Capital Defense Weekly

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

Pending Executions
June
20  Lionell Rodriguez (Texas)
21  Gilberto Reyes (Texas)
22  Calvin Shuler (S.C.)
26  Patrick Knight (Texas)
26  Jimmy Dale Bland (Oklahoma)

July
9-13 Elijah Page (S.D. -vol)
10 Rolando Ruiz (Texas)
24 Lonnie Johnson (Texas)
26 Darrell Grayson (Alabama)

SCOTUS

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]
  

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."

• People v. Charles Stevens, 2007 Cal. LEXIS 5492 (CA 6/4/2007)

• 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.

(Advance Sheet for the Week of June 11, 2007)  In Favor of Life or Liberty

• Crystal Mae Wagner v. State, 2007 Ga. LEXIS 428 (Ga 6/11/2007) Interlocutory appeal granted in part.  The Georgia Supreme Court's summary notes that the trial cour "that the indictment mixed the elements of malice murder and felony murder, which was a material defect, and ruled that to the extent Bailey v. State, 280 Ga. 884 (635 SE2d 137) (2006) “can be construed to hold that a material defect that is not prejudicial to the defendant does not require the quashing of a defective count of an indictment, it is disapproved.”"
  

• Exzavious Gibson v. Head,2007 Ga. LEXIS 431 (Ga 6/11/2007) Remand ordered "the habeas court will again consider, in a manner consistent with this opinion, whether Gibson’s conflict of interest claim is procedurally barred and, if not, whether it has merit."  The Georgia Supreme Court's summary notes that the trial court "erred in holding that Gibson’s claim that his trial counsel had a conflict of interest because he was a Special Assistant Attorney General at the time he represented Gibson was procedurally barred because trial counsel’s employment with the Attorney General was a matter of public record. The Supreme Court held that the attorney was under an affirmative duty to disclose the potential conflict and thus Gibson was entitled to presume that the potential conflict did not exist. The Court also held that a claim that counsel had a conflict of interest is a constitutional claim cognizable in habeas. Thus the Court reversed in part and remanded to the habeas court for a determination of whether Gibson’s claim was procedurally barred by his knowledge at the time he filed his first habeas petition of his counsel’s employment with the Attorney General, and if not, whether the claim has merit."
  

• Ex Parte Cathy Lynn Henderson,  2007 Tex. Crim. App. LEXIS 769 (Tex. Crim. App. 6/11/2007)  Trial judge ordered to examine the possibility that the death for which Henderson was convicted was due to an accident and not murder.
  

• William Kuenzel v. Allen,  2007 U.S. App. LEXIS 13805  (11th Cir 6/13/2007)"Remanding to the district court for consideration of whether Kuenzel’s allegations of actual innocence overcome the procedural default of his claims. Kuenzel’s federal habeas petition had been dismissed earlier as untimely. The Eleventh Circuit reversed, holding that the untimeliness of the state post-conviction relief petition did not by itself render that petition improperly filed for purposes of tolling the federal statute of limitations. On remand, the district court found that Pace v. DiGuigliemo, 125 S.Ct. 1807 (2005) had effectively overruled Eleventh Circuit precedent on this issue. The panel here noted that another panel has found that Pace did not overrule the Eleventh Circuit’s decision. See Siebert v. Allen, 480 F.3d 1089, 1090 (11th Cir. 2007)."

(Advance Sheet for the Week of  June 11, 2007)  In Favor of Death

• Michael Lambert v. Buss, 2007 U.S. App. LEXIS 13704 (7th Cir 6/12/2007)

• Jimmy Dill v. Allen, 2007 U.S. App. LEXIS 13815 (11th Cir 6/13/2007)

• James Belcher v. State, 2007 Fla. LEXIS 1050 (FL 6/14/2007)
  

• John Allen Muhammad v . Warden, 2007 Va. LEXIS 97 (Va 6/12/2007)

• Irving Davis v. State, 2007 Tex. Crim. App. LEXIS 808 (Tex. Crim. App. 6/13/2007)

Noncapital of note:

• State v. Barbara Oakly, et. al. , 2007 Tex. LEXIS 525 (Tex 6/8/2007)  Examination of Texas's compensation statute for those wronfully convicted

• Victor Saldano v. State, 2007 Tex. Crim. App. LEXIS 698 (Tex. Crim. App. 6/6/2007)

• Michael Scott v. Texas, 2007 Tex. Crim. App. LEXIS 697 (Tex. Crim. App. 6/6/2007)

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

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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*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."