Capital Defense Weekly

new edition

The latest edition is now available.

Leading off this edition is the Supreme Court’s decision in Joseph Corcoran v. Levenhagen. The district court in this case granted habeas relief as to Mr. Corcoran’s death sentence due to a “Sixth Amendment violation,” and decided not to address the remaining claims of error asserted by Mr. Corcoran in his habeas petition “noting that they were ‘rendered moot’ by the order that Corcoran be resentenced because of the Sixth Amendment violation.” The State and Mr. Corcoran sought relief from the Seventh Circuit.  A panel of the Seventh Circuit denied relief on the Sixth Amendment claim, failed to address any other claims raised below, and remanded “with instructions to deny the writ.” The Court here holds that the Seventh Circuit erred in reversing a grant of habeas relief  on one claim without addressing the other claims or remanding the matter back to the district court to address any issues not ruled upon below.  The Court remands for the Seventh Circuit to explain why a remand to the district court was unnecessary or, failing an explanation, simply remanding the matter back to the district court to allow it to  address those claims.

In other developments, the Georgia Supreme Court in Kim McMichen v. Hall has remanded for a new finding on whether the allegedly false trial testimony by a key State’s witness will require a new trial. The Mississippi Supreme Court in Anthony Doss v. State grants penalty phase relief holding that if “trial counsel had reviewed the records provided  [by counsel in another jurisdiction ] and had followed up with potential witnesses, he would have  uncovered mitigating evidence almost identical to that in Rompilla.”  The Florida Supreme Court has modified its standard penalty phase sentencing instruction, In re Std. Jury Instructions, in light of the ABA’s recommendations on Florida’s death penalty.

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In Texas & innocence news  prosecutors moved to dismiss all charges against Michael Scott and Robert Springsteen.  The State accused the pair of raping and killing four teenage girls in 1991.  Mr. Springsteen ended up on death row.  Stand Down Texas has the skinny.  While plausible assertions of factual innocence have never been a bar to being executed in Texas, this prosecution looks to be over.

The Council of the American Law Institute (ALI)  withdrew that portion of the  Model Penal Code concerning capital punishment in light of the “current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”   The scheduled death of Paul Beasley Johnson has been placed on indefinite hold by the Florida Supreme Court because of “significant issues raised” in Johnson’s appeal regarding prosecutorial misconduct. The New Hampshire death penalty study has begun.  In Maryland, despite defense efforts, prosecutors won’t be called to testify on  case selection methods for death penalty prosecutions. The Arkansas Supreme Court has ruled in Arkansas Department of Correction v. Frank Williams, Jr. (08-1031) upholding that State’s lethal injection statute.

Commentators note Smith v. Spisak, recently argued, appears to have gone to the executioner.  Biddish Sarma at A Criminal Enterprise notes   that “[w]hen the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.. . . By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.”

The Louisiana Disciplinary Board recently recommended dismissal of all disciplinary charges lodged against Baton Rouge criminal-defense lawyer Kevin P. Monahan, In re Monahan, 08-DB-050 (LADB HC Oct. 9, 2009). Permanent disbarment was sought for the putative incompetent pro bono representation of Walter “Joey” Koon in a 1995 death-penalty trial in East Baton Rouge Parish by counsel. The hearing committee found, however, that Mr. Monahan’s representation was consistent with then-prevailing (albeit low) Louisiana standards for capital defense in the 1993-1995 time frame. Dane Ciolino has more.

DPIC notes

The University of Missouri-Kansas City Law Review recently published a symposium issue of Death Penalty Stories, highlighting the role of the narrative in the defense of death penalty cases. The compilation includes contributions from litigators who have used persuasive narrative in support of a life sentence. Russell Stetler’s The Unknown Story of a Motherless Child chronicles the case of Edgar H., who was convicted of killing four men in California. Edgar’s traumatic childhood was influential in negotiating a sentence of life instead of death. Dr. Craig Haney’s article, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, introduces the concept of the “master narrative,” the official story–often laden with inflammatory rhetoric–that public officials supply to the media and that sets the stage for a capital trial ending in a death sentence. Haney argues that “more accurate information about the role of adverse social histories and powerful social conditions” might lead to more informed public debate over the utility of capital punishment.

Recently, two separate email editions were sent out almost simultaneously. The title of the first email was cases since September 21, 2009. The title of the second email was cases since October 5, 2009. These two emails cover case law from different weeks. My sincerest apologies for any confusion caused by our tech problems. As always, thanks for reading. – k