Capital Defense Weekly

Several favorable opinions are noted this edition, at least two of which are notable.

The easiest way of explaining the Third Circuit's opinion William Holland v. Horn is that relief was granted on the basis of counsel’s failure to ask for expert assistance (Ake v. Oklahoma) in the penalty phase but not the guilt phase. If you are looking for such a discussion and are not a federal habeas litigator (esp. one in the Third Circuit) skip to the bottom of page 18 of the opinion in light of a fairly complex, factually driven discussion of the federal habeas rules governing procedural default. I would also recommend reading the opinion in the PDF format or wait until you can read it in advance sheet / West reporter as there is a footnote in Judge Greenberg’s opinion that stretches over four (4) pages in the PDF format and completely lost me in the Lexis version.

The Tennessee Court of Criminal Appeals in State vs Richard C. Taylor likewise grants relief. As DPIC notes : "[t]he court's ruling grants Taylor a new trial due to a variety of constitutional errors at his original trial. These errors include the denial of his constitutional right to counsel at a pre-trial competency hearing, the failure of the trial court to hold a competency hearing during the trial, and the failure of the trial court to appoint advisory counsel. Taylor, who is severely mentally ill, was permitted to represent himself at trial with little questioning of his competency. At his 2003 trial, Taylor represented himself without advisory counsel and presented no evidence towards his defense."

In other news, by the time most people read this email the Georgia Supreme Court will have ruled in the latest attempts by Troy Davis to obtain justice A summary of the decision will be available at http://www.gasupreme.us/op_summaries/Mar_17.pdf & the actual opinion is likely to be at http://www.gasupreme.us/pdf/s07a1758.pdf. Both documents should be available on Monday @ 8:30 am EST.

Looking ahead, several favorable decisions are noted. The Eleventh Circuit in James Charles Lawhorn v. Allen grants penalty phase relief on counsel's failure to give a penalty phase closing, but reverses the district court's grant of relief on the admissibility of whether Miranda warnings were required to be given again after a substantial break in questioning. Finding "Penry error" the Texas Court of Criminal Appeal likewise granted relief in Ex Parte Mark Roberston. In another matter, Ex parte Jose Noey Martinez, the Court of Criminal Appeals remanded in light of Atkins.

Week 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..

State vs Richard C. Taylor, No. M2005-01941-CCA-R3-DD (Tenn. Crim. App 3/7/2008) “Upon review, we conclude the trial court failed to consider the full panoply of evidence relevant to whether the Defendant knowingly and voluntarily waived his right to counsel. The Defendant is, thus, entitled to a new trial. Additional errors that also require reversal are as follows: the Defendant’s constitutional right to counsel was denied at a competency hearing; the trial court erred when it failed to hold a competency hearing during trial; and the trial court erred in failing to appoint advisory counsel. We also conclude that the trial court erred when it instructed the jury at the sentencing phase, which requires that the Defendant be given a new sentencing hearing."

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."
State v. Augsut Cassano, 2008 Ohio 1045 (Ohio 5th App 3/6/2008) Remand ordered to determine competency to waive postconviction review now that Mr. Cassano wants to reinstate those proceedings.

Week of March 3, 2008 – In Favor of the State or Government

Tilmon Golphin v. Branker, 2008 U.S. App. LEXIS 5033 (4th Cir 3/7/2008) Relief denied as the Supreme Court of North Carolina did not unreasonably apply the clearly established federal law of Batson v. Kentucky and any unreasonable application of Miranda v. Arizona and Edwards v. Arizona did not have a substantial and injurious effect on the jury verdict.
State v. Quante Seward, 2008 N.C. LEXIS 138 (NC 3/7/2008) "[T]he trial court exceeded its authority by declaring a case noncapital based upon its view of the insufficiency of the evidence of defendant's guilt of the underlying charge of first-degree murder. Accordingly, we reverse and remand."
Ex parte Joseph Garcia, 2008 Tex. Crim. App. Unpub. LEXIS 178 (Tex. Crim. App. 3/5/2008) Postconviction petition dismissed as an abuse of the writ.

Previously Missed

People v. Jay Shawn Johnson, No 960691-4 (CA Sup.Ct. 2/26/2008) This Superior Court’s opinion offers a tip to trial counsel, when using notes & letter grades to rate individual jurors, remember that if you want to strike on the basis of race, gender, or some other immutable & impermissible characteristic, strike all jurors with letter grades worse than the venireperson(s) you are striking for the impermissible purpose. Put another, in yet another case of the paper trail catching up with someone, the People’s trial counsel’s notes indicate that objectively less desirable jurors were kept so that at least one black juror could be removed from the panel on the basis of race.

(Initial List for the Week of March 10, 2008) – In Favor of the Defendant or the Condemned

Ex Parte Mark Roberston, No. AP-74,720 (Tex. Crim. App. 03/12/2008) (unpublished) “The convicting court found that applicant presented mitigating evidence, for which under Penry I there had to be an adequate means for the jury to consider beyond the limits of the special issues, that applicant had requested such a means, and that when presented with the nullification instruction, applicant objected that it still did not give the jury a proper means to consider his mitigating evidence. Based on our review of the record, we adopt those findings and agree that relief should be granted.

Ex parte Jose Noey Martinez, No. WR-58,358-02 (Tex. Crim. App. 03/12/2008) (unpublished) “Applicant presents two allegations in his application. In his first claim, applicant asserts that his execution would violate the United States Supreme Court’s opinion in Atkins v. Virginia, 536 U.S. 304 (2002), holding that the Eighth Amendment prohibits the execution of the mentally retarded. In his second claim, applicant asserts that his execution would violate his due process rights unless he is afforded a full and fair hearing on his claim of mental retardation with access to the tools necessary to establish his claim.

James Charles Lawhorn v. Allen, 2008 U.S. App. LEXIS 5159 (11th Cir 3/11/2008) Penalty phase relief granted. Trial counsel made a fairly bad decision to waive closing arguments in the penalty phase. The federal district court’s grant of guilt phase relief, however, reversed in a fascinating decision on a confession claim as to when Miranda warnings must be administered. (Specifically, relief denied on the question of how long after a break in interrogations must Miranda warnings be given again).

State vs Richard C. Taylor , No. M2005-01941-CCA-R3-DD (Tenn. Crim. App 3/7/2008) “Upon review, we conclude the trial court failed to consider the full panoply of evidence relevant to whether the Defendant knowingly and voluntarily waived his right to counsel. The Defendant is, thus, entitled to a new trial. Additional errors that also require reversal are as follows: the Defendant’s constitutional right to counsel was denied at a competency hearing; the trial court erred when it failed to hold a competency hearing during trial; and the trial court erred in failing to appoint advisory counsel. We also conclude that the trial court erred when it instructed the jury at the sentencing phase, which requires that the Defendant be given a new sentencing hearing.”

(Initial List for the Week of March 10, 2008) – In Favor of the State or Government

Richard Rhodes v. State, 2008 Fla. LEXIS 375 (FL 3/13/2008) Relief denied on "four claims on appeal: (A) that the State withheld material and exculpatory evidence and knowingly presented false or misleading evidence; (B) that resentencing counsel was ineffective in his investigation and presentation of mitigation evidence; (C) that the trial court erred in denying his motion to depose the State's DNA expert; and (D) that the trial court erred in summarily denying several of his postconviction claims."

James Fraklin Rose v. State, 2008 Fla. LEXIS 378 (FL 3/13/2008) Relief denied on postconviction appeal. The issues on which he lost include: "1) whether the trial court failed to properly attach any record or transcript from a resentencing court other than the original indictment and the sentencing order; 2) ineffective assistance of counsel; and 3) the constitutionality of Florida's death penalty." [via Findlaw].

United States v. Marvin Charles Gabrion, Nos. 02-1386/1461/1570 (6th Cir 3/14/2008) (dissent) "The dispositive question is whether certain national forest land falls within the federal government’s territorial jurisdiction." The panel answers the question in the affirmative and therefore affirms. The three judge panel manages three different opinions, none of which appears to have more than one vote.

(Initial List for the Week of March 10, 2008) – noncapital

U.S. v. Lara-Ramirez, No. 06-2108 (1st Cir 3/11/2008) A juror brought a Bible to deliberations. She quoted from it and urged her fellow jurors to join her in following it. The judge ordered a mistrial. On appeal the question that arises is whether a manifest necessity existed to declare a mistrial or whether double jeopardy attached. On these facts, no manifest necessity and hence double jeopardy bars retrial.

SMALL PRINT
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*Execution information derived from Rick Halperin, DPIC & media accounts
**Week at a Glance is the work of the Habeas Assistant & Training Project & Wendy Peoples.