Capital Defense Weekly

This edition notes three appellate "defense wins" for the week of February 25 to March 3, 2008 and no unusually notable losses.

The Sixth Circuit, relying on a fairly complex set of facts, holds double jeopardy bars the State from challenging a pre-Atkins determination of mental retardation in Michael Bies v. Bagley. On direct appeal the Ohio Supreme Court held that Bies was mentally retarded but denied relief. Post-Atkins, Bies again sought to have his death sentence, this time on the basis he was retarded within the meaning of Atkins. The Atkins claim, despite its prior adjudication in state court, was denied in state court. On federal habeas corpus, the Sixth Circuit affirms the district court's grant of relief on double jeopardy grounds; once the Ohio courts determined that Bies was retarded the Double Jeopardy Clause prevented relitigation of that fact.

In State v. Virginia Larzelere the Florida Supreme Court grants relief as trial counsel rendered ineffective assistance by failing to adequately investigate, nonetheless introduce, mitigating evidence about her mental health, sexual abuse as a child and physical abuse in a previous marriage. In Larzelere the state postconviction trial court granted relief over the State's argument that Larzelere interfered with the mitigation investigation and should not be entitled to the benefit of the lack of a meaningful mitigation investigation. Both the trial court and the state supreme court agree that counsel did not perform an investigation so that they would be able to adequately advise their client on her options. The prejudice here, despite the State's assertion and claims of potential rebuttal evidence, was overwhelming.

The remaining relief grant was a Fifth Circuit unpublished opinion in Charles Mine v. Quarterman. In Mine the Texas special issues sentencing questions precluded the jury from giving effect to Mine’s mitigating evidence of mental illness in light of Penry and its progeny. The resulting grant of relief, save for Mr. Mine, is unremarkable.

Looking ahead to the next edition two favorable cases are noted. The Third Circuit in William Holland v. Horn grants relief on the failure to retain an expert for use in the penalty phase under Ake v. Oklahoma over a fairly complex claim by the Warden relating to procedural default. The Texas Court of Criminal Appeals, after denying substantive claims relating to factual innocence, remands in Ex Parte Larry Swearingen, for an evidentiary hearings on "(1) Whether applicant’s trial counsel reviewed or had access to the reports that Robbie Grove had been interviewed as a suspect or person with possible information as part of the investigation; (2) whether habeas counsel reviewed or had access to the reports that Robbie Grove was investigated, and (3) whether investigators interviewed Lisa Roberts as part of the investigation."

Week 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.

Week 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.

Ignacio Vergara v. State, 2008 Ga. LEXIS 202 (Ga 2/25/2008) When this death penalty case goes to trial the jury will not hear one of three incriminating statement "Vergara made to police, nor will the cocaine police retrieved from his home be allowed into evidence." Specifically, "Vergara had a lawyer, and while the Court finds that he initiated contact that day with the investigator, he did not waive his right to have his lawyer present. “The undisputed evidence shows that Spindola neither reread nor reminded Vergara of his Miranda rights,” the opinion says. Both Vergara’s statement that day and the cocaine subsequently seized as a result must be suppressed, the Court has ruled."

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).

Week 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.”

(Initial List for the Weeks of March 3, 2008) – In Favor of the Defendant or the Condemned

William Holland v. Horn, 2008 U.S. App. LEXIS 4816 (3rd Cir 3/6/2008) Penalty phase relief granted on failure to retain an expert for use in the penalty phase under Ake v. Oklahoma. Note that there is a very substantial procedural default discussion to wade thru, if you aren't a federal habeas lawyer, start on page 18 of this opinion..

Ex Parte Larry Swearingen, WR-53,613-05 (Tex. Crim. App. 3/5/2008) In this potential factual innocence case, remand for further proceedings with directions. "Applicant’s claims five and six allege that the State withheld material, exculpatory evidence and knowingly sponsored false testimony. We find that applicant’s claims five and six meet the requirements for consideration of subsequent claims. These claims are remanded to the convicting court for resolution. While resolving the claims, we request that the convicting court specifically inquire into the following: (1) Whether applicant’s trial counsel reviewed or had access to the reports that Robbie Grove had been interviewed as a suspect or person with possible information as part of the investigation; (2) whether habeas counsel reviewed or had access to the reports that Robbie Grove was investigated, and (3) whether investigators interviewed Lisa Roberts as part of the investigation. The trial court shall also make findings of fact regarding whether an affidavit from Lisa Roberts could reasonably have been obtained before applicant’s first application was filed, and the credibility of the affidavit."

SMALL PRINT
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