Capital Defense Weekly: 2007

Despite a jury's verdict of 12-0 for death, the Florida Supreme Court Christopher Offord v. State reforms Offord's sentence to life without parole. “Offord’s lifelong history of severe mental illness” justified imposition of a lesser penalty than death. The court pointed to “contradicted medical records” that painted a picture of “an individual with two serious mental illnesses – schizophrenia and bipolar disorder – who has been in and out of institutions since he was just five or six years old.” The court also noted that “Offord’s mental illness undoubtedly contributed to this tragic crime as indicated by the trial court’s finding of the statutory mitigators that the murder was committed while Offord was under the influence of extreme mental or emotional disturbance and that Offord’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.”

In a similar vein, the Texas Court of Criminal Appeals in Kenisha Berry v. State reduces Berry's sentence to life on the basis that the evidence of future dangerousness was insufficient to support a death sentence. Texas precedent requires a trial court to examine the future dangerousness aggravator as to both the prison and the "free world." Here the record indicated that Ms. Berry, who was sentenced to death for killing her child, would not again be in the "free world," if at all, until after she was past child bearing age. The record also indicated that the only danger Ms. Berry would pose in the future would be to her own children. "[T]he state did not meet its burden of proving beyond a reasonable doubt that there is a probability, if allowed to live, [she] would commit criminal acts of violence in the future so as to constitute a continuing threat, whether in or out of prison.”

The Missouri Supreme Court in State ex rel. Robert Wolfrum and Bevy Beimdiek v. Hon. Wiesman grants a writ of prohibition as the trial court should have granted a continuance to defense counsel. The public defender's office repeatedly stated it could not represent Stanley Johnson competently without a continuance because it lacked adequate time and resources to prepare the case on short notice and because necessary discovery and expert evaluations had not been completed. "Any defendant that has exercised his right to counsel is guaranteed effective assistance of counsel, and courts should do the utmost to protect the defendant's right to adequate and competent representation. Having invoked the right to counsel, Johnson has effectively ceded to his counsel the authority to seek reasonable continuances for the purpose of assuring effective assistance of counsel."

In State v. Patrick Kennedy the Louisiana Supreme Court upholds a death sentence for capital rape. Taking a very narrow reading of Coker v. Georgia, the Kennedy Court holds the Eighth Amendment's "evolving standards of decency" do not bar execution here based on such things as the direction of change towards enactment of such statutes and the number of states that permit executions for similar offenses. "Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving."

Other cases include, 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. The Florida Supreme Court holds the trial court 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. The Florida Supreme Court also remanded in Marbel Mendoza v. State for an evidentiary hearing on ineffective assistance claims.

A federal judge said Friday that if California completes a new execution chamber, he would want to inspect it before deciding whether revised death penalty procedures proposed by the Schwarzenegger administration pass constitutional muster. T he Charlotte Observer details that lethal injection lawsuits and legislative indifference have produced a de facto moratorium on executions in North Carolina. Former FBI Director William Sessions has released an op-ed at Jurist website entitled "DNA Evidence and the Death Penalty."

Looking ahead the next edition looks to be rather thin with only one "win noted." The Missouri Supreme Court in State v. Gary Black holds, at the risk of oversimplification, the trial court erred in not permitting Black to go pro se. The Sixth Circuit sitting en banc denied rehearing in Richard Cooey v. Collins on lethal injection challenge denied over dissent.

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)
22 Calvin Shuler (S.C.)
26 Patrick Knight (Texas)
26 Jimmy Dale Bland (Oklahoma)

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

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 notes:

I'm on the road so this is brief and nearly old news by now, but with that out of the way:

This great opinion (PDF) came down from the Tennessee Supreme Court this week, overturning its long-standing precedent excluding eyewitness testimony as common sense, citing (among other things) a poll (PDF) conducted by the Public Defender Service for DC, showing that jurors tend to overestimate the reliability of cross-racial IDs. The defendant in the case had been sentenced to death, but the Tennessee Supreme Court overturned the conviction for the trial court's failure to admit the expert testimony of Jack Brigham on the cross-race effect.

One point that was raised that never receives enough attention is the disparity in admissibility requirements for government vs. defense expert witnesses. So-called "narcotics experts" (i.e., cops) are routinely allowed to testify as experts on the subtleties of drug transactions, and yet eyewitness ID experts (i.e, PhD psychologists) are routinely precluded from testifying:

Another author has observed that while experts are often not permitted to testify regarding eyewitness testimony, police officers and other law enforcement officials are regularly permitted to testify “concerning the general way criminal
schemes and enterprises operate and the usual meaning of criminal slang and code words.” D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 132 (2000). The author contrasts the “technical” knowledge of the law enforcement officials with the educational and scientific credentials of experts on eyewitness identification. Id. at 131-35.

It is the educational training of the experts and empirical science behind the reliability of eyewitness testimony that persuades us to depart from the Coley rule. Times have changed. Today, many scholarly articles detail the extensive amount of behavioral science research in this area. See generally Gary L. Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 47-49 (2006) (for a brief history of psychological research of eyewitness testimony).
There are literally hundreds of articles in scholarly, legal, and scientific journals on the subject of eyewitness testimony.

And on how cross-examination is rarely enough to undermine faulty eyewitness testimony in the minds of the jury:

Further, the research also indicates that neither cross-examination nor jury instructions on the issue are sufficient to educate the jury on the problems with eyewitness identification, contrary to the conclusion reached by the majority in Coley. See, e.g., id. (“[E]ven when presented with an eyewitness who was quite thoroughly discredited by counsel, a full 68% still voted to convict.”) (citing Elizabeth Loftus, Reconstructing Memory: The Incredible Eyewitness, 15 Jurimetrics J. 188, 189-90 (1975)). “Considered as a whole, the studies of juror knowledge and decision making indicate that expert psychological testimony can serve as a safeguard against mistaken identification.” Steven D. Penrod & Brian L. Cutler, Preventing Mistaken Identification in Eyewitness Identification Trials, Psychology & Law: The State of the Discipline 89, 114 (1999).

More in the opinion (PDF), which is well worth a read.

Christopher Offord v. State, No. SC05-1611 (FL 5/24/2007) A sentence of death on these facts is disproportionate. CapDefNet's Week-at-a-Glance notes:***

On May 24, 2007, the Florida Supreme Court issued a per curiam opinion vacating Christopher Offord’s death sentence and resentencing him to life in prison without the possibility of parole. Offord v. State. Offord was sentenced to death for beating his wife to death with the claw end of a hammer. The jury had recommended a death sentence by a vote of 12-0. The trial court found the heinous, atrocious and cruel aggravating circumstance to be applicable, an aggravator that the state supreme court has previously described as one of the most serious under state law. The state supreme court nevertheless found that the death sentence in this case was a disproportionate punishment. It concluded that “Offord’s lifelong history of severe mental illness” justified imposition of a lesser penalty than death. The court pointed to “uncontradicted medical records” that painted a picture of “an individual with two serious mental illnesses – schizophrenia and bipolar disorder – who has been in and out of institutions since he was just five or six years old.” The court also noted that “Offord’s mental illness undoubtedly contributed to this tragic crime as indicated by the trial court’s finding of the statutory mitigators that the murder was committed while Offord was under the influence of extreme mental or emotional disturbance and that Offord’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.” While the trial court gave some credence to Offord’s testimony that was not crazy and that he could “fool” any doctor, the state supreme court found such testimony to be “contrary to the extensive documented history of Offord’s lifelong mental illness and repeated institutionalization.”

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. CapDefNet's Week-at-a-Glance notes:***

On May 23, 2007, the Texas Court of Criminal Appeals (Johnson, Price, Womack, Holcomb and Cochran) ruled that the evidence was insufficient to support the jury’s finding that Kenisha Berry posed a future danger. Berry v. State. Berry was convicted of killing her infant child. At the punishment phase, evidence was presented that Berry had abandoned another infant child nearly five years later. That child was found naked in a ditch with fire ants all over her body. Defense witnesses testified that these two incidents were out of character and that Berry actually was a loving and caring mother to her other three children. There was testimony that Berry was depressed and under extreme stress when she killed the first infant and, five years later, abandoned the second. A defense expert opined that Berry posed a low risk for future dangerousness because the incidents involving the two infants were unique and that there was only a remote possibility that Berry would become pregnant in prison. The prosecution countered with testimony from the former warden of a women´s prison who had been employed by the Texas Department of Criminal Justice for twenty-three years. According to the former warden, female prisoners had become pregnant after having sexual relations with male prison guards or other staff. She acknowledged, however, that there was an extremely low likelihood that a female inmate would become pregnant while in prison and that it was a "possibility" rather than a "probability" that such a situation would occur. In arguing that the evidence did not support a finding of future danger to society, defense counsel noted the lack of any criminal history. Counsel also pointed out that if given a life sentence, Berry would be incarcerated during her child bearing years and that she had only been a threat to her own children. The prosecutor told the jury when deciding the future dangerousness issue, it had to “assume whether she´s a future danger sitting there as she sits today, if she was out among us, among other children, is she a future danger.” The prosecutor went on: “I submit to you the way you answer this question is if she was out and she´s among her children or she has another child, do you think she´s a future danger to that child. . . . Some people are just evil.”

In deciding whether the evidence supported the jury’s finding that Berry did indeed pose a future danger to society, the court of criminal appeals pointed out that its precedent established that the jury was to consider dangerousness to “society” in terms of both prison and the “free world.” By arguing to the jury that it was to assume that Berry would be out of prison, the prosecutor therefore misstated the special issue. The court then observed that Berry, if spared the death penalty, would be locked up in the general prison population for a minimum of forty calendar years. It found: “The state´s argument therefore both misstated the law and misdirected the attention of the jury away from a determination of whether she would be a continuing danger in the actual circumstances in which she would be living (prison) and toward a determination of her continuing dangerousness in circumstances in which she most assuredly would not be (the free world).” On the record before it, the court held that “the state did not meet its burden of proving beyond a reasonable doubt that there is a probability that [Berry], if allowed to live, would commit criminal acts of violence in the future so as to constitute a continuing threat, whether in or out of prison.”

Hervey filed a dissenting opinion, joined by Keller, Meyers, and Keasler, arguing, among other things: “The future-dangerousness special issue . . . does not exempt from the death penalty those defendants who are dangerous only to a segment of society that they probably will not encounter in prison or are not likely to encounter again if they are paroled forty or so years later. . . . If that was true, the future-dangerousness special issue would exempt from the death penalty most parents who murder their children, contrary to the clear legislative intent expressed in Section 19.03(a)(8) making it a capital offense for a person to murder ‘an individual under six years of age.’ It would also exempt from the death penalty many other killers such as children who murder their parents and middle-aged serial killers who prey on young children.”

On May 22, 2007, in State v. Kennedy, the Louisiana Supreme Court upheld the death sentence imposed on Patrick Kennedy for the rape of his eight-year-old step daughter. The court rejected Kennedy’s Eighth Amendment challenge to the statute authorizing capital punishment in this case. Looking to other jurisdictions, the court found as follows: “Overall, it appears that approximately 38% of capital jurisdictions (15 of 39, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.” More important to the court was the fact that since Louisiana enacted the statute at issue, four states have passed laws capitalizing child rape. It also speculated that many jurisdictions may be taking a “wait and see” approach given the ambiguity about whether Coker, which held that the Eighth Amendment barred a death sentence for the rape of a woman, applies to all rape or only to the rape of an adult. The court then noted that the Supreme Court has characterized rape as second only to murder in terms of harm caused to the victim. Thus, the court found that “if the [Supreme] Court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape.” The court also expressed a belief that “execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would.” It ultimately concluded that “the death penalty for the rape of a child under twelve is not disproportionate.”

Chief Justice Calogero dissented, arguing that “[w]ith the possible exception of sui generis crimes against the state involving espionage or treason, the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim.”

On May 24, 2007, the Florida Supreme Court, per curiam, found that the trial court committed reversible error by failing to grant William Kopsho’s cause challenge to a prospective juror who provided equivocal responses when asked if he could be impartial if Kopsho exercised his right not to testify. Kopsho v. State. The trial court’s conclusion that there was no reasonable doubt regarding the prospective juror’s impartiality because the prosecution would be admitting Kopsho’s taped statements was held to be an incorrect application of law. The Florida Supreme Court explained: “Whether the defendant’s ‘version of events’ will ultimately be presented to the jury is immaterial. A prospective juror who cannot presume the defendant to be innocent until proven guilty is not qualified to sit as a juror.” Prejudice was found under state law even though defense counsel utilized a peremptory challenge to excuse the prospective juror because defense counsel exhausted his peremptory challenges and the trial court refused to grant him an additional one when he expressed dissatisfaction with one of the remaining jurors. Justice Bell, joined by Justices Wells and Cantero, concurred in the result only and authored an opinion urging the court to adopt the actual prejudice standard that is applied by both the federal courts and the vast majority of state courts.

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.” CapDefNet's Week-at-a-Glance notes:***

On May 24, 2007, the Florida Supreme Court issued a per curiam opinion remanding for a second evidentiary hearing after the lower court summarily denied Marbel Mendoza’s motion to vacate his conviction and sentence. Mendoza v. State. Back in 2001, a circuit court had issued an order summarily denying Mendoza’s post-conviction relief petition without holding an evidentiary hearing. The Florida Supreme Court vacated the order and remanded for an evidentiary hearing on Mendoza’s IAC claims. A new judge was appointed and an evidentiary hearing was held. The new judge then denied the claims in a two-page order “which simply set out the standards from case law for ineffective assistance of counsel claims and held: ‘This Court finds that the Defendant’s petition did not meet nor did it overcome the requirements of the above-mentioned case law.’” Finding this order insufficient, and because there are factual and credibility determinations remaining to be made, the Florida Supreme Court found it must remand the case a second time. The death of the judge who conducted the hearing prevented a remand for further explanation. Instead, the court concluded it had to “remand for a new evidentiary hearing so that the ineffective assistance of counsel claims can be properly considered and determined on the evidence presented to the new postconviction judge.” The court went on to deny Mendoza’s pending habeas petition which raised either meritless or procedurally barred claims of ineffective assistance of appellate counsel.

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. CapDefNet's Week-at-a-Glance notes:***

On May 24, 2007, the Sixth Circuit issued its en banc decision in Van Hook v. Anderson, ___ F.3d ___, 2007 WL 1501249 (6th Cir. May 24, 2007), a pre-AEDPA capital case, holding that police may approach a suspect who has previously requested an attorney if the police have been informed by a third party that the suspect may now want to speak with the police without counsel present. Judge McKeague authored the majority opinion, joined by Chief Judge Boggs and Judges Batchelder, Gibbons, Rogers, Sutton, Cook and Griffin. Judge Cole wrote a dissenting opinion, joined by Judges Merritt, Martin, Daughtrey, Moore, Clay and Gilman. Judges Merritt and Martin also authored dissenting opinions with Judges Martin, Daughtrey, Moore, Cole and Clay joining in Judge Merritt’s dissent.

The majority found that “permitting a suspect to communicate a willingness and a desire to talk through a third party is consistent with the interest protected by Edwards [v. Arizona, 451 U.S. 477 (1981)],” i.e., “to protect against government coercion.” The majority then went on to rule that the state court’s factual findings about the detective’s conversation with Van Hook’s mother, which led to the detective initiating contact with Van Hook, were supported by the record. The majority concluded that the detective’s belief, based on statements by Van Hook’s mother, that Van Hook might want to talk to authorities without counsel was “enough to justify a limited inquiry to confirm or disaffirm that belief.” The majority affirmed the denial of relief on the claim and remanded to the panel for consideration of the remaining claims raised by Van Hook.

Judge Cole’s dissent expressed his belief that “that only the suspect or his attorney may initiate discussions with the police (defined broadly to include other corrections officers) after a suspect has invoked his right to counsel . . ..” Even assuming, however, that third party initiations are permissible, Judge Cole disagreed “with the majority’s conclusion that the record in this case establishes that Van Hook reinitiated communication with the police through his mother.”

Judge Merritt agreed with Judge Cole’s conclusion that the police may no longer interrogate a suspect who has invoked his right to counsel “unless he either reinitiates the interrogation himself directly or reinitiates interrogation through the counsel he has requested.” Even if third party initiation is permissible, Judge Merritt opined that the State would have to prove, at a minimum, “that (1) after invoking his right, the accused himself initiated contact on his own through a third person, (2) the third person contacted the police after the accused invoked his right, and (3) the waiver of the previously invoked right did not arise because the police encouraged the third person to convince the accused to break his silence and confess without counsel.”

Judge Martin, after expressing agreement with Judges Cole and Merritt, went on to argue: “To the extent that the majority’s holding could be a defensible interpretation of Edwards, any arguments in its favor are completely undermined by the fact that its ruling is utterly impractical. The majority fails to provide a workable rule of uniform application.

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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