Leading off this week is California v. Snow from the California Supreme Court. In a 4-3 unsigned majority decision, the California Supreme Court has upheld the death sentence for a man whose lawyers offered absolutely no defense during the penalty phase of trial. Going further than offering no mitigation evidence, counsel refrained from doing either an opening or closing argument in the case.

Three additional capital cases are also deserving of a quick note. In McClure v. Thompsona split panel of the Ninth Circuit held trial counsel's anonymous tip directing law enforcement to the locations of the bodies of two children whom McClure was ultimately convicted of killing was not constitutionally deficient. The Ohio Supreme Court in Ohio v. Braden held no plain error existed where jury deliberations occurred with alternate jurors present. Finally, the Arizona Supreme Court in Arizona v. Ring with consolidated cases announced how it would deal with the United States Supreme Court's holding in Ring v. Arizona, including the possibility of affirming some death sentences under a harmless error analysis.

The "Focus" section this week is aimed at those who receive the Weekly in an electronic format directly from the Yahoo! servers. Specifically, there has been some concern noted by a few subscribers about what might Yahoo! do with their private information. The Yahoo! Groups privacy policy is repeated below.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

HOT LIST

California v. Snow, 2003 Cal. LEXIS 2072 (Cal 4/3/2003) In a 4-3 unsigned majority decision, the California Supreme Court on upholds a death sentence where the defendant's lawyers offered absolutely no defense (no opening, closing or substantive evidence) during the penalty phase of trial.

We now turn to defendant's closely related claim that the trial court erred in failing to protect his Sixth Amendment right to counsel by not following through on the court's initially stated intent to appoint new counsel for the purpose of making a penalty phase argument. Our dissenting colleagues agree with defendant's contention that once defendant answered "yes" to the court's initial inquiry as to whether he wanted substitute counsel appointed for the sole purpose of making an argument to the jury, the [*140] court had no choice but to appoint new counsel for that single purpose. On this state of the record we cannot agree.

It is true that the trial court expressed astonishment, as well might be expected, when Maple announced on behalf of himself and Miller that the defense would rest without presenting any argument to the jury. It is also true, however, that because Miller and Maple obviously believed that confidentiality or attorney-client privilege precluded them from informing the court of their reasons for electing their chosen course of action at the penalty trial, the court was left largely in the dark regarding counsel's reasons for failing to call any witnesses or present any mitigating evidence. Although the court questioned defendant at the conclusion of the prosecution's case in aggravation of penalty and did learn that defendant had consulted with counsel, had been informed of his right to present mitigating evidence, and was forgoing exercise of that right, the court apparently was not aware that defendant had instructed his family members not to cooperate with the defense investigation, had steadfastly refused to assist Miller, Maple, and defense investigator Sickler in [*141] any way with their investigation of a penalty phase defense, and had refused all contact or communication with counsel and the investigator, with the exception of two contacts with attorney Maple, one on July 12, 1990, five days before the scheduled start of the penalty trial, and the other on July 17, 1990, the day the penalty trial commenced. In those two contacts with Maple, defendant confirmed that he had refused any interviews with Miller and investigator Sickler, and had instructed members of his family not to cooperate or assist in any investigation by the defense. Defendant also agreed with Maple that as a result of his altercation with sheriff's deputies in the jail, evidence from institutional records of his good conduct while incarcerated over the years should not be presented to the jury.

The record further reflects that the court was laboring under the mistaken assumption that this court's 1985 decision in People v. Deere, supra, 41 Cal.3d 353 (Deere I), required counsel to present any available evidence in mitigation of penalty even over a defendant's expressed objections. This was not the state of the law, however, by the time defendant's penalty [*142] phase was conducted in June 1990.

As we explained in People v. Deere (1991) 53 Cal.3d 705, 280 Cal. Rptr. 424, 808 P.2d 1181 (Deere II), in response to Deere's claim that his counsel rendered ineffective assistance in failing to present evidence in mitigation: "The claim is totally without merit, if not specious. [P] As noted earlier, we held in Deere I, supra, 41 Cal.3d 353, that defendant was denied adequate representation at the penalty phase as a result of counsel's failure to present evidence in mitigation, notwithstanding defendant's unequivocal desire that no such evidence be presented. Defendant was represented at the penalty retrial by the same deputy public defender who had appeared on his behalf at the first trial. Defendant's views with respect to the presentation of mitigating evidence also remained unchanged; defendant was adamant, in counsel's words, that 'he does not want any evidence presented on his behalf because in his heart that is his private life and to bring that evidence into court would violate his relationships with everybody he holds dear and respects in this world. And to him, those relationships are more important [*143] than anything else, including his life.' [P] Thus, counsel was confronted with the unenviable and wrenching choice of obeying the law as defined by this court in Deere I, or honoring his client's deeply held convictions. To make the dilemma even more acute, the trial court ordered counsel to present whatever mitigating evidence was available in accordance with our decision, or be held in contempt." (Deere II, supra, 53 Cal.3d at p. 714.)

We went on to explain in Deere II, in the following three quoted paragraphs, that:

"Furthermore, decisions subsequent to the instant penalty retrial have largely undermined the court's holding in Deere I. As explained in People v. Bloom (1989) 48 Cal.3d 1194, 259 Cal. Rptr. 669, 774 P.2d 698, which held that a sentence of death was not constitutionally unreliable merely because a self-represented defendant chose not to present mitigating evidence at the penalty phase: 'To the extent that Deere, supra, 41 Cal.3d 353, suggests that failure to present mitigating evidence in and of itself is sufficient to make a death judgment unreliable, it is based on a mistaken understanding of the Eighth Amendment's [*144] reliability requirement and its reasoning in that regard is hereby disapproved.' (Id. 48 Cal.3d at p. 1228, fn. 9, italics added.) Rather, 'the required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present.' (Id. at p. 1228.)

"We further underscored our disapproval of Deere I in People v. Lang (1989) 49 Cal.3d 991, 264 Cal. Rptr. 386, 782 P.2d 627: 'Deere was disapproved [in People v. Bloom] to the extent it suggests that a defendant's failure to present mitigating evidence, in and of itself, is sufficient to make a judgment of death constitutionally unreliable.' (Id. at p. 1030.) Indeed, Lang went on to reject explicitly the proposition that 'defense counsel should be forced to present mitigating evidence over the defendant's objection,' noting that it contravenes the [*145] attorney's 'paramount duty of loyalty to the client,' undermines 'the trust, essential for effective representation, existing between attorney and client,' and ultimately reduces the quality of that representation by forcing defendants 'who otherwise would not have done so to exercise their Sixth Amendment right of self-representation . . . . in order to retain control over the presentation of evidence at the penalty phase . . . .' (Id. 49 Cal.3d at pp. 1030-1031.)

"Finally, as further noted in People v. Lang, a defendant who insists that mitigating evidence not be presented at the penalty phase is estopped from later claiming ineffective assistance based on counsel's acquiescence in his wishes. 'The invited-error doctrine operates, in particular, to estop a defendant claiming ineffective assistance of counsel based on counsel's acts or omissions in conformance with the defendant's own requests.' (49 Cal.3d at p. 1032, fn. omitted.)" (Deere II, supra, 53 Cal.3d at pp. 716-717.)

Bloom was decided in June 1989. Lang was decided in December 1989. By the time of defendant's penalty trial in July 1990, our decisions in Lang and Bloom [*146] had announced that the rule of Deere I--that counsel was required to present any available evidence in mitigation of penalty even over the defendant's objection--was disapproved. It is clear from the transcript of the July 18 proceedings that the trial court in this case mistakenly believed Deere I obligated Miller and Maple to present any available mitigating evidence even over defendant's objections. n31 And although it cannot be discerned with certainty from this record whether Miller, Maple, and Gerstein knew that the court was laboring under a mistaken understanding of the applicable law, we surmise from the transcript of the July 18 proceedings that the disparity between the court's and counsel's understanding of counsel's obligation to present mitigating evidence even over defendant's objection, was at the heart of the standoff between counsel and the court that led the court to suggest it might need the assistance of a member of the State Bar, and Miller and Maple to respond by securing the attendance of attorney Gerstein to explain to the court that counsel had their confidential reasons for refusing to present any mitigating evidence.

Although the record on appeal is less clear regarding Miller and Maple's specific reasons for waiving penalty phase argument than it is regarding their reasons for failing to call any witnesses or present any mitigating evidence, the record rather clearly reflects that once the trial court was satisfied that Miller and Maple had their reasons for not presenting any mitigating evidence, the court was also inclined to accept that they had tactical or other sound reasons for waiving penalty phase argument, and to defer to their judgment in that regard as well.

Our dissenting colleagues conclude that "the court's erroneous acceptance of counsel's waiver of argument, following as it did their decision not to make any opening statement, present any mitigating evidence, or cross-examine any of the People's witnesses, resulted in what may be described either as a 'complete denial of counsel' (United States v. Cronic, supra, 466 U.S. at p. 659) at the critical stage of jury argument or as a complete failure of the defense to subject the prosecution's penalty phase case 'to meaningful adversarial testing' (ibid.) . Either way, 'there has been a denial of Sixth Amendment [*148] rights that makes the adversarial process itself presumptively unreliable.' (Ibid.) " (Post, at pp. 10-11, italics added (conc. & dis. opn. of Werdegar, J.).) As the italicized language above reveals, although the dissent purports to argue that trial court error alone requires reversal on appeal, in actuality the dissent has concluded that the trial court's refusal to appoint new counsel to make a penalty phase argument, in the face of counsel's omissions and ineffective representation leading up to that determination, together resulted in a violation of defendant's Sixth Amendment right to counsel. The problem with this reasoning is that our precedents normally do not permit us to conclude that counsel's performance fell below an objectively reasonable standard of representation on a cold record on appeal. (People v. Mendoza Tello, supra, 15 Cal.4th 264.) The circumstances related in Miller's, Maple's, and investigator Sickler's confidential declarations serve as a good example of the reason for the rule.

We conclude that if, on an appropriately expanded factual record on habeas corpus, Miller and Maple are shown to have acted within an objectively [*149] reasonable standard of representation (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694) in refraining from presenting any argument to the jury consistent with what they reasonably believed were their client's wishes, it would be anomalous, in the face of such an informed finding, to fault the trial court for ultimately deferring to counsel's judgment and determining not to substitute new counsel in the eleventh hour of this trial. To reverse the judgment on appeal for trial court error without garnering all the relevant facts would be tantamount to handing defendant a technical victory when, in actuality, defendant may have received precisely the kind of penalty phase representation he desired and sought below. We therefore reject defendant's claim that the trial court's failure to appoint new counsel to make a penalty phase argument violated his Sixth Amendment right to counsel.

SUPREME COURT

No germane proceedings noted.

CAPITAL CASES ( Favorable Disposition)

Nooner v. Arkansas, 2003 Ark. LEXIS 167 (Ark 4/3/2003) Pro se motion by the condemned to lift a stay so he may be executed denied as there is no stay in effect.

Arizona v. Grell, 2003 Ariz. LEXIS 28 (Az 4/1/2003) Remand ordered for determination as to whether Grell was mentally retarded at the time of the incident and thus ineligible for the death penalty.

Florida v. Demps, 2003 Fla. LEXIS 467 (FL 4/3/2003) In a rare appellate court discussion of attorneys fees in capital cases, payment is reduced, in part, to $100 hours per hour. Potentially helpful language for counsel attempting to get fees for stay litigation.

CAPITAL CASES ( Unfavorable Disposition)

Arizona v. Ring with consolidated cases, 2003 Ariz Lexis 29 (Az 4/3/2003)(dissent) On remand from the United States Supreme Court, the Arizona Supreme Court holds the complete absence of the jury in the sentencing proceeding that determines a defendant’s eligibility for the death penalty is reviewable for harmless error following guidelines set forth in the opinion.

Ohio v. Braden, 2003 Ohio 1325 (Ohio 4/2/2003) (dissent) Relief denied, mostly notably, on whether jury deliberations with alternate jurors present constituted plain error.

McClure v. Thompson, 2003 U.S. App. LEXIS 6304 (9th Cir 4/2/2003) (dissent) Counsel's anonymous tip directing law enforcement to the locations of the bodies of two children whom McClure was ultimately convicted of killing was not constitutionally deficient.

Swisher v. True, 2003 U.S. App. LEXIS 5939 (4th Cir 3/28/2003) Relief denied on claims "(1) that the Commonwealth, in prosecuting him, knowingly elicited perjurious testimony from a witness and failed to correct the erroneous impression conveyed by that witness's testimony, in violation of the Fourteenth Amendment; (2) that his counsel failed adequately to impeach a witness against him with the witness's prior inconsistent statement to police, thus providing ineffective assistance of counsel in violation of the Sixth Amendment; and (3) that the Commonwealth, in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), failed to turn over evidence that a witness against him sought (and possibly received) a monetary reward in exchange for his testimony."

Butler v. Florida, 2003 Fla. LEXIS 469 (FL 4/3/2003) Relief denied on "claims the trial court erred by: (1) permitting the State to elicit testimony concerning prior acts of violence allegedly committed by the defendant; (2) permitting an unqualified expert witness to testify concerning DNA evidence; (3) denying the defense motion for a new trial following the discovery [*9] of a probation violation report on one witness that was not disclosed by the State; (4) instructing the jury that the only proposed statutory aggravating circumstance had been established by the evidence; (5) failing to consider a statutory mitigating circumstance proposed by the defense during the penalty phase; and (6) imposing a death sentence that is excessive, disproportionate, and cruel and unusual punishment under the United States and Florida Constitutions."

Spann v. Florida, 2003 Fla. LEXIS 465 (FL 4/3/2003) Relief denied on " (1) whether the trial court erred in admitting expert testimony as to handwriting identification because the expert testimony does not satisfy the test set forth in Frye v. United States, 54 U.S. App. D.C. 46, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923); (2) whether the trial court failed to adequately follow the procedures required for granting a defendant's request to waive mitigation as set forth in Koon v. Dugger, 619 So. 2d 246 (Fla. 1993); (3) whether the trial court erroneously found that Spann freely and voluntarily made a knowing and intelligent waiver of the advisory jury in the penalty phase trial; (4) whether the trial court improperly found and considered Spann's conviction for misdemeanor battery as an aggravating factor; (5) whether the trial court improperly doubled three separate aggravating circumstances; (6) whether the trial court failed to consider and weigh all the mitigating evidence in the record; (7) whether the trial court abused its discretion in the weight assigned to the mitigating factors; and (8) although not raised by Spann, whether the sentence of death was proportional."

NOTABLE NONCAPITAL CASES

None noted this week.

FOCUS

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OTHER RESOURCES

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

Chicago Tribune Writer Wins Pulitzer Prize for Death Penalty Editorials

Chicago Tribune editorial writer Cornelia Grumman was awarded the Pulitzer Prize for her influential editorials on the death penalty in Illinois. The prize came just days after reforms of the criminal justice system passed both chambers of the Illinois General Assembly. Last April, one of Grumman's editorials urged lawmakers to require the videotaping of interrogations and confessions. Last week, the state Senate unanimously passed a measure mandating such a requirement for investigators when dealing with homicide suspects. Another of her editorials, in November, urged the abolition of the death penalty for mentally retarded suspects. Such a ban was part of a broad package of reforms also passed by the Senate last week. (See below) Read the editorials. (Chicago Tribune, April 7, 2003) See Illinois Commission on Capital Punishment.

Death Penalty Reform Measures Clear Illinois Senate

By a vote of 57-1, the Illinois Senate recently passed legislation to broadly reform the state's death penalty. The measure:

bars the death penalty where the only evidence is from a jailhouse informant or single eyewitness,

gives the Illinois Supreme Court authority to overturn unjust death sentences,

reduces the number of crimes eligible for the death penalty by focusing on "inherently violent" crimes,

expands defendants' access to genetic evidence used against them,

bans police officers if they commit perjury in a murder case,

and requires juries to consider a defendant's history of abuse or mental illness when deciding whether to impose a death sentence.

In a separate reform measure, legislation to require police to videotape or record their interrogations of murder suspects unanimously passed the Senate. The bill is designed to guard against suspects giving false confessions. Both bills are now under consideration in the House. (Associated Press, April 4, 2003) See Illinois Commission on Capital Punishment and Recent Legislative Activity.

Oklahomans Support Ban on Execution of Juvenile Offenders

A recent poll of Oklahoma residents revealed that 62.8% of those surveyed would support a legislative ban on the execution of juvenile offenders if the alternative sentencing option of life without the possibility of parole were offered. The polling results were released shortly before Oklahoma carried out the execution of a juvenile offender, Scott Allen Hain (see below). (The Oklahoman, April 3, 2003)

The University of Oklahoma poll also found that 49.3% of those polled favored a moratorium on executions in the state so that a study of capital punishment can be done, and 83.5% of respondents either somewhat agree or strongly agree that the state has probably executed an innocent person. See Public Opinion and Juvenile Death Penalty.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).