Two capital casesRogers v. Gibson(Tenth Circuit) andGosier v. Welborn(Seventh Circuit) are reported in this edition. TheRogers'panel examines issues relating to what constitutes sufficient aid under Ake v. Oklahoma for assistance of experts and investigators. InGosier, a panel examines filing dates for purposes of the AEDPA and appointment of counsel motions, then denies relief on the substantive claim of whether petitioner was competent at the time he plead guilty to first degree murder.

Please note that the next edition will most likely be during the week of May 10, 1999 as I will be out of the office. For any pressing matters I will be checking the office phone at 617.249.0217 on a regular basis.

Capital Cases

Gosier v. WelbornSeventh Circuit after examining the effective date for the filing of a habeas petition under the AEDPA finds that Mr. Gosier was competent at the time he plead guilty to capital murder.

Gosier began his federal collateral attack after April 24, 1996, so the current version of 28 U.S.C. sec.2254 applies. He sought appointment of counsel before that date but did not file a petition until afterward, and it is the latter event that determines whether the Antiterrorism and Effective Death Penalty Act governs. Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997). One court has disagreed with Holman, concluding that Hohn v. United States, 118 S. Ct. 1969 (1998), requires an application for counsel to be treated as a "case pending" before the AEDPA's enactment. Calderon v. United States District Court, 163 F.3d 530, 539-40 (9th Cir. 1998) (en banc). Like Judge Hall, dissenting in Calderon, 163 F.3d at 544-45, we find this use of Hohn inapt. The question in Hohn was whether an application for a certificate of appealability is a "case" in the court of appeals, and therefore amenable to review on writ of certiorari under 28 U.S.C. sec.1254. The answer to that question does not bear on the issue in Holman and Calderon: whether an application for counsel under 21 U.S.C. sec.848(q)(4) is a "case pending" under Chapter 153 of the Judicial Code--the critical question for application of the AEDPA. See Lindh v. Murphy, 521 U.S. 320(1997). We did not doubt in Holman that a request for counsel is a "case" in the sense that it is subject to appellate review (and, if need be, review by the Supreme Court). Indeed, Gosier's request for counsel was reviewed by this court on appeal, after the district judge dismissed his application. Gosier v. Welborn, 1996 U.S. App. Lexis 2051 (7th Cir. Jan. 24, 1996). But a request for counsel under sec.848(q)(4), part of Title 21, is not a case under Chapter 153 of Title 28--that is, the request is not a collateral attack on a criminal judgment. Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147(1984) (a request for counsel does not initiate a civil suit for purposes of statutes of limitations). This rationale of Holman was ignored by the ninth circuit, and we are not persuaded by a decision that avoided the fundamental issue. So we apply the AEDPA to Gosier's case.

On the basis of the state record, the federal district court rejected all but one of Gosier's contentions. 1997 U.S. Dist. Lexis 11545 (N.D. Ill.). The remaining assertion--that Gosier was unable to assist in his defense--was the subject of an evidentiary hearing. After receiving testimony from the state trial judge, two psychiatrists, three lawyers who had represented Gosier in state court, three law enforcement officers who related Gosier's activities and mental state in prison near the time of his plea, and a lawyer who had known Gosier during high school and college, the district judge concluded that Gosier had "a reasonable degree of rational understanding [and] a rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396-98(1993). See also Drope v. Missouri, 420 U.S. 162, 171-72(1975); Dusky v. United States, 362 U.S. 402(1960). This meant that he was competent to stand trial and thus, because Godinez holds that the competence-to-stand-trial standard also applies to guilty pleas and waivers of counsel, Gosier could dismiss his lawyers and plead guilty. The district court accordingly denied his petition for a writ of habeas corpus. 1998 U.S. Dist. Lexis 9456 (N.D. Ill.).

Illinois contends that forfeiture in state court forecloses Gosier's argument that he was not competent to stand trial, represent himself, and plead guilty. That is indeed what the Supreme Court of Illinois held: "Defendant vigorously attacked several trial court determinations relating to his guilty plea on his direct appeal to this court. He offers no explanation for his failure to raise his present allegation regarding the guilty plea. Therefore, since defendant could have raised this issue on direct appeal, but failed to do so, the issue is waived." 649 N.E.2d at 367. Yet both before and after Gosier's case the Supreme Court of Illinois flatly stated that claims of incompetence to stand trial need not be raised on direct appeal. See People v. McLain, 37 Ill. 2d 173, 177, 226 N.E.2d 21, 24 (1967); People v. Nitz, 173 Ill. 2d 151, 161, 670 N.E.2d 672, 676 (1996). The wavering course of state law led the district judge to conclude that the state's forfeiture ground is inadequate to foreclose federal review. 1997 U.S. Dist. Lexis 11545 at *17-25. These cases do not announce a firm rule with a possibility that the court will excuse the forfeiture in the interest of justice. See Prihoda v. McCaughtry, 910 F.2d 1379, 1384 (7th Cir. 1990). Instead, there appear to be incompatible lines of authority, cases that do not cite each other, let alone establish a rule- and-exception framework. The Attorney General of Illinois tells us that the cases may be harmonized on the ground that prisoners who on collateral attack offer additional evidence of mental shortcomings are allowed to pursue their claims, while prisoners who stand on the original record are not. Perhaps this is a factual difference, but it is not a ground emphasized (or even mentioned) by the Supreme Court of Illinois, which said in People v. Burson, 11 Ill.2d 360, 370, 143 N.E.2d 239, 245 (1957), that "grace" rather than more evidence explains its pattern of decisions. Nitz states, without qualification, that claims of this kind always may be raised on collateral attack in Illinois. A defendant reading the state court's opinions would not think it necessary to raise this issue on direct appeal, and the forfeiture doctrine therefore does not bar collateral review in federal court. Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997).

After concluding that the state court should have held a hearing to inquire into Gosier's competence, the district judge held one of his own and concluded, as we have recounted, that Gosier was able to understand the proceedings and assist in his defense. If this is correct, it follows that the plea comports with the Constitution. Gosier advances a nominally distinct argument that his plea was involuntary, but this is derivative from the competence argument. To the extent it has an independent basis, the Supreme Court of Illinois cogently addressed it on direct appeal, 582 N.E.2d at 96- 99, and that decision cannot be called an "unreasonable" application of settled law. See 28 U.S.C. sec.2254(d)(1). We therefore put voluntariness aside.

The evidence before the district court strongly supports the conclusion that Gosier was competent--so strongly, indeed, that it is clear that the hearing was unnecessary. Only when the facts at the time of trial create a bona fide doubt about an accused's fitness is a hearing required. Pate v. Robinson, 383 U.S. 375, 385(1966); Drope, 420 U.S. at 173. That standard has not been met--and not only because Justice Robert Steigmann, the trial judge, testified that Gosier comprehended the proceedings:

He responded to the questions I asked. He asked questions himself. When I answered, he responded to those questions in a coherent fashion. . . . His answers were responsive to my questions. In response to the admonitions I was giving him . . . He appeared to me to understand those admonitions and to make responses pertaining to them that were consistent with the admonitions I had given for I think in the few instances clarification of what that would mean and the like.

The judge also related that Gosier's lawyer did not indicate that he had any trouble communicating with his client, or that Gosier was unable to comprehend the proceedings or assist in the defense. According to Justice Steigmann, only "the terrible judgment that Mr. Gosier's request to represent himself showed" raised any flag--and of course this request, the exercise of a constitutional right, see Faretta v. California, 422 U.S. 806(1975), can't be used to prevent the defendant from representing himself or pleading guilty, lest rights be self-canceling. Gosier has a college education; Justice Steigmann thought that he did the sorts of things an attorney would have done, and that his judgment was "terrible" only because no lay person could do as well as a lawyer in a capital case. Yet as the Court held in Faretta the state judge was in the end required to accept Gosier's decisions even though they reflected poor judgment (as Faretta characterized every decision to waive the aid of counsel).

Gosier's current lawyers stress the events of October 18, 1988, the second day of the trial, when he pleaded guilty. As the prosecutor prepared to call Lesia to the stand, Gosier was "'emotionally upset seated at counsel table, visibly and audibly crying.'" 582 N.E.2d at 93. After a recess, Lesia also became upset and was unable to compose herself. Gosier then informed one of the deputies that he wished to plead guilty to all the charges and told the judge: "Your Honor, can't none of us undo the past. And I still love my family and I'm guilty Your Honor. I'm guilty." Id. at 93-94. Gosier's current lawyers also point to the statement he made when he dismissed his trial counsel Joseph Hooker in order to represent himself:

It is totally based on, just it is based on me, on what I feel, and what I think is best for me at this hour at this present time. As far as the doctors . . . are concerned I don't think that I need their reports or anything, considering the nature of my case. I don't know how many of you in here believe in God, but I know that there is some things that happened in the past in our lives. We all have pains and, you know, sorrows, and I know that I have turned my life and converted myself over to God, and this is a matter beyond my control or my attorney control or even your control, and I just think it's interesting that I go, you know, with my faith with God, and in my heart, and I know that regardless of the outcome of this case, that it will be best if his office didn't represent me, and at the same time to indicate that Mr. Hooker was doing an outstanding job.

Gosier's reference to "the doctors" is to two psychiatrists, Lawrence Jeckel and Emanuel Tanay, who had examined him before trial in order to evaluate the possibility of an insanity defense in light of the gruesome nature of his crimes and a suggestion of current mental problems. A report by the Champaign County Mental Health Center from August 1988 asserts that "Harry's defenses may well be deteriorating to some extent . . . and concerns of stability and control are emerging." The record does not reveal the author's medical credentials. But we do know that Jeckel examined Gosier twice in September 1988 and concluded that he was sane at the time of the offense and appreciated the criminality of his conduct, that he understood the charges, and that he could cooperate with his lawyers. Tanay likewise concluded that an insanity defense would be untenable, though he thought that Gosier was under the influence of cocaine and suffered from a severe emotional disturbance at the time of the crime. The latest and best evidence available to Justice Steigmann supported a conclusion that Gosier was competent to stand trial, represent himself, and plead guilty.

Neither the statements Gosier made in court nor the diagnoses of the two psychiatrists would have suggested to a reasonable judge in October 1988 that Gosier was unable to understand the charges or assist in his defense. Gosier committed a terrible crime but later had a religious conversion and showed remorse, wanting to spare his wife the ordeal of describing in court what had transpired. His current lawyers describe this as a death wish demonstrating irrationality, but (belated) compassion toward the victim of one's crimes is not irrational, and at all events Gosier vigorously contested the sentencing portion of the prosecution, even calling Dr. Tanay to testify to his drug problem and emotional disturbance. We may assume with Dr. Tanay that Gosier suffers from a mental impairment--normal people do not commit multiple murders or necrophilia--but "[f]itness for trial is a much narrower concept than moral or social wellness." Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996). See also, e.g., Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984). Like the district judge, we recognize that in prison Gosier occasionally seemed to be unstable and was put on the suicide watch list; but the legal question is whether Justice Steigmann should have perceived that Gosier did not understand the charges and could not assist in his defense. Both Jeckel and Tanay diagnosed Gosier as suffering from rage and paranoia. Like many others with that mental status, Gosier displayed different levels of skill and understanding at different times. He was a star athlete in high school, captain of the football team and president of student government, and a notable collegiate player. He became a substitute high school teacher after his hopes for a pro football career were dashed. Persons afflicted by paranoia often are intelligent and skillful. In court, and in his 1988 interviews with Drs. Jeckel and Tanay, Gosier demonstrated sufficient command of himself and enough ability to comprehend the charges and proceedings that a hearing was unnecessary. The district judge should have denied the petition without holding an evidentiary hearing. But we add, for completeness, that the district judge's conclusions following the hearing are not clearly erroneous, and they independently require the denial of collateral relief.

Rogers v. GibsonTenth Circuit examines issues revolving around the mental state of this Oklahoman death row inmate at the time of trial.

1. Psychiatric Expert ...

An indigent defendant must have "a fair opportunity to present his defense."Ake v. Oklahoma, 470 U.S. 68, 76 (1985). This principle is derived in significant part from the Fourteenth Amendment's due process guarantee of fundamental fairness,id., and in part from the Sixth Amendment's guarantee of the "fundamental right to a fair trial."SeeStrickland v. Washington, 466 U.S. 668, 685 (1984). InAke, the Supreme Court held that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." 470 U.S. at 74. This requirements applies to both the guilt and penalty phases of capital proceedings.Seeid. at 83 (obligation to provide psychiatric experts arises "when the State presents psychiatric evidence of the defendant's future dangerousness.");seealsoMoore v. Reynolds, 153 F.3d 1086, 1108 (10th Cir. 1998). Relying uponAke, we have held that in the sentencing phase, an expert must be appointed if the State presents evidence, "psychiatric or otherwise, of the defendant's future dangerousness or continuing threat to society" and the defendant "establishes the likelihood his mental condition is a significant mitigating factor."Castro v. State of Oklahoma, 71 F.3d 1502, 1513 (10th Cir. 1995) (citingBrewer v. Reynolds, 51 F.3d 1519, 1529 (1995)).

In the present case, the district court concluded that Petitioner did not make the threshold showings with respect to either the guilt or penalty phases of the trial.We agree. In order for a defendant to be entitled to a psychiatric expert, he must offer "more than undeveloped assertions that the requested assistance would be beneficial."Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985). "In order for a defendant's mental state to become a substantial threshold issue, the showing must be clear and genuine, one that constitutes a close question which may well be decided one way or the other."Castro, 71 F.3d at 1513 (quotingLiles v. Saffle, 945 F. 2d 333, 336 (10th Cir. 1991)). In this case, the trial court had nothing before it that suggested that Petitioner's sanity at the time of the offense would be a significant factor at trial. Dr. Schaefer's report did not address Petitioner's sanity at the time of the offense. Although Dr. Goodman's report is not included in the record, Petitioner does not assert that the report called into doubt his sanity at the time of the offense.

Petitioner points to the statement he made to officers after his arrest, that he "blacked out" after the stabbing, to show that the trial court should have recognized that his sanity was likely to be a significant factor at trial. While Petitioner's statement could suggest an emotional disturbance afterthe crime was committed, without more, it did not "demonstrate to the trial judge that his sanity at the time of the offense [was] to be a significant factor at trial."Ake, 470 U.S. at 83.

In addition, trial counsel repeatedly informed the trial court that Petitioner had instructed him not to raise an insanity defense, and that, as a result, counsel would not raise the defense. Although the failure to assert an insanity defense does not defeat Petitioner'sAkeclaim,seeLiles v. Saffle, 945 F.2d 333, 340 (10th Cir. 1991), it is relevant to the determination of whether the trial court should have recognized that Petitioner's sanity was likely to be a significant factor at trial. Considering all the information before the trial court at the time of the request for a psychiatric expert, we conclude that Petitioner failed to make the requisite showing underAke.

Finding no error at the guilt phase, we turn to the penalty phase of the proceedings. At this stage as well, Petitioner failed to make the requisite preliminary showing. Petitioner must establish that (1) the state presented evidence in the sentencing phase that Petitioner was a continuing threat to society; and (2) that his mental condition was likely to be a significant mitigating factor.SeeCastro, 71 F.3d at 1513. Petitioner meets the first prong of this test, because the state relied upon Petitioner's "continuing threat to society" as one of the aggravating circumstances in the case. Petitioner did not, however, demonstrate to the trial court that his mental condition would be a significant mitigating factor. Petitioner points to nothing in the record in support of his claim that he satisfied this threshold showing.

Even assuming that Petitioner was constitutionally entitled to a mental health expert during the sentencing phase, we find the lack of such assistance harmless error.SeeCastro, 71 F.3d at 1515 (applying harmless error analysis to denial of a psychiatric expert in violation ofAke). Petitioner has not shown that the error "had substantial and injurious effect or influence."Castro, 71 F.3d at 1515-16 (quotingBrewer, 51 F.3d at 1529). First, the jury's decision to recommend the death penalty was based on two additional aggravators: (1) the murder was especially heinous, atrocious and cruel; and (2) Petitioner was previously convicted of a violent felony. Because Petitioner's continuing threat to society was not the only aggravator weighed by the jury, the exclusion of the mitigating evidence was harmless.SeeMoore, 153 F.3d at 1111 (finding harmless error where the defendant should have been allowed to present mitigating evidence regarding his mental condition, but where continuing threat was not the only aggravator). Second, we are not persuaded by Dr. Gelbort's August 28, 1996, affidavit that Petitioner " would be a recurring threat to the community if released, [but] he is virtually no threat within the prison setting." (emphasis added). Neither this report nor Petitioner's medical records refute the allegation that Petitioner is a continuing threat to society. Consequently, after reviewing the record in this case, we are not left with "a significant doubt that this evidence would have caused at least one juror to choose life rather than death."Moore, 153 F.3d at 1110. Accordingly, the district court did not err in denying relief on this claim.

2. Investigator & Forensic Expert ...

On February 12, 1991, counsel filed a motion seeking the appointment of a private investigator. Counsel renewed the motion on May 17, 1991, stating that a private investigator was necessary "to locate the witnesses and completely explore the parameters of the defense." During a hearing on September 19, 1991, counsel informed the court that he was a solo practitioner and needed an investigator "to aid and assist me in gathering witness' statements and . . . exculpatory evidence in favor of" Petitioner. At the time, the prosecution's witness list included more than fifty names. The trial court denied the request.

From the record, it appears that Petitioner's counsel sought a state-appointed investigator because he needed assistance interviewing the large number of witnesses in the case. We have previously rejected a constitutional claim based on the court's refusal to provide a defense investigator, where the trial attorney had asserted that he was "overworked, [and] many witnesses were involved in the case."Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir. 1986). Likewise, inCastro v. Ward, we rejected the argument that a large number of witnesses necessitated the appointment of an investigator. 138 F.3d 810, 826 (10th Cir. 1998). Here, Petitioner offered the trial court nothing more than "undeveloped assertions"that the requested assistance would have been beneficial in trial preparation. Without more, we find Petitioner failed to meet his burden of showing that investigative assistance was necessary to an adequate defense.SeeCaldwell v. Missississippi, 472 U.S. 320, 323 n. 1 (1985) (no due process violation where the petitioner offered "little more than undeveloped assertions that the requested assistance would be beneficial").

On September 19, 1991, Petitioner asked the trial court for a state-appointed forensic expert to counter the state's anticipated evidence regarding hair and fiber samples and the medical examiner's report. Counsel stated that he needed the expert assistance to review the potential evidence, evaluate its weight and discover any exculpatory evidence. The trial court denied the request. We find no constitutional error in the denial. Petitioner merely speculates that the requested assistance would have been beneficial. Therefore, we find that Petitioner has failed to show that the denial of a forensic expert substantially prejudiced his case.SeeMoore, 153 F.3d at 1112. . . .

Habeas Cases

973639P.pdf04/13/99 Nichols v. Michael Bowersox Eighth Circuit, en banc, depositing pro se habeas corpus petition in prison mailbox establishes filing date; Houston v. Lack prison mailbox rule extended to pro se habeas corpus petitions.

981153P.pdf04/16/99 Moore v. USA Eighth Circuit holds that. April 24, 1997, was the final date for filing a motion under Section 2255's one-year grace period; prison mailbox rule applies to the filing of a Section 2255.

Smith v. MannSecond Circuit holds trial in abstentia is not volitive of the constitution in these circumstance.

Prisoner's Rights/Governmental Misconduct Cases

Brown v. ShanerSixth Circuit examines relation-back to claims arising out of a police misconduct case where the plaintiff inartfully plead the case by failing to sue the plaintiff's in anything but their official capacity until after the statute of limitations ran. See Fed. R. Civ. Proc Rule 15.

In Depth

This week covers the April 24, 1999 March on Philadelphia for the Millions for Mumia campaign.

9 am Youth Rally

12 noon Main Rally, west side of City Hall, Market & 15 Streets.

2:30 pm March through downtown Philadelphia, returning to City Hall.

4:00 pm Wrap-Up Rally, City Hall

Directions to Veterans Stadium:

All Buses must go directly to Veterans Stadium in South Philadelphia for passenger drop-off and parking. Cars and vans can also park there. The parking lot will be open from 8 am to 8 pm.

Veterans Stadium is located in south Philadelphia, just west of the Walt Whitman Bridge, at Pattison Avenue and Broad Street. It is1.5 miles directly south of City Hall.

Directions to Veterans Stadium Parking Lot: Take Exit 14 off I-95.

Take Broad Street north to Pattison Avenue. Make a right on Pattison Avenue. Go three blocks west on Pattison Ave to the Stadium Parking lot, which is between 10 and 11 Street on the north side of Pattison.

The entrance is on the left just before 10 Street.

This is the lot designated for the Mumia March. There are severallots so make sure you are going into the right lot. There will be a Mumia March Information Table outside the entrance to the lot.

The charge for parking is $11 for buses; $6 for vans and cars. Be sure to take note of the location of your parked vehicle so that you can findit for the return trip.

Subway Directions from Veterans

Stadium to Rally Site:

You will be taking the Philadelphia subway (called SEPTA) to the City Hall Rally Site. Walk three blocks west on Pattison Ave. to Broad Street to the train station. Purchase two tokens (for a total of $2.30) for the round trip. Take the Broad Street line to the City Hall (Market Street & 15 Street) stop.

After the demonstration, give yourself ample time to return to your vehicle (at least 45 minutes. Take the Broad Street line south to the last stop (Pattison Ave.) Walk three blocks east on Pattison Ave. to the Parking Lot. The Parking lot is on the left between 10 and 11 Streets.

Disabled assistance:

SEPTA is not wheelchair accessible. If you cannot travel on the subway train because of a disability, please go to Information and Volunteers Table at the exit to the Veterans Stadium Parking Lot. Van transportation will be available to the City Hall Rally site. The gathering site for those needing disabled assistance and/or transportation during the march will be at 15 Street near South Penn Square, near the right side of the stage facing the stage. The rally will be signed for the deaf.

Other Important Information:

Volunteers are urgently needed on April 24 to be bus greeters, staff information tables, collect names, assist disabled people, and as security marshals. Please sign up with the Philadelphia or New York Office in advance if you can help that day. A volunteers’ check-in table will be set up early the morning of April 24 at City Hall.

Bring food and water. Rally organizers are asking for an "economic boycott" of Philadelphia.

If you can, bring a portable radio or boom box in case the crowd is so large that the rally sound is hard to hear. WHAT radio 1340 am is going to do a live broadcast of the rally.

Emergencyphone numbers:

215-476-8812Day of 215-563-7110

From: ICFFMAJ@aol.com

Urgent !!!!!!

Millions for Mumia 2,000 Security Volunteers

needed to help with :

*Traffic and Transportation details

*Assist with Crowd Control

*General Demonstration & Protest Assembly Maneuvers

*Special Guest and Program detail

*Internal and External intell.

Requesting all Former Military, Security Teams/Organizations, Former Fruit of Islam, Security from Million Man, Woman, Youth March and all individuals able to assist with the safety and security of the demonstration. If you have any questions please feel free to contact (215)476-8812 or (215)476-5416 All registration forms can be completed at 4601 Market St. Headquarters for "Millions for Mumia."

National Peoples Campaign 212-633-6646

email:npcny@peoplescampaign.org

to post info:ejpnpc1@hotmail.com

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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