt determination, the state supreme court affirmed the lower court’s denial of relief.

At trial, defense counsel presented no evidence in mitigation. At the post-conviction evidentiary hearing, he stated that he declined to obtain psychological evaluations of Jones because his interaction with Jones during trial led him to believe that Jones did not need one. The lower court ruled that trial counsel was ineffective for failing to investigate available information that would have produced evidence to support the statutory mitigating circumstances: (1) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and (2) other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. Among the documents submitted into evidence at the post-conviction relief hearing were Juvenile Court, school, and incarceration records that detailed Jones’s history of mood swings, auditory and visual hallucinations, and difficulty staying in touch with reality. Dr. Julie Kessel, a forensic psychiatrist, testified that Jones suffers from “schizophrenic disorder paranoid subtype.” Dr. Delores Sarno-Kristofis, a clinical and forensic psychologist, opined that Jones suffers from schizophrenia and did at the time of the offense. Although the Commonwealth’s expert, Dr. John O´Brien, disagreed with the schizophrenia diagnosis, he did concede that schizoid personality can be a premorbid antecedent to a delusional or schizophrenic disorder. He also said that on the basis of the psychological examinations available at the time of Jones’s trial from previous court evaluations, he would have recommended another evaluation for possible use as mitigation. Testimony from family and friends revealed that: “(1) Jones was one of nine children born to seven different fathers; (2) there was no father figure in the home, and the men who did occasionally live in the home abused both the children and their mother; (3) his mother was an alcoholic who suffered from mental illness, abused the children, and offered them no affection or support; (4) the family lived in a housing project that experienced rampant drug dealings and crime; (5) Jones was left to fend for himself from a very early age, rarely attended school, and began to show signs of mental illness at the age of nine; and (6) as he grew, Jones began to experience rapid mood swings, auditory and visual hallucinations, and difficulty staying in touch with reality.” In upholding the lower court’s ruling, the state supreme court cited, among other cases, Wiggins v. Smith, 539 U.S. 510 (2003) and Williams v. Taylor, 529 U.S. 362 (2000).

    On January 4, 2007, the Eighth Circuit (Arnold, with Bye and Melloy), issued its opinion affirming the denial of Earl Ringo’s habeas petition. Ringo v. Roper, ___ F.3d ___, 2007 WL 14360 (8th Cir. Jan. 4, 2007). The district court had issued a COA on two ineffective assistance of counsel claims and the court of appeals expanded the COA to include a discovery claim.

    The first claim was that trial counsel were ineffective in failing to develop and present evidence at both phases of the trial that Ringo suffered from post-traumatic stress disorder (PTSD). Counsel had hired several experts including a neuropsychologist. This expert had found that Ringo had normal neurological functioning and intelligence. He did note, however, that some testing showed positive scores related to PTSD and so advised counsel that it “might be prudent” for a clinical psychologist to review the test results. Guilt phase counsel explained in post-conviction proceedings that she did not follow through on this advice because by the time she realized she should consult another expert she did not believe she had the time to do so and thought the trial court would deny a continuance. Penalty phase counsel testified that she did not believe that Ringo suffered from diminished capacity although she did not recall the neuropsychologist’s test results or his advice.

    The panel noted that were it permitted de novo review of the claim, it might well find that counsel were deficient in not following-up on the neuropsychologist’s advice. The panel observed that the neuropsychologist was respected by counsel. In addition, given the severe physical abuse Ringo had suffered during his youth, the panel thought that the PTSD suggestion would have rung true to counsel. In the panel’s view, “the relationship between such experiences and PTSD, a mental impairment caused by trauma, would have been apparent to most attorneys.” Further, Ringo told the police that he shot the victim because he was startled by him, which might well have led a reasonable attorney to pursue PTSD to defeat the prosecution’s assertion that the killing was deliberate. The panel also found that a reasonable attorney might well have concluded that a PTSD diagnosis would be helpful at the penalty phase.

    Irrespective of how it would have ruled had the issue of counsel’s conduct been before it de novo, the panel found relief barred by 28 U.S.C. § 2254(d). In concluding that the state court’s finding of no deficient performance was not unreasonable, the panel noted, among other things, that the neuropsychologist had found no evidence of a neurological disorder, had not diagnosed Ringo as suffering from PTSD, and his recommendation for further review of the issue was “decidedly mild.” The panel went on to observe that Ringo “faced significant obstacles” in establishing prejudice.

    Next, the panel addressed the claim that trial counsel were ineffective in not presenting testimony from a childhood development specialist. Trial counsel explained that she had decided not to call that witness because she wanted the emphasis during the penalty phase to be on Ringo’s mother, who testified along with three other family members about Ringo’s traumatic upbringing. The state supreme court found that counsel had made a reasonable and informed strategic decision. This finding was not unreasonable, according to the panel.

    Finally, the panel rejected Ringo’s claim that the state court erred in denying his request for discovery of the racial and gender composition of the grand jury that indicted him. The state court had found the claim procedurally barred, a finding that the panel did not address because the state court had also rejected the claim on the merits in a ruling that was not unreasonable. (The state court had found, among other things, that what Ringo requested would not have provided grounds for a constitutional challenge because such a challenge requires proof of substantial underrepresentation of a class of persons for a significant period of time.)

Corey Hamilton v. Jones, 2007 WL 18926, 2007 U.S. App. LEXIS 116 (10th Cir. Jan. 4, 2007) Injunctive relief & stay of execution denied on claims relating to lethal injection. From CapDefNet's Week-At-a-Glance:

    On January 4, 2007, the Tenth Circuit (Tacha, O’Brien and Tymkovich) affirmed the denial of injunctive relief to Corey Hamilton, and also denied his request for a stay of execution. Hamilton v. Jones, ___ F.3d ___, 2007 WL 18926 (10th Cir. Jan. 4, 2007). Hamilton had filed a lawsuit under 42 U.S.C. § 1983 on October 27, 2006, challenging Oklahoma’s lethal injection protocol. After an evidentiary hearing, the district court denied Hamilton’s request for a preliminary injunction. The denial was premised on Hamilton’s delay in bringing the challenge and his failure to show a likelihood of success on the merits. The Tenth Circuit found no abuse of discretion in either ruling.

    The panel noted two different ways in which Hamilton was guilty of unreasonable delay. First, he waited years to pursue administrative remedies despite his knowledge of legal challenges to lethal injection protocols. Second, after exhausting those remedies in May 2006, he waited five months before filing this action. Hamilton’s explanation that he was without counsel back in May of 2006 was unpersuasive to the district court since he could have initiated proceedings pro se and requested the appointment of counsel to assist him. The panel was convinced by review of Hamilton’s administrative grievance submissions that he was capable of accomplishing this. As to the merits, the district court had found that Hamilton had failed to establish a risk of harm of constitutional magnitude. The primary criticism of the protocol was its failure to provide for monitoring of the inmate for signs that the sodium thiopental was in fact reaching the inmate and effecting anesthetization. The district court found the risk of failure too remote to rise to a constitutional level in light of the precautions already included in the Oklahoma protocol. The panel concluded: “[W]hile monitoring of anesthetization level is the optimal practice appropriate for a surgical operating room (where, significantly, lower doses of anesthetic are used in order to minimize post-surgical ‘emergence’ complications that have no counterpart in the execution setting), the risk inherent in the lethal-injection procedure under review is already so attenuated that we cannot say there is a significant likelihood that a challenge to the protocol under the minimal requirements imposed by the Eighth Amendment on executions could succeed on our record.” The panel also found that the district court properly discounted the materiality of evidence about the recent botched execution in Florida given that “the Florida protocol made no provision for the qualifications of the person(s) responsible for establishing and confirming the patency of the IV, while the Oklahoma protocol places this responsibility in the hands of an EMT-P, a professional expressly recognized as fully qualified for this purpose by the experts in this case.”

    On January 8, 2007, the Supreme Court denied Hamilton’s cert petition and his request for a stay of execution. Justices Stevens and Souter would have granted the stay. Corey Hamilton was executed on January 9, 2007.

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