Several wins are noted this edition.  With names as American as Pepin, Tassin, Cole/Abdul-Kabir, Moreno, Mata, Kerr, Harper, Ramirez, &  Harlow the "wins" this edition run the gamut from pretrial evidentiary rulings to methods of execution to plain old fashion jury instruction error prosecutorial suppression of favorable evidence to just plain bad lawyering.

• United States v. Humberto Pepin,  2008 U.S. App. LEXIS 2553 (2nd Cir 2/6/2008) A pretrial capital case from the federal Eastern District of New York, the Government appeals to the Second Circuit certain evidentiary rulings. Specifically, the Government sought relief from the trial court’s exclusion of evidence of child abuse by the defendant and evidence relating to the defendant’s previous conviction for child endangerment, as well as the trial court’s exclusion of evidence of post-mortem dismemberment of the victims in both the guilt and penalty phases of the trial.  The panel affirms the exclusion of the child abuse evidence, but remands on admissibility relating to evidence of post-mortem dismemberment.

• Robert Tassin, Jr. v. Cain, 2008 U.S. App. LEXIS 3208 (5th Cir 2/14/2008) The panel granted relief, in this facts driven opinion, in light of Giglio, Napue, and Bagley. Commentary here
  

• Ted Calvin Cole, n/k/a Jalil Abdul-Kabir vs. Dretke, 2008 U.S. App. LEXIS 3288 (5th Cir 2/15/2008) On remand from the Supreme Court, writ of habeas corpus relief granted with instructions.

• Ex parte Jose Angel Moreno, 2008 Tex. Crim. App. LEXIS 158 (Tex. Crim. App.  2/6/2008)  The Texas Court of Criminal Appeals on its own motion grants penalty phase relief. The Moreno Court grants relief in light of Penry error. Specifically, the CCA grants rehearing and vacates as the jury instructions used in the trial did not permit the jury to give adequate effect to Moreno’s troubled childhood within the framework of the Texas Special Question regime. Further, the trial court erred in failing to give a jury instruction that would have permitted the jury to impose a life sentence on the basis of the Defendant’s mitigation case alone.
  

• State v.  Raymond Mata, No. S-05-1268, ___N.W.2d___(Neb 2/8/2008) Relief denied on numerous claims relating to resentencing following a Ring remand including a possible "cert worthy" issue on hybrid sentencing (jury found aggravating factors, three judge panel set punishment).  The Nebraska Supreme Court, more importantly strikes down the sole means of execution in that state, the electric chair.  As a practical matter this means that in Nebraska people can still be sentenced to death but not executed.

• Ex parte Ricky Eugene Kerr, No. AP-75,500 (Tex. Crim. App.  2/6/2008) (unpublished ) Remand ordered for further hearings on the issue of penalty phase ineffectiveness. (Note: The CCA's opinion  is ambiguous enough as to the  trial court's treatment of Kerr's claims on these points that a real possibility exists the above analysis is incorrect.),

• Richard Scott Harper v. State, 2008 Ga. LEXIS 150 (Ga 2/11/2008) In this pretrial appeal the Georgia Supreme Court holds that if this "case goes to trial, the [ ] jury will not hear evidence of items seized during an illegal search of his desk."

• Richard Raymond Ramirez v. Ayers, CV-91-3802-CBM (C.D. Cal.) Relief granted as the jury foreman affirmatively misrepresented his pending FBI application for employment during voir dire.

• James Martin Harlow v. Murphy, No. 05-CV-039-B (D. Wyo. 2/15/2008) [here, here & here / zip] Relief granted on: [1] Conflicts between Harlow’s trial attorney, Keith Goody, and former state Public Defender Sylvia Hackl, including Goody being in the unenviable position of being forced to chose between his job & his client & all but being told mid-trial he was going to be fired for too aggressively representing his client; [2] The Wyoming Public Defender’s Office failure to provide enough money for an adequate investigation into circumstances related to the case including only paying just $15 /hour for investigatory costs; [3] The withholding of exculpatory evidence relating to the state’s witnesses; and [4] Trial court’s refusal to allow Harlow’s attorney to adequately death & life qualify the jury.

• Kevin Green v. Johnson, 2008 U.S. App. LEXIS 2967 (4th Cir 2/11/2008) [via Findlaw] "Denial of habeas petition brought by death row inmate is affirmed over petitioner’s claims that: 1) he is mentally retarded making his sentence unconstitutional under the Eighth Amendment; and 2) trial counsel rendered ineffective assistance by failing to appeal his non-capital convictions after the first of his two trials."

• Mays Wilson Tate, Jr. v. True, 2008 U.S. App. LEXIS 3129 (4th Cir 2/13/2008) (unpublished) Relief denied on claims relating to whether: (A) "he was deprived of his right to be present at trial by the State's administration of the anti-psychotic drug, Mellaril;" (B) "the State's administration of his medication interfered with his right to the effective assistance of counsel. In essence, Tate claims that due to the administration of the medication, he was too sleepy to assist his counsel;" and  (C) IAC relating to "(1) failing to object to trial proceedings in Tate's absence; (2) failing to raise any objection to the trial proceeding while Tate's faculties were seriously affected by his medication; (3) refusing an on-the-spot psychological review; and (4) treating the medication issue as he did."

• Dale Leo Bishop v. Epps, 2008 U.S. App. LEXIS 3020 (5th Cir 2/11/2008) COA denied  on claims relating to "(1) ineffective assistance of post-conviction counsel, (2) ineffective assistance of trial counsel, (3) improper jury instruction, and (4) improper waiver of jury sentencing."

• Derrick Leon Jackson v. Quarterman, 2008 U.S. App. LEXIS 3200 (5th Cir 2/14/2008) COA denied. "Jackson raises two issues in this application for a COA. He argues that reasonable jurists could debate whether there was sufficient evidence to support his conviction for capital murder. He also argues that reasonable jurists could debate whether he was denied effective assistance of counsel."

• Rodney Charles Rachal v. Quarterman, 2008 U.S. App. LEXIS 3290 (5th Cir 2 /14/2008)  "We divide our review of Rachal's issues into three categories: (1) the claims he failed to exhaust in state court ["trial counsel was ineffective for not discovering and presenting more mitigating evidence at the punishment phase .. . . concerning Rachal's difficult upbringing, troubled family, and medical difficult &  the Texas "special issues" jury instructions did not give the jury an adequate vehicle for considering all relevant mitigating evidence at the punishment phase:] ; (2) his requests for a stay and abeyance pending further action in state court [lethal injection & the aforementioned IAC claim]; and (3) the claims that, to some extent, are preserved for federal habeas review ["trial court violated his right to effective legal assistance by appointing only one attorney for his defense" & "the trial court's decision at the penalty phase to admit evidence that Rachal committed another, unindicted homicide"]."

• Curtis Moore v. Quarterman, 2008 U.S. App. LEXIS 3206 (5th Cir 2/14/2008) [via Findlaw] “In a capital murder case, an application for a Certificate of Appealability (COA) from a denial of habeas relief is denied where, on the record, reasonable jurists could not disagree with the district court’s determination that a mental retardation claim, under Atkins v. Virginia, was beyond the reach of AEDPA relief.”

• Darwin Brown v. Sirmon, 2008 U.S. App. LEXIS 2543 (10th Cir 2/5/2008) The grounds on which relief was denied include: "“(1) the use of dual juries constituted structural error; (2) the trial court conducted improper voir dire by excusing improperly for cause six jurors whose views on the death penalty would not substantially impair their ability to consider all punishment options; (3) the introduction of evidence arising out of Mr. Brown’s warrantless arrest violated his 4th, 8th, and 14th Amendment rights;(4) Mr. Brown’s convictions and death sentence were the product of a fundamentally unfair adjudicatory process infused with prosecutorial misconduct and unfairly prejudicial photographic evidence in violation of the 8th and 14th Amendments; (5) the trial court committed constitutional error in denying his requested jury instructions on non-capital offenses; (6) the State introduced insufficient evidence to support the “especially heinous, atrocious, or cruel” aggravating factor in violation of his rights under the 8th and 14th Amendments, and the aggravator itself is unconstitutional; (7) the “continuing threat” aggravating circumstance is unconstitutional and was not supported by the evidence; (8) the “avoid arrest” aggravating circumstance was applied in an unconstitutional manner; (9) victim impact evidence violated his 8th and 14th Amendment rights; and (10) cumulative error.”

• Konstantinos X. Fotopoulos v. Sec. Dep’t of Corr., 2008 U.S. App. LEXIS 3158 (11th Cir 2/14/2008) "[T]he Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders. The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders. The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deference. [via Eleventh Circuit Blog]

• State v. James Cornell Harrod, 2008 Ariz. LEXIS 22 (Az 2/14/2008)  Relief denied over claims relating to: (A) trial  court erred by permitting his ex-wife, Anne Costello, to testify to privileged marital communications; (B) trial court erred in allowing a witness to assert a blanket privilege against self-incrimination to all questions concerning his business operations and payments to Harrod; (C) lack of competence; (D) changing prosecutorial theories of liability at trial vs. resentencing;  (E) trial court erred in refusing to allow him to present residual doubt evidence during the penalty phase of the sentencing proceeding; (F) trial court instructions and jury verdict form impermissibly crated a presumption of death; and (G) statutory review of sentence.

• State v. Frank Dale McCray, 2008 Ariz. LEXIS 21 (Az 2/14/2008)  Relief denied on claims relating to whether: (A) trial court erred in admitting the DNA evidence because the State did not establish a sufficient chain of custody to authenticate the evidence; (B) use of a prior sexual assault with a dangerousness enhancement qualified him for the (F)(2) prior violent crime aggravator; (C) the trial court violated his right to due process by providing the jury with an unconstitutionally vague instruction on the "especially cruel" aspect of the (F) (6) aggravator; (D) technical flaws as to means of execution in the judgment of conviction; and and (E) statutory review.

• People v. Alphonso Howard,  2008 Cal. LEXIS 1194 (Cal 2/4/2008) (concurrence) Relief denied on a litany of issues, however, most notably, on the standards for Batson/Wheeler claims (peremptory challenges) when, despite the defense not meeting the threshold showing for such a claim,  the prosecution nonetheless offers a purported justification for the challenges.  Other claims include those concerning: (1) use of color autopsy photographs, (2) motive instruction, (3) consciousness of guilt instruction, (4) murder instructions, (5) lesser included offenses instruction, (6) reasonable doubt instruction, (7) evidence of other crimes, (8) alleged coercion of deadlocked jury, (9) constitutionality of death penalty statute, (10) flight instruction, (11) accomplice testimony, and (12) notice of aggravating evidence.

• People v. Spencer Rawlins Brasure, 2008 Cal. LEXIS 1412 (Cal 2/7/2008) [via Findlaw] "A conviction and death sentence for kidnapping and torture murder is affirmed on automatic appeal over claims of error regarding: 1) group voir dire on attitudes toward the death penalty; 2) introduction of crime scene and autopsy photographs; 3) instructions regarding accomplices' and defendant's role in causing death; 4) a felony-murder instruction; 5) standard instructions on jury's consideration of evidence; 6) Griffin error; 7) instruction on weighing aggravating and mitigating circumstances; 8) challenges to the death penalty statute; 9) instruction on mitigating circumstances; 10) a refusal of special instructions on mitigating circumstances; 11) juror misconduct; 12) international norms and the Eighth Amendment; 13) international law; 14) direction to disregard guilt phase instructions; 15) cumulative prejudice; 16) a victim restitution order and parole revocation restitution fine."

• Samuel Jason Derrick v. State, 2008 Fla. LEXIS 142 (FL 2/7/2008)  Relief denied on claims relating to whether: “(1) he was denied access to files and records pertaining to his case in violation of his constitutional rights; (2) he received ineffective assistance of counsel during pretrial and at the guilt phase; (3) the State withheld material and exculpatory evidence or presented misleading evidence or both; (4) he received ineffective assistance of counsel during the penalty phase; (5) resentencing counsel was ineffective for failing to obtain a mental health expert; and (6) he was deprived of a fundamentally fair trial because of the cumulative error present during the proceedings."
  

• Pinkney Carter v. State, 2008 Fla. LEXIS 179 (FL 2/14/2008) [via Findlaw] “Defendant’s convictions for first-degree premeditated and felony murder as well as his two death sentences are affirmed over claims that: 1) the statute abolishing the voluntary intoxication defense is unconstitutional; 2) insufficient evidence supports defendant’s convictions; 3) the trial court erred in finding burglary and CCP aggravators; 4) the trial court erred in the weight given to burglary and prior violent felony aggravators; 5) the issuance of a sentencing order lacked clarity; 6) the court erred in refusing to require the state to follow a promise it made to the government of Mexico that it would not seek a death sentence if defendant were released into the state’s custody; 7) the death sentence was illegal under Ring; 8) the giving of standard jury instructions diminished the jury’s sense of responsibility for sentencing; and 9) the sentences were not proportionate”

• Noel Doorbal v. McNeil, 2008 Fla. LEXIS 215, No. SC05-383 (FL 2/14/2008) [via Findlaw] “Denial of defendant’s motion to vacate his convictions of first-degree murder and sentences of death, as well as a petition for habeas relief, are affirmed and denied, respectively, over claims of error regarding: 1) a motion to disqualify the judge; 2) a denial of a motion to depose assistant state attorneys; 3) summary denial of postconviction claims; 4) an amended rule 3.851 motion; 5) denial of a motion for a continuance of the postconviction proceedings; 6) the denial order; and 7) ineffective assistance of appellate counsel. “

• Gary Ray Bowles v. State, et al., 2008 Fla. LEXIS 214 (FL 2/14/2008) [via Findlaw] “Denial of petitioner’s motion to vacate his sentence of death and a petition for a writ of habeas corpus are affirmed and denied, respectively, over claims of error regarding: 1) whether trial counsel were ineffective for failing to present an expert to testify to mental mitigation; 2) the heinous, atrocious, or cruel (HAC) aggravator; 3) summary denial of a postconviction claim regarding ineffective assistance on mental mitigation; 4) Ring and Apprendi claims; 5) a Crawford claim regarding an officer’s testimony; and 6) whether appellate counsel was ineffective. “

• Samuel Jason Derrick v. State, 2008 Fla. LEXIS 142 (FL 2/7/2008) Relief denied on claims relating to ineffective assistance of counsel when trial counsel failed to call a "confessionologist."

• Wade Greely Lay v State, 2008 Okla. Crim. App. LEXIS 6 (Okla. Crim. App. 2/12/2008) Relief denied on issues including pro se representation at trial ((1) that he had no constitutional right to pro se representation in the penalty phase of a capital trial and that the trial court erred in allowing him to represent himself; (2) that if a defendant can represent himself in the penalty phase of a capital trial, the Constitution requires the trial court to appoint second chair/standby counsel to assist; (3) that the trial court abused its discretion in failing to grant Lay's request for second chair/standby counsel; and (4) that Lay's waiver of counsel was inadequate for the penalty phase of his trial); juror misconduct; lack of adequate jury voir dire, lack of penalty phase severance, failure to adequately instruct the jurors as to the evidence introduced at the joint penalty phase trial,  circumstantial evidence instruction, and victim impact.

• Ex parte Anibal Canales, 2008 Tex. Crim. App. Unpub. LEXIS 132 (Tex. Crim. App. 2/13/2008) State postconviction petition dismissed as "an abuse of the writ" based on Wiggins claims.
  

• Jimmie Urban Lucero v. State, 2008 Tex. Crim. App. LEXIS 219 (Tex. Crim. App. 2/13/2008) The Court of Criminal Appeals affirms on: claimed jury misconduct (use of external evidence / Bible reading during deliberations); a bad jury instruction on mitigation; evidentiary rulings based on witness testimony; improper penalty phase closings & constitutionality of the Texas Statute.

• Ronald Jeffery Prible v. State, 2008 Tex. Crim. App. LEXIS 216 (Tex. Crim. App. 2/13/2008) DNA testing request appeal denied.

• Maurice Glenn Willis, Sr. v. State, 2008 Tex. Crim. App. Unpub. LEXIS 100 (Tex. Crim. App. 2/13/2008) (unpublished) Post conviction DNA motion denied.

Noncapital of Note During the Weeks of  February 4 & February 11, 2008

• Gerardo Flores v. State, 2008 Tex. Crim. App. LEXIS 218 (Tex. Crim. App. 2/13/2008) Affirming, over numerous claims, the state’s capital fetal homicide statute.

• Jerome Alvin Anderson v. C.A. Terhune, 2008 U.S. App. LEXIS 3227 (9th Cir 2/15/2008) (en banc) Stating “I plead the Fifth” should be construed as an invocation of the right to counsel. State court’s interpretation to the contrary results in the grant of habeas relief.
  

• Jimmie Wayne Lawrence v. Branker, 2008 U.S. App. LEXIS 3761 (4th Cir 2/22/2008) [via FindLaw] " Grant of habeas relief to condemned inmate, vacating death sentence, is reversed where: 1) the state court reasonably applied Strickland in rejecting petitioner's claim that his counsel was ineffective for not appealing the use of his burglary conviction as an aggravator; 2) another of his ineffective-assistance claims is procedurally defaulted; and 3) his due-process claims relating to the adjudication of his state post-conviction motion are not cognizable on federal habeas review. "

• Daniel Wayne Cook v. Schriro, 2008 U.S. App. LEXIS 3511 (9th Cir 2/20/2008) "The 9th affirms the denial of a petition in a capital case. The petitioner represented himself, and the Faretta waiver was knowingly and proper. Bad things flowed as a result, such as preserving most trial and sentencing issues. The petitioner's attempt to raise IAC in the appellate context was also denied. The 9th held that the prosecutor's rebuttal was proper, and did not comment on silence. Lastly, there was no evidence to support the giving of a second degree jury instruction." [via the Ninth Circuit Blog]

• Comm. v. Mumua Abu-Jamal,  2008 Pa. LEXIS 98 (Penn 2/19/2008)  Claims relating to perjured testimony by state's witnesses should have been brought earlier.

• State v. Michael Dale Rimmer, 2008 Tenn. LEXIS 108 (Tenn 2/20/2008) "Upon careful review of the entire record, we hold as follows: (1) although the trial court erred during the sentencing hearing by excluding evidence solely on the grounds of hearsay, the evidence was either introduced through other means or lacking in relevance or reliability, so the error was harmless beyond a reasonable  doubt; (2) for a waiver of his right to testify to have been valid, a defendant need not state on the record that he was informed by counsel of our ruling in State v. Cazes, 875 S.W.2d 253, 266 (Tenn. 1994); (3) the jury instruction defining reasonable doubt does not offend due process; (4) references by defense counsel and a defense witness that the defendant previously had been on "death row" did not, under these circumstances, entitle the defendant to a new sentencing hearing; and (5) the sentence of death satisfies the proportionality guidelines."

SMALL PRINT
SUBSCRIBING & ARCHIVES: The summaries above are normally written by Karl Keys and published forty (40) times (or so) a year.

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