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Capital
Defense
Weekly
Leading off this edition is the
Pennsylvania Supreme Court's decision in Commonwealth
v.
Bradley
Martin. During the course of ordering a new penalty phase
trial, the Martin
Court holds trial counsel was ineffective for
failing to investigate and present mental health mitigation evidence.
Mr. Martin "did not want to discuss his mental health problems
with counsel." "Defendant's parents provided counsel," however, "with a
list of
institutions and psychologists who had provided treatment to Defendant
.. . . a letter written
by them to Judge Haas indicating that Defendant sustained
psychological damage from the abuse of [his uncle] and a Presentence
Investigation Report indicating that Defendant has been treated for
mental issues." Counsel did nothing with the materials. The
mere "fact that Defendant did not want to
discuss his mental history with counsel did not render counsel's
failure to pursue such evidence reasonable."
In David
Scott
Detrich
v. Ryan the Ninth Circuit granted relief on trial counsel's
representation of Mr. Detrich at the penalty phase of the state
court proceedings. "Trial
counsel did not use a expert mitigation investigator: and the
investigator used was unqualified to do a life history. His
investigation was minimal at best. No defense mental health expert was
used nor defense evidence presented. Counsel failed to investigate and
present the extensive mental health history. This ineffectiveness was
prejudicial." [via John Sands @
Ninth Circuit Blog] As the Arizona
Capital
Representation
Project notes, "Mr. Detrich was represented by the Project’s
own Jen Bedier, as well as Greg Kuykendall . . .. Notably, Mr.
Detrich’s sentencing counsel fulfilled his duty under the ABA
Guidelines to facilitate the work of habeas counsel, which undoubtedly
played an important role in this resolution."
In the news, an Oklahoma
federal District Court Judge Stephen P. Friot stayed
the
scheduled execution date of Jeffrey David Matthews. Earlier in
the week counsel for Mr. Matthews discovered the state possessed no
available stocks of sodium thiopental. Oklahoma DOC wanted to replace
the sodium thiopental in its executionprotocol with methohexital
sodium.
The district court granted the stay as methohexital sodium
has never been used in an execution protocol and there is no proof it
is a humane alternative to sodium thiopental.
Elsewhere, "A report released
today by two former FBI agents,
commissioned to
review North Carolina’s State Bureau of Investigation laboratory in the
wake of the Greg Taylor exoneration,
finds that the convictions of three people executed in North Carolina
were based in part on forensic reports and testimony that were, to be
kind, misleading. The report is available online here.The executed persons identified in the report
are Desmond Carter
(report confirmed the presence of blood on an item when the test was in
fact negative), John Rose (report stated that there were chemical
indications for the presence of blood and no further tests were done
when in fact further tests were done and were negative), and Timothy
Keel (report stated that blood test was inconclusive when in fact
subsequent tests were negative)." [via Death
Watch
North Carolina] DPIC
also has more.
In addition to the indefatigable
work of Steve
Hall, this edition relies heavily on the work of several legal
bloggers as,
such as AFPD John Sands andProf. Ben
Trachtenberg, for expert commentary to provide detail that likely would
have
simply missed. As always thanks
for reading. - karl
Pending
Executions
September
2 Holly Wood* (Ala)
9 Holly Wood* (Ala)
10 Cal Brown* (Wash)
15 Kevin Keith* (Ohio)
23 Teresa Lewis* (Va)
October
6 Michael Benge* (Ohio)
14 Gayland Bradford* (Tex)
14 Donald Wackerly II* (Okla)
16 Jeffrey Matthews* (Okla)
20 Roderick Nunley* (Mo)
21 Larry Wooten* (Tex)
Stays
August
17 Jeffrey Matthews* (Okla)
Executions
August
17 Peter Cantu* (Tex)
* "serious" execution date / (s)
stay believed likely / (V) Volunteer / note this list may erroneously
exclude some dates [ via DPIC]
- David
Scott
Detrich
v. Ryan, 2010 U.S. App. LEXIS 17397 (9th Cir
8/20/2010) Mr. "Detrich contends that Higgins devoted
unreasonably little time to penalty phase preparations, failed to seek
reasonably available mitigating evidence, and unreasonably failed to
enlist the assistance of a mental health expert. We agree." A MemOp,
filed
separately
and unpublished, denied relief on remaining claims;
"alleged violations of his constitutional rights to a fair trial, an
impartial jury, and due process during the guilt phase of his trial,
when the trial court (1) excused jurors based on their opposition to
the death penalty, and (2) refused to allow voir dire on jurors’ racial
biases." John Sands at the Ninth Circuit
Blog has more.
- Commonwealth
v.
Bradley
Martin,
2010 Pa. LEXIS 1806 (Penn 8/17/2010) Trial counsel was ineffective for
failing to investigate and present mental health mitigation evidence.
"[W]hile Defendant did not want to discuss his mental health problems
with counsel, Defendant's parents provided counsel with a list of
institutions and psychologists who had provided treatment to Defendant.
In addition, Defendant's parents provided counsel with a letter written
by them to Judge Haas indicating that Defendant sustained
psychological damage from the abuse of [his uncle] and a Presentence
Investigation Report indicating that Defendant has been treated for
mental issues. Therefore, the fact that Defendant did not want to
discuss his mental history with counsel did not render counsel's
failure to pursue such evidence reasonable, as Defendant's parents gave
counsel information clearly indicating that Defendant had mental health
issues in his past. Upon careful review, it is clear that the PCRA
court's factual finding that Martin never directed trial counsel to
refrain from investigating or presenting expert psychiatric testimony
is supported by the record. "
- Steven
Edward
Crittenden
v. Ayers, 2010 U.S. App. LEXIS 17401 (9th Cir
8/20/2010) "The 9th ordered a remand for a hearing on a Batson issue. At
trial, the state struck the only African American prospective juror,
supposedly for a reluctance to impose death. The prosecutor, however,
kept other jurors that expressed the same qualifications when it came
to the death penalty. Under
Batson, the petitioner has to have presented a prima
facie case,
which he did; and the State has to come forth with a race-neutral
explanation. If time has passed, and memories faded, the state can
produce reasons that are race neutral based on the record and
circumstantial evidence. At the third step, a court has to assess
whether the strike was "motivated in substantial part" by race."
[via John Sands @ Ninth Circuit
Blog has more.]Remaining claims denied relief: "[A] whether
Crittenden’s trial counsel were constitutionally ineffective; [B]
whether the shackling of Crittenden during trial was objectively
unreasonable; and [C] whether a juror’s consultation of the Bible at
home and her discussion of a biblical passage with other jurors during
penalty-phase deliberations constituted prejudicial juror misconduct."
John Sands at the Ninth Circuit
Blog has more.
Week
of August 16,
2010: In
Favor of the Prosecution or Warden (initial
list)
- Rodney
Gray
v.
Epps,
2010 U.S. App. LEXIS 17273 (5th Cir 8/18/2010) Mr. "Gray contends
that his
counsel rendered ineffective assistance by failing to investigate and
present mitigating evidence during the sentencing phase of trial.
Concluding that the state court's adjudication of [Mr.]Gray's
claims was not
an unreasonable application of clearly established Federal law," relief
denied. "Inmate failed to establish Sixth Amendment ineffective
assistance based on counsel's failure to investigate and present
certain mitigating evidence during sentencing phase of capital murder
trial because, when weighed against aggravating evidence, presentation
of new mitigating evidence probably would not have resulted in sentence
less than death." [via LexisOne]
- Milton
Wunzael
Mathi
v. Thaler, No. 08-70021(5th Cir 8/20/2010) Atkins
claim denied on procedural grounds. "We hold that [Mr.] Mathis’s
successive
federal habeas petition did not meet the standard under 28 U.S.C.
§
2244(b)(2)(A) and therefore must be dismissed. Even if the petition met
the standard, we hold that the petition was time-barred under AEDPA’s
statute of limitations, and the district court did not abuse its
discretion when it denied equitable tolling."
- Michael
Bell
v.
Fla. AG, 2010 U.S. App. LEXIS 17112 (11th Cir
8/16/2010) Grant of a COA vacated and remanded so that the
district court can examine the propriety of granting a COA in light of
the AEDPA's governing standards.
- State
v.
Louis
Michael Winkler, Jr., 2010 S.C. LEXIS 292 (S.C. 8/16/2010)
Relief denied on claims of whether: A) "the trial court err in
admitting an audio tape recording as a prior consistent statement;" B)
"[d]id the trial court err in allowing the jury to review the
transcript of the 911 tape;" C) "[d]id the trial court err in
refusing to allow Appellant to represent himself during the sentencing
phase of trial;" D) "[d]id the trial court err in not conducting a full
Faretta inquiry;" E) "[d]id the trial court err in allowing
defense counsel to present mitigation evidence to which Appellant
objected;" and F) "[d]id the trial court err in denying
Appellant's motion for a directed verdict on the aggravating
circumstance."
- State
v.
Robert
W. Bethel, 2010 Ohio 3837; 2010 Ohio App. LEXIS
3242 (Ohio 10th App 8/19/2010) Relief denied on Brady allegations.
"Finding no Brady violation
and
finding the 'newly discovered
evidence' forming the basis of appellant's motion fails to satisfy the
standard for a new trial, we find no error in the trial court's
decision denying appellant's motion for a new trial."
- State
v.
Bixby, 2010 S.C. LEXIS 294 (S.C. 8/16/2010) (dissent) "The
appeal raised several interesting issues, including questions
concerning the proper scope of voir dire in a capital case,
the relevance of proffered evidence excluded by the trial judge
concerning the family's prior experience with property disputes, and
how ignorance of the proper location of South Carolina records
concerning highway rights of way can disqualify a witness from
testifying. . . . After the jury convicted [Mr.] Bixby of the murders,
the court held a penalty phase proceeding to determine whether to
impose the death penalty. During the hearing, 'it admitted a
seven minute video showing portions of [one victim's] funeral.'" [via
Evidence
Professor
Blog]
Week
of August 16,
2010: Other (initial
list)
- State
v.
Phillip
L. Jones,
2010 Ohio 3850; 2010 Ohio App. LEXIS 3252 (Ohio 9th App 8/18/2010) The
trial court erred by determining that Mr. Jones' postconviction relief
was premature. The trial court held that thanks to a technical
flaw in
sentencing, the judgment was void. Under state law, however, the
error
in the judgment made it merely voidable and not actually void. Matter
remanded for merits determination.
Week
of August 9,
2010: In
Favor of the Accused or Condemned
- State
v.
Gary
Wayne
Snelling, 2010 Ariz. LEXIS 38 (Az
8/9/2010) “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.
Therefore, we vacate Snelling’s death sentence and sentence him to
imprisonment for natural life.”
- Angle
Joe
Perrie
Vasquez
v.
State, 2010 S.C. LEXIS 286 (S.C.
8/9/2010) “[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 deficient performance. Thus, the PCR judge
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.”
- Timothy
Howard
v.
Norris, 2010 U.S. App. LEXIS 16693 (8th Cir 8/12/2010)
“The district court stayed [the capital habeas] proceeding to give
Howard a chance to return to state court to exhaust certain claims.
Norris contends the district court abused its discretion in granting
the stay because the unexhausted claims are procedurally defaulted,
that is, Howard already had, and is limited to, one round of
post-conviction review in state court. Norris therefore claims there is
no presently available state court remedy for Howard to pursue his
unexhausted claims. Howard responds, in part, by moving to dismiss this
interlocutory appeal on the grounds we lack jurisdiction. Howard
contends the collateral order doctrine does not apply to this appeal
because the disputed issue – whether Howard’s unexhausted claims are
procedurally defaulted – can be addressed in an appeal from a final
order. We agree. We therefore grant Howard’s motion to dismiss for lack
of jurisdiction.
- Alvin
Bernal Jackson v. Norris, 2010 U.S. App. LEXIS 16989 (8th
Cir
8/11/2010) Remand to the district court for an Atkins hearing. Prisoner
was entitled to an Atkins hearing on his claim that his
execution would violate the Eighth Amendment; he sufficiently alleged
that he was mentally retarded under Ark. Code Ann. § 5-4-618(a)
based
on IQ scores of 70 and a deficit in adaptive functioning prior to age
18 and a deficit in adaptive behavior with no age limit."[via LexisOne]
- Virgilio
Maldonado
v.
Thaler, 2010 U.S. App. LEXIS 16734 (5th Cir
8/10/2010)(unpublished) COA granted on whether Mr. Maldonado is
mentally retarded within the meaning of Atkins v. Virginia.
COA denied, however, on a litany of other claims as they are held to be
procedurally defaulted.
Week
of August 9,
2010: In
Favor of the Prosecution or Warden
- United
States v. Kenneth Jamal Lighty, 2010 U.S. App. LEXIS 17003 (4th
Cir. 8/11/2010) "As
to Lighty: First, the court rejected Lighty's argument
that his trial should have been severed from Flood's as their defenses
were not antagonistic (though they were occasionally at odds), did not
restrict the evidence Lighty could present to the jury, and did not
violate his Eighth Amendment right to individualized sentencing.
Second, the court rejected several arguments about the admission of
evidence, including the Afton Street Shooting evidence addressed above
(harmless error), the exclusion of testimony from Lighty's witnesses
about another potential perpetrator (no error), and the admissibility
of a Government witness's answer to the question of whether she had any
"doubt" about statements Lighty made to her (no error). Third, the
court rejected
Lighty's argument that the Government's closing arguments during the
penalty phase referencing the victim's family's desire that Lighty be
executed denied him a fair trial, holding that while improper the
statements did not affect Lighty's substantial rights. Fourth, the
court rejected Lighty's arguments that the district court improperly
excluded several bits of mitigating evidence during the penalty phase.
Fifth, the court rejected Lighty's argument that the district court
erred by refusing to give the jury an instruction that it was not
required to impose the death penalty, regardless of its findings
on mitigating/aggravating factors. Sixth, the court rejected Lighty's
argument that the use of the Afton Street Shooting as a non-statutory
aggravating factor required it to be charged in the indictment.
Seventh, the court concluded that Lighty's death sentence was not the
result of "passion, prejudice, or any other arbitrary factor." Eighth,
the court rejected Lighty's argument that his consecutive sentences
under 924(c) were improper or that the entire process was rife with
cumulative error. Finally, the court rejected Lighty's argument that he
should receive a new trial on newly discovered evidence, as it did in
Wilson's case."
[via
Fourth
Circuit
Blog] "In
a federal prosecution of defendants for kidnapping resulting in death
and related crimes, district court's imposition of a life sentence upon
one defendant and a sentence of death upon the other defendant are
affirmed as, while the actions of the Assistant United States Attorneys
handling the defendants' joint trial unnecessarily introduced error
into it, such error is not reversible, as both defendants each received
a fair trial." [via Findlaw] "Capital murder
defendant and his co-conspirator’s defenses were not mutually
antagonistic; jury could disbelieve both versions and conclude both
participated in kidnapping and murder, so denial of severance was not
error. Witness's redacted recounting of defendant's statements did not
require severance." [via LexisOne](track for cert potential)
- 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.”
"The denial of the habeas claim of an inmate, who brutally murdered a
four-year-old girl, was proper because it was not objectively
unreasonable for the state appellate court to conclude that the outcome
of his capital sentencing would not have been different if his trial
counsel had investigated evidence of his family life and social
history." [via LexisOne]
- Curtis
Matthews
v.
United
States, 2010 U.S. App. LEXIS 16429 (2nd
Cir 8/6/2010) “This case requires us to decide whether the Fifth
Amendment guarantees an unwaivable right to indictment by grand jury if
the statute under which the defendant is charged authorizes capital
punishment under some circumstances. We hold that such an unwaivable
right exists only where the charging instrument exposes the defendant
to the risk of capital punishment.”
- People
v.
Franklin
Lynch, 2010 Cal. LEXIS 7729 (Cal 8/12/2010) “Conviction
of defendant for first degree murders of three victims, residential
burglary, robbery and other crimes, and sentence of death are affirmed
over claims of error regarding: 1) asserted absence of counsel at
lineup; 2) denial of Faretta motions; 3) excusing prospective jurors
for cause due to their views concerning the death penalty; 4) failure
to sever counts; 5) removal of a juror; 6) defendant’s absence from
certain proceedings; 7) asserted evidentiary errors; 8) denial of
motion for judgment of acquittal; 9) asserted prosecutorial conduct;
10) asserted instructional error; 11) refusal to strike robbery-murder
special-circumstance allegation; 12) instructional error; 13)
constitutionality of California’s death penalty statute; 14) violation
of international law; and 15) cumulative error.”
- People
v.
Martin
Carl
Jennings, 2010 Cal. LEXIS 7728 (Cal 8/12/2010)
"Conviction
of defendant for first degree murder of his five-year-old son, jury's
finding true the special circumstance that the murder was intentional
and involved the infliction of torture, and a sentence of death are
affirmed in its entirety on automatic appeal over claims of error
regarding: 1) sufficiency of the evidence; 2) admission of out-of-court
statements; 3) alleged instructional errors; 4) jury's mid-deliberation
question regarding torture; 5) intracase proportionality review; 6)
challenges to California's death penalty scheme; and 7) asserted
substantial cumulative effect of errors." [via FindLaw] “There
was sufficient evidence to support the jury’s finding that defendant
was guilty of the first-degree murder of his five-year-old child on
each of the three theories advanced by the prosecution – murder by
poison, murder by torture, and premeditated murder. Defendant’s death
sentence was not disproportionate to his personal culpability. “[via
LexisOne]
- People
v.
Roger
Hoan
Brady, 2010 Cal. LEXIS 7625 (Cal 8/9/2010)
“Conviction of a defendant for first degree murder of a police officer
and a sentence of death are affirmed on automatic appeal over claims of
error regarding: 1) trial court’s exclusion of certain evidence
including third party culpability and possible bias in key witness’s
testimony; 2) the sufficiency of the evidence to support the first
degree murder verdict; 3) asserted Griffin error; 4) jury instruction
on consciousness of guilt; 5) trial court’s admission of victim impact
evidence; 6) prosecutorial misconduct during closing argument; 7) jury
instruction on a juror’s refusal to deliberate; 8) denial of
defendant’s automatic application for modification of the death
verdict; 9) arbitrary imposition of the death penalty; 10) delay in the
appointment of appellate counsel; 11) execution following lengthy
confinement; and 12) constitutional challenges to California’s death
penalty statute.” [via Findlaw ] “In a capital case in which defendant
was convicted of the first degree murder of a police officer, a
rational trier of fact could have concluded defendant, knowing he
illegally possessed a firearm, rapidly and coldly formed the idea to
kill the officer and therefore acted after a period of reflection
rather than on an unconsidered or rash impulse.”[via LexisOne]
- 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.
Noncapital
- People
v.
Johnnie
Hill, 2010 Ill. App. LEXIS 773 (Ill App 8/4/2004)
“[D]efendant claims that the State failed to timely file its notice of
intent to seek the death penalty. This claim alone does not meet
defendant’s burden of showing that he suffered prejudice as a result of
the State’s failure to timely file, where, as here, he was afforded all
of the protections that would be given to defendants who are deemed to
be potentially death eligible. Therefore, we find that the trial
court did not err in denying defendant’s motion to strike the State’s
notice of intent to seek the death penalty.” “Defendant was not
entitled to have his 60-year sentence for first degree murder vacated
because the State’s notice of intent to seek the death penalty under
Ill. Sup. Ct. R. 416(c) was untimely because the rule was directory and
defendant’s rights were protected as he was provided with additional
attorneys who specialized in death penalty cases.” [via LexisOne]
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and
a special
thanks
go
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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
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