The news of the week is best themed "choosing life."

The unique state of the Nebraska's death penalty (retaining capital punishment and a death row but no means to carry out executions) appears likely to continue indefinitely, according to press reports. The Kansas City Star is announcing the Missouri capital rape statute has failed in the legislature. In Collin County, Texas the local  DA  after 18 months,  5,000 man-hours and more than $47,000 re-investigating the case, announced that there is no longer a good-faith basis for upholding the murder conviction of Michael Blair, more in coming days.

The Jackson v. Taylor opinion should have been cited as should have been cited as Jackson v. Danberg, No. 06-300 (D. Del 5/19/2008) and linked as http://capitaldefenseweekly.com/delawarejacksonli.pdf.

As always, thanks for reading. - k

 Week of May 12, 2008 – In Favor of the Defendant or the Condemned

• State v. Gavin D. Scott, 2008 Kan. LEXIS 182 (Kan 5/16/2008) Penalty phase relief granted, and new penalty phase trial ordered, due to errors in the unanimity instruction that created "substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances," multiplicitous instructions on  "aggravating factor," and portions of the penalty phase closing by the state.

• Henry Skinner v. Quarterman,,  2008 U.S. App. LEXIS 10444 (5th Cir 5/14/2008) Certificate of Appealability granted on two issues.   The first issue addresses trial counsel’s “failure to make use of [a] blood spatter report” which indicated a potentially radically different set of events than those put forward by the prosecution at trial.  The second issue on which the panel granted a COA addresses counsel failure to discover and present testimony of a witness who would have “offered strong circumstantial evidence to corroborate the defense theory” that another man, and not Skinner, committed the murder.

• Ex Parte Gene Wilford Hathorn, Jr., No. AP-75,917, Wednesday ordered, after previously rejecting the issues at bar, further briefing. The Court specifically ordered briefing on:

  1. Did applicant object at trial that his jury was not given an adequate vehicle through which it could give effect to his mitigating evidence? Was any other objection specifically pertaining to mitigating evidence made when discussing the charge to be given the jury?

  2. If no objection was made, does this make a difference regarding the resolution of applicant’s allegation?

  3. Was the mitigating evidence presented at applicant’s trial the type of evidence for which applicant was entitled to a separate vehicle?

  4. Although applicant’s direct appeal began prior to the time the United States Supreme Court handed down the decision in Penry, was direct appeal counsel obligated to raise the claim post-submission considering applicant’s direct appeal remained pending in this Court for some three years after the Penry decision was handed down?

• Michael Emerson Correll v. Ryan, 2008 U.S. App. LEXIS 10431 (9th Cir 5/14/2008)  (Amended opinion on denial of rehearing en banc) Denial of petition for writ of habeas corpus is reversed and the case remanded for a new penalty hearing where defendant was constitutionally entitled to the presentation of a mitigation defense, but did not have an opportunity to offer mitigating evidence.

Week of  May 12, 2008  – Noncapital of note

• Regina Denise McKnight v. State, 2008 S.C. LEXIS 142 (S.C. 5/12/2008) McKnight's trial counsel was "ineffective in her preparation of McKnight's defense through expert testimony and cross-examination," as well as that her conviction was based on "outdated" and inaccurate information linking the fetal death to her cocaine use.

• United States v. Paul Ryan Douglas, 2008 U.S. App. LEXIS 10268 (2nd Cir 5/13/2008)  There is no statutory right to two attorneys in a federal capital case once the Government provides notification that it will not seek death.

• United States v. Styles Taylor & Keon Thomas, 2008 U.S. App. LEXIS 10600 (7th Cir 5/13/2008) (unpublished)"District court's decision that government's use of peremptory challenge to exclude African-American potential juror was not exercised in discriminatory manner was reversed and case was remanded for evidentiary hearing because district court in assessing credibility failed to address disparity in government's use of challenges." [via Lexisone.com]

• Drago Ferguson v. Culliver, 2008 U.S. App. LEXIS 10195 (11th Cir 5/12/2008)  Remand ordered as the district Court lacked adequate record on which to decide the merits of the Petitioner's claims.

• Charles Keith Richardson v. Sup. Ct., 2008 Cal. LEXIS 6209 (Cal 5/22/2008) "Denial of petitioner's motion under Penal Code section 1405 for DNA testing of hair samples admitted at trial is affirmed where: 1) the standard of review of a trial court' ruling on a section 1405 motion is abuse of discretion; 2) a defendant is not required to show that a favorable DNA test would conclusively establish his or her innocence because it would be sufficient for the defendant to show that the identity of the perpetrator or accomplice was a controverted issue as to which the results of DNA testing would be relevant evidence; 3) to prevail on a section 1405 motion, a defendant must demonstrate that, had the DNA testing been available in light of all of the evidence, there is a reasonable chance and not merely an abstract possibility that the defendant would have obtained a more favorable result; and 4) although the DNA test would have been relevant to the issue of identity, there was sufficient evidence to determine guilt." [via FindLaw.com]
  

• People v. Charles Keith Richardson, 2008 Cal. LEXIS 6208  (Cal 5/22/2008) "On automatic appeal for a sentence of death, the judgment is affirmed over claims of error regarding: 1) the prosecution's use of peremptory challenges to excuse any prospective juror who expressed reservations about the death penalty and religious affiliation; 2) the excusal of jurors for cause who stated that they could not impose the death penalty; 3) a denial to excuse a potential juror who revealed she would vote automatically for death; 4) an affidavit submitted for a warrant; 5) suppression of a post-arrest statement arising from an unnecessary delay in his arraignment; 6) whether the post-arrest statement should have been excluded because it was involuntary; 7) due process and right to counsel violations arising from relieving the public defender based on a conflict; 8) application of Proposition 115 to defendant's case; 9) admission and exclusion of certain evidence; 10) a prosecutorial decision involving a witness; 11) prosecutorial misconduct in presenting inconsistent theories; 12) sufficiency of evidence regarding lewd conduct; 13) erroneous instruction on sodomy as a basis for felony murder; 14) references to innocence in CALJIC Nos. 1.01, 2.01, 2.51 and 2.52; 15) cumulative effect of guilty phase errors; 16) double counting of special circumstances and consideration of sodomy special circumstance; 17) several evidentiary rulings; 18) denial of motion for modification of death verdict; 19) intercase proportionality; 20) instructional error; 21) challenges to the death penalty statute; 22) international law; 23) prosecution delay; 24) missing transcripts; 25) cumulative error; and 26) incorporation by reference of habeas corpus petition claims. However, the case is remanded on the issue of restitution as the issue should be considered in light of the currently applicable statute."  [via FindLaw.com]

• James Hitchcock v. State, 2008 Fla. LEXIS 917 (FL 5/22/2008) "Denial of a motion to vacate a first degree murder conviction and a sentence of death is affirmed, and a petition for habeas corpus is denied, over claims of error regarding: 1) ineffective assistance of counsel; 2) destruction of exculpatory evidence by the state; 3) newly discovered evidence; 4) the state's failure to disclose deficiencies of the hair analyst and then knowingly presenting incompetent and false testimony; 5) defendant's failure to be present at a bench conference where peremptory challenges were exercised; and 6) a failure of counsel to properly investigate and present statutory mitigating circumstances." [via FindLaw.com]

• Kenneth Hartley v. State, 2008 Fla. LEXIS 918 (FL 5/22/2008) Relief denied as: "[h]aving reviewed the briefs and heard oral argument in the case, we hold (1) that Hartley failed to demonstrate that trial counsel provided ineffective assistance during the penalty phase by failing to call certain witnesses or present a mental health expert; (2) that Hartley did not preserve his claim that newly discovered evidence shows the State presented false or misleading evidence at trial; and (3) that Hartley's claim that collateral counsel provided ineffective assistance is not a cognizable claim."
  

• State v. Laderrick Campbell, 2008 La. LEXIS 1183 (LA 5/21/2008) (dissent) Relief denied on claims including, most notably, lack of capacity of the defendant, competency to waive counsel, mental retardation under Atkins, and the trial court's failure to remove for cause a life hesitant juror.

• Jeffrey Keith Havard v State, 2008 Miss. LEXIS 264  (Miss 5/22/2008) Relief denied on a large number of claims including:  ( I) Ineffective assistance of counsel for failure to adopt defense strategy during guilt phase; ( a) Failure to obtain DNA evidence; ( b) Failure to secure a pathologist; ( c) Failure to include a lesser-offense instruction; ( II) Ineffective assistance of counsel for failure to investigate, develop and present mitigation evidence during penalty phase; ( III) Ineffective assistance of counsel for failing to develop and  [*5]  present compelling evidence of Havard's childhood and family life in mitigation of punishment; ( IV) Ineffective assistance of counsel for failing to develop and introduce Havard's successful adaptation at Camp Shelby as mitigating evidence during the penalty phase; ( V) Ineffective assistance of counsel for failing to ask potential jurors "reverse-Witherspoon" questions during voir dire; ( VI) Ineffective assistance of counsel during closing argument at the penalty phase; ( VII) Prosecutorial misconduct during closing argument at the guilt phase; ( VIII) Victim impact testimony; ( IX) Whether the trial court improperly responded to a question from the jury during the sentencing phase; ( X) Limiting instruction of especially heinous, atrocious, or cruel aggravating circumstance; ( XI) Failure of the indictment to charge a death-penalty-eligible offense; ( XII) Jury consideration of aggravating circumstances; ( XIII) Competency of trial counsel; and ( XIV) Cumulative error.

• Michael A. Taylor v. State, 2008 Mo. LEXIS 43 (Mo. 5/20/2008) Relief denied on two claims. "First, Taylor alleged that he was abandoned by post-conviction appellate counsel because counsel did not brief and argue ineffective assistance of counsel during his plea and the first sentencing hearing. Second, Taylor alleged that the doctrine of judicial estoppel warrants re-opening his case because the State took the position in the state court that Taylor's claims of ineffective assistance of plea counsel were fully litigated but then argued in federal court that those claims were barred based upon failure to fully litigate the issues in state court."

• Comm . v. Jerome Marshall, 2008 Pa. LEXIS 706 (Penn 5/20/2008) "In a capital case, a trial court properly dismissed appellant's second post-conviction petition as he waived any Batson error by failing to raise the issue on direct appeal, as required by 42 Pa.C.S. § 9544(b), the petition was manifestly untimely and he failed to establish any exception to the timeliness requirement under 42 Pa.C.S. § 9545."  [via Lexisone.com]

• State v. Gregory B. McKnight,  2008 Ohio 2435  (Ohio 4th App 5/19/2008) "Trial counsel's performance was not deficient. Counsel's decision not to present mitigating evidence in the death penalty phase regarding childhood issues of paternal abandonment and the lack of a father figure was a strategic decision to avoid opening the door to the inmate’s prior juvenile murder adjudication, pursuant to Evid. R. 405(B). " [via Lexisone.com]

(Initial List) Week of  May 19, 2008  – Noncapital of note

• Frederick Jess Harris v. Haberlin, 2008 U.S. App. LEXIS 10880  (6th Cir. 5/22/2008)  District Court erred in not giving greater weight to a videotape suggesting that prosecutors used race based strikes to shape Petitioner's jury pool.
  

Selected Excerpts from, & Commentary on, this Edition's Cases
[Note formatting may be off below this point.]

Rebecca E. Woodman and Steven R. Zinn won today in State v. Gavin Scott, No. 83,801 (May 16, 2008). The court affirmed most of Scott's convictions (including capital murder), but reversed his conviction for premeditated murder, and reversed his death sentence. The court remanded Scott’s case to the district court for a new sentencing phase.

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