Capital Defense Weekly

With most people's attention focused on this week's election, this edition is going to be short. A Ninth Circuit panel grants penalty phase habeas relief in James Styers v. Schriro as the Arizona state courts erred in concluding that PTSD was not mitigating factor and incorrectly concluded there had to be a causal connection between proffered mitigation and the crime. The Fifth Circuit granted a COA in Nelson Gongora v. Quarterman on prosecutorial comments on failure to testify, as well as eligibility for death in light of Tison v. Arizona.

In the news, the Delaware Supreme Court has upheld a lower court's dismissal of a lawsuit that claimed that the state's lethal injection policy was illegally adopted. DPIC notes "[t]wo dozen exonerated ex-death row prisoners from across the country will hold a news conference on October 31 in Austin to call for the establishment of a statewide commission on wrongful convictions and a moratorium on executions in Texas."

Looking ahead, the Eighth Circuit in an unpublished opinion both grants a COA and remands for an evidentiary hearing in Keith D. Nelson v. United States of America on a slew of issues.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

Week of October 20, 2008 – In Favor of the Defendant or the Condemned

James Lynn Styers v. Schriro, 2008 U.S. App. LEXIS 22054 (9th Cir 10/23/2008) The Arizona state courts erred in concluding that PTSD was not mitigating factor as they incorrectly concluded there had to be a causal connection between proffered mitigation and the crime. WAG has more.

Nelson Gongora v. Quarterman, 2008 U.S. App. LEXIS 22164 (5th Cir 10/22/2008) "Gongora requests a COA from this court on two issues: (1) whether he is entitled to federal habeas relief because the prosecutor commented on his failure to testify during the prosecutor's closing argument, and (2) whether he could be sentenced to death based on the jury's finding that he was able to anticipate that death might result from his participation in the robbery in light of the Supreme Court's decision in Tison v. Arizona, 481 U.S. 137 (1987). For the following reasons, Gongora's application for COA is granted on both issues."

Week of October 20, 2008 – In Favor of the State or Government

Yosvannis Valle v. Quarterman, 2008 U.S. App. LEXIS 22165 (5th Cir 10/22/2008) COA denied on "three claims: (1) his Sixth Amendment right to counsel was violated when his trial counsel failed to obtain a psychological evaluation of him by a mental health professional and present evidence of his post-traumatic stress disorder ("PTSD"); (2) he was denied due process by the trial court's exclusion as inadmissible hearsay of the audio and transcript of an interview with petitioner's mother; (3) his Eighth Amendment rights were violated by Texas's capital-sentencing statutory scheme, because it does not assign a burden of proof to the mitigation special issue and does not afford meaningful appellate review to the special issues of mitigation and future dangerousness."

Samuel Steven Fields v. Kentucky, 2008 Ky. LEXIS 259 (Ky 10/21/2008)"Murder conviction and death sentence were affirmed after Ky. Rev. Stat. Ann. § review; defendant received fundamentally fair trial and penalty proceeding. There was insufficient harmless error to create cumulative effect that mandated reversal. Instruction on first-degree manslaughter was not supported by evidence of extreme emotional disturbance. " [via Lexisone]

Comm. v. Rodney Collins, 2008 Pa. LEXIS 1878 (Pa 10/21/2008) Following grant of relief of penalty phase relief in the trial court the Commonwealth did not appeal. Guilt phase issues revolving around trial counsel's ineffective assistance of counsel denied on application for postconviction relief.

(Initial List) Week of October 27, 2008 – In Favor of the Defendant or the Condemned

Keith D. Nelson v. United States of America, 2008 U.S. App. LEXIS 22338 (8th Cir 10/27/2008) (unpublished) COA granted and remand ordered (with good language) on numerous issues including: (A) trial counsel's failure to conduct adequate mitigation investigation including failure to move for a continuance to complete one; (B) trial counsel's failure to conduct adequate investigation of defendant's mental health; (C) trial counsel's advising or instructing defendant to decline to submit to a mental health examination by a government examiner; (D) trial counsel's failure to make objections to allegedly inflammatory and improper comments in the Government's closing argument and rebuttal; (E) appellate counsel's failure to conduct adequate review of the trial record and the law; and (F) appellate counsel's failure to raise on appeal the Government's allegedly improper comments in closing arguments. The Clerk's Office notes: "An evidentiary hearing should have been held on some of Nelson's claims concerning ineffective assistance of counsel, and the court grants a certificate of appealability on those issues and remands with directions to conduct an evidentiary hearing; the district court did not err in denying the remainder of Nelson's claims, and the court denies the request to issue a certificate of appealability on those claims."

(Initial List) Week of October 27, 2008 – In Favor of the State or Government

DeKelvin Rafael Martin v. State, 2008 Ga. LEXIS 845 (Ga 10/27/2008) Interlocutory appeal. "Prior testimony of a deceased witness at a sentencing trial held before defendant withdrew his guilty plea was admissible at his murder trial under O.C.G.A. § 24-3-10. The testimony included the witness's account of her own rape and the murders of her relatives, and there had no limitation on defendant's cross-examination of the witness." [via LexisOne]

Melber Ray Ford v. Hall, 2008 U.S. App. LEXIS 22318 (11th Cir 10/27/2008) "Denial of habeas relief on death row inmate's ineffective assistance of sentencing counsel claim was affirmed because inmate did not show that counsel were deficient in their investigation of mitigating evidence; he also did not show prejudice in light of finding of three aggravating circumstances and fact that he shot child in head at close range." [via LexisOne] WAG has more.

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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.