Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070305.htm]

In a long overdue overdue edition, innumerable wins are noted.  Rather than discussing all the wins in the introduction, I'll note just the more interesting.

The most notable of the wins has to be Glenn Anderson v. Sirmons. Two main issues in the opinion are noted.  First there is the issue of procedural bars and the availability of state post-conviction relief where counsel suffers a real, or even potential, conflict of interest. What appears to be a more important holding, is the merits finding that counsel failed to develop evidence of "borderline mental retardation and childhood poverty and abuse." "Evidence of the type set out above serves to humanize a defendant and explain why an otherwise kind and loving family man can come to participate in a violent, murderous event.. . . [T]he absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution’s assertion Anderson was 'evil'.”

Then there is the Tennessee Supreme Court's opinion in State v. James Riels.  Riels copped a plea and the case went to the penalty phase. Counsel put client on the stand.  They were warned to keep their client on a short leash & that certain slips of the tongue “would open the door” for the prosecutor to examine some areas that would be devastating to the defense. Following  direct the trial court sua sponte held Riels opened the door. In a classic example of the power of cross-examination Riels case was left reeling.   The Riels court holds that the trial court shoud not have interjected itself sua sponte in to the trial. The Court then goes on to add, that the technique used by the Prosecutorshould never again “be admissible during a capital sentencing hearing.”

There there is United States v. Kenneth Parker. In Parker the U.S. Navy-Marine Corps Court of Criminal Appeals looks at Atkins.  After summing up what other courts are doing, it establishes the standads for Atkins for Courts Martial in the naval services.  Especially interesting is the express adoption of the SEM and Flynn Effect as part of the scaling process for IQ scores in mental retardation cases.

The South Carolina Supreme Court in State v. Clinton Northcutt, for the death of  his four month old daughter.  The Northcutt Court reverses on the trial court's permitting admission in to "evidence that in October, 2000, nearly two months prior to the baby’s death, Appellant accidentally injured her while removing her from a swing-seat.  The baby was diagnosed with and treated for a spiral fracture of the leg. " The "trial judge erroneously admitted evidence the baby suffered a broken leg at age ten-weeks when Appellant removed her from a swing-seat."  That error was further companded with the State's sentencing-phase closing argument by stating a life sentennce would declare an “open season on babies" and by concluding "his argument by producing a large black shroud and draping it over the baby’s crib.

The last of the notable wins is Commonwealth v. Beth Ann Markman.  That case returns to a familiar error, Bruton . "Appellant’s name was replaced with a phrase that was an obvious (and indeed explicit) substitution, and the jury was admonished not to consider the statement as evidence against Appellant. The redactions by their nature alerted the jury to the fact of alteration, and they did “not likely fool anyone” as to whose name had been removed -- particularly as Housman and Appellant were the only two defendants in the courtroom, and, as discussed previously, the tape itself contained two instances in which Housman’s express references to “Beth” were left intact." The co-defendant's "confession represented the only proof directly refuting Appellant’s" defense of duress.

On a more personal note,  a very large apology to the good folks at DePaul Law for not spilling more ink on their seminar on Atkins v. Virginia. I wanted to highlight it last weekend on the blog & email edition, but for well documented reasons, technical problems prevented it.

Note that the normally run "Excerpt & Commentary" section is not included, but will be included online Monday night as I have jury selection in a fairly routine felony case Monday & but nonetheless need to return my attention to that file.   As always thank for reading and if you feel something got missed or you need to let us know about an upcoming event please feel free to shoot us an email. - k

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