This week’s edition is here.  From the intro.

Missed last week, but leading off this edition, is Phillip Anthony Summers v. State from the Oklahoma Court of Criminal Appeals.  The issue  in Summers on appeal revolves around the trial court’s exclusion of the testimony by a witness that he ordered the murders for which Mr. Summers was convicted, at least one of the killers told him the details of the murders after it happened, and that the persons who did the hit did not include Appellant. Holding that the “right to a fair trial and to the opportunity to present a complete defense was unconstitutionally violated by the trial court’s wholesale exclusion of the testimony” a divided Court holds that the trial court erred in excluding the testimony.  “Furthermore, given the highly contested nature of the evidence presented and the limitations of the State’s evidence—in particular, no forensic evidence linking Phillip Summers to either the crime scene or the murder weapons—this Court cannot conclude that this constitutional violation was harmless beyond a reasonable doubt.”

The Florida Supreme Court on Thursday stayed the execution of David Johnston so a hearing can be held to determine whether he’s mentally retarded. The justices issued the 5-2 decision just hours after hearing oral argument. The opinion is not yet available

In the news, the next possible wave of challenges to lethal injection,  Ringo v. Lombardi, Case No. 09-4095-CV-C-NKL, a federal district court judge in the Western District of Missouri on Tuesday  denied a motion to dismiss in a challenge to that state’s lethal injection statute.  The suit uses a new avenue to challenge lethal injection, “a declaratory judgment that Missouri’s lethal injection protocol violates the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 801, et seq. (“FDCA”), as well as the Controlled Substances Act, 21 U.S.C. §§ 301, et seq. (“CSA”).”  Mark this one as one to watch.

Last week State District Judge Kevin Fine found the Texas death penalty scheme unconstitutional.  Mark Bennett, Defending People,  has made available materials relating to that order.  “The original motion that Judge Fine signed is here. On Friday, Judge Fine had a discussion with the prosecutor and defense attorneys in the Green case, clarifying his order. The first part of the transcript is here; the second part, here.” [h/t Stand Down].   Tuesday the judge reversed himself, although the order, at time the send button was hit, could not be located.

In Louisiana, an Orleans Parish Criminal District Court judge  granted a new trial for Michael Anderson finding  prosecutors withheld a two-hour videotaped interview with the sole eyewitness to the crime. Washington state recently changed its execution method to a single drug lethla injection. DPIC notes that “on March 3, a federal District Court barred the re-prosecution of former Ohio death row inmate Joe D’Ambrosio for the murder of Tony Klann over 22 years ago.” ABCNews is questioning whether bad autopsies are leading to wrongful convictions in Tennessee.

As always, thanks for reading. -k

[update] First sunny non-cold set of days in weeks, a little too much frolic, a little too little writing;  the weekly will (hopefully) run tomorrow. After the jump, a sketch of this week’s edition:

Continued…

[update] In news of the next possible wave of challenges to lethal injection,  Ringo v. Lombardi, Case No. 09-4095-CV-C-NKL, a federal district court judge in the Western District of Missouri on Tuesday  denied a motion to dismiss in a challenge to that state’s lethal injection statute.  The suit uses a new avenue to challenge lethal injection, “a declaratory judgment that Missouri’s lethal injection protocol violates the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 801, et seq. (“FDCA”), as well as the Controlled Substances Act, 21 U.S.C. §§ 301, et seq. (“CSA”).”  Mark this one as one to watch.

Some of the pleadings include:

Complaint /  Response to Motion to Dismiss / Surreply to Motion to Dismiss

The weekly edition is now available. From the intro:

Leading off this edition is the stunning opinion from the Texas Court of Criminal Appeals in Ex parte Charles Hood. The Hood Court appears to go out of its way to grant relief on a Penry claim that potentially had substantial procedural problems, and likewise went out of its not to mention the affair between trial court judge and prosecutor. Specifically, a sharply divided plurality grants relief as the jury instructions limited the ability of the jurors to fully consider in mitigation issues like the condemned’s learning disabilities, being hit over the head with a pipe for discipline, and had a that he had a truck back over him as toddler causing developmental issues and breaking his legs.

A split Ninth Circuit panel in Fred Lawrence Robinson v. Schriro granted sentencing relief on two claims. The Ninth Circuit Blog notes that the Robinson panel “concluded that the aggravator of cruel, heinous, and depraved was arbitrarily found here because no evidence was presented that the petitioner was in the house when the murders took place; nor that he had ordered the murders; nor that he even could have foreseen the murders.” The panel also granted relief on ineffective assistance of counsel claims “where counsel failed to investigate petitioner’s background, childhood, mental and emotional abuse, his low IQ, his mental condition, nonviolent nature, and his potential for rehabilitation.”

Closing out the favorable decisions is Alwin C. Tumblin v. State from the Florida Supreme Court. At trial the State was permitted to introduce a witness’s prior consistent statement through the testimony of a police officer. That officer also essentially vouched for the State’s witness’s credibility. The witness was critical to the State’s obtaining a guilty verdict against Mr. Tumblin. The trial court subsequently struck the testimony and gave a curative instructive. The vouching, however, went too far and the conviction must be vacated.

The Death Penalty Information Center collects relevant death penalty articles that have appeared in print and on media Web sites in 2009 here. A high profile Philadelphia death penalty case (two dead retired cops) resulted in a life sentence and the jury foreman has gone public with the rationale behind the verdict. Over 1,000 human rights activists from over 100 countries recently gathered in Geneva, Switzerland, for the 4th World Congress Against the Death Penalty.

Note that last week’s edition was mistagged with the week of the 15th available here and the 22nd here.

Lastly, in a prior edition I mentioned I was likely to be on trial until Easter. Fortunately the State, after my client spent 4+ years incarcerated, dismissed all charges. Put another way, here and over at the daily blog, the pace should pick up for the coming weeks As always, thanks for reading. -k

Looking at the cases for the upcoming edition after the jump.

Continued…

The weekly edition is back to the regular schedule for the foreseeable future. As noted in the last edition I anticipate being in the trial, and hence consuming my life, from now until at least Easter.  Wednesday the prosecution dismissed the case against my client.  Jury selection was scheduled to begin Tuesday.

The trial was in fact a retrial ordered by the local supreme court in State v. Schnabel, 196 N.J. 116..  The client spent close to half a decade locked up in jail and prison.  Prior appellate counsel, both private bar (Richard Lehrich) and public defenders (Michael Jones & crew),  did a superb job in obtaining this result.

Charles Dean Hood wins Penry relief in TX CCA. The decision from the State Court of Criminal Appeals did not mention the
affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.

The weekly edition is now available. From the intro:

Leading off this week is another capital GVR.    In Thaler v. Anthony Haynes the Court held “that a trial judge need not personally observe a potential juror’s behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor’s claim that she was excluded because of her demeanor under questioning.  No prior ruling of the Court, the Justices said in an unsigned, apparently unanimous opinion, requires that the judge have been on hand during jury selection in order to evaluate a claimed violation of Batson v. Kentucky, when the use of a peremptory strike was based on a claim of juror demeanor.”

Elsewhere, the Office of Capital Writs, created by the Texas Legislature in 2009, is looking for a director of its Austin Office. Hank Skinner’s execution date has been reset for late March despite growing concerns of his potential factual innocence.  DPIC notes that “in an historic decision, a panel of judges outside of the state’s court system unanimously voted to exonerate and release Gregory Taylor, a North Carolina man who was imprisoned for nearly 17 years for first-degree murder.” DPIC also examines “Messages of Life from Death Row features correspondence from Texas death row inmate Roger McGowen to sociologist and writer Pierre Pradervand.. . . [describing] life on death row and point to flaws in the American criminal justice system, especially the arbitrary nature of the death penalty.” Adam Liptak in the New York Times has posted his Sidebar column on the Dean Hood case entitled “Questions of an Affair and a Fair Trial.” The U.S. Department of Justice hosted a two day symposium on indigent defense last Thursday and Friday in Washington, DC; StandDown has the details. ACS is circulating an “Issue Brief” by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, entitled “Hire a Lawyer, Escape the Death Penalty?” looking at Harris County and the apparent failure of indigent defense in capital cases.

As the recession has grown worse so have many public defender’s dockets. My docket has been no different and helps explain the slow down here and over at the daily blog.  Adding to that, over the course of the last few weeks and for the next month, or so, I’ve been prepping and, starting next week, trying a fairly complex sexual assault case remanded for new trial by my state Supreme Court, State v. Schnabel, 196 N.J. 116.   I’m hoping to have editions “out” for at least one or two of those weeks, but my apologies in advance for those editions being very abbreviated and no guarantees as to schedule. As always, thanks for reading. -k

Another GVR per curiam.  Via SCOTUSBlog:

Resuming its increased use of deciding cases without full briefing or argument, the Supreme Court ruled summarily on Monday that a trial judge need not personally observe a potential juror’s behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor’s claim that she was excluded because of her demeanor under questioning.  No prior ruling of the Court, the Justices said in an unsigned, apparently unanimous opinion, requires that the judge have been on hand during jury selection in order to evaluate a claimed violation of Batson v. Kentucky, when the use of a peremptory strike was based on a claim of juror demeanor.  The ruling came in the case of Thaler v. Haynes (09-2730).

The opinion is here.

In light of a heavy briefing schedule in a case that’s scheduled to start trial on March 1st, I’m running late this week.  Initial look at the new cases after the jump

Continued…

Hank Skinner’s execution date has been reset for late March.

via StandDown

The Office of Capital Writs, created by the Texas Legislature in 2009, is on about looking for a director.  Here’s the posting:

Job Posting:  Director, Texas Office of Capital Writs Brand new Texas Office of Capital Writs seeks a Director.  The state-funded office, with a $1 million approximate annual budget, will be based in Austin.  This is a capital post-conviction office, charged with representing death sentenced inmates in state post-conviction habeas corpus and related proceedings.  The Director will be responsible for opening the office, hiring, and supervising the staff and the litigation.  This is an extraordinary opportunity to make a difference in Texas.

By the terms of the legislation establishing the Office, the Director must “exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases, as described by the Guidelines and Standards for Texas Capital Counsel.”  See the legislation establishing the Office; 69 Tex. B. J. 966 (2006) (Texas Guidelines and Standards for Capital Counsel).

Desired Qualifications. Membership or eligibility for admission to the Texas Bar;. Significant experience in the defense of death-sentenced inmates;. Qualified to serve as lead counsel in a Texas capital habeas case (see http://www.courts.state.tx.us/courts/ajr.asp );. Commitment to the highest level of quality representation of indigent criminal defendants;. Experience training and supervising other attorneys; . Experience managing and administering an office, ideally in a public defender agency setting (e.g., hiring staff, budgeting, financial reporting, creating effective practices and policies, and dealing with other agencies whose work intersects with that of the Office, such as the courts).. Familiarity with and connection to the national capital defense community, such that s/he will have immediate and ongoing access to the developments and resources necessary to facilitate the highest quality legal representation;. Experience with and commitment to a client-centered approach; . Experience with and commitment to a team-based approach that includes attorneys, mitigation specialists, investigators, experts, and staff; and. Experience and training concerning mental health issues that commonly arise in quality capital defense litigation;

Salary:  $89,682 to $147,976, DOE.

How to Apply:
By March 1, 2010, Applicants should submit Application, a statement of interest and a resume / CV (with references noted) to: Maurie Levin at mlevin (at)law (dot) utexas (dot) edu.

Earlier coverage of the Office of Capital Writs begins with this post.

From this week’s edition:

Leading off this week is Thomas Robert Lane v. State from the Alabama Court of Criminal Appeals.The decision is relatively straight forward, relief granted as the trial court infringed on the right of the choice of counsel under the Sixth Amendment.  Specifically, the Lane Court holds that because trial counsel was not a necessary witness it was error to remove him. The Court goes further and holds that “there is no difference between retained counsel and appointed counsel when it comes to the right to continued representation by counsel of choice.” As such, removal of even a court appointed attorney, is “structural error” not subject to harmless error analysis.

The Louisiana Department of Public Safety and Corrections recently sued every inmate on death row, in an effort to block any one of them from challenging the state’s lethal injection procedures DPIC reports that in South Carolina the state’s longest-serving death row inmate, Edward Lee Elmore, appears to have been spared from execution when a state circuit court ruled he suffered from mental retardation.  In both Kansas (SB 375)and  South Dakota (HB 1245) legislation is winding its way through the legislature to repeal the death penalty in those states. In Nebraska that state’s governor recently “signed off” on new lethal injection protocols. The American Psychiatric Association has released a beta version of its Diagnostic and Statistical Manual of Mental Disorders at its  DSM-V website.

In the “notable loss” category falls Larry Swearingen v. State.  In Mr. Swearingen’s matter there is untested biological evidence.  As it has done in innumerable other capital cases, such as the upcoming execution of Hank Skinner, the Court of Criminal Appeals has simply refused to permit testing of readily available biological evidence that could support innocence. Retired Federal District Judge H. Lee Sarokin at Huffington Post posted “Thwarting Justice by Denying DNA Testing” in response. Steve Hall has a fascinating piece on Texas and the problems it faces with executing the innocent.

As always, thanks for reading. -k

Leading off this edition:

No new opinions of note are had this edition.

In the news, NPR’s Fresh Air has an exceptional piece interviewing David Dow discussing his Autobiography of an Execution. In a sign of the times, Gabriel Gonzales returned to the same Bexar County courtroom Monday where, 13 years earlier, a jury had condemned him to die for killing a pawnshop owner during a robbery, this time . Gonzales received life. In Maryland, key changes to the public defender service appear to be working their way through the state legislature. In Pennsylvania the issue of the cost of the death penalty is again causing many community leaders to ask whether the death penalty is worth the cost.

Finally, in the words of DPIC:

Henry Skinner is scheduled for execution in Texas on February 24 despite the lack of DNA testing of critical evidence from the crime scene that could lead to his exoneration.  Skinner has always maintained his innocence of the 1993 murder of his girlfriend and her two grown sons in Tampa, Texas.  At his trial, the prosecution presented the results of selective DNA testing on some of the crime evidence that tended to prove Skinner’s presence at the scene, which was his place of residence, a fact he has never disputed.  But the state has repeatedly refused his request to test other evidence, including material found on the victim, that could point to another suspect.  In addition, an investigation by journalism students from Northwestern University in 1999 and 2000 revealed that a key witness from the trial had recanted her testimony linking Skinner to the crime.  Texas has already executed a number of individuals who may have been innocent, leaving a cloud of doubt on the fairness of the criminal justice system.  By conducting relatively routine DNA tests before his execution, the doubts surrounding Skinner’s case could be resolved one way or the other.

Read more .

As always, thanks for reading. -k

So far we’ve spotted only a handful of decisions of note for the next email edition, all of which are after the jump Continued…

Where DNA evidence exists in a capital case common sense suggests it should be tested.  Texas, in Hank Skinner’s case, says no. In a little over two weeks Texas is scheduled to kill Hank Skinner despite large quantities of potentially exculpatory DNA evidence readily available for testing.

The State at trial had a heavily circumstantial case against Mr. Skinner. Adding to an otherwise mediocre case was the allegation by ex-girlfriend, Andrea Joyce Reed, that Mr. Skinner confessed to her the murder of his then current girlfriend, Twila Busby,  and her children.  The State and the Defense chose not to test certain key physical evidence for the presence of DNA.

At trial, and since, Mr. Skinner asserted his factual innocence.  Specifically, the Defense posited at trial, and on appeal, that Ms. Busby likely was killed by Robert Donnell, her maternal uncle.  An “ear witness” to the crime purportedly indicates that the male voice he heard that night was not Mr. Skinner.  The State’s key witness Ms. Reed, post-trial asserted she was coerced into falsely testifying against Mr. Skinner.

Through a story of bizarre, Kafkaesque rulings the DNA evidence in the case has never been tested.  Could the DNA merely confirm the State’s theory of the case, absolutely.  Could the DNA also exculpate him, yes.  After February 24, 2010, however, it may not matter as that is the date Mr. Skinner is scheduled to be executed.

More here &  action item here.

I should note that due to circuit precedent any avenue for federal relief, save a currently pending writ of cert to the United States Supreme Court, seems unlikely, despite Mr. Skiner being represented by one of Texas’ most capable capital postconviction specialists, Rob Owen.  His thought on not testing the DNA? “The idea that we’re going to not find out, that’s … irresponsible,” he says.

The Texas Tribune has also written on Mr. Skinner’s case: Case Open /  Case Open: The Investigation / Hank Skinner interview

From the weekly:

Three favorable cases are noted since the last edition, State ex rel. Andrew Lyons v. Lombardi (Missouri), Joseph E. Corcoran v. Levenhagen (Seventh Circuit), and Leon Winston v. Kelly (Fourth Circuit).

The Missouri Supreme Court’s grant of relief in State ex rel. Andrew Lyons deceptively appears to be a rather straightforward Atkinsgrant, however there is a twist. “Although the statute does not specify any particular method for proving this element, the parties presented evidence of Lyons’ IQ scores.4There were four IQ tests. The results ranged from 61 to 84. Lyons’ expert presented evidence that reconciled the variance. The master concluded that this expert’s testimony was the most credible and concluded that Lyons’ IQ fell within the range of 61 to 70.”  “The state vigorously notes the lack of an IQ test result from prior to age 18 and the scant school records and other evidence with respect to the adaptive behaviors.. . .A purpose of requiring documentation is to diminish the possibility a defendant will fabricate or exaggerate the symptoms of mental retardation to avoid punishment. The records that Lyons presented and the testimony received are sufficient for the master to conclude that Lyons’ conditions were not a recent fabrication and that they were documented prior to Lyons attaining 18 years of age.”

On remand from the SCOTUS, the Seventh Circuit’s grant of relief in Corcoran, fortunately, surprised few.    “The trial court erred in using in its “weighing” calculations non-statutory aggravators in contravention of state law.”  “Nothing in this opinion prevents Indiana from adopting a rule [ ] permitting the use of non-statutory aggravators in the death sentence selection process.”

Finally the Fourth Circuit in Winston remands for a hearing on Mr. Winston’s Atkins claim.   The panel holds the district court erred in refusing to consider Petitioner’s proffered evidence of mental retardation as the evidence failed to change the nature of Mr. Winston’s claims and because counsel diligently sought out the information sought to be brought in to the record. An interesting discussion for habeas wonks on the default and factual development in state court. Hopefully, the folks at CapDefenseNetwork should have something on the decision in the next few days.

In light of time constraints, I should note that CapDefenseNetwork’s “week at a glance” has updated, as well as its CLE listings, Steve Hall’s StandDown-Texas (including the details of a life verdict following a rare appellate win in Texas & a case we’re watching here with an execution date for reasons that will be expanded upon at the daily blog, Hank Skinner) is a must read daily (and Tuesday morning should be no exception), DPIC looks at costs & the future of North Carolina’s death penalty, likewise Doug Berman has also covered the topic in recent days.

My apologies for an abbreviated issue, however, in light of time constraints it was short or not at all.  As always, thanks for reading. -k

The Third Circuit on Monday upheld Delaware’s lethal injection protocol, Robert W. Jackson, III v. Danberg.

The panel’s opinion concludes:

But whatever one’s personal feelings about the death penalty, no reasonable person disputes that the execution of a human being, no matter how heinous his or her crime, is a most solemn and weighty matter. The record before us reflects an occasional blitheness on Delaware’s part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation to ensure that the implementation of its new protocol does not run afoul of the Eighth Amendment’s proscription of cruel and unusual punishment, but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands.

There is a substantial likelihood this case will be going en banc, so stay tuned.

Monday is the last day to submit comments on KY execution procedures. Please fax comments to Department of Corrections by 4:30 p.m. eastern time on Monday. Number is 502-564-6686. Address them to Amy Barker. Execution procedures can be found at http://kcadp.org/wp-content/uploads/2010/01/Kentucky_death_penalty_procedures.pdf .

KCADP has more.

From this week’s email edition, which is now available:

Leading off this edition is Wellons v. Hall.  In this per curiam opinion, the Court  grants certiorari and remands, in light  Cone v. Bell. As the ABA Journal notes: “[s]ome jurors hearing the case against defendant Marcus Wellons gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts. In a 5-4 ruling, the U.S. Supreme Court in a per curiam opinion ordered the Atlanta-based 11th U.S. Circuit Court of Appeals to reconsider whether Wellons is entitled to discovery and a hearing” in light of the claimed misconduct and Cone.

The Court also decided Wood v. Allen,  which is an odd opinion with an odd lineup of Justices. The Justice Sotomayor majority opinion upholding the death sentence in Wood pulled two Justices (Ginsburg & Breyer) that vote for death only sporadically, and the dissent has the usual swing Justice in capital cases (Kennedy). Curiously, as indicated in section II.A and II.B of the opinion, the Court granted cert to analyze the interplay §2254(d)(2) and § 2254(e)(1).  The Court ultimately decided this case was a bad vehicle for that exploration.   In light of the lineup in Wood, from the Defense perspective, it may be best the Court did not reach how the two provisions of §2254 fit together with the unusually ugly facts of this case.   The decision appears to be unusually fact-driven and I’m not sure why it didn’t get DIG’d in light of that conclusion and leave the  Eleventh Circuit opinion in place and not waste their time with what otherwise is not an overly remarkable lower court opinion (save of course for the parties involved).

The only notable lower court decision is State v. Dale Carter Shackelford. In Shackelford the Idaho Supreme Court upholds the trial court’s grant of relief under  Ring v. Arizona. “Without analyzing whether Ring requires a jury to weigh mitigating factors, this Court finds that the jury was required to find the aggravator, [however']such a finding was not explicit in the first-degree murder verdicts.”

In the news, David Dow, the Director of the Texas Innocence Network at the University of Houston Law Center has written “The Autobiography of an Execution,” being published next month by Twelve Publishers; Prof. Dow has a preview, likewise entitled The Autobiography of an Execution,” at Huffington Post. Ronald Smith, Canada’s only resident on death row USA, is now at the center of  a  lethal injection challenge to Montana’s execution protocol. Texas Court of Criminal Appeals Presiding Judge Sharon Keller has effectively received a pass for her conduct that directly led to shutting the CCA to a lethal injection challenge on the day Baze was granted certiorari by the US Supreme Court.  “Shaken baby syndrome itself is put on trial in Fairfax court” is the title of a recent report in the Washington over whether “shaken baby syndrome” actually exists. In Pennsylvania, the Pittsburgh Post-Gazette looks at the Keystone state’s failed experiment with capital punishment entitled, “Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999.”

As always, thanks for reading. -k