Leading off this week is another capital GVR.    In Thaler v. Anthony Haynes  the Court held "that a trial judge need not personally observe a potential juror’s behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor’s claim that she was excluded because of her demeanor under questioning.  No prior ruling of the Court, the Justices said in an unsigned, apparently unanimous opinion, requires that the judge have been on hand during jury selection in order to evaluate a claimed violation of Batson v. Kentucky, when the use of a peremptory strike was based on a claim of juror demeanor."

Elsewhere, the Office of Capital Writs, created by the Texas Legislature in 2009, is looking for a director of its Austin Office. Hank Skinner’s execution date has been reset for late March despite growing concerns of his potential factual innocence.  DPIC notes that "in an historic decision, a panel of judges outside of the state's court system unanimously voted to exonerate and release Gregory Taylor, a North Carolina man who was imprisoned for nearly 17 years for first-degree murder." DPIC also examines "Messages of Life from Death Row features correspondence from Texas death row inmate Roger McGowen to sociologist and writer Pierre Pradervand.. . . [describing] life on death row and point to flaws in the American criminal justice system, especially the arbitrary nature of the death penalty." Adam Liptak in the New York Times has posted his Sidebar column on the Dean Hood case entitled "Questions of an Affair and a Fair Trial." The U.S. Department of Justice hosted a two day symposium on indigent defense last Thursday and Friday in Washington, DC; StandDown has the details. ACS is circulating an "Issue Brief" by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, entitled “Hire a Lawyer, Escape the Death Penalty?” looking at Harris County and the apparent failure of indigent defense in capital cases.

As the recession has grown worse so have many public defender's dockets. My docket has been no different and helps explain the slow down here and over at the daily blog.  Adding to that, over the course of the last few weeks and for the next month, or so, I've been prepping and, starting next week, trying a fairly complex sexual assault case remanded for new trial by my state Supreme Court, State v. Schnabel, 196 N.J. 116.   I'm hoping to have editions "out" for at least one or two of those weeks, but my apologies in advance for those editions being very abbreviated and no guarantees as to schedule. As always, thanks for reading. -k 

* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
[DPIC has more]

• Thaler v. Anthony Haynes, No. 09-2730 (2/22/2010)  "[A] trial judge need not personally observe a potential juror’s behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor’s claim that she was excluded because of her demeanor under questioning.  No prior ruling of the Court, the Justices said in an unsigned, apparently unanimous opinion, requires that the judge have been on hand during jury selection in order to evaluate a claimed violation of Batson v. Kentucky, when the use of a peremptory strike was based on a claim of juror demeanor."  [via SCOTUSBlog]

• John David Duty v. Workman,  2010 U.S. App. LEXIS 2901 (10th Cir 2/12/2010) (unpublished) Duty plead guilty to the murder of his cellmate, waived mitigation, and sentenced to death. On federal habeas review denied on  claims relating to "(1) his trial counsel failed to investigate and present mitigating evidence; (2) two aggravating circumstances were duplicative in violation of the Eighth Amendment;  (3) the "continuing threat" aggravator is unconstitutional; (4) the "heinous, atrocious, or cruel" aggravator is unconstitutionally vague with no evidence to support its finding; (5) Duty's prior violent felonies were too remote in time to be used as aggravating factors; and (6) Oklahoma's death sentence protocol violated the Eighth and Fourteenth Amendments."

• Cornwell, Jr., (Glenn) on H.C.,  2010 Cal. LEXIS 987 (Cal 2/10/2010) Relief denied without substantive published analysis

• 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."

• State v. Teddy Chester, 2010 La. LEXIS 265(La. 02/10/2010) "[T]his case is remanded to the district court with directions to consider relator's request to discharge counsel and to represent himself during post-conviction proceedings, i.e., whether relator maintains his desire to represent himself and does so knowingly and intelligently with the understanding of the legal consequences of such a decision, and to determine the status of his original and supplemental applications filed in 2001 which  apparently remain pending."   

•  People v. Lindberg (Gunner Jay),  2010 Cal. LEXIS 1045 (Cal 2/10/2010)  "Federal counsel for Lindberg, the Federal Public Defender for the Central District of California, is granted access to the record in People v. Gunner Jay Lindberg (S066527), including all sealed or confidential materials except for [certain] sealed envelopes ...."

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As a reminder,we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to a nonprofit involved in some aspect of the capital punishment issue, such as  Pennsylvanians for Alternatives to the Death Penalty  (website/donate)(where I'm currently the co-chair) or the Fair Trial Initiative (website/donate).  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.  As always, thanks for reading, and special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named.  - k