Capital Defense Weekly: 2007

In an unusually large edition (even for one covering two weeks) there are fourteen wins noted for the period from June 18 to July 2, 2007. Due to the length, and the untimely nature of the reviews, please forgive a truncated introduction.

By now anyone interested in reading Panetti v. Quarterman has read it. The opinion is rather straightforward: Texas failed to afford Panetti a meaningful opportunity to test whether he was competent enough to be executed. Panetti readily could have been a case about error correction or even redefining the standards the Court laid out in Ford v. Wainwright. The Court instead spilled much ink focusing on what it held to be insufficient process afforded to Panetti by the state trial court & the subsequent rubber stamping of that flawed process by the Texas Court of Criminal Appeals and then the Fifth Circuit. In that regard, the issue at bar in Panetti (competency to be executed) was less important as the language of the opinion made clear Justice Kennedy had problems with the failure to afford the procedural protections afforded by precedent.When read in conjunction with the Court’s other opinions this term the Court continues to suggest to the Texas Court of Criminal Appeals & the Fifth Circuit that it is overproducing executions and new death sentences.

In a quick round of cases that would normally get a paragraph (or more), a split Seventh Circuit panel grants penalty phase relief for failing to investigate and present mitigation evidence in Christopher Stevens v. McBride. The Kentucky Supreme Court, in a case that the unanimous court suggests maybe a case of wrongful conviction, grants relief in Comm. v. Charles Bussell on counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that someone else committed the crime. Although the South Carolina Supreme Court in State v James Earl Reed is holds the appellant to be competent, it concludes he has not made a knowing and intelligent waiver of his right to appellate review. The Third Circuit in an unpublished grant of relief in William Wallace v. Price holding the trial court improperly excluded the statement of an alleged co-conspirator asserting that Wallace was not the triggerman for the crime in which he was convicted.The Montana Supreme Court in Miller & Lebrum v. 18th Judicial District holds the local prosecutor was too dilatory in filing a notice of capital prosecution under court rules. In a growing split among the lower federal courts, the Eastern District of Missouri in Lyons v. Luebbers grants permission to bill for state clemency work. The Louisiana Supreme Court in State v. Shon Miller holds that trial judge erred in pre-trial rulings that substantially prevented him from pleading not guilty by reason of insanity. The Alabama Court of Criminal Appeals in Donald Broadnax v. State holds the circuit court erred in denying his motion for leave to file a second amendment to his petition. The Ninth Circuit in George Lopez v Shriro remands as the district court erred in finding penalty phase IAC claims unexhausted. Favorable Atkins cases are noted in Sedrice Maurice Simpson v. Norris(8th Cir)(claim not defaulted), Comm. v. Jerome Gibson (Penn.), State v. Porfirio Jimenez (NJ) (MR need to be unanimously disproved).

The most notable denial of relief -- and a strong contender for cert -- is Eric Moore v. Quarterman. Moore appears to present issues with a fair chance of rehearing en banc and/or cert. “This court granted Moore authorization to file a second federal habeas petition to raise an Atkins claim. The federal district court ultimately found him to be mentally retarded and accordingly granted the requested relief. But because Moore failed to exhaust the remedies available to him on his Atkins claim in state court, and because Texas’s abuse-of-the-writ doctrine would preclude him from filing another petition based on facts he inexcusably failed to develop, we vacate and remand with instruction to dismiss the petition with prejudice.” The dissent notes that Moore is clearly mentally retarded, that once again the Fifth Circuit is creating a rule to deny the benefits of black law letter to a Texas death row inmate, and, perhaps most importantly, that the Fifth Circuit is once again faulting counsel for not being psychic and knowing what the Texas Court of Criminal Appeals would do before it did it. The lengths to which the Fifth Circuit has gone in this opinion to deny relief in light of a string of opinions out of Texas & the Fifth Circuit (such as Panetti) puts Moore well within the ambit of cert bait.

Looking ahead, two favorable decisions are already noted. The Tennessee Court of Criminal Appeals in Paul Reid v. State holds that Reid is not able to competently drop the normal review process in a capital case. In the other opinion the Eleventh Circuit examines the interplay of Rule 60(b) and AEDPA's successive writ rules in Edward Zakrzweski v. McDonough that the trial court erred on these facts finding the Rule 60(b) motion was a successor.

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

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

Christopher Stevens v. McBride , 2007 U.S. App LEXIS ----- (7th Cir 6/18/2007) A divided three-judge Seventh Circuit panel vacates this Indiana death sentence imposed on “an emotionally disturbed young man who had been abused and raped as a child” where “the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth.” The vote in favor of setting aside the death sentence was 2-1. One of the judges in the majority on that issue would have also set aside the habeas petitioner's murder conviction due to ineffective assistance of counsel, but neither of the other two judges agreed on that issue. Rob Loblaw notes:

In a splintered habeas decision, a divided panel of the Seventh Circuit orders a new sentencing hearing for Indiana death row inmate Christopher Stevens, who was convicted of molesting and brutally murdering a 10-year old. Stevens himself had been abused and raped as a child, and the defense intended to use his history of mental health problems as mitigating evidence to convince the jury to save his life. To do that, the defense team needed to hire an expert. They chose Dr. Lawrence Lennon, who focused on adolescent psychiatry.

Dr. Lennon wrote an extremely damaging report, in which he described Stevens as cold and calculating, opined that he showed no remorse for his actions and instead blamed others, and concluded that he would likely molest again if he had the opportunity. When the defense team questioned Dr. Lennon about why his report was so unfavorable, he told them not to worry, and assured them that the report was designed to “sandbag” the prosecution. Shortly thereafter, the defense team learned that Dr. Lennon was a rare breed of psychiatrist indeed, as he believed that mental disorders were “a myth.” Dr. Lennon’s favored therapeutic technique was putting teenage boys on his lap and nursing them from a bottle.

Perhaps all this should have given the defense team pause about putting Dr. Lennon in front of the jury. But no. The defense did not bother to have Stevens examined by any other mental health professional. During the sentencing phase, the defense called Dr. Lennon as its only expert witness. Dr. Lennon’s testimony did nothing to help Stevens, and on cross examination, the prosecution was able to use his report practically verbatim. And as if to seal Stevens’ fate, Dr. Lennon testified about some gruesome details that Stevens had admitted to him, details he had not shared with the defense team. The jury recommended the death penalty.

Perhaps Dr. Lennon’s performance in front of the jury should have given the defense team pause about using Dr. Lennon at the sentencing hearing. But no. The defense again called Dr. Lennon, who told the trial judge that Stevens was “a great risk to society.” The judge accepted the jury’s recommended and sentenced Stevens to death.

The majority of Judges Wood and Ripple concludes that calling Dr. Lennon not once but twice amounts to ineffective assistance of counsel. Accordingly, it orders the state to resentence him. On the other hand, the majority of Judges Wood and Manion rejects Stevens’ argument that he should also get a new guilt phase trial. Judge Ripple dissents from this portion of the decision, arguing that Stevens’ attorneys inexplicably failed to pursue a mental illness defense. He’d grant Stevens an entirely new trial. Finally, in a partial dissent, Judge Manion explains that he would not grant Stevens habeas relief at all.

George Lopez v Shriro, 2007 U.S. App. LEXIS 14470 (9th Cir 6/20/2007) “[T]he district court erred by determining that Lopez's ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.” From the CDW blog

The Ninth Circuit has ordered a remand in George Lopez v. Shriro, No. 06-99000 (9th Cir 6/20/2007), holding “the district court erred by determining that Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.”

In finding that exhaustion occurred the Court notes that “Lopez’s initial [state] bifurcated petition did not specifically challenge counsel’s lack of preparation for the penalty phase, the issue was eventually briefed in memoranda to the state trial court, and that court did issue a ruling on the merits.” “In his statement of issues, Lopez indicated he was prejudiced by his trial counsel’s ‘abandonment [of] his client at the trial and/or sentencing.’ He identified Strickland as the governing federal constitutional standard.”

We conclude that the district court erred by determining that Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted. Lopez did at least make the general allegations of his counsel’s lack of penalty phase preparation to the Arizona Supreme Court (including improper delegation to an inexperienced subordinate and failure to prepare mental health experts), and the state court record contains some evidence of a dysfunctional childhood and alcoholism. A “quick look” at the merits of his federal claim also reveals that Lopez has sufficiently alleged the deprivation of a constitutional right.

Miller & Lebrum v. 18th Judicial District, 2007 MT 149 (MT 6/19/2007) Prosecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted, “filing the required notice of intent 72 days late clearly is a ‘material' violation of (our rules).” From the CDW blog

A win is noted out of the Montana Supreme Court. Long-story short, the prosecution filed its intent to seek death months late and that was held to be improper.

John LeBrum and Branden Miller filed pre-trial motions to strike and preclude the State from seeking the death penalty when the prosecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted, “filing the required notice of intent 72 days late clearly is a ‘material’ violation of (our rules).”

The trial court denied defendants’ motions. The defendants filed a Petition for Writ of Supervisory Control. The Montana Supreme Court granted defendants’ Petition, reversed the trial court, and ordered that the defendants’ motions to strike and preclude the death penalty must be granted.

The decision is Miller & Lebrum v. 18th Judicial District, 2007 MT 149 (6/19/2007) (link includes access to the briefs of the parties).

State v. Porfirio Jimenez, 2007 N.J. LEXIS 700 (NJ 6/18/2007) For purposes of making a Mental Retardation determination under Atkins v. Virginia: (A) a jury must be unanimous in its finding the Defendant is not mentally retarded if the matter is to be tried capitally, and (B) anything less than unanimous jury (that is at least one juror believing the defendant is mentally retarded) means a sentence less than death must be imposed. CapDefNet notes:

Last week, on June 18, 2007, the New Jersey Supreme Court issued an opinion clarifying State v. Jimenez, 908 A.2d 181 (N.J. 2006), which adopted a framework for adjudicating Atkins claims. State v. Jimenez, ___ A.2d ___, 2007 WL 1752645 (N.J. June 18, 2007). The Court ruled: “Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death.” In light of this holding, the Court concluded that conducting a separate proceeding to determine mental retardation following the close of the guilt phase and prior to the penalty phase no longer made sense. The appropriate procedure, the Court found, “is to give a defendant the opportunity to demonstrate to the jury in the penalty phase, by a preponderance of the evidence, that he or she is mentally retarded. If a single juror is satisfied that a defendant has met his or her burden, the defendant will be sentenced to life imprisonment.” The Court ended by noting that “a defendant may have as many as three opportunities to present a mental retardation issue: at pretrial before the trial court; before a jury during the guilt-phase trial [to negate an element of the crime]; and finally, before a jury at the penalty-phase trial.”

Comm. v. Charles Bussell, 2007 Ky. LEXIS 133 (KY 6/21/2007) Relief granted on counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that another person, and not Bussell, committed the crimes for which Appellant was convicted. CapDefNet notes:

Last week, on June 21, 2007, the Kentucky Supreme Court affirmed the lower court’s granting of Charles Bussell’s motion to vacate his conviction and death sentence. Commonwealth v. Bussell, ___ S.W.3d ___, 2007 WL 1790691 (Ky. June 21, 2007). The Court upheld the lower court’s finding that the Commonwealth suppressed numerous police reports that suggested “the possibility of an alternate suspect in [the victim’s] death.” It rejected the Commonwealth’s contention that “alternate suspect” information is not exculpatory unless it eliminates the defendant as a culprit. The Court further found that “the Brady violation in this case was compounded by the ineffective assistance of Bussell’s trial counsel who has since been permanently disbarred.”

Bussell alleged that trial counsel performed deficiently in failing to investigate key prosecution witnesses. Had he done so, he would have found significant information that would have undermined their credibility, including evidence of mental limitations, inconsistent statements, and poor reputation for truthfulness. Bussell also complained about trial counsel’s failure to impeach testimony of the victim’s son. The lower court found “disturbing” that a statement contradicting the victim’s son was in trial counsel’s files but was not used. Finally, Bussell contended that counsel was ineffective in failing to educate himself in various forensic fields, thereby rendering his decision not to retain experts in the fields unreasonable. At the evidentiary hearing, he presented testimony from Doctor Saferstein, former Director of the New Jersey State Police Crime Lab, who strongly criticized the Commonwealth’s experts on paint, hair and fiber analysis. Bussell also presented testimony from an expert in tree and wood identification who offered an opinion contrary to that presented by the Commonwealth at trial. In affirming the lower court’s finding that Bussell was deprived of a fair trial, the Court accepted the lower court’s conclusion that trial counsel’s failings were the result of his inadequate investigation and his decision not to employ forensics experts could not be described as “tactical” given his ignorance about the relevant subjects.

The Kentucky Supreme Court also upheld the lower court’s finding that trial counsel was ineffective at the penalty phase. It agreed that counsel’s inability “to show the jury that Bussell had a single positive character trait” was because counsel “had not taken the time to find if he possessed any.” As for counsel’s explanation that Bussell’s uncooperativeness left him with only lingering doubt as mitigation evidence, the Court pointed out that residual doubt is not a mitigating factor in Kentucky. Further, “Bussell’s uncooperativeness did not relieve [counsel] of his duty to conduct a reasonable investigation for mitigating evidence.”

State v James Earl Reed, No. 26345 (S.C. 6/18/2007) Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review. From the CDW blog

The South Carolina Supreme Court on Monday in State v James Earl Reed, No. 26345 (S.C. 6/18/2007) finds that

James Earl Reed (Petitioner), who has been sentenced to die for murder, seeks to waive appellate review of the order denying his application for post-conviction relief (PCR) and to be executed. Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review.

Specifically, on his desire to drop his appeals:

We thoroughly questioned Petitioner during oral arguments about his trial, the PCR process, and the appeals process. We also questioned him about the consequences of his request to terminate any appeals from the denial of his PCR application. Petitioner alleged he wanted to waive his right to appeal, but he also requested the Court review his pro se brief and either dismiss the case if the Court found him innocent or set a date for execution if the Court found him guilty. Specifically, Petitioner asked the Court to review substantive claims regarding the quality of representation he received during his trial and PCR proceeding, evidentiary matters which he claims should have been pursued during prior proceedings, and whether he had a right to two standby counsel during his trial. We find Petitioner conditioned his request to waive his right to appellate review on our determination of his innocence or guilt based on the merits of the case.3 Unlike other capital defendants who have confirmed their guilt and waived their right to appeal, Petitioner’s conditional request is not an unequivocal waiver of the right to appeal. Compare State v. Passaro, 350 S.C. 499, 507-08, 567 S.E.2d 862, 867 (2002) (capital defendant reaffirmed his request to waive his right to appeal); State v. Torrence, 322 S.C. 475, 477-79, 473 S.E.2d 703, 705-06 (1996) (capital defendant remained steadfast in his desire to withdraw his appeal). Accordingly, Petitioner has failed to make a knowing and intelligent waiver of his right to appeal.

On proceeding pro se it notes:

We questioned Petitioner at length about his decision to waive his right to counsel. Petitioner stated he was not satisfied with counsel’s representation of him because, according to Petitioner, she presumed he was guilty and was “against the evidence that proves his innocence.” Petitioner appeared upset that his counsel would not “fight for his innocence” in accordance with his wishes. We also questioned Petitioner whether he fully understood the nature of PCR proceedings and the appellate process following a denial of a PCR application. Petitioner asked the Court to allow him to waive his right to appeal and he stated he did not want us to review the questions raised in his PCR application. Yet, he also asked us to review the merits of his case, and he raised substantive claims regarding his trial which he desired the Court to address. Although Petitioner is competent to waive this right, we find troubling the fact that Petitioner clearly does not understand the procedural posture of his case

State v. Shon Miller, 2007 La. LEXIS 1508 (LA 6/29/2007) The Court below's pre-trial rulings prevented Miller from pleading not guilty by reason of insanity which resulted in a "constitutionally flawed jury trial." CapDefNet notes

On June 29, 2007, the Louisiana Supreme Court reversed the convictions and death sentence of Shon D. Miller, Sr., because “the pretrial rulings of the trial court denied [Miller] his constitutional right to have the jury decide whether he was not guilty by reason of insanity . . ..” State v. Miller, ___ So.2d ___, 2007 WL 1866753 (La. June 29, 2007). Under state law, a defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the trial court may allow the change of plea upon a showing of “good cause.” Here, Miller first sought to change his plea some three months after arraignment but ten months prior to trial. He again sought to change his plea one month before trial. Although he presented extensive evidence about his history of mental health problems, the trial court rejected his requests to enter a plea of not guilty by reason of insanity. The Louisiana Supreme Court found that the trial court erred “by making proof of insanity at the time of the offense the sole determinative factor in deciding whether [Miller] could change his plea.” The court clarified that “good cause” for a change of plea is shown when “the defendant produces an indicia of insanity and shows the plea is not changed as a dilatory tactic to achieve a strategic advantage.” The language of the statute “does not obligate the defendant to prove his insanity at the time of the offense to change his plea.” In this case, “the trial court usurped the jury’s role to decide the ultimate merits of the insanity defense.”

Donald Broadnax v. State, 2007 Ala. Crim. App. LEXIS 110 (Ala. Crim. App. 6/29/2007) "[T]he circuit court erred in denying his motion for leave to file a second amendment to his petition." CapDefNet notes

On June 29, 2007, the Alabama Court of Criminal Appeals held that the circuit court erred in denying Donald Broadnax’s motion for leave to file a second amended petition for post-conviction relief. Broadnax v. State, ___ So.2d ___, 2007 WL 1865450 (Ala. Crim. App. June 29, 2007). The motion was filed by replacement counsel some three months after her appointment and 45 days before the scheduled evidentiary hearing. (Original counsel had been permitted to withdraw because of financial hardship, “a situation not unusual in the representation of indigent death-row inmates.”) Replacement counsel explained that during her interviews with Broadnax, she had discovered relevant mitigating factors that had not been included within the pending Rule 32 motion which raised a claim of ineffective assistance of counsel at sentencing. She had also learned that Broadnax suffered from a hand injury at the time of the offense that may have made it impossible to have beaten the victims as severely as the trial testimony indicated they had been beaten. An allegation that trial counsel was ineffective in failing to discover this information constituted a new claim.

In finding that Broadnax should have been permitted to amend his petition to add the new allegations and claim, the court rejected the State’s contention that having to respond to the amendment alone established undue prejudice to the State. Further, it found the motion was not filed on the “eve” of the hearing and that amendment would not have unduly delayed the proceedings. Nor could the court fault replacement counsel for taking three months to file the motion as counsel “clearly needed time to familiarize herself with the case and to investigate after her appointment in January 2005, and three months is not an unreasonable amount of time to prepare in a capital case.” The court concluded: “Although there was an almost-two-year delay between the filing of Broadnax’s original petition and [replacement counsel’s] motion to file a second amended petition, under the circumstances of the case, we cannot say this was the result of negligence or intentional delay.”

The court found additional error by the circuit court. It had denied some of Broadnax’s allegations of ineffective assistance of counsel on the ground that the court of criminal appeals had rejected the underlying substantive claims on direct appeal under the plain error rule. The Alabama Supreme Court has held, however, that a finding of no plain error does not automatically foreclose a determination of prejudice under Strickland. The case was remanded for reconsideration of the allegations erroneously denied and for amendment of the petition.

Lyons v. Luebbers, 2007 WL 1796212 (E.D. Mo. 6/19/2007) Authorizing attorneys who had unsuccessfully represented Andrew Lyons in federal habeas proceedings to pursue executive clemency. CapDefNet notes

Last week, on June 19, 2007, United States District Judge Charles A. Shaw of the Eastern District of Missouri authorized interim payments to the attorneys who had unsuccessfully represented Andrew Lyons in federal habeas proceedings for their work in pursuing executive clemency. Lyons v. Luebbers, 2007 WL 1796212 (E.D. Mo. June 19, 2007).

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
**For purposes of full disclosure indicates possible prior involvement to one degree or another.
***Wendy Peoples, I am told, is responsible for "Week-at-a-Glance."