In legal news, almost twenty years to the McCleskey v. Kemp,  Connecticut death row inmates’ racial and geographical disparity challenge to the death penalty survived a trial court level motion to dismiss [opinion is here] Several federal life verdicts are reported by the FDPRC including United States v. Mosher (EDTx) and United States v. McTier (EDNY).

 As always thanks for reading. - k

• 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."

(Initial List for the Weeks of February 25, 2008) – In Favor of the Defendant or the Condemned

• Michael Bies v. Bagley, 2008 U.S. App. LEXIS 4160 (6th Cir 2/27/2008) Michael Bies sits on Ohio’s death row.  Prior to the Supreme Court’s decision in Atkins v. Virginia the Ohio courts determined that he was mentally retarded.  At the time of the determination of mental retardation both state and federal precedent permitted the execution of the mentally retarded.  Following Atkins Bies moved to have his death sentence vacated. Today the Sixth Circuit in Bies v. Bagley, 06-3471  addresses whether double jeopardy now bars the relitigation by the state of that determination. [ Decision of the Day has more]

• State v. Virginia Larzelere, 2008 Fla. LEXIS 273 (FL 2/28/2008) The unanimous Court found that trial counsel rendered ineffective assistance by failing to  introduce mitigating evidence about her mental health, sexual abuse as a child and physical abuse in a previous marriage.

• Charles Mine, Jr. v. Quarterman,  2008 U.S. App. LEXIS 4251 (5th Cir 2/26/2008) (unpublished) The trial court's instructions on the Texas special issues precluded the jury from giving effect to Mines’s mitigating evidence of mental illness in light of Penry and its progeny. 
  

(Initial List for the Weeks of February 25, 2008) – In Favor of the State or Government

• United  States v. Edward Leon Fields,  2008 U.S. App. LEXIS 4018 (10th Cir 2/25/2008) Death sentences for killing two individuals in a national forest are affirmed where: 1) the U.S. properly exercised its concurrent territorial jurisdiction to prosecute defendant for murdering the victims on national forest land; 2) Witherspoon/Witt death qualification; 3) bad instructions on how to weigh aggs vs. mits; 4) double counting of aggs; 4) insufficient evidence to prove he actually engaged in substantial planning and premeditation with respect to the murders; 5) future dangerousness "non-statutory aggravator was unconstitutionally vague, should have been limited to his future dangerousness in a prison setting, and was not proven beyond a reasonable doubt insufficient evidence to prove he actually engaged in substantial planning and premeditation with respect to the murders;" 6) lack of unanimity on future dangerousness; 7) use of nonstatutory aggravator of causing mental anguish; 8) unlawfully broad victim impact evidence  incl. nonfamily members (held harmless); 9) failure of the jurors to find certain statutory mitigators; 9) instructions on weighing (does the FDPA require guilt beyond a reasonable doubt - this issue will get cert soon, if not in this case, then in another FDPA); and 10) inflammatory evidence (a ghillie suit) in jury room.
  

• William Lee Thompson v. Sec. Dep't of Corr, 2008 U.S. App. LEXIS 4013 (11th 2/25/2008) Denial of habeas petition is affirmed over claims relating to: 1) use of non-statutory aggravating factors and an alleged doubling of aggravating factors in the penalty phase; and 2) his execution after serving over 30 years on death row constitutes cruel and unusual punishment.

• State v. Stephen Christopher Stanko, 2008 S.C. LEXIS 53 (SC 2/25/2008) (dissent) Relief denied on 1) the limitation of the scope of voir dire as to insanity defense "and 2) the omission of a statutory mitigating factor from the jury charges in the penalty phase."

• State v. Thomas Michael Keenan, 2008 Ohio 807 (8th App Ohio 2/28/2008) Keenan filed a second postconviction relief petition seeking relief "pursuant to United States v. Gonzalez-Lopez [asserting] ]the second trial was tainted by structural error in the denial of his choice of counsel. The trial court denied the petition and concluded that “nothing in the holding of the Gonzalez-Lopez opinion indicates that the holding should be applied retroactively,” and that the opinion reiterates that one’s choice of counsel 'is not absolute and may be secondary to the need to avoid potential conflict'.”  Relief denied on res judicata grounds.
  

• State  v. Kevin Keith, 2008 Ohio 741 (3rd App Ohio 2/25/2008) Appeal of denial without evidentiary hearing of a successive petition.  The substantive merits issues below on which the hearing was denied include "(1) that the trial prosecutors did not timely provide defense counsel with all relevant exculpatory evidence; (2) that new information received after the trial indicated that two persons were involved in the homicides and that there was another possible suspect; and, (3) that the cumulative effects of these errors deprived him of fundamental fairness, resulting in his conviction and sentence being void or voidable."
  

• Daniel Siebert v. Allen, No. 06-11841 (11th Cir 2/25/2008) On remand from U.S. Supreme Court, dismissal of federal habeas petition is affirmed as it was untimely filed under 28 U.S.C. section 2244(d).
  

(Initial List for the Weeks of February 25, 2008) –  Noncapital of note

• In re Sherri Jefferson, No. S07G1208 (Ga 2/25/2008)  The Court notes that Georgia’s standard for contempt, “clear and present danger” to order in the court, is less than clear. Using Jefferson’s case the Court recasts the standard definition for contempt it has been using and creates a multipronged test: “(1) that the attorney’s statements and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and (2) that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy.” “[D]oubts should be resolved in favor of vigorous advocacy.”

SMALL PRINT
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