Leading off this week is Hauser v. Moore where the Eleventh Circuit examines the all too familiar challenge of standing for a next-of-friend petition when the condemned wants to drop all appeals. Two additional capital cases, both out of Texas, are also noted. In Moore v. Johnson, the Fifth Circuit again lowers the bar as to what constitutes a fair trial in their opinion holding a mitigation specialist is not needed in a capital case. InKnox v.Johnsona different Fifth Circuit panel holds that a trial on false testimony did not result in the constitution being offended, even though a man's life was ultimately in the balance, because the state claims it did not know about any perjurious statement.

The feature this week are various federal trial motions relating to juries.

Finally due to some technical problems the last few editions may not have been readable by some users. Links to the current edition and back editions are always available athttp://www.capitaldefenseweekly.com/CDW.

Supreme Court

The Supreme Court is on Summer sabbatical.

Capital Cases

Hauser v. Moore, No. 00-90028 (11th Cir. 08/24/2000)(link unavailable) "Hauser's execution was scheduled for 6:00 p.m., August 22, 2000; however, at 2:05 p.m. that same day, the district court granted a stay of execution. The state has filed with this court a Notice of Appeal and Motion to Vacate Stay of Execution and, alternatively, Motion to Dismiss any appeal by CCRC and Crawford. Hauser has also personally filed a Motion to Vacate Stay of Execution in this court. In his motion, Hauser requests that this court "will see Next Friends petition for what it is, an anti-death penalty crusaders attempt to overwhelm the courts with volumes of paper work and stay the execution and subvert a competent defendants right to self-representation." Hauser also states that "Next Friends have no standing to present these claims and as such, Hauser contends that he retains all right to bring forth petitions on his own behalf'."

Now we must consider whether CCRC and Crawford have standing to proceed on Hauser's behalf. The Supreme Court set forth the requirements for "next friend" standing in Whitmore v. Arkansas, 495 U.S. 149 (1990):

First, a "next friend" must provide an adequate explanation - such as inaccessibility, mental incompetence, or other disability - why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the "next friend" must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a "next friend" must have some significant relationship with the party in interest. 495 U.S. at 163-64 (citations omitted). See also Ford II, 195 F.3d at 624. CCRC and Crawford bear the burden to "clearly [] establish the propriety of [their] status and thereby justify the jurisdiction of the court." Id.

We have reservations that CCRC and Hauser's biological mother, who gave Hauser up for adoption, are "truly dedicated to the interests" of Hauser. CCRC did not enter these proceedings until recently and has never represented Hauser at his request. As Hauser himself stated, CCRC and Crawford's efforts appear to be motivated solely by their own desires to block imposition of the death penalty in an "attempt to define justice as they see fit." The most logical "next-friend" is Hauser's court-appointed counsel, Mr. Flowers; however, Hauser has expressed a desire that Mr. Flowers not file anything on his behalf.

In any event, for the reasons that follow, we conclude that CCRC and Crawford cannot establish that Hauser is unable to pursue his own cause due to mental incompetency. The record establishes just the opposite. In Rees v. Peyton, 384 U.S. 312 (1966), the Supreme Court established the test for determining a petitioner's competency to waive post-conviction proceedings in a capital case. Applying the Rees test "involves a determination of (1) whether that person suffers from a mental disease, disorder, or defect; (2) whether a mental disease, disorder, or defect prevents that person from understanding his legal position and the options available to him; and (3) whether a mental disease, disorder, or defect prevents that person from making a rational choice among his options." Lonchar, 978 F.2d at 641-42. See also Ford II, 195 F.3d at 617.

In Ford II, we affirmed the district court's findings that petitioner was competent to dismiss his º 2254 petition, discharge his counsel, and be executed. The petitioner suffered from depression and a personality disorder, thought he was going to sit at God's left hand and be an important person, stated that he had many wives, concubines, and children whom he had visited in various parts of the world, and that he had once "visited Heaven." 195 F.3d at 612-13. The district court, relying on the three-prong test enunciated in Lonchar, found Ford to be competent. The district court in Ford II noted that in Lonchar, the Eleventh Circuit had found Lonchar competent because he knew what he had been charged with, the penalty that had been given, and the ultimate outcome if the penalty was imposed on him. See id. at 615. Moreover, this court had acknowledged that Lonchar was competent because he exhibited a basic understanding of the habeas proceedings, persisted in his opposition to further review of his convictions, and stated that he understood that without further proceedings he would be executed. See id.

Therefore, the district court in Ford II found that Ford, like Lonchar, "understood the `bottom line' of his legal situation - that he must continue to engage in the review process or be executed - and that he was able to make a rational choice among these options." Ford II, 195 F.3d at 615. The district court in Ford II also acknowledged that Ford suffered from "significant behavioral and emotional problems," but plainly understood that "in his legal situation, he must choose either to continue his legal challenges or be executed." Id. Furthermore, the district court found that Ford satisfied Lonchar's third prong because he had rational reasons for choosing to die: he was tired of languishing in prison; he was pessimistic he would ever get out of prison; and he truly believed he would be happier in the afterlife. See id. This court affirmed the district court's findings and conclusions in Ford II.

In this case, the facts establishing Hauser's competency are even stronger than those establishing Ford's competency in Ford II. Hauser clearly satisfies Lonchar's second and third prongs. The state trial court on several occasions determined that Hauser is competent to proceed pro se due to his repeated statements that he wished to proceed pro se; his letters to the court expressing his wishes; his statements during the telephonic hearing that he understood the ramifications of his wish to proceed pro se, that he knew he would be executed by lethal injection, and that the evidence CCRC wanted to submit was really evidence of mitigation. The trial court concluded that Hauser "has the capacity to appreciate the allegations against him, has an appreciation for the range and nature of these proceedings and the appellate process, and has the ability to disclose facts pertinent to those proceedings." August 7, 2000, Order at 3. In reaching its conclusion, the trial court considered Dr. Larson's report. Moreover, during the Faretta hearing, Hauser acknowledged that he had a GED and took two semesters of pre-law college courses.

These subsidiary findings, and the ultimate decision that Hauser is competent, are factual in nature and are entitled to a presumption of correctness. See Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per curiam); 28 U.S.C. º 2254(e)(1). In order to rebut these findings, CCRC and Crawford must present clear and convincing evidence that Hauser is incompetent. They have failed to establish that there is any reasonable likelihood they can do so. For this reason, no "adequate basis exists for the exercise of federal power" in this case. Demosthenes, 495 U.S. at 737. The stay must be vacated because the arguments for it are "for all relevant purposes indistinguishable from those we recently rejected," Delo, 509 U.S. at 823, in Ford II. Binding Eleventh Circuit precedent *fn3 forecloses CCRC and Crawford's request to proceed as next friend. Accordingly, we hold that the district court abused its discretion in failing to vacate the stay, because it is readily apparent that CCRC and Crawford have no standing to proceed on Hauser's behalf.

Moore v. Johnson, No. 99-50927 (5th Cir. 08/23/2000) "Moore seeks a COA with regard to four related claims, which at their root argue that he should have been afforded, by the state, expert assistance in jury selection and development of mitigation evidence. Because this is a question of law, the district court could have issued a writ of habeas corpus only if Texas's review procedures are "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We can grant a COA only if courts could objectively disagree with regard to whether Texas has so erred, or if our jurisprudence would be ennobled by further consideration of the question."

With regard to the mitigation expert, it appears that the trial court provided Moore the opportunity to present additional information to demonstrate that the expert "would be significantly more effective in marshaling the evidence in [Moore]'s behalf than his own counsel," but that "no further request or showing of necessity for a mitigation expert was made." Moore, as a result, did not enjoy the benefits of a mitigation expert. Later, before the Court of Criminal Appeals, Moore again failed to argue that he should have been provided a mitigation expert. That court held that "since appellant does not make any arguments regarding expert assistance on this issue, we will only address expert assistance on the jury selection issue." Moore,935 S.W.2d at 130 n.2. If a petitioner "offer[s] little more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial judge's decision" not to provide that assistance. Caldwell v. Mississippi,472 U.S. 320, 323 n.1 (1985). Moreover, claims that are barred as a consequence of a failure to comply with state procedural rules do not merit habeas relief (3)and therefore cannot warrant issuance of a COA.

Moore's claims that he was constitutionally entitled to either of these experts fail on their merits as well. He bases his argument on the pronouncement in Ake v. Oklahoma, 470 U.S. 68 (1985), that states must provide indigent defendants "access to a competent psychiatrist" in cases in which "a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." Id.at 83. Moore argues that the Akeholding compels a finding in his favor.

In coming to its conclusion, the Court in Akeheld that

[t]his Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. . . . [A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairlywithin the adversary system.

Id.at 76-77 (internal citations and quotation marks omitted; emphases added). This circuit has, in light of Ake, held that "non-psychiatric experts . . . should be provided only if the evidence is both critical to the conviction and subject to varying expert opinion." Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993) (citations and internal quotation marks omitted).

Neither of Moore's claims of right to expert assistance can survive under these standards. His purported right to a jury-selection expert withers before the language of Ake. As the Court explained, a defendant cannot expect the state to provide him a most-sophisticated defense; rather, he is entitled to "access to the raw materials integral to the building of an effective defense." Ake, 470 U.S. at 77. Most of those raw materials come to the defendant in the form of his court-appointed lawyer--in his expert knowledge about how to negotiate the rules of court, how to mount an effective defense, and so forth. Other materials come from lay witnesses, such as evidence necessary to the defendant to establish his defense. Defendants enjoy access to court-appointed psychiatric professionals because the Court expects those professionals togather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; [] analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and [] offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12 . . . (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense. Id.at 80.

Despite Moore's claims to the contrary, jury selection is not a mysterious process to be undertaken by those learned in the law only with the assistance of outside professionals. All competent lawyers are endowed with the "raw materials" required to pick a jury fairly disposed toward doing substantive justice. While the wealthiest of defendants might elect to spend their defense funds on jury consultants, indigent defendants are not privileged to force the state to expend its funds on this exercise in bolstering an attorney's fundamental skills. Meanwhile, of course, a defendant does not lack "an adequate opportunity to present [his] claims fairly" because he has been denied a jury consultant. Communicating with the jury is a quintessential responsibility of counsel.

Moore's claim of entitlement to a mitigation expert fails under the Yoheyexplication of a defendant's right to non-psychiatric experts. As the Yoheycourt explained, "[a]n indigent defendant requesting non-psychiatric experts must demonstrate something more than a mere possibility of assistance from a requested expert." Yohey, 985 F.2d at 227. Moore does not make such a showing.

As the recital of facts indicates, Moore's defense included testimony from lay and psychiatric witnesses favorable to him suggesting that his childhood had been scarring and that he did not present a threat to his fellow prisoners. He provides no explanation of how a mitigation expert might have provided "critical" assistance to a defense team already including a lawyer and psychiatrist, both cognizant of the role of mitigating evidence in staving off the death penalty.

The precedent of the Supreme Court and this circuit, then, forecloses entirely Moore's arguments, denying him the chance to demonstrate that our court could resolve the issues in his favor or that the questions are adequate to deserve encouragement to proceed further. He therefore has not made a substantial showing of the denial of a constitutional right and cannot receive a COA on these grounds. (4)

Knox v. Johnson, No. 99-41068 (5th Cir. 08/21/2000) "Knox contends that the district court erred in granting summary judgment against his six constitutional claims: that the trial court denied him his Sixth Amendment right to a speedy trial; that the State violated the Fourteenth Amendment by using false evidence against him at both the guilt and the punishment phases of his trial; that the State violated the Eighth Amendment by using inherently unreliable evidence against him at both phases of his trial; that his counsel's deficient performance denied him his Sixth Amendment right to effective assistance of counsel; that the State court violated the Sixth Amendment by excusing a prospective juror on an impermissibly broad basis; and that the State violated the Fourteenth Amendment by failing to disclose that it reached an informal plea agreement with Carroll Bernard Smith in exchange for Smith's testimony."

Knox argues that the state trial court denied him his Sixth Amendment right to a speedy trial. As Knox notes, the trial court did not order a new trial until it received the federal district court's February 26, 1992 order requiring the state court to commence trial within 90 days, eleven months after the Fifth Circuit's March 28, 1991 order of remand for a new trial. Knox contends that this eleven month delay was unreasonable, was attributable to the state, and prejudiced his ability to defend himself at trial and at sentencing. According to Knox, the delay made it impossible for Marion Wilson, an alibi witness and sentencing mitigation witness, to testify. Knox states that Wilson could not testify at the second trial because at the time he was at a Maryland hospital receiving treatment for a blood disorder. According to Knox, "[h]ad the trial occurred eleven months earlier, Wilson would have been available to testify." He suggests that Wilson would have testified that Knox was working on a Motel 6 construction job in Richmond, Virginia on the date of the murders.In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court established a four-part balancing test for determining whether a defendant received a speedy trial within the meaning of the Sixth Amendment. Under Barker, a court must consider: (1) the length of the delay; (2) whether the defendant asserted his right; (3) the reason for the delay; and (4) the prejudice to the defendant. Id. at 530. As a threshold inquiry, the petitioner must demonstrate that the length of the delay is presumptively prejudicial. 407 U.S. at 530. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id.

Knox has failed to demonstrate that he has suffered an unreasonable delay. This Court has previously held that a delay of ten and one-half months is not presumptively prejudicial. SeeUnited States v. Maizumi, 526 F.2d 848, 851 (5thCir. 1976). And while neither Barkernor the Constitution itself defines when a delay becomes presumptively unreasonable, we have held that "[a] delay of less than one year will rarely qualify as 'presumptively prejudicial' for purposes of triggering the Barkerinquiry." Cowart v. Hargett, 16 F.3d 642, 646 (5thCir. 1994). As we explained, "[a]bsent extreme prejudice or a showing of willfulness by the prosecution to delay the trial in order to hamper the defense, a delay of less than one year is not sufficient to trigger an examination of the Barkerfactors." Id. at 647. (internal citations omitted).

Nothing in Knox's petition or elsewhere in the record suggests that the State willfully delayed Knox's trial in order to hamper his defense. Nor has Knox demonstrated "extreme prejudice." Although the delay may have prevented Knox from putting Marion Wilson on the stand, the record establishes that Wilson could not have supplied an alibi defense. As the state notes, Wilson submitted conflicting affidavits, one that provided an alibi for Knox and another that explained that he could not recall whether Knox was actually working for him at the time in question. Moreover, the testimony of other witnesses disproved the possibility of Knox's alibi, placed Knox in the Galveston area at the time of the murder, and stated that Knox committed the offense. In fact, the State presented an affidavit from the vice-president of Motel 6 stating that construction on the Richmond, Virginia Motel 6 did not occur until October 10, 1983, almost one year after the Joe's Pharmacy robbery and murder. Under such circumstances, Knox's inability to present Wilson's testimony does not constitute extreme prejudice. As such, the district court did not err in granting summary judgment on Knox's Sixth Amendment speedy trial claim.

The Due Process Clause of the Fourteenth Amendment forbids the State from knowingly using perjured testimony. Giglio v. United States, 405 U.S. 150, 153 (1972). In order to prove that the State has violated the Fourteenth Amendment by relying on such testimony, the defendant must demonstrate: (1) that a witness for the State testified falsely; (2) that such testimony was material; and (3) that the prosecution knew that the testimony was false. Id. at 153-54.

Knox argues that the State violated the Fourteenth Amendment by permitting Knox's ex-roommate, Kathy Pressletz to testify. He contends that at the first trial, Pressletz lied about four facts during her testimony: that she had worked as a waitress at a bar named "Snuffy's," that her father was named "James Russell," that her father owned the building in which the bar was located, that Knox had cut her with a knife, sending her to the emergency room at John Sealy Hospital, and that she did not begin using drugs until she met Knox. Although Pressletz abandoned the knife story at the second trial, she reiterated her statements concerning her drug use, her father, and her employment at Snuffy's. Knox does not suggest that Pressletz's statements regarding her father and Snuffy's affected the outcome of his trial, but simply that these lies demonstrated that Pressletz is a liar and should not have testified. He concludes that because Pressletz's testimony played an instrumental role in corroborating the testimony of other witnesses, "it undoubtedly played a large role in the jury's deliberations at the guilt phase" and thus renders their verdict untrustworthy.

Although Pressletz may have either lied or mistakenly testified about the knife wound, her father, and her employment at Snuffy's, Knox has not presented any evidence that the State knew that Pressletz's testimony was false. Indeed, the state habeas court found that the State did not offer "false or perjured testimony during the trial of [Knox] and that "the State did not present any testimony from Kathy Pressletz at the trial which it had good reason to believe would be false." Because these findings are reasonable "in light of the evidence presented in the state court proceeding," we must defer to the state court's determinations. SeeChambers v. Johnson, 218 F.3d 360, 363; 28 U.S.C. § 2254(d)(2).

Further, even assuming arguendothat the State knowingly submitted perjured testimony, Knox has failed to demonstrate that Pressletz lied about any material fact. Even if Pressletz lied about her father and her employment - neither of which had any bearing on Knox's participation in the murder - a number of other witnesses corroborated her relevant testimony - i.e. that Knox often drove by Joe's pharmacy, that he mentioned that it would be "easy to knock off" the pharamacy, that he possessed handguns with the type of ammunition found at the scene of the crime, and that he threatened to kill her after she testified against him in a prior hearing. As the Supreme Court explained in Giglio, a constitutional violation occurs only where "the false testimony could in any reasonable likelihood have affected the judgment of the jury." Id. at 154. As such, the district court did not err in granting summary judgment against Knox's Fourteenth Amendment claim that the State used inherently unreliable evidence against him at both phases of his trial.

Habeas Cases

Brown v. Johnson, No. 97-40722 (5th Cir. 08/21/2000) " Brown then sought habeas relief in federal court under 28 U.S.C. § 2254. The claims made in Brown's federal petition are essentially identical to the claims he made in his state court petitions. He asserts that his lawyer rendered constitutionally deficient assistance by: (1) refusing to call his codefendant as a witness; (2) failing to interview the bartender to corroborate Brown's assertion that he had asked the bartender to call for medical assistance for the victim of the assault; (3) & (4) failing to interview witnesses whose testimony would have added credibility to the second assault defense; and (5) failing to prepare adequately for trial, thereby missing opportunities to impeach witnesses called by the prosecution. Brown further claims that (6) he was denied due process of law because his indictment was not signed by the District Attorney; and (7) he was denied the right to appeal because his lawyer erroneously informed him that he would beeligible for parole before any appeal he might file could be decided by an appellate court. . . . . The district court's judgment with respect to Brown's first, second, fifth and sixth federal habeas claims is affirmed. Thedistrict court's judgment with respect to Brown's third, fourth, and seventh federal habeas claims is reversed, and these claims are remanded to the district court with instructions to conduct an evidentiary hearing with respect to those claims before adjudicating them on their merits."

Higginbottom v. Carter, No. 99-8055 (11th Cir. 08/21/2000) "Higginbottom argues that the PLRA's exhaustion requirements do not apply to his excessive-use-of-force claim because the claim did not challenge "prison conditions" as defined in the PLRA. See 18 U.S.C. § 3626(g)(2). Title 18 U.S.C. § 3626(g)(2), which was amended as part of the same legislation as § 1997e, provides that the term "civil action with respect to prison conditions" means any civil action arising under federal law "with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison." Thus, the plain language of the statute does include claims alleging excessive force. See Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999). See also Booth v. Churner, C.O., 206 F.3d 289 (3rd Cir. 2000), petition for cert. filed, (U.S. June 5, 2000) (No. 99-1964). Furthermore, reading the term "prison conditions" to include excessive-use-of-force claims is supported by the purpose and legislative history of the Act. Congress passed the PLRA to reduce frivolous prisoner lawsuits. See Freeman, 196 F.3d at 644. "A broad exhaustion requirement that includes excessive force claims effectuates this purpose and maximizes the benefits of requiring prisoners to use prison grievance procedures before coming to federal court." Id."

Howard v. Gramley, No. 97-1881 (7th Cir. 08/23/2000) Mr Howard argues "contends that his appellate counsel was constitutionally defective in her selection of issues to appeal, and he argues that the district court abused its discretion by refusing to appoint counsel to represent him in these proceedings. The district court rejected Howard's arguments, concluding that his counsel's performance was inadequate, but that he suffered no prejudice as a result. We agree that Howard has not shown prejudice, so we affirm."

Krantz v. United States, No. 99-2539 (2d Cir. 08/25/2000) " While petitioner's motion for a certificate of appealability was pending before this Court, we received notice of petitioner's death. This circumstance presents the question of how we should dispose of a pending motion for a certificate of appealability when the petitioner has died. For the reasons that follow, we find it appropriate to deny petitioner's motion as moot and dismiss the appeal."

Evans v. Rogerson, No. 00-1060 (8th Cir. 08/22/2000)District court erred when it found the state court made an unreasonable determination of fact in rejecting Mr. Evan's claim that the police violated his Fifth Amendment privilege against self-incrimination; grant of habeas relief reversed.

Jiminez v. Rice, No. 99-15574 (9th Cir. 08/22/2000) "Jiminez did not exhaust state remedies before filing his federal habeas petition, the district court granted Warden Bertram Rice's motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. S 2253 (Supp. II 1996), and we affirm."

Delgado v. Lewis, No. 97-56162 (9th Cir. 08/23/2000) "The record before us, the same record before the California Court of Appeal and the California Supreme Court, reveals a total failure of the legal system to provide even a modicum of acceptable representation to Delgado. In short, this is not a "close" or "difficult" case in any way and we can be left with little but a "definite and firm conviction that an error has been committed." Tran, 212 F.3d at 1153. Therefore, we conclude that the state court unreasonably applied clearly established federal law under AEDPA."

Manning v. Foster, No. 97-35664 (9th Cir. 08/22/2000) "Manning filed this habeas petition alleging ineffective assistance of counsel because his defense attorney failed to file an appeal from the conviction even after Manning specifically requested him to appeal. The district court dismissed the petition on procedural grounds and also on the merits. We reverse and remand.. . . .If the district court determines that [appellate counsel's] actions led Manning to procedurally default, the district court shall grant the writ of habeas corpus and remand to state court with directions to vacate and reenter the judgment and sentence so that Manning has an opportunity to file a direct appeal from his conviction."

Ellis v. Armenakis, No. 99-35285 (9th Cir. 08/25/2000) "Ellis was convicted of attempted murder and assault against Larry Hickman. Ellis argues that the evidence at his criminal trial could not support either charge and that his trial counsel's incompetent assistance violated his Sixth Amendment rights. We reject both arguments and affirm the district court's dismissal of Ellis's habeas corpus petition."

Smith v. Scott, No. 00-6021 (10th Cir. 08/22/2000) "We granted a certificate of appealability to consider whether the Oklahoma Department of Corrections violated the Ex Post Facto Clause when it rescinded certain of Mr. Smith's earned time credits. We reverse and remand the case to the district court with instructions to grant the writ."

Shumway v. Payne, No. 99-35726 (9th Cir. 08/24/2000) Petitioner argues on appeal "(1) "The trial court's decision to deny the motion to sever violated the due process and confrontation clauses of the U.S. Constitution"; (2) "All statements Alexis made to Detective Mooney, after she was a suspect and retained counsel, should have been suppressed"; and (3) "Trial counsel were ineffective for failing to raise Alexis' diminished capaiity as a defense at trial'."

Section 1983 & Related Filings

Nussle v. Willette, No. 99-0387 (2d Cir. 08/24/2000) "The District Court held that the Prison Litigation Reform Act of 1995 ("PLRA") required the plaintiff to exhaust administrative remedies before bringing his § 1983 claim to court. We reverse the District Court's judgment, holding that the PLRA exhaustion requirement does not encompass claims for assault or excessive use of physical force under the Eighth Amendment."

Other cases of note

Anastasoff v. USA, No. 99-3917 (8th Cir 08/22/2000) Court finds unconstitutional that portion of Eighth Circuit Rule 28A(i) which states that unpublished opinions are not precedent. Court provides a detailed discussion of precedent and unpublished opinions.

InDepth Features

From the Federal Death Penalty Resource Counsel

Alternates

Order (availability of alternate jurors for penalty deliberations),United States v. Lonnie O’Bryant et al.

Attorney participation in voir dire

Motion to Permit Counsel to Participate in Voir Dire

Affidavit of Ronald C. Dillehay (attorney-conducted voir dire)

Affidavit of Cathy Bennett (attorney-conducted voir dire)

Motion to Permit Counsel to Question Jurors During Voir Dire and Memorandum in Support,United States v. Deric Frank(SDNY)

Memorandum in Support of Motion for Mistrial Due to Inadequate and Restrictive Voir Dire Regarding the Juror’s Death Penalty and Particularly Mitigation Views and Due to Denial of Attorney Participation,United States v. Jean Claude Oscar(EDVa)

Voir Dire Procedures in Federal Death Penalty Cases

Composition challenges

Preliminary Motion to Dismiss Indictment and/or Stay the Proceedings Against [Defendant] Due to the Underrepresentation of Blacks in the Grand and Petit Jury Selection Processes and for Other Violations of the Jury Selection and Service Act of 1968 [with supporting brief],United States v. Anthony Battle(NDGa)

Motion for Reconsideration of Order of Magistrate Recommending Denial of Defendant’s Jury Challenge Motion and Supplement to Defendant’s Jury Challenge Motion with Incorporated Authority,United States v. Anthony Battle(NDGa)

Defendant’s Reply to Government’s Post-Hearing Response in Opposition to Defendant’s Jury Challenge Motion,United States v. George Williams(NDGa)

Objections of [Defendant] to Report and Recommendation on Jury Challenge Issue,United States v. George Williams(NDGa)

Evaluation of prospective jurors

Juror evaluation sheet

Juror evaluation notes sheet

Experts (to assist with jury selection)

Affidavit of David Bruck (frequency of use of jury experts in federal capital cases)

Individual voir dire

Motion for Individual, Sequestered Voir Dire, at least as to Punishment Views, Exposure to Pretrial Publicity/Discussion, and Possible Racial Prejudice and Memorandum in Support,United States v. Deric Frank(SDNY)

Affidavit of Kevin McNally (frequency of individual voir dire in federal capital cases)

Voir Dire Procedures in Federal Death Penalty Cases

Legal issues

Jury Issues in Litigation in Federal Death Penalty Trials

If you are interested in this material please contact FDPRC.

Multiple juries

Procedure Order (dual jury trial procedures and matters pertaining to jury conduct)

Overview

Voir Dire Procedures in Federal Death Penalty Cases

Opinions concerning jury selection in federal capital cases

Index to Opinions in Federal Capital Cases Involving Jury Selection

Opinions in Federal Capital Cases Involving Jury Selection

Peremptory strikes

Motion for Full Complement of Twenty Peremptory Challenges (sample)

Questionnaires

Index of Available Jury Questionnaires

Stipulated Joint Juror Questionnaire,United States v. Louis Jones(NDTex)

Defendant’s Proposed Juror Questionnaire,United States v. Ronald Eugene Mathis(MDFla)

Juror Questionnaire,United States v. Deric Frank(SDNY)

Prospective Juror Questionnaire (Defense Version)

Notice of Final Version of Juror Questionnaire,United States v. Orlando Hall(NDTx)

Jury Questionnaire,United States v. Theodore Kaczynski(EDCa)

Views on punishment in a murder case (sample questions)

Attitudes regarding the death penalty (sample questions)

Voir Dire Procedures in Federal Death Penalty Cases

Recommended jury selection procedures

Recommended Jury Selection Procedures (letter from defense counsel to court),United States v. Deric Frank

Defendant Shaheem Johnson’s Memorandum of Law Regarding the Scope of Appropriate Voir Dire in a Capital Case,United States v. Shaheem and Raheem Johnson(EDVa)

Memorandum of Law in Support of Defendant ... McCullah’s Request for Voir Dire Procedures,United States v. John McCullah(EDOk)

Defendant Chanthadara’s Motion for Adoption of Jury Selection Procedures,United States v. Bountaem Chanthadara(D.Ks)

Defendant Chanthadara’s Brief in Support of Motion for Adoption of Jury Selection Procedures,United States v. Bountaem Chanthadara(D.Ks)

Scope of questions in voir dire

Defendant’ Memorandum of Law Objecting to "Death Qualification" and, in the Alternative, Regarding the Scope of Appropriate Voir Dire in a Capital Case,United States v. Deric Frank(SDNY)

Defendant Shaheem Johnson’s Memorandum of Law Regarding the Scope of Appropriate Voir Dire in a Capital Case,United States v. Shaheem and Raheem Johnson(EDVa)

Defendants Shaheem and Raheem Johnson’s Request for Additional Voir Dire Questions [on punishment, views of other jurors, drug trafficking],United States v. Shaheem and Raheem Johnson(EDVa)

Memorandum in Support of Motion for Mistrial Due to Inadequate and Restrictive Voir Dire Regarding the Juror’s Death Penalty and Particularly Mitigation Views and Due to Denial of Attorney Participation,United States v. Jean Claude Oscar(EDVa)

Defendant’s Requested Voir Dire by the Court on Punishment Issues,United States v. Deric Frank(SDNY)

Motion to Supplement the Court’s Voir Dire Inquiry, as Necessary, and Requested Supplemental Inquiry [on pretrial publicity, racial attitudes, and the death penalty],United States v. Stacy Culbert(EDMi)

Race and drug questions (sample)

If you are interested in this material please contact FDPRC.

Questions on issues concerning mental retardation (sample)

If you are interested in this material please contact FDPRC.

Strike procedures

Order Excusing Jurors for Cause,United States v. Ronald Eugene Mathis(MDFla)

Errata

From theDeath Penalty Information Center:

Another North Carolina City Votes for Moratorium on the Death Penalty

By a vote of 8-3, Charlotte became the seventh local government in North Carolina to vote for a resolution calling for a moratorium on executions. Although the city's mayor vetoed the resolution, the veto is expected to be overridden at the next city council meeting on September 5. (People of Faith Against the Death Penalty Press Release, 8/29/00) See also, Moratorium Now.

Jurors Experience Emotional Stress in Death Penalty Cases

"Capital cases are hard on everybody, and we don't pay enough attention to the impact they have on jurors," Virginia's Assistant Commonwealth's Attorney Jim Willett recently told the Washington Post. "It's a very difficult task we ask them to perform in even considering the death penalty." The task was particularly hard for Jennifer Day, the foreperson on a Virginia jury that sentenced a man to death. "It was the worst thing I've ever endured in my entire life," said Day. "I was numb. I couldn't look at him, I couldn't think. It was a mess." (Washington Post, 8/26/00)

Most States Now Have Life Without Parole as an Option

New Jersey recently adopted life in prison without the possibility of parole as the alternative to death in capital penalty trials, and after appellate reversal of death sentences. (2000 N.J. Laws c.88 (8/22/00)). A Gallup poll in February 2000 showed that support for the death penalty dropped from 66% to 52% when respondents were offered the sentencing option of life without parole. New Jersey is now one of 33 out of 38 death penalty states that offer life without parole. See also, Public Opinion.

Former Texas Judge Believes Innocent Person Has Been Executed

"There's no question, in my mind, that someone has slipped through the cracks and that an innocent person has been executed," said former Harris County (Texas) criminal court judge Jay Burnett in a recent interview with NBC Dateline. When asked about the quality of representation in Harris County, Burnett responded that because judges in Texas are elected and want to appear tough on crime, some will select attorneys who the judge knows will not put on an aggressive defense. "[W]hat we had, unfortunately, were some people who should not have been trying capital murder cases and were being appointed." The interview will air on NBC-TV at 8 p.m. EDT, Wednesday, August 30. (Dateline Press Release, 8/29/00)

Gary Graham Case Investigated

NBC Dateline will air an investigation into the representation afforded Gary Graham at his trial. The program will appear on NBC-TV at 8 p.m. EDT, Wednesday, August 30. Graham was executed in Texas on June 22, despite serious doubts about his guilt.

Recently, civil rights leaders asked Attorney General Janet Reno to investigate whether Texas prosecutors withheld critical evidence in the Gary Graham case. Days before Graham's execution, the Chicago Tribune reported that the victim in the case had been a possible player in a major drug operation. Among those calling for a new trial for Graham were three of the jurors who voted to convict him in 1981. The jurors signed affidavits this June saying they would have voted differently if all the evidence had been available. (Reuters, 8/25/00)

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

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