Leading off this edition is the Supreme Court's sweeping, albeit noncapital, decision in Padilla v. Kentucky.  The Padilla Court acknowledges what many state courts and most defense lawyers already know, collateral consequences, specifically immigration, matter. Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when certain collateral consequences, here immigration, are clear, it is Constitutionally deficient for a defense attorney to either improperly or  simplyfail to inform the defendant of those consequences. Justice Stevens' opinions notes "[w]e, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation."  Further, ABA standards "may be valuable measures of the prevailing professional norms of effective representation," and cited the ABA among others as authority for finding that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation."  Justice Alito at the start of his concurrence in response stresses that there are lots and lots of other collateral consequences that are also "serious," and goes onto suggest that Padilla should not be given a narrow reading.  Paul Rashkind, Doug Berman, Gideon, the Legal Ethics Forum, and Mass Appeal have thought provoking analyzes of the opinion and where, like Apprendi, it may lead.

Elsewhere, DPIC notes that:

Governor Brad Henry of Oklahoma recently granted a stay to Richard Smith, who was scheduled for execution on April 8. The governor wanted to allow more time to review the recommendation of the Oklahoma Pardon and Parole Board that Smith's death sentence be commuted, and to meet with prosecution and defense attorneys to hear their perspectives.  Smith was convicted of a 1986 murder during a time when evidence of fundamental errors in the criminal justice system was not as apparent as it is now. A year after his conviction, Oklahoma's legislature passed a law adopting life without parole as a sentencing option. Three jurors from Smith's trial have sinced signed affidavits stating that if life without parole had been an option, they would have voted for it. Jurors have also signed affidavits recalling that they were "unimpressed" by the performance of Smith's defense lawyer at trial.  In 2005, a U.S. District Court stated that, by today's standards, the defense's failure to request a psychiatrist to assist him for the penalty phase was unreasonable.

The Justice Project's John Terzano notes, "Jailhouse Snitches Sabotage Justice with Unreliable Evidence," 

Earlier this month, Orleans Parish District Judge Lynda Van Davis granted a new trial for Michael Anderson, who was convicted of murder and sentenced to death in a trial plagued with problematic evidence. Prosecutors have appealed the ruling and indicated that they will go forward with a retrial if necessary, so the question of Anderson’s guilt or innocence is far from settled. What is clear today, however, is that his first trial was marked by prosecutors’ troubling concealment of important information that undermined the credibility of key witnesses against him.. . .  The Justice Project’s common-sense reforms designed to protect the system from unreliable snitch testimony can be found in In-custody Informant Testimony: A Policy Review. There is an emerging consensus among criminal justice experts on the need for reform. Alexandra Natapoff, a leading national expert on the issue, recently published a new book, Snitching: Criminal Informants and the Erosion of American Justice, which extensively details the threat that snitch testimony poses to the criminal justice system. Natapoff also outlines the need for new safeguards to prevent snitches from undermining justice.

Nationally, the various forensic crime lab scandals have now been forced San Francisco & Nebraska to reexamine at least some of their cases. Reginald Clemons, who received a stay of a serious execution date in spring 2009 & has had a co-defendant executed, will now have key DNA evidence tested in his case.

This Friday, April 9, and Saturday, April 10, "the William Wayne Justice Center and the Capital Punishment Center will host a symposium at the law school, "The American Death Penalty in the 21st Century: The Direction of Legislative Change and the Prospects for Legislative Abolition." The event is open to the public.  All panel discussions will take place in the Eidman Courtroom." [via Stand Down

As always, thanks for reading. -k

Pending Executions
April 
12 Don William Davis* (Ark)
20 Samuel Bustamante* (Texas)
20 Daryl Durr* (Ohio)
22 William Berkley* (Texas)

May
4 Stacey Eugene Johnson* (Ark)
12  Kevin Varga* (Texas)
13  Michael Beuke* (Ohio)
13  Billy Galloway* (Texas)
19  Marlon Duane Kiser* (Tenn)
20  Darick Walker* (VA)
25  John Alba* (Texas)

Stays
March
9 David Johnston* (FL)
16 Jack Harold Jones Jr.* (Ark)
24 Hank Skinner* (Texas)

April
8 Richard Smith* (Ok)

May
20 Richard Lee Tabler*(Texas)

Executions
March
2 Michael Sigala* (Texas)
16 Lawrence Reynolds* (Ohio)
18 Paul Warner Powell* (VA)

30 Franklin Alix* (Texas)

• Commonwealth v. Dennis Reed, 2010 Pa. LEXIS 524 (Penn 3/25/2010) Relief denied on numerous claims including (1) sufficiency; (2) suppression; (3) compulsory joinder & failure to quash prosecution in light of previous related prosecution in another county; (4) the trial court's permitting the Comm. to use a strike after both sides found a particular juror acceptable; (5) certain evidentiary rulings by the trial court; (6) permitting a shotgun in issue to be taken in to the jury deliberation room; and (7) statutory review.

• Willie Earl Scott v. State, 2010 Ala. Crim. App. LEXIS 22 (Ala. Crim. App. 3/26/2010)  Relief denied on numerous grounds including  (1)  "circuit court's adoption of the State's answer as its order summarily denying his petition;" (2) competence to stand trial; (3) trial court's interference with the right to consult counsel during the trial; (4) "circuit court used an incorrect standard for pleading prejudice;" (5) "circuit court erred in considering his ineffective-assistance-of-counsel claims individually, without also considering the cumulative effect of the alleged errors;" (6)  guilt phase IAC - (a) "not adequately investigating and preparing for the case;"  (b) "not retaining any experts to assist in his defense;" (c) "not adequately investigating Scott's competency to stand trial,  for not presenting adequate argument at the hearing on Scott's competency, and for nor seeking an additional hearing on Scott's competency in light of his behavior at trial;" (d) "not challenging the consolidation of the charges at trial;" (e) "not exploiting what he says were holes in the State's case" concerning how the crime was committed; (f) "not challenging two prospective jurors for cause; and (g) for permitting Mr. Scott to discuss strategy with family members outside of their presence; (7) penalty phase IAC; (8)  appellate IAC ("not objecting to allegedly improper findings of fact made during the sentencing phase" &"counsel should have challenged what he contends was the trial court's interference with his right to counsel ... and should have raised the denial of funds for a mitigation expert"); (9) lethal injection; and (10) trial court's summary rejection of claims without providing opportunity to amend

• Joe Nathan James, Jr v. State,  2010 Ala. Crim. App. LEXIS 26 (Ala. Crim. App. 3/26/2010) Relief denied on claims including (A) IAC for  failing to investigate the background of the victim; (B) IAC for failing to investigate his claim that he was in Atlanta on the day before the shooting; (C) IAC for failing to investigate his "dissociative reaction" and his mental health; (D) IAC for failure to investigate and present mitigation evidence; (F)  IAC for failing to argue that movant was incompetent to stand trial; (G) failure to request certain jury instructions; (H) failure to object to use of an old presentence report at his sentencing;  (I) "circuit court erred in denying his initial motion to proceed in forma pauperis or ex parte on his request for funds to develop his claims of ineffective assistance of counsel;" and (J) trial court's summary denial of certain claims as improperly plead.

• State v. Nathaniel Jackson, 2010 Ohio 1270; 2010 Ohio App. LEXIS 1082 ( Ohio 7th App. 3/26/2010) (dissent) In sole assignment of error relief denied on claims the trial court erred in denying motion for relief from judgment without a hearing. As the dissent notes "[b]y way of a brief background, in May and June of 2003, Judge Stuard presided over the capital murder trial of Roberts. A jury found Roberts guilty of two counts of aggravated murder, among other crimes, and recommended a sentence of death. Between the penalty-phase hearing of Roberts' trial in early June and the sentencing hearing later that month, Judge Stuard engaged in ex parte communications four times with an assistant county prosecutor about the sentencing opinion in Roberts' case. Judge Stuard had had an informal practice of enlisting prosecutorial assistance in drafting judgment entries in criminal cases. He employed that practice in preparing the sentencing entry in the Roberts case but failed to include defense counsel in the process. In Roberts, the Supreme Court of Ohio vacated the death sentence and remanded the cause with instructions for Judge Stuard to personally review and evaluate the appropriateness of the death penalty.  The Supreme Court also observed that the ex parte collaboration between Judge Stuard and the prosecution to prepare the court's sentencing opinion was "wholly inconsistent" with the ethical constraints of Canon 3(B)(7) and DR 7-110(B).   In light of the acknowledged behavior of Judge Stuard in both the present and companion cases, as well as his public reprimand in Disciplinary Counsel v. Stuard, supra, I believe the evidence establishes that the present matter was handled in a similar manner as that of his co-defendant."

Week of March 22,  2010: In Favor of the State or Government

• Jeffrey Williams v. Thaler, 2010 U.S. App. LEXIS 5999 (5th Cir 3/23/2010) "In a capital habeas matter, a denial of a certificate of appealability is affirmed where: 1) the district court lacked jurisdiction to entertain a second or successive habeas application because petitioner failed to move in the appropriate court of appeals for an order authorizing the district court to consider the application; 2) petitioner did not demonstrate that a Texas court would hear the merits of his third application for post-conviction relief on the grounds of unavailability of the factual basis of his claim; 3) petitioner failed to demonstrate that reasonable jurists would debate whether executing petitioner would result in a fundamental miscarriage of justice; and 4) petitioner did not convince the court of appeals, by clear and convincing evidence, that the state's discovery violations prevented him from fully and fairly presenting his case." [via FindLaw]

• Jeffrey Sharp v. State, 2010 Ga. LEXIS 273 (Ga 3/22/2010)  "Defendant's due process rights were not violated when the State crime lab lost a condom found 150 feet from the crime scene before the bodily fluids in it could be tested because defendant failed to show both that it was apparent that the condom would contain evidence of exculpatory value and that the State acted in bad faith in losing it." [via LexisOne] Other issues include, eyewitness identification (out of court procedures), descriptions of the corpse when first discovered, comment on Sharp’s right to remain silent during closing argument, misleading testimony of the state's forensic expert, and admission of certain photographic evidence.

• Hall v. Christophr  Lewis,  2010 Ga. LEXIS 270 (Ga 3/22/2010) Habeas relief granted by the trial court on both guilt and penalty issues.  State only appealed the guilt phase grant of relief.  "Habeas court erred in granting relief to a petitioner on his malice murder conviction on the basis of ineffective assistance of counsel, because counsel's defense theory of innocence was not unsupported by the evidence, and there was no evidence of sudden passion supporting a proposed theory of voluntary manslaughter under O.C.G.A. § 16-5-2(a)." [via LexisOne]

• Jamie Ryan Weis v. State, 2010 Ga. LEXIS 277 (Ga 3/25/2010) (dissent) "In a 4-3 ruling the Georgia Supreme Court said the state did not violate Jamie Ryan Weis’ right to a speedy trial.  Mr. Weis had been without lawyers for two years because the state lacked the funds to pay for his defense.Writing for the majority, Justice Melton said the trial court was correct to appoint local public defenders, in spite of the fact that one of these attorneys had a caseload exceeding four hundred and had not maintained the certification necessary to defend death penalty cases. Writing in dissent, Justice Thompson stated, 'If the state wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and vigorous defense.  The state cannot shirk this responsibility because it is experiencing budgetary constraints.'  Justice Thompson added, 'The bottom line is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.'" [via Richard A. Grossman]

• State v. Clarence Fry, 2010 Ohio 1017; 2010 Ohio LEXIS 726 (Ohio 3/23/2010) "In rejecting all 20 allegations of trial court error raised by Fry as grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment, the Court denied Fry’s claims that three counts in the grand jury indictment returned against him, including one death penalty specification, were defective for failure to state a required guilty mental state (mens rea).. . . The Court also rejected claims that the trial court violated Fry’s Sixth Amendment right to confront witnesses against him by admitting “hearsay” testimony in which a police officer, a nurse and a victim-assistance advocate testified at trial regarding statements made to them by Hardison after the July 18 domestic violence incident that caused her to file assault and aggravated menacing charges against Fry.. . .  Among the other assignments of error, the Court also overruled Fry’s claim that his death sentence must be set aside because the trial judge filed the sentencing order in his case before allowing Fry to address the court" [Ohio Clerk of Court's Office]

• State v. Donald Lavell Craig, 2010 Ohio 1169; 2010 Ohio App. LEXIS 975 (Ohio App 9th 3/24/2010)  Postconviction relief denied on appeal on issues relating to failure to permit discovery, funding experts, and ineffective assistance of counsel (trial court chose wrong standard to examine claims, failure to investigate and present, use of experts (cultural, DNA & neurological), as well as "lead counsel’s substance abuse, disciplinary investigation, and, ultimately, his arrest").

• Ruben Gutierrez v. State, 2010 Tex. Crim. App. LEXIS 99 (Tex. Crim. App. 3/24/2010) "Because an order denying appointed counsel under Tex. Code Crim. Proc. Ann. art. 64.01(c) [relating to access to DNA testing] was not an immediately appealable order under Tex. R. App. P. 25.2(a)(2), defendant's appeal was dismissed because appellate court did not have jurisdiction to consider defendant's claim that the trial judge erred in denying his request for appointed counsel." [via LexisOne]

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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

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.