This edition brings tales of good news in the cases covered in depth.. The Florida Supreme Court in Brooks v State has granted relief on the cumulative impact of improperly admitted hearsay evidence. The Louisiana Supreme Court inState v. Kennedy has carefully narrowed that state's capital rape statute holding that holds that prior convictions can not be used to show "lustful disposition" in the current prosecution. The Louisiana Supreme Court, affirming in part and reversing in part holds inState v. Deruise that evidence was insufficient to support the jury's finding during the penalty phase that one of the two victims was killed in an especially heinous and cruel manner. Finally the Eleventh Circuit, en banc, inMcGregor v, Gibson has granted the writ as petition was found competent under an unconstitutional burden of proof.

Three additional cases not covered this week (but to be covered in the next issue) in which stays with serious dates. In Thompkins v. Florida a state trial court has granted relief as to punishment, based on Brady concerns. The Maryland Supreme Court has likewise entered a stay in Oken v. Maryland effectively imposing a de minimis 18 month moratorium that state. Finally in Scott v. State a state was granted on "mental status" of the condemned.

Of the remaining federal cases, both are losses. In United_States_v._Allen the Eighth Circuit denied relief on the voluntarily of a confession and jury instructions about the about the nature of capital bank robbery principle vs. accomplice. InHernandez v. Johnson the Fifth Circuit held the government may call as a sentencing witness the defense expert who performed the psychiatric evaluation, without violation of the Sixth Amendment even though the defendant did not have counsel present at the psychiatric examination.

The Supreme Court in Shaw v. Murphy has held that the first Amendment does not give an absolute right for an inmate's right to the assistance of a fellow inmate in preparing a federal cause of action

This week's Featured article is on the prison-industrial complex. by Sean Gonsalves called "Four Walls v. Three Squares ".

Due to a very heavy litigation docket & some computer upgrades last week's edition did not run & this edition is sent late. For the same reasons the next edition will be delayed and should be sent out the weekend of May 4-6. Briefs in this issue are not available for the Florida decisions. If anyone needs them please email.

Subscription to the weekly is available by sending an email to karl@karlkeys.com with the word "subscribe" in the subject line. This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010416.htm & http://karlkeys.com/010416.htm.

Supreme Court

Shaw v. Murphy The First Amendment does not give an absolute right for an inmate's right to the assistance of a fellow inmate in preparation of a federal cause of action.

While respondent Murphy was incarcerated in state prison, he learned that a fellow inmate had been charged with assaulting a correctional officer. Murphy decided to assist the inmate with his defense and sent him a letter, which was intercepted in accordance with prison policy. Based on the letter’s content, the prison sanctioned Murphy for violating prison rules prohibiting insolence and interfering with due process hearings. Murphy then sought declaratory and injunctive relief under 42 U.S.C. § 1983 alleging that the disciplinary action violated, inter alia, his First Amendment rights, including the right to provide legal assistance to other inmates. In granting petitioners summary judgment, the District Court applied the decision in Turner v. Safley, 482 U.S. 78, 89–that a prison regulation impinging on inmates’ constitutional rights is valid if it is reasonably related to legitimate penological interests–and found a valid, rational connection between the inmate correspondence policy and the objectives of prison order, security, and inmate rehabilitation. The Ninth Circuit reversed, finding that inmates have a First Amendment right to give legal assistance to other inmates and that this right affected the Turner analysis.

Held:

1. Inmates do not possess a special First Amendment right to provide legal assistance to fellow inmates that enhances the protections otherwise available under Turner. Prisoners’ constitutional rights are more limited in scope than the constitutional rights held by individuals in society at large. For instance, some First Amendment rights are simply inconsistent with the corrections system’s “legitimate penological objectives,” Pell v. Procunier, 417 U.S. 817, 822, and thus this Court has sustained restrictions on, e.g., inmate-to-inmate written correspondence, Turner, supra, at 93. Moreover, because courts are ill equipped to deal with the complex and intractable problems of prisons, Procunier v. Martinez, 416 U.S. 396, 404—405, this Court has generally deferred to prison officials’ judgment in upholding such regulations against constitutional challenge. Turner reflects this understanding, setting a unitary, deferential standard for reviewing prisoners’ claims that does not permit an increase in the constitutional protection whenever a prisoner’s communication includes legal advice. To increase the constitutional protection based upon a communication’s content first requires an assessment of that content’s value. But the Turner test simply does not accommodate valuations of content. On the contrary, it concerns only the relationship between the asserted penological interests and the prison regulation. Moreover, prison officials are to remain the primary arbiters of the problems that arise in prison management. 482 U.S., at 89. Seeking to avoid unnecessarily perpetuating federal courts’ involvement in prison administration affairs, the Court rejects an alteration of the Turner analysis that would entail additional federal-court oversight. Even if this Court were to consider giving special protection to particular kinds of speech based on content, it would not do so for speech that includes legal advice. Augmenting First Amendment protection for such advice would undermine prison officials’ ability to address the complex and intractable problems of prison administration. Id., at 84. The legal text could be an excuse for making clearly inappropriate comments, which may circulate among prisoners despite prison measures to screen individual inmates or officers from the remarks. Pp. 4—8.

2. To prevail on remand on the question whether the prison regulations, as applied to Murphy, are reasonably related to legitimate penological interests, he must overcome the presumption that the prison officials acted within their broad discretion. P. 8.

195 F.3d 1121, reversed and remanded.

Thomas, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion

Captial Case Relief Granted

Brooks v State (FL) Relief granted on the cummulative impact of improperly admitted hearsay evidence.

Our faith in the judicial system in this country is deeply rooted in the adversarial nature of its legal proceedings, especially in the criminal system where every defendant has the constitutional right and guarantee to confront the witnesses and evidence presented against him. Here, the erroneous admission of evidence under numerous hearsay exceptions denied Brooks the opportunity to cross-examine and otherwise challenge critical and damaging testimony and evidence. Further, in light of the circumstantial nature of the evidence against Brooks and the State's substantial reliance on the hearsay evidence, we find that the State has failed to demonstrate beyond a reasonable doubt that the admission of this inadmissible hearsay "did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Our review of the record in light of the State's theory at trial as well as the circumstantial nature of the evidence against Brooks establishes that the cumulative effect of the numerous errors discussed above in the admission of improper hearsay unfairly prejudiced Brooks. In the instant case, the State's admitted theory at trial was to show that Davis and Brooks were inseparable in the days leading up to the murders. In fact, in its opening argument, the State referred to them as "siamese twins." Thereafter, through the admission of numerous hearsay statements, the State sought to impute Davis's actions, statements, motive and intent to Brooks. This is particularly troublesome in this case where the trial court itself struggled with the admissibility of this evidence and concluded that this case was being tried on the basis of numerous hearsay exceptions. As such, the admission of this evidence constituted reversible error. See, e.g., Selver v. State, 568 So. 2d 1331 (Fla. 4th DCA 1990); Bailey v. State, 419 So. 2d 721 (Fla. 1st DCA 1982).

In Bailey for example, the court held that hearsay statements admitted under section 90.803(3), which tended to establish a motive for the defendant to have committed the homicide, could not be deemed harmless where the State's evidence was almost wholly circumstantial. See id. at 722. In Brooks' case, most of the evidence against Brooks was circumstantial and there was no physical evidence linking him to the murders or crime scene. Additionally, although Mark Gilliam testified as to Brooks' financial motive, Gilliam was heavily impeached at trial and he testified that he thought it was all a joke. In fact, Gilliam subsequently recanted his trial testimony, although he later reaffirmed it. The other evidence against Brooks came from a jailhouse informant who received a very favorable plea bargain from the State in his own murder case in exchange for his testimony against Brooks. Moreover, the statements by Davis introduced as statements against interest were also highly prejudicial. Further, in referring to these statements, the State specifically told the jury during closing arguments that they did not hear everything Davis said to the police on that night. This was clearly improper and illustrates the State's attempt to inform the jury of the precise nature of the statements that the trial judge tried to conceal from the jury and reflects the dangers which the United States Supreme Court warned about in Lilly. Accordingly, we conclude that the State has not demonstrated beyond a reasonable doubt that the error "did not contribute to the verdict or alternatively stated, that there is no reasonable possibility that the error contributed to the

conviction." DiGuilio, 491 So. 2d at 1195.

State v. Kennedy (La) (capital rape prosecution) In this capital rape prosecution, the Louisana Supreme Court holds that prior convictions can not be used to show "lustful disposition" in the current prosecution.

This difficult case involving the capital crime of the rape of a child tests this court's resolve in upholding the law as written and as consistently followed by this court for nearly thirty years. The law governing the admission of other crimes evidence has not been changed, and however repugnant the alleged criminal conduct may be, we must apply to this case, just as we do any other, well-settled evidentiary rules that promise a process for determining guilt or innocence fairly.

We granted a writ of certiorari in this case to determine whether evidence of the defendant's alleged sexual misconduct involving the rape of a minor child in 1984 is admissible under La. Code Evid. art. 404(B) at his trial for capital aggravated rape of a different minor victim allegedly committed in 1998. The State asserts such other crimes evidence is admissible in this child sexual abuse case under a so-called "lustful disposition exception" to Article 404(B), which prohibits the introduction of evidence of other crimes, wrongs, or acts to prove the criminal character of the accused in order to show that he acted in conformity therewith. We find, however, no such exception applicable to the instant case. Furthermore, we decline to rewrite the evidentiary rules to allow the introduction in child sexual abuse cases of evidence of other crimes, wrongs, or acts tending to show the defendant's "lustful disposition" toward children in the absence of one of the otherwise permissible purposes enumerated in Article 404(B). Because the evidence sought to be introduced here is not independently relevant under any of the permitted purposes recited in Article 404(B), such as proof of motive, intent, or identity, we find that the court of appeal was correct in applying Article 404(B) of the Louisiana Code of Evidence and our decision in State v. Miller, 98-0301 (La. 9/9/98), 718 So. 2d 960. We therefore affirm the court of appeal's decision reversing the ruling of the district court and remand to the district court for further proceedings.

State v. Deruise(La) The Louisiana Supreme Court, affirming in part and reversing in part holds that evidence was insufficient to support the jury's finding during the penalty phase that one of the decedents was killed in an especially heinous and cruel manner.

At the penalty phase in the instant case, the prosecutor argued that the murder of Gary Booker was particularly heinous because the victim suffered approximately 30 seconds after being shot once in the back of his chest before the defendant shot him seven more times. According to the coroner's testimony, the victim could have survived the first bullet wound; however, the other seven bullets went through his heart and lungs causing the victim to go into shock within a few seconds. In the coroner's opinion, the victim probably died within five minutes after the last shot was fired into his body.

Thus, the evidence does not support a finding that the defendant inflicted serious physical abuse or pain on the victim before he died. The defendant's actions in standing over the defendant and continuing to shoot him, while cold-hearted, do not reflect an intent to inflict pain pitilessly or to torture; rather, the gunshot wounds were inflicted to kill. Further, the victim died within a relatively brief span of time, and several of the shots were fired after the victim was unconscious or dead. Therefore, the aggravating factor of heinousness is not supported by the evidence concerning the nature and manner of the murder and is accordingly invalid.

The defendant incorrectly argues that, because the jury only returned the one invalid aggravating factor in its penalty verdict for the Gary Booker murder, it rejected the other possible aggravating factor presented, that the murder occurred during the perpetration, or attempted perpetration, of an armed robbery, and, thus, acquitted him on the death penalty. The defendant contends that double jeopardy principles bar another sentencing hearing on this count. However, this court has held that a jury's finding of a single aggravating factor during the penalty phase of a capital trial does not constitute an acquittal of the other aggravating circumstances presented to the jury. See David, supra.

Specifically, the court in David reasoned that, during a penalty hearing, the jury is not required to adjudge the sufficiency of each aggravating circumstance argued by the prosecution, but is only instructed that it may consider the death penalty upon the finding of at least one aggravating circumstance. David, 468 So.2d at 1137; La. Code Crim. Proc. art. 905.3. The court concluded that the jury in that case most likely responded to the legal charge that they needed only to find one statutory aggravating circumstance, and that, upon finding one, they moved on to consider mitigating circumstances and sentence recommendation. David, 468 So.2d at 1137. Thus, the court instructed that under Louisiana's procedure, a jury's finding of one aggravating factor does not indicate that the jury considered and rejected every other possible aggravating circumstance. Id.

Subsequent to this court's holding in David, the Supreme Court decided the case of Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), in which its decision confirmed this court's reasoning in David. In Poland, the defendant received the death penalty after the trial court found one of two possible aggravating circumstances applicable. On appeal, however, the trial court's interpretation of the law was deemed erroneous, and the case was remanded for a new sentencing hearing. The Supreme Court held that, as the defendant had not been acquitted of the death penalty in the first trial, there was no double jeopardy bar against the state submitting the same aggravating circumstances and seeking the death penalty in a subsequent trial. Id. at 155-57. The Court found that double jeopardy principles, which are in place to protect the finality of acquittals are not implicated when a defendant is sentenced to death in the first instance, but receives a new penalty hearing. Id. (distinguishing its earlier opinion in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1980), where it held that, if a defendant receives a life sentence in the first instance, the defendant is essentially acquitted of whatever was necessary to impose the death sentence).

The defendant in the instant case attempts to distinguish this case from David by pointing to the verdict sheet for the Gary Booker murder as evidence that the jury considered the felony aggravating circumstance and rejected it. According to the defendant, the verdict sheet reveals that after the jury found the heinousness factor, the jury wrote, then erased, the aggravating factor that the offense occurred during the commission of an armed robbery. While the copy of the verdict sheet contained in the record does show some markings which may indicate erasure, the defendant's claim remains speculative at best. As the jury clearly found at the guilt phase of the trial that the defendant committed the murder during the perpetration or attempted perpetration of an armed robbery, we can only guess that perhaps, it did not feel it needed to make that same finding twice.

Regardless, the reasoning of both David and Poland is clearly applicable to the present case. Double jeopardy principles will not preclude the prosecution from resubmitting the aggravating factor that was not initially returned by the jury at a new penalty hearing. Therefore, the case is remanded to the trial court for a new penalty hearing, where the state will be allowed to present and argue all aggravating circumstances supported by the record.

McGregor v, Gibson (11th Cir)(en banc) To prevail on a procedural competency claim after a trial in which a petitioner was found competent under an unconstitutional burden of proof, petitioner must establish that a reasonable judge should have had a bona fide doubt as to his competence at the time of trial.

IV. Remedy

Our conclusion that McGregor's procedural due process rights were violated does not end the analysis. We next consider whether a retrospective competency hearing can be held. Our analysis is guided by Supreme Court precedent, Circuit precedent, and the considered decisions of the other Circuit Courts of Appeal. See, e.g., Drope, 420 U.S. at 183; [*40] Pate, 383 U.S. at 386-87; Dusky, 362 U.S. at 403; Clayton, 199 F.3d at 1168-70; Reynolds v. Norris, 86 F.3d 796, 802-03 (8th Cir. 1996).

Retrospective competency hearings are generally "disfavored" but are "permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant." Clayton, 199 F.3d at 1169 (internal quotation omitted); see also Pate, 383 U.S. at 387 (emphasizing "the difficulty of retrospectively determining an accused's competence to stand trial"). In the context of deciding whether a state court's retrospective determination of a petitioner's competency violated that petitioner's due process rights, we announced factors to be considered in assessing whether a meaningful retrospective determination can be made:

(1) The passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were [*41] in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials.

Clayton, 199 F.3d at 1169.

The facts pertinent to our assessment of whether a meaningful retrospective competency determination can be made in McGregor's case are discussed throughout this opinion; thus, we revisit them only briefly now. We are influenced greatly by the lack of contemporaneous medical evidence in the record regarding McGregor's competency at the time of trial. See, e.g., Dusky, 362 U.S. at 403 (concluding no retrospective competency determination could be held "in view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony"); cf. Reynolds v. Norris, 86 F.3d at 803 (holding petitioner's procedural due process rights were violated by the trial court's failure to conduct an additional competency hearing but concluding a sufficient basis existed for the retrospective determination of petitioner's competency because of the "unusual amount of contemporaneous evidence specifically relating to [petitioner's] competency [*42] at the time of trial"). As discussed above, only one psychiatrist testified for the state at McGregor's competency hearing. That doctor's testimony was not based on his own experiences with McGregor; rather, it was based solely on then five-year-old notes--now seventeen-year-old notes--of another doctor taken before McGregor's first trial. The psychologist who appeared at McGregor's competency proceeding also presented severely limited testimony. He refused to opine as to McGregor's competency on the day of the proceeding and limited his assessment to McGregor's competency during a forty-five minute interview that occurred three months prior to the competency proceeding, which itself occurred about seven months before McGregor's second trial. This disturbing lack of contemporaneous medical evidence regarding McGregor's competency at the competency proceeding must be viewed in light of the serious questions raised at trial regarding McGregor's proper medication and the corresponding lack of record evidence available to help answer those questions. Finally, although we emphasize that time is not an insurmountable barrier to a retrospective competency determination, the difficulties arising [*43] from the lack of contemporaneous medical evidence are amplified by the further difficulties that necessarily arise from the significant passage of time. A retrospective competency determination would have to place great reliance on the testimony of currently available lay witnesses concerning their recollections of any observations of McGregor more than eleven years ago.

Based on our assessment of the factors set forth in Clayton and the totality of the record before us, we conclude that a meaningful retrospective competency determination can not be made in this case. As such, McGregor's due process rights can not adequately be protected by remanding to the state court for such a determination. We make this determination in the first instance, as did the Supreme Court in Drope, 420 U.S. at 183, Pate, 383 U.S. at 387, and Dusky, 362 U.S. at 403. Although we considered remanding to the federal district court to hold a hearing on the issue of whether a meaningful retrospective competency determination can be made, we reject that approach because of the particular balance of circumstances in this case.

V. Conclusion

Accordingly, [*44] we GRANT McGregor's request for habeas corpus relief, we REVERSE the judgment of the district court, and we REMAND with directions to vacate McGregor's sentence and judgment of conviction. The State of Oklahoma is free to try McGregor again, but only if he is determined competent under a constitutional burden of proof.

Captial Cases Remanded for Further Adjudication

xpparte Smith (Ala) "The Court of Criminal Appeals has no jurisdiction to hear mandamus petitions related to matters not appealable to that court. Thus, the State's petition to the Court of Criminal Appeals was defective because of the absence of a prerequisite for a writ of mandamus: 'properly invoked jurisdiction'."

Federal Captial Cases Relief Denied

United_States_v._Allen, (8th Cir.) Federal prosecution in which the appeal focused chiefly on denial of counsel prior to a custodial interrogation and jury instructions about the nature of capital bank robbery principle vs. accomplice.

First and foremost, the requirement of "malice aforethought" has been satisfied. We agree with the Tenth Circuit's interpretation of § 1111(a) in a case such as this one that "first degree murder is defined as including any murder which is either premeditated or committed in the perpetration of any of the listed felonies, which include robbery." See United States v. Sides, 944 F.2d 1554, 1557 (10th Cir.), cert. denied, 502 U.S. 989, 116 L. Ed. 2d 627, 112 S. Ct. 604 (1991). Thus, a conviction under § 924(j), pursuant to § 1111(a), is valid under well-established felony murder principles by a finding that the defendant intended to commit the robbery and that a killing occurred in the course of that robbery. See, e.g., United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998) ("Malice aforethought is a term of art which has several definitions, including, in the felony murder context, proof of commission of the specified felony. ... In the typical case of felony murder, there is no malice in fact with respect to the homicide; the malice is supplied by the law.") (internal quotations and citations omitted); United States v. Nguyen, 155 F.3d 1219, 1229 (10th Cir. 1998) [*91] ("The statute [ § 1111(a)] does not require any proof of intent other than that defendant intended to commit the underlying felony and that the killing was committed in the course of that felony."), cert. denied, 525 U.S. 1167, 143 L. Ed. 2d 87, 119 S. Ct. 1086 (1999); United States v. Chischilly, 30 F.3d 1144, 1159-60 (9th Cir. 1994) (noting that a "conviction for felony murder under 18 U.S.C. § 1111 requires the commission of an enumerated felony with the requisite mens rea for the underlying offense ... under a felony murder charge the commission of the underlying offense substitutes for malice aforethought"), cert. denied, 513 U.S. 1132, 130 L. Ed. 2d 890, 115 S. Ct. 946 (1995).

Even assuming the felony murder rationale is inadequate by itself to support a conviction under § 924(j), we think the requirement in the instructions that the jury find beyond a reasonable doubt that Holder was aware of a serious risk of death attending the armed robbery is sufficient to uphold the conviction.

We have addressed the issue as follows:

Malice does not require proof of a subjective intent to kill. [*92] Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.

United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (internal quotations and citations omitted) (emphasis added).

Finally, assuming specific intent is required for a conviction under either § 2113(e) or § 924(j) or both, we find that any error in the district court's instructions was harmless. See Neder v. United States, 527 U.S. 1, 8-15, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999) (holding that failure to submit an element of the offense to the jury is subject to harmless error analysis); id. at 35 ("The failure of the court to instruct the jury properly--whether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jury's consideration--can be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed.") (Scalia, J., concurring in part [*93] and dissenting in part). We find any error to be harmless because the court's aiding and abetting instructions on each count of conviction supply the necessary specific intent as a matter of law, and in any case the instructions require an explicit finding of specific intent. n19

Under the aiding and abetting rationale, in other words, Allen's actions "necessarily embraced" the specific intent element. See Nguyen, 155 F.3d at 1226 (finding sufficient evidence to convict defendant of aiding and abetting murder under § 924(j) based solely on the fact that the defendant intended to commit the underlying felony, the victim was killed during the commission of that felony, and the defendant aided and abetted that killing). In the alternative, specific intent can be supplied by a finding that Holder was "aware of a serious risk of death attending his conduct." (Instruction Nos. 16 and 20, supra, n.19.)

Thus, even if, as Holder argues, the aiding and abetting instructions improperly failed to require a finding that Holder intended to aid and abet each element of the offense, including the fact that a killing took place, we find that the aiding and abetting instructions were adequate. See Nguyen, 155 F.3d at 1226 ("The government did not need to show that defendant had any specific intent to kill ... the government also presented sufficient evidence that defendant aided and abetted the killing...."). We acknowledge the fact [*95] that some courts require a showing that a defendant knowingly and intentionally aided and abetted the commission of the aggravating element of the offense. For example, the Ninth Circuit has held the following:

To be convicted as an aider and abettor, the defendant must have knowingly and intentionally aided and abetted the principals in each essential element of the crime....To sustain a § 2113(d) conviction for an aider and abettor in this circuit, the government must show that the defendant aided and abetted the principal both in the act of bank robbery and in the principal's use of a dangerous weapon or device during the act.

United States v. Dinkane, 17 F.3d 1192, 1196, 1197 (9th Cir. 1994) (internal quotations omitted). This test would require proof of an intention to kill on the part of an aider and abettor accused of a § 2113(e) violation. Even under the more stringent test adopted by the Ninth Circuit, however, we think the instructions here were adequate because they required a finding that Holder was "aware of a serious risk of death attending his conduct," and as explained below, there is more than sufficient evidence to support this [*96] finding.

Hernandez v. Johnson (5th Cir) Where defendant initiated the examination for competency, the government may call as a sentencing witness the doctor who performed the psychiatric evaluation, without violation of the Sixth Amendment even though the defendant did not have counsel present at the psychiatric examination.

Before trial Hernandez's counsel filed a motion requesting Judge R.T. Pfeuffer, the state trial judge, to appoint a "qualified disinterested expert at County expense to conduct a mental examination of the Defendant with regard to the Defendant's competency to stand trial, to file a written report in this Court within 30 days of the Order of Examination, and to testify regarding same at any trial or hearing upon such issue . . . [and] that this Court furnish defense counsel with copies of said report as soon as it becomes available." The motion also requested money to "enable the Defendant to select an expert of his own choice to examine the Defendant relative to his competency to stand trial" and "that Hernandez's counsel be notified of the time and place of the examination and he be allowed to attend, alternatively, that the examination be video taped and he be furnished a copy of the tape." Significantly, the motion also requested that the examiner file separate reports regarding the examiner's opinion of whether Hernandez was mentally ill or retarded and whether he required treatment. The latter request plainly looks beyond questions of competency to stand trial to the sentencing phase of the trial. The motion also requested that the examiner testify at trial or at a hearing on the issues.

Judge Pfeuffer granted the motion in part, appointing Dr. John Sparks with instruction to examine for competency to stand trial and for sanity at the time of the offense. He denied the request for appointment of an "independent" doctor, the request that counsel be notified and be allowed to be present, as well as the alternative request for videotaping.

Dr. Sparks conducted the examination. He gave Hernandez the required warnings that his statements could be used against him at trial, except, apparently, a specific caution that any statements could be used in the sentencing phase of a trial. Dr. Sparks gave no notice to defense counsel, and counsel was not present during the examination. The following month, in September, the trial judge convened a competency hearing before a jury at which both sides offered evidence and Dr. Sparks testified regarding competency. The jury found that Hernandez was competent to stand trial. Defense counsel made no further requests for psychiatric assistance and did not attempt an insanity defense at trial.

Dr. Sparks made no appearance until the punishment phase of the trial, when the State called him as a witness. The State's direct examination made no mention of any examination by Dr. Sparks. Rather, the State proceeded by asking a narrative hypothetical question as a basis for Dr. Sparks' opinion as to whether a person with a similar history would be a danger to society. Dr. Sparks expressed the opinion that such conduct reflected an anti-social personality and that a person with this history would likely continue to be a danger to society. The difficulties began when defense counsel seized the opportunity to develop on cross-examination a mitigation theory that rested on an old diagnosis of chronic schizophrenia made of Hernandez during an earlier prison stay for robbery. He presented prison records to Dr. Sparks reflecting the diagnosis, eliciting testimony about periods of remission and its responsiveness to drugs and therapy. Dr. Sparks acknowledged the differences in the illnesses but maintained that nonetheless his earlier answers in response to the hypothetical "appear[ ] to be closest to a description that is labeled the anti-social personalty." He argued that such an afflicted person can experience periods of remission and with proper treatment live a productive life.

On redirect the State demonstrated that Dr. Sparks also had the benefit of the examination of Hernandez ordered by the court at Hernandez's request; and that in concluding that Hernandez was competent to stand trial, Dr. Sparks had decided that Hernandez had an anti-social personality. The Texas Court of Criminal Appeals described this exchange at trial as follows:

[T]he State elicited redirect testimony from Dr. Sparks concerning appellant's competency evaluation in response to appellant's introduction of psychiatric evidence on cross-examination. By introducing appellant's TDC psychiatric records and soliciting Dr. Sparks' opinion concerning those records, appellant "opened the door" to the State's use of the results of his competency exam for rebuttal purposes. . . .

By creating the impression that appellant may have been suffering from paranoid schizophrenia, appellant paved the way for the State to rebut that impression with psychiatric testimony tending to show that appellant was instead suffering from an anti-social personality disorder.(6)

The Texas court also concluded that Dr. Sparks did not express an opinion regarding future dangerousness, and that the trial court had specifically instructed the prosecutor that he could not do so. The Texas court explained:

When the State began to elicit testimony concerning Dr. Sparks' competency examination, appellant immediately objected. At the subsequent hearing outside the jury's presence, the trial court ruled that the witness could testify as to his medical findings, but not as to whether appellant would likely commit future acts of violence that would constitute a danger to society. The essence of Dr. Sparks'[ ] testimony before the jury was his diagnosis of anti-social personality disorder, along with a comment that had he been informed of appellant's prison psychiatric records, his diagnosis would have been a primary finding of paranoid schizophrenia in remission along with a secondary finding of an anti-social personality disorder. This testimony, while relevant to the issue of future dangerousness, was not a direct assertion of an expert opinion concerning future dangerousness.(7)

We agree with this reading of the record by the Texas court. At the least, it is both an objectively reasonable interpretation of the relevant events at trial and reasonable application of the decision of the Supreme Court in Buchanan v. Kentucky.(8)

The primary contention here is that the introduction of Dr. Sparks' testimony that he had examined Hernandez before the competency hearing denied Hernandez's right to counsel secured by the Sixth Amendment.(9)

Hernandez initiated the examination for competency and other evidence of mental illness through his counsel and had a full opportunity to cross-examine Dr. Sparks at the competency hearing before trial. There is no suggestion that Hernandez did not have a full opportunity to consult with counsel about the scope of the examination, both with regard to its use to demonstrate competency and to develop possible mitigating evidence. As Buchanan teaches, defense counsel was on notice that if he attempted to put mental status in play, the State might draw upon the examination in rebuttal.

At the sentencing phase of trial on direct examination by the State's attorney, Dr. Sparks expressed an opinion based upon a hypothetical question and not upon his prior examination. The defense lodged no objection to the use of the hypothetical, apart from an error in the recitation, which was promptly corrected. The only deviation from that presentation came on redirect examination where Dr. Sparks' prior examination was disclosed in a shoring of Dr. Sparks' opinions regarding the relative play of schizophrenia, in remission and when treated by drugs, as compared to the diagnosis of anti-social disorder. We find no violation of the Fifth or Sixth Amendment in this circumstance.

These events differ from those of White v. Estelle,(10) and Hernandez's reliance upon it is misplaced. It is true that, as here, the examiner of White testified in the sentencing phase in response to hypothetical questions, but little else of importance is similar. Defense counsel in White objected to the testimony, urging the trial court that the tailoring of the hypothetical was calculated to inform the jury of the earlier examination ordered on a motion by the State, not the defendant.(11) The federal habeas trial court later found that the examination "reasonably indicated that the psychiatric prognosis of White's future dangerousness was influenced by and derived from the court-ordered pretrial psychiatric examinations."(12) This was not the case with the hypothetical put to Dr. Sparks. Indeed, sensitive to Estelle, Judge Pfeuffer here instructed the prosecutor that he was to not ask Dr. Sparks "whether [Hernandez] would likely commit future acts of violence that would constitute a danger to society,"(13) for the reason that Judge Pfeuffer had not allowed defense counsel to be present when Dr. Sparks conducted the ordered examination of Hernandez. Disclosure of the court-ordered examination came here only in response to defense counsel's cross-examination which opened the door for its receipt. As applied here, this trial court ruling was no mechanical application of the familiar "you opened the door." Rather, it was a practical necessity to avoid the unfairness of tying the prosecutor's hands while leaving defense counsel free to attack Dr. Sparks' opinions as lacking an informed basis.

Hernandez contends that the jury could not give effect to evidence that he was subjected to sustained child abuse and chronic mental disease. The argument is that the jury could not give effect to these mitigating circumstances under the questions asked them as explained in Penry v. Lynaugh.(14) As demonstrated by defense counsel in closing argument, the evidence of chronic schizophrenia could be considered by the jury in answering the question of future dangerousness, an argument counsel had carefully laid the support for in his cross-examination of Dr. Sparks. With medication and treatment, remission can be sustained.

We have repeatedly held that evidence of child abuse alone, unlinked to the offense, is not mitigating.(15)

State Captial Cases Relief Denied

Williams_v._State , (Okla.Crim.App.) Death sentence affirmed as even without the "avoid lawful arrest or prosecution" aggravator there were other valid aggravators & a dissent on failure to give requested jury instructions.

Bryant v. State (Fl) Appeal denied on claims the trail court erred by: (1) determining that Bryant was competent to stand trial; (2) requiring Bryant to be held in visible restraints before the jury; (3) failing to properly evaluate the non-statutory mitigating circumstance of Bryant's lack of education; (4) failing to evaluate the non-statutory mitigator that Bryant lacked a positive role model; (5) failing to exercise its discretion in evaluating the non-statutory mitigating factor of Bryant's neurological impairment; (6) finding the death sentence proportionate in this case; and (7) ruling that electrocution is not cruel and unusual punishment.

Rose v. State(Fl) Relief denied on the following issues: (1) the trial court erred in allowing the State to present gruesome photographic evidence; (2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), in its late release of autopsy photographs; (3) the trial court erred in failing to rule following a hearing held pursuant to Richardson v. State, 246 So. 2d 771 (Fla. 1971), concerning the late discovery of the Brady material; (4) prosecutorial comments made during closing arguments were harmful to Rose; (5) the State engaged in misconduct in its cross-examination of the defense's expert; (6) the trial court erred in allowing the State to elicit testimony designed to imply that a sexual assault had been committed; (7) the trial court erred in allowing the State to present evidence of the impermissible age aggravator; (8) the trial court erred in (a) its consideration and finding of the "prior violent felony" aggravator and (b) impermissibly doubling this aggravator with the "parole" aggravator; (9) the trial court erred in finding the kidnapping aggravator; (10) the trial court erred in finding HAC; (11) the trial court erred in its consideration of mental mitigation; (12) victim impact testimony was improperly allowed; (13) the trial court erred by refusing to read non-statutory mitigators; (14) the sentence is not proportional; (15) the time spent on death row violates Rose's constitutional rights; (16) death by electrocution violates state and federal constitutions; and (17) Rose deserves a life sentence on the ground of the penalty phase "Allen charge" issue from his original trial.

Ohio v. Jalowiec (Oh) Relief denied on issues relating to the how far the door was opened via the condemned's in court statements, defendant in shackles, improper exclusion of jurors, coconspirators' extrajudicial statements, sufficiency of evidence, inflamatory evidence, guilt & penalty phae instructions, & effective assistance of counsel. Dissent on whether the defendant's unsworn statement opened the door to all of the prejudicial information presented by the prosecution in rebuttal.

Other Notable Cases (As reported by Findlaw, and other sources)

Delancy_v._Florida_Department_of_Corrections, (11th Cir.) "Delancy's motion was clearly filed more than two years after his judgment and sentence became final. However, the rule provides that a motion is filed timely, even if filed more than two years after the judgment and sentence became final, if it alleges that "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence."

Mann_v._Thalacker, (8th_Cir) Trial judges failure to recuse himself was not reversible error eventhough the trial judge had been a victim of child sexual assualt much like the petitioner was on trial for.

United_States_v._Zuno-Arce, (9th Cir) "Cervantes-Santos' repudiated recantation and the dismissal of the GodinezCervantes prosecution -- were insufficient to warrant an evidentiary hearing. See Zuno-Arce, 25 F. Supp. 2d at 1118. Nor does the material that the district court refused to consider necessitate a hearing. That material is offered either to impeach Godoy-Lopez and Lopez-Romero or to challenge specific statements that they made at trial. Taken together, that material is insufficient to establish that a hearing is required, because nothing to which Defendant points specifically suggests that "newly discovered evidence " of the sort that would be admissible on the merits of Defendant's S 2255 motion might be unearthed at a hearing. Defendant has alleged that the government violated Mooney and Napue in 1992 and has presented material in support of that allegation, most of which cannot be considered under AEDPA's statute of limitations. What he has not done is present anything to demonstrate the possible existence of timely evidence to support his allegations. In the absence of anything more concrete than the speculation -- present in every case -- that new evidence might exist, we decline to order an evidentiary hearing on Defendant's Mooney/Napue claim."

US v. Cox (2nd Cir) Defendant who received an enhanced sentence based on prior state criminal conviction that was later dismissed, may bring a direct appeal of federal sentence and need not challenge the sentence through a habeas petition.

Boyetter v. LeFevre (2nd Cir) Under the Anti-Terrorism and Effective Death Penalty Act, full deference is due only to factual findings and mixed findings of fact andconclusions of law that a federal court can fairly infer from the state court opinion.

US v. Beaty (6th Cir) Where defendant's sole objection to the district court's grant of summary judgment depends upon the availability of a defense that he was collaterally estopped from asserting, summary judgment will be affirmed in favor of the government.

Bracken v. Dormire (8th Cir) Petitioner procedurally defaulted on his claim that the state trial court erred when it failed to make a specific finding regarding the voluntariness of his confession, because he failed to raise the issue before the district court.

Grove v Fed Bureau of Prisons(8th Cir) Under 18 USC 3621(e)(2)(B), the Bureau of Prisons may apply new regulations concerning eligibility for drug rehabilitation and early release to prisoner who successfully challenged old regulations but had not yet entered the rehabilitation program.

In re Resendez(9th Cir) Affirmatively providing bad advice regarding immigration consequences of guilty plea to immigrant defendant may support an ineffective assistance of counsel claim and is not barred by the collateral consequences doctrine

Searcy v. Carter6th Cir ) A petitioner cannot indefinitely delay the running of the one-year statute of limitations in a federal habeas action under 28 USC 2244(d)(1) and (2) by filing a delayed appeal in state court.

Jiminian v. Nash(2nd Cir) A habeas petition under 28 USC 2255 cannot be deemed inadequate or ineffective where a prisoner, who had a prior s 2255 motion dismissed on the merits and cannot meet the AEDPA's gate-keeping requirements, seeks to raise a claim that was available in a prior motion.

Featured

This week's edition visits the controversy surrounding private prisons.

Published on Tuesday, April 17, 2001 in the Cape Cod Times

Four Walls vs. Three Squares

by Sean Gonsalves

President Bush, in one of his defining campaign speeches, titled "The Duty of Hope: Armies of Compassion":

"At Inner-Change - a faith-based program run by Prison Fellowship inside a Texas prison - inmates are up at 5 a.m. and fill their days with work and study rather than soap operas.

"At Teen Challenge - a national drug treatment program - one official says, 'We have a rule: If you don't work, you don't eat.' This is demanding love - at times, a severe mercy," he said, which sort of contradicts something he told a different crowd less than two months later at the Dallas Center in Iowa.

""We are too good a people to use food as a weapon," Bush said.

Doublespeak notwithstanding, the former governor of a state with one of the highest incarceration rates in the developed world, said America's prisons are "institutions, at their best, (that) treat people as moral individuals, with responsibilities and duties, not as wards or clients or dependents or numbers."

A growing number of college students are learning to see through this deception after the French multinational corporation Sodexho Alliance took over the US operations of Marriott Management Services from the Marriot Group in March 1998. This move made SA the largest institutional food server in America, with $4.5 billion in annual revenues (including the Barnstable High/Middle School cafeteria).

The merger linked student meal plans to the prison-for-profit industry, since Sodexho Alliance owns the biggest block of stock in the Correctional Corporation of America.

For the past two years, college students across the nation have organized a national campaign to boot the Sodexho Marriott food service off their campuses. The Not-With-Our-Money campaign is calling on students to reject Marriott meal plans, and to organize sit-ins and protests. The goal is to compel college administrators and universities to cancel their contracts because of the prison link.

At American University, a successful student campaign has been mounted and last week the university announced it will not renew its contract with Sodexho Marriot.

The student campaign was "a factor in the decision but not the driving factor," said American University assistant treasurer Scott Byers. Byers, who met with student activists to discuss their concerns, said general student dissatisfaction with Marriott was the main reason the school will find another food service provider.

But with student activists on campus handing out flyers, collecting 800 signatures for a petition in less than two weeks and setting up information tables on the private-prison connection, the general student dissatisfaction that Byers describes can be at least partially attributed to student activism.

"We've shown that student activists can hold prison profiteers accountable," says American University junior Adam Choka. "People who profit off of people's misery will pay a price in lost student meal plan contracts."

According to one of the campaign's leading organizer's, Kevin Pranis of the Prison Moratorium Project, student activists have organized campaigns at more than 50 colleges across the country. As a result, five colleges have ended their relationship with the Sodexho Marriott conglomerate, including the State University of New York at Albany.

"People have always made money building prisons, but since the private companies have come into the picture, prison building is being used as economic development," says Judy Green, an independent researcher and a leading expert on the private-prison industry.

Private-prison companies are all about the bottom line, she says. "Their first obligation is to their stockholders." From 1995 to 1998, the Correctional Corporation of America was among the top five growth companies being traded on Wall Street.

Over the past two years, however, private-prison stock has plummeted. Yet, the federal government is offering more than $2 billion worth of new contracts for new private prisons, Greene says.

The utopian notion that the free market is the answer to all our social problems blinds many to the drastic harm it causes. Even John Gray, one of Britain's leading conservative intellectuals, warns: "In the United States free markets have contributed to social breakdown on a scale unknown in any other developed country....Social order has been propped up by a policy of mass incarceration. No other advanced industrial country, aside from post-communist Russia, uses imprisonment as a means of social control on the scale of the United States."

Meanwhile, our president says: "America has tripled its prison population in the last 15 years. That is a necessary and effective role of government." I suppose this is "compassion" in action.

Sean Gonsalves is a Cape Cod Times staff writer and syndicated columinist.

Errata

From the Death Penalty Information Center reports:

Maryland High Court Halts Executions

The Maryland Court of Appeals, in denying a request to expedite death row inmate Steven Oken's appeals, has effectively placed at least a temporary moratorium on executions. The court ruled that it would not schedule a hearing on Oken's appeal until its 2001 term, which begins in September. Oken's appeal raises the question of the constitutionality of the state's murder statue in light of the U.S. Supreme Court's decision last year in Apprendi v. New Jersey. Of the three men who were expected to receive death warrants this summer, two have raised similar arguments, and the third is expected to.

The court's ruling came three days after a filibuster in the Senate kept a moratorium bill from being voted on. The bill, which passed the House in March, would have suspended executions pending the results of a University of Maryland study on racial disparities in the death penalty. Currently, Maryland has the highest percentage of blacks on death row of any state. (Washington Post, 4/13/01) See also, Proposed Legislative Changes and www.quixote.org/ej

Nevada Senate Passes Moratorium LegislationBy a 13-8 vote, the Nevada Senate passed a bill to place a two-year moratorium on executions while the state's use of capital punishment is studied. The bill will, however, allow executions to go forward if an inmates chooses to waive his appeals. The bill will now go to the State Assembly and, if successful, to Governor Kenny Guinn. The Governor has said he would sign a bill calling for a moratorium and study of the death penalty. (Las Vegas Review-Journal, 4/19/01) See also, Proposed Legislative Changes

International Views: Use of the Death Penalty Could Result in Withdrawal of U.S.'s Observer Status with the Council of Europe

Renate Wohlwend, the Council of Europe's special rapporteur on the abolition of the death penalty, recently visited the United States in an effort to gather information for a report she will give to the Council's legal affairs committee in May. Due to the United States' continued use of capital punishment, Wohlwend could recommend that the U.S. be expelled from its observer status with the Council of Europe, a status it has enjoyed since 1996. The Committee will make a final decision on Wohlwend's recommendation this summer.

Wohlwend also visited Japan, the only other nation with observer status that applies the death penalty, a practice that is effectively outlawed by all 43 member states of the Council of Europe. ((London) Daily Telegraph, 4/10/01) See also, International Death Penalty

NEW RESOURCES:

"The Wrong Man: A True Story of Innocence on Death Row" by Michael Mello (University of Minnesota Press, 2001). This new book, with a foreword by Mike Farrell, is the story of Michael Mello's twenty-year fight to save "Crazy Joe" Spaziano from execution for a murder he didn't commit. In a gripping personal account, Mello, a well-known author, activist, and legal commentator, describes the details of the case and the controversial extremes to which he was driven by it. For more information about "The Wrong Man," including a timeline of the Spaziano case, visit www.upress.umn.edu/Books/M/mello_wrong.html. See also, Books on the death penalty

"Tessie Hutchinson and the American System of Capital Punishment" by Earl F. Martin, 59 Maryland Law Review 553 (2000). This law review article examines the parallels between the modern death penalty and the communal stoning portrayed in Shirley Jackson's 1948 short story, The Lottery. The article compares aspects of today's capital punishment system such as "the masking of evil, the execution of the innocent, the arbitrariness of selecting those who will die, [and] the search for justification" with the process that sent The Lottery's Tessie Hutchinson to her death. See also, Law review & journal articles on the death penalty

"A Dream of the Tattered Man: Stories From Georgia's Death Row" by Randolph Loney (William B. Eerdmans Publishing, 2001). In this book, Loney writes about the impact that his 15 years as pastor, family liaison and witness to the executions of the condemned men on Georgia's death row has had on him. In each of the chapters, Loney reveals the lessons he has learned from these men and expresses his refusal to dismiss them as people beyond redemption. To read a chapter of "A Dream of the Tattered Man" visit www.ajc.com/@issue/books. See also, Books on the death penalty

Study Finds Evidence of Racial Bias in North Carolina Death Penalty

The most comprehensive study ever conducted on the death penalty in North Carolina was released on April 16 by researchers from the University of North Carolina. The study, based on data collected from court records of 502 murder cases from 1993 to 1997, found that race plays a significant role in who gets the death penalty. Prof. Jack Boger and Dr. Isaac Unah of the University of North Carolina found that defendants whose victims are white are 3.5 times more likely to be sentenced to death than those with non-white victims. "The odds are supposed to be zero that race plays a role," said Dr. Unah. "No matter how the data was analyzed, the race of the victim always emerged as an important factor in who received the death penalty." The study's findings will be presented to the North Carolina General Assembly which is currently considering moratorium bills in both the House and Senate. (Associated Press, 4/16/01 and Common Sense Foundation Press Release, 4/16/01) Read DPIC's Press Advisory. See also, Race and the Death Penalty.

U.S. Supreme Court Will Hear Virginia Death Penalty Case

Walter Mickens, who was scheduled to be executed on April 17, received a stay from the U.S. Supreme Court. The Court granted the reprieve to consider whether Mickens received a fair trial in light of the fact that his court appointed trial lawyer had recently represented the victim in the underlying murder, Timothy Hall. Mickens' new attorney, Robert J. Wagner, argued in his petition to the Court that Mickens was represented by a lawyer with a conflict of interest and therefore deserves a new trial. The trial lawyer was assigned Mickens' case by the same judge who heard the lawyer defend Hall only days before. Wagner is also seeking clemency from Virginia Gov. Jim Gilmore, stating that Mickens' trial was "awash in ethical and legal dereliction." (Mickens v. Taylor, 00-9285) (Associated Press, 4/16/01) See also, Supreme Court

Former Idaho Death Row Inmate Released

After spending 14 years on death row, Donald Paradis was released from prison when his 1981 murder conviction was overturned. Judge Gary Haman, who originally sentenced Paradis to death, came out of retirement to accept Paradis' plea to moving the body after the murder. Paradis, who always maintained that he was not involved in the slaying of Kimberly Anne Palmer, was sentenced to 5 years and released for time already served.

The deal came after a federal court of appeals ruled that Paradis was denied a fair trial because prosecutors withheld potentially exculpatory evidence. Paradis was scheduled for execution three times before his sentence was commuted to life imprisonment in 1996 by then-Governor Phil Blatt who had doubts about Paradis' guilt.

Paradis' trial lawyer, William Brown, never studied criminal law, never tried a felony case, and never tried a case before a jury. While representing Paradis, Brown also worked as a police officer. His defense lasted only three hours. In addition, Dr. Brady, the pathologist who performed the autopsy of Ms. Palmer, testified that Palmer had been killed in Idaho, not in Washington where Paradis had already been acquitted of the murder. Dr. Brady was fired as a medical examiner soon after the Paradis trial when it was discovered that he had sold human tissue for profit and saved human blood, collected during autopsies, for use in his garden. (Associated Press, 4/11/01 and New York Times, 4/12/01) See also, Innocence and Clemency

Texas Legislative Committee Endorses Moratorium Resolution; Governor Signs DNA Legislation

The Texas Senate Criminal Justice Committee endorsed a resolution that would allow voters to decide whether to impose a two-year moratorium on executions while the state's death penalty is studied. Recent polls have shown support for a moratorium and that a majority of Texans believe an innocent person has been executed. "No Texan wants to be a party to the execution of an innocent man or woman," said the bill's sponsor Eliot Shapleigh (D-El Paso). The resolution must now pass the full Senate and House before being considered by Governor Perry. (New York Times 4/12/01)

Perry recently signed a bill that will give inmates access to DNA testing. The bill will require the state to preserve DNA evidence and allow prisoners access to DNA testing if it was not available at trial. It would also require courts to provide attorneys for indigent inmates making such claims. "I hope it provides the greatest opportunity for people who have been convicted erroneously the chance to prove themselves innocent," said Rep. Harold Dutton (D-Houston). (NY Daily News, 4/6/01 and Associated Press, 4/4/01) See also proposed legislative changes and recent polls

Justice Ginsburg Supports Moratorium

U.S. Supreme Court Justice Ruth Bader Ginsburg recently voiced her support for a moratorium on the death penalty in Maryland and criticized the inadequate funding available for those who represent poor people. "People who are well represented at trial do not get the death penalty," said Ginsburg. "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial." (Associated Press, 4/10/01) See also, New Voices

Oklahoma Governor Grants Clemency for Death Row Inmate

Phillip Dewitt Smith's death sentence was commuted to life in prison without parole on April 9 by Gov. Frank Keating of Oklahoma. Last month, the Pardon and Parole Board recommended clemency for Smith a week before his scheduled execution based on the fact that the main witness against him later recanted. Keating, who called the post-conviction testimony of certain witnesses "disturbing," stayed Smith's execution. In his decision to grant clemency, Keating stated, "While these inconsistencies were dealt with appropriately by the legal system, they nonetheless raise questions in a case without eyewitnesses to the crime or forensics evidence tying the accused to the crime. Therefore, I cannot in good conscience allow the execution of this inmate." (Daily Oklahoman, 4/9/01) This is the second death sentence commuted in the country this year. See also, Clemency

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CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement.

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RELATED RESOURCESYou might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

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