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This edition notes three appellate “defense wins” for the week of February 25 to March 3, 2008 and no unusually notable losses.

The Sixth Circuit, relying on a fairly complex set of facts, holds double jeopardy bars the State from challenging a pre-Atkins determination of mental retardation in Michael Bies v. Bagley. On direct appeal the Ohio Supreme Court held that Bies was mentally retarded but denied relief. Post-Atkins, Bies again sought to have his death sentence, this time on the basis he was retarded within the meaning of Atkins. The Atkins claim, despite its prior adjudication in state court, was denied in state court. On federal habeas corpus, the Sixth Circuit affirms the district court’s grant of relief on double jeopardy grounds; once the Ohio courts determined that Bies was retarded the Double Jeopardy Clause prevented relitigation of that fact.

In State v. Virginia Larzelere the Florida Supreme Court grants relief as trial counsel rendered ineffective assistance by failing to adequately investigate, nonetheless introduce, mitigating evidence about her mental health, sexual abuse as a child and physical abuse in a previous marriage. In Larzelere the state postconviction trial court granted relief over the State’s argument that Larzelere interfered with the mitigation investigation and should not be entitled to the benefit of the lack of a meaningful mitigation investigation. Both the trial court and the state supreme court agree that counsel did not perform an investigation so that they would be able to adequately advise their client on her options. The prejudice here, despite the State’s assertion and claims of potential rebuttal evidence, was overwhelming.

The remaining relief grant was a Fifth Circuit unpublished opinion in Charles Mine v. Quarterman. In Mine the Texas special issues sentencing questions precluded the jury from giving effect to Mine’s mitigating evidence of mental illness in light of Penry and its progeny. The resulting grant of relief, save for Mr. Mine, is unremarkable.

In the news, a recent in Maryland shows that the death penalty costs Md. more than life term, indeed, 37 million per execution.In Virginia, Gov. Kaine has vetoed a bill that would have expanded the number of death eligible offenses. Following the recent defeat of attempts to expand the NH death penalty, “a bill that would create a death penalty study commission passed in the House yesterday and will move on to the Senate; we anticipate a hearing before the Senate Judiciary Committee within the next few weeks.”

New scholarship is noted including: Jules Epstein’s The Great Engine that Couldn’t: Science, Mistaken Identifications, and the Limits of Cross-Examination, (to appear in the Stetson Law Review, Vol. 36, No. 3, 2007, Widener Law School Legal Studies Research Paper No. 08-23) (great read); Samuel R. Gross’s Convicting the Innocent (to appear in Annual Review of Law & Social Science, Vol. 4, 2008) (great read); Mourning Miranda by Charles D. Weisselberg (ditto) & Ty Alper’s What Do Lawyers Know About Lethal Injection?, 1 HARV. L. & POL’Y REV. (Online) (March 3, 2008) (ditto).

Looking ahead to the next edition two favorable cases are noted. The Third Circuit in William Holland v. Horn grants relief on the failure to retain an expert for use in the penalty phase under Ake v. Oklahoma over a fairly complex claim by the Warden relating to procedural default. The Texas Court of Criminal Appeals, after denying substantive claims relating to factual innocence, remands in Ex Parte Larry Swearingen, for an evidentiary hearings on “(1) Whether applicant’s trial counsel reviewed or had access to the reports that Robbie Grove had been interviewed as a suspect or person with possible information as part of the investigation; (2) whether habeas counsel reviewed or had access to the reports that Robbie Grove was investigated, and (3) whether investigators interviewed Lisa Roberts as part of the investigation.”

As always thanks for reading. – k