No favorable decisions are noted for the period from May 19, 2006 to May 26, 2008.

In the news,  Prof. John Blume of Cornell University Law School  has done the herculean task of compiling a rough number of  cases, 83,  in which an inmate’s death sentence was reduced in light of Atkins v. Virginia (2002).  The Alabama Legislature finished its annual session at midnight on May 19, 2008 and among the bills dying at that hour was H.B. 456 which would have made repeat offenses of first degree rape, sodomy, or sexual abuse a capital crime where the victim was under the age of 12.  A year has passed since a jury has recommend a death sentence in United States v. Gorge "Porgy" Lecco and Valerie Suzette Friend, this article looks at why a death sentence hasn't been imposed. After being held prisoner by the US for six years, the last Briton in Guantanamo faces death penalty.  In Louisville,  a Jefferson Circuit Court judge ordered Kentucky State Police Crime Lab to continue DNA testing that could eventually free  Brian Keith Moore. 

New scholarship is noted. The Weekly hasn't touched on new scholarship at length in sometime, and the amount of new articles is mind boggling.  All of the new capital scholarhip spotted is listed here.  Of the new articles some jumped out immediately due to the authors or subject.  Rose Jade has this article and related attachments & sample pleadings on Guideline 10.7(B)(2) of the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases (2003). Douglas A. Berman and Stephanos Bibas write Engaging Capital Emotions:pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility which looks at moral outrage and the justiifications for capital child rape. [Berman, Douglas A. and Bibas, Stephanos, "Engaging Capital Emotions" . U of Penn Law School, Public Law Research Paper No. 08-21 Available at SSRN: http://ssrn.com/abstract=1139184]. Christopher Slobogin has Capital Punishment and Dangerousness, which seems, at least on first blush, a potentially useful article for those who litigate in jurisdictions where such aggravators are used. [Slobogin, Christopher, "Capital Punishment and Dangerousness" . MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY, PUNISHMENT AND COMPETENCE, R. Schopp, ed. Available at SSRN: http://ssrn.com/abstract=1135647].  Dan Givelber & Amy Farrell have Judge and Juries: The Defense Case and Differences in Acquittal Rates which appears in Law & Social Inquiry, Vol. 33, No. 1, pp. 31-52, Winter 2008. And perhaps the best named piece, William P. Redick, Jr., Bradley A. MacLean & M. Shane Truett, Pretend Justice -- Defense Representation in Tennessee Death Penalty Cases, 38 U. Mem. L. Rev. 303 (2008).

CapDefNet's Week-At-A-Glance notes a fair number of federal district court losses on habeas review denial.  They note win the federal district courts, however.  "On April 24, 2008, Judge Solis granted habeas relief to Charles Mines Jr., as to his death sentence, pursuant to the instructions of the Fifth Circuit. Mines v. Quarterman, 3:00-CV-2044 (N.D. Tex. April 24, 2008). See Mines v. Quarterman, 2008 WL 510510 (5th Cir. Feb. 26, 2008) (Texas special issues precluded jury from giving mitigating effect to evidence of mental illness)"

As always, thanks for reading. - k

• 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) The Mississippi Supreme Court, 7-2, denies relief  despite a real possibility, maybe even probability, that no murdered had occurred. Radley Balko at Reason Magazine also looks at this case.. 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]

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.
  

(Initial List) Week of  May 26, 2008 – In Favor of the Defendant or the Condemned

• Luis Hidalgo v. Eighth Judicial Dist. Court of Nev., 2008 Nev. LEXIS 37; 124 Nev. Adv. Rep. 33 (Nev 5/29/2008) "[W]e consider whether solicitation to commit murder is a felony involving the use or threat of violence to the person of another within the meaning of the death penalty aggravator defined in NRS 200.033(2)(b). We conclude that it is not. We also consider whether the State's notice of intent to seek the death penalty against petitioner satisfies the requirements of SCR 250(4)(c). We conclude that it does not. However, we conclude that the State should be allowed to amend the notice of intent to cure the deficiency.   Accordingly, we grant the writ petition in part and instruct the district court to strike the two aggravating circumstances alleging solicitation to commit murder as prior violent felonies pursuant to NRS 200.033(2) and to allow the State to amend its notice of intent to seek the death penalty with respect to the factual allegations supporting the pecuniary gain aggravator."

• Rickery Roberts, a/k/a Less McCullars v. State, 2008 Fla. LEXIS 937 (FL 5/29/2008) "As the postconviction court did not find the testimony of a recanting State's witness credible, and did not find that there was a reasonable probability that had other alleged Brady materials been disclosed to the defense, the result of the proceeding would have been different, it properly denied inmate postconviction relief. " [via Lexis One]
  

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