The lead opinion of the week is the Oklahoma Court of Criminal Appeals' grant of relief in Ricky Ray Malone v. State.  Here the prosecutor "blatantly" violated the boundaries placed on penalty phase closing arguments by suggesting "that Malone’s jurors should sentence him to death because the family member victims were counting on them to do sol"  "by invoking the powerlessness, the indignities, and the depersonalization that the American system of trial by jury imposes upon  all crime victims and their surviving families," and the infamous “three   hots  and  a  cot”  argument  that seems to have found popularity of late in Oklahoma.The court also found plain error occurred in the admission of certain victim impact evidence and counsel's failure to object to same.

The other wins of the week cover well worn ground. The California Supreme Court in a rather straight forward opinion has granted relief in People v. Arthur Hans Halvorsen on self-representation / Faretta related claims. The Mississippi Supreme Court in Roger Eric Thorson v. State remands for further analysis on claims of mental retardation.

The Birmingham News notes a rare trial court level postconviction win in Alabama. “LaSamuel Gamble, 29, no longer faces the death penalty for his role in the killing of two people at John’s 280 Pawn on July 25, 1996.” A new sentencing hearing was ordered where death will be off the table due to “[i]neffective assistance of counsel because his defense lawyers failed to fully explore Gamble’s background for mitigating circumstances in the penalty phase” and “[t]he greater culpability of Gamble’s co-defendant, Marcus Presley, who was sentenced to death in the case but barred from the death penalty by a 2005 Supreme Court ruling.”

In other case related news, the Albany Times Union in New York in Case stirs death looks at Monday’s oral arguments in that state’s sole remaining capital case.  The Wichita (Kansas) Eagle carries an AP report, “One word at core of death penalty case,” that word is “or.”  On Tuesday the Nebraska Supreme Court held oral argument on whether electrocution is constitutional:

In non-case related news, the Bowling Green Daily News in an article entitled Public Advocate pushes to abolish death sentence looks at Kentucky’s top public defender, Ernie Lewis, his career, and his unquenchable desire to abolish the death penalty in the Bluegrass state. Timothy Young has been named new head of the Office of Ohio Public Defender. DPIC has four great posts from earlier in the week: Death Penalty in Flux (detailing all the states in which the death penalty is on hold and noting lots of recent state legislation); Death Penalty for Offenses Other Than Murder (detailing all the state statutes that contain capital crimes other than those involving the murder of the victim); Time on Death Row (detailing the length of time inmates spend on Death Row and the implications of that time) and Law Review: The Right to Confront Witnesses in Capital Sentencing Proceedings (looking at the Confrontation Clause in the penalty phase). The Montgomery Advertiser notes Alabama’s Attorney General is proposing “for the state to pay $400 an hour to a Massachusetts physician to analyze the combination of drugs used in Alabama executions.” The PBS show Expose looks at four states,  eighty capital cases with one reporter going inside the criminal justice system, the full show is now online. Dan Rather Reports - Did Texas Execute Innocent Men? is likewise available on line. Finally, Murder Victims Families for Human Rights, has launched a new blog at www.mvfhr.blogspot.com.

The comment period for the new “fast track” authorization regulations authorized by 28 U.S.C sec. 2265 is about to expire. From the “HAT Week At-A-Glance:”

Few appellate capital cases were decided this past week, indeed, I’ve spotted just two. A fairly interesting one is found in Ex parte Tommy Gillentine, 2007 Ala. LEXIS 184 (Ala 9/6/2007). Gillentine is an old fashion double jeopardy case that, showing how difficult the subject can be, a lot of smart judges in the courts below got wrong. The other interesting case was United States v. Lezmond Mitchell, 2007 U.S. App. LEXIS 21201 (9th Cir 9/5/2007), which has a few issues that might cause the case to go en banc or, less likely, cert, including a “procedurally clean” issue that the SCOTUS punted on last term, prosecutorial comments in the penalty phase closing and waiver of a capital defendant’s presence in the penalty phase in light of Rule 12 of the Fed. R. Crim. Proc.

As always thanks for reading. - k

More Execution information*

Week of  August 27, 2007 --  In Favor of Life or Liberty

• People v. Arthur Hans Halvorsen, 2007 Cal. LEXIS 9352 (Cal 8/30/2007) Relief granted under Faretta / the right to self representation.

• Ricky Ray Malone v. State, 2007 OK CR 34 (Okla Crim App 8/31/2007) "It was improper for the prosecutor to so blatantly suggest that Malone’s jurors should sentence him to death because the family member victims were counting on them to do so.  It was improper to so directly and profusely appeal to sympathy for the family member victims.  And it was highly improper to seek this sympathy based not only upon the loss of Green, but also by invoking the powerlessness, the indignities, and the depersonalization that the American system of trial by jury imposes upon all crime victims and their surviving families. It was likewise improper to imply that Malone’s family members should be compensated for their fifteen-month endurance of this painful process by a death penalty verdict from the jury, and that “[a]nything less would be a travesty.”  And the prosecutor’s comparison of Malone’s situation (of limited but continuing “human contact”) with that of his dead victim (who “will never know human contact again”) is yet another version of the infamous, but ever-popular, “three   hots  and  a  cot”  argument  that   this  Court  has   so  strenuously,  but unsuccessfully, sought to eliminate from the Oklahoma prosecutorial repertoire of favorite, death-seeking, closing argument incantations." The court also found plain error occurred in the admission of certain victim impact evidence and counsel's failure to object to same.
  

• Roger Eric Thorson v. State, 2007 Miss. LEXIS 497 (Miss 8/30/2007) Remand ordered in light of Atkins for an "evidentiary hearing pursuant to Atkins, [State v.] Lynch and  [State v.] Chase."

• Nathaniel Woods v. State, 2007 Ala. Crim. App. LEXIS 137 (Ala Crim App 8/31/2007) Remand ordered as "the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, we must remand this case to the trial court for it to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances. If it finds it necessary, the trial court may reweigh the aggravating and mitigating circumstances and resentence Woods."

Week of  August 27, 2007 --  In Favor of Death

• Billy Leon Kearse v. State, 2007 Fla. LEXIS 1534 (FL 8/30/2007) Relief denied on postconviction appeal: "(A) that trial counsel provided constitutionally ineffective assistance, (B) that the circuit court erred in denying Kearse's claim of newly discovered evidence warranting a new penalty phase, (C) that the trial court erred in denying Kearse's public records requests, and (D) that the trial court erred in summarily denying several of his postconviction claims. We address each in turn below." On habeas: "(A) that appellate counsel was ineffective for failing to raise two meritorious  claims, and (B) that both his death sentence and lethal injection are unconstitutional."

• Stephen Todd Booker v. State, 2007 Fla. LEXIS 1533 (FL 8/30/2007) Relief denied on claims relating to (1) interference with Booker's legal mail; (2) use of the prior violent felony aggravator; (3) failure to investigate and present mitigation evidence; (4) failure to inform jury of the amount of time Booker was facing if sentenced to a sentence other than death; (5) Crawford; (6) new evidence; & (7) length of incarceration on death row. Booker has been incarcerated for 30 years for a crime committed in 1977, most of it on death row.  "[M]embers of the victim's family [have] urged that Booker be sentenced to life in prison."

• State v. Paul Cummings, 2007 N.C. LEXIS 815 (NC 8/24/2007) "An inmate's post-conviction relief petition, under R.C. 2953.21, alleging counsel inadequately investigated the mitigation evidence related to a murder the inmate was convicted of, was properly denied because counsel was not ineffective when an expert retained by counsel did not share with counsel the expert's mitigating opinions as to this murder." [from Lexisone] [briefs]

• James Dellinger v. State, 2007 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 8/28/2007) Relief denied on "claims that (1) this court should review the trial court's opinion in its entirety under a purely de novo standard of review; (2) an incorrect and unconstitutional burden of proof has been applied to the petitioner's claims of ineffective assistance of counsel; (3) his conviction and death sentence violate his rights to due process because he is actually innocent of the conviction offense; (4) the state withheld exculpatory information at the trial; (5) counsel provided ineffective assistance to him at trial and on appeal; (6) the petitioner was not afforded a full and fair hearing of his post-conviction petition in violation of his due process rights; (7) the death sentence is unconstitutional because it infringes upon the petitioner's fundamental right to life; (8) the aggravating factor used in support of the death sentence was not included in the indictment and returned by the grand jury; (9) Tennessee's death sentence is unconstitutional because prosecutors are given absolute discretion to pursue or to forego the pursuit of the death sentence in each case; (10) execution by lethal injection violates the principles against cruel and unusual punishment; (11) the petitioner's conviction and death sentence are in violation of international law; and (12) Tennessee's death penalty scheme is unconstitutional. We conclude that no error exists, and we affirm the judgment of the trial court."

• Dionne Eatmon v. State, 2007 Ala. Crim. App. LEXIS 126 (Ala Crim App 8/31/2007) The jury voted 9-3 for life, the trial judge decide Eatmon should die.  Relief denied on request for continuance as the defense's mitigation expert, who was hired just a few weeks prior to trial, needed more time, as well as claims relating to the jury override, state capital sentencing scheme, and independent review.
  

• William Bruce Marshall v. State, 2007 Ala. Crim. App. LEXIS 138 (Ala Crim App 8/31/2007) Relief denied on claims relating to: (1)  introduction of confession and other evidence obtained as a result of what he alleges was an illegal arrest; (2) failure to grant his motion for a judgment of acquittal on the charges of capital murder; (3) sufficiency of the evidence; (4) trial court erred in allowing the State to offer evidence of a collateral bad act; (5)  trial court erred in granting the State's motion in limine seeking to preclude evidence as to alternate  causes of decedent's vaginal injuries; and (6) independent & statutory review.

• Bobby Wayne Waldrop v. State, 2007 Ala. Crim. App. LEXIS 150 (Ala  Crim. App. 8/31/2007) Trial court handed down a death sentence despite a 10-2 recommendation for life.  Postconviction relief denied on numerous claims, arising chiefly around ineffective assistance of counsel on failure to investigate mitigation and other evidence, as well as the  trial court failing to consider traditional social history mitigation evidence.

• Torrey Twane McNabb v. State, 2007 Ala. Crim. App. LEXIS 155 (Ala. Crim. App. 8/31/2007) Relief denied on claims relating to (A) "the circuit court erred in adopting the State's proposed order denying postconviction relief;" (B) IAC ([1] statutory compensation limits are too low to permit effective trial level representation;  [2] not seeking a change of venue; [3]not securing and sufficiently utilizing appropriate expert witnesses;  [4] not objecting to what he contends was improper victim-impact testimony at the guilt phase; [5] not objecting to what he contends was the improper presentation of a nonstatutory aggravating circumstance -- i.e., future dangerousness; [6] sufficiency of pleading as to IAC in the penalty phase; and [7] cumulative effects of counsel's errors); and  (C) lethal injection

• Jeremy Jones v. State, 2007 Ala. Crim. App. LEXIS 156  (Ala. Crim. App. 8/31/2007)  In a case to watch, relief denied on a developing issue of some note:  "[t]he failure, in capital cases, of the State of Alabama to provide for representation in the manner set out in the American Bar Association {"ABA") Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases constitutes a denial of[his] rights to counsel as envisioned in the Sixth Amendment to the United States Constitution and Due Process of Law as envisioned in the Fifth and Fourteenth Amendments to the United States Constitution." Other issues denied on include: (A) change of venue; (B) failure to suppress statements made to law enforcement; (C) improper qualification of witness who tendered expert testimony;  (D) "trial court erred in granting the State's motion for a mental evaluation before he entered a plea of not guilty by reason of mental disease or defect; (E)  death qualification; and (F) statutory review.
  

• State v. Larry James Gapen, 2007 Ohio 4333 (Ohio 2nd App 8/24/2007) "An inmate's post-conviction relief petition, under R.C. 2953.21, alleging counsel inadequately investigated the mitigation evidence related to a murder the inmate was convicted of, was properly denied because counsel was not ineffective when an expert retained by counsel did not share with counsel the expert's mitigating opinions as to this murder." [from Lexisone]

• State v. Latrez Williams, 2007 Del. Super. LEXIS 250 (Del. Super 8/29/2007) Relief denied on issues relating to judicial override in the Delaware statute in light of Ring v. Arizona and the constitutionality of lethal injection.
  

(Advance Sheet Week of  September 3, 2007) --  In Favor of Life or Liberty

• Ex parte Tommy Gillentine, 2007 Ala. LEXIS 184 (Ala 9/6/2007)  "In the Court of Criminal Appeals, Gillentine argued that his conviction for the lesser offense of manslaughter prevented his prosecution for  capital murder. 945 So. 2d at 1092. The Court of Criminal Appeals denied Gillentine's petition, concluding that "[t]he failure [of the trial court] to give a reasonable-doubt instruction [was] a structural defect that nullified[d] the proceedings" that had resulted in Gillentine's conviction for manslaughter. 945 So. 2d at 1095. Consequently, the Court of Criminal Appeals held that Gillentine could be prosecuted for capital murder and, therefore, that he was not entitled to bail. 945 So. 2d at 1095." "Because the jury at Gillentine's first trial, at which he had been charged with capital murder, found him guilty of the lesser offense of reckless manslaughter, the State's attempt to again prosecute Gillentine for capital murder violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution."

(Advance Sheet Week of  September 3, 2007) --  In Favor of Death

• United States v. Lezmond Mitchell, 2007 U.S. App. LEXIS 21201 (9th Cir 9/5/2007) An unusually well briefed direct appeal of a federal death sentence.  Key issues include a questionable confession, prosecutorial comments in the penalty phase closing and waiver of a capital defendant’s presence in the penalty phase in light of Rule 12 of the Fed. R. Crim. Proc.

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

Ricky Ray Malone v. State, 2007 OK CR 34 (Okla Crim App 8/31/2007) "It was improper for the prosecutor to so blatantly suggest that Malone’s jurors should sentence him to death because the family member victims were counting on them to do so.  It was improper to so directly and profusely appeal to sympathy for the family member victims.  And it was highly improper to seek this sympathy based not only upon the loss of Green, but also by invoking the powerlessness, the indignities, and the depersonalization that the American system of trial by jury imposes upon all crime victims and their surviving families. It was likewise improper to imply that Malone’s family members should be compensated for their fifteen-month endurance of this painful process by a death penalty verdict from the jury, and that “[a]nything less would be a travesty.”  And the prosecutor’s comparison of Malone’s situation (of limited but continuing “human contact”) with that of his dead victim (who “will never know human contact again”) is yet another version of the infamous, but ever-popular, “three   hots  and  a  cot”  argument  that   this  Court  has   so  strenuously,  but unsuccessfully, sought to eliminate from the Oklahoma prosecutorial repertoire of favorite, death-seeking, closing argument incantations."

Roger Eric Thorson v. State, 2007 Miss. LEXIS 497 (Miss 8/30/2007) Remand ordered in light of Atkins for an "evidentiary hearing pursuant to Atkins, [State v.] Lynch and  [State v.] Chase."

On August 30, 2007, the Mississippi Supreme Court denied in part Roger Thorson’s petition for post-conviction relief but remanded for a hearing on Thorson’s claim that he is ineligible for execution due to his mental retardation. Thorson v. State, ___ So.2d ___, 2007 WL 2446474 (Miss. Aug. 30, 2007). The court rejected the State’s contention that the Atkins claim was procedurally defaulted because Thorson had failed to raise it on direct appeal. The court pointed out that although the Atkins decision had been issued before Thorson filed his brief on direct appeal, it did not exist at the time of Thorson’s trial. Under state law, Thorson could not have brought the claim on appeal because it had not, understandably, been raised at trial. As for the merits, in finding that further proceedings were in order the court looked to an affidavit from Dr. Marc Zimmerman opining that Thorson met the criteria for a diagnosis of mental retardation. That an expert at the pre-Atkins trial had testified that Thorson was mentally handicapped but not mentally retarded did not foreclose a hearing on the claim. Nor did previously reported IQ scores of 77 and 74. (Dr. Zimmerman found that Thorson had a full-scale IQ of 70.)

The court dismissed as moot Thorson’s claim that counsel was ineffective in failing to develop evidence of his mental disorders and learning disabilities. It also found the subclaim to be without merit given that the trial expert evaluated Thorson for approximately ten and one-half hours, performed numerous tests on Thorson and concluded that Thorson was “borderline retarded.” As for counsel’s alleged failure to investigate other matters that would have aided in showing Thorman is mentally retarded, because the case was tried before Atkins the court would not find counsel deficient for not investigating mental retardation further. Additional allegations of ineffective assistance by counsel directed towards the guilt-innocence phase of the trial were rejected. A challenge to execution by lethal injection was found to be procedurally barred because it could have been, but was not, raised on direct appeal. Further, the court found the claim to be without merit, noting that Thorson failed to “submit any affidavit which legitimately questions the lethal injection protocol employed by the Mississippi Department of Corrections.” Thorson’s Brady allegations were hampered by the fact that most of the trial files were destroyed by Hurricane Katrina, leaving Thorson without clear evidence of what was and was not provided to trial counsel by the prosecution. Finally, the court denied Thorson’s claim of cumulative error, although it did reject the State’s contention that the claim was barred by res judicata because a cumulative error argument had also been made on direct appeal