| Three cases are listed as hot this week. The cases all focus
on the limits imposed on prosecutors either by the federal constitution,
judicial order or the canons & rules of ethics.
In the first of the cases defining the limits on prosecutions is Ohio v. Lamar. The Ohio Supreme Court in Lamar examines how little a prosecutor must divulge concerning potential witnesses. Without ever once citing United States v. Jencks, the Lamar Court held that what is commonly referred to as Jencks material need not be turned over to meet state and federal constitutional requirements. Summaries of statements of witnesses without the names attached suffice for Brady under the unique circumstances of Lamar. In Osband v. Woodford the Ninth Circuit again evaluates whether a district court's protective order preventing the prosecution of any trial counsel file turned over in federal habeas discovery was permissible. The order below was "designed to ensure that the prosecution on retrial will not use the discovery permitted in the habeas proceeding to circumvent the more limited discovery available in criminal prosecutions." Noting that Circuit precedent clearly placed the decision in the hands of "the very broad discretion" of the district court in ordering discovery, the court affirms the order. In the third hot listed case of the week the Colorao Supreme Court clarifies how far a prosecutor may go before risking disciplinary action in In the Matter of Pautler. Attorney Pautler was brought before the disciplinary board after he had impersonated a public defender in order to secure the surrender of a person accused of capital murder. The Pautler Court notes that attorney Pautler is unrepentant and states that he would repeat his actions if the unique circumstances underlying this matter would arise again. The Pautler Court holds, however, that the unique situation involved in the instant circumstance and Pautler's long history of public service, among other mitigating factors, justifies a suspended sentence (3 months suspension of license) instead of disbarment. Two noncapital Supreme Court cases are also noted this week. In United States v. Cotton etal. a unanimous Court held failure to object may waive putative "Apprendi" error. In Alabama v. Shelton a sharply split Court held that the right to counsel exists even where the sentence imposed is a suspended sentence. The Focus article of the week is by Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BFLR 469 (1996). Mr. Gross's article is oft cited in the current debate on how to improve the death penalty and reduce the chances of executing the innocent and worthy of a quick review as part of the actual nuts and bolts as to how the system is failing. In other news of the week, the execution of Johnny Martinez in Texas has quietly begun to raise, once again, about the quality of Texas's rules and protocols in capital cases. The family of Martinez's victim, Clay Peterson, pleaded for Martinez's life to be spared. The Texas Board of Pardon and Parole, by a 9-8 vote, decided, however, to turn a deaf ear to the victim's family members and to deny clemency. Two more executions (including that of Napoleon Beazley) are scheduled in Texas before the end of the month and five additional executions scheduled for June. Execution Information
MayThe following executions dates for this summer are considered serious:* MayAvailable online at http://capitaldefenseweekly.com/archives/020520.htm
Three cases make the hot list this week, two wins, one loss. The first case in the spotlight is North Carolina v. Rogers. The North Carolina Supreme Court in Rogers examines how that Court will treat prosecutors who attack the defense's expert as a "liar for hire." The prosecution's improper disparagement of the defense's expert, the Rogers court concludes, entitles the defendant to a new capital sentencing proceeding. The Tennessee Supreme Court in State v. Dellinger examines the application of New Jersey v. Apprendi to capital cases in that state. Dellinger gives a good analysis of what the state must prove to not have a problem with Apprendi. Whether the five requirements listed in Dellinger will be applicable following any potential United States Supreme Court decision Ring v. Arizona is unclear, however the Tennessee Supreme Court's decision (excerpted below) should be reviewed if an Apprendi issue might be present in your case. In the final hot listed case, Jennings v. Woodford, is a guilt phase grant of relief from the Ninth Circuit. Trial counsel in Jennings used an alibi defense and pointed the finger at someone else. Problems arose at trial, however, when confusion over daylight savings time prevented the establishment of an alibi. Trial counsel failed to explore alternate defenses. The Ninth Circuit concludes "counsel's failure to conduct any investigation into possible mental defenses was unreasonably ineffective." This week the "Focus" section will not run this week and will return
next week. Two upcoming editions will address CLE's/upcoming events
and new books, articles & website germane to the subject. If
you have any recommendations please do forward them to karl@capitaldefenseweekly.com
Since the last edition the following have been executed: MayThe following executions dares are considered serious:* MayAvailable online at http://capitaldefenseweekly.com/archives/020513.htm The most important events relating to capital defense this come not from the courts but from the political realm. In Maryland the second state governor this week announced a moratorium on executions. Governor Parris Glendening of Maryland issued a moratorium Thursday on all executions in that state pending completion, and General Assembly review of, a study on the state's use of the death penalty currently in progress at the University of Maryland College Park. This is the first state moratorium since Illinois Governor George Ryan halted executions in that state in January 2000. The immediate effect is a stay for Wesley Baker who was scheduled to be executed next week, the long term effects remain to be seen. The moratorium movement will be covered in depth in a future edition. The current edition highlights as hot just one case, Caldwell v. Bell. In Caldwell a split panel of the Sixth Circuit granted relief on a the trial court's error in instructing the jury on "presumed malice." The panel split not on whether the instruction was error, but how that error impacted the proceedings. Relief granted. The Focus section this week examines the constitutionality lethal injection as currently practiced. Excerpts from Denise Denno's "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us" Ohio State Law Journal's Death Penalty Symposium Issue appear below. Additionally, excerpts from motions challenging lethal injection that have won evidentiary hearings recently in Tennessee and Georgia also appear below. Additional materials on lethal injection will be posted on the new Capital Defense Weekly website in the next few days. As noted briefly in the last edition several severe technical glitches have troubled the site (coramnobis.com) where the weekly has been housed for the last three years. The troubles included no email for most April. Effective as of this issue I have moved the site for Capital Defense Weekly The new website location is www.capitaldefenseweekly.com. The new site is up but being seriously "remodeled" and should be fully functioning in a few days. Having mentioned websites, deathpenaltydefense.com is another site to add to your hotlinks. The site covers all the nuts and bolts of death penalty defense at trial in a concise and thought provoking manner. If you have not visited the site yet, please do. Deathpenaltydefense.com is run by Prof. William S. Geimer of Washington and Lee University. Prof. Geimer has defended capital cases in the courtroom, and as director of Virginia Capital Case Clearinghouse, has provided direct trial-level assistance to defense attorneys in more than 400 death penalty cases. His work has appeared here in the past and I have added the site to the very small list of "five star websites" that appears in the footer of every edition. A reminder that the the Montana Bar Association on June 6-7 is holding their Capital Crimes Defense Certification (http://montanabar.org/cle/capitalcrimescle.html). The CLE examines the nuts and bolts of trying a capital case, including such classes as "Trying Your First Death Penalty Case and Voir Dire in Capital Cases" and "Deathics: What the Defense Lawyer Must Do and the Prosecutor Must Not." The course include many of the leading experts in the field of capital defense and looks to be quite rewarding. Finally, Thomas H. Kimbell, Jr., became the 101st former death row inmate (at least) to be released for reasons of actual innocence and freed since 1973. Kimbell had been sentenced to death in 1998 following his conviction for the murder of four members of a family in Lawrence County, Pennsylvania in 1994. The Pennsylvania Supreme Court overturned his conviction in 2000 because evidence which might have thrown doubt on his guilt was not admitted at his trial. Kimbell was acquitted of all charges at his re-trial on May 3. Execution Information
MayThe following executions dares are considered serious:* May Leading off this week's edition are two interesting new "breakthroughs" in developing areas of the law. Twists on claims of innocence & international law are the hot issues of the week. In Valdez v. Oklahoma, the Oklahoma Court of Criminal Appeals granted relief on a successor post-conviction motion. The issue raised to the court concerned the Vienna Convention's guarantees relating to the right of consul for foreign nationals accused of crimes. The Court denied relief on the international law claim as presented but held trial counsel was ineffective for not seeking assistance from his client's consulate. Valdez is believed to be the first appellate opinion granting relief on issues touching upon the Vienna Convention. A federal district court in the Southern District of New York held last Thursday in United States v. Quinones that he was ready to declare the federal death penalty unconstitutional unless the government can quickly explain why so many condemned inmates turn out to be innocent. Although noted in last week's edition the opinion was not widely available until after that edition was sent to the list. The opinion's unique holding renders it hot. The motion by counsel in Quinones is the "Focus" topic of the week. Three other cases saw favorable outcomes in capital or potentially capital cases. The Seventh Circuit in Wright v. Walls vacated a death sentence where sentencing judge erred by not considering mitigating evidence related to appellant's traumatic childhood. The Ninth Circuit in Visciotti v. Woodford vacated petitioner's sentence on the basis of counsel's ineffectiveness including, most notably, trial counsel's concession of several potential mitigating factors while providing the jurors essentially no reason not to impose the death penalty. Finally, in a case with clear capital implications, the Tennessee Court of Criminal Appeals held in Tennessee v. Hagerty that the accused's request for experts to develop a "battered woman syndrome defense" granted. In South Carolina Richard Johnson has been denied clemency. Johnson's case is notable as the evidence of actual innocence is substantial. In 2000, the state Supreme Court ruled that one of Johnson's co-defendants was not credible when she recanted her testimony given at Mr. Johnson's trial and said she killed state trooper Bruce Smalls. Former state chief justice, Ernest Finney was not part of that 3-2 vote, but he said the razor-thin margin wasn't enough to "justify the imposition of the ultimate punishment." "When the court divides three to two on the question of whether a man on death row is actually guilty of committing the crime, I believe clemency is warranted," Finney wrote in seeking clemency for Mr. Johnson. In other news of the week, the Alabama has finally abolished the electric chair. Polls in New York and Illinois show support for the alternative of life without parole and moratorium (respectively) beating out execution as the preference of the majority of those polled. The San Jose Mercury News found after an in-depth study of the 72 cases reversed by state and federal courts since 1987 and 150 appeals now pending in the federal courts that the problems endemic to states known for spending less on capital cases, such as Texas and Alabama, are endemic in California cases. Several have asked where they can go to find out more information on
a given client's press coverage or the press coverage of a given inmate
on death row. Other than the Nexis database, the best national archive
of such stories and discussion of events can be found at the Abolish list
archives. That information can be found by point your browser
to http://maelstrom.stjohns.edu/archives/abolish.html
(to search by date) or http://maelstrom.stjohns.edu/CGI/wa.exe?S1=abolish
Finally on a technical note, the site will be changing names. The website will be moving to CapitalDefenseWeekly.com starting May 8, 2002. capitaldefenseweekly.com will be continued to be maintained through early June. My apologies for the ongoing problems with server and email problems at capitaldefenseweekly.com. Execution Information
AprilThe following executions dares are considered serious:* May This week's edition is available online at http://capitaldefenseweekly/archives/020429.htm Coverage this week includes four cases of potential innocence in the appellate courts of Florida and Illinois. In three of the cases of potential innocence the state Supreme Court ordered a new trial (Illinois v. Tenney and Garcia v. Florida) or additional evidence to be heard (Illinois v. Johnson). In the fourth case, Swafford v. Florida, a bitterly divided Florida Supreme Court upholds conviction and a sentence of death despite a case of potential innocence that goes to the very marrow of Florida's death penalty scheme and the competency of that legal system in capital cases. The systemic problems highlighted by the dissent in Swafford v. Florida are "hot listed" this week. The stay granted in Abdur' Rahman v. Bell reported last week has become a certiorari grant. [Petition for Certiorari] The issue before the court is the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244. The Federal District court for the Southern District of New York dropped a bombshell on Thursday holding that the death penalty may no longer be permissible under the Eighth Amendment in light of the large number of innocence cases. The Federal Death Penalty Resource Counsel website should have the decision and/or motion sometime Friday morning (http://www.capdefnet.org/fdprc/contents/recent_dev/recent_developments.htm). Further briefing has been ordered and a final decision on the issue should be handed down sometime this summer. As if to punctuate the decision, across the East River from the Southern District, New York's third noncapital murder conviction, Hector Gonzalez, in as many months was reversed. Three more cases of probable innocence may, purportedly, result in exonerations in New York in the next few weeks thanks to the hard work of the Innocence Project, the legendary Legal Aid Society of New York, and lawyer turned talk show host Ron Kuby. In light of these developments the New York State Defenders Association's Innocence section is the Focus of the week. Execution Information
April 18 Gerald Casey TXThe following executions dares are considered serious:* April 26 Alton Coleman OhioThis week's edition is available online at http://capitaldefenseweekly.com/archives/020422.htm In this double issue two cases are hot listed, Langley v. Louisiana and Kutzner v. Texas. Reinforcing the need for counsel to search diligently and to the "four corners" of a case, relief granted and indictment quashed in Langley v. Louisiana, on the basis of racial discrimination in the selection of a grand jury foreman. The Louisiana Supreme Court offers a brilliant precedent on how to construct claims of racial bias infecting a capital case. The Louisiana Crisis Assistance Center, who successfully argued for Langley, has a materials relating to the developments of grand jury claims available at http://www.lidb.com/Part%20K.htm. The Texas Court of Criminal Appeals in Kutzner v. Texas has denied a request for DNA testing. The Kutzner Court focuses the opinion on counsel's failure to show that the purpose of the request was for a reason other than "to unreasonably delay the execution of sentence or administration of justice." The Focus section is not presented this week as this is a double issue. Additionally, in the week that saw the Illinois Commission on Capital Punishment Report any other in depth examination of the death penalty would be fruitless. The report favors retention of the death penalty but noted: "The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death." The practical results, in the private words of one well known death penalty lawyer after reading the report has been noted as simply "This is the beginning of the end for capital punishment in the United States." In other news of the week, former death row inmate Ray Krone was released from prison on Monday in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years ago; Ray is the 100th person so released. The Supreme Court has granted a stay in Abdur Rahman on the issue of the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.[Petition for Certiorari] Contact information for the weekly has changed, the new contact information is Karl Keys; Capital Defense Weekly; PO Box 504; Bloomsbury, NJ 08804-0504. Execution Information
AprilCurrently listed as "serious" are: AprilThis week's edition is available online at http://capitaldefenseweekly.com/archives/020415.htm
Breaking news from the Supreme Court this week, again, steals the headlines. The execution of Gary Leon Brown in Alabama has been stayed by the Court. The issue appears to be either related to Apprendi v. Arizona &/or Alabama's retention of the electric chair. This week's lead case is the Seventh Circuit's en banc opinion in Bracy v. Schomig. A split court holds the real possibility that the trial judge, who was subsequently convicted of fixing criminal cases, engaged in compensatory bias by fixing the punishment at death in this case. Evidence of guilty phase misconduct, however, was not held sufficient to require reversal. The Tennessee Court of Criminal Appeals in Tennessee v. Huskey addresses the issue of when a trial court may remove counsel in a capital case. Noting that other, less draconian remedies remain available to the trial court, the Court of Criminal Appeals reinstates lead counsel. "[R]emoval of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed." Three additional cases are listed as hot. In Booth-El v. Nuth, the Fourth Circuit has reversed a district court grant of relief as the district court erred in granting relief on the ground that the removal of intoxication as a statutory mitigating factor at his 1990 re-sentencing violated the Ex Post Facto Clause. A split Fifth Circuit panel in Mayo v. Cockrell, has held that for purposes of the Sixth Amendment a motion for new trial is not "critical stage" of prosecution. Finally, one of the most conservative jurists in the nation, Judge Luttig of the Fourth Circuit, concurring on the denial of rehearing en banc Harvey v. Horan, notes his belief that there is a constitutional right for inmate's to have access to DNA testing independent of habeas corpus proceedings. In other news of note, the first death sentence in over 150 years was returned this week in Michigan, with the return of a federal death sentence against Marvin Gabrion for the murder of 19-year-old Rachel Timmerman. The verdict, while notable, does not stand alone as the federal prosecutors are more aggressively seeking death sentences in abolitionist states most notably in New England and Michigan. In light of this verdict, Focus this week covers the use of the federal death penalty in states that have abolished capital punishment, Death isn't welcome here: evaluating the federal death penalty in the context of a state constitutional objection to capital punishment by Sean M. Morton. 64 Alb. L. Rev. 1133-1466 (2001). Elsewhere, the American
Bar Association formally launched their moratorium project's website.
Nationally, there are just under 2000 communities and organizations that
have called for moratoria, with such groups as People
of Faith Against the Death Penalty (North Carolina) and New
Yorkers Against the Death Penalty, aggressively seeking additional
communities and organizations.
Execution Information
AprilCurrently listed as "serious" are: AprilThis week's edition is available online at http://capitaldefenseweekly.com/archives/020401.htm
The Supreme Court's decision in Mickens v. Taylor comprises the hot news of the week. The Mickens opinion, addressed in greater depth below, is a very narrow opinion and the language of the case suggests limiting its precedential value almost exclusively to the facts of the case. As Justice Scalia himself, writing for the majority, about the scope of the opinion, "[l]est todays holding be misconstrued, we note that the only question presented was the effect of a trial courts failure to inquire into a potential conflict upon the Sullivan rule that deficient performance of counsel must be shown." In other news of the week, the Ninth Circuit is noted as having granted a new penalty phase hearing reversal in Karis v. Calderon on penalty phase failure ot investigate information of an abusive childhood. The Kentucky Supreme Court has reversed a lower court grant of relief in Kentucky v. Tamme where a case of potential actual innocence was found by the trial court. The Death Penalty Information Center is closely following the Supreme Court's potential landmark in Ring v. Arizona and is For those who are looking for new & powerful ways to present mitigation & clemency materials consider reviewing the clemency "movie" created for Abu-Ali Abdur'Rahman released this week. Unfortunately, the Board of Probation & Parole has voted against recommending clemency. The video & additional information on Mr. Rahman's case is available on the net at: broad band video -- http://easylink.playstream.com/incitedmedia/abu-ali/abu-ali_high.rmFollowing up on the Mr. Rahman's scheduled execution date, as well as the long litany of execution dates noted below, this week's focus section examines one theory supporting commutation of a death sentence, repentance. Resurrection from a Death Sentence: Why Capital Sentences Should Be Commuted upon the Occasion of an Authentic Ethical Transformation, by B. Douglas Robbins, 149UPALR 1115 (April 2001). Special thanks to Michelle Brace for providing the briefs & related materials noted below for the Supreme Court's certiorari grant in Sattazahn v. Pennsylvania. My personal schedule for April may prevent several editions from being sent out in a timely fashion. Breaking updates will be posted at capitaldefenseweekly.com until an edition can actually get out the door. April
This week's edition is at http://www.capitaldefenseweekly.com/archives/020325.htm.
Three cases guide the way this week including two notable relief denials from the Fifth Circuit. Leading of the Fifth Circuit denials is Neal v. Puckett,. Sitting en banc the Neal Court holds that Mississippi did in fact deprive Neal an adequate penalty phase proceeding due to counsel ineffectiveness failure to investigate and present additional mitigation information. The court nonetheless denies relief for Neal, who has an IQ of 54, is not entitled to relief as the Mississippi's Supreme Court's determination in the matter was not "objectively unreasonable," the AEDPA's standard for habeas relief. In another Fifth Circuit decision, United States v. Davis, the Fifth Circuit has cleared the way on this interlocutory appeal, for the defendant to, in effect, plead to death. The panel has held, in a split decision, that the federal district court must permit a defendant to represent himself in the penalty phase of a trial without assistance if he so chooses. If upheld, this would appear to represent the first instance since the statutory right to counsel under the Judiciary Act of 1789, & later the Sixth Amendment, that a federal trial court would not have the input of learned counsel as to why the accused's life should be spared. Davis will represent himself and argue only residual doubt as the reason to spare his life. Finally, in a glimmer of hope, the Florida Supreme Court has ordered the trial court to reconsider its death sentence in Crook v. State. The Florida Supreme Court, in a fiercely split decision held that the trial court erred its weighing of mitigating and aggravating circumstances by failing to give too little weight to the mitigation evidence. In this week's Focus section is a brief review of the case law surrounding what is a required of trial counsel in preparing and presenting mitigation evidence for trial. The sample used is also a "teaser" of the incalculable value resources of the Habeas Assistance Training Group & Federal Defense Resource Counsel. http://www.capdefnet.org/hat/contents/constitutional_issues/case.htm. The Pentagon, in a matter with clear capital implication, has issued the rules for the military tribunals set to "try" those accused of terrorist acts. The high lights of the tribunals include a limited right to counsel & appeal, relaxed evidence rules, and the death penalty only upon a unanimous finding by a seven person finder of fact. The Supreme Court granted certiorari in Sattazahn v. Pennsylvania, 01-7574. The issue of the cert. grant appears to be double jeopardy, however, only press accounts are currently available. On a personal note, the docket & schedule for the next month are quite busy. I am hoping an edition will issue each week between now and May 1, but if a week is missed, please understand & hopefully things should to return to normalcy well before then. Since the last edition there have been no execution. The Texas governor has given a one-time 30 day reprieve to the only scheduled execution, Rodolfo Hernandez. The stay is reported to have been given to permit law enforcement an opportunity to interview Hernandez about crimes in San Antonio. At the time of writing, the reason for this stay is not known. March
April
This week's edition is at http://www.capitaldefenseweekly.com/archives/020318.htm.
Three cases are hot listed this week all three would normally appear in next week's edition, however, they are sufficiently noteworthy as to warrant early coverage, two wins, one loss. The Tenth Circuit's decision in Fisher v. Gibson is already generating substantial buzz, has ordered a new trial on substantial allegations of deficient performance by trial counsel. Counsel, the court held, demonstrated more than just the "apparent ineptitude" that would require reversal but showed open "hostility to his client and his client's interests, and his apparent sympathy and assistance for the state's case." The Court's holding should be read in its entirety & substantial portions have been reprinted for this edition. Ex parte Richardson, from the Texas Court of Criminal Appeals, like Fisher, has been expedited for coverage this week as this is a case of possible innocence. The Court of Criminal Appeals ruled, without dissent, that prosecutors failed to disclose evidence to the defense that likely would have "severely undermined" the credibility of the state's star witness. At issue was whether the state's star witness, who offered 7 different renditions of the killings in her testimony and was granted immunity, was a credible witness. The diary of a Lubbock policewoman who guarded the witness while she was in protective custody called into question the star witness' credibility. The diary was not turned over. On remand from the United States Supreme Court in Saldano v. State, in the final of the expedited case of the week, the Texas Court of Criminal Appeals denies relief in a very narrow procedural ruling. The Saldano court upholds a future dangerousness prediction upheld even though the state's expert at trial admitted using race as a factor in his determination. The Attorney General's office admitted error. The confession of error was given no effect as the issue was not preserved for appeal & no claim of ineffective assistance of counsel for failing to preserve has been raised. This case is a must read for Texas practitioners about the need to preserve all potential issues at trial & for post-conviction counsel to plead claims creatively to include Several other cases deserve quick mention. In Osband v. Woodford, the Ninth Circuit upholds prior rulings granting district courts the power, where it grants discovery, to limiting the use at retrial of trial counsel's materials turned over by the defendant/petitioner. In United States v. Casseus the Third Circuit, held that the right to counsel who meets the qualifications of 18 U.S.C. 3005 is not applicable to potentially capital cases where the government does not seek death, and assuming that there is such a right, petitioner was no injured by any error. Finally, the Privy Council has broadened earlier decisions on the death penalty by striking down mandatory death penalties in Reyes v. The Queen, The Queen v. Hughes, & Fox v. The Queen. The "Focus" section this week includes additional excerpts from Craig Haney's, VIOLENCE AND THE CAPITAL JURY: MECHANISMS OF MORAL DISENGAGEMENT AND THE IMPULSE TO CONDEMN TO DEATH, 49 STNLR 1447, July 1997. The excerpts from Haney this week explores how jury's decide to sentence to death. Judge Pollak of the Eastern District of Pennsylvania has reversed his earlier fingerprint decision United States v. Plaza. The briefs & motions for Plaza are available at http://capitaldefenseweekly.com/briefbank.html. The brief bank has also been updated & should be added to substantially in the next few weeks. Over the next few weeks several transitions will be taking place. Tech support will be migrating the website in the next few weeks to a new server, if the site goes down try back in a few minutes. The weekly will also be changing software in hopes of eliminating what has been a fairly embarrassing problem of subscribers mysteriously disappearing from the electronic database (about 3-5% a month or a few hundred a year). The weekly & site are the first draft of history & case law, not the last. Over the next few months the goal will be to focus tightly on what has always been done best here, getting news & materials out quickly & "data mining" the web for interesting & new materials. The briefbank should start reflecting this change with heavy editions in the next few weeks of stay materials & jury questionnaires. The weekly can not match, however, the depth of sites such as the incredible sites run by the Habeas Assistance Training Group & Federal Death Penalty Resource Counsel (capdefnet.org) for federal materials; the Louisiana Indigent Death Board (www.lidb.com) for state trial court materials; NACDL (nacdl.org) for overall support, the DC Federal Defender (http://www.dcfpd.org/) for the best collection of noncapital federal materials anywhere & the joint venture site at probono.net (a site that, although password protected, has been meticously built). Likewise, the weekly & site can not match the materials put up -- for free -- by the ABA, probono.net, and so many others. Since the last edition the following have been executed. March 12 Tracy Housel Georgia---for. nationalExecutions slated and considered likely for March & April 2002: MarchThis week's edition is at http://www.capitaldefenseweekly.com/archives/020311.htm. Four cases deserve special attention this edition, Deck v. Missouri, Thomas v. Virginia, Tennard v. Cockrell & California v. Hillhouse. Two other cases, not hot listed, Benn v. Lambert & Smulls v. Missouri are deserving of quick survey. The Missouri Supreme Court in Deck v. Missouri, one of four capital cases noted from that jurisdiction this week, grants post-conviction relief. What makes Deck's case so unique is that a new trial was found to be necessary due to trial counsel's failure to object to an erroneous jury instructions. On direct appeal the Missouri Supreme Court denied relief on the same erroneous jury instruction under the plain error doctrine. In reaching the conclusion that trial counsel was ineffective the Missouri Supreme Court sets forth in exquisite detail the difference between plain error review and the Strickland standard for ineffective assistance of counsel. The Virginia Supreme Court in Thomas v. Virginia likewise reverses. The Thomas court ordered a new trial as the court below used the wrong standard in its determination of a motion for a change of venue. The court, after granting the appellant a guilt phase reversal, notes in dicta that the prosecution during any new penalty phase may introduce evidence from any person "who may have relevant victim impact testimony" and would not be limited merely to those persons specifically enumerated by statute. In a stunning denial of relief out of Texas, a panel of the Fifth Circuit in Tennard v. Cockrell explores the role of Texas's special questions & mental retardation. A split panel holds Petitioner "did not establish or argue to the jury that he was mentally retarded" as the witness & counsel never actually used the word "retarded" in front of the jury. The panel reaches these conclusions despite testimony at trial that indicated Tennard has an IQ of 67 & that trial counsel in closing repeated several times the fact his client had a low IQ. In the alternative, the panel holds, the petitioner "made no showing at trial that the criminal act was attributable to this severe permanent condition." [Note: The Death Penalty Information Center has developed a comprehensive guide to some mental retardation issues - http://www.deathpenaltyinfo.org/dpicmr.html.] In the final hot listed case, California v. Hillhouse, the California Supreme Court clarifies the use of the kidnap-murder special circumstance in that state. Although striking the aggravator of kidnap-muder, the Court upholds the sentence of death based on the existence of other aggravating circumstances. The Court based its striking of the aggravator on insufficiency of the evidence. Two other cases deserve a quick mention. In Benn v. Lambert relief is had on the government's failure to turn over exculpatory information in this Washington capital case. In Smulls v. Missouri the Missouri Supreme Court has affirmed a racially charged capital case that, in the words of the dissent, has lead to "the fairness and impartiality of the Missouri judicial system [being] repeatedly called into question." Continuing with the theme of mitigation this week portions of Craig Haney's, VIOLENCE AND THE CAPITAL JURY: MECHANISMS OF MORAL DISENGAGEMENT AND THE IMPULSE TO CONDEMN TO DEATH, 49 STNLR 1447, July 1997, is presented in the Focus section. Haney explores the necessity to humanize a client accused of capital crimes in the eyes of the jury if their life is to be saved. A correction is noted this week. Last week's edition went out prior to a final read through and factual double check. Two corrections are noted to the coverage of Cockerham v. Cain most notably reporting that case as a capital case, Cockerham, in fact, is a noncapital case. Since the last edition the following have been executed. March 6 Jeffrey Tokar MissouriExecutions slated and considered likely for March & April 2002: MarchThis week's edition is at http://www.capitaldefenseweekly.com/archives/020304.htm
Four cases earn a hot listing this week. In Hain v. Gibson the Tenth Circuit upheld on the merits a death sentence for a crime committed as a juvenile. Key to the breadth of this opinion, the Court held that international human rights treaties and law are inapplicable in U.S. federal courts save specific enabling language by Congress. Put another way, the federal courts can not entertain claims relating to violations international human right standards. In light of the Supreme Court's recent Atkins v. Virginia cert grant & their prior interest in the issue of juvenile executions during recent terms, such as that expressed by the various orders entered in Domingues v. Nevada (though cert was not granted in that matter), Hain is an excellent candidate for certiorari. The Illinois Supreme Court in Illinois v. Fuller (one of two cases it reversed this week) revisits the bane of every first year criminal law student, mens rea. When charging the jury in the penalty phase the trial forget to include the element of mens rea. Even though trial counsel failed to object, under the plain error doctrine of that court, a reversal was required as the element of knowledge or intent was never put to the jury in either phase of the trial. In what some may take as a sure sign of the closing of the age, the Fifth Circuit in Cockerham v. Cain granted relief in a capital case. The Fifth Circuit held that jury instructions, under Cage v. Louisiana, permitted the possibility of a "conviction based on a lesser degree of proof than required by the Due Process Clause." The court granted relief by sidestepping a potential Teague/retroactivity problem holding that the out-of-time appeal to the state supreme court on the Cage issue reset the date that "finality" would be determined. The Ninth Circuit's grant of relief in Caro v. Woodford, marks the fourth and final hot listed case of the week. The panel holds, in a split decision, that counsel was unduly impuissant in failing to investigate the effects of neurotoxic poisoning from certain now banned (?) pesticides. The damage done to the mind of a person exposed to neurotoxins, the majority notes with heavy quotes to Lord Blackstone, may well have convinced a jury to spare Caro's life despite the heinous nature of the crime. Finally the impact of neurotoxins from pesticides were sufficiently known as to place counsel on notice about the possibility of neurological damage. Finally, Alexander Williams was granted clemency clemency by the Georgia Board of Pardons and Paroles on February 25. A spokeswoman for the Board stated that Williams's mental illness, his status as a juvenile offender, and his history of abuse as a child were factors leading to the Board's decision to commute his death sentence to life without parole. The Board received many pleas for clemency, including those from the United Nations Commission on Human Rights, the European Union, the American Bar Association, and former First Lady Rosalynn Carter Focus is taking a one week break & will return next week, as will news from Florida about the minimum standards for counsel. Since the last edition there have been no domestic executions. Feb 28 Monty Delk (Texas)Executions slated and considered likely for March & April 2002: March
April
This week's edition is at http://www.capitaldefenseweekly.com/archives/020225.htm
A new stay by the United States Supreme Court leads off this issue. The Supreme Court in Miller-El v. Cockrell has granted a stay on four separate issues including, most notably, use of race in jury selection (Batson) & the deference due state court factual adjudications. Miller-El marks the fourth stay granted by the Supreme Court in a pending execution since the start of the year. The Supreme Court section lists the issues in Miller-El , the issues in the other cases where stays have been granted in recent weeks, as well as the links to the various briefs. Concerns over quality of counsel & the legality of forcefully medicated the condemned to competency have also earned a stay in Georgia Board of Pardon and Parole on an imminent execution date in of Alexander Williams, however, information remains scant at this time. Olive v. Maas is the highlighted case of the week. Olive challenged to the manner in which state postconviction counsel are appointed and compensated in Florida. A victory was had on the funding issue and but lost on the two remaining issue. The case has been "Hot Listed" as it provides a rare glimpse into the ethical requirements governing post-conviction counsel &, equally as important, tools for challenging the compensation for counsel. Sharing the hot list this week is Turner v. Calderon. The Ninth Circuit has ordered a hearing on trial counsel's failure to investigate and present evidence of his childhood abuse & long-term drug use. Most notable in Turner is the Court's reminder that counsel may be ineffective for failing to present evidence in the penalty phase relating to the degree of culpability that had http://www.law.depaul.edu/cjcc/staff.aspbeen examined the guilt phase for another purpose, such as mens rea. The Focus section this week covers Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think, 98 CLMLR 1538 (October 1998). Garvey examines in depth those factors that lead jurors to vengeance and to mercy. As you may well know, the electronic version of the Weekly has been & will remain free from cost to the reader. What is not free, however, is the work CUADP (Citizen's United for Alternatives to the Death Penalty) who have serve as one of the leading (if not the leader of,) direct action groups against the death penalty in the United States. CUADP right now is in a difficult financial shape and even the smallest of donations will go along way during the pinch. You can visit them at http://www.cuadp.org or their online pledge page at http://www.cuadp.org/support.html. Finally, an interesting new web resource is noted, The Death Penalty Law Review Center, http://www.law-forensic.com/dp_law_review_center.htm. Run by Craig Cooley, an Investigator with the Illinois State Appellate Defenders, Death Penalty Trial Assistance Unit and law student DePaul University's College of Law, the site provides some great articles that are often difficult to find on various issues relating to the death penalty. Since the last edition there have been the following domestic executions: 19 John Byrd Jr. OhioExecutions slated and considered likely for February & March 2002: 20 Alexander Williams Georgia (stay) MarchThis week's edition is at http://www.capitaldefenseweekly.com/archives/020218.htm
Three cases are hot listed this week. Ohio v. Were leads off the edition with a reversal on concerns about the failure to hold a competency hearing. Failing to disclose a prosecution witness's plea agreement in Conyers v. State finds the Maryland Court of Appeals reversing for Brady error. In the third case, Georgia v. Bell, the Georgia Supreme Court holds a dismissal is required for the state failing to timely bring the accused to trial in a murder prosecution. Part two of Prof. Liebman's examination of the American death penalty in "A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can be Done About It" was released this week. The principal finding of the study is that the high rate of mistakes in death penalty cases are directly related to aggressive overuse of the punishment, the undue politicization of the death penalty, and the continuing influences of race. (http://www.law.columbia.edu/brokensystem2.) In Texas the opposition to the Thomas Miller-El execution is mounting. Strikes by the prosecutors against 10 of 11 black prospective juror in light of a history of such practices are at issue. Dallas County prosecutors, like those in several other large metropolitian areas (most notably Philadelphia) purportedly used manuals advocating striking members of racial and ethnic minorities in capital cases. Continuing with the series on mitigation and mental health issues, Focus this week examines mental retardation. Portions of "Mental Retardation: A Symptom & Syndrome" of S. Netherton, D. Holmes, & C. E. Walker, (Eds.), Comprehensive Textbook of Child and Adolescent Disorders (http://www.uab.edu/cogdev/mentreta.htm), appears this week. The story of death row clergyman Kobutsu Malone, an American-born Zen Buddhist priest, received wider circulation this week. Kobutsu and his Engaged Zen Foundation support death row and general population prisoners through out the country. Kobutsu & EZF's outreach is now in danger. Kobutsu was recently seriously beaten by police at a recent anti-death penalty rally here in the northeast. Due to the severe beating Kobutsu, who has supported his outreach by off-loading trucks, can not now work. The Engaged Zen Foundation, and its corresponding services, are now asking for any help you can offer. http://engaged-zen.org/. EZF is a 501(c)(3). Special thanks to Jeff Gamso for the information on the Leslie Martin stay in Louisiana. Since the last edition there have been the no domestic executions. Executions slated and considered likely for February & March 2002: 8 Leslie Dale Martin Louisiana (stay)This week's edition is at http://www.capitaldefenseweekly.com/archives/020211.htm
The impact of the certiorari grant in Ring v. Arizona. again impacts heavily in this edition. Three additional pending executions have been stayed pending the outcome of Ring. In the first of the cases, Bottoson v. Florida, [cert petition] the United States Supreme Court granted a stay this past Tuesday. In Oken v. Maryland the Maryland Court of Appeals granted a stay of Oken's March execution date in what appears to be concern, at least in part, on the potential applicability of Ring. In the third instance Governor Bush of Florida has called off the scheduled execution of Trease who had dropped his appeals. Additionally there are unconfirmed reports of at least one other lower court holding cases in abeyance or granting stays pending the outcome of Ring v. Arizona that have not been sourced at the time of relase of this edition. The Maryland Court of Appeals stay is important as it suggests a potentially greater impact from Ring/King than merely those on death row in Alabama, Arizona, Colorado, Delaware, Florida, Idaho, Montana, and Nebraska rather it suggests every state in which a judge has more than a mere ministerial role (those states in which a jury's role is merely a recommendation). Finally, as the Supreme Court has granted stays in cases other than Ring and as a stay takes five votes to grant instead of the four needed for certiorari, the chances of success for Mr. Ring appears very favorable. As materials relating to Ring and the related Apprendi cases are gathered, they will be posted at http://capitaldefenseweekly.com/apprendiissues.html. Hot listed this week are two death sentence reversals. In Silva v. Woodford, the Ninth Circuit explores counsel's obligations even where a client puts limits on what he wants presented & even invstigated in terms of mitigation. In North Carolina v. Jonesa a reversal is had on a litany of improper prosecutorial statements in closing. Continuing on the theme of mitigation and mental health, "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes, University of Texas Law Review, Winter 1997, is again examined this week examining how to find and pay for mitigation experts, as well as basic suggestions for their utilization. Tomes' provides an excellent measuring tool for what constitutes an effective penalty phase presentation. Since the last edition there have been the following domestic executions: 2/06 Michael Owsley
MO Lethal Injection
Executions slated and considered likely for February & March 2002: 8 Leslie Dale Martin Louisiana March Ring v. Arizona, discussed in passing in the last edition, appears to be blooming into a potential landmark decision by the Supreme Court. The Question in Ring is: Walton v. Arizona, 497 U.S. 639 (1990), held that Arizona’s capital sentencing statute, which assigns solely to the trial judge the responsibility for making the findings of fact which are necessary to subject a defendant to a death sentence, does not contravene the Sixth Amendment’s jury-trial right as made applicable to the States through the Fourteenth Amendment’s Due Process Clause.Ring Cert Petition (word document) (pdf file) // Ring Opposition brief (word document) // Ring Cert Reply (word document) (pdf file). (For a more complete discussion see, http://capdefnet.org/hat/contents/recent_filing/cert_pet_granted/recent_cert_grants.htm, which discusses the cases impacting on capital litigation this term, including Ring). Following Ring the Supreme Court halted the Florida execution of Amos King pending disposition of a certiorari petition raising an Apprendi/Ring issue. The potential breadth of Ring will be known in the next few weeks as several petitions in which the issue has been raised, such as Linroy Bottoson (Florida - same issues as King), or possibly raised, such as John Byrd Jr. (Ohio - potential issue if Ring is broadly interpreted as the trial court, in accepting the jury's recommendation, may have relied on nonstatutory aggravating circumstance), reach the Court. Three Supreme Court cases also need brief mention. In United States v. Arvizu the Court again watered down Fourth Amendment protection holding that an officer may rely on combination of otherwise innocent observations to briefly pull over a suspect vehicle. In Kansas v. Crane the court placed limits on its earlier decision that permitted "detention" for those convicted of sex crimes even after their sentences have run. Finally, in Lee v. Kemna the Court revisited what constitutes adequate state grounds to bar federal habeas review. In the Focus section this week the theme of mitigation and mental health is examined in "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes. The Tomes' "snippet" provides a solid introduction as to why mitigation matters & how to make it more impactful. Several requests have come in for the United States v. Plaza briefs (admissibility of fingerprints) and the Harvey v. Horan briefs (DNA), should any one be able to forward them they will get out to the respectively parties. A special thank you for helping to pull together the information on Ring & other materials this week to Julian Killingley (Ring Briefs & the work of Amicus), Thomas Saunders (Ring Briefs), Carol-Ann Roberts (if I started listing all she does I would be here for a week), Julia Pearson (Ring), Rick Halperin (Ring, Amos, Bottoson, & all the rest) & Michelle Brace (Harvey v. Horan). Finally, a few house keeping issues. The King & Bottoson state court materials will be uploaded this weekend. Last week's missed due to hardware failure. Please excuse the dust as the website is being "fine tuned" to provide a more usable layout & beef up a few sections (notably the briefs section). Lastly, some Findlaw "blurbs" have returned this week, most, but not all have been screened for accuracy, please use them with caution. Since the last edition there have been the following domestic executions: 16 Jamarr Arnold
Texas
Executions slated and considered serious for February 2002: 5 Linroy Bottoson
Florida
This week's edition is at http://www.capitaldefenseweekly.com/archives/020128.htm
In the one case hot listed this week, Hall v. Texas, the Texas Court of Criminal Appeals has levied their opinion on the execution of the mentally retarded. Coming as a surprise to no one, the Hall Court has held that the execution of a person with mental age of an eight to ten year old does not offend either the United States Constitution constitution or Texas's Bill of Rights. The Supreme Court has granted certiorari in a capital case, Ring v. Arizona, No. 01-488. The U.S. Supreme Court has agreed to decide the constitutionality of having a judge, rather than a jury, decide the sentence in a death penalty case. The case will apply Apprendi v. New Jersey, in which the Court held that a judge could not make findings which would increase a defendant's sentence beyond the maximum, since that amounted to an additional conviction. The D.C. Federal Defenders and the New York State Defender's Association have gathered an incredible database on and library on Apprendi issues, that should be visited for resources should the need so arise. Kicking off what will be several weeks of a focus on mental status and mental health issues are excerpts from the amici curiae brief in McCarver v. North Carolina of American Association of Mental Retardation, et al. Overviews of mitigation, mental status, and possibly neuropharmocology, will be covered in upcoming editions as well as case law as to what counsel must do in order to meet their Sixth Amendment obligations. Several people have requested the briefs in United States v. Plaza concerning the term "match" as it relates to fingerprints. Should you have the briefs and be willing to share please feel free to forward at karl@karlkeys.com OR fax to 617.249.0219. Finally, the twenty-fifth Anniversary of the Gary Gilmore execution that marked the resumption of capital punishment was noted on January 17, 2002. In commemoration, seven activists were arrested after unfurling a 30-foot-long banner that read "STOP EXECUTIONS." Immediately after the banner was unfurled, Supreme Court police rushed the protesters and ripped the banner from their hands. All seven remain in jail at the time of mailing. Since the last edition there have been the following domestic executions: 9 Michael Moore
Texas
Executions slated and considered likely for January 2002: 24 Amos King
Florida
This week's edition is at http://www.capitaldefenseweekly.com/archives/020114.htm
The Supreme Court's sweeping holding in Kelly v. South Carolina leads off this edition. The Court in Kelly expanded the prior holdings in Simmons v. South Carolina and Shafer v. South Carolina to hold that whenever the government puts the defendant's "dangerous character" into question jury instructions on the alternative of life without parole must be given. The breadth of the impact of this decision is noted with, just in this edition alone three cases, Sallahdin, Bracey, and Lambert are potentially impacted by this decision. Three other cases of note are also had this week. In Sallahdin v. Gibson the Tenth Circuit has remanded on the question penalty phase ineffectiveness where trial counsel failed introduce evidence of steroid use. A non-capital district court opinion, United States v. Plaza, has held that expert witnesses may not use the term "match" when discussing fingerprints. Finally, a very troubling unpublished opinion, Robinson v. Gibbons, has upheld a sentence of death where the lone hold out and only African-American on the jury was "harassed, coerced, physically threatened and racially intimidated" into changing her vote to death. The "Focus" section this week is a look ahead at the coming year including trends to watch, the Supreme Court docket of cases that may impact criminal law and prisoner rights (and where possible questions presented and briefs), as well as upcoming training events. Please note that Charlie Alston has won clemency in North Carolina and had his sentence commuted to life in prison without parole. More to follow on this the second commutation in as many months in North Carolina. For more complete news on Charlie Alston see the websites of the National Coalition Against the Death Penalty website (http://www.ncadp.org/) and People of Faith Against the Death Penalty (http://www.pfadp.org). Since the last edition there have been the following domestic executions: 9 Michael Moore
Texas
Executions slated and considered likely for January 2002: 16 Jamarr Arnold
Texas
Finally, a special thank you to Jeff Gamso for the United States v. Plaza decision. This week's edition is at http://www.capitaldefenseweekly.com/archives/020107.htm
Five cases are hot listed in this edition, four of which are victories. Seven additional cases are listed as victories. In the first two cases Ex Parte Kerr and Ex Parte Graves, the Texas Court of Criminal Appeals examined when, if ever, a second "application" for postconviction relief may be entertained. The Kerr Court concluded that since an attack was made on the state post-conviction statute and not Kerr's conviction that the prior application was in fact not an application for purposes of "successor" status. Graves court went on to conclude that because there is not a federal or state constitutional right (or even a statutory right) to postconviction counsel, claims of ineffective assistance of postconviction counsel can not be entertained. When read together, Kerr/Graves, appears to stand for the proposition that a very narrow door exists in Texas to entertain successive postconviction petitions; where the initial petition is such that it utterly fails its purpose, i.e., to attack either the conviction or sentence, then a successive petition may be entertained. As Graves was a single justice majority expect this issue to be repeatedly reexamined as the court explore where the Kerr/Graves line is to be drawn. In a rare federal court victory out of Delaware, the Third Circuit has granted relief in Riley v. Taylor. Judge Sloviter, writing for a majority of the the court en banc, holds Caldwell error requires that penalty phase verdict to be stricken. In a 6-5-1 plurality opinion the Court also grants guilt phase relief on the issue of prosecutorial use of race based peremptories in violation of Batson (See Pennsylvania v. Basemore reaching similar conclusion in a Pennsylvania capital case) In Missouri v. Mayes, the Missouri Supreme Court (in a case with very broad potential application) has concluded that failure to give a requested "no adverse inference" instruction in the penalty phase was reversible error. In the final "hot list" Kansas v. Kleypas, the Kansas Supreme Court has stricken all of that state's death sentences. In examining the first death sentence since reinstatement, the state Supreme Court was forced to conclude that the "standard" jury instructions in the penalty phase impermissibly suggested that mitigation had to be found unanimously. In light of the length of an already hefty edition, the 2002 preview will be set off until the next edition. One final case MUST be read for anyone whose practice consists of private bar CJA appointments. The Fifth Circuit has clarified payment for state clemency proceedings in Clark v. Johnson. The Clark panel has held, despite the apparent clear language of the statute, that clemency proceedings are not compensable. Since the last edition there have been no domestic executions. Executions slated and considered likely for January 2002: 9 Michael Moore
Texas
This week's edition is at http://www.capitaldefenseweekly.com/archives/020101.htm
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