Capital Defense Weekly, August 30, 2004

Leading off this edition isCalifornia v. Haley. InHaleythe Court holds that failure to instruct jury on intent to kill was reversible error under the facts of this case. The Court in dicta the court also finds error in the trial court's failing to instruct jury that it must find defendant specifically intended to commit general intent crimes of rape and sodomy.

Other wins noted include cases from the deep South. InBanks v. Dretke, a Fifth Circuit panel reluctantly remands for an evidentiary hearing in light of the Supreme Court's remand on prosecutorial misconduct. In Morrow v. Alabama the Court of Criminal Appeals remands for a hearing on mental retardation issues and orders the trial court to correct several errors in its sentencing decision. Finally, on the win list, in Florida a remand is had inDilbeck v. Crosby, so that the trial court can correct errors in it sentencing orders

Several noticeable losses are also had. A split Third Circuit panel denies relief inHackett v. Priceas any penalty phase instruction error on unanimity was harmless. A split Tenth Circuit panel reversed the district court's grant of relief on whether trial counsel reasonably chose not to present testimony about the impact long term steroid use had on Petitioner. In California the state supreme court inIn re Seatonhas proceeded to create yet another bizarre and byzantine procedural default doctrine. InWilley v. Mississippirelief is denied , and new procedures set for future litigants, on a mental retardation claim. Finally, Judge Wolfe, a federal district court judge from Massachusetts, in United States v. Sampson has released a small tome on federal death penalty practice in a memorandum opinion in that matter explaining his actions in the first death sentence in that state in generations.

Making the Case for Life capital seminar which the Southern Center and NACDL put on every fall, this year will be October 1- 3 in Arlington, Virginia. This year features Barbara Bergman, Craig Cooley, Scharlette Holdman and many others. The link to the NACDL page where people can see the schedule, logistics, etc. is athttp://www.nacdl.org/public.nsf/freeform/2004Making%20Case?OpenDocumentere.

Time limits (for reasons discussed in greater detail below) discussion of Woods v. Alabama, 2004 Ala. Crime. App. LEIS 164; 2004 WL1909291 (Ala.Crim.App. 8/27/2004), Minor v. Alabama,2004 Ala. Crim. App. LEXIS 156; 2004 WL 1909380 (Ala.Crim.App. 8/27/2004), and Thompson v.Kentucky, 2004 Ky. LEXIS 195; 2004 WL 1906848 (Ky 8/26/2004) which will be covered in the next emailed edition and should be available at capitaldefenseweekly.com later in the day Friday.

The next few weeks are touch & go as I am at a conference next week, have tentatively scheduled trial for the week after that what amounts to an LWOP trial &, finally, the laptop on which I do the weekly has decided to unexpectedly die during the prep of this week's edition (limiting the time in which I can prep the weekly both this week & prospectively until it can be replaced). As always thanks for reading. - k

This edition archived athttp://capitaldefenseweekly.com/archives/040830.htm

EXECUTION INFORMATION

Since the last edition there have been no executions in the United States:

Pending execution dates believed to be serious include:

September

9 James Edward Reid Virginia

21 Andrew Flores Texas

22 Philip Workman Tennessee

28 Ricky Dale Newman Arkansas----volunteer

30 David Hocker Alabama --- volunteer

SUPREME COURT

No cases noted

CAPITAL CASES (Favorable Disposition)

California v. Haley, 2004 Cal. LEXIS 7807, 2004 WL 1900376 (CA 8/26/2004) Trial court's failure to instruct jury on intent to kill was reversible error. Trial court's error in failing to instruct jury that it must find defendant specifically intended to commit general intent crimes of rape and sodomy was harmless beyond a reasonable doubt.

Banks v. Dretke, 2004 WL 1895061 (5th Cir 8/25/2004) The Fifth Circuit reluctantly remands for an evidentiary hearing in light of the Supreme Court's remand on prosecutorial misconduct.

Morrow v. Alabama, 2004 Ala. Crim. App. LEXIS 155 (Ala.Crim.App. 8/27/2004) Remand ordered for mental retardation evaluation. "[T]he trial court shall also (1) consider the jury's recommendation of life imprisonment without the possibility of parole as a mitigating circumstance as required by Ex parte Carroll,reweigh the aggravating and mitigating circumstances, and, if necessary, resentenceMorrow; (2) amend its sentencing order to reflect its consideration of the jury's recommendation as a mitigating circumstance and to reflect the specific reasons it gave the jury's recommendation the consideration it did in light of the Alabama Supreme Court's opinions in Ex parte Carrolland Ex parte Taylor;and (3) amend its sentencing order to identify the specific nonstatutory mitigating circumstances it found to exist."

Dilbeck v. Crosby, 2004 Fla. LEXIS 1366; 2004 WL 1899964 (FL 8/26/2004) Remand to the circuit court to enter findings of fact and conclusions of law as required by Florida Rule of Criminal Procedure 3.850(d).

CAPITAL CASES (Unfavorable Disposition)

Hackett v. Price,2004 U.S. App. LEXIS 18146; 2004 WL 1903260 (3rd Cir 8/26/2004) Relief denied as "there is no reasonable likelihood the jury in Hackett's case applied the challenged instruction and verdict form in a way that prevented the consideration of constitutionally relevant evidence. . . . Because the jury found no mitigating circumstance, it did not proceed to determine whether any mitigating circumstance outweighed the aggravating circumstances it unanimously found, as did the juries in Zettlemoyer, Frey, and Banks."

Sallahdin (f/k/a Pennington) v. Mullin, 2004 WL 1879989 (10th Cir. 8/24/2004 ) (dissent) District court's grant of relief reversed as to whether trial counsel reasonably chose not to present testimony about the impact long term steroid use had on Petitioner.

United States v. Sampson, 2004 WL 1906872 (D. Ma. 8/26/2004) District court releases an opinion including: "(1) a clarification of the procedural protections concerning jury selection afforded the defendant in a capital case under 18 U.S.C. § 3432; (2) evidentiary rulings applying the standard set forth in 18 U.S.C. § 3593(c); (3) a discussion of the court's power to strike an aggravating factor because the government failed to introduce sufficient evidence to prove the factor beyond a reasonable doubt; (4) explanations of rulings and jury instructions relating to aggravating factors; (5) explanations of rulings and jury instructions relating to mitigating factors; (6) explanations of general FDPA jury instructions; and (7) explanations of rulings relating to the provisions of Federal Rule of Criminal Procedure 12.2 that address issues relating to a capital defendant's mental condition."

Taylor v. Alabama, 2004 Ala. Crim. App. LEXIS 174, 2004 WL 1909278 (Ala.Crim.App. 8/27/2004) Relief denied holding that: (1) the privilege against self-incrimination does not apply in postconviction; (2) appellant was not denied a full and fair hearing by alleged misconduct of prosecutor; and (3) failure to request funds for experts to assist in developing a mental health defense, counsel's jury selection, counsel's concession of guilt and sentencing phase performance was not ineffective.

Daniel v. Alabama, 2004 Ala. Crim. App. LEXIS 157; 2004 WL 1909286 (Ala.Crim.App. 8/27/2004) Relief denied on claims relating to failure to find mitigating evidence & proportionality.

In re Seaton, 2004 Cal. LEXIS 7671, 2004 WL 1872864 (Cal. 8/23/2004) (dissent) In the course of creating new byzantine rules of state procedural default, relief denied holding: racial statistics did not show defendant singled out for death penalty; district attorney not required to have guidelines for seeking death penalty; and seeking death penalty based on good faith but mistaken belief that defendant has a prior conviction did not violate defendant's rights.

Pietri v. Crosby, 2004 Fla. LEXIS 1368; 2004 WL 1899973 (FL 8/26/2004) Relief denied as: (1) failure to present a voluntary intoxication defense was not IAC; (2) evidence of defendant's alleged "metabolic intoxication" at time of murder was inadmissible evidence of diminished capacity; (3) prospective juror was not required to be excused for cause based on voir dire statement about automatically voting for death penalty; (4) counsel made reasonable efforts to secure a mental health expert for mitigation purposes; (5) failure to present additional lay witnesses at penalty phase was not ineffective assistance of counsel; (6) letter written to victim's family by a private attorney who was unconnected to case was not a public record; (7) trial court did not err in adopting State's post-evidentiary hearing memorandum as part of its order denying postconviction motion; (8) counsel rendered effective assistance in handling issues concerning document that was allegedly stolen from counsel's investigator; and (9) dismissal of indictment was not warranted as a sanction for State's alleged intrusion into attorney-client relationship via a police department's obtaining of the allegedly stolen document.

Florida v. Demeniuk, 2004 WL 1906101 (Fl App 8/27/2004) Frye hearing ordered on defense assertion of SSRI-induced homicidal behavior.

Hoskins v. Maricle, 2004 Ky. LEXIS 19 (Ky 8/26/2004) (dissent) Writ of prohibition in a potential capital case denied where state trial court set aside a plea agreement on the grounds it was too lenient.

Willey v. Mississippi, 2004 Miss. LEXIS 1096; 2004 WL 1900818 (Miss. 8/26/2004) Denying relief on Atkins & setting radical new requirements from MR.

Missouri v. Strong, 2004 Mo. LEXIS 103; 2004 WL 1879000 (Mo. 8/24/2004) Relief denied as: (1) no requirement exists to require statutory aggravating circumstances in the indictment or information; (2) the prosecutor's peremptory strike of African-American juror did not violate Batson; (3) photographs and videotape that depicted the crime scene and the bodies of the victims was admissible during the guilt phase of murder trial; (4) evidence was sufficient to support finding that defendant deliberated on the murders of victims; and (5) evidence supported the jury's finding of aggravating sentencing circumstances.

Ohio v. Ahmed, 2004 Ohio LEXIS 1945; 2004 WL 1801191 (Ohio 8/25/2004) Relief denied holding: (1) the trial court was not required to sua sponte order a competency evaluation for defendant; (2) trial court error in admitting testimony from the victim's sister that defendant had repeatedly raped the victim did not constitute plain error; (3) trial court error in allowing the alternate jurors to sit in on jury deliberations during the guilt and penalty phases of capital murder trial did not constitute plain error; and (4) defense counsel's conduct in questioning some, but not all, of the prospective jurors on racial and religious prejudice, was reasonable trial strategy.

Tennessee v. Davis, 2004 WL 1888299 (Tenn. 8/24/2004) (dissent) Relief denied holding: "(1) the evidence was sufficient to support the jury's verdicts; (2) the trial court did not err in refusing to disqualify the District Attorney General; (3) the trial court did not err in refusing to allow defense counsel to withdraw; (4) the death sentences were not invalid on the ground that the aggravating circumstances were not set out in the indictment; (5) the trial court did not err in allowing the prosecution to establish the "prior violent felony" aggravating circumstance by relying on an offense committed as a juvenile; (6) the evidence was sufficient to support the jury's finding of three aggravating circumstances beyond a reasonable doubt and its determination that the aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt; and (7) the death sentences were not arbitrary or disproportionate."

Tennessee v. Berry, 2004 Tenn. LEXIS 659; 2004 WL 1873683 (Tenn. 8/23/2004) (dissent) Relief denied on claims relating to: "whether the indictment was sufficient, whether the failure of the Rules of Evidence to apply to capital sentencing hearings violated the rights to due process and confrontation, whether the evidence was sufficient to support the verdict, whether the defendant was denied his right to a speedy trial, and whether the death sentence was comparatively proportionate."

Swiift v. Campbell, 2004 Tenn. App. LEXIS 561 (Tenn App 8/25/2004) Where federal habeas litigation is ongoing a litigant may not use the state open records act to obtain copies of the attorney general's files.

HOT LIST

California v. Haley, 2004 Cal. LEXIS 7807, 2004 WL 1900376 (CA 8/26/2004) Trial court's failure to instruct jury on intent to kill was reversible error. Trial court's error in failing to instruct jury that it must find defendant specifically intended to commit general intent crimes of rape and sodomy was harmless beyond a reasonable doubt.

Defendant claims that felony-murder special-circumstances findings and resulting death sentence must be reversed because the trial court failed to instruct the jury that it must find that defendant intended to kill the victim as required by our decision in Carlos, supra, 35 Cal.3d 131. We agree.

and held that intent to kill is not an element of the felony-murder special circumstance when the defendant is the actual killer; "but when the defendant is an aider and abetter rather than the actual killer, intent must be proved before the trier of fact can find the special circumstance to be true." ( In Carlos, we held that intent to kill was a required element of the felony-murder special circumstance, whether the defendant was the actual killer or an aider [*51] and abettor. ( Carlos, supra, 35 Cal.3d at pp. 153-154.) In Anderson, supra, 43 Cal.3d 1104, we partially overruled CarlosId. at p. 1139.) Anderson was silent on whether its holding applied retroactively. ( In re Baert (1988) 205 Cal. App. 3d 514 [252 Cal. Rptr. 418].) Defendant committed the Clement murder in September 1984, during the "window period" between the decisions in Carlos and Anderson. Moreover, the trial took place in the spring of 1988, after the Anderson decision but before an appellate court had ruled on whether the decision in Anderson applied retroactively.

Against this backdrop, the issue of Anderson's retroactivity was fiercely litigated by the parties. During voir dire, defense counsel requested that the trial court pose questions to the prospective jurors on the intent to kill [*52] issue, but the court refused. After the jury was sworn, the parties submitted briefs on the Carlos issue. Defense counsel argued that if Carlos did not apply, "the real legal effect is to prevent the defendant from putting before the jury a defense that he did not have the intent to kill." The trial judge "reluctantly" applied Anderson retroactively.

However, prior to the beginning of the defense case, the trial judge revisited the Carlos issue. Stating that she had not "changed [her] mind" that Anderson applied retroactively," she nonetheless asked the prosecutor whether he still objected to a Carlos intent to kill instruction given that several judges had informed her "that other district attorneys have taken the position [that] they don't want to risk anything, and so they're willing to accede to a defense request on [the Carlos] instruction." The prosecutor replied, while "it is possible that maybe we can do it by the way of a special finding ... I'll just rely on my understanding of the law that it is retroactive, and let the appellate courts decide the issue ... ." The court warned that doing so was "a big risk," but the prosecutor did [*53] not waver. As he stated, "the only thing that is at risk is the special circumstance rather than the case, so I am prepared to go forward." The trial court therefore left intact its ruling that defendant would not be permitted to present evidence on the issue of intent to kill because it was "irrelevant."

Defense counsel immediately sought review of the trial court's Carlos ruling by filing a petition for writ of prohibition in the Court of Appeal, which was summarily denied. n9 This court denied review. Accordingly, the jury was not instructed that defendant must have intended to kill Delores Clement in order to be convicted of the felony-murder special circumstance.

This was error. While "Anderson has since been applied to appellants convicted of pre-Carlos felony murder" ( People v. Whitt (1990) 51 Cal.3d 620, 638 [274 Cal. Rptr. 252, 798 P.2d 849]), [*54] "[c]ases involving the felony-murder special circumstance committed after Carlos but before Anderson ... must apply the intent-to-kill requirement. [Citation.]" ( People v. Wharton, supra, 53 Cal.3d at p. 586, fn. 16.) As noted, this murder occurred in the Carlos/Anderson window period. Both parties concede that Carlos error occurred. They differ as to whether the failure to instruct the jury on the intent-to-kill requirement mandates reversal of the special circumstance findings and the judgment of death in this case. It does.

The determination of whether Carlos error is harmless "depends on application of the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 87 S. Ct. 824]." ( People v. Osband (1996) 13 Cal.4th 622, 681 [55 Cal. Rptr. 2d 26, 919 P.2d 640] (Osband) .) In other words, "error in failing to instruct that a special circumstance contains a requirement of the intent to kill is harmless when 'the evidence of defendant's intent to kill ... was overwhelming, and the jury could have had no reasonable doubt on that matter.' " (Ibid.)

Certainly, if the jury had considered whether [*55] defendant intended to kill Clement and returned a finding of guilt, that verdict would have been supported by substantial evidence. (See, e.g., People v. Hernandez (1988) 47 Cal.3d 315, 349 [253 Cal. Rptr. 199, 763 P.2d 1289] [strangulation "is indicative of at least a deliberate intent to kill"].) But the evidence that defendant intended to kill Clement was not overwhelming. Rather, the jury might have believed defendant's claim that he did not intend to kill the victim and that she was alive when he fled the scene of the crime.

Defendant admitted strangling Clement, but asserted that she had interrupted him while he was committing a burglary and he strangled her only to prevent her from screaming. He denied having strangled her so she would not report his crimes to the police, adding he just wanted "to get out." He told the police he used a pillow "not to suffocate her, just to wipe off her face." Defendant claimed the victim was alive when he left her, stating: "[S]he was just trying to--like, catching her breath away. ... [S]he was down and breathing." Defendant added, "I ran--I had to run back out before she--you know--I didn't want her to catch her breath and start [*56] screaming." I just took off right after that 'cause she was just--when I went in there, she was just gasping for air."

Defendant's initial statements to detectives after his arrest are consistent with his recorded statements. On cross-examination, Detective Parks agreed that, in the police vehicle, defendant stated he just went in to commit a burglary, that he had no intention to hurt anyone, and he just wanted to sneak in, take some money and sneak out again. Detective Parks added that defendant told detectives that "he was sorry."

The autopsy report is also consistent with defendant's version of events. The report listed the cause of death as asphyxia due to manual strangulation, to wit, a lack of oxygen due to pressure applied to the neck. The report supported its conclusion as to the cause of death by pointing to fractures to the victim's hyoid bone and thyroid cartilage. But the victim's thyroid cartilage was fractured in a manner that left it intact, and the medical examiner was unable to determine which of the two fractures impeded the victim's breathing. Rather, the medical examiner testified that there was "probably a partial obstruction" to the victim's breathing passageway, [*57] and acknowledged that it was "very likely" that manual pressure was removed from the neck, and the obstruction caused insufficient oxygen to reach the brain.

In People v. Marshall (1997) 15 Cal.4th 1 [61 Cal. Rptr. 2d 84, 931 P.2d 262] (Marshall), we reversed a felony-murder special-circumstance finding based upon Carlos error on similar facts, holding that the evidence presented did not show beyond a reasonable doubt that the defendant intended to kill the victim. We stated: "The pathologist ... testified (based on the report of another physician who had actually done the autopsy and on photographs taken by others at the crime scene and the autopsy) that the cause of [the victim's] death was asphyxia caused by a combination of a ligature gag and compression of the neck. On cross-examination, [the pathologist] stated that it was possible for a person to die from a ligature gag alone and that small bones in the neck that are often broken during manual strangulation were not fractured in [the victim's] neck. From this evidence the jury could reasonably have found that defendant gagged [the victim] to quiet her screams for help, without an intent to kill her, and that [the victim] choked [*58] to death on her gag." ( Marshall, 15 Cal.4th at p. 43.)

The evidence in the present case could support a finding that defendant intended to kill the victim, but it also is consistent with defendant's claim that he was merely attempting to silence the victim's screams. Accordingly, the evidence of intent to kill is not overwhelming and the trial court's error in failing to instruct the jury that it must find intent to kill in order to find true the felony-murder special circumstance was prejudicial. The cases in which we have concluded that Carlos error was harmless are far different from the present case. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 560-561 [127 Cal. Rptr. 2d 802, 58 P.3d 931] [single five-to-six-inch-deep stab wound to back of apparently sleeping and helpless victim]; Osband, supra, 13 Cal.4th at pp. 681-682 [severe beating and deep stab wound in the neck of elderly victim that severed carotid artery]; People v. Cudjo (1993) 6 Cal.4th 585, 630 [25 Cal. Rptr. 2d 390, 863 P.2d 635] [multiple blows to back and sides of head on helpless victim, fracturing the skull and lacerating the brain]; People v. Johnson (1993) 6 Cal.4th 1, 46-47 [23 Cal. Rptr. 2d 593, 859 P.2d 673] [one victim [*59] strangled to death with telephone wire and set afire; second victim beaten to death by being kicked 10-12 times in the face and head].)

OTHER NOTABLE CASES

Returning soon.

FOCUS

Returning soon.

FROM AROUND THE WEB

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

NEW RESOURCE: Law Review Features Wrongful Conviction Symposium

The Summer 2004 Drake Law Review includes articles based on a recent Symposium on Wrongful Convictions featuring some of the nation's leading experts on innocence and the death penalty. The articles provide a detailed overview of the issue of innocence and examine wrongful convictions from a number of persectives, including the role of criminal case review in correcting miscarriages of justice, the need to record police interrogations, the impact of innocence on victims' family members, and compensating those who were wrongly imprisoned. In addition, the symposium highlighted the work of the death penalty commissions in Illinois and North Carolina. Among those featured are Hugo Bedau, Michael Radelet, Thomas Sullivan, and Steven Drizin. (Drake Law Review, Summer 2004) See Innocence and Law Reviews.

California Senate Establishes Criminal Justice Study Commission

By a vote of 23-12, the California Senate passed a resolution establishing the California Commission on the Fair Administration of Justice, a panel of experts who will investigate the state's criminal justice system and present a series of recommendations to the legislature and governor based on their findings. Members of the panel will be appointed by the Senate Committee on Rules and will be charged with holding a series of meetings and public hearings to determine why innocent individuals have been wrongly convicted in the state and what safeguards should be put into place to improve the current policies. The panel will review existing data and research about California's justice system and will solicit further comment from scholars, judges, prosecutors, law enforcement, public and private defense attorneys, elected officials, victims' family members, and other experts. The Senate-imposed deadline for recommendations from the panel is December 31, 2007. The formation of the Commission comes in the wake of a series of reports and developments drawing attention to the flaws in California's criminal justice system in general, and its death penalty system in particular. A 2003 review of California's capital punishment system in the Santa Clara Law Review identified more than 80 flaws, including a lack of independent DNA review for prisoners with innocence claims, a lack of training for homicide detectives and lawyers regarding the unreliability of "jailhouse snitches," and the failure to establish state-wide qualifications, education and training for judges and lawyers handling capital cases. (See California Senate Resolution No. 44 and Press Release from California's Death Penalty Focus, August 31, 2004) See Innocence and Studies.

NEW VOICES: Time to Re-Think the Death Penalty

An op-ed in Oregon's Albany Democrat Herald called on the state to re-think its reliance on the death penalty:

20 years after voters in Oregon reinstated the death penalty, it is time to take a dispassionate look and conclude that it hasn't done much good.

In the general election of 1984, Oregon voters overwhelmingly called for the death penalty to be resumed. 2 initiatives were on the ballot that year. One, calling for capital punishment or mandatory life sentences for aggravated murder, passed by 893,818 to 296,988. A companion measure, exempting the death penalty from the provision in the state constitution against cruel and vindictive punishment, passed by 653,009 to 521,687.

One of the main arguments was that once killers were executed, we could be sure that they would never do any more harm.

The justification - prevention of additional killings - has not worked out in practice. For one thing, the death penalty does not apply to ordinary 1st-time murder convictions. For another, the judicial system has failed to live up to the intention expressed by the voters. For countless legal and procedural reasons, the system has so far failed to carry out the mandate of 1984. And the pace of murders in Oregon has been roughly the same since the 1970s - 100 or more a year.

The rate per 100,000 has declined as the population increased, perhaps because of Measure 11, which put people in prison for violent crimes well short of murder, rather than letting them off on probation.

There have been 2 executions since the death penalty went back on the books. In both cases, the condemned men refused to participate in appeals; they wanted to be executed. The system works when murderers want the state to help them end their incarceration. It does not work when the criminals refuse to consent to be put to death, which is most of the time.

29 men were on Oregon's death row as of last spring, some for as long as 16 years. One of those who had been there the longest, since 1988, had just had his conviction overturned for the third time, and his case was sent back to the trial court for another penalty phase.

Death penalty cases are more expensive and take longer than other murder cases. Typically the defendant gets 2 expert attorneys appointed for him rather than 1. And there are 2 trials in each case, one to determine guilt, the other to set the penalty.

Summing up: Executions have been all but non-existent. Even so, death penalty cases cost more. The existence of the penalty has not deterred murders. Lifelong prison terms have the same result as executions in keeping the public safe.

It's not that repeat murderers don't deserve the death penalty. They do. But the existence of the penalty in Oregon is not doing anything except to cause expense and delays. It's time to let it go.

We don't even need a constitutional change, which is unlikely anyway. All we need is prosecutors making up their mind to seek true-life sentences instead.

(Hasso Hering, Albany Democrat-Herald, August 29, 2004) (emphasis added). See Costs, Deterrence, and Life Without Parole. See also, Editorials.

Discovery of Lost Evidence Is the Latest Embarrassment for Nation's Leading Death Penalty Jurisdiction

The discovery of 280 unopened and mislabeled boxes of evidence found in the Houston Crime Lab's property room could impact as many as 8,000 cases, including many cases where defendants have sought evidence to prove their innocence. Investigators began sorting through the boxes this month, finding an array of evidence that ranged from a fetus and human body parts to clothes and a bag of Cheetos. Although the boxes were located nearly a year ago, the cataloging of their contents has just begun and could take up to a year to complete. Some of the evidence may be linked to the 379 cases in which prisoners convicted in Harris County have requested the retesting of DNA evidence to establish their innocence. If new evidence in these cases is found, prosecutors will have to go back to court and admit that some of the evidence previously determined to be lost or destroyed is available after all. District Attorney Chuck Rosenthal is now seeking a full-scale independent investigation of the lab, an action he had previously resisted. Houston Mayor Bill White noted, "It's hard to get away from the fact that sloppiness in anything of this matter is inexcusable."

Barry Scheck of the New York City-based Innocence Project added, "This is in a league by itself...(it's) unparalleled in the Houston police lab's legacy of fraud, incompetence, and confusion." The Crime Lab's toxicology division, which tested DNA, blood and hair evidence, was shut down in January 2003 for poor work habits and inaccurate findings determined by an unskilled staff. The investigation of that department has led to at least one exoneration on the basis of DNA evidence retesting. (New York Times and Houston Chronicle, August 27, 2004). The discovery of this lost evidence is the latest development in an on-going investigation of the Houston Crime Lab and Police Department in Harris County, Texas, the nation's leading jurisdiction in executions. See Innocence.

Brutalization Effect: Children Die Imitating Recent Execution in India

In the two weeks since India's first hanging in 13 years, two children have died and a third young boy was nearly killed as a result of imitating the highly publicized execution. A 14-year-old boy died after he tied one end of a rope around his neck and swung the other end on a ceiling fan in his home to re-enact the execution. The boy's father said that his son was very curious about the nation's first execution and had closely followed the days leading up to it by watching news accounts. The second child to die, a 12-year-old girl from West Bengal, accidentally killed herself when she tried to demonstrate for her younger brother how the execution was conducted. A third 10-year-old West Bengal victim nearly died as he and his friends acted out the execution, taking roles as the defendant, the hangman, a doctor, and the prison warden. (Reuters, August 25, 2004) See International Death Penalty and Deterrence.

Carrie J. over at the Lonely Aboltionist(lonelyabolitionist.blogspot.com) notes:

Wednesday, September 01, 2004

Wow. I had no idea of the prevalence of perjury. Well, I mean I knew that witnesses lied, but I guess I was just in denial about how often those lied lead to false convictions. 22% of those exonerated when perjury was revealed faces execution. WOW. So, how many people have been put to death or spent the remainder of their natural lives in a prison cell because of another person's lie? URGH.

Most Faulty Convictions Are A Direct Result Of Witness Perjury

posted by CarrieJ at 9:58 PM| 0 comments

Well, it looks like at least one state is taking the United States Supreme Court's 2002 ruling in Atkins v. Virginiaseriously. The Court ruled in Atkinsthat it was unconstitutional to execute the mentally retarded. However, the Court issued no standard for determining the parameters of mental retardation. The ruling has also caused some discussion over whether it applies to mental illness as well as mental retardation. Some states have seemed to just ignore the Atkinsruling altogether. For example, as you may recall, Texas recently executed Kelsey Patterson who was clearly seriously mentally ill. In contract, according to this article, the State of Mississippi has increased the number of mental exams being done in capital cases. This is apparently happening to assure its cases fall in line with the Court's rulings. In fact, two death row inmates in Mississippi have had their sentences commuted to life due to the results of their post- Atkinsmental examinations.

Mental exams in death penalty cases are more common

posted by CarrieJ at 9:51 AM| 0 comments

Randy Steidl

For those of you familiar with the case of Randy Steidl in Illinois, I have attached a link to a very interesting article about his case and about the underlying murders for which he was convicted. Steidl was released from an Illinois penitentiary in May after a federal judge threw out his conviction and ordered him to either be retried or released (it took almost a year before Steidl was released). Steidl served twelve years on death row before his sentence was commuted to life in prison when a court found that he received ineffective assistance of counsel during the penalty phase of his trial. He was imprisoned for over seventeen years total.

From Death Row to Freedom

posted by CarrieJ at 9:30 AM| 0 comments

At the NCADP blogthey note:

Gates of Injustice

Last week, ABC's Nightlinecarried a fascinating story. Nightline linked the recent prisoner abuse scandal in Abu Ghraib with prisoner abuse in the United States. The program drew heavily upon Alan Elsner's new book Gates of Injustice: The Crisis in America's Prisons. It also discussed a prisoner abuse scandal at a Texas facility that was housing in part, inmates from Missouri, which had the time had a contract with Texas to incarcerate its prisoners. (This "prisoner outsourcing" is all the rage now. Here in Washington, D.C., we don't even have a prison anymore, so all of D.C.'s prisoners are outsourced, to about a dozen different states.)

Here's a little of what Nightlinehad to about the Texas scandal:

The story broke in August 1997 when a videotape was broadcast on the local Fox affiliate in Austin, Texas. The tape — shot on Sept. 18, 1996 — showed deputies in a Brazoria County private prison assaulting prisoners, wielding stun guns against them and allowing a German shepherd to bite a few of them. Some inmates were poked with electronic prods and ordered to say, "I love Texas."

And then, Nightlinemakes the connection between prisoner abuse in the U.S. and Abu Ghraib:

Elsner says there are similarities between the Texas and Abu Ghraib cases. "Some of the parallels that I noticed immediately, [include] the use of nudity as a means to humiliate and, and to abuse the prisoners. That goes on in the United States in almost a routine manner in some places. The use of guard dogs to intimidate; that also happens in the United States. But I think the most important parallel was a sense that the guys in Abu Ghraib viewed the prisoners as almost of a different species."

To read part of Nightline'stranscript, go here.

#posted by David Elliot @ 11:31 AM 0 comments

Tuesday, August 31, 2004

Steve Earle has a blog!

Just found out that Steve Earle, noted musician and abolitionist, has a blog! Check it out here.

#posted by David Elliot @ 4:48 PM 0 comments

California is golden

Good news from California! The California Senate has approved the creation of "the California Commission on the Fair Administration of Justice."

That's kind of a mouthful, huh? In short, it is a study commission. The commission will study, among other things, wrongful convictions. The commission is to conclude its business and make its report by Dec. 31, 2007 -- a year that I predict we will see a bunch of abolition and moratorium bills advancing.

Lance Lindsey is the executive director of Death Penalty Focus, NCADP's California affiliate (and also the largest membership-based organization specifically devoted to abolish the death penalty in the world). Here's what he had to say about the study commission:

"We applaud the Senate’s vision in taking this important step,” Lindsey says. "But the only way to be 100% sure that California doesn't wrongfully execute someone is to declare a ‘time out’ on executions until we know for sure whether our criminal justice is working or not."

Meanwhile, more than 630 people await execution on California’s death row.

#posted by David Elliot @ 3:02 PM 0 comments

Monday, August 30, 2004

From Iowa to Iraq

In the early 1990s, Pat Minor-Nidey co-founded the eastern state chapter of Iowans Against the Death Penalty. Now Pat is continuing in her quest for social justice by planning a trip to Iraq. Here's the beginning of an article that ran in her local newspaper:

Pat Minor-Nidey is taking her passion for peace and social justice from the streets of West Branch all the way to Iraq.

The West Branch resident says traveling to Iraq will give her the opportunity to learn more about the Iraqi people and be able to bring that information back to the area.

"I hope to get a better view of what's going on in Iraq," Minor-Nidey said. "When I come back, I'll be able to share with people what I learned."

Minor-Nidey's trip to Iraq is being arranged through an international organization known as Christian Peacemaker Teams. She is one of five people going from the United States. Her delegation will be in Iraq from Oct. 2-16. She will be stationed in Baghdad.

To read the whole story, go here.

#posted by David Elliot @ 12:18 PM 0 comments

Friday, August 27, 2004

James Allridge III

As coincidence would have it, three of the six friends of James' who witnessed his execution last night are current or former NCADPboard members. Here is a letter from Dave Atwood, who used to be on NCADP's board and is now chair of our Texas affiliate.

Dear friends of James,

There were six witnesses for James at his execution yestereday: Stanley Allridge, Darren Allridge, Christa Dold, Sr. Helen Prejean, Bill Pelke and myself. James remained faithful and focused right up to the last moment - you have read his last words in the newspaper articles.

Ten pieces of James' art were held by his supporters outside the prison walls as he was being executed. What a wonderful witness. This is what James wanted.

Although this was an extremely painful experience for all of us, we know that James' life was not in vain. He is a shining example of human transformation. We are all indebted to him for this. We can all honor his life by telling his story and showing his art whenever we have an opportunity.

I can't put into words my admiration for the Allridge Family: Mr. and Mrs. Allridge, Stanley, Darren and Gary. They have gone through so much with the loss of Ronald and now James. Keep them in your thoughts and prayers. There will be a wake in Ft. Worth tonight (Friday) and a funeral service on Saturday morning. I am waiting for details from Stanley Allridge.

Bill Pelke with the "Journey of Hope...From Violence to Healing" came to Texas in early August to tell his personal story of forgiveness and have people sign petitions for James. Bill spoke to at least 15 different groups throughout the state. James' story of transformation was heard by hundreds of people throughout the state.

Jim Marcus and the legal team at Texas Defender Service did a marvelous job in preparing the appeals to the Texas Board of Pardons and Paroles and U.S. Supreme Court. They could not have done more. They deserve our respect and support.

Our appreciation to Sr. Helen Prejean, Susan Sarandon, Christa Dold, Margery Layton, Abby Harmon, Chauncy Ashburn, Ruth Westfall, Ralph McCloud, the Sisters of St. Mary, Melissa Barker, Joe Gindratt, the Cliftons, Priscilla Atwood and the hundreds of supporters of James over the years.

Keep the Clendennen and Allridge families in your thoughts and prayers.

In love and appreciation for the work of so many people,

Dave Atwood

#posted by David Elliot @ 2:12 PM 0 comments

Stand Down Texas blog(http://standdowntexas.blogspot.com/) notes:

Friday, August 27, 2004

The Houston Crime Lab Mess

For the last year and a half, the Houston Police Department's crime lab has been in the midst of a total implosion. Serious problems were discovered in how DNA was stored and analyzed. Other areas of the lab are now being scrutinized.

Already one person, Josiah Sutton, has been exonerated, released, and pardoned after spending four years in the Texas prisons for a crime he did not commit. Throughout this time the Harris County District Attorney's office has blocked calls for an independent investigation. That may be about to change.

Lost evidence involving thousands of cases has now been discovered in mislabeled storage boxes, and this discovery may be the straw that broke the camel's back. Today's New York Times and Houston Chronicle both had stories. You can view them at:

http://www.nytimes.com/2004/08/27/national/27lab.html

http://www.chron.com/CDA/umstory.mpl/metropolitan/2762448

The Houston Chronicle deserves commendations for aggressively reporting this story. You can view the archive of news articles, columns and editorials at: http://www.chron.com/content/chronicle/special/03/crimelab/index.html

Perhaps the most important point to remember is that this scandal is not unique. Other crime labs across the nation have had similar problems, and at least one of the Texas Department of Public Safety's regional crime labs has also been under investigation.