CAPITAL DEFENSE WEEKLY

Leading off this edition are two cases from unlikely suspects.  This past Wednesday the Texas Court of Criminal Appeals granted habeas relief in Ex Parte Jimmie Urbano Lucero holding "that applicant’s counsel failed to investigate applicant’s background or present mitigating evidence at the punishment phase in violation of Rompilla v Beard." In Joshua Wayne Andrews v. Commonwealth the Virginia Supreme Court held that where a double murder resulted in four capital murder convictions double jeopardy required a new penalty phase proceeding.

The Texas Forensic Science Commission on Friday declined to clear fire investigators of professional misconduct for determining that arson caused a 1991 fire that killed three girls and led to the conviction and execution of Todd Willingham. Phillip Bivens and Bobby Ray Dixon, both serving life were exonerated by a judge on Thursday morning, with a third man, Larry Ruffin, likely to be exonerated in the coming days; they were convicted of a murder they did not commit almost a third of a century ago. In North Carolina, the Racial Justice Act has placed that state's death penalty on trial. 

DPIC notes that "the latest FBI Uniform Crime Report released on September 13, the national murder rate has dropped from 5.4 (per 100,000 of population) in 2008 to 5.0 in 2009, an 8.1% decrease. Each region of the country experienced a decrease in its murder rate, with the Northeast experiencing the most significant drop of 9%, from 4.2 to 3.8. As in the past, the Northeast continued to have the lowest murder rate in the country, while the South continued to have the highest (6.0, the only region above the national average). In 2009, the South accounted for about 87% of the executions in the country. The other 13% of executions came from the Midwest, the region with the second-highest murder rate (4.6)."

As always thanks for reading.  - karl

• Ex Parte Jimmie Urbano Lucero, No. 76,415 (Tex. Crim App 9/15/2010) (unpublished) "We hold that applicant’s counsel failed to investigate applicant’s background or present mitigating evidence at the punishment phase in violation of Rompilla v Beard."

• Joshua Wayne Andrews v. Commonwealth, 2010 Va. LEXIS 239 (Va 9/16/2010) Death sentence vacated and remanded for assessment of punishment where the Commonwealth erred in the in which it proceeded to assert the aggravating factors in an apparent duplicitous manner. ” Upon review of the four capital murder convictions and death sentences imposed on the defendant, non-harmless errors occurred in the penalty-determination phase of the trial. The death sentences are vacated and the case is remanded for a new penalty-determination proceeding. Defendant’s convictions for robbery, malicious wounding, abduction, and various firearms charges are affirmed. Issues discussed include the propriety of simultaneous convictions under Virginia’s statutes governing multiple killings under Code §§ 18.2-31(7) and (8), liability for killings as a principal in the first degree, spoliation of evidence, expert ballistics proof, double jeopardy, alleged prosecutorial misconduct, victim impact evidence concerning unadjudicated conduct and various other evidentiary and procedural issues.”
  

Week of September 13,  2010:  In Favor of the Prosecution or Warden (initial list)

• Ronald Post v. Bradshaw, 2010 U.S. App. LEXIS 19059; 2010 FED App. 0295P (6th Cir. 9/13/2010) (dissent) A hard right majority holds counsel with a pulse & a law degree is all that is needed in a capital case for counsel to perform in a constitutional manner.  The dissent explains it perhaps best “Ronald Post faced a possible death sentence on charges of aggravated robbery and aggravated murder, his counsel advised him to forego all of his trial rights and plead no contest, without any indication from either the prosecution or the three-judge sentencing panel that this would do anything to help spare his life. Following his no-contest plea, and leading up to his sentencing hearing, his attorneys then failed to conduct an independent investigation into circumstances that might mitigate against the imposition of the death penalty. Further, at the sentencing hearing itself, his counsel requested that a member of the victim’s family be permitted to speak. Because of this choice by his attorney, the last testimony heard by the three-judge panel which sentenced him to death was the victim’s son discussing how his mother had been murdered just ten days before Christmas—the first Christmas she would have had off work in thirteen years—and his belief that “the only just punishment for execution is execution.” (J.A., vol. 4, at 913-14.) Additionally, following Post’s sentencing, new evidence came to light indicating that Richard Slusher—the jailhouse informant whose pretrial testimony about Post’s confession loomed large over the decision not to go to trial—had intentionally elicited the confession from Post at the direction of the prosecutors, in violation of Massiah v. United States.. . . Post’s counsel was constitutionally infirm both in advising him to plead no-contest and at the sentencing stage. Further, I believe we should remand to the district court to hold an evidentiary hearing on Post’s Massiah claim.” “A district court properly denied petitioner’s habeas corpus petition filed under 28 U.S.C.S. § 2254 because he failed to establish ineffective assistance of counsel on various grounds, including with regard to the entry of his no contest plea since counsel’s strategy was professionally reasonable considering the overwhelming evidence of guilt.” [via Lexisone]

• Dolan Darling v. Sec’y, Dep’t of Corr., 2010 U.S. App. LEXIS 19137 (11th Cir 9/14/2010) The panel “denied a certificate of appealability to a Florida death-row inmate. The Court noted that a certificate of appealability is not available to appeal a district court’s denial of habeas corpus relief unless the petitioner shows that reasonable jurists could debate the decision. Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.  In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.” Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence. Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability. “‘ [Tim Cone @ Defense Newsletter] “An application for a COA by a state inmate sentenced to death was denied because his two claims of ineffective assistance of counsel failed and he did not show how the State of Florida’s failure to comply with the Vienna Convention on Consular Relations affected his conviction or sentence.” [via Lexisone]

• Mark Allen Geralds v. State, 2010 Fla. LEXIS 1540 (FL 9/16/2010) Relief denied on argument that “the circuit court erroneously denied his claims regarding: (A) Brady v. Maryland and Giglio v. United States, violations; (B) ineffective assistance of counsel during the guilt and penalty phases; (C) newly discovered evidence of a conflict of interest; (D) some summarily denied claims; (E) a motion to depose a suspect; (F) access to files and records; and (G) the constitutionality of execution by lethal injection. We address each argument in turn below.” “we affirm the trial court‘s denial of Geralds‘ amended and supplemental postconviction motions, and deny his petition for writ of habeas corpus.”

• Eric  Moffett v. State, 2010 Miss. LEXIS 477 (Miss 9/16/2010) Relief denied on a grab bag of claims, including those relating to: whether “I. the trial court erred in failing to dismiss the capital charge against Moffett as a violation of the statute of limitations; II. The trial court erred in failing to dismiss the case against Moffett for violation of the speedy trial and due process clauses of the State and Federal Constitutions; III. The trial court erred in limiting the defense in the topics it could cover in voir dire; IV. The trial court erred in removing for cause jurors even though they were qualified to serve under Witherspoon; V. The trial court violated Moffett’s state and federal constitutional right to present a defense when it prohibited evidence of “Third-Party Guilt” thereby depriving Moffett of a fundamentally fair trial; VI. Eric Moffett was denied his right to testify in his own defense where the trial court ruled that the prosecution could present a rebuttal witness but Moffett would not be allowed to offer evidence that contradicted that witness with prior inconsistent statements and results of the police investigation;VII. The trial court erred in allowing the prosecution to elicit unreliable hearsay evidence in violation of Moffett’s confrontation rights and his right to a fair trial;VIII. The trial court erred in not allowing Moffett to introduce evidence that he was released from jail in 1995 without pending charges to rebut the false inference by the prosecution that his sister and mother were lying because they failed to come forward earlier to offer statements to the police; IX. The trial court erred in admitting exhibit 7, a highly prejudicial photograph with little or no evidentiary value; X. The trial court failed to safeguard Moffett’s right to a trial by a fair and impartial jury by not removing juror Loper; XI. The trial court erred in denying proposed jury instructions D-11 and D-12;XII. The prosecutor deliberately solicited opinions of the victims concerning the appropriate punishment for appellant in violation of the Sixth, Eighth, and Fourteenth amendments to the Federal Constitution, Article 3, Sections 14, 26, and 28 of the Mississippi Constitution, Miss. Code Ann. sec. 99-19-101 and 105, and other applicable law; XIII. The trial court erred in allowing Steven Hayne to testify in violation of MRE Rule 702 and the Due Process Clause of the State and Federal Constitutions.; XIV. The trial court erred in refusing instruction DS-10; XV. The trial court erred by refusing proposed instruction informing the jury that life was in their discretion, and that a jury always has the discretion to give a life sentence; XVI. The trial court erred in proceeding directly into the sentencing phase following the guilty verdict based on the unique circumstances of this case; XVII. The death sentence in this case must be vacated because the indictment failed to charge a death-penalty eligible offense; XVIII. Error in submitting and/or defining aggravating factors; [and] IX. Whether the cumulative effect of the errors in the trial court mandate reversal of the conviction or sentence of death”

• State v. Joel Richard Schmeiderer, 2010 Tenn. LEXIS 865 (Tenn 9/14/2010) Relief denied on claims that: “”the trial court abused its discretion by denying his motion for a continuance because his attorneys did not have adequate time to review the transcript of Mr. Sanderson’s trial and because his experts needed additional time to complete medical testing and evaluations;  “the trial court’s denial of a second continuance also violated his constitutional right to present mitigation evidence;” “defendant contends that the trial court’s denial of a second continuance also violated his constitutional right to present mitigation evidence;” “the prosecutor impermissibly argued for specific deterrence” in its penalty phase arguments to the jury; and mandatory review.

• Harry Mitts v. Bagley, 2010 U.S. App. LEXIS 18736; 2010 FED App. 0291P (6th Cir 9/8/2010) ”Beck compels that proper instructions must make clear that the jury does not have to complete its death deliberation before considering a life sentence, Mitts’ due process rights were violated. Under Beck, a jury instruction violates due process if it requires a mandatory death penalty sentence that can only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment. Accordingly, the holding of the Supreme Court of Ohio was contrary to clearly established federal law as determined by the Supreme Court of the United States in Beck v. Alabama,”

• Felix Rocha v. Thaler, 2010 U.S. App. LEXIS 18970 (5th Cir 9/9/2010) (dissent) Relief denied, on materiality grounds, relating to a Brady claim where one “of the officers who had testified at his trial, Jaime Escalante, had a disciplinary record and was romantically involved with the sister of the lone eyewitness, Reynaldo Munoz.” COA denied on claims relating to “whether he is entitled to review on the merits of his punishment-phase ineffective assistance of counsel claim under Wiggins v. Smith; and whether the state violated an individually-enforceable right under the Vienna Convention by failing to inform Rocha that he was entitled, as a Mexican citizen, to contact his country’s consulate. ” Dissent focuses on the rather tortured denial the majority gives to the COA application on the Wiggins claim. Note the procedural default issue in this case, to be blunt, lost me, but appears to be a new bar as the dissent suggests.

• Havey Lee Heishman v. Ayers,  2010 U.S. App. LEXIS 18744 (9th Cir 9/8/2010)  ”The prosecution lies, cheats, and evades the Constitution — withholding evidence of a star witness having sex with law enforcement, getting a break on misdemeanor charges, police reports on thefts, and funds for upkeep during trial. But hey, concluded the 9th Circuit, the cross examine at trial was pretty good, and there was no evidence because the petitioner was really really bad, convicted of murdering one of his rape victims to prevent her from testifying. The 9th Circuit also finds that mitigation started a mere two months before trial was excusable under the 1980′s standards, and was not ineffective. The 9th Circuit finally upholds the district court’s denial of expanding the record to include a mitigation expert’s report of petitioner’s childhood abuse. The failure of counsel, or experts, to uncover such abuse was not by itself IAC. Concurring, Silverman emphasizes the interplay between FRE 703 (experts) and evidence relied upon by the expert to render her opinion. In this case, the issue was whether the petitioner’s assertion of childhood abuse becomes evidence and part of the record. The petitioner is the only one who was a witness to the abuse, but he never testified, nor submitted a declaration. FRE 703 permits experts to render opinions based on hearsay so long as it is the type of evidence usually relied upon by those working in the field. The Rule, though, does not perform evidentiary alchemy and transfer inadmissible hearsay into admissible evidence; it is only the expert’s opinion that becomes admissible. The district court did not err in denying the petition.” [Jon Sands @ the Ninth Circuit Blog]

• Benny Joe Stevens v. Epps, 2010 U.S. App. LEXIS 18696 (5th Cir 9/7/2010) Relief under Batson denied where the State struck a prospective juror claiming, when challenged, the juror was inattentive.  Attempts to expand the COA “to include his claim that he was denied his right to due process because, although counsel was appointed to represent him in state post-conviction proceedings, as is his right under Mississippi law, that representation was so extremely deficient that he was denied the possibility of meaningful relief” likewise denied.

• Robert Simon, Jr.  v. Epps,  2010 U.S. App. LEXIS 18784 (5th Cir 9/7/2010) (unpublished) Relief denied on “whether Simon’s trial counsel was ineffective in failing to investigate his history of familial abuse and present that history as mitigation evidence at sentencing.. . . We find remand for an evidentiary hearing unnecessary because, even accepting all allegations in the affidavits submitted by Simon as true, we cannot grant relief.”

• Ex parte Jamie Ray Mills,  2010 Ala. LEXIS 157 (Ala 9/3/2010) Relief denied on claims relating to the  failure to charge lesser included counts; admissibility of expert’s “conclusions at trial as to the causes of the victims’ deaths;” “admission of several items seized from the trunk of his vehicle as well as the admission of forensic-testing results related to those items;” and the trial court erred in “instructing the jury as to aggravating circumstances and mitigating circumstances.”