This last of August edition sees no appellate “defense wins.” Two federal district court success stories are, however, noted.  In the Eastern District of Michigan, a jury sentenced   Timothy O’Reilly, to life despite during the guilt it having convicted him of murdering an armored car guard during a robbery. In Lubbock, Texas, local press accounts note, “[a] federal judge this week overturned Michael Yowell’s 1999 death sentence, citing ineffective assistance of trial counsel and error by the trial court” as trial counsel “failed to present mitigation evidence during the punishment phase, and Darnell barred a mental health expert from interpreting medical records.”

In the news North Carolina “Judge Forrest Bridges ruled this [week] that Demeatrius Montgomery should not face the death penalty because of a detective’s misconduct during the investigation into the 2007 killings of two Charlotte police officers;” we’re looking for pleadings to share. Kentucky has set September 16 as the date for Gregory Wilson, who at trial notoriously ended up being represented by inexperienced attorneys who were recruited via a request  nailed to the front door of the courthouse, to die. The Virginia Department of Corrections’ plans to end face-to-face visits between death-row inmates and their families died an ignoble death in recent days after prison officials determined the policy wasn’t necessary. The Timothy Cole Advisory Panel on Wrongful Convictions, has issued its report, as well as a separate volume of research, on wrongful convictions and how Texas might correct them.

“A nationwide shortage of several anesthesia drugs has left several states scrambling to find enough doses to carry out lethal injections — potentially delaying executions well into next year.” “Even when a new supplier for the active ingredient is found, FDA approval will be needed.” “Hospira, based outside Chicago, the sole U.S. manufacturer of sodium thiopental, says manufacturing problems have hindered production of the drug.”

As most know, Troy Davis lost in the district court on original writ proceedings.  The district court has made available Judge Moore’s ruling: Part I and Part II.

DPIC notes “[t]he latest edition of the NAACP Legal Defense Fund’s “Death Row USA” shows that the number of people on the death row in the United States is continuing to slowly decline, falling to 3,261 as of January 1, 2010.  The size of death row at the start of 2009 was 3,297.  In 2000, there were 3,682 inmates on death row.  Nationally, the racial composition of those on death row is 44% white, 41% black, and 12% latino/latina. California (697) continues to have the largest death row population, followed by Florida (398) and Texas (337). Pennsylvania (222) and Alabama (201) complete the list of the five largest death rows in the nation. Death Row USA is published quarterly by the NAACP Legal Defense Fund. The report contains the latest death row population figures, execution statistics, and an overview of the most recent legal developments related to capital punishment.”

As always thanks for reading.  – karl

8.30.2010

Defense

• Timothy O’Reilly, having been convicted of murdering an armored car guard during a robbery, was sentenced to life following a jury trial in the Eastern District of Michigan.

Prosecution

• Kentucky has set September 16 as the date for Gregory Wilson to die.  This is a serious date. I should note, on a personal level, Greg got seriously screwed at trial and ended up being being represented by attorneys who were recruited via a request by the trial court judge nailed to the front door of the courthouse.   You can guess the rest.

• In North Carolina “Judge Forrest Bridges ruled this [week] that Demeatrius Montgomery should not face the death penalty because of a detective’s misconduct during the investigation into the 2007 killings of two Charlotte police officers.

• via the inbox “We are struggling mightily to keep the doors open here at GRACE.  If you think its important for a capital jury to know as much as possible about the life they are being asked to take; if you would sleep better knowing your government isn’t killing its most damaged and vulnerable citizens without a fair fight being mounted on their behalf; if you want to support independent, client-centered, high-quality defense work, PLEASE sign up as an automatic monthly donor today! Don’t give till it hurts. Give what you can comfortably spare every month. $10, $25, $50, $100 Whatever amount you can sustain over time. Set it up for automatic withdrawal and forget about it. Please! www.gracelaw.org.

• In Thomas v. Bryant last week, the Eleventh Circuit affirmed a prisoner’s right case. Findlaw notes the DoC should not have used ” chemical agents on inmates with mental illness and other vulnerabilities” and “that defendant had decompensated at times that he was sprayed with chemical agents and that he suffered psychological injury from these sprayings.” From the opinion, the panel affirms “creating an additional requirement that corrections staff consult with mental health staff prior to spraying [a mentally handicapped inmate] with chemical agents adds but one layer to a long list of existing prerequisites to the use of non-spontaneous force at FSP.” Congrats to counsel

• Finally, as most know, Troy Davis lost in the district court. My thoughts at this point are neither pithy nor particularly nice when it comes to counsel.  Judge Moore’s ruling: Part I and Part II.

Leading off this edition is the Pennsylvania Supreme Court’s decision in Commonwealth v. Bradley Martin.  During the course of ordering a new penalty phase trial, the Martin Court holds trial counsel was ineffective for failing to investigate and present mental health mitigation evidence. Mr. Martin “did not want to discuss his mental health problems with counsel.” “Defendant’s parents provided counsel,” however, “with a list of institutions and psychologists who had provided treatment to Defendant .. . . a letter written by them to Judge Haas indicating that Defendant sustained  psychological damage from the abuse of [his uncle] and a Presentence Investigation Report indicating that Defendant has been treated for mental issues.”  Counsel did nothing with the materials.  The mere “fact that Defendant did not want to discuss his mental history with counsel did not render counsel’s failure to pursue such evidence reasonable.”

In David Scott Detrich v. Ryan the Ninth Circuit granted relief on trial counsel’s representation of  Mr. Detrich at the penalty phase of the state court proceedings. “Trial counsel did not use a expert mitigation investigator: and the investigator used was unqualified to do a life history. His investigation was minimal at best. No defense mental health expert was used nor defense evidence presented. Counsel failed to investigate and present the extensive mental health history. This ineffectiveness was prejudicial.” [via John Sands @ Ninth Circuit Blog] As the Arizona Capital Representation Project notes,  “Mr. Detrich was represented by the Project’s own Jen Bedier, as well as Greg Kuykendall . . .. Notably, Mr. Detrich’s sentencing counsel fulfilled his duty under the ABA Guidelines to facilitate the work of habeas counsel, which undoubtedly played an important role in this resolution.”

In the news, an Oklahoma federal District Court Judge Stephen P. Friot stayed the scheduled execution date of Jeffrey David Matthews. Earlier in the week counsel for Mr. Matthews discovered the state possessed no available stocks of sodium thiopental. Oklahoma DOC wanted to replace the sodium thiopental in its execution protocol with methohexital sodium. The district court granted the stay as methohexital sodium has never been used in an execution protocol and there is no proof it is a humane alternative to sodium thiopental.

Elsewhere, “A report released today by two former FBI agents, commissioned to review North Carolina’s State Bureau of Investigation laboratory in the wake of the Greg Taylor exoneration, finds that the convictions of three people executed in North Carolina were based in part on forensic reports and testimony that were, to be kind, misleading.  The report is available online here.The executed persons identified in the report are Desmond Carter (report confirmed the presence of blood on an item when the test was in fact negative), John Rose (report stated that there were chemical indications for the presence of blood and no further tests were done when in fact further tests were done and were negative), and Timothy Keel (report stated that blood test was inconclusive when in fact subsequent tests were negative).” [via Death Watch North Carolina]  DPIC also has more.

In addition to the indefatigable work of Steve Hall, this edition relies heavily on the work of several legal bloggers as, such as AFPD John Sands and Prof.  Ben Trachtenberg, for expert commentary to provide detail that likely would have simply missed.  As always thanks for reading.  – karl

8.22.2010

For Life

For Death

Sideways

• State v. Phillip L. Jones, 2010 Ohio 3850; 2010 Ohio App. LEXIS 3252 (Ohio 9th App 8/18/2010) The trial court erred by determining that Mr. Jones’ postconviction relief was premature.  The trial court held that thanks to a technical flaw in sentencing, the judgment was void.  Under state law, however, the error in the judgment made it merely voidable and not actually void. Matter remanded for merits determination.

After a summer’s drought of relevant favorable case law, the dry snap appears to be broken. Leading off this edition is the Arizona Supreme Court’s decision in State v. Gary Wayne Snelling. The sentencing jury found only one aggravator, “that Snelling murdered Curtis in an especially cruel manner” as the victim was strangled to death. “Absent any evidence of defensive injuries, a struggle, or pleas for help, the record shows only that [the victim] was suddenly confronted by an assailant who promptly strangled her to death.” “Strangulations are not per se physically cruel absent specific evidence that the victim consciously suffered physical pain.”  “On independent review [ ] we find the record insufficient to support the (F)(6) aggravator because the evidence does not prove beyond a reasonable doubt that Curtis consciously suffered mental anguish or physical pain sufficient to render the murder especially cruel.”  As a result, on independent review Mr. Snelling’s death sentence must be vacated and a lesser sentence imposed.

The South Carolina Supreme Court in Angle Joe Perrie Vasquez  v. State likewise grants relief.  At trial Mr. Vasquez ‘s “Muslim faith was a key theme . . .  which coincided with the second anniversary of September 11th.”  “[T]he solicitor’s characterization of Petitioner, a Muslim, as a “domestic terrorist” and correlation between Petitioner’s acts and the events of September 11th was so egregious, Petitioner has proven he was prejudiced by counsel’s” failure to object to such characterizations.  The Court below, therefore,  “erred in failing to find Petitioner was denied effective assistance of counsel. Given the solicitor’s improper remarks occurred primarily during the penalty phase of Petitioner’s trial, we find Petitioner is only entitled to a new sentencing hearing and not a reversal of his convictions.”

In a decision especially for federal habeas corpus types, the Eighth Circuit in Timothy Howard v. Norris affirms the trial court’s issuance of an abeyance to permit exhaustion.  Specifically,  “[t]he district court stayed [the capital habeas] proceeding to give Howard a chance to return to state court to exhaust certain claims.” On interlocutory appeal the State “contends the district court abused its discretion in granting the stay because the unexhausted claims are procedurally defaulted, that is,” under state law no forum or procedure existed to hear the unexhausted claims. The State’s motion, however,  is premature as “the disputed issue – whether Howard’s unexhausted claims are procedurally defaulted – can be addressed in an appeal from a final order.”  “We therefore grant Howard’s motion to dismiss for lack of jurisdiction.”

Finally, well over eight years after the Supreme Court decided Atkins v. Virginia was decided two decision concerning “mental retardation” are noted, Alvin Bernal Jackson v. Norris (Eighth Circuit remands to the district court for an Atkins hearing), and Virgilio Maldonado v. Thaler, (Fifth Circuit grants COA on Atkins claim).

In the news, the Texas Supreme Court refused Monday to overturn a judicial conduct panel’s reprimand of the Texas Court of Criminal Appeals’ Judge Sharon Keller for her handling of an execution-day appeal. As Steve Hall notes at StandDown Texas, during this economic downturn and budget crisis, the “cost of California Death Row roils editorial boards.” The New York Times looks at Texan Michael Green who was “set free by a state judge two weeks ago after DNA tests on the rape victim’s clothing proved that he could not have been responsible for the crime.” AP reports that DNA test may cast doubt on Claude Jones’s  guilt and may suggest he :may have been wrongly executed for the 1989 slaying of a liquor store owner in this aptly named Texas town.”   The deadline to file a claim under the North Carolina racial Justice Act was last week, at least 119 on death row have by now filed claims alleging racial bias in the implementation of that state’s death penalty scheme. DPIC recently looked at  Daniel Dougherty of Pennsylvania “[a]nother death row inmate [who] is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science.” DPIC also notes that “James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at thie Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors”

Almost the all cases in this edition can be found for free by going to Lexsone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

8.16.2010

In favorem vitae

Leading off this week is the Alabama Court of Criminal Appeal’s decision in Mark Dwyatt Brown v. State.  The issue in Brown is the difference, under state law, between capital murder and felony-murder. The “trial court did not adequately inform the jury that Brown could not be convicted of capital murder unless it determined that he had the specific, particularized intent to kill.” The trial court’s instruction permitted, rather, “the jury to find Brown guilty of the capital offenses, even if he did not have the particularized intent to kill, as long as one of his codefendants had the particularized intent to kill.” This error was compounded when the prosecution, in closing arguments. the “State incorrectly argued that Brown could be found guilty of capital murder, even if he did not have the requisite intent to kill, as long as one of his codefendants had the intent to kill the deceased or another person.”

Only because the Fifth Circuit so rarely grants relief, in Warren Darrell Rivers v. Thaler, an unpublished opinion, a panel of that court has affirmed the grant of penalty phase relief in light  erroneous jury instructions under Penry I.

In the news, DPIC reports that “[f]ive men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system” in light of the passage of North Carolina’s Racial Justice Act.  A recent Adam Liptak Sidebar column looked at mail room mix up that resulted in a delayed state postconviction filing that may cost Cory R. Maples, a death row inmate in Alabama, his life.  AP reports that California regulators have approved  a new lethal injection methods. Finally, in Ohio, Kevin Keith is scheduled to be executed next month but officials there, are beginning to grow concerned over what the Governor calls “circumstances that I find troubling.”

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  – k

8.9.2010

• Warren Darrell Rivers v. Thaler, No 09-70031 (5th Cir 8/5/2010)(unpublsihed) State appealed the district court’s grant of relief on jury instructions under Penry I.  Mr. Rivers appealed the denial of a COA on his Batson claims. District court affirmed in its entirety.

• Mark Dwyatt Brown v. State,  2010 Ala. Crim. App. LEXIS 65  (Ala. Crim. App 7/30/2010) “Based on the trial court’s instructions, the jury could have found Brown guilty of capital murder if he intended to commit another felony, i.e., first-degree robbery, first-degree burglary, second-degree burglary, or arson, but did not intend to kill the deceased or another person. Therefore, the instructions did not clearly distinguish the intent element for the offense of capital murder from the intent element for the offense of felony-murder. Brown argues that the sole issue before the jury was whether he was guilty of capital murder because he intended to kill the victims or whether he was guilty of felony-murder because he did not intend to kill the victims. He also contends   that his defense was that he only intended to rob them and that he did not have any reason to kill them. Because the trial court’s instructions effectively abolished any distinction between capital murder and felony-murder, we cannot find that the error in giving those instructions regarding intent were harmless.”

In favor of the State / Prosecution / Warden

• Daniel Saranchak v. Beard, No. 08-9000 (3rd Cir 8/3/2010) Grant of relief reversed on “three claims before us arise out of Saranchak’s degree of guilt hearing: (1) whether Watkins was ineffective for failing to investigate thoroughly and present adequately a diminished capacity defense; (2) whether Watkins was ineffective for failing to ask the trial court to suppress statements made to the state police officers; and (3) whether Watkins was ineffective for failing to seek suppression of the statements made to Laurie Garber.” Remand hand so that the district court can address in the first instance penalty phase issues not previously addressed.

• State v. Derek Don Chappell, 2010 Ariz. LEXIS 34 (Az 8/3/2010) Relief denied on direct appeal on claims regarding: [A] “statements about the murder should have been excluded because the State failed to establish corpus delicti;” [B]“there was insufficient evidence to support the jury’s finding that the drowning was especially cruel;” [C]  medical examiner’s “testimony that drowning was a “horrifying experience” and a “10″ on “scale of 1 to 10″ was improper expert opinion on an ultimate issue;” [D] “prosecutorial misconduct” in light of comments to the jury in both phases of the trial; [E] “aggravation phase jury instructions failed to sufficiently narrow the (F)(6) aggravator;” [F] “trial court improperly excluded evidence about the impact his execution would have on his family, including his young daughter;” [G] “trial court’s warning that he might be subject to cross-examination if he disputed his guilt during allocution prevented him from freely exercising his right to allocution and the jury from considering all relevant mitigating evidence;”  [H] “trial court erred by admitting, over objection, evidence of prior injuries Devon suffered while in Chappell’s care as rebuttal to Chappell’s mitigation evidence;” [I] sentencing “instruction[s] misled the jury to believe [he] was eligible for parole if given a thirty-five year to life sentence;” [J] trial “court’s failure to instruct the jury that his child abuse sentence would be served consecutively to his murder sentence violated the mandates of Lockett;” [K] “trial court erred by refusing to instruct the jury that the “cumulative effect of mitigation” was a separate and independent mitigating facto;” [L] “victim’s age were improperly used to establish both the (F)(6) aggravator and the (F)(2) and (F)(9) aggravators;” and [M] “trial court erred by refusing to provide jurors with a transcript of his allocution during deliberations.”

• State v. Jose Sandoval,  280 Neb. 309; 2010 Neb. LEXIS 99 (Neb 7/30/2010) The district court erred in instructing the jury on the “mental anguish” component of the heinous, atrocious, or cruel prong of aggravator (1)(d), however, such error was harmless.  Other claims on appeal included, that the trial court erred in “(1) failing to find 2002 Neb. Laws, L.B. 1, was unconstitutional, ex post facto legislation . . .; (2) failing to conduct a preliminary examination as to the aggravating circumstances; (3) failing to give the jurors a cautionary instruction as to why [jurors] were transported from Grand Island, Nebraska, to Aurora, Nebraska, and in failing to give a curative instruction regarding the potential jurors’ discussion of the case during voir dire; (4) impaneling an anonymous jury and failing to give a curative instruction; (5) permitting the jury to believe that the responsibility for determining the appropriateness of the death penalty belonged to the three-judge sentencing panel; (6) disclosing the notice of aggravation to the jury before the verdict was rendered on the issue of Sandoval’s guilt; (7) permitting the State to endorse over 500 witnesses; (8) permitting improper statements by the prosecutor and improperly commenting on the evidence; (9) failing to require the jury to determine whether Sandoval was a major participant in the crime and exhibited reckless disregard for human life;(10) overruling trial counsel’s motions to withdraw and Sandoval’s motion for substitute counsel, and failing to discharge trial counsel;(11) failing to give a limiting instruction regarding what constituted “the murder” in four of the five aggravators; (12) instructing the jury on aggravator (1)(d); (13) instructing the jury on aggravator (1)(f); (14) overruling Sandoval’s motions for acquittal; (15) receiving evidence, denying rebuttal, and denying a jury at the mitigation and sentencing phase of the trial; and(16) not finding that the death penalty is unconstitutional. Sandoval alleges ineffective assistance of counsel with respect to many of the assignments of error listed above. (17) He also claims his trial counsel provided ineffective assistance by allowing a court-appointed psychiatrist to examine Sandoval, eliciting speculative testimony from a witness, failing to call a forensic pathologist as a rebuttal witness, and failing to adduce evidence of prior consistent statements regarding his drug use.”

• Donald Ray Wackerly’ v. State, 2010 OK CR 16; 2010 Okla. Crim. App. LEXIS 16 (Okla. Crim. App. 7/29/2010)  In this second postconviction petition “Wackerly claims that the State of Oklahoma lacked jurisdiction to prosecute” as the crime for which he stands convicted occurred on federal property  “under the exclusive jurisdiction of the United States.” Prior counsel  “were all constitutionally ineffective for not discovering and raising this claim.”

Losses still slogging thru

• Oscar Roy Doster v. State,  2010 Ala. Crim. App. LEXIS 68 (Ala. Crim. App 7/30/2010) Judicial override to death of unanimous life recommendation. This is one to watch.

• People v. Robert Wesley Cowan,  2010 Cal. LEXIS 7545 (Cal 8/5/2010) Relief denied, most notably, on claims relating to “the trial court‟s failure to instruct regarding reasonable doubt with respect to the Russell murder, and its failure to redefine reasonable doubt in its penalty phase instructions.” Both errors held harmless

• People v. Nathan Verdugo,  2010 Cal. LEXIS 7524 (Cal 8/2/2010) “There was no error in a trial court’s adRmission of victim impact evidence under Pen. Code, § 190.3, factor (a), during the penalty phase of defendant’s capital murder trial where the witnesses described the immediate effects of the murders, as well as their residual and lasting impact.” [via LexisOne]

noncapital

• Porter v. Derrick,  2010 U.S. App. LEXIS 15661 (9th Cir 7/29/2010) “Where inmate provided facts that could show that egregious representation by an attorney who resigned from state bar while facing disciplinary proceedings prevented inmate from filing timely federal habeas petition, it could not be conclusively determined on preliminary review that inmate was not entitled to equitable tolling of limitation period.” [via LexisOne]