The most recent email edition is now available. From that edition:

A mysterious order from the Texas Court of Criminal Appeals leads off the edition.

Texas planned to execute Derrick Sonnier on June 3, 2008. Shortly before the execution hour the Texas Court of Criminal Appeals ordered a stay. Sonnier’s motion for a stay and petition suggest the issue on which the stay was granted is a challenge to recent changes in the Texas Depart of Correction’s lethal injection protocol. The broader applicability of the challenge to other pending execution dates remains to be seen.

The Arkansas Supreme Court in Michael B. Daniels v. State grants penalty phase relief. The “circuit court erred in denying the motion for directed verdict on aggravated robbery and the fact that the jury was not instructed on Arkansas law as set out in Davidson regarding the absence of theft when gambling losses are recouped.” “With the elimination of the pecuniary-gain aggravator, only the aggravator dealing with a previous crime of violence and the mitigator of suffering a low threshold for provocation and a propensity to overreact to external stimuli could be weighed by the jury.” In light of the sole remaining aggravator versus the mitigation proffered, the error cannot be harmless.`

The Nevada Supreme Court in Luis Hidalgo v. Eighth Judicial Dist. Court of Nev., has issued a new opinion in based upon the State’s petition for rehearing. “The Court affirms its prior opinion insofar as it held that solicitation to commit murder is not a felony involving the use or threat of violence to the person of another within the meaning of NRS 200.033(2)(b), and as it held that the State’s notice of intent to seek the death penalty did not satisfy the requirements of SCR 250(4)(c) because it was vague and uncertain as to the aggravating circumstance of pecuniary gain. The Court, however, modified its prior opinion in this matter by concluding that the State should be allowed to amend its notice of intent to seek the death penalty with respect to the pecuniary gain aggravator.” [via JoNell Thomas @ Harmful Error]

In the news, DPIC reports a new Texas Criminal Justice Integrity Unit has been formed by the Texas Court of Criminal Appeals to address concerns in the justice system and to work with inmates who may have been wrongfully convicted. A recent law review article, “Pretend Justice–Defense Representation in Tennessee Death Penalty Cases” in the University of Memphis Law Review, argues that that “Tennessee fails to provide effective defense representation in death penalty cases, citing ineffective attorney qualification standards, inadequate compensation and resources for indigent capital defense representation, and inequalities between defense to prosecution resources.” This past Wednesday Georgia took 35 minutes last night to hook up, before killing, Curtis Osborne, raising troubling questions about the efficacy of that State’s lethal injection procedure. After 7 weeks of jury-selection, 2 months of trial, and 3 days of penalty-phase, the jury in United States v. Khalid Barnes deliberated for a total of 2-1/2 hours over two days; unanimous for life & every mitigating circumstance, congrats to David, Josh & crew.

Looking ahead, a Sixth Circuit panel in Joe D’Ambrosio v. Bagley, splits over when does the government “expressly waive” Petitioner failure to exhaust. Holding that on these unusual facts the State did indeed “expressly waive” exhaustion, relief is granted on failure to turn over certain mitigation evidence

As always, thanks for reading. – k