This edition, which covers July 21 to August 3, 2003, examines two cases of special note. The first is the Fifth Circuit's decision inBigby v. Cockrell. In a highly unusual move, the Fifth Circuit has granted relief to a Texas death row inmate. The Bigby Court grants relief on a Penry II claim dealing with mitigation in relation to the Texas special questions & in so doing lays out a solid example of what counsel must do in order to get relief under this type of claim in that Court.

The other decision is an equal surprise. In an unusual move the Sixth Circuit in Cooey II v. Bradshaw has granted petitioner's request for initial hearing en banc during a stay proceeding. At issue appears to be a claim that habeas counsel incompetence impacted on the integrity of the initial habeas proceedings. This unusual move and unusual issue will undoubtedly lead to further analysis here once the final decision of the court sitting en banc is handed down.

Finally, three other positive outcomes are noted. In Pickens v. Oklahoma, the Oklahoma Court of Criminal Appeals has ordered a remand in light of Atkins v. Virginia for a mental retardation hearing. In Pennsylvania v. Williams the state supreme court has ordered a remand in light the court below's apparent mishandling of petitioner's claimed attempts to fire counsel & amend his PCRA petition. Finally, in Idaho v. Lovelace a remand was ordered for a new sentencing in light of Ring v. Arizona.

Of additional note is that Darnell Williams in Indiana has won a stay to permit DNA testing. Joseph Amrine, who has spent the past 17 years on Missouri's death row, has had all charges dropped and walked out of jail. In Pennsylvania counsel for Nicholas James Yarris announced in a press conference that three separate DNA tests exclude Yarris from the rape and murder for which he was convicted and sent to death row.

The Focus section will not run this week.

As always, thanks for reading. - k

EXECUTION INFORMATION

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

A stay has been had in Ohio for Richard Cooey as the Sixth Circuit, en banc, apparently believed it did not have sufficient time to adjudicate several claims. Darnell Williams in Indiana have won a stay to permit DNA testing. Jose Rivera has received a stay of his August 6th execution date, as well, relating to his mental retardation claims. Congrats to all counsel.

The following execution dates are believed to be serious:

HOT LIST

Bigby v. Cockrell, 2003 U.S. App. LEXIS 15007 (5th Cir 7/28/2003) Relief granted on Penry II claim.

"For evidence to have mitigating relevance to the special issues, there must be a nexus between the mitigating evidence and the criminal act." Davis v. Scott, 51 F.3d at 460. In Davis, we determined that Davis's evidence of paranoid schizophrenia did not rise to the level of constitutionally relevant mitigating evidence. Specifically, we found that if Davis in fact suffered from paranoid schizophrenia, he failed to submit any evidence linking his mental condition to the commission of the murders. The holding in Davis, however, can be distinguished from the instant case.

Applying the requirements set out in Davis, it is clear that the evidence submitted by Bigby constitutes constitutionally relevant mitigating evidence. Paranoid Schizophrenia is a severe mental illness that is permanent and is not caused by any fault of the individuals suffering from the disease. Thus, as an individual suffering from this mental condition, Bigby has satisfied the first prong of the test. In regard to the second requirement, unlike in Davis, Bigby's paranoid schizophrenia caused an insane delusion that there was a conspiracy for which at least one of his victims was [*33] a part of and, as a direct result of this delusion, Bigby committed the crimes for which he was convicted. Thus, Bigby has established a sufficient nexus between his mental illness and the murders.

We now turn to Bigby's contention concerning the constitutionality of the jury instructions given by the district court judge at the sentencing phase. Bigby argues that the jury instructions impermissibly restricted the jury's consideration of mitigating circumstances in violation of the Supreme Court's decision in Penry I. In Penry I, the Court held that Penry's Eighth Amendment rights were violated because the jury was inadequately charged with respect to mitigating evidence at Penry's sentencing hearing. At the conclusion of the hearing, the jury was instructed to answer three "special issues": (1) whether the conduct that caused the death of the victim was committed deliberately and with a reasonable expectation that death would result; (2) whether there was a probability that the defendant would commit acts that would constitute a continuing threat to society; and (3) whether the conduct was an unreasonable response to any provocation by the victim. The [*34] Supreme Court held that none of these special issues were broad enough to allow the jury to consider and give effect to the mitigating evidence offered by Penry that he was mentally retarded and had been severely abused as a child.

On remand, Penry was again found guilty, and the state court instructed the jury to answer the same three special issues given at his first trial. The jury was also admonished that a "yes" answer to any of the special issues was warranted only if supported by the evidence "beyond a reasonable doubt," while a "no" answer is appropriate only if there is a reasonable doubt that the answer to the special issues should be "yes." In addition, the court also provided a "supplemental instruction" indicating that when the jury deliberated on the special issues, it was to consider mitigating issues, if any, presented by the evidence. The instruction provided in relevant part that "[the jury] must decide how much weight [the mitigating evidence] deserves, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time [the jury] answers the special issues," if the jury were to determine, "when giving [*35] effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." The verdict form contained only the text of the three special issues, however, and gave the jury the choice of only answering "yes" or "no." The jury again answered all of the special issues "yes" and Penry was sentenced to the death penalty.

In Penry II, the Supreme Court ruled that this supplemental instruction provided "an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence." 532 U.S. 782, 150 L. Ed. 2d 9, 121 S. Ct. 1910, 1922 (2001). Specifically, the Court again stated that the special issues were not broad enough to give effect to Penry's mitigating evidence, and thus, held that the supplemental instruction was of no practical effect because the jury's ability to give weight to Penry's mitigating evidence was "still shackled and confined within the scope of the three special issues." Id. at 1921 (internal quotation marks and citation [*36] omitted). The Supreme Court also noted that instructing the jury to answer the special issues "yes" only if supported by the evidence "beyond a reasonable doubt," while at the same time instructing the jury to answer one or more of the special issues "no" in order to give effect to any mitigating evidence presented by Penry did not comport with reason and logic. It stated that in effect, the instruction allowed the jurors to change one or more "truthful 'yes' answers to an untruthful 'no' answer in order to avoid the death sentence for Penry." Id. at 1922. Thus, if the jury desired to answer one or more of the special issues untruthfully to give credence to the mitigating evidence presented by Penry, they would have had to violate their oath to render a "true verdict." Penry II, 532 U.S. at 800 (citation omitted).

The special issues and supplemental instruction given at the conclusion of Bigby's sentencing hearing are almost identical to those discussed in Penry II. n6 Because we discern no meaningful distinction between the charges given in Penry II and those given in the instant case, we find that Bigby has demonstrated that the contested [*37] jury instructions stripped the jury of a vehicle for expressing its "reasoned moral response" n7 to the appropriateness of the death penalty. As in Penry II, the verdict form in Bigby listed the three special issues but with no mention of mitigating circumstances. In short, the same constitutional infirmities criticized by the Supreme Court in Penry II are present in Bigby. Accordingly, since the decision of the Texas Court of Criminal Appeals is contrary to clearly established federal law, we reverse the district court's denial of Bigby's application for COA with regard to his jury instruction claim, vacate his sentence, and remand this case to the district court for entry of an order granting Bigby habeas relief on his Penry claim and setting aside his sentence.

Cooey II v. Bradshaw, 2003 U.S. App. LEXIS 15369 (6th Cir 7/31/2003) In an unusual move the Sixth Circuit en banc grants an application an initial en banc review, which effectively blocked a panel's attempt to lift a stay of execution.

Approximately thirteen hours before Petitioner’s execution, the district court issued a stay. Respondent appealed. On July 24, 2003, we granted Petitioner’s motion to hear Respondent’s appeal initially as an en banc Court. Judge Boggs published a brief dissent from this Court’s decision. I wish to emphasize two points about Judge Boggs’ dissent.

First, Judge Boggs purports to accept the reasoning in an unpublished (and unissued) panel decision authored by Judge Suhrheinrich. Judge Boggs appends Judge Suhrheinrich’s decision to his dissent. After losing below, Respondent appealed to a three judge panel of this Court consisting of Judges Suhrheinrich, Siler, and Gilman. Although Judge Suhrheinrich, joined by Judge Siler, circulated a proposed draft opinion at 3:06 p.m. on July 24, 2003, this Court accepted Petitioner’s request for initial en banc review at 4:00 p.m. that same day. The granting of initial en banc review eliminated the panel’s jurisdiction over this matter. The three judge panel had not filed Judge Suhrheinrich’s proposed draft opinion when the en banc Court assumed jurisdiction. Had the panel already filed an opinion, the decision to hear the case en banc would have automatically vacated the panel’s opinion. Judge Surheinrich did not attempt to file the panel’s opinion until 9:17 a.m. on July 25, 2003, well after he lost jurisdiction over the case and the concomitant right to file opinions.

I have no quarrel with Judge Boggs’ decision to support Judge Suhrheinrich’s views and I recognize that Judge Boggs may endorse whatever reasoning he chooses. I also believe, however, that by neglecting to mention that this Court, acting en banc, deprived the panel of jurisdiction, Judge Boggs creates a misleading impression about the precedential value of an opinion Judge Suhrheinrich filed without jurisdiction. Decisions issued ultra vires have no legal meaning. Although not evident from Judge Boggs’s dissent, Judge Boggs has choosen to endorse an opinion that the panel had no authority to issue.

Second, as Judge Boggs notes, our decision to deprive the panel of jurisdiction by agreeing to hear the matter initially as an en banc Court had the effect of not placing Judges Suhrheinrich and Siler on the en banc court that will ultimately decide Cooey v. Bradshaw. Despite the dissent’s unhappiness with this development, absolutely nothing procedurally irregular occurred. Although I cannot speak for my colleagues, I felt compelled to support initial en banc because of the urgency this case involved. Respondent scheduled Petitioner’s execution for 10:00 a.m. on July 24, 2003, but the death warrant remained in effect that entire day. Had the panel issued a decision vacating the district court’s stay in the afternoon of July 24, 2003, Petitioner would have become immediately eligible for execution, meaning the en banc Court may not have had the opportunity to review this case.

Judges Suhrheinrich and Siler have taken senior status. Pursuant to 28 U.S.C. § 46(c), which governs the composition of en banc courts, a court of appeals sitting en banc "shall consist of all circuit judges in regular active service . . . except that any senior circuit judge of the circuit shall be eligible to participate . . . as a member of an in banc court reviewing a decision of a panel of which such judge was a member." See also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C. § 46(c)). Thus, because the three judge panel never reached a decision prior to the en banc Court granting initial en banc review, Judges Siler and Surhrienrich are statutorily ineligible to participate in the en banc review of the district court’s order staying Petitioner’s execution. This is not to suggest that Judges Siler and Suhrheinrich, who sat as panelists in an earlier appeal involving Petitioner, would not have much to contribute as members of the en banc Court. See Cooey v. Coyle, 289 F.3d (6th Cir. 2002). If, however, Judge Boggs dislikes the requirements of 28 U.S.C. § 46, he should address his complaint to Congress.

SUPREME COURT

The Court is in recess until September.

CAPITAL CASES (Favorable Disposition)

Pickens v. Oklahoma, 2003 Okla. Crim. App. LEXIS 16;2003 OK CR 16 (Ok Crim App 7/23/2003) Remand in light of Atkins v. Virginia.

Pennsylvania v. Williams, 2003 Pa. LEXIS 1242 (PA 7/21/2003) (remand dissent) The post-conviction trial court improperly handled petitioner's claimed attempts to fire counsel & amend his PCRA petition.

Idaho v. Lovelace, 2003 Ida. LEXIS 122 (ID 7/23/2003) Remand for a new sentencing in light of Ring v. Arizona.

CAPITAL CASES (Unfavorable Disposition)

Morales v. Woodford, 2003 U.S. App. LEXIS 14925 (9th Cir 7/28/2003) Relief denied on claims relating to: "(1) improper jury instruction on the torture special circumstance; (2) unconstitutionality of the lying in wait special circumstance; (3) knowing use of false testimony of Raquel Cardenas; (4) use of a jailhouse informant (Samuelson) to evade Morales's right to counsel; (5) Confrontation Clause violation for Rick Ortega's remarks to Christine Salaices some months before the murder."

Page v. Lee, 2003 U.S. App. LEXIS 14935 (4th Cir 7/28/2003) Relief denied on claims arising from a putative Ake and Simmons violation.

Jones v. Cockrell, 2003 U.S. App. LEXIS 15038 (5th Cir 7/28/2003) (unpublished) Relief denied on claims trial counsel was ineffective for opening the door to collateral offenses; prosecution's use of another prisoner's escape to show future dangerousness; constitutionality of juvenile executions; and trial counsel's failure to adequately investigate mental health evidence.

Turner v. Crosby, 2003 U.S. App. LEXIS 15043 (11th Cir 7/29/2003) Relief denied on claims relating to "ineffective assistance of counsel by failing to introduce certain mitigating evidence during the penalty phase of his trial and that his death sentence violates his constitutional right to a jury trial as established in Ring v. Arizona."

Perkins v. Lee, 2003 U.S. App. LEXIS 14840 (4th Cir 7/25/2003) (unpublished) Relief denied relating to claims trial counsel failed to adequately investigate and present mental health mitigation evidence; that one or more of the jurors formed an opinion prematurely as to his guilt and as to the appropriateness of a death sentence; and whether the trial court violated his Sixth and Fourteenth Amendment rights to an impartial jury by dismissing a prospective juror based upon the inability to respond to a question about whether he could impose the death penalty.

Bryan v. Mullin, 2003 U.S. App. LEXIS 14576 (10th Cir 7/21/2003) (dissent) (en banc) Relief denied on claims that trial counsel rendered ineffective assistance of counsel in relation to mental health claims at both the guilt and penalty phases.

California v Marks, 2003 Cal. LEXIS 5094 (CA 7/24/2003) Relief denied on claims including competency to stand trial, security arrangements in the court room, and sufficiency of evidence on the special circumstances.

Ohio v. Cooey, 2003 Ohio LEXIS 1978;2003 Ohio 3914 (Ohio 7/23/2003) Relief and stay denied on claims of whether appellate counsel had rendered ineffective assistance before the state court of appeals by failing to raise certain issues. Note the federal court of appeals has granted a stay on a different issue.

Howard v. Mississippi, 2003 Miss. LEXIS 343 (Miss 7/24/2003) (dissent) Relief denied on sufficiency; reading of prior testimony into the record; references to the defendant's prior imprisonment; denial of jury instructions as to reasonable doubt; whether polled juror who wanted life initially should have resulted in a life verdict; whether a proper mental health evaluation was performed; admission of odontological testimony; and pro se claims of trial counsel's performance. Dissent based on whether or not the odontological evidence at issue was "junk science."

FOCUS

To return next week.

OTHER RESOURCES

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

Illinois Prohibits Doctors and Nurses from Participation in Executions

Legislation to bar doctors and nurses from participating in executions was recently signed into law by Illinois Governor Rod Blagojevich on July 24, 2003. The bill states, "The Department of Corrections shall not request, require, or allow a health care practitioner licensed in Illinois, including but not limited to physicians and nurses, regardless of employment, to participate in an execution." (SB 0277) The bill is in-step with guidelines established under the Hippocratic Oath, which calls on doctors to do everything within their power to relieve suffering and to prevent death. See Recent Legislative Developments.

NEW VOICES: Time Magazine Spotlights Texas District Attorney

A recent article in Time looks at the career of Travis County District Attorney Ronnie Earle. The article traces Earle's evolving opinion on the death penalty since he was first elected D.A. in Texas in 1976, the year the U.S. Supreme Court reinstated the death penalty. Among other concerns, questions of innocence have caused Earle to grow increasingly skeptical about the death penalty. The article notes:

But like the rest of us, Earle has now watched broken souls walk free after years of wrongful incarceration; 56 have been released from death row in the past decade, either because they were deemed innocent or because of procedural mistakes, according to the Death Penalty Information Center. Unlike the rest of us, Earle still has to enforce the death penalty. He is often plagued by doubts when he must decide whether to seek death. "I agonize over it," he says. "There was a time when I thought the death penalty ought to have wider application, but my views have evolved." Today deciding whether to seek the death penalty is easily the hardest part of his job. (Time, July 14, 2003). See Innocence and New Voices.

Judge Imposes Life Sentence for Victims' Sake

Baltimore County Judge Dana M. Levitz recently sentenced a man convicted of murder to two life terms without parole, in part because of its possible effects on the victims' families. Levitz said, "The devastating effect that this unending litigation has on the innocent families of the victims is incalculable. By imposing a death sentence, I ensure that the victim's families will be subjected to many more years of appeals." Family members also noted that the decision gave them the peace of mind they have been searching for. A sister of the victim noted, "I'm pleased with the sentence because I think I might get some closure from this. I didn't want him out on the street anymore, but killing him wasn't the answer either." (Baltimore Sun, July 26, 2003). See Victims and Life Without Parole.

NYC Mayor Restates Concerns About Innocence, Opposition to the Death Penalty

New York City Mayor Michael Bloomberg, a Republican, reiterated his opposition to capital punishment. Bloomberg noted, "The death penalty I've always had a problem with, because too many times in the past you've seen innocent people incarcerated and, tragically, every once in a while they've been executed. And until you can show me that the process never would ever convict somebody that later on we find out was innocent of a crime, murder is murder no matter who does it, and I think we as a society can afford to incarcerate people." (New York Times, July 31, 2003). See Innocence and New Voices.

NEW RESOURCE: Amnesty International Report Examines Execution of Juvenile Offenders

A new report by Amnesty International, "The Exclusion of Child Offenders from the Death Penalty Under General International Law," examines the evidence supporting the conclusion that the use of the death penalty against juvenile offenders is prohibited under customary international law. The practice is already prohibited by the Inter-American Commission on Human Rights and the U.N. Convention on the Rights of the Child. William F. Schulz, Executive Director of Amnesty International USA, notes that the U.S. claims to be "the global leader in child protection" while simultaneously holding the record for the highest number of juvenile offender executions in the world. (Amnesty International Press Release, July 18, 2003). Read the Report. See also Juveniles.

NEW RESOURCE: The Angolite features Victims, Filmmakers

In addition to articles about juvenile justice and murder victims' family members, the latest edition of The Angolite - a prison news magazine published by Angola Prison in Louisiana - features a section on filmmaking within prison walls. Angola Prison has hosted dozens of film crews over the years, and has been the shooting site for award-winning films such as "Dead Man Walking," "Monster's Ball," and "The Farm." (The Angolite, November/December 2002) See Resources.

NEW VOICES: Bali Bombing Victim McCartney Calls for Life Sentence

Jason McCartney, a survivor of the 2002 terrorist bombing of a Bali nightclub and a former Australian football player, said a lifetime sentence in an Indonesian jail would be a harsh enough punishment for the men who plotted the attack. "At first, I probably thought with my initial anger that (the death penalty) is the way to go," said McCartney. "It's varied a bit. Sometimes I wonder if that's an easy way out for them, the death penalty...It's a hard one." McCartney, who sustained serious injuries in the attack, now serves as an advocate for Bali survivors and victims. (Herald Sun, July 23, 2003). See Victims.

EXONERATIONS IN MISSOURI, PENNSYLVANIA

Attorneys in Missouri and Pennsylvania will reveal two separate exonerations from their death rows. In Pennsylvania, attorneys for Nicholas James Yarris will announce in a press conference today (July 28, 2003) that three separate DNA tests exclude Yarris from the rape and murder for which he was convicted. Yarris, 41, has spent 21 years on Pennsylvania's death row, and has always maintained his innocence.

Joseph Amrine, who has spent the past 17 years on Missouri's death row, had all charges dropped and will walk away a free man today. Witness testimony against Amrine was particulalry suspect, coming from jailhouse informants and prison guards not directly involved in the incident for which Amrine was tried. While Joseph Amrine is now free, Yarris will have to wait for the prosecutor's office to officially drop charges. The state does not dispute the DNA results.

Click Here to read the Yarris Press Release. Click Here for a summary of the Joseph Amrine case. See Also Innocence.

Georgia to Create Office of the Capital Defender

The Georgia General Assembly has passed legislation (HB 777) to create a state-wide public defender system, including an Office of the Georgia Capital Defender to focus solely on death penalty cases. The new office will assume responsibility for the defense of all death penalty trial and direct appeal cases in Georgia. Additional attorneys and investigators will be added to the public defender system to assume responsibility for the additional cases. (O.C.G.A. 17-12-127. Michael Mears, Director, Multi-County Public Defender Office, July 23, 2003). See Recent Legislative Developments.

NEW VOICES: Prosecutor, Juror Call for DNA Testing in Case of Man They Sent to Death Row

Doubts about the appropriateness of a death sentence have prompted former prosecutor Thomas Vanes to call for new DNA testing in the case of Darnell Williams, a man he sent to death row as a Lake County, Indiana state's attorney. Williams is scheduled to be executed on Friday, August 1. Vanes and John Gnajek, a member of the jury that sent Williams to death row, have filed a suit in federal court asking for a stay of Williams' execution until new DNA testing is completed on blood evidence that played a crucial role in the case. Jurors in the case have stated that if it had not been for the blood found on Williams' clothing, which suggested that he was present during the shootings, they would not have sent him to death row. Testing would determine whether the blood was from the victims or another source. "People were trying to determine whether he was the actual shooter," said Gnajek. "The blood on his shorts seemed to indicate that. Without it, I couldn't have voted for the death penalty." Williams could use the new DNA evidence to seek executive clemency from Governor Frank O'Bannon. The state attorney general has stated that he does not oppose the new tests if the governor requests them for the clemency review. (New York Times, July 24, 2003) See New Voices and Innocence.

U.S. Will Not Seek Death Penalty Against Two British Nationals

Pentagon general counsel William J. Haynes II has assured British Prime Minister Tony Blair that the U.S. will not seek the death penalty against two British citizens facing trial on terrorism charges before military tribunals. The two men, Feroz Abbasi and Moazzam Begg, are among the 680 prisoners from 42 countries being held at Guantanamo Bay, Cuba, in connection with the campaign against terrorism. Prior to Blair's recent visit to Washington, during which he raised the issue with President Bush, the Prime Minister had pushed for the U.S. to extradite the two men to Britain. If that option were not available, he requested assurance of fair trials free of the prospect of a death sentence, which Britain bans. The agreement has raised questions of fairness among those international leaders representing other citizens who are expected to face military tribunals in the future. "We believe that whatever is being done has to be done on a non-discriminatory basis. That's the rule of law. There should be a uniform set of procedures followed," said Asad Hayauddin, a press attache at the Pakistani Embassy in Washington. (Washington Post, July 23, 2003) See International Death Penalty.

ADDITIONAL RESOURCES

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