Sellers v. Ward: Under scoring the short comings of federal habeas corpus procedure as interpreted by the Rehnquist Court in recent years, the Tenth Circuit holds that its hands are tied to prevent the execution of a severely mentally disturbed death sentenced individual, despite evidence of petitioner's purportedly "overwhelming, undisputed evidence ...of MPD [multiple personality disorder]." The court finds that the issue is barred under the doctrine of procedural default and comity. The court held the issue of MPD was not, substantively, properly before the court as Oklahoma courts rules of procedure placed the issue "in a judicially created 'Catch 22'" as it had to have been raised on direct appeal, but that scientific testing was not possible at that time. Court holds, therefore, that the claim is barred under Herrera v. Collins because the issue had to have been presented on direct appeal even if not discoverable. Further, because MPD was not discoverable at the time of trial no violation of the right to counsel under Strickland v. Washington was possible. Exasperating the obvious dilemma of the court the condemned was a mere 16 at the time, but, the Court holds, the issue was properly considered under Graham v. Collins. The language of the Tenth Circuit makes it clear they are uncomfortable with allowing this execution to go forward, but find its hand tied by Supreme Court precedent. This case will be followed in the coming weeks as it may well test the dicta of the Herrera opinion concerning if evidence such as this can ever be weighed by a federal habeas court.

This week saw a stunning, and unexpected development as Kentucky Takes Step Closer to Passing the Racial Justice Act. Race in America's use of the death penalty has been a hot button issue in capital for a generation. The Racial Justice Act was defeated in Congress in 1993, and no state has yet to adopt s state version of the defeated Act. Numerous studies have suggested an interplay between race and the death penalty. Although blacks are victims of half of the murders that occur each year in the United States, eighty-five percent of the condemned were sentenced to death for murders of white persons. [Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 1993, at 384, table 3.128 (Kathleen Maguire & Ann L. Pastore eds., 1993).] Indeed, an analysis of twenty-eight studies by the U.S. General Accounting Office found a "remarkably consistent" pattern of racial disparities in capital sentencing throughout the county. [General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990).] Of course this is in accord with the Staff Report by the Subcommittee on Civil and Constitutional Rights of the Committee of the Judiciary, U.S. House of Representatives, Racial Disparities in Federal Death Penalty Prosecutions 1988-1994, H.R. 458, 103d Cong. 2d Sess. at 2 (Mar. 1994). In addition to the studies cited by the General Accounting Office in its report Equal Justice and the Death Penalty (1990); Samuel R. Gross & Robert Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing (1989); Bob Levenson & Debbie Salamore, Prosecutors See Death Penalty in Black and White, The Orlando Sentinel, May 24,1992, at A1 (reporting that "justice ... is not colorblind in Central Florida when it comes to the prosecution of first degree murder cases"); Jim Henderson and Jack Taylor, Killers of Dallas Blacks Escape the Death Penalty, Dallas Times Herald, Nov. 17, 1985, at 1 (accompanied by other stories and charts demonstrating the relationship between race and imposition of the death sentence); David Margolick, In the Land of Death Penalty, Accusations of Racial Bias, N.Y. Times, July 10, 1991, at A1 (describing racial disparities in the infliction of the death penalty in Georgia's Chattahoochee Judicial Circuit, which includes the city of Columbus); Paul Pinkham & Robin Lowenthal, The Color of Justice in Jacksonville: Killers of Blacks get off Easier than Killers of Whites, The Florida Times-Union, Dec. 8, 1991, at D1. Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991, paper presented to Academy of Criminal Justice Sciences, Chicago (1994) (finding that Blacks accused of killing whites had a higher than average probability of being charged with a capital crime by the prosecutor and being sentenced to death by the jury). For details see Stephen B. Bright, 35 Santa Clara L. Rev. 433, SYMPOSIUM: DISCRIMINATION, DEATH AND DENIAL: THE TOLERANCE OF RACIAL DISCRIMINATION IN INFLICTION OF THE DEATH PENALTY (1995), pages 435-438, from which much of the above is taken and which is available at schr.org. (Unfortunately both in Microsoft word, if you need to download the latest free Microsoft Internet Word Viewer for Windows 3.1 or Win95 try clicking here.) What the RJA does is statutorily reverse McCleskey v. Kemp ("McCleskey I"). In McCleskey I the US Supreme Court, statistical data exist that would, in a non-criminal discrimination case, be sufficient to raise the presumption that race played a factor in the sentencing decision, however, the Court ruled that in a criminal case more evidence is required than a normal discrimination case. Since the time of that opinion the authoring justice, Justice Powell, has stated that his decision was the biggest (or among the biggest depending on the source) of his career. Justice Scalia stated in a memo in that case (according to the papers of Justice Marshall) that the statistical data and evidence presented had shown racial discrimination.

Sellers v. Ward Tenth Circuit holds claim of new undisputed evidence of mental disorder barred under Herrera v. Collins & because it was not discoverable at the time of trial no violation of the right to counsel under Strickland v. Washington. His youth (16 at the time of the offense) properly considered under Graham v. Collins. (see more above)

Oops Keating v. Hood This case was somehow missed the first time. Decided mid-January, the Ninth Circuit clarifies the degree reviews an issue not raised before the California Supreme Court. Reversing the district court's finding that the issue was substantially raised, the panel holds that the violation of his due process rights violated were not exhausted.

Parkus v. Delo Eighth Circuit holds jury instructions on Eighth Amendment claims were correct, that maliciously and sadistically were properly defined. Administrative agency findings on officer's actions were not entitled to collateral estoppel effect since the issues in the agency's proceeding were not the same.

Tyler v. Murphy Eighth Circuit holds order denying a motion to dissolve an injunction is appealable; district court order limiting number of technical probation violators which could be held at St. Louis City jail violated the Prison Litigation Reform Act; case remanded for further proceedings on application of PLRA.

Tangwall v. Stuckey Where a false is made on eyewitness identification, even if that identification turns out to be false, no claim may lie in a civil action. "It is the unfortunate circumstance when they do arise, but such is the price we must pay to live in a society whose citizens are not always as civilized as one might hope."

Matos v. DaVila Where an officer lies to obtain a warrant a civil action may lie against the officer who fabricated the statement, but not against those who did not actually conspire to lie.

Williams v. Jabe Sixth Circuit holds that treating prison mental health professionals had knowledge about the probablility of the prisoner/patient committing suicide and did not adjust treatment accordingly liability may be had. Co-defendant's singular examination of the decedent did not rise to deliberate indifference, and although less then thorough, was not cognizable as a matter of law.

Oops Keating v. Hood Ninth Circuit reviews an issue not raised before the California Supreme Court holding that it is not reviewable on exhaustion grounds. (see more above)

As St. Valentine's day approaches I thought it might be interesting to forward the story of his life, and execution. According to one legend, Valentinus ignored a decree from Emperor Claudius II that forbade all marriages and betrothals. Caught in the act, Valentinus was imprisoned and sentenced to death for secretly conducting several wedding ceremonies. While imprisoned, the future Saint cured a girl (the jailor's daughter) of her blindness. The poor girl fell madly in love with Valentinus, but could not save him. On the eve of his execution, Valentinus managed to slip a parting message to the girl. The note, of course, was signed "From your Valentine." Valentine was clubbed to death, then beheaded, on February 14 around 270 A.D. during the Christian persecution. In a way, it could be said he died for love and it may be for this that his feast day, named in 496 A.D. by Pope Gelasius, has become associated with romance. (From an e-mail posted to the Abolish Listserv by Abraham Bonowitz of Citizens United for Alternatives to the Death Penalty cuadp@IGC.APC.ORG, used without permission, although is a great guy and would not club me to death for reposting these out takes.)

-- Karl R. Keys, Esq.

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DISCLAIMER: As always this newsletter was done late at night with one eye open, having been unable to put it off any longer. Now for the legal mumbo jumbo; I, Karl R. Keys, Esq. am an attorney who does capital litigation. This newsletter and links are not warranted as to accuracy, typos, or for that matter anything else. USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY-CLIENT RELATIONSHIP (unless of course you want to pay me for taking your case, in which case we can negotiate our relationship). For the full disclaimer please visit the web page at http://members.aol.com/capdefense. THIS CORRESPONDENCE MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS (for what reason only Board of Bar Overseers knows). (c) 1997, no copyright claimed to any material owned or created by the federal government, or any other copyrighted materials on this page, (if I used your stuff improperly please tell me to save you the hassle of having to write me any kind of legal summons or other threatening communication). This page may be freely redistributed as long as attribution and this disclaimer is included, then again, if you redistribute how would I know unless you were stupid enough to send it back to me, in which case I already know who owns the copyright. Have fun and remember life is short ~~ and made even shorter for several of my clients due to my numerous blunders. -----------------------------7ce352233dc--