Leading off this edition is State ex rel. Simmons v. Roper. The Missouri Supreme Court in Roper vacated the death sentence of Christopher Simmons Tuesday holding that the juvenile death penalty violates the 8th Amendment ban against cruel and unusual punishment. Simmons was 17 at the time of the murder for which he was sentenced to death. The case is a should read as its logic readily extends to numerous other areas and is a good cert. candidate.

Also in the lead off circle is the Fifth Circuit's unpublished opinion in Coble v. Cockrell. The issue in Coble is whether or not to grant a Certificate of Appealability, or "COA," on the issue of the whether the "special questions" and jury instructions gave a permissible vehicle to give effect to mitigation evidence. Coble was sentenced in the "notch" between Penry I and the post-Penry amending of the Texas capital sentencing scheme. The Fifth Circuit's opinion arguably has limited applicability to just these "notch" cases, but the opinion gives an excellent analysis of what has to be proven in that Court's opinion to meet the requirements of a "Penry claim," including post-"notch" Penry type cases.

Two other cases are also noted as wins. The North Carolina Supreme Court in North Carolina v. Jones, has reversed on penalty phase instructions that directed if the jury found the defendant committed robbery with a dangerous weapon it would also have found the pecuniary gain aggravating circumstance; the Court held a reasonable jury could have found the former without finding the latter. In North Carolina v. Nobles a Confrontation Clause violation was had when the state apparently did nothing to compel a witness's live testimony but rather relied on prior testimony.

In this week's notable lost category two cases from Kentucky and one from Florida are noted. In Hodge v. Kentucky counsel for the condemned aggressively attacked the current "docket control by execution date" mentality plaguing that state, most notably, on the time limit imposed by execution warrant to file state post-conviction petitions and the seeming denial of equal protection by shortening the time to file a post-conviction petition. In Parrish v. Kentucky, a jury instruction that suggests death is the preferred penalty phase result (a so-called "default for death" instruction) was bitterly attacked in a terse dissent, portions of which are presented below. Finally, in Florida v. Knight n/k/a Muhammad the Florida Supreme Court has reversed a trial court's grant of relief, but appears to concede, albeit sub silentio, that Brady is applicable to the penalty phase of a proceeding, a possible first for that Court.

In the other news of the week Nicholas Yarris has had his conviction in Pennsylvania overturned due to DNA testing & the hard work of Peter Goldberger; once the final order vacating the sentence is entered it be Pennsylvania's first death row DNA exoneration. On Wednesday of this week Patrick O. Kennedy in Louisiana was sentenced to death for the rape of his 8 year-old step daughter in one of the few capital child rape prosecutions since Coker v. Georgia.

The Focus section this week looks at the ABA's Death Penalty Representation Project and the ongoing need for pro bono counsel in capital cases.

In other developments two notable additions have been made to the Capital Defense Weekly website. The first is a regular (I would hate to say daily) "update blog" of the latest case law developments at http://capitaldefenseweekly.com/update.htm. The second development is a calendar covering various CLE training such as habeas and capital defense training at http://www.capitaldefenseweekly.com/hot/month.php?user=admin&date=20030901. Both additions are aimed at keeping information timely as my current schedule does not permit getting out the weekly necessarily on a weekly schedule & because I have missed several items (such as posting CLE notices & such) that I probably shouldn't have.

As always, thanks for reading & apologies for running a little long on this holiday weekend. - k

EXECUTION INFORMATION

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

HOT LIST

State ex rel. Simmons v. Roper. 2003 Mo. LEXIS 123 (Mo. 8/26/2003) (dissent) The Missouri Supreme Court vacates the death sentence of Simmons holding that the juvenile death penalty violates the 8th Amendment ban against cruel and unusual punishment.

In Thompson v. Oklahoma, 487 U.S. 815, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988), the Supreme Court of the United States held that it constituted cruel and unusual punishment to execute persons who were 15 years of age or younger at the time of their offense. The following year, in Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989), the Supreme Court held that there was not then a national consensus against the execution of those who were 16 or 17 years old at the time of their crimes and declined to bar such executions. On that same day, the Supreme [*2] Court held that there was not then a national consensus to bar the execution of those who were mentally retarded. Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989).

In 1993, Christopher Simmons murdered Shirley Crook. Because of Stanford, he did not argue that his age constituted a bar to imposition of the death penalty, although he did argue that his age was a mitigating circumstance. He was convicted of first-degree murder and sentenced to death in accordance with the jury's verdict. This Court affirmed his conviction and death sentence, as well as the denial of post-conviction relief. State v. Simmons, 944 S.W.2d 165 (Mo. banc 1997), cert. denied, 522 U.S. 953, 139 L. Ed. 2d 293, 118 S. Ct. 376 (1997). n1

Last year, in Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002) [*3] , the Supreme Court held that a national consensus had emerged against the execution of mentally retarded offenders since Penry. Mr. Simmons now asks us to hold that a similar consensus against the execution of juveniles has developed since Stanford, that the rationale for the Supreme Court's determination that the execution of juveniles was not cruel and unusual punishment has disappeared, and that the Eighth Amendment bars his execution.

This Court agrees. Applying the approach taken in Atkins, this Court finds that, in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade. n2 Accordingly, this Court finds the Supreme Court would today hold such executions [*4] are prohibited by the Eighth and Fourteenth Amendments. It therefore sets aside Mr. Simmons' death sentence and re-sentences him to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.

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III. APPLICATION OF THE PRINCIPLES SET OUT IN ATKINS, THOMPSON, PENRY, AND STANFORD TO THE EXECUTION OF JUVENILES TODAY

A. Stanford Does Not Preclude This Court from Considering Whether a National Consensus Now Exists Barring the Death Penalty for Juveniles.The state argues, and the dissenting judges would hold, that whatever the Supreme [*25] Court held in Atkins is irrelevant to the instant case because this Court is bound by Stanford to hold that there is no constitutional bar to the execution of persons who were 16 or 17 years of age at the time of their crimes. This argument ignores the fundamental premise on which Stanford, as well as Thompson, Penry, and Atkins, were based: that "this Court has not 'confined the prohibition embodied in the Eighth Amendment to 'barbarous' methods that were generally outlawed in the 18th century,' but instead has interpreted the Amendment 'in a flexible and dynamic manner.'" Stanford, 492 U.S. at 369, quoting, Gregg v. Georgia, 428 U.S. 153, 171, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Courts should be guided by the conceptions of decency of "modern American society as a whole." Id. (footnote omitted).

was decided in 1989, and that to do otherwise is to overrule Atkins recently reaffirmed that decisions as to standards of decency are to be decided by current standards, not ones of years ago. Atkins, 536 U.S. at 312. And, that is just what the issue before this Court requires us to do: determine whether [*26] the evolving national consensus bars the imposition of the death penalty on juveniles today, even though it did not bar it fourteen years ago. To say that this determination must be made based on the state of the law and standards that existed when StanfordStanford, is simply incorrect. This Court clearly has the authority and the obligation to determine the case before it based on current - 2003 - standards of decency. See Patterson v. Texas, 536 U.S. 984, 985, 123 S. Ct. 24, 24, 153 L. Ed. 2d 887 (2002) (Ginsburg, J. dissenting from denial of petition for writ) ("This Court's decision in Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002), made it tenable for a petitioner to urge reconsideration of Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989) . . . ."); In Re Stanford, 154 L. Ed. 2d 364, 537 U.S. , 123 S. Ct. 472 (2002) (Stevens, J. dissenting from denial of petition for writ) (Court should reconsider Stanford in light of Atkins because "even if we [*27] were not convinced in 1989 [that juveniles should not be subject to the death penalty] we should be all the more convinced today" because of the additional states barring such executions and because of the growth in scientific knowledge of the less than fully developed nature of the adolescent brain.). n6

B. A National Consensus Against the Juvenile Death Penalty.

As the discussion of Thompson, Stanford, Penry, and Atkins makes evident, many of the same principles and factors that have guided the Supreme Court's determination of the constitutionality of the death penalty for the mentally retarded have also guided the Supreme Court's determination of the constitutionality of the death penalty for juveniles. This Court therefore will use Atkins' approach in addressing whether a national consensus has developed against the juvenile death penalty since Stanford, looking at: (1) the extent of legislative action against or in favor of the juvenile death penalty; (2) the frequency of the imposition of the death penalty on juveniles in modern times, and the frequency with which it is carried out even when imposed; (3) national and international opinion on the juvenile death penalty; and (4) an independent examination of whether the death penalty for juveniles violates evolving standards of decency and so is barred by the Eighth and Fourteenth Amendments.

demonstrated that a national consensus had developed against executing the mentally retarded, 1. Legislative Action Has Consistently Been Against the Juvenile [*29] Death Penalty. At the time that Penry was decided in 1989, only two states had outlawed executing the mentally retarded, and the Supreme Court found that this was not sufficient to constitute a national consensus. In deciding that developments of the intervening years between Penry and AtkinsAtkins relied heavily on the fact that sixteen more state legislatures had barred execution of the mentally retarded, while no additional states had permitted it. It found this persuasive not principally because of the number of states that had passed such laws, but because of the consistency of the changes in the direction of opposition to the death penalty for the mentally retarded.

That same consistency of change has been shown in opposition to the juvenile death penalty. Indeed, the change was in the process of occurring when Stanford was decided. At the time of Stanford, eleven states barred the juvenile death penalty. This was substantial, but not yet enough to constitute a national consensus.

Since Stanford, however, and [*30] despite what Atkins called the popularity of "law and order" legislation, five more states have banned the practice of executing juvenile offenders. Two have done so by adopting legislation raising the age of execution to 18, n7 and two have done so by newly reinstating the death penalty, but only for those offenders who were 18 or older at the time of their offense. n8 The Washington Supreme Court has also held that its death penalty statute cannot be construed to authorize imposition of the death penalty for crimes committed by juvenile offenders, n9 thereby adding the state of Washington to the list of states in which the practice is now prohibited. Thus, a total of sixteen states - to which should be added federal civilian and military courts - require a minimum age of 18 for imposition of the death penalty, only two fewer than the eighteen states Atkins identified as prohibiting execution of the mentally retarded. n10 If the twelve states and the District of Columbia that bar the death penalty entirely are added, the combined total is twenty-eight states that prohibit juvenile executions - two fewer than the thirty states that prohibited execution of the mentally [*31] retarded at the time Atkins was decided.

Moreover, as is the case with the mentally retarded, the change has consistently been in the same direction. No state since Stanford has lowered the age for execution from 18 to 17 or 16, although Stanford allowed states to do so. n11 Rather, the minimum age has either stayed the same or been raised, and the only two states to reinstate the death penalty since 1989 did so only for those 18 or older. In addition, many states, including Missouri, have recently considered legislation to raise the minimum age for executions to 17 or 18. Streib, supra, at 7. This accounts for the most legislative attention to the issue in twenty years. Id. In 2000, a bill to abolish the death penalty in New Hampshire passed both houses of the state legislature, but was vetoed. n12

2. Infrequency of Imposition of Death Penalty. In Atkins, the Supreme Court also found persuasive the fact that execution of the mentally retarded had become truly unusual. Many states that nominally had the death penalty on their books no longer imposed it at all or had never imposed it on a mentally retarded person, and only a total of five persons known to be mentally retarded had been executed in the United States in the thirteen years following the Court's decision in Penry. Atkins, 536 U.S. at 316.

The practice of executing those under 18 has become similarly uncommon today. Although twenty-two states theoretically permit the death penalty for juveniles, only six (Missouri, Texas, Virginia, Georgia, Oklahoma, and Louisiana) have actually executed a juvenile offender since Stanford was decided fourteen years ago. Streib, supra, at 3-4. Of these six states, only three have executed juvenile offenders since 1993 - Texas, Virginia, and Oklahoma. Id. at 4. Louisiana last executed a juvenile offender in 1990; Georgia in 1993. Id. at 3. Missouri executed Frederick Lashley in 1993. That is [*34] the only officially recorded execution of a juvenile offender in Missouri since the state took over executions from Missouri's counties in 1937. n13

Perhaps most telling is that, while at least 366 juvenile offenders have been executed in this country since 1642 (when the first juvenile offender execution occurred), only twenty-two of the 366 were carried out during the current era (1973-2003). Id. Of these twenty-two executions, Texas, Virginia, and Oklahoma together account for eighty-one percent of the juvenile executions. Id. at 5. Although Alabama, Arizona, Arkansas, Delaware, Idaho, Kentucky, Mississippi, Nevada, Pennsylvania, South Dakota, Utah, and Wyoming all theoretically [*35] permit the death penalty for 16-year-olds, and while Florida, New Hampshire, and North Carolina theoretically permit it for 17-year-olds, none of these states has executed a juvenile since the death penalty was re-established in 1976. Id. at 3-4, 6. All but South Dakota and New Hampshire, however, have executed other offenders during that period. n14 Indeed, even where juries have imposed a death sentence on a juvenile since the reinstatement of the death penalty in 1976, its application has consistently been reversed by the courts on a variety of grounds, making South Carolina the only other state (other than Texas, Louisiana, Missouri, Georgia, Virginia, and Oklahoma) to carry out a juvenile execution since 1976. Id. at 3. As the chart attached as Appendix A graphically demonstrates, more mentally retarded persons than juveniles have been executed, in more states, since the death penalty was reinstated in 1976. n15

As Atkins noted in regard to the mentally retarded, in light of the small number of executions of juvenile offenders carried out in the last decade, legislatures in states with a juvenile death penalty may have seen little reason to pass legislation barring it. Juveniles are so seldom executed that, other than perhaps in Texas and Virginia, the death penalty for juveniles has become so truly unusual that its potential application is more hypothetical than real.

But, the likelihood of such an execution is not hypothetical in Missouri today. The state argues that Missouri should become the only state other than Texas, Virginia, and now Oklahoma to carry out more than one juvenile execution since the reinstatement of the death penalty in 1976.

3. National and International Consensus. Opposition to the juvenile death penalty by professional, social, and religious organizations has [*37] been longstanding. At the time Stanford was decided, a large number of groups, including the ABA, child advocacy groups, psychiatric organizations, and church and religious groups filed amicus briefs urging an end to such executions. n16 Since Stanford, additional organizations of professionals have also called for an end to the death penalty, including: The American Psychiatric Association, The American Academy of Child and Adolescent Psychiatry, The National Mental Health Association, The National Center for Youth Law, The Coalition for Juvenile Justice, The American Humane Association, and The Constitutional Project (a bipartisan nonprofit organization that seeks consensus on controversial legal and constitutional issues).

Additional groups of faith also have issued statements in opposition to the death penalty, including: American Baptist Churches in the USA, American Ethical Union, American Friends Service Committee, American Jewish Committee, Amnesty International, The Bruderhof Communities, Central Conference of America, Christian Church (Disciples of Christ), Church of the Brethren, Church Women United, The Episcopal Church, Evangelical Lutheran Church in America, Fellowship of Reconciliation, Friends Committee on National Legislation, Friends United Meeting, General Conference of General Baptists, General Conference Mennonite Church, The Mennonite Church, The Moravian Church in America, YMCA of the USA, Mormons for Equality and Social Justice, The Orthodox Church in America, National Council of the Churches of Christ, Presbyterian Church (USA), The Rabbinical Assembly, Reorganized Church of Jesus Christ of Latter Day Saints, Reformed Church in America, Unitarian Universalist Association, Union of American Hebrew Congregations, United Methodist Church, United Church of Christ, and United States Catholic Conference. n17 A recent poll found that only thirty-four percent of Missourians support the [*39] death penalty for juveniles. n18

While Stanford found the opposition of social, professional, and religious groups to be of little importance, the Court's more recent decision in Atkins clearly demonstrated a shift back to reliance on such evidence to confirm the national consensus that evolving standards of decency proscribe imposition of the death penalty on the mentally retarded. Atkins, 536 U.S. at 316 n.21.

Similarly, here, although by no means dispositive, we find the opposition to the juvenile death penalty of the wide array of groups within the United States listed above to be consistent with the legislative and other evidence that current standards [*40] of decency do not permit the imposition of the death penalty on juveniles. We also find of note that the views of the international community have consistently grown in opposition to the death penalty for juveniles. Article 37(a) of the United Nations Convention on the Rights of the Child and several other international treaties and agreements expressly prohibit the practice. Streib, supra, at 7. According to Amnesty International, officially sanctioned executions of juveniles have occurred in only two other countries in the world in the last few years, Iran and The Republic of the Congo (DRC). Amnesty International, Juveniles: The Death Penalty Gives up on Juvenile Offenders (July 28, 2003), at http://www.amnestyusa.org/abolish/juveniles. Of the last seven juvenile offender executions, five occurred in the United States. Streib, supra, at 7.

4. Independent Examination of Death Penalty. Atkins also undertook an independent analysis of whether the death penalty was warranted for mentally retarded offenders by examining whether the social purposes intended to be served by the death penalty, retribution and deterrence, [*41] applied to mentally retarded offenders. Atkins, 536 U.S. at 318-19. The Supreme Court found that neither purpose would be furthered by executing the mentally retarded, as such individuals are inherently less culpable than other actors and less able to deliberate about their actions and, thus, are less able to be deterred by awareness that their crime could result in death. Id. at 319-21. Further, Atkins found that it was necessary to categorically exclude the mentally retarded from execution, rather than allowing their mental capacity to be considered on a case-by-case basis, because their reduced mental capacity would increase the possibility of false confessions and reduce their ability to show mitigation or assist counsel, so that "mentally retarded defendants in the aggregate face a special risk of wrongful execution." Id. at 321. Lastly, it concluded: "As Penry demonstrated . . . reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." Id.

Similarly, as [*42] to juveniles, neither retribution nor deterrence provides an effective rationale for the imposition of the juvenile death penalty, and the risk of wrongful execution of juveniles is enhanced for reasons similar to that set out in Atkins in regard to the mentally retarded. While the parties have cited this Court to numerous current studies and scientific articles about the structure of the human mind, the continuing growth of those portions of the mind that control maturity and decision-making during adolescence and young adulthood, and the lesser ability of teenagers to reason, this Court need not look so far afield. The Supreme Court recognized the lesser culpability and developing nature of the adolescent mind in its 1988 decision in Thompson, 487 U.S. at 835, in which it stated, "there is also broad agreement on the proposition that adolescents as a class are less mature and responsible than adults," id. at 834, and therefore "less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult." Id. at 835. Thompson noted that it was not the first [*43] time that the Court had been called upon to recognize the lesser culpability of the young, for in Eddings v. Oklahoma, 455 U.S. 104, 115-16, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982):

We stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases: "But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly 'during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment' expected of adults. . . ."Thompson, 487 U.S. at 834. Thompson then stated:

Although Mr. Simmons is 17 rather than 15, he is still an adolescent, and this Court finds the rationales set forth in and Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and [*44] less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.Id. at 835 (footnotes omitted). Thompson concluded, "The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." Id.ThompsonEddings apply here. n19

Similarly, the deterrence function of the death penalty can have little application to juveniles, not just because of their lesser ability to reason and their lack of informed judgment, [*45] but because, as discussed supra, the imposition of the death penalty on 16-year-olds and 17-year-olds has become so unusual in the last decade that "the likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually non-existent." Thompson, 487 U.S. at 837 (discussing effect of infrequency of executions of those 15 and younger).

Finally, as Mr. Simmons notes, the risk of wrongful execution also is greater as to younger offenders, who have had less time to develop ties to the community, less time to perform mitigating good works, and less time to develop a stable work history, than is true of adult offenders, and who are far more likely than adults to waive their rights and to give false confessions. Moreover, although nominally under Missouri law defendants are permitted to use their youth as a mitigating factor, this case provides a graphic illustration of the fact that their youth can become a further argument against them. In closing argument in Mr. Simmons' case, the state argued that the jury should not let him use his age to protect himself because [*46] if it did so, then he "wins." The state then argued, "Think about age. Seventeen years old. Isn't that scary. Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." Thus, Mr. Simmons' youth was used to suggest greater immorality and future dangerousness and so to provide a further reason to impose the death penalty.

For these reasons, this Court concludes that the Supreme Court of the United States would hold that the execution of persons for crimes committed when they were under 18 years of age violates the "evolving standards of decency that mark the progress of a maturing society," and is prohibited by the Eighth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. n20

Coble v. Cockrell, 2003 U.S. App. LEXIS 17134 (5th Cir 8/20/2003) (unpublished) COA granted on "claim that the special issue interrogatories and the supplemental instruction given to the jury during his sentencing trial were constitutionally inadequate because they did not provide an appropriate vehicle for the jurors to given effect to Coble's mitigating evidence of mental illness."

First, Coble argues that the "special issue" interrogatories in the Texas capital sentencing instruction, as applied to his case, precluded effective presentation of mitigating evidence in violation of the mandates of Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) [*7] (" Penry I"), and Penry v. Johnson, 532 U.S. 782, 150 L. Ed. 2d 9, 121 S. Ct. 1910 (2001) (" Penry II"). Thus, Coble contends that the instructions given to the jury violated his Sixth, Eighth, and Fourteenth Amendment rights.

Coble's trial was held between the Supreme Court's decisions in Penry I and Penry II. In Penry I, the Court held that the first two "special issue" interrogatories in the Texas capital sentencing instructions, n1 though facially valid, failed to satisfy the constitutional requirement that a capital defendant be able to present and have the jury fairly consider mitigating evidence in certain situations. 492 U.S. at 315, 328. After Penry I, Texas trial courts still gave the special issue interrogatories to the jury, but added a supplemental instruction to "cure" any possible Penry defect. Eventually, the Texas legislature adjusted the special issues to add a mitigating evidence question. See Robertson v. Cockrell, 325 F.3d 243, 248-49 & n.4 (5th Cir. 2002) (en banc) (describing the background of the period between Penry I and Penry II and detailing the new special issue). Coble's [*8] jury, however, received the interim supplemental instruction, as did Penry's jury when his case was retried.

In Penry II, the Supreme Court again considered a constitutional challenge from Penry. It considered the supplemental instruction given at Penry's [*9] subsequent retrial, n2 and held that the instruction failed to give Penry's jurors a "vehicle" by which they might give effect to his mitigating evidence. Penry II, 532 U.S. at 787, 798. Specifically, the Court held that the supplemental instruction potentially created an unacceptable dilemma for the jurors: Because it instructed the jurors to change one of their truthful "Yes" special issue answers to a "No" if they felt the defendant did not deserve the death penalty, it left the jurors with the choice of either not giving effect to Penry's proffered mitigation evidence or, alternatively, violating their oath as jurors. Id. at 798-801.

- - - - - - - - - - - - - - Footnotes - - -- - - - - - - - - - - - -

n2 In its opinion, the Court restated the instruction:You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.

Penry II, 532 U.S. at 789-90.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*10]

Coble argues that the supplemental instruction given at his trial, which was virtually identical to the one given at Penry's trial, n3 created the same situation that the Penry II court found constitutionally unacceptable. In other words, Coble argues that the instruction (1) did not enable the jury to give effect to his proffered mitigating evidence and (2) rendered the jury instructions, taken as a whole, self-contradictory.

This court recently considered "the circumstances under which the Texas special issues might fail to facilitate a sentencing jury's consideration of mitigating evidence and, second, of the supplemental instruction's ability to cure such a failure" in an en banc case. Robertson, 325 F.3d at 244. In that case, the petitioner made essentially the same arguments that Coble now makes. Thus, we must apply the analysis announced in Robertsonto Coble's request for a COA. We must first consider whether the Texas special issues created the same problems in Coble's trial as they did in Penry I. See id. at 249. In other words, did Coble present Penry-type mitigating evidence, such that the Texas special issues did not allow the jury to take that evidence into account?

During the sentencing phase, the State presented evidence that Coble had beaten all of his ex-wives on different occasions and threatened to kill at least one of them if she divorced him. The State also presented evidence that Coble had molested teenage girls on at least two occasions. Finally, one man testified that Coble had admitted to assaulting another man with a hammer in [*12] the past.

In response, Coble offered a variety of mitigating evidence. First, he presented non-psychiatric mitigating evidence. Coble's father died before he was born, and when he was eleven, his mother suffered a nervous breakdown, so Coble was sent to live at a state facility. He lived at the orphanage until he was seventeen, at which point he joined the Marines and served in Vietnam. During his four years of service, Coble served as a machine gunner and was involved in combat. Upon his return to the states, Coble was hospitalized due to the trauma he experienced in the war. Likewise, Coble's sister testified that he was different after he returned from Vietnam. Coble offered testimony that he was involved with various youth programs over the years, that he had a good relationship with his son, and that he got along well with co-workers. Coble served as a section leader in the U.S. Army reserves and was well respected.

Coble also presented the testimony of two psychiatrists. The first, Dr. Stephen Mark, testified that Coble was dangerous and might continue to be a danger. In fact, Mark testified that everything in Coble's history would make him a continuing threat. Mark also testified [*13] that Coble suffered from post-traumatic stress disorder (PTSD) and bipolar disorder, and was prone to become "potentionally explosive and potentially aggressive and assaultive." Mark traced the post-traumatic disorder to Coble's experience in Vietnam, and suggested that the bipolar disorder might be hereditary. Mark also indicated that these illnesses made Coble susceptible to severe mood swings, which resulted in a loss of control on the day of the murders.

Mark did, however, indicate that Coble would be less likely to be violent if he took medication. In fact, Mark indicated that, had he known, before the murders, of Coble's past and the depression Coble was experiencing because of the pending divorce and kidnapping charges, he would have recommended hospitalization for further treatment and evaluation. Mark also conceded that if Coble refused to take medication he would probably be violent in the future.

Dr. James Grigson, the second defense expert, testified that Coble was suffering from severe depression at the time of the murders, and that it was very improbable that Coble would commit this type of offense again. Specifically, Grigson stated that Coble was more horrified by [*14] the pictures of the victims than anyone, and that Coble had feelings of remorse and guilt. Both psychiatrists agreed that Coble linked the loss of his wives with the loss of his mother, such that the divorces triggered severe bouts of suicidal depression. Grigson also discussed a psychiatric report on Coble that was created in 1964 when Coble was 15 ("the 1964 report").

To rebut the psychiatric testimony, the state presented Dr. Richard Coons. Coons testified that, based on Coble's history of emotional instability and violence, there was a probability that he would continue to be dangerous in the future. In making this determination, Coons relied heavily on the 1964 report.

Whether Coble's evidence of mental illness, specifically PTSD and bipolar disorder, qualifies as Penry-type mitigating evidence is determined by the stringent test formulated in Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en banc), aff'd, 506 U.S. 461, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993), and readopted in Robertson. To qualify, mitigating evidence must be "'due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault [*15] of his own.'" Robertson, 325 F.3d at 251 (quoting Graham, 950 F.2d at 1029). In addition, the criminal acts of the defendant must be attributable to the severe permanent condition. This test implicates the principles of voluntariness, permanence, severity, and attribution. n4 Id. We consider each in turn.

First, it is at least debatable whether Coble's mental illnesses were voluntary. No one seems to dispute that the illnesses stemmed from events beyond Coble's control--such [*16] as hereditary factors, his childhood, and his combat experience. Cf. Blue v. Cockrell, 298 F.3d 318, 321 (5th Cir. 2002) (finding paranoid schizophrenia, among other mitigating evidence, to be Penry evidence).

Second, it is not entirely clear whether Coble's mental illness is permanent. It may be that Coble's mental illnesses can be treated in such a way that he will not be dangerous in the future. If so, then Coble's evidence would have been encompassed by the "future dangerousness" special issue. n5 Cf. Robison v. Johnson, 151 F.3d 256, 265-66 (5th Cir. 1998) (addressing defendant's evidence of schizophrenia and denying the Penry claim because evidence had been presented to the jury that schizophrenia was treatable); see also Lucas v. Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998). We note, however, that Mark's testimony on the issue of whether Coble's illnesses could be treated such that he would not be dangerous was, at the least, somewhat equivocal. Thus, we find this prong of the test to be debatable among jurists of reason. See Robison, 151 F.3d at 265 (granting COA); Lucas, 132 F.3d at 1073 [*17] (granting a CPC).

Third, Coble has made the necessary threshold showing that his disability was severe. Mark testified that the murders were the result of Coble's total loss of control. In addition, Coble's depression was characterized as "severe." Fourth, Coble must show that his criminal acts were a consequence of his illness. In Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002), we concluded that evidence of an antisocial reaction disorder was [*18] not Penry evidence because the experts did not believe that the disorder caused the defendant to commit the crime. Id. at 682. In this case, however, the psychiatrists seemed to agree that it was Coble's episodic depression, manic mood swings, and propensity for violence created by his combat experience that led him to act as he did when committing the crime. In addition, Mark testified that Coble's illnesses caused him to lose control on the day of the murders. Thus, Coble has made a threshold showing that his crimes are attributable to his illnesses. Cf. Madden v. Collins, 18 F.3d 304, 307 (5th Cir. 1994) (considering testimony about anti-social disorder and rejecting it as Penry evidence because there was no testimony that the defendant's criminal actions were attributable to the disorder).

We therefore find that it is debatable whether Coble's evidence of mental illness constitutes Penry evidence. Given this, and the fact that Coble's jury was given a supplemental instruction that was virtually identical to the one rejected in Penry II, there is at least a possibility that the jury instructions in Coble's trial were constitutionally [*19] inadequate. Accordingly, we find that Coble has made a substantial showing on the Penry II issue and we grant COA.

SUPREME COURT

The Court is in recess until September.

CAPITAL CASES (Favorable Disposition)

North Carolina v. Jones, 2003 N.C. LEXIS 828 (NC 8/20/2003) Faulty pecuniary gain instruction that directed the jury"that if it found that defendant committed robbery with a dangerous weapon, it would also find the pecuniary gain aggravating circumstance."

North Carolina v. Nobles, 2003 N.C. LEXIS 830 (NC 8/22/2003)Confrontation Clause violated and relief granted where the State failed to attempt to compel live testimony of a witness but rather relied on that witness's prior testimony.

CAPITAL CASES (Unfavorable Disposition)

Cotton v. Cockrell, 2003 U.S. App. LEXIS 17419 (5th Cir 8/21/2003) As to"Cotton's claim that the prosecutor improperly commented on his failure to testify at trial, we grant his application for COA. We conclude, however, that the district court did not err in denying habeas relief on this claim because the prosecutor's comment did not rise to the level of harmful error."

Haliburtin v. Crosby, 2003 U.S. App. LEXIS 17166 (11th Cir 8/21/2003) Relief denied on claims "1) the State withheld evidence in violation of Brady v. Maryland; 2) he did not receive a full and fair evidentiary hearing on his Brady claim regarding Freddie Haliburton's March 15, 1982 statement; and 3) he received ineffective assistance of counsel at the penalty phase of his trial. "

Hood v. Cockrell, 2003 U.S. App. LEXIS 16975 (5th Cir 8/19/2003) (unpublished) Motion to expand COA denied.

California v. Martinez, 2003 Cal. LEXIS 6089 (Cal 8/18/2003) Relief denied most notably on questions of whether prior Texas murder conviction based on a guilty plea to unlawfully, knowingly and intentionally shooting a victim was the functional equivalent of second degree murder under California law (hence making Martinez death eligible) and the jury's questions concerning the possibility of commutation.

McCoy v. Florida, 2003 Fla. LEXIS 1404 (FL 8/21/2003) Relief denied on claims relating to: "(1) admitting the audiotape conversation between McCoy and Marcel into evidence; (2) permitting the jury to view a transcript of the conversation between McCoy and Marcel; (3) denying McCoy's motions for judgment of acquittal made at the close of the State's case, as well as at the close of the evidence; (4) allowing Marcel to testify; (5) restricting the cross-examination of Marcel; and (6) finding that the instant murder was committed in a cold, calculated, and premeditated fashion. Finally, McCoy asserts that (7) the Florida death penalty scheme is unconstitutional."

Florida v. Knight n/k/a Muhammad, 2003 Fla. LEXIS 1407 (FL 8/21/2003) Trial court's grant of relief on claims relating to the State suppressing statements of prison employees who witnessed the offense reversed. Opinion appears to hold, albeit sub silentio, that Brady is applicable to the penalty phase of a proceeding.

Parrish v. Kentucky, 2003 Ky. LEXIS 165 (Ky 8/21/2003)(dissent) Relief denied most notably on the introduction of evidence that the decedent was pregnant at the time of her death and a jury instruction instruction that suggests death is the preferred penalty phase result (a so-called "default for death"). From the dissent:

Secondly, it is my opinion that the trial court erred by allowing the inclusion of Penalty Instruction 7 that may be interpreted to contend that death is the first option for the jury to consider. Such an interpretation may result in the inquiry of a dissenting juror's reasonable doubt about why death should not be imposed.

Contrary to the reasoning of the majority, I believe that the second sentence of Penalty Instruction 7, "if upon the whole case you have a reasonable doubt whether the defendant should be sentenced to death, you shall instead fix his punishment at a sentence of imprisonment," implies that death is the first option. It is a reasonable presumption that the jury may have erroneously interpreted Penalty Instruction 7 to mean that it was to impose death unless it had a reasonable doubt that the death penalty should be imposed. To eliminate the potential for erroneous interpretation, it is my opinion that the sentence of death should be vacated and a new sentencing hearing held, at which time Penalty Instruction 7 would be omitted.

Hodge v. Kentucky, 2003 Ky. LEXIS 174 (Ky 8/21/2003) Relief denied, most notably, that the time limit imposed by execution warrant to file a state post-conviction petition (and failure to permit subsequent amendment) did not deny due process; that the state executive did not violate separations of power and equal protection by shortening the time to file a post-conviction petition through use of an execution warrant; Ake; as well as, the failure of the defendant to testify at trial.

Wheeler v. Kentucky, 2003 Ky. LEXIS 179 (Ky 8/21/2003) Relief denied most notably on the introduction of evidence that the decedent was pregnant at the time of her death.

North Carolina v. Watts, 2003 N.C. LEXIS 827 (N.C. 8/21/2003) Relief denied on claims that: the trial court erred by excluding the testimony of defense witness Chasity Hill; that the trial court erred in finding the following portion of defense counsel's closing argument improper; failing to instruct the jury under Enmund v. Florida and Tison v. Arizona on intentiona murder; and the prosecutor improperly argued the meaning of "acting in concert" in his closing argument.

North Carolina v. Carter, 2003 N.C. LEXIS 832 (N.C. 8/22/2003) Relief denied most notably on claims relating to whether: the trial court erred by denying defendant the opportunity to fully cross-examine and impeach the credibility of one of the state's witnesses; the trial court's refusal to admit extrinsic evidence of a witness's prior statement; the failure to grant a pretrial motion to dismiss based on collateral estoppel; excluding evidence as to the sentence recommended and imposed in a related trial; as well as whether the trial court gave an erroneous instruction on the issue of self-defense

North Carolina v. Brown, 2003 N.C. LEXIS 834 (N.C. 8/22/2003) Relief denied, most notably, on claims relating to the trial court's denial of his ex parte motion for an expert on "substance induced mood disorder;" the trial court's failure to peremptorily instruct the jury on two nonstatutory mitigating circumstances; trial court's denial of his motion in limine seeking to prevent the State from using his 1986 Virginia conviction for malicious wounding to impeach him during cross-examination; and the failure of the murder indictment to allege any aggravating circumstance.

Ohio v. Hughbanks, 2003 Ohio LEXIS 2149;99 Ohio St. 3d 365; 2003 Ohio 4121;792 N.E.2d 1081 (Ohio 8/20/2003) Relief denied most notably on claims that Hughbanks's confession should have been suppressed by the trial court because his past history of psychiatric illness and recent use of psychotropic drugs required that police have him examined by a mental health professional before concluding that he was competent to knowingly and voluntarily give up his rights and that the trial judge allowed the prosecutor to prejudice the jury during the sentencing phase by improperly cross-examining a defense psychiatrist, Dr. DeSilva, about Hughbanks's past incarcerations, acts of domestic violence and failure to support his children.

OTHER CASES OF NOTE

None noted this week.

FOCUS

Focus this week provides information on the ABA's Death Penalty Representation Project: (from probono.com):

Despite several high profile recent successes the need for pro bono firms continues to grow. As the American Bar Associaton has noted:

Dozens of persons on death rows throughout the country are without counsel. Many more have been appointed attorneys who lack the training, experience or resources to provide effective representation. While each individual has the right to seek post-conviction relief of his conviction and sentence, there is no federal constitutional guarantee that a lawyer be appointed in state proceedings. State post-conviction proceedings are often the first real opportunity for prisoners to establish their innocence or demonstrate constitutional errors that infected the capital trial.

Capital work is one of the most challenging and complex areas of the law. Post-conviction cases are time-consuming and often require a serious out-of-pocket commitment. For that reason, most pro bono counsel are members of mid- or large-size firms.

As recently noted by Bryan Stevenson, Dir. Equal Justice Initiative of Alabama

"We have dozens of people in Alabama who are literally dying for effective legal assistance. With a 27 percent increase in the number of individuals sentenced to death in this state since the closure of the Resource Center, the need for pro bono counsel has never been greater."

FAQ: Most Frequently Asked Questions by Attorneys Considering Post-Conviction Capital Representation.

1.Why is there a nation-wide shortage of qualified lawyers to represent individuals under sentence of death?

There are three primary reasons for the current crisis:

· Supreme Court case law allows states to deny individuals court-appointed counsel at the state post-conviction level.

The U.S. Supreme Court has never recognized a constitutional right to counsel for indigent death row inmates seeking post-conviction relief in state or federal court. Through its amicus curiae briefs and resolutions, the ABA has repeatedly urged the Court to acknowledge this constitutional guarantee. More information about the ABA's policy positions and amicus briefs in support of the right to counsel is available by going to the section of our practice area library where copies of some of our recent amicus briefs are posted. The briefs include references to ABA studies and resolutions regarding capital punishment.

·During 1995-96, Congress eliminated all funding for the 20 capital post-conviction defender organizations known as "resource centers."

The resource centers served three vital functions. Their trained attorneys provided direct representation to many death-sentenced prisoners. The offices also assisted pro bono firms and appointed counsel in hundreds of cases. Lastly, the centers monitored the progress of cases from conclusion of trial through clemency to ensure that claims were not forfeited by inexperienced counsel and that individuals were not executed without representation or without review of their constitutional claims.

Only a handful of states now directly support a capital post-conviction counsel office and even fewer provide funding at the same level that had been appropriated by Congress. One compelling example is Pennsylvania, which, after losing federal funds for the resource center, refused to spend any money for capital post-conviction attorneys to represent those on death row, but has consistently allocated $500,000 annually for prosecutors who are assigned the responsibility of opposing death penalty post-conviction and habeas applications.

Almost every state now makes some provision for appointment of counsel once a pro se application for habeas relief is filed by a death row prisoner. However, very few states require that appointed lawyers have sufficient experience and skill to handle this complex and time-consuming litigation, and few compensate lawyers with more than token fee payments or provide reimbursement for the substantial costs that must be incurred to investigate, prepare and litigate state post-conviction claims.

The number of jurisdictions with death-sentenced prisoners who lack adequate legal representation is growing at an alarming rate. There are currently more than 3,500 persons on death row in the United States and 99.5% of them are indigent. The size of death row has almost doubled in the last fifteen years.

The Project is now actively seeking counsel for more than fifty death-sentenced prisoners. There is a particularly urgent need for competent lawyers in the South and in states such as Pennsylvania. In Georgia, which does not appoint counsel in state post-conviction proceedings, Exzavious Gibson, a man with an IQ of less than 80, was forced to represent himself at his hearing. That ruling was upheld by the Georgia Supreme Court and Mr. Gibson's application for certiorari was denied by the U.S. Supreme Court. Gibson v. Turpin, 270 Ga. 855, 513 S.E.2d 186 (Ga. 1999), cert. denied, No. 99-77, 1999 WL 495897, 68 U.S.L.W. 3079 (U.S. Oct. 12, 1999) (a copy of the ABA amicus brief is available through our on-line library).

Today, there are no fewer than 40 men and women on Alabama's death row without lawyers to seek state post-conviction relief. Each has concluded direct appeal and faces the expiration of the one-year federal statute of limitations that is not tolled until a "Rule 32" petition is filed in state court. Alabama pays its lawyers a maximum of $1000.00 for post-conviction representation and there is no statutory right to funds for investigative or expert assistance. No court in Alabama routinely appoints counsel for death row inmates who have concluded direct appeal.

· The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 set a one-year statute of limitations on the filing of federal habeas petitions.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was passed with the goal of speeding up executions and restricting access to federal review of state convictions. For the first time in our history, there is a statute of limitations on the filing of federal habeas corpus actions. For many inmates, the clock is now ticking under the AEDPA, but these unrepresented individuals have no way to stop the federal clock and preserve their federal constitutional claims by filing a petition for post-conviction relief in state court.

The ABA strongly opposed the AEDPA and has, in its resolutions and amicus briefs, argued that provisions of the AEDPA unduly restrict the jurisdiction of Article III judges by requiring deference to a state court on a question of federal constitutional law.

2.What is the ABA Death Penalty Representation Project doing to address the critical shortage of qualified lawyers for individuals facing execution?

The Project's work includes:

·Funding six attorneys at public interest capital representation offices across the country, whose primary responsibility is to provide expert assistance to pro bono counsel representing death row prisoners. This effort is possible because of a grant from the Open Society Institute, matching funds from firms and individual lawyers, and the generous support of the ABA Section of Litigation;

·Underwriting regional and national capital training programs and providing scholarships to prepare pro bono and appointed counsel to handle capital cases at trial, on appeal and in post-conviction proceedings;

·Utilizing our confidential web site practice area to make resources readily available to pro bono and appointed counsel who are representing persons facing the death penalty;

·Meeting with private law firms around the country to discuss the need for pro bono representation of death-sentenced prisoners;

·Supporting legislative efforts such as the Innocence Protection Act, which would provide badly needed funds for capital defender systems; and

·Continuing to assist in the drafting ofAmicus briefs to the U.S. Supreme Court in the cases whose issuesimplicate ABA policy andconcern the Project.Earlier this year, the Project assisted in drafting an Amicus brief in the case of Kevin Wiggins v. Corcoran. This case, which the Supreme Court heardin the spring of 2003, involves an ineffective assistance of counsel claim for Counsel?s failure to conduct any investigation into, or present any, mitigating evidence.

3.How can civil litigators successfully represent a death-sentenced prisoner?

One reason for the success of civil firms in this area is that those facing death often received inadequate representation from the lawyers appointed to defend them at trial. Frequently, these lawyers were paid only token amounts to handle the cases. Many were inexperienced or incompetent. Some individuals were represented by counsel who were trying their first cases, were senile or intoxicated, were ignorant of governing law, used racial slurs to refer to their clients, slept or were absent during crucial parts of the trial, and were denied or never requested any investigative or expert assistance. One of the most rewarding aspects of handling a habeas case is the opportunity to unearth and present meritorious defenses and mitigating evidence that were not developed at trial, and afford a client the vigorous advocacy he or she never received.

As we discuss below, death penalty cases are challenging, complex and time-consuming. They require litigation with the level of skill and resources to which mid- and large-size firms are accustomed.

The substantive criminal law will be new to civil litigators, as will many aspects of investigating, preparing and presenting capital post-conviction claims. However, though considered a criminal or quasi-criminal proceeding in some jurisdictions, habeas corpus is essentially a civil action. In federal court, in particular, the rules affecting pleadings, discovery and proof will be quite familiar. There are arcane and ever-evolving aspects of federal habeas procedure that are difficult for everyone who takes a case, including experienced criminal defense lawyers. Nonetheless, this is a challenge civil firms routinely overcome.

4.At what stage of the proceedings should my firm become involved?

As you explore our state-by-state library, you will learn that in some jurisdictions, such as Texas, the post-conviction process runs concurrently with the direct appeal. In those circumstances, we urge firms to become involved shortly after the conclusion of trial. In most states, however, post-conviction proceedings commence after the conclusion of the direct appeal. In this context, the Project urges law firms to take a case as soon as possible after the direct appeal has been denied.

When habeas relief is denied by the state court -- and you must assume it will be -- your firm will be expected to follow the case through proceedings in federal court and through clemency, if habeas efforts fail. Given the time limits that apply in some state and all federal habeas proceedings, the earlier your firm enters the case, the better. There may even be an advantage to having your firm prepare the petition for writ of certiorari. This will depend upon the case you take and the advice you receive from the capital representation office to which we refer you.

In years past, volunteer counsel often waited to take a case until it reached the federal habeas stage. A number of developments, most significantly, passage of the AEDPA make it imperative that, if the option is available, your firm handle the state post-conviction proceedings. The AEDPA provides a one-year statute of limitations for the filing of federal habeas corpus actions from the conclusion of the direct appeal. This period is tolled during the pendency of the state post-conviction proceeding. However, depending upon when the state petition was filed, the time in which to apply for federal habeas relief may be considerably shorter than a year. The strategic choices involved in coping with the changes in case and statutory law are more complicated than can be covered here. There is no doubt, however, that the earlier your firm enters the case, the greater the client's chances of success.

5.What claims are most often raised in capital habeas petitions?

Because of limitations imposed by statute and case law, not all legal issues raised on appeal are cognizable in habeas corpus proceedings. Complete familiarity with the trial and appellate record is essential, but this is only a starting point. The purpose of a petition for writ of habeas corpus is to permit an extra-record examination of the case to develop evidence that the defendant was denied basic due process at the guilt and/or penalty phase of the trial and/or on direct appeal.

In evaluating the government's case, you will be searching for exculpatory evidence that might have been suppressed or was not discovered by the trial attorney. For example, did any of the state's witnesses -- especially informants -- commit perjury? Were informants given compensation or deals in pending cases that were not revealed to the defense? Did the prosecution conceal evidence that an eyewitness had changed his or her mind about an identification? Was there a failure to conduct scientific testing of physical evidence or is there reason to believe the testing was unreliable?

Your firm will be investigating both the underlying charge and the client's life history to ascertain what evidence counsel failed to present at trial that might reasonably have resulted in an acquittal, conviction of an offense less than capital murder, or most important, what evidence in mitigation was not presented that might have led to a sentence other than death? When, as too often occurs, trial counsel has conducted virtually no investigation, the defense team will be interviewing witnesses to the underlying offense and examining the client's family, medical and education history, and records of previous convictions and incarceration that might disclose evidence of mental illness, neurological impairment, mental retardation, and sexual and physical abuse. These social history investigations are unquestionably time-consuming, but properly supervised by an experienced capital case investigator or mental health professional, student interns can do much of the leg work such as locating, gathering and summarizing records. Given the likelihood that trial counsel did not undertake the necessary exploration of your client?s background, these investigations yield a wealth of compelling information.

In many states, there are statutory time limits in which to file your initial petition and the AEDPA severely restricts the period in which the federal petition must be filed. Changes in state and federal law mean that the first round of habeas litigation is probably the only round. The availability of discovery proceedings varies from state to state. The importance of thorough investigation and presentation of claims in the state petition cannot be overemphasized. Evolving procedural rules in federal court may well preclude consideration of any other claims. Depending upon the particular claims you raise, there may be an evidentiary hearing in state court. Because of limitations imposed by the AEDPA - many of which are still the subject of litigation - you must anticipate the government will take the position, once you are in federal court, that the client is not entitled to another hearing.

6.How should my firm select a case?

In some states, such as Alabama and Georgia, there is a particularly urgent need to enlist firms. We recognize that a number of factors, including geography, timing, staffing and possible legal issues will affect a firm's decision. What the Project cannot do is identify the "winning case." Every time a firm agrees to represent a death row prisoner, it takes an important step in winning the battle for due process and equal justice for that individual.

Because these cases have often been so poorly handled at trial and on appeal, neither the brief summaries we can send you nor a review of the opinion on direct appeal are complete or reliable predictors of the potentially meritorious claims. The most compelling issues and evidence will not be discovered until you begin your investigation. Once you have decided to accept a case, but before you select a client, the resource counsel can provide you with more information than is posted on-line.

7.Can the firm expect payment for any attorney hours or out-of-pocket expenses?

Particularly because we are asking you to take a case in a state that pays no attorney fees or only token amounts, you must assume that there will be little or no compensation for billable hours or costs incurred at the state post-conviction stage. Georgia, for instance, provides no fees or reimbursement at the state post-conviction stage. If appointment and compensation are possible, one of our resource counsel with whom you are working will advise your firm how to proceed. Even if appointment at the state level is possible, the fees and money available for out-of-pocket expense reimbursement will usually be nominal. Although non-payment may be the norm, your firm may decide to challenge local or statewide practice. This is a strategic decision that should be discussed with the resource counsel. Ultimately, however, the firm is undertaking a substantial pro bono commitment, especially in state court.

By statute, lawyers who are appointed in federal court are paid, at a maximum, an hourly rate of $125.00. The federal statute also authorizes reimbursement for necessary expenses such as investigators and expert witnesses. The firm cannot, however, postpone any necessary state post-conviction investigation or expert evaluations with the expectation of being compensated later in federal court. The doctrine of exhaustion requires you to develop and raise all federal constitutional claims and supporting evidence in state court. If you fail to do so, it is likely those claims will be barred from consideration by the federal court.

8.How many hours will the case take and how much will it cost the firm?

As much depends upon the case you accept, its procedural posture and the jurisdiction in which the case is pending, it is impossible to predict the number of hours and the costs to the firm with any precision. There are differences in post-conviction practice and procedure in each state that will affect matters such as statutory deadlines and costs. Like any litigation, post-conviction practice involves periods of intense activity interspersed with what may be months during which the demands on the firm's resources will be minimal.

There is no question, however, that capital post-conviction cases are time-consuming. Over a period of years, in state and federal court and, if necessary, in clemency, your firm may well devote 2,000 hours. Many of thelawyers whom the Project has recruited in the pastfour years would be pleased to talk with you about how they have staffed and managed their cases. The Project can also refer you to lawyers at firms in your own community to answer these questions.

9.Do members of the firm need training in capital post-conviction representation and, if so, what types of programs are available?

There are excellent opportunities for you to learn the skills needed to successfully handle a capital post-conviction case. Each year there are several national, and close to a dozen regional, CLE programs presented by criminal defense organizations and capital defender offices. The Project contributes financially to many of these seminars. Our Calendar Section of the web site provides a list of regional and national seminars for capital defenders. It includes programs for trial, appellate and habeas counsel. Throughout the year, the Project offers scholarships to enable appointed counsel to attend these conferences.

The Project initiated its "resource counsel" program with the goal of ensuring that pro bono firms receive guidance from experienced lawyers in the field. If you accept a case, attorneys at the non-profit capital representation offices will assist you in any number of ways so that the firm's resources -- both attorney time and out-of-pocket expenses -- are used appropriately. They can help locate experienced investigators, mitigation specialists and mental health experts, and assist you in making important strategic decisions. The Project's Director is also available to confer with you and members of your firm about any of these issues.

The intricacies of federal habeas practice are detailed in several outstanding texts, including Habeas Corpus Practice and Procedure by Profs. James Liebman and Randy Hertz (Lexis), and Habeas Corpus Checklists by Prof. Ira Robbins (West), which should be added to your library.

The goal of our state-by-state library is to make manuals and sample pleadings relevant to state post-conviction litigation available to you as quickly as possible.

If you agree to represent a client, you will be given automatic access to the Project?s confidential web site, Probono.net. Our practice area contains a link to the Capital Defense Network where you will find a Habeas Assistance Training Project (HAT) component that includes case law summaries, on-line litigation guides, and important updates for federal habeas practice. HAT is a program of the Defender Division of the Administrative Office of the U.S. Courts that is specifically designed to support lawyers handling federal capital habeas cases.

If interested either contact the site or the ABA Death Penalty Representation Project:

Robin M. Maher, Esq., Director

MAHERR@staff.abanet.org

Rebecca M. Coffee, Esq., Staff Attorney

COFFEER@staff.abanet.org

727 15th Street, NW

9th Floor

Washington, DC 20005

(202) 662-1738 Project's Main Line

(202) 662-8649 Fax Line

OTHER RESOURCES

The Daily Blog noted this week (http://capitaldefenseweekly.com/update.htm):

Thursday, August 28, 2003

DNA forces death row inmate to get new trial -- Nick Yarris in Pennsylvania

Nicholas Yarris has been working for ten years to overturn his convictionin Pennyslvania through DNA testing. Peter Goldberger, his attorney, has convinced a Judge to order the death sentence to be vacated. A final order officially vacating the sentence should be forthcoming. This will be Pennsylvania's first death row DNA exoneration once the formal orders are finished being typed up.

Death Sentence for Capital Rape

A Louisiana jury on Wednesday sentenced Patrick O. Kennedy, 38, to death for the rape of his 8 year-old step daughter. What many had thought was a merely academic excercise, whether Coker v. Georgia, can be read (although I would not so read it, especially in light of subsequent case law) to permit capital punishment for child rapists is again being tested. Several states have attempted to construct capital child rape statutes in light of Coker, including LA, although their constitutionality remains very dubious. The last execution in the United States for rape was 1964.

Wednesday, August 27, 2003

Reminder: Pro Bono Counsel still needed

Despite several high profile recent successes the need for pro bono firms continues to grow. As the American Bar Associaton has noted:

Dozens of persons on death rows throughout the country are without counsel. Many more have been appointed attorneys who lack the training, experience or resources to provide effective representation. While each individual has the right to seek post-conviction relief of his conviction and sentence, there is no federal constitutional guarantee that a lawyer be appointed in state proceedings. State post-conviction proceedings are often the first real opportunity for prisoners to establish their innocence or demonstrate constitutional errors that infected the capital trial.

Capital work is one of the most challenging and complex areas of the law. Post-conviction cases are time-consuming and often require a serious out-of-pocket commitment. For that reason, most pro bono counsel are members of mid- or large-size firms.

As recently noted by Bryan Stevenson, Dir. Equal Justice Initiative of Alabama

"We have dozens of people in Alabama who are literally dying for effective legal assistance. With a 27 percent increase in the number of individuals sentenced to death in this state since the closure of the Resource Center, the need for pro bono counsel has never been greater."

If interested either contact the site or the ABA Death Penalty Representation Project:

Robin M. Maher, Esq., Director

MAHERR@staff.abanet.org

Rebecca M. Coffee, Esq., Staff Attorney

COFFEER@staff.abanet.org

727 15th Street, NW

9th Floor

Washington, DC 20005

(202) 662-1738 Project's Main Line

(202) 662-8649 Fax Line

Tuesday, August 26, 2003

Missouri Supreme Court Holds Juvenile Death Penalty Unconstitutional

The Missouri Supreme Court vacated the death sentence of Christopher Simmons Tuesday holding that the juvenile death penalty violates the 8th Amendment ban against cruel and unusual punishment. Simmons was 17 at the time of the murder for which he was sentenced to death.

NOW AVAILABLE: A calendar featuring training and other death penalty events is now available. If you have an upcoming event please drop an email to karl@capitaldefenseweekly.com

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

Gradual Decline in Support for the Death Penalty in Europe

Posted: August 28, 2003

Opposition to the death penalty appears to grow the longer a country has been without the punishment. A Gallup International poll in 2000 found that 60% of western Europeans opposed the death penalty, while 60% of eastern Europeans (where abolition is still being debated) support the death penalty.

"How Many Innocent People Must We Execute?"

Posted: August 27, 2003

Following U.S. District Judge Mark Wolf's opinion in the federal capital prosecution of Gary Lee Sampson expressing his reservations about the risks of executing the innocent, the Buffalo News raised similar concerns in a recent editorial.

Missouri Supreme Court Throws Out Juvenile Death Sentence Based on Evolving Standards of Decency

Posted: August 26, 2003

In a 4-3 decision to vacate the death sentence of juvenile offender Christopher Simmons, the Missouri Supreme Court ruled that the juvenile death penalty violates the nation's evolving standards of decency and is therefore unconstitutional.

INNOCENCE: Prosecutors Drop Charges Against Two Illinois Men Freed by DNA Testing

Posted: August 26, 2003

Cook County prosecutors have dropped all charges against Michael Evans and Paul Terry, two men who had been convicted of raping and murdering a 9-year-old girl in 1976.

NEW RESOURCE: Law Review Examines History of Colorado's Death Penalty

Posted: August 25, 2003

In "Capital Punishment in Colorado: 1859-1972," University of Colorado professor and death penalty expert Michael Radelet reviews the history of capital punishment in Colorado.

New DNA Evidence Could Result in Pennsylvania Man's Freedom from DeathRow

Posted: August 22, 2003

Pennsylvania death row inmate Nicholas James Yarris may become the next person to be freed from death row.

NEW RESOURCE: Newsletter Highlights International Approach to the Death Penalty

Posted: August 21, 2003

The most recent newsletter produced by the End to Capital Punishment Movement USA (ECPM USA) highlights developments in the organization's aim to strengthen the cross-Atlantic dialogue on the death penalty.

ADDITIONAL RESOURCES

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

SUBSCRIBING & ARCHIVES

Capital Defense Weekly is published forty (40) times (or so) a year with the archives accessible from the pull down bar located at http://capitaldefenseweekly.com/index.html.