Capital Defense Weekly

The theme of this edition is mitigation may not make newspaper headlines, but it saves lives - in this edition it may have saved three.

In Wilson v. Sirmons the Tenth Circuit remands for further factual development of a penalty phase ineffective assistance of counsel claim. Trial counsel hired an expert a few days before trial, did no meaningful mental health investigation, and did a fly by prep of the expert right before penalty phase began. Despite counsel's deficient performance the state court denied relief on the merits without holding a hearing. Finding that trial counsel's performance was deficient but that the record needed to be further developed before a prejudice analysis could be made, the panel remands.

In the other notable federal habeas decision, Van Hook v. Anderson (a pre-AEDPA case) a three-judge panel of the Sixth Circuit granted penalty phase relief. The panel holds trial counsel failed to adequately investigate and present evidence in mitigation, for failing to adequately employ experts for an insanity defense, and for failing to object to fairly inflammatory victim. Note favorable reference to the ABA standards for counsel in capital cases. Trial counsel's performance “prevented the three-judge panel from learning fully about the two statutory mitigating factors that were the strongest and allowed unconstitutional and damaging evidence to come before the sentencing panel."

In the third favorable result, the Arizona Supreme Court reduced Phillip Alan Bocharski capital sentence to life. On direct appeal the Court holds the record fails to support a finding of the "heinous or depraved" aggravator. Further, "[a]lthough a “difficult family background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency in every capital case, we can consider both the degree to which a defendant suffered as a child and the strength of a causal connection between the mitigating factors and the crime “in assessing the quality and strength of the mitigation evidence.” Balancing this powerful mitigation against the sole remaining aggravator (age of the victim), Mr. Bocharski's sentence must be reduced to life.

In other news the AP has interviewed Dr. Alan Doerhoff who calls himself the "world's authority on lethal injection." He's presided over about 40 executions, and said he assisted Missouri, Arizona and the federal government in both modernizing their execution procedures and carrying out executions. He has been banned from participating in Missouri executions due to his dyslexia. Doerhoff has been sued for malpractice more than 20 times and was reprimanded by the state for not disclosing them. More here.

In Texas the next execution involves Jeff Wood and application of the Texas' “law of parties” doctrine. The Texas law of parties doctrine holds a conspirator liable if two or more people plan to commit one crime but another crime occurs making each person equally responsible for that crime, if it was foreseeable. In his case, Wood did not fire the gun that killed and wasn't inside the gas station when his friend fired the fatal shot. Nonetheless, according to the State, Wood is responsible for the death and should be executed. Press, DPIC, and related blogs.

DPIC notes that "[t]he Fordham Urban Law Journal has published a series of articles based on a symposium on lethal injection that was held at Fordham Law School in March 2008. The issue includes articles by Professor Deborah Denno of Fordham, a leading historian and expert on methods of execution, Judge Jeremy Fogel, a federal judge overseeing the challenge to lethal injection in California, Judge Fernando Gaitan, a federal judge who oversaw the challenge to Missouri's lethal injection process, and articles by doctors and other experts who spoke at the symposium."

DPIC also notes, "[t]he Maryland Commission on Capital Punishment began hearing testimony from a wide variety of witnesses on issues related to the state's death penalty system. After gathering information regarding matters such as possible racial, geographic and socioeconomic disparities, on costs, and on the risks of executing the innocent, the 23-member Commission will offer recommendations to the General Assembly to ensure that Maryland’s use of the death penalty is 'free from bias and error' and achieves 'fairness and accuracy'.”

Looking ahead, one favorable opinion is already noted. In Ricky Lynn Lewis v. Quarterman, the Fifth Circuit on a successive petition remands to the district court for further factual development of petitioner's Atkins claim.

I should note that this week's news round-up drew heavily from the work of Steve Hall, Project Director of Stand Down - Texas, as well as DPIC. As always thanks for reading, for forgiving the typos in advance, and understanding that the downturn in the economy has seen a corresponding rise in my indigent defense practice and related obligations. - k

September
9 Gregory Wright -Tex.*
9 Frank Williams, Jr., - Ark*
10 Charles Hood - Tex.*
17 William Murray -Tex.*
17 John Middleton - Mo.*
18 Joseph Ries -Tex.*
23 Richard Henyard - FL*
25 Jessie Cummings - Okla*

October
7-13 Briley Piper - S.D.
14 Richard Cooey - Ohio*
16 Kevin Watts - Tex*
28 Eric Nenno - Tex*

Recent Executions
August
5 Jose Medellin - Tex.
7 Heliberto Chi - Tex.
12 Leon Dorsey - Tex.
14 Michael Rodriguez Tx (v)

Recent Notable Stays
August
20 Denard Manns - Tex.*

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

Week of August 4, 2008 – In Favor of the Defendant or the Condemned

Robert J. Van Hook v. Anderson, 2008 U.S. App. LEXIS 16544 (6th Cir 8/4/2008) "District court erred in denying § 2254 habeas relief to death-sentenced Ohio prisoner, Ohio Rev. Code Ann. § 2929.04; trial counsel was ineffective under U.S. Const. amend. VI at the mitigation phase because he failed to perform complete mitigation investigation, to secure independent mental health expert, and to object to inadmissible evidence." [via Lexisone] " Denial of habeas relief in a death penalty case is reversed and remanded where petitioner's trial counsel was prejudicially ineffective during the sentencing phase for: 1) failing to fully investigate and present as evidence all available mitigating factors; 2) failing to secure or attempt to secure an independent mental health expert to testify that the crime was the product of a mental disease; and 3) mistakenly introducing and failing to object to proscribed evidence that was clearly damaging to petitioner's case." [via Findlaw]

Michalel Lee Wilson v. Sirmons, 2008 U.S. App. LEXIS 16862 (10th Cir 8/8/2008) (dissent) "Michael Lee Wilson, a death row inmate in the Oklahoma State Penitentiary, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Wilson was convicted of one count of murder in the first degree and robbery with a dangerous weapon. In the sentencing phase, the jury found three statutory aggravating factors. He was sentenced to death for the first degree murder and to life in prison for the robbery. For the reasons set forth below, we affirm the district court as to all issues other than ineffective assistance of counsel at the mitigation phase; with respect to that issue we remand for an evidentiary hearing. Judge Hartz and Judge Tymkovich join all but Part III of this opinion, which addresses the ineffective assistance of counsel claim. Judge Hartz joins Part III(c) and concurs in the result of Part III. Judge Tymkovich dissents from the holding of Part III." Good language on deference owed under AEDPA.

Michael Bies v. Bagley, 2008 U.S. App. LEXIS 16491 (6th Cir 8/5/2008) (dissent) Motion to rehear en banc denied. "Concurring in denial: Bies v. Bagley is an easy case. It warrants no further review by the en banc Court. As the panel opinion correctly explained, the collateral estoppel doctrine which the Supreme Court articulated in Ashe v. Swenson mandates that Michael Bies be granted a writ of habeas corpus. Moreover, even if any uncertainty did exist regarding the proper application of Ashe, Bies' case provides an abysmal vehicle to resolve such alleged uncertainty because the Supreme Court's decision in Sattazahn v. Pennslyvania provides an alternative grounds upon which Bies is entitled to relief. Thus, despite the dissent's efforts to stir controversy where none exists, the en banc Court correctly decided not to subject Bies to further unnecessary litigation"

State v. Phillip Alan Bocharski, 2000 Ariz. LEXIS 134 (Az 8/8/2008) "Bocharski’s mitigation evidence is unique in its depth and breadth. The evidence in the record demonstrates severe neglect, as well as almost unimaginable mental, physical, sexual, and emotional abuse throughout his childhood. The record also reveals Bocharski’s history of alcohol abuse and intoxication at the time of the crime. Finally, he established the impact of execution on his family and his remorse. Although a “difficult family background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency in every capital case,” we can consider both the degree to which a defendant suffered as a child and the strength of a causal connection between the mitigating factors and the crime “in assessing the quality and strength of the mitigation evidence.” Hampton, 213 Ariz. at 185 ¶ 89, 140 P.3d at 968 (citation and internal quotation omitted). Here, [however,] we have evidence of a causal connection."

Week of August 4, 2008 – In Favor of the State or Government

Gregory Lott v. Bagley, 2008 U.S. App. LEXIS 16728 (6th Cir. 8/8/2008) " Denial of habeas relief in a death penalty case is affirmed where: 1) new evidence of prosecutorial wrongdoing did not undermine the finding of guilt; 2) thus, petitioner could not proceed with his otherwise procedurally defaulted claim that the state violated his due process rights by failing to turn over certain "exculpatory" information in violation of Brady." [via Findlaw]

Stacey Eugene Johnson v. Norris, 2008 U.S. App. LEXIS 16742 (8th Cir 8/8/2008) "Given the absence of Supreme Court guidance on the issue of whether the right to confront a witness should trump the state's psychotherapist-patient privilege, the decisions of the Arkansas courts to enforce the privilege and prevent Johnson from obtaining the treatment notes of his victim's minor daughter were within the range of reasonableness allowed by the Antiterrorism and Effective Death Penalty Act; nor did the Arkansas courts err in denying a related Brady argument; Arkansas courts did not err in finding counsel acted within the wide range of professionally competent assistance when he advised Johnson not to testify at a pretrial hearing; counsel's failure to raise a constitutional challenge to the trial court's refusal, on a state law ground, to allow one of his witnesses to testify was not ineffective assistance of counsel as there was no basis for a constitutional challenge to the decision; Arkansas courts did not err in rejecting Johnson's vagueness argument with respect to the aggravating circumstance that the murder was committed in an "especially cruel manner;" Arkansas courts did not err in finding admission of victim impact testimony did not violate Johnson's constitutional rights; Arkansas courts correctly applied established federal precedent in determining a change of venue did not deprive Johnson of his constitutional right to trial by a fair cross-section of the community." [8th Circuit Clerk's Office] "Denial of habeas relief in a death penalty case is affirmed over claims of error regarding: 1) whether petitioner's rights under the Sixth and Fourteenth Amendments were violated when the district court denied him access to a witness's psychotherapist records; 2) whether trial counsel was ineffective at a pre-trial suppression hearing; 3) trial counsel was ineffective in failing to raise a challenge to a refusal to admit a witness's testimony; 4) an aggravating circumstance that the murder was committed in "an especially cruel manner"; 5) the use of victim impact testimony at the sentencing phase; 6) a change of venue; and 7) whether the certificate of appealability should be expanded to include a claim regarding DNA testing of evidence." [via Findlaw]

Richard Earle Shere, Jr., v. Secretary, Florida DoC, 2008 U.S. App. LEXIS 16623 (11th Cir 8/8/2008) "A district court's denial of a Florida death row inmate's petition for a writ of habeas corpus was affirmed since the Florida Supreme Court's denial of his ineffective assistance of appellate counsel claim was neither contrary to, nor an unreasonable application of, clearly established United States Supreme Court law." [via Findlaw]

State v. Kevin Keith, 2008 Ohio 3866 (Ohio 8/7/2008) Motion to reopen appeal denied as untimely. "Keith claims to have had good cause for filing his application late because during his state postconviction and federal habeas corpus litigation, he was represented by the same counsel who had represented him on direct appeal before the court of appeals. We cannot agree with Keith’s contention that this circumstance constitutes good cause for his delay in filing his application. We have rejected claims that an applicant had good cause for filing an untimely App.R. 26(B) application because his original appellate counsel were still representing him in collateral litigation"

(Initial List) Week of August 11, 2008 – In Favor of the Defendant or the Condemned

Ricky Lynn Lewis v. Quarterman, 2008 U.S. App. LEXIS 17156 (5th Cir 8/12/2008) Remand on an Atkins claim raised on a successive petition. The issue before the panel in Lewis is whether an affidavit submitted for the first time in federal habeas review — and hence unavailable to the state court in making its factual determinations — could be considered by the district court. The affidavit counters the findings of the State’s expert as to whether Mr. Lewis is mentally retarded. Specifically, the creator of the IQ test relied upon by the State’s expert asserts that the methodology used in testing of Mr. Lewis artificially inflated his IQ.

(Initial List) Week of August 11, 2008 – In Favor of the State or Government

Khristian Oliver v. Quarterman, 2008 U.S. App. LEXIS 17307 (5th Cir 8/14/2008) "Oliver argues that the jury violated his rights under the Sixth and Eighth Amendments by considering passages from the Bible during the sentencing phase of its deliberations. Although the jury improperly consulted the Bible, the state court found that the Bible did not influence the jury’s decision. As Oliver has not presented clear and convincing evidence to rebut this factual finding, we AFFIRM the district court’s decision to deny the writ."

Terry Lee Hankins v. Quarterman, No. 07-70015 (5th Cir 8/15/208) (unpublished) COA denied on claims that: "(1) the district court erred in denying his ineffective assistance of counsel claims when his counsel failed to properly and adequately present mitigating evidence from Petitioner’s childhood; failed to employ an expert to gather, analyze, and present the mitigating evidence; failed to have Petitioner tested by a qualified forensic psychologist; and failed to object to the court’s jury instruction on mitigation; (2) the district court erred in ruling that the jury instruction on the mitigation issue did not violate the Eighth and Fourteenth Amendments; (3) Article 37.071(2)(e)(1) of the Texas Code of Criminal Procedure, relating to mitigation, is unconstitutional because it does not place a burden of proof on the state; and (4) the lethal injection method of execution used by the State of Texas violates the Eighth Amendment."

Michael Beuke v. Houk, 2008 U.S. App. LEXIS 17163(6th Cir. 8/13/2008) "Dismissal of a petition for writ of habeas corpus in a death penalty case is affirmed over claims of error regarding whether: 1) petitioner procedurally defaulted fifty-eight of the eighty-eight claims in his habeas petition; 2) petitioner procedurally defaulted his Brady claim; 3) his right to an impartial jury was violated; 4) testimony of a victim's wife at the guilt phase violated his due process rights; 5) denial of a continuance violated his constitutional rights; 6) petitioner received ineffective assistance of counsel; 7) prosecutorial misconduct occurred; 8) the trial court violated his Eighth Amendment rights by instructing the jury not to consider sympathy when issuing its recommended sentence; 9) Ohio's death penalty scheme is unconstitutional; and 10) certain evidentiary motions were improperly denied." [via Findlaw]

Matthew Wrinkles v. Buss, 2008 U.S. App. LEXIS 17150 (7th Cir 8/12/2008) (dissent) Trial counsel provided deficient performance in failing to object to the trial court's order placing a stun belt on their client. The error, however, was harmless on these facts as the record does not indicate jurors observed the stun belt. The dissent notes that this reading of the record borders on silly.

Eric John King v. Schriro, No. 06-99006 (9th Cir 8/11/2008) "Denial of a petition for a writ of habeas corpus in a death penalty case is affirmed over claims of error regarding: 1) prosecutorial misconduct by vouching for one witness and implying that another witness was scared of petitioner; and 2) ineffective assistance of counsel at sentencing." [via Findlaw]

Daniel Wayne Cook v. Schriro, 2008 U.S. App. LEXIS 17233 (9th Cir 8/14/2008) "Denial of habeas relief for petitioner convicted of first-degree murder and sentenced to death is affirmed over claims that: 1) his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; 2) his co-defendant's plea agreement violated his right to a fair trial; 3) the prosecutor improperly commented on his failure to testify and his post-Miranda silence; 4) the trial court erred by failing to instruct the jury on second-degree murder; 5) the ineffectiveness of his appellate counsel excused his procedural default of some claims; and 6) the sentencing court failed to consider evidence of intoxication and his prior mental health history as mitigating factors before imposing the death penalty. (Amended opinion)" [via Findlaw]

Max Landon Payne v. Allen,2008 U.S. App. LEXIS 17173 (11th Cir 8/13/2008) "In a capital case, denial of a petition for writ habeas corpus challenging the sentence is affirmed where petitioner failed to show a state courts' decision on his ineffective counsel claims was: 1) contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or 2) based on an unreasonable determination of the facts in light of the evidence presented in the Rule 32 proceedings." [via Findlaw]

People v. Keone Wallace, 2008 Cal. LEXIS 9774 (Cal 8/14/2008) "Conviction and sentence in a death penalty case are affirmed on automatic appeal over claims of error regarding: 1) alleged improper shackling; 2) violation of defendant's right to be present; 3) the right of the victim's step-grandson to attend the trial; 4) rulings on defense challenges for cause; 5) bailiff misconduct; 6) evidentiary rulings; 7) denial of a mistrial motion; 8) a refusal to allow certain impeachment of a witness; 9) prosecutorial misconduct; 10) instructional error; 11) insufficiency of the evidence; 12) improper admission of aggravating evidence; 13) alleged intimidation of the foreperson by a defense witness; 14) prosecution rebuttal; 15) denial of an automatic application for modification of the death verdict; 16) the constitutionality of the death penalty law and instructions; 17) international law; 18) the proportionality of the sentence; and 19) cumulative error." [via Findlaw]

People v. Jackie Ray Hovarter, 2008 Cal. LEXIS 9705 (Cal 8/11/2008) "In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) admission of evidence of a jailhouse informant's testimony; 2) admission of evidence of defendant's crimes against another victim; 3) admission of statements made to the other victim; 4) admission of certain company log sheets; 5) the sufficiency of the evidence; 6) jury instructions during the guilt and penalty phases; 7) defendant's jury waiver for a penalty phase retrial; 8) whether the death penalty violates international law; 9) constitutional challenges to the death penalty; and 10) cumulative err." [via Findlaw]

People v. John Mungia, 2008 Cal. LEXIS 9773 (Cal 8/14/2008) Torture-murder special-circumstance finding vacated for lack of evidence. "Conviction and sentence in a death penalty case is vacated as to a torture-murder special-circumstance finding, which was supported by insufficient evidence, but otherwise affirmed on automatic appeal over claims of error regarding: 1) denial of continuance requests and removal of the public defender as counsel; 2) the appointment of another attorney; 3) denial of a Marsden motion; 4) admission of evidence; 5) jury instructions; 6) denial of an automatic application to modify the verdict; 7) the constitutionality of the death penalty; 8) international law; and 9) cumulative error." [via Findlaw]

SMALL PRINT

SUBSCRIBING & ARCHIVES: The summaries above are normally published forty (40) times (or so) a year.

1997-2008 COPYRIGHT / DISCLAIMER / FAIR USE NOTICE: In plain English, you can use these materials without attribution (although I would appreciate the attribution) for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc.). You can't use the works created by others contained in this newsletter identified above (normally selected excerpts from the works of others) as I simply can't give away the rights of others to their intellectual property. Any derivative works must provide at least as equal or greater waiver of intellectual property rights. Nothing in this newsletter constitutes legal advice. The legalese, copyright, disclaimers, notices, & terms of usage are available in full here. Where in conflict with the plain English version of this disclaimer / copyright notice, please go with the legalese

ADDITIONAL DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which the writer(s) have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent an attempt to show what a given Court held, not whether a particular court reached the right decision The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note the citation method we use is to permit readers to readily find opinions either from a given court, Lexis, or the free Lexis product Lexisone.com.

OPEN RESEARCH DATA: Search terms for the weekly are "DEATH PENALTY" OR "CAPITAL MURDER" OR "SENTENCED TO DEATH" OR "PENALTY PHASE" OR "SPECIAL QUESTIONS" OR "SENTENCE OF DEATH" OR "SENTENCED TO DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon" - please note, however, the terms "overproduce" results, including all federal habeas corpus cases.

Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts.