Capital Defense Weekly

The Alabama Supreme Court in Ex parte Jarrod Taylor holds the Court of Criminal Appeals erred in "dismissing Taylor's appeal on the ground that [counsel], who signed the notice of appeal, had not been granted pro hac vice status." The Texas Court of Criminal Appeals in Ex parte Brittany Marlowe Holberg remands for an evidentiary hearing on seven claims without, however, identifying what those claims are. The Court of Criminal Appeals likewise holds in Ex parte Daniel Angel Plata that the trial court did not err in finding Plata mentally retarded and hence ineligible for execution. In Delaware a state trial court in a published opinion, State v. Jack Outten, vacates on the basis of insufficient evidence Outten's felony murder conviction. Finally, in a pro se appeal, the Seventh Circuit in David Paul Hammer v. Ashcroft has permitted Hammer's claim regarding access to the media to go forward to trial.

In the news, David H. Bodiker, the outspoken and relentless Ohio Public Defender who stepped down late last year, died unexpectedly Friday night at 73. Liliana Segura, in an article entitled Give Them Death: Three Leading Democratic Candidates Support Capital Punishment, looks at the leading democratic presidential nominees and their records on the death penalty. Press accounts note California Gov. Arnold Schwarzenegger has proposed spending slightly more than $350 million to update its death row or about $27 million for each person it has already executed, above and beyond the costs associated in those cases with trial and appeal.

On the lethal injection front, the Death Penalty Information Center notes that "the St. Louis Post-Dispatch recently uncovered hospital files indicating that Dr. Alan R. Doerhoff, a Missouri physician who assisted with the state's executions and who developed the state’s lethal injection protocol, gave misleading answers during a 1999 malpractice suit about having his hospital privileges revoked. In 1998, Doerhoff’s medical privileges were revoked from the Lake of the Ozarks General Hospital. Doerhoff was also denied privileges at St. Mary's Health Center in Jefferson City in 2000, and he had been sued over 20 times for malpractice throughout his career. He was also reprimanded in 2003 by the state Board of Healing Arts for failing to disclose malpractice suits against him. Doerhoff, who devised Missouri’s lethal injection procedure and supervised over 50 executions, gained notoriety when he testified last year that he was dyslexic and often confused the names and amounts of the lethal injection drugs. He also changed the lethal injection protocol, which was not written down, at will. A Missouri federal judge found this so troubling that he halted lethal injections in the state."

Looking ahead, the Ninth Circuit sustains, in Earl Lloyd Jackson v. Brown, the district court's grant of relief under Brady (including agreements with certain witnesses) on Brown's death sentence and the special circumstances findings. The state conceded the grant of capital relief, but argued unsuccesfully to get the special circumstances reinstated in light of the suppression of favorable evidence.

Week of January 14, 2008 – In Favor of the Accused or Condemned

Ex parte Jarrod Taylor, 2008 Ala. LEXIS 12 (Ala 1/18/2008) "The Court of Criminal Appeals erred in dismissing Taylor's appeal on the ground that [counsel], who signed the notice of appeal, had not been granted pro hac vice status."

Ex parte Brittany Marlowe Holberg, 2008 Tex. Crim. App. Unpub. LEXIS 25 (Tex. Crim. App. 1/16/2008) (unpub) Remand ordered for an evidentiary hearing on seven claims.

Ex parte Daniel Angel Plata, 2008 Tex. Crim. App. Unpub. LEXIS 11 (Tex. Crim. App. 1/16/2008) Defendant appropriately deemed mentally retarded by the trial court and is hence constitutionally ineligible for execution.

State v. Jack Outten, 2008 Del. Super. LEXIS 10 (Del. Super. 1/9/2008) Insufficient evidence exists as to Outten's felony murder conviction Specifically, whether the death of the victim was to "further" the robbery of the decedent. Outten still faces a new sentencing phase on an unrelated homicide.

David Paul Hammer v. Ashcroft, 2008 U.S. App. LEXIS 808 (7th Cir 1/15/2008) In a prisoner suit alleging that prison officials violated plaintiff's First Amendment and equal protection rights by implementing and enforcing a policy that prevented him from giving face-to-face interviews with the media and from talking with the media about other inmates, summary judgment for defendants is reversed and remanded where defendant raised a genuine issue of fact as to whether the defendants' proffered justification for the policy banning face-to-face interviews was pretextual.

Week of January 14, 2008 – In Favor of the State or Government

Ronnie Johnson v. Florida Dep't of Corr, 2008 U.S. App. LEXIS 997 (11th Cir 1/17/2008) The one year statute of limitation period for filing for federal habeas review had expired PRIOR to filing the state post-conviction review petition and, hence, any tolling by state postconviction petition can not save this petition from being held to be untimely; "incompetence of his first post-conviction attorney" is not an adequate reason to toll the one year period.

State v. Jesse Jay Montejo, 2008 La. LEXIS 153 (LA 1/16/2008) Relief denied on whether "the district court erred in admitting the two videotaped statements that he made after he requested an attorney" and did " the district court erred in admitting his handwritten letter to the victim’s widow, which he wrote in the absence of legal counsel in the late afternoon of September 10." Note that there is an unpublished appendix to this decision that deals with 18 other points of error of which the substantive "merit" or "heft" can't be determined.

State v. Derrick Todd Lee, 2008 La. LEXIS 156 (LA A1/16/2008) Relief denied on 32 claims of error. Claims include (a) failure to suppress DNA ((1) he did not consent to have his cheeks swabbed for a DNA sample; (2) there was no legal and constitutional basis for the use of an Attorney General’s subpoena duces tecum issued under LA. CODE CRIM. PROC. ANN. art. 66 without probable cause and not in conformity with the requirements of a search warrant; and (3) the inevitable discovery doctrine was inapplicable to the facts in this case); (b) the trial court’s denial of his motion for change of venue based upon the extraordinary media coverage of this case; (c) defense funding' (d) admission of other crimes evidence; (e) mental retardation; and (f) statutory review.

State v. Ernest Lee Johnson, 2008 Mo. LEXIS 9 (Mo 1/15/2008) (4-3 split) From the intro to the opinion written by the Clerk of Court: "The Court holds that the applicable statute necessarily implies that the defendant bears the burden of proving he is mentally retarded and, therefore, not subject to the death penalty. It holds the trial court did not err in deferring to the jury's determinations that the defendant is not mentally retarded and that the aggravating circumstances outweigh the mitigating circumstances. The Court further holds that the death sentence withstands proportionality review. "

State ex rel. Johnson v. Hudson, No. 07-CA-100 (Ohio 5th App 1/8/2008) Crim. R. 32(C) challenge to 1978 order that converted inmate's death sentence to a life sentence was barred by res judicata as it could have been made in inmate's first habeas petition, which was filed in 1998.

Ex parte John Allen Rubio, 2008 Tex. Crim. App. Unpub. LEXIS 33 (Tex. Crim. App. 1/16/2008) (unpub) Postconviction petition dismissed as moot in light of relief grant on direct appeal.

Ex parte Victor Hugo Saldano, 208 Tex. Crim. App. Unpub. LEXIS 21 (Tex. Crim. App. 1/16/2008) (unpub) Relief denied on ineffectiveness claims relating to failure to preserve issues for appeal.

Ex parte Larry Ray Swearingen, 2008 Tex. Crim. App. Unpub. LEXIS 17 (Tex. Crim. App. 1/16/2008) (unpub) Trial court's recommendation of the denial of successive postconviction relief following an evidentiary hearing adopted.

(Initial List for the Week of January 21, 2008 ) – In Favor of the Accused or Condemned

Earl Lloyd Jackson v. Brown, 2008 U.S. App. LEXIS 1266 (9th Cir 1/23/2008) “'A promise made is a debt unpaid.' The state’s promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind. The district court grants partial relief, upholding the convictions (two elderly women murdered) but vacates and remands the death sentence and the special circumstances findings. The state concedes the death reversal, but argues for special circumstances. The 9th affirms district court, allowing the vacation to stand because of the Brady implications and prejudice. The 9th rejects relief on petitioner’s claims. There is an interesting discussion on prisoner clothes. The petitioner wore prison garb at trial. The 9th acknowledges that being forced to wear inmate clothing is unconstitutional, but the Supremes require an objection to be made. Petitioner argued here that court-appointed counsel should not be forced to object, and that he is in effect a state actor. “The clothes make the man.” The 9th rejected the claim, requiring the objection, and opining that it was a tactical choice by counsel." [via the Ninth Circuit blog]

(Initial List for the Week of January 21, 2008 ) – In Favor of the State or Government

Henry Fahy v. Horn, 2008 U.S. App. LEXIS 1342 (3rd Cir 1/24/2008) "The matter will be remanded to the District Court. On remand, the District Court should apply Teague in conjunction with Beard and deny relief on the Mills claim. The District Court should consider whether trial and appellate counsel were ineffective for failing to object to and litigate the Mills violation. The Court should consider the remaining sentencing-phase issues, which it initially denied as moot. The Court’s determination that the guilt phase issues do not warrant habeas relief will be affirmed."

Roy Gene Smith v. Quarterman, 2008 U.S. App. LEXIS 1324 (5th Cir 1/23/2008)"We granted Smith a certificate of appealability (“COA”) on two issues: (1) whether trial counsel provided ineffective representation; and (2) whether the jury instructions given at the sentencing phase of his trial violated his constitutional rights pursuant to Penry v. Johnson, 532 U.S. 782 (2001)." IAC specifically includes claims counsel: "should have introduced records demonstrating his good behavior during previous periods of incarceration, sought a psychiatric evaluation to determine the detrimental affects of his longterm substance abuse, and interviewed more of his family members about his childhood."

Denny Ross v. Petro, 2008 U.S. App. LEXIS 1422 (6th Cir. 1/25/2008) (dissent) On pretrial application for habeas corpus, relief denied on whether double jeopardy bars retrial following mistrial or whether a "manifest necessity for a mistrial existed."

John Fautenberry v. Mitchell, 2008 U.S. App. LEXIS 1435 (6th Cir. 1/25/2008) (dissent) Relief denied on eight claims, including, as the dissent explains, whether "[g]iven Fautenberry’s history of physical abuse, headaches, and significant head injuries, his counsel had an obligation to investigate fully a potential mitigation defense of an organic brain defect. This obligation did not diminish just because Fautenberry erected obstacles to his attorneys’ efforts. Had Fautenberry’s attorneys scrutinized the basis of their purported expert witness’s conclusion, they would have realized that they had not fully investigated the presence of brain damage as they were obligated to do. Instead, counsel were unaware of the limits of their witness’s testimony and repeatedly emphasized to the sentencing panel that their client had no mental deficiencies."

Reginald Brooks v. Bagley, 2008 U.S. App. LEXIS 1173 (6th Cir 1/ /2008) Penalty phase relief denied on IAC claims relating to: "namely that, during the two or so years before the murders, Brooks had practiced voodoo, accused his wife of having an incestuous relationship with their oldest son and refused to allow the same son to display his athletic trophies. The state courts rejected this claim in part because the sentencing court already had ample evidence of Brooks’ serious psychological illness and other manifestations of that illness in front of it. The district court rejected his federal habeas claim as well."

Mark Schwab v. State, 2008 Fla. LEXIS 55 (FL 1/24/2008) Relief denied 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."

Edward T. James v. State, 2008 Fla. LEXIS 53 (FL 1/24/2008) "The issue presented is whether the trial court properly denied reappointment of collateral counsel for James, a death row inmate, to resume postconviction proceedings after he had discharged collateral counsel and dismissed postconviction proceedings more than two and a half years prior to his motion."

Robin Row v. State, 2008 Ida. LEXIS 8 (Id 1/25/2008) Successive postconviction petition dismissed as filed out of time as the basis of petition was available within the normal 42 day period for filing such petitions.

State v. James Dunn, No. 07-KK-0878 (LA 1/25/2008) Remand ordered for postconviction determination -- without a jury -- of whether the Defendant is mentally retarded within the meaning of Atkins v. Virginia.

Chelsea Lea Richardson v. State, 2008 Tex. Crim. App. Unpub. LEXIS 35 (Tex. Crim. App. 1/23/2008) (unpub) Relief denied on claims relating to sufficiency, admission o certain jailhouse snitch testimony, and the constitutionality of the Texas death penalty scheme (Ring, standard of proof as the special questions, lethal injection, & failure to adequately define terms, such as "probability," in the Texas special question scheme..

Taichin Preyor v. State, 2008 Tex. Crim. App. Unpub. LEXIS 50 (Tex. Crim. App. 1/23/2008) (unpub) Relief denied on direct appeal on claims relating to Batson, admission of gruesome photos, legal sufficiency of "future dangerousness" findings, admission of prior convictions in the punishment phase, and instructions as to mitigation.

Ex parte Anthony Dewayne Doyle, 2008 Tex. Crim. App. Unpub. LEXIS 58 (Tex. Crim. App. 1/23/2008) (unpub) Application for postconviction relief denied without hearing.

Ex parte Vaughn Ross, 2008 Tex. Crim. App. Unpub. LEXIS 53 (Tex. Crim. App. 1/23/2008) (unpub) Application for postconviction relief denied without hearing.

SMALL PRINT
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