Of the favorable dispositions the more notable is State v. Troy Burkhart. During the sentencing phase of his trial Burkhart objected to testimony by the prosecution’s witness James Sligh, the director of inmate classification for the Department of Corrections, regarding the privileges available to an inmate who receives a sentence of life without parole.  “We have long held that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime. The jury’s sole function is to make a sentencing determination based on these factors and not to legislate a plan of punishment. Such determinations as the time, place, manner, and conditions of execution or incarceration ... are reserved ... to agencies other than the jury."

The other favorable disposition is Brandon Washington v. State. In that opinion the Alabama Court of Criminal Appeals orders a remand  for a new sentencing hearing (but not a new penalty phase) as the trial court judge "erred when it sentenced [Washington] without the benefit of a presentence investigation and report."  The process may well be just ministerial and a death sentence may very well be imposed again.

Wednesday appears to have been the Supreme Court’s “Texas Day.” The transcript in Smith v. Texas is here. The transcript in Abdul-Kabir and Brewer is here.  A reading of the cold transcripts suggests from the questioning at oral arguments that the Court may break 5-4 for the condemned. As always, when the drafts of the majority & dissenting opinions circulate the numbers may change, as may the results.  The opinions are likely to turn on Kennedy meaning that the opinions are likely to be narrow.

In the news, Gov. Ted Strickland of Ohio granted temporary reprieves to three inmates scheduled for execution in the next 5 weeks in order to allow more time to consider whether clemency should be granted: Kenneth Biros, James Filiaggi, and Christopher Newton. The California Attorney General and Governor have informed the federal court overseeing the lethal injection process in that state that they will make their recommendations for reforming the existing execution protocol by May 15, 2007. Stephen Henderson, reporter with McClatchy Newspapers, published a group of articles focusing on the death penalty entitled No Defense: Shortcut to Death Row looking at capital sentencing and ineffective assistance of counsel

Looking ahead, the Indiana Supreme Court issued an order staying the execution of Norman Timberlake, who was scheduled to be executed on January 19th. The Indinana Supreme Court last month had denied a petition that claimed "he is severely mentally ill, insane and incompetent to be executed.  Holding that the grant of certiorari in Panetti v. Dretke, indicates the Supreme Court “may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution"

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 Defenders 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.

Robert Peede v. State, 2007 Fla. LEXIS 4 (FL 1/11/2007) (A) competency of postconviction proceedings; (B) iAC penalty phase performace; (C) inadequate mental health examination; (D) Brady; and (E) competency at trial.  Relief denied on habeas corpus petition claims relating to appellate IAC including: (A) failure to challenge other crimes evidence; (B) identification evidence; (C) prosecutor's comments; and (D) confrontation clause.

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.”

Stephen Moody v. Quartermnan, 2007 U.S. App. LEXIS 975 (5th Cir 1/17/2007) The district court's grant of relief on Batson ground relief reversed as it failed to give proper deference to the state court's fact finding.

Van v. Jones, 04-2277 (6th Cir 1/16/2007) Van asks whether a consolidation hearing is a critical stage of the prosecution that triggers a defendant’s right to a lawyer. The petitioner, a Cambodian with limited English skills, was the ringleader of a vicious assault. Van was not represented by counsel at the hearing in which the trial court consolidated Van’s trial with that of three other defendants. The majority concludes that Van was not prejudiced by this decision, so there is no Sixth Amendment issue. Judge Moore dissents, arguing that a consolidation hearing is always a critical stage. Because she would hold that defendants should always have attorneys at consolidation hearings, she concludes that the question of prejudice is irrelevant. (via Rob Loblaw)

Michael Benge v. Johnson, 2007 U.S. App. LEXIS 856 (6th Cir. 1/16/2007) Benge asks whether an attorney in a capital case was constitutionally ineffective for failing to object to flawed jury instructions. As in Van, the majority concludes that the defendant was not prejudiced. Judge Martin dissents, using the case as another opportunity to criticize the death penalty as arbitrary. Here, the only aggravating factor in the underlying murder was that Benge stole the victim’s ATM card while killing her. (via Rob Loblaw)

Glen Rogers v. State,  2007 Fla. LEXIS 13 (FL 1/18/2007) Relief denied most notably on: "(1) the introduction of evidence of a prior misdemeanor assault; (2) the trial court’s failure to grant a mistrial after improperly allowing the introduction of the prior misdemeanor assault in front of the jury; (3) the prosecutor making the “Desert Storm” comment during closing argument of the penalty phase; and (4) appellate counsel’s ineffectiveness in failing to research caselaw and argue on direct appeal that the jury should have been instructed on the statutory mitigator of being under the influence of extreme mental or emotional disturbance based upon all the evidence in the record."

State v. Darrell Draughn,  2007 La. LEXIS 10 (LA 1/17/2007) Relief denied on direct appeal on 27 different issues.

We have long held that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982). The jury's sole function is to make a sentencing determination based on these factors and not to legislate a plan of punishment. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987). "Such determinations as the time, place, manner, and conditions of execution or incarceration . . . are reserved . . . to agencies other than the jury." State v. Plath (Plath II), 281 S.C. 1, 15, 313 S.E.2d 619, 627 (1984) (emphasis added). Based on this reasoning, we have disallowed defense evidence regarding the process of electrocution, State v. Plath (Plath I), 277 S.C. 126, 284 S.E.2d 221 (1981), and expert  [*8]  testimony regarding the deterrent effect of capital punishment. State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996).

Recently, in State v. Bowman, 366 S.C. 485, 623 S.E.2d 378 (2005), the defendant challenged on appeal the admission of evidence regarding general prison conditions. Although we found the issue was not preserved for review, we cautioned the State and the defense bar that such evidence is not relevant to the question of whether a defendant should be sentenced to death or life imprisonment. 366 S.C. at 498-99, 623 S.E.2d at 387.

This case was tried before our decision in Bowman; however, we apply that reasoning here because it is consistent with our long-standing rule that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime. We are aware of the tension between evidence regarding the defendant's adaptability to prison life, which is clearly admissible, n2 and this restriction on the admission of evidence regarding prison life in general. We note, however, that evidence of the defendant's characteristics may include prison conditions  [*9]  if narrowly tailored to demonstrate the defendant's personal behavior in those conditions.

Here, unlike Bowman, appellant objected to the State's evidence regarding general prison conditions. Although appellant attempted to counter the testimony of the State's witness with evidence regarding the harshness of prison life, this entire subject matter injected an arbitrary factor into the jury's sentencing considerations. A capital jury may not impose a death sentence under  [*10]  the influence of any arbitrary factor. S.C. Code Ann. § 16-3-25(C)(1) (2003). When the jury is invited to speculate about irrelevant matters upon which a death sentence may be based, § 16-3-25(C)(1) is violated. State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982). Accordingly, we reverse appellant's death sentence and remand for resentencing.