Leading off this edition is Christopher Anthony Floyd v. State from the Alabama Court of Criminal Appeals.  The issue in Floyd is rather straightforward, how much proof is needed to meet the prima facie burdern under Batson & J.E.B. to show impermissible bias in jury selection.  Remanding to expand the record, the Floyd court notes "the State used 55.5% of its strikes to remove 90.9% of the African-American veniremembers: and "used 12 of its 18 strikes to remove women from the venire." On remand the State will have to explain how their strikes were or weren't based on impermissible immutable characteristics of the venirepersons

Since the last edition there have been no executions, in part due to the cert grant in Baze v. Rees. Note, however, execution warrants have been sought and/or issued in small number of states (Arkansas, Georgia, and Texas)  in a desire to test whether a national moratorium on execution exists or whether the Court has something else in mind.  The Attorney General in Oklahmoa have, however, stated, they will not seek death warrants until Baze is resloved.   In Nueces County (Corpus Christi) Texas the District Attorney has announced he won't even seek the death penalty until the Supreme Court rules on Baze. Note also that Amnesty International has issued a new report on the topic.

In other news, Heliberto Chi was granted a stay by the Texa Court of Criminal Appeals in light of the Baze cert grant. Press accounts note Robert Fratta has been granted a new trial as prosecutors “misused” hearsay evidence and investigators “blatantly violated” the civil rights of another person in order to convict Fratta; opinion to follow when available. Finally, the North Carolina Council of State approves a new lethal injection protocol.

Looking ahead, the Ohio Supreme Court in State v. Vernon Brown has granted relief. Specifically, the State suppressed exculpatory police reports that included witness statements indicating that someone other than Brown had claimed responsibility for the murders. Additionally, trial counsel failed to file a pretrial motion challenging the testimony of the state's primary witness who, documents suggest, was legally married to Brown and, therefore, would have had the legal right to refuse to testify against Brown.

As always thanks for reading. - k

More infromation on pending execution dates*

Week of September 24, 2007 --  In Favor of Life or Liberty

• Christopher Anthony Floyd v. State, 2007 Ala. Crim. App. LEXIS 167 (Ala. Crim. App. 9/28/2007) Remand ordered to expand the record as to prosecutorial strikes of African - Americans and women.

• ToForest Onesha Johnson v. State, 2007 Ala. Crim. App. LEXIS 178  (Ala. Crim. App. 9/28/2007) State consents to remand for an evidentiary hearing on over a score of ineffective assistance of counsel claims.

Week of September 24, 2007 --  In Favor of Death

• Gregory Bey v. Bagley, 2007 U.S. App. LEXIS 22673 (6th Cir 9/25/2007) Relief denied on claims arising from "other acts evidence" in the guilt phase.

• Edward Harbison v. Bell, 2007 U.S. App. LEXIS 22802 (6th Cir 9/27/2007)  Relief “denied, respectively, as: 1) a request for authorization to file a successive section 2254 petition is denied as petitioner failed to meet the standard under the AEDPA that would allow him to do so; 2) for purposes of a motion for a COA, petitioner did not demonstrate that an adequate issue exists concerning whether extraordinary circumstances are present to justify Rule 60(b) relief; 3) a motion for a COA on a decision denying his request to appoint counsel to represent him in the clemency proceedings is denied; and 4) a motion for a stay of execution is denied.” [via Findlaw]

• Darold Stenson v. Lambert, 2007 U.S. App. LEXIS 22612 (9th Cir 9/24/2007) "Denial of habeas relief from a conviction and death sentence for the first-degree murders of petitioner's wife and business partner is affirmed as: 1) a state court's holding that the trial court did not violate Faretta v. California was not objectively unreasonable; 2) a state court properly denied a claim of ineffective assistance of counsel during trial; 3) counsel's decision to concede petitioner's guilt during the sentencing phase of the trial was not objectively unreasonable under federal law; and 4) a state court's determination that a trial court did not improperly exclude mitigating evidence was not contrary to or an unreasonable application of federal law." [via Findlaw]

• Thomas Gallo v. State, 2007 Tex. Crim. App. LEXIS 1234 (Tex Crim App 9/26/2007)  "Appellant raised thirteen points of error, among them complaints about the procedure whereby juries pass upon mental retardation issues and the trial court’s refusal to admit a defensive expert’s testimony regarding risk assessment and infanticide profiles.  Both of these points merit reading and I encourage the capital practitioner to do so.. . . [another substantial point is] that the prosecutor’s use of profanity denied him due process."  [via Warren Clark's Hack Lawyer]

• Christopher Shane Hide v. State, 2007 Ala. Crim. App. LEXIS 176 (Ala. Crim. App. 9/28/2007) Relief denied on claims relating to: (A) change of venue; (B) trial court ordering the defendant to be restrained with leg restraints and a stun belt; (C)  trial court "erred by failing to sua sponte dismiss the entire jury venire after a prospective juror stated that the alleged murder weapon had been stolen; (D) failure to suppress confession under the totality of the circumstances; (E) admisssion of inflammatory photos; (F) collection of evidence by private citizen at the direction of the state should have been adjudicated under the Fourth Amendment; (G) IAC (undeveloped claim); (H) cumulative error; & (I) statutory review.

• Pamela Kaye Terry v. State,  2007 Ark. LEXIS 503 (Ark 9/27/2007) Relief denied on claims relating to sufficiency of the evidence,  entitlement to directed verdict on the robbery charge, trial court's admission of  crime scene photos, and the trial "court erred in allowing the "premeditated and deliberated purpose" language from § 5-10-101(a)(4) to be included in the capital-murder jury instruction."

• State v. Robert Yates, 2007 Wash. LEXIS 710 (Wash 9/27/2007) (8-1) Relief denied on numerous claims including the freakish application of the death penalty in Washington, dismissal of a juror from the final panel because she opposed the death penalty, and jury instructions that meant the jury was not told that a guilty finding of aggravated murder requires that Yates' crimes follow a common scheme or plan.  Notable here were claims that death sentences in Washington are inconsistently applied in Washington as Yates crimes did not approach the savagery & raw numbers that other murderers in the state had inflicted (specifically Gary Ridgeway, the so-called Green River Killer, who was permitted to plead to life).

• Fulton County v. State, 2007 Ga. LEXIS 595 (Ga 9/24/2007) Fulton County will not have to pay for the defense of Brian Nichols, the so-called “courthouse shooter.” [more here]

(Advance Sheet Week of  October 1, 2007) --  In Favor of Life or Liberty

• State v. Vernon Brown, 2007 Ohio 4837 (Ohio 10/3/2007) Relief granted as the State failed to turn over exculpatory police reports that someone else confessed to the crime, as well as counsel failed to make the appropriate motions that may have precluded the State from presenting a crucial witness.

(Advance Sheet Week of  October 1, 2007) --  In Favor of Death

• David Wood v. Quarterman, 2007 U.S. App. LEXIS 23510 (5th Cir 10/5/2007) COA denied on claims including: "(1) the indictment was defective because it did not state a capital offense; (2) trial and appellate counsel provided ineffective assistance of counsel; and (3) the trial court erred in admitting evidence of an extraneous offense during the guilt phase of the trial."

• Norman Grim v. State, 2007 Fla. LEXIS 1842 (FL 10/4/2007) Postconviction relief denied on the  "following claims: (A) the State committed two Brady violations; (B) his guilt-phase counsel was ineffective in various respects; (C) penalty-phase counsel was ineffective; and (D) special counsel had an undisclosed conflict of interest." In his contemporaneously filed habeas petition relief denied on claims including: "(1) section 921.141, Florida Statutes (2006), is unconstitutional; (2) the State’s failure to specify aggravators in the indictment is unconstitutional; (3) the jury instructions improperly shifted the burden of proof; and (4) appellate counsel was ineffective."

• Thomas Edwin Loden, Jr. v. State, 2007 Miss. LEXIS 558 (Miss 10/4/2007)  Relief denied on claims relating to whether:  (A) the trial court improperly denied funds to retain the assistance of a forensic social worker to investigate and present relevant mitigating factors; (B)  indictment failed to charge a death-penalty eligible offense; (C)  trial court erred in weighing the "avoiding arrest" aggravating circumstance; (D) double jeopardy / double counting of aggs; (E)  trial court erred in considering both the Mississippi Code Annotated Section 99-19-101(5)(d) aggravating circumstance and the "especially heinous, atrocious or cruel" aggravating circumstance; (F)  proportionality review; and (G) erroneous advice of trial counsel prejudiced Loden by causing him to enter an involuntary guilty plea to capital murder.

• State v. Frederick Mundt,  2007 Ohio 4836 (Ohio 10/3/2007) Relief denied on inneffectiveness claims including: (A)  failure to seek disqualification of several jury members; (B) failure to object to various portions of the state's evidence and witness testimony, and (C) failure   to introduce mitigation evidence about Mundt's low IQ and poor performance as a student.Other claims on which relief is denied include, as the Court provided summary notes: "prosecutorial misconduct, improper admission by the trial court of prejudicial “victim impact” evidence regarding the injuries inflicted on Brittany, alleged flaws in the instructions given to the jury and claims that Ohio's death penalty statute is unconstitutional."

• Elijah Dwayne Joubert v. State, 2007 Tex. Crim. App. LEXIS 1268 (Tex. Crim. App. 10/3/2007)  Relief denied on claims including: (A) "trial court erred in overruling his motion to dismiss the indictment for its alleged failure to include the special punishment issues;" (B) failure to remove for cause a life hesitant juror; (C) failure of the trial court to permit an argument for intra-case proportionality to the jury; and (D) the special issues "permitted a finding in favor of the death penalty without a finding that he intended that a killing occur."

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

The record here supplies an inference of racially based discrimination on the part of the State. The initial list of potential jurors consists of 264 individuals. The strike list indicates that Floyd's jury was struck from potential jurors no. 1-75. (C. 301-03.) Of the 75 potential jurors on the strike list, 20 were African-American. Although the transcript indicates that the roll of jurors was called and that all were present, the individual names were not recorded by the court reporter so this Court cannot determine the exact number of prospective jurors present for voir dire. The record does, however, indicate that 1 of the 20 African-American prospective jurors was struck during initial voir dire by the trial court for cause.

The trial court stated during voir dire that Floyd's jury was struck from a panel of 55 prospective jurors. (R. 232.) The record indicates that seven potential jurors were excused from further service, based on their responses during individual voir dire. Of the 7 jurors  [*5]  excused, 4 were white and 3 were African-American, leaving 11 African-Americans. n1 After voir dire concluded, the prosecutor and defense counsel exercised 36 peremptory challenges to select Floyd's jury. The State used its 18 strikes to strike 10 of the 11 remaining African-Americans from the venire. Defense counsel struck one African-American. Floyd's jury thus consisted of 12 white jurors and no African-American jurors. One alternate juror, the State's final strike, was African-American.

The State contends that no inference exists that the State engaged in purposeful discrimination because Floyd offered only "bare assertions of discrimination and statistics showing that black veniremembers were struck by the prosecutor" (State's brief at p. 43) and that Floyd's assertions regarding voir dire of the complained-of stricken African-American veniremembers -- that some African-American veniremembers  [*6]  who did not respond during voir dire were struck by the prosecution, while other African-American veniremembers who answered questions in a manner Floyd deemed favorable to the State were also struck by the State -- did not constitute a showing of purposeful discrimination. However, as Floyd correctly argued, the State used 55.5% of its strikes to remove 90.9% of the African-American veniremembers. Further, Floyd did not rely on statistics alone. Rather, Floyd correctly noted that four of the stricken veniremembers did not provide any response in voir dire that would provide a basis for being stricken from the panel. Floyd also argued that five of the African-American veniremembers struck by the State provided answers during voir dire which, according to Floyd, were favorable to the State. Floyd's argument regarding the State's allegedly improper gender-based strikes is considerably less detailed than his race-based argument. However, he does aver that the State used 12 of its 18 strikes to remove women from the venire. n2

The record indicates that some of the African-American jurors as well as some of the white jurors responded to questions posed during voir dire, and that some of the prospective jurors did not respond to any questions posed during voir dire. Moreover, it appears that some of the African-American jurors and some of the white jurors who gave similar responses to the questions posed were struck, while other white jurors were not. With regard to the gender-based strikes, although, as noted above, Floyd's argument is less developed than his race-based claim, the record also indicates similar occurrences regarding striking females while seemingly not striking similarly situated male veniremembers. Although the State may have race-neutral, gender-neutral, and nondiscriminatory reasons for its actions, we conclude that it is necessary to remand this case for a Batson and J.E.B. hearing, in light of the many levels of judicial scrutiny that occur when a defendant is convicted of a capital offense and sentenced to death. As the United States Supreme Court noted in Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005):

545 U.S. at 251-52.  [*9] 

Based on the foregoing, we remand this case to the circuit court with directions that that court hold a Batson and J.E.B. hearing. See Lewis v. State, [Ms. CR-03-0480, April 28, 2006] 2006 Ala. Crim. App. LEXIS 49,     So. 2d     (Ala. Crim. App. 2006). If the prosecution cannot provide race-neutral reasons for its use of peremptory challenges against African-American jurors and gender-neutral reasons for its use of peremptory challenges against female jurors, then Floyd shall be entitled to a new trial. See Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991); Pace v. State, 714 So. 2d 316 (Ala.Crim.App. 1995), opinion after remand, 714 So. 2d 320 (Ala.Crim.App. 1996), reversed in part on other grounds, 714 So. 2d 332 (Ala. 1997); Guthrie v. State, 616 So. 2d 913 (Ala.Crim.App. 1992).