Capital Defense Weekly

[Available at http://capitaldefenseweekly.com/archives/070716.htm]

Two wins are noted from the period of July 16 to July 30, 2007

The first is the California Supreme Court's holding in In re James Hardy. The California Supreme Court in In re James Edward Hardy has vacated Hardy’s death sentence.  A new penalty phase is needed because there is now “substantial doubt” that he was the actual killer.  The Hardy Court held it appears likely the actual killer in the murder-for-hire plot was another man who was not prosecuted for the slayings.  The evidence put forward by habeas counsel that Hardy wasn't the actual killer "so undermines our confidence in the penalty verdict that a different, more favorable result was reasonably probable had this evidence been presented to the jury."

The Pennsylvania Supreme Court's holding in Comm. v. Michael Rainey is less dramatic. In Rainey counsel failed to adequately investigate and present readily available mitigation evidence.  The record is unclear as to why and counsel has never been afforded the opportunity to explain why.. “We do not know what counsel chose, because counsel did not testify at a hearing regarding his motives.”

Turning to the news of the week, the big news is that the Georgia Supreme Court has ordered oral arguments for Troy Davis, who has a palpable claim of factual innocence.  A new study indicates that among those who have been sentenced to death Blacks & Latinos who kill whites are far more likely to be executed than whites who kills whites; the study is Who Survives on Death Row?, American Sociological Review, 2007, VOL. 72 (August:610–632). Ohio Governor Ted Strickland has issued a seventh execution reprieve for John Spriko. Gallup reports national support for the death penalty has dropped again. The John R. Justice Prosecutors and Defenders Incentive Act of 2007 passed as an amendment to S. 1642 [pdf - scroll to page 600] by a vote of 95-0. An Ohio trial court has ruled that it can, and will, rule on a state lethal injection suit pretrial. The court notes that should it find lethal injection unconstitutional it will preclude the state from seeking death. n continuing a series that DPIC has highlighted, “the Denver Post has featured more than a dozen news articles and a series of online videos, providing an in-depth look at the handling of crucial biological evidence gathered during criminal investigations.

Looking ahead, the only favorable opinion noted is Jack Alderman v. Donald from the Northern District of Georgia that merely lets a lethal injection suit proceed,.

As always thanks for reading. - k

Executions
July
24 Lonnie Johnson (Texas)
26 Darrell Grayson (Alabama)

Pending Executions
August
15 Kenny Parr (Texas)
21 Frank Welch (Oklahoma)
22 Johnny Conner (Texas)
23 Luther Williams (Alabama)
28 Daroyce Mosley (Texas)
29 John Amador (Texas)
30 Kenneth Foster (Texas)

More Execution information*

Week of  July 16, 2007 --  In Favor of Life or Liberty

  • Comm. v. Michael Rainey, 2007 Pa. LEXIS 1462 (PA 7/18/2007) Remand ordered "for an evidentiary hearing on Appellant's claim that trial counsel was ineffective for failing to investigate and present background and mental health mitigation evidence during the penalty phase of this capital case."

Week of  July 16, 2007 --  In Favor of Death

  • Mars L. Gore v. Secretary, Dept. of Corrections, 2007 U.S. App. LEXIS 17262 (11th Cir 7/20/2007) Relief denied on: "[w]hether the Florida Supreme Court’s decision upholding the trial court’s refusal to suppress certain statements Gore made to detectives in the Metro-Dade Police Department infringed his rights under the United States Constitution."

  • Darrell Grayson v. Allen, 2007 U.S. App. LEXIS 16845 (11th Cir 7/16/2007) Challenge to lethal injection protocol held to be too tardy.

  • Jimmy Harris v. State, 2007 Okla. Crim. App. LEXIS 28 (Okla.Crim.App. 7/19/2007) Relief denied on multiple claims, including: (A) findings of  harmless error on claims relating to failure to adequately record jury questions during the penalty phase deliberations and (B) the standard jury instructions on mitigation in combination with the prosecution's arguments tended to diminish the jury's ability to consider mitigation, however remedial instructions & argument served to cure any error.  The  Court of Criminal Appeals orders that the standard jury instructions on mitigation should be reviewed by its standing committee on jury instructions.

  • Comm.  v. Anthony Washington, 2007 Pa. LEXIS 1461 (PA 7/18/2007) (dissent) Relief denied on numerous claims including: (A) "new trial based upon after-discovered evidence;" (B) "two claims of ineffective assistance of counsel in relation to the identification testimony of two Commonwealth witnesses;" (C)  "failing to object to or challenge the trial court’s cautionary instruction concerning the identification testimony the introduction of his “mug shots” at trial;" (D) sufficiency of the evidence; (E) instructions on intent; (F)  introduction of a redacted confession as part of the Commonwealth's case against co-defendant at the joint trial; (G) Batson; (H) "trial counsel was ineffective for failing to object to the trial court’s progression charge, which instructed jurors to consider the most serious charge of criminal homicide before moving on to any lesser charges. In providing this progression charge; and (I) cumulative effect of sentencing errors.

Week of  July 23, 2007 --  In Favor of Life or Liberty

  • In re James Hardy, 2007 Cal. LEXIS 7881 (Ca 7/26/2007) The California Supreme Court in In re James Edward Hardy has vacated Hardy’s death sentence.  A new penalty phase is needed because there is now “substantial doubt” that he was the actual killer as the prosecution had argued.  The Supreme Court said it appears the actual killer in the murder-for-hire plot was another man who was not prosecuted for the slayings.


Week of  July 23, 2007 --  In Favor of Death

  • Luke Williams v. Ozmint, 2007 U.S. App. LEXIS 17934 (4th Cir 7/27/2007) Grant of habeas relief reversed where the state court's determination of claim of ineffective assistance of counsel was not unreasonable in denying relief on claims relating to trial counsel's failure to request a "plain meaning instruction." Relief likewise denied on claims relating to the sufficiency of the evidence and whether there was sufficient as to venue in South Carolina.
  • Bobby Woods v. Quarterman, 2007 U.S. App. LEXIS 17521 (5th Cir 7/23/2007) Successive habeas petition denied on Atkins related claims.
  • Jason Getsy v. Mitchell,  2007 U.S. App. LEXIS 17620 (6th Cir 7/25/2007)(en banc) (dissent) Relief denied holding, chiefly, there is "simply no constitutional guarantee that [Getsy’s] jury would reach the same results as prior or future juries dealing with similar facts."
  • USA v. Gary Sampson, 2007 U.S. App. LEXIS 18241 (1st Cir 7/27/2007) (en banc) (dissent) Denial from rehearing en banc draws a dissent on issues including: "When, if ever, may a court deprive a member of a religious order the ability and privilege of serving on a death penalty jury simply because the court believes that the religious order might be unhappy with the member for having done so? May a jury impose the death penalty based on the “vulnerability” of a victim even if the defendant was unaware of such vulnerability? Should a jury vested with the awesome task of imposing the death penalty be asked to parse instructions on burdens of proof which are, by all accounts, confusing?" [quotes from Decision of the Day]
  • Joseph Franklin v. Al Luebbers,  2007 U.S. App. LEXIS 17526 (8th Cir 7/24/20007) Grant of habeas relief reversed. "We conclude Franklin’s voluntary waiver of his direct appeal resulted in procedural default and bars review of all of Franklin’s claims raised in this appeal of his federal habeas application. The district court, therefore, was without jurisdiction to grant relief on Franklin’s claims challenging the voluntariness of Franklin’s waiver of trial counsel and the trial court’s omission of penalty-phase jury instructions. Because the claims raised in Franklin’s cross-appeal also are procedurally barred, we need not address Franklin’s arguments."
  • People v. Lamar Barnwell, 2007 Cal. LEXIS 7880 (Ca 7/26/2007) Relief denied on claims including: consciousness of guilt instruction; prior unadjudicated offenses; and constitutionality of death penalty statute.
  • People v. Jaime Hoyos,  2007 Cal. LEXIS 7856 (Ca 7/23/2007) Relief denied on claims including: denial of motion to dismiss special circumstances; denial of individual and sequestered voir dire; Batson/Wheeler; and denial of for-cause challenges.
  • Scott Eizember v. State, 2007 Okla. Crim. App. LEXIS 29 (Okla. Crim. App. 7/26/2007) Relief denied -- most notably -- on claim of juror impartiality where a juror who sat stated, “I firmly believe if you take a life you should lose yours.” 

(Advance Sheet Week of  July 30, 2007) --  In Favor of Life or Liberty

  • Jack Alderman v. Donald, NO. 1:07-CV-1474-BBM (N.D.Ga 7/30/2007) District court denies the State’s motion to dismiss this Georgia lethal injection challenge and will permit discovery to go forward.

(Advance Sheet Week of  July 30, 2007) --  In Favor of Death

  • United States v. Angela Johnson, No. 06-1001 (7/30/2007) The Eighth Circuit reverses as multiplicitous five of her ten convictions (and thus four of her eight death sentences) because her drug conspiracy murder convictions were lesser included offenses of her CCE murders. No mention is made to indicate whether the court considered the possibility that the remaining death sentences should be reversed for rehearing for having been decided in the same proceedings as unconstitutional counts which may have magnified the crime in the eyes of the jury. The panel appeared untroubled by two disconcerting facts in the case below. One is the trial judges observation that “I am troubled by the lack of certainty in the record concerning the precise involvement of Angela Johnson in these crimes.” The other is that Johnson’s former boyfriend, Dustin Honken, who killed the victims in this matter,three adults and two children, was sentenced to death for only the two children, Johnson received it for four victims.

  • Dorsey v. Quarterman, No. 06-70039 (5th Cir 7/30/2007) Relief denied. "The first claim based on one or more jurors’ exposure to extraneous material fails under harmless error analysis. The second claim, a Batson claim relating to juror Jerry Riley, is procedurally barred. Dorsey also seeks COA on a claim that his constitutional rights were violated by the trial court’s denial of his challenge for cause against four venire persons who exhibited a bias in favor of the death penalty. Because Dorsey exercised his peremptory challenges to strike all the jurors at issue, there is no claim that the jury that heard the case was not impartial."
  • Kevin Watts v. Quarterman, 2007 U.S. App. LEXIS 18295 (5th Cir 8/1/2007) (unpublished)  Failure to raise issue of limitations placed on expert on evidence  direct appeal meant the issue was procedurally barred on habeas.  Even without the procedural bar the issue is held, on the merits, to be meritless.
  • Ex parte Jimmy Davis; (In re: Jimmy Davis v. State of Alabama),  2007 Ala. LEXIS 154 (Ala 8/3/2007) Remand to Court of Criminal Appeals ordered where "[t]he State now concedes that Ex parte Clemons requires reversal of the Court of Criminal Appeals' judgment in this case and urges this Court to remand the case to the Court of Criminal Appeals for the limited purpose of reviewing the merits of the ineffective-assistance-of-counsel claims raised in Davis's appeal to that court."
  • People v. Enrique Zambrano, 2007 Cal. LEXIS 8079 (Ca 7/30/2007) Relief denied on claims including: Wheeler/Batson error (court uses comparative juror analysis); restrictions on voir dire; denial of charge severance; discovery violation; admission of photographs; sufficiency of witness-killing special circumstance evidence; reasonable doubt instruction; witness-killing instruction; motive instruction; extrajudicial statements instruction; evidence suppression instruction; flight instruction; notice and discovery of aggravating evidence; cross-examination of defense prison expert; Biblical references in DA's closing (not objected to); appeals to community vengeance (no objection); future dangerousness; admission of unadjudicated rape; denial of allocution; denial of modification motion; challenges to capital sentencing scheme; denial of new trial motion; conflict of interest; missing reporters' notes; unreported conferences.
  • Louis Gaskin v. Secretary, Dept. of Corrections, 2007 U.S. App. LEXIS 18451 (11th Cir 8/3/2007) Relief denied on claims relating to: "(1) whether Gaskin was denied the effective assistance of counsel in the penalty phase of his trial based on  counsel’s failure to investigate and present mitigation evidence and to address statutory mitigating circumstances in closing argument; (2) whether Gaskin was denied a fair and impartial jury when the trial court denied his motions to change venue due to pervasive and prejudicial pretrial publicity; and (3) whether Florida’s capital sentencing statute is unconstitutional on its face and as applied, and whether this claim is procedurally defaulted."

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

In re James Hardy, 2007 Cal. LEXIS 7881 (Ca 7/26/2007) The California Supreme Court in In re James Edward Hardy has vacated Hardy’s death sentence.  A new penalty phase is needed because there is now “substantial doubt” that he was the actual killer as the prosecution had argued.  The Supreme Court said it appears the actual killer in the murder-for-hire plot was another man who was not prosecuted for the slayings.

On July 26, 2007, the California Supreme Court granted in part a habeas petition filed by James Hardy, vacating his death sentence. In re James Edward Hardy, ___ Cal.4th ___, 2007 WL 2128322 (Cal. July 26, 2007). The court found that trial counsel had performed deficiently and prejudicially in failing to present evidence at the sentencing phase implicating a third party as the actual killer of the victims. The court rejected the warden’s argument that the evidence at issue would have been inadmissible at the penalty phase. The court concluded that the evidence was relevant to three statutory sentencing factors: (1) circumstances of the crime; (2) lesser degree of participation; and (3) the catch-all mitigator. The court did not decide whether the Supreme Court’s recent decision in Oregon v. Guzek, 546 U.S. 517 (2006) was retroactively applicable, finding instead that this case was distinguishable. In Guzek, the Supreme Court held that the defendant did not have a constitutional right at a capital resentencing to present new evidence showing he was not present at the time of the murder. The Supreme Court distinguished between typical sentencing evidence that goes to how a crime was committed and evidence about whether the defendant committed the crime he was convicted of. Here, evidence that the third party was the actual killer and that Hardy was merely a coconspirator was relevant to how the crime was committed rather than whether Hardy was guilty. The evidence also shed light on the manner in which the crime was committed, a relevant sentencing consideration.

The California Supreme Court denied Hardy’s claim of actual innocence, finding that Hardy’s new evidence failed to undermine the prosecutor’s entire case against Hardy or point unerringly to his innocence. The court also denied relief on Hardy’s claim of ineffective assistance of counsel at the guilt phase of the trial. Although it agreed with Hardy that counsel performed deficiently in failing to uncover and present the evidence of third party culpability, a point conceded by the warden at oral argument, the court was unable to find prejudice. It pointed out that while the prosecutor argued that Hardy was the actual killer of the two victims, the jury was presented with the alternative theories that Hardy was guilty as a co-conspirator and/or as an aider and abettor. Looking to the record, the court was convinced that sufficient evidence remained to inculpate Hardy under both of those alternative theories.

Comm. v. Michael Rainey, 2007 Pa. LEXIS 1462 (PA 7/18/2007) Remand ordered "for an evidentiary hearing on Appellant's claim that trial counsel was ineffective for failing to investigate and present background and mental health mitigation evidence during the penalty phase of this capital case."

On July 18, 2007, the Pennsylvania Supreme Court issued an opinion affirming in large part the denial of post-conviction relief to Michael Rainey, but remanding to the lower court for an evidentiary hearing on Rainey’s claim that trial counsel was ineffective for failing to investigate and present background and mental health mitigation evidence during the penalty phase of the trial. Commonwealth v. Rainey, ___ A.2d ___, 2007 WL 2049772 (Pa. July 18, 2007). At the penalty phase, the Commonwealth had stipulated to two mitigating circumstances – age of defendant at time of crime (18) and no significant history of prior criminal convictions. The jury found a third mitigating circumstance – the catchall mitigator. This was supported by testimony from Rainey’s mother that she had to work long hours when Rainey was growing up, leaving him alone to care for his siblings. In support of his claim that counsel was ineffective at the penalty phase, Rainey presented declarations from family members and friends, as well as the summary of a mental health evaluation. The declarations indicated that Rainey had been abandoned by his father and that his mother worked long hours. Growing up, Rainey had a history of head injuries which left him with lasting symptoms such as headaches, dizziness, jumpiness and blackouts. Rainey was described as mentally slow, accident-prone, and easily confused. He had performed poorly in school and was unable to hold a job. The mental health expert made a number of findings, including that Rainey had impaired reasoning and deficits in higher thought processes. Rainey’s “functional and adaptive deficiencies” were found to “seriously impair him” and were “symptomatic of underlying neurological involvement (brain damage).” The expert went on to find “symptomatology reflecting Schizophrenia, Paranoia type and Bipolar Affective Disorder.”

In denying relief on this claim, the lower court found that the declarations from friends and family were “of questionable accuracy” and “without medical corroboration.” Regarding the mental health expert’s findings, the lower court deemed them “conclusory and general, based mainly on anecdotal evidence.” In addition, the lower court pointed out that Rainey had failed to allege that trial counsel was aware of Rainey’s alleged infirmities at the time of trial. Without such an allegation, Rainey’s ineffectiveness claim faltered. The lower court further surmised that trial counsel made a considered decision not to present the evidence at issue because it would have led the jury to conclude that Rainey was unable to control himself and was a danger to others.

The state supreme court agreed with Rainey that it was impossible to attribute a reasonable basis to trial counsel’s performance because counsel had never been asked to explain his conduct. “We do not know what counsel chose, because counsel did not testify at a hearing regarding his motives.” The court was unpersuaded by the Commonwealth’s argument that Rainey’s failure to affirmatively allege that he informed counsel about his background and mental health problems was fatal to his claim. In the court’s view, “at the very least, the testimony of [Rainey’s] mother should have prompted counsel’s awareness, to some degree, of [Rainey’s] difficult background.” In finding that a remand for an evidentiary hearing was in order, the court observed that it did not know what counsel knew about Rainey’s dysfunctional family background and mental health problems. Nor did it know what investigation had been conducted, to what extent Rainey’s mother had been interviewed, “or whether [counsel] obtained medical, educational, or social history records.”

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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 CapDefNet's "Week-at-a-Glance."