Capital Defense Weekly

this week’s edition

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

Numerous defense favorable cases are noted in this edition covering cases since late August.  Leading off, the Sixth Circuit in Gregory Thompson v. Bell remands in this Rule 60(b) appeal.  The Bell panel remands on two separate and distinct sets of claims. The first is a claim concerning competency to be executed under Ford v. Wainwright. The second set of claims concern ineffective assistance of counsel and procedural default.  On the second issue, the panel holds that the Tennessee Supreme Court’s adoption of new rules essentially waiving the need to file claims with that court in order to exhaust the claim for purposes of habeas review means that the prior procedural default finding by the district court was incorrect as to certain claims. On this odd set of facts, the panel holds, Rule 60(b) permitted re-examination on claims held previously defaulted for failure to raise those claims to the Tennessee Supreme Court.

The Ninth Circuit in Viva Leroy Nash v. Ryan addresses the issue of when does a Petitioner become too incompetent to effectively communicate with their attorneys.  Relying upon circuit precedent and the statutory right to habeas counsel the panel holds that “[m]eaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner.”  The Court orders a remand so that “district court [can] conduct appropriate proceedings to determine whether Nash is competent to communicate rationally”

In other defense favorable cases, the Fifth Circuit  granted a COA in Robert Simon Jr. v. Epps on  ineffective assistance at sentencing. In Richard Fairchild v. Workman the Tenth Circuit remands as “the district court should determine in the first instance whether it is appropriate to stay and abate the action on the petition in order to give Mr. Fairchild an opportunity to exhaust” an  ineffective assistance of counsel claim.  In Edward Harold Schad v. Ryan the Ninth Circuit remands “for the district court to consider, using the proper standard, whether Schad was diligent in pursuing state court relief, and if so, to hold a hearing on the merits of his ineffectiveness claim.” Finally, the Third Circuit in  Ernest Simmons v. Beard granted a new trial on the cumulative impact of multiple pieces of suppressed Brady material.

Of the cases listed below as favoring the government two are of unusually notable.  In the first case, Linda Anita Carty v. Thaler, a British subject, loses on a fairly unusual application of the procedural default / exhaustion rules where if those claims were addressed on the merits she’d likely win.  Specifically, there appears to have been some issue as to whether the State did or did not agree to permit her to amend claims, beyond the limits of that which is normally permitted under Texas law. This is one to potentially watch for further action en banc or certiorari.

The other matter is State v. Dane Locklear, Jr. At trial the State offered the Chief Medical Examiner as an expert in the field of forensic pathology to testify about the findings of the people who did the autopsy. As North Carolina Criminal Law notes “[o]n appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt.”  The Defense appellate brief is available through the NCIDS.

In the news, Michael Toney in Texas was released from the Tarrant County Jail, nine months after his conviction and death sentence were overturned, while the Texas Attorney General contemplates whether or not to retry him.  In Nevada Public Defender caseloads are being reexamined, following a state supreme court order.  Anthony Caravello at 15 faced the death penalty,was convicted of rape and murder 26 years later he has been freed in light of DNA.

>Online, a complete preview of the certiorari grants for the Supreme Court’s upcoming term can be found over at JoNell Thomas’s Harmful Error. A new blog, A Criminal Enterprise, has some great posts by Bidish Sarma of the Justice Center’s Capital Appeals Project, and Rob Smith of Harvard’s Charles Hamilton Houston Institute for Race and Justice.  Jeff Gamso has started writing Gamso—For the Defense

As a reminder,we don’t charge a subscription fee, but if you find the weekly useful we’d appreciate even a nominal tax deductible donation to a nonprofit involved in some aspect of the capital punishment issue, such as  Pennsylvanians for Alternatives to the Death Penalty (where I’m currently the co-chair) or the Fair Trial Initiative.  On each of the above links you’re able to donate as little or as much as you want, or even set up a monthly automated giving amount.  As always, thanks for reading  – k

My apologies for the delay, as well as the delay in updating the blog as this week’s edition was greatly more timely consuming than usual.