The much anticipated opinion inBurdine v. Johnson, the so-called "sleeping lawyer case," has been issued by the Fifth Circuit sitting en banc.The nine judge majority has vacated Mr. Burdine's capital murder conviction.

Several miles to the north of Texas, the Nebraska Supreme Court has vacated two death sentences.InState v. Hochstein &State v. Anderson the Nebraska Supreme Court has held that a three-judge panel must vote unanimously for a sentence of death before the death penalty can be imposed, a simple majority of the three judges is not enough.

Elsewhere, in light of a change in North Carolina law making it more difficult to execute the retarded,state prosecutors asked the U.S. Supreme Court to dismissMcCarver v. North Carolina which had been expected to allow the court to decide whether mentally retarded killers can be put to death.With three justices recusing themselves, an evenly divided Kafkaesque Supreme Court Mondayrefused to grant a stay of executionto a Napoleon Beazley who murdered the father of federal appeals Judge J. Michael Luttig; Beazley was a juvenile when he committed the murder, and his effort to use his age as a reason to set aside his death sentence was considered to have a better chance now that the justices have a renewed interest in reviewing some aspects of capital punishment.

The Connecticut Supreme Court in a bitterly split opinion has refused to permit an examination of race bias in the implementation of capital punishment as pat of its statutorily mandated proportionality review.Two recent studies, the first in New Jersey "Report to the Supreme Court Systemic Proportionality Review Project 2000-2001 Term" by Hon. David S. Baime ("White victim cases are more likely to progress to a penalty trial than African-American victim cases and the race of victim factor is statistically significant."), Special Master ("Baime Report"), & the other in North Carolina, "Race and the Death Penalty in North Carolina - An Empirical Analysis: 1993-1997", have both concluded that the race of the victim does, in fact, inject racial bias into proceedings.The Connecticut proportionality decision, although lacking in terms of positive relief, does offer an excellent encapsulation of comparative proportionality review from around the country.

The ABA's "Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States" is now available.

Please note, as a matter of editorial policy, all online district court capital decision will be covered starting this week. Due to size limitations, cases in which the condemned has lost, no matter in what court or what stage, will be addressed in a mere "snippet" manner. Exceptions will be made for unusual or notable cases such asMiller-El v. Johnson(5th Cir) covered this week.

Since last issue one person domestically has been executed.

08 Mack Hill Texas(Texas's 250th in the modern era)

The scheduled executions for August that are noted as serious dates are:

15 Napoleon Beazley Texas - juvenile

16 Jeffery Doughtie Texas

24 Clifton White North Carolina

28 Jack Walker Oklahoma

28 James Elledge Washington --- volunteer

30 Gerardo Valdez Oklahoma ---foreign national

31 Ronnie Frye North Carolina

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com.

This issue is located at http://www.capitaldefenseweekly.com/archives/010813.htm.

Supreme Court

No cases noted

Capital Case Relief Granted

Burdine v. Johnson(5th Cir) The constitution, in a capital case, requires a lawyer to be awake at trial.

The State purports to accept the state trial court's findings that defense counsel slept during substantial portions of Burdine's trial.Nonetheless, the State painstakingly conducts a page-by-page analysis of the trial record in an apparent attempt to demonstrate that counsel was awake during significant portions of the trial. Yet, once we have accepted as presumptively correct the state court's finding that counsel slept "during portions of [Burdine's] trial on the merits, in particular during the guilt-innocence phase when the State's solo prosecutor was questioning witnesses and presenting evidence," there is no need to attempt to further scrutinize the record.See Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984) (holding that "[w]hen a defendant's attorney is asleep during a substantial portion of his trial, the defendant has not received the legal assistance necessary to defend his interests at trial" and thus, prejudice must be presumed). The factual findings made during Burdine's state habeas proceedings demonstrate that Burdine's counsel was repeatedly asleep, and hence unconscious, as witnesses adverse to Burdine were examined and other evidence against Burdine was introduced.This unconsciousness extended through a not insubstantial portion of the 12 hour and 51 minute trial.Unconscious counsel equates to no counsel at all. Unconscious counsel does not analyze, object, listen or in any way exercise judgment on behalf of a client.As recognized by the Second Circuit, "the buried assumption in our Strickland cases is that counsel is present and conscious to exercise judgment, calculation and instinct, for better or worse.But that is an assumption we cannot make when counsel is unconscious at critical times."Tippins v. Walker, 77 F.3d 682, 687 (2d Cir. 1996).(9) When we have no basis for assuming that counsel exercised judgment on behalf of his client during critical stages of trial, we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.

The State suggests that because Cannon was physically present in the courtroom, his dozing constituted a form of performance that should be subjected to prejudice analysis.The State maintains that it is impossible to distinguish between sleeping counsel and other impairments that nevertheless have been subjected to prejudice analysis.We disagree.An unconscious attorney does not, indeed cannot, perform at all.This fact distinguishes the sleeping lawyer from the drunk or drugged one.Even the intoxicated attorney exercises judgment, though perhaps impaired, on behalf of his client at all times during a trial.Yet, the attorney that is unconscious during critical stages of a trial is simply not capable of exercising judgment.The unconscious attorney is in fact no different from an attorney that is physically absent from trial since both are equally unable to exercise judgment on behalf of their clients.Such absence of counsel at a critical stage of a proceeding makes the adversary process unreliable, and thus a presumption of prejudice is warranted pursuant to Cronic.

As in Russell, we decline to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice. Our holding, that the repeated unconsciousness of Burdine's counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine's capital murder trial warrants a presumption of prejudice, is limited to the egregious facts found by the state habeas court in this case.(10)

State v. Hochstein &State v. Anderson(Neb) A three-judge panel must vote unanimously for a sentence of death before the death penalty can be properly imposed.

Nebraska statutes contain a section entitled “Special Procedure in Cases of Homicide,” §§ 29-2519 through 29-2546, which provides, inter alia, procedures for imposition of the death penalty. Section 29-2520 provides that when a defendant is convicted of first degree murder,

the district court shall within seven days fix a date for hearing on determination of the sentence to be imposed. Such determination shall be made by: (1) The judge who presided at the trial or who accepted the plea of guilty; (2) a panel of three judges including the judge who presided or accepted the plea, the two additional judges having been designated by the Chief Justice of the Supreme Court after receiving a request therefor from the presiding judge; or (3) a panel of three district judges named by the Chief Justice of the Supreme Court when such Chief Justice has determined that the presiding judge is disabled or disqualified after receiving a suggestion of such disability or disqualification from the clerk of the court in which the finding of guilty was entered.

In the instant case, following remand to the district court for Douglas County in accordance with the 1997 federal mandate, a three-judge panel was appointed to determine whether the death penalty should be imposed on Anderson and Hochstein. § 29-2520(3). Two of the three judges on the sentencing panel determined that the death penalty should be imposed in each case. The third judge, however, disagreed in each case, based upon his determination that “the mitigating circumstances approach or exceed the weight given to the aggravating circumstance.” Although the three-judge panel did not vote unanimously for the death penalty, the district court imposed a sentence of death on each defendant on November 5, 1999.

Nebraska statutes provide no explicit provision regarding what number of a three-judge sentencing panel is necessary for a sentence of death to be properly imposed. The question presented in the instant cases is whether the three-judge sentencing panel convened pursuant to § 29-2520(3) must vote unanimously to impose a sentence of death under the statutes as currently enacted. If a unanimous vote is required, then we must determine the effect of the failure of the sentencing panel to reach unanimity upon the death sentences ordered in these cases.

Anderson and Hochstein contend that the panel’s determination must be unanimous before the death penalty can be imposed. The State contends, inter alia, that because one judge can impose the death penalty under § 29-2520(1), it follows that the vote of two judges is adequate to impose the death penalty under the provision calling for a three-judge panel under § 29-2520(3).

[2,3] A statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous. State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998); State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996). In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000); State v. Cox, 247 Neb. 729, 529 N.W.2d 795 (1995). Because § 29-2520(3) fails to address the issue of what number of a three-judge panel must determine that the death penalty is to be imposed for a sentence of death to be properly imposed, the statute is open for construction. In this regard, we note that we have previously construed the sentencing statutes in homicide cases where silent, and such construction has not evoked a change by the Legislature. See State v. Simants, 197 Neb. 549, 560, 250 N.W.2d 881, 888 (1977) (holding that where § 29-2522 is silent regarding burden of proof, “[w]e believe it is the intent of the act to require the facts upon which the aggravating circumstances . . . are based to be proved beyond a reasonable doubt, and so construe it”), overruled on other grounds, State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). See, also, State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000) (when judicial interpretation of statute has not evoked legislative amendment, it is presumed that Legislature has acquiesced in court’s interpretation).

[4-7] It is a fundamental principle of statutory construction that penal statutes are to be strictly construed in favor of the defendant. See, State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). A penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence. State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997); State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995). Penal statutes are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001); State v. Bottolfson, supra.Under principles of statutory construction, the components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible. State v. Seberger, 257 Neb. 747, 601 N.W.2d 229 (1999).

The intent of the Legislature with respect to imposition of the death penalty can be discerned in part by considering § 29-2521.01, which is contained in the “Special Procedure in Cases of Homicide,” and in which the Legislature has provided in relevant part:

1. Life is the most valuable possession of a human being, and before taking it, the state should apply and follow the most scrupulous standards of fairness and uniformity;
2. The death penalty, because of its enormity and finality, should never be imposed arbitrarily nor as a result of local prejudice or public hysteria.

This stated legislative policy is consistent with the views expressed by the U.S. Supreme Court and this court regarding the need for reliability in capital sentencing determinations. The U.S. Supreme Court has stated:

[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). See, also, State v. Simants, supra. It has also been said that “because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense.” Spaziano v. Florida, 468 U.S. 447, 468, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (Stevens, J., concurring in part, and in part dissenting).

We have recently stated that “‘the death sentence is different from any other criminal penalty. . . . No system based on human judgment is infallible. Thus, with the death penalty, we have taken, and should continue to take, the extra step—indeed walk the extra mile—to ensure fairness and accuracy’” in cases involving the death penalty. State v. Reeves, 258 Neb. 511, 534, 604 N.W.2d 151, 167 (2000) (quoting State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)).

[8] Because § 29-2520(3) does not state what number of votes of the three-judge sentencing panel is required to properly impose the death penalty, we read the statutes in the “Special Procedure in Cases of Homicide” section together and construe them conjunctively to determine the intent of the Legislature with respect to § 29-2520(3) so that different provisions of the statutes are consistent, harmonious, and sensible. State v. Seberger, supra. In this regard, we are especially cognizant of the language used by the Legislature in § 29-2521.01 evincing legislative intent, which in relevant part acknowledges the “enormity” of the death penalty and provides that in imposing the death penalty, “the most scrupulous standards of fairness” should be followed. We are also mindful that a penal statute should be strictly construed in favor of the defendant, see State v. Bjorklund, 258 Neb. 432, 601 N.W.2d 231 (1999); State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999), and that the U.S. Supreme Court has recognized that the death penalty is qualitatively different from imprisonment. Applying these principles of statutory construction and given the stated intent of the Legislature, we conclude that a three-judge panel designated under § 29-2520(3) must vote unanimously for a sentence of death before the death penalty can be properly imposed.

There is a substantial basis in Nebraska jurisprudence and elsewhere for requiring unanimity in criminal cases. In this regard, we note that with respect to a trial to determine guilt or innocence, in Nebraska, a jury must be unanimous in order to convict a criminal defendant. See Neb. Const. art. I, § 6 (providing that “right of trial by jury shall remain inviolate” and allowing Legislature to provide for nonunanimous verdicts only in civil cases). See, also, State v. Parker, 221 Neb. 570, 571, 379 N.W.2d 259, 260 (1986) (“before one may be convicted of violating a state statute, the jury must reach a unanimous verdict”). We have also stated that for double jeopardy purposes, capital sentencing hearings in Nebraska have been held to have characteristics which resemble a criminal trial. State v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999) (citing State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995)).

The requirement of unanimous jury verdicts in criminal cases exists in virtually every American jurisdiction, and those states that do allow a nonunanimous verdict in some criminal cases nevertheless require unanimity in capital cases. See Richard H. Menard, Jr., Note, Ten Reasonable Men, 38 Am. Crim. L. Rev. 179 (2001) (acknowledging unanimity voting rule governing petit juries in almost all American jurisdictions and noting that exceptions, Louisiana and Oregon, nevertheless require unanimity in capital or first degree murder cases). See, also, Jere W. Morehead, A “Modest” Proposal for Jury Reform: The Elimination of Required Unanimous Jury Verdicts, 46 U. Kan. L. Rev. 933, 935 (1998) (acknowledging “near-universal requirement that a jury reach a unanimous verdict” in criminal cases and noting proposal in California that would eliminate unanimity in criminal cases except death penalty cases). The fact that even those jurisdictions that have eliminated or have proposed eliminating a requirement of unanimity in reaching some criminal convictions nevertheless require unanimity in capital cases reflects the understanding that such cases are qualitatively different and require an added measure of reliability. See Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). See, also, Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (Stevens, J., concurring in part, and in part dissenting); State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000); State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), overruled on other grounds, State v. Reeves, 234 Neb. 711, 453 N.W.2d 539 (1990).

We also note that in most jurisdictions, capital sentencing is a jury function, and most relevant statutes prescribe that the failure of a jury to reach a unanimous agreement regarding sentencing results in the imposition of a life sentence by default. See, generally, James R. Acker and Charles S. Lanier, Law, Discretion, and the Capital Jury: Death Penalty Statutes and Proposals for Reform, 32 Crim. L. Bull. 134 (1996). See, also, Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999) (Ginsburg, J., dissenting); State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995); State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988) (emphasizing need for reliability as basis for requiring unanimity on capital sentencing juries), habeas corpus granted on other grounds, Daniels v. Bronson, 736 F. Supp. 1215 (D. Conn. 1990).

Our conclusion that unanimity is required of a three-judge panel before the death penalty can be properly imposed is consistent with the statutory schemes established in the other jurisdictions which provide for three-judge sentencing panels. At least three states other than Nebraska provide for three-judge sentencing panels: Colorado, Nevada, and Ohio. All three require by statute that the sentence of death be based on the unanimous determination of the three-judge panel. See, Colo. Rev. Stat. Ann. § 16-11-103(2)(d) (West Cum. Supp. 2000) (if panel of judges cannot unanimously agree on sentence, it shall make record of each judge’s position and shall then sentence defendant to life imprisonment); Nev. Rev. Stat. § 175.556 (2000) (sentence of death may be given only by unanimous vote of three judges); Ohio Rev. Code Ann. § 2929.03(D)(3) (Anderson 1999) (if panel of three judges unanimously finds, by proof beyond reasonable doubt, that aggravating circumstances outweigh mitigating factors, it shall impose sentence of death). Although Nebraska’s statute does not specify what number of votes of the panel is required to properly impose the death penalty, we are inclined to believe that the same public policy goals as were expressed by the Nebraska Legislature in § 29-2521.01(1) and (2) would have been shared by the legislatures of Colorado, Nevada, and Ohio when those states enacted their three-judge sentencing panel death penalty statutes which explicitly require unanimity. Those statutes suggest that unanimity of the panel is necessary to effectuate the intent of the death penalty sentencing statutes that capital punishment be imposed fairly and reliably.

Hackett v. Price(E.D.Pa.) Error in the trial court's instructions to the jury at the penalty phase suggesting to the jurors they must be unanimous as to the existence of any mitigating circumstances and failing to inform the jury as to what it should do if some but not all of their membership found that a mitigating factor existed.

Capital Cases Remanded for Further Adjudication

No cases noted this week.

Federal Capital Cases Relief Denied

Cannon v. Gibson(10thCir) Relief denied on: " (1) statements Cannon made after his arrest were improperly admitted at trial because the statements were fruits of an illegal arrest and detention; (2) evidence seized during a warrantless search of Cannon's home was improperly admitted at trial; (3) trial counsel was constitutionally ineffective during the guilt phase of the trial; (4) prosecutors violated Cannon's due process rights when they failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83 (1963), evidence favorable to the defense; and (5) trial counsel was constitutionally ineffective during the penalty phase of the trial... [6] the trial court denied Cannon his constitutional right to an impartial jury when it removed a prospective juror for cause; [7] the aiding and abetting instructions given at trial allowed the jury to convict Cannon of malice aforethought murder without any showing that he intended to kill the victim; and [8] the death penalty is invalid because the trial court failed to instruct the jury, pursuant to Tison v. Arizona, 481 U.S. 137 (1987) and Enmund v. Florida, 458 U.S. 782 (1982), to make findings as to whether Cannon had the specific intent to kill the victim.

Miller-El v. Johnson(5th Cir.) " Miller-El seeks from this Court a COA on each of the following issues: (1) whether the district court erred in overruling his challenges of improper peremptory juror strikes; (2) whether the state court erred in failing to conduct a sua sponte evidentiary hearing regarding his competency to stand trial and in finding that he was competent to stand trial in 1986; (3) whether the district court likewise erred in failing to conduct a hearing regarding his competency; and (4) whether the district court erred finding that his First and Fourteenth Amendment rights were not violated by admission of evidence, during the punishment phase of his trial, relating to his affiliation with the Moorish Science Temple."

In his fourth and final issue, Miller-El argues that he is entitled to a COA on his claim that his First and Fourteenth Amendment rights were violated by the admission of evidence, during the punishment phase of his trial, relating to his affiliation with the Moorish Science Temple faith in violation of Dawson v. Delaware, 112 S. Ct. 1093 (1992). In Dawson, while the Supreme Court held that where religious affiliation unrelated to any issue in the case may be impermissible, there is no "per se" barrier to the admission of evidence which concerns a defendant's beliefs and associations at sentencing. Dawson, 112 S. Ct. at 1097. The Court noted that "[i]n many cases . . . associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society." Id. at 166. We have, likewise, held that if the evidence regarding a defendant's affiliations or personal beliefs is sufficiently related to the issues involved, there is no constitutional violation. See Boyle v. Johnson, 93 F.3d 180, 183- 84 (5th Cir. 1996).

Here the state habeas court concluded that Miller-El's association with the Moorish Science Temple was inextricably intertwined with his conviction and sentence. Evidence was entered in the guilt phase regarding his membership as part of testimony regarding witnesses' ability to identify him through his participation in the Moorish Temple Feast at the murder scene the week before the robbery-murder. Thus, introduction of this evidence during the guilt phase was relevant to other matters.

The additional references to his membership during the punishment phase of his trial, as the state court found, were appropriate as they related to his involvement with other group members who were heavily armed and who assisted in the commission of Miller-El's offense of conviction. The government's characterization of Miller-El as belonging to a heavily armed paramilitary group was supported by the evidence and was probative as an indicator of future dangerousness.

Having conducted an independent review, we conclude simply that the state court's determination that Miller-El's due process rights were not violated by the prosecution's reference to his membership in the Moorish Science Temple faith were consistent with and were not contrary to the Supreme Court's applicable holding in Dawson. Furthermore, we conclude that the state court's adjudication of this claim was reasonable, and therefore, we deny Miller-El's request for a COA on this issue.

Campbell v. Coyle(6th Cir.) Evidence that victim had four fatal non-defensive knife wounds precluded lesser-included offense instruction of involuntary manslaughter despite the presence of one defensive wound & counsel's investigations were not so substandard as to render the proceedings unfair.

Jones v. Delo (8th Cir.) Relief denied on claims that counsel failed "(1) to investigate and present evidence of mental disorder and organic brain damage at the guilt phase of the trial; and (2) to investigate and present mitigating evidence at the penalty phase of the trial."

Abu-Jamal v. Horn(E.D.Pa. ) Motion for leave to depose potential exculpatory eyewitness denied.

Abu-Jamal v. Horn(E.D.Pa. ) As the proffered "amendment will be considered futile" motion for leave to amend denied.

State Capital Cases Relief Denied

State v. Cobb (Conn.) Appellant proffered to enlarge the class of cases that should be considered in determining whether his sentence of death was proportionate as the large class would show the race of the defendant and the race of the victim impermissibly influence the decision of whether a criminal defendant is sentenced to death. Of interesting note is footnote 18 relating to proportionality review nationally:

*fn18 The plurality of states, like Connecticut, look to cases where a capital felony was charged, irrespective of whether the death sentence was actually imposed. ARKANSAS: Arkansas does not have statutorily required proportionality review, but the Arkansas Supreme Court has made such review mandatory. Sheridan v. State, 313 Ark. 23, 39-40, 852 S.W.2d 772 (1993) ("Finally, we undertake a 'proportionality review' of [the defendant's] capital case which we have made a requirement under Arkansas law.... We review capital cases involving the death penalty to insure that the sentence is not imposed in a freakish, capricious, or whimsical manner. In so doing, [the defendant] would have us compare his case to all capital murder and first degree murder cases occurring after July 3, 1989 ... involving any death sentence or first degree murder charged as 'premeditated or deliberated.' This is an improper comparison; we only compare death sentence appeals to other death sentence appeals. To do otherwise would be to compare apples to oranges.") DELAWARE: Delaware proportionality review is mandated by statute. In conducting this review, the Delaware Supreme Court includes only "those first degree murder cases which have included a penalty hearing and in which the sentence has become final, either without or following a review by this Court.... As this Court has pointed out in prior cases involving the proportionality review, '[a] definitive comparison of the "universe" of cases is almost impossible.' ... Nevertheless, we have compared [the defendant's] sentences with the penalties imposed in all first degree murder cases which have included a death penalty hearing. Moreover, we have considered objective factors such as the gravity of the offense, the circumstances of the crime, the harshness of the penalty, and the statutory scheme in effect at the time." Lawrie v. State, 643 A.2d 1336, 1344-45 (Del.1994). FLORIDA: Florida's capital felony statutes do not require proportionality review. The Florida Supreme Court, like Arkansas, however, has imposed such a requirement upon itself. See Tillman v. State, 591 So.2d 167 (Fla.1991). "Because death is a unique punishment, it is necessary in each case to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances." (Emphasis in original; internal quotation marks omitted.) Id., at 169. IDAHO: Idaho proportionality review is mandated by statute. Idaho courts compares a death sentence to "other first degree murder cases in which the death penalty was imposed as well as those cases in which the death penalty was not imposed." State v. Card, 121 Idaho 425, 438-39, 825 P.2d 1081 (1991); MARYLAND: Maryland proportionality review is mandated by statute. In so doing, the Maryland Supreme Court stated that "[c]onsidering the purpose of proportionality review in death sentence cases, the language of [the relevant statute], the law in other jurisdictions with proportionality review provisions like our own, and the views expressed by legal commentators, we conclude that the legislatively intended inventory of cases from which 'similar cases' are to be culled encompasses only those first degree murder cases in which the State sought the death penalty ... whether it was imposed or not." Tichnell v. State, 297 Md. at 464, 468 A.2d at 17 (1983). MISSISSIPPI: Mississippi proportionality review is mandated by statute. Mississippi courts "review the record in this case and compare it with other capital murder cases in which [the Supreme] Court has entered judgment." Foster v. State, 639 So.2d 1263, 1303 (Miss.1994). MONTANA: Montana proportionality review is mandated by statute. The Montana Supreme Court compares "cases appealed to this court which involved similar crimes for which the death penalty was or could have been imposed." State v. Kills on Top, 241 Mont. 378, 787 P.2d 336, 351 (1990). Although this statement could be interpreted as including cases in which the defendant could have been charged with a capital offense but was not, the Montana Supreme Court seems to limit its review to cases where a capital felony was actually charged, whether or not the sentence of death was imposed. NEBRASKA: Nebraska proportionality is mandated by statute. In State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987), the Nebraska Supreme Court rejected proportionality review that included those cases that could have been prosecuted as capital offenses but had not been. NORTH CAROLINA: North Carolina proportionality review is mandated by statute. "In comparing similar cases for purposes of proportionality review, we use as a pool for comparison purposes all cases arising since the effective date of our capital punishment statute ... which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury's failure to agree upon a sentencing recommendation within a reasonable period of time.... The pool includes only those cases which this court has found to be free of error in both phases of the trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Bacon, 337 N.C. 66, 104-105, 446 S.E.2d 542 (1994). SOUTH CAROLINA: South Carolina proportionality review is mandated by statute. The review engaged in by the court, however, is limited to previous capital punishment decisions. See, e.g., Riddle v. State, 443 S.E.2d 557, 565 (S.C.1994). VIRGINIA: Virginia proportionality review is mandated by statute. In conducting such review, the Virginia Supreme Court "ha[s] accumulated the records of all capital felony cases ... as a guide in determining whether the sentence imposed in the case under review is excessive." (Internal quotation marks omitted.) Turner v. Commonwealth, 234 Va. 543, 556, 364 S.E.2d 483 (1988). WASHINGTON: Washington proportionality review is mandated by statute. Further, the universe of cases that the Washington Supreme Court will consider in conducting proportionality review is statutorily mandated. The cases from which this comparison takes place are those "reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed ... and cases in which reports have been filed with the Supreme Court [for convictions of aggravated first degree murder] under [Wash.Rev.Code] § 10.95.120." (Internal quotation marks omitted.) Ramseyer v. Blodgett, 853 F.Supp. 1239, 1288 (W.D.Wash.1994). WYOMING: Wyoming proportionality review is mandated by statute. The Wyoming Supreme Court's review is mandated by statute. The Wyoming Supreme Court's review is " 'guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.' " Engberg v. State, 686 P.2d 541, 554 (Wyo.), cert. denied, 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984), quoting Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3010- 11, 77 L.Ed.2d 637 (1983). In conducting this review, the Wyoming Supreme Court looks to other capital cases. Id., at 555. It also looks to cases from other states. Id. A minority of states conduct proportionality review using a more narrow universe of cases. ALABAMA: Alabama is not required to conduct proportionality review. Nonetheless, in Nelson v. State, 511 So.2d 225, 244 (Ala.Crim.App.1986), the court took judicial notice of the fact that similar crimes are being punished capitally throughout this state. ILLINOIS: Illinois has no specific proportionality requirement. In order to satisfy the eighth amendment requirement that the death penalty is imposed in a rational, consistent, non-arbitrary manner, however, the "court will examine the facts of that particular case and the evidence introduced at the trial and death penalty hearing, and, as a matter of reference, it may consider the sentence imposed on an accomplice or a co-defendant in light of his involvement in the offense." People v. Bean, 137 Ill.2d 65, 135, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990). INDIANA: Indiana has no proportionality requirement. Instead, the Indiana Supreme Court has held that "because of statewide jurisdiction over ... cases involving the death penalty or life imprisonment, we are confident that through continuous and exclusive review of such cases, no sentence of death will be freakishly or capriciously applied in Indiana." Schiro v. State, 451 N.E.2d 1047, 1052 (Ind.1983). KENTUCKY: Kentucky conducts its statutory proportionality review by considering "all cases in which the death penalty was imposed after January 1, 1970." Sanders v. Commonwealth, 801 S.W.2d 665, 684 n. 10 (Ky.1990). The Kentucky Supreme Court specifically rejected a claim that such a narrow class of cases was "not sufficient to determine if the death penalty is being applied in an arbitrary and capricious manner." (Internal quotation marks omitted.) Id., at 683. LOUISIANA: Louisiana does not have statutorily mandated proportionality review. Nonetheless, that court considers "comparative proportionality review ... a relevant consideration in determining the issue of excessiveness in Louisiana." State v. Davis, 637 So.2d 1012, 1031 (La.1994). Although Louisiana has not set forth explicitly those cases that it considers similar, it can be inferred from the cases that the court considers only cases in which the death penalty has been imposed. Id. (in conducting proportionality review, "[t]his court has consistently affirmed death penalties in other cases involving killings during the course of a robbery"). MISSOURI: Missouri does not have statutorily required proportionality review. Nonetheless, its Supreme Court compares cases to other cases in which the death penalty has been imposed. See State v. Reuscher, 827 S.W.2d 710 (Mo.1992). NEVADA: Nevada proportionality review is mandated by statute. The Nevada Supreme Court's review, however, is extremely cursory, comparing cases only to others with similar fact patterns where the death penalty had been imposed. E.g., Libby v. State, 109 Nev. 905, 919, 859 P.2d 1050 (1993) ("[c]onsidering the heinous nature of the killings, we conclude that the sentence was not excessive or disproportionate to the penalty imposed"). NEW JERSEY: New Jersey, in 1992, amended its proportionality review, limiting it to a comparison of similar cases in which a sentence of death has been imposed. N.J.Stat.Ann. § 2C:11-3 (West). NEW MEXICO: New Mexico proportionality review is mandated by statute. The New Mexico Supreme Court will "review [the proportionality] issue only when raised on appeal. " (Emphasis in original; internal quotation marks omitted.) State v. Wyrostek, 117 N.M. 514, 521, 873 P.2d 260, 267 (1994). Further, the purpose of proportionality review "is best achieved when a court of statewide jurisdiction ... conduct[s] comparisons between death sentences imposed by different judges or juries within the State. " (Emphasis added; internal quotation marks omitted.) Id., at 523, 873 P.2d at 269. The court also noted that "[t]he determination of whether a death sentence is excessive or disproportionate requires review of the facts in the trial record pertaining to the crime, including evidence of aggravation and mitigation.... Evidence of aggravation and mitigation is not fully developed until after conviction when such evidence is presented during the sentencing phase of the capital murder trial.... Thus, the determination of death sentence proportionality could happen no earlier than after the evidence of aggravating and mitigating circumstances has been presented at the sentencing hearing." (Citations omitted; emphasis added.) Id., at 518, 873 P.2d at 264. OHIO: Ohio proportionality review is mandated by statute. "[T]he proportionality review mandated by [the statute] is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed.... [It] does not require a review of those cases in which a sentence of life imprisonment is imposed.... [W]e continue to believe that the proportionality review conducted by appellate courts in this state is the best available approach to ensure fair sentencing determinations...." (Internal quotation marks omitted.) State v. Davis, 63 Ohio St.3d 44, 50, 584 N.E.2d 1192 (1992). "Additionally ... disparity of sentence does not justify reversal of a death sentence when the sentence is neither illegal nor an abuse of discretion." State v. Green, 66 Ohio St.3d 141, 151, 609 N.E.2d 1253 (1993). TENNESSEE: Tennessee proportionality review is mandated by statute, comparing only cases in which the death penalty was imposed. See State v. Howell, 868 S.W.2d 238 (Tenn.1993). A small number of states decline to conduct any sort of proportionality review. CALIFORNIA: California has no statutorily required proportionality review and has never imposed such review judicially. See People v. Lang, 49 Cal.3d 991, 1045, 782 P.2d 627, 264 Cal.Rptr. 386 (1989) ("[The d]efendant's motion in the trial court requested intercase review, an examination of whether imposition of the death penalty in this case is disproportionate to the penalties imposed on other persons for similar offenses. Intercase proportionality review is not constitutionally required ... and we have consistently declined to undertake it.... We likewise decline to authorize or require intercase proportionality review by trial courts." [Citations omitted.] ) COLORADO: Colorado has no statutory proportionality review, and none is engaged in by the court. See People v. Davis, 794 P.2d 159 (Colo.1990). OKLAHOMA: Oklahoma proportionality review, formerly governed by statute, was abolished by the legislature in 1985. Prior to the repeal of proportionality review, the Oklahoma Supreme Court would "look to all of the facts and circumstances of the particular case to determine whether the sentence imposed shocks the conscience of this Court." Battenfield v. State, 816 P.2d 555, 564 (Okla.Crim.App.1991). OREGON: Oregon does not require proportionality review, either by statute or by court edict. See State v. Cunningham, 320 Or. 47, 880 P.2d 431, 441-42 (1994). TEXAS: Texas does not conduct proportionality review. See Pulley v. Harris, supra, 465 U.S. at 49-50, 104 S.Ct. at 878-79. UTAH: Utah does not conduct proportionality review. See State v. Carter, 888 P.2d 629, 657 (Utah 1995). Arizona, New Hampshire, New York and South Dakota all have proportionality review mandated by statute but the universe of cases that they will consider is not clear from reported decisions.

People v. Seaton(CA) Defendant's affirmative consent to continue trial also waives any constitutional objection to the denial of a speedy trial.

People v. Ochoa(CA) Witness's failure to identify defendant from photo line-up from homicide did not make evidence for that murder count substantially weaker than evidence from other murder count to make joinder improper where witness made positive live line-up identification, and where there was other supporting evidence.

State v. Dunster(Neb) Relief denied on claims the trial court erred by: "(1) failing to grant Dunster’s June 8, 1999, request to disqualify the public defender’s office, (2) failing to grant the public defender’s July 13, 1999, request to withdraw and in failing to hold an evidentiary hearing prior to denying the July 13 request, (3) granting Dunster’s request to proceed pro se during the guilt phase, (4) accepting Dunster’s guilty pleas, and (5) improperly advising Dunster before accepting his pleas of guilty. Dunster further contends the public defender’s office violated Dunster’s constitutional rights in (6) failing to ask a single question, raise a single objection, or make a single argument on Dunster’s behalf during the competency hearing. Dunster alleges the trial court further violated his constitutional rights during the sentencing phase of the proceedings in (7) failing to appoint counsel to argue against the death penalty; (8) considering, in violation ofGardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), the confidential mental health information included in the presentence report; (9) imposing a death sentence where only aggravating circumstance (1)(a) was present; and (10) placing too much weight on aggravating circumstance (1)(a)."

Payton v. Woodford(CA) Prosecutor's misstatement during closing argument, that jury could not consider mitigating circumstances in penalty phase of trial, is harmless given curative jury instruction that they could consider those circumstances.

People v. Lewis(CA) Trial court in capital case could excuse prospective juror who stated that the prosecution would have to convince him of the need for capital punishment—not only under the particular facts of this case, but also as a general proposition—before he would vote to impose it.

State v. Jalowiec(Ohio) Application for reopening appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel denied when claimant fails to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal before the court of appeals, as required by App.R. 26(B)(5).

State v. Scott (Ohio) Claim of incompetency under R.C. 2949.28(A) dismissed for want of probable cause as there is no prohibition against cruel and unusual punishment precludes the execution of mentally ill persons who understand their crimes and the capital punishment they face - R.C. 2949.28(B) does not require a hearing to determine probable cause. Burden to challenge competency is on the defense - R.C. 2949.29(C).

Other Notable Cases (As reported by Findlaw, and other sources)

In re: Clemmons(6th Cir) Apprendi does not apply retroactively to cases on collateral review by the Supreme Court.

Herbst v. Cook(9th Cir.) A district court may raise statute of limitations issues sua sponte in habeas proceedings, but must provide petitioner with adequate notice and an opportunity to respond.

Beck v. Bowersox(8th Cir.) In a habeas claim challenging the denial of a suppression motion, the petitioner is entitled to have the transcript of the suppression hearing in the state court record.

Wanatee v. Ault(8th Cir.) Defense counsel's failure to advise client of the potential application of the felony-murder rule to a plea bargain for second-degree murder constitutes ineffective assistance of counsel.

Garvin v. Farmon(9th Cir.) Confession provided three days after previous interrogation that violated Miranda is not invalid where defendant reinitiated contact with officers.

Melancon v. Kaylo(5thCir) Prisoner's habeas petition was not "pending" in state court under 28 USC 2244(d)(2) when he failed to file an application for a supervisory writ with the Louisiana Court of Appeal, and failed to obtain an extension.

Frye v. Hickman(9thCir.) Under the AEDPA, an attorney's negligent failure to file a habeas petition within the one-year statute of limitations does not equitably toll the statute of limitations.

Jackson v. Miller(7thCir.) A hearing to execute a sentence previously imposed is not a critical stage of the criminal litigation, so a defendant does not have a Sixth Amendment right to counsel.

United States v. Villalpano(8thCir) Under Fed. R. Crim. P. 33, the seven-day requirement for filing a new trial motion for ineffective assistance of counsel will not prohibit newly appointed counsel from filing new claims of ineffective assistance of prior counsel when court requests supplemental briefing on that issue.

Parker v. Kema(8thCir) Defense counsel's failure to impeach prosecution witness does not constitute ineffective assistance of counsel where evidence is sufficient to support a conviction even without that witness's testimony.

Dils v. Small(9thCir.) Under the AEDPA, a subsequent habeas petition may not relate back to earlier habeas petition where the earlier petition was dismissed before defendant filed the subsequent petition.

Cannon v. Gibson(10thCir) For habeas purposes, prosecution's failure to produce warrants at thesuppression hearing does deprive defendant of his ability to fully and fairly litigate his illegal-arrest claim where defendant had the opportunity to expand the record in state appeals process.

Gilchrist v. O’Keefe(2ndCir) A defendant may forfeit the right to counsel, without prior warning from the court, for physically attacking his attorney.

United States v. Le May(9thCir) Fed. R. of Ev. 414, which allows evidence of prior acts of child molestation into child molestation cases, does not violate a defendant's right to due process.

Cunningham v. Scibana(4th Cir.) Tampering with a consumer product with reckless disregard for and extreme indifference to the risk of human death or injury, in violation of 18 USC 1365(a), is a crime of violence for purposes of the Federal Bureau of Prisons drug treatment early release program.

Featured

To return next week.

Errata

From theDeath Penalty Information Centerreports:

NEW RESOURCES: Seattle Post-Intelligence Features Series on Inadequacy of Death Penalty Defense

A recent 3-part investigative series by Lise Olsen examines problems associated with WashingtonÕs representation of capital defendants. Some highlights of the series, which is available in its entirety at http://seattlep-i.nwsource.com/specials/deathpenalty/, include: Monday, August 6 - This first part of the series finds that one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. The article notes that judges contributed to the problem by appointing inexperienced local lawyers to defend capital defendants instead of those recommended by the state.Counties often pay these defense attorneys so poorly that they cut corners, putting convictions and sentences on shaky legal ground.The article also found that of the three cases that have led to executions, each was tainted by poor lawyering; one man was defended by a lawyer who was later disbarred, one by a prosecutor who was later disbarred, and the third man represented himself.

Tuesday, August 7 - This piece highlights the lack of uniformity in how elected prosecutors deal with potentially capital cases.The article notes that cost and location are critical elements.Prosecutors in some counties face pressure to plea-bargain a case rather than endure costly trials followed by years of appeals.ÒWeÕre so small, I could never afford a death penalty case,Ó said John R. Henry, a prosecutor in tiny Garfield County who has vowed never to pursue a capital conviction. In addition, the article notes that only 20 of the 39 counties in Washington have used the death penalty as a prosecution tool. Wednesday, August 8 - Olsen reports on the disparity in how defense attorneys are paid throughout the state.Capital defense lawyers in Clark County are paid a flat rate of $12,500 per case - a rate that breaks down to $12.50 - $25 an hour, based on the 500 - 1,000 hours of pretrial work experts say cases usually require. Elsewhere in the state, though, death penalty attorneys are paid six times that much. Kate Jones, an indigent-defense expert with the National Association of Criminal Defense Lawyers says that flat fees are the worst way to pay for public defense because they encourage lawyers to cut corners, push for guilty pleas and neglect clients.

(Seattle Post-Intelligence, August 6-8, 2001) See also, articles about the death penalty.

Texas Paper Condemns Upcoming Execution of Juvenile Offender; Prominent Organizations Call for Clemency

The pending execution of Napoleon Beazley, a juvenile offender in Texas scheduled to be executed on August 15, prompted the following Austin American-Statesman editorial:

With a horrified world watching, Texas plans to execute Napoleon Beazley next week. If Beazley is killed, it will be to the detriment of justice.

Gov. Rick Perry, his Board of Pardons and Paroles and the courts should block this execution and seek a lesser penalty for several reasons. One is that Beazley was a minor when the murder for which he was sentenced was committed. Another is evidence suggesting that racial prejudice, procedural unfairness and inaccurate testimony about the youth's danger to society led to the death sentence.

(Austin American-Statesman, editorial, 8/8/01)

The American Bar Association, the Children's Defense Fund, the European Union, and the National Mental Health Association have all written letters to Texas Governor Perry asking that he commute Beazley's sentence.The letters note the international consensus against executing juvenile offenders, and point out that executing Beazley is contrary to the International Covenant on Civil and Political Rights and the American Convention on Human Rights.

Among those calling for clemency is Amnesty International, which released a report on Beazley's case, "United States of America: Too young to vote, old enough to be executed."The report highlights the international, racial, and fairness issues surrounding Beazley's case. Beazley, an African-American, was sentenced to death by an all-white jury for the 1994 killing of John Luttig, a white businessman whose son is a federal appeals court judge.At Beazley's trial, his co-defendants testified against him, but have since signed affidavits admitting that much of their critical trial testimony was untrue. They also admit that they testified for the state against Beazley on the basis of an undisclosed deal that secured them life sentences.(Amnesty International News Release, 7/31/01 and the American Bar Association's Juvenile Justice Project)

Read Amnesty International's Press Release and the report, "United States of America: Too young to vote, old enough to be executed." For more information, see the American Bar Association's Juvenile Justice Project's Web page on Napoleon Beazley. See also, Juveniles and the death penalty American Bar Association Urges Moratorium on Federal Death Penalty; Releases Death Penalty Protocols

Martha Barnett, the outgoing President of the American Bar Association, recently sent a letter to Congress on behalf of the more than 400,000 members of the ABA urging a moratorium on the federal death penalty.In her letter to the Senate and House Judiciary Committees, Barnett noted that 11 wrongly convicted death row inmates have been freed from death row in the last year and a half, and stated: "This situation is unacceptable in our country."Citing recent studies on the death penalty, Barnett asked the committees to support the National Death Penalty Moratorium Act and the Innocence Protection Act, stating, "we now have empirical data that shows, in fact, this system is broken."Although the ABA does not have a policy on the death penalty in general, it opposes the execution of juvenile offenders and those with mental retardation.In 1997, the ABA's policymaking body issued a resolution supporting a moratorium on all executions. (Reuters, 8/3/01) Read the 1997 resolution.

Recently, the ABA's Section of Individual Rights and Responsibilities released, "Death without Justice:A Guide for Examining the Administration of the Death Penalty in the United States" which provides protocols for state commissions, legislatures and others considering the fairness of the death penalty.In addition, the Section released a report on moratorium developments that have occurred in the past 18 months.See also, recent studies and reports on the death penalty.

UPCOMING EVENTS: The Pew Forum on Religion and Public Life is sponsoring "A Call for Reckoning: Religion and the Death Penalty" in Chicago on January 25, 2002. This conference will address a broad range of views on the death penalty offered by representative faiths and traditions in the United States.For more information, see DPIC's Upcoming Events page.

NEW RESOURCES: The latest edition of the American Bar Association's Section of Individual Rights and Responsibilities magazine, Human Rights, focuses primarily on capital punishment."The Death Penalty: Real Lives in the Balance" features articles on moratorium movements, the U.S. Supreme Court, international perspectives, the executions of those with mental disabilities and other issues. (Human Rights, Summer 2001) The issue will soon be available at http://www.abanet.org/irr/hr.html. See also, articles on the death penalty.

NEW VOICES: Massachusetts State Senator Changes Position, Calls for Moratorium

State Senator Stephen F. Lynch, who has supported the death penalty for the past 5 years in the state Senate, has changed his position on the death penalty and is calling for a moratorium on executions.Lynch said he altered his views largely based on evidence of wrongful convictions presented by the Innocence Project, a group that helps inmates prove their innocence."Let me put it this way," Lynch said."I would be reckless to see that evidence before me and not take a step back." (Boston Globe, 8/4/01) See also, New Voices.

Arizona Death Penalty Commission Releases Recommendations

A commission appointed last year by Attorney General Janet Napolitano to study how capital punishment is administered in Arizona released an interim report of their findings.The commission, which includes prosecutors, defense attorneys, judges, victim advocates, and others, reviewed 230 cases involving the death penalty and offered several suggestions for improving the state's capital punishment system, including:

Create a statewide public defender's office to represent defendants in death penalty cases.

Commute death sentences to the maximum prison sentence possible when a defendant is found mentally incompetent after a death warrant is issued.

Prohibit the execution of juvenile offenders and the mentally retarded.

The ban on executing the mentally retarded was signed into law earlier this year, and Napolitano said she backed most of the other recommendations, saying, "If the state wants to continue to have the death penalty, they better fund some of these things."(Associated Press, 8/4/01) Read the report. See also, proposed legislative changes.

North Carolina Governor Signs Mental Retardation Bill Gov. Michael Easley signed into law a bill that forbids the execution of defendants with mental retardation in North Carolina. Capital defendants may seek to have themselves declared mentally retarded in a pre-trial hearing if the prosecutor consents, or after their trial.The post-trial determination requires a unanimous jury verdict.To be ruled mentally retarded, defendants must score 70 or below on an IQ test and must prove they had intellectual and adaptive disabilities before age 18.North Carolina becomes the 18th state to ban the execution of the mentally retarded, in addition to the 12 states that ban the death penalty completely.

The law also applies to those currently on death row.According to the NY Times, "North Carolina officials plan to advise the [U.S. Supreme] court on Monday of the new legislation and arguge that the McCarver case is therefore moot."The Court decided to hear the case of Ernest McCarver, a North Carolina death row inmate with mental retardation, to determine the constitutionality of executing those with mental retardation.(N.Y. Times 8/4/01, Wash. Post 8/5/01).See also, mental retardation and the death penalty and proposed legislative changes.

Nebraksa Supreme Court Rules Death Sentences Must be Unanimous

The Supreme Court of Nebraska, where 3-judge panels generally decide death sentences, has ruled that such sentences are unconstitutional when determined with only a 2-1 majority.(N.Y. Times 8/4/01).In most states, a unanimous 12-person jury decides on death sentences.