Capital Defense Weekly

Leading off this edition are two opinions from the Alabama Court of Criminal Appeals. In, Kenneth Eugene Smith v. State, a judicial override to death, a remand is ordered where the“trial court . . . failed to address the allegations” submitted in Mr. Smith’s amended petition for relief. In  Demetrius Avery Jackson, Jr. v. State, another judicial override to death, a remand is ordered for the trial court to conduct a Batson hearing in light of substantial allegations that race based peremptory challenges infected jury selection.

The annual year-end report by DPIC is out. "The death penalty continued to be mired in conflict in 2010, as states grappled with an ongoing controversy over lethal injections, the high cost of capital punishment, and increasing public sentiment in favor of alternative sentences.  Executions dropped by 12% compared with 2009, and by more than 50% since 1999.  The number of new death sentences was about the same as in 2009, the lowest number in 34 years."

"Getting under the hood" of the report, shockingly no new death sentence were imposed in either Missouri or Virginia in 2010, two of the five largest executioners in the modern era.  California, with the largest number of persons condemned to death, again led the nation in new death sentences and still hasn't executed anyone in nearly five years (and Los Angeles hit 43 year lows in murder rates).  Pennsylvania, with the fourth largest death row, likewise executed no one. The proportion of those of Hispanic origin dramatically increased in just the last ten years from roughly 1 in 9 in 2000 to 1 in 5 in 2020. Thirty-five states and the federal government retained capital punishment in 2010, but just 12 states carried out executions (Texas 17; Ohio 8; Alabama 5; Virginia 3; Oklahoma 3; Mississippi 3;Georgia 2; Florida 1; Louisiana 1; Arizona 1; Utah 1; and Washington 1).

Terry Lenamon provides a  more somber note, "[w]hile the decrease in the executions may be good news, it's got to be considered in tandem with the marketplace. The reality is that due to the scarcity of sodium thiopental many states simply reset execution dates to 2011, since Hospira (the only manufacturer of the drug) promises that supplies will be available for the lethal injection drug early next year.  After all, rather than find artful ways of circumventing the standard three-drug lethal injection cocktail (which includes sodium thiopental) like Ohio, Arizona, and Oklahoma, some states just rescheduled their calendars (e.g., Arkansas, California, Kentucky, Tennessee). Bottom line: if Hospira starts meeting demand for the execution drug, then 2011 may see a rise in the number of executions."

In lethal injection news, British press sources indicate "[a] massive batch of Sodium Thiopenthal, one of a cocktail of drugs used in executions, was exported to California before [Britain] imposed a ban on the lethal substances. The state purchased 512g of the chemical - enough to execute over 80 people."

Finally, in Texas  an amicus brief has been filed with the Texas CCA in support of John E. Green and  further  hearings on the constitutionality of the Texas death penalty.

As always thanks for reading. -k

Pending Executions
January  2011
6   Billy Don Alverson* (Okla)
11 Cleve "Sarge" Foster (Tex)
11 Jeffrey Matthews* (Okla)
12 Richard Clay* (Mo)
13 Leroy White* (Ala)

 February         
15  Michael Wayne Hall* (Tex)
17  Frank Spisak* (Ohio)
22  Timothy Adams* (Tex)

March
10 Johnie Baston* (Ohio)

Stays & Commutations
 December
1 Steven Staley* (Tex) (forcible medication & Ford)
7  Billy Irick*  (Tenn)

January           
11   Edmund Zagorski*  (Tenn) 
14  Ricky Ray Malone* (Okla)
31 Ronald Allen Smith* (Mont)

February         
15  Edward Harbison*  (Tenn) 

Executions 
December
16 John David Duty* (Okla)
*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [via DPIC]

SCOTUS
  • Allen v. James Charles Lawhorn, 2010 U.S. LEXIS 9596 (12/13/2010) (dissent from cert. denial) Another classic Justice Scalia acid tongued dissent, three justices assert that the Eleventh Circuit over-grants relief under AEDPA
Week of December 20, 2010:   In Favor of the Prosecution or Warden
  • Parramore Sanborn v. Parker, 2010 U.S. App. LEXIS 25912;2010 FED App. 0389P (6th Cir. 12/21/2010)** “In defendant’s petition for habeas relief from his capital murder conviction, district court’s denial for the most part but grant in part on the grounds that the admission of certain testimony at the penalty phase constituted unconstitutional governmental interference with the right to counsel in violation of the Sixth Amendment, is affirmed in part, reversed reversed in part, and remanded where: 1) because the defendant has not demonstrated that the use of a witness’s testimony during his trial was a constitutionally impermissible intrusion, nor that it was prejudicial, the Kentucky Supreme Court did not act contrary to Weatherford or any other clearly established federal law in holding that the Commonwealth’s use of that testimony did not violated his rights to counsel, and as such, district court’s grant of habeas relief on those grounds is reversed; 2) the Kentucky Supreme Court’s decision on defendant’s claim of interference with attorney-client and priest-penitent privileges was predicated on its determination, as a matter of state law, that neither Kentucky’s attorney-client privilege nor its priest-penitent privilege extended to defendant; 3) evidence at defendant’s second trial was constitutionally sufficient to prove beyond a reasonable doubt the existence of the aggravating factors of rape and sodomy; 4) defendant’s second state court trial did not violate his Fifth Amendment rights by placing him in double jeopardy; and 5) defendant’s Sixth Amendment right to effective assistance of counsel during the guilt phase of trial was not violated.” [via FindLaw]
  • Henry Perry Sireci v. Attorney General, 2010 U.S. App. LEXIS 26031 (11th Cir 12/21/2010) Relief denied on claims relating to State Attorney’s comment regarding Mr. Sireci having been previously on death row to the jury as “the trial judge here was perfectly able to ascertain potential prejudice of the State Attorney’s statements and provide immediate remedies, such as a curative instruction.”
Week of December 20, 2010:   Other
  • State v. Antonio Andrews, 2010 Mo. LEXIS 214 (Mo. 12/21/2010) (dissent) In a 4-3 opinion, the Missouri Supreme Court affirms a life without parole sentence for a fifteen year old who killed a police officer.
Week of  December 13, 2010:  In Favor of the Accused or Condemned
  • Kenneth Eugene Smith v. State, 2010 Ala. Crim. App. LEXIS 131  (Ala. Crim. App. 12/17/2010)  Judicial override (11-1 for life) to death.  On postconviction appeal, remand ordered where the “trial court committed reversible error because it failed to address the allegations” submitted in Mr. Smith’s amended petition for relief.
  • Demetrius Avery Jackson, Jr. v. State, 2010 Ala. Crim. App. LEXIS 141 (Ala. Crim. App. 12/17/2010)  Judicial override (10-2 for life) to death. Remand ordered for a Batson hearing.
Week of December 13, 2010:   In Favor of the Prosecution or Warden
  • Mark Allen Jenkins v. State, 2010 Ala. Crim. App. LEXIS 127  (Ala. Crim. App. 12/12/2010)Rule 32 petition held correctly dismissed by the trial court as untimely where the condemned proffered one of the jurors in the trial should have disclosed that two of their relatives had been murdered.
  • James Pavatt v. Jones, 2010 U.S. App. LEXIS 25491 (10th Cir 12/14/2010) “District court properly denied preliminary injunction to stay prisoner’s execution absent showing of substantial likelihood of success on merits of Eighth Amendment challenge to State’s revised lethal injection protocol–prisoner failed to demonstrate risk of severe pain that was substantial when compared to the known and available alternatives.” [via LexisOne]
  • Kenneth R. Isom v. State, 2010 Ark. LEXIS 600; 2010 Ark. 495 (Ark 12/16/2010) Post-conviction relief denied on claims relating to ineffective assistance of counsel including, failure to investigate and present alibi witnesses, failure to present additional mitigation evidence, a purportedly bad closing argument, and failure to object.
  • People v. Demetirus Charles Howard, 2010 Cal. LEXIS 12593 (Cal 12/16/2010) “Conviction of defendant for first degree murder and attempted second degree robbery and a sentence of death, are affirmed where: 1) defendant’s claim that the process used in California for “death qualification” of jurors is unconstitutional is rejected; 2) any error in requiring defendant to wear a stun belt was not prejudicial; 3) the trial court properly admitted the handgun into evidence; 4) the trial court did not err by admitting the autopsy photograph; 5) defendant’s challenge to the sufficiency of the evidence of felony murder is rejected; 6) the trial court did not err in its jury instructions; 7) defendant’s various penalty phase claims, including his challenge to the death penalty law, are rejected; 8) the trial court did not abuse its discretion by denying a new trial; and 9) the trial court did not err when it refused to hold a competency hearing, and defendant’s cumulative error claim is rejected.” [via FindLaw]
  • Robert Rimmer v. State, 2010 Fla. LEXIS 2091 (FL 12/16/2010) “The circuit court’s denial of defendant’s request for postconviction relief to vacate his convictions of first-degree and sentences of death is affirmed and petition for writ of habeas corpus denied where: 1) the trial court did not err in its evidentiary rulings; 2) defendant’s claims of ineffective assistance of counsel both at the guilt and penalty phases are rejected; 3) defendant cannot prevail on his claim that he was deprived of effective assistance of counsel during the guilt phase because counsel had a conflict of interest; 4) defendant is not entitled to relief on his Brady claim as he has not shown how the evidence would have been exculpatory; and 5) defendant’s various claims of ineffective assistance of appellate counsel are rejected.” [via FindLaw]
  • Andrew Richard Allred v. State, 2010 Fla. LEXIS 2092 (FL 12/16/2010) “Defendant’s conviction for two counts of first-degree murder and a sentence of death are affirmed where: 1) the trial court applied the correct rule of law in finding the CCP aggravator as to both murders and competent, substantial evidence supports this finding; 2) the trial court applied the correct rule of law and competent, substantial evidence supports the finding that HAC aggravator applies to the murder of his former girlfriend; 3) defendant’s challenges to the trial court’s findings regarding mitigation and the weight the court ascribed are rejected; 4) defendant knowingly and voluntarily entered his guilty plea and the trial court properly accepted it; and 5) defendant’s argument that the sentences are disproportionate because they resulted from a domestic dispute is rejected.” [via FindLaw]
  • State v. Andres Antonio Torres, 2010 S.C. LEXIS 403 (S.C. 12/13/2010) Relief denied on claims relating to “admission into evidence of autopsy photographs and a videotape recording during the sentencing phase of his capital murder trial. Torres contends the photographs should have been excluded based on South Carolina Rule of Evidence 403, and the videotape recording should have been excluded based on either Rule 403 or Section 16-3-25(C)(1) of the South Carolina Code (2003).
  • Raymond Deleon Martinez v. State, 2010 Tex. Crim. App. LEXIS 1653 (Tex. Crim. App 12/15/2010) “On an automatic appeal of defendant’s capital murder conviction, trial court’s sentence of death is affirmed where: 1) defendant’s challenge to the legal and factual sufficiency of the evidence supporting the jury’s future dangerousness determination is rejected as a rational jury could have found beyond a reasonable doubt a probability that defendant would pose a continuing threat to society; 2) defendant’s claim that the evidence is factually insufficient to support the jury’s affirmative answer to the deliberateness special issue is rejected; 3) the trial court did not abuse its discretion in admitting the evidence regarding defendant’s statement to a witness; 4) the trial court did not violate defendant’s Sixth Amendment right to confront and cross-examine a witness by admitting a witness’s former testimony; 5) defendant’s claim that the “10/12″ rule violates the Eighth Amendment is rejected; and 6) the capital murder sentencing statute is constitutional.” [via FindLaw] “Evidence was sufficient to support the jury’s future dangerous determination under Tex. Code Crim. Proc. Ann. art. 37.0711, § 3(b)(2) because in addition to the facts of the offense, the jury heard testimony regarding defendant’s extensive criminal history, gang affiliation, and poor behavior in prison.” [via LexisOne]
  • Ex parte Scott Louis Panetti, 2010 Tex. Crim. App. LEXIS 1677 (Tex. Crim. App 12/15/2010) (dissent) Post-card denial. Notable dissent on the issue of the right to self-representation in capital cases.
Week of December 13, 2010:   Other
  • Esaw Jackson v. State, 2010 Ala. Crim. App. LEXIS 128 (Ala. Crim. App 12/13/2010) “The Alabama “Supreme Court reversed this Court’s judgment and remanded this case for this Court to remand it to the trial court for a new trial” as the “expression of anguish and the inseparable inadmissible opinion and victim-impact testimony” by the victim’s mother rose to the level of plain error. “
  • Felix Rochas v. Thaler, 2010 U.S. App. LEXIS 25961 (5th Cir 12/17/2010) (dissent from en banc) Dissenting from rehearing as, the dissenters claim, no independent and adequate state ground was asserted by the state courts to deny relief.  “[T]he CCA’s [ ] decision fairly appears to be interwoven with federal law; the adequacy and independence of any possible state law ground is not clear from the face of the CCA’s decision; and the CCA’s decision does not in any way indicate clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds.”

This edition was compiled & edited by Karl Keys, Esq. If you have problem accessing this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/101227.htm. Almost all cases can be found 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. We'd simply ask that before printing consider our environment and saving our trees.  If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a 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. 

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) which provides trial level assistance to attorneys in North Carolina, the Equal Justice Initiative which assists trial and postconviction counsel in Alabama and surrounding states, Gulf Regional Advocacy Center, which provides exceptional mitigation services to those facing capital trial in the Gulf region,  or Texas Defender Service, whose work speaks for itself. On most of the above links you're able to make a tax deductible donation and set up a monthly automated gift.


SMALL PRINT
SUBSCRIBING & ARCHIVES: The summaries above are normally published forty (40) times (or so) a year. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. To unsubscribe: capital_defense_weekly-unsubscribe@yahoogroups.com

1997-2010COPYRIGHT / FAIR USE NOTICE: In plain English, you can use these materials with or without attribution (although I would appreciate the attribution) for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc.).  You may not use these works in a commercial or for-profit enterprise. You can't use the works created by others contained in this newsletter identified above (normally selected excerpts from the works of others) as I simply can't give away the intellectual property rights of others. Any derivative works must provide at least as equal or greater waiver of intellectual property rights. Nothing in this newsletter constitutes legal advice. The legalese, copyright, disclaimers, notices, & terms of usage are available in full here. Where in conflict with the plain English version of this disclaimer / copyright notice, please go with the legalese.

DISCLAIMER: In plain English, due diligence, we aren't a substitute for it and use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which the writer(s) have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent an attempt to show what a given Court held, not whether a particular court reached what the author(s)  subjectively believe is the  "correct"decision,The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note the citation method intentionally deviates from standard Blue Book, and/or other  standard citation form,  to permit readers to readily find opinions either from Google Scholar, a given court, Lexis, Westlaw, Findlaw, or the free Lexis product Lexisone.com.  As the author(s) don't practice necessarily in the jurisdiction where a decision was rendered, vagaries, peculiarities and nuances may be missed resulting in an erroneous reporting of the holding (put another way, do your own due diligence &/or consult an attorney authorized to practice in a particular jurisdiction before relying on any reported decision as authoritative).

OPEN RESEARCH DATA: We've been at this since 1997, thanks to all those whose time, efforts, and contributions have made it possible over the years. Search terms for the weekly are, using Lexisone.com, "capital habeas" or "capital postconviction" or "death penalty" or "capital murder" or "sentenced to death" or "penalty phase" or "special questions" or "sentence of death" or "death sentence" or "capital punishment" or "witherspoon". Please note the terms dramatically "overproduce" results. FindLaw.com & various listservs are also used to cross-check results. Execution and other news information derived from DPIC, Steve Hall, Rick Halperin, & media accounts.

**Indicates prior representation or other involvement in the case by Karl.