No favorable opinions are noted this edition.

The news of the week doesn't come from case law developments but rather is political.  By the end of the week, and possibly as soon as the close of business Monday, conventional wisdom holds, it will be known whether New Jersey will repeal the death penalty. IF New Jersey does repeal it will become the first state to legislatively repeal the death penalty since 1965. You can listen live to the NJ Senate's vote Monday at http://www.njleg.state.nj.us/Default.asp. 

In Supreme Court news, the court  heard oral argument in Snyder v. Louisiana. (oral argument transcript) concerning racial bias in jury selection.  Thomas Arthur in Alabama  received a stay from the Court, but Alabama authorities still oppose DNA testing that might exonerate him.  The SCOTUSBlog is reporting that counsel for both parties in Arave v. Hoffman (a capital case on the standards governing IAC in plea negotiations) are looking to moot out the Supreme Court’s cert grant in the case and vacate the Ninth Circuit ruling below in light of a resentencing hearing set to begin in back Idaho. Finally, although no new  capital cert grants are noted, several criminal law grants are including: Rothgery v. Gillespie County, Texas (right to counsel before a magistrate at a state probable cause hearing); Indiana v. Edwards (level of mental competency needed to proceed pro se in a felony proceeding);  U.S. v. Ressam (quantum of proof needed to prove certain aggravating circumstances for the federal sentencing guidelines); as well as Munaf v. Geren and Geren v. Omar (legal standards governing turning over persons being held by the United States forces -- including American citizens --to Iraqi authorities to face trial, imprisonment, and even execution).

On the federal death penalty litigation front, Kevin McNally & crew in United States v. Friend & Lecco have made a much anticipated as applied challenge to the arbitrariness of the federal death penalty. In the Aryan Brotherhood cases, federal prosecutors announced that all remaining notices of intent to to seek death will be withdrawn in the 8-year series of federal indictments filed against alleged members of the federal Aryan Brotherhood prison gang; the prosecutions, which resulted in no new death sentences, are believed to have costs upwards in the tens millions of dollars.

Two exonerations are also noted.  Michael McCormick, who spent 16 years on Tennessee’s death row before winning a new trial, was found “not guilty”of the 1985 murder of Jeannie Nicholsin Tennessee. Chad Heins, who was convicted in 1996 of the murder of his sister-in-law based heavily on snitch testimony, was exonerated, via the handiwork of the Innocence Project, when the Florida State Attorney in Jacksonville dismissed all charges in light of favorable DNA testing.  Unfortunately, as a recent New York Times investigation reveals, "most DNA-exonerees have “struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.”

In other news, December 7, 2007 marked the twenty-fifth anniversary of the first lethal injection in the USA. The Texas Coalition to Abolish the Death Penalty has released its year end report for Texas which cites a slight uptick in the number of executions there, a slightrise in new death sentences, and Jack Stoffregen being hired to lead the newly-created West Texas Regional Public Defender for Capital Murder Cases, representing 85 counties in West Texas. In North Carolina several death row inmates are challenging a decision by the Council of State that kept North Carolina's execution protocol intact arguing the decision was made without allowing the inmates' attorneys to be heard.

Looking ahead, no favorable decisions are yet noted. A notable denial is had, however, in Kevin Cooper v. Brown. In Cooper the Ninth Circuit denies relief in the face of claims that the police so bungled the investigation into Cooper's guilt that the verdict is now unreliable, as well as claims that Cooper may be innocent. 

Execution Information

• Donald Beaty v. Schriro, 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.

• 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 Brady and Giglio 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.

• 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.”

• 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."

• Comm.  v. Christopher Williams,  2007 Pa. LEXIS 2440 (Penn 11/26/2007) 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.

• 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."

• Kevin Cooper v. Brown, 2007 U.S. App. LEXIS 27982 (9th Cir 12/4/2007 )  "The 9th affirms the denial of a habeas petition. The petitioner asks for various tests to be conducted, and they were, with the result that innocence was not established. The 9th (Rymer joined by Gould and with a concurrence by McKeown) holds that neither the actual innocence "gateway" nor AEDPA standards were meet for the claims. McKeown, concurring, is troubled by the sloppiness in the investigation and forensic testing. She points out discrepancies, errors, and questions in pieces of the physical evidence. She wonders if certainty is established "once and for all," as requested by the tests. She ends up concurring because of AEDPA's standards of deference."  (via Ninth Circuit Blog)  [CapDefNet provides a much more detailed and thought provoking analysis here.])

• People v. Douglas Oliver Kelly, 2007 Cal. LEXIS 13795 (Cal 12/6/2007)  Relief denied, most notably, on a highly inflammatory victim impact "statement", a 20 minute video eulogy set to music and heavy on religious tone.  As to other claims Findlaw notes relief is denied on : "1) jury selection; 2) defendant's absence from proceedings; 3) admission of evidence of uncharged conduct; 4) the sufficiency of the evidence; 5) jury instructions; 6) admission of victim impact evidence; 7) a refusal to give certain requested jury instructions; 8) whether California's death penalty law is invalid because it does not provide for intercase proportionality review; 9) previously-rejected penalty contentions; 10) international law; and 11) cumulative error." [via Findlaw]

• Troy Merck, Jr.  v. State of Florida, No. SC04-1902 (FL 12/6/2007) (dissent) A closely divided court denies relief on closing arguments and limitations of the defense's explanatory penalty phase expert testimony. As the dissent notes: "[t]the question presented is how many times will this Court condemn a specific closing argument and how bad does a closing argument have to be before we will reverse a verdict based on improper prosecutorial comment. In my view, the cumulative effect of multiple improper closing arguments . . .  unquestionably crossed the line in this case and should not be tolerated by this Court. Combined with using a completely improper mercy argument that has been condemned as far back as 1989, the prosecutor’s numerous impermissible closing arguments that repeatedly denigrated the mitigation presented denied Merck a fundamentally fair penalty phase. Reversal is further required in light of the trial court’s error in refusing to allow expert testimony on the parole process in Florida, leaving the jury with the misimpression that Merck would be paroled after twenty-five years, an important point in this case because this crime occurred in 1991.

• Matthew Marshall v. State of Florida, No. SC05-2379 (FL 12/6/2007) "In a death penalty case, denial of petitioner's motion for postconviction relief is affirmed over claims of error regarding whether the trial court erred by: 1) failing to adequately question former jurors about alleged jury misconduct and by restricting the scope of its inquiry; 2) refusing to take one individual's testimony and requiring defendant to file a successive motion for postconviction relief, and failing to expand the scope of the inquiry of the former jurors; and 3) by not allowing counsel to informally interview a former juror and by limiting the manner and scope of his questioning." [via Findlaw]

• State v. Ambrose Harris, 2007 N.J. LEXIS 1418 (NJ 12/4/2007) New Jersey once bifurcated proportionality review and direct appeal. Currently, however, proportionality review is done contemporaneously with the direct appeal. In State v. DiFrisco the NJ Supreme held that if, by counting justices on the two separate appeals, four of the seven then active justices on the court voted for relief (even if not in the same proceeding), relief must be granted. Harris seeks relief under DiFrisco, however, four votes by the same four judges were never had -- even counting votes taken on proportionality review, postconviction review and direct appeal -- and thus relief not available.
  

• State v. William Henry Raines, 2007 N.C. LEXIS 1233 (N.C. 12/7/2007) Relief denied on claims relating to: [1] limitations on voir dire; [2] contamination of jury pool by pretrial publicity and a venireperson's comments, [3] victim impact evidence admission in the guilt/innocence phase; [4] inflammatory guilt phase closings; [5] jury verdict form improperly suggested a verdict;  [6] exclusion of penalty phase evidence of childhood sexual abuse and lack of a stable environment; [7] use by the defendant of a racial slur while previously in custody;  [8] penalty phase closing arguments; [9] penalty phase jury instructions; and [10] proportionality review. Defense brief available here.

• Pervis Payne v. State, 2007 Tenn. Crim. App. LEXIS 927 (Tenn. Crim. App. 12/5/2007) "[T]he post-conviction court did not err by denying the Petitioner's request for DNA analysis."

• Tenn. A.G. Opinion No. 07-158 (12/5/2007) Addressing the regulations governing the humane death for animals.