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

Week of August 18, 2008 – In Favor of the Defendant or the Condemned

• Jesse Bond v. Beard, 2008 U.S. App. LEXIS 17726 (3rd Cir 8/20/2008) Trial counsel  failed to adequately investigate the Condemned’s social history. "Counsel for Bond failed to meet this constitutional minimum. Had they investigated Bond’s background and mental health, they would have presented a starkly different picture of Bond to the jury at the penalty phase than the one they actually presented. A reasonable lawyer who understood Bond’s life history would not have proceeded on the theory that he had led a productive life before going on a crime spree as a result of a series of disappointments. Such an attorney instead would have presented evidence to the jury of Bond’s abusive and neglectful family life, his low intelligence, and his psychiatric and psychological problems. There is a reasonable probability that this different course, even in the face of competing expert testimony introduced by the Commonwealth, would have resulted in the imposition of a life sentence."

• Jasper N. McMurtrey v. Ryan, 2008 U.S. App. LEXIS 17821 (9th Cir 8/21/2008)  "We hold that McMurtrey's memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey's mental competence to stand trial. The state trial court's failure to conduct a competency hearing at that time violated McMurtrey's due process rights. The retrospective competency hearing held thirteen years after trial was insufficient to cure this due process violation. Accordingly, we AFFIRM the district court's decision to grant McMurtrey's habeas petition on this ground. Because this issue is dispositive, we need not address the remaining issues on appeal or on cross-appeal."

• Reginald Jells v. Mitchell, 2008 U.S. App. LEXIS 17550 (6th Cir 8/18/2008) "Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s background in preparation for mitigation. The Ohio Court of Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of professionally competent assistance constituted an unreasonable application of federal law as determined by the Supreme Court in Strickland."

• Jeffrey Woods v. Quarterman.Civ No. SA-01-CA-423-OG (WDTex 8/21/2008) Ford stay. With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”
• State v. James Granvil Wallace, 2008 Ariz. LEXIS 144 (Az 8/22/2008) Each of Wallace's death sentences was based on the same aggravating circumstance - that he committed the murders in an especially heinous and depraved manner." "But senselessness and helplessness, without more, generally do not render a killing especially heinous or depraved.   Our conclusion that  the jury was improperly instructed on the issue of gratuitous violence therefore requires that we vacate the three death sentences."  "We conclude that the State did not present sufficient evidence to prove the defendant had the required mental state" as to one victim  on the issue of gratuitous violence.  As to the other two
  

• Robert Lee Thompson v. Quarterman, 2008 U.S. App. LEXIS 17949 (5th Cir 8/19/2008) (unpublished) COA denied on a request for  "a COA on each of the 15 issues raised in his federal petition. He also maintains the district court erred in denying his motions to expand the record with certain unspecified documents, and for discovery, an evidentiary hearing, and a stay."

• Michael Rosales v. Quarterman 2008 U.S. App. LEXIS 17964 (5th Cir 8/19/2008) (unpubilshed) Certificate of Appealability  granted on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia.  Relief denied, however, on the merits.

• Comm. v. Thomas. W. Hawkins, 2008 Pa. LEXIS 1292 (PA 8/19/2008) Giglio violation was not timely raise. Court holds despite the factual basis of that claim only being discovered after the one year state statute of limitations for post-conviction petitions, facts suffiicent to plead the claim were learned prior to the discovery of the facts sub judice. "Therefore, appellant has not established his claim falls within either the newlydiscovered evidence exception or the governmental interference exception to the PCRA’s timeliness requirements." "Inmate's Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., petition was untimely as the timeliness exceptions in § 9545(b)(1)(i) and (ii) were not shown; a leniency agreement with a witness was denied during the inmate's direct appeal, and the district attorney's testimony at the witness's 1991 sentencing was a matter of public record." [via LexisOne]

• State v. Dale Wayne Eaton, Nos. 04-180 & 06-255 (Wyo 8/18/2008) Wyoming's captial trial unit is, in reality, one attorney.  Chosing between finding that attorney ineffective or overlooking some serious errors in trial performance, the Eaton Court affirms. Note that the opinion heavily relies on the ABA
  

• Albert Holland, Jr. v. State, 2008 U.S. App. LEXIS 17552 (11th Cir 8/18/2008) "28 U.S.C.S. § 2254 habeas corpus petition was properly dismissed as untimely where it was filed after expiration of one-year limitations period, and equitable tolling was not warranted because attorney's alleged negligence in responding to inmate's inquiries did not constitute extraordinary circumstance warranting tolling, as bad faith was lacking."

(Initial List) Week of August 25, 2008 – In Favor of the Defendant or the Condemned

• United States v. Eben Payne, 2008 U.S. App. LEXIS 18502  (6th Cir. 8/28/2008) Involuntary medication to render competent appeal in this Federal Death Penalty case. "In its order, the district court ruled that, in addition to continuing to medicate defendant for safety reasons, the government could constitutionally administer anti-psychotic drugs to defendant in an effort to render him competent to stand trial. However, it placed a four-month limitation on this enhanced involuntary treatment, as well as other restrictions. For the reasons that follow, the order of the district court is affirmed."
  

• United states v. Ronald Mikos, 2008 U.S. App. LEXIS 18157 (7th Cir 8/16/2007)  (dissent) "Defendant was properly convicted of murder of witness and sentenced to death since warrantless seizure of defendant's firearms was harmless, seeking inference of guilt from missing firearm which was properly tied to murder weapon was proper comment, and vulnerability of obese victim and lack of remorse were properly considered at sentencing." [via Findlaw]
  

• People v. Gunner Jay Lindberg, 2008 Cal. LEXIS 10432 (Cal 8/28/2008) "Evidence of White supremacist defendant's racist statements and  expert testimony on Whilte supremacy movement properly introduced to  support special circumstance of murder because of victim's race, etc.  (PC 190.2(a)(16) ("hate-murder" special circ.).) See also People v. Sassounian (1986) 182 Cal.App.3d 361." [via Electric Lawyer] " In a death penalty case, conviction and sentence are affirmed on automatic appeal over claims of error regarding: 1) evidence admitted at trial regarding prior uncharged crimes; 2) sufficiency of the evidence of first degree felony murder and the robbery special circumstance; 3) a jury instruction on evidence of other crimes; 4) sufficiency of evidence of the hate-murder special circumstance; 5) prejudice caused by expert evidence regarding white supremacy; 6) the constitutionality of jury instructions on the death penalty; 7) the court's failure to clarify the meaning of "life without the possibility of parole"; 8) the constitutionality of the death penalty statute; and 9) cumulative error. " [via Findlaw]

• People v. Paul Joe Carasi, 2008 Cal. LEXIS 10355 (Cal 8/25/2008) "Even though court would not allow case-specific questions in questionnair, it informed jurors about about specific facts and charges, and several jurors said they took those into consideration. Therefore, court's procedures were adequate to ascertain attitudes on case-specific factors." [via Electric Lawyer]   " In a death penalty case, the conviction and sentence is affirmed on automatic appeal over claims of error regarding: 1) jury selection; 2) denial of severance; 3) ex parte in camera meetings; 4) admission of evidence regarding a bankruptcy consultation; 5) a pathologist's testimony; 6) provocation and lesser included offense instructions; 7) the sufficiency of the evidence of financial gain; 8) Skipper/Lockett error; 9) lingering doubt evidence; 10) prosecutorial misconduct; 11) the effect of the ex parte in camera meetings on a modification motion; and 12) the validity of the death penalty law. " [via Findlaw]

• State v. Scott A. McLaughlin, 2008 Mo. LEXIS 153 (Mo 8/26/2008) "In a 6-0 decision written by Chief Justice Laura Denvir Stith, the Supreme Court of Missouri affirms the conviction and sentence. The trial court did not err in instructing the jury or, after the jury deadlocked after making the factual findings necessary to increase punishment from a life sentence to death, in imposing the death penalty. In entering judgment on the defendant's rape conviction, the trial court properly applied the "ongoing criminal assault rule;" it is not necessary for the victim to be alive at the time of the rape for the defendant to be guilty of forcible rape. The trial court properly admitted the victim's hearsay statements and did not err in submitting to the jury one lesser-included offense instead of, or in addition to, another." [via Missouri Clerk of Court]

• Pablo San Martin v. State, 2008 Fla. LEXIS 1460 (FL 8/28/2008) Relief denied on claims relating to: "(1) denial of access to public records, whereby the State withheld material impeachment evidence; (2) guilt-phase ineffective assistance for failing to present evidence; (3) guilt-phase ineffective assistance for failing to object to an individual juror's participation in the trial; (4) guilt-phase ineffective assistance for failing to timely request a Richardson hearing; (5) guilt-phase ineffective assistance for failing to object to inflammatory and prejudicial comments elicited by the State; (6) guilt-phase ineffective assistance for failing to object to improper bolstering of witness credibility; (7) guilt-phase ineffective assistance for failing to object to State's closing argument regarding mutually exclusive factual theories of prosecution; (8) the State withheld material exculpatory or impeachment evidence; (9) penalty-phase ineffective assistance for failing to present mitigation evidence; (10) ineffective assistance of counsel at voir dire, for failing to challenge an objectionable juror for cause, failing to reassert his challenge for cause against another unqualified juror, and failing to object to the court limiting his ability to backstrike members of the panel; (11) the trial court failed to conduct an adequate cumulative error analysis; (12) due process violation because the rules prohibit Evans from interviewing jurors to determine if constitutional error was present during deliberations; (13) Evans' sentence violates Ring[; 14] ineffective assistance of appellate counsel for failing to raise meritorious issues on direct appeal, including the denial of Evans' motion for a mistrial and request for a Richardson hearing based on Brady and discovery violations, and the denial of Evans' motion for a mistrial and Richardson hearing when the State's witness improperly and without prior notice testified as to the character of Evans; [15] Evans' sentence of death constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution because of his mental impairments and his age at the time of the crime; and [16] Florida's capital sentencing procedure deprived Evans of due process rights to notice and a jury trial under Ring and Apprendi . "

• Paul H. Evans v. State,2008 Fla. LEXIS 1459 (FL 8/28/2008) "In a capital murder case, denial of postconviction relief is affirmed and habeas relief denied over claims of error regarding: 1) denial of requests for public records; 2) ineffective assistance of trial and appellate counsel; 3) undisclosed Brady evidence; 4) the constitutionality of rules barring the defense from interviewing jurors for possible misconduct; 5) the constitutionality of Florida's death sentencing statute; 6) the prohibitions against executing juveniles and the mentally retarded; and 7) cumulative error. " [via FindLaw]

• Alvin Leroy Morton v. State, 2008 Fla. LEXIS 1457 (FL 8/28/2008) "In a capital murder case, denial of postconviction relief is affirmed and petition for habeas relief is denied where: 1) petitioner failed to demonstrate that his counsel rendered deficient performance with respect to investigating petitioner's background and evaluating his mental health, or that he was prejudiced by it; 2) petitioner's claim that he received an inadequate mental health evaluation was procedurally barred; 3) the postconviction court was not required to take judicial notice of the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases; 4) an evidentiary hearing was not required on new evidence that would influence the weight given to age as a mitigating factor; and 5) petitioner raised no habeas claims that warranted relief. " [via Findlaw]
  

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