One opinion of note is had in this edition, Fred Spicer, Jr. v. State,. The Mississippi Supreme Court in Spicer orders an evidentiary hearing on whether trial counsel was "ineffective during the penalty phase of the trial for failure to investigate and introduce mitigation evidence of Spicer’s 'social history'."  The story is an old one, counsel's theory of mitigation and presentation of mitigation evidence were substantially hampered by the lack of an adequate investigation of the client's background.

In news from the lethal injection wars, the Supreme Court  stayed the execution of Mark Schwab following a contentious fight in both the state and federal courts. AP report's a Texas state judge has refused to set an execution date for a volunteer until the Supreme Court rules in Baze.  Missouri's former dyslexic doctor of death has helping in federal executions.

As always thanks for reading. - k

Execution Information

SCOTUS

Week of  November 5, 2007 –  In Favor of Life or Liberty

• Fred Spicer, Jr. v. State, 2007 Miss. LEXIS 619  (Miss 11/8/2007) "Spicer should be granted leave to proceed in the trial court for an evidentiary hearing, limited to Spicer’s allegation that his attorneys were ineffective during the penalty phase of the trial for failure to investigate and introduce mitigation evidence of Spicer’s 'social history'."

• Daniel Lee Siebert v. Allen, 2007 U.S. App. LEXIS 25718 (11th Cir 11/5/2007) (en banc order) Stay granted on rehearing on an "as applied" lethal injection challenge.

Week of  November 5, 2007 –  In Favor of Death

• George Hodges v. Attorney General of Florida, 2007 U.S. App. LEXIS 26138 (11th Cir 11/9/2007)   Relief denied on claims relating to admissibility of hearsay evidence in the penalty phase in light of the Confrontation Clause and "his constitutional right to be present at all the critical stages of his trial was violated because he was absent from the courtroom at the end of the jury phase of the sentence stage." On a claim for which a COA was not issued that panel holds a panel cannot use its "Rule 27-1(g) power to overrule [an] order denying a COA on Ground II, grant a certificate on that ground, and proceed to decide the matter on the merits as though the COA order had permitted it all along."

• In Re: Mark Dean Schwab, 07-15258 (11th Cir 11/7/2007) Habeas petition asserting lethal injection challenges deemed successive.

• Calvin Letroy Hunter v. State, 2007 Tex. Crim. App. LEXIS 1557 (Tex. Crim. App. 11/7/2007) Relief denied on: (1) a substantial mental retardation claim; (2) entitlement "to a pretrial determination of mental retardation;"  (3) failure to provide a definition of "society" within the future-dangerousness special issue; (4) sufficiency of the evidence supporting the jury's determination regarding future dangerousness; (5) declining to instruct the jury at punishment that they could consider evidence of appellant's extraneous offenses only if they found beyond a reasonable doubt that he committed those offenses; and (6) arbitrariness of the Texas special questions regime.

• James Rogers v. State , 2007 Ga. LEXIS 838 (Ga 11/5/2007) Relief denied, most notably, that although some tests showed the defendant is mentally retarded, the six tests administered, as a whole, support a finding that Rogers, in fact, is not retarded. "“Expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, do not indicate mental retardation."

• State v. Zola Agona Azania, 2007 Ind. LEXIS 997 (Ind 11/7/2007)  Having previously twice vacated Azania's death sentence, the Court now holds -- on pre-trial appeal --"Azania should be re-sentenced under the post-2002 death penalty statute, but without the availability of LWOP."

• Benjamin Ritchie v. State, 2007 Ind. LEXIS 996 (Ind 11/8/2007)  Relief denied.  Nonprocedurally barred issued denied relief include:"(1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction hearing."  Barred issues appear to include: " (1) the trial court improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventy-five years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the jury a special verdict form on the weighing element; and (3) the trial court failed to issue a written sentencing order."

• State v. Christopher Goss, 2007 N.C. LEXIS 1106 (NC 11/9/2007)  Relief denied on various claims including: "reopening of voir ire of two prospective jurors based upon the trial court's finding that both had provided incorrect statements in response to the State's initial voir dire questioning;" the "trial court barring [Goss ]from consulting with counsel during his mid-trial psychiatric evaluation by the State's mental health expert; "[in]effective assistance of counsel were denied when defense counsel stated in closing arguments that '[defendant's] statement alone guarantees he'll serve a substantial amount of time in prison and face the terrible consequences of a first degree murder conviction'." and "the trial court should have intervened ex mero motu during the State's closing argument."

• Comm. v. Leslie Charles X. Beasley, 2007 Pa. LEXIS 2381 (Penn 11/9/2007) (single justice)  On motion to recuse, arguably Pennsylvania's most disliked jurist refuses to recuse himself in a caustic opinion blasting counsel for the condemned by name.

(Advance Sheet Week of  November 12, 2007) –  In Favor of Life or Liberty

• Ex parte Gregory VanAlstyne, 2007.Tex. Crim. App. LEXIS 1631 (Tex. Crim App. 11/14/2007) Relief granted on MR related claims over a pointed dissent.

(Advance Sheet Week of  November 12, 2007) –  In Favor of Death

• Jeffrey Meyer v. Branker, 2007 U.S. App. LEXIS 26335 (4th Cir 11/13/2007) Relief denied over whether plea was knowing and voluntary and related IAC allegations, and "failure to present the available mental health mitigation testimony"

• Khristian Oliver v. Quarterman, 2007 U.S. App. LEXIS 26614 (5th Cir 11/16/2007) (unpublished) "After denying habeas relief on all claims, the district court granted Oliver a certificate of appealability ("COA") on two issues: (1) whether he suffered a denial of his right to an impartial jury under the sixth Amendment when jurors consulted Biblical scripture that called for death as the punishment for murder, and (2) whether Oliver suffered a denial of his right  [*2]  to a punishment determination based upon discretion carefully guided by law under the Eighth Amendment because several jurors consulted the Bible during deliberations. Oliver appeals the denial of a COA for three of his claims and the denial of habeas relief for the claims in which he received a COA. He also seeks either a stay and abatement of the federal proceeding so that he may go back to state court for an evidentiary hearing or a federal evidentiary hearing regarding his Bible-related claims. After reviewing the record, we DENY Oliver's request for a COA on his three additional claims. We also DENY Oliver's request for a stay and abatement for a state hearing and his request for a federal evidentiary hearing on his Bible-related claims. Finally, we set this case for oral argument regarding the remaining claims and direct the parties to focus on specific issues, as discussed below."

• Reginald Perkins v. Quarterman, 2007 U.S. App. LEXIS 26523 (5th Cir 11/15/2007) (unpublished) COA denied on "(1) whether his death sentence is barred by the Eighth Amendment because he is mentally retarded; (2) whether trial counsel rendered ineffective assistance by failing to investigate and present evidence that he is mentally retarded; (3) whether trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at the punishment phase of his trial; (4) whether the Texas sentencing scheme unconstitutionally places the burden of proof for mitigation on the criminal defendant; and (5) whether his death sentence is unconstitutional
  because he is actually innocent."
  

• Mark Schwab v.  Sec. Dep't of Corrections, 2007 U.S. App. LEXIS 26467 (11th Cir 11/15/2007) Stay entered by district court on lethal injection related issues lifted circuit precedent does not permit general claims relating to lethal claim.  A Baze - related stay subsequently imposed by the SCOTUS.
  

• Anthony Wainwright vs. Sec. Dep't of Corrections, 2007 U.S. App. LEXIS 26550 (11th Cir 11/13/2007) Petition held time barred. and efforts at tolling (attorney error) held not sufficient to permit tolling.
  

• In re Ronald Lee Bell, No.  S105569 (Cal 11/15/2007) On order to show cause, the record fails to establish either that petitioner was actually innocent of the crimes for which he was convicted or that his convictions were tainted by false testimony.  Almost thirty years after the initial trial and the matter is not quite yet out of the state court system.
  

• People v. Edward Morgan, 2007 Cal. LEXIS 12821 (Cal 11/15/2007) "A conviction and death sentence for first degree murder, kidnapping, and unlawful penetration with a foreign object is reversed in part only as to a simple kidnapping conviction and a kidnapping-murder special circumstance. The judgment is otherwise affirmed on automatic appeal over claims of error regarding: 1) the alleged vagueness of the asportation element of simple kidnapping; 2) the sufficiency of the evidence; 3) murder instructions; 4) merger of unlawful penetration with a foreign object with the resulting homicide; 5) reasonable doubt and related jury instructions; 6) consciousness of guilt jury instructions; 7) the validity of the statute enacting the unlawful penetration special circumstance; 8) the propriety of alleging multiple felony-murder special circumstances; 9) evidence of unadjudicated criminal activity; 10) instruction on appropriate use of victim impact evidence; 11) the constitutionality of certain instructions; 12) the constitutionality of the death penalty statute; 13) international law; and 14) cumulative error." [via Findlaw]]
  

• Jason Stephens v. State. 2007 Fla. LEXIS 2171 (FL 11/15/2007) Relief denied on postconviction appeals claims including: "(1) trial counsel rendered ineffective assistance during the penalty phase of trial; (2) trial counsel rendered ineffective assistance during the guilt phase of trial; (3) trial counsel was operating under a conflict of interest; (4) trial counsel rendered ineffective assistance by failing to pursue a motion requesting a jury interview; and (5) the trial court erred by instructing the jury regarding aggravating factors that did not apply." Habeas relief denied on claims relating to: "that (1) appellate counsel was ineffective for failing to raise a prosecutorial misconduct claim; (2) appellate counsel was ineffective for failing to argue that instructing the jury on the HAC aggravator was fundamental error; (3) appellate counsel was ineffective for failing to argue that instructing the jury on the pecuniary gain aggravator was fundamental error; (4) the murder “in the course of a felony” aggravator is unconstitutional, and appellate counsel was ineffective for failing to raise this claim; (5) the aggravating circumstance of “the victim of the capital felony was a person less than 12 years of age” is unconstitutional, and appellate counsel was ineffective for failing to raise this claim; (6) the trial court failed to conduct an inquiry under Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973); and (7) the execution of Stephens would constitute cruel and unusual punishment."

• Seburt Nelson Connor v. State, 2007 Fla. LEXIS 2173 (FL 11/15/2007) "Denial of petitioner's motion to vacate his conviction of first-degree murder and sentence of death and a petition for habeas relief are affirmed and denied, respectively, over claims of error regarding: 1) ineffective assistance of counsel; 2) erroneous admission of evidence depriving petitioner of his right to confrontation under Crawford; 3) ex parte conduct by the trial court; 4) a mental retardation claim; 5) summary denial of postconviction claims; 6) cumulative error; 7) a Ring and Apprendi claim; and 8) ineffective assistance of appellate counsel. "[via Findlaw]]

• Steven Evans v. State, 2007 Fla. LEXIS 2174 (FL 11/15/2007) Postconviction appeal denied on claims relating to: "(1) it is cruel and unusual punishment to execute a physically handicapped and mentally impaired individual; (2) counsel rendered ineffective assistance by failing to file a motion to suppress all of the evidence seized after his arrest on a faulty arrest warrant; (3) counsel rendered ineffective assistance by failing to prepare Evans to testify at trial, by failing to investigate the circumstances of his escape case, and by failing to mitigate the escape offense by presenting this evidence at trial; (4) counsel rendered ineffective assistance by failing to investigate and challenge forensic evidence and inculpatory admissions made by Evans and others and by failing to impeach various witnesses at trial; (5) counsel rendered ineffective assistance by failing to investigate and present the testimony of alibi witnesses; (6) counsel rendered ineffective assistance by failing to investigate mental state defenses and by failing to give vital information to the mental health experts; and (7) the cumulative error deprived him of a fair trial. We address each claim in turn below." Habeas relief denied on: "(1) it is unconstitutional to execute a physically handicapped and mentally ill individual; (2) Florida’s death penalty statute is unconstitutional under Apprendi v. New Jersey and Ring v. Arizona; (3) the judge’s finding of the “under a sentence of imprisonment” aggravating circumstance violates the requirements of Ring; (4) he is incompetent to be executed; and (5) appellate counsel rendered ineffective assistance for failing to raise an issue relating to the testimony of the medical examiner. We address each claim in turn below."
  

(Advance Sheet Week of  November 12, 2007) –  notable

• Wilbert Hutson v. Quarterman, 2007 U.S. App. LEXIS 26385 (5th Cir 11/14/2007) "At issue is whether a post-conviction motion pursuant to Texas Code of Criminal Procedure article 64.01 for DNA testing qualifies as "other collateral review" and thus tolls the Antiterrorism and Effective Death Penalty Act's (AEDPA's) one-year limitations period under 28 U.S.C. 2244(d)(1). We conclude that it does."

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

Fred Spicer, Jr. v. State, 2007 Miss. LEXIS 619  (Miss 11/8/2007) "Spicer should be granted leave to proceed in the trial court for an evidentiary hearing, limited to Spicer’s allegation that his attorneys were ineffective during the penalty phase of the trial for failure to investigate and introduce mitigation evidence of Spicer’s 'social history'."  Via CapDefNet.

On November 8, 2007, the Mississippi Supreme Court ruled that Fred Spicer, Jr., was entitled to an evidentiary hearing on his claim that trial counsel were ineffective for failing to investigate and present mitigating evidence of Spicer´s character and childhood history at the penalty phase of Spicer´s trial. Spicer v. State, ___ So.2d ___, 2007 WL 3292839 (Miss. Nov. 8, 2007). At the penalty phase, the defense had called only two witnesses. The first, Spicer´s mother, was asked a total of thirteen questions, six of which sought to identify the witness, her address, and her relationship to Spicer, and to verify that she knew the circumstances for the trial. Two questions called for her personal opinion on whether Spicer should receive the death penalty. The State successfully objected to both of those questions. The remaining five questions were directed at whether Spicer´s mother knew her son had been in prison in Rhode Island for eleven years and whether Spicer had paid his debt to society for the past crimes. The second witness was Spicer´s aunt who was asked a total of ten questions. As with the first witness, six questions sought to identify the witness, her address, and her relationship to Spicer. The next four questions simply established that the aunt knew Spicer spent eleven years in prison and that he paid his debt to society on the previous convictions. In his petition for post-conviction relief, Spicer alleged that had his defense counsel investigated, they would have uncovered at least fifteen substantial witnesses who could have and would have provided mitigating evidence concerning Spicer. Many of these witnesses stated in affidavits that Spicer´s counsel never attempted to contact them even though they were willing to testify. Spicer’s mother and aunt, who did testify, stated that they were never questioned about Spicer´s childhood, education, drug habits, or other issues related to his character and childhood history. Noting that the present record made it difficult to ascertain trial counsel´s reasons for not presenting the mitigating evidence contained in the affidavits, the Mississippi Supreme Court concluded that an evidentiary hearing was required.

The court summarily rejected Spicer’s other claims: (1) IAC for failing to present evidence of mental impairment in mitigation; (2) IAC for failing to investigate as to the guilt phase; (3) IAC for failing to adequately defend Spicer; (4) IAC for failing to object to alleged prosecutorial misconduct; (5) cumulative impact of counsel’s deficiencies at both phases of the trial; (6) due process violation from jury view of Spicer in shackles; (7) juror misconduct; (8) cumulative error; (9) Mississippi’s lethal injection protocol is unconstitutional; (10) IAC at trial and on appeal for failing to challenge lethal injection; (11) use of pavulon in execution protocol violates First Amendment rights; and (12) Spicer is exempt from execution due to mental retardation. The court found, among other things, that the lethal injection challenge was procedurally barred because it could have been, but was not, raised on direct appeal. As for Spicer’s Atkins claim, his expert submission was found inadequate because it contained no opinion about malingering, something Spicer had been accused of in the past, and it did not include an express opinion made to a reasonable degree of medical certainty that Spicer is mentally retarded.