Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070507.htm]


Several notable cases are had below, as are an exoneration, a cert grant, four executions, and several important legislative developments at the state level.

The Colorado Supreme Court in People v. Edward Montour struck down Mr. Montour’ death sentence on the basis of Ring and Blakely. Specifically, the Court holds if a Defendant takes a guilty plea in Colorado to a murder charge the jury is waived for sentencing. Montour will now face resentencing. One man now remains on death row in Colorado but the state will retain all four of its full time death penalty prosecutors.

The Nebraska Supreme Court concludes in State v. Carey Moore, it acted too quickly in scheduling Moore’s execution. It noted ongoing litigation may yet hold that electrocution could soon be declared unconstitutional, and it would therefore be inappropriate to kill Moore when such a decision could be close at hand. “Concerns for the finality to a state’s judgments do not outweigh the absolute need to protect against the deprivation of an individual’s constitutional rights which might invalidate his capital sentence.” “We must adhere to our heightened obligation to ensure the lawful and constitutional administration of the death penalty, regardless of the wishes of the defendant in any one case.”

Two other favorable decisions also deserve special note.  In Charles Ross v. State the Mississippi Supreme Court  grants relief on a litany of errors and  noted that the guilt of Mr Ross was of "particular concern because much of the State's case against Ross . . .  was indirect."  The Tennesee Court of Criminal Appeals in State v. Ricky Thompson concludes "the death penalty imposed in the present case is excessive and disproportionate to the penalty imposed in the other cases."

Tainted forensics has resulted in Curtis Edward McCarty’s exoneration in Oklahoma.  McCarty, who was convicted twice and sentenced to death for the same murder in verdicts that were both thrown out based on evidence of his innocence and an extraordinary pattern of government misconduct, was released from prison this morning after a judge dismissed the indictment against him that would have led to a third trial. The prosecution said today that it will not appeal the decision – finally clearing McCarty after 21 years of wrongful incarceration, more than 16 of them on death row. The McCarty_Motion and Brief have been made available by the Innocence Project. McCarty becomes the 124th person in America who was sentenced to death and to have later been exonerated. Additional coverage at Stand Down, DPIC, the Innocent Project. CDW,  & TalkLeft.

The Supreme Court has granted cert  in Medellin v. Texas, the SCOTUSBlog has more. The Supreme Court granted a GVR (”Grant, Vacate, & Remand”) in the Ronald Chambers case; the order is here.

Habeas Assistance & Training counsel has posted that "[a]ccording to the Department of Justice´s semiannual regulatory agenda, it will publish its proposed regulations concerning Chapter 154 sometime in May 2007 with a comment period ending in July. The Department of Justice provides the following abstract: “The USA PATRIOT Improvement and Reauthorization Act of 2005 instructs the Attorney General to promulgate regulations to implement certification procedures for States seeking to qualify for the expedited Federal habeas corpus review procedures in capital cases under chapter 154 of title 28, United States Code. The benefits of chapter 154 are available to States that establish a mechanism for providing counsel to indigent capital defendants in State postconviction proceedings that satisfies certain statutory requirements. This rule carries out the Act´s requirement of issuing regulations for the certification procedure.”

Earlier this week in New Jersey the Senate Judiciary Commiittee broadly voted to abolish the death penalty. In North Carolina the Racial Justice Act passed unanimously in the House Judiciary Committee, a new “Proportionality Review Bill (HB 341) has been rescheduled to be heard in the NC House of Representatives Wednesday, May 16, and the Eyewitness ID Reform Bill (HB 1625),  passed on the NC House floor. Press accounts claim that the First Circuit has upheld the death sentence Gary Lee Sampson (USA v. Sampson); the panel sealed the opinion until at least this week. The Houston Chronicle reports: “evidence missing in the capital murder retrial of former death row inmate Anthony Graves was discovered in a cell that had been welded shut in the old Burleson County Jail . . . and was found in the old jail cell just before a May 1 deadline set by Burleson County District Judge Reva Towslee-Corbett.” In Tennessee, the State House Judiciary Committee unanimously passed a bill that would establish a commission to conduct a thorough examination of the state’s death penalty system. The Florida Department of Corrections, in light of  The Governor’s Commission on Administration of Lethal Injection’s Final Report with Findings and Recommendations, has issued new lethal injection procedures to be utilized in future executions.

New scholarship includes Deborah Denno’s “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty”  at SSRN — she asks, however, not to cite or use the work without checking with her as it is a work in progress. Stephen F. Smith has “The Supreme Court and the Politics of Death” also at SSRN. Bernhard Harcourt has been consistently posting at the Volokh Conspiracy about his work on incapacitation by institutionalization rates (institutionalization in either a mental health facility or prison) & homicide rates, including deterrence vs. brutalization in regards to the death penalty (he persuasively argues for brutalization).  Other new scholarship is noted at CDW (here & here) and at DP Open Research.

Looking ahead, three favorable dispositions are noted for the next edition.  The Ninth Circuit in Joe Lambright v. Schriro granted relief in the penalty phase on trial counsel's rather horrid performance when it came to investigating and presenting mitigation evidence. In Lawrence Jefferson v. Terry relief is likewise granted due to trial counsel's penalty phase performance.  The Texas Court of criminal appeals, apparently on its own motion, has entered a stay of execution to permit further review Ex parte Jose Angel Moreno; the link is rather pro forma, the real action is in the concurrences and their attacks on the SCOTUS majority in Abdul-Karim v. Quarterman and Brewer v. Quarterman. 

Technical problem prevented last week's edition from being sent out, my sincerest apologies.  Even when we don't send out an email the daily blog normally has more as does CapDefNet's Week at a Glance.  As always, thanks for reading & putting up with the typos & delays. - k

Recent Executions
May
3 Aaron Lee Jones (Ala)
4  David Woods  (Indiana)
9 Philip Workman (Tennessee)
10 Jose Moreno (Texas)

Pending Executions
May
16 David Ivy  (Tennessee)
16 Charles Smith (Texas)
22 Robert Comers (Az. -- vol.)
23 William Rogers  (Tennessee)
24 Christopher Newton  (Ohio)

More Execution information*


In Favor of Life or Liberty -- Week of  April 23, 2007

  • People v. Edward Montour, No. 02SA365 (Colo. 4/23/2007) Montour’s death sentence struck down on the basis of Ring and Blakely, which require jury determination of crucial facts in sentencing defendants. Specifically, the Court holds if a Defendant takes a guilty plea in Colorado to a murder charge the jury is waived for sentencing and such a result violates Ring / Blakely. Montour will now face resentencing.

  • Charles Ross v. State, 2007 Miss. LEXIS 235 (Miss 4/26/2007)  "In the present case, we find reversible error in the failure of the trial court to adhere to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross' investigator. Similarly, defense counsel's failure to investigate substantial mitigating factors during the sentencing phase requires reversal of Ross' sentence. Arguing that Ross' life should be spared because he could have functioned appropriately as a prisoner was not a valid defense given Ross' disciplinary record in prison. During the sentencing, defense counsel also failed to address substantial non-statutory mitigating factors noted by the state mental hospital. Other errors provide further justification for reversal because of their cumulative effort. These include the State maintaining in closing argument that Ross had been seen at the crime scene when he had not; defense counsel's failure to explore the possible tainting of the venire panel, particularly after Martindale's second prejudicial statement; and the exclusion of the State's ballistics report from evidence, which took a tangible document away from Ross that could have been argued to the jury. These errors are of particular concern because much of the State's case against Ross, absent the inconsistent testimony of Margaret Jones, was indirect. We therefore reverse Ross' conviction and sentence and remand his case for a new trial."

  • State v. Ricky Thompson, 2007 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 4/25/2007) "Based upon our review of all cases 'involving similar defendants and similar crimes,' we conclude that the death penalty imposed in the present case is excessive and disproportionate to the penalty imposed in the other cases."

  • Ian Lightbourne v. State,  2007 Fla. LEXIS 724 (FL 4/16/2007) (unpublished) In a cryptic memorandum opinion on lethal injection, matter is returned to the trial court.  On Vienna Convention claim relief is summarily denied.


Favoring Death -- Week of  April 23, 2007

  • Earl Berry v. Epps, 2007 U.S. App. LEXIS 9395 (5th Cir 4/24/2007) "As discussed, as he did in district court, Berry seeks a COA for each of the following five claims. First, at his first trial, because his testimony on whether he was afforded his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), conflicted with that of the State's witnesses, his confession should not have been admitted. Second, the trial court's refusal to change venue for that first trial, despite extensive pre-trial publicity, denied him his rights to trial by an impartial jury, in violation of the Sixth Amendment. Third, at his resentencing trial, his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)  [*11]  because: he allowed the trial court to refer to Berry as a "habitual offender"; and he did not secure a meaningful review of certain conduct by the prosecutor. Fourth, for that trial, the prosecutor acted vindictively in denying him a plea bargain and the district court failed to address this in its analysis. Fifth, at that resentencing trial, inflammatory photographs and videotape evidence denied him a fair trial. As a collateral claim, Berry asserts, as he did in district court, that certain of his other claims should not be procedurally defaulted because of asserted deficiencies in the State's post-conviction review process, in violation of 28 U.S.C. § 2254(b)(1)(B). (This is not a COA request because it does not concern a claim for the violation of a constitutional right. Instead, it is presented to establish cause to overcome procedural default on claims concerning such a right.)"

  • John Stephenson v. State, 2007 Ind. LEXIS 282 (Ind. 4/26/2007)  Relief denied: "(1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-50-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and (8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed."

  • Aaron Jones v. Allen, 2007 U.S. App. LEXIS 9571 (11th Cir 4/27/2007) Challenge to the three-drug protocol in Alabama denied due to delay.

  • Ivan Teleguz v. Comm, 2007 Va. LEXIS 64 (VA 4/20/2007) Turning aside many challenges on procedural grounds, relief denied on claims including: (A) change of venue; (B) Commonwealth's treatment of Teleguz's brother as a hostile witness; (C) admission of alleged connection to the "Russian Mafia;" (D) vileness aggravator; (E) Brady; and (F) proportionality.

  • Ex parte Robert Campbell, 2007 Tex. Crim. App. LEXIS 504 (Tex. Crim. App. 4/25/2007) Relief denied on claims relating to:  "(1) his conviction and sentence are unconstitutional because the State withheld evidence favorable to him in violation of his constitutional right to due process; (2) he was deprived of a fundamentally fair trial because of the admission of inherently unreliable DNA evidence; and (3) newly discovered evidence of his innocence independently warrants habeas relief."

  • Michael Smith v. State, 2007 OK CR 16 (Okla Crim. App. 4/26/2007) Relief denied on claims including: Batson; joinder of counts at trial; improper arraignment; Miranda Waiver; trial court's answering of jury notes without counsel's input; admission of other crimes evidence; sufficiency; use of HAC aggravator; use of "continuing threat to society" aggravator; weighing of aggravators versus mitigators; mandatory review; and cumulative error.

  • John Stephenson v. State, 2007 Ind. LEXIS 282 (Ind 4/26/2007) Relief denied on claims relating to: "(1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed. (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-50-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and(8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed."

In Favor of Life or Liberty -- Week of  April 30, 2007

  • State v. Carey Moore, 2007 WL 1175828 (Neb. 5/2/2007) Execution by electrocution stayed for further hearings.

  • Phillip Workman v. Bresden, NO. 3:07-0490 (M.D. Tn. 5/4/2007) A TRO was issued for the Phillip Workman execution on lethal injection. A hearing on a motion for preliminary injunction is scheduled for Monday May 14, 2007. TRO subsequently vacated as noted below.

In Favor of Death -- Week of  April 30, 2007

  • David Woods v. Buss, 2007 U.S. App. LEXIS 10683 (7thCir 5/2/2007) (unpublished) Counsel appointed for successor claim, Atkins / Panetti claim denied, stay denied.

  • People v. Cleophus Prince, 2007 Cal. LEXIS 4272 (Cal 4/30/2007) [via Findlaw] Relief denied "over claims of error regarding: 1) a failure to change the venue; 2) expert opinion evidence of an FBI agent; 3) discovery; 4) the admissibility of evidence of defendant's statements; 5) exclusion of a victim's statements concerning conflict with her boyfriend; 6) a witness's testimony; 7) evidence of defense counsel's participation in the lineup; 8) admissibility of knives; 9) sufficiency of the evidence; 10) a failure to instruct on second degree murder; 11) testimony of a witness over a claim that the evidence was more prejudicial than probative and should be excluded; 12) exclusion of third party culpability evidence; 13) prosecutorial misconduct; 14) closing the proceedings during certain testimony; 15) cumulative prejudice; 16) a motion for a separate penalty phase jury; 17) a Pitchess motion; 18) victim-impact evidence; 19) instruction on, and the jury's consideration of, burglaries not! directly related to the murders; 20) a failure to exclude evidence of defendant's possession of a weapon while he was in custody; 21) challenges to California's death penalty scheme; and 22) cumulative prejudice."

  • Juan Castillo v. State, 2007 Tex. Crim. App. LEXIS 605 (Tex. Crim. App. 5/2/2007) Relief denied on claims that [1] "evidence is insufficient to corroborate the accomplice-witness testimony;" [2] "evidence is factually insufficient to support a finding that he robbed the victim or that he shot the victime;" [3] "under evolving standards of decency, the death penalty should be abolished, and he therefore seeks to have his death sentence commuted to life;" and [4] "the trial court erred when it denied appellant's pretrial motion objecting to the testimony of the two accomplices witnesses on the ground that their testimony would violate"

  • State v. John Badgett,  2007 N.C. LEXIS 416 (N.C. 5/4/2007) Relief denied on: [1] improper admission of a defendant's prior conviction;  [2] clerk allegedly drew random names from the pool of prospective jurors outside of defendant's presence; [3] trial court erred by denying his request to submit certain mitigating circumstances to the jury. N.C.G.S. § 15A-2000(b) provides, in pertinent part; [4] trial court erred by failing to submit the mitigating circumstance described in N.C.G.S. § 15A-2000(f)(6) because substantial  evidence existed that the murder was committed while "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of [the] law was impaired;" [5] trial court erred by failing to order a competency hearing sua sponte in the presence of an allegedly bona fide doubt as to defendant's competency to stand trial.

  • Termane Wood v. State, 2007 OK CR 17 (Okla. Crim. App. 4/30/2007) Relief denied on claims including: [1] the State failed to prove that he or anyone engaged with him attempted to rob; [2] it was error for the jury to consider punishment for both capital murder and non-capital offenses during the second stage of his bifurcated trial; [3]aggravating circumstances were not charged in an information or indictment and were therefore not subjected to adversarial testing in a preliminary hearing or determined to probably exist by a neutral and detached magistrate; [4] the jury should have been further instructed on the sentencing options of life imprisonment and life imprisonment without the possibility of parole; [5] “continuing threat” aggravating circumstance is vague and overly broad on its face and as applied; [6] the “especially heinous, atrocious, or cruel” aggravating circumstance is unconstitutionally vague as defined by this Court; [7] the jury’s finding that the murder was “especially heinous, atrocious, or cruel” is not supported by the record; [8] the “especially heinous, atrocious, or cruel” aggravating circumstance failed to adequately channel the jury’s discretion; [9] constitutionality of the “great risk of death to more than one person” aggravating circumstance; [10] trial evidence was insufficient to support the jury’s finding that he “knowingly created a great risk of death to more than one person”; [11] Court should vacate his death sentence and hold that the Oklahoma death penalty scheme is unreliable, that under its current procedures the risk is too great that innocent people may be executed, and that evolving standards of decency render the death penalty unconstitutional [as noted previousl, since this opinionw as decided another person has been released as wrongfully convicted from Oklahoma's death row]; [12] counsel failed to object and preserve for appellate review the claims of error raised in his brief; [13]his trial attorney failed to fully investigate his background and present mitigating evidence at his capital sentencing proceeding; and [14] mandatory sentencing review.

(Advance Sheet for the Week of  May 7, 2007) In Favor of Life or Liberty

  • Joe Lambright v. Schriro, 2007 U.S. App. LEXIS 11113 (9th Cir 5/11/2007)  In a per curiam opinion, trial counsel failed to adequately investigate and present readily available mitigation evidence.

  • Ex parte Jose Angel Moreno, WR-25,897-01(Tex Crim App) Stay entered on the Courts own motion in light of recent SCOTUS precedent, Abdul-Karim v. Quarterman and Brewer v. Quarterman. (concurrences)

  • Lawrence Jefferson v. Terry, 96-989 (N.D. Ga. 5/10/2007). Relief granted as counsel “failed to conduct a reasonable investigation of mitigating evidence, including, in particular, mental health evidence.”

(Advance Sheet for the Week of  May 7, 2007) In Favor of Death

  • Phillip Workman v. Gov. Bresden, 2007 U.S. App. LEXIS 10851 (6th Cir. 5/7/2007) (pleadings) (dissent)  Relief denied, TRO vacated. TRO in this matter is an appealable order because it is, in effect, an injunction.  Plaintiff has little likelihood of success on the merits.  Plaintiff has waited too long to pursue his claims.

  • Phillip Workman v Bell, 2007 U.S. App. LEXIS 10786 (6th Cir 5/4/2007) (pleadings) Stay request in light of Rule 60(b) claims of  police and prosecutorial perjury denied.

  • Karl Chabmerlain v. Quarterman, 2007 U.S. App. LEXIS 11144 (5th Cir 5/10/2007) (unpublished) Relief denied on inffective assistance of counsel claims including those related to (1) plea bargaining; and (2) failure to place Chamberlain on the stand in both the guilt and penalty phases of the trial.

  • State v. Zola Agona Azania, 2007 Ind. LEXIS 328 (Ind 5/10/2007) "In prior proceedings, this Court affirmed Zolo Agona Azania's conviction for the 1981 murder of a Gary police officer but set aside the recommendations of two juries that he should receive the death penalty. The trial court has now ruled that, given circumstances caused by the long delay in this case, Azania's constitutional rights to a speedy trial and due process would be violated if the State continues to seek a death sentence. We find that neither the delay nor any prejudice that Azania may suffer from it violates his constitutional rights. The State may continue to seek the death penalty."

  • James Pavatt v. State, 2007 Okla. Crim. App. LEXIS 19 (Okla Crim App 5/8/2007) Relief denied on claims including: [1] change of venue; [2] double jeopardy / double punishment; [3] jury was irreparably tainted by a comment on parole possibilities made by a prospective juror; [4 sufficiency of the evidence.; [5] alternative-suspect evidence; [6] admission of gruesome crime-scene photographs; [7] improper first-stage hearsay and opinion evidence; [8] prosecutor’s arguments during the sentencing phase; [9] iimproper victim-impact testimony; [10] damaging mitigation testimony; [11] trial counsel rendered deficient performance through comments made in punishment-stage opening statement; and  [12] sufficiency of evidence on aggravating circumstances

  • Michael Tanzi v. State, 2007 Fla. LEXIS 851 (FL 5/10/2007)  Relief denied on claims of: "(A) the trial court erred in denying Tanzi’s motion to withdraw his guilty plea; (B) the trial court erred in permitting questions regarding lack of remorse; (C) the trial court erred in permitting impeachment of Tanzi’s expert witness by a specific and unrelated act of misconduct; (D) the trial court erred in admitting Tanzi’s confession to sexual battery; (E) the trial court erred in assessing the murder in the course of a felony aggravator twice; and (F) the trial court did not properly consider and weigh mitigation evidence."

  • Johnny Williamson v. State, 2007 Fla. LEXIS 853 (FL 5/10/2007) "Williamson has not established that his alleged newly discovered evidence probably would have changed the outcome of the guilt or penalty phases of his trial, either alone or in tandem with evidence presented in previous postconviction proceedings."

  • Wayne Tompkins v. State, 2007 Fla. LEXIS 849 (FL 5/10/2007) Relief denied on claim "the circuit court erred in evaluating his claim regarding Davis’s affidavit under the newly discovered evidence standard of Jones v. State rather than as a claim under Brady and Giglio because the State allegedly withheld the evidence that indicated that Davis was an important witness and presented Stevens’ false testimony."

  • State v. Brian Wakefield, 2007 N.J. LEXIS 454 (NJ 5/7/2007) In one of the longest opinions seen here in may years, the New Jersey Supreme Court splits.  Relief denied.  The plurality denies relief on claims including (1) inflammatory evidence; (2) admission of guilt did not provide him the advantage of barring proofs of the crimes themselves; (3) prosecutorial misconduct throughout the penalty phase trial; (4) disparagement of defense counsel by accusing him of discovery violations; (5) State’s summation, including the prosecutor’s reference to the death penalty as “justice,” and his statement that it is what Wakefield “deserved;” (6) reasonable doubt instruction and (7) proportionality review. The concurrence holds that the prosecutions remarks in opening in the penalty phase were error but harmless, that the sentence is not disproportionate, and the continuing constitutionality of the New Jersey death penalty in light of its random & arbitrary application.  (I will leave it to appellate gurus in New jersey as to whether there is or is not a majority here or whether it is merely a plurality as the opinion is somewhat confused as to whether it is a 4-2 opinion or a 3-1-2 opinion).

  • State ex rel Ketterer v. Oney, 2007 Ohio 1954 (Ohio 5/9/2007) "This is an appeal from a judgment dismissing a complaint for a writ of prohibition to prevent a single judge from deciding a postconviction-relief petition when the relator was sentenced to death by a three-judge panel. Because this claim is not cognizable in an extraordinary-writ action, we affirm."


Selected Excerpts from, & Commentary on, this Edition's Cases
[Note formatting may be off below this point.]

State v. Carey Moore, NO S-95-485 (Neb. 5/2/2007) Execution by electrocution stayed for further hearings. Ed Howard’s analysis of that opinion notes:

The intriguing elements of the unprecedented order from the high court are several.

Moore previously ordered that no further appeals be made on his behalf. There was no motion or appeal, by him or for him, pending before the judges. He had personally told the court that he wanted to proceed to his execution. The confessed killer of two Omaha cab drivers has been on death row 27 years.

The majority made history when it said it acted too quickly in previously scheduling Moore’s execution. It noted Mata’s case holds out the possibility that electrocution could soon be declared unconstitutional, and it would therefore be inappropriate to kill Moore when such a decision could be close at hand.

While noting that Moore said he wanted to die, the majority said other factors were more important.

“Although we respect the defendant’s autonomy, the solemn business of executing a human being cannot be subordinated to the caprice of the accused,” the order said. “We must adhere to our heightened obligation to ensure the lawful and constitutional administration of the death penalty, regardless of the wishes of the defendant in any one case,” wrote Judge John Gerrard.

“Concerns for the finality to a state’s judgments do not outweigh the absolute need to protect against the deprivation of an individual’s constitutional rights which might invalidate his capital sentence.”

Besides, the order noted, if the electric chair is upheld as a legitimate means of execution, the state will still be able to kill Moore; it will just have waited a while longer to do it.

[Curious in this opinion is the lack of mention of Roper v. Simmons & Atkins v. Virginia. Roper / Atkins holds, inter alia, that the rarer the practice the greater the likelihood that a given practice does not conform to the Eighth Amendment’s evolving standards of decency. Here Nebraska is the only state that retains electrocution as its primary execution device and the presumption against its continuing viability should have been high, if not insurmountable.]

People v. Edward Montour, 2007 WL 1175828 (Colo. 4/23/2007) Montour’s death sentence struck down on the basis of Ring and Blakely, which require jury determination of crucial facts in sentencing defendants. Specifically, the Court holds if a Defendant takes a guilty plea in Colorado to a murder charge the jury is waived for sentencing and such a result violates Ring / Blakely. Montour will now face resentencing. CapDefNet provides this.

On April 23, 2007, the Colorado Supreme Court reversed the death sentence of Edward Montour. People v. Montour, ___ P.3d ___, 2007 WL 1175828 (Colo. April 23, 2007). The court stated: “In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr. We hold that Colorado´s death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty. Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence. We hold that the statute unconstitutionally links the waiver of a defendant´s jury sentencing right to his guilty plea. Hence, we affirm Montour´s guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute. We reverse Montour´s death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour´s waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.”

Charles Ross v. State, 2007 Miss. LEXIS 235 (Miss 4/26/2007)  "In the present case, we find reversible error in the failure of the trial court to adhere to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross' investigator. Similarly, defense counsel's failure to investigate substantial mitigating factors during the sentencing phase requires reversal of Ross' sentence. Arguing that Ross' life should be spared because he could have functioned appropriately as a prisoner was not a valid defense given Ross' disciplinary record in prison. During the sentencing, defense counsel also failed to address substantial non-statutory mitigating factors noted by the state mental hospital. Other errors provide further justification for reversal because of their cumulative effort. These include the State maintaining in closing argument that Ross had been seen at the crime scene when he had not; defense counsel's failure to explore the possible tainting of the venire panel, particularly after Martindale's second prejudicial statement; and the exclusion of the State's ballistics report from evidence, which took a tangible document away from Ross that could have been argued to the jury. These errors are of particular concern because much of the State's case against Ross, absent the inconsistent testimony of Margaret Jones, was indirect. We therefore reverse Ross' conviction and sentence and remand his case for a new trial."  CapDefNet provides this.

In April 25, 2007, the Tennessee Court of Criminal Appeals, in an unpublished decision, found that the death sentence imposed on Ricky Thompson for the murder of his wife was disproportionate to the punishment imposed in other cases and therefore modified his sentence to life imprisonment. State v. Thompson, 2007 WL 1217233 (Tenn. Crim. App. April 25, 2007). The portion of the decision concerning proportionality was authored by Judge Hayes and was joined by Judge McLin. Judge Wedemeyer dissented from this ruling.

In discussing the individual characteristics of Thompson, the majority stated: “The record before us establishes that the Defendant was thirty-nine years old and had no significant criminal history other than misdemeanor driving offenses and a juvenile record of truancy adjudications. Both his parents were abusive alcoholics who severely neglected and mistreated the Defendant and his brother, who ultimately committed suicide. Moreover, the record is replete with the Defendant´s extensive history of mental and emotional illness, which included a history of suicide attempts, as well as drug and alcohol abuse. Expert testimony established that the Defendant was of below-average intelligence and had generally poor reasoning abilities and a lack of good judgment. Following the shooting, the Defendant made no attempt to flee from the scene or to deny responsibility for his actions. He cooperated with the police and gave a detailed statement regarding his involvement in the homicide, which mirrored that of other eyewitnesses´ accounts. Moreover, at trial, the Defendant told the jurors that if they believed he had committed first-degree murder in killing his wife then he deserved the death penalty. He stated that he loved the victim and his children and was remorseful for his actions.” As for the murder itself, the majority found: “This crime, in contrast to most domestic homicides, did not involve pre-existing animus, threats of violence, or actual physical violence between the Defendant and the victim prior to October 25, 1989. Here, the threats against the victim were made only after the victim disappeared and after she had convinced a co-worker to inform the Defendant that she had left with another man. . . . With regard to ‘similar defendants,’ none of the domestic homicide cases reviewed involved a defendant who possessed a long and documented history of mental illness spanning his adult life, who possessed no significant criminal history, and whose act was preceded by the actions of the victim in this case.”

State v. Ricky Thompson, 2007 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 4/25/2007) "Based upon our review of all cases 'involving similar defendants and similar crimes,' we conclude that the death penalty imposed in the present case is excessive and disproportionate to the penalty imposed in the other cases." CapDefNet provides this.

The Mississippi Supreme Court on April 26, 2007, reversed the capital conviction and death sentence of Charles Wayne Ross. Ross v. State, ___ So.2d ___, 2007 WL 1218023. The court found reversible error in the guilt-innocence phase of the trial by the trial court’s exclusion of a statement made by the key prosecution witness to Ross’ investigator. Although Ross was permitted to impeach the witness with the statement on cross-examination, prejudice was nevertheless found from the exclusion given that testimony by the witness was “the only direct evidence linking Ross to the crime.” Further, “[t]he jurors recognized the importance of [the witness’] credibility, as evidenced by one juror’s request to see the transcript.” The court went on to find that “[o]ther errors provide further justification for reversal because of their cumulative effect.” Those errors included: (1) the prosecutor maintaining in closing argument that Ross had been seen at the crime scene when he had not: (2) defense counsel’s failure to explore the possible tainting of the venire panel, particularly after a prospective juror announced that she had previously testified in federal court against Ross; and (3) the exclusion of a ballistics report “which took a tangible document away from Ross that counsel have been argued to the jury.”

The Mississippi Supreme Court also found that Ross was entitled to reversal of his death sentence because of defense counsel’s ineffective assistance at the sentencing phase. The case in mitigation that was presented concerned positive opinions about Ross’ character and the characterization of Ross as a good prisoner who functioned appropriately in custody. This opened the door to evidence that Ross had been moved to a higher security facility after being found in possession of a hacksaw and trying to escape, as well as evidence that Ross was punished in federal prison for making alcoholic beverages in his cell. Defense counsel was faulted by the court for failing to develop mitigating evidence based on potential psychological problems. The court noted that a post-trial psychological examination had been conducted which uncovered “a number of potential mitigating factors, including accounts of physical and sexual abuse, possible alcoholism, accounts of visual and auditory hallucinations, and the deaths of [Ross’] ex-wife and four young children in a car accident in 1985 and the brutal murder of his sister in 1982.” Further, at the time of the examination, Ross was taking anti-psychotic medication and medication for depression. The court acknowledged that Ross had testified and told the jury about the death of his family, the physical abuse he received as a child, and about his drinking problem. And the jury had learned about his sister’s death through his mother’s testimony. It noted, however, that “defense counsel provided no expert evidence about how these events had affected Ross’s psychology." The court was unimpressed by counsel’s explanation for why he did not attempt to develop this line of mitigation – that Ross had maintained he wasn’t “crazy” – finding: “Defense counsel’s failure to investigate beyond this single declaration cannot be considered reasonable given the serious mitigating issues evident in the post-trial competency hearing.” Even more problematic to the court was defense counsel’s “apparent failure to properly investigate Ross’ record as an inmate” before asserting he had been a good prisoner which opened the door to introduction of prior bad acts into evidence. “This failure falls below an objective standard of reasonableness and was undoubtedly highly prejudicial.”

Justice Diaz, joined by Presiding Justice Waller and Justices Graves and Dickinson, wrote a special concurrence explaining that the conviction should also be reversed because the trial court used the incorrect standard in ruling on Ross’ Batson objection “and because the State provided only a pretextual justification why the prospective jurors were struck.” (The majority opinion did not address the Batson claim. )

 

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