Capital Defense Weekly

Lowest in 14 years

Pending execution data on the right side of the screen has been updated.   In addition to the 33 people already executed this year another 5 execution dates are considered serious.  As a result of the updated execution dates and the number of people executed so far this year, barring surprises, there will be no more than 38 people executed this year.  If 38 or fewer people are executed this year it will be the lowest number of people executed since 1994 and the marks a 60% decline since the peak of the modern death penalty in 1999.

Eric Holder as Attorney General

News accounts have President-Elect Obama naming Eric Holder as his AG choice.

President-elect Barack Obama’s top choice for attorney general is Eric Holder, a former No. 2 Justice Department official in the Clinton administration and Obama campaign aide who would become the first African American to serve as the nation’s chief lawyer.

Holder testified before Congress on the subject as follows:

SEN. SPECTER: Mr. Holder, philosophically do you agree with the imposition of the death penalty?

MR. HOLDER: I am not a proponent of the death penalty, have stated that publicly on many occasions, but would not hesitate to enforce any law that this Congress has passed that has a death penalty provision.

SEN. SPECTER: So that if an issue came before the Senate, illustratively, and you were in the Senate, you would vote against the death penalty?

MR. HOLDER: It would depend on what the provision was. I have testified before the D.C. City Council that it is the policy of my office, where a law enforcement officer is killed, to seek the death penalty in that situation.

His confirmation from his last stint at Justice is here.  Link to follow on a good examination of his positions on other crimlaw issues.

Dick Cheney indicted (not an April Fools Joke)

A Texas grand jury has indicted the Vice President for malfeasance. Via the Houston Chronicle:

A South Texas grand jury has indicted Vice President Dick Cheney and former Attorney General Alberto Gonzales on state charges related to the alleged abuse of prisoners in Willacy County’s federal detention centers.

The indictment, which had not yet been signed by the presiding judge, was one of seven released Tuesday in a county that has been a source of bizarre legal and political battles in recent years. Another of the indictments named a state senator on charges of profiting from his position.

Rogelio Cannady stayed in Texas

TMN notes:

AP is reporting that

Texas death row inmate Rogelio Cannady will avoid execution Wednesday over a 1993 prison killing.

Cannady’s execution date was withdrawn today by Judge Ronald Yeager.

Cannady’s recently appointed appeals lawyer asked for more time to review the case. The judge ordered a March hearing to reset the punishment date.

Cannady has been sending a friend daily entries on a diary that his friend has been posting online at Death Watch Journal.

Eric Cathey Stayed in Texas

The execution of Eric Cathey was stayed by the Texas Court of Criminal Appeals.  The Chronicle notes:

The court remanded Cathey’s appeal to a lower court for a hearing on his claim that he is mentally retarded.

Cathey, 37, would have been the 18th killer executed in Texas this year.. . .

In his petition to the appeals court, Cathey argued that executing a mentally retarded inmate would violate the Eighth Amendment ban on cruel and unusual punishment.

Secondly, he argued that his right to due process would be violated unless a hearing was held to weigh his claim of being mentally retarded.

William Dillon to be released after 27 years for crime he didn’t commit

[update]

William Dillon was released today following 27 years for a murder DNA says he didn’t commit in Breward County, Florida.

William Dillon, 49, was let out on $100,000 bond in advance of his Jan. 7 retrial, which his supporters hope will turn out differently.

“I don’t see how they could re-try this case,” said Melissa Montle, an attorney with the Innocence Project of Florida, which paid for the DNA testing and drafted pleadings in the case. “All they have is a fraud, an admitted perjurer, a snitch, and a half-blind eyewitness.”

Dillon was convicted in the 1981 bludgeoning death of James Dvorak at Indian Harbor Beach, a killing police described at the time as a robbery gone wrong.

Testing for DNA evidence wasn’t available during his original trial. New tests showed Dillon’s DNA was not found on a bloodstained yellow T-shirt presented as key evidence during his trial. The victim’s blood was on the shirt, along with the DNA of two other people, not Dillon.

Dillon was smiling and surrounded by family and a horde of media after his release. He’ll be able to spend his first Thanksgiving at home since going to prison. Under his blazer he wore a black T-shirt with the words “Not Guilty” on it.

“When I first went behind the bars, I couldn’t believe that it happened. And then I never thought it was gonna be corrected. But, boy, let me tell you how I feel right now at this moment in my life,” he said, stopping frequently to compose himself. “This is something I thought about and dreamed about for years and years and years.”

As is often the case where the Defendant is likely factually innocent, the prosecution appears to be clinging to a case it should have let go a long time ago.

Boston Legal

Another great rant in closing against the death penalty.  YouTube link to follow when its avaialable.  Great show.

Kirk Bloodsworth b’day wish

Okay, I’m a little late on this one.  Kirk Bloodsworth celebrated his 48th b’day recently.  Here was his hope for his b’day:

So today, in honor of my 48th birthday and of the work that The Justice Project and I do to reform the broken criminal justice system, I ask you to send a gift of $48, or whatever you can manage. Visit our website at http://www.thejusticeproject.org to learn more or to make a tax-deductible contribution today.

I feel like a total loser as for my b’day last month I wished for a nice bottle of wine and no court appearances.

NYT gets it right: Pardon the Norfolk Four

The New York Times today got it right  today in asking Gov. Tim Kaine of Virginia to pardon the Norfolk Four. [H/T TalkLeft]

DIG in Bell v Kelly

The Supreme Court this morning Dismissed as Improvidently Granted the cert grant in Bell v Kelly. More to follow.

[via iPhone]

cert grants from Friday

via SCOTUSBlog

In the other three cases, all focusing on criminal law issues, the Court will decide whether an individual can be retried on charges on which a jury could not agree in an earlier trial in which the jury acquitted on other charges (Yeager v. U.S., 08-67), whether using a telephone or e-mail to buy drugs for personal use converts that minor possession crime into a felony, with heavier penalties (Abuelhawa v. U.S., 08-192), and whether a federal law imposing an enhanced sentence for firing a gun during a drug crime or other violent crime applies if the gun was fired accidentally or involuntarily (Dean v. U.S., 08-5274).

email edition

This week’s email edition it out.  From the intro:

Leading off this edition is Thursday’s decision from the Florida Supreme Court in State v. Faunce Levon Pearce.  The trial court in Pearce granted both guilt phase and penalty phase relief based on trial counsel’s performance.  Finding no prejudice as to trial counsel’s performance in the guilt phase, specifically, not moving for a motion in limine to exclude certain evidence and to object at certain points in the trial, the Court reinstates Pearce’s conviction.  The Pearce Court affirms, however, the grant of penalty phase relief, despite the condemned’s purported waiver of mitigation evidence as “counsel never investigated Pearce’s background, never interviewed members of Pearce’s family, and never investigated mental health issues. Therefore, counsel was unable to advise Pearce as to potential mitigation.”

Of note as well is Roderick Davie v. Mitchell from the Sixth Circuit. Davie offers three opinions, including a dissent by Judge Merritt, on  AEDPA & Miranda v. Arizona.  As one conservative commentator noted:, “this case strikes me as something of a close call, and is largely dependent upon how one characterizes the repeated interactions between Davie and the police. If one thinks these interactions were relatively benign and non-coercive, the majority is correct. If, on the other hand, the repeated interactions with the police were more menacing — Judge Merritt characterizes each interaction as a “confrontation” — then Davie’s confession may have been obtained in violation of Miranda. “

The National Law Journal caused a small stir this past week when it announced the Department of Justice planned to issue the final regulations for AEDPA/PATRIOT Act’s “opt-in”/”fast-track” proposal.  The regulations that DoJ previously put out for comment are here. The comments submitted by the Judicial Conference of the United States asked that as written the regulations should be rejected, as did almost all others submitting comments.  The daily blog, StandDown, DPIC, CapDefNet, among others, will all carry the final regs the moment they hit are known. The proposed regulations do not, however, address the greatest source of delay for AEDPA era habeas cases

The Maryland Commission on Capital Punishment voted 13-7 to make the  recommendation in its report to lawmakers and the governor next month to abolish the death penalty.  The vote came after the failure of a proposed amendment to keep the  death penalty for people who kill correctional officers or police  officers. The report to the General Assembly is due Dec. 15. [more]

The University of Texas School of Law’s Capital Punishment Clinic is celebrated it’s 20th anniversary with a symposium this week.  The Clinic has been a vital source for post-conviction review of Texas death penalty cases, including notable victories in the U.S. Supreme Court.  Congrats to all who have participated over the years.

As noted last week, the formatting of the “weekly” has changed.  The goal is to bring to readers’ attention “new” cases more quickly than has been happening. My apologies for any confusion or missed cases in the week that just passed (we’ll catch them next week, however this is a first draft of this area of case law, not the definitive one.

As always thanks for reading.  A special thanks to DPIC, Steve Hall, Sandrine Ageorges, & CapDefNet whose work has been heavily relied upon in the creation of this edition.   - k

safe surrender

An interesting story out of Philadelphia and its sister city across the river, Camden, NJ, on getting felons on the loose out of the shadows to resolve their outstanding warrants.

New Jersey fugitives can take advantage of Fugitive Safe Surrender next week, as Camden becomes the 12th city nationwide to host the peaceful surrender program since 2005.

“I was kind of nervous and scared about going to the courts and getting it done,” said Williams, whose charges were dropped the day he surrendered. “More than definitely, I would tell people to go this route. I’ve seen somebody come with a warrant. It ain’t nothing pretty. They might come for you at 2 or 3 in the morning. You just never know when they’re coming.”

With his record now clear, Williams is looking for part-time work on the books and receiving disability for chronic injuries sustained in a fire when he was a child.

“We used to tell them in the FBI, ‘you want to go head first or you want to go feet first,” said State Parole Board Chairman Peter Barnes Jr., who spent decades in the FBI. “”‘It’s up to you how you want to handle it.”

Barnes said he hopes more than 1,000 New Jersey felons surrender at Antioch Baptist Church, 690-700 Ferry Ave., Camden between 9 a.m. and 4 p.m. Nov. 19-22.

Most people wanted for nonviolent offenses … such as drug possession or theft … will be able to return home the same day after being given a court date for later.

Those wanted for violent offenses will have their cases looked at more favorably by judges, Barnes said.

Fugitive Safe Surrender has been held in 11 U.S. cities, resulting in the resolution of 14,892 cases. It began in Cleveland in 2005 in response to the killing of a city police officer by a fugitive, and was authorized by Congress the next year. It’s run by the U.S. Marshals Services and geared toward nonviolent felons, but U.S. Marshal for New Jersey Jim Plousis said no one would be turned away.

“Camden is one of the most violent cities in the country and one of the poorest, so we believe it can only help in Camden,” said Plousis.

Florida: grant of penalty phase relief

The Florida Supreme Court today affirmed the grant of penalty phase relief in State v. Faunce Levon Pearce.   The reason for the grant of relief are, not unusual or surprising, counsel failed to adequately prepare for the penalty phase:

We find there is competent, substantial evidence to support the trial court’s finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce’s waiver. In preparing for the penalty phase, counsel never investigated Pearce’s background, never interviewed members of Pearce’s family, and never investigated mental health issues. Therefore, counsel was unable to advise Pearce as to potential mitigation. Thus, the evidence supports the trial court’s finding that Pearce’s waiver of the presentation of mitigating evidence was not knowingly, voluntarily, and intelligently made. Pearce suffered prejudice based on this lack of a knowing waiver because there was substantial mitigating evidence which available but undiscovered. We affirm the trial court’s conclusion that Pearce established a claim for ineffective assistance of counsel in the penalty phase of the trial.

notable from elsewhere

Two great posts from elsewhere:

via TChris at Talkleft

Six people convicted in 1985 of a Nebraska murder have been exonerated by DNA testing that implicates the man police originally viewed as a suspect. The day after the murder, Bruce Smith had scratches on his face. A blood test by the Oklahoma City crime lab seemed to rule out Smith as a suspect. The lab made a mistake. Recent DNA testing places Smith at the scene of the crime and rules out the six wrongly convicted defendants.

via Matt at Change. org (whose RSS feed while add Friday)

A panel appointed to study Maryland’s death penalty system by Gov. Martin O’Malley voted last night to recommend abolishing the practice, based on racial disparities in executions, the chance of executing an innocent person and the system’s cost.. . .

Last year, the Senate Judicial Proceedings Committee voted 5-5 on a bill to abolish capital punishment, keeping the issue off the senate floor. Republic State Senator Alex X. Mooney could be a swing vote this year. He told the Baltimore Sun that he was interested in “reading every word” of the report.

“I still haven’t come to the position where I would ban the death penalty in all circumstances,” Mooney said. “I’ll continue to pray about it and make up my mind.”

Send Mooney an email today urging him to vote for an end to this cruel - and ineffective - punishment in his state.

Texas kills

Tonight Texas killed Denard Mann.  From local media:

After saying he was “ready for the transition,” Twice-convicted robber Denard Manns, 42, was executed Thursday evening in Huntsville for the robbery, rape and murder of a Fort Hood medic who was killed in her apartment near post.

Manns was executed almost 10 years to the day after the Nov. 18, 1998 killing.

Before he received the lethal injection, he criticized his trial attorneys by name for what he said was an unfair trial, criticized an appeals attorney for “purposely bringing up claims that did not exist,” and thanked a third lawyer for taking on his appeal after he was supposed to have been off the case.

He expressed love to his friends, and then said, said, “I’m ready for the transition.”

He uttered what appeared to be a brief prayer three times, and then he died.
He was pronounced dead at 6:24 p.m.

Recommendation made to abolish the death penalty in Maryland

The Maryland Commission on Capital Punishment voted 13-7 to make the  recommendation in its report to lawmakers and the governor next month.

The vote came after the failure of a proposed amendment to keep the  death penalty for people who kill correctional officers or police  officers.

The report to the General Assembly is due Dec. 15. [more]

notable post from elsewhere

Doug Berman has this notable piece on AEDPA & capital habeas jurisprudence. From that piece

Two events this morning have me thinking about federal habeas review in state capital cases and about the (limited?) potential for a new administration to impact these issue:

1. The Supreme Court this morning is hearing argument in Bell v. Kelly(SCOTUSwiki description here), which is an important concerning standards of review under AEDPA.  This NACDL amicus brief explains effectively what may be at issue in Bell v. Kelly:

[This] case squarely presents the Court with an opportunity to address the relationship between minimal procedural fairness and the comity and federalism concerns embodied by the Anti-Terrorism and Effective Death Penalty Act (AEDPA)…. The way in which the Court decides this case will influence whether state postconviction courts believe they are required to provide a minimally fair process in order for their decisions to be steeled from federal review by the provisions of the AEDPA.

2. A split panel of the Sixth Circuit today in Davie v. Mitchell issued three separate opinions in the course of affirming an Ohio death sentence on federal habeas review.  At the start of his lengthy dissent, Judge Merritt minces no words about his view of the outcome:

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).  Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.

Texas kills

Texas tonight killed a repentant George Whitaker III:

A Houston-area man condemned for fatally shooting his ex-girlfriend’s sister during an attack that also seriously wounded the former girlfriend’s mother and another sister was executed Wednesday.

George Whitaker III expressed love to family members and asked for forgiveness.

“I apologize for your pain and suffering,” he said, mentioning the parents of his victim by name. None of her relatives were present.

Whitaker asked that the Lord give them strength, adding, “I pray Lord, please forgive me.”

He asked his stepfather, brother and a friend who watched through a window to take care of his two daughters.

“Continue to pray for me. I am fine. I’ve made peace with God. Please don’t ever forget me,” he said.

As the lethal drugs began flowing, Whitaker said, “Take care. I’m going on to sleep.” Eight minutes later at 6:15 p.m. CST, he was pronounced dead.

Whitaker had exhausted his appeals and also lost a clemency bid before the state parole board, clearing the way for him to become the 16th Texas prisoner executed this year. Another lethal injection was set for Thursday evening in the nation’s busiest capital punishment state.

Whitaker, 36, was convicted of gunning down 16-year-old Shakeitha Carrier in 1994 at her family’s home in Crosby, just east of Houston in Harris County.

catch-up

Just to catchup on some news stories & what not that deserve their own post but….

• In State v. Michael Addison, the other New Hampshire capital trial we’ve been following, , the jury has begun deliberating the guilt of Mr. Addison for killing police officer Michael L. Briggs.  A bill to repeal the New Hampshire death penalty will likely be filed in the new session regardless of the jury’s decision.

• The Brian Nichols penalty phase begins Wednesday.

• A new trial skills journal published by the American Society of Trial Consultants features social sciences research articles by academics with commentary by trial consultants as well as articles on litigation advocacy skills by experienced trial consultants. (more when I get a chance to actually sit down and read it as it looks to be put together quite well).

• We’ve heard that the death row lockdown in Texas will end possibly as early as Wednesday.  Thanks to all the readers who have let us know how disappointed they are in TDCJ for not being more upfront with how long the lockdown would likely last (including at least one international traveler who wasted thousands of dollars on a visit only to be told they wouldn’t be permitted a visit once they arrived).

• We’ve  updated the various RSS feeds to the right side of the screen. A few more will be added by the end of the week.  If there is something you would like added please drop a line at info [at] capitaldefeneweekly [dot] com.