In the lower courts, the Eleventh Circuit in James Charles Lawhorn v. Allen grants penalty phase relief on counsel's failure to give a penalty phase closing. The federal district court’s grant of guilt phase relief, however, is 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.

Two unpublished opinions of note are had from the Texas Court of Criminal Appeals, Ex Parte Mark Robertson & Ex parte Jose Noey Martinez.   Robertson deals with the trial court's failure to provide an "adequate means for the jury to consider beyond the limits of the special issues" mitigation evidence proffered by the condemned.  In Martinez a remand for a hearing is ordered on an Atkins claim.

The Fifth Circuit has granted rehearing en banc in Moore v. Quarterman, No. 05-70038 (5th Cir. 3/14/2008). The issue on rehearing appears to be Atkins v. Virginia & the procedural issues surrounding it.

In the news, press accounts note some concern over the personnel losses at the Georgia Capital Defenders Office (including former director Chris Adams), with over 20% of its lawyers having left in the last eight months. "U.S. Attorney General Michael Mukasey said that he hopes that the Guantanamo prisoners accused of terrorism do not receive the death penalty in the upcoming Military Commission trials because it would give them the martyrdom that they want." [more] Mid-week prosecutors accepted a guilty plea from Thomas Joe Miller-El (yes, that Miller-El) in which he avoids a death sentence in return for what amounts to a life sentence.  In a verdict we missed in the last edition,  “on March 13, 2008, the jury in US v. Gilberto Caraballo returned a unanimous life verdict after three hours of deliberations."  Maryland, wire stories are reporting, appears headed for a study of its death penalty and not abolition as many had hoped.

In other news, the latest Harris poll numbers on the death penalty are now available. "Currently, 63 percent of Americans believe in the death penalty while three in ten (30%) are opposed to it.. . . One question with regard to the death penalty is whether or not it serves as a deterrent to others. Just over half (52%) of Americans believe that executing people who commit murder does not have much effect on deterring others from committing murder. Two in five (42%) say that executing people does deter others from committing murder….When it comes to whether people would like to see an increase or decrease in the number of convicted criminals who are executed, there is a bit of a divide among Americans. Just over one-third (36%) believe there should be an increase while one-quarter (26%) say there should be a decrease and three in ten (31%) believe there should be no change….There is one issue almost all Americans agree on — 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs."

Looking ahead, the California Supreme Court in People v. Gay did the unthinkable, it reversed on lingering doubt.. "[T]here is a reasonable possibility the jury would have selected the lesser but still serious penalty of life imprisonment without the possibility of parole had it been allowed to hear and consider the compelling defense of lingering doubt in full. As other courts have noted, “residual doubt is perhaps the most effective strategy to employ at sentencing.” The jury’s request for clarification of the instructions on the issue of residual doubt, combined with the jury’s previous request for the court to read back the eyewitness and expert testimony relating to the circumstances of the murder, strongly indicate that the jury was focused on defendant’s role in the murder."

As always thanks for reading. - k

SCOTUS

Week of March 10, 2008 – In Favor of the Defendant or the Condemned

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.
  

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.

(Initial List)  Week of March 17, 2008 – In Favor of the Defendant or the Condemned

• People v. Kenneth Earl Gay, 2008 Cal. LEXIS 3296 (CA 3/20/2008) "[I]t is our firm belief that, notwithstanding this aggravating evidence, there is a reasonable possibility the jury would have selected the lesser but still serious penalty of life imprisonment without the possibility of parole had it been allowed to hear and consider the compelling defense of lingering doubt in full. As other courts have noted, “residual doubt is perhaps the most effective strategy to employ at sentencing.” The jury’s request for clarification of the instructions on the issue of residual doubt, combined with the jury’s previous request for the court to read back the eyewitness and expert testimony relating to the circumstances of the murder, strongly indicate that the jury was focused on defendant’s role in the murder. Evidence indicating that defendant was not the actual shooter would have been important to the jury in assessing the appropriate penalty. Had the jury been allowed to hear—and consider—the four statements in which Raynard Cummings claimed to be the sole shooter, the testimony of the four defense eyewitnesses excluding defendant as the shooter, and the testimony that defendant nonetheless was the man who came out of the car to retrieve a weapon from the ground (thus offering an explanation why the prosecution eyewitnesses had been able to recognize him), there is a reasonable possibility the jury would have selected a different penalty." [internal citations omitted]
  

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

• Richard Eugene Cagle v. Branker, 2008 U.S. App. LEXIS 5643 (4th Cir 3/17/2008) Cagle lost on the following claims: "First, Cagle claims that newly available evidence — a change of heart and change of story from his co-defendant, Michael Scott — undermines the jury’s capital sentence and entitles him to a new sentencing proceeding. Second, Cagle claims he received ineffective assistance of counsel during both the guilt and penalty phases of trial because his attorneys failed to sever his case from Scott’s, thus discouraging Scott from testifying in Cagle’s favor. Third, Cagle again claims ineffective assistance, this time because his attorneys’ approach to mitigation at sentencing focused exclusively on his troubled history, and not at all on his redeeming traits of character. Fourth, Cagle claims he was entitled to a jury instruction as to voluntary intoxication during the guilt phase of trial."

• Robert Stacy Yarbrough v. Johnson, 2008 U.S. App. LEXIS 5645 (4th Cir 3/17/2008) Relief denied.  "Yarbrough contends first that he was denied effective assistance of counsel during the guilt phase of his state trial because 'DNA evidence was critical to the prosecution and the defense in this case not involving a confession' and his counsel 'fail[ed] to request funds to engage an expert in DNA collection, testing and analysis'”  Also, "Yarbrough also contends that his trial counsel performed below an objective standard of reasonableness because he failed adequately to investigate and present relevant evidence in mitigation at the second sentencing trial and that, but for this failure, there was a reasonable probability that the jury would not have sentenced him to death.
  

• Jack Trawick v. Allen, 2008 U.S. App. LEXIS 5680 (11th Cir 3/18/2008) "The only issue [ ]on appeal is whether Trawick is entitled to federal habeas relief on his claim that the State of Alabama exercised its peremptory strikes in a discriminatory manner by using eleven of its fourteen strikes to remove women from the venire in violation of J.E.B. v. Alabama which prohibits gender discrimination in jury selection. Although Trawick did not raise any objection to gender-biased striking during trial, he did argue that claim on direct appeal to the Alabama Supreme Court on the basis of J.E.B., which the U.S. Supreme Court decided several weeks after Trawick’s conviction."

• Troy Davis v. State, 2008 Ga. LEXIS 262 (GA 3/17/2008) (dissent) In a sharp 4-3 decision the Georgia Supreme Court denies relief over a strong claim of innocence. The evidence of innocence, the majority holds, comes too late.

• Harry Franklin Phillips v. State, 2008 Fla. LEXIS 442 (FL 3/20/2008) Relief denied  on a substantial Atkins claim following an evidentiary hearing

• Connie Ray Israel v. State, 2008 Fla. LEXIS 441 (FL 3/20/2008) "Israel asserts that: (1) trial counsel rendered ineffective assistance during closing argument of the penalty phase; (2) trial counsel rendered ineffective assistance in failing to file a sentencing memorandum for the Spencer2 hearing; (3) trial counsel rendered ineffective assistance for failing to present mitigating evidence and to prepare an expert witness prior to his penalty phase testimony; (4) procedural and substantive errors deprived him of a fundamentally fair trial; and (5) Florida’s death penalty statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). We address each claim in turn below."
  

• Thomas Bevel v. State, 2008 Fla. LEXIS 443 (FL 3/20/2008)  Relief denied. "Bevel has raised the following nine issues: (1) whether the trial court erred in failing to strike for cause a juror who favored law enforcement; (2) whether the trial court erred in finding that the aggravators outweighed the mitigators; (3) whether Bevel’s death sentence is disproportionate; (4) whether the trial court erred in denying Bevel’s motion that Florida’s death penalty statute is unconstitutional because a jury, rather than a judge, must make a unanimous finding as to the aggravators; (5) whether the trial court erred in the weight assigned to the aggravators and mitigators; (6) whether the trial court abused its discretion in allowing photographic evidence which was gruesome and unduly prejudicial; (7) whether the trial court erred in admitting Bevel’s confession; (8) whether the trial court erred in adopting verbatim the State’s proposed findings of fact and conclusions of law; and (9) whether the death penalty is inappropriate because Bevel’s mental age is under that of an eighteen-year-old."
  

• David Martinez v. Quarterman, 2008 U.S. App. LEXIS 5661 (5th Cir 3/17/2008) (unpublished) Relief denied on a litany of claims relating to ineffective assistance of counsel .  To be further fleshed out next week.

Selected Excerpts from, & Commentary on, this Edition's Cases

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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