After a brief peek at the next edition, I strongly suspect the quality of counsel (and indigent defense systems) will be a theme.
Often when a landmark case moves from being a recent holding to a memory the interest in the individuals involved fades in to the oblivion. Ted Calvin Cole, now known as Jalil Abdul-Kabil, has plead to a life sentence in Texas. He is perhaps best known for his role in the murder of Raymond Richardson and Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007), that resulted in the SCOTUS giving a fairly harsh spanking to the Fifth Circuit over its failure to grant relief on Penry error.
Local media reports that “four hours before convicted killer Jonathan Green was to have been executed in Huntsville, the Texas Court of Criminal Appeals issued a stay in order to consider arguments that Green is delusional and too mentally ill to be put to death.”
Today in United States v. Ronnell Wilson the Second Circuit, on direct appeal, granted penalty phase relief,
because two arguments made to the jury by the prosecution– both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousness–impaire dWilson’s constitutional rights. The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson’s allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance. As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify. These constitutional violations were not harmless beyond a reasonable doubt.
The Court on Tuesday ended the Term with one last capital case. In Sears v. Upton the Court closed out Justice Stevens service with the Court much as it had done a decade before with Justice Blackmun’s era on the Court. Five justices voted to grant the petition of ceriorari, vacate the decision below, and remand, a/k/a a “GVR”. The per curiam opinion holds trial counsel rendered ineffective assistance of counsel and that the improperly weighed whether Sears was prejudiced. Justice Scalia, joined by Justice Thomas, dissented. The Chief Justice and Justice Alito believe cert. was improvidently granted.
My back of the envelope math has the GVR’s this Term roughly spread equally between pro-executioner and pro-defendant holdings making me wonder whether there was a “Gentleman’s agreement” on the topic giving so many GVRs to each side this past Term.
The Troy Davis evidentiary hearing began today:
On Wednesday, the courtroom fell silent as Davis entered from a side door. Davis, dressed in a white, prison-issued shirt and pants with blue trim, smiled briefly at his mother before sitting down at the defense table.
His defense team says seven of nine eye witnesses at Davis’s original trial in 1991 have recanted their testimony. On Wednesday, they called four witnesses who had testified in 1991 and who told the court that Davis was not the killer. They also called two witnesses who said that another man had confessed to them he was the one who killed Officer MacPhail.
Several of the original trial witnesses said they had felt intimidated by police to name Davis, and one said he had been beaten by police the night of the murder. [...]
Two favorable cases so far noted for the next edition:
This week’s edition is now available:
The Supreme Court’s holding in Albert Holland v. Florida leads off this edition. The headnote to the case places the holding well when it notes that “Holland diligently pursued his rights by writing [counsel] numerous letters seeking crucial information and providing direction, by repeatedly requesting that [counsel] be removed from his case, and by filing his own pro se habeas petition on the day he learned his AEDPA filing period had expired.” Despite his diligence the district court denied relief and the Court of Appeals applied the AEDPA’s one year statute of limitations a little to rigidly. On these facts, therefore, a remand is necessary for further evaluation as to the applicability of equitable tolling.
On June 14, the U.S. Supreme Court granted certiorari in in Cullen v. Pinholster:
(1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.In the lower courts several favor decisions are noted including Warren Lee Hill, Jr. v. Schofield from the Eleventh Circuit. The panel in Hill holds that Georgia law places an unconstitutional burden of proof on defendants asserting that they are barred from execution under Atkins, by requiring that they prove their intellectual disability by beyond a reasonable doubt. Georgia remains alone in that requirement. Hill seemingly would call in to question the standards of proof in the four other states which require a defendant to prove mental retardation by clear and convincing evidence.
Other cases of note includes yet another grant of relief in Arizona on aggravating factor (F)(6) (heinousness, cruelty, and depravity) in State v. Aaron Brian Gunches. The Texas Court of Criminal Appeals in Adrian Estrada v. State grants relief, albeit after the State conceded error, as a key punishment phase witness incorrectly testified as to the potential classification of Mr. Estrada in the prison system if sentenced to life without parole. Finally, and also from the CCA, in Ex parte Jose Garcia Briseno the Court grants relief on Penry error as the jury instructions did “not adequately inform the jury that it may assess a punishment less than death on account of [the mitigating evidence] irrespective of what the evidence shows as to [the defendant’s] deliberateness and future dangerousness.”
In other news, Troy Davis’ evidentiary hearing begins this week on his unique claim of factual innocence. DPIC notes that “Texas Judge Paul C. Murphy recently ordered prosecutors to hand over key evidence from a 1989 murder case to the Innocence Project and the Texas Observer for DNA testing.” California’s latest attempts at lethal injection regulations were scuttled by the state’s Office of Administrative Law which identified several passages that conflicted with state law, that were unclear, or failed to properly state reasons for the new procedures.
My apologies for the more frequent than usual skipping of scheduled editions of late. Thanks, in large part to the bad economy, my case load has spiked and my time has been stretched much more thin than usual. Please also note that next week’s edition is unlikely to run as I am scheduled to be out of the country for a family wedding. As always, thanks for reading. – k
First look after the jump. An unusually large amount of cases, many favorable. Apologies for the delay: [...]
I’m midtrial on a rather mundane (save to the litigants and their counsel) trial. There is an outside chance it will be to jury by Monday night, if so the weekly will run, if not, it won’t.
The Texas Court of Criminal Appeals on Wednesday granted a new penalty phase trial to Jose Briseno on apparently Penry grounds. More soon.
The California Office of Administrative Law, a state body tasked with approving regulations proposed by agencies such as the California Department of Corrections and Rehabilitation, issued a detailed 21-page response explaining why the lethal injection procedure didn’t pass muster.
more on this once details are known.
Leading off in this abbreviated edition is a case missed last week, Blaine Ross v. State, 2from the Florida Supreme Court. In Ross the Court holds that the “the police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required by Miranda v. Arizona obtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda. In accordance with our precedent and the precedent of the United States Supreme Court, we conclude that under the totality of the circumstances, the waiver of the defendant‘s rights against self-incrimination was not voluntary, knowing, and intelligent, and the statements were not voluntarily given.”
In the news, the, DPIC notes that “a recent study published by the Equal Justice Initiative . . . . shows that the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South.” In Ohio, the Governor commuted Richard Nields sentence to life without parole.The Pennsylvania State Government Management and Cost Study Commission is examining the costs of the death penalty in Pennsylvania in these recessionary times. In Oklahoma a bill to allow flexibility in lethal injection protocols has been sent to the governor.
As always, thanks for reading. – k
I got pushed out to trial. This week’s edition will go late Tuesday / early Wednesday. My apologies for any delay.
After the jump the cases, so far, from the next edition: [...]
I’ve got trial call in the morning. I’m hoping to have teh edition out this week and not have to double up again. [...]
This week’s edition is now out. As always thanks for reading.
Three grants of relief are noted this week: Comm. v. Wayne Smith (Penn), Danny Keith Hooks v. Workman (10th Cir), and, Kenneth Glenn Thomas v. Allen (11th Cir).
Of the three Smith leads off. Smith examines the interplay of counsel during a capital trial and the responsibility for penalty phase investigation and in-court mitigation efforts. Mr. Smith’s attorney thought he might be able to win a penalty phase verdict short of first degree murder, known elsewhere as capital murder. Lead trial counsel “myopically” focused on the possibility of winning a lesser included included verdict, As a result he failed to provide meaningful direction to the mitigation team members, and, resultingly, missed low hanging mitigation evidence. “Counsel cannot meet his obligation by relying on ‘only rudimentary knowledge of [the defendant's] history from a narrow set of sources,’ which is exactly what [trial counsel] did.” “Accordingly, appellant was prejudiced by trial counsel’s inadequate investigation, and remand for a new penalty phase is required. ”
The Tenth Circuit in Danny Keith Hooks v. Workman grants relief as the Allen charge, as given by the trial court, was improper. “[T]the OCCA aggregated all “errors” in deciding this (possibly distinct) question: Was Hooks afforded a fundamentally fair sentencing proceeding? The OCCA’s “combination of errors,” however, excludes other relevant contextual circumstances, such as the timing of the Allen instruction, the significance of the jury notes, and the impact of the trial court’s decision to give the instruction to an apparently deadlocked jury.” On these facts, therefore, “[f]ailure to grant relief on this record would amount to nothing more than “abject deference” to the decision of the OCCA, something to which no state court is entitled under AEDPA.”
In the Supreme Court since the last edition the Court decided Berghuis v. Thompkins. In Thompkins the Court, 5-4, appears to have contracted the rights explained in Mrianda, holding that one must affirmatively tell the police one is invoking their right to silence. The Court did appear to address the issue, despite this matter reaching the Court on post-AEDPA habeas review, de novo. The Court also briefly touched upon an IAC claim on which the Court below granted relief. This was the fifth reversal this term in a criminal case for the Sixth Circuit
Normally anything positive out of the Fourth, Fifth or Eleventh Circuit would lead off an edition. The Eleventh Circuit’s opinion in Kenneth Glenn Thomas v. Allen, affirming the grant of relief on Atkins/Mental Retardation is so straight forward as to be deserving of a quick passing mention.
Thanks for reading. -k
This week’s edition should be out tonight. After the jump, the highlights of this week’s edition
