Capital Defense Weekly

Leading off this edition is the Eleventh Circuit's opinion in Herbert Williams, Jr, v. Allen. The Eleventh Circuit in Williams grants penalty phase relief as "trial counsel’s investigation of mitigating evidence in Williams’ background fell short of prevailing professional norms." As a result, counsel "obtained an incomplete and misleading understanding of Williams’ life history" as did the jury. When weighing prejudice the panel notes that case was not "highly aggravated" in light of 9-3 vote for life and the mitigation, both that presented at trial and missed by counsel, taken as a whole, "might have altered the trial judge’s appraisal of Williams’ moral culpability." Tim Cone at the Federal Defender's Defense Newsletter Blog has more.

The Supreme Court Tuesday stayed Troy Davis' execution. The stay appears related to his actual innocence claim. The Court appears to be concerned with the question left open in Herrera - whether factual innocence alone is enough to prevent an execution. Assuming the answer is yes, what standard must the condemned meet before being entitled to relief & what procedural safeguards must be afforded. Davis' stay automatically expires if cert is denied which could occur as early as Monday afternoon.

As hinted above, Monday is the Supreme Court's long conference. In addition to the motion in Kennedy v. Louisiana, discussed in a prior edition, and the Davis petition there are roughly 55-60 capital cases scheduled for the conference. Three of those are deemed by court watchers more likely than the others to get cert (Lucero v. Texas: whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade holdout jurors to impose the death penalty; Quarterman v. Mines: Whether, under the federal habeas statute, the jury instructions given at the defendant’s capital murder trial were a clear violation of Penry v. Lynaugh; & Rivera v. Quarterman: Whether a timely-filed motion for authorization in the courts of appeals, accompanied by the proposed habeas petition, satisfies the one-year filing deadline under AEDPA.). Additionally, there are a large number of noncapital cases the SCOTUSBlog also believes are more likely to get cert (see generally, Kay v. United States: Whether an indictment that omits an element of an offense must be dismissed, and whether the rule of lenity should have been applied to the petitioners’ conduct under the Foreign Corrupt Practices Act; Cate v. Anderson: Whether, under the federal habeas statute, the continued interrogation of a suspect who said “I plead the fifth” was a clear violation of Miranda v. Arizona; & Lee v. Louisiana: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.), than the average matter. The SCOTUSblog has more.

In other news, the Alabama Supreme Court, 6-2, has denied a request from Attorney General Troy King to set another execution date for convicted killer Thomas D. Arthur pending a lower court determination whether Arthur will get access to DNA evidence. The Maryland Commission has held its final public hearing as noted in the Baltimore Sun's "Death penalty on trial." The Charles Hood litigation in Texas is heating up with "death row inmate's lawyers request new trial, citing romance between judge and prosecutor." New Hampshire, which has no one on its death row, and has not in decades, has two capital trials those involving John "Jay" Brook (a contract hit allegation) and Michael "St ix" Addison (an alleged cop killer). After much pretrial hullabaloo, the Brian Nichols trial has begun in Georgia for the so-called Atlanta courthouse shooting. DoJ will release its report on US Attorney firings Monday, including that of former U.S. Attorney Paul Charlton who was purportedly fired for his hesitation in seeking death for Jose Rios Rico. Finally, DPIC notes notes an alleged serial killer in Terrebonne Parish, Louisiana, Roland Dominique has received a life sentence after he pled guilty to the murder of eight young men, and despite possibly killingas many as 23 men.

The next will contain three favorable opinions from the Florida Supreme Court. In Maas v. Olive the court examines the Florida postconviction compensation scheme, its purported caps, and finds it wanting. In Jerry Michael Wickham v. State a remand is ordered as "the postconviction court erred by denying Wickham's motion to disqualify the postconviction judge." Finally, in Anthony Welch v. State a new penalty phase is ordered where the trial court failed to ask "the State for a gender-neutral ground when Welch timely objected to the State's peremptory challenge to a female juror."

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

Pending Executions
October
3 Freddie E. Owens - S.C.*
7-13 Briley Piper - S.D.
14 Richard Cooey - Ohio*
16 Kevin Watts - Tex*
28 Eric Nenno - Tex*
30 Gregory Wright - Tex*

November
6 Elkie Taylor - Tex.*
6 Rogelio Cannaday - Tex.*
12 George Whittaker III - Tex.*
13 Denard Manns - Tex.*
18 Eric Cathey - Tex.*
19 Gregory Bryant-Bey - Ohio*
20 Robert Hudson - Tex.*

• 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. "District judge did not abuse his discretion by declining to recuse himself in capital case involving allegedly highly placed member of certain crime family. Only actions identified by petitioner established no more than that court ruled against petitioner; it did not reveal partiality. Plot to kill judge could not be used as judge-shopping device." [via Lexisone]
  

• 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."

• Derek Sales v. State, 2008 Ark. LEXIS 451 (Ark 9/18/2008) Relief denied on claims including sufficiency (both as to guilt and aggravators) and use of victim impact evidence.
  

• Ledell Lee v. State, 2008 Ark. LEXIS 447 (Ark 9/18/2008) (unpublished) "In a case in which the denial of appellant's petition for postconviction relief was being appealed, appellant's pro se motion requesting the matter be remanded back to the trial court was denied; appellant's pro se claims of ineffective assistance of counsel had not been addressed in the trial court." [via Lexisone]

• Steven Victor Wertz v. State, 2008 Ark. LEXIS 453 (Ark 9/18/2008) "Appellant Steven Wertz appeals from his convictions on two counts of capital murder and his sentence of death. He asserts four points on appeal: (1) that the evidence did not sufficiently corroborate the accomplice testimony; (2) that the jury erred in finding the existence of an aggravator during the sentencing phase; (3) that the jury erred in finding no mitigating circumstance; and (4) that various considerations should be taken into account during this court's review pursuant to Arkansas Rule of Appellate Procedure--Criminal 10 (2008). We affirm Wertz's convictions and sentence." [via Lexisone]

• Eddie Lee Sexton v.State, 2008 Fla. LEXIS 1610 (FL 9/19/2008) "Because defendant failed to demonstrate that penalty phase counsel was deficient in any respect in investigating or presenting defendant's childhood and background mitigation or mental mitigation, and defendant's other examples of ineffective counsel were unavailing, defendant was not entitled to postconviction relief under Fla. R. Crim. P. 3.851." [via Lexisone]
  

• Jerry Michael Wickham v. State,2008 Fla. LEXIS 1617 (FL 9/25/2008) "[W]e reverse and remand for a new evidentiary hearing because the postconviction court erred by denying Wickham's motion to disqualify the postconviction judge."

• Maas v. Olive, 2008 Fla. LEXIS 1623 (FL 9/25/2008) In exceptionally strong language about the importance of post conviction review the Court finds problems with the limitation on fees placed on postconviction counsel. " In a long line of cases, we have consistently held that statutory limits for compensation of counsel may not constitutionally be applied in a manner that would curtail the trial court's inherent authority to ensure adequate representation." "As we explained in Olive I, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates an[ ] economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court." "Maas argues that the rationale of Olive I is no longer valid because the Legislature enacted section 27.7002 to clarify its intent that the fee caps cannot be exceeded in any circumstances. While this may have been the Legislature's intent, such an interpretation of the statute would render it unconstitutional." The Florida Worker's Compensation Blog has one of the better public analysis of the case.

• Anthony Welch v. State, 2008 Fla. LEXIS 1626 (FL 9/25/2008) "[T]he trial court failed to ask the State for a gender-neutral ground when Welch timely objected to the State's peremptory challenge to a female juror as required by Melbourne v. State we vacate Welch's death sentences and remand the case for a new penalty phase."

• Alfred Dewayne Brown v. State, 2008 Tex. Crim. App. LEXIS 852 (Tex. Crim. App. 9/24/2008) "The Court affirmed this death penalty case stemming from an aggravated robbery of a check-cashing business. The Court considered and rejected four issues, well, really three because two were lumped together. First, the Court held that there was sufficient evidence to corroborate the testimony of Brown's accomplice. Brown complained that the only corroboration came from his girlfriend who was a perjurer and a drug abuser (because lying isn't inflammatory enough anymore). Sure she lied to the grand jury, but that's only because Brown told her to. Moreover, other witnesses either placed him at the scene or nearby shortly before or after the robbery. Second, the Court rejected Brown's complaints about his denial of a jury shuffle because he asked for the shuffle after the individual voir dire was over. Finally, the Court considered Brown's claim that the prosecutor attacked the defendant over the shoulders of defense counsel. The prosecutor argued during closing (in response to tactics used by defense counsel during cross-examination and statements made during closing argument) that, "If I had done just a smidgen of what [defense co-counsel] Ms. Muldrow said, I should not only be fired, but I should be indicted. So what she did to you was she lied." The Court held that the prosecutor's arguments were responsive to the arguments and tactics of defense counsel, but the prosecutor had also gone into matters outside the record in that response such that the argument was improper. However, the Court ultimately held the argument was harmless because the statements were clearly directed at defense counsel not the defendant. And the evidence of guilt made the conviction certain. There was no underlying opinion as this was a direct appeal." [via R.J. MacReady]

• James Eugene Hunter v. State,2008 Fla. LEXIS 1636 (FL 9/25/2008) "Hunter challenges the summary denial of each of the four claims raised in his successive postconviction motion: (1) another codefendant was the shooter; (2) defense counsel had an actual conflict of interest in representing Hunter and a State witness; (3) a State witness was incompetent to testify at trial; and (4) violations of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), occurred through the State’s failure to disclose threats and promises to a State witness."

• Jerone Hunter v. State, No. SC06-1963 (FL 9/25/2008) (dissent) Relief denied on claims (A) trial court erred in denying his motion to suppress statements; (B) trial court erred in denying his motion to suppress the shoe laces seized from his temporary residence; (C) trial court erred in denying his motion for mistrial when the fourth perpetrator refused to be cross-examined; (D) trial court erred in denying his motion for judgment of acquittal (note relief granted in relation to the count of abuse of the dead body of victim Gonzalez); (E) trial court erred in denying his motion to sever his trial from that of his two codefendants; (F) use of the conjunction “and/or” between the defendants’ names resulted in reversible error in the guilt phase; (G) trial court’s weighing of aggravating and mitigating factors; (H) proportionality review; (I) lethal injection; and (J) Ring.
  . Dissent would strike the Appellant's brief and order additional briefing.
  

• Steven Edward Stein v. State, 2008 Fla. LEXIS 1627 (FL 9/25/2008) (dissent 4-3) "Stein raises four issues for review. First, Stein argues that Judge Wiggins erred in not granting his motion for judicial disqualification. Second, Stein argues that trial counsel was ineffective at trial for conceding guilt on the robbery charge to the jury where the felony-murder rule applied to his capital charges. Third, Stein argues that counsel was ineffective for failing to investigate and present certain witnesses as mitigation evidence. Fourth, Stein argues that his codefendant’s life sentence is newly discovered evidence entitling him to a reconsideration of his death sentence." Dissent on whether the postconviction judge should have been recused.

• Kenneth Allen v. State, 2008 Ind. App. LEXIS 2103 (Ind 9/24/2008) Relief on interlocutory appeal challenging the denial of the suppression of certain physical evidence affirmed. "Allen was a trespasser. He did not have the owners' permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. Accordingly, we conclude that the trial court did not err in finding that Allen lacked standing to challenge the searches of the Linwood residence pursuant to Article 1, Section 11 of the Indiana Constitution."

• Comm v. Gregory Powell, 2008 Pa. LEXIS 1548 (Pa 9/24/2008) Relief denied on claims relating to sufficiency as to first degree murder (with multiple subissues), prior bad acts, autopsy photos, Comm.'s closing argument (guilt phase), failure to charge involuntary manslaughter, jury instruction as to malice, sufficiency of evidence as to torture aggravator, trial court's confusing instruction on aggs & mits, IAC for failure to object (resulting in numerous of the aforementioned claims being defaulted), and statutory review. Court holds the IAC claims may be raised on collateral review without prejudice.
  

• Comm v. Noel Matos Montalvo, 2008 Pa. LEXIS 1545 (Pa 9/24/2008) Relief denied on claims relating to sufficiency, ineffective assistance of counsel (held not properly raised on direct appeal), submission of murder in perpetration of felony aggravator (not preserved), trial court forcing the defense to close first in the penalty phase (not preserved), and statutory review. Court notes appellate counsel defaulted an additional 44 claims on direct appeal as they failed to adequately brief them to the court.

• Joseph Clifton Smith v. State, 2008 Ala. Crim. App. LEXIS 172 (Ala. Crim. App. 9/26/2008) Covered next week, posted late to Lexis.

• Richard Jerome Flowers v. State, 2008 Ala. Crim. App. LEXIS 168 (Ala. Crim. App. 9/26/2008) Affirmed in an unpublished opinion over dissent , more, hopefully, next week. Still trying to track down a copy of the unpublished opinion as Lexis only has the dissent.

• Jamie Ray Mills v. State, 2008 Ala. Crim. App. LEXIS 161 (Ala. Crim. App. 9/26/2008) Covered next week, posted late to Lexis.
  

• In re: Amendments to Florida Rule of Judicial Administration, 2008 Fla. LEXIS 1633 (FL 9/25/2008) Amends court rules requiring that judges handling capital cases have a certain minimum level of education and felony experience and removes exemption of postconviction proceedings where the postconviction trial court judge presided over the trial save where there is a special waiver from the chief justice.
  

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