Capital Defense Weekly: 2007

Eight (yes eight) wins are counted in the period between April 2nd and April 16th with four deserving special attention.

The California Supreme Court's holding in People v. Super. Ct. (Vidal) is perhaps the most significant. " The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes find whether the individual’s “general intellectual functioning” is significantly impaired , but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. " "In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology." “The superior court here [ ] found on the basis of [expert] testimony that in Vidal’s case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation.” Therefore, under California's broad post-Atkins mental retardation law and the expert testimony given below, and despite the testing placing the IQ scores above 70, a rationale trier of fact could have concluded that Vidal was indeed mentally retarded. Other Atkins wins include the Fifth Circuit's In re Milton Mathis and the Tenth Circuit's George Ochoa v. Sirmons, both of which granted, some would argue merely, the right to file a successive petition on the claim.

The Nevada Supreme Court in Robert Byford v. State holds that the State and district court acted improperly in ruling upon Byford's post-conviction petition. The State prepared an order and submitted it to the trial court. Remanding, the state supreme court holds that the trial court "must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court’s review." The Court also holds that "in defending the district court’s order, the State repeatedly asserts that Byford’s counsel made reasonable strategic choices . . . . this is a difficult assessment to make without the benefit of counsel’s testimony at an evidentiary hearing.”

The South Carolina Supreme Court in State v. Rita Bixby looks at the breadth of that state's capital sentencing statute. The trial court had held that Bixby could not face death for the murder two police officers’ deaths because she had been charged with accessory to murder, not murder itself. “Although [the aid & abets statute] provides that one who is convicted as an accessory before the fact must be punished in the manner prescribed for the punishment of the principal felon, the legislature has not indicated any intent in [the capital sentencing statute] to have such an accessory be subject to the most severe punishment of death."

US District Court Judge Allen Sharp (Southern District of Indiana) finds himself in Joseph Corcoran v. Buss immersed in a rather odd issue. The prosecutors in Corcoran’s state trial offered the petitioner “the opportunity to waive his right to a jury trial and proceed with a bench trial. In exchange the prosecutor would not seek the death penalty.” The issue is whether it improperly infringes on the right to go to trial. Finding that such an offer does unlawfully infringe on the right of trial the district court grants an unconditional writ ordering commutation to life in prison.

In recent weeks the only criminal case decided by the Supreme Court has been James v. United States. James holds an individual convicted of attempted burglary under Florida state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal statute, the Armed Career Criminal Act ("ACCA"), dealing with armed criminals. Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Two capital cases were argued before the Supreme Court this past midweek. In Panetti v. Quarterman the oral argument transcripts indicates the Court is likely deeply divided on the merits (standards for competency to be executed), however the real questions will be in the procedural issues governing the AEDPA (constitutionality of successive petitions requirements), Article III & original jurisdiction, as well as whether petitioners will be forced to boilerplate unripe & otherwise frivolous claims in order to avoid the successive petition doctrine. In Uttecht v. Brown the Court heard argument on jury death qualification with the transcripts suggesting a very close vote count with Justice Kennedy likely being the swing vote.

In the news, Monday will almost assuredly mark the 200th exoneration by DNA in the modern era. Friday, Gov. Arnold Schwarzenegger issued an order halting construction on San Quentin's new death chamber. Five of the eight inmates on Connecticut's death row have started a hunger strike to protest the conditions In Georgia HB 185 appears to be dead which would have permitted non-unanimous death verdicts in Georgia. Press accounts note that in Horn v. Mumia Abu-Jamal the Third Circuit has refused to recuse itself on the Governments motion. The Indiana Department of Corrections has issued an order to double the amount of sodium pentothal -- to 5 grams from 2.5 grams -- the barbiturate serves as a sedative. Additional news can be found at the CDW blog, DPIC, and ODPI.

Prof Phyllis Goldfarb of Boston College Law has a great new piece on teaching the realities of legal opinion making using the Supreme Court's decisions in McCleskey v. Kemp & McCleskey v. Zant as a backdrop [Goldfarb, Phyllis, "Pedagogy of the Suppressed: A Class on Race and the Death Penalty" (March 31, 2007). Boston College Law School Research Paper No. 129 available at SSRN: http://ssrn.com/abstract=977779]. Other recent relevant pieces include:

Model Uncertainty and the Deterrent Effect of Capital Punishment by Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, and Daniel Nagin (Columbia Public Law Research Paper No. 07-138, FRB of Boston Quantitative Analysis Unit Working Paper);

Killing Roger Coleman: Habeas, Finality, and the Innocence Gap by Todd E. Pettys (William & Mary Law Review, Vol. 48, p. 2313, 2007);

The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation by Susan D. Rozelle (Arizona State Law Journal, Vol. 38, p. 769, 2006);

Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999) by David C. Baldus, George G. Woodworth, and Catherine M. Grosso (Nebraska Law Review, Vol. 81, 2002); and

Deciding Death by Corinna Lain.

Looking ahead, there are major opinions noted from the Oklahoma Court of Appeals and Missouri that will be discussed in greater depth next week. In Isidro Marquez-Burrola v. State the Oklahoma Court of Appeals grants relief as trial counsel failed to investigate, develop and present a meaningful mitigation case, this despite the ready resources of the Mexican government that are offered in all capital cases involving Mexican citizens. The Missouri Supreme Court in In the Matter of the Competency of Steven Parkus grants relief under Atkins and sets forth the procedure to follow and the appropriate standard of review of the trial court's decision for a defendant such as Parkus who received a death sentence for a conviction before August 28, 2001, the effective date of Missouri's retardation statute.

Pending Executions
April
24 James Filaggi (Ohio)
26 Ryan Dickson (Texas)

People v. Super. Ct. (Vidal), 2007 Cal. LEXIS 3581 (CA 4/12/2007) “The Court of Appeal majority erred in thus purporting to resolve a factual question―the best scientific measure of intellectual functioning―as a matter of law.”

In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology. The expert testimony below included a vigorous scientific debate as to whether Vidal’s Full Scale IQ scores should rule out a diagnosis of mental retardation. While one psychologist, McKinzey, gave his opinion that Full Scale IQ scores are, in all circumstances, the “best measure of general intelligence,” two other psychologists, Couture and Widaman, testified that where testing showed an extraordinarily wide divergence between Performance and Verbal IQ scores, the Full Scale measure was not a fully reliable measure. In support of their views, both sides gave scientific, not legal, reasons and cited scientific, not legal, authority.

Joseph Corcoran v. Buss, No. 3:05-CV-389 AS (S.D. Ind. 4/9/2007) The prosecutors in Corcoran’s state trial offered him “the opportunity to waive his right to a jury trial and proceed with a bench trial. In exchange the prosecutor would not seek the death penalty.” As US District Court Judge Allen Sharp notes this was a very odd offer — I’ve never seen it before and the Judge Sharp indicates his research could find no case where it was offered previously. Relying heavily on United States v. Jackson, 390 U.S. 570, 581-82 (1968) & Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) the Court finds:

At first blush, the question arises, what harm is caused by such an offer? If a defendant can trade away a panoply of rights by pleading guilty, why can he not trade away but one of them? The Supreme Court of Indiana said, “In the context of plea-bargaining, we do not see a material distinction in the discretionary powers of the prosecutor in offering to agree to a lesser sentence for a guilty plea or for a bench trial.” Corcoran v. State, 739 N.E.2d 649, 654 (Ind. 2000) (emphasis added). Though as discussed, no plea is involved in the second offer. Nevertheless, the State Supreme Court saw no material distinction between the two offers. If it was the prosecutor’s goal to dissuade the defendant from demanding a jury trial, he failed. The defendant demanded a jury trial and he got it. Furthermore, the defendant had the right to waive a jury trial, so what error is caused by receiving a benefit for choosing to exercise a lawful option? So too, the prosecutor had the authority to seek the death penalty or not, so what error is caused by conditionalizing his discretion?

When one pleads guilty, many rights are waived. Could the prosecutor have legitimately offered a different deal based on one of those other rights that are also relinquished as a part of a guilty plea? Could he have offered to waive the death penalty in exchange for waiving the Fifth Amendment right against self-incrimination merely to permit the prosecutor to comment on the defendant’s failure to take the stand in his own defense? This would certainly simplify appeals involving whether the prosecutor strayed too far in closing argument. Could the death penalty be traded for the Sixth Amendment right to a public trial thereby permitting a secret adjudication? Alternatively, could the death penalty be swapped for the Sixth Amendment right to call witnesses in his defense? Further, could it be bartered for the Sixth Amendment right to confront and cross examine witnesses against him thereby barring the defendant and his counsel from observing the state’s case in chief? This would transform the petit jury into more of a grand jury. What about conditioning the death penalty on surrendering the Sixth Amendment right to an impartial jury by requiring the defendant to waive his right to participate in jury selection or to comment on the prosecutor’s challenges during voir dire? Then again, a defendant has the right to fire his lawyer and proceed pro se, so could the death penalty be conditioned on relinquishing his Sixth Amendment right to counsel and proceeding at trial unrepresented?

The reason that these theoretical prosecutorial offers offend our sensibilities is not because the death penalty is used as a bargaining chip, after all it is clearly a bargaining chip when it is offered in exchange for a guilty plea. Rather, the visceral reaction arises because what is traded in exchange is not a confession of the truth of the criminal allegations, but the very procedural safeguards we have enacted to protect the judicial process. Such offers do more than attempt to abrogate a single individual’s rights, they tinker with the rules that promote societal trust in our system of justice. It is beyond doubt that prosecutors can negotiate for guilty pleas. What they cannot do is strike a deal whose object is nothing more than a punishment for the exercise of a constitutional right.

Here, the petitioner was punished when he refused to waive his right to a jury trial and agree to allow a judge to determine his guilt. The time sequence of such an offer and the filing of death penalty charges is not relevant. That is to say, it does not matter whether the offer is to dismiss previously filed charges or to refrain from filing in the future. The constitutional taint is the same. Nevertheless, the sequence of events in this case is important. The petitioner was charged with murder and negotiations ensued. Though it is not clear when they began, nor how long they lasted, what is clear is that nine and a half months later they ended when, on the record, the prosecution withdrew from further discussions and announced the intent to seek the death penalty. Trial Record at 151. The petitioner did not agree to be tried by a judge sitting without a jury and as a direct consequence, the prosecutor sought the death penalty. But for his demand for a jury trial, rather than a bench trial, he would not have faced the death penalty.

Because the Supreme Court of Indiana did not see any material distinction between a guilty plea and the waiver of the right to a jury trial, it did not attempt to identify any other purpose or effect for the waiver of this procedural constitutional right. Neither has the respondent advanced any. In this way, it as if neither fully grasp the difference between refusing to plead guilty and demanding a trial, as opposed to, refusing to consent to a bench trial and demanding a jury trial. Without any possible explanation otherwise presented, the court can find no necessary reason to warrant the excessive effect of punishing the petitioner’s assertion of his right to a jury trial rather than consenting to a bench trial. See Jackson at 582. Therefore it is the holding of this court that the prosecution unconstitutionally penalized the petitioner by seeking the death penalty when the petitioner refused to consent to the prosecution’s offer to forgo the death penalty in exchange for the defendant’s consent to waive a jury trial and proceed with a determination of guilt by the judge. This offer by the prosecution was a violation of the petitioner’s Sixth Amendment right to a jury trial.

Corcoran’s case, assuming its affirmance by the Seventh Circuit if the State appeals, will be sent back to State court where the death penalty will be barred at his resentencing.

In Byford v. State the Nevada Supreme Court held that the State and district court acted improperly in ruling upon a post-conviction petition in a capital case, which had been remanded by the Nevada Supreme Court for reconsideration of certain claims and entry of an order with specific findings, by means of the State preparing an order and submitting it to the district court without notice to the defendant or his counsel. The Court held that the district court "must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court's review."

The Court also found that "in defending the district court's order, the State repeatedly asserts that Byford's counsel made reasonable strategic choices. In many instances, this is a difficult assessment to make without the benefit of counsel's testimony at an evidentiary hearing."

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