Capital Defense Weekly 

Pending Executions
September
2 Holly Wood* (Ala)
9 Holly Wood* (Ala)
10 Cal Brown* (Wash)
15 Kevin Keith* (Ohio)
16 Gregory Wilson* (Ky)
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]

• John M. Stephenson v. Wilson, 2010 U.S. App. LEXIS 17832 (7th Cir 8/26/2010)  Grant of guilt & penalty phase relief on federal habeas corpus based on counsel’s failure to object to the condemned’s wearing a stun belt during the trial reversed. Jurors (as noted in post-trial affidavits) noted, however, their awareness that Mr. Stephenson was wearing the incapacitation device.  Guilt phase relief is vacated outright and denied on the merits.  Penalty phase grant of relief is remanded with instructions for consideration of the claim.

• Miguel Paredes v. Thaler,  2010 U.S. App. LEXIS 17688 (5th Cir 8/24/2010)  Habeas relief denied on “contentions that (1) the state trial court violated Paredes’s constitutional rights by failing to require a unanimous verdict as to which two or more of three decedents Paredes murdered; and (2) he was denied effective assistance of counsel because at trial, his attorney failed to object to the jury instructions in this regard.” “Texas courts did not unreasonably apply clearly established federal law for habeas relief under § 2254 when it permitted a jury instruction allowing a jury to convict of capital murder on alternative grounds without unanimity as to which of three decedents prisoner had murdered because prisoner could not establish prejudice from disjunctive charge.” [via LexisOne]

• Marcus R. Johnson v. Upton,  2010 U.S. App. LEXIS 17606 (11th Cir 8/23/2010) Panel “rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation. The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.” [via Tim Cone @ Defense Newsletter] “28 U.S.C.S. § 2254 petition was properly denied as state court’s denial of inmate’s ineffective counsel claims, which concerned penalty phase, was not based on unreasonable determination of facts or unreasonable application of clearly established federal law because, inter alia, counsel did investigate inmate’s background for mitigating evidence.” [via LexisOne]

• Lee Max Barnett v. Superior Court of Butte County,  2010 Cal. LEXIS 8294 (Cal 8/26/2010) (dissent) California Supreme Court holds " 4 to 3 that [death sentenced inmate] inmates must show the material they want exists to avoid a 'fishing expedition' and decided that inmates can be denied information from out-of-state law enforcement agencies that assisted the prosecution." [via LA Times Blog]
  

• Shawn Windsor v. Commonwealth,  2010 Ky. LEXIS 210 (Ky. 8/26/2010) Relief denied where Mr. Windsor plead guilty and attempted to forbid trial counsel from presenting mitigatory evidence over his objection.  Clerk’s Office notes that  on direct appeal “[i]ssues include whether stated desire to plead guilty and accept death penalty creates reasonable ground, within meaning of KRS 504.100(1), to question defendant’s competency; whether trial court failed to find beyond a reasonable doubt that death was appropriate punishment; whether KRS 532.030(4) or Section 11 of the Kentucky Constitution precludes defendant from waiving jury sentencing in capital case; whether KRS 532.075(1) requires review of death penalty case to be conducted on written transcript of the proceedings; and whether prosecution’s refusal to consider sentence other than death requires sentence to be vacated under KRS 532.075(5)(b).”

• Jesse  Gilbert v. McDonald-Burkman,  2010 Ky. LEXIS 193 (Ky. 8/26/2010) Movant's attempt to use both the writ mandamus and prohibition  to unseal evidence placed under seal in a companion case denied as rather than seeking extraordinary relief he could simply move before the trial court presiding over his own matter for access.

• Karu Gene White v. Payne, 2010 Ky. LEXIS 192 (Ky. 8/26/2010) Mandamus denied where movant sought to prevent the implementation of a trial court order “requiring White to submit to a mental retardation evaluation conducted by the Kentucky Correctional Psychiatric Center,”

• State v. Donald Ketterer,  2010 Ohio 3831; 2010 Ohio LEXIS 1996 (Ohio 8/25/2010) “While the trial court did not set forth the inmate’s guilty plea in the judgment of conviction, under Crim. R. 32(C), the sentencing opinion stated that he pled guilty, which satisfied the requirement that the final, appealable order set forth the guilty plea, the jury verdict, or the finding of the trial court upon which the conviction was based.” [via LexisOne]

• State v. Edward Lee Lang III,  2010 Ohio 3975; 2010 Ohio App. LEXIS 3375 (Ohio 5th App 8/23/2010) “The trial court did not err by denying the inmate’s petition for postconviction relief under R.C. 2953.21 because the inmate did not demonstrate that he received ineffective assistance of counsel. Trial counsel allowed the jury to adequately weigh the mitigation evidence against the evidence of dual murder produced at the guilt phase of the trial."

• United States v. Carlos Caro,  2010 U.S. App. LEXIS 17857 (4th Cir 8/26/2010)(dissent from rehearing en banc)  Sharp dissent over death eligibility where only “eligibility factor” is  “prior convictions for relatively minor, nonviolent drug offenses.”

Week of August 23,  2010: Other (initial list)

• Lester Burns, Jr., v. Ky. Bar Ass’n,  2010 Ky. LEXIS 186 (Ky. 8/26/2010)  Mr. Burns in the mid-80s took a quarter of a million dollars in fees for  hisrepresentation in a capital case. The money had been stolen in an armed robbery, and Burns, knownig teh money was ill-gotten, moved that money from Florida to Kentucky.  He was indicted and disbarred.  He has not sufficiently rehabilitated himself a quarter of a century later to permit his reentry in to the bar.

• State v. Norman Starnes,  2010 S.C. LEXIS 297 (S.C. 8/16/2010) (dissent) Relief denied on issues of: whether “the trial court erred in failing to give a voluntary manslaughter charge, raises issues regarding a capital defendant’s right to self-representation, and asserts he did not knowingly and voluntarily waive his right to counsel.” Dissent asserts that the voluntary manslaughter charge, on these facts, should have been given.

• 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.

• 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 petition 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 ab initio. Matter remanded for merits determination.
  

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