Two favorable cases of note for the week of March 26 to April 2, 2007, State v. Steven Fortin and In re: Kenneth Wayne Thomas. One unfavorable case is noted as well, the Fifth Circuit's United States v. Sherman Fields.

Perhaps the most important decision is that of United States v. Sherman Fields. Fields argued two notable points on appeal, the applicability of the Confrontation Clause to the penalty phase and the applicability of the Daubert standard to the penalty phase. The majority attempted to sidestep the Confrontation Clause issue holding it did not relate to"the government’s effort to establish the statutory aggravating factors that trigger death-eligibility under the Federal Death Penalty Act" and went only to non-statutory aggravators. The panel's majority goes on to differentiate "death-eligibility" questions (that is whether the government has proven the existence of a factor authorizing the death penalty and the actual decision making process about rendering a death sentence. The panel also finds that Daubert does not apply to the determination of future dangerousness in a federal capital trial.

The prosecution in State v. Steven Fortin seeks to introduce evidence of a prior crime that Fortin allegedly committed. The State on interlocutory appeal argued that it was entitled to admit the other crime evidence, amongst other means, through search results of the FBI’s Violent Criminal Apprehension Program (ViCAP) on the basis it is a "signature crime." The State may introduce material details of the sexual assault allegedly committed by Fortin in the other offense, however, the ViCAP data is not admissible to prove a signature crime.

The Fifth Circuit in Thomas grants permission to file a successive habeas petition. The issue for which the permission was granted is whether or not his execution is barred under Atkins v. Virginia. Interestingly thepanel notes in Thomas that one of the old IQ tests at issue measured 77, but in afootnote states that given the inapplicability of the “Flynn effect” the actual measureshould likelyhave been closer to 67.

In the news, Tennessee this week held very limited hearings on potential modifications to their lethal injection regulations/protocols. Texas has taken a huge step towards creation of a state funded postconviction defender’s office for capital cases with passage by the Senate Criminal Justice Committee of SB 1655. The Virginia state legislature failed to override a bill that would have put accomplices to murder at the same risk for execution as the triggerman; the legislature did, however, override vetoes of bills that prescribe the death penalty for people who kill judges or witnesses to influence the outcome of trials.

The Supreme Court on Monday ordered additional briefing in Panetti v. Quarterman on the issue:

“Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the state is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?”

Panetti & Amici’s briefs are available via The Justice Project. Curiously, the Court just addressed this issue several terms ago, Stewart v. Martinez-Villareal, 523 U.S. 637 (1998).

Two pieces of “scholarship” are noted. The Georgetown Law Journal has a student piece entitled ”Challenging the Intrastate Disparities in the Application of Capital Punishment Statute” whose title apply describes its contents. The pseudo-scholarly SCOTUSblog looks at the AEDPA & the problems with its constitutionality & how the Court’s decision Carey v. Musladin interacts with those problems.

Cathy Lynn Henderson execution in Texas was reset for June 13. Bruce Webster, who we have erroneously been listing as having a pending execution date, was stayed in February in light of the litigation in James Roane, et al v. Alberto Gonzales, No. 1:05-CV-2337 (D.D.C.), which appears to be placing on hold, at least for now, all federal executions.

Looking ahead to the next edition, the Fifth Circuit has granted the right to file a successive habeas petition in In re Milton Mathis on mental retardation grounds. The Tenth Circuit has done likewise in George Ochoa v. Sirmons. Finally, in Terrick Nooner v. State the Arkansas Supreme Court has again denied a pro se motion to be executed immediately.

Please note, in order to better accommodate the Yahoo! listserv the formatting below is slightly modified this week. As always thank for reading and if you feel something got missed or you need to let us know about an upcoming event please feel free to shoot us an email. - k

Pending Executions

April

11 James Clark (Texas)

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*

In Favor of Life or Liberty (Week of March 26, 2007)

In re: Kenneth Wayne Thomas, 2007 U.S. App. LEXIS 7459 (5th Cir 3/30/2007)

Permission granted to file a successive habeas petition under Atkins v. Virginia. Interestingly thepanel notes in Thomas that one of the old IQ tests at issue measured 77, but in afootnote states that given the inapplicability of the “Flynn effect” the actual measureshould likelyhave been closer to 67.

State v. Steven Fortin, 2007 N.J. LEXIS 333 (NJ 3/28/2007)

ViCAP database evidence, in most cases is inadmissible, especially under the facts in Fortin . The headnotes also note that: [A] “[s]ignature-crime evidence falls within the category of other-crime evidence, which is governed by N.J.R.E. 404(b).. . . When the signature-like aspect of a crime would not be apparent to the trier of fact, expert testimony may be necessary to explain the significance of the evidence;” [B] “signature-crime evidence may be highly probative” and on these facts “its probative value is not outweighed by its prejudicial effect,” “it is better that the jury know not only the similarities, but also the differences between the [two] crimes. Moreover, to limit the entirety of the [prior offense to merely summary evidence] will likely lead the jury to speculate, perhaps to defendant’s detriment, about the true nature of the crime;” and [C] the trial court should “carefully craft[ ] limiting instructions that explain how and for what purpose the jury is to consider the other-crime evidence in this case.”

Favoring Death ( Week of March 26, 2007)

United States v. Sherman Fields, 2007 U.S. App. LEXIS 7413 (5th Cir 3/29/2007)(dissent)

Confrontation Clause inapplicable to the penalty phase. Future dangerousness doesn't need to meet the Daubert standard. The Government held to have been properly allowed to introduce photos showing the physical evidence in the case had degraded, in order to combat the “CSI effect” on the jury.

Heliberto Chi v. Quarterman, 2007 U.S. App. LEXIS 7462 (5th Cir 3/30/2007) (unpublished)

COA denied: "(1) Chi alleges he was deprived of his rights under the Vienna Convention on Consular Relations when he was not informed of his right to contact the Honduran Consulate, and therefore, the Texas trial court should have suppressed inculpatory statements Chi made to police; (2) Chi alleges Texas' death penalty scheme violates the Equal Protection Clause, under Bush v. Gore, 531 U.S. 98 (2000), because it lacks standards to guide prosecutors regarding whether to seek a death sentence; and (3) Chi alleges his due process rights were violated by the misconduct."

Johnny Ray Johnson v. Quarterman, 2007 U.S. App. LEXIS 7145 (5th Cir 3/28/2007)

"We deny Johnson's request for a COA. We conclude that the district court's holding that Johnson's federal habeas petition was untimely under AEDPA is not debatable among jurists of reason."

Dale Scheanette v. Quarterman, 2007 U.S. App. LEXIS 7590 (5th Cir 3/28/2007)

COA denied on all claims. The defense called two witnesses during the punishment phase that actually bolstered the state's case regarding defendant's future dangerousness. The panel holds defense counsels' decisions to call these witnesses constitute tactical decisions because his attorneys conducted a thorough investigation regarding their potential testimony and decided it was worth the risk to put them on the stand. Relief likewise denied on claims that the "the statute requiring the jury to consider the special mitigation issue prohibits the jury - in its consideration of this issue - from considering evidence that militates for the death penalty." Similarly claim denied relating to whether "the statute requiring the jury to consider the special mitigation issue prohibits the jury - in its consideration of this issue - from considering evidence that militates for the death penalty." Next, the Texas scheme "offends due process of law because the future dangerousness issue dilutes the State's burden of proof and fails to define "probability'." Finally, Scheanette unsuccessfully argues "Apprendi v. New Jersey and Ring v. Arizona to argue that the Texas mitigation special issue is unconstitutional because it does not require the prosecution to prove the nonexistence of mitigating factors beyond a reasonable doubt."

Ex parte James Earl Walker, 2007 Ala. LEXIS 58 (Ala 3/30/2007)(dissent)

Relief denied over a notable claim, despite application of the plain error rule, that inculpatory statements were obtained as the result of an arrest not supported by probable cause.

In re Joseph Hart, 2007 Cal. LEXIS 3093 (Cal 3/28/2007) (unpublished)

Summary denial of a second petition for a writ of habeas corpus on the merits of all but a small handful of 40+ claims.

David Woods v. State, 2007 Ind. LEXIS 168 (Ind 3/26/2007)

"Before us now is Woods's request to litigate a second, or 'successive' post-conviction proceeding involving two claims: (1) that he is exempt from the death penalty because he is mentally retarded, and (2) that his first state post-conviction proceeding was unfair because he had a dispute with his attorneys about strategy. Because we conclude Woods has not met the threshold showing required on either claim, we deny authorization for any further successive post-conviction proceedings."

James Hairston v. State, 2007 Ida. LEXIS 78 (Ida 3/28/2007)

Successive state petition for relief denied. "Hairston has failed to raise his claims in a timely manner and there is no basis for proceeding with this appeal. Because these claims fall outside the narrow exceptions provided in I.C. § 19-2719(5), the trial court's orders are not appealable, and we grant the State's motion to dismiss."

State v. Robert Brandy, 2007 Ohio 1505 (Ohio App Div 3/30/2007)

Relief denied on claim that Brandt had "recently received newly discovered evidence that clearly shows how his conviction was the result of ineffective assistance of trial counsel for counsel[']s failure to call a material eyewitness to the crime."

(Advance Sheet for the 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.

(Advance Sheet for the 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.

In re Milton Mathis, 2007 U.S. App. LEXIS 7557 (5th Cir. 4/2/2007)

Fifth Circuit grants permission to file successive petition alleging mental retardation.

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.

Noncapital of Note

People v LeGrand, 2007 NY Slip Op 02588 (NY 3/27/2007)

The Eyewitness Identification blog note that the New York Court of Appeals in LeGrand held that:"it was an abuse of discretion for the trial court to exclude expert testimony on the reliability of of eyewitness identifications. With respect to the lack of correlation between confidence and accuracy and “the effect of postevent information on accuracy and confidence malleability,” it is error to exclude expert testimony in a case in which the identification is central and there is a lack of corroborating evidence.

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

United States v. Sherman Fields, 2007 U.S. App. LEXIS 7413 (5th Cir 3/29/2007)(dissent)

Confrontation Clause inapplicable to the penalty phase, future dangerousness doesn't need to meet the Daubert standard, and the Government held to have been properly allowed to introduce photos showing the physical evidence in the case had degraded, in order to combat the “CSI effect” on the jury. On the Daubert question Cliff Hutchinson notes:

In November 2001, Sherman Fields bribed a prison guard, escaped, and later killed his girlfriend and attempted to kidnap another woman. His central Texas odyssey ended in his capture, conviction, and ultimately a death sentence, based in part on a forensic psychiatrist’s opinion of future dangerousness, a factor in sentencing. The Fifth Circuit rejected Fields’ Daubert challenge to the psychiatrist. United States v. Fields, No. 04-50393, 2007 WL 926864 (5th Cir. 2007).

At the sentencing trial, the prosecutor “posed a hypothetical, which consisted of the facts of the instant capital murder and some of Fields’s background and criminal history.” Based on this background the expert concluded that there was a “probability of future violence.”

Fields and a supporting amicus, the American Psychological Association, argued that the circuit should adopt the Daubert reliability factors for determining the admissibility of expert evidence at federal death penalty sentencing hearings. But neither the Fifth Circuit nor other circuit courts have applied Daubert to sentencing. The Federal Death Penalty Act (“FDPA”) provides that evidence may be admitted, “regardless of its admissibility under the rules governing admission of evidence at criminal trials.”

Even if reliability was at issue, the Court was informed by the reasoning of Barefoot v. Estelle, 463 U.S. 880 (1983), which upheld the reliability and admissibility of future dangerousness predictions:

In the instant case, Dr. Coons’s testimony was probative because Fields’s jury was required to make an assessment of future dangerousness and because the jury could benefit from the opinion of a psychological expert on that matter. Moreover, as Barefoot noted, the adversarial system reduces any prejudicial unreliability in future dangerousness expert testimony because it can expose the flaws in such testimony. For these reasons, we reject the claim that Dr. Coons’s testimony was so unreliable that the district court abused its discretion by admitting it.

2007 WL 926864 at *21. The opinion pointed out that a more recent dissent by Justice Stevens confirmed the continuing viability of Barefoot. See United States v. Scheffer, 523 U.S. 303, 334 (1998)(“There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant’s ‘future dangerousness’ to determine his eligibility for the death penalty, even if wrong ‘most of the time,’ is routinely admitted.”).

State v. Steven Fortin, 2007 N.J. LEXIS 333 (NJ 3/28/2007)

Although not readily capable of being categorized as either a win or a loss, it gets listed as a win. State sought introduction of ViCAP database evidence tending to suggest, the State posited, Fortin was guilty of the crime charged due to the similarities to a crime for which Fortin had previously been convicted. The sweep through the ViCAP database purportedly led an expert to call these offenses “signature crimes.” On Wednesday the New Jersey Supreme Court, in an otherwise unremarkable case (save for the litigants & those who practice in NJ), holds that ViCAP in most cases is inadmissible, especially under the facts in Fortin . The headnotes also note that: [A] “[s]ignature-crime evidence falls within the category of other-crime evidence, which is governed by N.J.R.E. 404(b).. . . When the signature-like aspect of a crime would not be apparent to the trier of fact, expert testimony may be necessary to explain the significance of the evidence;” [B] “signature-crime evidence may be highly probative” and on these facts “its probative value is not outweighed by its prejudicial effect,” “it is better that the jury know not only the similarities, but also the differences between the [two] crimes. Moreover, to limit the entirety of the [prior offense to merely summary evidence] will likely lead the jury to speculate, perhaps to defendant’s detriment, about the true nature of the crime;” and [C] the trial court should “carefully craft[ ] limiting instructions that explain how and for what purpose the jury is to consider the other-crime evidence in this case.”As we noted at the Daily blog:

The FBI’s Violent Criminal Apprehension Program (ViCAP) database is “a national database of homicides, attempted homicides, and kidnappings maintained by the FBI in Virginia. The database represents three to seven percent of the violent crimes committed since ViCAP’s inception in 1984. Participation is voluntary, and law enforcement agencies that complete the ViCAP form answer numerous questions about the crime for inclusion in the database. The general purpose of the database is to identify similarities in crimes through a computer search isolating particular characteristics in the commission of the offense.”

Prosecutors in several jurisdictions have been attempting to have crime-comparison searches run through the ViCAP database held to be admissible. In State v. Steven Fortin the State sought introduction of ViCAP database evidence tending to suggest, the State posited, Fortin was guilty of the crime charged due to the similarities to a crime for which Fortin had previously been convicted. The sweep through the ViCAP database purportedly led a expert to single out these offenses as a “signature crime.” On Wednesday the New Jersey Supreme Court, in an otherwise unremarkable case (save for the litigants & those who practice in NJ), holds that ViCAP in most cases is inadmissible, especially under the facts in Fortin

Only one case has been brought to our attention in which a signature-crime match from the ViCAP database was found to be admissible, and there the ViCAP searches were offered to support an expert’s conclusion that the criminal behavior — posing bodies of murder victims in staged positions — was highly unusual. Russell, supra, 882 P.2d at 776-77. In that case, in addressing the defendant’s contention that the trial court improperly admitted questionable statistical evidence, the Washington Supreme Court specifically noted that ViCAP was used solely to support the expert’s claim that posing was a rare occurrence and that the expert relied more on case materials and personal expertise than on the database in forming a conclusive opinion. Id. at 777. Unlike in Russell, here the State seeks to introduce the search results of ViCAP as stand-alone evidence of defendant’s guilt.

It is noteworthy that only through the importuning of the Middlesex County Prosecutor’s Office, which was preparing for defendant’s murder trial, did [the investigating officer] input a ViCAP form for the nine-year old [prior crime]. Thus, the [ ] ViCAP form [for the prior crime]was not submitted in the course of an ordinary investigative routine by the Maine State Police, but rather for litigation purposes — to find a match with the [instant] murder. Although the State maintains that the description of the Gardner crime on the ViCAP form is unassailable, it cannot be known in hindsight how the information would have been entered into the system for normal recordkeeping and investigative purposes. That is why the motion judge concluded that the State could not show that [the investigating officer] searches were based on “an unbiased generation of data.”

Likewise the evidence dopes not fit in to a hearsay exception:

We also note that the [prior crime] ViCAP form does not qualify under either the business records, N.J.R.E., or public records, N.J.R.E. 803(c)(8), exceptions to the hearsay rule. N.J.R.E. 803(c)(6) provides that a statement contained in a writing or record is admissible “if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it.” The [other offenses’s] ViCAP form was not filled out in the regular course of business — that is, by a Maine law enforcement official at the time the crime occurred in furtherance of an investigation — but instead was completed by [the investigating officer], nine years after the sexual assault for the purpose of assisting the prosecution of defendant. 803(c)(6).

Despite inadmissibility at trial the Fortin Court:

acknowledge[s] ViCAP’s usefulness as an investigatory tool. The New Jersey Legislature has recognized that ViCAP has an important role to play in assisting law enforcement agencies in identifying and apprehending dangerous criminals. Nonetheless, law enforcement authorities frequently rely on investigative techniques and devices (e.g., polygraph examinations) and information obtained during investigations (e.g., anonymous tips) that are not admissible at trial. Ultimately, in conducting a fair trial, courts must ensure that only reliable evidence is submitted to our juries consistent with our evidentiary rules. As presented, ViCAP does not meet the standards for admissibility of evidence. [citations omitted]

I would be remiss to not note the other holdings in the case. Specifically, as the headnotes reiterate: [A] “[s]ignature-crime evidence falls within the category of other-crime evidence, which is governed by N.J.R.E. 404(b).. . . When the signature-like aspect of a crime would not be apparent to the trier of fact, expert testimony may be necessary to explain the significance of the evidence;” [B] “signature-crime evidence may be highly probative” and on these facts “its probative value is not outweighed by its prejudicial effect,” “it is better that the jury know not only the similarities, but also the differences between the [two] crimes. Moreover, to limit the entirety of the [prior offense to merely summary evidence] will likely lead the jury to speculate, perhaps to defendant’s detriment, about the true nature of the crime;” and [C] the trial court should “carefully craft[ ] limiting instructions that explain how and for what purpose the jury is to consider the other-crime evidence in this case.”