Capital Defense Weekly
available at http://capitaldefenseweekly.com/archives/080616.htm

Looking ahead, albeit in an abbreviated manner, three favorable opinions are noted.  In the aptly named State v. Darrell Edward Payne the Idaho Supreme Court holds that too much of the wrong type of victim impact evidence was put before the trial court and therefore a new penalty phase hearing must be had.  In Comm. v. Kenneth J. Williams the Pennsylvania Supreme Court grants relief on a "layered" ineffective assistance of counsel relating to the failure of trial counsel to conduct an adequate investigation in to mitigation and, correspondingly, failing to present that same mitigation evidence to the jury. Finally, in Darlie Lynn Routier v. State the Texas Court of Criminal Appeals has granted DNA testing.

Finally, I’m teaching the “baby habeas” / “intro to habeas” at this year’s ABCNY death penalty training. My handout for resources is here. The links are to resources for litigators from those who have never handled a habeas case to resource materials for those who have handled dozens of them.

As always, thanks for reading, and my apologies for the large number of typos in this edition. - k

Pending Executions
June
25 Robert Yarbrough - Va*

July
1 Mark Schwab - Fl.*
10 Carlton Turner - Tex.*
10 Kent Jackson - Va*
14 Eric Hanson - Ill (L)
14 Tamir Hamilton - Nev
22 Lester Bower - Tex.*
22 Kevin Young; - Okla*
23 Derrick Sonnier - Tex.*
24 Christopher Emmett Va*
28 Gregory Decay - Ark.
31 Larry Davis - Tex.*

August
5 Jose Medellin - Tex.*
12 Leon Dorsey - Tex.*
14 Michael Rodriguez Tx* (v)
20 Denard Manns - Tex.*
21 Jeff Wood -Tex.*

September
9 Gregory Wright -Tex.*
17 William Murray -Tex.*
18 Joseph Ries -Tex.*

Recent Executions
June
4 Curtis Osborne - Ga.
6 David Hill - SC (V)
11 Karl Chamberlain - Tex
17 Terry Lyn Short - Okla
20 James Earl Reed - S.C.

Notable Stays
June
3 Derrick Sonnier - Tex.
17 Charles Hood -Tex.

July
24 Edward Bell - Va

Recent Commutations
June
10 Percy Walton - Va

* "serious" execution date / (L) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin & AP]

SCOTUS

• Indiana v. Ahmad Edwards, 2008 U.S. LEXIS 5031 (6/19/2008) The Sixth and Fourteenth Amendments permitted the trial court to find that Respondent lacked the mental capacity, even if he was otherwise competent to proceed to trial, to conduct his trial defense unless represented.

• Lakhdar Boumediene v. Bush, 2008 U.S. LEXIS 4887 (6/12/2008)  Limitations placed on the Great Writ for those incarcerated at Guantanamo Bay violated U.S. Const. art. I, § 9, cl. 2, and the procedures of the Detainee Treatment Act, were not an adequate and effective substitute for habeas corpus.

Week of June 2, 2008 – In Favor of the Defendant or the Condemned

• Joe D'Amberosio v. Bagley, 2008 U.S. App. LEXIS 11967 (6th Cir. 6/5/2008) A panel splits on whether: "Where a habeas petitioner makes a Brady claim that the government suppressed or withheld mitigating evidence, when does the government “expressly waive” its defense that the petitioner failed to exhaust the Brady claim in state court? In this case, a divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. On this basis, the court upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition. Judge Rogers wrote the opinion of the court, joined by Judge Gibbons. Chief Judge Boggs dissented in part." via Volokh’s Jonahtan Adler

• Derrick Sonnier, 2008 Tex. Crim. App. Unpub. LEXIS 414 (Tex Crim App. 6/3/2008) (unpublished) Stay granted on lethal injection challenge (stay later dissolved).

•  Ex parte Cody Duane Davis, 2008 Tex. Crim. App. Unpub. LEXIS 397 (Tex. Crim. App. 6/4/2008) (unpublished) Returned to the trial court for further factual development on claims that" his trial counsel rendered ineffective assistance because he (1) did not object to the totality of the extraneous misconduct in Applicant's statement to Robert Harris; (2) repeatedly elicited testimony from Mike Williams that Applicant was simulating CPR on the complainant; (3) did not object when the State argued during closing that 300 bruises were found on the complainant and that seven of her ribs were broken; (4) focused on Applicant's absence of intent during closing arguments, when Applicant could have also been found guilty of knowingly causing the complainant's death;   and (5) failed to impeach the medical examiner after eliciting from her that the complainant had five broken ribs."
  

• Ex parte Kim Ly Lim, 2008 Tex. Crim. App. Unpub. LEXIS 407 (Tex. Crim. App. 6/4/2008) (unpublished)  "Applicant's third claim concerning the nullification instruction given at the punishment stage of his trial should  not have been dismissed as an abuse of the writ but [is now] remanded to the trial court for its consideration."

Week of June 2, 2008 – In Favor of the State or Government

• Preson Hughes v. Quarterman, 2008 U.S. App. LEXIS 12118 (5th Cir 6/5/2008) Relief denied, following a COA grant, on issues relating to: "(1) Whether the claim is procedurally barred that the jury instructions at the punishment phase of the trial gave the jury no means for considering and giving effect to Hughes’s mitigating evidence and, if not, whether the claim has merit; (2) Whether, at the punishment phase, the jury was improperly allowed to consider a prior conviction that was later overturned on appeal; and (3) Whether, at the punishment phase, the prosecutor violated Hughes’s Fourteenth Amendment rights by suggesting to the jury that Hughes’s counsel was callous and morally wrong to put Tracy Heggar, the rape victim who testified as a witness for the State, through the rigors of cross-examination."

• In re Cesar Roberto Fierro, 2008 U.S. App. LEXIS 11741 (5th Cir 6/2/2008) "As a result of the Supreme Court’s ruling in Medellin, Fierro has not made a prima facie showing that his claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, as required by 28 U.S.C. § 2244(b)(2)(A)."

• Adam W. Davis v. State, 2008 Fla. LEXIS 1063 (FL 6/5/2008) "Death row inmate's counsel was not deficient for failing to call experts at suppression hearing to testify that sleep deprivation and being under influence of LSD made his murder confession involuntary, as testimony at Fla. R. Crim. P. 3.851 hearing did not support these claims, and suppression of confession was unlikely to have changed outcome." [via Lexisone]

• Ex parte John Manuel Quintanilla, Jr., 2008 Tex. Crim. App. Unpub. LEXIS 404 (Tex. Crim. App. 6/4/2008) (unpublished)  Relief denied on postconviction relief without a discussion of the claims for relief.
  

• Thomas Alexander Porter v. Comm., 2008 Va. LEXIS 78 (VA 6/6/2008) "The case presents some of the familiar litany of death penalty issues, but in my view, it will be known in legal circles primarily for what it says about a trial court’s subject matter jurisdiction when the venue of the trial gets changed.  The case is decided by a vote of 5-2, with the majority voting to affirm; Justice Agee writes the principal opinion.  Justice Koontz files the principal dissent, and Justice Keenan files a short statement in which she agrees with Justice Koontz on one dispositive issue, that of subject matter jurisdiction.  (Justice Keenan writes that, in her view, the trial court had no subject matter jurisdiction, so Porter "thus ultimately will be executed based solely on the indictments that were returned against him."  Now, that'll get your attention.)" [via Virigina Appeals, which has a thorough  analysis of the venue issue]

• Tony Carruthers v. Worthingon, 2008 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 6/2/2008) "Dismissal of the inmate's habeas corpus petition was affirmed because he failed to comply with the procedural requirements for filing a petition, when he failed to include copies of the judgments of conviction under which he claimed he was illegally detained, and failed to state whether the legality of his restraint had already been adjudicated." [via Lexisone]

• Brandon Washington v. State, 2008 Ala. Crim. App. LEXIS 99 (Ala. Crim. App. 5/30/2008) Relief denied, most notably on a jury instruction that was not preserved. The Court suggests had the issue been preserved it would have likely granted a new sentencing hearing. "This instruction improperly states that the jury had to find that the mitigating circumstances outweighed the aggravating circumstances before it could return a verdict recommending a sentence of life in prison without the possibility of parole. It does not provide any guidance to jurors regarding what the verdict should be if they find that the mitigating circumstances and the aggravating circumstances are of equal weight."

• State v. Robert W. Bethel, 2008 Ohio App. LEXIS 2322 (App Dist 10^th Ohio 6/5/2008) "When a death row inmate's post-conviction relief petition, under R.C. 2953.21, was dismissed, an appellate court could not consider his claim that he should have been allowed to pursue civil discovery because the Ohio Supreme Court had ruled that discovery was unavailable, and stare decisis barred a court of appeals from making a contrary decision." [via Lexisone]

Week of June 9, 2008 – In Favor of the Defendant or the Condemned

• Fernando Belmontes, Jr. v. Ayers, 2008 U.S. App. LEXIS 12630 (9^th Cir 6/13/2008) "We affirm the district court’s ruling that Belmontes received deficient representation at the penalty phase of his trial, but set aside its ruling that he suffered no prejudice as a result. We hold that counsel’s failure to introduce adequate lay witness testimony regarding Belmontes’s childhood experiences and his failure to explain to the jury the consequences of the minimal mitigating evidence he did introduce was prejudicial, especially in light of the scant aggravating evidence and the uncertainty the jury indicated about the sentence it should impose. We also hold that counsel’s failure to introduce expert witnesses to testify to the relationship of the type of childhood traumas suffered by Belmontes to future criminal conduct, and thus to offer important mitigating expert testimony was prejudicial and thus provides a separate and independent basis for reversal, again especially in light of the circumstances referred to above. Accordingly, we remand to the district court with instructions to grant the petition for writ of habeas corpus and to return the case to the San Joaquin County Superior Court to reduce Belmontes’s sentence to life without parole, unless the State pursues a new sentencing proceeding within a reasonable amount of time, as determined by the district court."

• State v. William Joseph Moore, 2008 N.C. LEXIS 493 (NC 6/12/2008) Moore "was granted a new trial on direct appeal to the North Carolina Supreme Court. (This happens approximately never.) The trial judge allowed Moore to represent himself and plead guilty without making sure that Moore understood the consequences of doing so, or even the nature of the punishment he faced." [via Death Watch North Carolina]

• Michael Rivera v. State, 2008 Fla. LEXIS 1069 (FL 6/12/2008) Remand ordered for an evidentiary hearing as: (a) "the record does not conclusively refute Rivera's extensive factual allegations that the State knowingly presented false or misleading testimony in violation of Giglio and withheld favorable evidence in violation of Brady" and (b) the trial court should way that the weight of whether the evidence recovered from the crime scene  contained DNA other than that f Michael Rivera.

Week of June 9, 2008 – In Favor of the State or Government

• Perry Eugene Williams v. State, 2008 Tex. Crim. App. LEXIS 692 (Tex. Crim. App. 6/11/2008) (dissent) Relief denied, on what appears to be a major decision on the mitigation/nullification special question as it relates to: (A) use of victim impact evidence in the guilt & penalty phase, (B) sufficiency of future dangerousness, (C) indictment's failure to allege special issues, (D) waiver of the mitigation special issue & the use of victim impact and character evidence (any error held harmless), (E) execution impact testimony, (F) failure to give a "residual doubt instruction", (G) limitations on the defense's presentation, (H) request to argue mitigation last,  and (I) parole instruction argument.

• Ex parte Karl Chamberlain, 2008 Tex. Crim. App. Unpub. LEXIS 434 (Tex. Crim. App. 6/9/2008) )(dissent)(unpublish) Relief and stay denied on lethal injection claims.

• Ex parte Derrick Sonnier, 2008 Tex. Crim. App. Unpub. LEXIS 433(Tex. Crim. App. 6/9/2008) (dissent) (unpublish) Relief and stay denied on lethal injection claims.

• Ex parte Heliberto Chi, 2008 Tex. Crim. App. LEXIS 690 (Tex. Crim. App. 6/11/2008) A writ of prohibition is the appropriate avenue to challenge a lethal injection protocol in  Texas, however, the Texas protocol does not violate the state or federal constitutions.

• Ex parte John Avalos Alba, 2008 Tex. Crim. App. LEXIS 691 (Tex. Crim. App. 6/9/2008) (dissent) An application under Article 11.071 is not the appropriate avenue for a lethal injection claim.

(Initial List) Week of June 16, 2008 – In Favor of the Defendant or the Condemned

• State v. Darrell Edward Payne, 2008 Ida. LEXIS 121 (Ida 6/18/2008) "Payne appeals the issue of whether the admission of "inflammatory" and inadmissible victim impact statements violated his constitutional rights.  He argues that the "thinly veiled" sentencing recommendations and numerous characterizations and opinions offered about Payne and the crime both during the testimony and in the letters attached to the PSI were all inadmissible under Booth v. Maryland. He also contends that the "emotionally laden and detailed presentation[s]" during the victim impact statements violated his rights under Payne v. Tennessee.. . . Considering the nature and high volume of the victim impact statements, even in light of the presumption, the statements by the district court show there is reasonable doubt as to whether the inadmissible evidence contributed to Payne's sentence. None of the characterizations of Payne and his crime were presented during the guilt phase, and none were admissible at sentencing." [a more nuanced review next week]

• Comm. v. Kenneth J. Williams, 2008 Pa. LEXIS 919 (Pa 6/17/2008) Relief granted on "layered" ineffective assistance of counsel (that is direct appellate counsel should have raised trial counsel's ineffectiveness).  Specifically, as to trial counsel, "[t]he PCRA court's essential finding, however -- that the omission from consideration by the sentencing jurors of the diagnosis of Axis I major mental-health disorders and recent psychiatric hospitalizations occurred in this case in the absence of a sufficient investigation and without strategic or tactical justification -- is supported by the evidence. n8 Further, the PCRA court reasonably concluded that there is a sufficient probability that, had the jurors been apprised of the evidence, at least one would have found the mitigating circumstance under Section 9711(e)(2) and determined that its weight was equal to or greater than the single aggravating circumstance."

• Darlie Lynn Routier v. State, No. AP-75,617 (Tex. Crim. App. 6/18/2008) DNA testing granted as the evidence was not so overwhelming that favorable DNA testing would not have resulted in a different verdict.
  

(Initial List) Week of June 16, 2008 – In Favor of the State or Government

• People v. Lanell Craig Harris, 2008 Cal. LEXIS 7331 (Cal 6/19/2008) Relief is denied, most notably, on certain “omissions from the appellate record, the faulty instruction on the felony murder special circumstance, and the failure to properly reinstruct the jury at the penalty phase”
  

• Rodney James Alcala v. Sup. Ct. of Orange Cty, 2008 Cal. LEXIS 6850 (Cal 6/18/2008) Alcala faces five capital murders, one in Orange County & four in Los Angeles County.  The People seeks to try him in Orange County on all five murders, rather than in Los Angeles County where the bulk of the murders occurred.  Writ of Prohibition denied as  the evidence underlying the five murder charges supported a conclusion, by a preponderance of the evidence, that petitioner was the perpetrator in each, and the factual similarities among the charges tended to support a finding of intent to kill and premeditation.

•  Jose Antonio Jimenez v. State, No.  SC05-2373 (FL 6/19/20008) Relief denied on claims including Brady, disqualification of the trial court,  trial counsel was ineffective due to the failure to adequately investigate, and factual innocence related  claims raised in a successive petition.

• Perry Alexander Taylor v. State, No. SC06-615 (FL 6/19/20008) Relief denied on newly discovered evidence, ineffective assistance of counsel, and his Brady and Giglio claims.

• State v. James Were, 2008 Ohio LEXIS 1615 (Ohio 6/17/2008)  Ohio Supreme Court unanimously overrules all 33 allegations of error. Claims denied include, most notably,: (1) claim that Were is mentally retarded; (2) whether retardation should be tried to a jury and not a judge; and (3) mere presence was not sufficient to support conviction.

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Execution information derived from Rick Halperin, DPIC & media accounts