Eight (yes eight) wins are counted in the period between April 2nd and April 16th with four deserving special attention.

The California Supreme Court's holding in People v. Super. Ct. (Vidal) is perhaps the most significant. " The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes find whether the individual’s “general intellectual functioning” is significantly impaired , but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. " "In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology." “The superior court here [ ] found on the basis of [expert] testimony that in Vidal’s case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation.” Therefore, under California's broad post-Atkins mental retardation law and the expert testimony given below, and despite the testing placing the IQ scores above 70, a rationale trier of fact could have concluded that Vidal was indeed mentally retarded. Other Atkins wins include the Fifth Circuit's In re Milton Mathis and the Tenth Circuit's George Ochoa v. Sirmons, both of which granted, some would argue merely, the right to file a successive petition on the claim.

The Nevada Supreme Court in Robert Byford v. State holds that the State and district court acted improperly in ruling upon Byford's post-conviction petition. The State prepared an order and submitted it to the trial court. Remanding, the state supreme court holds that the trial court "must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court’s review." The Court also holds that "in defending the district court’s order, the State repeatedly asserts that Byford’s counsel made reasonable strategic choices . . . . this is a difficult assessment to make without the benefit of counsel’s testimony at an evidentiary hearing.”

The South Carolina Supreme Court in State v. Rita Bixby looks at the breadth of that state's capital sentencing statute. The trial court had held that Bixby could not face death for the murder two police officers’ deaths because she had been charged with accessory to murder, not murder itself. “Although [the aid & abets statute] provides that one who is convicted as an accessory before the fact must be punished in the manner prescribed for the punishment of the principal felon, the legislature has not indicated any intent in [the capital sentencing statute] to have such an accessory be subject to the most severe punishment of death."

US District Court Judge Allen Sharp (Southern District of Indiana) finds himself in Joseph Corcoran v. Buss immersed in a rather odd issue. The prosecutors in Corcoran’s state trial offered the petitioner “the opportunity to waive his right to a jury trial and proceed with a bench trial. In exchange the prosecutor would not seek the death penalty.” The issue is whether it improperly infringes on the right to go to trial. Finding that such an offer does unlawfully infringe on the right of trial the district court grants an unconditional writ ordering commutation to life in prison.

In recent weeks the only criminal case decided by the Supreme Court has been James v. United States. James holds an individual convicted of attempted burglary under Florida state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal statute, the Armed Career Criminal Act ("ACCA"), dealing with armed criminals. Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Two capital cases were argued before the Supreme Court this past midweek. In Panetti v. Quarterman the oral argument transcripts indicates the Court is likely deeply divided on the merits (standards for competency to be executed), however the real questions will be in the procedural issues governing the AEDPA (constitutionality of successive petitions requirements), Article III & original jurisdiction, as well as whether petitioners will be forced to boilerplate unripe & otherwise frivolous claims in order to avoid the successive petition doctrine. In Uttecht v. Brown the Court heard argument on jury death qualification with the transcripts suggesting a very close vote count with Justice Kennedy likely being the swing vote.

In the news, Monday will almost assuredly mark the 200th exoneration by DNA in the modern era. Friday, Gov. Arnold Schwarzenegger issued an order halting construction on San Quentin's new death chamber. Five of the eight inmates on Connecticut's death row have started a hunger strike to protest the conditions In Georgia HB 185 appears to be dead which would have permitted non-unanimous death verdicts in Georgia. Press accounts note that in Horn v. Mumia Abu-Jamal the Third Circuit has refused to recuse itself on the Governments motion. The Indiana Department of Corrections has issued an order to double the amount of sodium pentothal -- to 5 grams from 2.5 grams -- the barbiturate serves as a sedative. Additional news can be found at the CDW blog, DPIC, and ODPI.

Prof Phyllis Goldfarb of Boston College Law has a great new piece on teaching the realities of legal opinion making using the Supreme Court's decisions in McCleskey v. Kemp & McCleskey v. Zant as a backdrop [Goldfarb, Phyllis, "Pedagogy of the Suppressed: A Class on Race and the Death Penalty" (March 31, 2007). Boston College Law School Research Paper No. 129 available at SSRN: http://ssrn.com/abstract=977779]. Other recent relevant pieces include:

• Model Uncertainty and the Deterrent Effect of Capital Punishment by Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, and Daniel Nagin (Columbia Public Law Research Paper No. 07-138, FRB of Boston Quantitative Analysis Unit Working Paper);
• Killing Roger Coleman: Habeas, Finality, and the Innocence Gap by Todd E. Pettys (William & Mary Law Review, Vol. 48, p. 2313, 2007);
• The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation by Susan D. Rozelle (Arizona State Law Journal, Vol. 38, p. 769, 2006);
• Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999) by David C. Baldus, George G. Woodworth, and Catherine M. Grosso (Nebraska Law Review, Vol. 81, 2002); and
• Deciding Death by Corinna Lain.

Looking ahead, there are major opinions noted from the Oklahoma Court of Appeals and Missouri that will be discussed in greater depth next week. In Isidro Marquez-Burrola v. State the Oklahoma Court of Appeals grants relief as trial counsel failed to investigate, develop and present a meaningful mitigation case, this despite the ready resources of the Mexican government that are offered in all capital cases involving Mexican citizens. The Missouri Supreme Court in In the Matter of the Competency of Steven Parkus grants relief under Atkins and sets forth the procedure to follow and the appropriate standard of review of the trial court's decision for a defendant such as Parkus who received a death sentence for a conviction before August 28, 2001, the effective date of Missouri's retardation statute.

As always thanks for reading. - k

Recent Executions

11 James Clark (Texas)

Pending Executions

April

24 James Filaggi (Ohio)

26 Ryan Dickson (Texas)

May

4 David Woods (Indiana)

8 Carey Dean Moore (Nebraska----volunteer)

9 Philip Workman (Tennessee)

10 Jose Moreno (Texas)

16 David Ivy (Tennessee)

16 Charles Smith (Texas)

23 William Rogers (Tennessee)

24 Christopher Newton (Ohio)

More Execution information*

Supreme Court

• James v. United States, No. 05–9264 (4/18/2007) James holds an individual convicted of attempted burglary under state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter. The dissent casts Scalia, as the Sentencing Blog notes, as the new Brennan — at least when it comes to noncapital criminal issues. As Doug Berman also notes “[n]either Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences. They both are good at talking the talk, but neither walk the walk. Now, if you murdered someone and get sentenced to death by a jury, then Justices Breyer and Kennedy are on your side.”

Week of April 2, 2007 - In Favor of Life or Liberty

• In re Milton Mathis, 2007 U.S. App. LEXIS 7557 (5th Cir. 4/2/2007) Fifth Circuit grants permission to file successive habeas petition on claims relating to Atkins v. Virginia.
• George Ochoa v. Sirmons, 2007 U.S. App. LEXIS 8022 (10th Cir 4/6/2007) Tenth Circuit holds that a supplemental habeas pleading filed during the pendency of an appeal is a successive petition. Under the facts of the case, however, Ochoa is permitted to file a claim that he is mentally retarded.
• Terrick Nooner v. State, 2007 Ark. LEXIS 231 (Ark. 4/5/2007) (unpublished) Relief denied on pro se motion to be executed immediately.

Week of April 9, 2007 - In Favor of Life or Liberty

• People v. Super. Ct. (Vidal), 2007 Cal. LEXIS 3581 (CA 4/12/2007) “The Court of Appeal majority erred in thus purporting to resolve a factual question―the best scientific measure of intellectual functioning―as a matter of law.” " The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the individual’s “general intellectual functioning” is significantly impaired (§ 1376, subd. (a)), but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. "
• Robert Byford v. State, 123 Nev. Adv. Rep. 9 (Nev. 4/12/2007) Remand ordered to develop a fuller record.
• State v. Rita Bixby, 2007 S.C. LEXIS 153 (S.C. 4/9/2007) Upholding trial court's decision that Bixby could not face death for the murder two police officers’ deaths because she had been charged with accessory to murder, not murder itself.
• Williams v. Norris, 2007 WL 1100417 (E.D. Ark. 4/11/2007) United States District Court Judge J. Leon Holmes finds that “the ineffectiveness of [Marcel] Williams´s trial lawyers in failing to present mitigation evidence at the penalty phase was prejudicial” and, therefore, Williams was entitled to a new sentencing hearing, or, in the alternative, reduction of his sentence to life without parole. [via CapDefNet]
• Joseph Corcoran v. Buss, No. 3:05-CV-389 AS (S.D. Ind. 4/9/2007)The prosecutors in Corcoran’s state trial offered him “the opportunity to waive his right to a jury trial and proceed with a bench trial. In exchange the prosecutor would not seek the death penalty.” As US District Court Judge Allen Sharp notes this was a very odd offer — I’ve never seen it before and the Judge Sharp indicates his research could find no case where it was offered previously.

Week of April 2, 2007 - Favoring Death

• Marcus Druery v. State, 2007 Tex. Crim. App. LEXIS 392 (Tex. Crim. App. 4/4/2007) Texas Court of Criminal Appeals denies relief on claims relating to: [A] certain evidential issues (accomplice testimony & certain physical evidence); [B] refusal to charge abuse of a corpse; [C] failure to charge on lesser included homicide offenses; [D] sufficiency of the evidence as to future dangerousness; and [E] erroneous penalty phase jury instructions.
• Richard Nields v. Bradshaw, 2007 U.S. App. LEXIS 7975 (6th Cir. 4/6/2007) Sixth Circuit denies relief on claims relating to prosecutorial misconduct and ineffective assistance of counsel.
• Mohammad Munaf, et al. v. Geren, 2007 U.S. App. LEXIS 7974 (D.C. Cir. 4/6/2007) "Mohammad Munaf, an American citizen who faces a death sentence imposed by a court in Iraq that had convicted him of an alleged terrorist plot. He is being held by U.S. military forces in Iraq, and could now be transferred to Iraqi custody to face execution, unless that transfer is blocked temporarily while the case continues in U.S. courts. The Circuit Court ruled Friday that U.S. civilian courts have no jurisdiction to hear his habeas challenge to the U.S. Army's plan to hand him over to Iraqi official." [via SCOTUSblog, which has more]
• Phillip Wilkinson v. Polk, 2007 U.S. App. LEXIS 7926 (4th Cir 4/5/2007) (unpublished) In an unpublished Fourth Circuit opinion that Court finds [A] no error in the police telling a defendant who is represented by counsel not to follow the advice of counsel; [B] no error in the delayed disclosure of blood alcohol tests that may have permitted an intoxication defense — it was disclosed only after Wilkinson plead guilty; and [C] failure to adequately prepare and present mitigation evidence. CapDefNet has more.

Week of April 9, 2007 - Favoring Death

• In re: David Lee Lewis, 2007 U.S. App. LEXIS 8576 (5th Cir 4/13/2007) Successive petition denied.
• Arturo Diaz v. Nathaniel Quarterman, 2007 U.S. App. LEXIS 8346 (5th Cir 4/11/2007) (unpublished) Relief denied on claims including: "(1) whether the ineffective assistance of state habeas counsel is sufficient cause to warrant review of a procedurally barred claim; (2) whether trial counsel rendered ineffective assistance with respect to the guilt innocence phase of trial by failing to adequately investigate the State’s case and fully discuss it with Diaz to ensure his plea of not guilty was knowing and voluntary; (3) whether trial counsel rendered ineffective assistance with respect to the punishment phase of trial by (a) failing to adequately investigate and present readily available mitigating evidence, (b) failing to prepare the only witness offered, and (c) devoting almost their entire closing argument to a defensive theory that the jury had rejected during the guilt-innocence phase of trial; (4) whether the trial court deprived Diaz of a fair trial by admitting evidence of gang membership; (5) whether the prosecutor infringed on Diaz’s right to remain silent by eliciting testimony that Diaz had refused to discuss the offense with his own mental health expert; (6) whether trial counsel rendered ineffective assistance during voir dire by failing to object to the exclusion of venire member Gerald Albrecht; and (7) whether appellate counsel rendered ineffective assistance by not appealing the prosecutor’s closing statements that alluded to community expectations."
• In re: James Lee Clark, 2007 U.S. App. LEXIS 8204 (5th Cir 4/9/2007) (unpublished) Successive petition summarily denied.
• Paul Brown v. State, 2007 Fla. LEXIS 659 (FL 4/12/2007) Florida Supreme Court holds that competent, substantial evidence supported the trial court´s finding that Paul Alfred Brown is not mentally retarded with a hard line drawn at an IQ score of 70. [via CapDefNet]
• Roger Cherry v. State, 2007 Fla. LEXIS 661 (FL 4/12/2007) Florida Supreme Court affirms the denial of Roger Cherry’s second motion for postconviction relief and his motion for determination of mental retardation. At the mental retardation hearing, one of the experts testified that he administered the WAIS-III and Cherry received a full scale IQ score of 72. [via CapDefNet]
• Omar Blanco v. State, 2007 Fla. LEXIS 662 (FL 4/12/2007) Relief denied. "On appeal, Blanco raises the following issues, which we address in turn: that the trial court erred (A) in denying his motion to require law enforcement officers to run a latent fingerprint through the Automated Fingerprint Identification System (AFIS); (B) in failing to hold an evidentiary hearing regarding allegedly tainted evidence; and (C) in summarily denying most of his claims both individually and cumulatively."
• Dieter Riechmann v. State, 2007 Fla. LEXIS 664 (FL 4/12/2007) Relief denied on claims relating to: "(1) newly discovered evidence involving an alleged confession from Mark Dugen; (2) the State deliberately withheld material exculpatory evidence and knowingly used false evidence regarding State witness Walter Smykowski; (3) the conduct of law enforcement officers in this case was so outrageous that it deprived Riechmann of due process; (4) Riechmann is entitled to DNA testing of the presumptive blood evidence; (5) Riechmann was denied his rights to due process and equal protection because access to the files and records pertaining to Riechmann’s case had been withheld by certain state agencies; and (6) the cumulative effect of newly discovered evidence warrants a new trial."
• State v. Daniel Blank, 2007 La. LEXIS 898 (LA 4/11/2007) (dissent) The State's sole evidence against Blank was his detailed confession. Relief denied, most notably, on admissibility of said confession & the exclusion of certain evidence that could have permitted a jury to question the reliability of that confession.
• Richard Eugene Glossip v. State, 2007 OK CR 12 (Okla. Crim. App. 4/13/2007) (dissent) Relief denied, as the dissent notes, on "the trial court’s decision, over defense objection, to allow the State to post summaries of witness testimony throughout the courtroom and to leave these demonstrative exhibits visible to jurors and later witnesses, from the time they were first crafted until the conclusion of the first stage of Glossip’s trial," as well as the denial of defense counsel’s clear and reasonable request to allow these exhibits to be either preserved intact or digitally photographed, for review by this Court, was likewise an abuse of discretion. The trial court’s actions in this regard were totally unjustified and prejudiced Glossip’s right to a fair trial and an informed consideration of his claims on appeal."
• State v. Marvin Johnson, 2007 Ohio 1685 (Ohio App. Div. 4/10/2007) Relief denied chiefly on a whether Johnson was competent to stand trial.

(Advance Sheet for the Week of April 16, 2007) In Favor of Life or Liberty

• Isidro Marquez-Burrola v. State, 2007 OK CR 14 (Okla. Crim. App.4/17/2007) OCCA grants relief as trial counsel failed to investigate, develop and present an acceptable case during the sentencing phase of his trial and therefore prejudiced their client. “Generally, prejudicial error in the punishment stage of a capital trial would warrant vacating the death sentence and remanding to the district court for resentencing.” “Under the particular circumstances of this case, however, we find that a modification of sentence is more appropriate.” Congrats to counsel, M. Michael Arnett, Michael Dwayne Morehead, Jamie Dee Pybas, and Mandy Welch.
• In the Matter of the Competency of Steven Parkus, 2007 Mo. LEXIS 57 (Mo 4/17/2007) Parkus held to be mentally retarded. The Court also sets forth the procedure to follow and the appropriate standard of review of the trial court's decision for a defendant such as Parkus who received a death sentence for a conviction before August 28, 2001, the effective date of Missouri's retardation statute. In Missouri appeals in capital cases as to whether the condemned is mental retarded are to be civil appeals.
• State v. Mark Burke, 2007 Ohio 1810 (Ohio App. Div. 4/17/2007) Trial court erred in limiting evidence and effect of recantation by a key State's witness.

(Advance Sheet for the Week of April 16, 2007) Favoring Death

• Albrecht v. Horn, No. 04-9005, 04-9006 (3rd Cir 4/20/2007) Grant of habeas relief and vacatur of his death sentence pursuant to Mills v. Maryland, 486 U.S. 367 (1988), is vacated in part and remanded where: 1) a nonretroactivity defense was properly raised by the Commonwealth for the first time in a brief on appeal, and thus was not waived; and 2) pursuant to intervening Supreme Court case law, the ban on retroactive application of new rules of constitutional law applies to Mills, and relief should be denied on the Mills claim. [via Findlaw]
• Johnny Hoskins v. State, 2007 Fla. LEXIS 668 (FL 4/19/2007) Relief denied on claims including: "(1) the trial court erred in overruling his objection to the State’s use of a peremptory challenge to an African-American juror; (2) the trial court erred in limiting Hoskins’s voir dire examination regarding the potential jurors’ ability to consider “gory photographs” which were already in evidence; (3) the trial court erred in failing to give the requested limiting instruction on victim impact evidence at the time of introduction; (4) the trial court erred in denying Hoskins’s requested jury instructions; (5) the trial court included improper aggravating circumstances, excluded existing mitigating circumstances, and failed to properly find that the mitigating circumstances outweighed the aggravating circumstances; and (6) Florida’s capital sentencing process is unconstitutional."
• Donnie Roberts v. State, 2007 Tex. Crim. App. LEXIS 429 (Tex. Crim. App. 4/18/2007) A conviction and death sentence for capital murder is affirmed over claims of error regarding: 1) the factual sufficiency of the evidence; 2) evidentiary issues; 3) ineffective assistance of counsel; 4) prosecutorial misconduct; 5) jury instructions; 6) closing argument; and 7) challenges to the death penalty. [via Findlaw]
• Comm. v. Miguel Rios, 2007 Pa. LEXIS 864 (PA 4/18/2007) (dissent) Relief denied, most notably & over a substantial dissent, on claims relating to failure to object to a "due your duty" penalty phase closing by the government, as well as failure of counsel to adequately investigate and present life history mitigatory evidence.

Noncapital of Note

• People v. Cage, 2007 Cal. LEXIS 3522 (CA 4/9/2007) Pithily summing up the state of flux in the law it notes “[s]tate and federal courts have struggled to apply the Crawford concept of testimonial hearsay.”
• Ex parte Cruzata, No. 75,513 (Tex. Crim. App. 4/18/2007) A split court looks at the availability of ineffective assistance of appellate counsel claims in Texas.

Selected Excerpts from, & Commentary on, this Edition's Cases

People v. Super. Ct. (Vidal), 2007 Cal. LEXIS 3581 (CA 4/12/2007) “The Court of Appeal majority erred in thus purporting to resolve a factual question―the best scientific measure of intellectual functioning―as a matter of law.”

The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the individual’s “general intellectual functioning” is significantly impaired (§ 1376, subd. (a)), but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. The question of how best to measure intellectual functioning in a given case is thus one of fact to be resolved in each case on the evidence, not by appellate promulgation of a new legal rule.

“The superior court here [ ] found on the basis of Couture’s and Widaman’s testimony that in Vidal’s case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation.”

In finding Vidal to be mentally retarded, the superior court expressly found satisfied the statutory requirement of “significantly subaverage general intellectual functioning.” As to this intellectual-functioning prong of the definition, then, the court appears at least facially to have employed the correct standard. Nevertheless, the Court of Appeal held the superior court used the wrong legal standard by failing to give primary weight or consideration to Vidal’s Full Scale IQ scores, which generally lay above the range considered to show mental retardation. People, similarly, urge us to hold as a matter of law that in applying section 1376 trial courts “should be limited in their use of IQ scores to the full scale IQ score, rather than have the discretion to substitute subtest scores which fail to provide a picture of general intellectual functioning.” Here, the People argue, the court “relied too heavily on the petitioner’s subtest IQ score and failed to give appropriate weight to his full scale IQ score.”

We disagree that section 1376 dictates primary reliance on the Full Scale IQ score of a Wechsler intelligence test. The statute itself makes no reference to one or another clinical test of intelligence, any more than it refers to a particular score as cutoff point for mental retardation. (See Hawthorne, supra, 35 Cal.4th at p. 48 unlike some states, the California Legislature has chosen not to include a numerical IQ score as part of the definition of ‘mentally retarded’ ”].) As we further explained in Hawthorne, mental retardation, as a question of fact, “is not measured according to a fixed intelligence test score or a specific adaptive behavior deficiency, but rather constitutes an assessment of the individual’s overall capacity based on a consideration of all the relevant evidence.” (Id. at p. 49.) To impose an absolute rule that a trial court’s finding of mental retardation must be based primarily on Wechsler Full Scale IQ scores would be to read into the statute a criterion the Legislature chose to omit and would be inconsistent with the principle that a factual finding of retardation must be based on all the relevant evidence. (See People v. Stoll (1989) 49 Cal.3d 1136, 1154 [“No precise legal rules dictate the proper basis for an expert’s journey into a patient’s mind”].)

In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology. The expert testimony below included a vigorous scientific debate as to whether Vidal’s Full Scale IQ scores should rule out a diagnosis of mental retardation. While one psychologist, McKinzey, gave his opinion that Full Scale IQ scores are, in all circumstances, the “best measure of general intelligence,” two other psychologists, Couture and Widaman, testified that where testing showed an extraordinarily wide divergence between Performance and Verbal IQ scores, the Full Scale measure was not a fully reliable measure. In support of their views, both sides gave scientific, not legal, reasons and cited scientific, not legal, authority.

Joseph Corcoran v. Buss, No. 3:05-CV-389 AS (S.D. Ind. 4/9/2007) The prosecutors in Corcoran’s state trial offered him “the opportunity to waive his right to a jury trial and proceed with a bench trial. In exchange the prosecutor would not seek the death penalty.” As US District Court Judge Allen Sharp notes this was a very odd offer — I’ve never seen it before and the Judge Sharp indicates his research could find no case where it was offered previously. Relying heavily on United States v. Jackson, 390 U.S. 570, 581-82 (1968) & Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) the Court finds:

At first blush, the question arises, what harm is caused by such an offer? If a defendant can trade away a panoply of rights by pleading guilty, why can he not trade away but one of them? The Supreme Court of Indiana said, “In the context of plea-bargaining, we do not see a material distinction in the discretionary powers of the prosecutor in offering to agree to a lesser sentence for a guilty plea or for a bench trial.” Corcoran v. State, 739 N.E.2d 649, 654 (Ind. 2000) (emphasis added). Though as discussed, no plea is involved in the second offer. Nevertheless, the State Supreme Court saw no material distinction between the two offers. If it was the prosecutor’s goal to dissuade the defendant from demanding a jury trial, he failed. The defendant demanded a jury trial and he got it. Furthermore, the defendant had the right to waive a jury trial, so what error is caused by receiving a benefit for choosing to exercise a lawful option? So too, the prosecutor had the authority to seek the death penalty or not, so what error is caused by conditionalizing his discretion?

When one pleads guilty, many rights are waived. Could the prosecutor have legitimately offered a different deal based on one of those other rights that are also relinquished as a part of a guilty plea? Could he have offered to waive the death penalty in exchange for waiving the Fifth Amendment right against self-incrimination merely to permit the prosecutor to comment on the defendant’s failure to take the stand in his own defense? This would certainly simplify appeals involving whether the prosecutor strayed too far in closing argument. Could the death penalty be traded for the Sixth Amendment right to a public trial thereby permitting a secret adjudication? Alternatively, could the death penalty be swapped for the Sixth Amendment right to call witnesses in his defense? Further, could it be bartered for the Sixth Amendment right to confront and cross examine witnesses against him thereby barring the defendant and his counsel from observing the state’s case in chief? This would transform the petit jury into more of a grand jury. What about conditioning the death penalty on surrendering the Sixth Amendment right to an impartial jury by requiring the defendant to waive his right to participate in jury selection or to comment on the prosecutor’s challenges during voir dire? Then again, a defendant has the right to fire his lawyer and proceed pro se, so could the death penalty be conditioned on relinquishing his Sixth Amendment right to counsel and proceeding at trial unrepresented?

The reason that these theoretical prosecutorial offers offend our sensibilities is not because the death penalty is used as a bargaining chip, after all it is clearly a bargaining chip when it is offered in exchange for a guilty plea. Rather, the visceral reaction arises because what is traded in exchange is not a confession of the truth of the criminal allegations, but the very procedural safeguards we have enacted to protect the judicial process. Such offers do more than attempt to abrogate a single individual’s rights, they tinker with the rules that promote societal trust in our system of justice. It is beyond doubt that prosecutors can negotiate for guilty pleas. What they cannot do is strike a deal whose object is nothing more than a punishment for the exercise of a constitutional right.

* * * *

Here, the petitioner was punished when he refused to waive his right to a jury trial and agree to allow a judge to determine his guilt. The time sequence of such an offer and the filing of death penalty charges is not relevant. That is to say, it does not matter whether the offer is to dismiss previously filed charges or to refrain from filing in the future. The constitutional taint is the same. Nevertheless, the sequence of events in this case is important. The petitioner was charged with murder and negotiations ensued. Though it is not clear when they began, nor how long they lasted, what is clear is that nine and a half months later they ended when, on the record, the prosecution withdrew from further discussions and announced the intent to seek the death penalty. Trial Record at 151. The petitioner did not agree to be tried by a judge sitting without a jury and as a direct consequence, the prosecutor sought the death penalty. But for his demand for a jury trial, rather than a bench trial, he would not have faced the death penalty.

Because the Supreme Court of Indiana did not see any material distinction between a guilty plea and the waiver of the right to a jury trial, it did not attempt to identify any other purpose or effect for the waiver of this procedural constitutional right. Neither has the respondent advanced any. In this way, it as if neither fully grasp the difference between refusing to plead guilty and demanding a trial, as opposed to, refusing to consent to a bench trial and demanding a jury trial. Without any possible explanation otherwise presented, the court can find no necessary reason to warrant the excessive effect of punishing the petitioner’s assertion of his right to a jury trial rather than consenting to a bench trial. See Jackson at 582. Therefore it is the holding of this court that the prosecution unconstitutionally penalized the petitioner by seeking the death penalty when the petitioner refused to consent to the prosecution’s offer to forgo the death penalty in exchange for the defendant’s consent to waive a jury trial and proceed with a determination of guilt by the judge. This offer by the prosecution was a violation of the petitioner’s Sixth Amendment right to a jury trial.

Corcoran’s case, assuming its affirmance by the Seventh Circuit if the State appeals, will be sent back to State court where the death penalty will be barred at his resentencing.

Robert Byford v. State, 123 Nev. Adv. Rep. 9 (Nev. 4/12/2007) Remand ordered to develop a fuller record. From Harmful Error:

In Byford v. State the Nevada Supreme Court held that the State and district court acted improperly in ruling upon a post-conviction petition in a capital case, which had been remanded by the Nevada Supreme Court for reconsideration of certain claims and entry of an order with specific findings, by means of the State preparing an order and submitting it to the district court without notice to the defendant or his counsel. The Court held that the district court "must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court's review."

The Court also found that "in defending the district court's order, the State repeatedly asserts that Byford's counsel made reasonable strategic choices. In many instances, this is a difficult assessment to make without the benefit of counsel's testimony at an evidentiary hearing."

State v. Rita Bixby, 2007 S.C. LEXIS 153 (S.C. 4/9/2007) South Carolina Supreme Court looks at the reach of the State’s capital sentencing scheme. The court upheld a trial court decision that Bixby could not face death for the murder two police officers’ deaths because she had been charged with accessory to murder, not murder itself.

A possible sentence of death applies only when one is convicted of or has pled guilty to the crime of murder. Following the plain language of § 16-3-20, the State may seek the death penalty upon conviction or adjudication of guilt of a defendant of murder. The statute does not provide any other crimes for which a defendant may be eligible for the death penalty.

Although § 16-1-40 provides that one who is convicted as an accessory before the fact must be punished in the manner prescribed for the punishment of the principal felon, the Legislature has not indicated any intent in § 16-3-20 to have such an accessory be subject to the most severe punishment of death.

Given the plain language of § 16-3-20 and the fact the Legislature has not shown an intent to make one charged with accessory before the fact to murder death penalty-eligible, the trial judge properly found that respondent is not eligible for the death penalty and properly dismissed the State’s notice of intent to seek the death penalty.

[internal citations omitted]