Capital Defense Weekly

Leading off this edition are three 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."

The Supreme Court's term begins this Monday.  Keeping with tradition, the Court granted cert this past week in a handful of criminal cases, including one capital, Montejo v. Louisiana, 07-1529 (congrats to the Capital Appeals Project). The most interesting of the seven on the list, at least from this vantage point here Montejo v. Louisiana (Whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney. Opinion below  // Petition for certiorari // Brief in opposition) and Vermont v. Brillon Docket: 08-88 Title: Vermont v. Brillon (Issue: Whether delays caused by a public defender can deprive a criminal defendant of his right to a speedy trial. Opinion below (Supreme Court of Vermont) // Petition for certiorari // Brief in opposition // Petitioner’s reply). The Court took no action in Troy Davis’s case, although cert denial may well occur Monday morning, along with approximately 55 other cases.

The Supreme Court also, as most by now know, refused rehearing in Kennedy v. Louisiana. The SCOTUSBlog’s analysis begins this way:

After a summer of public conversation, and legal argument, the Supreme Court put an end — at least temporarily — to the speculation that it might alter its approach to the constitutionality of the death penalty. Despite the very unusual (though not unprecedented) alteration of a previously issued opinion, the Court still is committed to a two-step method of deciding whether a death sentence for a given crime violates the Eighth Amendment. If there is anything new about that calculus, is it that military law probably does not count in it. In fact, the Court left open — as it had before — the question of whether the Eighth Amendment governs the military in the same way it does the civilian community. That might be tested at some point in the

Remaining with the Supreme Court, Freddie Eugene Owens from South Carolina has received an indefinite stay of his scheduled execution

In an op-ed in the Los Angeles Times, the former warden of San Quentin prison in California, Jeanne Woodford, regrets having taken part in executions and has called for replacing the death penalty with life without the possibility of parole. The final Maryland Commission on Capital Punishment has held its final hearing and is now deliberating.  In Texas, the waves of reverberations from the Charles Hood case continue, as evidenced by a recent Sunday Dallas Morning News article entitled  "Former Collin judge, prosecutor's intimacy may affect more than a single death row case." Prosecutors and defense attorneys have filed documents asking for a  new trial for death row inmate Michael Toney, saying the state's lead prosecutor improperly withheld evidence in his 1999 trial. The current issue of the New England Journal of Medicine again looks at lethal injection, this time in an article by George J. Annas entitled "Toxic Tinkering -- Lethal Injection, Execution, and the Constitution."

In criminal justice funding news, the press is reporting that "cash-strapped Maryland public defender office ends contracts with private attorneys." Following press accounts of irregularities in the Illinois capital litigation trust fund the Illinois treasurer has proposed reforms for the fund.  In Missouri public defenders have begun to reject some cases in light of chronic underfunding.

Attorney General Michael Mukasey has appointed a special prosecutor to investigate the firings of several U.S. Attorneys in 2006 following "significant evidence" of managerial misconduct including politicization of prosecutions, including at least one capital case. An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of Justice Office of the Inspector General and Office of Professional Responsibility, Sept. 2008. (PDF, 392 pp., 3.6 Megs).  That report highlights the concerns about Paul Charlton (USA Ariz),  p. 227-234, and his belief that death was not warranted in the prosecution of Jose Rios Rico.  Despite those concerns DoJ central decided to pursue death and removed Mr. Charlton.  As noted several weeks ago in the email edition the Attorney General Mukasey has reversed the Government’s prior position and the matter has resolved as a noncapital matter.

Looking ahead to the next edition, three favorable opinions are noted. The Sixth Circuit grants relief in Maurice Mason v. Mitchell as "counsel failed to investigate Mason’s background and essentially conducted no interviews of any of Mason’s family members prior to settling upon a plan for the sentencing phase that was limited to appeals for mercy and claims of residual doubt." The Texas Court of Criminal Appeals in Ex parte Timothy Cockrell remands for further considerations of an Atkins claim. In Inquiry Concerning a Judge, No. 06-52, re: Cheryl Aleman the Florida Supreme Court sends a clear message to trial court judges handling capital cases about the need to treat defense counsel with a certain degree of reasonableness when it comes to motions, recusals, and contempt proceedings.

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. Over at the daily blog postings will be light as I am in trial (again) this week. - k

Pending Executions
October
7-13 Briley Piper - S.D.
14 Richard Cooey - Ohio*
14 Alvin Kelly - Tex*
16 Kevin Watts - Tex*
21 Joseph Ries -Tex.*
23 Bobby Woods - Tex*
28 Eric Nenno - Tex*
28 Wayne Tompkins - FL*
30 Gregory Wright - Tex*

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

December
8 Antoinette Frank - La.

• 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.

• Robert Beeler Power v. State, 2008 Fla. LEXIS 1638 (FL 9/25/2008) ": Appellant inmate's Fla. R. Crim. P. 3.851 motion to vacate his death sentence was properly denied on a summary basis as precedent had held that additional procedural safeguards in 2007 by the state department of corrections addressed prior deficiencies in the lethal injection procedures; thus, there was no violation of U.S. Const. amend. VIII." [via LexisOne]

• Stephen Smith v. State, 2008 Fla. LEXIS 1639  (FL 9/25/2008) " Defendant sentenced to death for first-degree murder did not show he was entitled to have addressed on direct appeal any of his five claims of ineffective assistance of counsel; such claims were usually presented in Fla. R. Crim. P. 3.850 postconviction motion and he did not show rare exception that ineffectiveness was apparent on face of record." [via LexisOne]

• 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) The postconviction trial "court did not abuse its discretion in summarily dismissing defendant's petition for postconviction relief under Ala. R. Crim. P. 32 because defendant failed to meet his burden of pleading under Ala. R. Crim. P. 32.3 and 32.6(b) regarding his claims of ineffective assistance of counsel and a sentencing violation based on mental retardation." [via LexisOne]
  

• Richard Jerome Flowers v. State, 2008 Ala. Crim. App. LEXIS 168 (Ala. Crim. App. 9/26/2008) Affirmed in an unpublished opinion over dissent on the issue of ineffective assistance of counsel.
  

• Antonio Jackson, Jr. v. State, 2008 Ala. Crim. App. LEXIS 165 (Ala. Crim. App. 9/26/2008)) Affirmed in an unpublished opinion over dissent on the issue of admission of the condemned's prior convictions for capital murder.

• Jamie Ray Mills v. State, 2008 Ala. Crim. App. LEXIS 161 (Ala. Crim. App. 9/26/2008) " Because defendant's death sentence was not the result of the influence of passion, prejudice, or any other arbitrary factor, because the aggravating circumstances outweighed the mitigating circumstances, and because the sentence was not disproportionate or excessive, pursuant to Ala. Code §§ 13A-5-47(d), 13A-5-53(b)(1), (b)(3), it was affirmed." [via LexisOne]

• 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.
  

• Maurice Mason v. Mitchell, 2008 U.S. App. LEXIS 20840 (6th Cir. 10/3/2008) "Mason’s counsel failed to investigate Mason’s background and essentially conducted no interviews of any of Mason’s family members prior to settling upon a plan for the sentencing phase that was limited to appeals for mercy and claims of residual doubt. We hold that trial counsel provided ineffective assistance by failing to interview Mason’s family members and investigate the obvious red flags contained in state records suggesting that Mason’s childhood was pervaded by violence and exposure to drugs in the home from an early age."

• Inquiry Concerning a Judge, No. 06-52, re: Cheryl Aleman, 2008 Fla. LEXIS 1645 (FL 9/29/20008) "Recommendation for a public reprimand is approved for a judge who imposed unreasonable requirements on defense attorneys who moved for her disqualification in a capital murder case, and subsequently threated the attorneys with contempt." [via FindLaw]

• Ex parte Timothy Cockrell,  No. WR-41,775-02 (Tex. Crim. App. 10/1/2008) "After reviewing these findings and conclusions and the record from both the writ application and the trial, this Court is remanding this  subsequent writ application to the convicting court to enter  additional findings of fact and conclusions of law. Specifically, the convicting court shall enter additional findings and conclusions addressing the discrepancies between its earlier finding of mental retardation in regard to the voluntariness of applicant’s confession and its current finding that applicant has failed to demonstrate by a preponderance of the evidence that he is mentally retarded. The convicting court shall also enter any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of applicant’s claim."

• Ex parte Michael Brown; (In re: Michael Brown v. State of Alabama), 2008 Ala. LEXIS 205, (Ala 10/3/2008) Counsel's failure to preserve the record, prevents the Alabama Supreme Court from considering "whether the Court of Criminal Appeals correctly concluded that certain out-of-court statements were admissible under the doctrine of curative admissibility."

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As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. Likewise, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center, Fair Trial Initiative, Southern Center for Human Rights, Texas Defense Services, Tennessee Coalition Against State Killing, & Murder Victims' Families For Human Rights. These groups were selected as each have demonstrated an ability to make a difference, usually on a shoestring budget, meaning even the smallest donation goes a long way. On each of the above links you're able to donate as little or as much as you want, or even set up a monthly automated giving amount. - k

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