After a summer's drought of relevant favorable case law, the dry snap appears to be broken. Leading off this edition is the Arizona Supreme Court's decision in State v. Gary Wayne Snelling. The sentencing jury found only one aggravator, "that Snelling murdered Curtis in an especially cruel manner" as the victim was strangled to death. “Absent any evidence of defensive injuries, a struggle, or pleas for help, the record shows only that [the victim] was suddenly confronted by an assailant who promptly strangled her to death.” “Strangulations are not per se physically cruel absent specific evidence that the victim consciously suffered physical pain.”  “On independent review [ ] we find the record insufficient to support the (F)(6) aggravator because the evidence does not prove beyond a reasonable doubt that Curtis consciously suffered mental anguish or physical pain sufficient to render the murder especially cruel."  As a result, on independent review Mr. Snelling's death sentence must be vacated and a lesser sentence imposed.

The South Carolina Supreme Court in Angle Joe Perrie Vasquez  v. State likewise grants relief.  At trial Mr. Vasquez 's "Muslim faith was a key theme . . .  which coincided with the second anniversary of September 11th."  “[T]he solicitor’s characterization of Petitioner, a Muslim, as a “domestic terrorist” and correlation between Petitioner’s acts and the events of September 11th was so egregious, Petitioner has proven he was prejudiced by counsel’s" failure to object to such characterizations.  The Court below, therefore,  "erred in failing to find Petitioner was denied effective assistance of counsel. Given the solicitor’s improper remarks occurred primarily during the penalty phase of Petitioner’s trial, we find Petitioner is only entitled to a new sentencing hearing and not a reversal of his convictions.”

In a decision especially for federal habeas corpus types, the Eighth Circuit in Timothy Howard v. Norris affirms the trial court's issuance of an abeyance to permit exhaustion.  Specifically,  “[t]he district court stayed [the capital habeas] proceeding to give Howard a chance to return to state court to exhaust certain claims." On interlocutory appeal the State "contends the district court abused its discretion in granting the stay because the unexhausted claims are procedurally defaulted, that is," under state law no forum or procedure existed to hear the unexhausted claims. The State's motion, however,  is premature as "the disputed issue – whether Howard’s unexhausted claims are procedurally defaulted – can be addressed in an appeal from a final order."  "We therefore grant Howard’s motion to dismiss for lack of jurisdiction."

Finally, well over eight years after the Supreme Court decided Atkins v. Virginia was decided two decision concerning "mental retardation" are noted, Alvin Bernal Jackson v. Norris (Eighth Circuit remands to the district court for an Atkins hearing), and Virgilio Maldonado v. Thaler, (Fifth Circuit grants COA on Atkins claim).

In the news, the Texas Supreme Court refused Monday to overturn a judicial conduct panel's reprimand of the Texas Court of Criminal Appeals' Judge Sharon Keller for her handling of an execution-day appeal. As Steve Hall notes at StandDown Texas, during this economic downturn and budget crisis, the "cost of California Death Row roils editorial boards." The New York Times looks at Texan Michael Green who was "set free by a state judge two weeks ago after DNA tests on the rape victim’s clothing proved that he could not have been responsible for the crime." AP reports that DNA test may cast doubt on Claude Jones's  guilt and may suggest he :may have been wrongly executed for the 1989 slaying of a liquor store owner in this aptly named Texas town."   The deadline to file a claim under the North Carolina racial Justice Act was last week, at least 119 on death row have by now filed claims alleging racial bias in the implementation of that state's death penalty scheme. DPIC recently looked at  Daniel Dougherty of Pennsylvania "[a]nother death row inmate [who] is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science." DPIC also notes that "James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at the Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors"

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  - k

• Richard Vasquez v. Thaler, 2010 U.S. App. LEXIS 16824 (5th Cir 8/11/2010) Relief denied on “(1) whether Vasquez received ineffective assistance of trial counsel when his attorneys failed to investigate and present significant mitigating evidence during the penalty phase of his trial; and (2) whether Vasquez received ineffective assistance of appellate counsel because his attorney labored under an actual conflict of interest arising from the attorney’s undisclosed, simultaneous service as a special prosecutor in multiple death penalty cases in the same jurisdiction.” “We hold that although it was objectively unreasonable for the state court to conclude that Vasquez’s trial counsel’s performance was constitutionally sound, Vasquez was not prejudiced by his trial counsel’s deficient performance. We also hold that it was not objectively unreasonable for the state court to conclude that Vasquez’s appellate counsel did not labor under an actual conflict of interest.”

• Ex parte Brent E Martin,  2010 Ala. LEXIS 139 (Ala Crim App 8/13/2010)  Relief denied on “the State’s strike of one prospective juror, B.B., an African-American female, on the ground that the State’s reasons for striking that juror were pretextual;” whether “trial counsel were ineffective because [ ] they failed to conduct an adequate investigation into mitigating circumstances for the penalty phase of the trial. Martin argues that counsel’s detailed billing statements presented to the trial court and contained in the record, indicate that counsel spent a total of only six hours investigating mitigating circumstances. He also argues that the record reflects that counsel failed to request funds for a mitigation expert, a social worker, or a psychological expert to help prepare for the penalty phase of the trial;” and statutory review.

• Warren Darrell Rivers v. Thaler, No 09-70031 (5th Cir 8/5/2010)(unpublished) State appealed the district court’s grant of relief on jury instructions under Penry I.  Mr. Rivers appealed the denial of a COA on his Batson claims. District court affirmed in its entirety.

• Mark Dwyatt Brown v. State,  2010 Ala. Crim. App. LEXIS 65  (Ala. Crim. App 7/30/2010) "Based on the trial court’s instructions, the jury could have found Brown guilty of capital murder if he intended to commit another felony, i.e., first-degree robbery, first-degree burglary, second-degree burglary, or arson, but did not intend to kill the deceased or another person. Therefore, the instructions did not clearly distinguish the intent element for the offense of capital murder from the intent element for the offense of felony-murder. Brown argues that the sole issue before the jury was whether he was guilty of capital murder because he intended to kill the victims or whether he was guilty of felony-murder because he did not intend to kill the victims. He also contends   that his defense was that he only intended to rob them and that he did not have any reason to kill them. Because the trial court’s instructions effectively abolished any distinction between capital murder and felony-murder, we cannot find that the error in giving those instructions regarding intent were harmless.”

• Daniel Saranchak v. Beard, No. 08-9000 (3rd Cir 8/3/2010) Grant of relief reversed on "three claims before us arise out of Saranchak’s degree of guilt hearing: (1) whether Watkins was ineffective for failing to investigate thoroughly and present adequately a diminished capacity defense; (2) whether Watkins was ineffective for failing to ask the trial court to suppress statements made to the state police officers; and (3) whether Watkins was ineffective for failing to seek suppression of the statements made to Laurie Garber.” Remand hand so that the district court can address in the first instance penalty phase issues not previously addressed.

• State v. Derek Don Chappell, 2010 Ariz. LEXIS 34 (Az 8/3/2010) Relief denied on direct appeal on claims regarding: [A] "statements about the murder should have been excluded because the State failed to establish corpus delicti;” [B]"there was insufficient evidence to support the jury’s finding that the drowning was especially cruel;” [C]  medical examiner’s "testimony that drowning was a "horrifying experience” and a "10″ on "scale of 1 to 10″ was improper expert opinion on an ultimate issue;” [D] "prosecutorial misconduct” in light of comments to the jury in both phases of the trial; [E] "aggravation phase jury instructions failed to sufficiently narrow the (F)(6) aggravator;” [F] "trial court improperly excluded evidence about the impact his execution would have on his family, including his young daughter;” [G] "trial court’s warning that he might be subject to cross-examination if he disputed his guilt during allocution prevented him from freely exercising his right to allocution and the jury from considering all relevant mitigating evidence;”  [H] "trial court erred by admitting, over objection, evidence of prior injuries Devon suffered while in Chappell’s care as rebuttal to Chappell’s mitigation evidence;” [I] sentencing "instruction[s] misled the jury to believe [he] was eligible for parole if given a thirty-five year to life sentence;” [J] trial "court’s failure to instruct the jury that his child abuse sentence would be served consecutively to his murder sentence violated the mandates of Lockett;” [K] "trial court erred by refusing to instruct the jury that the "cumulative effect of mitigation” was a separate and independent mitigating facto;” [L] "victim’s age were improperly used to establish both the (F)(6) aggravator and the (F)(2) and (F)(9) aggravators;” and [M] "trial court erred by refusing to provide jurors with a transcript of his allocution during deliberations.”

• People v. Robert Wesley Cowan,  2010 Cal. LEXIS 7545 (Cal 8/5/2010) Relief denied, most notably, on claims relating to "the trial court‟s failure to instruct regarding reasonable doubt with respect to the Russell murder, and its failure to redefine reasonable doubt in its penalty phase instructions.” Both errors held harmless. "Conviction of defendant for first degree murder and a sentence of death are affirmed on automatic appeal over claims regarding: 1) trial court's denial of defendant's many motions to dismiss due to prearrest delay; 2) jury selection issues; 3) alleged improper exercise of peremptory challenges; 3) alleged judicial bias and related errors; 4) alleged improper admission of witness's hearsay statements; 5) alleged improper admission of expert ballistics testimony; 6) alleged error in excluding defendant's "consciousness of innocence" evidence; 7) alleged error in admitting photographs of the victims; 8) victim impact testimony; 9) failure to give a reasonable doubt instruction; 10) alleged error in including both burglary and robbery in instruction regarding other criminal activity; 11) denial of certain requested instructions; 12) alleged failure to adequately investigate potential juror misconduct; and 13) challenges to death penalty statute." [via FindLaw]
  

• People v. Nathan Verdugo,  2010 Cal. LEXIS 7524 (Cal 8/2/2010) "Conviction of defendant for first-degree murder and a sentence of death are affirmed over claims of error regarding: 1) trial court's error in refusing to appoint Keenan counsel; 2) failure to disclose Brady and section 1054.1 material; 3) evidentiary issues; 4) instructional error; 5) trial court's failure to limit the prosecution's victim impact evidence; 6) scope of cross examination; 7) alleged Griffin error; 8) timing of defense closing argument; 9) challenges to California's death penalty scheme; 10) denial of new trial motion; 11) denial of request to discharge retained counsel; 12) cumulative prejudice; and 13) alleged violation of international law." [via FindLaw] "There was no error in a trial court’s admission of victim impact evidence under Pen. Code, § 190.3, factor (a), during the penalty phase of defendant’s capital murder trial where the witnesses described the immediate effects of the murders, as well as their residual and lasting impact.” [via LexisOne]

• Oscar Roy Doster v. State,  2010 Ala. Crim. App. LEXIS 68 (Ala. Crim. App 7/30/2010) Judicial override to death of unanimous life recommendation and affirmed on numerous claimed errors arising from the trial court's override, most notably Ring.
  

• Derek Sales v. State,   2010 Ark. 320; 2010 Ark. LEXIS 407 (Ark 8/6/2010) Permission to file belated brief granted, however, counsel referred to ethics committee due to the delay in filing.