Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070521.htm]

The lead case of this edition is  Roper v. William Weaver in which the Supreme Court dismisses certiorari as improvidently granted.  Ostensibly, Weaver was supposed to be about whether the prosecutor’s inflammatory closing arguments in the penalty phase of this trial are cognizable on federal habeas review after the AEDPA. As noted  sometime ago, “[t]he Eighth Circuit in Weaver v. Bowersox vacate[d] a sentence of death due to comments by the prosecutor in closing argument. According to the majority opinion the prosecutor’s impermissible comments include comparing jurors to soldiers, and recounting a scene from the movie Patton, where George C. Scott says that killing during war is justified when you “reach over and put your hand in the pile of goo that a moment before was your best friend’s face;” informing jurors that he was the top law enforcement officer in the county, with authority to decide which cases were eligible for the death penalty;” telling jurors that they needed to send the right message to “the scum of the world”: the “drug dealers, dope peddlers, and the hitmen they hire to do their dirty deeds,” and that the right message was not life in prison because death is ‘the only message they are going to understand’.”  The prosecutor also made the same closing in two other capital cases, both of which received relief in the Eight Circuit -- both cases were, however, pre-AEDPA.  For reasons discussed in the final section of this "edition," the Supreme Court concludes equity requires treating similarly situated capital litigants in similarly.

In the news, Ohio horribly botched Christopher Newton’s execution with  prison medical staff taking about 20 minutes to insert a shunt in the left arm, at least 30 minutes to do the same to the right arm, and twice as long as usual for Newton to die once the chemicals began to flow.  A possible botch is also noted in the execution of Robert Comer.  DPIC notes that "the costs of the death penalty are a key factor affecting the quality of representation in capital cases . . . . [l]ack of representation in parts of the death penalty process has been cited recently in courts in Georgia, Alabama, and Utah."  DPIC also notes "last year, prosecutors in two neighboring Arizona counties, Pima and Maricopa, sought the death penalty at dramatically different rates, a fact that has many questioning the arbitrary nature of the state's death penalty."

Looking ahead to the next edition, three wins noted out of Florida. The Florida Supreme Court in Christopher Offord v. State,vacates Appellant’s death sentence on proportionality grounds. The trial judge in William Kopsho v. State erred by not removing a juror that was so pro-prosecution & so incapable in setting aside personal beliefs that it deprived Appellant a fair trial. In Marbel Mendoza v. State a remand is ordered for an evidentiary hearing on ineffective assistance claims. The Texas Court of Criminal Appeals overturned  death sentence in State v. Kenisha Berry on sufficiency of the evidence of future dangerousness.  The Tennessee Supreme Court issued a major holding on eyewitness identification in State v. Arthur Copeland, holding  the trial  court erred in not permitting expert testimony on the fallibility of eyewitness identification; Eyewitness Identification Reform Blog has more.

Unfortunately the look ahead is not all wine and roses.  The Louisiana Supreme Court upheld (although its decision is best described as cert. bait) a death sentence for capital rape in State v. Patrick Kennedy. The Sixth Circuit en banc in Van Hook v. Anderson vacates, 8-7, a panel’s holding that had granted Van Hook a new trial holding that Petitioner’s confession did not violate Miranda.

As always thanks for reading. - k

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

SCOTUS

• Roper v. William Weaver,No. 06-313 (5/21/2007) Cert dismissed as improvidently granted.  In the closing lines of Weaver the majority cryptically notes "we find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner.”

In Favor of Life or Liberty --  Week of  May 14, 2007

• No cases yet reported.

In Favor of Death --  May 14, 2007

• 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.  

(Advance Sheet for the Week of  May 21, 2007)  In Favor of Life or Liberty

• State v. Arthur Copeland, 2007 Tenn. LEXIS 502 (Tenn. 5/23/2007) Eyewitness identification can’t be trusted.  The trial court erred in excluding proffered expert testimony. The Copeland Court also makes some proposals for eyewitness ID. [The Eyewitness ID blog’s experts have more.]

• Kenisha Berry v. State, 2007 Tex. Crim. App. LEXIS 651 (Tex Crim App 5/23/2007) Relief granted in a rather straightforward and commonsensical holding as to sufficiency of the evidence of future dangerousness.
  

• Christopher Offord v. State, No. SC05-1611 (FL 5/24/2007) A sentence of death on these facts is disproportionate.

• William Kopsho v. State, No. SC05-763 (FL 5/24/2007) Trial court erred in not removing a certain juror for cause.
  

• Marbel Mendoza v. State, No. SC04-1881 (FL 5/24/2007) Remand and evidentiary hearing ordered on “ineffective assistance of counsel at both the guilt and penalty phases of his trial. Mendoza asserts that his counsel was ineffective because his counsel relied on inconsistent theories as to the identity of the shooter in opening and closing statements; failed to call Lazaro Cuellar to testify; deficiently prepared the sole defense witness at trial; did not hire an investigator; failed to investigate and present mitigating evidence; improperly opened the door to otherwise inadmissible evidence; and called an improper witness at the penalty phase.”

• State ex rel. Robert Wolfrum and Bevy Beimdiek v. Hon. Wiesman, 2007 Mo. LEXIS 80 (Mo 5/22/2007) Writ of prohibition granted as the trial court should have granted a continuance.
  

(Advance Sheet for the Week of  May 21, 2007)  In Favor of Death

• Robert Van Hook v. Anderson, 2007 U.S. App. LEXIS 12098 (6th Cir. 5/24/2007) A sharply divided en banc court (8-7) holds Miranda not violated where the condemned had his mother contact the police after asserting his Miranda rights.

• People v. Andrew Lancaster, 2007 Cal. LEXIS 5275 (Ca. 5/24/2007) [via Findlaw]  "In a death penalty case, defendant's conviction and sentence are affirmed over claims of error regarding: 1) defendant's legal representation; 2) jury selection; 3) admission of evidence; 4) an allegedly improper comment on defendant's failure to testify under Griffin; 5) jury instruction; 6) amendment of the information; 7) consideration of defendant's possession of handcuff keys during the penalty phase; 8) a refusal to admit evidence of the victim's opinion on the death penalty; 9) defendant's testimony at the penalty phase; 10) admission of taped statements by defendant to police; 11) a statement about a prior robbery; 12) the standard of proof for aggravating factors; and 13) denial of modification of the death sentence."

• Wayne Kubsch v. State, 2007 Ind. LEXIS 360 (Ind 5/22/2007) "[A] special prosecutor was not necessary because no actual conflict existed between Dvorak and his duties to his former client, to Kubsch, or to the citizens of St. Joseph County."
  

• State v. Frederick Baer, 2007 Ind. LEXIS 363 (Ind 5/22/2007) Relief denied on claim of error including: "(1) prosecutorial misconduct; (2) erroneous admission of recorded telephone calls from jail; (3) trial court failure to comply with proper procedures in handling prospective jurors; and (4) inappropriateness of the death sentence. We affirm the judgment of the trial court."
  

• Michael Lambert v.State, 2007 Ind. LEXIS 358 (Ind. 5/21/2007)  Relief denied on claims relating to: (1) a majority of state supreme court justices having previously voted to grant relief at different times in the course of his appellate process, and (2) entitlement of relief under the U.S. Supreme Court’s 2006 decision in Brown v. Sanders
  

• State v. Patrick Kennedy, 2007 La. LEXIS 1244 (La. 5/22/2007) Conviction for capital rape affirmed.
  

• State v. Antoinette Frank, 2007 La. LEXIS 1246 (La. 5/22/2007) "[B]ecause defendant was provided access to a mitigation expert by her counsel and refused the expert's assistance, she has not successfully shown that there existed a reasonable probability both that an expert would have been of assistance to the defense and that the denial of expert assistance resulted in a fundamentally unfair trial. Consequently, defendant has not shown prejudice in not obtaining state-funded expert assistance. We conclude she is not entitled to a new sentencing phase on this ground. Finding no reversible error in the remaining assignments of error pretermitted in our original opinion, we therefore affirm defendant's sentence.
  

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

Monday morning’s decision in Roper v. Weaver is raising a few serious questions about where capital jurisprudence may be going. Specifically, in the closing lines of Weaver the majority cryptically holds “we find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner.”

What does this cryptic line mean? Is a new line of capital jurisprudence about to emerge from the SCOTUS? Does it portend some sort of new comparative results / proportionality analysis? Does it mean the Court wants to solidify the sub silentio “fundamental fairness” analysis critics have been arguing it has been doing for some time in capital cases? Or is it simply the justices saw that it would be inequitable to have a man die where others with identical claims lived? By getting rid of Weaver by “dismissing as improvidently granted” (DIG) the Court need not answer the questions raised by its closing lines.

Ostensibly, Weaver was supposed to be about whether the prosecutor’s inflammatory closing arguments in the penalty phase of his trial are cognizable on federal habeas review after the AEDPA. As noted here sometime ago, “[t]he Eighth Circuit in Weaver v. Bowersox vacate[d] a sentence of death due to comments by the prosecutor in closing argument. According to the majority opinion the prosecutor’s impermissible comments include comparing jurors to soldiers, and recounting a scene from the movie Patton, where George C. Scott says that killing during war is justified when you “reach over and put your hand in the pile of goo that a moment before was your best friend’s face;” informing jurors that he was the top law enforcement officer in the county, with authority to decide which cases were eligible for the death penalty;” telling jurors that they needed to send the right message to “the scum of the world”: the “drug dealers, dope peddlers, and the hitmen they hire to do their dirty deeds,” and that the right message was not life in prison because death is ‘the only message they are going to understand’.” As the Court notes today, “[t]he argument made by the prosecutor in this case was essentially the same as the argument that he made in two other cases—one of which involved respondent’s codefendant.”

“The Court issues a Per Curiam decision in which it found that the defendant’s original federal habeas petition, which was filed before AEDPA’s effective date, was improperly dismissed by the federal district court under Lawrence v. Florida. The defendant filed a second habeas petition after AEDPA’s effective date and that petition was the subject of the federal appellate court’s ruling that the sentence of death should be vacated based upon prosecutorial misconduct. The parties agreed that if the case was governed by pre-AEDPA law, the defendant was entitled to relief. This conclusion was premised in part upon the fact that the defendant’s two co-defendants, who had filed pre-AEDPA petitions, obtained reversals of their death sentences based upon the same issue. The question presented was whether the claim of prosecutorial misconduct could survive AEDPA review.” [via Harmful Error]

The majority decided not to address the inflammatory closing issue. Rather, in light of the procedural irregularities and “to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the District Court erroneously dismissed respondent’s pre-AEDPA petition,” the Court exercises its discretion to dismiss the case as improvidently granted.

In DIGing Weaver the Court also sidestepped a very substantial Article III question relating to the constitutionality of AEDPA. As has been repeated ad nauseum by scholars and lower courts judges in disgust, sec. 2254(d)(1) has serious constitutional infirmities. The problem goes something like this. IF the two pre-AEDPA cases were correctly determined, and if Weaver v. Bowersox (the 8th Circuit’s case below) merely relied on those cases for the precedent required to grant relief, can Congress limit an Article III court from applying its own precedent. For an outline of the AEDPA problem see Joseph Brunner’s “Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy.” University of Cincinnati Law Review, Vol. 75, Fall 2006 [Available at SSRN: http://ssrn.com/abstract=946132]. This ugly Article III question was avoided by simply getting rid of the case as improvidently granted.

In dissent Justice Scalia, joined only by Justices Thomas & Alito, ridicules the majority. Specifically, he holds that Weaver should suffer for the district court’s error. Curiously, although he claims he would have denied relief on the merits of the petition & lambasts the Eight Circuit for granting relief, he never provides a satisfactory rationale for why the Eighth Circuit erred and why it deserves in his opinion rebuke.

Scalia’s dissent aside, the DIG means the Court can put off until another day the fight over the constitutionality of section 2254(d)(1).

Harmful Error, SCOTUSblog, The AEDPA Law and Policy Blog, & others have more.

SMALL PRINT
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