Four favorable holdings are noted this edition, however, none are seemingly notable, at least from this vantage point, beyond the parties effected. InIn Re Henderson(James Lee Henderson), the Fifth Circuit grants a Motion for Authorization to file a successive federal habeas petition on an Atkins / mental retardation claim. The Fourth Circuit in an unpublished opinion,Derrick Walker v. Kelly, remands for a hearing on what appears to be a fairly substantial Brady claim. The Alabama Supreme Court in Ex Parte Fredrick D. Woods holds that the that "the circuit court exceeded its discretion in striking Woods's second amended petition, and a remand to the circuit court is proper to allow that court to consider Woods's second amended petition." Lastly, the Alabama Court of Criminal appeals in Michael Shannon Taylor v. State has remanded to permit the State and the circuit court "an opportunity" to address whether Taylor suffered any prejudice from counsel's claimed deficient performance.

From the news,Governor Rounds haltedthe execution of Elijah Page in South Dakota as the two-drug lethal injection statute did not match three-drug protocol that the DoC was going to use, which, according topress reports, is a fairly common occurrence. According topress accounts, Missouri is reportedly considering a return to lethal gas as a way of circumventing the current de facto ban there on lethal injections. Missouri death row inmateCharlesW. Armentrout IIIhas agreed to a plea deal to drop all appeals of his conviction in return for a recent order by a St. Louis circuit judge reducing his sentence to life in prison. A Sacramento's DNA crime lab technician has resigned amidst the discovery he was not following the appropriate protocols while handling DNA samples, up to 300 cases may be impacted, almost all felonies, according topress reports.

Several new articles are noted. The first isSystemic Changes that Could Reduce the Conviction of the Innocentby Arnold H. Loewy; University of North Carolina at Chapel Hill - School of Law, which is aptly described by its title. Another isDisposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roperby Hillary J. Masey that is scheduled to appear in the Boston College Law Review, Vol. 1, p. 1., which is as well aptly described by its title. The current issue of the Texas Law Review offers several interesting articles (available currently only on a subscription database such as Hein, Lexis or Westlaw) including: Capital Punishment and Capital Murder: Market Share and the Deterrent Effects of the Death Penalty by Jeffrey Fagan, Franklin E. Zimring, and Amanda Geller (84 Tex. L. Rev. 1687), A Tale of Two Nations: Implementation of the Death Penalty in "Executing" Versus "Symbolic" States in the United States, by Carol S. Steiker and Jordan M. Steiker (84 Tex. L. Rev. 1869,), and The Death Penalty's Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factor, by Scott E. Sundby (84 Tex. L. Rev. 1929). Finally, in the realm of scholarly, although not yet a law review, Prof Richard D. Friedman at theConfrontation Blogoffers a substantial post on the current state of the law and the appropriate arguments to be made on the subject of the Confrontation Clause & the penalty phase.

In the international community bars the death penalty for any offense tried in an international court. The latest example of the absurdities that result when countries try to circumvent is found in this150-page opinionhanded down last week by Hon. Ellen Huevelle of the U.S. District Court for the District of Columbia. All three defendants, Leonidas Bimenyimana, Francois Karake, and Gregoire Nyaminani, are Rwandan citizens who are accused of taking part in an attack on a tourist camp located in Bwindi Impenetrable Forest, Uganda. Eight tourists died including two U.S. citizens. The defendants were interrogated over a period of months while being subjected to physical torture, solitary confinement under inhumane conditions, and other coercive measures, and as a result the statements made by them must be suppressed as coerced.

Looking ahead, the Sixth Circuit inWilliams v. Andersongranted relief on the failure of counsel to adequately investigate mitigation evidence and otherwise prepare for the penalty phase. InHill v. Crosby, on remand from the SCOTUS, the Eleventh Circuit remands on the question of whether Florida's lethal injection execution procedure violates the Eighth Amendment but appears to leave open the question of a stay of Hill's pending execution date.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060828.htm.

Recent Executions

August

29 Eric Patton (Oklahoma)

31 Hasan al-Shakur (f/k/a Derrick Frazier) (Texas)

31 James Malicoat (Oklahoma)

Scheduled Executions

September

12 Farley Matchett (Texas)

19 Daryl Holton (Tenn---volunteer)

20 Clarence Hill (Florida)

25 Pedro Sosa (Texas)

More Execution information

In Favor of Life or Liberty

Derrick Walker v. Kelly, 2006 U.S. App. Lexis 21751 (4th Cir 8/24/2006) (unpublished) Remand ordered a Brady claim for a .prejudice analysis.

In Re: James Lee Henderson, 2006 U.S. App. Lexis 21593 (5th Cir 8/23/2006) Motion for Authorization to file a successive federal habeas petition on an Atkins / mental retardation claim granted.

Michael Shannon Taylor v. State, 2006 Ala. Crim. App. Lexis 148 (Ala. Crim. App. 8/25/2006) Remand ordered as "[n]either the State nor the circuit court has had an opportunity to address the appellant's allegations by applying the prejudice prong of the Strickland test, as is required by Ex parte Taylor."

Ex Parte Fredrick D. Woods (In Re: Fredrick D. Woods v. State), 2006 Ala. Lexis 228 (Ala 8/25/2006) "[T]he circuit court exceeded its discretion in striking Woods's second amended petition, and a remand to the circuit court is proper to allow that court to consider Woods's second amended petition."

Favoring Death

Frank Williams, Jr. v. Norris, 2006 U.S. App. Lexis 21405 (8th Cir 8/22/2006) Relief denied on motions under Rule 59(e) & 60(b) where the district court found the motion constituted successive habeas petitions. Note that the case is in an unusual posture as the court below failed to adhere to the formalities of Rule 58 in entering judgment when dealing with the initial habeas proceedings.

John E. Winfield v. Roper, 2006 U.S. App. Lexis 21369 (8th Cir 8/22/2006) Relief denied on "whether Winfield's counsel was ineffective in the penalty phase for failure to investigate, to present particular witnesses, and to call him to testify, and whether Winfield's conflict of interest claim was procedurally barred from habeas review."

Ryan Dickson v. Quarterman, No. 05-70032 (5th Cir 08/25/06) Relief denied on a Brady claim where,one observer notes, "it never occurred to the prosecutor that he should turn over witnesses' pretrial statements to the defense in this capital case. But really, is it any surprise that prosecutors are getting lax about Brady in this circuit? And how forceful can the Fifth's rhetoric be if the Court continue its pace of affirming convictions and denying habeas petitions in the face of egregious constitutional violations?"

The People v. David Keith Rogers, 2006 Cal. Lexis 9862 (CA 8/21/2006) A murder conviction and death sentence is affirmed over claims of error regarding: "1) a failure to conduct a competency hearing; 2) joinder of counts; 3) defendant's absence from in-chambers hearings; 4) inadequacy of the record on appeal; 5) erroneous admission of evidence; 6) jury instructions; 7) the constitutionality of the death penalty statute; 8) an automatic motion to modify the verdict; 9) the constitutionality of the execution method; and 10) cumulative error and prejudice." [note: compiled by Findlaw.com]

The People v. Albert Lewis and Anthony Cedric Oliver, 2006 Cal. Lexis 9974 (CA 8/24/2006) Relief denied on claims including: "1) ineffective assistance of counsel; 2) a motion to dismiss the information; 3) a Pitchess discovery motion; 4) judicial bias; 5) a motion for eyewitness identification expert; 6) evidence of a bag containing white powder; 7) severance motions; 8) Trombetta motion; 9) admission of evidence; 10) Faretta claims; 11) Marsden claims; 12) jury selection issues; 13) evidentiary rulings; 14) motions for mistrial; 15) shackling orders; 16) motions for continuance; 17) jury instructions; 18) hastening the verdict; 19) absences before and during the guilt phase; 20) sufficiency of the evidence; 21) competence issues; 22) notice of aggravating evidence; 23) prosecutorial misconduct; 24) a motion for new trial; 25) a motion to modify the verdict; 26) a request for the trial court's notes; 27) cumulative error; and 28) additional challenges to the state's death penalty statute and to other aspects of California law. " [note: compiled by Findlaw.com]

The People v. Darren Cornelius Stanley, 2006 Cal. Lexis 9944 (CA 8/24/2006) Defendant's murder conviction and death sentence is affirmed over claims of error regarding: "1) a Faretta motion; 2) a severance motion; 3) Batson-Wheeler error; 4) jury instruction; 5) juror misconduct; 6) prosecutorial misconduct; 7) ineffective assistance of counsel; 8) cumulative error; 9) defendant's voluntary absence from the courtroom during certain testimony; 10) admission of evidence; 11) unanimity as to aggravating factors; 12) the appropriateness of the death penalty beyond a reasonable doubt; 13) challenges to the constitutionality of the death penalty law; 14) findings on aggravating and mitigating factors; 15) proportionality review; 16) the constitutionality of prosecutorial discretion to charge and seek the death penalty; and 17) the absence of comparative review. However, defendant's determinate sentence is reduced by two years due to noncapital sentencing error." [note: compiled by Findlaw.com]

Comm. v. Mark Duane Edwards, Jr., 2006 Pa. Lexis 1529 (PA 8/21/2006) Relief denied on claims including: (A) sufficiency of the evidence; (B) suppression of statements; (C) over-representation of whites in jury pool; (D) Batson; (E) evidentiary admissibility; and (F) failure to give adequate notice of aggravating factors.

Comm. v. James E. Frey, Jr., 2006 Pa. Lexis 1540 (PA 8/22/2006) Relief denied on claims relating to (A) sufficiency of the evidence; (B) voluntariness of the plea; (C) competency at trial; and (D) whether a "stipulated-to death penalty is unconstitutional."

Comm. v. Ernest R. Wholaver, Jr., 2006 Pa. Lexis 1538 (PA 8/22/2006) Counsel for appellant appears to have failed to file "a timely statement of matters complained of on appeal" for the direct appeal thereby waiving all but mandatory review. The Wholaver Court appears to expressly invite a challenge to appellate counsel's performance.

Patricia Blackmon v. State, 2006 Ala. Crim. App. Lexis 184 (Ala. Crim. App. 8/25/2006) Relief denied on rehearing on numerous claims, however, counsel was permitted to raise new issues in the petition for rehearing despite the general rule disfavoring such practice.

Antonio Devoe Jones v. State, 2006 Ala. Crim. App. Lexis 180 (Ala. Crim. App. 8/25/2006) Relief denied on whether: (1) the trial court "erred in denying his motion to suppress and in admitting into evidence the statements he gave to law-enforcement officials;" (2) the evidence "was insufficient evidence upon which to sustain his conviction for the capital offense of murdering Mrs. Kirkland during the commission of first-degree burglary;" and (3) whether the "State's evidence failed to establish that Mrs. Kirkland's murder was 'especiallyheinous, atrocious, or cruel compared to other capital offenses'."

Jimmy Davis, Jr. v. State, 2006 Ala. Crim. App. Lexis 179 (Ala. Crim. App. 8/25/2006) Rehearing denied on claim Court of Criminal Appeals "erred in sua sponte applying a procedural default ground to his claims of ineffective assistance of trial counsel."

Selected Excerpts from, & Commentary on, this Edition's Cases

In Re: James Lee Henderson, 2006 U.S. App. Lexis 21593 (5th Cir 8/23/2006) Granting a Motion for Authorization to file a successive federal habeas petition on an Atkins / mental retardation claim.

Henderson argues that he has shown (1) intellectual testing fixing his IQ at 66, which demonstrates subaverage intellectual functioning; (2) significant limitations in several adaptive skills; and (3) onset before age 18. In support of his motion, Henderson presented Dr. Rosin's affidavit and excerpts from the transcript of the state court's evidentiary hearing on his Atkins claim.

According to Dr. Rosin, Henderson's Full Scale IQ score is 66, which is within the Mild Mentally Retarded range. She concluded that this IQ score is consistent with [*6] the results from other diagnostic tests that she administered, including the Trail Making Test, which indicated that Henderson is in the mildly impaired range, and the Wide Range Achievement Test-3, which showed a seventh grade equivalent in reading and spelling, and a fifth grade equivalent for arithmetic. At the hearing, Dr. Rosin testified that, according to records dating to April 1992, when Henderson was 19 years old, he had a grade equivalent reading level of 4.9 and a mathematics grade equivalent of 4.4.

Three lay witnesses testified for Henderson at the state hearing. Reverend Milton Glass, who taught at Henderson's elementary school, testified that Henderson was in special education, that his grooming and dress were not age-appropriate, and that he had difficulty with social interaction, that he had low self-esteem, and that he was very gullible. Two of Henderson's classmates testified that Henderson's hygiene was not age-appropriate, that he often came to school smelling like urine, that his verbal skills were delayed, and that he had low self-esteem and was very gullible. Based on Henderson's scores on the Vineland Adaptive Behavior Scales, designed to assess communication, [*7] personal and social sufficiency, Dr. Rosin concluded that Henderson exhibited a "low" adaptive level of functioning, with age equivalent scores ranging between seven years-six months and eleven years. It was Dr. Rosin's expert opinion that Henderson has adaptive behavior deficits in self-direction, work skills, safety and academic skills. n2

Finally, Dr. Rosin testified that, because there was no evidence that Henderson suffered from any accident or illness after age 18 that would account for a recent drop in his IQ scores, it was her opinion that he has functioned within the mildly mentally retarded range since he was very young. She also testified that his adaptive behavior deficits existed before he [*8] was 18 years old.

The State argues that Henderson has failed to make a prima facie case of subaverage intellectual functioning. n3 According to the State, Steve Gilliland, a licensed professional counselor for the Texas Department of Criminal Justice, testified at the state evidentiary hearing that he did an intake assessment of Henderson in 1994, and that Henderson scored an 83 on the short form of the Wechsler Adult Intelligence Scale - Revised ("WAIS-R").

The State also points to the testimony of Dr. Michael Gillhausen, a licensed psychologist, who testified that the reliability of the short form WAIS-R is 94%, which would allow a reliable conclusion that Henderson's IQ would fall within the range from 76-90. Dr. Gillhausen noted that Henderson had [*9] scored at the seventh grade level on achievement tests given by Dr. Rosin, but that in his experience, the mildly mentally retarded usually cannot score above the sixth grade level.

According to the State, the state trial court found that Dr. Rosin's assessment was less credible than those of Dr. Gillhausen and Gilliland, because Dr. Rosin's tests were administered after Henderson knew that his life would be spared if he were mentally retarded.

The State also contends that Henderson has not made a prima facie showing of significant deficits in adaptive functioning. According to the State, Dr. Gillhausen testified that, based on his review of grievance forms that Henderson prepared while he was in prison, Henderson had a very good vocabulary and an ability to form concepts and comprehend procedures and rules. The State also introduced prison records reflecting that Henderson had ordered paperback and hardcover books, and had copies of Tom Clancy and Stephen King novels in his cell. The State asserts that Creea Impson, Henderson's juvenile intake probation and parole officer, testified that during the time she supervised him prior to the capital murder, Henderson was not a follower, [*10] was always aware of what he was doing and why he did it, and wrote rational letters of restitution to his crime victims.

Finally, the State asserts that Henderson failed to make a prima facie showing that his alleged mental retardation onset before age 18.

As we noted earlier, neither party presented us with a complete transcript of the testimony presented at the state court hearing. Henderson offered selected excerpts supporting his claim of retardation, but the State did not provide any evidence to support the assertions in its brief. Based on the limited materials available to us, we conclude that Henderson has made a prima facie showing of mental retardation. We therefore grant his motion for authorization to file a successive habeas petition.

Derrick Walker v. Kelly, 2006 U.S. App. Lexis 21751 (4th Cir 8/24/2006) (unpublished) Remand ordered on a fairly substantial Brady claim.

The second Strickler factor sets forth a requirement that it was reasonable for the petitioner to rely on the government's assertion that it fulfilled its [*14] duty to disclose all Brady material. Strickler, 527 U.S. at 289. We find that Walker has met this requirement.

and We begin our discussion of this factor by noting that Walker's reliance argument is much stronger than that found in both StricklerBanks in a notable respect: Walker filed a formal, explicit request for the disclosure of all Brady material. (Supp. J.A. at 32.) In contrast, Banks relied on the prosecutor's assurances that the prosecutor would, "without necessity of motions provide you with all discovery to which you are entitled." Banks, 540 U.S. at 677 (internal quotation marks and citations omitted). Likewise, Strickler relied on the prosecution's "open file policy" and the State assured him that a formal Brady motion was unnecessary. Strickler, 527 U.S. at 287.

Although the prosecutor did not respond in writing to Walker's Motion for Discovery and Inspection, she confirmed in open court that the Commonwealth had "provided the discovery that we are required to disclose, pursuant to the Rules of the Supreme Court and the statutory provisions that may be provided in the Virginia Code." (J.A. at 10.) [*15] Subsequently, when Walker's counsel continued to press the issue of disclosure during the motions hearing, the judge reassured him that the Commonwealth is constitutionally required to disclose any Brady material. (J.A. at 11.) Therefore, we find that Walker was reasonable not only in relying on the presumption that the Commonwealth would faithfully perform its duty to disclose, but also in relying on the explicit representation that the prosecution had disclosed all Brady material. Banks, 540 U.S. at 698 ("It was not incumbent on Banks to prove these representations false[.]").

The contention that documents in Walker's possession might suggest that Bianca provided contradicting statements at trial does not diminish the reasonableness of Walker's reliance on the Commonwealth's representation that it had complied fully with Brady. In Strickler, the Supreme Court held that, even assuming the petitioner knew of the impeaching documents available in the prosecutor's file, it was reasonable for the petitioner to accept the State's "open file policy" and believe no additional impeaching evidence existed. 527 U.S. at 285. We, too, find it was [*16] not unreasonable for Walker to assume no additional Brady material existed after the prosecutor told him that the only such evidence related to the Beale murder was the presence of drugs in the victim's system. (J.A. at 481.)

The Commonwealth also argues that it was unreasonable for Walker to rely on the prosecution's affirmative response since Walker could have reasonably discovered all the information later obtained by his habeas counsel's FOIA requests. We are unpersuaded.

The actual response to Walker's habeas counsel's requests is indicative of the "hunt" Walker embarked upon to obtain Brady material. The Attorney General denied outright Walker's request for the Beale and Threat files. (J.A. at 492.) The police, however, turned over the Beale file. (J.A. at 491.) Nevertheless, when Walker's habeas counsel followed up on the Threat file, he was informed that releasing the Beale file had been an error and the Attorney General advised the police not to disclose the Threat file. (J.A. at 493.)

The Commonwealth's argument ignores the well-settled law that the prosecutor had a duty to disclose Brady material to Walker. Strickler, 527 U.S. at 280. It is [*17] also violative of due process, as it condones the prosecutor's ability to conceal documents and requires a defendant to search for Brady material. Banks, 540 U.S. at 696 ("A rule thus declaring prosecutor may hide, defendant must seek, is not tenable in a system constitutionally bound to accord defendants due process.") (internal quotation marks and citations omitted).

In short, the cause analysis focuses on prosecutorial misconduct, not on the defendant's diligence. Furthermore, Strickler instructs us that the existence of cause ordinarily turns on factors external to the defense which, as in the instant case, impeded defense counsel's efforts to comply with the State's procedural rule. Strickler, 527 U.S. at 283 n. 24.

The third and final Strickler factor requires that the prosecution confirm the petitioner's reliance on the State's disclosure. Strickler, 527 U.S. at 289. We find that Walker has satisfied this requirement.

As a preliminary matter, it bears noting that in Strickler and Banks, the State confirmed the defendant's reliance during state habeas proceedings. Strickler, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286; [*18] Banks, 540 U.S. at 692-93, 157 L. Ed. 2d 1166. Walker, however, received the Brady material before his state habeas proceeding. Nevertheless, "[t] he standard for cause should not vary depending on the timing of a procedural default." Strickler, 527 U.S. at 284 (internal quotation marks and citation omitted).

As already observed, prior to trial, the Commonwealth conveyed to Walker's counsel that the only Brady material related to the Beale murder was the fact that the victim had drugs in his system. (J.A. at 481.) The Commonwealth later confirmed at a pretrial motions hearing that it had disclosed all Brady materials. (J.A. at 10.) This being the case, it is unnecessary for Walker to establish that the Commonwealth confirmed his reliance again during trial or on appeal. Stated differently, it was reasonable for Walker to assume that the prosecution would comply with a formal Brady motion without the need of constant confirmation. Therefore, we find that Walker has established cause such that he may be entitled to an evidentiary hearing on his Bianca Brady claim.

Ex Parte Fredrick D. Woods (In Re: Fredrick D. Woods v. State), 2006 Ala. Lexis 228 (Ala 8/25/2006) "[T]he circuit court exceeded its discretion in striking Woods's second amended petition, and a remand to the circuit court is proper to allow that court to consider Woods's second amended petition."

In its brief to this Court, the State admits that when this Court's holding in Ex parte Rhone and its progeny is applied to the facts of this case, the circuit court exceeded the scope of its discretion in striking Woods's second amended petition, and it requests that we remand the cause. We agree. The facts of this case do not establish that the circuit court's consideration of Woods's second amended petition would give rise to actual prejudice to the State or cause undue delay. Therefore, the circuit court exceeded its discretion in striking Woods's second amended petition, and a remand to the circuit court is proper to allow that court to consider Woods's second amended petition.