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Capital
Defense Weekly The lead
news of the week,
despite a few capital case victories, is a hard fought legislative loss
in Maryland. As the Baltimore
Sun reports
reports, that "[a]fter weeks of behind-the-scenes wrangling and an
emotional hearing, the Senate Judicial Proceedings Committee defeated a
proposal today to repeal the death penalty in Maryland. The committee's
5-to-5 vote is expected to bury the measure for the General Assembly
session." The vote effectively deals a defeat to one of the two major
death penalty repeal efforts scheduled for the year.
Three
relatively minor capital "wins" are noted. The Eleventh Circuit for the
second time remands in Siebert v. Allen,
this time via summary order, for the district court to address
all
unresolved issues "including questions of procedural bar and the
resolution of claims which were exhausted on direct appeal." The South
Carolina Supreme Court in Joseph
Ard v. Catoe
grants relief on trial counsel's failure to adequately cross a
prosecution witness and counsel's failure to investigate the expert's
findings. Finally, an intermediate appellate court in Ohio vacates a
contempt finding in State
v. Jason Dean, et.al, where the trial court got too personally
embroiled in the matter to objectively judge whether or not counsel was
in contempt.
In other
news, in Missouri
a moratorium bill is winding its way though committee. The
Great Falls Tribune
notes a bill to abolish the death penalty in Montana died a quick but
painful death Monday in the House Judiciary Committee when it was voted
down 8-9. In Georgia
HB 185
passed out of committee making it easier for a jury to give
someone the death penalty, the committee amended the bill from 9-3
non-unanimous verdict to 11-1. In
Oregon
"some
Oregon lawmakers are considering a moratorium on the death penalty
while a task force determines whether the punishment deters crime and
and whether it would be cheaper to imprison people for life rather than
execute them."
In Omaha "lawmakers debated whether or not to change the state's
death penalty." In Arizona "Maricopa
County
is struggling to manage nearly 140 death penalty cases in the court's
pipeline, [t]he problem has gotten so bad that the public defender
system has run out of lawyers who are qualified to handle death cases.
"The
government of Iraq,
which was heavily criticized internationally for the way it executed
Saddam Hussein, wants to abolish the death penalty, its human rights
minister said on Wednesday." Finally, Judge Frederic Block of the
United
States District Court in Brooklyn noted in the New
York Times
this week what a miserable failure the federal death penalty has
been in
New York & what those same tax dollars could have bought in the
criminal justice system.
A new work
is available
entitled Litigating
in the Shadow of Death by the late Welsh White. The book is
an account of the ways in which defense attorneys represent capital
defendants. The author brings to light the paramount role these
attorneys have played in shaping the modern system of capital
punishment, showing how highly skilled defense lawyers are sometimes
able to avoid death sentences for their clients even in very difficult
cases. In other cases, attorneys have demonstrated to the public that
some innocent defendants are sentenced to death. To order the book or
read a few chapters of the text go here.
Looking
ahead, no notable win
yet reported for the week that just passed. Two relatively
routine "favorable"
opinions are noted in
Michael Hall v. Quarterman, COA granted pursuant to Atkins v.
Virginia, and Randy
Arroyo v. Quarterman, relief granted due to age at the time of the
offense. A rather remarkable loss is noted in Robert
Comer v. Schriro where the Ninth Circuit en banc upholds the right
of an
inmate to drop an otherwise meritorious habeas appeal in order to have
the state assist him in his death (note that the last page of the
dissent has a fairly shocking picture of how Comer appeared at his
sentencing hearing).
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
Recent Executions Pending Executions
Siebert v. Allen, 2007 U.S. App. LEXIS 5270 (11th
Cir. 3/7/2007)
Summary order remanding. Under the law of the case doctrine the district court could not raise sua sponte the issue of a statute of limitations defense. Rather than continue piecemeal litigation the district court ordered to address all unresolved issues "including questions of procedural bar and the resolution of claims which were exhausted on direct appeal." HAT, as always, has more. Joseph Ard v. Catoe, 2007 S.C. LEXIS 79 (S.C. 3/5/2007) Relief granted as Ard's attorneys did not cross-examine a State Law Enforcement Division expert about gunshot residue on the decedent's hands and failed to investigate the expert's findings. State
v. Jason Dean, et.al, 2007 Ohio App. LEXIS 966 (Ohio App 2nd
3/9/2007)
Finding of contempt reversed as the trial court was too personally embroiled in the matter to objectively judge whether or not counsel was in contempt. Favoring Death Virgil
Martinez v. Quarterman,
2007 U.S. App. LEXIS 5445 (5th Cir 3/8/2007)
"After considering all of
the mitigating evidence, we hold that the additional mitigating
evidence was not so compelling, especially in light of the horrific
facts of the crime, that the sentencer would have found a death
sentence unwarranted. At the very least, the Texas Court of Criminal
Appeals's decision finding no ineffective assistance of counsel was not
‘objectively unreasonable'."
Burley Gilliam v. Secretary Dep't of Corrections, 2007 U.S. App. LEXIS 5182 (11th Cir 3/6/2007) Relief denied on claims that
prosecution suppressed a police report indicating that the decedent had
a history of prostitution, and ineffective assistance of counsel
relating to: (1) failure of trial counsel to adequately use police
reports in its possession; (2) "opening the door" to evidence of his
prior rape conviction; (3) failing to present mitigating evidence to
the jury during the sentencing phase and for choosing to present such
evidence only to the judge; (4) "counsel failed to investigate and
present additional mitigating evidence of Gilliam's substance abuse and
abusive childhood, as shown by the additional expert testimony
submitted in his state postconviction proceedings;" and (5) "counsel
failed to make an effective closing argument to the jury at the penalty
phase."
Philip Hancock v. State, 2007 Okla. Crim. App. LEXIS 6 (Okla. Crim. App. 3/9/2007) Relied denied on all but
noncapital charges which are reversed and remanded. Relief also denied
on sufficiency of the proofs on the elements of first
degree malice murder as the State failed
to meet its burden of proving that Hancock was not acting in
self-defense; the only possible conviction on the proofs was first
degree manslaughter; admission of a prior homicide conviction;
and irrelevant instructions, coupled with the prosecutor's misleading
argument, conveyed to the jury that Mr. Hancock was not legally
entitled to act in self-defense, violated the Eighth and Fourteenth
Amendments to the United States Constitution.
Ex
parte Carl Blue, 2007 Tex. Crim. App. LEXIS 318 (Tex. Crim. App.
3/7/2007)
Relief denied on Atkins claim holding it has been procedurally defaulted. Leon Winston v. Warden, 2007 Va. LEXIS 43 (Va. 3/7/2007) Petitioner's various claims alleging ineffective assistance of counsel are rejected, and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised. Interestingly, the Winston Court reaffirms the bar despite the appellant raising an actual innocence claim.
Michael
Hall v. Quarterman, No. 06-70041 (5th Cir 3/16/2007)(unpublished)
COA granted pursuant to Atkins v. Virginia.
Randy
Arroyo v. Quarterman, 2007 U.S. App. LEXIS 6034 (5th Cir
3/15/2007)(unpublished)
Robert
Comer v. Schriro, 2007 U.S. App. LEXIS 6035 (9th Cir
3/7/2007)(en banc)
Court
en banc upholds the right of an
inmate to drop an otherwise meritorious habeas appeal in order to have
the state assist him in his death. [more here
& here]
Charlton Akee Turner v. Quarterman, 2007 U.S. App. LEXIS 6049 (5th Cir 3/12/2007) Relief & COA denied on
claims
relating to: (1) denial of fair and impartial trial by prosecutor's
parole-related comments; (2) ineffective assistance of counsel for
failing to object to prosecutor's parole-related comments; (3)
instruction prohibiting jury from considering parole eligibility
deprived Turner of a fair trial; (4) sentencing instructions contained
vague and undefined terms ("probability," "criminal acts of violence,"
and "continuing threat to society"), violating Turner's right to a fair
trial; (5) Texas death penalty statute violates right to a fair trial
by failing to inform jurors that lack of unanimity on any issue will
result in life verdict; (6) the Dallas County venire process violates
the right to a jury from a representative cross-section of the
community; and (7) the cumulative effect of the violations denied
Turner his right to due process. HAT, as always, has
more.
Jack Smith v. Quarterman,
2007 U.S. App. LEXIS 5744 (5th Cir. March 12, 2007) (unpublished) He
requested a COA on two issues: (1) whether the district court erred in
applying AEDPA provisions to an ineffective assistance of counsel
claim; and (2) whether Smith was deprived of the effective assistance
of counsel.
Arthur Tyler v. Petro, 2007 Ohio App. LEXIS 1081 (Ohio App 8th 3/14/2007) A writ of mandamus will not issue to force state prosecutors to give immunity, however limited, to a key defense witness who would exonerate the Accused. "Although we may agree with relator's assertion that the Prosecuting Attorney should seek justice in this case by granting Head immunity, without any statutory authority to justify the requested relief, the trial court had no authority to order the County Prosecutor to grant Head immunity. Accordingly, the trial court properly granted respondents' motions to dismiss this action for failure to state a claim upon which relief in mandamus could be granted." NOTABLE NONCAPITAL CASES McKithen
v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007)
Inmate's right to pursue DNA testing under sec. 1983 upheld as a matter of federal constitutional law. Selected Excerpts from, & Commentary on, this Edition's Cases Siebert v. Allen,
2007 U.S. App. LEXIS 5270 (11th Cir. 3/7/2007)
Summary order remanding to resolve all unresolved procedural and substantive issues and defenses. HAT notes: On
March 7, 2007, the
Eleventh Circuit
(Barkett, with Tjoflat and Wilson) for a second time reversed the
dismissal of Daniel Siebert's habeas petition and remanded for further
proceedings. Siebert v. Allen,
___ F.3d ___, 2007 WL 677212 (11th Cir. March 7, 2007). Earlier, the
district court dismissed the petition on untimeliness grounds. The
Eleventh Circuit reversed, ruling that Siebert's state post-conviction
relief petition had been "properly filed" for purposes of tolling the
limitation period. Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003)
("Siebert I"). The case was remanded for further proceedings. Instead
of conducting such proceedings, the district court revisited the
timeliness issue, finding that Pace v. DiGuglielmo, 544 U.S. 408 (2005)
can superseded the Eleventh Circuit's ruling in Siebert I. Here, the
panel found that law of the case applied given that Pace did not
address the issue raised in Siebert I – a statute of limitations that
operated as an affirmative defense. Rather than continue piecemeal
litigation and reconsider Siebert I in light of Pace, the panel instead
reversed and remanded to the district court for further proceedings,
"including questions of procedural bar and the resolution of claims
which were exhausted on direct appeal."
Joseph Ard v. Catoe, 2007 S.C. LEXIS 79 (S.C. 3/5/2007) Relief granted as Ard's
attorneys
did not cross-examine a State Law Enforcement Division expert about
gunshot residue on the decedent's hands and failed to investigate the
expert's findings. From the South Carolina
Appellate Law Blog run by Womble Carlyle:
In Ard
v. Catoe,
the first person in South Carolina to be sentenced to death for killing
a fetus will get a new trial because his attorneys failed to challenge
one of the state's expert witnesses. Joseph Ard was sentenced to death
in the fatal shooting of his pregnant girlfriend, Madalyn Coffey, and
the nearly full-term fetus in April 1993. Ard claimed that the shooting
was an accident. He testified the gun went off when he tried to grab it
from Coffey. Ard's trial counsel did not cross-examine a state law
enforcement expert about gunshot residue on Coffey's hands and failed
to investigate the expert's findings. According to the state Supreme
Court, "trial counsel could have established that while there was a
scientific finding of 'no gunshot residue,' there nevertheless was
evidence consistent with (but not conclusive of) Coffey handling the
gun. Had counsel elicited this testimony from Powell, the State would
not have been able to attack the defense theory as convincingly as it
did. " posted by william at 7:51 AM
SMALL
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