CAPITAL DEFENSE WEEKLY
As always, thanks for reading. -k
As always, thanks for reading. -k
Pending Executions
February
16 Martin Grossman* (FL)
24 Hank Skinner* (Texas)
March
2 Michael Sigala* (Texas)
9 Lawrence Reynolds* (Ohio)
11 Joshua Maxwellc* (Texas)
16 Jack Harold Jones Jr. (Ark)
18 Paul Warner Powell* (VA)
30 Franklin Alix* (Texas)
April
12 Don William Davis (Ark)
20 Samuel Bustamante* (Texas)
20 Daryl Durr* (Ohio)
22 William Berkley* (Texas)
Stays
February
2 Robert Lee McConnell (Nev)
12 Dale Wayne Eaton (Wyo)
Executions
February
4 Mark Brown* (Ohio)
* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
[DPIC has more]
Week of February 1, 2010: In Favor of the State or Government (initial list)
- Robert W. Jackson, III v. Danberg, 2010 U.S. App. LEXIS 2100 (3rd Cir 2/1/2010) Panel upholds Delaware letha l injection protocols but takes it to task for its “blitheness.”
- James Phillip Barnes v. State, 2010 Fla. LEXIS 172 (FL 2/4/2010) Mr. Barnes waived counsel, entered a plea of guilty, and presnented no mitigation at trial. On appeal, no error is found, save for the failure to allow Mr. Barnes to review the PSI in this matter, which the Court holds, if error, was harmless error.
- Douglas Tyrone Armstrong v. State, AP-75,706 (Texas Crim App 1/27/2010) Relief denied on a grab bag of claims on direct appeal including: (1) “evidence is legally and factually insufficient to support his conviction for capital murder” (2) denial of continuance “despite his announcement of ‘Not Ready’;” (3) “that the trial judge tacitly removed trial counsel from his defense by denying counsel more time to conduct a complete mitigation investigation;” (4) “that the trial judge erred in denying his motion for a new trial. Armstrong argues that the evidence presented during the hearing was more than sufficient to show that he was deprived of effective assistance of counsel;” and (5) “that the trial judge ‘erred by denying [his] motion to suppress the evidence obtained as a result of his detention because there existed no reasonable suspicion to conduct the investigative detention.”
- Dexter
Darnell Johnson v. State, AP-75,749 (Texas Crim App 1/27/2010)
(unpublished) Relief denied, in relevant part, on the trial court's
failure to suppress two statements made by Mr. Johnson.
- Huggins v. State, 2010 Fla. LEXIS 142 (FL 1/27/2010) State’s motion to dismiss unauthorized appeal granted.
- Ex parte Calvin Letroy Hunter, WR-69,291-02 (Texas Crim App 1/27/2010) (unpublished)Application for habeas corpus dismissed as an abuse of the writ.
- Ex parte Eugene Alvin Broxton, WR-42,781-02 (Texas Crim App 1/27/2010) (unpublished) Summary denial of postconviction application without substantive discussion
- State ex rel. Andrew Lyons v. Lombardi, 2010 Mo. LEXIS 9 (1/26/2010) Relief granted under Atkins. "Under the current Diagnostic and Statistical Manual of Mental Disorders, significantly subaverage intellectual functioning is an IQ of 61 to 70, which is the range in which Lyons tested. There is substantial evidence to support the master’s findings that Lyons had continual extensive related deficits in the adaptive behaviors of communications and functional academics, noting, for instance, that Lyons’ attorneys and experts had difficulty communicating with him; that he cannot read, write or spell; that he was in special education classes; and that he spent three consecutive years in the 10th grade. Though scant, the records Lyons offered to document his conditions were sufficient to support the master’s conclusion that Lyons’ conditions were not fabricated recently and were documented before Lyons turned 18." [Clerk's Office]
- Joseph
E.
Corcoran v. Levenhagen, 2010 U.S. App. LEXIS 1770 (7th
Cir 1/27/2010) On remand from the SCOTUS. "The trial court
erred in using in its "weighing" calculations nonstatutory aggravators
in contravention of state law. "Nothing in this opinion prevents
Indiana from adopting a rule [ ] permitting the use of non-statutory
aggravators in the death sentence selection process."
- Leon
Winston v. Kelly, 2010 U.S. App. LEXIS 1845 (4th Cir 1/27/2010)
(dissent) Remand for a hearing on his Atkins claim. An
interesting discussion for habeas wonks on the default and factual
development in state court. Dissent would have held trial
counsel's performance ineffective and granted relief. t CapDefenseNetwork's "week
at a glance" should have more shortly.
- Ken E. Lott v. Florida Attorney General, 2010 U.S. App. LEXIS 1571 (11th Cir 1/25/2010) "[H]abeas petitioner had not made a substantial showing of the denial of a constitutional right, and therefore was not entitled to a certificate of appealability from the denial of a habeas petition. Lott claimed that his counsel was ineffective for failing to put on an alibi defense. However, counsel investigated the alibi defense and found no support for it. A potential alibi witness declined to testify because she would not “lie for Lott anymore.” Moreover, Lott himself voluntarily chose not to testify in support of his alibi defense. " [Defense Newsletter]
- Darrick
Walker v. Kelly, 2010 U.S. App. LEXIS 1844 (4th Cir
1/27/2010) (dissent) Relief denied on Atkins claim. Further, in
federal court a petitioner is not entitled to a jury trial on the issue
of mental retardation. "Dissenting in part, Judge Gregory found serious
errors by the district court in its consideration of Walker’s Atkins
claim including violations of Walker’s right to procedural due process.
In Gregory’s view, a remand is required to allow proper consideration
of the Atkins claim." [via
CapDefenseNet]
- Hall v. Donnie Cleveland Lance, 2010 Ga. LEXIS 69 (Ga 1/25/2010) "Lance’s trial attorney 'performed deficiently in failing to prepare for Lance’s trial by investigating Lance’s background.' Had the attorney investigated, he would have learned that Lance had a history of alcohol abuse, had ingested gasoline as a child, was once exposed to toxic fumes while cleaning an oil tank, had been shot in the head and had been injured in car crashes, one of which when he was fleeing police while drunk. He’d also been treated at Georgia Regional Hospital for depression. However, '[g]iven Lance’s long history of contemplating the murder of Joy Lance and Butch Wood, the manner in which he finally carried out their murders, and his utter disregard for their suffering and deaths afterward, we conclude that the new evidence of Lance’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if it had been presented at Lance’s trial,' today’s decision says. 'We also conclude, contrary to Lance’s arguments in his cross-appeal, that the new evidence of subtle neurological impairments would not have significantly affected the jury’s deliberations during the guilt/innocence phase.'" [Clerk's Office]
- State v. Carman Deck, 2010 Mo. LEXIS 6 (Mo 1/26/2010)(plurality) The Court sharply fractures on the standards to be used for proportionality review (all capital murder cases or merely those where death is imposed). Additionally, "[t]he man is not entitled to mandatory resentencing to life in prison because of what he claims were trial errors committed during the penalty phase of his previous trial. The trial court did not abuse its discretion in striking two potential jurors for cause based on their statements that they could not sign a verdict form imposing a death sentence. The state’s arguments about the man’s future dangerousness, based on a prior conviction for aiding an escape, did not violate due process or the applicable statute or rule, and its closing arguments did not constitute reversible error causing manifest injustice. The trial court did not err in admitting certain items seized from the man’s vehicle or subsequent statements he made to the police. No prejudice resulted from the trial court’s failure to read one instruction, as the information was conveyed in other ways, or in submitting to the jury other instructions patterned after model approved instructions. The state did not fail to give the man notice, before trial, of the statutory aggravating circumstances it intended to prove." [Clerk's Office]
Noncapital
- Peterson v. Grisham, 2010 U.S. App. LEXIS 2116 (10th Cir 2/1/2010) (noncapital) “Ronald Williamson and Dennis Fritz were falsely accused, convicted and were serving death and life sentences respectively for Carter’s murder, when they were exonerated by DNA evidence in 1999. Grisham, Scheck and the former accused Dennis Fritz all wrote books concerning the failures of the DA and police in prosecuting and convicting the wrong men for the crime. Robert Mayer wrote his book about a similar case that also occurred in Ada. To put it mildly, descriptions of plaintiffs contained in the stories were not flattering. The plaintiffs sued, claiming “a massive joint defamatory attack” by the defendants. The Court of Appeals found that the plaintiffs had failed in their second try at a complaint, to state a claim that could be remedied by the court. Under Oklahoma law, for a public official to prove defamation, they must show that false statements that they engaged in criminal behavior were made. Unlike some areas of the world where nearly any comment about an official can land the speaker in hot water, laws such as this provide even more leeway for discussion about officials and their performance of their public functions. According to the Court’s opinion, the plaintiffs failed to show that the defendants had made such false statements.” [h/t Tonya Roth]
-
Bolarinwa v. Williams,
2010 U.S. App. LEXIS 1886 (2nd Cir 1/28/2010)(noncapital) Mental
illness can serve as a ground for equitable tolling of the one-year
statute of limitations for filing habeas petitions.
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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
Note: We've changed the archiving method used to date editions in January 2010.
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
Note: We've changed the archiving method used to date editions in January 2010.