CAPITAL DEFENSE WEEKLY

Porter v. McCollum, a decision from the Supreme Court, leads off this edition.  The Court this term, through its per curiams, seems to be really emphasizing the bright line tests for ineffectiveness.   Counsel failed to adequately investigate his client’s military record and the horrors he had seen in the ugly face of war.  The aftermath of war, as it does with so many soldiers, left him a broken man.  The counsel's error meant the trial court never heard that story.

The lethal injection scrum reheated since the last edition. The Kentucky Supreme Court in Thomas Clyde Bowling v. Ky. Dep’t of Corr. held that the state's  lethal injection protocol was not adopted in accordance with the Commonwealth’s Administrative Procedure’s Act.  The Sixth Circuit, by contrast, in  Richard Cooey, II, Kenneth Biros v. Strickland  lifted the stay of Mr. Biros's execution warrant as the stay of next week's execution  was based on concerns related to the old three drug Ohio procedure not the new one drug procedure.

The Texas CCA has issued a much publicized order to show cause to TDS's David Dow and Katherine Black for a putatively “untimely filing” in a matter where they represented a client facing execution for less than a few weeks when they filed a claim missed by prior counsel.

As always, thanks for reading. - k
Pending Executions 
December
2 Cecil Johnson Jr.* (Tenn)
3 Bobby Woods* Texas)
8 Kenneth Biros * (Ohio)
9 Devin Banks (Tenn)
11 Eric Wrinkles* (Ind)
16 John Amos Small (Penn)
17 Antoine Ligons (Penn)

Recent Executions
November
5 Khristian Oliver* (Texas)
10 Yosvanis Valle* (Texas)
10 John Allen Muhammad* (Virginia)
17 Larry  Elliott* (Virginia)
18 Danielle Simpson*  (Texas)(V)
19 Robert Thompson* (Texas)
* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
(note that none of the Pennsylvania dates listed are likely actual execution dates)
Supreme Court
  • Porter v. McCollum,  No. 08-10537 (11/30/2009) Per curiam, GVR, trial counsel erred in not adequately investigating Mr. Porter's military background and presenting the strong evidence of his war time military service as a mitigator to the state's case.  Court notes, along the way ,that where there is no state court adjudication on a prong of the Strickland review is de novo.  Strong language on the power of military service as mitigation.
  • Wong v. Belmontes, No. 08-1263 (11/16/2009)  Per curiam, GVR, reversing and remanding, for the third time, a penalty phase grant of relief finding no prejudice in counsel's deficient penalty phase performance.
Week of November 23, 2009 – In Favor of the Accused or Condemned  (initial list)
  • Ex parte State of Alabama; (In re: State of Alabama v. Jason Murphy)  2009 Ala. LEXIS 271 (Ala 11/20/2009)   Trial court excluded the prosecution's proffered Rule 404(b)  evidence.  The State sought mandamus. "Unless the trial court acts without lawful authority and, in so doing, justifies the issuance of a writ of mandamus (see supra note 3), the sole avenue for the appeal of a pretrial order by the State lies in Rule 15.7, Ala. R. Crim. P. "   
  • Thomas Clyde Bowling v. Ky. Dep't of Corr.,  2009 Ky. LEXIS 291 (Ky 11/25/2009) Kentucky's lethal injection protocol fails as it was not adopted in accordance with the Commonwealth's Administrative Procedure's Act. "Having reviewed the applicable law, it is apparent that the lethal injection protocol implements KRS 431.220, Kentucky's lethal injection statute and, further, that significant portions of the protocol are not matters of internal management for the Department but rather statements of general applicability and policy which affect private rights. Pursuant to KRS 13A.100, the Kentucky General Assembly has required  [*4] that such portions of the protocol be adopted as an administrative regulation."*
Week of November 23, 2009 – In Favor of the State or Government
  • Richard Cooey, II, Kenneth Biros v. Strickland,  No. 09-4300 (6th Cir 11/25/2009) "In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect. Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether he has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits."
  • Troy Victorino v. State,  2009 Fla. LEXIS 1954 (FL 11/25/2009)  Relief denied. "Regarding the guilt phase, Victorino argues that the trial court erred in (A) denying his pretrial motion to suppress DNA samples and nail scrapings, which he claimed were forcibly obtained from him; (B) denying his motion to suppress physical evidence seized from his Fort Smith Boulevard residence; (C) denying his motion to sever his trial from that of his two codefendants; (D) admitting evidence of uncharged misconduct; (E) using the "and/or" conjunction between the names of the codefendants when instructing the jury; (F) moving the trial within the Seventh Circuit from Volusia County to St. Johns County after granting a motion to change venue; (G) denying his request for additional peremptory challenges; (H) denying his motion for mistrial when his codefendant testified; (I) denying his motion for judgment of acquittal; and (J) denying him due process in his arrest and service of the warrant and admitting irrelevant evidence." "With regard to the penalty phase, Victorino argues on appeal that both the HAC and CCP aggravators are unconstitutional and inapplicable in his case; that the statutory mental health mitigator applies in his case; and that his sentences are disproportionate to those of his codefendants. He also contends that Florida's death penalty scheme is unconstitutional and that he should be retried because of the cumulative effect of the errors that occurred in the trial court. As explained below, each of his claims is meritless."
Week of November 16, 2009 – In Favor of the Accused or Condemned 

  • Ex parte Brian Edward Davis, 2009 Tex. Crim. App. Unpub. LEXIS 750(Tex Crim App 11/18/2009) (unpublished)  (dissent) "The nullification instruction given to applicant’s jury was not a sufficient vehicle to allow jurors to give meaningful consideration and full effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant’s trial is the type of evidence for which he was entitled to a separate and sufficient vehicle, we remand the case to the trial court for a new punishment hearing."
Week of November 16, 2009 – In Favor of the State or Government (initial list)
  • Roderick Allen Orme v. State, 2009 Fla. LEXIS 1950 (FL 11/19/2009) Relief denied on claims relating to: (1) consideration of remorse as a mitigator; (2) inquiry of prospective jurors of mercy; (3) "the trial court erred in failing to dismiss the venire after one prospective juror indicated he was opposed to a life sentence without the possibility of parole for twenty-five years because Orme had been convicted fifteen years ago;" (4) "trial court erred in refusing to allow him to waive his right to the sentencing option of life in prison without the possibility of parole for twenty-five years in favor of a harsher punishment of life in prison without the possibility of parole;" (5) "trial court erred by failing to give weight to Orme‘s difficult childhood, to the fact that Orme was a model prisoner, to Orme‘s potential for rehabilitation, and to Orme‘s attempt to get the victim help;" (6) "trial court erred in finding the pecuniary gain aggravator because the taking of property was not an integral part of the murder;" (7) "trial court erred in finding the murder to have been committed in an especially heinous, atrocious, or cruel (HAC) manner because the evidence did not show that he enjoyed the suffering of his victim;" (8) "trial court erred in finding that the 'murder was committed in the course of a sexual battery' aggravator applied;" (9) Ring; and (10)proportionality.
  • State v. Quincy Jovan Allen, 2009 S.C. LEXIS 526 (SC 11/16/2009) Relief denied on "issues [that] involve trial court's comment on deterrent effect of death penalty, designation of statutory aggravating circumstances, and the impact of S.C. Code Ann. 16-3-20's requirement that the trial court conduct the sentencing proceeding when a capital defendant pleads guilty." [via the Clerk's Office]
  • Commonwealth v. Jermont Cox,  2009 Pa. LEXIS 2423 (Penn 11/19/2009) "A trial court properly denied appellant relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, regarding his murder convictions as his claims of ineffective assistance of trial and appellate counsel were found meritless and there was sufficient evidence supporting the aggravating factors under 42 Pa.C.S. § 9711(d)(2) and (7)." [via Lexis]
  • Humberto Leal v. State,  2009 Tex. Crim. App. LEXIS 1611 (Tex Crim App 11/18/2009) "A trial court did not err in denying appellant's motion for postconviction DNA testing pursuant to Tex. Code Crim. Proc. Ann. ch. 64 where he had not shown that there was greater than a 50 percent chance that he would not have been convicted of capital murder based upon such testing."
  • Gerald Eldridge v. State,   NO. 9403201 (TexCrimApp 11/16/2009) (unpublished)  "[T]he trial court found that appellant had failed to make a substantial showing of incompetency as required by Article 46.05. It therefore determined that it was not required to appoint additional experts or hold a hearing on the motion. Upon appellant's request, the record was then sent to this Court for review. See Art. 46.05(l). Because appellant's motion was filed before the 20th day prior to his scheduled execution date, this Court has the authority to review the trial court's determination that appellant failed to make a substantial showing."  "Having reviewed the record, we hold that the trial court's ruling was supported by the record. Accordingly, we adopt the trial court's findings on the issue of appellant's competency to be executed. No stay of execution need be granted. Further, the mandate of the Court shall issue immediately, and no motions for rehearing shall be entertained."
  • Max Alexander Soffar v. State, 2009 Tex. Crim. App. Unpub. LEXIS 760 (Tex Crim App 11/18/2009) (unpublished)  Relief denied, most notably, on the trial court's exclusion of media reports that showed the details contained in the confession had been published prior to Mr. Soffar's statement and "admission of his confession to prove future dangerousness (including uncharged sexual assualts) was harmful because it was the most serious extraneous offense and it formed a significant part of the State's case for death."  Both errors were "harmless."
  • Ex parte Brian Edward Davis, 2009 Tex. Crim. App. Unpub. LEXIS 750(Tex Crim App 11/18/2009) (unpublished)  (dissent) "The nullification instruction given to applicant’s jury was not a sufficient vehicle to allow jurors to give meaningful consideration and full effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant’s trial is the type of evidence for which he was entitled to a separate and sufficient vehicle, we remand the case to the trial court for a new punishment hearing."
  • Ex parte Danielle Simpson, 2009 Tex. Crim. App. Unpub. LEXIS 771 (Tex Crim App 11/18/2009) (unpublished)  Application for writ of habeas corpus and stay denied without substantive analysis.
  • Ex parte Manuel Vasquez,  2009 Tex. Crim. App. Unpub. LEXIS 758 (Tex Crim App 11/18/2009) (unpublished) Relief denied without substantive discussion of the merits.
      

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SMALL PRINT
We've been at this 11+ years now.  Thanks to all those whose time, efforts, and contributions have made it possible.

*Indicates prior representation or other involvment in the case by the author.

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OPEN RESEARCH DATA: Search terms for the weekly are "capital habeas" or "capital postconviction" or "DEATH PENALTY" OR "CAPITAL MURDER" OR "SENTENCED TO DEATH" OR "PENALTY PHASE" OR "SPECIAL QUESTIONS" or "SENTENCE OF DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon"- please note, however, the terms "overproduce" results, including all federal habeas corpus opinions. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts. Thx - karl keys