Capital Defense Weekly

[Available at http://capitaldefenseweekly.com/archives/070604.htm]

This edition notes a single "win" for the period from May 28 to June 4, 2007, as well as two germane United States Supreme Court opinions since the last edition.

Leading off the edition is the disappointing Supreme Court decision in Uttecht v. Cal Brown. At issue in the case was the striking of an arguably death hesitant juror.  The Washington state courts affirmed the claim on the merits but the Ninth Circuit granted habeas relief. The Brown Court holds that under the AEDPA, as well as the Witherspoon / Witt line of cases, excusal of the juror for cause did not require the issuance of habeas relief as the state court adjudication of the claim was not unreasonable and the trial court had acted well within its discretion in removing the juror for cause.

The Supreme Court also handed down an important prisoner rights opinion in Erickson v. Pardus. The Court of Appeals dismissed as improperly pleaded an inmate's section 1983 suit alleging an Eight Amendment violation for prison officials' termination of a treatment program for his liver condition that they had previously commenced. SCOTUS summarily reverses the dismissal as it unduly heightened the pleading requirements of the Federal Rules of Civil Procedure.

From the lower courts comes just one "win"  The Missouri Supreme Court in State v. Gary Black orders a third trial as the trial court erred in not permitting Black to proceed pro se.  This is the second time the state supreme court had granted Black a new trial on that ground. "The record here leaves no doubt that Black asserted his right both unequivocally and in a timely manner. At least five times, beginning more than a year before the retrial began, Black made clear to the trial court that he did not want an attorney to represent him, with at least three of his written requests citing Faretta for the proposition that his right to represent himself was fundamental."

The Department of Justice has published its proposed opt-in regs for AEDPA. The standards proposed by the DoJ are underwhelming.  CapDefNet has more.

In the news,  DPIC notes that the new polling data shows “[a]lmost 40% of the public believe that they would be disqualified from serving on a jury in a death penalty case because of their moral beliefs. Among sub-groups such as women, African-Americans, and Catholics, the percentage who believe they would be excluded is even higher. These findings raise serious questions about whether defendants are being judged by ‘a jury of their peers’.” The interplay between Uttecht & the polling data will likely lead to the next generation of jury composition  & life / death challenges.

Other news of note since the last edition includes, on Monday in Michael Taylor v. Crawford the Eighth Circuit upheld the Missouri three -drug lethal injection protocol, by the end of the week Attorney General Jay Nixon asked the state supreme court today to set execution dates for 10 condemned inmates, a little less than a quarter of the state's death row.  Both chambers of the Tennessee state legislature has passed a death penalty study commission.  California’s lethal injection moratorium appears likely to last until at least the fall as Judge Fogel said he needs to see the rebuilt execution chamber before hearing arguments on the state's revisions in prison staff selection, training and infusion of the lethal chemicals;  he will visit San Quentin in October.

Looking ahead to the next edition the pace of new decisions remains light.  As of Sunday morning Lexis was showing only one favorable decision, the New Jersey Supreme Court's opinion in State v. Donald Loftin. The facts at issue are essentially one of the jurors commented to a co-worker while on recess in the guilt phase that the jurors should simply get a rope and end  it all. Although he was the juror in question was an alternate, the Loftin Court holds the trial judge should have investigated whether the juror in question had tainted the others juror.

As always thanks for reading. - k

Recent Executions
6  Michael Griffith(Texas)

Pending Executions
June
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)

More Execution information*

SCOTUS

  • Uttecht v. Cal Brown, No. 06-413 (6/4/2007) Under the AEDPA excusal of juror for cause under Witherspoon / Witt did not require the issuance of habeas relief as the state court adjudication of the claim.  State court's holding on the claim was so erroneous (that a juror was not substantially impaired in the performance of their duties) to require relief.  More below
  • Erickson v. Pardus, No. 06-7317 (6/4/2007)  Court of Appeals dismissed as improperly pleaded an inmate's section 1983 suit alleging an Eight Amendment violation for prison officials' termination of a treatment program for his liver condition that they had previously commenced. SCOTUS summarily reverses the dismissal as it unduly heightened the pleading requirements of the Federal Rules of Civil Procedure.

Week of  May 28, 2007 -- In Favor of Life or Liberty

  • State v. Gary Black, 2007 Mo. LEXIS 81 (Mo. 5/29/2007)  Trial court erred in not permitting Black to go pro se.

Week of  May 28, 2007 -- In Favor of Death

  • Richard Cooey v. Collins, 2007 U.S. App. LEXIS 12623  (6th Cir. 6/1/2007) Rehearing en banc on lethal injection challenge denied over dissent.  The brief dissent from the order is authored by Judge Gilman, and it concludes with this sentence: "I believe that en banc review would have been appropriate in the present case to ensure that the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced prisoners."
  • James Dailey v. State, No. SC05-1512, SC06-576 (FL 5/31/2007) Post-conviction relief denied on claims relating to:1) ineffective assistance of counsel and prosecutorial misconduct; 2) Giglio/newly discovered evidence claims; and 3) Ring claims.
  • Robert Preston v. State, 2007 WL 1556649 (FL 5/31/2007) Post-conviction relief denied on claims relating to: 1) newly discovered DNA evidence; 2) ineffective assistance of resentencing counsel; 3) cumulative error; 4) ineffective assistance of appellate counsel; and 5) competency to be executed.

(Advance Sheet for the Week of June 4, 2007)  In Favor of Life or Liberty

  • State v. Donald Loftin, 2007 N.J. LEXIS 605 (NJ 06/05/2007) One of the jurors prejudged the case and the trial court did not properly investigate whether the juror's predetermination of guilt unduly infected the other jurors.  Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance. [more here]

(Advance Sheet for the Week of  June 4, 2007)  In Favor of Death

  • Eric Nenno v. Quarterman,  2007 U.S. App. LEXIS 13146 (5th Cir 6/6/2007) COA denied on claims relating to: "1. Whether a polygraph examiner's deliberate silence after he scored Nenno's polygraph -- a tactic he knew was likely to evoke an incriminating statement from an accused who had just taken a polygraph -- amounted to a "subtle form of psychological persuasion," n1 which overcame Nenno's reluctance to admit involvement in the capital murder and made his confessions thereafter involuntary;" and   "2. Whether the Constitution requires that the states provide condemned prisoners with counsel who provide effective assistance in state habeas proceedings?"

  • Michael Taylor v. Crawford, 2007 U.S. App. LEXIS 12851 (8th Cir. 6/4/2007) "Mr. Taylor has not adduced evidence at any stage of this litigation that carries his burden of proving a constitutional violation. We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an Eighth Amendment violation or that any state actor was deliberately indifferent to the Constitution’s requirement that no unnecessary pain be wantonly inflicted during the execution process."
  • Bell v. State, No. SC02-1765 (FL 6/7/2007) From Findlaw: "Denial of defendant's motion to vacate his two convictions of first-degree murder and two sentences of death and a petition for a writ of habeas corpus is affirmed and denied, respectively, over procedurally barred claims and claims that: 1) trial counsel was ineffective for numerous reasons; 2) there was cumulative error; 3) appellate counsel was ineffective for various reasons; 4) petitioner's death sentence is unconstitutional under Apprendi; and 5) the trial court gave unconstitutional jury instructions."

  • Comm. v. Dewitt Crawley, 2007 Pa. LEXIS 1193 (PA 5/31/2007) PCRA appeal denied  as Crawley failed to "establish that he was mentally retarded by a preponderance of the evidence" and his request for the state supreme court to revise its prior holdings on the appropriate standard for Atkins relief is denied.

  • Comm. v. Derrick Ragan, 2007 Pa. LEXIS 1191 (PA 5/31/2007) . PCRA petition denied as newly discovered evidence held meritless.
  • State v. Roger Todd, 2007 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App 5/31/2007) "Roger Todd, appeals from a trial court order denying funding for his psychological expert. After a thorough review of the record and applicable law, we conclude that Tennessee Rule of Appellate Procedure 3(b) does not provide a proper mechanism by which this Court may address an appeal of an order denying expert funding. Accordingly, the Defendant's appeal is dismissed."
  • Teresa Lewis v. Warden, 2007 Va. LEXIS 95 (VA 6/8/2007) "The issues addressed by the Supreme Court of Virginia involve trial counsel's conduct related to their decisions concerning the investigation and presentation of mitigation evidence for Lewis' sentencing hearing, and their advice to Lewis that she plead guilty. Upon review of the evidence in mitigation and aggravation of the offenses, the Supreme Court concludes that Lewis failed to demonstrate that her defense was prejudiced by trial counsel's failure to investigate and present the available mitigation evidence introduced at the habeas hearing. The Supreme Court further holds that the record does not demonstrate that, but for trial counsel's alleged failures, there is a reasonable probability that the result of the proceedings would have been different." [from the Synopses of Opinions of the  Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]
  • Ricky Gray v. Comm, 2007 Va. LEXIS 94 (VA 6/8/2007)  Relief denied on "the following issues: (1) the sentences of death were imposed under the influence of passion, prejudice, and other arbitrary factors; (2) the sentences of death are excessive or disproportionate to the penalty imposed in similar cases; (3) the circuit court erred by failing to declare Code § 18.2-31(12) unconstitutional as violating his right to equal protection under the law; and (4) the Virginia death penalty statutes otherwise violate the Virginia and United States Constitutions. Gray's first two assignments of error tracked nearly verbatim the mandatory review of a sentence of death required by Code § 17.1-313(C). The Supreme Court conducted the mandatory review and found no error." [from the Synopses of Opinions of the  Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]
  • Denard Manns v. Quarterman, 2007 U.S. App. LEXIS 12923 (5th Cir 6/4/23007) (unpublished)  Relief denied on claims relating to who bares the burden on the mitigation special question under both Penry II and Apprendi / Ring,  as well as the trial court erred in not requiring the jury to unanimously agree whether the offense elevating murder to capital murder was robbery, kidnapping, or aggravated sexual assault and "appellate counsel provided constitutionally deficient assistance by failing to raise on direct appeal the issue of the lack of juror unanimity as to which enumerated offense elevated murder to capital murder."  Oddly this is an unpublished opinion yet drew a "specially concurring" opinion from Judge Emilio Garza on the juror unanimity argument.


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

Uttecht v. Cal Brown, No. 06-413 (6/4/2007) Under the AEDPA excusal of juror for cause under Witherspoon / Witt did not require the issuance of habeas relief as the state court adjudication of the claim.  State court's holding on the claim was so erroneous (that a juror was not substantially impaired in the performance of their duties) to require relief. From the daily blog & possibly the only way to spin this case favorably:

A deeply split Supreme Court in Uttecht v. Brown, as noted earlier, reversed the Ninth Circuit on the issue of juror death qualification. Justice Kennedy’s opinion, as he often does, cites the broad principles at issue and then focuses tightly on the facts at issue.

SCOTUS blog notes the operative facts as:

The ruling grows out of the murder trial of Cal Coburn Brown, who was convicted and sentenced to death for first degree murder. Brown was prosecuted for raping and torturing a woman for two days before killing her and dumping her body in a parking lot. During jury selection, one potential member of the panel — his name was Richard Deal, although the Supreme Court refers to him throughout only as “Juror Z” — repeatedly said that he could impose the death penalty in circumstances that he thought appropriate. But some of his answers (recounted in an appendix to the majority opinion) show some misunderstanding of Washington state law on punishment for murder, and some ambiguity about just when Mr. Deal would be willing to vote for a death sentence.

Although some want to see larger trends at play here, I don’t. Here are some reasons why:

  • The fact that Kennedy wrote the opinion and Stevens wrote the lead dissent means that at the conference the majority was likely 5-4 in favor of reversal.
  • Orin Kerr notes the high snark factor in dissent by Justice Stevens. Although it would be easy to say the snarkiness marks merely the growing tension on the Court between the “pro-life” Catholic majority and the dissenters, that isn’t necessarily so. The majority could have moved broadly as it did in Gonzales v. Carhart, it didn’t. The failure to move broadly suggests, Justice Kennedy, and perhaps one (or more) of the majority aren’t ready yet to scrap Witherspoon / Witt and that the tension marks merely how the close the sides actually are in this case.
  • The Court granted cert this Term in nine capital cases. One of the nine remains to be decided (Medellin). The Court ruled in favor of death four times (Ayers, Schriro, Lawrence, Uttecht) and in favor of the defendant four times (Abdul-Kabir, Brewer, Smith, Weaver). Only one case was not decided by how Justice Kennedy aligned himself (Weaver). Justice Kennedy’s vote, to repeat the obvious, governs the Court’s capital jurisprudence. He doesn’t seem to be in favor of dismantling it, but rather slowly modifying it.
  • In recent terms those cases granting relief to the condemned tended to come from the Fifth Circuit which historically would affirm almost any case which came before it, including those where counsel was asleep, drunk or stoned at trial. The Ninth Circuit, where Brown originated, has historically been the Fifth’s mirror opposite, and, hence, the court from which decisions in favor of the defendant are the most likely to be reversed. Today’s opinion - when in conjunction with the capital cases from the rest of the term - is nothing more than reigning in what Justice Kennedy likely perceives as the excesses of the Courts of Appeals that he sees as out of the mainstream.

The import of the Uttecht v. Brown, at least in my mind, lies in the process Justice Kennedy notes along the way to reaching his decision — a process he implies through out the opinion is the reason he voted to deny habeas relief. He painstakingly sets forth that process the appendix to the Court’s opinion and its description of the voir dire. Voir dire lasted 11 days. The panel “filled out” questionnaires. The trial court explained to the panel in question that “there are only two penalties that a jury could return, one is life in prison without possibility of release or parole. And that literally means exactly that, a true life in prison without release or parole.” The entire of Juror Z’s voir dire - 12 pages worth - are appended to the opinion.

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionnaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward.

State v. Gary Black, 2007 Mo. LEXIS 81 (Mo. 5/29/2007)  Trial court erred in not permitting Black to go pro se. From the Turner Report:

The Missouri Supreme Court today ordered yet a third capital murder trial for Gary Black, who has been convicted twice in the racially motivated 1998 murder of Missouri Southern student-athlete Jason Johnson.

In the opinion, the justices ruled that Black should have been permitted to act as his own attorney, a request that was denied by Jasper County Circuit Court Judge Jon Dermott:

The record here leaves no doubt that Black asserted his right both unequivocally and in a timely manner. At least five times, beginning more than a year before the retrial began, Black made clear to the trial court that he did not want an attorney to represent him, with at least three of his written requests citing Faretta for the proposition that his right to represent himself was fundamental. After the trial court clearly rejected Black's unequivocal and timely assertion of his right to represent himself, he was not required to make further fruitless motions or forgo cooperation with defense counsel to preserve the issue for appeal. The record also fails to establish that Black's waiver of counsel was not intelligent and knowing. As such, the trial court erred in refusing to honor Black's requests to represent himself simply because it believed his attorneys could do better.

The opinion includes the following exchange between Black and Judge Dermott:

COURT: . . . Mr. Black, it appears to me that assigned counsel are working diligently on your behalf. They have the benefit of law degrees and experience in criminal cases. It seems to the Court that you're much better served by having counsel than not having counsel. And so for that reason I'm going to overrule the motion. If you want to retain counsel of your choosing, why the Court would permit you to do that. But in the absence of retained counsel, the Court thinks you're better served by having capable counsel. The Court will make a docket entry simply overruling that motion.

MR. BLACK: In other words, you don't think I'm qualified to represent myself, Your Honor?

COURT: That's true. I think you're less qualified than your attorney. As far as I know you have not been to law school and have not defended criminal cases, you're not licensed to practice law, and so I would assume that assigned counsel is more capable than you of representing you.

Opt-in The Department of Justice has published its proposed opt-in regs for AEDPA. The standards proposed by the DoJ are underwhelming, fall well short of the nationally recognized standards for the qualification of postconviction counsel & can be defined as “a pulse & a bar card” standard.  CapDefNet’s Week at a Glance notes:***

On June 6, 2007, the Department of Justice will publish in the Federal Register the regulations it drafted regarding the certification process for States seeking the benefits of Chapter 154 of AEDPA. Comments must be submitted on or before August 6, 2007. §26.21 provides the following “Definitions”: (1) “Appropriate State official means the State Attorney General, except that, in a State in which the State Attorney General does not have responsibility for Federal habeas corpus litigation, it means the Chief Executive thereof.”; and (2) “State postconviction proceedings means collateral proceedings following direct State review or expiration of the time for seeking direct State review, except that, in a State with a unitary review system under which direct review and collateral review takes place concurrently, the term includes the collateral aspect of the unitary review process.” The proposed regulations do not define any aspect of the requirements for certification contained in 28 U.S.C. §§ 2261 and 2265. They do, however, provide examples of mechanisms that would satisfy the requirements and mechanisms that would not. Regarding the requirement that the State have established a mechanism for compensation of appointed counsel in State postconviction proceedings, the proposed regulations indicate a system with fee caps can meet this requirement where the “caps can be judicially waived if compensation would otherwise be unreasonable.” Similarly, the proposed regulations would allow certification of systems with caps on litigation expenses if there is “allowance for judicial authorization to reimburse expenses above that level if necessary.” As for competency standards, the proposed regulations would allow certification of a mechanism that, for example, simply requires membership in the State bar for five years and at least three years of felony litigation experience. Another example of a compliant mechanism is one allowing for some combination of training and litigation experience.

[more here]

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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ADDITIONAL DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which I have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent my attempt to show what a given Court held, not whether a particular court reached the right decision. The views expressed herein do not reflect the views of my employer or indeed my views as counsel on the merits in any matter in which I have participated (which normally would be either "my client got shafted" or "the court made the correct decision"). The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note we purposefully do not use Blue Book, or any other traditional, citation form. Karl is dyslexic so please accept apologies in advance for the typos.

*Execution information derived from Rick Halperin, DPIC & media accounts
**Indicates prior involvement to one degree or another.
***Wendy Peoples, I am told, is  responsible for "Week-at-a-Glance."