Capital Defense Weekly: 2007

In State v. Young the New Mexico suspended two capital trials unless and until the Legislature appropriates enough money to compensate the defense counsel adequately in these cases. The Young Court goes on to lay out a fairly insightful analysis of what the Sixth Amendment's guarantees of meaningful assistance costs. As local media notes "All of this raises the question: Can New Mexico afford the death penalty?" As an aside, the victim's widow wants the death penalty dropped and the resources diverted for assistance for murder victims' families.

In People v. LaValle the New York Court of Appeals stuck down the Empire State's death penalty on the ground that the statute authorizing the death penalty unduly coerced new death sentences. A trial court, with some degree of vision, realized that the statute was unconstitutional and, prior to the LaValle Court's decision, at trial excised the unconstitutional part of the statute and a jury returned death. In People v. John Taylor New York's highest Court strikes down any hope that the statute might somehow be saved. “[I]t is not within our power to save the statute.. . . The Legislature, mindful of our State’s due process protections, may reenact a sentencing statute" free of its constitutional defects that is free of coercion and cognizant of a jury’s need to know the consequences of its choice.”

Despite Young & Taylor, lethal injection related litigation still dominates the headlines. October was the first month in some time in which, thanks to lethal injection litigators, an execution did not occur. In California a trial court has tentatively held that the state's new lethal injection protocol violates that state's administrative procedures act (order here). In Ohio, the state Supreme Court has denied a writ of prohibition that had been sought to prevent a pretrial lethal injection challenge. In Florida the state Supreme Court in Schwab v. Florida, and a companion case Lightbourne v. McCollum,ruled that Florida’s procedure for carrying out execution by lethal injection is constitutional. The Alabama Supreme Court on Wednesday despite the near uniformity of legal opinion that all nonconsensual execution will be stayed until at least February 2008, reset the execution by lethal injection of Tommy Douglas Arthur for Dec. 6. Boalt Hall's Death Penalty Lethal Injection Clearinghouse has more.

In other news, New York's Capital Defender Office is preparing to close its doors in light of Taylor, the first such office to put itself out of business in sometime, saving taxpayers millions. Damien Echols of the West Memphis III has purportedly been cleared by recent DNA testing according to press accounts; stay tuned.

In new scholarship, John Blume has a new article out on SSRN entitled It’s Like Déjà Vu All Over Again: Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel. Rachel King in a recently published law review article entitled, No Due Process: How the Death Penalty Violates the Constitutional, 16 B.U. Pub. Int. L.J. 195 (2007), looks at the other set of family members left grieving, those of the condemned

Looking ahead, the Seventh Circuit's Eric Holmes v. Buss, Judge Posner writing, raises some very interesting questions about competency for purposes to proceed with federal habeas corpus litigation. The Sixth Circuit in Alfred Morales v. Mitchell vacates a death sentence as "[i]n sum, the social history report, records, and testimony proffered by Morales’s habeas counsel demonstrate conclusively that Morales’s trial attorney failed adequately to investigate and, thus, was unable to present to the jury compelling mitigating evidence that was readily available at the time of trial." Finally, the Louisiana Supreme Court in State v. Robert Coleman vacates in light of Batson as the trial prosecutor conceded race was a reason for striking a juror.

Please note because the email is going out late, that on Monday of this week the U.S. Supreme Court issued Allen v. Daniel Siebert holding that Siebert was barred from receiving federal court review of his habeas corpus petition challenging his conviction because the habeas petition was filed too late. Note too that today, the en banc Eleventh Circuit issued an order in the lethal injection challenge by the same name, Allen v. Daniel Siebert, which sent the case back to the original three-judge panel to consider the issues raised in Alabama’s petition for rehearing en banc. Finally, the three-judge panel also issued a revised decision that rejected all but one aspect of Siebert’s challenge to Alabama’s imposition of the death penalty, the as applied challenge. The SCOTUS on Monday also granted cert in Arave v. Hoffman (07-110)(Relief granted below on IAC as trial counsel misled client in to believing hey were death eligible if convicted).

Please also note, we are no longer considering execution dates scheduled before February 15, 2008 as probable in light of Baze v. Rees and have suspended the Weekly's "pending execution" data until then.

As always thanks for reading. - k

Week of October 22, 2007 – In Favor of Life or Liberty

State v. Robert Young, NO. 29,467 (N.M. 10/25/2007) “Defense counsels’ compensation is inadequate under the facts of this case, violating defendants’ Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases.” (Note: no date is listed on the slip op.)

People v. John Taylor, 2007 N.Y. LEXIS 2916 (NY 10/23/2007) Taylor was sentenced under a facially unconstitutional statute, and “it is not within our power to save the statute.. . . The Legislature, mindful of our State’s due process protections, may reenact a sentencing statute that is free of coercion and cognizant of a jury’s need to know the consequences of its choice.”

Daniel Lee Siebert v. Allen, 2007 U.S. App. LEXIS 24802 (11th 10/24/2007) Stay granted in light of Baze v. Rees (Note: En banc the stay & opinion was subsequently vacated, then sua sponte the en banc Court reinstated the stay.

Curtis Osborne v. Hall, S08W0267 (GA 10/22/2007) Stay granted in light of Baze v. Rees

Week of October 22, 2007 – In Favor of Death

Earl Wesley Berry v. Epps, 2007 U.S. App. LEXIS 25219 (5th Cir 10/26/2007) Despite the Supreme Court’s grant of cert in Baze v. Rees, “[w]ell-established fifth circuit [sic] precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a State’s method of carrying it out. Such claims are dilatory and should be dismissed.” Stay subsequently granted by the SCOTUS.

Arthur Barnhill v. State, 2007 Fla. LEXIS 1954 (FL 10/25/2007) Relief denied on postconviction appeal/habeas corpus claims, relating to: “(1) various allegations of ineffective assistance of counsel; 2) whether rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar and Florida Rule of Criminal Procedure 3.575 violate his constitutional right of equal protection and deny him adequate assistance of counsel; 3) whether lethal injection is cruel and unusual punishment; 4) erroneous jury instructions; 5) cumulative errors; and 6) his incompetency at time of execution.” [via Findlaw]

William Kelley v. State, 2007 Fla. LEXIS 1951 (FL 10/25/2007) Relief denied on three claims. “First, Kelley claims that the trial court erred in denying his prehearing discovery request. Second, Kelley claims that he was denied due process due to inadequate notice of the evidentiary hearing. Third, he asserts that the trial court erred in finding that the DNA evidence no longer exists.”
Errol Duke Moses v. Branker, 2007 U.S. App. LEXIS 24750 (4th Cir 10/23/2007) “Moses claims that his trial counsel failed to investigate readily available mitigation evidence. The district court denied the petition, and we affirm. The ineffective assistance claim advanced in the federal petition was not exhausted in state court, and Moses has not established the cause necessary to excuse the procedural default.”

Week of October 22, 2007 – Other

State v. Siler, 2007 Ohio LEXIS 2588 (Ohio 10/25/2007) Jury override to life. Child’s statements to police detective were testimonial under the primary purpose test and therefore the Right to Confrontation is implicated.

Gollehon v. Mahoney, 2007 U.S. App. LEXIS 25269 (9th Cir 10/25/2007) State court did not violate habeas petitioner’s rights under the Sixth and Fourteenth Amendments by permitting a death qualified jury even though the jury had no role in fixing the death penalty because the exclusion of conscientious jurors did not create a panel that lacked a fair cross-section or was improperly slanted in favor of conviction

(Advance Sheet Week of October 29, 2007) – In Favor of Life or Liberty

Alfred Morales v. Mitchell, 2007 U.S. App. LEXIS 25582 (6th Cir 11/2/2007) Death sentence vacated in light of ineffective assistance of counsel in the penalty phase. “In sum, the social history report, records, and testimony proffered by Morales’s habeas counsel demonstrate conclusively that Morales’s trial attorney failed adequately to investigate and, thus, was unable to present to the jury compelling mitigating evidence that was readily available at the time of trial.”

Eric Holmes v. Buss, 2007 U.S. App. LEXIS 25361 (7th Cir 10/30/2007) Remand ordered to determine competency for purposes to proceed with federal habeas corpus litigation. (oral argument)

State v. Robert Coleman, 2007 La. LEXIS 2392 (LA 11/2/2007) “[T]he State’s articulated reasons with respect to the peremptory strike of prospective juror, Mason Miller was entirely pretextual and inadequate. We conclude that the manner in which the State exercised its peremptory challenges in this case, based on race, resulted in a violation of defendant’s constitutional rights and find this error raises serious federal constitutional equal protection issues affecting the rights of both the defendant and the excused venire-member. This error is a structural one, affecting the framework within which the trial proceeded.

(Advance Sheet Week of October 29, 2007) – In Favor of Death

Jesse Cummings v. Sirmon, 2007 U.S. App. LEXIS 25417 (10th Cir 10/30/2007) Relief denied on claims relating to: “1) ineffective assistance of trial and appellate counsel; 2) admission of uncorroborated testimony of accomplices; 3) misjoinder; and 4) the refusal of the trial court to instruct the jury on the credibility of accomplice testimony/” [via Findlaw]

Jonathan Lawrence v. State, 2007 Fla. LEXIS 2012 (FL 11/1/2007) Relief denied on “eight claims: (1) his constitutional rights were violated because his guilty plea was not knowing and voluntary; (2) his convictions and death sentence are unreliable because no adversarial testing occurred during the pretrial and guilt-phase proceedings due to the ineffective assistance of his counsel; (3) his sentence is unreliable because inadequate testing occurred during the penalty phase due to ineffective assistance of counsel; (4) the Florida death penalty sentencing statute is unconstitutional as applied; (5) Lawrence’s constitutional rights were violated because he was denied the opportunity to interview jurors; (6) execution by electrocution or lethal injection is cruel or unusual punishment; (7) Lawrence may be incompetent at the time of execution; and (8) the cumulative effect of the procedural and substantive errors deprived Lawrence of a fundamentally fair trial.”

Ian Lightbourne v. McCollum, 2007 Fla. LEXIS 2013 (FL 11/1/2007) In a decision that has many people scratching their heads as to why not wait until the U.S. Supreme Court decides Baze v. Rees, the Florida Supreme Court holds “Lightbourne has failed to show that Florida’s current lethal injection procedures, as actually administered through the DOC, are constitutionally defective in violation of the Eighth Amendment of the United States Constitution.”

Mark Schwab v. State, 2007 Fla. LEXIS 2011 (FL 11/1/2007) Relief denied on appeal in this second postconviction petition (with an execution date) on claims relating to: “(1) Florida’s lethal injection method of execution violates the Eighth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Florida Constitution; and (2) newly discovered evidence reveals that Schwab suffers from neurological brain impairment, which makes his sentence of death constitutionally unreliable.”
Michael Jerome Lewis v. State, 2007 Ala. Crim. App. LEXIS 201 (Ala Crim App 11/2/2007) Please check back for our summary on this 100+ page denial of relief.

(Advance Sheet Week of October 29, 2007) – Other

Ellis Louis Mashburn, Jr. v. State, 2007 Ala. Crim. App. LEXIS 199 (Ala Crim App 11/2/2007) Remand ordered as “the trial court’s written sentencing order does not comply with the requirements of § 13A-5-47(d), Ala. Code 1975,”

David Autry v. State, 2007 Okla. Crim. App. LEXIS 40 (Okla Crim App 11/2/2007) Contempt action arising from a capital retrial that ended in a mistrial. The trial court excluded mention of certain potentially exculpatory evidence pretrial. Counsel indicated that he believed the trial court was erroneous (and the OCCA suggests in dicta the trial court was indeed wrong). Counsel then mentions the evidence in opening, later claiming the State opened the door. Even if the trial court was wrong, counsel still had an obligation to follow that order. $500 fine affirmed, costs above that for jurors dismissed as not authorized by statute.

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

State v. Robert Young, NO. 29,467 (N.M. 10/25/2007) "Defense counsels’ compensation is inadequate under the facts of this case, violating defendants’ Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases." (Note: no date is listed on the slip op.) From the daily blog:

We on the defense side love to complain about getting shorted funds when doing a case. Capital cases are not only expensive, they are astronomically so. Although the Nichols case in Atlanta has been grabbing much of the headlines on the topic, the New Mexico Supreme Court’s recent opinion in State v. Robert Young, NO. 29,467 (N.M. 10/25/2007), gives a solid examination of the subject with numerous great quotes.

The issue in this case is whether indigent defendants accused of capital crimes are unconstitutionally deprived of effective assistance of counsel when their counsel are inadequately compensated. Under the specific facts and circumstances of this case, we find that counsel for the defendants are inadequately compensated, and as such defendants are deprived of the effective assistance of counsel. Defendants have asked us to consider three different remedies: (1) allow their attorneys to withdraw; (2) order the State to compensate counsel at a reasonable hourly rate; or (3) dismiss the death penalty.

For those unfamiliar with the case, the AP notes:

Reis Lopez and Robert Young have been charged with killing Ralph Garcia, who was a guard at a privately operated prison in Santa Rosa. The state houses inmates in the prison.

Prosecutors brought charges against 15 inmates but sought the death penalty against three. The third defendant, David Sanchez, is not part of the challenge decided by the Supreme Court.. . .

The attorney general’s office and the state Public Defender Department had argued that enough money had been allocated for an adequate defense of the inmates. The department is part of Gov. Bill Richardson’s administration and provides defense lawyers — often contracting with them — for criminal defendants who can’t afford to hire an attorney.. . .

Fees for the defense lawyers were revised several times, according to the court, and contract amendments were offered that provided for a total of $46,500 for each main attorney through trial and $23,000 for each “second-chair” attorney. The defense lawyers did not sign the contract amendments, however. In 2005, the Legislature provided an additional $100,000 for each of the three death penalty defense teams. An extra $200,000 per defense team had been requested from the Legislature, but lawmakers trimmed the amount.

About $870,000 also had been provided by lawmakers but defense lawyers say that should go only to pay for expert witnesses.

In addressing the merits the Court in the case.

As a general rule, the gravity of the death penalty and its requisite heightened scrutiny require a significantly greater degree of skill and experience on the part of defense counsel than is required in a noncapital case. See ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 1.1, History of Guideline (rev. ed. 2003), in 31 Hofstra L. Rev. 913, 921 (2004) [hereinafter ABA Guidelines]. Capital defense teams must spend more time preparing for and trying a capital case than for non-capital cases. See State Bar of N.M., Task Force to Study the Administration of the Death Penalty in New Mexico, Final Report 6 (2003) [hereinafter New Mexico Task Force Final Report] (discussing a study of capital defense in federal courts and noting the “unique strains” placed on capital defense counsel, such as spending more time with a capital client, “unique and intensive training,” and lengthy, complex jury selection). Therefore, it is indisputable that the prosecution and defense of capital murder cases are substantially more expensive than in non-capital cases.

Yet the financial burden on attorneys who contract to defend capital cases is not measured simply by the amount of time devoted to defending such cases. “[T]he demands of handling a death penalty case frequently preclude acceptance of other employment while the case is being litigated.” See id. Unlike the public defenders employed by the PD, capital defense attorneys must pay overhead. Finally, because representation in capital cases requires specialized skills, intensive training relating to substantive areas of mitigation, forensic science, and practical instruction in advocacy skills is required.

Because of the extraordinary demands on capital defense attorneys, ABA Guidelines, Guideline 8.1 Commentary, in 31 Hofstra L. Rev. at 979, the American Bar Association has condemned flat fees, caps on compensation, and lump-sum contracts in death penalty cases. Id., Guideline 9.1(B)(1), in 31 Hofstra L. Rev. at 981. Rather than a flat fee or a capped rate, the ABA Guidelines stress that “[c]ounsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation.” Id., Guideline 9.1(B), in 31 Hofstra L. Rev. at 981.

The Court’s conclusion:

Defense counsels’ compensation is inadequate under the facts of this case, violating defendants’ Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases.

Score one for the indigent defense bar.

People v. John Taylor, 2007 N.Y. LEXIS 2916 (NY 10/23/2007) Taylor was sentenced under a facially unconstitutional statute, and “it is not within our power to save the statute.. . . The Legislature, mindful of our State’s due process protections, may reenact a sentencing statute that is free of coercion and cognizant of a jury’s need to know the consequences of its choice.” From the daily blog:

The Court of Appeals of New York’s decision in People v. John Taylor, is rather straightforward: stare decisis matters, Taylor was sentenced under a facially unconstitutional statute, and “it is not within our power to save the statute.. . . The Legislature, mindful of our State’s due process protections, may reenact a sentencing statute that is free of coercion and cognizant of a jury’s need to know the consequences of its choice.”

The New York Times provides this story that story begins,

Closing a chapter on one of the bloodiest crimes in recent New York City history, the state’s highest court today tossed out the death sentence imposed on a man for his role in the murders of five workers at a Wendy’s restaurant in Queens seven years ago. The man, John B. Taylor, was the last remaining inmate on New York State’s death row. The divided decision by the Court of Appeals not only ordered the trial court to resentence Mr. Taylor — almost certainly to life in prison without parole — but it also reaffirmed a landmark decision in 2004 that effectively invalidated the state’s death penalty law.

Congrats to Kevin Doyle, as well as, Barry Fisher and Susan Salomon.

SMALL PRINT
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*Execution information derived from Rick Halperin, DPIC & media accounts
**Week at a Glance is the work of the Habeas Assistant & Training Project & Wendy Peoples.