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Capital
Defense
Weekly [Available at http://capitaldefenseweekly.com/archives/071008.htm] The highlight of this edition is the Ohio Supreme Court's opinion in State v. Vernon Brown. Specifically, in Brown the prosecution suppressed exculpatory police reports that included witness statements indicating that someone other than Brown had claimed responsibility for / confessed to the murders for which he was convicted. The Ohio Supremes also granted relief 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 him. The United States Supreme Court has "GVR'd"
(Granted, Vacated, & Remanded) a Sixth Circuit capital case, Hudson
V. Frank Spisak
in light of its recent opinions in Carey v. Musladin and Schriro v. Landrigan; three
justices would have granted cert. Smith v. Arizona, a cert denial on
the issue of prolonged stays on death row and the Eighth Amendment, drew a
dissent from Justice Breyer.
The Supreme Court also heard oral arguments in Medellin v. Texas
last Wednesday;
the SCOTUSBlog's
in-depth coverage of the oral arguments preempts the need for any
additional analysis. Also from the SCOTUSBlog, this
major analysis of the breakdown of the "rule of four" in stay cases. The American Bar Association's Pennsylvania
Death Penalty Assessment Report has
been released. In the modern era, more Pennsylvania death row
inmates have been exonerated than executed. The report reveals an
amazingly constructive critique of the problems with Pennsylvania's
death penalty practice, as well as suggestions for judicial and
legislative changes that need to be made before the Keystone state's
death chamber resumes activity. [Executive
Summary of the Pennsylvania Death Penalty Report & Full
Pennsylvania Death Penalty Assessment Report]
In other news, Floyd Brown, who
has
been locked up in the state mental hospital for 14 years because he is
too mentally retarded to stand trial for a capital murder he may well
have not
committed, has been released in North Carolina. The latest edition of
the National
Institute of Justice Journal is
available and includes several potentially useful articles including: Police
Lineups: Making Eyewitness Identification More Reliable, Sexual
Assault: Virtual Training Takes Responders From Exam Room to Courtroom,
& Forensic
Databases: Paint, Shoe Prints, and Beyond. DPIC
notes member
nations of the European Union and the Council of Europe marked October
10th as "European Day Against the Death Penalty," an action to
underscore the continent's firm commitment to ending executions
throughout the world.
In the realm of new scholarship DPIC also notes, "[a] recent edition of the Harvard Civil Rights-Civil Liberties Law Review features articles about the impact of the Antiterrorism and Effective Death Penalty Act (AEDPA) in limiting appeals by prisoners and death row inmates. AEDPA was enacted in 1996, and Harvard Law School sponsored a symposium marking the legislation's tenth anniversary. One article by Bryan Stevenson, Director of the Alabama-based Equal Justice Initiative, "Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases," discusses how AEDPA and related court decisions have created barriers to challenging constitutional violations and restricted substantive review in death penalty cases." Symposium: "Pro Se Litigation Ten Years After AEDPA," 41 Harvard Civil Rights-Civil Liberties Law Review 289 (2006).
Elsewhere, the Michael
Richard execution controversy in Texas has heated up. For
those unfamiliar with the controversy press
accounts note a formal judicial complaint has been filed
against Sharon
Keller, the PJ of the Texas Court of Criminal Appeals arising out of
her shutting the courthouse doors to Richard without consulting
the other judges of the TCCA: Then on Monday the Honorable Judge
Susan Criss of the 212th Judicial District Court indicated on the Burnt
Orange Report that she is joining in filing a complaint against
Judge Keller. And, as all things seems to do these days, an online
petition /
judicial complaint is now making the rounds that you too can sign
to add your name to call for accountability. Please note, as the edition was being completed, William Castillo, a volunteer in Nevada, has received a stay on what some had percieved as the last likely execution of the year. Looking ahead, three favorable dispositions are noted. In Rolando
Ruiz v. Quarterman
a Fifth Circuit panel, in a powerful blast aimed at the failure of the
Texas capital representation scheme, and heaping well deserved praise
on the Texas Defenders, remands with instruction to decide the claim of
ineffective trial counsel on its merits. The Fifth Circuit also
granted a COA on three additional issues in Jonathan
Bruce Reed v. Quarterman
(prosecutorial discovery violations, a Penry II claim, & failure
to grant a jury instruction on first-degree, non-capital murder.
Finally, in Crosley
Green
v. State, the Florida Supreme Court grants relief as
counsel "was
prejudicially ineffective in failing to investigate the case file in
defendant's prior New York case."
As always thanks for reading & my apologies for a late mailing. - k Stay / Commuted November Pending
Executions
Week
of October 1,
2007 --
In Favor of Life or
Liberty
Week
of October 1,
2007 --
In Favor of Death
(Advance
Sheet Week
of October 8,
2007) --
In Favor of Life or
Liberty
(Advance Sheet Week of October 8, 2007) -- In Favor of Death
(Advance Sheet Week of October 8, 2007) -- Notable
Selected
Excerpts
from, & Commentary on, this Edition's Cases Citing ineffective assistance
provided by the defendant’s trial
attorneys and the failure of prosecutors to disclose evidence favorable
to the defense, the Supreme Court of Ohio today unanimously vacated the
aggravated murder conviction and death sentence of Vernon Brown of
Cleveland. In a decision written by Justice Judith Ann Lanzinger, the
Court ordered that Brown receive a new trial.
Brown was convicted of the Jan. 1, 2004, shooting deaths of Duane Roan and Tearle Toeran. A jury found Brown guilty of the aggravated murder of Roan with prior calculation and design, including death penalty specifications. He was also convicted of murder for killing Toeran, and of aggravated robbery, carrying a concealed weapon and possession of a firearm under disability. On appeal, Brown raised 21 allegations of error during his trial as grounds for the Supreme Court to vacate his convictions or reduce his death sentence. In today’s decision, the Court found merit in two of Brown’s claims, and held that those errors were so serious that they rendered the trial court verdict unreliable and therefore required that Brown’s conviction and death sentence be set aside and a new trial conducted. “The evidence shows that Brown was involved in the deaths of Toeran and Roan and was present at the time they were killed. Under the circumstances of this case, the jury was required to conclude not only that Brown was responsible for the deaths of Toeran and Roan, but also that he acted with prior calculation and design,” wrote Justice Lanzinger. “We are not convinced, however, that Brown’s guilty verdicts and death sentence are worthy of confidence, for the errors by both the prosecution and defense cause us to question whether the jury’s conclusions could have been fairly reached. The prosecution breached its duty to provide to the defense all evidence material to Brown’s guilt or innocence. The defense attorneys also erred by failing to provide effective assistance of counsel.” The Court noted that under the U.S. Supreme Court’s 1963 decision in Brady v. Maryland, prosecutors are required to provide a defendant with any evidence discovered by the state in its investigation of a crime that is favorable to the defendant and is material either to his guilt or punishment. In this case, Justice Lanzinger wrote, Brown’s attorneys duly requested disclosure of any exculpatory evidence gathered by the police that was material to his guilt or punishment. However, the Cuyahoga County prosecutor’s office failed to disclose two police reports that included witness statements indicating that someone other than Brown had claimed responsibility for the murders. One of the undisclosed reports indicated that a drug dealer named James Donley, who gave testimony damaging to Brown at Brown’s trial, had told a third party that Donley and two other men were responsible for the killings. A second undisclosed police report referred to statements made to investigating officers by Toeran’s father and another man who was a police informant indicating that Donley and another man who was not Brown had been “bragging” on the street after the shootings that they had been responsible. “Admittedly, the statements contained in these reports are hearsay and might not be admissible,” wrote Justice Lanzinger. “However, they are material, and even if the defense could not directly introduce them at trial, the state’s failure to turn them over was highly prejudicial. The defense was deprived of the opportunity to call the original declarants at trial. They were also deprived of the ability to use the statements to cross-examine Donley when he testified at trial. Donley was an essential witness for the state who contradicted himself during his testimony at trial and contradicted his earlier statements. He alleged that Brown had made incriminating statements about the murders. This testimony would have taken on a decidedly different character if Donley himself had been implicated in the murders.” Justice Lanzinger rejected the state’s argument that, even if the reports had been turned over, the outcome of the trial would have been the same because of the other evidence presented and because Brown never denied that he shot the victims. “Brown did … deny that he acted with prior calculation and design, and two life sentences for murder is a decidedly different outcome from a sentence of death,” wrote Justice Lanzinger. “ … (T)he relevant inquiry is not whether the outcome would more likely than not be different, but whether the verdict is one worthy of confidence.” The Court also found merit in Brown’s assertion that he received ineffective assistance from his trial attorneys when they failed to file a pretrial motion challenging the testimony of the state’s primary witness in the case, Jillian Wright, and requiring the trial judge to formally determine whether Wright and Brown were legally married. If defense counsel had entered such a motion and the court determined that Brown and Wright were spouses, Justice Lanzinger wrote, the judge would have been required to advise Wright that, under the Supreme Court of Ohio’s holding in State v. Adamson, she could legally refuse to testify against Brown. She would have been presumed incompetent to testify against him unless, with knowledge of her right to refuse, she made a deliberate choice to testify. While Wright, who was the only eyewitness to the shootings, had denied to police and prosecutors that she was married to Brown, Justice Lanzinger pointed to significant conflicting evidence including a wedding license dated two days before the murders, a life insurance policy in which Wright had named Brown as her beneficiary and listed him as her husband, and a letter she had written Brown after his arrest stating that this was “a hell of a way to start our marriage.” “In this case, the error does not lie with the judge but with Brown’s trial counsel. Had the existence of a marriage been undisputed, the judge would have erred by not informing Wright of her right not to testify. However, because there was a question as to whether Brown and Wright were married, it was Brown’s trial counsel’s obligation to request a formal decision on whether Wright and Brown were actually married,” wrote Justice Lanzinger. “The importance of Wright’s testimony to the case against Brown cannot be overstated. Wright was the only eyewitness to the murders of Roan and Toeran. Had she been properly advised that it was her choice whether to testify, and had she chosen not to testify, the case against Brown would have been significantly weakened.” Justice Lanzinger concluded that “Brown was eligible for the death penalty only because he was convicted of aggravated murder after the jury found that he had acted with prior calculation and design in the death of Roan. Wright is the only one who observed the events of that night. Without her testimony, there would be no firsthand account of Brown’s role in the deaths of Toeran and Roan. The fact that she was not properly found competent to testify severely undermines confidence in the jury’s verdict because it calls into question whether, in the absence of her testimony, the jury still would have found Brown guilty of the aggravated-murder charge and thus death-eligible. … (A)lthough the only difference might be that of Brown’s final sentence, in this case, that difference is monumental — it is the difference between life and death. This difference is enough to explain why Brown was prejudiced by trial counsel’s failure to properly raise the issue of Wright’s competence to testify.” SMALL
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