Leading of this week is People v. Harlan. The trial court found that jurors had used "the Bible during deliberations." Finding that the resulting death sentence was inappropriate the Court holds "that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions." All jurors bring their own "backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed."

In Johnson v. United States the Supreme Court addressed what happens when a federal sentence has been enhanced with state court convictions that were vacated after the imposition of sentence. Specifically, the Court holds that if the petitioner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence they would have one year from the vacateur. Here, however, the Court finds that Johnson did not act with due diligence.

Two Louisiana Supreme Court opinions of note are also had. In State v. Higgins the Louisiana Supreme Court vacates a capital murder conviction and imposes a second degree murder conviction in light of a questionable state's witness (please note that case is being tracked as a possible innocence case). In State v. Citizen the same court has held that "the trial judge may halt the prosecution of these [murder] cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel." In slower weeks both cases would have been the lead case of the week.

Elsewhere, Georgia state prosecutors once again have again tried to remove counsel that have a reputation for excellence (here Matthew Rubenstein) and in Williams v. State are again shut down. The Northern District of Iowa has held in United States v. Johnson that "in this case, 'case specific' questions are appropriate--indeed, necessary--during voir dire of prospective jurors to allow the parties to determine the ability of jurors to be fair and impartial in the case actually before them, not merely in some 'abstract' death penalty case." The Fifth Circuit in Brooks v. Dretke grants a COA on jury misconduct claims relating to a juror being arrested during the course of the trial for trying to smuggle a gun into the courthouse.

Prof. Jeff Kirchmeier's article in the Oregon Law Review entitled a "Tear in the Eye of the Law..." (83 Or. L. Rev. 631) is covered in the "Focus" section. Although one might argue with the philosophical points he raises, his extensive list of citations to statutory and non-statutory mitigating circumstance is unbeatable, including some mitigating circumstances that few have ever imagined.

Several new (or new to me) web sites of note should also be mentioned. The Defense Newsletter Blog by the Federal Public Defenders for the Southern District of Florida examines case law fromf the Eleventh Circuit and an exceptionally timely analysis of major federal developments.Profs Dan Markel & Ethan Leib have a new blog relating, at least in theory, to criminal law that looks like it may develop into something interesting http://prawfsblawg.blogs.com. Robert Fratta, on Texas' death row, has also started a blog. Finally, Google has provided a great new investigation tool, especially to those unfamiliar with a given area, http://maps.google.com, that gives overhead satellite and/or map views of any address in the United States (save for several national security areas). I am unsure if one of the reasons more sites are being noted here is the explosion of germane sites on the web, or merely that I am more attuned to having just updated the "handout" of capital & criminal defense sites of note.

Finally, and it should go without saying, the death of Pope John Paul II has pushed the issue of the morality and death penalty back onto the center of the national stage in light of his tireless efforts to reaffirm the sanctity of life. The Conference of Catholic Bishops have republished on the net his views on the subject.

As always, thanks for reading. - k

Execution Information

Since the last edition Glen Ocha was executed in Florida; Ocha was a volunteer. Vernon Evans in Maryland received an unopposed stay. The following cases are pending:

April

15 Richard Longworth South Carolina

20 Douglas Roberts Texas

21 Bill Benefiel Indiana

27 Donald Jones Missouri

28 Mario Centobie Alabama----volunteer

Leading Cases

People v. Harlan , 2005 WL 697020 (Colo. 3/28/2005) "Based on the trial court's findings and competent evidence of jurors' use of the Bible during deliberations, we do not have confidence that the death penalty here was not influenced by extraneous information. Contrary to our prior finding, we determine that Harlan's death sentence may have been imposed under the influence of passion, prejudice, or other arbitrary factors--the use of an unauthorized extraneous text requiring the death penalty for the crime of murder."

Johnson v. United States, 125 S.Ct. 1571 (4/4/2005) Johnson had prior convictions that were used to enhance his sentence on federal charges. Johnson's state court convictions, subsequent to his federal conviction, were vacated. Enhanced sentence for prior convictions, however, upheld, as Johnson had not acted with "due diligence" in vacating his sentence.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Williams v. State, 2005 WL 696714 (Ga. 3/28/2005) Trial court erred in removing over objection trial counsel, Matthew Rubenstein.

United States v. Johnson, 2005 WL 736518 (N.D.Iowa 3/31/2005) "This court acknowledges that Morgan does not require "case-specific" questions during voir dire of prospective jurors in capital cases, but neither does Morgan bar such questions, because the Supreme Court never addressed in Morgan the issue of whether such questions are permissible. The court also does not purport to answer here the question of whether "case specific" questions are constitutionally required during voir dire of prospective jurors in capital cases. Nevertheless, the court holds that, in this case, "case specific" questions are appropriate--indeed, necessary--during voir dire of prospective jurors to allow the parties to determine the ability of jurors to be fair and impartial in the case actually before them, not merely in some "abstract" death penalty case. After all, if the jury selected in this case imposes the death penalty on Angela Johnson, there will be nothing "abstract" about that determination or the penalty imposed."

State v. Wilson , 2005 WL 737493 (La. 3/30/05) Vacated in light of Roper v. Simmons

Baez Arroyo v. Dretke, 2005 WL 705339 (W.D.Tex. 3/29/2005) Vacated in light of Roper v. Simmons

State v. Higgins, 2005 WL 737478 (La. 4/1/05) Death sentence vacated, lesser included charge of second degree murder imposed. Witness identification of Higgins as the perpetrator of this crime held reliable, while conceding that her testimony with regard to whether an armed robbery took place is not. Dissent notes this seems to be undue mental gymnastics.

State v. Citizen, 2005 WL 737421(La. 4/1/05) Challenge to public defender scheme upheld. "We order that unless adequate funds are identified and made available in a manner authorized by law as expressed in this opinion, upon motion of the defendants, the trial judge may halt the prosecution of these cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel or take other measures consistent with this opinion which protect the constitutional or statutory rights of the defendants." As the CrimProf blog explains: "the Louisiana Supreme Court held that, in cases involving indigent defendants, if adequate funds to support assigned counsel's work aren't identified and made available, the defendant has the option to file a motion requesting the trial judge to stop the prosecution of the case until adequate funds are provided. The Court assured that speedy trial mandates still apply according to LA and Federal Rules of Criminal Procedure."

Brooks v. Dretke, 2005 WL 712381(5th Cir 3/29/2005) COA granted on jury misconduct claims related to juror who was charged with crimes during the course of the trial.

Decisions Favoring Death

Cardenas v. Dretke, 2005 WL 705049 (5th Cir. 3/29/2005) Relief & COA denied on cliams relating to: "(1) the trial court violated his constitutional rights by excluding venire members opposed to the death penalty; (2) his counsel provided ineffective assistance by failing to oppose the exclusion of venire members opposed to the death penalty; (3) the trial court violated the Constitution by refusing to allow discussion of his parole eligibility during sentencing; and (4) the failure to advise him of his right to consular assistance under the Vienna Convention on Consular Relations ("Vienna Convention") requires review by the district court to determine if it prejudiced the fairness of his trial." Note that the panel here appears to be holding that a COA should not be granted even where the Supreme Court has granted cert -- put another way, the four Supreme Court justices who agreed to here Medellin are not reasonable jurist.

Nixon v. Epps, 2005 WL 730074 (5th Cir 3/31/2005) Relief denied on claims relating to (A) use of prior violent felony conviction aggravator; (B) ineffective assistance of counsel guilt phase ("(1) failure to adjust trial strategy based upon the state’s evidence that the crime was committed for pecuniary gain, including testimony by Tommy Tucker; (2) failure to protect Nixon’s Sixth Amendment rights during voir dire by failing to object to the state’s use of peremptory challenges; and (3) failure to interview a prospective witness, Wade Carpenter, who testified that he sold Nixon the murder weapon."); (C) penalty phase ("(1) failure to investigate and present mitigation evidence; (2) presenting an unprofessional and prejudicial closing argument; (3) failure to research the facts or law regarding an aggravating circumstance; and (4) failure to object to the state’s statements made during sentencing.").

Benefiel v. Davis, 2005 WL 730576 (7th Cir. 3/31/2005) Motion to recall mandate denied.

Johnson v. State, 2005 WL 729182 (Fla. 3/31/2005) Relief denied on claims relating to:(1) failure to adequately investigate mitigation (2) substitution of counsel; (3) IAC relating to death qualification; (4) pre-trial publicity; (5) failure to cross on alleged illegal arrest; (6) failure to impeach witness on deals with the state; and, (7) IAC for failing to object to cold, calculated, and premeditated (CCP) aggravator and "catch-all" mitigation jury instruction.

Johnson v. State, 2005 WL 729169 (Fla. 3/31/2005) Relief denied on claims relating to: (1) failure to adequately investigate mitigation evidence, including an alleged sexual disorder and adjustment disorder; (2) substitution of counsel; defendant failed to allege or show that he was prejudiced by substitution of two defense attorneys for court-appointed attorney; (3) IAC relating to death qualification; (4) failure to rehabilitate prospective juror; and (5) failure to impeach witness on deals with the state.

Walker v. State, 2005 WL 729505 (Miss. 3/31/2005) Relief denied on a cacophony of issues including: (1) failure to grant request for recess of voir dire; (2) sufficiency of voir dire questioning; (3) sufficiency of evidence; (4) suppression of certain statements and items discovered; (5) admission of certain evidence; (6) directed verdict denial; (7) autopsy photos; (8) jury instruction on flight; (9) failing to grant a requested instruction on the issue of confessions; (10) failing to grant requested jury instructions on Walker's theory of the case and the lesser-included offense; (11) prosecutor's comments amounting to misconduct; (12) anti-passion/sympathy instruction; (13) sentencing instructions; and (14) cumulative errors.

Com. v. Reyes, 2005 WL 737526 (Pa. 3/30/2005) Vacateur of death sentence on post-conviction not appealed. Relief otherwised ednied on (1) alleged violation of corpus delicti rule; (2) Miranda; (3) IAC of trial counsel and appellate counsel as to Miranda related issues; and (4) so-called "layered" claims of ineffective assistance of appellate counsel.

Com. v. Fisher, 2005 WL 723933 (Pa.3/30/2005) "Appellant's PCRA petition was untimely and did not meet any of the exceptions to the PCRA timeliness requirements. We therefore affirm the order of the PCRA court dismissing the instant petition."

Other Notable Decisions

Com. v. Long, 2005 WL 729656 (Pa.Super. 3/31/2005) No right of media to access to names and addresses of jurors in capital murder proceeding.

Excerpts from Leading Cases

People v. Harlan , 2005 WL 697020 (Colo. 3/28/2005) "Based on the trial court's findings and competent evidence of jurors' use of the Bible during deliberations, we do not have confidence that the death penalty here was not influenced by extraneous information. Contrary to our prior finding, we determine that Harlan's death sentence may have been imposed under the influence of passion, prejudice, or other arbitrary factors--the use of an unauthorized extraneous text requiring the death penalty for the crime of murder."

1. Trial Court's Findings of Fact--Extraneous Information Before the Jury

Evidence that jurors introduced and used Bibles, a Bible index, and hand-written notes on biblical passages in the jury room first surfaced during discussions with investigator Knapp in 1995. She spoke with five jurors who confirmed the consideration of such material before the jury reached its death verdict.

All twelve jurors testified at the Bible Motion hearing in 2003. As required by CRE 606(b), we limit ourselves to evidence and trial court findings that concern only whether extraneous prejudicial information was improperly brought to a juror's attention by another juror before the jury reached a verdict. See Wadle, 97 P.3d at 935-36. In addition, we may consider the nature of the extraneous information. See id.

The court found that several of the jurors researched the Bible for passages pertaining to the penalty for murder and shared them with other jurors:

[s]everal jurors researched and reviewed [B]ibles on Friday evening, June 30, 1995, to locate biblical passages pertaining to the penalty for murder. Some of the jurors wrote down the biblical passages they located so that they could take them to the jury deliberation room to share with other jurors on Saturday morning, July 1, 1995, when the jury reconvened to continue their deliberations.

*11 This finding considers facts that are permissible for inquiry under CRE 606(b), Wadle, and Wiser to show: (1) the source of the extraneous information; (2) that jurors initiated the search for the information; and (3) the content of the extraneous material.

The following testimony from juror Eaton-Ochoa at the Bible Motion hearing clearly shows that she studied from her Bible Friday night and wrote down information about the Leviticus and Romans passages:

Q. I'm going to read to you from 13:1 Romans, this Bible [belonging to Yantis-Cummings], all right?

....

"Let every soul be subject to the governing authorities for there is no authority except from God and the authorities that exist are appointed by God." Does that sound more familiar to you?

A. Yes.

Q. Would that be one of the scriptures that you researched?

A. Yes.

....

Q. Now, when you were researching in your Bible index, were you taking notes?

A. Yes.

....

Q. Now, when you were researching, do you also specifically remember looking up a passage, "Eye for an eye, life for a life"?

A. Yes.

Q. And, "If you take a life, you shall be killed"?

A. Yes.

....

Q. Now, I'm going to read to you from [Yantis-Cummings's] Bible....

Your honor, Leviticus, Chapter 24:20.

"Fracture for fracture, eye for eye, tooth for tooth, as he has caused disfigurement of a man, so shall it be done to him." Does that sound familiar as one of the passages that you looked up?

A. There were several scriptures in the Bible that were similar and that's similar to what I was referring to, yes.

Q. All right.

And then it goes on 24:21: "And whoever kills an animal shall restore it, but whoever kills a man shall be put to death." Does that also sound familiar as one of the passages you looked up[?]

A. That's close to it, yes.

Q. And again, you researched and took notes of the passages you looked up?

A. I didn't take notes, I wrote addresses, which would be scripture reference.

Jurors Nowakowski, Yantis-Cummings, and Trujillo also testified at the hearing that they read from Bibles Friday night. Jurors Yantis-Cummings and Trujillo testified that they took notes from their Bibles.

Thus, the court's finding that "jurors researched and reviewed [B]ibles on Friday evening" and "wrote down biblical passages" is supported by competent evidence in the record.

The trial court also found that Bibles and notes concerning biblical passages were taken into the jury room on Saturday morning during the death penalty deliberations and were discussed prior to the death penalty verdict:

[j]urors took [B]ibles and notes with biblical passages concerning the penalty for murder into the jury deliberation room on Saturday morning, July 1, 1995. These materials were read and discussed among and between jurors prior to a verdict being reached.

The evidence supporting these findings is admissible under CRE 606(b) and the Wiser and Wadle standards to establish: (1) the presence of improperly introduced extraneous materials; (2) the content of the extraneous information; (3) whether the materials were used by jurors; and (4) whether they were used before the jury reached its verdict.

*12 In making these findings, the trial court had to engage in difficult credibility determinations. The jurors' testimony was confused and contradictory. Jurors testifying in 2003 at the Bible Motion hearing had difficulty remembering events of 1995. Several who gave statements to investigator Knapp in 1995 contradicted those statements in 2003. Of course, we cannot second-guess determinations of the trial court regarding witness credibility. See People v. Pitts, 13 P.3d 1218, 1221 (Colo.2000)("It is the function of the trial court, and not the reviewing court, to weigh evidence and determine the credibility of the witnesses."); Wilson v. Bd. of County Comm'rs, 703 P.2d 1257, 1259 (Colo.1985)("[I]t is not the province of this court to judge the weight of the evidence or the credibility of the witnesses.").

In the 1995 interviews, conducted three months after the trial, jurors Eaton-Ochoa, Nowakowski, Wright, Trujillo, and Salter mentioned that they saw, brought, or might have seen Bibles, a Bible index, or notes on biblical passages in the jury room during deliberations Saturday morning before the jury reached the death verdict. At the 2003 hearing, Wright and Salter denied or expressed doubt about these prior statements.

But juror Eaton-Ochoa stated in both 1995 and 2003 that she brought a Bible and notes of Bible passages into the jury room. Juror Nowakowski told investigator Knapp that she saw a Bible containing a study index in the room and did not contradict that statement at the hearing. Juror Eaton-Ochoa stated that she used a Bible to show the Leviticus and Romans passages to juror Cordova on Saturday morning in the jury room:

Q. When you resumed your deliberations the following morning, did you bring a Bible into the deliberation room with you?

A. Yes, I did.

....

Q. Was Jesus [Cordova]--did you show [those scriptures] to Jesus [Cordova] before a decision was made?

A. Yes.

In addition to this evidence, juror Cordova stated there was no Bible present during deliberations and no discussion of biblical passages. However, he also stated, erroneously, that the trial court had told the jurors not to bring in Bibles or discuss verses. In addition, he testified that the jurors considered no evidentiary exhibits during their deliberations and that he did not have a roommate during sequestration at the hotel, all of which is contradicted by the record. The testimony of three witnesses impeached all or portions of juror Cordova's 2003 testimony.

Two other jurors, Smith and Taylor, denied the presence of Bibles or discussion of verses. Both stated that someone mentioned biblical information in the jury room Saturday morning, but Smith cut the person off because the discussion was inappropriate. No other juror corroborated this statement.

The trial court noted that some jurors "appeared defensive and at times resentful" about testifying at the hearing, that "the significant lapse of time since the trial had taken a toll on their abilities to recall," and that some jurors granted interviews in 1995 and "[o]thers refused." The court found "[a]ll of these circumstances ... of considerable importance and significantly weighty in assessing the credibility of the witnesses." The court properly made its determinations on credibility, see Pitts, 13 P.3d at 1221, and its finding is supported by competent evidence. Accordingly, we will not second-guess the court's credibility determinations.

*13 Finally, the trial court found that the jurors were exposed in the jury room to passages relating a biblical command for imposition of the death penalty before the verdict was reached.

[j]urors were exposed to [B]ibles and [B]ible passages concerning God's view on punishment for murder while they were sequestered during their deliberations on the penalty phase of the Defendant's trial. This occurred when they took the evening recess on Friday, June 30, 1995 and when they resumed their deliberation on Saturday, July 1, 1995. The biblical passages were read and discussed in the jury room. This occurred prior to the jury reaching a unanimous verdict. The credible evidence does not indicate that jurors were at a particular step in the four step process. What is certain is that a verdict imposing the death sentence had not been reached at the time the extraneous materials were considered.

(emphasis added).

This finding is also supported by evidence that is permissible under CRE 606(b), Wiser, and Wadle to show: (1) the nature of the extraneous information considered; and (2) during which phase of deliberations it was presented.

Perhaps the most telling evidence of extraneous materials again came from juror Eaton-Ochoa. Her testimony was clear that she showed the Leviticus and Romans passages to juror Cordova Saturday morning before the jury reached its death penalty verdict.

Because they are supported by evidence in the record admissible under CRE 606(b), we defer to the trial court's findings of fact that jurors, without authorization from the trial court: (1) researched Bible verses and took notes on them on Friday night; (2) brought one or more Bibles, a Bible index, and notes on certain biblical passages into the jury room during sentence phase deliberations on Saturday morning; and (3) shared in the jury room an authoritative passage commanding the imposition of the death penalty for murder before they reached their verdict imposing the death penalty on Harlan.

We now turn to our legal conclusions based on this evidence and these findings.

2. Conclusions of Law

Our inquiry involves the same two-step process guiding the trial court: whether extraneous information was improperly before the jury and whether use of that information could have influenced the verdict to Harlan's detriment.

a. The Extraneous Information was Improperly Introduced into Consideration

[11] The trial court properly found that one or more jurors introduced one or more Bibles, a Bible index, and notes of Bible passages into the jury room for consideration by other jurors. The trial court had not admitted these materials into evidence, nor did the court's instructions allow their use. Accordingly, these materials were extraneous and their introduction was improper and constituted misconduct.

CRE 606(b) and the standards of Wiser and Wadle do not require a trial court order prohibiting use of particular material before that material may be found to be extraneous and improperly before the jury. The information is improper and its introduction by one juror for consideration by another prior to the verdict constitutes juror misconduct as long as the trial court has delivered standard instructions limiting the jury's consideration to admitted evidence and the court's legal instructions. See Wiser, 732 P.2d at 1141. The court's instructions in this case were sufficient to admonish the jury that they could only consider the evidence and law presented during the trial.

*14 Exposure of a jury to information or influences outside of the trial process itself may require reversal of a criminal conviction "whether or not that exposure occurred as the result of deliberate juror misconduct." Wadle, 97 P.3d at 935. Because the trial court's admonitions were thorough and sufficient to instruct a capital sentencing jury, and because the written biblical materials used in the jury room were neither admitted into evidence nor permitted by court instruction, their use in this case was improper.

b. Prejudice Inquiry

[12] Turning now to the prejudice examination required by Wiser and Wadle, we conclude that there is a reasonable possibility that the Bible material introduced into the jury room could have influenced a typical juror to vote for the death penalty instead of a life sentence, to Harlan's obvious detriment.

Under the state's two-phase jury process in cases where the prosecution seeks the death penalty, the jury may be called upon to reach two verdicts. First, the jury determines whether the defendant is guilty beyond a reasonable doubt of first degree murder. This verdict must be unanimous. Second, employing the four-step process as instructed by the trial court, the jury determines whether to impose life imprisonment or death. See People v. Dunlap, 975 P.2d 723, 736 (Colo.1999). Colorado has tailored its four-step death penalty process to center on the proposition that any individual juror may ultimately trigger life imprisonment by not agreeing to a death penalty verdict.

The first three steps are: (1) the prosecution must prove beyond a reasonable doubt that at least one aggravating factor exists; (2) each juror must consider whether any mitigating factors exist; and (3) the jury must unanimously decide whether any mitigating evidence outweighs the aggravating factors. See Woldt v. People, 64 P.3d 256, 264 (Colo.2003); Dunlap, 975 P.2d at 736. Only if the jury finds that the mitigating evidence is outweighed by aggravating factors does it proceed to the fourth step. Dunlap, 975 P.2d at 736.

In order to impose the death penalty, during the fourth step the jury must find that it is convinced beyond a reasonable doubt that death is the appropriate sentence, its verdict must be unanimous, and its imposition of the death penalty must not be influenced by passion, prejudice, or any other arbitrary factor. See Harlan, 8 P.3d at 499; Dunlap, 975 P.2d at 736; see also Woldt, 64 P.3d at 264 ("Colorado's fourth step requires the trier of fact to consider all relevant evidence.")(emphasis added). In reaching its ultimate verdict, the jury may consider all the evidence introduced at trial, as well as the defendant's statement in allocution. Any one juror, by holding out against a unanimous verdict of death, can require imposition of life imprisonment without parole. See Woldt, 64 P.3d at 264.

Both Wiser and Wadle address jury verdicts in the guilt phase of criminal trials. Of course, it is only the unusual criminal case in which the jury is called upon to reach a second verdict, such as in the unique circumstances in which a jury might impose the death penalty. The Wiser and Wadle precedent is especially appropriate in a capital case, where the extraneous information improperly introduced into consideration may influence a typical juror to vote for a death sentence instead of voting for life imprisonment without parole.

*15 We now consider the same prejudice factors we considered in the Wiser and Wadle analyses.

First, we consider how the extraneous information related to critical issues in the case. Here, the written biblical material was directly related to the ultimate issue for jury determination, a sentence of life or death.

Second, we consider the degree of authority represented by the extraneous information. In Wadle we found that scientific information from the internet would be considered authoritative by typical lay jurors. 97 P.3d at 937-38.

The Bible and other religious documents are considered codes of law by many in the contemporary communities from which Colorado jurors are drawn. The book of Leviticus is one of the first five books of the Old Testament, which are considered the books of law, and it contains "ritual laws prescribed for the priests" and is "almost entirely legislative in character." Holy Bible (Papal Edition), "Introduction to the Books of the Old Testament" at xiii. Romans is contained in the New Testament and may be characterized as "a powerful exposition of the doctrine of the supremacy of Christ and of faith in him as the source of salvation." Id., "Introduction to the Books of the New Testament" at xxxix. There can be little doubt that the Bible, including these two texts, is more authoritative to many typical citizens than the internet. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989)(considering jurors' consultation of a Bible and holding that "[e]specially when, as here, such arguments come from a source which 'would likely carry weight with laymen and influence their decision,' the effect may be highly prejudicial to the defendant")(internal citations omitted).

Third, we consider how the information was acquired. Without authorization from the trial court, one or more jurors independently researched the extraneous written biblical material for presentation to other jurors.

Fourth, we consider whether the information was shared with other jurors in the jury room. It was. Juror Eaton-Ochoa showed the passages to juror Cordova, and the discussion of the texts possibly included other jurors.

Fifth, we consider whether the information was considered before the jury reached its verdict. After hearing admissible testimony and making its credibility determinations, the trial court found that jurors considered the Leviticus and Romans passages before they reached their death penalty verdict. Reviewing the evidence, the court found that it could not determine at what step in the four-step deliberation process jurors considered the Bible texts. In any event, Wiser and Wadle require only that the improper, extraneous information is considered before the jury reaches its verdict and could influence the verdict to the detriment of the defendant.

Finally, we consider whether a typical juror could have been influenced by the Leviticus and Romans passages and whether such influence would or would not be detrimental to Harlan. The question here is not whether the jury's verdict actually turned upon consideration of the Bible texts, but whether a typical Colorado juror could be influenced to vote for the death penalty by biblical text introduced into the jury room without authorization.

*16 The Leviticus text is written in the first person voice of God and commands death as the punishment for murder. The Romans text instructs human beings to obey the civil government. Here, the State of Colorado was seeking the death penalty. If the jury was unable to reach a unanimous verdict of death, the trial court would have been required to impose a life sentence without the possibility of parole. Drawn from an array of typical jurors in Colorado, at least one juror in this case could have been influenced by these authoritative passages to vote for the death penalty when he or she may otherwise have voted for a life sentence. All the indicia of prejudice considered by Wiser and Wadle for reversal of jury verdicts are more than met here.

In Dunlap, we cited with approval the United States Supreme Court's admonition that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Dunlap, 975 P.2d at 763 (quoting Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). The Caldwell Court was referring to a prosecutor's argument that the jury need not be concerned about imposing the death sentence because it would be automatically appealed to the state supreme court.

How much more persuasive to a typical juror, then, is a biblical text relieving the juror from his or her individual responsibility to determine whether to commit a person to death because God commands that result? A religious text mandating the death penalty meets the Wiser and Wadle standard of extraneous information creating a reasonable possibility that a typical juror could be influenced in voting on the verdict.

In so holding, we do not suggest that the jurors who served in this case were unable to distinguish between religious and state law. Neither do we hold that consideration of the text actually produced the death penalty verdict. To the contrary, CRE 606(b) prevents us from considering any juror testimony that addresses the jury's deliberations or a juror's thought process. Our legal analysis here is far from an inquiry that emphasizes the form of the religious texts considered here over their substance. Rather, our jurisprudence has developed the Wiser and Wadle objective typical juror test for ascertaining prejudice as a means to prevent invasion of the jury's deliberative process while protecting the defendant's right to a verdict untainted by extraneous prejudicial texts. We conclude that introduction of the Bible by a juror to demonstrate to another juror a command of death for murder created a reasonable possibility that a typical juror could have been influenced to vote for a death sentence instead of life; consequently, we must uphold the trial court's judgment vacating the death sentence and sentencing Harlan to life imprisonment without parole. [FN5]

*17 We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs in making the extremely difficult "reasoned judgment" and "moral decision" he or she is called upon to make in the fourth step of the penalty phase under Colorado law. We hold only that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions.

We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed. The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations; jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts that could prejudicially influence the verdict.

The written word persuasively conveys the authentic ring of reliable authority in a way the recollected spoken word does not. Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a "fact" is not one presented in evidence in this case and such a "legal instruction" is not the law of the state or part of the court's instructions.

From 1861 until 1901, the law of Colorado did impose a mandatory death sentence for those who committed first degree murder. See, e .g., Act of Nov. 5, 1861, div. IV, § 20, 1861 Colo. Terr. Sess. Laws 290, 292-93 ("The punishment of any person or persons of the crime of murder shall be death."). In 1901, reinstating capital punishment after a four-year period during which it was abolished, the General Assembly introduced jury discretion in choosing a life sentence or the death sentence when a defendant was convicted of first degree murder. Act of May 2, 1901, ch. 64, Sec. 2, § 1176, 1901 Colo. Sess. Laws 153, 154 ("if murder of the first degree, the jury shall in its verdict fix the penalty to be suffered by the person so convicted, either at imprisonment for life at hard labor in the penitentiary, or at death").

In 1994, when Harlan killed Rhonda Maloney and shot Jaquie Creazzo, the law of Colorado provided that a jury must determine whether a defendant convicted of first degree murder must be sentenced to life or death according to a very specific and discrete decision-making process, which was the process the jury was charged to use in this case. See § 16-11-103(2)(a),(b) 8A C.R.S. (Cum.Supp.1994)(providing for the four-step jury deliberation process outlined above); Woldt, 64 P.3d at 264. Not only does the law provide for jury discretion on this matter, but it allows for a single juror to cause the imposition of a life sentence if he or she does not agree that the death sentence is required. See Dunlap, 975 P.2d at 736.

*18 In a community where "Holy Scripture" has factual and legal import for many citizens and the actual text introduced into the deliberations without authorization by the trial court plainly instructs mandatory imposition of the death penalty, contrary to state law, its use in the jury room prior to the penalty phase verdict was prejudicial to Harlan.

Johnson v. United States, 125 S.Ct. 1571 (4/4/2005) Johnson had prior convictions that were used to enhance his sentence on federal charges. Johnson's state court convictions, subsequent to his federal conviction, were vacated. Enhanced sentence for prior convictions, however, upheld, as Johnson had not acted with "due diligence" in vacating his sentence.

[1] This case presents the distinct issue, of how soon a prisoner, successful in his state proceeding, must challenge the federal sentence under § 2255. The resolution turns on understanding what "facts" affecting an enhanced sentence could most sensibly fall within that term as used in the fourth paragraph of the § 2255 limitation provision, under which the one year runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Johnson says that the order vacating his prior conviction is the factual matter supporting his § 2255 claim, discovery of which triggers the refreshed 1- year period. The Court of Appeals majority said no because it understood a legally operative order of vacatur to be a mandate of law or a consequence of applying law, and therefore distinct from a matter of "fact" as Congress used the term in § 2255. 340 F.3d, at 1223. The United States does not endorse that law-fact distinction, but argues that the facts supporting Johnson's § 2255 claim, for purposes of the fourth paragraph, are the facts on which he based his challenge to the validity of his state convictions.

We think none of these positions is sound, at least in its entirety. As for the Government's proposed reading, certainly it is true that the circumstances rendering the underlying predicate conviction invalid are ultimate subjects of fact supporting the § 2255 claim, in the sense that proof of those facts (or the government's failure to negate them) is necessary to vacate the prior state conviction and eliminate the ground for the federal enhancement. But this is not enough to fit the Government's position comfortably into paragraph four. The text of § 2255, ¶ 6(4), clearly links the running of the limitation period to the discovery of the "facts supporting the claim or claims presented," but on the Government's view, the statute of limitations may begin to run (and may even expire) before the § 2255 claim and its necessary predicate even exist. Prior to the federal conviction, a petitioner has no § 2255 claim because he has no enhanced federal sentence to challenge; and prior to the state vacatur, which Daniels makes a necessary condition for relief in most cases, a petitioner cannot obtain relief under § 2255. Cf. Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (statutes of limitations ordinarily do not begin to run until a plaintiff's complete cause of action has accrued). Hence, it is highly doubtful that in § 2255 challenges to enhanced sentences Congress would have meant to start the period running under paragraph four on the discoverability date of facts that may have no significance under federal law for years to come and that cannot by themselves be the basis of a § 2255 claim, Daniels v. United States, supra, at 376, 121 S.Ct. 1578.

There are further reasons against applying the fourth paragraph as the Government would. Congress does not appear to have adopted a policy of enhancing federal sentences regardless of the validity of state convictions relied on for the enhancement. Custis and Daniels were decided on just the contrary, and unchallenged, understanding; it would certainly push the limits of coherence for the Court now to apply the fourth paragraph in a way that would practically close the door to relief that each of those cases specifically left open. [FN5] Nor is there any reason to think Congress meant the limitation period to run earlier for the sake of preserving finality of state convictions; States are capable of providing their own limitation periods (and most of them would have barred Johnson's challenge). [FN6]

Johnson's argument improves on the Government's proposal by pegging the limitation period to notice of the state order eliminating the predicate required for enhancement, which is almost always necessary and always sufficient for relief. We do not find his proposal vulnerable to the point made by the majority of the Court of Appeals, that an order vacating a conviction is legally expressive or operative language that may not be treated as a matter of fact within the meaning of the statute. We commonly speak of the "fact of a prior conviction," e.g., Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and an order vacating a predicate conviction is spoken of as a fact just as sensibly as the order entering it. In either case, a claim of such a fact is subject to proof or disproof like any other factual issue.

But Johnson's take on the statute carries anomalies of its own, one minor, one more serious. It is strange to say that an order vacating a conviction has been "discovered," the term used by paragraph four, and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a proceeding in which the § 2255 petitioner was the moving party. By bringing that proceeding, the petitioner causes the factual event to occur, after all, and unless his mail goes astray his prompt discovery of the crucial fact is virtually guaranteed through official notice.

A more serious problem is Johnson's position that his § 2255 petition is timely under paragraph four as long as he brings it within a year of learning he succeeded in attacking the prior conviction, no matter how long he may have slumbered before starting the successful proceeding. If Johnson were right about this, a petitioner might wait a long time before raising any question about a predicate conviction, as this very case demonstrates. Of course it may well be that Johnson took his time because his basic sentence had years to run before the period of enhancement began. But letting a petitioner wait for as long as the enhancement makes no difference to his actual imprisonment, while the predicate conviction grows increasingly stale and the federal outcome is subject to question, is certainly at odds with the provision in paragraph four that the one year starts running when the operative fact "could have been discovered through the exercise of due diligence." And by maximizing the time that judgments are open to question, a rule allowing that kind of delay would thwart one of AEDPA's principal purposes, Duncan v. Walker, 533 U.S., at 179, 121 S.Ct. 2120; Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), a purpose that was also central to our decisions in Custis and Daniels, see supra, at ---- - ----6-7.

[2] We think neither anomaly is serious enough, however, to justify rejecting Johnson's basic argument that notice of the order vacating the predicate conviction is the event that starts the one year running. Our job here is to find a sensible way to apply paragraph four when the truth is that with Daniels not yet on the books AEDPA's drafters probably never thought about the situation we face here. Of course it is peculiar to speak of "discovering" the fact of the very eventuality the petitioner himself has brought about, but when that fact is necessary to the § 2255 claim, and treating notice of it as the trigger produces a more reasonable scheme than the alternatives, the scheme should be reconciled with the statutory language if it can be. And here the fit is painless, if short on style.

While it sounds odd to speak of discovering a fact one has generated, a petitioner does not generate the fact of vacatur all by himself. He does, after all, have to learn of the court's response in the state proceeding, and receiving notice of success can surely qualify as a kind of discovery falling within the statutory language.

That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The answer is that diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The important thing is to identify a particular time when the course of the later federal prosecution clearly shows that diligence is in order. That might be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first date would require the quickest response and serve finality best, but it would produce some collateral litigation that federal acquittals would prove to have been needless, and it shares the same disconnection from the existence of a § 2255 claim as the Government's view of the relevant "facts," see supra, at ---- - ----8-9. If we picked the third date, collateral litigation would be minimized, but finality would come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and settling on the date of judgment as the moment to activate due diligence seems best to reflect the statutory text and its underlying concerns. After the entry of judgment, the subject of the § 2255 claim has come into being, the significance of inaction is clear, and very little litigation would be wasted, since most challenged federal convictions are in fact sustained.

The dissent, like Johnson, would dispense with any due diligence requirement in seeking the state vacatur order itself, on the ground that the States can impose their own limitation periods on state collateral attacks, as most States do, post, at ----6 (opinion of KENNEDY, J.). But the United States has an interest in the finality of sentences imposed by its own courts; § 2255 is, after all, concerned directly with federal cases. As to those federal cases, due diligence is not a "requirement of [our] own design," post, at ----1, but an explicit demand in the text of § 2255, ¶ 6(4), one that reflects AEDPA's core purposes, supra, at ----11. The requirement of due diligence must therefore demand something more than the dissent's willingness to accept no diligence at all, if the predicate conviction occurred in a State that itself imposes no limit of time for collaterally attacking its convictions. [FN7]

The dissent suggests that due diligence is satisfied by prompt discovery of the existence of the order vacating the state conviction. Post, at ---- - ---- 4-5. Where one "discovers" a fact that one has helped to generate, however, supra, at ---- - ----11-12, whether it be the result of a court proceeding or of some other process begun at the petitioner's behest, it does not strain logic to treat required diligence in the "discovery" of that fact as entailing diligence in the steps necessary for the existence of that fact. To see why this is so, one need only consider a more commonplace use of the paragraph four limitation rule. When a petitioner bases his § 2255 claim on the result of a DNA test, it is the result of the test that is the "fac[t] supporting the claim" in the § 2255 motion, and the 1-year limitation period therefore begins to run from the date the test result is "discovered." Yet unless it is to be read out of the statute, the due diligence requirement would say that the test result only triggers a new 1-year period if the petitioner began the testing process with reasonable promptness once the DNA sample and testing technology were available. Under the dissent's view, however, the petitioner could wait untold years (perhaps until the death of a key prosecution witness) before calling for the DNA test, yet once he "discovered" the result of that test, he would get the benefit of a rejuvenated 1-year period regardless of his lengthy delay. Such a result simply cannot be squared with the statute's plain text and purpose.

[3] We accordingly apply the fourth paragraph in the situation before us by holding that from November 29, 1994, the date the District Court entered judgment in his federal case, Johnson was obliged to act diligently to obtain the state-court order vacating his predicate conviction. Had he done so, the 1-year limitation period would have run from the date he received notice of that vacatur. [FN8]

Focus

Prof. Jeff Kirchmeier's article in the Oregon Law Review entitled a "Tear in the Eye of the Law..." (83 Or. L. Rev. 631) earns the "Focus" position this week. Although the overall thrust of the article is about the philosophical justifications for the death penalty in light of the legal system in the United States, it contains a fully extensive list of citations to statutory and non-statutory mitigating circumstance that have been used around the country. The intro follows:

Throughout history, members of society have committed acts that violate a social code, and society's dilemma has been the question of how to deal with these crimes. Punishment issues are of such import to humans that world religions and mythology often include tales of punishments for transgressions. For example, *632 the gods punished Prometheus for stealing fire, [FN2] and Sisyphus' punishment was to eternally roll the stone up the hill. [FN3] God punished Adam and Eve for eating from the Tree of Knowledge. [FN4] Cain later slew Abel, so God banished Cain, [FN5] who responded, "My punishment is greater than I can bear." [FN6] Similarly, the Qur'an, the Hindu Bhagavad Gita, and Buddhist Dhammapada address retribution for the wicked. [FN7]

Today, the struggle continues as American society debates the benefits of tough prison sentences, the death penalty, and "three strikes" laws. The theories used to justify the use of punishment usually center on two main justifications: (1) utilitarian justifications such as deterrence, incapacitation, and rehabilitation; and (2) retributive justifications. Under utilitarian theory, punishment is used to prevent offenders from hurting other people and to serve as a warning to others. [FN8] Under retributive theory, some people just "deserve" punishment on moral grounds. [FN9] The utilitarian and retributive justifications appear throughout the history of our criminal justice system in both case decisions [FN10] and in scholarship. [FN11] And while the former justification embraces the theory that criminal behavior may be controlled by the threat of *633 punishment, the latter embraces the theory that some people simply are unquestionably evil. [FN12]

There is, however, another view about the relationship between crime and punishment that has been around for centuries. Some philosophers, writers, lawyers, and judges have argued that criminals have no choice in how they act not because they are inherently "evil" but because they are a product of their genes and their environment. Plato wrote, "For no man is voluntarily bad; but the bad becomes bad by reason of an ill disposition of the body and bad education, things which are hateful to every man and happen to him against his will." [FN13] Victor Hugo predicted that society eventually would come to see crime as a "disease" because crime is caused by factors beyond the actor's control. [FN14] In 1884, John Peter Altgeld wrote the book Our Penal Machinery and Its Victims, which argued that society should focus its resources on addressing the causes of crime instead of punishing wrongdoers. [FN15] The book would influence Clarence *634 Darrow, [FN16] who would later argue that the criminal justice system should be abolished. [FN17] In the 1970s, Judge David Bazelon of the U.S. Court of Appeals for the D.C. Circuit raised the argument that when assigning criminal culpability, courts should consider the "rotten social background" of defendants. [FN18]

Other commentators have made similar arguments, though such arguments have never been popular. Today, the public is often unsympathetic toward possible explanations of crime that might lessen a criminal's punishment. [FN19] Recently, the famous defense attorney Professor Alan Dershowitz wrote that the growing use of "the legal tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation . . . is a dangerous trend, with serious and widespread implications for the safety and liberty of every American." [FN20]

Yet, in narrow areas, the law implicitly accepts the view of crime as a disease to be cured rather than punished. For example, insanity is a defense to crimes in most states. [FN21] Many courts now allow evidence of battered spouse syndrome to help jurors understand the state of mind of some defendants. [FN22] On a more experimental level, new problem-solving courts are experimenting with different approaches to crime. [FN23]

The most subversive acceptance of the "crime as disease" theory *635 in recent years has been in the area of capital punishment. Since 1976, the Supreme Court has required courts and jurors to give consideration to the causes of capital murder in the form of mitigating factors. [FN24] As a result, in the following years, attorneys have created court records about the causes of violent crime and the moral justifications for punishing certain individuals. [FN25]

For example, consider the mitigating evidence in a recent Supreme Court decision, Williams v. Taylor. [FN26] The Supreme Court found Terry Williams's attorneys constitutionally ineffective for failure to investigate and discover:

that Williams'[s] parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then . . . had been returned to his parents' custody. [FN27]

Juvenile records described the home where Williams grew up as "a complete wreck . . . . There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms." [FN28] Additionally, the parents were too intoxicated to find clothes for the dirty children, several of whom were also "under the influence of whiskey." [FN29]

In addition to noting the importance of Mr. Williams's childhood conditions in mitigating his sentence, the Court also noted the relevance of the following evidence: "Williams was 'borderline mentally retarded' and did not advance beyond sixth grade in school"; prison records "recording Williams'[s] commendations for helping to crack a prison drug ring and for returning a guard's missing wallet"; "the testimony of prison officials who described Williams as among the inmates 'least likely to act in a violent, dangerous or provocative way"'; "a certified public accountant *636 who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams 'seemed to thrive in a more regimented and structured environment"'; and that "Williams was proud of the carpentry degree he earned while in prison." [FN30]

The Court stated that this information was relevant to the capital sentencing of Mr. Williams without any explanation for why the childhood abuse or other evidence related to his sentencing for the murder. [FN31] Mr. Williams had killed an intoxicated man with a mattock because the man refused to loan him a couple of dollars, and after Mr. Williams's initial trial he was sentenced to death. [FN32] Mr. Williams had confessed to the crime, yet the Court found that his sentencing hearing was unfair and his death sentence was reversed because his attorney did not discover the above evidence. [FN33] It is important to understand the reasons why any mitigating evidence should be considered for such a horrible crime. This Article addresses the question of why mitigation is legally and morally relevant to the use of the death penalty in the United States.

This Article examines how mitigating circumstances reveal moral problems in the foundation of the capital punishment and criminal justice systems. Part I begins by discussing the main punishment theories that justify consideration of mitigating factors: utilitarian, retributive, and disease theories. Part II discusses Judge Bazelon's writings on disease theory and the "rotten social background" defense. Part III discusses the Supreme Court's jurisprudence on the use of mitigating factors in capital cases, and Part IV lists a broad range of mitigating factors that have been used in capital cases, placing them into four categories and addressing the criminal justice justifications for each category. [FN34]

*637 Part V examines one of the categories of mitigation and the empirical, philosophical, and practical issues raised by the use of mitigating factors in that category. The Article explains how the use of that type of mitigating factor indicates that the criminal justice system is following science toward embracing disease theory. Part VI then examines how a legal, philosophical, and scientific understanding of this category of mitigating factors can have a broad impact on the law. Thus, the Article concludes, the development of the law of mitigating factors is taking the criminal justice system to new understandings of human responsibility.

Around the Web

DPIC notes:

Georgia Death Penalty Conviction Overturned Because of Prosecutorial Misconduct

A Georgia Superior Court overturned the murder conviction of death row inmate Willie Palmer after finding that prosecutors hid a $500 payoff to the state's key trial witness, an act the judge said was "in defiance of (the state's) legal and ethical duties." The judge also threw out Palmer's death sentence on the grounds that his trial lawyer failed to investigate and present evidence of Palmer's mental retardation.

In his opinion, the judge noted that prosecutors "intentionally hid" a deal made with the a state witness, and that prosecutors "aggressively resisted" the deal's disclosure until a hearing that took place 6 years after Palmer's 1997 trial. "It appears logically inescapable that the state knew, only too well, how extremely material this evidence was in this case. It is difficult, if not impossible, to conceive of how this suppression could have been done in good faith.... Without the jury being informed that the state has provided an important witness a pecuniary motivation to testify, the trial transforms into a basically corrupt process in which the jury is deprived of a major key to seeking and deciding the truth - and determining a man's fate," the judge wrote in ordering a new trial for Palmer. The State Attorney General's Office is appealing the ruling.

(Atlanta Journal-Constitution, April 4, 2005). See Representation and Mental Retardation.

Amnesty International Releases Annual International Death Penalty Report

According to a new report issued by Amnesty International, the United States is among four countries that carried out the vast majority of the 3,797 executions around the world in 2004. Amnesty's report states that the nations carrying out the most executioners last year were China (3,400), Iran (159), Vietnam (64), United States (59), Saudi Arabia (33), Pakistan (15), Kuwait (9), Bangladesh (7), Egypt (6), Singapore (6), and Yemen (6). The report notes that the increase in executions in China is partly due to a new way of estimating such executions since the government does not publicly release this data. The use of the death penalty declined in the U.S. in 2004 compared to 2003.

Five nations abandoned the death penalty in 2004 (Bhutan, Greece, Samoa, Senegal, and Turkey), bringing the total number of countries that have abolished the death penalty in law or practice to 120. A third of those countries have abandoned the death penalty in the past 15 years, a trend that Amnesty International says shows a "continued move closer to the universal abolition of capital punishment." Only 76 countries retain and use the death penalty, but few of those nations carry out executions each year. "The death penalty is cruel and unnecessary, does not deter crime, and runs the risk of killing the wrongly convicted, " the report concludes.

(The (London) Independent, April 4, 2005, and "Facts and Figures on the Death Penalty," Amnesty International, April 2005). See Amnesty's Report and DPIC's International Death Penalty.

New York State Legislature Issues Comprehensive Death Penalty Report

In the most comprehensive examination of a statute in the history of the New York State Legislature, state lawmakers released a report highlighting the testimony of 170 witnesses at five statewide hearings on the state's death penalty law. The report, issued by Assembly Speaker Sheldon Silver along with the Chairs of the Committees on Codes, the Judiciary and Correction, is a thorough examination of the statute and its troubled history.

"We have spent more than $170 million administering the death penalty since 1995, but not a single person has been executed during that time," said Joseph Lentol, Chair of the Committee on Codes, who also noted that only seven persons had been sentenced to death and that the first four of these sentences to reach the Court of Appeals had been struck down on various grounds. He continued, "These facts obviously cried out for a thorough examination of whether the death penalty should be re-enacted in New

York."

"When the Court of Appeals in essence struck down New York's death penalty law in LaValle, we in the Legislature faced an important choice: act quickly or act deliberately. We chose the latter option and conducted a series of extraordinary public hearings to solicit the widest possible range of views on the death penalty in New York before deciding what action, if any, to take with respect to the statute," said Silver. The report presents a detailed discussion of racial problems, religious views, mental illness, costs, innocence, and deterrence, among other subjects.

Helene Weinstein, Chair of the Judiciary Committee, noted that testimony heard during the hearings revealed that much of the legal landscape surrounding the death penalty had changed in the years since New York re-enacted its statute, including a series of overturned wrongful convictions and the development of investigation technologies such as DNA. "During our hearings, we heard testimony from a number of persons who had been wrongfully convicted of murder and, in some cases, placed on death row before being exonerated. The criminal justice system makes mistakes, but when the death penalty is applied, those mistakes can never be corrected," she said.

Jeffrion Aubry, Chair of the Committee on Correction, said that the most compelling testimony came from victims' family members. He stated, "Persons who had suffered inconceivable loss opened their hearts and told us what they thought was the most appropriate way to bring the killers of their loved ones to justice. These courageous individuals presented varied views on capital punishment. We heard their stories and have presented their views in this landmark report."

(Press Release, New York State Assembly, "Assembly Releases Death Penalty Report," April 4, 2005). Read the Press Release. Read the Complete Report. See also DPIC's Web Page on People v. LaValle.

RELIGIOUS VIEWS: Pope John Paul II's Statements on the Death Penalty

During his 26 years as leader of the Roman Catholic Church, the late Pope John Paul II frequently called for an end to the death penalty. Among his statements on this issue were the following:

"May the death penalty, an unworthy punishment still used in some countries, be abolished throughout the world." (Prayer at the Papal Mass at Regina Coeli Prison in Rome, July 9, 2000).

"A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform. I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary." (Homily at the Papal Mass in the Trans World Dome, St. Louis, Missouri, January 27, 1999).

Opposition to the Death Penalty Mounts in Puerto Rico

As two men convicted of capital murder under the federal death penalty statute await their sentencing on April 11, Puerto Rican Governor Anibal Acevedo and the Association of American Jurists, a non-governmental organization acting as a consultant at the United Nations, protested the use of the death penalty in Puerto Rico. Though Puerto Rico's Constitution prohibits the death penalty and its residents have consistently voiced strong opposition to it, residents who commit a federal capital crime can be sentenced to die. Opposition to this practice is pervasive, crossing political and religious lines. (El Diario, March 31, 2005). See Federal Death Penalty.

NEW VOICES: Victims Testify About the Death Penalty

Recently, various victims and relatives of victims have testified before state legislatures concerning the death penalty. In Connecticut, a woman who had been attacked by convicted murderer Michael Ross, testified that she nevertheless opposes his execution. And in North Carolina, the sister of a man who was murdered in 2003 urged state legislators to reconsider the death penalty.

Vivian Dobson, who was attacked by Ross in 1983, said that the death penalty re-traumatizes victims' family members and wrongly focuses public attention on the guilty offender instead of the innocent victims. Dobson recently told members of the Connecticut House of Representatives that she does not want Ross executed, noting, "I don't want to be a part of killing somebody else. . . . I can't do it. That's not me." The Connecticut House, however, voted 89-60 against a bill to replace the state's death penalty with life without parole. (Hartford Courant and Associated Press, March 30, 2005).

In North Carolina, Patricia Parker, whose brother was murdered by an unknown assailant, joined five other victims' family members to urge lawmakers to pass a bill that would impose a two-year moratorium on executions while legislators review the current system. Parker noted that her brother's death forced her to re-examine the judicial system and the death penalty, which she now believes is applied unfairly and risks innocent lives. Parker stated, "I do not want anything done that makes another mistake. I don't want to ever have to think that the wrong person was punished for my brother's death. It will only bring more heartache in the world." (Associated Press, March 30, 2005).

Virginia Study Says Mistaken Eyewitness Identification Is Major Factor In Wrongful Convictions

A two-year study of 11 wrongful conviction cases in Virginia found that mistaken eyewitness identification is the major reason innocent people have been convicted in the state. The report's recommendations note that Virginia could dramatically reduce the number of wrongful convictions through a series of reforms, such as changing a variety of police procedures, relaxing the state's 21-day rule to allow evidence of innocence to be considered beyond this time restriction, ensuring that prosecutors provide defense attorneys with evidence favorable to defendants, and improving the quality of legal help given to poor people in Virginia. The state currently pays court-appointed lawyers the lowest fees in the nation. Researchers conducting the study closely examined the cases of 11 wrongly convicted persons in Virginia who had spent a total of 118 years in prison for crimes they did not commit. Nine of the 11 cases involved mistaken identity by victims or other eyewitnesses, especially when the eyewitness was of one race and the alleged perpetrator or another. The review was spearheaded by the Innocence Commission for Virginia, a collaborative effort of The Mid-Atlantic Innocence Project, the Administration of Justice Program at George Mason University, and The Constitution Project. (Richmond Times-Dispatch, March 30, 2005) See Innocence. Read the study: A Vision for Justice.

SCOTUSBlog notes:

For the second time in two weeks, the Supreme Court yesterday resolved a circuit split regarding an important but obscure issue arising under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). The two decisions appear to be at once a blessing and a curse for habeas petitioners; both adopt petitioner-friendly constructions of AEDPA but impose additional, judge-made barriers whose reach is unclear.

The 5-4 decision in Johnson v. United States (No. 03-9685) addressed the latest in a series of questions relating to AEDPA’s strict one-year statute of limitations. When federal prisoners petition for a writ of habeas corpus challenging their sentence, the one-year limitations period begins to run on the latest of four dates, one of which is “the date on which the facts supporting the [prisoner’s] claim or claims could have been discovered through the exercise of due diligence.” 28 U.S.C. §2255, 6(4). The Supreme Court granted cert to decide whether, when the prisoner is challenging an increased (or “enhanced”) sentence that was based on prior state convictions, a state court order vacating those convictions is a “fact” that supports the prisoner’s claim and thus postpones the start date of the statute of limitations.

Justice Souter’s majority opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Thomas, and Breyer. Justice Kennedy dissented, in an opinion signed by Justices Stevens, Scalia, and Ginsburg. This decision marks the first time the Justices have aligned in this manner and the second case this term in which a group has formed a five-Justice majority for the first time. The other case was Smith v. Massachusetts (03-8661), discussed in Chris Houpt’s earlier post here: http://www.scotusblog.com/movabletype/archives/2005/02/20-week/index.html. (Thanks to Anton Metlitsky of Harvard Law School for confirming my hunch as to the novelty of the vote.)

The serpentine procedural history of the case requires some explanation. In 1994, Johnson pled guilty to a federal charge of distributing cocaine. Based on Johnson’s two 1989 convictions in Georgia state court, the district court found him to be a “career offender” and enhanced his sentence. By the time Johnson’s first set of appeals ended in 1996, AEDPA had taken effect. Johnson then sought and was denied habeas relief in federal court. He returned to the Georgia courts, eventually securing an order “vacating”—or nullifying—his 1989 convictions on the ground that he had not properly waived his right to counsel. With the “vacatur” order in hand, Johnson returned to federal court in an effort to invalidate the “career offender” sentence enhancement. He asserted that the state court decision constituted a new “fact” that supported his claim and that the limitations period should have run from the date of the state court order—the date as of which he could have “discovered” that “fact.” The federal district court and a divided panel of the Eleventh Circuit rejected Johnson’s argument, ruling that the AEDPA’s statute of limitations barred reconsideration of the enhanced sentence.

By a 5-4 vote, the Supreme Court rejected the Eleventh Circuit’s reasoning but affirmed its judgment. The Court unanimously answered the question presented in the affirmative, holding that “an order vacating a predicate conviction” is a fact “subject to proof or disproof like any other factual issue.”

The majority, however, proceeded to reject Johnson’s argument that his habeas corpus petition was “timely” because he had filed it within one year of the state court’s vacatur order. Writing for five Justices, Justice Souter worried that Johnson’s proposal would undermine AEDPA’s overriding purpose of finality. Prisoners, he wrote, “might wait a long time” before challenging their past convictions, since they would have a year to file in federal court “no matter how long [they] may have slumbered before starting the successful [state] proceeding.” Souter thus found that the statute’s “due diligence” language required prisoners to act “diligently” not by filing their habeas petition immediately after the state court ruling, but by taking “prompt action” as soon as they realize that their prior convictions might affect a future sentence. Prisoners should recognize their interest in overturning prior convictions when they are convicted in federal court, and because Johnson sought state court relief three years after his federal conviction, he did not act diligently. His federal habeas petition was therefore untimely.

Writing for the four dissenters, Justice Kennedy agreed with the majority that the state court vacatur order is a “fact” that activates AEDPA’s limitations period. He dissented, however, from the Court’s holding that the habeas petitioners must show that they used due diligence in seeking the state court order that gave rise to the federal claim. The majority’s due diligence rule, Kennedy wrote, was inconsistent with the statute and “unnecessary,” since most states have their own time limits on vacating prior convictions. The rule might also “allow for the same delay it seeks to avoid” and might force already-strapped defense attorneys to “divert scarce resources” from trial and appellate duties in order to challenge prior convictions.

Around the Blogs

Talk Left writes:

Meet Vernon - the First Death Row Blogger

Blogging has arrived at death row. Meet Vernon is the first weblog written by a death row inmate.

Here's how it works, according to the sites creator, Virginia Simmons:

Vernon Lee Evans, is the next person to be executed on Maryland’s death row. You can write Vernon a question using the link at the top of the screen or by writing an email directly to MeetVernon@GMail.com . I will print out the emails and mail them to Vernon who is currently in a maximum security cell in Baltimore, Maryland. Vernon will mail me back his responses and I’ll post them here.

Vernon was supposed to be executed this month but very recently got a stay of execution. You can read about his case here, and sign a petition to save his life. Read Vernon's description of a typical day on death row.

Meet Vernon even has a blogroll, and TalkLeft is proud to be included on it. This is an experiment, but wouldn't it be great to see every death row inmate with a blog?

Here's a list of currently scheduled executions for the remainder of 2005. Also check out these excellent blogs: Abolish the Death Penalty by David Elliott of NCADP and the Lonely Abolitionist.

Death Penalty Facts <>by TChris Amnesty International USA recently updated its "facts and figures on the death penalty." A noteworthy fact: In 2004, 97 per cent of all known executions took place in China, Iran, Viet Nam and the USA. <>What wonderful company we keep.

Another interesting fact:

Since 1973, 117 prisoners have been released in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death. There were six such cases in 2004. Some prisoners had come close to execution after spending many years under sentence of death. Recurring features in their cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defence representation.

Despite concerns about executing the innocent, 59 people were put to death in 2004 in the United States. More than 3,400 prisoners were facing a death sentence as of the first of this year.

The full report is here.

"Our report indicates that governments and citizens around the world have realized what the United States government refuses to admit?that the death penalty is an inhumane, antiquated form of punishment," said Dr. William F.Schulz, Executive Director, Amnesty International USA (AIUSA). "Thomas Jefferson once wrote that 'laws and institutions must go hand in hand with the progress of the human mind;' it is past time for our government to live up to this Jeffersonian ideal and let go of the brutal practices of the past."

CrimProf Blog writes:

Amnesty International Death Penalty Report

From the DPIC: "According to a new report issued by Amnesty International, the United States is among four countries that carried out the vast majority of the 3,797 executions around the world in 2004. Amnesty's report states that the nations carrying out the most executioners last year were China (3,400), Iran (159), Vietnam (64), United States (59), Saudi Arabia (33), Pakistan (15), Kuwait (9), Bangladesh (7), Egypt (6), Singapore (6), and Yemen (6). The report notes that the increase in executions in China is partly due to a new way of estimating such executions since the government does not publicly release this data. The use of the death penalty declined in the U.S. in 2004 compared to 2003." To obtain the report, click here. [Mark Godsey]

Pope John Paul and Capital Punishment

Read statements made by Pope John Paul II about capital punishment here. [Mark Godsey]

North Carolina Death Penalty Moratorium Supported By Murder Victim Famlies

The families of murder victims lobbied North Carolina legislators to pass a moratorium on capital punishment while the fairness of its application could be studied. A similar effort failed last year. [Jack Chin]

Abolish the Death Penalty

Another new blog in town!

Folks: Last week we wrote about what at the time was a first: A blog dedicated specifically to a person on death row. That blog was launched by a woman named Ginny Simmons, who I think is with the Campaign to End the Death Penalty. It is dedicated to Vernon Evans, who is on Maryland's death row. You can see her blog and "meet Vernon Evans" by going here.

Now we have another blog dedicated to another death row inmate. This is dedicated to Robert Fratta, a wrongfully convicted person on Texas' death row. I do not know who launched this blog, although I see she is from New York State.

To see this new blog, go here.

Input for the blog, part one

We recently invited NCADP members to send us any blog-worthy material they have with the promise that we would post it. Here's a great message we received from Nina in Washington state:

Hi, I have been writing to several men on death row, in Arizona and in Montana. I started doing "Prison Ministry" shortly after seeing "Dead Man Walking," then I had the pleasure of going to a seminar given in Seattle by Sister Helen PreJean. Back in 1992, I started writing to two brothers, on Death Row in AZ. They are still there and are doing as well as can be expected. Roger and Robert Murray were convicted of murder back in 1991 in Kingman, AZ on their way home from a trip to Las Vagas, NV. I don't judge anyone for their offenses, simply because I wasn't there. Robert Murray has written a book, a couple years old now, called, "Life on Death Row." It can be found in bookstores or on Amazon.com ~ it is a very good read!

He is now busy writing his biography, which should be great!

Thank you for reading this and God bless!

In peace,

Nina Hall

Input for the blog, part two

And we received this message, from Megan Clifford in Rochester, New York. Please write Megan if you can help her out!

Hello!

I am a former Jesuit Volunteer who was matched up with Robert Simon Jr. (Mississippi death row) in 1996 for a ministry-type of correspondance. I have written to him ever since. Robert asked me awhile back to contact his attorney so that I could have information on his case. He was anxious about exhausting his appeals and was requesting I make funeral arrangements. I am sure this is premature but would like some information. He signed a release and also sent letter to his attorney requesting that he give me permission to talk about his case. Being that I live in New York and the prision reads all the letters Robert sends me I have a hard time getting access to news about his case. Can you post this on the blog to see if anyone can help me. I have some friends who are attorneys who are interested in helping me review his case if I can get access to some information. I can be reached at meganaclifford@hotmail.com

Thank you-

Megan Clifford

Rochester NY

Jeb Bush, the Pope and Glen Ocha

Earlier today Florida Gov. Jeb Bush said this:

"I have a duty to carry out the law, and in this case I actually was prepared to delay the execution out of courtesy for and respect for the pope's passing," Bush told reporters Tuesday in Tallahassee. "But I also have a duty to have sympathy for the victims, and so we checked with the victims, and they were already prepared and ready to be at the execution and to be there so they could have closure, and I decided to carry it out. It was a grotesque crime."

And then the Florida Conference of Bishops said this:

"The Catholic Bishops of Florida appeal to Governor Bush to commute the death sentence of Glen Ocha, scheduled for execution on April 5. The feelings of despair that have led Mr. Ocha to request execution will rob him of the possibility of redemption and forgiveness for his crime.

"We mourn for the family of his victim, Carol Skjerva, but killing Mr. Ocha will not compensate for their loss but only diminish respect for all life in all circumstances. Pope John Paul II, during his 1999 visit to St. Louis, stated "the dignity of human life must never be taken away, even in the case of someone who has done great evil.

"The alternative sentence of life in prison without possibility of parole protects society from harm and punishes individuals for their transgressions. We believe a national decrease in executions shows there is dwindling support for the death penalty since society can otherwise be protected from those who have harmed others.

"Governor Bush, we ask that you stay Glen Ocha's execution and commute his sentence to life in prison without possibility of parole."

And then Abe Bonowitz of Floridians for Alternatives to the Death Penalty said this:

"Instead of honoring Pope John Paul II, Governor Bush has today chosen to mock him. The Pope has been outspoken about the value of all life, and repeatedly called for an end to the use of the death penalty.

"Governor Bush, a convert to Catholicism, has clearly demonstrated that he's willing to inject his religion and personal beliefs into his politics. He has pushed through unconstitutional legislation to try to codify his beliefs on the sanctity of life. Governor Bush's claim that he is only carrying out the law when he executes prisoners simply reeks of hypocrisy. As Terry Schiavo is mourned this evening, Glen

Ocha gets his wish: Suicide-by-Governor."

The Pope and Darrell Mease

My friend Jason reminds me of an incident that occurred in 1999 in the state of Missouri. Darrell Mease was out of appeals, certifiably guilty and headed for execution. As coincidence (or providence) would have it, his execution date was scheduled for the very same day that Pope John Paul II was to visit St. Louis during one of his several trips to the U.S.

The Pope called on then-Gov. Mel Carnahan to spare Mease and the governor complied. It is the only pure case of mercy I can recall in the "modern" era -- i.e., clemency coming without questions of guilt, severe mental illness and so on.

Curious, I dug up a review of a book that was written about this episode. Here are some pertinent paragraphs:

Almost Midnight: An American Story of Murder and Redemption is, in a sense, Mease's biography, and its singular achievement is to present Mease's story's full arc, allowing readers to understand how his story, like most other stories of death row prisoners, confounds the public's assumptions about these prisoners. He is, to paraphrase Sr. Helen Prejean, more than the worst thing he's done. Cuneo is at his best evoking the Ozark mountain culture in Missouri where Mease was raised. It's a curious combination of Pentecostal religious fervor and a backwoods way of life in which young men learn to shoot a gun at an early age, become profoundly suspicious of the law and are drawn to moonshining and cockfighting. While he was drawn to the Ozarks' outlaw culture, Mease, many believed, seemed destined to become a preacher.

Things changed, according to the author, after Mease's tour in Vietnam in 1967 when he became seriously involved with drinking and drugs. When he returned home, an increasingly paranoid and resentful Mease told a friend, "You know the Marines spent thousands of dollars teaching me to kill, and I still haven't killed anyone." Two marriages failed. When Mease began using crank methamphetamine in 1987, it prompted the radical, disturbing change in him that led him down the road to death row.

[....]

While on death row, Mease experienced a religious conversion that Cuneo and others believe was sincere. Mease became convinced God was his lawyer, and that he would be spared execution and eventually released from prison. A devout Pentecostal, Mease possessed core anti-Catholic prejudices. The pope was the last person Mease wanted to save him.

That's what happened, however, when Missouri serendipitously scheduled Mease's execution on the same day as a papal visit to St. Louis. A staunch death penalty proponent, Gov. Mel Carnahan was nonetheless embarrassed by the execution's timing and believed he had to pardon Mease when the pope pleaded personally at a papal Mass, "Governor, will you please have mercy on Mr. Mease?"

This extraordinary, unprecedented moment proved evanescent to death penalty opponents who hoped the pardon would slow the pace of executions in Missouri. There were six executions there in the six months after the pardon, and the pope's next plea for mercy from Rome was routinely dismissed.

Death row phenomenon

When we sentence people to death, we sentence them to just that -- death. We do not sentence them to be tortured while awaiting death.

So how are we to react when many -- no, most -- people under sentence of death spend more than a decade waiting for their sentence to be carried out? Some people argue that we should have a shortened appeals process. But shorten the process and you will surely increase the number of mistakes we are making. And in our democracy, complete with rights of due process and the unshakeable belief that we must not incarcerate innocent people, much less execute them, one mistake is too many.

I mention this because the Death Penalty Information Center has just published a fascinating research paper that examines this topic. The paper begins:

The length of time prisoners spend on death row in the United States before their executions has recently emerged as a topic of interest in the debate about the death penalty. The discussion has been spurred by the scheduled execution of Michael Ross, a Connecticut inmate who has been on death row for 17 years, and by the writings of two Supreme Court Justices who have urged the Court to consider this issue.

Death row inmates in the U.S. typically spend over a decade awaiting execution. Some prisoners have been on death row for well over 20 years.

During this time, they are generally isolated from other prisoners, excluded from prison educational and employment programs, and sharply restricted in terms of visitation and exercise, spending as much as 23 hours a day alone in their cells.

This raises the question of whether death row prisoners are receiving two distinct punishments: the death sentence itself, and the years of living in conditions tantamount to solitary confinement – a severe form of punishment that may be used only for very limited periods for general-population prisoners.

Moreover, unlike general-population prisoners, even in solitary confinement, death-row inmates live in a state of constant uncertainty over when they will be executed. For some death row inmates, this isolation and anxiety results in a sharp deterioration in their mental status.

It concludes:

The length of time that U.S. inmates spend on death row has gotten increasingly longer in recent years, and raises questions about the constitutionality of this added punishment. Although the U.S. Supreme Court has not addressed this issue, it has been cited as a serious concern by death penalty experts in the U.S. and by courts outside the U.S. Shortening the time on death row would be difficult without either a significant allocation of new resources or a risky curtailment of necessary reviews.

To read the entire report, go here.

Gearing up for the 12th Annual Fast and Vigil

Plans are developing for the 1th Annual Fast and Vigil, which will take place in front of the U.S. Supreme Court June 29 through July 2. June 29 is the anniversary of the 1972 Furman v. Georgia U.S. Supreme Court decision, which struck down existing death penalty statutes. July 2 is the anniversary of the 1976 Gregg vs. Georgia decision, which allowed executions to resume.

To learn more about the Fast and Vigil, go here.

Lonely Abolitionist notes:

Vernon Lee Evans

If you haven't already checked it out, I encourage you to stop by the blog of Vernon Evans. Evans is serving on death row in Maryland and recently received a stay of execution from an April 18 death warrant. This is the first blog I am aware of for an individual on death row. The blog is ghost written by Virginia Simmons who sends Vernon questions through the mail and then posts his responses.

Meet Vernon

Glen Ocha - Florida

I had a small hope that Florida wouldn't execute Glen Ocha. That hope was extinguished along with Glen Ocha early yesterday evening. Apparently, Governor Bush thought of postponing the execution out of respect for Pope John Paul II (who would have opposed the execution both because he opposed capital punishment and because he opposed suicide), but he did not state whether he ever considered a commutation. To clarify, Bush THOUGHT of postponing the execution out of respect for the Pope. I guess his respect for the pope wasn't all that strong after all...

Glen Ocha died shortly after 6:00 yesterday. He made an apology before receiving the lethal chemicals. Ocha was 47 at the time of his death. He had dropped all appeals and fired his lawyers. Ocha believed his punishment was just and asked to die. The State gave him his wish. Florida never seems to deny an inmate the right to suicide by governor.

Glen Ocha Executed For 1999 Murder

Well, I'm not sure whether to say " mea culpa" now, or wait for the legal process to play out. Apparently, a judge in California has found that former Alameda County deputy district attorney Jack Quatman lied when he testified that an Alameda County Superior Court judge instructed him to keep Jews off a capital jury. The court also found that Quatman was generally dishonest and unethical and that he had a motive to embarrass the Alameda County DA's office.

My post below on the question kind of tears into the justice system regarding this question. Some of my statements still apply even if Quatman lied about the Alameda County practice. However, if Quatman really did lie about Golde and the County's alleged practice of excluding Jews and black women from capital case juries, then I owe a huge mea culpa to my readers and to Alameda County.

Stay tuned...I'll update when I know more. I'm sure there will be more court hearings.

Ex-prosecutor lied about barring Jews from jury