DPIC notes "Glen Edward Chapman, a North Carolina man who was sentenced to death for the 1992 murders of Betty Jean Ramseur and Tenene Yvette Conley, was released from death row on April 2 after prosecutors dropped all charges against him. In 2007, North Carolina Superior Court Judge Robert C. Ervin granted Chapman a new trial, citing withheld evidence, “lost, misplaced or destroyed” documents, the use of weak, circumstantial evidence, false testimony by the lead investigator, and ineffective assistance of defense counsel. There was also new information from a forensic pathologist that raised doubts as to whether Conley’s death was a homicide or caused by an overdose of drugs."

In legislative news, the Colorado legislature, keeping with the overwhelming majority of other state legislatures, will not be bringing back the crime of capital rape, even for child molesters. The Senate Judiciary Committee; Subcommittee on the Constitution’s hearing recently held an hearing aptly entitled “The Adequacy of Representation in Capital Cases”. “On March 26th, 2008 the Florida House of Representatives passed a bill to compensate Alan Crotzer a sum of $1.25 million and 120 credit hours of higher education for the agony he endured being wrongfully imprisoned for 24 years" on a life sentence. A State House committee in Missouri is considering a bill that would place a 2-year moratorium on executions in that state.

On the public policy front, John Holdridge recently took aim at NADA’s Josh Marquis and his claims that less than 30 innocent people have been convicted and sentenced to die in the modern era: In a potentially far reaching ruling, a trial judge in New Mexico has barred the state from seeking the death penalty because the legislature has failed to provide adequate funding for defense representation.

In other news the Washington Post has a major piece on the Ohio pretrial lethal injection litigation.  In Tennessee, Paul House will be released pending a hearing on May 28, 2008 to consider the terms and conditions of his release. Following in the wake of the recent Supreme Court decision in Medellin,. AP notes, seven Mexican-born inmates on Texas’ death row lost their bids for relief since the last edition. “The Pentagon [has] brought murder and terrorism charges against a suspect in the 1998 US embassy bombing in Tanzania, seeking that his alleged crimes be treated as capital offenses." [more here]

• 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 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]
  

• State v. Bell, Nos. 95,575; 95,613; 95,614; 95,639; 95,640; 95,766 (Kan 3/28/2008) Slightly less than a dozen “DNA-based rape warrants” quashed on the grounds the warrants lacked sufficient specificity. Specifically, "1. The Fourth Amendment to the United States Constitution and K.S.A. 22-2304 require an arrest warrant to contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty" and "2. An arrest warrant’s or a supporting affidavit’s inclusion of a unique DNA profile can qualify as a description by which a defendant can be identified with reasonable certainty; mere listing of DNA loci in the warrant or in a supporting affidavit cannot.”
  

Week of March 31, 2008 – In Favor of the Defendant or the Condemned

• State v. Wade Maughan, 2008 Utah LEXIS 56 (Utah 4/1/2008)  The trial court recused Maughan’s counsel calling counsel’s investigatory tactics action potentially unlawful and/or unethical.  The Utah Supreme Court  holds the Defendant under the facts presented here could waive any conflict of interest and remands.
  

Week of March 31, 2008  – In Favor of the State or Government

• People v. David Rundle, 2008 Cal. LEXIS 3795 (Cal 4/3/2008)  "A conviction and death sentence for the attempted forcible rape and first degree murders of two women is affirmed on automatic appeal over claims of error regarding: 1) the sufficiency of the appellate record; 2) a denial of a pretrial motion to exclude defendant's confessions; 3) various evidentiary rulings; 4) the sufficiency of the evidence; 5) jury instructions; 6) a special circumstance finding based on attempted rape; 7) prosecutorial misconduct; 8) juror misconduct; 9) a denial of his right to counsel based on a conflict of interest; 10) an inadequate investigation by the trial court of the conflict of interest and juror misconduct; 11) defendant's absence from certain meetings between defense counsel and the trial court; 12) defendant's competency to proceed with the penalty phase; 13) evidentiary rulings at the penalty phase; 14) penalty phase jury instructions; 15) penalty phase prosecutorial misconduct; 16) the constitutionality of California's death penalty statute; and 17) cumulative error." [via FindLaw]
  

• Rickey Lynn Lewis v. Quarterman, 2008 U.S. App. LEXIS 6941 (5th Cir 4/1/2008) Relief denied on the question of whether "Lewis failed to establish by a preponderance of the evidence that he had significantly sub-average general intellectual functioning."   COA denied on "the following two claims: the district court erred by refusing to consider an affidavit not presented in the state-court proceeding; and the State should bear the burden of proving a capital defendant is not mentally retarded. In addition, he seems to request a COA on whether the district court was required to review the scientific methodology applied by the experts in state court. None of these issues satisfies the above-stated standard for granting a COA."

• Roderick Newton v. Quarterman, 2008 U.S. App. LEXIS 6814 (5th Cir 3/31/2008) "Newton seeks a COA on five issues; whether: (1) the trial court erroneously granted the State’s challenge for cause to a venire-member, in violation of the Sixth Amendment; (2) the prosecutor impermissibly called into question Newton’s right not to testify, in violation of the Fifth Amendment; (3) the trial court’s not defining “criminal acts of violence” violated Newton’s due process rights; (4) the trial court relieved the State of its constitutional burden of proving the lack of mitigating circumstances beyond a reasonable doubt; and (5) trial counsel was ineffective at the punishment phase of the trial. None of these issues, especially the three conceded to be foreclosed, satisfies the above stated standards for a COA’s being granted."

• Donald Lee Gilson v. Sirmons, 2008 Ala. Crim. App. LEXIS 72 (10th Cir 4/2/2008) "In habeas proceedings brought by a state prisoner convicted of first degree child abuse murder and sentenced to death, denial of habeas relief is affirmed over claims of error regarding whether: 1) the conviction for capital murder, based on a divided jury verdict as to whether he was guilty of "committing" the child abuse that led to the child's death, or of "permitting" such abuse, violated due process; 2) the imposition of the death penalty violates his Eighth Amendment rights due to the lack of certain unanimous jury findings; 3) the death sentence was disproportionate to his offense; 4) there was an Ex Post Facto violation; 5) his constitutional rights were violated by the trial court's refusal to provide instructions on lesser included offenses; 6) a refusal to allow testimony from defense expert witness violated his constitutional rights; and 7) trial counsel was ineffective for failure to present evidence of petitioner's brain damage." [via Findlaw].

• Jimmy Davis, Jr., v. State, 2008 Ala. Crim. App. LEXIS 72(Ala. Crim. App. 4/4/2008) "On certiorari review the Alabama Supreme Court reversed in part this Court's decision after finding that we had erroneously applied the procedural default grounds in Rule 32.2(a)(3) and (5), sua sponte, to bar Davis's claims that his trial counsel's performance was ineffective. The Supreme Court remanded the case for this Court to consider the merits of Davis's ineffective-assistance-of-counsel claims that were raised in Davis's brief."  As this is the Alabama Court of Criminal Appeals, relief denied.
  

• Michael Sale v. State, 2008 Ala. Crim. App. LEXIS 73 (Ala. Crim. App. 4/4/2008) More next edition

• Kerry Spencer v. State, 2008 Ala. Crim. App. LEXIS 74 (Ala. Crim. App. 4/4/2008) Jury override to death.   Relief denied on all issues, however, remand had "the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, and the principles espoused in Ex parte Taylor, Ex parte Tomlin, and Ex parte Carroll, and the cases cited therein, were not met as the trial court's sentencing order did not state that the jury's recommendation was treated as a mitigating circumstance and did not contain specific findings as to  [*92]  the weight assigned to the jury's recommendation of life imprisonment without parole or the reasons for the judicial override of that recommendation. Thus, we must remand this case to the trial court..."    More next edition

• Thomas Dale Ferguson v. State, 2008 Ala. Crim. App. LEXIS 75 (Ala. Crim. App. 4/4/2008) More next edition

Week of March 31, 2008  – noncapital of note

• Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 2008 U.S. App. LEXIS 6911 (9th Cir 4/2/2008)  In a Section 1983 action,  panel holds inmates have a limited due process right of access to the evidence for purposes of post-conviction DNA testing.

(Initial List)  Week of April 7, 2008 – In Favor of the Defendant or the Condemned

• Frank Spisak, Jr., v. Hudson, 2008 U.S. App. LEXIS 7760 (6th Cir 4/11/2008)  Following remand from the United States Supreme Court prior grant of penalty phase relief is reaffirmed.

• State v. White, 2008 Ohio LEXIS 867 (Ohio 4/9/2008) Relief granted as White is mentally retarded within the meaning of Atkins v. Virginia.
  

(Initial List)  Week of April 7, 2008  – In Favor of the State or Government

• Carl Wayne Buntion v. Quarterman, 2008 U.S. App. LEXIS 7758 (5th Cir 4/11/2008) "Grant of conditional habeas relief on a claim of judicial bias from a conviction for capital murder and death sentence is vacated and relief denied where: 1) although various comments and actions by the trial judge both on and off the bench were highly improper; nevertheless, 2) under the AEDPA's highly deferential standard, a state habeas court's decision was neither an unreasonable application of controlling Supreme Court precedent, nor did it involve an unreasonable determination of the facts in light of the evidence presented." [via Findlaw]

• Alvin Kelly v. Quarterman, 2008 U.S. App. LEXIS 7745 (5th Cir 4/10/2008) (unpublished) "The sole issue on appeal is whether the district court clearly erred in finding that a witness did not recant her trial testimony." Relief denied.

• Robert Jean Hudson v. Quarterman, No. 07-70039 (5th Cir 4/9/2008) (unpublished) "Hudson raises three arguments on appeal. He argues that (1) the district court improperly applied the AEDPA’s standard of deference to the state habeas court’s findings; (2) his trial counsel rendered ineffective assistance by failing to investigate and present at the punishment phase mitigating evidence in the form of testimony from several family members; and (3) the Dallas County Sheriff’s Department forcibly medicated him during trial, which prevented him from effectively assisting his counsel in his defense, interfered with his confrontation rights, and denied him due process of law."

• Abdullah Sharif Kaazim Mahdi v. Bagley, 2008 U.S. App. LEXIS 7766 (6th Cir. 4/11/2008) "Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause." Relief. denied.
  

• State v. Steve Alan Boggs, 2008 Ariz. LEXIS 48 (Az 4/9/2008) More next edition.
  

Week of April 7, 2008  – noncapital of note

• Barbe v. McBride, No. 06-7550 (4th Cir 4/7/2008) State court erred by adopting a per se rule restricting cross-examination of the prosecution's expert under West Virginia's rape shield law.

Selected Excerpts from, & Commentary on, this Edition's Cases
[Please note that formatting below may be askew depending on your viewing platform]

At the outset, we reiterate that had the district court believed disqualification was required because of the risk that the lawyers’ conduct posed to the integrity of the judicial process, the court would not have been justified in permitting either lawyer to remain as Mr. Maughan’s counsel. The district court’s ruling, then, can only be read to mean that the court concluded that the continuing representation of Mr. Maughan by either of his lawyers would not compromise the integrity of the process. We hold that the district court did not abuse its discretion when it declined to disqualify Mr. Maughan’s lawyers on this ground and affirm.The issue left for us to decide is whether the lawyers’ Spokane misadventures created a real, present conflict [*14] of interest or a serious potential, future conflict of interest and, if it did, whether Mr. Maughan could waive any such conflict.. . .

The district court noted as the sole potential conflict the claim that the circumstances surrounding Mr. Mauro’s arrest and Mr. Williams’ Spokane activities could surface to the detriment of Mr. Maughan during his trial. Despite the State’s attempts to describe this conflict, we remain both unable to fully comprehend it and skeptical of the significance of those features that we can grasp.

In an effort to establish Mr. Wagar’s bias in favor of Mr. Maughan, the State suggests that it may attempt to extract testimony from Mr. Wagar that he complied with Mr. Mauro’s alleged admonition not to talk to the police. Even were we to assume [*18] that Mr. Wagar’s allegiance to Mr. Maughan would not have been made so clear by the time the State embarked on this line of cross-examination that it would not have been merely cumulative, we see little justification to expand the inquiry to include the claim that the admonition was unlawful or unethical.

Moreover, every witness Mr. Mauro allegedly instructed not to talk to the Spokane police ultimately did so, and Mr. Williams’ instructions to the witnesses on December 8 undoubtedly played a part. We therefore find it difficult to accept the claim that disclosure of the alleged unlawful instruction would result in the infliction of material damage to the credibility of either lawyer or that any impaired credibility sustained by the two lawyers would infect Mr. Maughan.

Despite our puzzlement and skepticism, we defer to the district court’s finding that the events in Spokane might generate a potential conflict and do not conclude that it was clearly erroneous. Our assessment that the potential conflict is not serious enough as to render it beyond the power of Mr. Maughan to waive is likewise in accord with the district court’s approval of waiver implicit in its decision to permit one [*19] of Mr. Maughan’s lawyers to continue to represent him. We depart from the district court only to the extent that we hold that the potential conflict identified by the district court was of so little consequence that Mr. Maughan should have been afforded the opportunity to waive it with respect to both Mr. Mauro and Mr. Williams. We therefore remand this matter to the district court for the purpose of inviting Mr. Maughan’s waiver of the potential conflict relating to his disqualified counsel, Mr. Williams.

We recognize the challenges that confront a district court when assessing whether a defendant has knowingly and voluntarily waived an attorney’s potential conflict of interest. As we noted above, the specter of being whipsawed by claims of error no matter which way a judge rules is more than fanciful. We are “sensitive to the possibility that a defendant may seek a waiver and then try to use it to his or her advantage later.” State v. Johnson, 823 P.2d 484, 491 (Utah Ct. App. 1991).

We therefore instruct the district court on remand to appoint qualified conflict counsel to represent Mr. Maughan for the limited purpose of ascertaining whether [*20] Mr. Maughan desires to waive the potential conflict with respect to Mr. Williams and to ensure that Mr. Maughan’s waiver is knowing and voluntary.

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