Capital Defense Weekly

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 the demands of an indigent defense practice and related obligations. - k

• Joseph Kindler v. Horn, 2008 U.S. App. LEXIS 18815 (3rd Cir 9/3/2008) "To summarize: we conclude that the jury instructions and verdict sheet that were used during the penalty phase of Kindler’s trial denied him due process of law pursuant to the holding in Mills v. Maryland. We also find that Kindler was denied effective assistance of counsel during the penalty phase. However, we find no merit in the remainder of Kindler’s claims."

• David Barnett v. Roper, 2008 U.S. App. LEXIS 18926 (8th Cir 9/5/2008) "Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process."

• Harry Jones v. State, 2008 Fla. LEXIS 1565 (FL 9/4/2008) Relief denied on claims relating to: (A) Brady/Giglio violations; (B) failure to investigate and present mitigation information; (C) "summary denial of two claims of ineffective assistance of counsel: (1) failing to object to the use of shackles during voir dire; and (2) failing to object to improper prosecutorial argument;" (D) Ring; (E) jury instructions improperly shifted the penalty phase burden; and (F) undue dilution of jury's responsibility for a verdict.of death.

• Jack E. Alderman v. Donald, 2008 U.S. App. LEXIS 19072 (11th Cr 9/3/2008) "Plaintiff Jack E. Alderman, a Georgia death row inmate, appeals the dismissal of his claim, brought under 42 U.S.C. § 1983, challenging Georgia's three-drug lethal injection method. n1 The district court dismissed Alderman's complaint because it held that the claim was time-barred and the lethal injection protocol was substantially similar to the one upheld by the Supreme Court in Baze v. Rees, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion). We do not address Alderman's substantive arguments because we affirm the district court's dismissal of his claim under the applicable statute of limitations."

• State v. Shannon Johnson, 2008 Del. Super. LEXIS 299 (Del Super 9/5/2008) Decision respecting trial court's imposition of a death sentence.

• Ex parte Roy Burgess, Jr. (In re: Roy Burgess, Jr. v. State of Alabama), 2008 Ala. LEXIS 191 (Ala 9/5/2008) "Because we conclude that Burgess's claims that certain jurors failed to answer accurately questions that were posed to them during the voir dire examination are not precluded, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Burgess's juror-misconduct claims and a determination as to whether Burgess is entitled to a new trial."

• Donney S. Council v. State, 2008 S.C. LEXIS 281 (SC 9/8/2008) "Given there is evidence to support the PCR judge’s holding that Respondent’s trial counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of Respondent’s trial, we affirm the PCR judge’s decision vacating Respondent’s sentence and ordering a new sentencing hearing.  We, however, find the PCR judge erred in continuing indefinitely one of the PCR grounds until Respondent regains competence. Because Respondent’s assistance is not required for PCR counsel to present the issue regarding whether Respondent’s trial counsel was ineffective in failing to adequately investigate Respondent’s mental competence at the time the crimes were committed, we reverse the PCR judge’s order on this issue and remand for the PCR judge to rule based on the evidentiary record presented at the PCR hearing in addition to any relevant evidence admitted at the hearing on remand."

• Gary Johnson v. Quarterman, 2008 U.S. App. LEXIS 19331 (5th Cir 9/9/2008) (unpublished) COA granted on issues relating to whether: " [ ] The State’s suppression of evidence that two of the State’s witnesses at trial had been hypnotized violated Johnson’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); and [ ] Johnson’s trial counsel rendered ineffective assistance by calling Johnson’s brother, Terry, as a witness at the guilt phase of trial." Additionally, the panel will address, in its opinion the third question of whether: "The district court erred by refusing to consider the affidavits of attorneys on the issue of whether Johnson’s trial counsel rendered constitutionally ineffective assistance."

• United States of America  v. Dustin Lee Honken, 2008 U.S. App. LEXIS 19331 (8th Cir 9/12/2008) "In a case involving circumstances in which defendant and his girlfriend kidnapped and murdered a potential witness, a witness, the witness's girlfriend, and the girlfriend's two young daughters, defendant's conviction and death sentence is affirmed over claims of error regarding: 1) double jeopardy; 2) admission of maps drawn by defendant's girlfriend which led investigators to the victims' bodies; 3) a decision to shackle defendant, bolt the shackles to the floor, and force him to wear a stun belt during trial; 4) the substitution of one juror with an alternate; 5) alleged jury taint; 6) a Continuing Criminal Enterprise instruction; 7) defendant's intent as an eligibility factor and an aggravating factor; 8) denial of a motion to allocute before the jury; 9) whether the prosecutor's penalty phase closing argument misled jurors and violated defendant's Eighth Amendment rights; 10) the constitutionality of the death penalty; and 11) submission of statutory aggravating factors! to the grand jury." [via FindLaw]

• Thomas Francis Edwards v. Ayers, 2008 U.S. App. LEXIS 19180 (9th Cir 9/9/2008) "In a death penalty appeal, an order denying habeas corpus relief due to unconstitutional jury instructions, suppression of evidence and ineffective assistance of counsel is affirmed where: 1) the "lying in wait" jury instruction satisfied the Eighth Amendment by sufficiently narrowing the class of defendants eligible for the death penalty; 2) the evidence allegedly suppressed was detrimental to defendant; and 3) defense counsel relied upon qualified experts and declined to present evidence likely unfavorable to defendant. " [via FindLaw]

• Richard Henyard v. State, SC08-222 (FL 9/10/2008) "In a capital-murder case, denial of a motion for postconviction relief is affirmed and petition for all writs jurisdiction denied over claims of error regarding: 1) newly-discovered evidence that defendant's then-juvenile codefendant had actually committed the murders; 2) unconstitutional statutory limitations on a capital defendant's right to counsel; 3) the constitutionality of Florida's method of lethal injection; 4) the exemption of the disclosure of the identity of an executioner from public records; 5) defendant's mental health status; and 6) denial of evidentiary hearings when there is a signed death warrant." [via FindLaw]

(Initial List) Week of September 8, 2008 – Noncapital

• Scott Leslie Carmell v. Quarterman, 2008 U.S. App. LEXIS 19261 (5th Cir 9/8/2008)(unpublished) Relief granted on appellate IAC. "Carmell’s attorneys completely failed to challenge the State’s case during remand proceedings [from the SCOTUS]in the Texas Court of Appeals. Specifically, Carmell’s first court-appointed attorney on remand, Whitlock, failed to discuss the case with him. And, Carmell’s second court-appointed attorney, McKeathen, failed to check with Whitlock, the State’s attorney, or the court in order to determine the status of the case before the Texas Court of Appeals’ judgment was issued; failed to file a timely motion for leave to file a supplemental brief or for extension of time; and ultimately failed to file a brief in the Texas Court of Appeals responding to the State’s arguments. Without any brief filed on his behalf, Carmell was deprived of his right to challenge the State’s characterization of the trial evidence and the legal theory upon which the Texas Court of Appeals searched the record de novo for corroboration of the victim’s testimony. In addition, McKeathen never notified Carmell of his appointment as attorney of record, thereby leaving Carmell entirely unaware of what was occurring in the appeal process. These aggregated errors undermined the reliability of the process. And, they are of sufficient magnitude to warrant the presumption of prejudice and for us to conclude that Carmell’s constitutional right to the effective assistance of counsel on appeal (after remand) was violated."
  

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