Capital Defense Weekly


Leading off this edition is the Sixth Circuit's grant of penalty phase relief in Maurice Mason v. Mitchel. The grant of relief here is unexceptional. Counsel's investigation consisted of "no more than reviewing documents provided by the state, arranging for a psychiatric evaluation limited to predicting Mason’s future dangerousness, talking to Mason himself, and very briefly talking to a small subset of Mason’s family members."  Counsel missed evidence "that Mason’s childhood was marked by violence and pervasive drug use" and their "investigative efforts to learn any further details about Mason’s background were woefully inadequate." "Mason thus 'has the kind of troubled history that [the Supreme Court] ha[s] declared relevant to assessing a defendant’s moral culpability,' and we therefore hold that “had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence."

The Texas execution machine is about to go in to overdrive. Twelve people are in the so-called “death watch” cells on Texas death row are set for lethal injection over the next six weeks. AP notes "[t]wo are scheduled for this week. Two next week. And two more the week after that. Then six more in November, adding to Texas’ standing as the nation’s most active death penalty state."

Seven capital habeas petitioners lost in Arizona in September. Those denied include: Thomas Kemp, Alfonso Salazar, Richard Hurles, Michael Gallegos, Richard Djerf, Barry Jones, & Robert Towery.  The seven denials in September bring to a total of sixteen people who have been denied in the federal district courts in Arizona this year.  The good folks at CapDefNet’s Week At a Glance have the details.

The Office of Defender Services of the Administrative Office of the U.S. Courts has released an updated report on the cost, quality and availability of defense representation in federal death penalty cases. Unsurprisingly death  costs much, much, more.  Specifically:

During the period of this study, defendants who received the least amount of attorney and expert time, and whose defense representation thus cost the least, faced a higher probability of receiving a death sentence. Specifically, as Table Twelve (p. 40) shows, individuals whose defense received less than $320,000 in combined attorney and expert assistance – the lowest one-third of federal capital trials – had a 44 percent chance of being sentenced to death at trial. Individuals whose total representation costs were above that amount – the remaining two-thirds of defendants – had a 19 percent chance of being sentenced to death. Defendants in the low-cost group thus were more than twice as likely to be sentenced to death.

In other news, the first execution this year outside the Death Belt is scheduled for this week in Ohio, that of Richard Cooey . An examination of 19 exonerations in Dallas found 18 had an eyewitness identification component to them. The American Constitution Society has published an Issue Brief entitled Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold by Scott Phillips of the University of Denver.  In Utah, the Desert News looks at the high costs of seeking death in numerous capital cases in the same fiscal year in Utah County.  Leslie Lytle has recently released Execution’s Doorstep: The True Stories of the Innocent and Near Damned, a look at  five innocent men who spent time  on death row.  The civil suit against CCA Judge Keller, has been dismissed due to judicial immunity.

Looking ahead, two grants of relief and a remand are noted.  The Sixth Circuit in Rayshawn Johnson v. Bagley grants penalty phase relief where counsel started thinking about a mitigation strategy when “the verdict was back and [the jury] found [Johnson] guilty” and otherwise performed poorly in the penalty phase of the trial.  The Florida Supreme Court in Andrew Michael Gosciminski v. State orders a new trial in light of the admission of hearsay in what it termed a weak case for the State. Finally, the Florida Supreme Court remanded in Dana Williamson v. State as to whether "defendant’s counsel was ineffective in failing to request a Frye hearing before the opinion testimony of the State’s expert, Dr. Robert Ofshe, was admitted into evidence.”

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
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* (stayed until at  least Nov 18)
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.

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin & AP]

Week of September 29, 2008 – In Favor of the Defendant or the Condemned
  • 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."
Week of September 29, 2008 – In Favor of the State or Government
  • Derrick Lamone Johnson v. Quarterman, 2008 U.S. App. LEXIS 20985 (5th Cir 10/2/2008) (unpublished) "An inmate's application for a COA was denied because, inter alia, the failure to define society as including prison in the special instruction did not violate his Fifth Amendment and Fourteenth Amendment due process rights, and the trial court's refusal to allow the jury to consider his eligibility for parole did not violate his due process rights." [via LexisOne]
  • State v. James P. Frazier, 2008 Ohio App. LEXIS 4238 (6th App Ohio 9/30/2008) Relief denied on whether "the trial court erred in dismissing appellant's post-conviction petition finding none of the grounds for relief to warrant granting relief when he presented sufficient operative facts to merit relief or, at minimum, an evidentiary hearing" and  whether "the trial court erred by denying all of appellant's requests for discovery."
  • 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."
  • William James Deparvine v. State, 2008 Fla. LEXIS 1686 (FL 9/29/20008) "Conviction and death sentence for first-degree murder are affirmed over claims of error regarding: 1) the erroneous admission of hearsay statements; 2) the sufficiency of the indictment; 3) the sufficiency of the evidence used to convict; 4) the introduction of five victim impact witnesses in the penalty phase; 5) a for-cause challenge of a juror; 6) the constitutionality of Florida's capital sentencing scheme; and 7) the sufficiency of the sentencing order." [via FindLaw]

(Initial List) Week of October 6, 2008 – In Favor of the Defendant or the Condemned
  • Rayshawn Johnson v. Bagley,  2008 U.S. App. LEXIS 21200  (6th Cir 10/10/2008) :”Johnson’s attorneys admitted in their post-conviction testimony that they began thinking about a mitigation strategy only when “the verdict was back and [the jury] found [Johnson] guilty.” Penalty phase relief in light of ineffective assistance of counsel seems to almost have been a given.

  • Dana Williamson v. State, No. SC07-564  & Dana Williamson v. McNeil,  No. SC07-1787 (FL 10/8/2008) Remand ordered on “issues alleging that defendant’s counsel was ineffective in failing to request a Frye hearing before the opinion testimony of the State’s expert, Dr. Robert Ofshe, was admitted into evidence.”

  • Andrew Michael Gosciminski v. State, No. SC05-1126 (FL 10/8/2008) The improper admission of hearsay and other evidence — in light of a weak State’s case — requires a new trial.

  • Amendments to Florida Rule of Criminal Procedure 3.112, No. SC08-1292 (FL 10/8/2008) Modifying rules of  criminal procedure governing the minimum standards for the appointment of counsel, sunsetting certain exemptions and modifying the rule to account for the creation of the Offices of Criminal Conflict and Civil Regional Counsel.

(Initial List) Week of October 6, 2008 – In Favor of the State or Government
  • Richard Cooey II v. Strickland,  2008 U.S. App. LEXIS 21180 (6th Cir 10/9/2008) "[W]e conclude that the district court correctly held that each of Cooey's "new" claims is time barred for the reasons stated in its opinion dated September 30, 2008.  We therefore AFFIRM the decision of the district court granting Defendant's motion to dismiss and denying Cooey's motion for a preliminary injunction as moot."
  • Frederick R. Whatley v. Terry,  2008 Ga. LEXIS 824 (GA 10/6/2008) From the court's summary "Whatley argued that the habeas court made a number of mistakes, including its failure to find that his trial attorney, the late Johnny Mostiler, a well-known public defender, had been ineffective, in part because of his overwhelming caseload. Whatley also claims his case was hurt by the State‟s suppression of an audio-taped interview of a witness that would have buttressed his contention he did not intend to kill Allen and shot him only after Allen chased him with a gun. But in today‟s 37-page opinion, the Supreme Court disagrees. “We conclude as a matter of law that there would not have been a reasonable probability of a different outcome at trial if Whatley had been provided the January 27 interview…,” the opinion says. Similarly, Whatley has failed to show that Mostiler‟s heavy caseload or other shortcomings prejudiced the outcome of his trial, the Court finds."
(Initial List) Week of October 6, 2008 – Noncapital
  • Michael Slovak v. Yates, 2008 U.S. App. LEXIS 21008 (9th Cir 10/6/2008) "District court erred in denying § 2254 habeas relief to prisoner convicted of assault, Cal. Penal Code § 245(a)(1); trial court violated U.S. Const. amend. VI Confrontation Clause when, pursuant to Cal. Evid. Code § 352, it prevented questions on cross-examination that would have established that prosecution's key witness likely lied under oath." [via LexisOne]

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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. 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.  If there is a group you think should be added please drop us a line. - k

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