The latest edition of the Weekly is now available. From the introduction:
Leading off this edition are two stays from the United States Supreme Court. In Cleve Foster v. Texas the Court is believed to have issued a say in light of some heads up lawyering that noted Mr. Foster’s case could be effected by the Court’s cert. grant in Maples v. Thomas. The SCOTUSBlog notes that Maples involves “whether a failure to satisfy a state procedural rule in a criminal case could be excused if the convicted individual was blameness for the failure, and the state had some role in the default.”
The other stay issued by the Court is Daniel Wayne Cook v. Arizona. The SCOTUSBlog there notes that for murder cases in Arizona “post-conviction review of the case is mandatory, after the initial appeal has been tried and failed. It is considered to be a part of the original criminal case, not a separate proceeding. Such a review is ordered in every murder case by the state Supreme Court. In his petition to the Supreme Court, Cook argued that he had a right to an effective lawyer at that proceeding, on the theory that it is the first review allowed by the state for claims of an ineffective defense lawyer.” Those involved on the appellate and postconviction end of things would be remiss for not visiting the SCOTUSBlog for a detailed update in what could be a major revisiting of Pennsylvania v. Finley and Murray v. Giarratano .
Despite this being a late running double issue the only positive opinion is Comm. v. Donyell A. Paddy from the Pennsylvania Supreme Court. The Paddy Court remanded on the sole “penalty phase claim of ineffective assistance of counsel for failing to investigate and raise mitigation evidence of Appellant’s background and life history.”
The Supreme Court in Cullen v. Scott Lynn Pinholster holds that the Ninth Circuit erred in issuing a writ of habeas corpus. Matthew Seligman at the SCOTUSBlog notes “[t]he Court first held (by a vote of seven to two) that AEDPA requires federal courts to evaluate the reasonableness of state court decisions on the basis of the record before the state court; federal courts may not consider new evidence developed at an evidentiary hearing in federal court. The Court then held (by a vote of five to four) that Pinholster was not entitled to habeas relief under this framework because the state court’s rejection of his claim was reasonable in light of the evidence it had before it at the time.” The only redeeming portion of this opinion may be this line from Justice Thomas’s opinion expanding the definition of “mitigation:” “it can certainly be reasonable for attorneys to conclude that creating sympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic.”
The news since the last edition is voluminous and, unfortunately, we’ve skipped several stories that would normally be recapped here. John Thompson, the Respondent in Connick v. Thompson, who had been framed in order so that the State could condemn him to death, had a powerful editorial in the New York Times on the injustice done to him first by District Attorney Connick and then by the Supreme Court. Edward Edwards, who some believe to have been the Zodiac Killer, recently died in prison pending execution. Lethal injection news includes further reductions in the available sources for sodium thiopental and seizure of at least some stockpiles in multiple states in light of concerns it was unlawfully imported; Stand Down has more. Maryland’s top court will examine that state’s new death penalty statute. The Texas Court of Criminal Appeals appears to be about to reexamine how future dangerousness is handled in the Lone Star State. In North Carolina the Racial Justice Act appears to be in danger of being gutted in the current legislative session.
While normally the Tennessee Supreme Court’s holding in Coleman v. Tennessee wouldn’t be addressed until next week, I would be remiss for not mentioning it now. The Coleman Court holds that expert testimony may be used to determine whether a person is too intellectually disabled to be execution. “While a person’s I.Q. is customarily obtained using standardized intelligence tests…the [Tennessee] statute does not provide clear direction regarding how a person’s I.Q. should be determined and does not specify any particular test or testing method that should be used.” That statute “does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated.”
As always a heartfelt thank you for reading and understanding that when the weekly doesn’t run Steve Hall’s Stand Down always has the details of the latest news. – k
The first look at this week’s case law isn’t pretty, not in the least, with many, many losses and very bright spots. Hopefully things will run on time, however, I remain in trial through at least Monday and likely until Wednesday. The trial schedule will determine when the weekly edition actually runs.
SCOTUS – FAVORABLE
- Cleve Foster v. Texas, No. 10-8317 (4/5/2011) Stay issued & petition for rehearing ordered in light of the cert grant in Maples v. Thomas. Maples involves “whether a failure to satisfy a state procedural rule in a criminal case could be excused if the convicted individual was blameness for the failure, and the state had some role in the default.” [via SCOTUSBlog]
- Daniel Wayne Cook v. Arizona, No. 10-9742 (4/4/2011) Stay issued. “In Arizona, in a murder case, a post-conviction review of the case is mandatory, after the initial appeal has been tried and failed. It is considered to be a part of the original criminal case, not a separate proceeding. Such a review is ordered in every murder case by the state Supreme Court. In his petition to the Supreme Court, Cook argued that he had a right to an effective lawyer at that proceeding, on the theory that it is the first review allowed by the state for claims of an ineffective defense lawyer. ” [via SCOTUSBlog]
FAVORABLE TO THE ACCUSED OR CONDEMNED
- Comm. v. Donyell A. Paddy, 2011 Pa. LEXIS 686 (Penn 3/30/2011) Remand ordreed on a sole “penalty phase claim of ineffective assistance of counsel for failing to investigate and raise mitigation evidence of Appellant’s background and life history.” Appellate ineffectiveness found to permit the claim to be raised on the facts of this PCRA petition.
I start trial Monday, the weekly (save a decision to dismiss by the State) won’t run this week.
It is that time again. The new weekly email edition is here:
The Georgia Supreme Court this week leads the way.
In David Aaron Perkins v. Hall the Georgia Supreme Court set aside a death sentence because of ineffective assistance at the penalty phase. The Court held counsel was ineffective despite Mr. Perkins’s resistance to their efforts which included refusing even to submit to a mental health evaluation. In relying on ABA Standards in assessing counsel’s performance the Court held that prejudice was established by the non-expert testimony of Mr. Perkins’ behavior including how his behavior changed after two head injuries. On the guilt phase issues, however the defendant defaulted his competency issues. Finally, the Court remanded for further findings a jury note saying it was concerned about its safety which could still yet result in vacateur of the guilt phase verdict.
Similarly the Georgia Supreme Court granted relief penalty phase relief in Nicholas Jason Bryant v. State. In Bryant the trial court improperly admitted victim impact evidence. Specifically, witnesses at trial gave their characterizations of the crime and of Bryant. The trial court did not, however, err when it admitted victim impact evidence from earlier crimes committed by Bryant, but the admitted victim impact went to far when it resulted in certain characterizations of the condemned.
In Kentucky, in Comm. v. Hon. Shepherd, the state Supreme Court turned aside attempts to lift trial court’s order enjoining any execution by lethal injection there. The 5-2 vote means that the multiyear lethal injection related stays there continue, despite the Commonwealth having recently scored enough sodium thiopental to carry out three lethal injections.
In the news “the Supreme Court has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis’ execution.” In Arizona lawyers for Eric King have moved to stay this week’s scheduled execution citing Arizona’s plan to switch to a one-drug execution protocol. Legislatures in Texas and Florida are both weighing substantial and notable changes to eyewitness identification procedures.
As always a heartfelt thank you for reading. – k
Several dispositions missed last week will lead off this week, as well as continuing zealous advocacy around lethal injection claims. Thanks to several colleagues for forwarding the fruits of their work.
In favor the Condemned
- Bryant v. State, 2011 Ga. LEXIS 251 (Ga 3/18/2011) Reversing death sentence because of improper victim impact evidence admitted – witnesses gave their characterizations of the crime and of Bryant, but holding that victim impact evidence from earlier crimes committed by Bryant were admissible, and rejecting many other issues; Justice Carley dissented with regard to the admission of the victim impact evidence.
- Perkins v. Hall, 2011 Ga. LEXIS 255 (Ga 3/18/2011) Setting aside death sentence because of ineffective assistance at the penalty phase even though habeas court found that counsel’s failure to investigate more fully was due to the client’s resistance which included refusing to submit to a mental health evaluation, relying on ABA Standards in assessing counsel’s performance, finding prejudice established by the non-expert testimony of Perkins’ behavior including how his behavior changed after two head injuries, but also holding that whether the defendant was competent at the time of trial was procedurally defaulted; and remanding for a determination of when the jury wrote a note saying it was concerned about its safety – holding that it was prejudicial and requires relief if the note was written during the guilt stage; the Court was unanimous on every issue except the determination that competency for trial was waived – Chief Justice Hunstein, the only dissenter, would follow the Supreme Court’s decision in Pate v. Robinson and hold that the issue of competency cannot be waived.
- Comm. v. Hon. Shepherd, 2011 Ky. LEXIS 31 (Ky 3/24/2011) Kentucky Supreme Court turns aside attempts to use writs for exceptional relief to a lift trial court’s order enjoining any execution by lethal injection in Kentucky; “the wisest course is simply to allow the current litigation to proceed.”
- Ex parte Willie Earl Scott, 2011 Ala. LEXIS 37 (Ala 3/18/2011) Trial court on Rule 32/ postconviction adopted as its “independent and impartial findings and conclusions” large portions of the State’s brief verbatim. “The trial court’s verbatim adoption of the State’s answer to Scott’s Rule 32 petition as its order, by its nature, violates” well established state law precedent. Continue reading
From this week’s edition:
The lede this week, the Supreme Court has granted certiorari in Maples v. Thomas. The cert petition is here. The Constitution Project’s amicus brief in support of the case is also available. As Adam Liptak notes “Sullivan & Cromwell, had agreed to represent Cory R. Maples, a death row inmate in Alabama, without charge. When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened and stamped ‘Return to Sender’.” The rest is history.
In the news, the Georgia Supreme Court heard argument whether the standard of having to prove mental retardation beyond a reasonable doubt is unconstitutional. The death penalty repeal bills have been filed with a good chance of passage this year in Connecticut, Maryland and Montana, where bills are wending their way through statehouses, repeal efforts also are underway in Florida, Ohio, and Kansas, with much lower chances of passage. The Nation’s current issue features the monthly column, Ten Things which this month is, Ten Things to Abolish the Death Penalty.
In lethal injection news, Georgia got caught apparently breaking the laws governing drug importation to score itself sodium thiopental for its lethal injection process. The North Carolina Supreme Court recently heard arguments whether an administrative law judge was right to order state officials in 2007 to revamp North Carolina’s protocol for executions. Texas has switched to pentobarbital from sodium thiopental in its execution protocol. “Attorneys in Arizona, Georgia and Kentucky have called on the Justice Department to investigate how the states acquired a key lethal injection drug that is in short supply in the U.S.” “With two executions scheduled in Arizona within the next 16 days and two more looming in coming months, last-ditch motions for appeals and stays of execution are flying through state and federal courts, many of them centering on the importation and use of a drug used in the executions.”
As always, a big thanks to Steve Hall & the Stand Down Project, as well as a heartfelt thank you for reading. – k
More wins than last week, after the jump: Continue reading
We’ll get everything out by Tuesday
morning, running late on case law (more than usual decisions at just under 100 decisions).
From wire sources:
The Drug Enforcement Administration on Tuesday seized Georgia’s supply of a key lethal injection drug less than two months after the state executed a man who unsuccessfully argued it was bought from a “fly-by-night” supplier in England.
Agency spokesman Chuvalo Truesdell wouldn’t elaborate on exactly why the DEA wanted to inspect Georgia’s supply of sodium thiopental, a sedative that is part of a three-drug cocktail used in executions that has been in short supply since the sole U.S. manufacturer stopped making it.
“We had questions about how the drug was imported to the U.S.,” he said. “There were concerns.”