DRAFT EDITION
CAPITAL DEFENSE WEEKLY


Quick preview of the cases that are likely to be covered.   Westlaw & Lexis generally do not have all of the cases from a given  week until Wednesday, which is why the weekly always runs in full at the end of the week.

Leading Cases

Hayes v. Brown, 2005 WL 517853 (9th Cir 3/7/2005)(en banc)(dissent)   Relief granted, en banc, on state's failure to correct witnesses statement that he had not had felony charges dismissed in exchangge for testimony.

Johnson v. State, 2005 WL 563992 (Ala.Crim.App. 3/11/2005) Bad acts evidence should not have been admitted without a limiting instructionsas "in this case the jury may have, without having been instructed otherwise, based its conviction on its belief that Johnson is a person of bad character, we cannot say that Johnson received a fair trial."


Decisions Reversing, Remanding or Otherwise Holding Death in Check

Bigby v. Dretke, 2005 WL 540048  (5th Cir 3/8/2005)  Relief granted on "Penry II error."entencing instruction failed to allow jury to give effect to mitigating evidence and stripped it of vehicle for expressing its reasoned moral response to appropriateness of death penalty, in violation of Eighth Amendment;

Burns v. Warden of Sussex I State Prison, 2005 WL 564114 (Va 3/11/2005) Remand for mental retardation hearing.

Keenan v. Bagley
, 2005 WL 549098 (6th Cir 3/10/2005)  Remand ordered for an evidentiary hearing on equitable tolling.


Decisions Upholding Death

Loggins v. State, 2005 WL 563988(Ala.Crim.App. 3/11/2005)  Finding a technicality to bar relief, imposition of juvenile death penalty upheld.

Slaughter v. State, 2005 WL 562759 (Okla.Crim.App. 3/10/2005) Petitioner's third application for post-conviction relief, motion for evidentiary hearing, motion for discovery, and motion for stay of execution denied, including claims relating to bullet lead comparison, DNA and brain fingerprinting.

People v. Vieira,  2005 WL 517326 (Cal 3/7/2005) Relief denied, save for one death sentence that was imposed on a conspiracy to commit murder count.

Mathis v. Dretke
2005 WL 580234 (5th Cir 3/11/2005) COA denied on claims relating to "five errors: that (1) the refusal to conduct a live evidentiary hearing in the state habeas proceeding violated his due process rights and interfered with the district court's ability to perform its function under § 2254; (2) the trial court violated his constitutional rights by refusing to give an instruction of manslaughter with respect to the killing of Daniel Hibbard; (3) the trial court erred in failing to conduct a competency hearing sua sponte at trial; (4) the prosecution violated his due process rights by withholding impeachment evidence relating to the State's witness Gregory Jackson; and (5) his trial counsel's representation at trial was ineffective and resulted in actual prejudice at his trial and sentencing."

Dickson v. Dretke,  2005 WL 477986 (N.D.Tex. 3/1/2005) Report and recommendation arguing for denial of relief.

State v. Stephenson,  2005 WL 551938 (Tenn.Crim.App. 3/9/2005)

Relief denied at resentencing on issues including: (1)  double counting; (2) failure to charge aggravators in indictment; (3) failure to suppress defendant's statement; (4) admission of testimony from prior trial; (5) admission of certain physial & testimonial evidence; (6) mention of polygraph; (7) prosecution's closing; (8) use of victim impact instruction; (9) refusal to charge on parole eligibility; (10) breaking of juror sequestration; and (11) jurisdiction of trial court to hold a resentencing hearing.

Hill v. Mitchell,
2005 WL 525231  (6th Cir 3/8/2005)  Relief denied most notably on trial counsel's "failure to hire a mitigation psychologist until the day before the mitigation hearing constituted ineffective assistance of counsel." However, "even assuming that the delay in hiring this psychologist amounted to objectively defective lawyering, we agree with the district court that Hill has not shown that the delay prejudiced the penalty phase of his trial—first because the mitigation theory that the psychologist did present (that Hill was suffering from cocaine psychosis at the time of the murder) did not differ in material ways from the one that would have been presented with more preparation and, second, because nine psychological and background assessments of Hill had already been undertaken by the time the mitigation psychologist had been hired and all of them were submitted to the jury during the sentencing hearing."

People v. Smith, 2005 WL 549550 (Cal 3/10/2005)  Relief deneid on claims relating to: (1) failure to remove two jurors under Wheeler; (2)  testimony by a state's  psychologist that the like those at issue were generally committed by sexual sadists;  (3) admission of newspaper articles found relating to child abuse that were found in Appellant's home; (4) admission of expert testimony concerning the experience of child victims of violent sexual assaults;  (5) there is no penalty phase burden of persuasion that would require burden of proof instruction, and  (6) People's reference to Hitler in closing argument was not misconduct.

Jordan v. State, 2005 WL 552382 (Miss. 3/10/2005)  Post-conviction relief denied on claims relating to: (1) evidence relating to blood splatter and the state's “execution-style” theory; (2) ineffective assistance of counsel relating to (a) blood splatter; (b) jury instructions, including HAC; (c) mental health evaluation;  (3) and fundamental fairness as of "all the inmates sentenced to death prior to the change of law announced in Jackson v. State, 337 So.2d 1242 (Miss. 1976), he is the only one who remains on death row. All the other ultimately received a life sentence."

Hodges v. State, 2005 WL 552210  (Miss 3/10/2005)  Relief denied on claims including (1) inflammatory cross by the State; (2)  State's penalty phase closing; (3) admission of prior crimes evidence at sentencing;  (4)  claims of ineffective assistance of counsel at all stage of prosecution; (5) failure to accurately instruct on parole eligibility; (6) failure to adequately charge capital murder in indictment; (7) improper removal of coause; (8) admission of, and bad instructions relating to,"other crimes" evidence; (9) failure to give lesser included charges despite defense request; (10)sufficiency of kidnapping charge; (11) double counting of aggravators; and  (12) avoiding arrest aggravators


Other Germane Cases of Note



Excerpts from Leading Cases

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