Capital Defense Weekly: 2007

As forecasted last week, there are few opinions to note for this edition. The only favorable reported opinion is the grant of a writ of mandamus by the Alabama Supreme Court in Ex parte Tommy Gillentine. Gillentine was tried on capital murder charges and a jury returned a noncapital manslaughter verdict. In prior set of proceedings that conviction was overturned due to structural error in the failure to give certain "reasonable doubt" jury instructions. On retrial the State argued & the trial court, as well as the Alabama Court of Criminal Appeals, agreed that because the error that resulted in a new trial was structural error the State could seek capital murder on retrial as the first trial was a legal nullity. The Alabama Supreme Court grants a writ of mandamus barring retrial on anything more serious than manslaughter as "the jury's conviction of the lesser offense in the present case--under the general double-jeopardy rule--was an express acquittal of the greater offense" and retrial on any charge greater than manslaughter, therefore is inappropriate.

The news of the week, however is the unprecedented number of commutations, stays and/or withdrawn execution dates in recent days Joseph Lave's execution for last Thursday night was stayed when the District Attorney's office in Dallas had the date be withdrawn so counsel could have more time to review discovery. In Arkansas a federal district court stayed Terrick Terrell Nooner's Sept. 18 execution based on competency to be executed claims. The Kentucky's Supreme Court stayed Ralph Baze's execution scheduled for the end of the month as it needed more time to sort through Baze's current appeals. Rommell Broom execution date has been on lethal injection related grounds and the Ohio Attorney General has announced that the stay would not be appealed. Finally, Gov. Phil Bredesen commuted the death sentence of Mika'eel Abdullah Abdus-Samad (f/k/a Michael Joe Boyd) on Friday to life without possibility of parole citing "grossly inadequate legal representation."

In lethal injection litigation news, press accounts note an Ocala County judge has lifted his stay on one of that state's lethal injection cases, however the state Supreme Court is still scheduled to consider the issue this fall. In Ohio the federal district court overseeing that state's lethal injection scrum has permitted five additional Ohio death row inmates to join the Cooey v. Taft litigation. The Los Angeles Times notes that California's death chamber will remain quiet through the end of the year with Judge Fogel pushing back scheduled lethal injection hearings until at least December. The same article notes somewhat parallel litigation is proceeding in state court with a "lawsuit alleging that state officials violated the California Administrative Procedure Act when they devised the execution protocol."

In other news, DPIC notes "[a] Texas judge blocked the destruction of DNA evidence that could prove the innocence of a man who was executed in 2000." Press accounts note a new statute in Florida designed to save money in capital cases has dried up the pool of lawyers willing to take new cases in some areas of the state. Appellate courts in New York & Kansas heard oral arguments this past week on the future of those states death penalty. CapDefNet's Week At-A-Glance has updated.

Looking forward to the next edition, in addition to the opinions relating to the stays and lethal injection litigation noted above the Texas Court of Criminal Appeals on Wednesday overturned the conviction of John Allen Rubio as statements from his nontestifying codefendant / wife were introduced at trial in violation of the Confrontation clause. (majority/dissent). In another matter, the TCCA ordered a new sentencing hearing, over claims of abuse of the writ, to Raymond Deleon Martinez as the special issues at bar in that case did not provide a sufficient vehicle for Martinez’s mitigation evidence. The Sixth Circuit in William Garner v. Mitchell granted habeas relief as “Garner’s young age, indeterminate prior experience with the legal system, poor education, significant limitations in intellectual functioning, and the unrebutted expert evidence all tend to show that Garner’s Miranda waiver was not made knowingly and intelligently” and his subsequent confession, on which his conviction rested, must be reversed. The Sixth Circuit in In re Thomas Clyde Bowling grants Bowling's motion to transfer to the district court challenges -- having found the issues raised as not being successive -- to how the state determines mental retardation, including standards used and the application of procedural default doctrines. I should note there are a large number of opinions that have yet to appear either online or on a commercial service but that are being generally reported in the mainstream media.

Stay / Commuted
September
13 Joseph Lave (Texas)
18 Terrick Nooner (Arkansas)
25 Ralph Baze (Kentucky)

October
18 Romell Broom (Ohio)
24 Michael Joe Boyd (Tenn.)

Executions
September
12 Daryl Holton (Tenn. - vol) (stay litigation materials)

Pending Executions
September
20 Clifford Kimmel (Texas)
25 Michael Richards (Texas)
26 Edward Harbison (Tenn.) (stay litigation materials)
27 Carlton Turner (Texas)
27 Tommy Arthur (Alabama)

October
3 Heliberto Chi (Texas)
16 Jack Jones Jr. (Arkansas)
17 Christopher Emmett (Va.)
25 Daniel Siebert (Alabama)

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."

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. Howard Friedman (Prof Univ. of Toledo Law) notes that court also "rejected a claim that the Federal Death Penalty Act violates the First Amendment and the American Indian Religious Freedom Act. The court held that despite the Navajo tribe's religious objections to capital punishment, the FDPA can be applied to a member of the tribe since the statute is a neutral law of general applicability. The court also rejected the claim by defendant Lezmond Mitchell that the Religious Freedom Restoration Act was violated by exclusion from his jury of individuals whose traditional Navajo views on the death penalty would substantially impair the performance of their duties." CapDefNet has more.

(Advance Sheet Week of September 10, 2007) -- In Favor of Life or Liberty

William Garner v. Mitchell, 2007 U.S. App. LEXIS 21705 (6th Cir 9/11/2007) Five children were killed in a horrible fire. William Garner admitted to killing the kids in a house fire set to cover-up his burglary. He was 19, uneducated and borderline retarded. The confession was key to the ability to convict Garner. The Sixth Circuit threw out the confession & granted habeas relief. Put succinctly “Garner’s young age, indeterminate prior experience with the legal system, poor education, significant limitations in intellectual functioning, and the unrebutted expert evidence all tend to show that Garner’s Miranda waiver was not made knowingly and intelligently.”

In re Thomas Clyde Bowling. No. 06-5937 (6th Cir 9/12/2007) Transferring back to the district court certain Atkins related claims as not being successive. Specifically, the panel finds some issues raised successive but holds Bowling may litigate issues in the district court including: (A) “[a]pplying the procedural-default rule to bar a claim of mental retardation violates Atkins;” (B) “Kentucky’s procedures for adjudicating Atkins claims violate due process;” & (C.) “Kentucky’s definition of mental retardation and its procedures for determining mental retardation violate the Eighth Amendment.”

John Rubio v. State, 2007 Tex. Crim. App. LEXIS 1125 (Tex. Crim. App. 9/12/2007) (majority/dissent) Statements from his codefendant/wife were introduced at trial without the opportunity to cross the declarant of those statements in violation of the Confrontation clause. On these facts the introduction of the statement could not be harmless.

Ex Parte Raymond Martinez, 2007 Tex. Crim. App. LEXIS 1121 (Tex. Crim. App. 9/12/2007) The special issues at bar did not provide a sufficient vehicle for Martinez’s mitigation evidence

Ralph Baze v. Comm. No. ---- (Ky 9/12/2007 )Stay granted as litigation was ongoing in the Kentucky courts prior to the Governor issuing a warrant for Baze & the Court would not have sufficient time to review the appeal(s) prior to the execution date.

(Advance Sheet Week of September 10, 2007) -- In Favor of Death

Stevie Fields v. Brown,2007 U.S. App. LEXIS 21669 (9th Cir 9/10/2007) A jury foreman who researched and shared Biblical quotes about capital punishment during sentencing deliberations did not violate Appellants right to a fair trial. Unrelated juror bias claim also rejected where a juror sat whose wife experienced an unsolved crime almost identical to the one at bar and where the perpetrator bore a passing resemblance to Fields.

State v. Steven Staley 2007 Tex. Crim. App. LEXIS ----- (Tex. Crim. App. 9/12/2007) TCCA dismisses, apparently for want of jurisdiction, a competency to be executed / involuntary medication to make competent claim.

Brenda Andrew v. State, 2007 Okla. Crim. App. LEXIS 35 (Okla Crim App 9/10/2007) Rehearing denied.

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."