Capital Defense Weekly

The South Carolina Supreme Court's decision in Donney S. Council v. State, affirming the grant of penalty phase relief, leads off this edition. The justices ruled, 4-1, that trial counsel should have done more than simply have Council's mother testify during the sentencing phase of his trial. Council suffered head trauma as a child, his father was a violent alcoholic, and his family had a pronounced history of mental illness "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."

In other news, on September 15, Fulton County Superior Court Judge Melvin Westmoreland granted a stay of execution for Jack Alderman in Georgia until he could receive a meaningful clemency hearing; the Parole Board met and then denied clemency on Sept. 16 and Jack Alderman was executed shortly thereafter. SCOTUS Blog's Lyle Denniston reports on the latest filings in Kennedy v. Louisiana in "Court urged to hold fast against death for child rape." In Delaware mediation has been ordered in that state's lethal injection suit. Murder Victims’ Families for Human Rights (MVFHR) and the National Alliance on Mental Illness (NAMI) are working together to launch a national project concerned with the intersection of the the death penalty people with severe mental illness.

In innocence news, a new DNA test shows that hair found clenched in the hand of a fatally beaten woman in 1985 does not match either the State's theory of the case or Paul House. The Death Penalty Information Center has added Michael Blair to its list of men and women exonerated from death row becoming the 130th person sentenced to death to be exonerated since 1973. The Virginia Department of Forensic Science has been awarded $4.5 million for a DNA study aimed at finding people who may have been wrongly convicted , according to a recent DoJ press release. Johnnie Earl Lindsey has become the 19th person exonerated in Dallas County Texas, after serving more than a quarter of a century for a rape he did not commit. Finally, the "Dallas County DA wants to re-examine nearly all of pending death row cases," in light of his predecessors' less than spectacular record for getting the right man.

Looking ahead to the next edition, the Eleventh Circuit in Herbert Williams, Jr, v. Allen grants penalty phase relief as "trial counsel’s investigation of mitigating evidence in Williams’ background fell short of prevailing professional norms" and he has otherwise satisfied both "components of an ineffective assistance of counsel claim;" remand ordered on a Batson claim as well. The Fifth Circuit in Jeffrey Demond Williams v. Quarterman remands certain "post-judgment motions" for a determination in the first instance of the appropriateness of "a COA on those issues."

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

• 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]

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."

• United States v. James Seale, 2008 U.S. App. LEXIS 19238 (9/9/2008) Statute of limitations ran well before the prosecution was initiated in light of the crime of kidnapping being rendered noncapital more than three decades prior to the prosecution
  

• Herbert Williams, Jr, v. Allen, 2008 U.S. App. LEXIS 19625 (11th Cir 9/17/2008) In this 9-3 jury override to death, penalty phase relief granted as "trial counsel’s investigation of mitigating evidence in Williams’ background fell short of prevailing professional norms, and that the Alabama Court of Criminal Appeals unreasonably applied Strickland" and he has otherwise satisfied both "components of an ineffective assistance of counsel claim." The district court erred in finding Mr. Williams' Batson claim procedurally defaulted and as such a remand on that issue is appropriate.
  
  
• Jeffrey Demond Williams v. Quarterman, No. 07-70006 (5th Cir 9/19/2008) (unpublished) "For the reasons stated above, we affirm the district court’s denial of habeas corpus relief on Williams’s claim of mental retardation. However, because we lack jurisdiction to consider Williams’s appeal of his post-judgment motions, we remand to the district court to consider whether to grant or deny a COA on those issues."

• In re Vincent Basciano, 2008 U.S. App. LEXIS 19683 (2nd Cir 9/17/2008) Petition for writ of mandamus to remove the trial judge pending over this matter is denied as the district judge did not abuse his discretion by refusing to recuse himself even where the Government seeks to introduce evidence that the Defendant on trial plotted to have the trial judge killed.
  

• Reginald Blanton v. Quarterman, No. 07-70023 (5th Cir 9/19/2008) "Blanton argues that (1) trial counsel was ineffective in his investigation and presentation of mitigation evidence during the sentencing phase of Blanton’s trial, (2) trial counsel was ineffective in his failure to properly preserve Blanton’s Batson claim, and (3) appellate counsel was ineffective in her presentation of his Batson claim on direct appeal to the Texas Court of Criminal Appeals (“CCA”). For the following reasons, we affirm the judgment of the district court denying habeas relief."

• Roy Willard Blankenship v. Hall, 2008 U.S. App. LEXIS 19557 (11th Cir 9/15/2008) "Blankenship has failed to overcome the “strong presumption” that his counsel’s performance at the 1986 resentencing was reasonable.  For the reasons stated above, a reasonable view of the record demonstrates Blankenship has not proved counsel was unaware of his life history and did not make a reasonable, strategic choice to pursue residual doubt. Therefore, the state court did not unreasonably apply Strickland in finding Blankenship’s counsel were not ineffective at the final resentencing trial." “Because death row inmate did not prove that counsel was unaware of his life history and did not make a reasonable, strategic choice to pursue residual doubt, state court did not unreasonably apply Strickland in finding counsel was not ineffective at inmate's final resentencing trial, and district court's denial of his habeas petition was affirmed. ” [via Lexisone] Tim Cone at the Federal Defender's Defense Newsletter Blog has more.

• Holly Wood v. Allen, 2008 U.S. App. LEXIS 19613 (11th Cir 9/16/2008) (dissent) "We affirm the district court’s November 20, 2006 order denying Wood’s Atkins and Batson claims but reverse the order’s grant of the writ based on ineffective assistance of counsel and remand with instructions to deny Wood’s § 2254 petition." “Sixth Amendment ineffective-assistance claim failed; evidence supported finding that experienced counsel decided (1) calling doctor would not be in petitioner's best interest and (2) against presenting mental health evidence. Petitioner did not show decision not to call doctor to testify about mental deficiencies fell below reasonableness standard.” [via Lexisone] Tim Cone at the Federal Defender's Defense Newsletter Blog has more.
  

• Arnold Prieto v. Quarterman, 2008 U.S. App. LEXIS 19713 (5th Cir 9/15/2008) (unpublished)  "Prieto insists that the district court erred in holding that (1) he procedurally defaulted on his federal due process jury-misconduct claim, and (2) even assuming, arguendo, that his claim is not subject to procedural bar, it should be denied on its merits. Convinced that the district court properly ruled that Prieto procedurally defaulted on his federal jury-misconduct claim, we affirm."

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