Capital Defense Weekly, April 10, 2006

Leading off this edition isRosales v. Dretke. The Fifth Circuit panel inRosalesholds that the procedural bar applied by the Texas Court of Criminal Appeals to bar review of Rosales' claimed Batson violation was "not firmly established and regularly followed." Specifically, Rosales' direct appeal was pending when Batson was decided, however, unlike other defendant's in his position, the state courts found his claim barred.

InUnited States v. Gabriona cryptic order remanding the matter to district court is creating a stir. The Sixth Circuitreturned Gabrion,a federal death penalty prosecution from Michigan, so that the district court can determine whether the federal government had the jurisdiction to prosecute it in the first place.Documents"indicate that when the federal government obtained the land 67 years ago for the Manistee National Forest, it failed to take the necessary steps to also obtain law enforcement jurisdiction." Without the law enfocement jurisdiction the federal district court could not hear the case.

Lethal injection has heated up again.In a move similar to that taken recently by US District Ct Judge Fogel in examining the California lethal injection protocol, US District Ct Judge Malcolm Howardhas orderedNorth Carolina prison officials to explain how trained medical personnel will ensure a pain-free execution of Willie Brown on April 21. In California in a suit filed in Marin County Superior Court lawyers for Michael Morales, taking a page from the New Jersey suit that effectively stopped the death penalty (for now) in the Garden state, argue that execution procedures are state regulations that, under California law, require public notice, public comment and an opportunity for members of the public to request a hearing.Doug Berman at theSentencing Blog has more.

The upcoming sixth annual Forensic Science and Law Conference,Justice for All, will feature more than 40 national experts discussing causes of and solutions to wrongful convictions.The 2006 electronic edition of the Capital Punishment Handbook has been revised and is current through early March 2006 (theentire download is here& theonline version is here). Governor Pataki vetoed a funding allocation for additional dollars for the Capital Defenders Office's in New York, in the amount of about $500,000 that if not reinstated may end that office's existence; what can be done to help the CDO & its staff will be covered as the need arises.

Looking ahead, the Fourth Circuit denied relief this week inLenz v. Washingtonon a grab bag of claims, including, most notably, the use of a Bible during sentencing deliberations. A federal district courthas orderedthat Steven Kenneth Staley, should be "physically forced to take anti-psychotic medication -- an order that, in essence, could make Staley competent enough to be executed."

It came to light this week that prosecutors with whom I routinely work with have discovered this list & the related blog. This is probably a good time to reiterate what is in the disclaimer of every email edition, the views expressed herein do not reflect the views of my employer or my views on the merits of any matter in which I or they have participated. Indeed, on a semi-regular basis cases in which I, or the organizations by whom I have been employed, have clients' cases appear here. The analysis given below is merely commentary on the results reached by the courts in a given cases, not whether those decisions were the legally correct decisions to make.

As always thanks for reading. - k

Archived on the net athttp://capitaldefenseweekly.com/archives/060410.htm

Pending Executions
April18 Richard Thornburg (Oklahoma)
21 Willie Brown (North Carolina)
25 Pedro Sosa (Texas)
26 Daryl Mack (volunteer) (Nevada)
27 Hasan Shakur f/k/a Derrick Frazier (Texas)
27 Dexter Lee Vinson (Virginia)
More Execution information

In Favor of Life & Liberty

Rosales v. Dretke, 2006 U.S. App. LEXIS 8007 (5th Cir 4/3/2006) "[T]he procedural bar applied by the Texas Court of Criminal Appeals and honored by the district court was not adequate to support the judgment and preclude federal court review of Rosales' constitutional claim. The procedural bar was not firmly established and regularly followed by the Texas Court of Criminal Appeals for cases like Rosales', which were on direct appeal when Batson was decided."

Favoring Death

Cathey v. Dretke, 2006 U.S. App. LEXIS 8501 (5th Cir 4/7/2006) COA & relief denied on a "Bradyclaim that his constitutional rights were violated because the prosecutor failed to disclose information about an alleged tacit agreement among Bonner, Williams, and the State of Texas."
Carter v. Mitchell, 2006 U.S. App. LEXIS 8285 (6th Cir. 4/6/2006) Relief denied on claims including: "(1) that Carter's trial counsel n1 rendered ineffective assistance by waiving a mental examination for Carter and not employing a mental health expert; (2) that Carter's trial counsel rendered ineffective assistance by not requesting the expert assistance of a neuropsychologist; (3) that Carter's trial counsel rendered ineffective assistance by not presenting certain mitigating evidence and testimony during the sentencing phase; (4) that Carter's trial counsel rendered ineffective assistance by failing to present evidence that Carter's beating of the victim lasted only ten to thirteen minutes, and that the prosecutor withheld evidence of this fact; (5) that the prosecutor improperly presented false testimony at trial; and (6) that Carter should receive a new trial because newly discovered evidence reveals that insufficient evidence exists to support his aggravated murder conviction."
Fauber v. Brown, 2006 U.S. App. LEXIS 8559 (9th Cir 4/7/2006) (unpublished) "This case involves a question of privilege waiver, not the assertion of a unique privilege effectively unreviewable after final judgment. It is, in short, an ordinary discovery dispute in which the material has already been disclosed. Fauber has not satisfied the prerequisites for establishing appellate jurisdiction over the interlocutory discovery order."
Robinson v. Polk, 2006 U.S. App. LEXIS 8426 (4th Cir 4/7/2006) (on denial en banc) Rehearing en banc denied on the issue of how much, if any, Biblical verses should play in capital cases ( more here)
State v. Barton, 844 N.E.2d 307 (Ohio 4/5/2006) (dissent) Relief denied, over sharp dissent, on whether a competency hearing had to be held where the defendant took the stand, asked for death then waived all other mitigation evidence.
Myers v. State, 2006 Okla. Crim. App. LEXIS 11 (Okla. Crim. App. 4/4/2006) Relief denied on numerous issues including: juror qualification, snitch testimony, identification procedures, other crimes evidence, veil of innocence opening, prosecution's attempts to define reasonable doubt, and jury instructions. Relief denied also on a HAC issue which it finds impermissible, but harmless in light of Brown v. Saunders.

Selected Excerpts from this Edition's Cases

Rosales v. Dretke, 2006 U.S. App. LEXIS 8007 (5th Cir 4/3/2006) "[T]he procedural bar applied by the Texas Court of Criminal Appeals and honored by the district court was not adequate to support the judgment and preclude federal court review of Rosales' constitutional claim. The procedural bar was not firmly established and regularly followed by the Texas Court of Criminal Appeals for cases like Rosales', which were on direct appeal when Batson was decided."
Federal court review of a question of federal law decided by a state court is generally unavailable if the state court resolved the question on a "state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). This rule is grounded in concerns of comity and federalism. It is designed to prevent federal courts from deciding cases on federal constitutional grounds regarding a petitioner's confinement that would be advisory because the confinement can be upheld on an independent and adequate state law basis. Id. at 730. When, as in this case, the independent and adequate state law ground is a state procedural default rule, another concern applies. A "habeas petitioner who [*11] has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. The procedural default rule also prevents habeas petitioners from avoiding the exhaustion requirement by defaulting their federal claims in state court. Id.
To be "adequate" to support the judgment, the state law ground must be both "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 424, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). If the state law ground is not firmly established and regularly followed, there is no bar to federal review and a federal habeas court may go to the merits of the claim. Barr v. Columbia, 378 U.S. 146, 149, 84 S. Ct. 1734, 12 L. Ed. 2d 766 (1964). An important consideration in determining whether an "adequate" state law ground exists is the application of the state law ground to identical or similar claims. Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir. 1995). The adequacy of a state law ground to preclude federal court review of federal constitutional claims is a federal question which is reviewed by this court de novo [*12] . Howlett v. Rose, 496 U.S. 356, 366, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990).
Rosales was tried in 1985. The Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which is central to a decision in this case, was decided in 1986. Rosales' case on direct appeal was decided by the Texas Court of Criminal Appeals in 1992. A brief history of pre- and post-Batson jurisprudence is helpful in understanding this case.
Batson's antecedent, Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), recognized that an equal protection violation occurs when the State systematically uses its peremptory challenges for the purpose of excluding members of a black defendant's race from his petit jury. Id. at 209. To prove a violation under Swain required proof that the prosecutor "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim . . . [,was] responsible for the removal of Negroes who had been selected as qualified jurors by the jury commissioners and who had survived challenges for cause, with the result that no Negroes ever serve on petit juries. [*13] " Id. at 223-24. "Batson dropped the Swain requirement of proof of prior discrimination, holding it possible for a defendant to make out a prima facie equal protection violation entirely by reference to the prosecution's use of peremptory challenges in the circumstances of the defendant's own case." Ford, 498 U.S. at 420. The Batson decision was applied retroactively for cases, like Rosales', pending on direct review or not yet final when Batson was decided. Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Thus, courts for some period after Batson were faced with the challenge of determining what sorts of objections were adequate to preserve Batson error in pre-Batson trials.
We have examined a number of decisions rendered by the Texas Court of Criminal Appeals in cases where the defendants were in the same position as Rosales: their trials occurred before Batson was announced but their direct appeals were decided after Batson. In these cases, the Texas Court of Criminal Appeals responded to the change in the law wrought by Batson by allowing with some leniency objections that did [*14] not meet the strict test of Swain and inartfully presented claims under the theories yet to be recognized in Batson and its progeny.
In Henry v. State, 729 S.W.2d 732 (Tex. Crim. App. 1987), the defendant after voir dire made a motion pointing out that he was black, that there were seven black persons in the array and requesting the court to instruct the district attorney not to use his peremptory strikes to eliminate the black prospective jurors. The state struck all the black prospective jurors. After the jury was sworn, the defendant objected to the use of the strikes against all the black jurors and requested a new jury that would present a "fair representation of this community" so the defendant could "get a fair trial by the jurors of its peers." Id. at 735. The Texas court found that these objections "sufficiently raised the issue of the State's use of its peremptory strikes at trial to invoke Batson protections on appeal." Id. at 736.
In DeBlanc v. State, 732 S.W.2d 640 (Tex. Crim. App. 1987), after the jury array had been seated, the defendant challenged the array based on the under-representation [*15] of blacks on the array. The defendant argued that this under-representation increased the likelihood that he would be denied his Sixth Amendment right to a "fair cross-section of the community on the jury panel." The objection was overruled. The defendant noted his exception to the state's cause challenges against several black prospective jurors and noted for the record that several jurors struck by the state were black without raising an exception. The Texas court concluded
Clearly appellant did not voice a clear objection to the use of the peremptory strikes by the prosecutor. However, by virtue of his motion to challenge the array and his efforts to point out that the prosecutor was using his peremptories on blacks, it is clear from the record that appellant was concerned with the exclusion of blacks from the jury and did present his concerns to the trial judge. Although we caution defense attorneys that such efforts would be inadequate in cases tried after Batson, we are compelled by fairness to hold that appellant has properly preserved the issue.
Id. at 642.
In Chambers v. State, 742 S.W.2d 695 (Tex. Crim. App. 1988), the [*16] Texas court stated only that the defendant claims that "he was denied a fair trial under the Fourteenth Amendment due to the prosecutor's use of peremptory challenges to strike all of the blacks from the jury panel." There is no description of the defendant's objection at trial. The case was remanded for consideration of Chambers' Batson challenge.
In deciding Rosales' Batson challenge, the Texas Court of Criminal Appeals applied a more exacting standard for the objection necessary to preserve a Batson claim than it did in Henry, DeBlanc and Chambers. In Rosales' case, the court citing Trevino v. Texas, 469 U.S. 1222, 105 S. Ct. 1211, 84 L. Ed. 2d 352 (1992), noted that the Supreme Court held
that federal judicial review of a Batson claim is not barred by state procedural default rules bearing on the specificity of objections at trial so long as the accused either invoked Batson's Fourteenth Amendment antecedent, Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), or in any event referred to a practice of using peremptory challenges to exclude minority members from jury service "over a long period of time, [*17] " or "historically and habitually." Here appellant came no closer to invoking Swain than to remark preliminarily that "familiar patterns [were] already developing."
841 S.W.2d at 380. Thus, the objection the Texas court required to prove a Batson claim in Rosales' case is much stricter than it required in the decisions discussed above.
Even Trevino v. Texas, 503 U.S. 562, 112 S. Ct. 1547, 118 L. Ed. 2d 193 (1992), reversing 815 S.W.2d 592 (Tex. Crim. App. 1991), a case relied upon by the State, supports our conclusion that the application of the procedural bar to Rosales' case is not proper. Trevino was tried in 1984, pre-Batson. The Texas Court of Criminal Appeals affirmed Trevino's conviction, characterizing his objections to the jury selection process as arising under the Sixth Amendment. Under Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990), the Sixth Amendment does not prohibit the prosecution from exercising its peremptory challenges to exclude potential jurors based on race. The United States Supreme Court looked at both his trial court objection and that raised on appeal to determine that he had [*18] adequately preserved a Batson claim similar to those raised in Batson and Ford. At trial, Trevino raised the following objection:
The prosecution . . . historically and habitually uses its peremptory challenges to strike black people and other minorities who are otherwise qualified. . . . This practice deprives the Accused of a jury representing a fair cross-section of the community in violation of the Sixth Amendment to the United States Constitution.
On appeal Trevino argued that the "prosecution's race based use of challenges violated his 'rights to due process of law and to an impartial jury fairly drawn from a representative cross section of the community'" founded on the Sixth and Fourteenth Amendments. Trevino acknowledged that his claim would not satisfy Swain, but noted that Batson was awaiting review. Trevino's objections were somewhat more precise than those of Rosales but still do not meet the specificity of the rule applied by the Texas Court of Criminal Appeals to Rosales' writ application.
In fact, except for Trevino which was reversed by the Supreme Court, the state cites no Texas case with a pre-Batson trial in which the [*19] defendant made an objection like that made by Rosales that the Texas Court of Criminal Appeals rejected as inadequate or procedurally barred. The cases relied on by the State as establishing that the Texas contemporaneous objection rule was strictly and regularly applied to this issue involved situations in which the defendants failed to make any objection or create any record regarding peremptory strikes of minority members of the venire. Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988); Mathews v. State, 768 S.W.2d 731 (Tex. Crim. App. 1989).
The principal substantive argument the state made during oral argument was that the Texas Court of Criminal Appeals in Henry, DeBlanc, and Chambers erred in applying such a relaxed standard to preserve a Batson objection and that Rosales should not receive a windfall on account of this error. The Texas Court of Criminal Appeals is entitled to exercise whatever leniency or grace it wishes in establishing its procedural rules. Our task is to determine whether procedural rules applied by the state court to bar merits review of a habeas claim have been strictly and regularly applied. If [*20] the state procedural rule has not been strictly and regularly applied, we must review the merits of the petitioner's constitutional claims.
Myers v. State, 2006 Okla. Crim. App. LEXIS 11 (Okla. Crim. App. 4/4/2006) Relief denied, most notably, on a HAC issue which it finds to have been impermissibly submitted to the jury, but harmless in light of Brown v. Saunders.
In Proposition Fourteen, this Court found the evidence insufficient to support the jury's finding of the heinous, atrocious, or cruel aggravator. Recently in Brown v. Sanders, 2006 WL 47402, U.S. , 126 S.Ct. 884, 163 L. Ed. 2d 723 (January 11, 2006), the Supreme Court set forth a new rule and held that an invalidated sentencing factor will render a death sentence unconstitutional by reason of its
adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentences to give aggravating weight to the same facts and circumstances. . . .
If the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here. The issue we confront is the skewing that could result from the jury's considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty. As we have explained, such skewing will occur, and [*67] give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor.
(citations and footnotes omitted) (emphasis in original). Id., 126 S.Ct. at 892. All of the evidence relating to the abduction, rape and the murder itself was admissible evidence for another purpose - to show the sheer callousness of the crime in support of the continuing threat aggravating circumstance. Because the facts and circumstances that the invalidated aggravator permitted the jury to consider were "also open to their proper consideration under one of the other" aggravators, the erroneous aggravator could not have skewed the sentence, and no constitutional violation occurred. Id., 126 S.Ct. at 893.
The rule pronounced in Brown does not, in our opinion, replace the need for reweighing the aggravating and mitigating evidence when a weighing state invalidates one of the aggravating circumstances. As the dissent in Brown notes "the potential for the same kind of constitutional harm exists in both kinds of States, namely that the [*68] jury will attach special weight to that aggravator on the scale, the aggravator that the law says should not have been there." Brown, Breyer.J., dissenting, 126 S.Ct. at 899. Accordingly, when this Court invalidates an aggravator and at least one valid aggravating circumstance remains which enables the jury (or the judge in a bench trial) to give aggravating weight to the same facts and circumstances which supported the invalid aggravator, it will continue to reweigh the evidence and uphold the death sentence if the remaining aggravating circumstances outweigh the mitigating circumstances and the weight of the improper aggravator is harmless. Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, 1444, 108 L.Ed.2d 725 (1990); Valdez v. State, 1995 OK CR 18, P73, 900 P.2d 363, 384. We may find an improper aggravator to be harmless error if, looking at the record, the Court finds that the elimination of the improper aggravator cannot affect the balance beyond a reasonable doubt. McGregor v. State, 1994 OK CR 71, P48, 885 P.2d 1366, 1385-1386. This "independent reweighing of aggravating and mitigating circumstances [*69] where one of several aggravating circumstances has been invalidated is implicit to our statutory duty to determine the factual substantiation of a verdict and validity of a death sentence." McGregor, id.
Three aggravating circumstances remain: (1) the Defendant was previously convicted of a felony involving the use or threat of violence; (2) the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and, (3) the murder was committed for the purpose of avoiding arrest or preventing a lawful arrest or prosecution. The evidence offered in support of each of these remaining aggravators was substantial.
The State presented evidence which showed Myers had been previously convicted of assault with intent to commit rape, murder and possession of a firearm after a felony conviction. This evidence was more than sufficient to prove Myers was previously convicted of a felony involving the use or threat of violence. Williams, 2001 OK CR 9, P130, 22 P.3d at 732.
Evidence of the prior violent felony convictions, plus evidence of Myers's prior unadjudicated [*70] acts of violent conduct towards his step-daughter, and evidence showing the sheer callousness of the murder, was all compelling evidence supporting the continuing threat aggravator. Young, 2000 OK CR 17, P78, 12 P.3d 20, 42.
Lastly, in support of the avoid arrest or prosecution aggravator, the State's evidence showed Myers abducted Shawn Williams and took her to a secluded place where he physically and sexually assaulted her and killed her. Carter v. State, 1994 OK CR 49, P49, 879 P.2d 1234, 1250 (this aggravator requires a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution). Bonnie Makin testified about the sexual assault Myers committed against her, for which he was prosecuted and convicted. After the assault, which Myers committed in a secluded area, Myers drove Makin to town and told her if she told anyone, he would "finish it off." From this evidence, the jury could properly conclude Myers killed Williams to avoid arrest and prosecution for the crimes he committed against her.
Myers called three mitigation witnesses. Dr. Phillip Murphy, a clinical psychologist, evaluated [*71] Myers and testified his IQ scores placed him in a borderline range - between normal functioning and mentally retarded functioning. His performance IQ was much higher than his verbal IQ, which was consistent with his dyslexia and aphasia. Murphy testified Myers has severe deficits in language reception and expression and other neurological testing showed he has moderate to severe brain damage most likely caused from a head injury he suffered when he was eight years old.
Myers's case manager at DOC testified Myers had not had any disciplinary problems while at the Oklahoma State Penitentiary.
Myers's sister, Hazel Robitaille, described their childhood. When she and Myers were young children, her mother and father split. Her mother's boyfriend lived with them for about one year; he was very abusive to Myers - physically and emotionally. Robitaille said Myers was hit by a car when he was about eight years old. He was running away from some children who were teasing him and when he ran into the street, he was hit by a car. He was in the hospital for a very long time and was in a coma. When he finally woke up, he was withdrawn and wouldn't talk to anybody. When [*72] he returned to school, he did not do well. The other children always teased him and treated him like he did not belong. He often got in fights and even the teachers ridiculed him. Their mother remarried another man who also was abusive towards Myers. Robitaille recalled one time when this man (Garinger) urinated on Myers's head. After their mother and Garinger split up, another boyfriend (Lake) also was abusive toward Myers. He used make Myers pick up cow patties and once tried to run over him. Robitaille testified she loved her brother and would continue to remain in contact with him even if he spent the remainder of his life in prison.
Although the mitigating evidence was uncontroverted, it was not overly compelling or unusually persuasive. n10 The evidence supporting the aggravating circumstances was strong. Upon reweighing the remaining valid aggravating circumstances against the mitigating evidence, we find the aggravating circumstances outweighed the mitigating evidence and supported the death sentence. Had the jury considered only these valid aggravating circumstances, we find beyond a reasonable doubt the jury would have imposed the same sentence of death.

THE SMALL PRINT

SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible athttp://capitaldefenseweekly.com/index.html. To subscribe:capital_defense_weekly-subscribe@yahoogroups.com. The Weekly's RSS feed can be found athttp://rss.groups.yahoo.com/group/capital_defense_weekly/rss. The Daily Copy's RSS/Atom feed athttp://capitaldefenseweekly.com/atom.xml.