Capital Defense Weekly

Then there were 36. The Kansas Supreme Court, as noted in the last edition, has struck down that state's death penalty statute in Kansas v. Marsh. The Kansas statute permits a jury to return a death verdict even it found the aggravators and mitigators in equipoise. Holding that death should not win by default, the Marsh Court holds that the prosecution should prove that the aggravators outweigh mitigators by at least a simple preponderance overruling State v. Kleypas. The Court also vacated Marsh's conviction on claims relating to exclusion of evidence that someone else committed the crimes for which the appellant was convicted.

In the Sixth Circuit the long awaited en banc decision In re Abdur’Rahman v. Bell is noted. Overruling McQueen v. Scroggy, Abdur'Rahman holds that a Rule 60(b) motion may be entertained in a habeas proceeding and thensets forth when a district court may entertain such a motion. The practical effect means all but two circuits (Tenth & Eleventh Circuits) now permit such motions. A panel of the Sixth Circuit, applying Abdur'Rahman in Alley v. Bell has found, in that death penalty case, however, that at least in Alley's case his motion was to be treated as a successive petition.

A key decision with substantial overtones of actual innocence is noted out of the Sunshine state. In Mordenti v. Florida the Florida Supreme Court reverses the appellant's conviction holding that the state withheld key evidence of innocence that cast serious doubt on the state's only witness linking Mordenti to the crime. "There was no money trail, no eyewitnesses, no confession, no murder weapon, no blood, no footprints and no DNA evidence linking Mordenti to the murder."

Elsewhere, the Alabama Supreme Court has ordered a new trial in Ex parte McGriff, as the trial court improperly instructed the jury on the need of the state to disprove heat of passion beyond a reasonable doubt. In Johnson v. Dretke the Fifth Circuit has granted -- in a successive habeas case -- a COA on the issue of prosecutorial misconduct and due diligence to overcome the requirement of 28 U.S.C. § 2244(b)(2)(B)(i). The Fifth Circuit has also granted a COA in Mines v. Dretke on Tennard and Penry II issues.

The web roundup this week notes posts from the CrimProf Blog & TalkLeft.

Full edition here

As always thanks for reading. - k
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Posted December 17, 2004
Florida v. Nixon leads of this edition. The Supreme Court in Nixon held that counsel's concession that his client committed murder, made without the defendant's express consent, does not automatically rank as prejudicial ineffective assistance of counsel under United States v. Cronic. In reaching the conclusion Justice Ginsburg sets out a very blunt analysis of viable strategies for capital trial counsel including concession of guilt. The case is bad for those already in the "pipeline" with similar "Cronic" type issues but the Court's reliance on the 2003 revisions of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and their markedly more favorable language than the prior Guidelines, as well as several other reasons, provides a very strong silver lining to this otherwise miserable opinion.

Several favorable cases are also noted. In Hutchinson v. Missouri the Court grants relief as trial counsel were ineffective in failing to investigate and present evidence of the defendant's impaired intellectual functioning. In Ohio v. Burke the intermediate appellate court has held that counsel erred in not timely filing a motion for new trial. In State ex rel Mayes v. Wiggins the Missouri Supreme Court held the trial court below erred in not imposing a life sentence when "the verdict fail[ed] to show that the jury found all facts necessary for the imposition of death." The Alabama Supreme Court in Ex Parte Martin remands to permit the trial court to reconsider the weight it gave to the jury's recommendation to spare Martin's life.

Finally there is late word that Kansas has struck down its death penalty in Kansas v. Marsh, 36 states now retain the death penalty.

Full edition is located here

As always thanks for reading. - k

Updated December 10, 2004
"This is a regrettable case in which the attorneys involved--the prosecutor, defense counsel, and even the trial judge--failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case" the Ohio Supreme Court notes in Ohio v. Yarbrough. The opinion ultimately concludes that Ohio's murder statute does not authorize a death sentence for a murder committed in Pennsylvania, a point apparently missed by the attorneys in the case at trial. The Yarbrough opinion earns the first slot this week on the "hot list" for the Court's frankness in dealing with the issue of jurisdiction.

The Louisiana Supreme Court's opinion in State Ex Rel Williams v Louisiana earns the only other slot this week. Williams is a technical opinion about the scope of the Louisiana funding mechanism for capital post-conviction cases. Pro bono counsel managed to attack that state's scheme by a number of different mechanisms ultimately resulting in a remand for further proceedings to expand the record. Counsel's creativity is why Ex rel Williams is highlighted.

Arguably the most important post-Crawford case relating to the Confrontation Clause is the Sixth Circuit's recent noncapital decision in United States v. Cromer. The panel's decision there holds that under Crawford testimonial hearsay is any statement made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime. The Confrontation Blog has more on post-Crawford developments post-Crawford including Cromer.

As this edition is going to press it the Supreme Court announced it would hear Medellin v. Dretke apparently on the issue of rights under the Vienna Convnention, more information at the Supreme Court blog (http://goldsteinhowe.com/blog).

As noted here previously, Cameron Todd Willingham was strapped to a gurney earlier this year. To his death he proclaimed his innocence. This week the Chicago Tribune presents exceptionally strong evidence of his innocence. The Tribune's investigation concludes that rather than arson and homicide it was likely a tragic accident that lead killed his three daughters with that tragedy only being compounded by the execution of a probably innocent man. Similar questionable arson investigations resulted in the wrongful convictions and death sentences of Madison Hobley and Ernest Ray Willis, both of whom were later exonerated. At least one arguably innocent person, Kenny Richey remains on death row despite a similarly flawed arson investigation. In light of the problems with arson investigation the Trib's article highlights the article is the "Focus" article of the week.

In other news of the week, the Supreme Court this week (again) heard argument in Miller-El v. Dretke to address the issue of the fairly blatant use of racial bias in the selection of jurors by the prosecution, and unofficially, to highlight its noted growing concern with the so-called "machinery of death" in the Fifth Circuit. Elsewhere, an analysis of the Innocence Protection Act of 2004 is now available from DPIC. Finally, New Jersey's acting Governor, Richard Codey, has called for a moratorium on executions as that state appears ready to set its first real execution date in forty years.

The full edition is here

As always thanks for reading. - k