Capital Defense Weekly

Leading off this edition is Thursday's decision from the Florida Supreme Court in State v. Faunce Levon Pearce.  The trial court in Pearce granted both guilt phase and penalty phase relief based on trial counsel's performance.  Finding no prejudice as to trial counsel's performance in the guilt phase, specifically, not moving for a motion in limine to exclude certain evidence and to object at certain points in the trial, the Court reinstates Pearce's conviction.  The Pearce Court affirms, however, the grant of penalty phase relief, despite the condemned's purported waiver of mitigation evidence as "counsel never investigated Pearce’s background, never interviewed members of Pearce’s family, and never investigated mental health issues. Therefore, counsel was unable to advise Pearce as to potential mitigation."

Of note as well is Roderick Davie v. Mitchell from the Sixth Circuit. Davie offers three opinions, including a dissent by Judge Merritt, on  AEDPA & Miranda v. Arizona.  As one conservative commentator noted:, "this case strikes me as something of a close call, and is largely dependent upon how one characterizes the repeated interactions between Davie and the police. If one thinks these interactions were relatively benign and non-coercive, the majority is correct. If, on the other hand, the repeated interactions with the police were more menacing — Judge Merritt characterizes each interaction as a "confrontation" — then Davie's confession may have been obtained in violation of Miranda. "

The National Law Journal caused a small stir this past week when it announced the Department of Justice planned to issue the final regulations for AEDPA/PATRIOT Act's "opt-in"/"fast-track" proposal.  The regulations that DoJ previously put out for comment are here. The comments submitted by the Judicial Conference of the United States asked that as written the regulations should be rejected, as did almost all others submitting comments.  The daily blog, StandDown, DPIC, CapDefNet, among others, will all carry the final regs the moment they hit are known.  The proposed regulations do not, however, address the greatest source of delay for AEDPA era habeas cases

The Maryland Commission on Capital Punishment voted 13-7 to make the  recommendation in its report to lawmakers and the governor next month to abolish the death penalty.  The vote came after the failure of a proposed amendment to keep the  death penalty for people who kill correctional officers or police  officers. The report to the General Assembly is due Dec. 15. [more]

The University of Texas School of Law's Capital Punishment Clinic is celebrated it's 20th anniversary with a symposium this week.  The Clinic has been a vital source for post-conviction review of Texas death penalty cases, including notable victories in the U.S. Supreme Court.  Congrats to all who have participated over the years.

As noted last week, the formatting of the "weekly" has changed.  The goal is to bring to readers' attention "new" cases more quickly than has been happening. My apologies for any confusion or missed cases in the week that just passed (we'll catch them next week, however this is a first draft of this area of case law, not the definitive one.

As always thanks for reading.  A special thanks to DPIC, Steve Hall, Sandrine Ageorges, & CapDefNet whose work has been heavily relied upon in the creation of this edition.   - k

Pending Executions
November
18 Eric Cathey - Tex.*
18 Wayne Tompkins - FL*
19 Rogelio Cannaday - Tex.*
19 Gregory Bryant-Bey - Ohio*
20 Robert Hudson - Tex.*
21 Marco Chapman - Ky*(vol)

December
8 Antoinette Frank - La.
19 Dale Easton - Wyo

Recent Executions
November
6 Elkie Taylor - Tex.
12 George Whittaker III - Tx
13 Denard Manns - Tex.

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

(Initial List) Week of November 10, 2008 – In Favor of the Defendant or the Condemned

• State v. Faunce Levon Pearce, 2008 Fla. LEXIS 2088 (FL 11/13/2008) Guilt phase relief denied, however, penalty phase relief granted. "We find there is competent, substantial evidence to support the trial court’s finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce’s waiver. In preparing for the penalty phase, counsel never investigated Pearce’s background, never interviewed members of Pearce’s family, and never investigated mental health issues. Therefore, counsel was unable to advise Pearce as to potential mitigation. Thus, the evidence supports the trial court’s finding that Pearce’s waiver of the presentation of mitigating evidence was not knowingly, voluntarily, and intelligently made. Pearce suffered prejudice based on this lack of a knowing waiver because there was substantial mitigating evidence which available but undiscovered. We affirm the trial court’s conclusion that Pearce established a claim for ineffective assistance of counsel in the penalty phase of the trial."

• Roderick Davie v. Mitchell, No. 03-4293 (6th Cir 11/14/2008) (three opinions/incl. a dissent) From Judge Merritt's dissent: "[A]s I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination." Findlaw sums it up as: "[i]n a death penalty case, denial of a petition for a writ of habeas corpus is affirmed where the district court correctly rejected claims that: 1) petitioner's Miranda rights had been violated by police actions in this case, which included four instances of questioning, each following a Miranda warning, over a six-hour period; 2) penalty phase jury instructions were constitutionally deficient; and 3) prosecutorial misconduct denied him due process."
  

• Robert Bryant Melson v. Allen, No. 0614047 (11th Cir 11/14/2008) "Death sentence for three robbery-murder convictions is affirmed where: 1) criminal petitioner's federal habeas petition is untimely under two sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); 2) neither triggering date was tolled by petitioner's Rule 32 proceedings; 3) petitioner also failed to show that the AEDPA's one-year statute of limitation should have been equitably tolled based on the conduct of his state post-conviction attorneys or his claims of actual innocence; and 4) there were no legal grounds excusing the untimeliness of his federal habeas petition." [via FindLaw]
  

• Michael Anthony Archuleta v. Galetka, No. 20070228 (Utah 11/7/2008) Court, noting shortage of capital qualified counsel, holds that the trial court did not err in denying Rule 11 sanctions on counsel for the condemned.

• Rodney Tyrone Lowe v. State, 2008 Fla. LEXIS 2053 (FL 11/6/2008)  Grant of penalty phase relief affirmed on the basis of trial counsel’s failure to discover and present evidence that another person, and not the Condemned, had confessed to civilian witnesses that he, and not Mr. Lowe, was the real killer.

• Ex parte William Speers, No. WR-59,101-02 (Tx Crim App 11/3/2008) (unpublished) Remand ordered on the claim the State withheld evidence of a cooperation agreement was not disclosed.
  

• In re: Elkie Lee Taylor, 2008 U.S. App. LEXIS 23437 (5th Cir 11/4/2008)  (unpublished) Successive petition and stay denied on claims relating to allegations that the "jury verdict was not unanimous" as the jury charge permitted a conviction to be based on differing theories of liability.
  

• Carl Stephen Moseley v. Branker, 2008 U.S. App. LEXIS 22689 (4th Cir 11/3/2008) "In a conviction and death sentence for capital murder, denial of petition for federal writ of habeas corpus relief is affirmed where: 1) the state motion for appropriate relief (MAR) court's determination that production of the undisclosed evidence would not have resulted in a different verdict, either at guilt or sentencing, in petitioner's trial for the murder was not an unreasonable one; 2) given the similarities in the murders, the evidence that the same person murdered both women and that the person was the petitioner was overwhelming; 3) nondisclosure of evidence by the state was not "so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict," Strickler, 527 U.S. at 281; and 4) the state court's rejection of petitioner's Brady claim was neither contrary to, nor an unreasonable application of, the applicable precedents." [via Findlaw]

• Wade Larry Cole v. Branker, 2008 U.S. App. LEXIS 22905 (4th Cir 11/3/2008) (unpublished) "The district court dismissed Cole's petition, and, pursuant to certificates of appealability, we consider three of his claims: (1) that he is mentally retarded and thus cannot be executed under the Eighth Amendment; (2) that he was sentenced to death on the basis of an aggravating circumstance that the jury was precluded from finding under the double jeopardy clause; and (3) that he was deprived of the effective assistance of appellate counsel. For the reasons that follow, we affirm the district court's denial of the writ."

• Ex parte Michael Sale; (In re: Michael Sale v. State of Alabama), 2008 Ala. LEXIS 225 (Ala 10/31/2008) On denial of cert. to the Alabama Court of Criminal Appeals. "I respectfully dissent from the denial of this petition for a writ of certiorari. I believe that the petition is procedurally sufficient, particularly in the context of a death-penalty case reviewed under the plain-error standard, n1 to assert grounds for review as to two issues. First, I believe that this Court should grant Sale's petition to further examine the issue whether Sale was denied a fair trial and the protections afforded by Ala. Code 1975, § 13A-5-54, when the trial court failed to stop the proceedings for a day when Sale's lead counsel -- the only fully experienced counsel available to Sale -- was ill and unable to attend court. Second, I believe that the Court should grant Sale's petition in order to examine whether the trial court violated  Rule 16.2(d), Ala. R. Crim. P., in ordering the forensic psychologist who had been appointed to assist the defense in trial preparation and to be a witness at trial to surrender his interview notes to the prosecution, and, if so, whether that error rose to the level of plain error."

• Richard Lynch v. Florida, 2008 Fla. LEXIS 2052 (FL 11/6/2008) "In a capital case involving charges of burglary, kidnapping, and murder, denial of postconviction relief is affirmed and a petition for habeas relief is denied over defendant's claims of: 1) ineffective assistance of counsel during both the guilt and penalty phases; 2) judicial bias resulting from the postconviction court's in camera inspection of the murder weapon; 3) exclusion of expert testimony regarding the standard of practice for capital defense counsel; 4) Brady and Giglio violations; 5) the insufficiency of the facts proffered during defendant's plea colloquy to support the convictions; 6) incompetency for purposes of determining the constitutionality of his death sentence; 7) failure to charge statutory aggravators in the indictment; and 8) cumulative error." [via Findlaw]

• Wayne Tompkins v. State, 2008 Fla. LEXIS 205 (FL 11/7/2008)  Relief denied on claims relating to: "(1) the Governor’s failure to comply with section 922.06(2) and reset Tompkins’s execution in 2004, following the expiration of a stay, precludes his execution; (2) failure to reschedule Tompkins’s execution four years ago violates the Eighth Amendment; (3) collateral counsel was ineffective in failing to obtain a legible copy of the police report; (4) Tompkins’s conviction and sentence are unconstitutional because the evidence demonstrates he is not guilty; and (5) lethal injection violates the Eighth Amendment."
  

• Hilton Hall v. Brannan, 2008 Ga. LEXIS 871 (Ga 11/3/2008) "After a hearing, the habeas court threw out Brannan's death sentence on the grounds that his trial counsel had been ineffective for failing to present certain mental health defenses in both the guilt-innocence and sentencing phases of his trial. The judge found that trial counsel was deficient for failing to emphasize Brannan's history of bipolar disorder and depression, and produce evidence of the traumas Brannan had suffered in Vietnam. But in today's 23-page decision, the Supreme Court finds that trial counsel did present expert witnesses and evidence of Brannan's mental illness and PTSD. The jury, however, rejected the defense, finding Brannan guilty rather than guilty but mentally ill. 'Considering the collective prejudicial effect of all of counsel's deficiencies that we have either found or assumed in the discussion above, we conclude as a matter of law that the absence of those deficiencies would not in reasonable probability have changed the outcome of either phase of Brannan's trial,' today's opinion says. The Court says it is too late to raise the argument that Brannan's execution would be unconstitutional based on his mental illness. 'This claim is barred by procedural default because it was not raised on direct appeal,' the opinion says. Furthermore, 'we conclude that, unlike the case of juvenile offenders and mentally retarded persons, there is no consensus discernable in the nation or in Georgia sufficient to show that evolving standards of decency require a constitutional ban, under either the Constitution of the United States or under the Georgia Constitution, on executing all persons with mental illnesses, particularly persons who have shown only the sort of mental health evidence that Brannan has shown'."

• Dorian Frank O'Kelley v. State, 2008 Ga. LEXIS 869 (Ga 11/3/2008) "The Georgia Supreme Court has unanimously upheld the death penalty given to Dorian Frank O'Kelley for the 2002 murders of Susan Pittman, 41, and her 13-year-old daughter, Kimberly Pittman. It has also upheld all his convictions with one exception: Instead of being convicted of two counts of arson, he should only have been convicted of one, the high court finds. As a result, the court is remanding the case to Chatham County to fix that error. The 29-opinion, written by Justice George Carley, finds that all other arguments raised by the defense in O'Kelley's appeal did not constitute any harmful errors that would have changed the outcome of either his guilt-innocence trial or the sentencing phase of his trial. Following the sentencing phase, the jury found O'Kelley qualified for the death penalty due to several aggravating circumstances, which included that the murders were 'outrageously or wantonly vile, horrible or inhuman'."

• State v. Noah Espada, AP-75,219 (Tx Crim App 11/5/2008) (unpublished) Relief denied over a notalbe dissent by Judge Womack on the lack of research supporting expert testimony on future dangerousness.

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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.