Leading off this edition is the stunning opinion from the Texas Court of Criminal Appeals in Ex parte Charles Hood. The Hood Court appears to go out of its way to grant relief on a Penry claim that potentially had substantial procedural problems, and likewise went out of its not to mention the affair between trial court judge and prosecutor.  Specifically, a sharply divided plurality grants relief as the jury instructions limited the ability of the jurors  to fully consider in mitigation issues like the condemned’s learning disabilities, being hit over the head with a pipe for discipline, and had a  that he had a truck back over him as toddler causing developmental issues and breaking his legs.

A split Ninth Circuit panel in Fred Lawrence Robinson v. Schriro granted sentencing relief  on two claims. The Ninth Circuit Blog notes that the Robinson  panel "concluded that the aggravator of cruel, heinous, and depraved was arbitrarily found here because no evidence was presented that the petitioner was in the house when the murders took place; nor that he had ordered the murders; nor that he even could have foreseen the murders."  The panel also granted relief on ineffective assistance of counsel claims "where counsel failed to investigate petitioner's background, childhood, mental and emotional abuse, his low IQ, his mental condition, nonviolent nature, and his potential for rehabilitation."

Closing out the favorable decisions is Alwin C. Tumblin v. State from the Florida Supreme Court. At trial the State was permitted to introduce a witness's prior consistent statement through the testimony of a police officer.  That officer also essentially vouched for the State's witness's credibility.  The witness was critical to the State's obtaining a guilty verdict against Mr. Tumblin.  The trial court subsequently struck the testimony and gave a curative instructive.   The vouching, however, went too far and the conviction must be vacated.

The Death Penalty Information Center collects relevant death penalty articles that have appeared in print and on media Web sites in 2009  here. A high profile Philadelphia death penalty case (two dead retired cops) resulted in a life sentence and the jury foreman has gone public with the rationale behind the verdict. Over 1,000 human rights activists from over 100 countries recently gathered in Geneva, Switzerland, for the 4th World Congress Against the Death Penalty.

Note that last week's edition was mistagged with the week of the 15th available here and the 22nd here.

Lastly, in a prior edition I mentioned I was likely to be on trial until Easter.  Fortunately the State, after my client spent 4+ years incarcerated, dismissed all charges.  Put  another way, here and over at the daily blog, the pace should pick up for the coming weeks 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]

• Wilkins v. Gaddy, No. 08–10914  (2/22/2010) "In a 42 U.S.C. section 1983 action alleging excessive force by a correctional officer, a court of appeals’ affirmance of dismissal of the complaint is reversed where the district court’s approach (based on its determination that plaintiff’s injuries were “de minimis”) was at odds with precedent directing it to decide excessive force claims based on the nature of the force, rather than the extent of the injury." [via FindLaw]
  

• Florida v. Powell, No. 08–1175 (2/23/2010)  "In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant’s conviction on Miranda grounds is reversed where the police satisfied Miranda’s requirements by informing defendant that he had “the right to talk to a lawyer before answering any of their questions,” and that he had “the right to use any of his rights at any time he wanted during the interview.” [via FindLaw]
  

• Maryland v. Shatzer, No. 08–680 (2/24/2010)  "In a sexual child abuse prosecution, the state court of appeals’ reversal of defendant’s conviction is reversed where defendant experienced a break in Miranda custody lasting more than two weeks between first and second attempts at interrogation, and thus Edwards did not mandate suppression of defendant’s statements during the second interrogation." [via FindLaw]

• Ex parte Charles Hood, No. AP-75,370; 2010 Tex. Crim. App. LEXIS 12 &  2010 Tex. Crim. App. LEXIS 13 (Tex. Crim. App. 2/24/2010) (dissent)(plurality) A sharply divided plurality grants relief on a Penry claim without ever mentioning the salacious allegations that have won this case international condemnation. Specifically, the jury instructions limited the ability of the jurors  to fully consider in mitigation issues like the condemned’s learning disabilities, being hit over the head with a pipe for discipline, and had a  that he had a truck back over him as toddler causing developmental issues and breaking his legs. Steve Hall effectively rounds up the coverage of the decision here.

• Fred Lawrence Robinson v. Schriro, 2010 U.S. App. LEXIS 3605 (9th Cir 2/22/2010) New trial ordered based on the erroneous finding the murder at issue was committed in an especially cruel, heinous, or depraved manner AND trial counsel delivered ineffective assistance of counsel. (unpublished portion of the opinion available at 2010 U.S. App. LEXIS3589).

• Alwin C. Tumblin v. State, 2010 Fla. LEXIS 258 (FL 2/25/2010) “We conclude that reversible error occurred in the guilt phase of the trial, which affected both the guilt phase and the penalty phase, when a police officer gave his opinion of the truthfulness of a key State witness.”

• James Harrison v. Gillespie,  2010 U.S. App. LEXIS 3606 (9th Cir 2/22/2010) (superseding opinion) Trial court abused its discretion by declaring a mistrial without first polling jury.  Double jeopardy held to have attached.  State may not again seek death on retrial.

• Michael Wall Hall v. Thaler,  2010 U.S. App. LEXIS 3611 (5th Cir 2/22/2010) COA and Relief denied on claims relating to whether Mr. Hall is mental retarded, “whether the Texas death penalty statute or the mitigation special issue submitted to the jury violates the Constitution.”

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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