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

• Robert W. Jackson, III v. Danberg,  2010 U.S. App. LEXIS 2100 (3rd Cir 2/1/2010) Panel upholds Delaware letha l injection protocols but takes it to task for its “blitheness.”

• James Phillip Barnes v. State, 2010 Fla. LEXIS 172 (FL 2/4/2010) Mr. Barnes waived counsel, entered a plea of guilty, and presnented no mitigation at trial.  On appeal, no error is found, save for the failure to allow Mr. Barnes to review the PSI in this matter, which the Court holds, if error, was harmless error.

• Douglas Tyrone Armstrong v. State, AP-75,706  (Texas Crim App 1/27/2010) Relief denied on a grab bag of claims on direct appeal including: (1) “evidence is legally and factually insufficient to support his conviction for capital murder” (2) denial of continuance  “despite his announcement of ‘Not Ready’;” (3) “that the trial judge tacitly removed trial counsel from his defense by denying counsel more time to conduct a complete mitigation investigation;” (4) “that the trial judge erred in denying his motion for a new trial. Armstrong argues that the evidence presented during the hearing was more than sufficient to show that he was deprived of effective assistance of counsel;” and (5) “that the trial judge ‘erred by denying [his] motion to suppress the evidence obtained as a result of his detention because there existed no reasonable suspicion to conduct the investigative detention.”

• Johnson v. State, No.  —- (Texas Crim App 1/27/2010) (unpublished) Will have in the full length edition

• Huggins v. State,  2010 Fla. LEXIS 142 (FL 1/27/2010) State’s motion to dismiss unauthorized appeal granted.

• Ex parte Hunter, No.  —- (Texas Crim App 1/27/2010) (unpublished)Application for habeas corpus dismissed as an abuse of the writ.

• Ex parte Broxton, No.  —- (Texas Crim App 1/27/2010) (unpublished) Summary denial of postconviction application without substantive discussion

Noncapital

• Peterson v. Grisham, 2010 U.S. App. LEXIS 2116 (10th Cir 2/1/2010) (noncapital) “Ronald Williamson and Dennis Fritz were falsely accused, convicted and were serving death and life sentences respectively for Carter’s murder, when they were exonerated by DNA evidence in 1999. Grisham, Scheck and the former accused Dennis Fritz all wrote books concerning the failures of the DA and police in prosecuting and convicting the wrong men for the crime. Robert Mayer wrote his book about a similar case that also occurred in Ada. To put it mildly, descriptions of plaintiffs contained in the stories were not flattering. The plaintiffs sued, claiming  “a massive joint defamatory attack” by the defendants. The Court of Appeals found that the plaintiffs had failed in their second try at a complaint, to state a claim that could be remedied by the court. Under Oklahoma law, for a public official to prove defamation, they must show that false statements that they engaged in criminal behavior were made. Unlike some areas of the world where nearly any comment about an official can land the speaker in hot water, laws such as this provide even more leeway for discussion about officials and their performance of their public functions. According to the Court’s opinion, the plaintiffs failed to show that the defendants had made such false statements.” [h/t  Tonya Roth]

• Bolarinwa v. Williams, 2010 U.S. App. LEXIS 1886 (2nd Cir 1/28/2010)(noncapital) Mental illness can serve as a ground for equitable tolling of the one-year statute of limitations for filing habeas petitions

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

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 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.

KCADP has more.

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 

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.  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).  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.

As I indicated at the outset, I need to read it a few more times & this post will get updated once I get that chance.