This week’s edition is running late, my apologies. – k
The weekly won’t run this week. I’m truly upset as I won’t get to tell the cautionary tale, as Simple Justice’s Scott Greenfield calls it, of Rakofsky v. The Internet TM. Or, as I like to refer to it, how not to start the practice of criminal law.
I’m only updating if (A) we’re rained in or (B) the Rakofsky story forces me to type.
This week’s edition is now available:
Leading off this week is a case inexplicably missed last week, Bobby v. Harry Mitts. Fortunately, Mitts breaks no new ground. The Court in Mitts, the Law Journal notes, held that “Beck v. Alabama does not compel reversal of the death sentence here, since there is no reason to believe that the jurors in this case, unlike the jurors in Beck could have been improperly influenced by a fear that a decision short of death would have resulted in the defendant walking free.”
Other cases of note include Morehart v. Hon . Barton from the Arizona Supreme Court and Anthony Lee Stanley v. State from the Alabama Court of Criminal Appeals. Morehart held that the Arizona constitution’s requirements governing victims’ rights do not trump the right to present a defense and to have certain funding motions heard ex parte. The Alabama Court of Criminal Appelas in Stanley held the opinion authored by the trial court in over riding the jury’s decision for life did not adequately reflect “what weight the jury recommendation was given or the reasons it overrode the jury’s recommendation.”
In the news, the pretrial hearings have begun in State v. Delma Banks following the Supreme Court’s reversal of his first conviction due to prosecutorial misconduct. The Arkansas Supreme Court has stayed the execution of Frank Williams Jr. for unspecified reasons relating to the constitutionality of that state’s death penalty. The Pennsylvania Supreme Court chided a judge for deleting ‘non-judicial’ remarks from a capital postconviction proceeding, Comm v. Daniel Dougherty. Recent polling reported by DPIC notes that Californians overwhelmingly support commuting all death sentences in that state in light of the state’s fiscal crisis. DPIC also notes that “the May 9 issue of The New Yorker, Jeffrey Toobin examines the drop in death sentences in Texas and focuses particularly on the mitigation work being done by the Gulf Region Advocacy Center (GRACE) in Houston, headed by Danalynn Recer. ” The Houston Chronicle has called on the Texas legislature to permit additional reviews, for those who are otherwise barred under state law, for cases where the discredited Dr. George Denkowski testified concerning intellectual disability.
As always a heartfelt thanks for reading. – k
The next issue will focus on a few odds and ends, with no “win” yet jumping out at me.
In favor of the Accused or Condemned:
- Morehart v. Hon . Barton, 2011 Ariz. LEXIS 22 (Az 4/29/2011) State constitution’s requirements governing victims’ rights do not trump the right to present a defense and to have certain funding motions heard ex parte.
- Anthony Lee Stanley v. State, 2011 Ala. Crim. App. LEXIS 24 (Ala. Crim. App. 4/29/2011) Trial court overrode jury’s recommendation in order to impose a death sentence. “[A]lthough the trial court referenced the jury’s recommendation that Stanley be sentenced to life imprisonment without parole, the circuit court’s order did not clearly state that it found the jury’s recommendation to be a mitigating circumstance and did not contain written findings concerning what weight the jury recommendation was given or the reasons it overrode the jury’s recommendation. Thus, we remand this case to the trial court for it to amend its sentencing order to clarify its findings regarding the judicial override of the jury’s recommendation of life imprisonment without parole.” (citations omitted)
From this week’s edition:
Leading of this week are two decisions from the Third Circuit that are relatively mundane, Joseph J. Kindler v. Horn and Mumia Abu-Jamal, a/k/a Wesley Cook v. Secretary. Both are remands from the United States Supreme Court. Both reinstate prior grants of relief under Mills, and, in the case of Mr. Kindler, on ineffective assistance of counsel as well.
In the news, the NAACP Legal Defense Fund recently released its most recent edition of Death Row USA showing a continuing decline of those in death row. Jeffrey Toobin’s latest Annals of Law article in the current issue of the New Yorker examines how Danalynn Recer and the Gulf Region Advocacy Center are changing the game in mitigation. California’s Governor Jerry Brown has killed plans to build a new $356 Million death row. DPIC recently examined the cost of pursuing death and how it is wrecking county budget nationwide.
As always a heartfelt thanks for reading. – k
From this week’s intro:
Leading off this edition is a case missed last week, the Missouri Supreme Court’s decision in State v. Gregory Bowman. Over objection, the court below permitted the prosecution to present evidence that Mr. Bowman had previously been convicted of murder in Illinois. Those murder convictions, however,had been reversed and vacated prior to trial. “Even if the prosecution’s evidence regarding the underlying facts of Bowman’s two prior murder convictions were properly admissible as non-statutory aggravating prior bad acts, the Court cannot assume that the jury’s weighing process and sense of responsibility were unaffected by its knowledge that Bowman previously had been convicted of two murders. A sentence resting on invalid sentencing factors is invalid.”
In other news is the recent death of Marie Deans, “defender of the condemned.” “To many of the condemned men waiting to be electrocuted or drugged to death in a Virginia prison on charges of capital murder, Marie Deans was known as the “angel of death row.” She preferred the phrase ‘courageous fool’.” The Washington Post has her obituary.
The CBS News program “48 Hours” recently focused on the wrongful conviction of Anthony Graves. Adrian Estrada, formerly on Texas death row, agreed to drop all appeals in exchange for a life sentence.
Lethal injection news from around the country includes challenges to how Nebraska scores its chemicals. In Indiana executions are put on hold due to lack of its protocols’ chemicals. Georgia is eying pentobarbital as a replacement drug for sodium thiopental.Arizona officials assert they scored their drugs legally. Nearly two-thirds of the 16 states with active death chambers have switched, or are switching, to an alternative to sodium thiopental. Those 10 states include Oklahoma where the governor recently signed a new protocol bill. Finally, as DPIC notes, a ‘legally questionable swap club,’ of states searching for sodium thiopental has formed in the hopes of scoring drugs to carry out their death sentences.
As always a heartfelt thanks for reading. – k
The next edition has two really notable opinions, Mark Breakiron v. Horn (notable alternate ground of relief: counsel’s performance during jury selection) and United States v. Jeffrey R. McDonald (remand granted on availability of prefiling – on a successive petition – DNA testing):
Not in favor of “the man”
- Mark Breakiron v. Horn, 2011 U.S. App. LEXIS 7885 (3rd Cir 4/18/2011) Where the district court granted relief on capital murder charges on Brady grounds, but not the robbery used by the Comm. as the aggravating factor, that court erred in not granting relief on robbery conviction. “. The District Court (W.D.Pa.) found a Brady violation regarding impeachment evidence about a key witness, Price. The Brady violations were failure to disclose that Price (1) had been convicted of an impeachable offense, (2) had sought a deal in exchange for his testimony against Breakiron, and (3) was a suspect in an unrelated criminal investigation pending at that time for which he was never charged. The District Court invalidated Breakiron’s murder conviction and death sentence, but not the robbery conviction after concluding that Price’s testimony was not material to the robbery conviction. The government did not appeal, so only the robbery conviction was before the Third Circuit. Within the deferential strictures of a review under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Third Circuit invalidated Breakiron’s robbery conviction. The Third Circuit found that Price’s testimony was material to the robbery conviction because (1) it suggested that the entire incident was a premeditated and intentional plan, and (2) it undercut Breakiron’s credibility, which was crucial for his theory of defense. The Third Circuit found that trial counsel had been constitutionally ineffective in failing to request a charge for the lesser-included offense of theft where the trial strategy had been to concede that Breakiron had committed a theft but not a robbery. Thus, where Breakiron was guilty of some offense, and the jury instructions only presented the jury with an all-or-nothing choice between robbery and outright acquittal, there was a substantial risk that the jury would convict him of an unproven offense (robbery). The Third Circuit found that counsel was constitutionally ineffective for failing to take corrective action at voir dire. A member of the jury that convicted Breakiron had heard another venire member state he knew Breakiron and that Breakiron “used to do a lot of robberies.” The Third Circuit expressed concern at the juror’s exposure to propensity evidence which is so patently prejudicial that it is not necessarily cured by a limiting instruction. Even worse, the propensity evidence here was about the very crime at issue, robbery. The Third Circuit determined there was no reasonable basis for any belief in the impartiality or fairness of this juror. The Third Circuit found prejudice using an objective standard: “Whether there is a reasonable probability that a juror who had not been exposed to that statement would have voted to acquit Breakiron of robbery.” The Court found there was a reasonable probability that corrective action by counsel would have produced a different result” [Allison Brill @ Third Circuit Blog]
- State v. Gregory Bowman, 2011 Mo. LEXIS 119 (Mo. 4/12/2011) “In the penalty phase, the trial court erred in allowing the state to introduce excessive victim impact evidence. Over Bowman’s objection, the court allowed the state to present evidence that Bowman was convicted of the Illinois murders, even though those murder convictions were reversed and vacated prior to this trial. In Johnson v. Mississippi, 486 U.S. 578 (1988), the United States Supreme Court held that the reversal of a prior conviction that the jury considered in imposing the death penalty undermines the validity of the death sentence. And in State v. McFadden, 216 S.W.3d 673 (Mo. banc 2007), this Court reversed a death sentence where two of the six aggravating factors the jury found consisted of a vacated murder conviction and death sentence in an unrelated case. It held that, even if the state’s evidence regarding the underlying facts of the vacated conviction and sentence were properly admissible as non-statutory aggravating prior bad acts, the Court could not assume that the jury’s process in weighing what penalty to recommend was unaffected by its knowledge that the defendant already had been sentenced to death. Similarly, the jury here found six aggravating factors, two of which relate to Bowman’s vacated convictions for the Illinois murders. As such, the sentence rests on invalid sentencing factors and is invalid.”
- Ex parte Brandon Washington, 2011 Ala. LEXIS 52 (Ala 4/15/2011) Reversed and remanded due to errors in the presentence report.“The presentence report is only part, albeit an important and required part, of the information on which the trial court should base its sentencing decision. In the present case, the presentence report failed to address Washington’s troubled adolescence, his unstable family life, and his mental-health problems. It is apparent that the trial court relied at least in part on the presentence report in not finding the existence of any nonstatutory mitigating circumstances and, ultimately, in deciding that death was the appropriate sentence in this case.” Continue reading
From the intro of the current edition:
Leading off this edition is the decision by the Alabama Supreme Court in Ex parte Brandon Washington. The Washington Court remands in light of palpable errors in the presentence report that were compounded by the unique nature of the Alabama sentencing scheme. “The presentence report is only part, albeit an important and required part, of the information on which the trial court should base its sentencing decision. In the present case, the presentence report failed to address Washington’s troubled adolescence, his unstable family life, and his mental-health problems. It is apparent that the trial court relied at least in part on the presentence report in not finding the existence of any nonstatutory mitigating circumstances and, ultimately, in deciding that death was the appropriate sentence in this case.”
In the news, Connecticut recently moved closer to repealing its death penalty when a key legislative committee recommended a repeal bill to the full state senate. In Texas a key forensic psychologist for the state in capital prosecutions, George Denkowski, has been banned, despite testifying on numerous prior occasions, from testifying in future capital cases because he intentionally fudged IQ scores on Atkins claims. In lethal injection news, states are vacillating between an illicit network of sharing drugs and changing protocols. The Texas Forensic Science Commission last week issued a key report on arson that focused on recommendations about investigating arson without addressing the Willingham prosecution and execution. Finally, in a break through study on the death penalty in North Carolina, researchers from Appalachian State University recently released a study entitled “The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies“ that provides a one stop shop for data on that state’s capital sentencing practices.
As always a heartfelt thanks for reading. – k
Light week with not much new:
- Ex parte Brandon Washington, 2011 Ala. LEXIS 52 (Ala 4/15/2011) Reversed and remanded due to errors in the presentence report.“The presentence report is only part, albeit an important and required part, of the information on which the trial court should base its sentencing decision. In the present case, the presentence report failed to address Washington’s troubled adolescence, his unstable family life, and his mental-health problems. It is apparent that the trial court relied at least in part on the presentence report in not finding the existence of any nonstatutory mitigating circumstances and, ultimately, in deciding that death was the appropriate sentence in this case.” [temporary link to opinion]