Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070514.htm]

The most notable opinion in this edition is the Supreme Court's holding in Schriro v. Landrigan.  Landrigan is an unusually narrow case, or as some have called it, an “error correction” case, in which the Court continues its perceived role of fixing errors in capital cases even where those errors are unlikely to impact but a small handful of other cases. Here the Court holds by a slim majority that the district court did not abuse its discretion in refusing to grant an evidentiary hearing. Evidentiary hearings, the Court  holds, are only required if relief is possible under AEDPA. Here it was pointless to hold an evidentiary hearing into whether counsel unreasonably failed to investigate mitigating evidence as the state court reasonably concluded that Landrigan would have blocked any mitigation proffered by his trial counsel.Wiggins v. Smith and Rompilla v. Beard are distinguishable, the Court notes, because they did not involve defendants who actively thwarted counsel from presenting mitigating evidence.  As other have noted, the dissent likely started out with at least five justices but Justice Stevens could not retain a critical fifth vote.

Looking ahead, no favorable dispositions are noted for the week of May 14 to May 21, 2007.

As always thanks for reading. - k

Pending Executions
May
22 Robert Comers (Az. -- vol.)
24 Christopher Newton  (Ohio)

June
6  Michael Griffith(Texas)
13  Christopher Emmett (VA)
13  Cathy Henderson (Texas)
20  Lionell Rodriguez (Texas)
21  Gilberto Reyes (Texas)
26  Patrick Knight (Texas)
26  Jimmy Dale Bland (Oklahoma)

SCOTUS

• Schriro v. Landrigan, 550 U. S. ____ (5/14/2007) 5-4 (Thomas, J., writing). Landrigan is an “error correction” case in which the Court continues its perceived role of fixing error in capital cases even where those errors are unlikely to impact but a small handful of cases. The SCOTUS concludes “the Arizona court’s determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts.” “The Arizona postconviction court reasonably determined that Landrigan “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court” it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome the AEDPA’s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing.”

In Favor of Life or Liberty -- Week of May 7, 2007

• 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 Court's 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.”

In Favor of Death -- Week of  May 7, 2007

• 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 ineffective 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.

• 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] improper 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. 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."

• 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."

(Advance Sheet for the Week of  May 14, 2007) In Favor of Life or Liberty

• No cases yet reported.

(Advance Sheet for the Week of  May 14, 2007) In Favor of Death

• United States v. Gary Sampson, 2007 U.S. App. LEXIS 11271 (1st Cir 5/7/2007)  "FDPA isn’t unconstitutional because it doesn’t require the presentation of Ring aggravating factors to the grand jury.. . .  Looking at the jury instructions, Selya argues finds that they were not in error, despite the fact that they didn’t provide much in the way of definition of “sufficiency.” Selya rejects the notion that a “reasonable doubt” standard should explicitly apply to all the aggravating factors. . .. . And, last, but not least (and most disturbing) Selya affirms the finding that ex parte conduct between a government expert and a juror wasn’t prejudicial." [via S.Cotus at the Appellate Law & Practice Blog]

• Darryl Durr v. Mitchell,  2007 U.S. App. LEXIS 11617 (6th Cir 5/18/2007) Relief denied on claims relating to:[1] the "trial court’s failure to appoint an independent psychologist;" [2] "failure to investigate mitigation evidence;" [3] "failure to obtain necessary experts;" [4] "failure to object to portions of the state’s closing" argument;" [5] "failure to object to jury instructions;" and [6] "insufficiency of evidence for rape conviction."

• Robert Foley v. Parker,  2007 U.S. App. LEXIS 11540 (6th Cir. 5/17/2006)  Relief denied on claims relating to whether: [1] "he was denied effective assistance of counsel because his trial counsel failed to fully investigate his background and did not produce any mitigating evidence during the penalty phase of his trial;" [2] "that the prosecution elicited substantive proof of his guilt during its rebuttal;" [3] "in violation of Kentucky’s rule that substantive proof of guilt should be presented during the prosecution’s case in chief;" [4] "his motion for a change of venue or a continuance;" [5] "trial court erred by failing to strike ten jurors he challenged for cause;" and [6] "prosecutions use of perjurious testimony."**

• Steve Henley v. Bell, 2007 U.S. App. LEXIS 11328 (6th Cir  5/15/2007)  Relief denied on claims relating to whether: [1] “whether he procedurally defaulted his claim that his accomplice testified falsely at his trial;” . . .. [2]  whether women were underrepresented in the selection of the foreperson for Henley’s grand jury in violation of his due process rights and his right to a fair cross-section of the community serving on his jury; [3] whether Henley’s counsel rendered ineffective assistance during the sentencing phase of trial; [4] whether the trial court improperly instructed the jury that it had to unanimously find any mitigating factors in sentencing Henley; [5] whether the prosecutor improperly appealed to the jury to “send a message” as a reason for sentencing Henley to death; and [6] whether the prosecutor improperly vouched for the testimony of Henley’s accomplice, Terry Flatt.”

• Kevin Young v. Sirmons, 2007 U.S. App. LEXIS 11395 (10th Cir 5/15/2007) Relief denied on claims relating to whether: "(1) There was insufficient evidence to support his conviction; (2) His constitutional rights were violated when the trial court failed to instruct the jury on the lesser-included offenses of second degree murder and first degree manslaughter; (3) Counsel was ineffective during the guilt stage of the trial in failing to obtain the services of a crime-scene reconstructionist;  [ ] (4) Counsel was ineffective during the sentencing stage of the trial in failing to proffer certain mitigation evidence.. . . [and] (5) Whether witness testimony identifying Young as the assailant was improperly admitted due to law enforcement’s use of a flawed identification procedure."

• People v. Joseph Cook, 2007 Cal. LEXIS 5070 (Cal 5/17/2007) Relief denied on claims including: [1] Failure to permit use of plea bargain in mitigation; [2] Failure to give instruction concerning destruction of physical evidence; [3] Admission of certain physical evidence, which, if error, was harmless; [4] Admissibility of certain “scientific” testimony; [5] Failure to provide counsel at lineup conducted before initiation of adversary judicial proceedings; and [6] Lineup was unduly suggestive. [via Electric Lawyer]

• People v. Eric Leonard, 2007 Cal. LEXIS 5071 (Cal 5/17/2007) Relief denied on claims relating to whether [1]“Defendant's statement, "I am guilty," made suddenly in open court during pretrial proceedings, was admissible at trial;” [2] “Even assuming that the question whether a reasonable person would have been free must be answered in light of the defendant's age, low intelligence and developmental disability . . . defendant was not subjected to custodial interrogation.” [3] “Prosecutor's comments about the victims' deaths were emotional, but not excessively so.”[4] “Although a defendant has a Fifth Amendment right not to testify at penalty phase, and jury may not draw adverse conclusions from exercise, here comments on defendant's failure to testify merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better.”; [5]“Death sentence not unconstitutional as applied, though defendant was young (21 years old at the time of the murders), of low intelligence, had chronic and uncontrolled epilepsy, brain damage, and mental illness;” [6]Mental retardation claim preserved for state habeas corpus review ; [7] Trial court erred in failing to adequately protect this developmentally disabled defendant, however, the error does not require reversal; [8] Breakdown in jury process  was harmless, in light of its ultimate ability to render a verdict; [9] It was improper for prosecutor to ask jurors to imagine victims' thoughts in last few seconds of life, but harmless given "overwhelming" evidence of guilt; [11] Prosecutor had no reason to believe that a detective might refer to the "Thrill Killer" in testimony; and [12] Change of venue. [Electric Lawyer has more]

• State v. Nathan Dunlap, No. 04SA218 (Colo 5/14/2007)  Dunlap’s main argument on this appeal was that his trial lawyer was constitutionally ineffective because he failed to adequately investigate Dunlap’s history of mental health problems, either as mitigation of guilty or in the penalty phase of the trial, and otherwise didn’t act competently at the penalty phase of the trial. [from Andrew Oh-Wileke of the Colorado Confidential]

• Lawrence Branch v. State, 2007 Miss. LEXIS 276 (Miss. 5/17/2007)  PCR claims denied as procedurally barred. Dissent would find Branch has made a prima facie case for mental retardation.  

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

Schriro v. Landrigan, 550 U. S. ____ (5/14/2007) 5-4 (Thomas, J., writing). Landrigan is an “error correction” case in which the Court continues its perceived role of fixing error in capital cases even where those errors are unlikely to impact but a small handful of cases. The SCOTUS concludes “the Arizona court’s determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts.” “The Arizona postconviction court reasonably determined that Landrigan “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court” it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome the AEDPA’s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing.” Dan Markel at Prawfs blawg notes:

The CA9’s brief one-game winning streak came to a screeching halt with this week’s lone opinion. Respondent prefigured an infelicitous locution lately made infamous by our Commander in Chief when he invited the sentencing judge to “bring on” the death penalty. The judge obliged. Because at this point you may have figured out that Mr. Landrigan sometimes makes bad decisions, you may not be surprised to learn that, earlier in the sentencing, he had prevented his mother and ex-wife from offering mitigating evidence in his behalf. You may likewise be unsurprised to learn that he also told the judge that he did not want his attorney to present any mitigating evidence.  In light of these facts, the district court denied habeas relief on Landrigan’s ineffective-assistance-of-counsel claim without holding an evidentiary hearing. The CA9, however, accepted Landrigan’s argument that his counsel should have investigated other mitigating evidence—regarding his alleged psychological problems—and that Landrigan would have permitted the presentation of that evidence. The CA9 remanded for an evidentiary hearing into whether counsel’s failure to investigate warranted habeas relief.

A divided Supreme Court reversed, with Justice Anthony Kennedy swinging back to the right and CT picking up a rare (for him) writing assignment in a 5-4 case. The Court held that the district court did not abuse its discretion in refusing to grant an evidentiary hearing. Hearings are required only if there is some chance the defendant can produce evidence that can overcome AEDPA’s formidable hurdles. Here, the state court reasonably concluded that Landrigan was dead set against allowing mitigation evidence; therefore, no matter what evidence his attorney might have dug up in a deeper investigation, Landrigan would have prevented it from seeing the light of day. Given that factual finding by the state court, which was entitled to AEDPA deference, it was pointless to hold an evidentiary hearing into whether counsel unreasonably failed to investigate mitigating evidence. CT distinguished cases such as Wiggins v. Smith (2003) and Rompilla v. Beard (2005), because they did not involve defendants who actively thwarted counsel from presenting mitigating evidence. The Court also noted that it had never held that a defendant must “knowingly and intelligently” waive the right to introduce mitigating evidence. In any case, CT wrote, the psychological evidence was largely cumulative of the testimony by Landrigan’s relatives—which Landrigan flatly prohibited—so he could not show prejudice from his attorney’s allegedly defective investigation.

JPS (+ the 3 amigos) dissented. To him, whether Landrigan would have permitted the psychological mitigating evidence, and whether that evidence would have made a difference, are precisely the type of issues that must be tested in an evidentiary hearing. A waiver of the right to introduce mitigating evidence—like any other constitutional right—must be knowing and intelligent, JPS would have held. Landrigan’s alleged waiver was neither, since it relied upon counsel’s woefully inadequate pretrial investigation, which had utterly failed to uncover strong evidence of neurological mental defects. JPS closed his dissent by chiding the majority for failing to “heed Justice Kennedy’s just reminder” in Keeney v. Tamayo-Reyes (1992), that the Court should not make it more likely that habeas courts will base their decisions on inaccurate assessments of the facts.

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. Judge Cochran' concurrences to the per curiam stay order gives a good indication of what the judges on the Texas Court of Criminal Appeals are thinking:

SMALL PRINT
SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year.

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