Capital Defense Weekly

weekly edition

This week’s edition’s intro:

The Illinois Supreme Court’s decision in People v. Brian Nelson leads off this edition (and thanks to the loyal read whose tip off lead us  to this gem).  Nelson repeats a familiar refrain. A hold-out juror decided not to compromise their scruples and tried to hold out for life. The trial court removed the juror. “Based upon the record, we conclude that had the jury been allowed to continue to deliberate with [the holdout juror] as a member of the jury, a nonunanimous verdict would likely have been rendered” resulting in a life sentence.

Two notable year end reports are noted this week. “The work of Innocence Network member organizations led to the exoneration of 27 people 2009. Together, they served 421 years in prison for crimes they didn’t commit.. . . download the full report here (PDF).”

In the other report DPIC “released the “The Death Penalty in 2009: Year End Report” on December 18, noting that the country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years .. . . ‘The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,’ said Richard Dieter, the report’s author and DPIC’s executive director. ‘In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it’s worth keeping.  This entire decade has been marked by a declining use of the death penalty.’  There were 106 death sentences in 2009 compared with a high of 328 in 1994. “  Texas had just nine new death sentences.

In the states, the Georgia Supreme Court on Wednesday halted the execution of  Carlton Gary’ for hi request for DNA testing. The Kansas legislature, StandDown reports, is to consider repeal in 2010. In New Hampshire the  “House blocks introduction of home invasion bill” that would permit death for home invasion murders.  A skeptical Third Circuit panel recently heard Delaware’s lethal injection challenge, however, the matter will likely go en banc.

As always, thanks for reading. – k

Whithering on the vine

Here is what I wanted to say, fortunately Matt Kelley @ Change.org is much more eloquent than I am:

The Death Penalty Information Center released its annual report on the state of capital punishment  in the United States today, and while it finds that the number of executions was slightly higher in 2009 than 2008, new death sentences were at their lowest level since the death penalty was reinstated in 1976.

This is big news. The uptick in executions is less important, partly because there was a de facto moratorium on executions nationwide for four months in 2008.

Even Texas and Virginia are cooling to the cruel practice of capital punishment. According to the report, Texas averaged 34 death sentences per year during the 1990s and Virginia averaged six. This year, Texas had nine and Virginia just one. It’s a new day.

View the full report at DPIC’s website.

The Nation ♥ GraceLaw

The Nation’s ten nonprofits list to donate for Christmas is out:

The economist Joel Waldfogel claims Christmas presents are a waste of money because most people don’t really like what you give them. So the heck with them–bake some cookies for the folks on your list, because everyone likes cookies, and give generously to any or all of the great groups below.. . .

2. Gulf Region Advocacy Center. This Houston-based group provides free legal help to indigent capital defendants in execution-happy Texas. GRACE has moved juries to see a life worth preserving, improved the way trials are conducted and helped build the legal framework against the death penalty. Keep it going in these desperate times. (2307 Union Street, Houston TX 77007; gracelaw.org)

Georgia halts execution for DNA testing

The last execution of the year has been stayed.  Doug B. notes:

This new piece from the Atlanta Journal-Constitution, which is headlined “Georgia Supreme Court halts Carlton Gary’s execution,” reports that the last execution scheduled for 2009 was put on hold this afternoon:

The Georgia Supreme Court on Wednesday halted the execution of the so-called Columbus stocking strangler, ordering a judge to consider Carlton Gary’s request for DNA testing.  The 5-2 ruling came four hours before Gary was to be executed by lethal injection….

Prosecutors said Gary sexually assaulted and attacked four other women during an eight-month period in 1977 and 1978.  The attacks terrified residents of the Wynnton neighborhood of Columbus. Fingerprint evidence placed Gary at the homes of three of the victims.  Gary did not deny being at the scenes, but said an accomplice sexually assaulted and attacked the women.  At the time of Gary’s trial, DNA testing was unavailable….

On Wednesday, the Georgia Supreme Court found that the motion complied with the requirements of a 2003 state law that allows requests for DNA testing had DNA tests been unavailable at the time of trial.  The court ordered Johnston to hold a hearing to consider the request.  Chief Justice Carol Hunstein and Justice George Carley dissented.

I would be remiss for not noting that the total number of executions on the year is roughly the same as the last full year of executions prior to the Baze lethal injection moratorium.  Texas conducted, with its unique sentencing scheme, executed just under 50% of the people executed.  New death sentences appear to be markedly down in Texas, and elsewhere.

This week’s (belated) edition

From this week’s edition:

Leading off this belated double edition is the Supreme Court’s holding in Beard v. Joseph Kindler. The Court in  Kindler remands this habeas case back to the Third Circuit. The Pennsylvania state courts found that the fugitive forfeiture rule would bar relief on Mr. Kindler’s claims.  Nonetheless, the Third Circuit granted relief.  The  Kindler Court holds that the Third Circuit should reevaluate whether that the procedural rule applied by the Pennsylvania state courts should serve as an adequate ground to bar federal habeas relief.

The Ninth Circuit, en banc, granted penalty phase relief in Scott Lynn Pinholster v. Ayers.  “[T]he California Supreme Court’s “postcard” denial of Pinholster’s penalty phase ineffective assistance claim constituted an objectively unreasonable application of the clearly established federal law in Strickland. Pinholster’s attorneys performed even more deficiently than the lawyers in Terry Williams, Wiggins, and Rompilla; and the balance between the available mitigating evidence and the aggravating evidence, for purposes of showing prejudice, is materially indistinguishable from that in Terry Williams and Rompilla.”

The Supreme Court in Cecil Johnson v. Bredesen denied certiorari concerning the issue of prolonged incarceration on death row as a potential bar to execution. On the final round of review by the Supreme Court Justices Stevens and Breyer, here, sharply argued the Court should have granted certiorari on the issue. Justice Thomas here, just as forcefully replied.

On the lethal injection front, since the last edition Ohio managed to not botch its new one drug protocol in the execution of Kenneth Biros.  Meanwhile, Rommell Broom’s future, Ohio’s last botch execution, is being fought in federal court.

Elsewhere, Franklin Zimring (William G. Simon Professor of Law and Wolfen Distinguished Scholar at the UC Berkeley School of Law) over at the National Law Journal looks at the decision by the American Law Institute to withdraw the MPC on capital punishment in an article entitled “Pulling the plug on capital punishment.”  Henry “Hank” Skinner “has sued a [Texas] prosecutor, alleging she is denying him access to DNA evidence that has never been tested and could prove he is innocent of murdering three people in 1993.”  Linda Greenhouse  at the New York Times Opinionator blog compares the Court’s decisions in VanHook & Porter and asks,whether the Court is too sparingly dispensing empathy. DPIC notes that Andrea Lyon has a forthcoming book entitled Angel of Death Row: My Life as a Death Penalty Defense Lawyer reflecting on her career as a capital litigator.

Finally, DPIC was kind enough to pick up on a op-ed bylined by Bill Pelke and me concerning military service and the death penalty.  Both of us are vets, Bill of VietNam and me of  last war with Iraq. The editorial looks at two cases James Floyd Davis and Manny Babbitt, veterans who received Purple Hearts for their service in the Vietnam War but were sentenced to death nevertheless. The piece is available at DPIC & AlterNet.

As always, thanks for reading. – k

weekly

This week’s sketch of case law is here.

Ninth Circuit en banc PP relief

The Ninth Circuit in Pinholster v. Ayer (available here) has granted penalty phase relief on counsel’s penalty phase performance. The breadth of the majority opinion (incl. several Bush II appointees) suggests the opinion should hold.

More summary capital decisions heading this way?

Two, possibly three, capital cases appear to be on the short list for cert or  GVR. In the ehree cases the Court has re-listed the case for conference at least once:  Marcus Wellons v. Hall (11th Cir -relisted six times already),  Ryan v.  Roger Mark Scott (9th Cir – relisted just once), and , possibly Robert Bryant Melson v. Allen (11th Cir – additional briefing from Alabama requested on rehearing apparently in light of nearly the same issue in Holland v. Florida).   Odds favor that at least one of these cases will get a GVR.

[corrected for a glaring typo]

Beard v. Kindler

The SCOTUS handed down Beard v. Kindler today.  StandDown notes:

The Supreme Court has ruled in the unusual Pennsylvania case.  The AP reports, “Supreme Court tells lower courts to reconsider death penalty for Kindler,” via the Los Angeles Times.

The Supreme Court will let lower courts consider reinstating a death sentence for a convicted murderer who twice escaped from prison after being found guilty of killing a man who was planning to testify against him.

The high court overturned a lower court decision throwing out the death sentence against Joseph Kindler for killing one-time accomplice David Bernstein in 1982.

The 3rd U.S. Circuit Court of Appeals had said Kindler’s lawyer was ineffective and also found problems with the jury instructions.

State courts had never decided on Kindler’s claims. Instead, those courts said Kindler forfeited the right to be heard on those issues because of his escapes.

Chief Justice John Roberts said the state court decision has to be considered by the federal courts.

The ruling is here; the ScotusWiki file, here.  Earlier coverage of the case is here.  Lyle Denniston will post a report at SCOTUS Blog, following this morning’s oral arguments at the Court.

Ohio kills with one drug

Jeff Gamso sums up today’s execution in Ohio better than I ever could:

The legal wrangling is over. A last minute delay was resolved. Oh, sure it took them a half hour to get him intubated, but by the standards of Ohio, the state that builds bathroom breaks into executions, thirty minutes is hardly worth mentioning.

Defiant to the end, Ken Biros refused to demonstrate that he’s the monster they say. His last words:

Now I am paroled to my Father in heaven, and I will spend all my holidays with my Lord and Savior. Peace be with you.

weekly to run next week

My apologies, due to time commitments elsewhere the weekly will run next week.

So is this the part where I say

I think it was 12 years ago today that I emailed out the first “Capital Defense Weekly.”

weekly email edition

Cases since the last edition will include:

In favor of the Accused or Condemned

• Charles Ray Crawford v. Epps, 2009 U.S. App. LEXIS 26243 (5th Cir 12/2/2009) (unpublished) ‘[W]e grant Crawford a COA on his claim that he was subjected to a psychiatric evaluation of his competency without the benefit of counsel in violation of the Sixth Amendment. To permit the district court an opportunity to develop the record, if necessary, and reconsider the merits of Crawford’s claim, we vacate that portion of its order denying relief on this basis and remand for further proceedings.”

• Mark Gill v. State, 2009 Mo. LEXIS 540 (Mo 12/1/2009) “Although a victim’s character is not typically an issue, when the State introduced evidence of the victim’s good character in the penalty phase, Gill’s counsel should have rebutted the State’s good character evidence with the sexually explicit contents of the victim’s computer. Because his counsel failed to discover the sexually explicit contents of the victim’s computer, Gill’s counsel were ineffective. This Court affirms the denial of the Rule 29.15 motion as to the guilt phase of the trial, but reverses the denial of the motion as to the penalty phase insofar as Gill had ineffective assistance of counsel for failing to investigate the victim’s computer. The case is remanded.”

In favor of the State

• Henry Louis Wallace v. Branker, 2009 U.S. App. LEXIS 26206 (4th Cir 12/2/2009) (unpublished) “We granted a certificate of appealability on two of Wallace’s claims: (1) that pretrial publicity and the state court’s denial of his motion for a change of venue deprived him of an impartial jury and (2) that delayed administration of Miranda warnings rendered his confessions involuntary and therefore inadmissible. After considering these claims, we affirm the district court’s denial of the writ.”  “Habeas petition was properly denied because denying motion to change venue based on pretrial publicity did not deprive inmate of impartial jury under Sixth Amendment because, inter alia, state court reasonably found that pretrial publicity would not have made inmate’s trial a hollow formality and that voir dire provided best indicia of prejudice.” [via LexisOne]

• James  Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky 11/25/2009)

• Dale Wayne Eaton v. State, 2009 WY 144 & 2009 WY 145 (Wyo 11/24/2009) Summary denial of postconviction petition of Wyoming’s death row inmate and remand to set execution date.

• State v. Kerry  Perez, 2009 Ohio 6179 (Ohio 12/2/2009) (dissent) Relief denied, most notably, on use of taped conversations between Appellant and his spouse (the Perez Court here greatly expands the type of materials admissible under the State’s marital privilege) anduse of the “course of conduct” death penalty specification (which draws adissent).

• Ex parte Ramiro Hernandez, WR-63,282-02 (Tex Crim App 11/25/2009) Relief denied without a substantive discussion of the merits.

[Typos included at no extra charge. -k]

Execution rate remains flat

The execution rate for 2009 will likely match the last full year of executions that was unimpeded by the Baze lethal injection litigation in the SCOTUS.  Executions for 2009 should be somewhere between 50 and 53.  Considering the large “pent up demand” following Baze the numbers are remarkably low and unusually stable.

Texas kills

Texas tonight killed Bobby Wayne Woods.  The NYT has more:

Bobby Wayne Woods was executed Thursday evening in Texas after his lawyers lost a battle to persuade the courts that he was too mentally impaired to qualify for capital punishment.Mr. Woods, 44, was convicted of raping and killing an 11-year-old girl in 1997. He received a lethal injection and was pronounced dead at 6:48 p.m. in the death chamber at a state prison in Huntsville, Tex., after the United States Supreme Court denied a request from his lawyers to stay his execution. His last words, at 6:40, were: “Bye. I am ready.”

Tests administered to Mr. Woods over the years placed his I.Q. between 68 and 86, prompting a bitter debate between his lawyers and the state over whether he was too impaired to face execution. The state and federal courts repeatedly sided with prosecutors.

The debate reflects the gray area left by the Supreme Court in 2002, when it ruled that the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argued that his intelligence scores were low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. Maurie Levin, a University of Texas law professor who represented Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said before the execution. “It’s a travesty.”

Tennessee kills / Lackey redux

Tennessee early this morning killed Cecil Johnson, Jr.,

In the end Cecil Johnson Jr., convicted in the fatal shooting of three people – including a 12-year-old boy — in 1981, was only forgiven by his son who is in prison.. . .

During the execution a daughter, DeAngela Johnson, was described as turning her back and covering her ears against her father’s breathing sounds as the injections began.

Johnson, 53, was forgiven by his 29-year-old son serving prison time in West Tennessee. James Johnson, serving 23 years for aggravated assault and aggravated robbery, sent his father a message with Riverbend Maximum Security Prison warden Ricky Bell.

“Tell him I love him and forgive him for not being there,’’ Johnson’s son said in the message. “And tell him he is not the reason why I am in prison.”

On the final round of review by the Supreme Court Justices Stevens and Breyer, here, sharply argued the Court should have granted certiorari. Justice Thomas here, just as forcefully replied. As the SCOTUSBlog notes:

“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf.  The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution.  For more than 14 years, one or both of those Justices has been calling for review of the question of whether it is “cruel and unusual punishment” to put off execution for a long time, at least when that is due to delays that are not the fault of the inmate.. . .

But, as has happened before, the Stevens complaint was met with a sharply worded retort from a colleague, Justice Clarence Thomas.  It has been 14 years, Thomas wrote, since Stevens first proposed finding a violation of the Eighth Amendment for years-long residence on death row.  “i was unaware of any constitutional support for the argument then…And I am unawarion e of any support for it now.”

Mo Supreme Court grants relief

The Missouri Supreme Court on Tuesday granted relief  in Mark Gill v. State on the failure to adequately investigate.  [more]

weekly’s out

weekly’s up.

Porter v. McCollum, a decision from the Supreme Court, leads off this edition.  The Court this term, through its per curiams, seems to be really emphasizing the bright line tests for ineffectiveness.   Counsel failed to adequately investigate his client’s military record and the horrors he had seen in the ugly face of war.  The aftermath of war, as it does with so many soldiers, left him a broken man.  The counsel’s error meant the trial court never heard that story.

The lethal injection scrum reheated since the last edition. The Kentucky Supreme Court in Thomas Clyde Bowling v. Ky. Dep’t of Corr. held that the state’s  lethal injection protocol was not adopted in accordance with the Commonwealth’s Administrative Procedure’s Act.  The Sixth Circuit, by contrast, in  Richard Cooey, II, Kenneth Biros v. Strickland lifted the stay of Mr. Biros’s execution warrant as the stay of next week’s execution  was based on concerns related to the old three drug Ohio procedure not the new one drug procedure.

The Texas CCA has issued a much publicized order to show cause to TDS’s David Dow and Katherine Black for a putatively “untimely filing” in a matter where they represented a client facing execution for less than a few weeks when they filed a claim missed by prior counsel.

As always, thanks for reading. – k

Wowser again

Sometimes I miss having a slower practice and the ability to dodge phone calls for a bit and do a post.  The per curiam in Porter v. McCollum (08-10537), here, is one of those reasons.

The Court this term, through its per curiams, seems to be really emphasizing that a competent investigation, informed decision making, and reasonable trial strategy is required in order not to be found ineffective, Wong v. Bellemonte.  Don’t do those three things and ineffectiveness is almost assured. Today’s case falls into the latter category.  Counsel failed to adequately investigate his client’s military record and the horrors he had seen in the ugly face of war.  The aftermath of war, as it does with so many soldiers, left him a broken man.

Today’s opinion expressly, and unanimously reaffirmed Rompilla.  But more than that, as the SCOTUSBlog notes, it reaffirms an unwritten bond between a nation and its veterans:

“Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did,” the opinion said.  “The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.” . . . .

The Court also cited, clearly with approval, laws of two states that provide special legal protection for veterans involved in crimes and suffering from combat stress — a California law providing a special hearing for a person convicted of crime who claims the offense resulted from PTSD or other conditions stemming from military combat service, and a Minnesota law providing a special sentencing process for a vetrer dianosed with a mental illness.

In Porter’s case, the Court did not say explicitly that it was overturning his death sentence for his 1986 crimes.  Rather, it concluded that he was entitled to relief in a post-conviction federal habeas case, on the theory that the jury, had it heard about his wartime experiences and other evidence about mental problems, it might well have refused to recommend a death sentence.   The Court sent the case back to the Eleventh Circuit Court, presumably to order a new sentencing proceeding.  The Court’s order did not say what the Justices expected to happen next.

The weekly should be out later tonight.

weekly

The case law rough for this week’s edition is here.  Most notable are the lethal injection opinions from Kentucky & the Sixth Circuit

• Thomas Clyde Bowling v. Ky. Dep’t of Corr.,  2009 Ky. LEXIS 291 (Ky 11/25/2009) Kentucky’s lethal injection protocol fails as it was not adopted in accordance with the Commonwealth’s Administrative Procedure’s Act. “Having reviewed the applicable law, it is apparent that the lethal injection protocol implements KRS 431.220, Kentucky’s lethal injection statute and, further, that significant portions of the protocol are not matters of internal management for the Department but rather statements of general applicability and policy which affect private rights. Pursuant to KRS 13A.100, the Kentucky General Assembly has required  [*4] that such portions of the protocol be adopted as an administrative regulation.”

• Richard Cooey, II, Kenneth Biros v. Strickland,  No. 09-4300 (6th Cir 11/25/2009) “In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect. Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether he has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits.”