Breaking news from the Supreme Court this week, again, steals the headlines. The execution ofGary Leon Brownin Alabama has been stayed by the Court. The issue appears to be either related toApprendi v. Arizona&/or Alabama's retention of theelectric chair.

This week's lead case is the Seventh Circuit's en banc opinion inBracy v. Schomig. A split court holds the real possibility that the trial judge, who was subsequently convicted of fixing criminal cases, engaged in compensatory bias by fixing the punishment at death in this case. Evidence of guilty phase misconduct, however, was not held sufficient to require reversal.

The Tennessee Court of Criminal Appeals inTennessee v. Huskeyaddresses the issue of when a trial court may remove counsel in a capital case. Noting that other, less draconian remedies remain available to the trial court, the Court of Criminal Appeals reinstates lead counsel. "[R]emoval of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed."

Three additional cases are listed as hot. InBooth-El v. Nuth, the Fourth Circuit has reversed a district court grant of relief as the district court erred in granting relief on the ground that the removal of intoxication as a statutory mitigating factor at his 1990 re-sentencing violated the Ex Post Facto Clause. A split Fifth Circuit panel inMayo v. Cockrell, has held that for purposes of the Sixth Amendment a motion for new trial is not "critical stage" of prosecution. Finally, one of the most conservative jurists in the nation, Judge Luttig of the Fourth Circuit, concurring on the denial of rehearing en bancHarvey v. Horan, notes his belief that there is a constitutional right for inmate's to have access to DNA testing independent of habeas corpus proceedings.

In other news of note, the first death sentence in over 150 years was returned this week in Michigan, with the return of a federal death sentence against Marvin Gabrion for the murder of 19-year-old Rachel Timmerman. The verdict, while notable, does not stand alone as the federal prosecutors are more aggressively seeking death sentences in abolitionist states most notably in New England and Michigan. In light of this verdict, Focus this week covers the use of the federal death penalty in states that have abolished capital punishment,Death isn't welcome here: evaluating the federal death penalty in the context of a state constitutional objection to capital punishmentby Sean M. Morton. 64 Alb. L. Rev. 1133-1466 (2001).

Elsewhere, theAmerican Bar Associationformally launched their moratorium project's website. Nationally, there are just under 2000 communities and organizations that have called for moratoria, with such groups asPeople of Faith Against the Death Penalty(North Carolina) andNew Yorkers Against the Death Penalty, aggressively seeking additional communities and organizations.

Execution Information

Since the last edition the following have been executed:

April

2 Daniel Zirkle Virginia--volunteer

Currently listed as "serious" are:

April

5 Gary Brown Alabama

10 Paul Kreutzer Missouri

10 Abu-Ali Abdur'Rahman Tennessee

10 Jose Santellan Sr. Texas

11 William Burns Texas

17 Robert Henry Texas

18 Gerald Casey Texas

19 Lynda Lyon Block Alabama

26 Alton Coleman Ohio

30 Rodolfo Hernandez Texas

This week's edition is available online athttp://capitaldefenseweekly.com/archives/020401.htm

HOT LIST

Bracy v. Schomig, 2002 U.S. App. LEXIS 5294 (7th Cir 03/29/2002) (dissents) Petitioner's sentence must be vacated where the trial judge, who was subsequently convicted of fixing criminal cases, more likely than not engaged in compensatory bias in fixing the punishment in this case.

In evaluating Maloney's rulings at the penalty phase of this proceeding, we are again mindful that death is indeed different. In a separate opinion in Spaziano v. Florida, 468 U.S. 447, 468, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984), Justice Stevens pointed out that in the 12 years that passed since Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), "every Member of this Court has written or joined at least one opinion endorsing the proposition that [*25] because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense." Those safeguards, we think, are found not just in the statutory provisions of any given state, but also in the manner in which those provisions are implemented in trial courts. Additionally, while the guilt phase of a trial is largely objective, involving cold, hard facts about what happened, a death penalty hearing often involves a good deal of subjective evidence. Evidence in mitigation often consists of testimony about what damaging forces a defendant has endured in his life or what kind of a person he otherwise is. We should not be misunderstood to be saying that rulings at the guilt phase are subject to a harmless error analysis, whereas in the penalty phase they are not. As we said earlier, harmless error does not apply to claims of judicial bias, ever, even in cases involving insurance payments or municipal ordinance violations, to say nothing of first-degree murder trials. But when we are dealing with alleged judicial bias, the nature of evidence in [*26] aggravation and mitigation requires us to look at the penalty phase with a skeptical eye, keeping in mind that as the trial judge, it was Maloney's solemn responsibility to see that the death penalty hearing was fair. He failed miserably. And his failure was so egregious that it supports an inference that he failed, consciously or unconsciously, because of compensatory bias. If the death penalty hearing had been scripted, it could not have been more damaging to Bracy and Collins.

We recall that McDonnell said he would be ready for trial a few weeks after he was appointed as Bracy's attorney. But an examination of the record shows, although it turned out that he was adequately prepared for the guilt phase of the case, he wasn't prepared for the penalty hearing, nor could he have been. It was not until the beginning of the trial that the prosecutor announced that at the penalty phase he planned to introduce, as an aggravating factor, evidence that Bracy was charged with murdering two people in Arizona. So McDonnell was about to embark on a jury trial in which his client was charged with three murders. And if Bracy were convicted, there would be evidence of two more, as yet unproven, [*27] murders committed in another state. We doubt McDonnell could possibly have been fully prepared for the penalty hearing.

When the guilt phase was over and the penalty hearing about to begin, McDonnell objected to the use of the Arizona murders as aggravating factors because there had been, as yet, no conviction in Arizona. Maloney seemed at first to agree that the use of the testimony was questionable. He said:

It hasn't been tried? On what authority are you going to introduce or attempt to introduce it here? Later he said, "Just assuming here if that were the case and then he were to be acquitted there and you had used part of the same evidence. Then where would we stand here?" On this point, Collins' attorney, Irvin Frazen, asked for a severance. He was concerned that the Arizona evidence against Bracy would spill over onto Collins. Ultimately, Maloney denied Collins' severance motion and, without saying why, determined that the Arizona evidence would be admitted.

McDonnell then did the next best thing; he appropriately asked for a continuance so he could properly prepare for the explosive Arizona evidence. He complained that he had recently been provided 80 pages of information [*28] about the Arizona case. The government said only 3 pages of the 80 pages were relevant. Apparently the prosecutor's assessment was allowed to prevail; again without giving a reason, Maloney decided that the death penalty hearing would proceed against both defendants: "We are not adjourning anything for a week or ten days. We are proceeding, as a matter of fact."

The evidence of the Arizona murders was admitted and it was inflammatory. It was the story of a nasty home invasion resulting in the brutal murder of two people. The survivor of the attack was the wife of one of the victims and the daughter of the other. She identified Bracy as one of the attackers.

The Illinois Supreme Court found no error in the refusal to grant a continuance because Bracy was not prejudiced by the introduction of the evidence. That was true, the court said, because by the time of the appeal Bracy had, in fact, been convicted in Arizona:

If we were to find the denial of the continuance to have been improper and remand for a new sentencing hearing, the State would then introduce Bracy's Arizona convictions into evidence, thus raising an even stronger inference that Bracy committed the Arizona crimes. [*29]

478 N.E.2d at 286. This sounds to us more like a finding of harmless error than a finding that Maloney's discretion was properly exercised. Our job is different from that of the Illinois Supreme Court. We need to view Maloney's actions as of the time of trial. At that time, he could not have known that Bracy would be convicted, and for that matter there was even some doubt that Bracy would actually be tried in Arizona. In the context of a capital sentencing hearing on an issue on which harmless error does not apply, Maloney's ruling, even if supportable on a direct appeal as not being an abuse of discretion, lends support to an inference that he was showing compensatory bias. It is more than a fair inference that increasing the likelihood of the imposition of the death penalty would be fine with Judge Maloney.

Later, McDonnell again objected to the Arizona evidence, saying that it had come to his attention that there was a 1980 case presumably supporting his position that the evidence was inadmissible "although I do not have the citation." When asked if he had a case on point, McDonnell said, "McDonnell n2 on common sense." He repeated that he did not have the citation. [*30] He said, "I will try to find the case. If I can't find it, the Appellate Court can find it or the Supreme Court." Maloney said "All right." Less concern about the fate of the defendants and the importance of this discretionary ruling on the admissibility of explosive evidence could hardly be imagined.

Finally, mitigation. No evidence in mitigation was presented as to Bracy and little was offered as to Collins. Yet evidence in mitigation is crucially important in death penalty litigation. In Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Court said that the "sentencer" must not "be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." See also Buchanan v. Angelone, 522 U.S. 269, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998). [*31]

Maloney was sublimely unconcerned about a lack of evidence in mitigation, as unconcerned as he was about McDonnell's lack of preparation for meeting the Arizona evidence. In fact, Maloney even tried to discourage McDonnell from making a closing argument at the death penalty hearing.

MR. McDONALD [SIC]: Wait a moment, judge.

THE COURT: What do you want?

MR. McDONALD: I want to argue.

THE COURT: You do?

MR. McDONALD: Certainly. Maloney then called for a side-bar conference:

THE COURT: You don't have to argue in this case.

MR. McDONALD: I want to argue.

MR. FRAZIN: Arguments are part of it.

THE COURT: They can be but they don't have to be.

Ultimately, arguments were allowed.

McDonnell seemed to do the right thing in insisting on argument. But given his inability to counter the Arizona evidence because of Maloney's denial of the continuance, he had nothing to say about the State's evidence in aggravation. With no evidence in mitigation, he had nothing to talk about on that score as well. So it should come as no surprise that his "argument" was simply a tirade against the death penalty:

This is a human being and we don't [*32] have the right to take another person's life. Only God can do that. God gave us this life and only God can take it away, and I don't care, none of us have the right to take a fellow human being's life, not Bracy, not his Honor, not the prosecutor, and not you people.

Not only is this sort of argument inadmissible in a sentencing hearing, see People v. Williams, 97 Ill. 2d 252, 454 N.E.2d 220, 73 Ill. Dec. 360 (1983), but, worse, it "invited" the prosecution to come back with an incendiary retort of its own -- that to say the death penalty is wrong is to malign all veterans:

I've heard that before. People in 1941 through 1945 killed in the name of their country [at which time an objection was overruled] in service to their country. Some of us went to Viet Nam and had to kill for this country, and I will be damned if anybody is going to tell me that what we did in Viet Nam or in any other war was a violation of the Fifth Commandment of the Bible.

Later, the prosecutor referred to McDonnell's argument as "a slap in every veteran's face."

The prosecutor also alluded to the chance that Bracy and Collins might "escape from Stateville" again if they were given [*33] another chance: "Should we give them another chance; lock them up and give them a chance to escape and kill someone else?"

The Illinois Supreme Court noted that the prosecution's remarks were a "bit dramatic" but rejected the claim that they constituted reversible error because, the court said, "there is no question that they [the prosecutor's remarks] were invited." We agree. The remarks were invited. McDonnell's argument was so objectionable that it is hard to see how he or Maloney could not have known what type of response the prosecution was going to make to it. It is pushing credibility to imagine that an experienced trial judge (for Maloney was experienced, if not honest) did not see this scene unfolding. The prosecutor repeatedly called Maloney's attention to the objectionable nature of McDonnell's argument. Yet Maloney did nothing. Imposition of the death penalty was a foregone conclusion in this case.

Had the prosecutor's comments not been invited, it seems likely that the courts of Illinois might very well have ordered a new death penalty hearing for Bracy and Collins a decade ago. In Murray Hooper's first appeal, the Illinois Supreme Court vacated his death sentence. [*34] Hooper, as we have said, was charged along with Bracy and Collins with the murders in the present case. In Hooper's case the prosecutor speculated that if he were placed in prison for life, Hooper might very well kill a guard or a chaplain. Relying on cases where it found a reference to parole and to the possibility of committing more murders improper and prejudicial [People v. Walker, 442 N.E.2d 83 (1982); People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146, 119 Ill. Dec. 287 (1988)], the court vacated Hooper's death sentence. People v. Hooper, 133 Ill. 2d 469, 552 N.E.2d 684, 142 Ill. Dec. 93 (1989). Reference to escape from prison in Bracy's and Collins' case can hardly be less damaging than reference to the possibility of parole in Hooper's. It seems likely that if McDonnell had not set the prosecutor up so nicely, and if Maloney had not been so deliberately indifferent to the petitioners' fates, the death sentences imposed on Bracy and Collins might, like Hooper's, have been vacated many years ago.

What possible motive could Maloney have had to allow such gross impropriety at this hearing? We feel compelled not to shirk from seeing the strong [*35] inference, given what we now know about Maloney, that he deliberately let this death penalty hearing become a debacle because imposition of the death penalty on these two men would bolster his reputation as a tough judge. We must do no less than Judge Strayhorn who, while recognizing the extent of Maloney's corruption, also recognized that in the Titone case he could not be certain about the role corruption might have played. He said, "I'm always faced with the fact that I can't answer the question of was he tried in a fair tribunal before a judge who gave him a fair and an honest trial. And I must always stop and say that honestly I don't know." But he also said, "no amount of procrastination on my part, no amount of reluctance on my part can wipe out the fact that . . . what went on in that courtroom as to Dino Titone was not justice." He ordered a new trial.

In our case, it is a fair, if not inevitable, inference that Maloney used the death penalty hearing to deflect suspicion that might be aroused because of, say, his acquittal of another accused murderer who had bribed him. Without a confession from Maloney, we never will know for sure. But absolute certainty is not required. [*36] The burden we place on petitioners never is absolute. Defendants -- especially defendants facing death -- have a right under the Due Process Clause to a "fair trial in a fair tribunal." Withrow v. Larkin, 421 U.S. 35, 46, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975). We think this means they have a right to a judge who takes seriously his responsibility to conduct fair proceedings, a judge who looks out for the rights of even the most undeserving defendants. Maloney fell far short of that mark. Given all the other circumstances that show Maloney's utter disregard for justice, we think the inference that compensatory bias was at work in the death penalty phase of this case is a more compelling explanation for Maloney's actions than things like incompetence, negligence, happenstance, or accident.

Tennessee v. Huskey, 2002 Tenn. Crim. App. LEXIS 265 (Tenn Crim App 03/26/2002) The trial court's removal of lead counsel in this case based on the court's finding of an abusive approach to litigation by counsel exceeded its discretion and violated the defendant's right to counsel.

The issue now relates to whether and under what circumstances the trial court may remove counsel, over the objection of counsel and the defendant, once adversary [*16] proceedings have begun. The defendant asserts that counsel cannot be discharged based on the trial court's "predilections, sensitivities, or displeasure with counsel's representation of Mr. Huskey unless the Court finds that counsel is not providing the accused the effective assistance of counsel." The state agrees that the relationship may not be arbitrarily ended by the trial court but asserts that the trial court in this case properly exercised its discretion to remove counsel.

Some circumstances demand the removal or disqualification of counsel in the interest of justice, notwithstanding the implication of the defendant's right to counsel. For example, "an accused is entitled to zealous representation by an attorney unfettered by a conflicting interest. To establish a denial of the sixth amendment right to counsel, it is sufficient to show that an actual conflict existed." State v. Thompson, 768 S.W.2d 239, 245 (Tenn. 1989) (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S. Ct. 1708, 1716-19, 64 L. Ed. 2d 333 (1980)). Also, federal courts "must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may [*17] be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat v. United States, 486 U.S. 153, 164, 108 S. Ct. 1692, 1700, 100 L. Ed. 2d 140 (1988). Further, "all will agree that if the defendant's attorney exhibits objective evidence of physical incapacity to proceed with a meaningful defense of his client . . . the court need not sit idly by; it should inquire into the matter on its own motion, and if necessary relieve the affected counsel and order a substitution." Smith, 440 P.2d at 73; see also Tenn. S. Ct. R. 8, DR 2-110(B)(3) (providing for the mandatory withdrawal of an attorney whose "mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively").

The more difficult question before us is whether the trial court may remove defense counsel based on its finding that counsel's approach to litigation is an abuse of the legal system. A review of decisions from other jurisdictions reflects that, in the context of the right of a defendant to continued representation by a particular attorney, absent the consent of the defendant or [*18] counsel, the removal of counsel on the trial court's own motion is allowed on a very limited basis.

In Smith, described by at least one court as the "lead case" on the subject, People v. Johnson, 215 Mich. App. 658, 547 N.W.2d 65, 69 (Mich. Ct. App. 1996), the California Supreme Court decided the "unprecedented issue of whether a trial judge has or should have the power to remove a court- appointed defense attorney, over the objections of both the attorney and the defendant, on the ground of the judge's subjective opinion that the attorney is 'incompetent'" to proceed. Smith, 440 P.2d at 66. The court acknowledged the trial court's duty to ensure that the defendant is provided the effective assistance of counsel. "But in discharging that duty the judge must be on his guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." 440 P.2d at 72. The court determined that the "inhibition imposed on a defense attorney by [the threat of removal] constitutes a serious and unwarranted impairment of his client's right to counsel." 440 P.2d at 74. It stated:

The constitutional guarantee [*19] of the defendant's right to counsel requires that his advocate, whether retained or appointed, be free in all cases of the threat that he may be summarily relieved as "incompetent" by the very trial judge he is duty-bound to attempt to convince of the rightness of his client's cause. Here . . . "the recognition of such an authority would involve the surrender of a substantial amount of the independence of the bar, and, in many instances would deprive litigants of a fair hearing."

440 P.2d at 75 (quoting Gallagher v. Municipal Court of Los Angeles, 31 Cal. 2d 784, 192 P.2d 905, 914 (Cal. 1948)). The court concluded that when removal is permitted at all, it requires objective evidence of counsel's physical incapacity to continue or serious misconduct by counsel which cannot be addressed through other reasonable measures. 440 P.2d at 72-74.

As summarized in an earlier decision, California courts have emphasized that the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources - and that desire can constitutionally be forced to [*20] yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.

People v. Crovedi, 65 Cal. 2d 199, 417 P.2d 868, 874, 53 Cal. Rptr. 284 (Cal. 1966). In the present case, the state suggests that such language denotes that California has adopted a "broader standard" than other jurisdictions that have considered the involuntary removal of counsel. Based on our review of relevant cases, however, we are not convinced that this is the case. California decisions continue to reflect that the trial court's discretion to remove counsel absent the consent of the defendant and his counsel is "severely limited," and that "courts should seek an accommodation reasonable under the facts of the particular case." People v. Lucev, 188 Cal. App. 3d 551, 233 Cal. Rptr. 222, 225 (Cal. Ct. App. 1986) (citing People v. Courts, 37 Cal. 3d 784, 693 P.2d 778, 210 Cal. Rptr. 193 (Cal. 1985)). Decisions of the California courts as well as those of other jurisdictions similarly illustrate the balancing of interests that a [*21] trial court must undertake when determining whether the removal of counsel is justified under the circumstances of a particular case to the end that "a reasonable accommodation of seemingly conflicting values shall thereby be achieved." Crovedi, 417 P.2d at 874.

In Harling v. United States, 387 A.2d 1101 (D.C. 1978), the District of Columbia Court of Appeals similarly determined that while the right to assistance of chosen counsel is not absolute, a court may not arbitrarily infringe upon it. The court stated that "gross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court's removal of an attorney, even over the defendant's objection." Id. at 1105. However, "mere disagreement as to the conduct of the defense certainly is not sufficient to permit the removal of any attorney." Id.

Finally, the Texas Court of Criminal Appeals has rejected the authority of a trial court to remove counsel based on its apparent dislike for counsel's conduct of the case. Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1980). While pointing [*22] with approval to the "unquestionable precedential value" of the decisions in Smith and Harling, among others, the Stearnes court noted, however, that the case "reveals a more serious misuse of judicial power" than those cited because the trial court "chose not to remove trial counsel for his incompetence but for his competence." Id. at 223.

Recognizing that the right of a defendant to his chosen counsel is not absolute, courts in other cases have also held that the trial court's removal of an appointed counsel from an ongoing representation of a defendant, over the objection of the defendant and his attorney, was beyond its discretion. See, e.g., Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (Ark. 1991) (holding that the trial court's termination of appointed counsel, over the objection of the defendant and counsel, was an arbitrary action and violated the defendant's right to counsel when defendant was forced to choose between accepting new counsel and being granted a continuance to prepare for trial or retaining original counsel and being forced to proceed immediately to trial while unprepared); Johnson, 547 N.W.2d at 69 [*23] (holding that the trial court improperly relieved appointed counsel based on counsel's challenge to the court's "interim investigation orders" and thereby violated defendant's Sixth Amendment right to counsel); Welfare of M.R.S., 400 N.W.2d 147 (Minn. Ct. App. 1987) (holding that the trial court's summary dismissal of a juvenile's appointed counsel during appeal and after counsel had moved the court to disqualify itself was arbitrary, a clear abuse of discretion and a violation of the juvenile's right to counsel); McKinnon v. State, 526 P.2d 18 (Alaska 1974) (holding that the removal of the defendant's appointed attorney, over the defendant's protest, on trial court's belief that counsel was inadequately prepared for trial, was not within court's authority and deprived the defendant of his right to counsel of his choice); In re Civ. Contempt Proc. Concerning Richard, 373 N.W.2d 429 (S.D. 1985) (granting extraordinary relief and setting aside order of trial court discharging attorney appointed to represent a grand jury witness after attorney was held in contempt for rejecting an offer of immunity).

IV. REMOVAL OF COUNSEL AND [*24] LESS DRASTIC MEASURES

Returning to the present case, we consider whether the removal of Mr. Moncier was the proper response to the trial court's finding that counsel's motion practice constituted an abuse of the system. As we noted, Mr. Moncier has represented the defendant in the capital murder case before, during, and after the first trial. In each of the thirty-one major felony offenses with which the defendant was originally charged, the defendant has been represented by Mr. Moncier. In the murder case alone, counsel has represented the defendant for nearly ten years. In other words, we are presented with a long-established attorney-client relationship. Moreover, we remain mindful of the fact, and consider it significant, that Mr. Moncier has seen the defendant's cases through three trials with the present trial court presiding. Obviously, the wheels of justice have continued to turn.

We are reluctant for any court to place limits on an attorney's ability to conduct his or her case within the bounds of the obligation to represent the client zealously, but a court may step in when counsel's actions become overzealous. In this regard, convinced of its obligation to end what [*25] it viewed as counsel's continuing abuse of the legal system and faced with an approaching trial, the trial court in this case decided that the only remedy in this case was to remove Mr. Moncier. However, we cannot agree. We believe that the trial court improperly chose the most drastic action available. The Tennessee Court of Appeals has recognized that removal of counsel should only occur when no other options exist.

A trial court has a broad range of options available to insure that its proceedings are fair both in appearance and in fact. Disqualifying an attorney is the most drastic. It invariably causes delay, increases costs, and deprives parties of counsel of their choice. Courts should, therefore, disqualify counsel with considerable reluctance and only when no other practical alternative exists.

In re: Ellis, 822 S.W.2d 602, 605 (Tenn. Ct. App. 1991) (citations omitted). We agree. We conclude that counsel's motion practice in this case demanded from the trial court measured responses in an effort to address perceived problems with counsel before counsel was summarily removed.

This also means that it was inappropriate for the trial court to remove counsel [*26] summarily without a hearing or prior warning of the court's concerns. Nothing in the facts suggests it was necessary for the trial court to proceed sua sponte, without a hearing and without an opportunity for the defense to be heard concerning the issue of the right to have lead counsel remain in the case.

We stress, though, that we are not condoning the actions that concerned the trial court. The motion practice in this case indicates a tendency to rush to filing without due consideration or attention to detail by counsel, resulting in unnecessary, multiple amendments being filed. Also, counsel undoubtedly filed numerous motions that, on their face, assert the same claims as other motions. Our review of the pretrial motions filed by Mr. Moncier on December 21, 2001, which appear to have precipitated the trial court's action, reflects that the motions include claims that are being reasserted without apparent justification on their face for such reassertion. For example, every one of these separate motions asserts, "Because this is a capital murder prosecution, this Court is to apply a heightened standard of due process of law in its consideration of this issue." The record reveals, [*27] though, that counsel previously moved the trial court to apply a heightened standard of due process in the case and the court granted the motion. Nevertheless, counsel now reasserts the claim in every pretrial pleading he has filed thus far. Likewise, in each motion counsel "continues to move that [the trial court] disqualify itself prior to any further ruling in this case or on this motion." However, in our order denying interlocutory review on the issue of the disqualification of the trial court, we noted that the trial court reviewed and separately addressed at least eighteen motions in which counsel alleged over one hundred reasons in support of disqualification. We believe that absent some new event that has not been yet alleged, these repeated "motions" to disqualify the trial court reassert a claim upon which the trial court has previously ruled.

As another example, the defense moved the trial court on December 21 to rule on its pending "motion to suppress all evidence obtained as a result of the illegal confinement of defendant on a City of Knoxville municipal offense of soliciting for prostitution." Again, the trial court has already ruled on this issue in both the murder [*28] case and the rape cases. As counsel is fully aware, the defendant has challenged the trial court's ruling in his pending appeals of the rape cases. These are but a few examples of the types of pleadings filed by counsel that understandably taxed the trial court's patience.

On the other hand, we recognize the sanctity of the position of defense counsel in criminal cases. It is counsel's duty "to represent the client zealously within the bounds of the law," which encompasses the right to "seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense." See Tenn. S. Ct. R. 8, EC 7-1. As set forth in the Standards for Criminal Justice of the American Bar Association, the "basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused's counselor and advocate with courage and devotion and to render effective, quality representation." ABA Standards for Criminal Justice Prosecution Function and Defense Function, Std. 4-1.2(b) (3d ed. 1993). Moreover, because "the death penalty differs from other criminal penalties in its finality, defense counsel in a capital [*29] case should respond to this difference by making extraordinary efforts on behalf of the accused." Id. at Std. 4-1.2(c). No one would question the fact that Mr. Moncier's efforts on behalf of the defendant have been extraordinary. And the mere fact that his motion filing is prolific or the fact that he has sought interlocutory review on many occasions does not deserve remonstration. Yet, zealous advocacy does not justify repetitive or unnecessarily prolix motions.

While we are not unsympathetic to the challenges that the trial court has faced in presiding over the defendant's cases during the past several years, we view its removal of Mr. Moncier as counsel in response to his motion practice to be unwarranted, because it failed to do the balancing that a trial court must undertake of its "inherent power to control the exercise of the administration of justice," and its obligation to protect the defendant's right to the effective assistance of his counsel of choice. United States v. Gallop, 838 F.2d 105, 107 (4th Cir. 1988). Other options than removal exist. As the Alaska Supreme Court has stated: "The court may censure the obstructive attorney, or request the bar [*30] association to take disciplinary action. Or the court may assess a fine or impose a term of imprisonment under its contempt power." McKinnon, 526 P.2d at 23. The court believed that "these methods . . . [are] likely to prove substantially more efficacious than the summary removal of counsel, which, in the final analysis, only penalizes the defendant." Id. at 24. These are not the only options available to the trial court. As the trial court has previously done, it can reject counsel's claims for compensation relative to inappropriate time spent - or wasted - on unnecessary matters. In this respect, co-counsel's obligations regarding pleadings are the same as lead counsel's, and he, too, may be held accountable for his approval of them.

We also note that motions raising issues upon which the court has already ruled are subject to summary denial without further hearing. Such is true even though the new motion mentions some additional nuance or fact, if the trial court concludes that the new allegation is inconsequential. Moreover, the trial court can require counsel who is filing repetitive motions to provide in the pleading the factual and legal [*31] basis that justify the reassertion of the claim, the date(s) of previous similar motion(s), and the date(s) and relevant ruling(s) of the court. Such information would permit the trial court to assess efficiently whether a particular filing should be denied as previously determined.

We do not direct the trial court to any particular remedy in this case, but we conclude that the more reasoned approach is for the trial court to exhaust other possible remedies before resorting to the removal of counsel. As has been aptly stated, "the involuntary removal of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed." Cannon v. Comm'n on Judicial Qualifications, 14 Cal. 3d 678, 537 P.2d 898, 911, 122 Cal. Rptr. 778 (Cal. 1975).

Booth-El v. Nuth, 2002 U.S. App. LEXIS 4783 (4th Cir 03/25/2002) The district court erred in granting relief on the ground that the removal of intoxication as a statutory mitigating factor at his 1990 re-sentencing violated the Ex Post Facto Clause.

A.

At the time the Bronsteins were murdered, Maryland's death penalty statute listed several mitigating circumstances, including intoxication. Md. Ann. Code art. 27, § 413(g)(4) (1957). Effective July 1, 1983, intoxication was removed from that section. Both before and after the 1983 change, the statute contained a catch-all provision which allowed the jury to consider "any other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case." § 413(g)(8) (1957, 2001). The Maryland Court of Appeals described the effect of the change:

[Previously] the burden was on the murderer to prove by a preponderance of the evidence diminished capacity as a result of intoxication. If the jury found that fact, then the statute determined that [it] was mitigating and that it was to be considered in weighing whether [*9] the aggravating circumstance outweighed intoxication and any other mitigating circumstances. After the change, the murderer has the burden of proving by a preponderance of the evidence both the fact of diminished capacity due to intoxication and that [it] is a mitigating circumstance.

Booth IV, 608 A.2d at 175 (citations omitted).

During the 1990 sentencing proceedings, Booth-El asked that the verdict form contain the pre-amendment language, but his request was denied. On direct appeal, he argued that the refusal to include that language on the verdict sheet violated the Ex Post FactoClause because it required him to prove by a preponderance of the evidence that intoxication was a mitigating circumstance.

The Maryland Court of Appeals found no constitutional violation because the change did not fit into one of the "three" categories of ex post factolaws identified in Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990). Booth IV, 608 A.2d at 175. These categories include: (1) punishing as a crime an act previously committed, which was innocent when done; (2) making the punishment for a [*10] crime more burdensome after its commission; and (3) depriving one charged with a crime of any defense available at the time the act was committed. Collins, 497 U.S. at 42 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925)). The state court further held that the change was merely procedural. Booth IV, 608 A.2d at 175.

The district court disagreed. It found that "the change in the statute that was applied to Booth-El, which effectively lowered the prosecution's burden of proof by increasing the burden placed on the defendant, falls within the fourth ex post factocategory." Booth-El, 140 F. Supp. 2d at 514. This category encompasses "every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798). The district court noted that the "continuing vitality" of this category was recently affirmed in Carmell v. Texas, 529 U.S. 513, 146 L. Ed. 2d 577, 120 S. Ct. 1620 (2000). [*11] Booth-El, 140 F. Supp. 2d at 513. It then held that the state court's "conclusion that the statutory amendment in Booth-El's case did not fit into any of the ex post factocategories violated Supreme Court precedent and therefore was contrary to clearly established federal law," as well as "constituted an unreasonable application of clearly established federal law." Id.at 514, 517.

B.

We underscored above the now-familiar standard of review in habeas cases because it severely restrains the authority of the federal courts, and because, as John Hart Ely once noted in a different context, "familiarity breeds inattention." John Hart Ely, Democracy and Distrust: A Theory of Judicial Review18 (1980). In looking afresh at the district court's grant of the writ, the question before us is not whether the state court misconstrued or unreasonably applied presentSupreme Court precedent when it failed to consider the fourth category of Ex Post FactoClause violations. Rather, the issue is whether that category was "clearly established" at the time of the state court decision. It clearly was not. n3

To begin with, the Supreme Court's clarification in Carmelthat the fourth category continues to exist, see529 U.S. at 521-25, 537-39, is not germane to this inquiry. In Carmel, the Court held that an amendment to a Texas statute removing the requirement that a victim's testimony be corroborated in certain sexual offense cases fell within the fourth category of Ex Post FactoClause violations. Id.at 530-31. Nevertheless, Carmelcame down almost eight years after the decision of the Maryland Court of Appeals in the case at bar. Carmelthus does not meet the requirement that the guiding precedent of the Court be "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

In addition, as far back as Beazell, the Supreme Court identified the types of Ex Post FactoClause violations without so much as mentioning Calder's fourth category. 269 U.S. at 169-70. The Court offered this explanation for the exclusion:

Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules [*13] of evidence or procedure. See Calder v. Bull. . . . But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited.

Beazell, 269 U.S. at 170.

Even more significantly, the Supreme Court in Collinsappeared to validate Beazell's omission of the fourth category in holding that a Texas statute allowing an appellate court to reform an improper verdict rather than order a new trial did not violate the Ex Post FactoClause. 497 U.S. at 39. The Court first reproduced Beazell's "confident[ ] summary" of the three-fold meaning of the Clause. Id.at 42. Then, after noting that "the Beazelldefinition omits the reference by Justice Chase in Calder. . . to alterations in the 'legal rules of evidence,'" the Court explained that "cases subsequent to Caldermake clear" that "this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes." Id.at 43 n.3. [*14] Further, the Court stated without qualification that "the Beazellformulation is faithful to our best knowledge of the original understanding of the Ex Post FactoClause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Id.at 43. Indeed, Collinsends by reiterating that the Constitution contemplates only three types of Ex Post FactoClause violations:

The Texas statute allowing reformation of improper verdicts does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed. Its application to respondent therefore is not prohibited by the Ex Post FactoClause of Art. I, § 10.

Id.at 52. See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504-505, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995) (identifying the types of ex post factolaws without mentioning the fourth category).

This textual evidence accounts for Justice Ginsburg's [*15] observation in Carmelthat if one considers "the context of the full text of the Collinsopinion," then "a strong case can be made that Collinspared the number of Caldercategories down to three, eliminating altogether the fourth category." 529 U.S. at 567 (Ginsburg, J., dissenting). And the Chief Justice, who wrote the opinion in Collins, joined Justice Ginsburg's dissent in Carmel. Indeed, even the Carmelmajority acknowledged that " Collinsis rather cryptic" on the status of the fourth category. Id.at 538. n4

Thus, all of the Justices in Carmelagreed that Collinsdid not offer clear guidance on [*16] the present viability of the fourth category. Further, it made eminent sense for the Maryland Court of Appeals to rely on Collins, for it had been decided only two years earlier. In view of these critical facts, we are compelled to conclude that the district court erred in holding that the state court acted contrary to or unreasonably applied clearly established federal law. When the state court rendered its decision, there was nothing clearly established about the fourth category. It was therefore not unreasonable for the state court to discount it.

Mayo v. Cockrell, 2002 U.S. App. LEXIS 5143 (5th Cir 03/28/2002)(dissents) Precedent for the argument that "the period for filing a motion for new trial is a "critical stage" of prosecution to which the right to counsel attaches" is not sufficiently established to permti th grant of relief.

This case turns on [*6] whether the state courts' conclusion that Mayo was not denied the assistance of counsel during the period for filing a new trial motion was an unreasonable application of Federal law, as established by the Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Mayo's argument begins with the proposition that criminal defendants are constitutionally entitled to effective assistance of counsel at every "critical stage" of prosecution and through the conclusion of direct appeal. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821 (1985). A defendant whose attorney provides no meaningful assistance may, however, be constructively denied the assistance of counsel. United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (1984). In Mayo's view, his lawyer's failure to research or file a motion for new trial was the equivalent of denying him counsel for the purpose of challenging Ms. Barnes's qualifications [*7] as a juror.

The initial problem with this argument is that, from the standpoint of AEDPA, its conclusion does not necessarily follow from its premises. Few precedents exist explaining whether the period for filing a motion for new trial is a "critical stage" of prosecution to which the right to counsel attaches. The Texas Court of Criminal Appeals, for instance, expressly withheld ruling on that issue, although lower Texas courts have described the post-trial period as "critical." Compare Prudhomme v. State, 28 S.W.3d 114, 121 (Tex. App. -- Texarkana 2000), with Smith v. State, 17 S.W.3d 660, 663 n.3 (Tex. Crim. App. 2000), and Oldham v. State, 977 S.W.2d 354, 360-61 (Tex. Crim. App. 1998). Several federal courts of appeals have held that there is no constitutional right to counsel for post-appeal motions for new trial. United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991), abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000); United States v. Lee, 168 U.S. App. D.C. 165, 513 F.2d 423, 424 (D.C. Cir. 1975); United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). [*8] But three federal courts of appeals have held, on particular facts, that the motion for new trial phase is a critical stage of the prosecution. Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th Cir. 2000); Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir. 1995); Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989). The district court here seized on the absence of "clearly established Federal law, as determined by the Supreme Court . . . .," and concluded that the period for filing a motion for new trial is not clearly a critical phase; hence, the state courts did not unreasonably reject Mayo's habeas claim. n2

Unfortunately for Mayo, his position succeeds only if the right to counsel clearly and fully attaches to the post-trial, pre-appeal phase of prosecution. [*9] But it is unnecessary, in resolving this appeal, to render such a broad decision. n3 Instead, we focus on the state court finding that Mayo was not denied counsel during the post-trial phase. This finding is not legally or factually unreasonable. Under Texas law, Mewis was bound to represent Mayo until the trial court permitted him to withdraw or appointed a new attorney. n4 That Mewis was unaware of his legal responsibility does not transform an error into the "denial" or "absence" of counsel. Mewis in fact represented his client post-trial by taking steps to ensure the appointment of appellate counsel.

The only asserted flaw in Mewis's legal representation was his failure to investigate the criminal records of Mayo's jury, to unearth a thirteen-year-old misdemeanor conviction of one juror, and [*11] to use that technicality to obtain a mistrial or new trial. For two reasons, this omission has no constitutional significance.

First, even if Mewis should have investigated the jurors' criminal histories, the investigation need not have awaited the outcome of trial. Mewis could have questioned the jurors on the subject during voir dire exam. Indeed, the voir dire examination provided the best opportunity to reveal disqualifying characteristics. Moreover, Mewis, armed with copies of the juror questionnaires, could have begun an investigation of the seated jurors by means of outside sources as soon as trial commenced. While the deadline for filing a motion for new trial fixes a completion date under Texas procedure for such an investigation, it does not constrain the initiation of inquiries into jurors' criminal records. There is no necessary connection between Mewis's alleged oversight and the post-trial period. This lack of connection is irreconcilable with any Cronic claim regarding that period.

Second, the facts demonstrate why Mayo declines to characterize his claim as resting on the Strickland test for constitutionally deficient legal representation. A Strickland [*12] claim arises only if the attorney's error falls outside the bounds of professional reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Mewis did not question prospective jurors about their criminal histories because he relied on pre-qualification for that precise point. Pre-qualification took place by means of written questionnaires and inquiries by the judge who conducts juror screening in the Houston courts' central jury room. It was not professionally unreasonable to rely on this dual screening mechanism. Surely the best evidence of the reasonableness of Mewis's conduct lies in the fact that the prosecutor, who had as much to lose as Mayo had to gain from the belated identification of an unqualified juror, also relied on the pre-screening techniques. If Mewis's actions in failing to ask veniremembers about possible criminal records were not professionally unreasonable, it follows that the failure to conduct post-trial investigation and file a motion for new trial cannot have been deficient. n5

Our conclusion may be stated narrowly. Whether or not the right to counsel attaches for some purposes during the post-trial, pre-appeal phase of the prosecution, Mayo was not constructively denied the assistance of counsel for purposes of filing a new trial motion solely to assert the disqualification of a juror, where (a) the disqualification might have been discovered earlier, and (b) Mayo's attorney could reasonably rely on Harris County's juror pre-screening procedures. The state courts did not unreasonably apply clearly established Federal law or reach unreasonable findings of fact in denying Mayo relief from his conviction.

Harvey v. Horan, 2002 U.S. App. LEXIS 5278 (4th Cir 03/28/2002) Luttig, J. commenting on denial of rehearing en banc, confessiong his believe that there is a constitutional right for inmate's to have access to DNA testing.

Because of scientific advances in the testing of deoxyribonucleic acid, particularly Short Tandem Repeat (STR) DNA testing, one of the most important criminal law issues of our day is whether there exists under the Constitution of the United States a right, post-conviction, to access previously-produced forensic evidence for purposes of such, and related, DNA testing in order to establish -- before the executive, [*21] if not also before the courts -- one's complete innocence of the crime for which he has been convicted and sentenced. This issue is of especial importance where the right is asserted by one who, for capital offense, has been sentenced to death, but the principle at stake is no different for one who has been sentenced not to death, but to a term of extended incarceration.

STR DNA and related techniques represent historic scientific developments, increasing exponentially the reliability of forensic identification over earlier techniques. There is now widespread agreement within the scientific community that this technology, which requires literally cellular-size samples only, can distinguish between any two individuals on the planet, other than identical twins, the statistical probabilities of STR DNA matches ranging in the hundreds of billions, if not trillions. In other words, STR DNA tests can, in certain circumstances, establish to a virtual certainty whether a given individual did or did not commit a particular crime. n1

These scientific advances, which have rendered it literally possible to confirm guilt or innocence beyond any question whatsoever, at least in some categories of cases, are no ordinary developments, even for science. And neither can they be treated as ordinary developments for law, as fully understandable is the temptation to do so because of the exceedingly difficult issues that otherwise are brought forth. Instead, permitting as they do the generation of evidence qualitatively like no other previously known, these scientific advances must be recognized for the singularly significant developments that they are -- in the class of cases for which they actually can prove factual innocence, the evidentiary equivalent of "watershed" rules of constitutional law. See Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). And the questions these significant developments beget must in turn be recognized for the serious constitutional questions that they are.

I believe that judicial recognition of this new science, and of the profound questions that it occasions, should, given law's foundational concern for the determination of guilt and innocence, be unbegrudging. [*23] It is fully warranted, in the first instance, for all to be concerned over the burdens to our system of justice that will attend recognition of a constitutional right of access to DNA evidence post-conviction. If such a right is determined to exist, it is thereafter equally warranted to be concerned over the standards governing first, entitlement to such access, and second, the use in the courts, if any, of the results obtained from DNA tests.

But no one, regardless of his political, philosophical, or jurisprudential disposition, should otherwise be troubled that a person who was convicted in accordance with law might thereafter be set free, either by the executive or by the courts, because of evidence that provides absolute proof that he did not in fact commit the crime for which he was convicted. Such is not an indictment of our system of justice which, while insisting upon a very high degree of proof for conviction, does not, after all, require proof beyond all doubt, and therefore is capable of producing erroneous determinations of both guilt and innocence. To the contrary, it would be a high credit to our system of justice that it recognizes the need for, and imperative [*24] of, a safety valve in those rare instances where objective proof that the convicted actually did not commit the offense later becomes available through the progress of science. Indeed, if it is agreed that, in a given class of cases, it would be possible to establish to a certainty through such further analysis that one did not in fact commit the crime for which he was convicted and sentenced, then grave harm would come to the Constitution were it to be dismissively interpreted as foreclosing access to such evidence under any and all circumstances and for any and all purposes (judicial or even executive). The Constitution is not so static.

As I allude to, this is not at all to say that post-conviction access to evidence for further testing in light of scientific advance is (or ought to be) constitutionally required or permitted as a matter of course or even frequently. It should not be, not only because of the presumption of correctness rightly enjoyed by final judgments of conviction and the separate, indisputable interest in the finality of such judgments, but also because of the reality that only rarely will further testing hold out the possibility that the convicted actually can [*25] be proven innocent of the crime. Rather, it is only to say that it is unwise to hold categorically that there is not, under our Constitution, and never can be, a post-conviction right of access to evidence for the purpose of conducting tests, which, it is agreed, can definitively establish innocence. Such a categorical holding is no less to be avoided than a categorical holding that actual innocence is not, and can never be, a freestanding constitutional right. To hold either is simply to confer a sanctity upon finality that not even that concededly substantial interest deserves.

II.

The questions of whether there is or is not a constitutional post-conviction right to access evidence for purposes of DNA testing, and if there is such a right, the circumstances under which that right may be asserted, are not ones that courts should particularly relish decision upon, so difficult and delicate, I believe, are the answers to these questions. However, these questions cannot long be avoided, now that the science is available. And, indeed, depending upon how one answers the threshold question of whether the assertion of such a right of access is a direct challenge to one's conviction [*26] or, instead, an independent constitutional claim under 42 U.S.C. § 1983, these ultimate constitutional questions may well be (and, for the reasons recited below, I believe are) directly presented in the case before us.

Under applicable Supreme Court precedent, if the assertion of a post-conviction right of access to evidence for STR DNA testing that is herein made by appellee "necessarily implies" the invalidity of his conviction or sentence, then that right must be adjudicated in habeas corpus; a section 1983 claim does not lie, as a matter of law; and, given that in this case leave was not sought to raise the issue successively, the delicate question of whether such a right exists under the Constitution not only can be, but ought be in the interest of prudence, avoided. On the other hand, if the assertion of this right does not necessarily imply the invalidity of the underlying conviction or sentence, but, rather, is properly understood as independent of any attack on the underlying conviction or sentence, then the instant case directly and unavoidably presents the exceedingly difficult and delicate questions of whether such a constitutional right to access [*27] previously-produced forensic evidence post-conviction for purposes of STR DNA testing does exist and, if it does, the circumstances under which it may be asserted. For, in the judgment under review, the distinguished district court judge held not only that there is such a right of access to evidence under the Constitution assertable under section 1983, but that that right would be abridged in this case were the requested access denied.

The majority of our court, in a holding of significance in its own right, reversed the district court's threshold judgment, concluding that the assertion of a post-conviction right to evidence for the purpose of STR DNA testing "necessarily implies the invalidity of [Harvey's] conviction," slip op. at 5 (quoting Heck v. Humphrey, 512 U.S. 477, 486-87, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994)). Consequently, it held that appellee did not, and could not, state a claim for relief under section 1983. Id. Thereafter, although it need not have done so, the majority proceeded also to hold, on the underlying fundamental constitutional question, that there is no right under the Constitution to access evidence post-conviction for STR DNA [*28] testing under any circumstance, for any purpose.

I would prefer not to have to address even the threshold, much less the fundamental constitutional, question in the posture of an opinion respecting a denial of rehearing en banc. However, the panel's decision now constituting the law of our Circuit, this is the proper and only context in which to express my views on the important matters decided. This being the case, I believe that the court erred in both of its holdings, and, at least in the first (if not also in the second), fairly clearly so.

I do not believe that the assertion of a constitutional right of access to evidence post-conviction even arguably implies, let alone "necessarily implies," the invalidity of the petitioner's conviction or sentence, as it must in order to be foreclosed under Heck v. Humphrey. If one concludes, as would I, that the access claim is one properly brought under section 1983, then the fundamental question of whether there is a constitutional post-conviction right to evidence for purposes of STR DNA testing must be decided. As to this question, I believe, also contrary to the majority, that there is a residual, core liberty interest protected [*29] by the Due Process Clause of the Fourteenth Amendment which, in certain, very limited circumstances, gives rise to a procedural due process right to access previously-produced forensic evidence for purposes of STR DNA testing.

A.

As to the threshold procedural question, I do not believe it even arguable that a post-conviction action merely to permit access to evidence for the purpose of STR DNA testing "necessarily implies" invalidity of the underlying conviction. Indeed, such necessarily implies nothing at all about the plaintiff's conviction. It certainly implies nothing more (and arguably it implies a good deal less) than does an assertion of constitutional right to material and exculpatory information producible under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which has never been thought necessarily to imply the invalidity of the underlying conviction. The results of any DNA tests that are eventually performed may be inconclusive, they may be insufficiently exculpatory, or they may even be inculpatory. That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access [*30] is not a direct, or for that matter even an indirect, attack on one's conviction or sentence. But if this were not enough to establish the point, then it should be that, in order to overturn a conviction based on exculpatory evidence that might appear from any DNA testing, the petitioner would have to initiate an entirely separate action at some future date, in which he would have to argue for his release upon the basis of a separate constitutional violation altogether.

In sum, on no understanding would a plaintiff's action for mere access to evidence, "even if successful," "demonstrate the invalidity of any outstanding criminal judgment." Heck, 512 U.S. at 487. Therefore, on the direct authority of Heck, which properly was actually a quite narrow decision, "the action should be allowed to proceed in the absence of some other bar to the suit." Id.

Such an assertion of a right only to access is, in principle, wholly unlike the claims asserted in Heck for an assertedly illegal investigation and arrest. Those claims, the Supreme Court reasoned, were most analogous to the common-law cause of action for malicious prosecution, id. at 484, [*31] which required the plaintiff-accused to allege and prove the termination of the prior criminal proceeding in his favor. Id. Indeed, the almost polar difference between the claims in Heck for "actions whose unlawfulness would render a conviction or sentence invalid," id. at 486, and the claim of right merely to access evidence for the purpose of further tests, the results of which may even prove the defendant's guilt beyond any question, is virtual confirmation that the latter is not a challenge to one's conviction or sentence, but, rather, an assertion of an independent constitutional right.

The specific examples that the Supreme Court offered to illustrate the line of distinction between a cause of action that necessarily implies the invalidity of a conviction and one that does not, remove any doubt on this score. As an illustration of the former, the Court offered the example of a state defendant who was convicted of resisting a lawful arrest and brings an action under section 1983 for an unreasonable seizure in violation of the Fourth Amendment. See Heck, 512 U.S. at 486, n.6. Such an action would be barred, explained the Court, because, [*32] "in order to prevail in this § 1983 action, [the state defendant] would have to negate an element of the offense of which he has been convicted," id. (emphasis added) -- that element being that the arrest was lawful.

On the other end of the continuum, as an illustration of a cause of action that would be allowed to proceed under section 1983, the Court offered the example of a plaintiff who brings a section 1983 action for damages for an unlawful search that produced the evidence on the basis of which the plaintiff was convicted. Id. at 487 n.7. Because the fruits of that (possibly illegal) search might ultimately be admissible under the independent source or inevitable discovery doctrines, or their admission be deemed harmless error, the Court explained, this plaintiff's section 1983 action, "even if successful, would not necessarily imply that the plaintiff's conviction was unlawful." Id. (emphasis in original).

That the Court snugly drew the fault line to the necessity that the success of the 1983 action depend upon proof that the underlying conviction is invalid if it is to be foreclosed, is evident from its insistence upon negation of [*33] an offense element in the first example and its own revealing italicization of the imperative in the latter.

The implications for the present case of so tightly drawing the line are apparent. In the extent to which it implies invalidity of the underlying conviction, a claim of constitutional right of access to evidence for DNA testing does not even approach the claim that was said by the Court in its footnote 7 not to necessarily imply the invalidity of the conviction; further still is such a claim from the one that the Court said in its footnote 6 would necessarily imply the invalidity of the conviction. The plaintiff who presents a claim of constitutional right of access to evidence does not even have to rely upon an exception in law to avoid what would otherwise be the unavoidable conclusion that the plaintiff's complaint of an unlawful search would necessarily draw into question his underlying conviction; and the plaintiff who merely seeks access to evidence for testing certainly is not required to "negate an element of the offense of which he has been convicted," Heck, 512 U.S. at 486 n.6, in order to prevail.

The conclusion is inescapable from these [*34] examples (even if it were not from the reasoning of the opinion itself) that the claim of a right of access to evidence is not one that in any respect implies the invalidity of the claimant's conviction and sentence.

Not only does such a conclusion seem unassailable under Heck v. Humphrey, but in a twist to be sure, it is all but, if not fully, established by two (frankly striking) passages from the majority's own opinion. In the first, the majority writes as follows:

[Section] 1983 exists for the more limited purpose of redressing violations of the Constitution and federal statutes. Harvey has made no argument that his conviction violates the Constitution or any federal law. In fact, at oral argument Harvey conceded that he received due process under the law and under the science in existence when he was convicted in 1990. To confer upon Harvey a wide-ranging constitutional right in the absence of any argument that his underlying conviction violated the Constitution or a federal statute is simply beyond judicial competence.

Slip op. at 7-8 (emphasis added). And in the second, combined passage, the majority states, equally tellingly, that,

Harvey [*35] is seeking access to DNA evidence for one reason and one reason only -- as the first step in undermining his conviction. He believes that the DNA test results will be favorable and will allow him to bring a subsequent motion to invalidate his conviction. . . . Harvey is attempting to . . . use his claim for access to evidence to set the stage for a future attack on his confinement.

Id. at 6, 11 (emphases added). Standing alone, as they do, against what are only conclusory statements by the majority to the contrary, I believe that these passages establish beyond any question that, even on the majority's own understanding, appellee's access claim does not "necessarily imply" the invalidity of his conviction, and therefore that he has properly alleged a cause of action under section 1983.

I am not entirely clear how the majority comes to the contrary conclusion. It appears, however, that in effect it mistakenly analyzed appellee's claim as if it were one alleging a constitutional right not to be punished upon proof of actual innocence (proof in the form of the STR DNA results appellee hopes will emerge from the tests he wishes to have performed if his asserted [*36] right to access is accepted). This claim would indeed be foreclosed by Heck, because it would "necessarily imply" the invalidity of appellee's conviction and sentence. But this is not the claim that appellee makes. His, rather, is an antecedent claim to such a factual innocence claim. For the reasons recited, such a claim in no way implies, much less "necessarily implies," the invalidity of appellee's conviction or sentence.

SUPREME COURT

Dep't of Housing and Urban Dev. v. Rucker, No. 00-1770, 00-1781 (03/26/2002) Section 1437d(l)(6) of the Anti-Drug Abuse Act of 1998, 42 U.S.C. 11901(3), gives local public housing authorities discretion to evict public housing tenants when either a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, about such activity.

CAPTITAL CASES (Favorable Disposition)

See above

CAPITAL CASES (Unfavorable Disposition)

United States v. Jones, 2002 U.S. App. LEXIS 4997 (5th Cir. 03/27/02 - No. 01-10142) Relief denied based on appellant's "claims that his trial counsel's admission of Jones's responsibility for McBride's death during his opening statement at trial violated Jones's rights under the Fifth and Sixth Amendments. Second, Jones asserts that a jury charge encompassing the language of 18 U.S.C. § 3593(e), as requested by his trial counsel, violated his rights under the Sixth Amendment." Relief also denied on claims relating to "racial discrimination stemming from an alleged systematic pattern in the prosecution of death penalty cases by the United States Attorney General's office, and alleged selective prosecution of death penalty cases based on the geographic location of the defendant at the time that the crime was committed."

Tennesee v. McKinney,2002 Tenn. LEXIS 155 (Tenn 03/26/2002) Trial court did not commit error by denying the defendant's motion to introduce expert testimony on the issue of eyewitness identifications; the jury's verdict form was sufficiently clear to demonstrate that the jury found the prior violent felony aggravating circumstance relied upon by the prosecution; the evidence was sufficient to sustain the prior violent felony aggravating circumstance found by the jury; the trial court's refusal to allow defense counsel to refer to evidence from the guilt phase of the trial during his closing argument in the sentencing phase of the trial did not affect the jury's determination to the prejudice of the defendant and was harmlesserror; & the trial court did not commit error in admitting victim impact evidence during the sentencing phase

Schwab v. Florida, 2002 Fla. LEXIS 537 (FL 03/28/2002) Post-conviction relief denied on claims of judicial bias & ineffective assistance of counsel during both the guilt and penalty phases. IAC allegation for the guilt phase include that: "counsel failed to make an informed decision to advise the waiver of a jury trial, failed to move for a change of venue, and made misrepresentations to Schwab which precluded him from filing a motion to disqualify Judge Richardson." In the penalty phase these allegations included: that his counsel was ineffective for presenting Schwab’s father as a mitigation witness while knowing that Schwab’s father would deny allegations of abusing Schwab and Schwab’s mother . . .. [and] that his counsel failed to investigate the waiver of the penalty phase jury, failed to neutralize the prior violent felony and the murder committed during the commission of an enumerated felony aggravating circumstances, and failed to provide the assistance of a competent mental health expert."

Guidnas v. Florida,2002 Fla. LEXIS 539 (FL 03/28/2002) Relief denied on claims relating to the post conviction trial court's not releasing physical evidence for DNA testing, trial counsel'sneffective for failing to subject samples of semen and saliva to DNA testing & failure adequately investigate/present mitigation evidence.

As a final matter, we address Gudinas's claim (1)(b), alleging that the trial court erred when it denied his motion filed on May 18, 1999, for an order directing the State to release physical evidence found at the murder scene for DNA testing [*35] using the polymerase chain reaction (PCR) method. The trial court held a hearing on the motion on June 1, 1999, and denied the motion in a written order filed on June 23, 1999.

PCR DNA testing was available at the time of Gudinas's trial, but the semen and saliva samples were not released for DNA testing, in accordance with defense's trial strategy, as previously discussed in this opinion. This Court has held that in order to prevail in a newly discovered evidence claim, it must be "of such nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So. 2d 911, 915 (Fla. 1992). The court stated that to come to that conclusion, a trial court "will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Id. at 916. This standard also applies to cases in which the defendant alleges that evidence should be reexamined using modern procedures. See Zeigler v. State, 654 So. 2d 1162, 1164 (Fla. 1995).

The trial court denied the motion because: (1) at trial, the State and defense agreed not to use DNA evidence for any purpose; (2) there was [*36] substantial objective evidence inculpating Gudinas; (3) the request was untimely and speculative as in Zeigler; and (4) the law will not sanction allowing a defendant to reopen evidence merely due to advances in technology absent "facts strongly indicating that the new test would overcome the evidence supporting jury's conviction." Upon our review, especially in view of trial counsel's testimony, we find no error in the trial court's determination that Gudinas did not establish a sufficient basis for DNA testing. n10

Brannan v. State, 2002 Ga. LEXIS 241(Ga. 03/25/2002) The trial court did not err by denying Brannan's motion for a directed verdict of acquittal. The State did not have too much discretion in choosing to seek the death penalty or to offer a plea bargain. No prosecutorial misconduct in failing to preserve evidence, when unbeknownst to the state or the defense the towing company released Brannan's white truck to a lienholder.

Ivey v. Catoe, 2002 U.S. App. LEXIS 5140 (4th Cir 03/26/2002) refusal to charge the jury on voluntary manslaughter; portions of victim impact testimony was impermissible and trial counsel were constitutionally ineffective for failing to object to: [1] a portion of the State's closing argument that allegedly referred to Ivey's failure to testify; [2] failed to object to cross examination of corrections officer Hudson regarding prison conditions as well as closing argument based on Hudson's testimony on cross-examination; and [3] failing to object to the State's improper bolstering of testimony.

OTHER NOTABLE CASES

Taylor v. Withrow, 2002 U.S. App. LEXIS 5130(6th Cir. 03/28/2002) (dissent) Relief denied, however, the court holds that self-defense is a constitutional right cognizable on habeas even where the Supreme Coiurt has not examined the issue.

There is no Supreme Court decision unmistakably setting down this precise rule, though the holding in Mathews has been taken by some courts as setting out a right to a jury instruction on self-defense. See, e.g., Taylor, 154 F. Supp. 2d at 1043 (citing Mathews, 458 U.S. at 63, for the proposition that a defendant is entitled to an instruction on self-defense when there exists evidence to support it). The lack of an explicit statement to this effect is not determinative. [*14] The Court has made clear that its relevant precedents include not only bright-line rules but also the legal principles and standards flowing from precedent. See Williams, 528 U.S. at 407. We believe that the rule that a defendant is under certain circumstances entitled to a self-defense instruction follows inescapably not only from our legal heritage but also from the Court's holding in Trombetta that a defendant has the right to present a meaningful defense. See 467 U.S. at 485. This is an example of a rara avis: a fundamental constitutional rule dictated by precedent but "so unexceptional that it [has] never been drawn into question in a reported case," at least a Supreme Court case. Tyson v. Trigg, 50 F.3d 436, 440 (7th Cir. 1995).

The rule proposed in the separate opinion of our colleague Judge Boggs -- i.e., that the Supreme Court must expressly and specifically have stated a new rule in order for us to apply it under the Antiterrorism Act -- does not recognize that the Supreme Court acts more through the statement of broad principles and standards, as in Williams and Mathews, than through specific [*15] rules and holdings on the very facts in question. Many things are obvious and flow from general principles and our holding in this case is one of them. The earth is not flat, nor does the sun revolve around it, but we do not need to be told that expressly by the Supreme Court in order for us to apply it in a case. The rigid rule Judge Boggs proposes would overrule the court's statement in Williams that we must use our best judgment to "extend [a] principle to a new context where it should apply." 529 U.S. at 407.

Scott v. Collins, No. 00-3240 (6th Cir. 03/25/2002) District court's sua sponte dismissal of a habeas petition on statute of limitations grounds after the respondent had waived the statute of limitations defense reveresed.

Greene v. Lambert, No. 01-35595 (03/26/02) (dissent) Writ granted as the "state trial court acted on the basis of its interpretation of state rules of evidence and its conclusion that the mental disease about which the defendant and the victim would testify--Dissociative Identity Disorder (DID), formerly referred to as Multiple Personality Disorder (MPD)--was a questionable diagnosis and, at all events, had no relevance to the defendant's sanity or knowledge at the time of the crime. In the context of this subsequent federal habeas petition, we are called on to decide two questions: (1) whether the Washington Supreme Court's response to a motion to reconsider its opinion was an adjudication on the merits of a newly raised Sixth Amendment claim, which would permit us to address it, 28 U.S.C. § 2254(b), (c); and (2) if so, whether the Washington Supreme Court's decision involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1). We hold that (1) the Washington Supreme Court adjudicated the merits of the Sixth Amendment claim and (2) the court unreasonably applied federal constitutional principles that were clearly established by the United States Supreme Court."

Jordan v. LeFevre, No. 01-2252(2nd Cir 03/28/2002) Meaningful reconstruction of the record was possible despite the passage of time and that, on the record as reconstructed, the district court did not erred in find that the peremptory challenges were not exercised on the basis of race

Lawson v. Dallas County, No. 00-11078 (5th Cir 03/28/2002) The district court did not err in concluding that t the acts and omissions of jail medical personnel caused Lawson to develop severe decubitus ulcers on his lower back and buttocks as that medical personnel treating paraplegic prison inmate had actual knowledge of risk to his health and theCounty should have been aware of the danger its policies posed to inmate, county properly held liable.

Rees v Hill, No. 01-70750 (9th Cir 03/26/2002) Apprendi is not retroactively applicable.

Taylor v. Sayer, No. 01-35103 (9th Cir 03/28/2002) A policy statement relied on by the Bureau of Prisons (BOP) is not inconsistent with federal law, and the BOP's decision not to grant nunc pro tunc designation was not arbitrary or capricious, thus, habeas petition denied; dual sovereignty, comity, federalism and full faith and credit arguments rejected.

Valenzuela v. United States, No. 00-13729 (11th Cir 03/25/2002) Extradition to Italy reversed as the district court "erred in admitting into evidence an affidavit containing statements petitioners made inexchange for a promise of confidentiality made by agents of the Drug Enforcement Administration ("DEA"). Because the affidavit was indispensable to the finding of probable cause necessary to extradite petitioners, we reverse the district court's judgment and direct that the writ of habeas corpus issue.

AMENDED OR DELAYED PUBLICATION CASES

None covered this week.

FOCUS

Focus this week covers the use of the federal death penalty in states that have abolished capital punishment,Death isn't welcome here: evaluating the federal death penalty in the context of a state constitutional objection to capital punishmentby Sean M. Morton. 64 Alb. L. Rev. 1133-1466 (2001).

As one commentator has noted, "[t]he [FDPA] dramatically expanded the small base of pre-1994 federal death penalty crimes."(67) With this "dramatic" federalization of the death penalty, a host of states' rights questions arise. Perhaps primary among these is the extent to which the exercise of the federal death penalty unduly intrudes upon an area of traditionally state concern, the enforcement of criminal law.(68) This is a particular problem where the exercise of a federal capital prosecution occurs in a state that has not deemed it necessary to establish its own capital punishment scheme, or, alternatively, has established an outright prohibition on capital punishment. An examination of the federal death penalty as exercised in Puerto Rico, which has constitutionally banned the death penalty,(69) will help illuminate some of the federalism concerns inherent in the federal death penalty itself.

III. PUERTO RICO'S CONSTITUTIONAL PROHIBITION OF CAPITAL PUNISHMENT

A discussion of the exercise of federal capital prosecutions in Puerto Rico must begin with two significant points. First, United States Attorneys in Puerto Rico have submitted the largest number of potential capital cases to the Department of Justice Review Committee of any of the ninety-four federal districts.(70) Thus, a discussion of the applicability of the federal death penalty in Puerto Rico is not an irrelevant one, as the citizens of Puerto Rico appear to be subject to federal capital prosecution to the same, if not a greater, degree than their state counterparts. Second, Puerto Rico expressly, and unequivocally, forbids the use of the death penalty under its constitution.(71) Although one commentator has expressed the view that the effect of this ban is "uncertain,"(72) a federal court recently put an end to any uncertainty--holding, without reservation, that the Federal Death Penalty is "inapplicable" in Puerto Rico.(73)

Of course, Puerto Rico is not a state and its relationship with the federal government is thus considerably different from the typical federal-state relationship.(74) For this reason, a brief overview of the Puerto Rico-United States relationship is warranted.

Following Spain's cessation of Puerto Rico to the United States,(75) Puerto Rico became a "mere territory" of the United States,(76) and thus was subject to unadulterated congressional control under the federal constitution.(77) On July 3, 1950, however, Congress began Puerto Rico's transition from a territory to the status of Commonwealth.(78) With passage of Public Law 600,(79) Congress, "[f]ully recognizing the principle of government by consent,"(80) entered into a "compact"(81) with Puerto Rico wherein Puerto Ricans would be empowered with limited self-rule.(82) Acting in accord with Public Law 600, the Puerto Rican legislature created the Constitution of the Commonwealth of Puerto Rico, which was ratified by the voters of Puerto Rico on March 3, 1952.(83) However, highlighting the diminished position of Puerto Rico relative to the American states, the Puerto Rican constitution was amended by Congress prior to its full adoption on July 25, 1952.(84)

After Puerto Rico achieved commonwealth status in 1955, Congress further clarified that federal law would largely remain in force throughout Puerto Rico. Congress declared "[t]he statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States."(85) Moreover, this was merely a reenactment of the law that governed Puerto Rico prior to its attaining commonwealth status, as the 1955 enactment contains virtually identical language to that contained in the 1917 Organic Act of"Porto Rico."(86) Thus, since as early as 1917, Congress has contemplated--and, indeed, expressly acknowledged--that federal laws not expressly declared by Congress to be binding upon Puerto Rico may well be "locally inapplicable" there.(87)

For several reasons, Puerto Rico's position relative to the federal government is entirely unique. First, Puerto Rico has been granted "self-government in respect of internal affairs and administration, subject to relevant portions of the [federal] Constitution" and federal law(88) Second, the federal government has expressed an intention "to treat Puerto Rico administratively as if it were a State," but only to the extent that this does not unduly interfere with a "[f]ederal program or activity."(89) Moreover, Puerto Rico--unlike the states--is exempt from federal law where that law is deemed "locally inapplicable."(90) Third, as a commonwealth, Puerto Rico maintains a peculiar status vis-a-vis the federal government.(91) While the federal government (ostensibly) has only those powers delegated to it by the states,(92) the inverse situation applies with regard to Puerto Rico, whose own authority to govern itself arose from an act of congressional grace.(93)

Sorting out the relationship between Puerto Rico and federal law remains a difficult, if not maddening, quandary.(94) Indeed, the relevant caselaw is riddled with inconsistent decisions regarding the applicability of federal law within Puerto Rico. On the one hand, the Federal Supreme Court has held that the federal constitutional guarantee of a trial by jury does not apply in Puerto Rico.(95) On the other hand, it appears that the Sixth Amendment right to an imf atrial jury(96) does apply in Puerto Rico.(97) Similarly, while it has been held that the Commonwealth of Puerto Rico must abide by the requirements of the Due Process Clause,(98) the Federal Commerce Clause(99) has been held to be inapplicable to Puerto Rico.(100)

While the above situations deal exclusively with the general applicability of federal law within Puerto Rico, a more interesting issue arises when a specific federal law directly conflicts with the Puerto Rico Constitution. On several occasions, this issue has arisen in the context of Puerto Rico's constitutional bar against wiretapping.(101) At least three cases have attacked the applicability of a federal statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968,(102) on the citizens of Puerto Rico.(103) In the first of these cases, United States v. Quinones,(104) a defendant convicted of aiding and abetting in the distribution of cocaine challenged the applicability of Title III's provision allowing for the recording of conversations between criminal suspects and government informants.(105) Although Congress specifically made Title III applicable to Puerto Rico,(106) Quinones contended that, since Congress had approved the Puerto Rico constitution, the Puerto Rico charter had been transmuted into a federal law that trumped Title III.(107) The First Circuit rejected the defendant's contention, flatly stating that "`the constitution of the Commonwealth is not just another Organic Act of the Congress.'"(108) The fact that the Puerto Rico constitution would have had no force without congressional approval was of little import to the court since, once the constitution was approved, it stood "`as an expression of the will of the Puerto Rican people.'"(109) In effect, the Puerto Rico constitution is analogous to a state law(110) and, since "[i]t is well settled that in federal prosecutions evidence admissible under federal law cannot be excluded because it would be inadmissible under state law," the Quinones court determined that Title III was "the controlling law for federal prosecutions in Puerto Rico."(111)

Notwithstanding the First Circuit's holding in Quinones, Title III's applicability in Puerto Rico was again challenged a year later in United States v. Gerena.(112) In Gerena, a criminal defendant moved to suppress all evidence obtained by federal agents via electronic surveillance conducted in Puerto Rico, on the ground that such surveillance violated both international law and the Puerto Rico Constitution.(113) The district court quickly dispensed with defendant's international law claims, finding that, since the people of Puerto Rico are United States citizens, "It]he relationship between the United States and Puerto Rico is not one of nation to nation."(114) Thus, international law was not an appropriate tool to resolve the inconsistency between Title III and the constitution of Puerto Rico.(115)

As for the defendant's second claim, that the Puerto Rico Constitution itself "supercedes" Title III, the district court conceded that federal law is not automatically applicable to Puerto Rico.(116) However, Title III, by its very terms, is directly applicable to Puerto Rico.(117) Thus, the Gerena court turned to the Federal Relations Act as a means of interpreting the relationship between federal law and the Puerto Rico Constitution.(118)

Given that the objective of the Federal Relations Act was to enable the people of Puerto Rico to exercise a greater degree of autonomy over local affairs, [the act] must be read to mean that federal laws ought not prevail over the law of Puerto Rico in matters of purely local concern; in matters of purely local concern, federal law is locally inapplicable.(119)

Nevertheless, even though the defendant's motion to suppress concerned evidence obtained via electronic surveillance conducted entirely within Puerto Rico's borders,(120) the court held that the "scope of [Title III] is not purely local."(121) Thus, according to the court, Tital III trumps the Puerto Rico Constitution because "[t]he scope of [Title III] is not purely local."(122)

Apparently undeterred by the growing body of unfavorable precedent, the appellants in Camacho v. Autoridad de Telefonos de Puerto Rico(123) were the next to challenge Title III's applicability in Puerto Rico.(124) Camacho reached the courts in a manner anomalous to the cases discussed above, in that Camacho was a civil case rather than a criminal prosecution.(125) Plaintiffs, many of whom were the criminal defendants in Gerena,(126) sought damages and equitable relief from two corporate defendants who had assisted federal agents in conducting wiretaps of plaintiffs' telephone calls.(127) In Camacho, Title III's applicability to Puerto Rico was once again brought into play, as plaintiffs alleged a violation of their rights under the Puerto Rico Constitution and defendants sought the protection of Title III--which shields private parties from civil liability when those parties help law enforcement officials conduct wiretapping pursuant to Title III.(128)

The Camacho court afforded the Puerto Rico Constitution a somewhat greater degree of respect than had prior courts addressing the wiretapping issue. The court acknowledged that the prohibition against wiretapping is "embedded" within the local charter, as well as "in the fabric of the Commonwealth's laws and regulations."(129) Indeed, the court agreed that the "`prohibition of wiretapping is an integral and indispensable part of the definition of Puerto Ricans as a people and a cornerstone of [Puerto Rico's] cultural values.'"(130) Despite this dicta, the Camacho court nonetheless upheld dismissal of the plaintiffs' complaint.(131) In so doing, the court again equated Puerto Rico with the fifty states for purposes of Title III.(132) Thus, just as Congress may preempt the laws of any state, so may Congress do so with respect to the fundamental law of Puerto Rico.(133) According to the Camacho court, "the sockdolager is this: Congress ... retained full authority to treat Puerto Rico like a state subsequent to the advent of Commonwealth status."(134) Thus, the Camacho court chose to treat the crucial issue in that case as a simple matter of preemption.(135)

There is a presumption that "Congress [does] not intend to displace state law."(136) Nevertheless, where state law and federal law conflict, making "compliance with both federal and state [law] ... a physical impossibility,"(137) or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,"(138) state law must yield to federal law. This is the case in Puerto Rico, where its constitution affirmatively bars wiretapping while Title III of the Omnibus Crime Control Act affirmatively permits it.(139) Here, the resolution of the conflict appears to be as simple as the Camacho court made it seem to be: federal law governs. However, an examination of federal state preemption law reveals that it generally deals with the conflict between state statutory law and federal law. Significantly fewer cases deal with the situation where a federal statute conflicts with a state constitutional provision.(140) Arguably, greater deference to state law may be justified where the state law in question arises from that state's fundamental charter, rather than merely from a state legislative enactment.(141)

One federal court has afforded just such deference to a provision of the Puerto Rico Constitution. In contrast with the courts discussed above, which dealt with Puerto Rico's constitutional bar against wiretapping, the United States District Court for the District of Puerto Rico, in United States v. Acosta Martinez,(142) dealt with Puerto Rico's prohibition of capital punishment.(143)

In Acosta Martinez, defendants challenged the applicability of the federal Death Penalty Act of 1994(144) on the citizens of Puerto Rico.(145) The defendants contended that the federal death penalty was "`locally inapplicable,'" within the meaning of the Federal Relations Act, because of Puerto Rico's outright prohibition of capital punishment.(146) The court acknowledged the line of cases that had arisen out of the conflict between Title III and Puerto Rico's constitutional prohibition of wiretapping, correctly concluding that Title III and "most [other] federal legislation ... has been held applicable to Puerto Rico."(147) However, the Acosta Martinez court, departing sharply from this line of cases, held that the federal death penalty is inapplicable to the citizens of Puerto Rico.(148)

The Acosta Martinez court distinguished its ruling from the wiretapping precedents by focusing on three distinct rationales. First, the court pointed out the obvious: that "death is qualitatively `different from all other punishments a society inflicts upon its citizens."(149) Moreover, the court noted that Congressional approval of the Puerto Rico Constitution was not conditioned upon removal of the provision prohibiting the death penalty.(150) The court explained that:

the people of Puerto Rico, in voting to approve the Constitution, had a reasonable expectation that the death penalty would not exist under Commonwealth status. The application of the [Federal Death Penalty Act] in Puerto Rico is not only inconsistent with the compact [establishing Puerto Rico's Commonwealth status], but ... is antithetic to it."(151)

The Acosta Martinez court advanced a second rationale to justify its ruling that the federal death penalty is inapplicable in Puerto Rico: the total absence in the federal death penalty statute of any language specifically applying the statute to Puerto Rico.(152) The court correctly noted that the 1994 capital punishment statute established procedures for the implementation of prosecutions for capital crimes already defined under federal law.(153) Moreover, the court noted that the statute authorized the federal death penalty for a myriad of federal offenses.(154) However, for only two of these "new" offenses did Congress specifically include Puerto Rico in the statute's jurisdictional ambit.(155) According to the court, the absence of any mention of Puerto Rico in the remainder of the statute's provisions evinced a congressional intent to exclude Puerto Rico from the statute's coverage.(156) As the court stated, "on a matter as unique and extreme as the death penalty, the mention of Puerto Rico exclusively in the context of ... maritime offenses, cannot reasonably be taken as Congress's manifest intention that the FDPA not fall within the `not locally inapplicable' provision set forth in [the Federal Relations Act]."(157)

The Acosta Martinez court's final justification for excluding Puerto Rico from the umbrella of the Federal Death Penalty Act arose from substantive due process. The court noted that Puerto Rico had no input in the enactment of the death penalty statute,(158) and that because of this lack of input:

applying to the Commonwealth a statute allowing for the deprivation of life, on the basis of the genetic consent [to be subject to federal law] given ... forty eight years ago, is unreasonable and unfair[,] inadmissibly infringes upon the principle of government by consent on which the people of Puerto Rico's relationship with the United States is grounded[,] and constitutes a violation of the fundamental rights to liberty and life of the American citizens of Puerto Rico.(159)

The court concluded that:

[i]t shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment. It is unconscionable and against the most basic notion of justice to permit that the American citizens of Puerto Rico be subjected to capital punishment for crimes committed wholly within the boundaries of the Commonwealth, while at the same time denying them a say in the political process of the government that tries them. If the qualitative difference of the death penalty has been sufficient to require more reliable procedures for its imposition, it certainly ought to be sufficient to require that its availability as punishment be grounded, in its origin, on the consent of those whose rights may be affected by its imposition, such consent expressed through their participation in the political process as a manifestation of their free will.(160)

It is significant to note that the Acosta Martinez court did not expressly premise its decision upon the Puerto Rico Constitution itself. Indeed, the justifications the court advanced for declaring the federal death penalty inapplicable in Puerto Rico would be just as valid if the Puerto Rico Constitution did not prohibit capital punishment. By tying its decision to the lack of Puerto Rico's legislative consent to the FDPA and Congress' failure to include an express mention of Puerto Rico in the statute itself, the court was perhaps attempting to distance itself from the precedent announced in the wiretapping eases. Since the wiretapping cases had held that federal law trumps the Puerto Rico Constitution, the Acosta Martinez court could not simply contradict these precedents without adequate justification.(161) However, the Puerto Rico Constitution, `"as an expression of the will of the Puerto Rican people,"'(162) certainly must have had some impact on the mindset of the court, perhaps serving as its primary, but unstated, justification for finding the federal death penalty inapplicable in Puerto Rico.

Although Puerto Rico's relationship with the United States is clearly different than that between the states and the federal government, Puerto Rico's experience may have some persuasive influence upon application of the federal death penalty in the states. In the event that one of the fifty states was to adopt a constitutional provision expressly prohibiting the death penalty, it would clearly constitute an expression of the will of that state's citizens. Just as in Puerto Rico, imposition of a capital prosecution upon the people of that state would run headlong into the unequivocal expression of the will of the citizens of that sovereign state. In our system of dual sovereignty, a state constitutional prohibition of the death penalty could aptly be characterized as a clear indication that the state's citizens have expressly reused to consent to application of the federal death penalty within that state's borders.

IV. STATE OPPOSITION TO AN EXERCISE OF THE FDPA

A. The Puerto Rico Analogy

Although Puerto Rico's relationship with the federal government is indeed markedly different from the typical state/federal relationship,(163) the experience of Puerto Rico with regard to the FDPA provides an interesting starting point for a discussion of the FDPA's applicability in a hypothetical state that has prohibited the death penalty in its state constitution. Indeed, the rationales put forth in United States v. Acosta Martinez(164) seem to have at least equal force when evaluated in the context of a state constitutional objection to the exercise of the federal death penalty. First, just as the people of Puerto Rico "had a reasonable expectation that the death penalty would not exist"(165) after enactment of the Puerto Rico Constitution, so, too, would the citizens of a state that enacted a constitutional provision prohibiting capital punishment. This is so because "no function of a constitution, especially in the American states, is more important than its use in defining a people's aspirations and fundamental values."(166) One who is seeking to ascertain (and aspiring to respect) the will of a people, and who finds a clear expression of this in their state constitution, would seem bound to follow it.

Second, although one could not argue that the individual states, like Puerto Rico, had no input into the enactment of the FDPA,(167) one could ascribe great importance to the state's congressional representatives' opposition to the enactment, particularly if the opposition was manifest in a majority of the state's Senators and Representatives in Congress. When the opposition of the state's federal representatives is combined with a state constitutional death penalty prohibition, the cumulative effect is anything but "the consent of those whose rights may be affected" by imposition of the federal death penalty.(168)

Apart from the rationales of Acosta Martinez, other arguments can be made in favor of allowing states the freedom to insulate their citizens from imposition of the federal death penalty. As an initial matter, the mere fact that some "sovereigns" within the United States appear immune to the FDPA,(169) while others (the fifty states) are not, is itself somewhat counterintuitive. Indeed, since federal power is inherently limited and arguably emanates from power surrendered by the states,(170) one could further argue that it would be more appropriate to allow the individual states, rather than the Commonwealth of Puerto Rico or the Indian nations, to "opt out" of the federal death penalty scheme.(171) Moreover, since capital punishment is so different from other public law issues, both qualitatively and in terms of the passions it raises,(172) a state should be free to determine for itself whether the death penalty will exist within its borders. Since issues of criminal behavior and its appropriate punishment traditionally have been matters of state concern,(173) imbuing the states with the authority to "opt out" of the federal capital punishment scheme via constitutional pronouncement is consistent with the Framers' view of the federal/state relationship. As one prominent jurist has noted with regard to the enactment of the federal Bill of Rights:

The state charters for many years were the sole protection against governmental overreaching. Indeed, when the federal Constitution was firstdrawn up, a Bill of Rights was viewed as unnecessary, in part because state constitutions already safeguarded the rights of citizens.... [T]here was no thought that state constitutions were thereby superseded or their Bills of Rights rendered redundant [by enactment of the federal Bill of Rights]. To the contrary, the contemplation was that the states would remain the principal protectors of individual rights--"the immediate and visible guardian of life and property"--with the powers of the national government principally directed to external objects such as war, peace and foreign commerce,(174)

Thus, allowing the states to define the rights of its citizens, even with regard to an exercise of federal power in the limited context of capital punishment, is consistent with traditional notions of the state domain. A state constitutional pronouncement, an unequivocal expression of the will of the state's citizenry, should be the governing definition of the citizen's right, regardless of the status of the sovereign seeking to undermine that right.

B. Defining Cruel and Unusual Punishment on a Local Level

A newly refined reading of the Cruel and Unusual Punishment Clause(175) further supports the notion of state supremacy in the field of capital punishment. It has been noted that according to "[t]he [United States Supreme] Court's proclamation in Trop v. Dulles[,] `evolving standards of decency' is the litmus test for determining whether a law violates the principles embodied in the Eighth Amendment."(176) The flexible standard for determining what constitutes cruel and unusual punishment is necessary for two reasons. As an initial matter, the very words "cruel and unusual" are ambiguous to the point where "the absence of an exact or exhaustive definition of the [phrase] has been repeatedly noted."(177) Second, the words themselves are entirely subjective in meaning, and thus must remain adaptable to changing circumstances and social mores.(178) Even within the context of the death penalty, the notion of what constitutes "cruel and unusual punishment" has evolved. To be sure, the development of execution by lethal injection invariably arose as an alternative to what some viewed as the cruel and unusual forms of execution that pre-dated lethal injection, such as death by hanging, gas chamber, electrocution, or firing squad.(179) Moreover, while capital punishment was once considered an entirely permissible sanction for rape, it is no longer viewed as such.(180)

However, the Federal Supreme Court is unquestionably of the opinion that the death penalty is not, per se, cruel and unusual punishment under the federal constitution.(181) But this should not be the end of the story, as most states have a provision comparable to the Eighth Amendment within their own individual state charters.(182) As Justice William Brennan famously stated, "[i]t is simply that the decisions of the [federal Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law."(183) Thus, merely because the U.S. Supreme Court has held that the imposition of capital punishment does not offend the Federal Constitution, individual states are not prohibited from finding that the death penalty indeed does offend analogous provisions of their own state charters.(184) Certainly, the citizens of an individual state may elect to characterize the death penalty as "cruel and unusual" under their state constitution. Further, such a determination will be conclusive as a matter of state law, regardless of what the U.S. Supreme Court has to say about the matter.(185)

However, a serious difficulty arises when the federal government attempts to exercise its criminal jurisdiction within a State that affirmatively prohibits the death penalty via that state's constitution. If federal authorities attempt to pursue the death penalty in such a state, the Supremacy Clause(186) would appear to render the state provision "legally irrelevant."(187) Or does it?

If the proper test for determining what constitutes "cruel and unusual punishment" is based on "evolving standards of decency,"(188) why then must those "evolving standards" be judged at a national level? Arguably, just as obscenity is reckoned with regard to "contemporary community standards,"(189) "cruel and unusual punishment" should more properly be defined at the local level.

Simply put, because individuals differ in their tastes and attitudes, obscenity is best defined locally.(190) In addition, a localized definition of obscenity insures that First Amendment expression remains largely unchilled, as a local standard looks not at what the most sensitive members of society would find offensive but, instead, at the generalized sentiments of the community as a whole.(191) Further, since "our Nation is simply too big and too diverse"(192) to provide a universally acceptable national definition of "obscenity," it is best left to the microcosmic states to define this amorphous concept for themselves. (193)

Likewise for the concept of "cruel and unusual." As individuals may differ as to what constitutes "obscenity," people in different states invariably express diverse attitudes as to what sanctions constitute "cruel and unusual punishment." Should the individuals within one state reach an ascertainable agreement on what constitutes cruel and unusual punishment, they should not have to hold their decision in abeyance, awaiting the consensus of a sister state, any more than New Yorkers should be forced to abide the views of Mississippians on what is acceptable for public viewing.

Defining cruel and unusual punishment at a local level might lead to disparate results from state to state, but this is hardly a new, or necessarily wrong, outcome.(194) Moreover, such disparate results would only serve to enhance individual protections at the local level, as the federal standard of what constitutes cruel and unusual punishment, which the individual states may not go below, remains in effect as an overarching safeguard.(195)

Using the viewpoints of the individual states, as articulated in their constitutions, to define cruel and unusual punishment is consistent with the view that the standard is to be judged according to "evolving standards of decency."(196) States, as independent sovereigns, "evolve" at different rates, and a state that has chosen to recognize the death penalty as inherently cruel should not be forced to languish behind, waiting for its sister states to reach the same conclusion. Moreover, a state that has prohibited the death sentence should not be forced to endure a federal capital prosecution within its borders simply because the federal sovereign has reached a different conclusion as to the appropriateness of the ultimate punishment.

V. CONCLUSION

Imposition of the federal death penalty upon the states may soon become ripe for discussion. Over twenty individuals now sit on federal death row, with their individual appeals processes at varying stages of completion.(197) As of this writing, Timothy McVeigh, convicted of orchestrating the 1995 bombing of the Murrah Federal Building in Oklahoma City in which 168 people were killed, has abandoned his course of appeals and thus expedited his own path to execution.(198) While no federal death penalty convictions have occurred in states that do not permit the death penalty under state law,(199) that situation seems likely to change with the recent election of staunchly pro-capital punishment George W. Bush(200) to the nation's highest office. Indeed, it seems almost inevitable, as the federal government continues to expand its own criminal jurisdiction,(201) that a federal capital prosecution will occur in a state that does not--under its own law--provide for or allow the death penalty.

Once such a prosecution has occurred, questions inevitably will arise regarding the scope of federal power, the exercise of states' rights, and the nature and source of individual freedoms. In the interim, states that oppose the death penalty should begin to formulate an argument--perhaps state-constitutionally based-against the imposition of the federal death penalty within their borders. Hopefully, this article will provide a useful starting point for such an argument.

OTHER NEWS

TheDeath Penalty Information Centerreports:

Launches Death Penalty Moratorium Implementation Project

The American Bar Association recently announced the creation of the Death Penalty Moratorium Implementation Project. The Project will work toward achieving a national moratorium on executions until the death penalty process is reformed. (ABA Press Release , 4/3/02) See also, the Project's Web site .

Federal Judge Asserts Constitutional Right to DNA Testing

Fourth Circuit Court of Appeals Judge Michael Luttig recently stated in an opinion that post-conviction DNA testing for inmates is a constitutional right. Chief Judge Harvie Wilkinson III also wrote that inmates should be allowed access to such testing, perhaps through legislation. Wilkinson and Luttig are among the nation's most conservative judges and have both been mentioned as possible choices as Bush appointees to the U.S. Supreme Court, should a vacancy in the Court arise. The opinions were written in the case of James Harvey, a man serving a 40-year prison term for a sexual assault for which he maintains his innocence. A federal panel rejected his request for DNA testing, and the full court was reconsidering the request. Although the court did not grant a rehearing, both Luttig and Wilkinson wrote opinions stating that Harvey should be given access to DNA testing. "Our system of justice . . . is capable of producing erroneous determinations of both guilt and innocence," Luttig wrote. "A right of access to evidence for tests which . . . could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required, I believe, as a matter of basic fairness." Currently, over 100 people have been exonerated by DNA testing, 11 of whom were sentenced to death. (Washington Post, 3/29/02) See also, New Voices and Innocence.