This issue is dominated by the Supreme Court's holding in Medellin v. Texas. In an opinion that will have Constitutional scholars buzzing for years to come, the Court in Medellin held that neither the World Court’s judgment in the Avena litigation (holding Vienna Convention claims must be honored by the courts of signatory nations) nor the President’s Memorandum directing Texas to provide a forum for Avena related claims constitute directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. The Vienna Convention may constitute an international commitment, but it and similar treaties are not binding against the states (such as Texas) unless enabling statutes are passed or the treaty itself conveys an intention that it be“self-executing” and is ratified on that basis. The law professor co-op at Opinio Juris has done a remarkable job analyzing the issues involved.

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."

On the legislative front, the Maryland legislature voted overwhelmingly in favor of a death penalty study commission Monday night.The bills need to be reconciled and will go to a conference committee to agree on language and then back through both houses to approve the final version. In Nebraska, lawmakers rejected an attempt to repeal the death penalty on Tuesday, a month after courts left the state with no way to execute its killers.  The Georgia State Senate has overwhelmingly rejected a proposal that would have allowed non-unanimous jury sentencing verdicts in capital cases. In Connecticut efforts to reform that state’s failed eyewitness ID procedures failed. In a move that has drawn scant little press, North Carolina earlier this month began requiring “independent administrators” to run lineups there, amongst other radical new changes to the eyewitness identification process.. The new law also lays out a couple of additional procedures that address the desires of potentially “over helpful” witnesses. Finally, similar proposals are before the legislature in Kentucky where HB 298.

Elsewhere in the new, the Supreme Court in June blocked Scott Panetti’s execution and remanded for a determination if he was competent to be executed this week the federal district court held that he is competent enough to execute. Two new notable reports out of the American Civil Liberties Union of Northern California entitled  “The Hidden Death Tax” (looking at California's $100 million per year death penalty industry) and "Death by Geography” (looking at how geography and not crime drives California death machine). The Sentencing Project has developed a sheet of the remaining presidential candidates position of criminal justice issues.

Two new pieces of germane scholarship are noted at SSRN.  Sean  O’Brien has the first  article entitled “Presumed Guilty: Innocence and the Death Penalty.” Susan Andes has just released new scholarship on murder and closure aptly entitled Victims, ‘Closure’, and the Sociology of Emotion.

Looking ahead, in one of the most controversial cases of our times,  Mumia Abu-Jamal v. Horn, the Third Circuit grants penalty phase relief whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor, but split on an unusually strong Batson claim.The Eleventh Circuit in Ernest C. Downs v. McNeil remands in light of claims of “serious attorney misconduct” that could permit “equitable tolling.”  The Oklahoma Court of Criminal Appeals in Keary Lamar Littlejohn v. State holds trial counsel should have prepped a more meaningful penalty phase mitigation case and grants penalty phase relief.

As always thanks for reading. - k

SCOTUS

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]
  

Week of March 17, 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."

• Commonwealth v. Daniel Gwynn, 2008 Pa. LEXIS 259 (Penn. 3/28/2008) (dissent)  Relief denied on claims relating to inflammatory prosecutorial closing arguments & counsel's deficient stewardship in investigating & presenting mitigating evidence in the penalty phase.

• 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.

• Mumia Abu-Jamal v. Horn, 2008 U.S. App. LEXIS 6399 (3rd Cir 3/27/2008) The panel granted relief as the Pennsylvania Supreme Court “was objectively unreasonable” when analyzing whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor.  The panel splits on guilt phase relief on a Batson claim with the majority's opinion being more than just a little underwhelming. [more here]

• Ernest C. Downs v. McNeil, 208 U.S. App. LEXIS 6090; 2008 WL 756348 (11th Cir. 3/24/2008) Remand ordered because, if true, the allegations raise present claims of “serious attorney misconduct” that could permit “equitable tolling” the panel remands. [more here]

• Keary Lamar Littlejohn v. State, 2008 OK CR 12 (Okla. Crim. App. 3/26/2008) Trial counsel should have known that their client was likely to lose and be convicted of capital murder and, therefore, needed to start thinking about the penalty phase / preparing their mitigation long before they did. [more here]

• Joseph Ray Ries v. Quarterman, 2008 U.S. App. LEXIS 6466 (5th Cir 3/27/2008) (unpublished) Relief denied on " four issues. First, Ries argues that the district court erred in determining that two of his Sixth Amendment claims for ineffective assistance of counsel were not exhausted and thus procedurally barred. Second, he argues that his attorneys at trial were ineffective in their presentation of mitigation evidence during the penalty phase of his trial. Third, Ries argues that his trial attorneys were  ineffective for failing to object to several statements in the prosecutor's closing argument. Finally, he argues that his appellate counsel was ineffective for failing to raise on appeal a claim that the district court erred in redacting statements of remorse from a video-taped confession by Ries."

• United States v. Odell Corley, 2008 U.S. App. LEXIS 6076 (7th Cir 3/24/2008) The Government below was challenged on its use of peremptories in violation of Batson v. Kentucky. Despite facts not that dissimilar to those in Snyder v. Louisiana, at least at first read, the panel affirms without once mentioning the Court’s latest examination of Batson. Other than the Batson issue, the panel’s opinion appears, again at first read, as unremarkable. Relief was denied, on the remaining claims, relating to the introduction of unadjudicated conduct at sentencing, the improper cross-examination by the Government of the Defendant (once in the guilt phase & once in the sentencing phase), statement made by the prosecution during closing arguments, and the court’s refusal to give a residual doubt instruction or to allow a residual doubt argument.

• People v. Andre Gerald Wilson, 2008 Cal. LEXIS 3584(Ca 3/27/2008) "In habeas proceedings, an order to show cause, involving claims that petitioner was factually innocent of first degree murder, conspiracy to commit murder, and solicitation to commit murder and that his conviction was the product of nondisclosure of exculpatory evidence, is discharged as petitioner failed to establish either that: 1) he was actually innocent of the crimes for which he was convicted; or 2) his criminal convictions were tainted by the prosecution's non-disclosure of exculpatory evidence." [via Findlaw]

• In re Dennis Harold Lawley, 2008 Cal. LEXIS 3545 (Ca 3/24/2008) "Conviction and death sentence for first degree murder is affirmed where trial court did not commit reversible error by: 1) allowing defendant to exhaust his peremptory challenges to remove two alternate jurors; 2) giving jury instructions accompanied by usual instructions on reasonable doubt, presumption of innocence, and the government's burden of proof; and 3) removing a juror and jury instructions on sentencing factors." [via Findlaw]

• In re Amendments to Florida Rule of Judicial Administration 2:215, 2008 Fla. LEXIS 543 (FL 3/27/2008) "Under rule 2.215(b)(10), the chief judge shall not assign a circuit judge to preside over a capital case, whether it be the initial proceeding where the state is seeking the death penalty or a collateral proceeding brought by a death row inmate, unless the judge has met the requisite educational and experiential qualifications. The amendment reorganizes the rule, breaks down the requirements into new subdivisions, and clarifies when a circuit judge must take the refresher course to remain in compliance with the rule. The amendment also clarifies that the judge must have presided for a minimum of six months in a felony division and adds the alternative of presiding in a division that includes felony criminal cases. As amended, rule 2.215(b)(10)(B) allows for waiver of the requirements."
  

• Matthew Gray v. Moore, 2008 U.S. App. LEXIS 6186 (6th Cir 3/26/2008) (noncapital) "After exhausting his remedies in state court, Gray filed the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, arguing that the trial court violated his constitutional rights to due process, to be present at his trial, and to confront the witnesses against him, when it removed him from the courtroom without warning him of the consequences of his actions. Because we conclude that the Ohio appellate court unreasonably applied Illinois v. Allen, 397 U.S. 337 (1970), and because the error had a substantial and injurious effect on the outcome of Gray’s kidnapping conviction, we REVERSE the district court’s judgment and GRANT a conditional writ of habeas corpus with respect to that conviction."

• US v. Rojas, No. 07-1287 (8th Cir 3/28/2008) "In a case where one of the victims of sexual abuse and assault offenses recanted her testimony after a jury conviction at trial, district court's judgment is reversed insofar as it denied defendant's request for an evidentiary hearing based on the reported recantation where: 1) no physical evidence corroborated with victim's original trial testimony; and 2) defendant's conviction relied heavily on victim's purported testimony." [via Findlaw]
  

Selected Excerpts from, & Commentary on, this Edition's Cases
Jose Ernesto Medellin v. Texas, No. 06-984 (3/26/2008) The Court holds that neither the World Court’s judgment in the Avena litigation (holding Vienna Convention claims must be honored by the courts of signatory nations) nor the President’s Memorandum directing Texas to provide a forum for Avena related claims constitute directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. The Vienna Convention may constitute an international commitment, but it and similar treaties are not binding against the states (such as Texas) unless enabling statutes are passed or the treaty itself conveys an intention that it be“self-executing” and is ratified on that basis.  Opinio Juris & Hofstra Law's Julian Ku offers, perhaps, the best early analysis:

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