Leading off this edition are Roy Lee McDuffie v. State and Britt v. State, et al.

The Florida Supreme Court in McDuffie finds the trial court below made repeated and injurious error that requires a new trial.  First the, trial court erred in excluding a defense witness who would have testified as to why McDuffie could have had the amount of money found in his possession for reasons other than as the proceeds of a robbery. Second, the trial court erred in limiting cross-examination of the State's witnesses as to the presence of alternative suspects proffered by the Defendant at the crime scene shortly before the murders.  Finally, the trial court erred in admitting extraneous evidence, in the form of contents of voice mails, to show McDuffie's financial situation.

The Georgia Supreme Court in Britt, as noted last week, weighs in on funding capital cases.  The Court in one opinion addresses the issues raised in the three cases .Britt & Ramseur are criminal contempt cases where counsel refused to proceed in light of a potential conflict of interest relating to what in their mind was insufficient funding; contempt affirmed. In Georgia Public Defender Standards Council, the Court holds, the statewide public defender system does not have to release the spending records as revelation of funding in other cases would potentially reveal trial strategy in those cases.

In the news, a fascinating piece is making the rounds by David Bright, “[j]urors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence,” a recent press release about his work say. The Arkansas News Bureau recently carried a report by Jason Wiest, "Group will petition for committee on death penalty if not created by Beebe." Christopher Hill's latest dispatch at Huffington Post is a must read on lethal injection.  Finally, the Baltimore Sun is raising the possibility that Maryland may be the next state, behind New Jersey, in seriously attempting to legislatively repeal the state's death penalty.

Looking ahead, on Tuesday the Supreme Court will hear oral argument in Snyder v. Louisiana.  The SCOTUS Wiki notes Snyder is "about race as an issue in jury selection. But it looms larger as a potentially significant inquiry into the use of implied racial imagery to influence not only who sits on a jury but how to turn that jury toward a guilty verdict."  The State later urged an all-white jury to sentence Snyder to death so he wouldn't "get away with it" like O.J. Simpson.

Also this week NJ will have several key votes on repealing the Garden State's death penalty.  The daily blog will be updating all week, including video coverage.  New Jersey is believed to be likely to repeal the death penalty, if at all, by January 9, 2007.

Finally this week, briefs are due apparently in United States v. Friend.  A jury returned a death recommendation for Friend, but the federal district court has yet to sentence her. Press accounts note "Kevin McNally, one of Friend’s lawyers . .. .  recently completed an analysis of more than 1,000 federal death penalty cases. Only 10 percent of the victims were white women, he said. When those cases go to a jury, half of them result in a death sentence, he said. The unfair application of the death penalty depending on the race and sex of the victim makes it unconstitutional, he argued."

Looking ahead, no favorable decisions are yet noted.

Execution Information

• Roy Lee McDuffie v. State, 2007 Fla. LEXIS 2199 (Fl 11/21/2007) "We conclude that the errors that occurred in this case, when viewed cumulatively, cannot be considered harmless beyond a reasonable doubt. By excluding defense witness Wiggins, the trial court deprived the defense of the only non-family member who could testify to the loans made to McDuffie. Further, the failure to allow full cross-examination of the witnesses who were actually on the scene at or near the times of the crimes prevented the defense from further casting doubt on the reliability of the Matias eyewitness identification. Lastly, the effect on the jury created by the violent and vulgar contents of the voice mail cannot be underestimated. With just two sentences, an image of McDuffie as a potentially violent human being capable of wishing death on another—one who is not even a victim in the case—emerged. For all these reasons, we conclude that the State cannot establish that the errors were harmless beyond a reasonable doubt."
  

• Britt v. State, Georgia Public Defender Standards Council v. Sanders et al, & Ramseur v. State, 2007 Ga. LEXIS 847 (Ga 11/21/2007)  The core holding of the opinion is that the statewide public defender system does not have to release the spending records of unrelated capital cases as revelation of funding in other cases would potentially reveal trial strategy in those cases. As to Britt & Ramseur, litigation of the claims against GPDSC, even if it created a potential conflict of interest, did not permit trial counsel to refuse to proceed to trial when ordered by the court below, rather counsel should have sought an interlocutory appeal; criminal contempt affirmed.

• Eric Lawrence Call. v.  Branker, 2007 U.S. App. LEXIS 26858 (4th Cir 2007) (unpublished) Relief denied on claims arising from a resentencing hearing as to "whether Call's rights to effective assistance of counsel under the Sixth Amendment were violated by trial counsel's failure to object to Agent Cabe's testimony at the resentencing hearing on Confrontation Clause grounds and by appellate counsel's failure to raise the Confrontation Clause issue on direct appeal to the North Carolina Supreme Court as plain error."

• State v. Dean Kilgore, 2007 Fla. LEXIS 2201 (Fl 11/21/2007) “[W]e hold that while Kilgore is entitled to prosecute a collateral claim attacking a prior conviction utilized as an aggravator in his capital case, he is not entitled to representation by the same counsel appointed to represent him in the capital case.” This is a matter of state statutory construction so, fortunately, its precedential value is confined to the courts in the Sunshine State.
  

• Gerald Ross Pizzuto v. State, 2007 Ida. LEXIS 209 (Ida 11/23/2007)  Relief denied on claims relating to: "1. Did the district court err   in denying Pizzuto's motion for disqualification without cause? 2. Did the district court err in denying Pizzuto's motion for disqualification for cause? 3. Did the district court err in summarily dismissing Pizzuto's petition on the ground that it was untimely? 4. Did the district court err in summarily dismissing Pizzuto's petition on the ground that he had failed to raise a genuine issue of material fact supporting his claim of mental retardation? 5. Did the district court err in dismissing Pizzuto's petition without permitting further testing? 6. Did the district court deny Pizzuto the equal protection of the law by failing to hold an evidentiary hearing on the issue of mental retardation? 7. Does Idaho Code § 19-2515A violate the Eighth and Fourteenth Amendments to the Constitution of the United States?"
  

• Jaimi Dean Charboneau v. State,  2007 Ida. LEXIS 204 (Ida 11/21/2007) Petition alleging suppression of evidence dismissed as time barred.
  

• In re Pers. Restraint of Elmore, 2007 Wash. LEXIS 872 (Wash 11/21/2007) (dissent)  Relief denied, most notably, on " counsel's failure to competently investigate Mr. Elmore's mental deficiencies, counsel's failure to attempt to negotiate a plea bargain with the prosecutor, and counsel's affirmative agreement to Mr. Elmore appearing in shackles before the jury collectively deprived Mr. Elmore of effective assistance  of counsel in violation of his constitutional rights."

• Comm.  v. Christopher Williams,  2007 Pa. LEXIS 2440 (Penn 11/26/2007) In an opinion that leaves you scratching your head if you don't practice in Pennsylvania (and I don't practice there), Commonwealth's appeal from a postconviction grant of relief reversed on claims relating to admission of inadmissible evidence.  Vacateur of state corrupt organization act conviction affirmed.  Remand ordered on remaining claims for a more thorough analysis which the trial court had avoided in light of the grant of relief previously noted. Note: this matter leads as it might get raised to notable next week.  Due to a very nuanced state law issue on which the case turns, it will need some more time to address.

• Donald Beaty v. Shriro, 2007 U.S. App. LEXIS 27464 (9th Cir 11/28/2007) "Statements made in a jail sponsored therapy session were not involuntary nor were part of a confidentiality agreement. The petitioner here was a member of a group therapy session where, in response to comments directed at him by other inmate participants, he made statements to the supervising treating doctor about how “he didn’t mean to kill” the young victim. The 9th affirmed the district court’s denial of relief on this ground (the matter was a remand for this purpose)." (via Ninth Circuit Blog)

• People v. Martin Mendoza, 2007 Cal. LEXIS 13313 (Cal 11/29/2007)  Relief denied on repeated prosecutorial misconduct, including unduly inflammatory closings as the misconduct was not prejudicial in light of the strength of the proofs.  Vienna Convention claim denied, however, the  Court invites to raise the claims on state habeas corpus.

• State v. Marlon Kiser, 2007 Tenn. Crim. App. LEXIS 890 (Tenn. Crim. App 11/29/2007)  Relief denied on appeal over claims "that (1) his right to an impartial jury was violated by the trial court's failure to excuse incompetent jurors for cause; (2) the trial court erred by refusing to excuse for cause jurors who would not consider mitigating evidence; (3) the prosecution used peremptory challenges to excuse jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); (4) the trial court erred by failing to a hold a pretrial hearing on the admissibility of proposed expert scientific testimony; (5) the evidence is insufficient to support the convictions; (6) the trial court erred by permitting testimony  regarding statements made by the appellant regarding his alleged hostility toward police and willingness to kill; (7) the trial court erred by limiting the appellant's proof; (8) the trial court erred by excluding evidence of another person's alleged confession to the victim's murder; (9) the jury instructions on "reasonable doubt" were unconstitutional; (10) the appellant's waiver of rights at the sentencing hearing was unconstitutional; (11) the trial court erroneously denied the appellant's requested instruction on residual doubt; (12) the jury was required to unanimously agree to a life sentence in violation of established case law; (13) Tennessee Rule of Criminal Procedure 12.3(b) violates principles of due process and the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny; (14) the prosecution is vested with unlimited discretion as to whether to seek the death penalty; (15) the death penalty was imposed in a discriminatory manner; (16) the cumulative effect of the errors at trial violated his due process rights; (17) the statutory capital sentencing scheme in this state fails to articulate or apply meaningful standards for proportionality   review in violation of his due process rights; and (18) lethal injection constitutes cruel and unusual punishment and is unconstitutional in this state. Upon review of the record and the parties briefs, we conclude that the appellant is not entitled to relief and affirm the judgments of conviction but remand the case to the trial court in order for the court to enter only one judgment of conviction for first degree murder."

• State v. Jeffrey Hessler, 274 Neb. 478 (Neb 11/30/2007) Relief denied over claims relating to the trial court "(1) denying his motions to plead guilty to felony murder; (2) violating the Double Jeopardy Clause  by allowing the State to use the sexual assault of J.B. to prove an aggravating circumstance; (3) failing to excuse for cause potential jurors who had formed opinions regarding Hessler's guilt; (4) overruling his motion to change venue; (5) overruling his motion to declare Nebraska death penalty statutes unconstitutional on various bases, including (a) vagueness of aggravating circumstances described in § 29-2523(1)(a), (b), and (d); (b) failure to require or allow the jury to determine mitigating circumstances, to assign a weight to aggravating circumstances, and to determine the sentence; and (c) unconstitutionally penalizing a defendant's exercise of the right to a jury trial on aggravating circumstances; (6) denying his request for an instruction in the aggravation phase requiring the jury to make unanimous, written findings of fact to support each aggravating circumstance found to exist; (7) granting his request to waive counsel and appear pro se at sentencing and failing to make a determination regarding his competency to waive counsel; and (8) receiving into evidence at sentencing the records of the guilt and aggravation phases of the trial."
  

• Michael Dean Overstreet v. State, 2007 Ind. LEXIS 1041 (Ind 11/27/2007) Relief denied on issues relating to: "(a) was Overstreet denied the effective assistance of trial counsel; (b) was Overstreet denied the effective assistance of appellate counsel; (c) did Overstreet receive a fair post-conviction proceeding; and (d) is Overstreet incompetent to be executed because of his mental illness."  Note the court also denies relief on two other issues as they could have been raised on direct appeal and three other issues on the grounds of res judicata. Dissent sees “no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution." Hence,  “executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution.”

• Thomas Mitchell Overton v. State, 2007 Fla. LEXIS 2204 (Fl 11/29/2007) Relief denied on access to DNA testing.  Relief also denied on postconviction appeal on claims relating to "(I) access to files and records that were in possession of state agencies were improperly withheld in violation of Florida Rule of Criminal Procedure 3.852; (II) trial counsel failed to adequately investigate/prepare a case and challenge the State’s case due in part to the actions of the trial court and the State; (III) the State committed Brady3 and Giglio4 violations and trial counsel was ineffective for the failure to present this during the trial; (IV) the State improperly used James Zientek (a jailhouse informant) as an undisclosed agent of law enforcement; (V) Overton was prejudiced by pre-indictment delay; (VI) trial counsel operated under an actual conflict of interest; (VII) an improper jury instruction with regard to expert testimony was used during trial; (VIII) the rule prohibiting attorneys from interviewing jurors prevented trial counsel from being effective; (IX) the voir dire by trial counsel was improper; (X) the combination of errors prevented a fair trial; (XI) trial counsel was ineffective for the failure to object to the introduction of time-barred offenses; and (XII) Overton’s sentence was unconstitutional under Ring."  State habeas petition also denied on appellate ineffectiveness.