Ten "wins" of one kind or another are reported this week. Three "major" wins involvethe right to a mitigation specialist,the dangers of 404(b) "other crimes" materialsandAtkins standards,. Other wins involveduty of loyalty,jury instructions as to principles,a stay on Vienna Convention grounds,how little weight need be afforded to jury recommendations for death; two COAgrants in the Fifth Circuit(chiefly ineffective assistance of counsel); and counsel fees.

The United States Court of Appeals for the Armed Forces inUnited States v. Kreutzerhas issued a decisive opinion on the right to counsel & the use of experts in capital cases. The case arises out of an incident where Sergeant William Kreutzer "opened fire with an automatic weapon on personnel in his brigade when they were in formation commencing a unit run." The convening authority at the subsequent proceedings denied funds for a mitigation expert. Adopting the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Commentary to Guidelines (revised ed. 2003), the Court notes that "mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where, as here, counsel have little training or experience in capital litigation." "Kreutzer's three uniformed attorneys recognized that they could not gather, analyze, and formulate this mental health evidence; a mitigation specialist could have done so and assisted counsel in identifying qualified mental health experts to present the evidence on both the merits and on sentencing. In turn, the defense on the merits could have incorporated that analysis either to bolster the theory that was used at trial or to create a different theory to contest premeditation on the merits." "We note that because there is no professional death penalty bar in the military services, it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation."

In a case I whiffed on the daily blog, the North Carolina Supreme Court inState v. al-Bayyinahwarns of the dangers (read evils) of 404(b) evidence. Along the way to ordering a new trial the Court also set forth a fantastic analysis of what trial court's should weigh in deciding whether to admit pre-trial identification evidence. Ultimately, "the Rule 404(b) evidence in the present case rested on questionable identification procedures, which in turn arose from robberies that were factually dissimilar to the robbery and murder charged in the instant case."

New Jersey's intermediate court (the Appellate Division) inState v. Jimenezsets forth a fairly progressive standard for Atkins claims. The Jimenez standard requires the prosecution to prove the absence of mental retardation beyond a reasonable doubt to a jury. The Court goes on to note the tension between some states' permitting judges to find the absence of MR and the right to a jury trial noted in Apprendi & Ring. The Court sways between federal and state law precedent and it remains unclear whether the key holdings appear to be based on federal or state law. Judge Fisher issues a beautiful concurrence as well.

In the news, TheDallas Morning Newshas a continuing series,Striking Differencethat examines Dallas County's jury selection procedures. For example, Tuesday morning's articles were entitledJudges rarely detect jury selection bias,Famed DA's son still sees race bias,Disputed practice still a courtroom fixture,Sides say time has hand in stereotypingand'I just felt like I was lynched.' The study of Dallas County jury pool found prosecutors were twice as likely to strike blacks than other groups and defense counsel three times as likely to strike whites.

DPIC notes a "new Michigan Law Review article by Professor John Blume of Cornell Law School examines the relationship between "volunteering" for execution and suicide. Blume found that nearly 88% of all death row inmates who have "volunteered" for execution have struggled with mental illness and/or substance abuse. He writes that there is an especially strong link between "volunteerism" and mental illness. Of the "volunteer" executions he reviewed, 14 involved schizophrenia and several more reported delusions that may reflect schizophrenia. Depression and bipolar disorder accounted for at least 23 other cases, and post-traumatic stress disorder was present in another 10. At least 30 of those who "volunteered" for execution had previously attempted suicide. The article also notes that between 1977 and 2003, 85% of the 93 inmates who opted to allow their execution to proceed without exhausting all legal appeals were white males, despite the fact that white males make up only 45% of all death row inmates. (J. Blume, "Killing the Willing: 'Volunteers,' Suicide and Competency," 103 Michigan Law Review 939 (2005))."

Two cases in which supporters claim the person about to be executed is innocent are also in the news.John Spirko, who is scheduled to die next month, went before the Ohio Parole Board on Tuesday for a clemency hearing; Spirko also has filings asserting governmental fraud in the first round of habeas hearings pending in federal district court. In TexasFrances Newtonis down to just over three weeks left with activists expected to put pressure on the Texas Board of Pardons & Parole, as well as Governor Perry, in the next few days to grant clemency; David Dow & the Texas Innocence Network has initiatedsuccessor litigationon her behalf.

Action in pending federal death penalty cases are also noted. The NY Daily News hasthis pieceon Judge Nicholas Garaufis of the Eastern District of New York who has seven death cases on his docket in addition to 350 civil and 300 criminal cases; some in the federal death penalty bar suspect docket manipulation by DoJ in order to get that many capital cases in front of just one judge (the odds of random assignment of so many death cases without docket manipulation and thirteen active judges would seem to be less than one in ten thousand). In North Dakota, the shoot-out over the federal government's decision to seek death againstAlfonso Rodriguezin the face of what appears to be continuing its attempts to "nationalize" the death penalty and insulate the federal death penalty against allegations of geographic andracial bias(there is purportedly a fantastic motion on racial bias filed in this matter, unfortunately, that district is yet to go live withCM/ECFand the briefs are unavailable for wider distribution).

Finally, in light of ongoing quality control botches such asState v. al-Bayyinah(about once a quarter we completely miss the holding of a case finding grants of relief or denial of relief when the opposite was true) and the reality that such errors are more likely to occur now that the site has switched back to a "daily" mode, a new rewards program is being offered. If you catch a botch either in the weekly or the daily let us know that you caught the botch. Any botch you catch where the botch was made after 8/22/2005 and you are the first to let us know (unless we fix it before we get your email naturally) we will mail you your choice of any item from the now closed (ok almost closed)website store. Our call what qualifies as a botch and who caught it first.

Full edition archived at http://capitaldefenseweekly.com/archives/050822.htm

As always, thanks for reading. - k

Executed

August

23 Robert ShieldsTexas

Serious X- Dates

August

31 Arthur Baird Indiana

31 Timothy Johnston

September

14 Frances Newton Texas----female

20 John Spirko Ohio

22 Michael Lynn Riley Texas

22 John Peoples Alabama

27 Herman Ashworth Ohio----volunteer

In Favorem Vitae et Libertatis

United States v. Kreutzer, 2005 CAAF Lexis 900 (CAAF 8/16/2005) Military counsel should have been permitted access to a mitigation specialist as "mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where, as here, counsel have little training or experience in capital litigation."

State v. al-Bayyinah, 356 N.C. 150(NC 8/19/2005)North Carolina Supreme Court warns of the dangers (read evils) of 404(b) evidence.

State v. Jimenez, 2005 N.J. Super. LEXIS 251 (NJ AppDiv 8/17/2005) Atkins requires the prosecution to prove the absence of mental retardation beyond a reasonable doubt to a jury.

Baker v. Horn, 2005 U.S. Dist. LEXIS 16768 (E.D. Pa. 8/15/2005) Trial counsel's failure to object to the erroneous jury instructions (differentiating between principle and accomplice liability) meant the real possibility that the jury convicted Baker nondeath eligible murder.

Commonwealth v. Washington, 2005 Pa. LEXIS 1720 (PA 8/15/2005) (dissent) Remand ordered for a post-conviction "evidentiary hearing on the claim that trial counsel breached his duty of loyalty to Appellant because of personal feelings of hostility that counsel harbored and that the breach caused trial counsel to render ineffective assistance." ( see also here)

Smith v. Dretke2005 U.S. App. LEXIS 17528(5th Cir 8/17/2005) Smith seeks COA "on three issues, (1) whether his trial counsel provided ineffective representation, (2) whether the jury instructions given at the sentencing phrase of his trial violated his constitutional rights pursuant to Penry v. Johnson, n1 and (3) whether the district court erred in denying his request for funds under 21 U.S.C. § 848 for a psychologist. For the foregoing reasons, we grant a COA as to Smith's ineffective assistance of counsel and Penry claims. However, we find that the district court did not abuse its discretion in denying Smith's request for funds."

Starling v. State, 2005 Del. LEXIS 321 (Del 8/16/2005) Despite a unanimous jury verdict for death, the trial court erred in affording "great weight" to such a recommendation rather than giving it merely the deference required by precedent. Remand ordered for resentencing under the appropriate standard of affording weight to the jury's recommendation.

Chambers v. Dretke2005 U.S. App. LEXIS 17943(5th Cir 8/19/2005) (unpublished) COA granted on whether (1) counsel suffered under a conflict of interest by having previously represented a co-defendant in this matter; (2) appellate counsel rendered ineffective representation (Batson, comments on silence, admission of testimony by reporter); (3) failure to introduce evidence of comparative culpability; (4) "the Texas capital punishment statute is unconstitutional as applied to Chambers because it prohibited the jury from considering mitigating evidence, and because it prohibited the court from submitting to the jury a special issue regarding whether mitigating evidence warranted a life sentence."

Gomez v. Dretke, 2005 U.S. App. LEXIS 17533 (5th Cir 8/17/2005) Stay granted in order to determine Vienna Convention claims for this Mexican national in this procedurally complex case.

Favoring Death

People v. Carter, 2005 Cal. LEXIS 8910 (CA 8/15/2005) Relief denied on claims including double jeopardy, denial of motion to sequester voir dire, sufficiency, prosecutorial discretion in seeking death. Lying in wait special circumstance not supported by substantial evidence.

People v. Carter, 2005 Cal. LEXIS 8908 (CA 8/15/2005) Relief denied on claims including suppression of vehicle search; admission of prior burglary convictions in other states; 404(b) evidence as to an unadjudicated murder; motion to sever, inflammatory photos; admission of evidence that Carter was in Vegas after murders, and failure to instruct on second degree murder.

People v. Moon, 2005 Cal. LEXIS 9061 (CA 8/18/2005) Relief denied on a grab bag of issues including claims relating to trial court’s failure to sua sponte to instruct on joyriding, sufficiency and failure to reinstruct the jury with applicable guilt phase instructions (harmless error).

People v. Cornwell, 2005 Cal. LEXIS 9060 (CA 8/18/2005) Relief denied on a grab bag of issues including: Batson, counsel conflict of interest (represented witness's wife previously), limitations to the presentation of the defense and spectator misconduct.

Kimmel v. Dretke, 2005 U.S. Dist. LEXIS 16920 (W.D. Texas 8/16/2005) Petition denied on claims including : "(1) the method used by Bexar County (random selection from voter registration lists) to select Petitioner's grand jurors violated Petitioner's Sixth Amendment right to a grand jury selected from a fair cross-section of the community, (2) the prosecution withheld evidence in violation of Brady v. Maryland by failing to turn over expert opinion testimony regarding Petitioner's tattoos, (3) the prosecution knowingly elicited perjured testimony regarding Petitioner's tattoos, (4) Petitioner's confession was rendered involuntary by virtue of prescription medications Petitioner was taking on the date he gave that statement, (5) the "aggravating factors" employed in the Texas capital sentencing scheme fail to adequately channel the sentencing jury's discretion and thereby violate the Eighth Amendment, and (6) Article 37.071 of the Texas Code of Criminal procedure forces capital sentencing juries to continue deliberating after individual jurors have determined to vote in a manner favorable to the defendant."

Salinas v. Payne, 2005 Ky. LEXIS 193 (Ky 8/16/2005) Writ of prohibition denied on the theory of implied acquittal "An "implied acquittal" of the death penalty occurs only where the jury or reviewing court affirmatively finds that the Commonwealth has failed to prove the existence of an aggravating circumstance. If the jury has found that evidence of an aggravating circumstance was proven beyond a reasonable doubt, but nonetheless imposes a sentence of less than death, the Commonwealth simply cannot be precluded on double jeopardy grounds from seeking the full range of penalties, including death, on retrial."

State v. Augustine, 2005 N.C. LEXIS 836 (NC 8/19/2005) Relief denied on claims including Batson, admission of 404(b) evidence concerning 22 alleged prior bad act, prosecution's closing, and defense counsel's closing remarks concerning the pain to be felt by Augustine's family if he is executed.

State v. Campbell, 2005 N.C. LEXIS 842 (NC 8/19/2005) Relief denied on issues including failure to suppress evidence seized from his arrest, failure to allow voir dire on defense theory of the case, use of a blood splatter expert, exclusion of evidence of the victim's prior bad acts that lead up to his killing (both phases of the trial) and prosecutorial closing in the penalty phase.

Commonwealth v. DeJesus, 2005 Pa. LEXIS 1787 (PA 8/17/2005) Relief denied on admissibility and sufficiency. Numerous claims relating to alleged ineffective assistance of counsel postponed to post-conviction review.

Noncapital Opinions of Note

NJDPM v. DoC, 2005 N.J. LEXIS 1104 (NJ App Div 8/15/2005) This battle of the abbreviations is a follow-up to the lethal injection suit that stopped the death penalty (at least for the time being) in New Jersey. The issue in the case concerns how much money the Department of Corrections should pay to NJDPM for the pro bono work of Kevin Walsh, who chairs NJDPM's legal committee. Specifically, in the run up to the lethal injection challenge NJDPM sought information about the state's lethal injection protocol. DoC objected with reed thin excuses claiming privilege. NJDPM successfully filed and won a law suit pertaining to access to the state's lethal injection protocol and were subsequently awarded attorney fees. Eventually, the open records suit and the lethal injection stay ended up in the state supreme court. Ultimately, the lethal injection stay was not granted discretionary appeal to the state supreme court, but the fee issue was. The NJDPM Court on the issue of compensation for pro bono counsel held that all counsel, even one who works merely after normal working hours with out expectation of compensation, is entitled to attorney fees.

Outtakes

United States v. Kreutzer, 2005 CAAF Lexis 900 (CAAF 8/16/2005) Military counsel should have been permitted access to a mitigation specialist as "mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where, as here, counsel have little training or experience in capital litigation."

The Government must demonstrate there is no reasonable possibility that the absence of a mitigation specialist contributed to the contested findings of guilty or, in this case, that not even a single member would have harbored a reasonable doubt after considering the mental health evidence that the mitigation specialist could have gathered, analyzed, and assisted the defense in presenting. We do not believe that the Government has met that burden.

To place this discussion in its proper context, it is necessary to examine the role of a mitigation specialist in capital litigation, both generally and in this case. The general role of a mitigation specialist was discussed in a report adopted by the Judicial Conference [*28] of the United States:

Mitigation specialists typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive training and experience in the defense of capital cases. They are generally hired to coordinate an investigation of the defendant's life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary material for them to review. n9

The American Bar Association recommends the inclusion of a mitigation specialist on every capital litigation defense team and identifies the mitigation specialist as a "core member" of the defense team:

A mitigation specialist is also an indispensable member of the defense team throughout [*29] all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant's development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case. n10

When Kreutzer's defense attorneys made their requests for a mitigation specialist they supported it with an affidavit from Dr. Lee Norton, Ph.D., a mitigation specialist. Doctor Norton provided extensive background on what a mitigation specialist could provide in regard to mental health evidence. n11 In addition to the general importance of a mitigation specialist in death penalty cases, mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where, as here, counsel have little training or experience in capital litigation.

This case is replete with evidence or information indicating that Kreutzer's mental health was dubious. Yet the presentation of the defense case-in-chief includes testimony from only three individuals about Kreutzer's performance, behavior and reputation, and expert testimony from a single mental health professional. Color Sergeant David Wakeland n12 testified that Kreutzer was an average or above-average soldier and noncommissioned officer. He also discussed some matters that may have been stressful for Kreutzer as well as how Kreutzer's threats and absence were reported on the morning of the shooting.

* * * *

We are not persuaded that the Government has met its burden of showing that Kreutzer could not have possibly benefited from the talent and [*38] expertise of a mitigation specialist on findings. We need not speculate on precisely how the wealth of mental health evidence could have been used at trial. Although capital cases do not confer a per se right to a mitigation specialist, on a case-by-case basis servicemembers confronted with a capital prosecution are entitled to mitigation specialists where their services would be necessary to the defense team. We believe that the Government gives too little weight to the possible worth of a mitigation specialist in this case. The UCMJ and the R.C.M. assure that the defense counsel has the resources, including expert assistance, to prepare and present the defense. See Article 46, UCMJ; R.C.M. 703. The military accused's rights in this regard are not dependent upon indigence, nevertheless we agree with the spirit of the Arizona Supreme Court's statement that "so long as the law permits capital sentencing," the justice system "must provide adequate resources to enable indigents to defend themselves in a reasonable way." See State v. Bocharski, 200 Ariz. 50, 22 P.3d 43, 55 (Ariz. 2001).

While the services of a mitigation specialist are commonly used in sentencing, in the appropriate [*39] case this expert assistance may be necessary to the defense on findings as well. As the Commentary to ABA Death Penalty Counsel Guideline 4.1 states, the mitigation specialist is an "indispensable member of the defense team throughout all capital proceedings." Kreutzer's three uniformed attorneys recognized that they could not gather, analyze, and formulate this mental health evidence; a mitigation specialist could have done so and assisted counsel in identifying qualified mental health experts to present the evidence on both the merits and on sentencing. In turn, the defense on the merits could have incorporated that analysis either to bolster the theory that was used at trial or to create a different theory to contest premeditation on the merits. For example, the defense might have used testimony from Dr. Fong to show that he did not take Kreutzer's talk about killing seriously and that Kreutzer had a history of homicidal ideation. The defense could have then argued that the members should discount Kreutzer's night-before statements to SP4 Mays because they were more homicidal fantasy than premeditation. Alternatively, defense counsel might have argued that the additional mental [*40] health information produced by a mitigation specialist demonstrated that Kreutzer was susceptible to stress stimuli and was exhibiting "spiked" behavior as opposed to a premeditated intent in committing his crimes. Further, defense counsel may have used the additional information to attack and cloud the findings of the sanity board and try to suggest that while Kreutzer might have been mentally responsible under the law, he did not have the mental capacity to premeditate his crimes. The question is not whether these arguments are persuasive in the abstract, but rather, in light of the fact that Kreutzer was denied the fair opportunity to make these arguments, whether the Government has shown that the error in denying the defense request for a mitigation specialist was harmless beyond a reasonable doubt.

State v. al-Bayyinah, 356 N.C. 150(NC 8/19/2005)North Carolina Supreme Court warns of the dangers of 404(b) evidence.

In essence, Splitt's testimony described robberies that were factually dissimilar to the robbery and murder charged in the instant case. The state offered evidence showing that Splitt was robbed and that defendant may have committed the offenses. The state failed to show, however, that sufficient similarities existed between the Splitt robberies and the present robbery and murder beyond those characteristics inherent to most armed robberies, i.e., use of a weapon, a demand for money, immediate flight. See Lynch, 334 N.C. at 412, 432 S.E.2d at 354 (holding that, because the details of the prior bad acts and the crimes charged were dissimilar, they did not bear "any logical relationship" to each other, and hence should not have been admitted under Rule 404(b)).

Moreover, in addition to the factual dissimilarity between the Splitt robberies and the instant crime, Splitt's testimony also rested upon a pretrial identification procedure of questionable validity. The trial court determined that the single-photograph identification procedure used in the [*12] present case was not impermissibly suggestive under the totality of the circumstances. The evidence of record, however, indicates that on the afternoon of the Brown robbery, the detective telephoned Splitt and told him that there had been a robbery in Mocksville that morning. The detective stated that a suspect was in custody for the robbery and asked Splitt "to look at [a] photograph [of the suspect] and tell me yes or no if he thought that was possibly someone that was involved in [Splitt's] case." When Splitt arrived at the magistrate's office, he was shown a single photograph of defendant, then in custody for the Brown robbery. Splitt identified defendant from the photograph as the man he believed had robbed his store on two prior occasions.

This pretrial identification procedure was potentially flawed in several respects. First, the detective made suggestive statements when inviting Splitt to view the single photograph of defendant. In State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972), this Court held a pretrial identification procedure impermissibly suggestive where police showed the witness a single photograph of the defendant, stated that the man [*13] pictured was in custody, and asked if he was the perpetrator of a prior crime involving the witness. Id. at 226, 192 S.E.2d at 287; see generally Simmons v. United States, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967 (1968) ("Even if the police . . . follow the most correct photographic identification procedures and show . . . pictures of a number of individuals without indicating whom [the police] suspect, there is some danger that the witness may make an incorrect identification."). Similarly, in the case at bar, the detective told Splitt that the man pictured was in custody and made statements intimating that the authorities believed defendant had committed not only the crime for which he was detained, but also the robberies of Splitt's store. n1 See, e.g., United States v. Wade, 388 U.S. 218, 234, 18 L. Ed. 2d 1149, 1161, 87 S. Ct. 1926 (1967) (noting that a single-suspect identification procedure can "clearly convey[] the suggestion to the witness that the one presented is believed guilty by the police"). Further, the detective admitted that he showed Splitt only one photograph and conceded on voir dire that [*14] a multiphotographic lineup is a better method for witness identification than a single-photographic showing. See State v. Yancey, 291 N.C. 656, 661, 231 S.E.2d 637, 640 (1977) ("Our courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification."). The detective also admitted that he had ample time to put together a multiphotograph array but did not do so. The North Carolina Justice Academy (NCJA), which trains thousands of criminal justice personnel throughout the state, cautions against the use of improper identification procedures in its training materials. n2

In sum, the Rule 404(b) evidence in the present case rested on questionable identification procedures, which in turn arose from robberies that were factually dissimilar to the robbery and murder charged in the instant case. The trial court therefore erred, under the facts and circumstances of the instant case, in admitting Splitt's testimony under Rule 404(b) of the North Carolina Rules of Evidence. Accordingly, as we cannot conclude that the admission of Splitt's testimony was harmless, see N. C.G.S. § 15A-1443(a) (2001), defendant is entitled to a new trial.

State v. Jimenez, 2005 N.J. Super. LEXIS 251 (NJ AppDiv 8/17/2005) Atkins requires the prosecution to prove the absence of mental retardation beyond a reasonable doubt to a jury. Note that there is tension in this case as to whether the opinion is relying on purely state constitutional law (section III & footnote 18) or is relying on fedral constitutional law (section IV) & V, or both, so use with care.

As the defense recognizes, placing the burden upon the State to demonstrate to a jury beyond a reasonable doubt that Jimenez is not mentally retarded is consistent with the State's treatment of diminished capacity. See State v. Delibero, 149 N.J. 90, 692 A.2d 981 (1997). See also State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). Although as the State notes, insanity is an affirmative defense that must be proven by a defendant by a preponderance of the credible evidence, a claim of diminished capacity operates differently. "A jury considers evidence of diminished capacity in relation to the State's burden to prove the essential elements of the crime." Delibero, supra, 149 N.J. at 98 (citing State v. Harris, 141 N.J. 525, 555, 662 A.2d 333 (1995)).

Although the State argues otherwise, we find a claim of mental retardation to more closely resemble that of diminished capacity than insanity. "Diminished capacity describes a disease or defect of mind that may negate the mental state that is an element of the offense charged" whereas "the insanity defense exculpates an actor from guilt for conduct that would otherwise [*56] be criminal." Delibero, supra, 149 N.J. at 92-93. Although mental retardation, at least as asserted by one competent to stand trial, does not negate a defendant's state of mind, and he may still be found guilty of knowing or purposeful murder, it does negate a trigger essential to the imposition of the penalty of death and to that extent is similar. Rather than negating a mental condition to the crime, it negates a mental condition necessary to the implementation of the extreme penalty of death--the ability to appreciate the deterrent and retributive purposes of capital punishment. Mental retardation differs markedly from insanity in this regard, since insanity absolves a defendant from guilt, whereas mental retardation merely absolves a defendant from a form of punishment. Mental retardation, as we have previously demonstrated, can no longer be viewed as exculpatory, as insanity is viewed, or solely as a factor in mitigation of sentence. n23

Baker v. Horn, 2005 U.S. Dist. LEXIS 16768 (E.D. Pa. 8/15/2005) Trial counsel's failure to object to the erroneous jury instructions (differentiating between principal and accomplice liability) meant the real possibility that the jury convicted Baker nondeath eligible murder.

Moreover, even had the trial court provided a definition of accomplice liability not inconsistent with Pennsylvania law at this point in the instructions, the trial court indisputably failed to clarify to the jury that an accomplice must share the specific intent to kill with the principal in order to be convicted of first degree murder. This itself violates Pennsylvania law because it makes it impermissibly likely that the jury will convict a defendant of first degree murder without finding specific intent to kill. Chester, 733 A.2d at 1253 n.12. As the Pennsylvania Supreme Court has noted:

A general accomplice charge, while legally correct on the law of accomplice liability, when given in conjunction with a charge of first degree murder, must clarify for the jury that the specific intent to kill necessary for a conviction of first degree murder must be found present in both the actual killer and the accomplice.

Id. Again, the jury was reasonably likely to interpret even an otherwise technically correct instruction on accomplice liability to mean that to convict an accomplice of first degree murder, the accomplice need only have the intent to [*128] commit robbery, so long as a killing resulted. Huffman, 638 A.2d at 964; Laird, 414 F.3d 419, 2005 U.S. App. LEXIS 14547, 2005 WL 1668678, at *6-7; Smith, 120 F.3d at 411-12. In light of the trial court's immediately subsequent instruction that the accomplice need not have intended to kill so long as killing was a natural consequence of the underlying crime, it is reasonably likely that the jury believed that a defendant could be found guilty of first degree murder so long as the defendant intended to commit a robbery with the eventual actual murderer. The simple fact is that the trial court never instructed the jury that to convict an accomplice of first degree murder, the jury must find beyond a reasonable doubt that the accomplice had a specific intent to kill. n34

Viewing the challenged instructions both individually and in the context of the entire jury instructions, there is a reasonable likelihood that the jury applied the court's instructions in a way that relieved the prosecution of its burden of establishing beyond a reasonable doubt that Baker individually had the specific intent to kill. These instructions "operated to lift the burden of proof as to an essential element of the offense as defined by state law," Smith, 120 F.3d at 416, and therefore the instructions rose to the level of constitutional error in violation of the Due Process Clause of the Fourteenth Amendment. See also Bronshtein, 404 F.3d at 710-12; Laird, 414 F.3d 419, 2005 U.S. App. LEXIS 14547, 2005 WL 1668678, at *6-7.

Commonwealth v. Washington, 2005 Pa. LEXIS 1720 (PA 8/15/2005) (dissent) Remand ordered for a post-conviction "evidentiary hearing on the claim that trial counsel breached his duty of loyalty to Appellant because of personal feelings of hostility that counsel harbored and that the breach caused trial counsel to render ineffective assistance." ( see also here)

Morris provides an excellent starting point for consideration of Appellant's contention that, because trial counsel hated Appellant, counsel breached his duty of loyalty. Appellant would have us read the phrase "duty of loyalty" from the decision in Strickland, 466 U.S. at 688, as creating a Sixth Amendment obligation upon counsel to establish a positive rapport with his client. [*15] Strickland established the bedrock upon which all Sixth Amendment claims of ineffectiveness of counsel are measured. In discussing the obligations of counsel within an adversarial criminal setting the Court highlighted the responsibility of counsel to assist his client in obtaining a fair trial and avoid conflicts of interest. 466 U.S. at 692. The phrase "duty of loyalty" appears in the context of examining counsel's primary obligation to his own individual client. Id. The duty of loyalty is the obligation of counsel to avoid actual conflicts of interest that would adversely affect his ability to perform on behalf of his client. Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). The duty of loyalty an attorney owes his client does not encompass an interpersonal relationship. The Sixth Amendment provides effective assistance of counsel to ensure a fair trial, one in which the prosecution's case is subject to adversarial testing so that the outcome is reliable. Strickland, 466 U.S. at 685-86. The Sixth Amendment does not govern the feelings that flow between an attorney and his client. Morris. Accordingly, to establish [*16] a breach of the duty of loyalty an attorney owes his client, there must be a showing of an actual conflict of interest that adversely affected the outcome of the case, not merely a showing that counsel did not like his client.

Having set forth a working understanding of what a duty of loyalty means in the Sixth Amendment arena, we now consider Appellant's assertion that the decisions in Frazer and Fisher mandate that, when counsel fails in his obligation to an accused by breaching the duty of loyalty because of personal animosity towards the client, prejudice must be presumed.

Frazer was charged with fifteen counts of bank robbery before the federal district court in California. In a discussion with his court appointed attorney prior to trial, counsel called Frazer "a stupid nigger son of a bitch" and expressed his personal opinion that Frazer should be put in prison for life. Frazer, 18 F.3d at 780. Trial counsel further warned Frazer that if he insisted on going to trial, counsel intended to be "very ineffective." Id. Frazer waived his right to a jury trial, and the matter proceeded on stipulated facts; he was convicted of eight counts of robbery and [*17] sentenced to twenty years in prison. Frazer appealed, alleging a deprivation of the right to effective counsel given the racial bias of his appointed trial attorney. The District Court denied the allegations without an evidentiary hearing, finding the claim to be unsupported by any factual evidence. The appellate court reversed and remanded for an evidentiary hearing. The court stated that if the facts as alleged were true, then it would render the nature of the attorney-client relationship so defective that a new trial would be required. Id. at 784.

Fisher presented a similar scenario. In that case, Fisher was accused of murder following a homosexual encounter with the victim. 282 F.3d at 1287. Fisher had a potential alibi. The court appointed attorney failed to investigate the potential alibi or any other relevant information regarding the case. Id. at 1294-98. In fact, it appeared from the trial record that counsel had done absolutely no preparation for trial. Id. Additionally, trial counsel admitted in an affidavit prepared post-trial that he personally abhorred homosexuals and that he believed his personal feelings affected [*18] his representation of Fisher. Id. at 1298. After a thorough consideration of trial counsel's performance the court found:

In sum, [trial counsel's] performance fell below objectively reasonable standards of professional attorney conduct. Counsel was deficient for failing to adequately investigate; failing through apparent ineptitude to act as a reasonably diligent and professional advocate; failing through his hostility to his client and his client's interests, and his apparent sympathy and assistance for the state's case, to act as his client's loyal advocate; failing to advance any defense theory, even that of holding the state to its burden of proof; and, under the circumstances, failing to make a closing argument.

Id. at 1307. Thus, finding arguable merit to the claim of a deprivation of effective representation, the court went on to consider the question of prejudice and concluded that under the circumstances of this case, there was a reasonable probability that the outcome of the trial would have been different if Fisher had been represented by adequate counsel.

A fair reading of Frazer and Fisher supports Appellant's [*19] proposition that a deficient relationship between an attorney and his client may effect a breach in the duty of loyalty owing from attorney to client and thereby cause a deprivation of adequate counsel. These cases do not, however, go so far as to require that when a lawyer-client relationship displays hostility between the parties raising a potential claim of inadequate representation, that the performance of counsel in those situations will be scrutinized with a more critical eye than other claims of ineffectiveness arising in the Sixth Amendment context. In Frazer, although the opinion directing remand noted the strong likelihood of prejudice, it did not relieve the lower court of the responsibility to find prejudice if an evidentiary hearing supported the factual allegations. 18 F.3d at 784. Likewise, in Fisher, the court made a specific finding of prejudice. 282 F.3d at 1307. Thus, Appellant's contention that upon proof of animosity between an attorney and client, prejudice will be presumed is rejected.

To date, this court has not addressed a claim of ineffectiveness of counsel in the context of a breach of the duty of loyalty premised upon hostility [*20] between an attorney and client. Although we do not accept Appellant's interpretation of the duty of loyalty owed from counsel to a client, nor his related assertion that the breach of that duty of loyalty would constitute per se prejudice, we do acknowledge that a claim of this nature is cognizable under the Sixth Amendment. An allegation of ineffectiveness put forth in this manner is disturbing as it asserts a total disintegration of the function of trial counsel, implying a violation of the ethical standards of the profession, a dereliction of counsel's duty to the court, and a profound failure to the client. The constitutional right to counsel in a criminal proceeding is essential to the basic guarantee of a fair trial in our adversarial system of justice. United States v. Cronic, 466 U.S. 648, 656, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). Thus, we agree that if counsel abrogates his obligation to his client because of personal animosity so that the accused is deprived of his right to a fair trial, such action will support a claim for a violation of the Sixth Amendment. Such a claim however, must be established within the confines of the recognized test for ineffectiveness. Pierce, supra. [*21]

We reiterate, to establish a deprivation under the Sixth Amendment on his current claim, Appellant must show a direct connection between the animosity expressed by counsel and the actions of counsel taken on behalf of Appellant. Frazer; Fisher. Appellant must also show that he suffered prejudice so that, but for the actions of counsel, the outcome of the matter would have been different. Pierce, 527 A.2d at 976. The Sixth Amendment does not require a meaningful relationship between an attorney and a client; there is no obligation for an attorney to befriend and engage in an interpersonal relationship with his client as a prerequisite to acting as an effective lawyer. See Morris. The Sixth Amendment fosters an attorney-client relationship allowing for the free exchange of communications in an atmosphere of trust and confidence so that decisions can be reached and counsel may act in a manner reasonably designed to effectuate his client's best interests. Merely alleging that "my lawyer doesn't like me," would not be sufficient to require further consideration of a Sixth Amendment violation; however, in this case, because of the handwritten message by trial [*22] counsel depicting Appellant as "the banality of evil," we are presented with more than a simple complaint that "my lawyer doesn't like me." This case raises a perplexing question as to the dynamics of the attorney-client relationship and the impact of that relationship upon counsel's ability to act in a manner designed to effectuate the best interests of his client.

Starling v. State, 2005 Del. LEXIS 321 (Del 8/16/2005) Despite a unanimous jury verdict for death, the trial court erred in affording "great weight" to such a recommendation rather than giving it merely the deference required by precedent. Remand ordered for resentencing under the appropriate standard of affording weight to the jury's recommendation.

Starling finally contends that the trial judge erroneously afforded "great weight" to the jury's recommendation of death. Starling argues that, by applying the improper standard of deference, the trial judge committed reversible error. We review a trial judge's sentencing decision to ensure that it is "the product of a deliberate, rational, and logical deductive process" [*28] and that the trial judge imposed the sentence neither arbitrarily nor capriciously. n45

While instructing the jury, the trial judge correctly indicated that although the jury's role was "vital" and their recommendation was an "important factor" in sentencing, he was not ultimately bound by their recommendation. In his sentencing decision, however, the trial judge stated that our decision in Garden v. State n46 "directed" him to give "great weight" to the jury's recommendation. n47

In Garden, we held that trial judges must afford "great weight" [*29] to a jury's recommendation of a life sentence. n48 After that decision, however, the General Assembly amended the death-penalty statute to provide that: n49

The jury's recommendation concerning whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist shall be given such consideration as deemed appropriate by the Court in light of the particular circumstances or details of the commission of the offense and the character and propensities of the offender as found to exist by the Court. The jury's recommendation shall not be binding upon the Court. n50

The new statute's requirement that a sentencing judge "give such consideration as deemed appropriate" thus allows the trial judge to decide the weight the jury's recommendation should be given. n51 Accordingly, Garden no longer serves as precedent for the appropriate level of deference a sentencing judge must afford the jury's sentencing recommendation.

Despite properly instructing the jury on the deference afforded to their recommendation, the trial judge implied that he relied on Garden and that he, indeed, was "directed to give this [jury] recommendation great weight" in his sentencing decision. While the sentencing judge may choose to do so on the particular facts before the Court, he erred as a matter of law by stating that he was "directed" to give the recommendation great weight. Consequently, the sentence must be vacated. But because the trial judge instructed the jury on the correct standard, and the error occurred after the jury made its recommendation, the error's effects are limited solely to the trial [*31] judge's final sentencing decision, and do not affect the jury's findings. We therefore remand to the Superior Court for the limited purpose of resentencing under the appropriate standard articulated in 11 Del. C. § 4209(d).

Gomez v. Dretke, 2005 U.S. App. LEXIS 17533 (5th Cir 8/17/2005) Stay granted in order to determine Vienna Convention claims for this Mexican national in this procedurally complex case.

Although Gomez (arguably) n8 has previously presented his VCCR claim to the Texas state courts, the subsequent decision of the ICJ in Avena, coupled with the Presidential directive of February 28, 2005, counsel in favor of Gomez's re-pursuing relief in the Texas courts. Indeed, the Supreme Court has intimated that perhaps an "intervening change in federal law cast[ing a] legal issue in a fundamentally different light" might make necessary the re-exhaustion of state court remedies before seeking federal review. See Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971) [*8] (citing Blair v. California, 340 F.2d 741, 744 (9th Cir. 1965)).

Staying our proceedings pending Gomez's re-exhaustion of state remedies has the further benefit of avoiding the issuance of what might eventually be rendered an effectively advisory opinion. n9 As we have noted, the state argues that Gomez's VCCR claim is unworthy of a COA in that he fails to make a substantial showing of a constitutional right as required by § 2253(c)(2). In addition to that thorny question, Gomez's case raises many of the same hurdles that the Supreme Court recognized as counseling in favor of dismissing the writ of certiorari in Medellin.

Notably, even if we were to hold that Gomez's VCCR claim is entitled to a COA, there is a question whether a treaty-based violation would fall under the category of "'nonconstitutional lapses we have held not cognizable in a postconviction proceeding' unless they meet the 'fundamental defect test.'" Medellin, 125 S. Ct. at 2090 (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)). Consequently, if we were to resolve these dilemmas, and yet Gomez eventually were to obtain relief through the Texas courts, our opinion will be rendered effectively meaningless.

Those considerations, among the others highlighted by the Supreme Court in Medellin, even if not truly raising a concern about advisory opinions, certainly run contrary to the familiar canon of constitutional avoidance. See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring). Staying our proceedings pending the resolution of Gomez's successive state habeas application will allow us to avoid myriad constitutional quandaries.

This maxim of constitutional avoidance rationale is particularly acute [*10] with respect to the resolution of the dispute over whether § 2253(c)(2) allows for COA's based on alleged treaty violations. Were we to adopt the state's position, the result might be that a petitioner could be entitled to habeas relief based on certain non-constitutional claims, yet were he denied such relief by the district court, he would be precluded from receiving any appellate review of that denial. n10

The decision in INS v. St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001), further calls into question the ability of Congress wholly to remove appellate jurisdiction in cases such as the present one. In St. Cyr, the Court held that AEDPA n11 and IIRIRA n12 did not wholly deprive the federal courts of jurisdiction to review a deportation order -- even by means of a writ of habeas corpus -- so as to leave St. Cyr with no opportunity for judicial review. Invoking several time-honored canons of statutory construction, the Court held that the statutes at issue did not repeal habeas review.

In the first instance, the Court noted that "implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate [*12] specific and unambiguous statutory directives to effect a repeal." Id. at 299. Furthermore, given the questionable constitutionality of such wholesale strips of authority, "as a general matter, when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." Id.

Here, the change in statutory phraseology that underlies the state's argument does not necessarily overcome this "clear statement" burden. Before the enactment of AEDPA, petitioners needed to make a "substantial showing of [a] federal right," to obtain a certificate of probable cause. Barefoot v. Estelle, 463 U.S. 880, 894, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983). AEDPA codified this language as the standard for obtaining a COA, except that it substituted the word "constitutional" for "federal." Although a strong textual argument can be made that we must give some effect to this linguistic shift, Congress' wording falls short of the explicit "clear statement" standard articulated in St. Cyr.

A further concern that is avoided by a stay is the AEPDA limitations/tolling difficulties that Gomez might face were [*13] we to deny his application for a COA before resolution of his successive state court writ application. As Gomez puts it in his supplemental letter brief,

If this Court declines to stay and abey proceedings on Gomez's application for COA, the [Court of Criminal Appeals] will be barred by its own case law from considering his subsequent state application. Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004). Then, if this Court proceeds finally to dispose of Gomez's COA application, and the [Court of Criminal Appeals] later denies relief on Gomez's subsequent state application, any attempt by Gomez to file a successive federal petition will necessarily be time-barred, since the pendency of his current federal petition is not excludable from the limitations period. Duncan v. Walker, 533 U.S. 167, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (2001).

The principles underlying federal abstention doctrines also support a stay. In Railroad Comm'n v. Pullman Co., 312 U.S. 496, 501, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the doctrine now familiarly known as Pullman abstention was born, to-wit, "Federal court abstention is required when state law is uncertain [*14] and a state court's clarification of state law might make a federal court's constitutional ruling unnecessary." ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 12.2.1, at 763 (4th ed. 2003). A stay in favor of the successive state writ application will allow the Texas courts to grapple with the difficulties of squaring Texas's notions of procedural default with the Avena decision and the Presidential directive. Furthermore, the Supreme Court's various opinions in Medellin presage that the High Court will grant a writ of certiorari on review from the Court of Criminal Appeals if relief is not granted by the state courts. See Medellin, 125 S. Ct. at 2090 n.1; id. at 2093 (Ginsburg, J., concurring).

Around the Web

The Death Penalty Information Center notes:

NEW VOICES: Former Federal Prosecutor Criticizes the Withholding of Critical Evidence

John P. Flannery, a former federal prosecutor and special counsel to the U.S. Senate and House Judiciary Committees, recently noted the broad problems in Virginia's criminal justice system that could lead to convicting the innocent:

We are convicting innocent people in Virginia because of false eyewitness testimony, false confessions, over-eager snitches, faulty forensics, bad defense lawyers but also, and this is the worst of all, because of prosecutorial misconduct and police misconduct. In this last category, what we often mean by misconduct is that the government is concealing or destroying evidence that is exclusively within its possession that demonstrates, or tends to demonstrate, that the accused is innocent or his accusers are not reliable.

The commonwealth will fight to hold onto its information, keep it confidential from the accused, even at the risk of convicting the innocent. . . . The best defense lawyer in the nation, ignorant of a client's factual innocence because the commonwealth is sitting on the evidence of his innocence, is helpless to save his client from prison or death row. We know that the innocent have been convicted in Virginia because DNA evidence now allows us to exclude individuals as suspects in crimes -- if the DNA evidence has been preserved.

Arthur Lee Whitfield spent 22 years in prison for the double rape of two women in Norfolk within the same hour. Both women positively identified him. Whitfield pleaded guilty to one of the charges to get a lesser sentence. The commonwealth had destroyed the DNA. But one serologist had violated lab protocol and saved a sample that exonerated Whitfield and implicated another prison inmate for the crime. Former Independent Counsel Ken Starr is now fighting to save the life of death-row inmate Robin Lovitt, who is charged with killing an Arlington pool hall manager with a pair of scissors. DNA analysis of the scissors failed to link Lovitt to the murder. Starr has raised serious questions about the evidence, relying on an independent audit of the state crime lab that revealed it was wrong in the case of another death-row inmate. But the court clerk has since destroyed the scissors, precluding further DNA examinations.

. . .

We must reform a system that provides less information to a person accused of a crime than a party would get if sued for a $200 bad debt in civil court. And we must reform the notion that a criminal prosecution is some sort of sport that is all about winning a conviction, rather than doing justice. I was instructed when sworn in as a federal prosecutor of the enormous power that had been delegated, that it could destroy an individual's life with a misspent word, and was further instructed, in the words of former Supreme Court Justice George Sutherland: "The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction, as it is to use every legitimate means to bring about a just one."

(Op-ed, Richmond Times-Dispatch, August 20, 2005). See New Voices.

EDITORIAL: Alabama's Death Penalty Representation System in Disarray

The Birmingham Newssharply criticized Alabama's system of representation in death penalty cases, saying that the public should be outraged. A lack of even minimal resources and pay has caused attorneys to withdraw from cases and to decline representation to indigent defendants. The paper wrote that this shortage of attorneys could result in more trial errors and longer appeals, putting an undue strain on victims' families and the entire system of justice. The editorial stated:

What would it be worth to you to have a good lawyer if you were charged with a heinous crime and were facing the death penalty? Would any amount be too much? Probably not.

But few of us can afford a money-is-no-object defense. As taxpayers, there's a limit, too, in what we can afford to spend collectively for court-appointed lawyers who represent poor people in criminal cases.

Even so, what's happening in Alabama is ridiculous.

Lawyers who represent poor defendants are paid the lowly sum of $40 an hour for out-of-court work and $60 an hour for in-court work. That's a fraction of what lawyers earn when defendants hire them. But until recently, the court-appointed lawyers were at least able to supplement the indigent rates by getting payments (on average, $29 an hour) to cover overhead expenses such as rent, insurance and office staff.

The overhead pay ended in February when Attorney General Troy King issued an opinion saying state law banned the practice.

Criminal defense lawyers warned that cut in pay would dry up the pool of those willing to take court-appointed cases, particularly complicated ones like those involving the death penalty. The warnings have been, unfortunately, borne out.

Lawyers across the state have withdrawn from capital cases. Among them was William Pfeifer, who had represented one of the defendants in a robbery-murder case in Mobile that captured more attention than most; the victim was allegedly killed for being a homosexual.

"Counsel is not financially able to subsidize the state of Alabama in its efforts to execute persons charged with capital offenses, nor as a matter of conscience is he willing to do so," Pfeifer wrote in his motion withdrawing from the case.

Concerned, the Senate passed a measure this summer to restore the overhead pay. But the legislation didn't have enough support in the House of Representatives to come up for a vote, thanks, in part, to opposition from the Christian Coalition of Alabama. "In our view, it was not good stewardship at the time," said the coalition's president, John Giles.

And here we thought the Christian Coalition was against gambling. While the group opposes gambling with money, it apparently doesn't mind gambling with the lives of poor defendants - at least not enough to let the state spend as much as $28 million over 2 years to pay indigent lawyers a decent wage.

People in Alabama ought to be outraged. If they can't work up a tear for the defense lawyers or the poor defendants, Alabamians should at least be concerned for themselves and for victims' families. Paying for a second-rate defense may seem like a good idea, but it ends up costing more over the long haul, with retrials that drain more resources and place an undue strain on the families of victims and defendants alike. In addition, a shortage of lawyers in these cases will only make the wheels of justice grind more slowly.

It's not only wrong for Alabama to shortchange indigent defendants; it's dumb. The overhead pay needs to be restored. The sooner, the better.

(Birmingham News, August 17, 2005). See Representationand Costs.

NEW RESOURCE: Research Examines Those Who Volunteer for Execution

A new Michigan Law Review article by Professor John Blume of Cornell Law School examines the relationship between "volunteering" for execution and suicide. Blume found that nearly 88% of all death row inmates who have "volunteered" for execution have struggled with mental illness and/or substance abuse. He writes that there is an especially strong link between "volunteerism" and mental illness. Of the "volunteer" executions he reviewed, 14 involved schizophrenia and several more reported delusions that may reflect schizophrenia. Depression and bipolar disorder accounted for at least 23 other cases, and post-traumatic stress disorder was present in another 10. At least 30 of those who "volunteered" for execution had previously attempted suicide. The article also notes that between 1977 and 2003, 85% of the 93 inmates who opted to allow their execution to proceed without exhausting all legal appeals were white males, despite the fact that white males make up only 45% of all death row inmates. (J. Blume, "Killing the Willing: 'Volunteers,' Suicide and Competency," 103 Michigan Law Review 939 (2005)).

Around the blogs

Sentencing Law & Policy writes:

Death penalty news and commentary

This morning, more than a few of the always copious death penalty pieces in the newspapers have caught my eye:

• In competing commentary pieces,one author argues that the BTK case presents "the best argument for keeping" the death penalty, while another author asserts the case shows the "arbitrariness of its application."
• This editorial from North Carolina calls for lawmakers to "approve [a proposed] death penalty study and let the Study Commission on Capital Punishment get on with this important work."
• This article from Ohio reports on a "review of some of Ohio's earliest death penalty cases [which] found little consistency comparing the seriousness of the crime with the outcome, including whether offenders were sentenced to death."
• TheWashington Post, after running this editorial Monday on Justice Stevens speech at the ABA critical of the death penalty (discussed here and here). this morning has this editorial on errors in capital cases.

Sunday stories of sex and death

Pardon the sensationalized headline for this post, but today the Sunday morning papers include a number of sensational articles that follow-up developing stories about sex offender sentencing proposals and about the process for excluding mentally retarded defendants from the death penalty. . . .

On the topic of death sentencing procedures, this articlefrom Virginia canvasses the issues likely to be raised on appeal by death row defendant Daryl Atkins after a jury ruled he was not mentally retarded and thus subject to execution ( details here). I expect that a leading cite in briefs filed by Atkins' lawyers will be the recent New Jersey Jiminezdecision, discussed here, which concluded that prosecutors seeking the death penalty in

Talk Leftwrites:

The Death Penalty: Perpetuating A Resilient Pestilence by TChris

The Washington Postuses the tragedy of Lena Baker's executionto argue that courts and juries cannot be entrusted with the power to take a life:

It is tempting to believe that these tragedies don't happen anymore, that the death penalty now is more protective of innocent life. ...

Yet injustice is a resilient pestilence that -- like drug-resistant bacteria -- has myriad ways of defeating the best human attempts to eliminate it. And Americans who believe the death penalty is foolproof are simply kidding themselves. DNAtesting has caused many people to be freed from death row, illustrating the fallibility of even modern trials. And recently prosecutors in St. Louis reopened the case of a man executed by the state of Missouri back in 1995 -- no longer being convinced that the state had killed the right person. As long as the death penalty persists, cases like Ms. Baker's -- where recompense is impossible -- are inevitable.

Habeas Bill: Don't Do It

The Washington Posttoday calls the bill to streamline death penalty appeals, introduced in the Senate by Jon Kyl (R-Ariz.) and in the House by Daniel E. Lungren (R-Calif.), " an unmitigated disaster."

Habeas corpus is the centuries-old device by which inmates challenge the legality of their detentions. In modern times it has become the essential vehicle by which convicts on death row or serving lengthy prison terms attack their state-court convictions. Many innocent people owe their freedom to their ability to file habeas petitions.

Yet in many death cases, the most drastic versions of the bill would eliminate federal review entirely. Even where they didn't do that, they would create onerous procedural roadblocks and prevent federal courts from considering key issues. They would bar federal courts from reviewing most capital sentencing and create arbitrary timetables for federal appeals courts to handle these cases.

The Post points out [as I did here]that "chief justices of the nation's state court systems have voted overwhelmingly to urge Congress to slow down."

[they] recommend "delaying further action" pending additional study to evaluate whether change in current law is even necessary. If it is, the justices urge Congress "to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without more supporting evidence."

This legislation is ill-advised and, in my opinion, gets it as*-backwards:

One of the principal reasons death penalty appeals take so long is that people languish on death row for years before a lawyer is appointed to represent them. If we raised the compensation levels and provided adeqate expense money for forensic testing and experts, more qualified lawyers would volunteer to defend death cases on appeal and in habeas proceedings and they wouldn't last so long.

Also, if we raised the standards for representation of capital defendants at the trial level, and requiredDNAtesting where such evidence exists, and made theABAstandards for qualification mandatory, there would be far fewer claims of ineffective assistance of counsel at the trial level.

We should not do anything legislatively that might increase the risk that an innocent person will be put to death. It's not the American way.

CrimProf Blogwrites:

New Article Spotlight: Juvenile Death Penalty

Professor Moin A. Yahya of Alberta Law School has posted Deterring Roper's Juveniles: Why Immature Criminal Youth Require the Death Penalty more than Adults - A Law & Economics Approachon SSRN. Here's the abstract:

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association's amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because they underestimated the odds of being caught and convicted. For these three reasons, the Court held that they were not only less deterrable, but that they were also not as culpable as adults. This paper takes issue with this logic, especially the idea that juveniles cannot be deterred. If indeed juveniles are risk-lovers who cannot engage in cost-benefit analysis, because they prefer the present and misperceive the odds of being caught and punished, then the proper response is to increase the penalties that juveniles face. Using law and economics methodology, I use a simple numerical example to illustrate that juveniles can be deterred no matter how abnormal their preferences are. The deterrence, however, comes at a penalty much higher than what would be required to deter a normal risk-averse individual. Another way to think of juveniles is as demanders of crime who have a very inelastic demand for crime. Thinking of punishment as the price of crime necessitates a very high price to deter juveniles, a price much higher than what adults should face. The Supreme Court, by abolishing the death penalty for juveniles, deprived the States of a valuable tool that they could use to combat juvenile violence. In this paper, I also introduce empirical evidence from a series of econometric studies that show that juveniles indeed can be deterred by punishment and to the same degree as adults. Given that juveniles can be deterred, it follows that if adults can be deterred by the death penalty, than so can juveniles. A plethora of econometric studies have emerged showing that the death penalty does reduce homicides and saves lives. The evidence of juveniles' responsiveness to punishment belies the medical claims advanced by opponents of their execution. Furthermore, I argue that the only criteria for culpability is the ability to tell right from wrong, something that even the opponents of juvenile executions conceded juveniles have. I also show that many violent adult criminals suffer from the medical characterizations that typify Roper's juveniles. Hence, to rely on medical evidence to decide who should be spared from the death penalty is an absurd proposition, and medical characterizations should be reserved for what medicine does best, namely treatment.

To obtain the paper, click here. [Mark Godsey]

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