Leading off this week is the Florida Supreme Court's decision in Michael Coleman v. State.  Trial counsel at a postconviction evidentiary hearing "testified that he was convinced Coleman was innocent and indicated he had no reason to believe he needed to pursue mitigation for the penalty phase." Trial counsel also "admitted that he never inquired into whether Coleman (1) was in special education classes; (2) abused drugs; or (3) suffered a head injury," in addition to other mitigation, rather he focused the penalty phase defense on residual doubt.  The jury recommended life but the trial court overrode that recommendation. The State on appeal argued that "Coleman did not provide Stokes with any mitigation, and such mitigation may have been harmful to Coleman‘s case."  The  Coleman holds, however, if trial counsel "had properly presented the aforementioned mitigating evidence, the trial judge would have had to view it in light most favorable to the defendant and would have been precluded from overriding the jury."   As Mr. Coleman "has demonstrated that the mitigation presented would have provided a reasonable basis for the jury recommendation, the defendant is entitled to a life sentence."

Leading off the news, in New York, despite a multimillion dollar federal death penalty, Vinny "Gorgeous" Basciano's defense team quickly secured a life sentence  based on the federal government's use of witnesses who were much more sullied than the Defendant and because more morally culpable participants in the murder received life.  In Texas, prosecutorial misconduct has led both parties in the Chelsea Richardson appeal to seek a a new penalty phase. A clemency request has been filed with the Texas Board of Pardons and Paroles for Humberto Leal Garcia by the Mexican National Human Rights Commission. In Montana, counsel have filed a high profile challenge to the state's death penalty statutes under Ring. Also in Montana the state legislature has granted a supplemental budget item, approximately $1 million from the 2011 Montana Legislature specifically to defend death penalty cases.   The Nevada Senate passed a bill authorizing a legislative audit of the cost of the state's death penalty. 

As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. - k

SCOTUS 

• Brown v. Plata,  2011 U.S. LEXIS 4012 (5/23/2011) In an unusually blunt language Court holds the Eighth Amendment requires something more than warehousing inmates.

Week of May 30, 2011: In Favor of the Accused or Condemned 

• Michael Coleman v. State, 2011 Fla. LEXIS 1251 (Fl 6/2/2011) “For the reasons expressed below, we reverse the circuit court‘s denial of postconviction relief as it pertains to Coleman‘s claim of ineffective assistance of counsel during the penalty phase because we conclude that counsel rendered ineffective assistance of counsel during the penalty phase when counsel failed to investigate, develop, and present available mitigating evidence that would have legally precluded an override of the jury‘s life recommendation. Therefore, we vacate Coleman‘s death sentences and remand for imposition of life sentences instead.”

• Eugene Tyrone Decastro v. Branker, 2011 U.S. App. LEXIS 11199 (4th Cir 6/3/2011) “In a petition for habeas relief from a conviction of first degree murder, judgment of the district court denying relief is affirmed where application on the grounds of ineffective assistance of counsel and state violations of Eighth Amendment and due process rights fail because state court’s decisions did not constitute an unreasonable application of clearly established federal law or an unreasonable determination of the facts” [via FindLaw]

• Mark Duke v. Allen, 2011 U.S. App. LEXIS 10574 (11th Cir 5/26/2011)(dissent) “Court affirm[s] the denial of habeas relief to an Alabama inmate. During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]” [via Defense Newsletter blog]

• State v. Roderick Nunley,  2011 Mo. LEXIS 127 (Mo. 5/31/2011) ”Because the man pleaded guilty and waived jury sentencing for the strategic reason of avoiding jury sentencing, his federal and state  constitutional rights were not violated. His original plea and waiver remained valid after this Court remanded (sent back) his case for resentencing. Because he pleaded guilty and waived jury sentencing, the later – decided cases of Ring v. Arizona and State v. Whitfield do not apply. In addition, this Court did not err in its proportionality review of the man’s death sentence because the applicable law regarding proportionality review described in State v. Deck and State v. Dorsey is not retroactive.” ”Dissent would hold that “a defendant cannot waive a constitutional right that was not yet recognized at the time of the plea and the assertion of which is not inherently inconsistent with the plea.” [via the Missouri Supreme Court’s Clerk’s Office’s summary]

• State, ex re. Michael Anthony Taylor v. Steele,  2011 Mo. LEXIS 125  (Mo. 5/31/2011) (dissent) Mr. Taylor at trial sought a bench trial for his guilt phase claim and which resulted in the automatic waiver of a jury at the penalty phase under Missouri law.  On postconviction relief is denied as: “(1) Taylor is not entitled to jury sentencing under the Sixth Amendment;” “(2) Taylor’s waiver of jury sentencing remains valid;” “(3) Because the record clearly shows that Taylor strategically waived jury sentencing after weighing the costs and benefits of facing a jury, his case is distinguishable from Apprendi v. New Jersey, Ring, Blakely, Whitfield and their progeny;”  “(4) Taylor is not entitled to retroactive application of Ring or its progeny;”“(5) For the reasons discussed above, Taylor remains bound by his strategic decision in 1991 to  have his sentence imposed by a judge rather than a jury.” Dissent would hold that waiver of rights under Ring must be made separate and apart from the waiver of a guilt phase jury. [via the Missouri Supreme Court’s Clerk’s Office’s summary]

• State v. Roy L. Ellis, 281 Neb. 571 (Neb. 5/27/2011) Relief denied, most notably, on the admission of other crime evidence. Specifically, “[t]he State, over Ellis’ objection, presented testimony from  Ellis’ former stepdaughters that Ellis had sexually assaulted  them during a 3-year period from 1993 to 1995.” “Although we find that Ellis’ argument regarding evidence admitted pursuant to rule 404(2) has merit, we find that the error was harmless; the physical evidence, and statements Ellis was reported to have made before the physical evidence connected him to the crime, established his guilt beyond any reasonable dispute. The district court, however, correctly overruled Ellis’ objections to alleged “jailhouse informer” testimony and DNA evidence. And we find no merit to Ellis’ constitutional challenges to Nebraska’s capital sentencing scheme or his claims that the evidence is insufficient to support the findings of the jury and the sentencing panel. Finally, we find, on our de novo review, that the death penalty is warranted and proportional in this case.”

• Paul Christopher Hildwin v. State, 2011 Fla. LEXIS 1254 (Fl 6/2/2011) Relief denied on claims relating to “(1) ineffective assistance of penalty-phase counsel for failing to investigate, prepare, and present mitigating evidence, and (2) ineffective assistance of penalty-phase counsel in failing to object to improper remarks made by the prosecutor in closing argument.”

• People v. Veronica Utilia Gonzales,  2011 Cal. LEXIS 5437 (Cal 6/2/2011) (dissent) "Trial court should have curtailed prosecutor's extended and melodramatic oration couched as a letter to victim by sustaining defense objections and admonishing jury, but defendant failed to show prejudice, as there was not reasonable possibility jury would have returned different penalty verdict absent inflammatory and irrelevant aspects of letter." [via LexisOne]
  

Week of May 23, 2011: In Favor of the Accused or Condemned

• Sean Carter v. Bradshaw, 2011 U.S. App. LEXIS 10572  (6th Cir. 5/26/2011) (dissent) Petitioner held incompetent to proceed in federal habeas proceedings.
  

Week of May 23, 2011: In Favor of the Prosecution or Warden

• Erick Virgil Hall v. State,  2011 Ida. LEXIS 89 (Ida 5/27/2011) Relief denied on claims pertaining to: “1. Whether the district court had the inherent authority to enter an order restricting appellate counsel’s contact with jurors. 2. Whether the district court violated Hall’s attorneys’ First Amendment rights by entering an order forbidding contact with the jurors absent prior court approval.3. Whether the district court abused its discretion in denying Hall’s motion for post-verdict communications with the jurors. 4. Whether the district court abused its discretion in denying Hall’s motion to depose his trial counsel’s investigator.”

• State v. Clarence Wayne Dixon, 2011 Ariz. LEXIS 23 (Az 5/6/2011) "Murder was especially cruel under the Ariz. Rev. Stat. § 13-751(F)(6) aggravator because the victim surely must have suffered mental anguish while being raped, hit, and strangled, and defendant should have known that the victim would suffer such anguish while being attacked." [via LexisOne & although misses some of the other issues, its better than nothing]
  
  

• State v. Wayne Benoit Prince,  607 Ariz. Adv. Rep. 4 (Az 5/6/2011) "Ariz. Rev. Stat. § 13-752(K) was not void for vagueness because the statutes governing the second penalty phase, Ariz. Rev. Stat. §§ 13-752(G), 13-751(G), provided sufficient guidance for the admissibility of evidence of the aggravating factors previously found by the aggravation-phase jury." [via LexisOne & although misses some of the other issues, its better than nothing]

• Tara Sheneva Williams v. Cavazos,  2011 U.S. App. LEXIS 10345 (9th Cir 5/23/2011) “A hung jury is never a desirable outcome in a criminal trial. When a mistrial results, the interest shared by the State, the defendant, the court, and the public in the efficient administration of justice is diminished. The sacrifice of efficiency for the preservation of liberty is central, however, to the safeguards the Constitution affords criminal defendants. If “[m]en must turn square corners when they deal with the Government,” it is even more true that the government, including the courts, may not cut corners when dealing with man’s freedom. Unfortunately, the trial court cut some corners here. In view of the reasonable possibility that Juror No. 6′s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal, we hold that the removal of Juror No. 6 deprived Williams of her right to a fair trial by jury. We therefore reverse the judgment of the district court and remand with instructions to grant the writ.”

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