Cases out of the Fifth & Sixth Circuit lead off this edition. In Soffar v. Dretke the Fifth Circuit grants relief as, DPIC notes, "no evidence linking Soffar to the crime was ever found and his accounts of the murders, contained in what are believed to be false confessions, varied vastly from several eyewitnesses, Soffar’s defense attorney failed to pursue evidence that could have proven his client’s innocence. The attorney did not interview the sole surviving witness to the murders nor conduct a ballistics investigation that could have strengthened his case. In its opinion, the court wrote, 'Defense counsel offered no reasonable explanation for why they did not take advantage of these opportunities. [It was] likely the result of indolence or incompetence'.”

The Sixth Circuit in In re Lott, addresses the issue of when a second habeas petition will be entertained. Noting claims of potentially "egregious" prosecutorial misconduct a split panel of Sixth Circuit grants a stay and orders the district court to entertain the petition. Notably, the Supreme Court did not lift the stay.

The Moussaoui decision is also covered this week. To be blunt, I have been in trial all week and have not had a full opportunity to "digest" what has all the hallmarks of a landmark decision, assuming it is left to stand. I am relying on Joanne Mariner's article at Writ entitled What the Asterisks Can't Hide: Problems with the Fourth Circuit's Opinion in the Moussaoui Case to examine that decision in the Focus section.

Elsewhere, in a fairly shocking opinion, the Eleventh Circuit in Conklin v. Schofield upholds a death sentence despite trial counsel only having thirty-seven days from the appointment to the commencement of Conklin's capital trial. Interrelated claims of failure to effectively cross, present mitigation evidence, retain experts, etc., likewise denied.the San Jose Mercury notes that Gov. Schwarzenegger appears to be preparing to politicize appellate capital defense in California by firing State Public Defender Lynne Coffin who had been credited with resurrecting the reputation of that Office. Jim Lee Clark who had been listed with a serious execution date has received a stay in Texas to permit a review of mental retardation claims

Finally, you will notice that most opinions have a Lexis cite provided. If you need to track down an opinion Lexisone.com provides free acces to all the Lexis cited opinions at http://lexisone.com/caselaw/freecaselaw?action=FCLDisplayCaseSearchForm.

As always, thanks for reading. -k

This edition is archived at http://capitaldefenseweekly.com/archives/040426.htm.

EXECUTION INFORMATION

Since the last edition the following have been executed:

April

23 Jason Byram South Carolina

The following upcoming execution dates are noted:

May

18 Kelsey Patterson Texas

18 Osvaldo Torres Oklahoma----foreign national

21 Sammy Perkins North Carolina

25 John Blackwelder Florida --- volunteer

SUPREME COURT

No cases noted.

CAPITAL CASES (Favorable Disposition)

Soffar v. Dretke, 2004 U.S. App. LEXIS 7793 (5th Cir 4/21/2004) Conviction vacated due to counsel's failure to conduct a rudimentary investigation into certain aspects of the case & the counsel's failure to retain experts that may well have permitted the jury to return a verdict of not guilty.

In re Lott, 2004 U.S. App. LEXIS 8057(6th Cir 4/12/2004) (dissent) ."[T]he egregious prosecutorial misconduct alleged here, if proved, must be deterred. So long as we value the rule of law, such conduct, if it occurred, cannot be tolerated in any kind of case -- much less in death penalty cases.. . . an Order authorizing the district court to proceed with his application is hereby granted and the execution of Lott is hereby stayed pending adjudication in the district court."

Idaho v. Lovelace, 2004 Ida. LEXIS 62 (Id 4/22/2004) Ring error is not susceptible to harmless-error analysis in this case.

Madej v. Briley, 2004 U.S. App. LEXIS 7645 (7th Cir 4/21/2004) The federal district court had ordered a new penalty phase hearing. State did not appeal. The habeas petitioner, prior to the new trial being held, received a commutation from the Governor. State never held a new penalty phase hearing & moved to vacate the district court's order as moot. On appeal the Seventh Circuit holds that since at a new penalty phase hearing a sentence of life or life-without-parole could be imposed, that the State must hold a hearing or face, potentially, being held in contempt.

CAPITAL CASES (Unfavorable Disposition)

United States v. Moussaoui, 2004 U.S. App. LEXIS 7987 (4th Cir 4/22/2004) (dissent) Refusal to allow access to potentially exculpatory al-Qaeda witnesses upheld. The district court's striking of the death penalty as a sanction for alleged discovery abuse by the Justice Department reversed as "[n]o punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national security interests by refusing to produce the witnesses." Defendant permitted to only submit to the jury witness substitutions for live testify, however, the Government will be permitted to censor those substitutions prior to their submission to the jury.

Conklin v. Schofield, 2004 U.S. App. LEXIS 7659 (11th Cir 4/21/2004)(dissent) Thirty-seven days from the appointment of a public defender (including just 3-weeks of having in possession the indictment & relevant evidence) held to be sufficient time to prepare for a capital trial. Interrelated claims of failure to effectively cross, present mitigation evidence, retain experts, etc., likewise denied.

Derosa v. Oklahoma, 2004 Okla. Crim. App. LEXIS 22 (Ok. Crim. App. 4/22/2004) Oklahoma uniform instruction on the "heinous, atrocious, or cruel" aggravating circumstance modified in light of Ring. Relief denied on claims concerning: (1) denial of his change of venue motion;(2) removal of a prospective juror based upon her putative reservations about the death penalty; (3) failure to grant a mistrial after the prosecutor accused defense counsel of lying; (4) the combined effect of prejudicial witness testimony and prosecutorial misconduct; (5) fairly outlandish prosecutorial comments; (5) undisclosed prosecutorial "deals" with witnesses; (6) impermissible buttressing of witnesses; (7) overly emotional victim impact statement; and (8) the "overbroad" nature of the "avoid arrest" aggravator.

United States v. Higgs, 2004 U.S. App. LEXIS 7610 (4th Cir 4/20/2004)(unpublished) Brady claim denied as the new evidence (testimony that another person may have had a motive) even if introduced at trial would not have changed the result.

Soto v. Kentucky,, 2004 Ky. LEXIS 93 (Ky 4/22/2004) (dissent) Relief denied most notably on the trial court's handling of (A) the defendant's desire to control the presentation/self-representation during closing argument; (B) the failure to excuse jurors for cause; (C) defendants right to control the defense as to presentation of EED as a mitigating circumstance; (D) evidentiary issues relating to authentication of government documents; (E) guilt phase instructions as to manslaughter in the second degree and assault in the second degree; (F) penalty phase instructions as to the jury's ability to recommend concurrent/consecutive sentences; and (G) alleged prosecutorial misconduct.

Holland v. Mississippi, 2004 Miss. LEXIS 413 (Miss 4/22/2004) Post-conviction relief denied. Claims found not to be procedurally defaulted include claims relating to: (A) sentencing jury verdict sheet; (B) trial counsel preparation and handling of the testimony of the State's pathologist; (C) failure to seek a continuance; (D) the introduction of certain purportedly inflammatory photographic evidence; (E) failure to present mitigation evidence; (F) failure to challenge the search warrant in this matter; (G) aggravating circumstances not being included in the indictment; (H) limiting instruction on statutory aggravating factor; and (I) denial of request for neurological exam.

Duty v. Oklahoma, 2004 Okla. Crim. App. LEXIS 24 (Ok. Crim. App. 4/23/2004) Guilty plea and waiver of appeal to all but statutory mandated review of sentence affirmed. Death sentence affirmed.

Newbury v. Texas, 2004 Tex. Crim. App. LEXIS 669 (Tex. Crim. App. 4/21/2004) Relief denied, on claims concerning: (A) appellant's requested language in the juror questionnaire; (B) failing to permit inquiry during voir dire if the venireperson had formed any conclusions that would influence their verdict; (C) the prosecutor's prefatory remarks during voir dire explaining the law to the veniremembers; (D) denial of challenges for cause to twelve veniremembers; (E) admission of thirteen autopsy photographs; (F) denial of jury instruction on parole eligibity; and (G) the applicability of Apprendi to Texas's special questions.

Hankins v. Texas, 2004 Tex. Crim. App. LEXIS 670 (Tex. Crim. App. 4/21/2004) Relief denied on claims including; (1) restricting voir dire on the topics enumerated in appellant's offer of proof; (2) failure to ask the venirepersons whether they could "consider and follow" a definition of reasonable doubt; (3) explaination of parole eligibilty; (4) parole eligibilty as a mitigator; (5) instructions on special questions as to burden of proof; (6) denial of instruction about parole for a life eligible capital offender; (7) constutionality of the mitigation issue due to lack of a burden of proof; (8) that the trial court erred in denying a request to conduct a pretrial hearing and gather evidence on the question of the unconstitutional application of the death penalty; (9) trial court's preventing appellant from developing evidence that would call his selection as a death-penalty candidate into question; (10) arrest warrant affidavit insufficient to support a finding of probable cause and (11) appellant's first written statement being not tainted by his illegal arrest.

HOT LIST

Soffar v. Dretke, 2004 U.S. App. LEXIS 7793 (5th Cir 4/21/2004) Conviction vacated due to counsel's failure to conduct a rudimentary investigation into certain aspects of the case & failure to retain experts that may well have permitted the jury to return a verdict of not guilty.

i. Whether counsel were deficient

We first [*90] consider whether Soffar satisfied the first prong of Strickland, i.e., whether counsel's performance was deficient. 466 U.S. at 687. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." Id. at 688. The Supreme Court has declined to articulate specific guidelines for appropriate attorney conduct and instead has emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. We begin our analysis by noting that, as in Strickland, Soffar's claim stems primarily from his trial counsel's decision to limit the scope of their investigation into potential evidence favorable to the defendant. Id. at 672-74. In rejecting Strickland's claim, the Supreme Court defined the deference owed such strategic judgments in terms of the adequacy of the investigations supporting those judgments:Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete [*91] investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Id. at 690-91.

The scope of a defense counsel's pretrial investigation necessarily follows from the decision as to what the theory of defense will be. At the state habeas proceeding, both Cannon's and Stover's testimony made it clear that their defense theory was that Soffar's self-incriminating statements were false and should not be believed. Nevertheless, in spite of this theory of defense, Soffar's defense counsel never attempted to interview Garner, the only known eyewitness, to (1) obtain his description of the perpetrators and his version of the crime events; to (2) determine whether he could testify at trial, the substance of his potential testimony, and whether it would [*92] be consistent with his taped and transcribed statements and any other information he gave to the police; and (3) whether he could identify the perpetrators, had already done so, or attempted to do so. Defense counsel testified that they did not seek to interview Garner because an unspecified person told them Garner was a "vegetable."

"Guided by Strickland, we have held that counsel's failure to interview eyewitnesses to a charged crime constitutes 'constitutionally deficient representation.'" Anderson v. Johnson, 338 F.3d 382, 391 (5th Cir. 2003) (quoting Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994)). In Bryant, the defense counsel did not interview two eyewitnesses and limited his pretrial investigation to examination of the prosecutor's file, discussions with the accused, and a review of the indictment. 28 F.3d at 1418. We observed that "information relevant to [the] defense might have been obtained through better pretrial investigation of the eyewitnesses, and a reasonable lawyer would have made some effort to investigate the eyewitnesses' testimony." Id. (alteration in original) (citation and quotations omitted). [*93] In Anderson, we held that a trial counsel's failure to interview an eyewitness rose to the level of constitutionally deficient performance, given the gravity of the burglary charge, and the fact that there were only two adult eyewitnesses to the crime; and that counsel relied exclusively on the investigative work of the State, basing his own pretrial "investigation" on "assumptions divined from a review of the State's files." Id.

We conclude that Soffar's defense counsel have offered no acceptable justification for their failure to take the most elementary step of attempting to interview the single known eyewitness to the crime with which their client was charged. We conclude that this failure is sufficiently deficient to satisfy the first prong of Strickland.

As we discussed supra, Garner provided the police with four statements and a post-hypnotic interview concerning the crime. Those statements were in the prosecutor's files prior to the trial, and the state habeas court made an express finding that there was no Brady violation because the prosecutor followed an open file policy and kept all reports in Soffar's file, which defense counsel accessed on multiple [*94] occasions. n39 The necessary corollary of this finding is that, except for their gross neglect or oversight, Soffar's counsel must have been aware of the existence of Garner's statements. Garner's statements, as clearly shown in "Appendix A", markedly conflict with Soffar's statements in a number of significant ways, including:

(1) the number of perpetrators;

(2) whether the perpetrator(s) wore a disguise;

(3) the manner in which the perpetrator(s) gained access to the bowling alley;

(4) whether any of the victims screamed;

(5) the number of shots fired by the perpetrator(s);

(6) the victims' positions at the time they were shot; and

(7) how the perpetrator(s) went about emptying the cash register.

Defense counsel, however, chose not to utilize Garner's statements to show reasonable doubt as to the reliability of Soffar's statements and as to whether they were based on his own observations. Furthermore, defense counsel never attempted to interview Garner to determine whether there were any additional inconsistencies that could aid Soffar's defense or whether it would be worth having Garner testify at trial. During the state habeas proceedings, Soffar's defense counsel stated that they did not do so because they had been told by an unspecified person that Garner was a "hopeless vegetable" who could not talk or recognize anyone.

The State argues that defense counsel's decision not to call Garner to testify was excusable as a reasonable and strategic decision. Specifically, the State argues that had Soffar's defense counsel placed Garner on the stand, they would have risked an in-court identification of Soffar by Garner and a potential series of "damning recollections spurred by an in-court confrontation with the assailant." However, an actual failure to investigate cannot be excused by a hypothetical decision not to use its unknown results. This Court has squarely rejected the [*96] State's rationale here C that a failure to interview a witness is excusable as a "strategic decision" if the witness would not have been credible C holding that while:a lack of credibility might support a strategic decision not to call a witness to testify at trial, we explained that a witness's character flaws cannot support a failure to investigate. Without so much as contacting a witness, much less speaking with him, counsel is "ill-equipped to assess his credibility or persuasiveness as a witness." . . . Strickland simply does not "require . . . deference to decisions that are uninformed by an adequate investigation into the controlling facts and law."Anderson, 338 F.3d at 392 (alteration in original) (citations omitted).

As we stated in Soffar I:We find counsel's defense strategy in this regard to be inexplicable. Given the powerfully exculpatory nature of the inconsistencies between Garner's account of events and Soffar's confession, which inconsistencies would render Soffar's confession implausible, one would have expected defense counsel to do everything in their power to get the substance of Garner's police interviews [*97] before the jury either by calling Garner as a witness or by introducing the transcription of these interviews. Defense counsel should have at least interviewed Garner to determine if he could and would testify at Soffar's trial consistent with his (Garner's) prior statements. If Garner was not able or willing to so testify, defense counsel should have offered the prior statements, recorded and transcribed by the police, as record evidence of his testimony. Simply put, we are baffled by defense counsel's strategy, or complete lack thereof, regarding Garner's statements to the investigators.Soffar I, 237 F.3d at 440 n.44. We believe these words continue to ring true particularly given that Garner was the only eyewitness to the crime. In addition, Garner's description of the perpetrator was used to create a drawing that police circulated and the news media broadcast to the public, which indicates that the police believed Garner had sufficient recollection to identify the suspect and thus was not a "hopeless vegetable."

Finally, had Soffar's counsel investigated the circumstances of Garner's statements, they would have realized the value in putting before the [*98] jury the fact that Garner could describe the gunman but could not identify Soffar or Latt Bloomfield at two line-ups conducted by the police. We are convinced that such proof probably would have raised reasonable doubt in the minds of the jurors.

Defense counsel knew that Garner, the only surviving victim and eyewitness to the crime, was still alive and possibly available for them to interview. They also knew that the State had possession of Garner's transcribed statements containing significant exculpatory materials. Because defense counsel knew before trial that there was no evidence independent of Soffar's confessions that tended to connect him with the crimes, that the State would not call Garner as a witness, and that Garner's statements to the police conflicted markedly with Soffar's confessions and substantially tended to exculpate Soffar, there was an apparent reasonable possibility that information and evidence favorable to Soffar's defense could have been obtained through pretrial investigation and interviews of Garner; furthermore, a reasonable lawyer would have made efforts to investigate whether Garner could testify favorably and decide whether Garner's transcribed statements [*99] could and should be introduced as exculpatory evidence. See Anderson, 338 F.3d at 391-92; Bryant, 28 F.3d at 1418 (citing Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir. 1981)); Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978).

The Supreme Court recently determined that "in assessing the reasonableness of an attorney's investigation . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471 (2003). Under the circumstances of this case, we conclude that Soffar's defense counsel's failure to interview Garner, and carefully determine whether to use his prior recorded statements or live testimony at trial was constitutionally deficient performance. See Bryant, 28 F.3d at 1418 (finding that counsel's "failure to interview eyewitnesses to the crime was constitutionally deficient performance").

We also agree with Soffar that his defense counsel were deficient in not seeking out a ballistics expert [*100] when there were such readily apparent discrepancies between the ballistics evidence and the State's theory of the case. The State's theory relied heavily on ballistics evidence to show a correlation between the statement attributed to Soffar and the crime scene. Yet Soffar's defense counsel never even consulted with a ballistics expert. Defense counsel were aware of the inconsistencies between Garner's statements and Soffar's confessions regarding both the number of shots fired and the location of the victims when the shootings occurred. The defense counsel also were aware from the prosecution's file that the police recovered bullets and bullet fragments weighing less than the total weight of five bullets, which tended to corroborate Garner's account of the events. Considering this, it was objectively unreasonable for defense counsel to fail to consult with a ballistics expert to determine whether they could develop expert testimony as to physical evidence that tended to undermine the credibility and reliability of Soffar's confessions.

In Strickland, the Supreme Court recognized that an ineffective assistance of counsel claim based on the "failure to investigate" increases the [*101] temptation to rely on hindsight. 466 U.S. at 689. Thus, the Court noted that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690 (emphasis added). The Court, however, went on to say that "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 690-91.

In Wiggins, the Supreme Court set out to determine whether the attorneys in the underlying capital murder trial exercised "reasonable professional judgment" in their investigation and presentation of mitigating evidence during the penalty phase of the trial. 123 S. Ct. at 2535-42 (quoting Strickland, 466 U.S. at 691 (alteration in original)). In doing so, the Court focused not on whether defense counsel should have presented a mitigation case during sentencing, but rather on whether [*102] "the investigation supporting counsel's decision not to introduce mitigating evidence was itself reasonable." Id. The Court thereafter engaged in an objective review of defense counsel's performance, measuring it for "reasonableness under prevailing professional norms." Id. (citation and quotation omitted). The Court's review documented counsel's efforts in investigating mitigating evidence, which included: (1) arranging for a psychological review of the defendant; (2) reviewing the pre-sentence investigation report; and (3) reviewing the state records reflecting the defendant's various placements within the state's foster care system. Id. at 2536-37. The Court concluded that defense counsel's "decision not to expand their investigation beyond the [pre-sentence and social services] records fell short of the professional standards" that prevailed at the time. . . . Counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. at Id.

Applying the framework established in Wiggins for determining objective reasonableness to the present case, the deficiencies identified [*103] in the performance of Soffar's defense counsel are made even more apparent. n40 As discussed previously, at trial, Soffar's counsel neither presented Garner as a witness nor raised the inconsistencies between Soffar's written statements and the statements made by Garner to the police. In analyzing defense counsel's decision not to present such evidence, we focus on whether the investigation leading up to the decision not to call Garner as a witness or raise these inconsistencies "was itself reasonable." Wiggins, 123 S. Ct. at 2536. The record reflects that Soffar's counsel simply asked an unspecified person about Garner and were told that Garner was a "vegetable." Moreover, defense counsel were aware that the State was not going to call Garner, the only surviving victim and eyewitness to the crime, as a witness. As we have observed repeatedly, defense counsel's decision to not even attempt to interview Garner upon learning this information is remarkable, and the failure to pursue even the most limited of investigations into these matters certainly falls below an objective standard of reasonableness.

Likewise, Soffar's defense counsel chose to do nothing about the ballistics evidence. Had they investigated the evidence and consulted a ballistics expert, they would have been able to make a strategic decision as to whether such information would have helped Soffar's defense. As was made evident during the state habeas proceedings, Soffar's defense counsel would not have had to look far to find a ballistics expert who could have provided testimony to aid his defense.

After analyzing the ballistics evidence, Professor Kenneth Braunstein testified on behalf of Soffar during the state habeas proceedings that the "extra" bullet hole in the carpet, which led the State to conclude that five bullets were fired instead of four, was made by the same bullet that had made a hole in the carpet about a foot away. Braunstein also testified that the shootings likely were not committed in the manner described by Soffar in his statements. Specifically, Braunstein testified that when shot, Felsher was the victim closest to the front door of the bowling alley, and the pattern of the victims' locations when shot was female-male-male-male (Felsher-Sims-Garner-Temple) as Garner had told police (see [*105] "Appendix B"), rather than male-female-male-male (Garner-Felsher-Sims-Temple) as indicated by Soffar's written statements (see "Appendix C"). Ignoring such evidence under the circumstances of this case simply cannot be characterized as the reasonable exercise of professional judgment. Strickland, 466 U.S. at 691.

Soffar's defense counsel, therefore, were deficient for two reasons. First, although defense counsel knew that Garner was the only known eyewitness, were aware the State did not plan to call Garner as a witness, and had access to Garner's taped and transcribed statements, they did not investigate whether the discrepancies between Soffar's written statements taken by the police and Garner's potential testimony or taped and transcribed accounts of the crime would aid the defense. Second, Soffar's defense counsel failed to consult with a ballistics expert although the State's case was largely based on the testimony of a ballistics expert to show a correlation between the physical evidence at the scene of the crime and Soffar's written statements. In our view, Soffar's defense counsel did not make a reasonable decision that further investigation [*106] was not necessary with regards to these two aspects of the case. In fact, during the state habeas proceeding, Soffar's defense counsel offered no reasonable explanation for why they did not take advantage of these opportunities. Failing to do so can not be described as a reasonable exercise of professional judgment or as "part of a calculated trial strategy, but is likely the result of either indolence or incompetence." Anderson, 338 F.3d at 393 (citation and quotations omitted). Therefore, we find that Soffar's defense counsel's failure to investigate these key avenues of evidence was constitutionally deficient, thus satisfying the first prong of Strickland.

In re Lott, 2004 U.S. App. LEXIS 8057(6th Cir 4/12/2004) (dissent) ."[T]he egregious prosecutorial misconduct alleged here, if proved, must be deterred. So long as we value the rule of law, such conduct, if it occurred, cannot be tolerated in any kind of case -- much less in death penalty cases.. . . an Order authorizing the district court to proceed with his application is hereby granted and the execution of Lott is hereby stayed pending adjudication in the district court."

[T]his current application for a second federal petition is, if granted, the first time in a federal court that the “factual predicate” for the constitutional claim would be recognized and adjudicated. Although the “factual predicate” for the claim was discovered prior to the adoption of AEDPA, when new stringent requirements were first imposed in death cases, this is the first time since the adoption of AEDPA that a federal court could consider the merits of the constitutional claim. It is not the fault of Lott or his counsel that this is the first time since AEDPA’s adoption that a federal court could consider the claim on the merits. This means, we believe, that the second petition should be authorized if the petitioner in his application makes simply a “prima facie showing” that the facts underlying the claim “if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).

A “prima facie showing,” as Judge Posner pointed out for the Seventh Circuit, is not a difficult standard to meet:

By “prima facie showing” we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case.

Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997). “Prima facie” in this context means simply sufficient allegations of fact together with some documentation that would “warrant a fuller exploration in the district court.” Those allegations of fact, together with documentation, are clearly presented in the application before us. Judge Posner’s “tight deadline” point is further reinforced by subsection (b)(3)(E), which states that “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Congress has emphasized the need for quick action by the court without further review.

We conclude that this lenient prima facie standard is met and that the matter should be adjudicated. Lott has made a prima facie showing through documents that the prosecutor of Lott’s case fraudulently failed to disclose at trial that the murder victim, before dying, identified a person with a different skin color from Lott as his assailant. The petitioner Lott has also made a prima facie showing that the victim identified his assailant as someone whom he had seen at his local barber shop and that the prosecutor at trial fraudulently refused to reveal this fact as well. In addition, the petitioner Lott has made a prima facie showing that the prosecutor at trial falsely stated to the court that the instrumentality that caused the victim’s death — namely, kerosene lamp fluid — was not present in the victim’s house and had to be brought into the house for the purpose of killing the victim by the petitioner Lott. The petitioner Lott has made a prima facie showing that the victim had a kerosene gas lamp in his home which he used, a lamp that would have used the type of kerosene lamp fluid which caused the victim’s death. Lott has made a prima facie showing that the prosecutor made statements to the court at trial directly contrary to these facts which he knew to be true in order to use the lamp fluid to prove premeditation, an element required in order for the prosecutor to secure the death penalty. Through the citation and quotation of many Ohio opinions, Lott has also made a prima facie showing that the prosecutor has been guilty of similar misconduct in more than ten other cases.(1)

Taking the evidence as a whole, we conclude that petitioner’s application makes a prima facie showing of constitutional Brady error that, if proved in the district court, may be sufficient to cause the fact finder to reach the conclusion beyond a reasonable doubt that the petitioner was not guilty of premeditatedly murdering the victim.

Obviously, the egregious prosecutorial misconduct alleged here, if proved, must be deterred. So long as we value the rule of law, such conduct, if it occurred, cannot be tolerated in any kind of case — much less in death penalty cases.

Accordingly, the application for an Order authorizing the district court to proceed with his application is hereby granted and the execution of Lott is hereby stayed pending adjudication in the district court.

OTHER NOTABLE CASES

None noted.

FOCUS

Joanne Mariner has done it again. In What the Asterisks Can't Hide: Problems with the Fourth Circuit's Opinion in the Moussaoui Case , Mariner examines the Moussaoui opinion in some detail, and pays some attention to those pesky asterisks that repeatedly appear where classified information was deleted. The first part of that article is reproduced below:

Those who like word-guessing games might enjoy the opinion that the U.S. Court of Appeals for the Fourth Circuit handed down last week in the Moussaoui case. Its text is interrupted in several dozen places with sets of asterisks -- **** -- that substitute for classified information that has been excised.

The deletions add a certain atmospherics to the opinion, reminding the reader that the case is about terrorism and national security. Zacarias Moussaoui, the defendant, is an admitted member of Al Qaeda. He was arrested in August 2001, while enrolled in flight training, having raised his instructors' suspicions by his single-minded interest in training on 747 commercial jet simulators that were ill-suited to his limited flying abilities. He now faces capital charges of conspiring in the September 11 terrorist attacks.

What has slowed down the prosecution considerably is the fact that the U.S. has arrested a number of high-level Al Qaeda operatives who, it seems likely, would offer exculpatory testimony in Moussaoui's defense. Moussaoui argues that these men can attest to the fact that he had no knowledge of the September 11 conspiracy.

The question on appeal to the Fourth Circuit was whether the defendant's Sixth Amendment right to "compulsory process for obtaining witnesses in his favor" requires the government to allow Moussaoui to put these detainees' testimony before the jury that will hear his case.

Unmentioned yet lurking in the background of the Fourth Circuit's newly-issued opinion are a couple of essential considerations. One is that if the federal case against Moussaoui falls apart, there is little doubt but that the defendant will be brought to trial before a military commission. The second is that the detainees to whom Moussaoui seeks access are being held in an extraordinary, extra-legal limbo, and neither the district court nor the Fourth Circuit has any way of monitoring their treatment.

Solomonic Justice

The Fourth Circuit's newly-issued opinion is not a clear win for Moussaoui or for the government. Issued by a divided court, as part of a complex package that includes two partially dissenting and partially concurring opinions, the opinion affirms Moussaoui's right to the detainees' testimony but also defers markedly to the government's stated security concerns.

Rather than allowing Moussaoui's lawyers to depose the detained Al Qaeda operatives via remote video hookup -- or, as would normally be the case, to question them at trial before the jury -- the Fourth Circuit has ordered the crafting of written statements that set out the testimony that the witnesses would likely have given.

In other words, while purporting to uphold the constitutional principle of access to exculpatory witnesses, the court has, in practice, barred the defendant from actually exercising that right. The key pending question now is whether the parties will, under judicial pressure, manage to hammer out a negotiated substitute that protects the core interests behind the right.

In its call for written statements instead of depositions, the Fourth Circuit reiterated an idea that it first proposed a year ago. In an order issued in April 2003, the Fourth Circuit had told the district court, which had been requesting the government to permit a video deposition of the detainees, to give the government the opportunity to propose written substitutions. It had emphasized, in advising this alternative, that the district court should assess whether the substitutions would "provide the defendant with substantially the same ability to make his defense" as would the depositions.

What happened subsequently is that the written substitutions offered by the government did not satisfy this criterion. Indeed, as the district court ruled last year, the substitutions were unreliable, incomplete and inaccurate. They could not, in the court's considered view, serve as reasonable stand-ins for witness testimony.

Essentially, what the Fourth Circuit's opinion does now is tell the district court, the government, and Moussaoui to try harder to reach a compromise. To assist this process, its recent opinion goes a step further than its earlier order in describing how the substitutions should be drafted.

The court explains, specifically, that defense counsel should review classified summaries made from the interrogation of the detained Al Qaeda suspects and select excerpts from those summaries that they want to see admitted at trial. The government should, next, review those excerpts and suggest additional material, and the district court should, based on the parties' submissions, take charge of the production of the final written product.

The Military Option

Two factors, neither of which was mentioned by the Fourth Circuit, will continue to affect the progress of the case. The first is that the alternative to the current federal prosecution is a trial before a military commission. For various overlapping reasons, the possibility now seems less urgent than it once appeared (the planned commissions have yet to start functioning, and they now await the Supreme Court's ruling in the Guantanamo case, not to mention the pending federal suit over their rules).

But it remains clear that the option of Moussaoui's transfer to military custody will continue to affect the behavior of all of the actors in this case, from Moussaoui's legal counsel to the judges in charge of the proceedings. Faced with the possibility of being declared "enemy combatants," defendants in other federal terrorism prosecutions have accepted plea bargains. In the present case, the military alternative will most likely encourage defense counsel to agree to less-than-optimal written substitutes for witness testimony.

It will also encourage the courts, to the extent they believe that terrorism prosecutions belong in the civilian justice system, to continue to bend the rules in the government's favor. (Already, the district court implicitly acknowledged these considerations last year when it exercised its discretion not to dismiss the indictment against Moussaoui when the government flouted its deposition orders. Its call for the case to be resolved in "an open and public forum" made its views fairly clear.)

And, most of all, the military option will encourage the government to be intransigent in its demands in the case. As long as the government has no reason to fear the indictment's dismissal as a sanction -- as long as it believes that trial before a military commission would be an equally viable, or even preferable option -- it has no reason to compromise with defense counsel, or even to comply with the rulings of the district court.

FROM AROUND THE WEB

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

NEW RESOURCE: North Carolina Web Site Contains Valuable Information on Moratorium Issue

North Carolina may become the first state to enact a moratorium on executions through the legislative process. A moratorium measure has already passed their Senate and is awaiting action in the House. A new Web site launched by the North Carolina Coalition for a Moratorium, www.ncmoratorium.org, contains a vast amount of information related to this important issue. Among the topics examined are the quality of counsel, innocence, costs, access to DNA testing, deterrence, race, arbitrariness, and public opinion. The site also contains case summaries of North Carolina defendants whose stories speak to the need for a pause in executions. The moratorium bill would allow the state’s capital punishment policies to be reviewed to ensure fairness and accuracy. The measure has received support from both proponents and opponents of capital punishment. See North Carolina Coalition for a Moratorium. See also North Carolina.

State Legislators Advance Bills to Ban Juvenile Death Penalty

Just weeks after legislators in Wyoming and South Dakota passed legislation to ban the execution of juvenile offenders, lawmakers in Florida are on a similar course that may send a bill that eliminates the death penalty for those under the age of 18 to Governor Jeb Bush for signature into law. Members of the Florida Senate passed the juvenile death penalty ban by a vote of 26-12, and the House is expected to take up the measure later this week. Florida House Speaker Johnnie Byrd, who had been opposed to raising the minimum the age for capital offenders, has indicated that he will allow House members to “vote their conscience” when considering the bill. The legislation’s House sponsor, Representative Phillip Brutus of Miami, noted, “I think it will be a pretty strong vote. To invoke the harshest penalty of all – which is death – when somebody is 17 years old is wrong.” If the Florida legislature passes and Governor Bush signs the bill into law, the state will become the 20th in the nation to ban the practice and the third state to enact this policy in 2004. New Hampshire’s House and Senate overwhelmingly voted for a similar bill earlier this month, but Governor Craig Benson has vowed to veto the legislation. The Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. (Various news sources including the Sun-Sentinel of Florida and The Union Leader of New Hampshire, April 27, 2004). See Juvenile Death Penalty.

POSSIBLE INNOCENCE: Texas Man May Soon Be Freed From Death Row

More than two decades after Max Soffar was sentenced to die for a Houston-area triple murder, an appellate court has ruled that his court-appointed attorney inadequately represented him during his 1980 trial and that he deserves to be retried within 120 days or freed from Texas’s death row. Although no evidence linking Soffar to the crime was ever found and his accounts of the murders, contained in what are believed to be false confessions, varied vastly from several eyewitnesses, Soffar’s defense attorney failed to pursue evidence that could have proven his client’s innocence. The attorney did not interview the sole surviving witness to the murders nor conduct a ballistics investigation that could have strengthened his case. In its opinion, the court wrote, “Defense counsel offered no reasonable explanation for why they did not take advantage of these opportunities. [It was] likely the result of indolence or incompetence.”

Three years ago, when the Fifth Circuit of the U.S. Court of Appeals rejected's Soffar's earlier motion for a new trial, Judge Harold R. DeMoss wrote in dissent: “I have laid awake nights agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record. However, my colleagues…have shut their eyes to the big picture and have persuaded themselves that piecemeal justice is sufficient in this case…I am glad I will not be standing in their shoes, if and when Soffar is executed.” Soffar’s current attorney has said that he believes the more recent Fifth Circuit ruling will stand. (Dallas Morning News and KHOU News, April 22, 2004) Read the opinion Soffar v. Dretke. See Innocence. See also, Representation.

NEW RESOURCE: The Problem of False Confessions in a Post-DNA World

“The Problem of False Confessions in a Post-DNA World,” a recent study published in the North Carolina Law Review, found that juvenile offenders were involved in 33% of the cases where the defendant confessed to a crime that he or she did not commit. Ninety-two percent of the cases involved false confessions from individuals under the age of 40, and more than half were under the age of 25. According to the study’s authors, law professors Richard Leo of the University of California at Irvine and Steve Drizin, of Northwestern University, this finding suggests that those under the age of 18 are “more vulnerable to police pressure during interrogation.” The study examined the largest group of proven false confessions involving serious felonies ever collected, many of which were recently confirmed and uncovered through the use of DNA technology. Researchers concluded that false confessions “occur with an alarming frequency,” including about a quarter of all wrongful convictions and in at least 9 cases that ended in a wrongful capital conviction. Leo and Drizin found that factors such as police pressure to solve serious crimes, age of the accused, and the length of the interrogation can play a role in producing a false confession. (See San Diego Union-Tribune, April 15, 2004; 82 North Carolina L. Rev. 891 (2004)). See Innocence. See Resources.

U.N. Human Rights Commission Calls for International Death Penalty Moratorium

By a vote of 29-19, the United Nations Commission on Human Rights passed a resolution calling on all nations to declare a moratorium on executions. The resolution cited concerns about the fairness and accuracy of the death penalty. In order to address these problems, the resolution calls on nations that no longer use the death penalty to remove it from their laws, and for countries that continue to carry out executions to limit the number of crimes that may be punished by death. The resolution stated that justice officials should refuse to extradite individuals who may face execution in another country unless they receive assurances that the death penalty will not be carried out. Among the nations opposing the measure were the United States, Japan, China, India, and Muslim nations including Saudi Arabia. Former Illinois Governor George Ryan, who halted executions in Illinois and commuted the sentences of all death row inmates due to concerns about innocence and fairness, was among those who addressed the commission during its deliberations. The Human Rights Commission is the U.N.’s top human rights body. (Associated Press, April 21, 2004) See International Death Penalty

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