CAPITAL DEFENSE WEEKLY

Leading off this week is Thomas Robert Lane v. State from the Alabama Court of Criminal Appeals.The decision is relatively straight forward, relief granted as the trial court infringed on the right of the choice of counsel under the Sixth Amendment.  Specifically, the Lane Court holds that because trial counsel was not a necessary witness it was error to remove him. The Court goes further and holds that "there is no difference between retained counsel and appointed counsel when it comes to the right to continued representation by counsel of choice." As such, removal of even a court appointed attorney, is "structural error" not subject to harmless error analysis.

The Louisiana Department of Public Safety and Corrections recently sued every inmate on death row, in an effort to block any one of them from challenging the state's lethal injection procedures DPIC reports that in South Carolina the state's longest-serving death row inmate, Edward Lee Elmore, appears to have been spared from execution when a state circuit court ruled he suffered from mental retardation.  In both Kansas (SB 375)and  South Dakota (HB 1245) legislation is winding its way through the legislature to repeal the death penalty in those states. In Nebraska that state's governor recently "signed off" on new lethal injection protocols. The American Psychiatric Association has released a beta version of its Diagnostic and Statistical Manual of Mental Disorders at its  DSM-V website.

In the "notable loss" category falls Larry Swearingen v. State.  In Mr. Swearingen's matter there is untested biological evidence.  As it has done in innumerable other capital cases, such as the upcoming execution of Hank Skinner, the Court of Criminal Appeals has simply refused to permit testing of readily available biological evidence that could support innocence. Retired Federal District Judge H. Lee Sarokin at Huffington Post posted "Thwarting Justice by Denying DNA Testing" in response. Steve Hall has a fascinating piece on Texas and the problems it faces with executing the innocent.

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 8,  2010: In Favor of the State or Government (initial list)

• Terrick Nooner v. Norris,  2010 U.S. App. LEXIS 2599 (8th Cir 2/8/2010) "In challenge to the Arkansas protocol for execution by lethal injection, district court did not abuse its discretion n finding the case ripe for summary judgment. Grant of summary judgment that legal injection protocol does not subject inmates to a substantial risk of serious harm is affirmed. Arkansas protocol contains sufficient safeguards to ensure inmate is fully unconscious before pancuronium bromide and potassium chloride are administered. and any risk that the procedure will not work as designated is merely a risk of accident. Newspaper article reporting that intracardiac infusion could be used if necessary is inadmissible hearsay. Protocol requires placement of central venous lines by qualified personnel. Authorization to use "cut-down" procedure does not raise risk of serious harm. IV team qualification requirements under Arkansas protocol are substantially similar to requirements of the Kentucky protocol upheld in Baze. Monitoring infusion site is required under the protocol. Contingency plan in directing use of secondary IV site did not subject inmate to substantial risk of serious harm. Photographs of execution chamber did not show facility subjected inmate to substantial risk. Thus, the protocol does not violate the Eighth Amendment." [Clerk's Office]

• Robert Wayne Lambert v. Workman,  2010 U.S. App. LEXIS 2744 (10th Cir 2/10/2010) "In a capital habeas matter, a denial of the habeas petition is affirmed where: 1) there was no Supreme Court authority clearly establishing the proper reconciliation of the competing double-jeopardy principles at issue, which was fatal to his claim; and 2) it was neither arbitrary nor capricious for a state court of appeals to retain and exercise its customary appellate authority to correct the trial court's error in the event the trial court failed to take the required action." [via FindLaw]

• Rory Enrique Conde v. State, 2010 Fla. LEXIS 177 (FL 2/11/2010) "Prisoner failed to establish that he suffered any prejudice from counsel's alleged deficiencies because he failed to show that additional witnesses would have testified and what those witnesses would have said or how that testimony would improve on the testimony that was given or interact with the other evidence and circumstances of his case." [via LexisOne]

• Derrick McLean v. State,  2010 Fla. LEXIS 179 (FL 2/11/2010) "There was sufficient evidence to support the first-degree murder conviction and the state presented competent substantial evidence to support the avoid arrest aggravator. Considering the circumstances, the aggravating and mitigating factors weighed by the trial court, and other cases with similar facts, the death sentence was proportionate." [via LexisOne]

• Martin Edward Grossman v. State, 2010 Fla. LEXIS 176 (FL 2/8/2010) "Inmate's motion to vacate his sentence under Fla. R. Crim. P. 3.851 was properly dismissed because his claim of ineffective assistance during the penalty phase was procedurally barred, he failed to show that death penalty statute was arbitrary and capricious as to him, and his claim that he could be incompetent at time of execution was premature." [via LexisOne] "Trial court's order summarily denying defendant's third successive motion to vacate his death sentence is affirmed where: 1) summary denial of defendant's ineffective assistance of counsel claim was proper because it was procedurally barred and because the claim does not present newly discovered evidence; 2) summary denial of defendant's claim that the Florida death penalty statute is arbitrary and capricious as applied to defendant was proper; and 3) trial court properly dismissed defendant's claim that executing him would be cruel and unusual punishment because he may be incompetent at the time of execution, as under rule 3.811(c) and section 922.07, defendant must exhaust his administrative remedies before he can raise the issue in court." [via FindLaw]

• State v. Charles Christopher Williams, 2010 S.C. LEXIS 21 (S.C. 2/8/2010) Relief denied on claims that: "(1) that once the jury disclosed its numerical division it was incumbent upon the trial judge to declare a mistrial; (2) that S.C. Code Ann. § 16-3-20 required the trial court to sentence Appellant to a life sentence because the jury could not agree on a sentence after "reasonable deliberation;" (3) the trial judge committed error by issuing a coercive Allen charge; and (4) the trial judge erred in refusing to declare a mistrial when a forensic psychiatrist's testimony impermissibly bolstered and vouched for the solicitor's decision to seek the death penalty."

• Larry Swearingen v. State,  2010 Tex. Crim. App. LEXIS 9 (Tex. Crim. App. 2/10/2010) Despite ready availability of biological evidence for testing, DNA testing denied in light of the Court's view of the strength of the State's case.

• Adam Kelly Ward v. State, No. AP-75,750  (Tex. Crim. App. 2/10/2010) (unpublished) Relief deneid on claims: (1) "that the trial judge erred in limiting evidence of his mental impairment at the guilt phase;" (2) that the trial court erred in excluding proffered defense witnesses as to mens rea on felony charges other than capital murder; (3) "that the Texas death-penalty scheme is unconstitutional because it fails to provide uniform, statewide standards to guide prosecutors in their decisions to seek the death penalty;" and (4) "that Texas's capital-sentencing statute impermissibly prevented the jury from giving meaningful consideration and effect to his constitutionally relevant mitigating evidence under Penry v. Lynaugh."
  

Week of February 1,  2010: In favor of the Accused or Condemned 

• Thomas Robert Lane v. State, 2010 Ala. Crim. App. LEXIS 2 (Ala. Crim. App. 2/5/2010) "Defendant's convictions for capital murder were improper because he was wrongly denied his right to counsel of choice under U.S. Const. amend. VI. Because defendant's counsel was not a necessary witness under Ala. R. Prof. Conduct 3.7, the trial court erred in disqualifying him from representing defendant." [via LexisOne]

• Justin Wolfe v. Johnson, NO. 2:05cv432 (E.D.Va 2/4/2010) On remand, "Petitioner has satisfied the Schlup v. Delo standard. Petitioner's Motion for an Evidentiary Hearing on his Brady and Giglio claims is granted. Petitioner's Motion for Discovery on Brady and Giglio is granted. The Court will reserve its ruling on Petitioner's venireman-court claim."

Week of February 1,  2010: In Favor of the State or Government

• Tierra Capri Gobble v. State, 2010 Ala. Crim. App. LEXIS 8 (Ala. Crim. App. 2/5/2010) "Appellant's conviction for murdering 4-month-old son--capital offense under Ala. Code § 13A-5-40(a)(15)--was affirmed, but case was remanded for circuit court to, inter alia, make specific findings of fact as to each aggravating circumstance in Ala. Code § 13A-5-49 and then reweigh aggravating and mitigating circumstances and resentence appellant." [via LexisOne]

• Alfonzo Morris v. State, 2010 Ala. Crim. App. LEXIS 9 (Ala. Crim. App. 2/5/2010) "The trial court did not err in determining appellant was not mentally retarded for purposes of Atkins. Circumstances of the victim's murder supported finding that murder occurred during burglary and robbery and each aggravating circumstance should apply to appellant's sentencing; sentence of death was neither disproportionate nor excessive." [via LexisOne]

• State v Mark Brown, 2010 Ohio 405; 2010 Ohio App. LEXIS 334 (Ohio 7th Dist 2/2/2010) "In conclusion, we dismiss Appellant's fourth assignment of error as moot and because we are considering the merits of this appeal as if the motion for new trial based on newly discovered evidence has met the criteria for being timely filed. Appellant's first, second and third assignments of error are overruled because the testimony of Myzelle Arrington and Marcus Clark does not by law constitute newly discovered evidence, and therefore, the trial court did not abuse its discretion in disallowing the testimony as the basis for a new trial. The evidence of Jerry Granberry and Gary Rini, offered to support Arrington and Clark's testimony, had no relevance to the issue before the court; whether the underlying changed testimony was newly discovered. Thus, it was also properly disallowed. Because we overrule each of Appellant's pertinent assignments of error, we hereby affirm the judgment of the Mahoning County Court of Common Pleas."

• 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.

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SMALL PRINT
We've been at this 12+ years now.  Thanks to all those whose time, efforts, and contributions have made it possible.

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