Since the last edition eight executions in three states were stayed or
permitted a brief reprieve. As succinctly noted by the Death Penalty Information Center,
"[t]he governor of Ohio
granted 3 stays to further study the possibility of clemency. One Texas
execution was stayed by the U.S. Supreme Court for review in relation
to a pending decision in a similar Texas case. Another Texas execution
was stayed for a state court to examine new evidence. And in North
Carolina, a state judge stayed three executions because of lethal
injection challenges."
In a major noncapital sentencing case, the Supreme Court in Cunningham v. California struck down the California noncapital scheme. In the latest line of Apprendi cases the Court reaffirms, 6-3, that jurors and not judges must determine facts. California's sentencing scheme, no matter how the state courts dress it up, requires judicial fact finding under its determinative sentencing law.
As noted in greater detail below, the Indiana Supreme Court has
issued an order staying
the
execution of Norman Timberlake, who was scheduled to be executed on
January 19th. The Indiana 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.
In Maryland
this week a bill to repeal its death penalty and replace it
with life without parole was introduced and has been co-sponsored by
about 1/4 of the state’s delegates and senators. A similar bill
has been introduced in South Dakota. The
North Carolina Medical Board, which licenses and disciplines doctors in
the state, has unanimously
voted to make it unethical for a physician
to participate in executions. Paris will be hosting the 3rd
World Congress against the death penalty from February 1-3,
2007. LDF & Columbia Law School will be hosting a symposium
entitled "Pursuing
Racial Fairness in Criminal Justice: Twenty Years After McCleskey v.
Kemp" March 2 & 3 at Columbia Law School. Lastly in the
news this past week, Neal
Walker has passed from natural causes with services scheduled for next
Saturday in New Orleans.
Looking ahead to the next edition are two notable
cases. In James
Melton v. Ayers a federal district court in California grants
relief on whether Melton was competent at trial. In Robinson,
et. al v. Beck, et. al a state trial court judge held lethal
injection is a
state regulation subject to the normal course of administrative law and
that certain modifications to the regulations did not follow the normal
course with the result that all executions are now on hold in North
Carolina.
As always, thank you for reading. - k
Stays of Serious Execution Dates
January
24 Larry Swearingen Texas)
25 Ronald Chambers
(Texas)
26 Marcus Robinson (North Carolina)
February
2James Thomas (North Carolina)
9 James Campbell (North Carolina)
Pending Executions
February
7 James Jackson (Texas)
22 Edward
Harbison (Tennessee)
22 Newton Anderson (Texas)
27 Donald
Miller (Texas)
March
6 Robert Perez (Texas)
7
Joseph Nichols (Texas)
20 Kenneth Biros (Ohio)
28 Vincent Gutierrez (Texas)
29 Roy Pippin (Texas)
Supreme Court
Cunningham v. California, No. 05-6551
(1/22/2007) Under the Sixth Amendment, save waiver by the Defendant,
juries, not judges, determine facts. California's sentencing
scheme, no matter how the state courts dress it up, requires judicial
fact finding under its determinative sentencing scheme.
In Favor of Life
or
Liberty
Robinson,
et. al v. Beck, et. al, 07 CVS 001109 (N.C. Super. Wake 1/25/2007)
The deletion of physician involvement in the execution process has not
been properly reviewed under state administrative law and therefore
pending executions must be stayed under such review is undertaken.
Favoring Death
Stephen
Moody v. Quarterman, 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 including sufficiency; race-based strikes by the state and admission in the penalty phase of an unrelated murder and another assault for which Draughn had been charged, but not convicted.
Christopher
Emmett v. Kelly, 2007 U.S. App. LEXIS 1405 (4th Cir 1/23/2007)
(dissent) Relief denied on two claims of ineffective assistance
of counsel at sentencing: "(1) failure to adequately investigate
Emmett’s family and social background; and (2) failure to request the
assistance of a toxicologist or substance abuse expert to present
evidence about Emmett’s intoxication at the time of the crime." HAT has more analysis.
Noncap
Selected Excerpts from, & Commentary on, this Edition's Cases
In a long-awaited decision handed down today, the United States
Supreme Court, in Cunningham v. California, concluded that California
's determinate sentencing law (DSL) violates the Constitution's Sixth
Amendment right to a jury trial under the principles established in
Apprendi v. New Jersey and subsequently refined in Blakely v.
Washington and United States v. Booker.
At issue in
Cunningham is a sentencing scheme that authorizes three terms of
imprisonment — a lower, middle, and upper term sentence. Much the same
as the original sentencing provisions in New Jersey's Code of Criminal
Justice, the DSL directs the sentencing judge to begin with the middle
term, and to move from that term only when the court finds and places
on the record facts — whether related to the offense or offender — that
sustain statutory and non-statutory mitigating and aggravating factors.
A judge may impose an upper term sentence only when he or she finds an
aggravating factor. In addition, these findings must, under the DSL, be
established by a preponderance of the evidence.
Writing for the
majority, Justice Ginsburg concluded that "the middle term prescribed
in California 's statutes, not the upper term, is the relevant
statutory maximum. Because circumstances in aggravation are found by
the judge, not the jury, and need only be established by a
preponderance of the evidence, not beyond a reasonable doubt, the DSL
violates Apprendi's bright-line rule . . . ."
Regarding the
appropriate remedy, Justice Ginsburg stated that the ball lies in
California 's court. She further observed that while some states have
responded to Apprendi by requiring the jury, rather than a judge, to
find certain facts relevant to sentencing, "others have chosen to
permit judges genuinely 'exercise broad discretion . . . within a
statutory range which 'everyone agrees' encounters no Sixth Amendment
shoal."
On January 17, 2007, the Indiana Supreme Court issued an order staying the execution of Norman Timberlake, who was scheduled to be executed on January 19th. Timberlake v. State, ___ N.E.2d ___, 2007 WL 102583 (Ind. Jan. 17, 2007). That same court, on December 15, 2006, had denied his request to file a successive petition for post-conviction relief. In that petition, Timberlake sought to raise a claim that it would violate his state and federal constitutional rights to execute him “because he is severely mentally ill, insane and incompetent to be executed.” An independent psychiatrist had evaluated Timberlake at the request of the court. The expert found that Timberlake suffers from “an active and severe form of a serious mental disease” and that Timerlake believed that he was being “tortured by a computer-driven machine at the behest of prison officials.” However, the expert also found that Timberlake understood he was to be executed and why. The majority of the court therefore found that Timberlake failed to meet the Ford v. Wainwright 477 U.S. 399 (1986) standard for incompetency to be executed.
In granting a stay of execution, the court observed that the United States Supreme Court has never squarely adopted the incompetency test the court applied to Timberlake’s claim, which was taken from Justice Powell’s concurring opinion in Ford. Further, the recent cert grant 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.” After comparing Timberlake’s situation with Panetti’s, who believes that he is being “persecuted for his religious activities and beliefs,” the Indiana Supreme Court found sufficient similarities in the cases to justify staying the execution.