Two cases in this edition (covering cases decided August 4-18, 2003) are of national note. In Tennessee v. Robinsonthe Tennessee Court of Criminal Appeals has reversed on the trial court's failure to charge certain lesser-included offenses. Remarkable in this decision, however, is what the Court ordered next. In what the court appears to state is a case of first impression for that Court, it barred the prosecution from seeking the death penalty on remand due to intra-case "proportionality issues" discussed at length in the excerpts provided below from that decision.

Spears v. Mullinis likewise remarkable for the grant of relief on what is often pleaded as a "throw away" garden variety claim. Specifically, a Tenth Circuit panel vacated a death sentence for the introduction into evidence of rather gruesome photographs depicting the decedent's numerous post-mortem stab wounds. This decision is noteworthy as the state had argued at the penalty phase the aggravator of heinous, atrocious and cruel.

Elsewhere the Fifth Circuit in Guy v. Cockrell ordered a remand to examine a claim of ineffective assistance of counsel on whether the legal team's investigator had a conflict of interest due to his involvement with the murder victim's mother and whether failed to "investigate thoroughly" Guy's mitigation evidence as a result of this alleged conflict. InDeere v. Woodford a remand has been ordered on the issue competency to stand trial & plead guilty. The Texas Court of Criminal Appeals, although it has yet to elucidate its rationale, granted a stay to Mark Robertson on a "Penry" issue concerning the ability to present evidence in mitigation.

In a less happy development reminiscent of the darker days of the death penalty's recent history, the Fourth Circuit en banc in Rouse v. Leehas denied all federal review to a capital habeas petitioner for filing his habeas petition exactly one (1) day late.

Focus this week covers excerpts (courtesy of the Death Penalty Information Center) of Judge Wolf's rather lengthy opinion in United States v. Sampson on the risk of error in capital cases.

Please note that this week's edition was prepared using new software and the formatting may appear "off" on some computer systems.

As always, thanks for reading and your continued work in the area of capital defense. - k

EXECUTION INFORMATION

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

The Texas Court of Criminal Appeals on Tuesday halted the scheduled August 20th execution of Mark Robertson after his counsel, Randy Schaffer, argued jurors should have been allowed to consider his troubled childhood during sentencing. The execution of Ricky Lynn Lewis, also in Texas, was stayed by a federal district court for unknown reasons at this time. Both dates were considered serious. Congratulations to all counsel.

The following execution dates are believed to be serious:

HOT LIST

Tennessee v. Robinson, 2003 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. 8/13/2003) New trial "mandated because of the failure to charge proper lesser-included offenses." State barred from seeking the death penalty on remand due to "proportionality issues" as set forth below

Our statutory proportionality review made pursuant to Tennessee Code Annotation section 39-13-206(c)(1)(D) involves the comparison of only those cases in which a capital sentencing hearing was conducted. State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997), cert. denied, 523 U.S. 1083, 140 L. Ed. 2d 686, 118 S. Ct. 1536 (1998). Our state supreme court recently declared it would not consider the lesser sentences imposed upon co-defendants in making its proportionality [*152] review where co-defendants were not subjected to capital proceedings. Austin, 87 S.W.3d at 465-66. Consequently, this court will not consider the sentences imposed upon Antonio Jackson, Jarvis Shipp, or Kevin Wilkins. However, because Prentiss Phillips' sentence was likewise imposed by a jury during a capital sentencing hearing, we must consider it as part of our proportionality review.

If there is a rational basis for the jury's decision to impose the death penalty upon one perpetrator but not a co-perpetrator, the sentences are not disproportionate. State v. Cauthern, 967 S.W.2d 726, 741 (Tenn.), cert. denied, 525 U.S. 967, 142 L. Ed. 2d 336, 119 S. Ct. 414 (1998). In Cauthern, our state supreme court found Cauthern, who received the death penalty, was the more culpable offender, while his co-defendant Patterson, who received a life sentence, had expressed remorse, gave consistent statements to law enforcement, and presented mitigating proof to the jury concerning his military service and life history. Therefore, there was a rational basis for different sentences. Id.

In the instant case, we are unable to find a rational basis to justify the imposition [*153] of the death penalty upon the defendant, but not upon Phillips, for the same murder. In this trial, the defendant was portrayed by the state as the ranking Gangster Disciple who ordered the murder. In co-defendant Phillips' trial, Phillips was portrayed by the state as the ranking Gangster Disciple who ordered the murder. Both the defendant and co-defendant Phillips were convicted of the same murder upon the same theory of criminal responsibility based upon giving orders for the murder; neither was present at the scene of the murder. The state relied upon the identical two aggravators in both cases. The jury found both aggravators applicable to the defendant; yet, even though the underlying facts supporting the "heinous, atrocious, or cruel" aggravator were exactly the same in both cases, the jury, as was clearly its prerogative, declined to apply this aggravating factor in co-defendant Phillips' case. Thus, because the underlying facts supporting this aggravator were identical in both cases and neither defendant was present at the scene of the murder, we are unable to give any significant weight to the fact that the defendant had two aggravators and co-defendant Phillips had one aggravator. [*154] Moreover, after reviewing the evidence presented at both capital sentencing hearings, we cannot say that Phillips presented more compelling mitigating evidence than the defendant. In fact, the opposite is true because the only mitigating testimony presented by Phillips was that of his mother, who testified very briefly about his childhood and family. The Rule 12 report indicates Phillips had a prior rape conviction, whereas the defendant's Rule 12 report indicates the defendant had a prior record but does not identify the offense or offenses. Statements during the trial indicate the defendant had a recent conviction for simple possession of a controlled substance and a prior "dope charge . . . back in the nineties."

We are forced to conclude that these two cases are extremely similar, and the imposition of the death penalty upon the defendant, and not upon co-defendant Phillips for the same murder, would be comparatively disproportionate. We have also noted the differences in this case as compared to other cases where the non-triggerman defendant was not present at the scene of the homicide.

In so finding, this court is in no way implying that the Phillips' jury reached an improper [*155] verdict of life without parole; this was clearly within the jury's prerogative. Furthermore, the defendant's jury did not erroneously sentence the defendant to death based upon the evidence before it. In fact, the defendant was tried before Phillips; thus, the defendant's jury could not know what the Phillips' jury would do.

A proportionality review is not constitutionally required. Bland, 958 S.W.2d at 663. Instead, our proportionality review is required by statute and is based upon information unavailable to the jury, namely, a comparison with other cases. See Tenn. Code Ann. § 39-13-206(c)(1)(D). It is strictly a resource that is to be applied by appellate courts to prevent a disproportionate death sentence. Id. However, if our statutory review reflects that a defendant's sentence of death is disproportionate to similar cases, it may not stand. See Godsey, 60 S.W.3d at 793. We conclude in this case the defendant's sentence is disproportionate to the penalty imposed in similar cases, especially that of co-defendant Phillips, and cannot withstand statutory scrutiny.

REMAND

This case will occupy a unique [*156] status upon remand because we have concluded (1) the state's evidence and arguments in the defendant's trial and co-defendant Phillips' trial were inconsistent, contradictory, and irreconcilable, thereby depriving the defendant of due process as it relates to the sentence of death; and (2) the defendant's sentence of death is comparatively disproportionate to similar cases, especially co-defendant Phillips' case.

Because the state presented inconsistent evidence at co-defendant Phillips' trial relating to rank, the state upon retrial is barred from presenting evidence or arguing during any of the proceedings that the defendant was the highest ranking Gangster Disciple at the apartment or held a higher rank than Phillips. n12 However, the state is not precluded from presenting evidence that the defendant was a high ranking Gangster Disciple nor is it precluded from presenting evidence that the defendant outranked those other than Phillips. See Smith, 205 F.3d at 1054 (holding prosecutor is barred from using evidence upon remand that is inconsistent with that used in trial of co-defendant); see also Poulin, Prosecutorial Inconsistency, 89 Calif. L. Rev. at 1478 [*157] ("If new evidence favorable to the first-tried defendant prompted the prosecution's change in position, that defendant should be given the benefit of the new evidence.").

We have further found the sentence of death is disproportionate. We must now determine whether the defendant is eligible for the death penalty upon remand. The "clean slate" rationale of allowing the state to seek the death penalty upon retrial of a capital case does not apply "whenever a jury agrees or an appellate court decides that the prosecution has not proved its case." Bullington v. Missouri, 451 U.S. 430, 443, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981). [*158] However, the defendant was "initially sentenced to death and [has] not been acquitted of the death penalty" by the jury. State v. Harris, 919 S.W.2d 323, 330 (Tenn. 1996). Our conclusion that the defendant's due process rights relating to the death penalty were violated by the prosecution's use of inconsistent evidence is a legal error, not a matter of insufficient evidence. See id. However, we reach a different conclusion with regard to disproportionality. Although this is a matter of first impression, we conclude that a finding of disproportionality is a determination by "an appellate court . . . that the prosecution has not proved its case" within the meaning of Bullington. 451 U.S. at 443. We also note that had the defendant been unsuccessful on all issues except disproportionality, this court would have affirmed the murder conviction and reduced the sentence to life without parole, thus, making him ineligible for the death penalty. See Godsey, 60 S.W.3d at 793. Because the defendant has also been successful in securing a new trial as to guilt or innocence, it would be improper and punitive for the defendant to face the [*159] possibility of the death penalty simply because he was also successful in securing a new trial. Thus, the state may not seek the death penalty on remand.

Spears v. Mullin, 2003 U.S. App. LEXIS 16586 (10th Cir 8/12/2003) "We agree with the district court that the introduction into evidence of the photographs depicting Thompson's numerous post-mortem stab wounds, large gash wounds, exposed intestines and swollen face and black eye rendered the second stage fundamentally unfair. Because the heinous, atrocious, or cruel aggravator focuses on Thompson's conscious suffering, and the evidence showed Thompson died or lost consciousness early on in the beating, the photographs of all of his injuries were unduly prejudicial at the second phase."

Contrary to the OCCA, the federal district court held that the photographs denied Spears and Powell a fundamentally fair sentencing proceeding because the photographs' prejudicial effect outweighed their probative value:None of the stab wounds focused on in the photographs can be considered probative of the question of conscious physical suffering, the only injuries arguably being relevant to such a determination being those from the beating. While the jury was not instructed that it had to find "conscious physical suffering," it was instructed it had to find the victim's death was preceded by torture or serious physical abuse. . . . Because none of the stab wounds occurred while the victim was conscious or preceded his death, such injuries cannot be considered relevant to the question before the jury.Spears v. Gibson, No. CIV-96-1862-M, slip op. at 44-45 (W. [*18] D. Okla. Oct. 15, 2001); Powell v. Ward, No. CIV-97-516-M, slip op. at 63 (W.D. Okla, Aug. 22, 2001). This improper evidence, along with the lack of evidence of conscious physical suffering during the beating, caused the district court to conclude that the second-stage proceedings were unconstitutionally infirm. n5

Having viewed the photographs and reviewed the entire record, we agree with the district court that the introduction into evidence of the photographs depicting Thompson's numerous post-mortem stab wounds, large gash wounds, exposed intestines and swollen face and black eye rendered the second stage fundamentally unfair. Because the heinous, atrocious, or cruel aggravator focuses on Thompson's [*19] conscious suffering, and the evidence showed Thompson died or lost consciousness early on in the beating, the photographs of all of his injuries were unduly prejudicial at the second phase. See Willingham, 296 F.3d at 928-29 (citing Powell, 906 P.2d at 780). Instead, the gruesome photographs potentially misled the jury, as they necessarily had a strong impact on the jurors' minds. Minimal evidence suggested Thompson was conscious or even alive during the stabbing. n6 At most, two of the fifty to sixty stab wounds were peri-mortem. Neither the peri-mortem stab wounds nor conscious suffering were connected to the specific photographs. The photographs do not show any defensive wounds, nor do they support, clarify, or illustrate any testimony indicating Thompson consciously suffered physical abuse before his death. See Jackson, 143 F.3d at 1322; Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997).

Even if the photographs were minimally relevant to the heinous, atrocious, or cruel aggravator, the photographs' prejudicial effect outweighed their probative value. Important to this conclusion is the fact that the State waited until the second stage to introduce the photographs. By contrast, the State introduced comparatively innocuous photographs at the first stage, seeming to deliberately await the second stage to present the more gruesome photographs solely for their shock value. Because the photographs were the primary aggravating evidence specifically presented at the second stage, they constitute a major part of the State's second-stage case.

As the OCCA observed, and as set forth above, a paucity of evidence supported the heinous, atrocious, or cruel aggravator. See Powell, 906 P.2d at 780; Spears, 900 P.2d at 443. As to the "avoid arrest or prosecution aggravator" found by the jury, while there was some evidence to support the aggravator, we agree with the district court that such evidence was not particularly strong. n7 When viewed together with the mitigation evidence presented by Spears' and Powell's respective trial counsel, including [*21] evidence of Spears' and Powell's youth, intoxication at the time of the crime and their lack of prior criminal history, we conclude that such evidence was not sufficiently strong standing alone such that the jury would have returned a sentence of death. n8

This highly inflammatory evidence fatally infected the trial and deprived Spears and Powell of their constitutional rights to a fundamentally fair sentencing proceeding. The OCCA's decision that the photographs' relevance exceeded their prejudice was objectively unreasonable, see 28 U.S.C. § 2254(d); see also Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002) (requiring a habeas applicant to show that the state court applied Supreme Court law to the facts in an objectively unreasonable manner and distinguishing unreasonable and incorrect applications of law), and we conclude that the district court correctly decided that the photographs rendered the second stage of trial fundamentally unfair. n9 To the extent that the OCCA implicitly determined that the admission of the photographs did not render the second stage fundamentally unfair, we conclude that this was an unreasonable application of clearly established Supreme Court precedent. n10 See, e.g., Romano, 512 U.S. at 12; Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974); Bruton, 391 U.S. at 131 n.6.

SUPREME COURT

The Court is in recess until September.

CAPITAL CASES (Favorable Disposition)

Guy v. Cockrell, 2003 U.S. App. LEXIS 16632 (5th Cir 8/13/2003) Remand ordered to examine a claim of ineffective assistance of counsel on whether as the "result of his legal team's investigator's alleged conflict of interest arising from his relationship with French Howell, the murder victim's mother. In other words . . . whether failure to "investigate thoroughly" Guy's mitigation evidence resulted from this alleged conflict."

Deere v. Woodford, 2003 U.S. App. LEXIS 16543 (9th Cir 8/13/2003) Remand ordered on issue competency to stand trial & plead guilty where after the defendant plead guilty he demanded to be executed. Note: Expert at trial falsified credentials.

Goodin v. Mississippi, 2003 Miss. LEXIS 353 (Miss 8/7/2003) Leave granted "to proceed in the trial court on the issue of whether he is mentally retarded such that he may not be executed under Atkins v. Virginia."

CAPITAL CASES (Unfavorable Disposition)

Rouse v. Lee, 2003 U.S. App. LEXIS 16417 (4th Cir 8/11/2003) (en banc) (dissent) Petitioner barred from ever having his conviction and death sentenced reviewed on federal habeas because the petition was filed one day late. Barred from review was a possible winning claim of a very malignant form of racism infecting the jury pool, with at least one juror openly referring to all blacks as "niggers."

Graves v. Cockrell, 2003 U.S. App. LEXIS 16734 (5th Cir. 8/15/2003) COA granted but relief denied on claim that "the state failed to disclose to Graves that his co-defendant and key prosecution witness had informed the district attorney that Graves was not involved in the charged crime on the day before he testified to the contrary at Graves' trial."

McWilliams v. Cockrell, 2003 U.S. App. LEXIS 16761(5th Cir. 8/15/2003) (unpublished) COA & relief denied on "(1) the failure to inform the jury that, if sentenced to life in prison, he would be ineligible for parole for at least forty calendar years under Texas's capital sentencing scheme violated his Sixth Amendment right to effective assistance of counsel and Fourteenth Amendment rights to due process and equal protection; (2) he was denied his Eighth Amendment right to protection from cruel and unusual punishment; (3) the state habeas court wrongfully denied him access to sealed juror cards in violation of the Fourteenth Amendment due process clause; and (4) his appellate counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel."

Busby v. Cockrell, 2003 U.S. App. LEXIS 16761 (5th Cir. 8/15/2003) (unpublished) COA & relief denied on claims of "(1) whether the trial court's admission of the prison letters violated his Fourteenth Amendment due process rights; (2) whether the trial court's jury charge concerning the voluntariness of Busby's confession violated his Fourteenth Amendment due process rights; (3) whether the trial court's denial of Busby's request for an expert jury consultant violated his Sixth and Fourteenth Amendment rights to a fair trial; (4) whether the trial court's denial of Busby's request for a drug abuse expert violated his Sixth and Fourteenth Amendment rights to a fair trial; and (5) whether the trial court's failure to instruct the jury concerning parole eligibility violated Busby's Eight Amendment and Equal Protection rights."

Ex parte Manassa, 2003 Ala. Crim. App. LEXIS 177 (Ala. Crim. App. 8/8/2003) Mandamus denied on the issue of whether one can be guilty of capital murder by means of "transferred intent."

In re Barnett, 2003 Cal. LEXIS 5683 (CA 8/7/2003) "Consistent with the general rule that represented parties have no right to present their cases personally alongside counsel--a principle we have recognized in the context of both capital trials and appeals, and noncapital habeas corpus proceedings as well--this court will not file or consider a represented capital inmate's pro se submissions that challenge the legality of the inmate's death judgment or otherwise fall within the scope of counsel's representation. Conversely, we shall file and consider a represented capital inmate's pro se submissions that pertain to matters falling outside the scope of counsel's representation. We shall also file and consider pro se motions limited to matters concerning the inmate's representation."

Jackson v. Mississippi, 2003 Miss. LEXIS 355 (Miss 8/7/2003) Relief denied, most notably, on claims relating to entitlement to instruction on manslaughter; jury's verdict relating to whether the murder was intentional; constitutionality of the felony child abuse/battery provision of Mississippi's death penalty scheme; denied his rights to an independent, conflict- free, reliable and competent mental health evaluation; compultion to incriminate himself by submitting to a mental health examination; whether appellate counsel was ineffective; trial counsel's abandonment of an insanity defense; failure to investigate mitigation; and whether prosecutorial arguments and comments violated Jackson's rights and misinformed and misdirected the jurors on the law.

Byram v. Ozmint, 2003 U.S. App. LEXIS 16059 (4th Cir 8/6/2003) Relief denied on claims of ineffective assistance of counsel for defense counsel's improperly selecting jurors in violation of governing case law and that counsel did not have a coherent strategy for developing all available mitigation evidence

Bruce v. Cockrell, 2003 U.S. App. LEXIS 15555 (5th Cir 8/4/2003) Relief denied on claims that trial counsel, at the punishment phase of the trial, rendered ineffective assistance by failing to present evidence to rebut the State's evidence on the issue of future dangerousness; trial counsel rendered ineffective assistance by failing to investigate and present evidence of parental abuse and neglect; claims relating to Penry II; and that the petitioner received ineffective assistance of state habeas counsel.Chase v. Epps, 2003 U.S. App. LEXIS 16182 (5th Cir 8/7/2003) Relief denied most notably on whether "trial counsel was ineffective for failing to present evidence of his mental retardation at his suppression hearing, at trial, and at sentencing."

Nelson v. Cockrell, 2003 U.S. App. LEXIS 16605 (5th Cir 8/12/2003) (unpublished) Relief denied on: "(1) whether the special issue instructions used at trial provided the jury with an adequate vehicle to give mitigating effect to evidence in violation of the Eighth and Fourteenth Amendments as construed in Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989); (2) whether Nelson's counsel provided ineffective assistance by failing to request an instruction on the definition of reasonable doubt or by failing to raise this issue on direct appeal; and (3) whether the introduction of testimony by a state psychiatrist regarding future dangerousness violated the Fifth Amendment as construed in Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981)."

Arizona v. Dann, 2003 Ariz. LEXIS 106 (Az 8/14/2003) Multiple body/count convictions on both felony murder & premeditated murder. Relief denied on issues relating to: (1) sufficiency as to felony murder; (2) exclusion of evidence of third party liability; (3) trial court's comments upon the evidence & admission of inadmissible evidence; (4) absence during parts of the proceeding. Relief granted as to premeditated murder on improper jury instruction. Capital sentence to be evaluated at a later date pursuant to Ring v. Arizona.

California v. Brown, 2003 Cal. LEXIS 5686 (Cal 8/11/2003) Relief denied through a very liberal use of "harmless error" analysis on claims including at the guilt phase: (1) admission of certain out-of-court statements; (2) failure to permit witness impeachment through use of juvenile charges; (3) introduction of evidence of gang affiliation & nickname; (4) prosecutor's use of fear & future dangerousness in the guilt phase closing; (5) failure to give certain instructions on accomplice liability & unjoined co-perpetrators; and (6) certain circumstantial evidence instructions. Relief denied penalty phase on (1) failure to instruct on others sentences, ineligibility of co-defendant of capital punishment; pinpoint instructions; (2) consideration by the jury of unadjudicated offenses; (3) limitations on evidence in the penalty phase; and (4) improper rebuttal evidence

Oregon v. Hale, 2003 Ore. LEXIS 571 (Ore 8/14/2003) Appeal of conviction and death sentence relating to the murder of multiple victims with multiple aggravated murder convictions had for each victim. Conviction affirmed on claims relating to sufficiency of the indictment; exclusion of evidence of third party liability; unanimity guilt phase instructions; & jury instructions as to whether the murders were intentional. Trial court's failure to instruct the jury fully respecting the counts of aggravated murder predicated on an underlying felony (sexual abuse) reversed, however, as additional aggravators remain to support aggravated murder finding death sentences appear to remain. Remand ordered so that the trial court can reenter sentence to impose just one conviction of aggravated murder per victim instead of the multiple entries it had previously entered.

OTHER CASES OF NOTE

Paine v. Massie, 2003 U.S. App. LEXIS 16500 (10th Cir 8/11/2003) Remand ordered on trial counsel's failure to use an expert in "the field of battered woman syndrome" to explain the defendant's killing of her abusive husband.

United States v. Waggoner, 2003 U.S. App. LEXIS 15619 (9th Cir 8/5/2003)18 U.S.C. § 3005 does not "require that two attorneys be appointed whenever the government indicts a defendant for a crime punishable by death, even if the death penalty is not sought."

FOCUS

The focus section this week focuses on the excerpts from Federal District Court Judge Mark Wolf's (MA) Opinion in United States v. Sampson. The following excerpts are from Judge Mark Wolf's opinion allowing the federal capital prosecution of Gary Lee Sampson to proceed. In his decision, Judge Wolf of the Federal District Court in Boston expressed reservations about the risks of executing the innocent and appeared to criticize the Justice Department's zealous approach to seeking capital convictions. The headings for these excerpts, which are not part of the original text, are followed by page numbers that correlate with the referenced section of the full text. Read the full text of the decision.

DUTY OF THE COURTS

As the Supreme Court has repeatedly reiterated, whether a penalty constitutes cruel and unusual punishment is not determined by the standards of the eighteenth century when the Eighth Amendment was adopted. Rather, the Eighth Amendment must draw its meaning from "'the evolving standards of decency that mark the progress of a maturing society.'" Atkins v. Virginia, 536 U.S. 304, 311-12 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). It is, therefore, the duty of the courts to reconsider periodically whether the death penalty offends contemporary standards of decency. See §IV, infra.

RISK OF EXECUTING THE INNOCENT

[Sampson] has, however, persuaded the court that this is a serious question, that future developments could strengthen this argument, and that courts will have a duty to monitor carefully future legislation and jury verdicts concerning the death penalty in deciding what is likely to be the constantly recurring question of whether the risk of executing innocent individuals renders the death penalty generally, or the FDPA particularly, unconstitutional. See §VII, infra.

More specifically, in 1993, a majority of the Justices of the Supreme Court stated that the execution of an innocent person would violate the Constitution. See Herrera v. Collins, 506 U.S. 390 (1993). This court agrees.

The risk of executing the innocent has long been recognized. However, in the past decade substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood. In that period, DNA testing has established the actual innocence of at least a dozen inmates who had been sentenced to death. These developments have prompted the reinvestigation of many other capital cases, resulting in the release of more than 100 innocent individuals from the nation's death rows.

In deciding in 2002 that it is no longer constitutional to execute the mentally retarded, the Supreme Court wrote that "we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated." Atkins, 536 U.S. at 320 n.25. The government correctly asserts that the Supreme Court was addressing convictions obtained in state courts, rather than under the FDPA. The government contends that similar errors could not occur in federal courts.

The government's confidence that the FDPA will never lead to the execution of innocent individuals is not shared by the only federal judge to have conducted the trial of an FDPA case in Massachusetts. Judge Michael Ponsor presided in the trial of Kristen Gilbert, a nurse convicted of murdering four of her patients and attempting to murder three others. After the jury's 2001 verdict decided that she should be sentenced to life in prison, Judge Ponsor wrote that "[t]he experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people ­ not too often, one hopes, but undoubtedly sometimes." Appendix ("A-")-90, Michael Ponsor, "Life, Death, and Uncertainty," Boston Globe, July 8, 2001, at D2.

There are compelling reasons to believe that Judge Ponsor's prediction is prophetic. Federal judges, like state judges, are human and, therefore, fallible. Jurors in federal cases are essentially the same citizens who serve as jurors in state cases. In addition, many federal cases, including this one, result from investigations conducted primarily, if not exclusively, by state and local law enforcement.

THE LIKELIHOOD OF ERROR IN DEATH PENALTY SENTENCING

Important errors are, however, not always identified prior to death sentences being imposed, at times because of misconduct by state and federal investigators. It is now clear that in 1967 Joseph Salvati and several other individuals were unfairly convicted because the FBI had withheld information that its informants, rather than the defendants, had murdered Edward Deegan, and had allowed its informants to testify falsely against the innocent men. Several of the defendants, including Peter Limone, were sentenced to death. While those death sentences were reduced to life in prison following the invalidation of the death penalty by Furman, two of the wrongfully convicted men died in prison. Salvati, who was originally sentenced to life in prison, receiveda commutation and was released in 1997. Limone was released in 2001, after his wrongful conviction had been demonstrated. See United States v. Flemmi, 195 F. Supp. 2d 243, 251 (D. Mass. 2001).

The deliberate misconduct by federal investigators that was so belatedly revealed with regard to the Deegan murder is neither ancient history nor unique to Boston. Daniel Bright was, in 1996, convicted of murder by the state of Louisiana and sentenced to death. Several months ago, a federal judge found that the FBI had evidence that another person had claimed to have committed the murder, but the FBI violated the government's constitutional duty to disclose that evidence to Bright before his trial, and later lied to the federal judge about its existence. See Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003) and 259 F. Supp. 2d 502 (E.D. La. 2003).

The government misconduct concerning Salvati and Bright are not isolated occurrences. A recent study of capital cases from 1973 to 1995 reported that one of the two most common errors prompting the reversal of state convictions in which the defendant was sentenced to death was the improper failure of police or prosecutors to disclose "important evidence that the defendant was innocent or did not deserve to die." James S. Liebman, et al., A Broken System: Error Rates in Capital Cases, 1973-1995 at ii (2000). As indicated earlier, the performance of state and local police is important to the operation of the FDPA because many cases, including this one, have initially been investigated by them and later brought in federal court, at times in an effort to achieve a death sentence that is not available under state law.

Serious errors appear to be common in capital cases. After analyzing more than 4500 appeals of capital cases, the same study found that "the overall rate of prejudicial error in the American capital punishment system was 68%. " Id. at i (emphasis in original). As the authors later wrote:

For cases whose outcomes are known, an astonishing 82% of retried death row inmates turned out not to deserve the death penalty; 7% were not guilty. The process took nine years on average. Put simply, most death verdicts are too flawed to carry out, and most flawed ones are scrapped for good. One in 20 death row inmates is later found not guilty.

A-284, James Liebman, et al., "Technical Errors Can Kill," Nat'l L.J., Sept. 4, 2000, at A16.

In view of the foregoing, this court agrees with Judge Ponsor, among others, that the FDPA, like the state death penalty statutes, will inevitably result in the execution of innocent people. Since a majority of the Supreme Court stated in 1993 that the execution of an innocent person would be unconstitutional, the critical question is how many of those who will be executed must be innocent to offend contemporary standards of decency and, therefore, render the FDPA unconstitutional.

STANDARDS OF DECENCY

As described earlier, courts are required to discern contemporary standards of decency from objective factors to the maximum possible extent. Those factors demonstrate the following.In 1791, the concept of "cruel and unusual punishment" incorporated in the Eighth Amendment was imported from English law. England and other nations that share our heritage have now abolished capital punishment.

Recent opinion polls show that 73% of Americans believe that our nation's death penalty statutes have resulted in the execution of an innocent person in the past five years. Nevertheless, 74% say they support the death penalty. However, only a slight majority (53%) prefer it to life in prison without parole (44%) for convicted murderers.

The decisions of juries in recent FDPA cases indicate that there is a definite disparity between the attitudes of Americans toward the death penalty in general and their willingness to impose it in particular cases. In sixteen of the last seventeen penalty phase verdicts returned by juries in FDPA cases the defendant was not sentenced to death. In fifteen of those sixteen cases the defendant had been convicted of a federal crime involving murder. Therefore, juries have recently been regularly disagreeing with the Attorney General's contention that the death penalty is justified in the most egregious federal cases involving murder.

FUTURE ELIMINATION OF THE DEATH PENALTY

In Atkins the Supreme Court essentially held that because Virginia diverged from the substantial consensus that had emerged in legislation, decisions of prosecutors, and jury verdicts in many other states, it was arbitrary and capricious and, therefore, cruel and unusual for a retarded person in Virginia to face execution when a similarly situated individual in another jurisdiction would not. If the evolution of events concerning the general imposition of the death penalty parallels the developments described in Atkins concerning the execution of the retarded, the day may come when courts properly can and should declare the ultimate sanction to be unconstitutional in all cases.

However, that day has not come yet. There is not now sufficient objective evidence to establish that the death penalty offends contemporary standards of decency to permit a court to end political debate and democratic decisionmaking concerning its propriety.

Nevertheless, "the Clause forbidding 'cruel and unusual' punishments . . . 'may acquire meaning as public opinion becomes enlightened by a humane justice.'" Gregg, 428 U.S. at 171 (quoting Weems v. United States, 217 U.S. 349, 378 (1910)). Judges seek to administer humane justice. Judicial decisions are part of a colloquy with citizens and those they elect to make and execute our laws. Those decisions have the potential to influence contemporary standards of decency and, therefore, the current meaning of the Eighth Amendment.

While this court does not find that the risk of executing the innocent now renders the FDPA unconstitutional, the record regarding this issue raises profound questions. Those questions are not hypothetical. Rather, as demonstrated by the experiences of Salvati and Bright, among others, those questions are real and recurring.

Error is, of course, possible in any criminal case. While our system promises everyone a fair trial, it does not pretend to perform perfectly. However, as the Supreme Court has repeatedly reiterated, "[t]he penalty of death differs from all other forms of criminal punishment not in degree but in kind. It is unique in its total irrevocabality." Furman, 408 U.S. at 306 (Stewart, J., concurring);5 see also Ring, 536 U.S. at 605-06; Harmelin v. Michigan, 501 U.S. 957, 994 (1991); Gardner v. Florida, 430 U.S. 349, 357 (1977) (Stevens, J.) (plurality opinion). Among other things, an execution eliminates the opportunity to end any injustice, even belatedly. Thus, this court will strive to provide the government and Sampson as fair a trial as possible.

INEVITABLE EXECUTION OF THE INNOCENT

This court agrees that "executing the innocent is inconsistent with the Constitution." Id. at 419 (O'Connor, J. and Kennedy, J., concurring). The open issues in this case are whether the FDPA will inevitably result in the execution of innocent individuals and, if so, whether this renders the statute unconstitutional, and inapplicable to Sampson because it is an invalid law. For the reasons described below, the court finds that: the FDPA will inevitably result in the execution of innocent individuals; there is not now, however, a proper basis to declare the FDPA unconstitutional for this reason; and, therefore, it is not necessary to decide Sampson's claim that he has a right not to be tried under an unconstitutional statute.

EVIDENCE OF THE RISK

Since 1973, more than 100 innocent people have been released from death rows. See A-27, Death Penalty Information Center, "Facts About the Death Penalty"; A-97, Affidavit of Richard Dieter. In January 2003, the Governor of Illinois commuted the death sentences of more than 150 individuals awaiting execution in that state after previously determining that seventeen people on Illinois' death row were actually innocent. See A-288; see also Alex Kotlowitz, "In the Face of Death," N.Y. Times Sunday Magazine, July 6, 2003, at 32, 34. One of those individuals was "Anthony Porter, who spent no less than 16 years on death row until prosecutors decided they had made a mistake (upon which determination they then brought murder charges against a different suspect, who confessed)." Quinones, 205 F. Supp. 2d at 265.

JURORS IN DEATH PENALTY CASES

In 2003, District Judge James Jones of Virginia stated that:

After having recently spent several weeks . . . individually interviewing in voir dire nearly two hundred prospective jurors on their attitudes toward the death penalty, I am convinced that our fellow citizens are largely conflicted about the death penalty. Many favor it in principle in the appropriate case, but are concerned about it in practice.

Church, 217 F. Supp. 2d at 702-03; see also Kotlowitz, supra ("Faced with the decision to execute or not, pro-death penalty jurors are increasingly sparing lives."). There is evidence to validate Judge Jones' insight.

The decisions of juries in recent FDPA cases indicate that there is a definite disparity between attitudes toward the death penalty in principle and the willingness of federal jurors to impose it when they are fully informed about a particular case, and their decision will have real and serious consequences. The death penalty is sought only in those eligible federal cases in which the Attorney General has personally decided that it is justified. DOJ Study at 5, 26. Jurors who express an unyielding general unwillingness to impose the death penalty may not serve in a capital case. See Witt, supra; Witherspoon, supra.

Nevertheless, in sixteen of the last seventeen penalty phase verdicts returned by juries in FDPA cases the defendant has not been sentenced to death.16 A-38, A-41, A-66 to A-67; Def.'s Supp. Mem.; Def.'s Second Supp. Mem.; Def.'s Fourth Supp. Mem. In fifteen of those sixteen cases the defendant was convicted of a crime involving murder. Id.17

As described earlier, the Supreme Court has repeatedly reiterated that the decisions of citizens as jurors are " 'a significant and reliable index of contemporary values.'" Atkins, 536 U.S. at 323 (Rehnquist, C.J., dissenting) (quoting Coker, 433 U.S. at 596 (plurality opinion) and Gregg, 428 U.S. at 181). In finding the death sentence to be cruel and unusual punishment for rape in Coker, the Supreme Court "credited data showing that 'at least 9 out of 10' juries in Georgia did not impose the death sentence for rape convictions." Id. (quoting Coker, 433 U.S. at 596-97). The statistical sample may now be too small to draw any definite conclusions from the most recent FDPA jury verdicts. However, if juries continue to reject the death penalty in the most egregious federal cases, the courts will have significant objective evidence that the ultimate sanction is not compatible with contemporary standards of decency.

OTHER RESOURCES

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

NEW RESOURCE: Extensive Excerpts from Judge Wolf's Opinion in United States v. Sampson

The following excerpts are from Judge Mark Wolf's opinion allowing the federal capital prosecution of Gary Lee Sampson to proceed. In his decision, Judge Wolf of the Federal District Court in Boston expressed reservations about the risks of executing the innocent and appeared to criticize the Justice Department's zealous approach to seeking capital convictions. The headings for these excerpts, which are not part of the original text, are followed by page numbers that correlate with the referenced section of the full text. Read the full text of the decision.

NEW RESOURCE: An Analysis of Death Penalty Cases in Georgia

A new report by Michael Mears of the Office of the Multi-County Public Defender provides a detailed examination of every death penalty trial in Georgia since the state passed its current death penalty statute in 1973. This resource contains a listing of death penalty cases by name of the defendant, name of the county, name of the judicial circuit, as well as the disposition of every death penalty case. It also provides a brief overview of the historic role Georgia has played in the Supreme Court's examination of the modern death penalty. (An Analysis of Death Penalty Cases in Georgia by Judicial Circuits 1973-2003, Office of Multi-County Public Defender, August 2003). See Resources.

NEW VOICES: Death Penalty Fails to Meet Conservative Standards

In a recent Greensboro News & Record op-ed, Marshall Hurley, a long-time Republican in North Carolina, questioned giving the state authority to carry out executions when the current practice of capital punishment fails to meet conservative standards and risks innocent lives. He stated:

For those who believe in the virtue of limited government and criticize roundly when government does not work well, capital punishment does not meet fundamental conservative standards. Not only is it applied arbitrarily, but our judicial system cannot even figure out how to examine it properly. Forty-seven judges reviewing a single case over more than a dozen years may assure some that justice is served; to others, it evinces an appeals process in disarray, a game of such utter complexity that nothing is certain except delay and dismay. No one is well served - not families of victims, not law enforcement and certainly not the judicial system.

. . .

North Carolina conservatives, liberals and everyone in between should question whether our state government should authorize execution of people when we know, to a moral certainty, that some of them are innocent. There is no principled justification for any conservative to place limits on government power in all other areas, but grant it the power to kill, knowing it will make mistakes.

(Greensboro News & Record, July 27, 2003). See New Voices.

NEW RESOURCE: Magazine Highlights Life on Death Row of "Crips" Founder

The New York Times Magazine recently explored the life of Stanley Williams, an original founder of the "Crips" gang and a convicted murderer who has been on death row in San Quentin prison for more than two decades:

It isn't easy to reconcile the image of the new Stanley Williams, a children's-book author and youth advocate, with that of the old Stanley Williams, a gang leader and convicted murderer. The arc of his life raises fundamental, perennial questions about human nature: Is character fixed or mutable? Can a person who is capable of tremendous harm also be capable of tremendous good?

(The New York Times Magazine, August 10, 2003). See Resources.

Recent Study Reveals Priests Shape Catholic Opinion on the Death Penalty

A recent paper based on the Notre Dame Study of Catholic Parish Life reveals that support for the death penalty among Catholics is strongly shaped by the opinion of their parish priest. After examining Catholic opinions regarding capital punishment, sociologists Michael Welch of Notre Dame and Thoroddur Bjarnason of the University of Albany-SUNY discovered that Catholics are less likely to support the death penalty when their parish priest strongly opposes it. The study also found that parishioners who were devout and active in parish life were more likely to oppose the death penalty. (Notre Dame Magazine, Summer 2003). See Public Opinion.

Federal Judge Cites Risk of Innocence

In a decision reluctantly allowing a federal capital murder case against Gary Lee Sampson to proceed, Judge Mark L. Wolf of the Federal District Court in Boston expressed reservations about the accuracy of the death penalty and appeared to criticize the Justice Department's zealous approach to seeking the capital convictions. He noted:

(New York Times, August 12, 2003). See Innocence and Federal Death Penalty.

Technicality Means No Review and Probable Execution

The U.S. Court of Appeals for the 4th Circuit has rejected an appeal filed on behalf of North Carolina death row inmate Kenneth Rouse. Without disputing the merits of his claim, the court ruled that it would not hear the case because the motion was filed one day after an appeal deadline established by a 1996 federal law. In its ruling, the court wrote that the fact that Rouse faces the death penalty is no reason to give leeway in meeting the federal deadline. Rouse's attorneys are requesting a new trial because a juror in Rouse's case failed to disclose that his own mother had been murdered and sexually assaulted. The attorneys note that the juror, who is white, also used a racial epithet to describe Rouse, who is black, and that the juror expressed racist attitudes. (The Herald Sun, August 11, 2003). The dissent in the case noted that the juror carefully crafted his responses to voir dire questions because he wanted to be on the jury that judged Rouse. See Race.

Pew Poll Reveals Declining Support for the Death Penalty

A recent Pew Research Center poll revealed a significant decline in support for the death penalty as 64% of respondents supported the punishment compared to 78% in 1996. In addition, the poll found that fewer respondents who favored capital punishment felt strongly about their support (28% today compared to 43% in 1996), while a growing number of Americans are voicing opposition to the punishment altogether (30% today compared to 18% in 1996).

Other Pew Research Center polling results include:

- 58% of Americans oppose the execution of persons who commit murder when they were under the age of 18. Among African-American voters, 80% oppose the juvenile death penalty.

- 55% of African-Americans oppose capital punishment, and 39% favor its use. These findings are a reverse of polling data collected in 1996 that showed 54% of African-Americans supporting the death penalty and 36% opposed to the punishment.

- Today, just over half of Hispanics support the death penalty compared to three-in-four in 1996.

- Support for the death penalty among mainline Protestants has dropped from 85% in 1996 to 70% today. Among white Catholics, 69% currently support capital punishment compared to 79% in 1996. Secular support has also slipped, down from 78% in 1996 to 60% today.

("Religion and Politics: Contention and Consensus," Pew Research Center, July 24, 2003). Read the report. See Public Opinion.

Armenia Commutes All Death Sentences

Walter Schwimmer, Secretary General of the Council of Europe, recently praised the decision of Armenian President Robert Kocharyan to commute all remaining death sentences in the nation to life in prison. "I am delighted that President Kocharyan has taken such a positive and commendable step forward. The death penalty is an affront to all notions of dignity and human rights, and has no place in the Europe of today," Schwimmer said. The President's decision to commute the death sentences is in line with Armenia's efforts to comply with standards set by the Council of Europe that forbid member nations from maintaining capital punishment. (The Council of Europe Press, August 2, 2003). See International Death Penalty.

NEW RESOURCE: Researchers Find Prejudice Shapes Support for Death Penalty

In "Why Do White Americans Support the Death Penalty?," American University researchers Joe Soss, Laura Langbein, and Alan Metelko examined whether racial attitudes play a role in white support for the death penalty. The researchers found that white support for the death penalty in the United States has strong ties to anti-black prejudice, and in some geographic areas racial prejudice emerges as the strongest predictor of white death penalty support. Soss, Joe, et al.: "Why Do White Americans Support the Death Penalty? "; 65 The Journal of Politics 397 (2003). See Race and Resources.

NEW VOICES: Prosecutor Urges DNA Testing to Ensure Accuracy

In an op-ed that appeared in the Los Angeles Times on the day Indiana death row inmate Darnell Williams received a stay of execution to allow testing of crucial DNA evidence that could save his life, the prosecutor from the case, Thomas Vanes, expressed second thoughts about seeking the death penalty. He wrote:

For 13 years I served as a prosecutor, and I was not bashful then in seeking the death penalty. When criminals are guilty, they deserve to be punished.

But I have also learned since leaving the prosecutor's office 13 years ago that "the system" makes mistakes. Last year I learned that a man named Larry Mayes, whom I had prosecuted and convicted, had served more than 20 years for a rape he did not commit. How do we know? DNA testing.

. . .

Hard facts trump opinion and belief, as they should. It was a sobering lesson, and none of the easy-to-reach rationalizations (just doing my job, it was the jurors who convicted him, the appellate courts had upheld the conviction) completely lessen the sense of responsibility - moral, if not legal - that comes with the conviction of an innocent man. I too had been part of "the system."

(Los Angeles Times, July 28, 2003). See New Voices.

Illinois Prohibits Doctors and Nurses from Participation in Executions

Legislation to bar doctors and nurses from participating in executions was recently signed into law by Illinois Governor Rod Blagojevich on July 24, 2003. The bill states, "The Department of Corrections shall not request, require, or allow a health care practitioner licensed in Illinois, including but not limited to physicians and nurses, regardless of employment, to participate in an execution." (SB 0277) The bill is in-step with guidelines established under the Hippocratic Oath, which calls on doctors to do everything within their power to relieve suffering and to prevent death. See Recent Legislative Developments.

NEW VOICES: Time Magazine Spotlights Texas District Attorney

A recent article in Time looks at the career of Travis County District Attorney Ronnie Earle. The article traces Earle's evolving opinion on the death penalty since he was first elected D.A. in Texas in 1976, the year the U.S. Supreme Court reinstated the death penalty. Among other concerns, questions of innocence have caused Earle to grow increasingly skeptical about the death penalty. The article notes:

But like the rest of us, Earle has now watched broken souls walk free after years of wrongful incarceration; 56 have been released from death row in the past decade, either because they were deemed innocent or because of procedural mistakes, according to the Death Penalty Information Center. Unlike the rest of us, Earle still has to enforce the death penalty. He is often plagued by doubts when he must decide whether to seek death. "I agonize over it," he says. "There was a time when I thought the death penalty ought to have wider application, but my views have evolved." Today deciding whether to seek the death penalty is easily the hardest part of his job.

(Time, July 14, 2003). See Innocence and New Voices.

Judge Imposes Life Sentence for Victims' Sake

Baltimore County Judge Dana M. Levitz recently sentenced a man convicted of murder to two life terms without parole, in part because of its possible effects on the victims' families. Levitz said, "The devastating effect that this unending litigation has on the innocent families of the victims is incalculable. By imposing a death sentence, I ensure that the victim's families will be subjected to many more years of appeals." Family members also noted that the decision gave them the peace of mind they have been searching for. A sister of the victim noted, "I'm pleased with the sentence because I think I might get some closure from this. I didn't want him out on the street anymore, but killing him wasn't the answer either." (Baltimore Sun, July 26, 2003). See Victims and Life Without Parole.

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).