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Capital
Defense
Weekly [Available at http://capitaldefenseweekly.com/archives/070709.htm] Several favorable cases are noted for cases from July 2
through July 9, 2007, three of which are notable. The Missouri Supreme Court in Travis
Glass v. State examines what is almost a text book example of
ineffective assistance of counsel. Trial counsel failed to call
of a treating physician who would
have testified about the effect that Glass' bout with bacterial
meningitis as a toddler and how that infection may have had on his
impaired intellectual
functioning as an adult. Likewise counsel failed to present
testimony of Glass' former
teachers, each of whom would have testified about Glass' impaired
intellectual functioning. Counsel failed to adequately investigate and
present mitigating testimony from Glass'
probation officers on a prior conviction to advance the defense theory
that murder was
"simply out of character" for Glass and that the murder was committed
while he was "extremely intoxicated." The Eleventh
Circuit examines
the
interplay of Rule 60(b) and AEDPA's successive writ rules in Edward
Zakrzweski v. McDonough. The district court erred, the panel holds,
on these facts
finding the Rule 60(b) motion was a successor. Initial habeas counsel
or Zakrzweski took positions and actions that resulted in a pro se bar
complaint and a pro se request for new counsel. The district court
denied the
request for new counsel and denied substantive habeas relief. On the
subsequent appeal
Zakrzweski lost. New counsel was recruited nonetheless while the habeas
appeal was pending and filed a Rule 60(b) motion requesting
reconsideration. The Eleventh Circuit, despite previously denying
relief, remands the finding of abuse of the writ and orders the
district court to examine whether relief is appropriate under Rule
60(b). The Tennessee Court of Criminal Appeals in Paul Reid by and through Martiniano, next friend v. State holds that Reid is not able to competently drop the normal postconviction review process. "[T]the statements contained in the affidavits, namely that Reid has been unable to communicate rationally about his cases with his attorneys, demonstrate his alleged incompetency to a sufficient degree to require an evidentiary hearing. . . . There are numerous specific factual allegations contained in the affidavits showing "'there exists a genuine disputed issue regarding [Reid's] present competency.'" On July 11, South Dakota carried out its first execution in 60 years that of Elijah Page. the Charlotte School of Law has released a new report on mental illness and the death penalty entitled "Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach." According to a new report released by the Tennessee Justice Project, "Resources of the Prosecution and Indigent Defense Functions in Tennessee," indigent defense attorneys in the state receive far fewer dollars and "in-kind" resources than prosecutors. This week all charges were dropped against Byron Halsey who now becomes the 205th DNA exoneree. Adam Liptak has this article in the New York Times reporting on a new study by a Harvard economist which concludes that federal public defenders get better results than private lawyers appointed under the Criminal Justice Act citing Radha Iyengar's study entitled "An Analysis of the Performance of Federal Indigent Defense Counsel." Troy Davis has been widely profiled for the
probability of innocence. He is scheduled to be executed Tuesday.
A clemency hearing is set for Monday morning,
before the GA Board of Pardons and Paroles. Stay litigation
remains ongoing. Look for the daily blog to update this as
developments proceed.
Rolando Ruiz, who had a serious execution date for July 10th, received a stay from the Fifth Circuit. The Fifth Circuit has not released an opinion on the stay. Accounts we have received suggest this is not an Atkins stay but a stay relating to the performance of penalty phase trial counsel and possibly challenging the legitimacy of the Texas state postconviction process as cause for procedural default. I should note there are several other possible reasons for the stay (including a tricky Rule 60(b)) issue, however, it is most likely the IAC & procedural default issues were why the stay was ordered. [more here & here] Looking ahead several "wins" are already noted. The
Sixth Circuit in Haliym
v. Mitchell grants penalty phase relief as trial counsel “failed to
discover important mitigating information that
was reasonably available and suggested by information already within
their possession.” The Florida Supreme Court in Merrit
Sims v. State grants guilt phase relief as “trial counsel was
ineffective for
failing to properly challenge the canine-alert testimony.” Finally, the
Florida Supreme Court also grants relief in
Christopher
Jones v. State on sufficiency of the evidence as to the “avoid
arrest aggravator.” As always thanks for reading. - k Notable stays Recent
Executions Pending
Executions
(Advance Sheet Week of July 2, 2007) -- In Favor of Death
(Advance
Sheet Week
of July 9,
2007) --
In Favor of Life or
Liberty
Selected
Excerpts
from, & Commentary on, this Edition's Cases Edward
Zakrzweski v. McDonough, 2007 U.S. App. LEXIS 15827 (11th Cir
7/3/2007) Eleventh Circuit vacates a finding that a
Rule 60(b) motion was an abuse of a writ. Initial habeas counsel (Nall)
for Zakrzweski took positions and actions that resulted in a pro se bar
complaint and a request for new counsel. The Eleventh Circuit,
despite previously denying
relief, remands the finding of abuse of the writ and orders the
district court to examine whether relief is appropriate under Rule
60(b). From CapDefNet: On July 3, 2007, the Eleventh Circuit (per curiam – Edmondson, Dubina and Pryor) held that the district court erred when it construed Edward Zakrzewski’s Rule 60(b) motion to be a second or successive habeas petition. Zakrzewski v. McDonough, ___ F.3d ___, 2007 WL 1892147 (11th Cir. July 3, 2007). The motion contended that federal habeas counsel, John Nall, had perpetrated a fraud on the court. The following facts were alleged by Zakrzewski. In January 2004, state post-conviction counsel, Baya Harrison, sent Zakrzewski a federal habeas petition which Harrison asked Zakrzewski to sign and return to him in order to prevent it from being time barred. The letterhead on the accompanying letter read “Harrison and Nall, Attorneys at Law.” In the letter, Harrison explained that he would continue to work on the case but that Nall would sign the pleadings because Nall and not Harrison was admitted to practice in the district court where the petition had to be filed. Although Zakrzewski did as requested by Harrison, he later wrote to Harrison, Nall and the state courts complaining that he only signed out of fear of the petition being untimely, that the petition was inadequate, and that he had never heard of or met Nall before signing the petition. In February 2004, Nall filed the petition in federal court and shortly thereafter moved to be appointed to represent Zakrzewski. In his motion, he represented that he was a partner with Harrison, that he was thoroughly familiar with the case, and that he had a good relationship with Zakrzewski. The district court granted the motion to appoint Nall and to pay him nunc pro tunc to November 2003. In April 2004, Zakrzewski filed a bar complaint against Nall, alleging that Nall had never met with him to discuss the case, that the petition was inadequate, and that Nall was not keeping him reasonably informed. In May 2004, Zakrzewski unsuccessfully moved for new counsel in federal district court, raising the same issues. In July 2004, after a response to the petition and a reply to the response had been filed, Nall moved to withdraw on the grounds that he did not have a good relationship with Zakrzewski and that Harrison would not longer be assisting with the case. The motion was denied. Zakrzewski attempted to file pro se pleadings but they were returned to him because he was represented by counsel. When he finally asked to proceed pro se, again complaining about the lack of communication by Nall and Nall’s alleged incompetence, his request was denied. In September 2004, the habeas petition was denied. While the appeal was pending, Zakrzewski, through new counsel, filed a Rule 60(b) motion in the district court asserting fraud on the court by Nall as well as on Zakrzewski. Meanwhile, in his appeal, Zakrzewski argued that the district court erred in denying his motion for new counsel, setting forth his complaints against Nall. The Warden successfully moved to strike that argument as beyond the scope of the COA and the appeals court refused Zakrzewski’s request to expand the COA to include it. The appeals court later affirmed the denial of the petition. In finding that it had no jurisdiction to consider the Rule 60(b) motion, the district court reasoned that what Zakrzeski was really seeking was to present new claims that Nall had failed to include in the petition. The panel found the district court’s conclusion to be erroneous. It pointed out that the motion did not “assert or reassert allegations of error in [Zakrzewski’s] state convictions.” While not taking a position on the merits of the motion, the panel did make special note of the “high standard for granting postjudgment relief under Rule 60(b).” In ruling on the motion, the panel “encourage[d]” the district court to consider the following factual questions: “(1) whether Nall made a material misrepresentation to [Zakrzewski], upon which he relied to his detriment, regarding the filing of [Zakrzewski’s] petition for habeas relief; (2) whether Nall made a material misrepresentation to the district court upon which it relied in its decision to appoint Nall as counsel; (3) whether [Zakrzewski] ratified any alleged wrongful acts by Nall; (4) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied [Zakrzewski’s] motion for new counsel; (5) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Nall’s motion to withdraw; and (6) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied [Zakrzewski’s] motion to proceed pro se.” Travis Glass v. State, 2007 Mo. LEXIS 118 (Mo 7/6/2007) " The motion court did not clearly err in determining that Glass' trial counsel was ineffective for failing to solicit the testimony of certain witnesses during the penalty phase of the trial. Counsel's failure to call a treating physician –- who would have testified about the effect that Glass' bout with bacterial meningitis as a toddler may have had on his impaired intellectual functioning as an adult -– can be prejudicial, as such evidence can be inherently mitigating and critical to the jury's assessment of whether to impose the death penalty. Counsel did not have a reasonable, strategic reason for not eliciting the testimony of Glass' former teachers, each of whom would have testified about Glass' impaired intellectual functioning. Counsel was ineffective for failing to investigate adequately and present mitigating testimony from Glass' probation officers on a prior stealing conviction. It was not unreasonable for the motion court to conclude that their testimony would have reduced the prejudicial impact of Glass' prior stealing conviction and would have supported his argument that murder was "simply out of character" for Glass and that the murder was committed while he was "extremely intoxicated." From CapDefNet: On July 6, 2007, in a 4-3 ruling, the Missouri Supreme Court affirmed the grant of post-conviction relief to Travis Glass on allegations of ineffective assistance of counsel at the sentencing phase. Glass v. State, ___ S.W.3d ___, 2007 WL 1953413 (Mo. July 6, 2007). At the penalty phase, trial counsel called ten witnesses, made up of family members, friends, former employers and co-workers. Glass alleged that counsel performed deficiently in not presenting testimony from former teachers and professionals who would have been perceived by the jury as “disinterested” witnesses. First, the state supreme court ruled that the lower court did not clearly err in finding trial counsel ineffective for failing to call the doctor who admitted Glass to the hospital when he was 23 months old for bacterial meningitis. The court found it was “not unreasonable to conclude that testimony regarding the long-term effects of meningitis would have provided mitigating evidence of Glass’ impaired mental functioning.” Next, the court held that there was no clear error in the lower court’s finding that counsel performed deficiently in failing to elicit testimony from former teachers who would have “explained in detail that Glass exhibited significant difficulty in learning and that he had been harassed by other students for being overweight.” Notably, all of the teachers were listed in Glass’ school records and counsel had no reasonable strategic basis for not calling them. There was also no clear error in the lower court’s finding that trial counsel was ineffective for failing to call Glass’ probation officers concerning a prior stealing conviction, evidence of which was offered by the state as aggravation. Had the two men been called, they would have testified to Glass’ good behavior and cooperation while on probation. Such testimony would have bolstered defense counsel’s argument that the capital offense was simply out of character for Glass. Again, no clear error was found in the lower court’s determination that counsel performed deficiently and prejudicially in failing to present testimony from Dr. Michael Gelbort, a neuropsychologist. Dr. Gelbort had evaluated Glass before trial and found that he suffered from neuropsychological deficits “that impair his ability to reason abstractly, solve problems and comprehend information.” Dr. Gelbort concluded that “Glass’ temporal brain lobe was impaired and that, as a result, Glass had difficulties with learning, memory, and impulse control.” Prejudice was found by the lower court given the powerful and inherent mitigating value attached to neuropsychological deficits. Counsel was also found deficient in failing to present evidence from a learning disability expert who could have opined that “Glass’ aptitude functioning is well-below level in almost all areas, including reasoning skills, concept formation, and written language.” That Glass’ learning disability expert had not evaluated him pre-trial did not preclude a finding of deficient performance since “[c]ounsel can be held ineffective even if there is no claim that counsel knew about a specific expert prior to trial.” And as for the state’s contention that evidence of learning deficits was not mitigating because they did not cause Glass to commit the murder, the Missouri Supreme Court responded: “It is well-established that evidence of impaired intellectual functioning is valid mitigating evidence in the penalty phase of capital case, regardless of whether defendant has established a nexus between his mental capacity and crime.” Finally, the state supreme court deferred to the lower court’s finding that counsel was ineffective in failing to present evidence from a toxicologist-pharmacologist. Testimony was available that given the type of alcohol ingested by Glass, and the time that he drank it, Glass’ ability to appreciate the criminality of his conduct and conform to the requirements of the law was substantially impaired and he suffered from extreme mental and emotional disturbance. The state supreme court declined to rule on Glass’ remaining penalty-related claims and affirmed the denial of remaining claims of ineffective assistance by trial counsel. Paul
Reid by and through Martiniano, next friend v. State,
2007 Tenn. Crim. App. LEXIS 525 (Tenn.Crim.App. 7/3/2007) Reid is not
able to competently “waive his
appeals.” From CapDefNet" On July 3, 2007, the Tennessee Court of Criminal Appeals issued an unpublished opinion finding that a prima facie case had been made that Paul Reid is unable to understand his rights and liabilities. The lower court’s dismissal of the post-conviction relief petition that was filed by Reid’s sister on his behalf was reversed and the case was remanded for an evidentiary hearing “to determine whether Reid is incompetent to pursue post-conviction relief on his own behalf.”
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