Leading off this week is the California Supreme Court's holding in California v. Dent. In Dent that court held the he trial court impermissibly abridged, pursuant to Faretta, the appellant's right to self representation below. Specifically, regardless of "whether or not defendant's request to proceed in propria persona was equivocal the trial court's response foreclosed any realistic possibility defendant would view self representation as an available option."

Several other cases are likewise of note. The Eighth Circuit in Whitfield v. Bowersox has held that the state trial court fatally erred when it did not secure an explicit waiver of his right to testify during the penalty phase of the trial. In Darks v. Mullins a panel of the Tenth Circuit has reversed a district court's grant of habeas relief where relief below was had on claims under Beck v. Alabama and coercive impact in the penalty phase of a certain supplemental instruction. In a noncapital case the Sixth Circuit in Mitchell v. Mason, holds that de minimis contact with a client pretrial (less than 10 minutes pretrial) is a denial of the right to counsel.

The Focus section will return next week.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

April

9 Earl Bramblett Virginia

17 Larry Jackson Oklahoma

A stay was had of the previously scheduled execution for Kenneth Morris on April 15 in Texas on the basis of Atkins.

The following executions dates for the next few weeks that are considered serious:*

April

22 Juan Chavez Texas

23 Robert Ladd Texas

24 Gary Brown Alabama

29 David Brewer Ohio

HOT LIST

California v. Dent, 2003 Cal. LEXIS 2086 (CA 4/10/2003) The trial court impermissibly abridged, pursuant to Faretta, the appellant's right to self representation below.

When "a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. Furthermore, the defendant's 'technical legal knowledge' is irrelevant to the court's assessment of the defendant's knowing exercise of the right to defend himself." ( People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal. Rptr. 8, 560 P.2d 1187 [*8] (Windham), quoting Faretta, supra, 422 U.S. at p. 836.) Erroneous denial of a Faretta motion is reversible per se. ( McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8, 79 L. Ed. 2d 122, 104 S. Ct. 944.)

When confronted with a request to proceed in propria persona, a trial court must make the defendant "aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " ( Faretta, supra, 422 U.S. at p. 835.) Unlike the right to representation by counsel, " 'The right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.' " ( People v. Marshall (1997) 15 Cal.4th 1, 21, 931 P.2d 262, 61 Cal. Rptr. 2d 84 (Marshall); id. at p. 23 ["The court should draw every reasonable inference against waiver of the right to counsel"]; see Brewer v. Williams (1977) 430 U.S. 387, 391, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 ["courts indulge in every reasonable presumption against waiver" of the postarraignment right to counsel].) In determining on appeal whether the defendant [*9] invoked the right to self-representation, we examine the entire record de novo. (See Marshall, at pp. 24-25.)

The Attorney General argues defendant never made a request to represent himself within the meaning of Faretta because the suggestion he proceed in propria persona was "impulsive, ambivalent, and prospective, and therefore equivocal." Faretta's emphasis "on the defendant's knowing, voluntary, unequivocal, and competent invocation of the right suggests that an insincere request or one made under the cloud of emotion may be denied." ( Marshall, supra, 15 Cal.4th at p. 21; People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088, 954 P.2d 384, 74 Cal. Rptr. 2d 121.)

Here, it is apparent the trial court denied the request to proceed in propria persona on an improper basis, i.e., because it was "a death penalty murder trial." In People v. Joseph (1983) 34 Cal.3d 936, 939, 196 Cal. Rptr. 339, 671 P.2d 843, five months prior to trial, counsel sought to be relieved, and the defendant sought to represent himself. The trial court relieved counsel, denied the Faretta motion, and appointed new counsel. ( Id. at pp. 941-943.) " 'The court [*10] feels, because of the nature of the charge, you are not able to represent yourself adequately . . . . [P] . . . Your request to go pro. per., because this is a capital case, is denied.' " ( Id. at p. 942.) This court reversed the death judgment ( id. at pp. 939, 948), stating "the nature of the charge is irrelevant to the decision to grant or deny a timely proffered Faretta motion." ( Id. at p. 945; People v. Hardy (1992) 2 Cal.4th 86, 196, 825 P.2d 781, 5 Cal. Rptr. 2d 796 ["Faretta motion cannot be denied because of the seriousness of the charge"].)

Even though the trial court denied the request for an improper reason, if the record as a whole establishes defendant's request was nonetheless properly denied on other grounds, we would uphold the trial court's ruling. After reviewing the record, we are unable to reach that conclusion.

Arguably, defendant's request to proceed in propria persona was not equivocal. Counsel said that if the court was not inclined to allow defendant to retain either both or one of his current counsel, "the other alternative that he proposes to the court is that he proceed in pro. per. He thinks he [*11] would be more inclined to get a fair trial that way than he would with . . . counsel." ( People v. Michaels (2002) 28 Cal.4th 486, 524, 49 P.3d 1032, 122 Cal. Rptr. 2d 285 ["nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself"].) Moreover, the trial court, who was in a position to view defendant's demeanor, appears to have treated the request to proceed in propria persona not as equivocal but serious, and emphatically denied it.

We need not decide this issue, however, because whether or not defendant's request was equivocal, the trial court's response was not only legally erroneous but unequivocal, and foreclosed any realistic possibility defendant would perceive self-representation as an available option. Thus, even assuming defendant's request was equivocal, the trial court's response effectively prevented defendant from making his invocation unequivocal.

In response to the request, the court stated, "I am not going to let him proceed pro. per. . . . Not in a death penalty murder trial." When defendant then repeated the request in the context of confirming to his trial counsel he had not previously raised the possibility of proceeding [*12] in propria persona, the trial court ignored his remark, briefly discussed logistical details, and adjourned the proceedings. Moreover, earlier that morning the trial judge had stated to defendant he could not represent himself; when he then mentioned he was removing defendant's counsel, he declined to let defendant speak. While the trial judge was concerned defendant might make an incriminating statement, the court's instruction to not speak, combined with the court's subsequent categorical denial of the Faretta request, may well have convinced defendant the self-representation option was simply unavailable, and making the request again would be futile. Hence, this case is unlike those relied on by the Attorney General in which failure to renew a Faretta motion was held to be evidence of equivocation. ( Reese v. Nix (8th Cir. 1991) 942 F.2d 1276, 1280-1281; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888-889.) We do not require trained counsel to repeatedly make a motion that has been categorically denied; how much more should we require of an untrained defendant seeking self-representation. (See Orazio v. Dugger (11th Cir. 1989) 876 F.2d 1508, 1512 [*13] ["To avoid a waiver of a previously-invoked right to self-representation, a defendant is not required continually to renew a request once it is conclusively denied or to 'make fruitless motions or forego cooperation with defense counsel in order to preserve the issue on appeal' "].)

Similarly, the Attorney General argues defendant's words, "If I receive two new counsel, I would like to go pro. per.," indicate "the third of his three alternative suggestions was conditional and prospective in nature, i.e., that if and when the court appointed new counsel for him, he would then move to represent himself. Given that, upon actually meeting with his newly appointed counsel, [defendant] did not so move, but instead elected to accept and enjoy their representation throughout all phases of trial and sentencing," defendant "can fairly be held to have abandoned his conditional and prospective suggestion."

As noted above, this "conditional" statement was made in response to counsel's inquiry as to whether defendant had previously raised the possibility of proceeding in propria persona. Counsel did not think defendant had, and asked defendant if this was correct. Thus, defendant's statement [*14] appears to be more of an affirmation of counsel's representation he had not previously raised the possibility of proceeding in propria persona rather than an assertion he was going to make a Faretta motion in the future. Arguably, his choice of the word "would" in isolation suggests a prospective intent. However, viewed in context, defendant appears to have been simply confirming counsel had correctly conveyed to the court the request defendant had earlier communicated to counsel. While defendant still may have desired in propria persona status, and perhaps for that reason chose the word "would," it was a request any reasonable person in the court room would recognize had already been denied and the matter closed. Thus, his statement was not a motion, prospective or otherwise.

Moreover, even if defendant was making a prospective and conditional statement, it is unlikely defendant would realistically feel the option of in propria persona status was available. Again, it must be remembered that only moments before, the trial court had categorically denied defendant's request. In addition, following the statement, the court made no response but spoke only to counsel regarding other [*15] topics and almost immediately thereafter adjourned the proceedings. Under these circumstances, it is less probative than in other cases that defendant failed to renew his motion upon meeting his new counsel.

Had the trial court engaged in any inquiry into defendant's request, as required by Faretta, the record as to whether the request was merely impulsive, as the Attorney General argues, would be clearer. The limited record indicates defendant's request was motivated by the trial court's sua sponte removal of counsel defendant had worked with for two and a half years and wished to retain. To this extent, the request was no doubt based in part on emotion. Nonetheless, defendant also expressed concern about the "inordinate" delay inherent in appointing new counsel. This reasoning suggests a practical and not entirely emotional response. Moreover, Mr. Maple informed the court he had "cautioned" defendant about self-representation in a capital case. This suggests defendant made the request to proceed in propria persona with at least some awareness of the disadvantages of such status. Nor is there any evidence defendant asserted the right of self-representation as a "vehicle for [*16] manipulation and abuse." ( Marshall, supra, 15 Cal.4th at p. 22.)

The Attorney General argues that defendant's response to the trial court's inquiry later on March 6, 1991, demonstrates the request to proceed in propria persona was merely emotional. During the afternoon of March 6, new counsel were appointed for defendant. At the beginning of this hearing, the trial court inquired, "How are you doing, Mr. Dent?" Defendant replied, "Fine," and the hearing commenced. At the end of the hearing, the court asked, "Mr. Dent, everything okay with you? Are you getting your showers okay and getting your medication? Everything okay?" Defendant replied, "Yes, your honor." The court said, "If you need anything, you tell these attorneys and they will tell me and I will be sure you get it." Nothing in these inquiries suggests the trial court was inviting defendant to renew the Faretta request the court had earlier categorically denied.

For all of these reasons, we conclude that whether or not defendant's request to proceed in propria persona was equivocal, the trial court's response foreclosed any realistic possibility defendant would view self-representation as an available option. [*17] The Attorney General further contends, however, that even if defendant's request was clear and unequivocal, it was untimely. As noted earlier, "when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so." ( Windham, supra, 19 Cal.3d at p. 128.) "However, once a defendant has chosen to proceed to trial represented by counsel," a motion for self-representation is addressed to the "sound discretion of the court." (Ibid.)

Here, the trial court stated at least twice prior to the Faretta motion that the trial would be continued because it was sua sponte relieving current counsel and appointing new counsel. Hence, since no trial was imminent, and did not in fact occur for over four months, the motion appears timely. The Attorney General's reliance on Marshall, supra, 15 Cal.4th 1 and People v. Clark (1992) 3 Cal.4th 41, 833 P.2d 561, 10 Cal. Rptr. 2d 554 is misplaced. Marshall merely states a trial court's determination that a Faretta "motion is untimely does not become erroneous simply because, for example, an imminent trial ultimately [*18] is postponed." ( Marshall, at pp. 24-25, fn. 2.) That is not the situation here. Indeed, defendant's motivation for suggesting in propria persona status was to expedite the proceedings, and avoid the delay inherent in the appointment of entirely new counsel. In Clark, we concluded the Faretta motion was made "in effect [on] the eve of trial" because the case was being continued on a day-to-day basis in the expectation jury selection would begin at any time. ( Clark, at pp. 99-100.) Again, that is not the situation here. Moreover, the precipitating cause of the Faretta motion, the trial court's sua sponte removal of counsel and announced intention to appoint new counsel, had only happened earlier the same morning the Faretta motion was made.

"It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." ( Faretta, supra, 422 U.S. at p. 834; see Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years after Faretta (1996) 6 Seton Hall Const. L.J. 483, 489-490.) Moreover, the evidence [*19] against defendant was overwhelming, and our review of the record indicates defendant was vigorously and adequately represented, and received a fair trial.

Nevertheless, it is apparent the trial court denied the self-representation request because of the court's erroneous understanding of the law, not because the request was equivocal or untimely. n2 Nor, for the reasons above, does our independent review of the record enable us to conclude the request was otherwise properly denied either because it was equivocal or untimely. Under these circumstances, and under compulsion of Faretta, we reverse the judgment. Hence, it is unnecessary to reach defendant's other claims.

SUPREME COURT

No germane proceedings noted.

CAPITAL CASES ( Favorable Disposition)

Whitfield v. Bowersox, 2003 U.S. App. LEXIS 6528 (8th Cir 4/7/2003) (dissent) The state trial court fatally erred when it did not secure an explicit waiver of his right to testify during the penalty phase of the trial.

Sanders v. Arkansas, 2003 Ark. LEXIS 173 (Ark 4/10/2003) Remand ordered to permit post-conviction pro bono counsel to be appointed in accordance with Ark. R. Crim. P. 37.5.

CAPITAL CASES ( Unfavorable Disposition)

Darks v. Mullins, 2003 U.S. App. LEXIS 6977 (10th Cir 4/11/2003) Habeas denied even though the court below "held that the trial court had violated Beck v. Alabama by failing to instruct on first degree manslaughter as a lesser included offense of capital murder and had unconstitutionally coerced the death verdict by giving the jury a supplemental instruction."

Henry v. Cockrell, 2003 U.S. App. LEXIS 6700 (5th Cir 4/7/2003) No error found on claim that "trial counsel rendered ineffective assistance by presenting the expert testimony of Dr. George Kramer without adequately investigating the basis for that testimony" in light of a procedural bar.

South Carolina v. Tench, 2003 S.C. LEXIS 68 (SC 4/7/2003) In light of overwhelming evidence of guilt any trial court error in denying the motion to suppress the evidence seized in the search of Tench's automobile was harmless

Oregon v. Oatney, 2003 Ore. LEXIS 247 (Ore 4/10/2003) (dissent) Relief denied most notably on claims respecting the accomplice-witness instruction that the trial court gave to the jury.

Tennessee v. Berry, 2003 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 4/10/2003) Relied denied on: (1) constitutionality of Tennessee's death penalty procedures; (2) right to a speedy trial claims; (3) whether the trial court erred by denying his request for hybrid representation, and whether the trial court erred in allowing him to represent himself at the suppression hearing; (4) whether the trial court erred in failing to suppress his statement; (5) whether, during the jury selection process, the trial court abused its discretion regarding rehabilitation issues; (6) whether the trial court erred in admitting evidence of gang affiliation; (7). Whether the trial court erred by permitting testimony of a hearsay statement made by the co-defendant which inculpated Berry; (8) whether the prosecutor made an inappropriate religious comment during closing argument; (9) whether the trial court properly instructed the jury as to flight; (10) whether the evidence was sufficient to support his convictions; and (11) whether, during the penalty phase of the trial, the trial court erred by allowing a victim's mother to testify that her son pled for his life prior to being shot.

NOTABLE NONCAPITAL CASES

Mitchell v. Mason, No. 99-1839 (6th Cir 04/07/2003) (dissent) In finding that the pre-trial period during which investigation and consultation with defendant must occur was not a "critical stage" of proceedings, the state court erred. Where petitioner's counsel never consulted with him and he was completely unrepresented during the month prior to trial, petitioner was denied effective assistance.

FOCUS

To return next week.

OTHER RESOURCES

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Texas is the World's Only Jurisdiction to Execute Juveniles Offenders in 2002

According to a recent report issued by Amnesty International, Texas was the only jurisdiction in the world to execute a juvenile offender in 2002. Texas executed three black juvenile offenders last year, Napoleon Beazley, T.J. Jones, and Toronto Patterson. Amnesty International reports that seven countries since 1990 are known to have executed prisoners who were under 18 years old at the time of the crime - Congo (Democratic Republic), Iran, Nigeria, Pakistan, Saudi Arabia, United States, and Yemen. Of these nations, the United States has executed the largest number of juvenile offenders. Read the report. See Juvenile Death Penalty

NEW VOICES: ECPM Interview with Federal Judge Gerald Heaney

Gerald W. Heaney, a U.S. Court of Appeals Judge in the Eighth Circuit, recently voiced his personal concerns about the death penalty. The remarks were part of an interview featured in the End to Capital Punishment Movement (ECPM) USA's March (2003) newsletter. Heaney, in response to a question about whether the death penalty could ever be applied fairly, noted, "I don't think you can work out a fair system. I agree with Justice Harry Blackmun . . . that every effort had [already] been made to make it fair and reasonable and that it really couldn't be done." The ECPM USA plans to co-host a conference on the death penalty in the United States in Mexico City, Mexico, in Spring 2004. To request a copy of the ECPM USA newsletter, contact Laurent David. See New Voices.

Second Texas Crime Lab Is Subject of Criminal Inquiry

Less than three months after Harris County's crime lab was ordered to suspend DNA testing due to questionable analysis and handling of evidence (see below), the Fort Worth Police Department's crime lab is under investigation for similar errors. A review of three years' worth of DNA evidence processed by the lab found that a senior forensic scientist did not follow proper procedures and protocol. As a result of the review, prosecutors are conducting a criminal investigation into the workings of the lab and will revisit almost 100 cases handled by the facility's scientists. Karla Carmichael, the forensic scientist whose proficiency test raised questions, was placed on paid leave last week. (Fort Worth Star-Telegram, April 14, 2003) See Innocence.

China, Iran and U.S. are World's Top Executioners

A recent report issued by Amnesty International states that the United States, China and Iran carried out 80% of all known executions in 2002. According to the report, issued in Geneva as members of the United Nations Commission on Human Rights met for a six week session, China had the most executions with 1,060, Iran had the second highest number with 113, and the United States had the third-highest number with 71 executions. Amnesty noted that the true number of people executed in China was believed to be much higher. To date, 111 countries have abolished the death penalty in law or in practice, but it is still imposed in 83 countries. Read the report. (Reuters, April 11, 2003) See International Death Penalty.

Funding for Death Penalty Representation in Jeopardy

North Carolina House budget writers recently proposed eliminating crucial state funding for the Center for Death Penalty Litigation, an organization that advises defense attorneys in death penalty cases. The Center currently receives $590,000 annually to train defense attorneys and advise them in approximately 350 capital cases a year. The center also directly represents about 30 people a year accused of murder, most of them at the appellate level. North Carolina Representative Martin Nesbitt warned, "It's fools gold to do away with this. It's not whether you are pro- or anti-death penalty. Whether people like it or not, the constitution demands that people receive adequate representation." The Center maintains that elimination of funding could risk innocent lives and ultimately end up costing the state more money because an increased number of death penalty cases will be overturned at the federal level. The proposal must now go before the House's full Appropriations Committee, where funding could be restored. The money could also be restored by North Carolina's Senate during its consideration of the proposal. (Herald Sun, April 10, 2003). See Costs.

NEW RESOURCES: Symposia on the Death Penalty

Proceedings from two ABA conferences and a publication from the American Philosophical Society are now available:

A recent edition of the New York City Law Review features remarks and discussion from the American Bar Association's October 12, 2000, program at the Carter Center regarding the death penalty and the ABA's call for a moratorium on executions. Symposium, "Call to Action: A Moratorium on Executions," 4 New York City Law Review 117 (2002).

The same volume contains remarks from the ABA's Annual Meeting in New York on July 10, 2000. The program addressed the potential for error in capital cases and recommended reforms to prevent wrongful convictions. Symposium, "The Imposition of the Death Penalty Is 'Fraught With Error': Where Do We Go From Here?" 4 New York City Law Review 229 (2002).

The American Philosophical Society has published text drawn from the Society's 2002 annual meeting focusing on the death penalty, with comments by Professor Emeritus James J. Megivern of the University of North Carolina in Wilmington, and attorneys Ronald Tabak, Bryan Stevenson, and Eleanor Jackson Piel. Symposium, "Capital Punishment and the Administration of Justice," 147 Proceedings of the American Philosophical Society 1 (2003).

See Resources.

Great Britain Rules Out Death Penalty Extradition to U.S.

British Home Secretary David Blunkett recently promised that Great Britain will not extradite people to the United States if they might face the death penalty. The announcement came shortly after Blunkett and U.S. Attorney General John Ashcroft signed a new extradition treaty between the two nations. The new agreement was designed to bring the U.K.'s extradition policies with the U.S. more in line with arrangements made with other European countries. During talks regarding the new agreement, Blunkett said that Ashcroft guaranteed that no person extradited from the U.K. would face death penalty charges and that no new capital charges would be filed following the individual's arrival in the U.S. (BBC News, April 5, 2003) See International Death Penalty.

Chicago Tribune Writer Wins Pulitzer Prize for Death Penalty Editorials

Chicago Tribune editorial writer Cornelia Grumman was awarded the Pulitzer Prize for her influential editorials on the death penalty in Illinois. The prize came just days after reforms of the criminal justice system passed both chambers of the Illinois General Assembly. Last April, one of Grumman's editorials urged lawmakers to require the videotaping of interrogations and confessions. Last week, the state Senate unanimously passed a measure mandating such a requirement for investigators when dealing with homicide suspects. Another of her editorials, in November, urged the abolition of the death penalty for mentally retarded suspects. Such a ban was part of a broad package of reforms also passed by the Senate last week. (See below) Read the editorials. (Chicago Tribune, April 7, 2003) See Illinois Commission on Capital Punishment.

Death Penalty Reform Measures Clear Illinois Senate

By a vote of 57-1, the Illinois Senate recently passed legislation to broadly reform the state's death penalty. The measure:

bars the death penalty where the only evidence is from a jailhouse informant or single eyewitness,

gives the Illinois Supreme Court authority to overturn unjust death sentences,

reduces the number of crimes eligible for the death penalty by focusing on "inherently violent" crimes,

expands defendants' access to genetic evidence used against them,

bans police officers if they commit perjury in a murder case,

and requires juries to consider a defendant's history of abuse or mental illness when deciding whether to impose a death sentence.

In a separate reform measure, legislation to require police to videotape or record their interrogations of murder suspects unanimously passed the Senate. The bill is designed to guard against suspects giving false confessions. Both bills are now under consideration in the House. (Associated Press, April 4, 2003) See Illinois Commission on Capital Punishment and Recent Legislative Activity.

Oklahomans Support Ban on Execution of Juvenile Offenders

A recent poll of Oklahoma residents revealed that 62.8% of those surveyed would support a legislative ban on the execution of juvenile offenders if the alternative sentencing option of life without the possibility of parole were offered. The polling results were released shortly before Oklahoma carried out the execution of a juvenile offender, Scott Allen Hain (see below). (The Oklahoman, April 3, 2003)

The University of Oklahoma poll also found that 49.3% of those polled favored a moratorium on executions in the state so that a study of capital punishment can be done, and 83.5% of respondents either somewhat agree or strongly agree that the state has probably executed an innocent person. See Public Opinion and Juvenile Death Penalty.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).