Three grants of relief are noted this week.

The first case has received much attention from thearm chair pundits,Jason Getsy v. Mitchell. Getsy involves a contract killing where only the "least culpable" participant at trial received a death sentence while the arguably more culpable members of the conspiracy received a life with a jury finding the putative contractor of the hit of not being involved in the conspiracy. A split panel holds that the result here "violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences," violates the "rule of consistency," as well as is, for lack of a better term, disproportionate.

InState v. Roberts, the Ohio Supreme Court remands for a new sentencing when the trial court received the "assistance" of the trial prosecutor in preparing its sentencing opinion. "[C]onfidence in the trial court’s sentencing opinion is undermined by the fact that the trial judge directly involved the prosecutor in preparing the sentencing opinion and did so on an ex parte basis." "The trial court’s decision to use the prosecutor in preparing the sentencing opinion constitutes a grievous violation of the statutory deliberative process. It is so severe a violation that independent reweighing cannot serve as an adequate remedy."

The Texas Attorney General inMichael Gonzales v. Quartermanconceded error. The reason for the concession of error is that the State's expert had, at least in some cases, found future dangerousness on the basis of race. "The U.S. Supreme Court found that psychologist Walter Qijano was racially biased in his testimony in the case of Victor Saldano. Qijano had also testified as an expert witness in Gonzales’ case.

The ABA House of Delegates unanimously passed aresolutionon executing the mentally ill urging states that impose the death penalty to withhold this sentence in such cases. The resolution is almost identical in wording to policies accepted by the American Psychological Association and the American Psychiatric Association, and it encompasses cases where the individual suffered traumatic brain injury after the age of 18, as well as those suffering from dementia. "Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law." The resolution is the result of the hard work of Ronald J. Tabak (Skadden, Arps, Slate, Meagher & Flom), as well as Tanya Terrell-Collier (ABA), Elisia Frazier (International Paper), Richard M. Macias (Richard Macias & Associates) and countless others.

In the news of the week, R. Daniel Hannon, president of the Ohio Association of Criminal Defense Lawyers,rips in to Chief Judge Danny Boggs'assertion in Poindexter v. Bell that "the best way for criminal defendants to avoid the death penalty is to have their attorneys perform incompetently by failing to investigate their background for the sentencing phase of the case." The latest Congressional attempt to modify the federal death penalty and/or federal habeas corpus is entitled the Police Officer Daniel Faulkner Act of 2006,'full text here, and would severely limit the ability to obtain federal habeas corpus relief for those who kill a " public safety officer or judge." North Carolina Gov. Mike Easleyrecently signed into lawa bill that establishes an innocence commission to review factual (as opposed to legal) claims of innocence..

New Scholarship is noted.The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolinaby Michael J. Songer, Esq. & Isaac Unah (UNC-CH Dept of Political Science), South Carolina Law Review, Vol. 58, November 2006, focuses on the potential impact of non-legal cues such as race, gender, and location of the crime in shaping prosecutorial choices to seek death in South Carolina. Jeffrey Fagan has writtenCapital Punishment: Deterrent Effects and Capital Costs, appearing in the Columbia Law School Report, Summer 2006, which questions research that supports the view of the deterrent effect of capital punishment. Wayne Myers offersNote, Roper v. Simmons: The Collision of National Consensus and Proportionality Review, 96 The Journal of Criminal Law and Criminology 947 (2006), which argues that the Court should not extend Roper (link to first page of article only).

FInally, I misstated that Thomas O'Bryant's recent law review article as first inmate author in a major American law review. He is the first in the Harvard Civil Rights-Civil Liberties Law Review. Joseph M. Giarratano, who was then on Virginia's death row, wrote "'To the Best of Our Knowledge, We Have Never Been Wrong': Fallibility vs. Finality in Capital Punishment," that was published in January 1991 at 100 Yale L.J. 1005.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060806.htm.

Recent Executions

August

3 William Wyatt Jr. (Texas)

8 Darrell Ferguson (Ohio--vol)

Scheduled Executions

August

11 David Dawson (Montana--vol)

17 Richard Hinojosa (Texas)

18 Samuel Flippen (North Carolina)

22 James Malicoat (Oklahoma)

24 Justin Chaz Fuller (Texas)

28 Elijah Page (South Dakota--vol)

29 Eric Patton (Oklahoma)

31 Derrick Frazier (Texas)

More Execution information

In Favor of Life or Liberty

Jason Getsy v. Mitchell, 2006 U.S. App. LEXIS 19472 (6th Cir 8/2/2006) Relief granted as to death sentence where only the least morally culpable in a four person conspiracy received death on the basis of consistency, comparative proportionality and Furman. The relief is also accompanied by a remand on a ground that the trial judge engaged in inappropriate contacts.

State v. Roberts, 2006 Ohio 3665 (Ohio 8/2/2006) The state supreme court remands for a new sentencing when the trial court received the "assistance" of the trial prosecutor in preparing its sentencing opinion.

Michael Gonzales v. Quarterman, 2006 U.S. App. LEXIS 19279 (5th Cir 7/31/2006) Affirming a concession of error. The reason for the concession of error is that the State's expert had, at least in some cases, found future dangerousness on the basis of race. Remaining claims denied.

Favoring Death

John Amador v. Quarterman, 2006 U.S. App. LEXIS 19301 (5th Cir 8/1/2006) Relief denied on claims relating to: (A) "appellate counsel did not assign as error the trial court’s ruling admitting into evidence Amador’s statement identifying the caliber of the weapons used in the shooting" and (B) "his attorney failed properly to allege that the state trial court erred in admitting Garza’s in-court identification testimony that was the result of unnecessary and suggestive identification procedures in violation of his due process rights."

Larry Swearingen v. Quarterman, 2006 U.S. App. LEXIS 19215 (5th Cir 7/31/2006) Relief denied on the sufficiency of the evidence.

Guy Alexander v. Quarterman, 2006 U.S. App. LEXIS 20012 (5th Cir 8/4/2006) (unpublished) Relief denied on claims relating to ineffective assistance of counsel (failure to investigate and present mitigation evidence), despite the state court's reliance on the wrong legal standard.

Jimmy Bland v. Sirmons,2006 U.S. App. LEXIS 19819 (10th Cir 8/3/2006) Relief denied on claims relating to: "grounds: (1) jury instructions and prosecutorial argument regarding the lesser included offense of first-degree manslaughter; (2) prosecutorial argument diminishing the jury’s sense of responsibility for a death verdict; (3) Mr. Bland’s absence from a portion of voir dire; (4) prosecutorial comments on Mr. Bland’s post-arrest silence; (5) prosecutorial misconduct;" (6) "ineffective assistance of counsel;" (7) "whether the state court deprived Mr. Bland of “a fair trial by refusing to submit an instruction on the offense of ‘manslaughter by resisting criminal [attempt]’”; and (8) "whether the district court should have granted an evidentiary hearing on whether Mr. Bland was denied the effective assistance of counsel."

Luther Williams v. Allen, 2006 U.S. App. LEXIS 19424 (11th Cir 8/2/2006) Relief denied on: (1)" Whether Williams received ineffective assistance of counsel because counsel allegedly failed to review the Taylor Hardin file before trial;" (2) "Whether Williams received ineffective assistance of counsel at the penalty phase because his counsel allegedly failed to investigate adequately Williams’s background for potential mitigation evidence;" and (3) "Whether Williams received ineffective assistance of counsel at the guilt phase because his counsel allegedly failed to investigate adequately and present substantial evidence to support Williams’s reasonable doubt defense." In concurrence Judge Barkett notes a possible winning argument was not raised in postconviction in either state or federal court."

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

Jason Getsy v. Mitchell, 2006 U.S. App. LEXIS 19472 (6th Cir 8/2/2006) Relief granted as to death sentence where only the least morally culpable in a four person conspiracy received death on the basis ofconsistency, comparative proportionality and Furman. The relief is also accompanied by a remand on a ground that the trial judge engaged in inappropriate contacts.

In evaluating whether a death sentence is arbitrary, the Supreme Court has directed courts to evaluate a defendant's culpability both individually and in terms of the sentences of codefendants and accomplices [*26] in the same case. See Enmund v. Florida, 458 U.S. 782, 788, 798, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). In Enmund, the Supreme Court found the Eighth Amendment violated when defendants with "plainly different" culpability received the same capital sentence. It requires proportionality comparison with others participating in the same crime:

Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment.

Id. at 798.

The instant case presents the reverse situation where defendants with plainly similar culpability received different sentences; and, furthermore, the defendant with arguably the lesser culpability received the harsher sentence -- the death penalty. Numerous state courts have applied the Enmund principal to require reasonable symmetry between culpability and the sentencing of codefendants. See, e.g., People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850, 897, 235 Ill. Dec. 667 (Ill. 1998) [*27] ("[S]imilarly situated codefendants should not be given arbitrarily or unreasonably disparate sentences."); Larzelere v. State, 676 So. 2d 394, 406 (Fla. 1996) ("When a codefendant . . . is equally as culpable or more culpable than the defendant, disparate treatment of the codefendant may render the defendant's punishment disproportionate."); Hall v. State, 241 Ga. 252, 244 S.E.2d 833, 839 (Ga. 1978) ("We find that . . . the death sentence, imposed on Hall for the same crime in which the co-defendant triggerman received a life sentence, is disproportionate."). Similarly, the Federal Death Penalty Act recognizes that a comparison of the sentences received by equally culpable codefendants improves the likelihood that the death penalty will not be imposed in an arbitrary or capricious manner. See 18 U.S.C. § 3592(a)(4) (listing as a mitigating factor the lack of death sentences for equally or more culpable codefendants).

The principle requiring proportionate punishment has deep roots in our cultural and biological heritage. Aristotle observed in his Nicomachean Ethics almost 2,500 years ago that basic notions of [*28] justice require treating like cases alike:

If, then, the unjust is unequal, the just is equal, as all men suppose it to be, even apart from argument . . . . This, then, is what the just is -- the proportional; the unjust is what violates the proportion . . . . [I]t is by proportionate requital that the city holds together.

Aristotle, Ethica Nicomachea, in The Works of Aristotle V.3.1131a-1131b, V.5.1132b (W.D. Ross ed. & trans., 1954); see also Aristotle, The Politics of Aristotle 129 (Ernest Barker ed. & trans., 1946) ("Justice is the political good. It involves equality, or the distribution of equal amounts to equal persons."). n1 Recent studies have reinforced this view. In a recent article, Judge Morris Hoffman and Timothy Goldsmith, a distinguished Yale biologist, make this point:

[I]t is not surprising that collectively we struggle to balance the form and amount of punishment that is appropriate, a struggle that lies at the heart of what we mean by "justice." . . .

The two faces of justice - to deal firmly with transgressors, but not too harshly - reflect an intrinsic human sense of fairness and are important to the political [*29] ideal of equality. When Aristotle commands that like cases be treated alike, he is touching both on the personal notion that none of us wants to be punished more than anyone else (and therefore on our self-interest) and on the social notion that none of us wants to punish others more than they deserve (and therefore on the equilibrium between our inclination to punish and our intuitions about fairness and sympathy). When sentencing guidelines address the tension between sentencing individual defendants and coordinating the sentences of similarly situated defendants, they are touching on this very same duality.

Morris B. Hoffman & Timothy H. Goldsmith, The Biological Roots of Punishment, 1 Ohio St. J. Crim. L. 627, 638-39 (2004). Coordination of sentences for the same crime is not simply a rational, legal principal but a deeply-held concept of justice as well.

The dissent argues incorrectly that the Supreme Court's decision in Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), precludes our consideration of the "comparative proportionality" of sentences in this case. n2 Pulley simply held that the Eighth Amendment does not require a systematic comparative proportionality review of sentences in other unrelated cases. Id. at 50-51. Pulley concerned whether the Eighth Amendment mandates a systematic comparative proportionality review of a particular sentence to the punishment imposed on others for the same general type of crime but in unrelated cases. Our holding neither contradicts this rule nor implicates systematic comparative proportionality review. Cf. People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258, 290, 147 Ill. Dec. 891 (Ill. 1990) ("[I]n reviewing the appropriateness of a death sentence, this court will examine the facts of that particular case and the evidence introduced at the trial and death penalty hearing, and, as a matter of reference, it may consider the sentence imposed on an accomplice or a co-defendant in light of his involvement in the offense."). Instead, [*31] we simply adhere to the clearly established principle of Enmund that, in a capital case with respect to the very same crime stemming from the very same facts, the Eighth Amendment does not permit codefendants with plainly similar culpability to receive different sentences -- especially when the defendant with arguably less culpability receives the harshest of all sentences, the death penalty. Following the dissent's view would not only conflict with the clear mandate of Enmund but would allow less culpable participants in the same criminal episode to receive the death penalty when the more culpable participant receives a lesser sentence.

In sum, sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.

State v. Roberts, 2006 Ohio 3665 (Ohio 8/2/2006) The state supreme court remands for a new sentencing when the trial court received the "assistance" of the trial prosecutor in preparing its sentencing opinion.

At the sentencing hearing, the court read aloud its sentencing opinion and imposed the death penalty on Roberts. As the court was doing so, defense counsel noticed that the prosecutor was looking at a document and appeared to be reading along with the trial judge. At the end of the court's reading, defense counsel raised a "vehement" objection to the prosecution's apparent ex parte involvement with the sentencing opinion.

The trial judge conceded that the prosecution had participated in the drafting of the opinion without the knowledge of defense counsel. The trial judge stated that he had given notes to the prosecutor and had instructed the prosecutor, "[T]his is what I want." The court added that the opinion had to be corrected six or seven times. The trial judge apologized to defense counsel for not providing them with a copy of the opinion before the sentencing hearing.

R.C. 2929.03 governs [*52] the imposition of sentences for aggravated murder. R.C. 2929.03(F) clearly contemplates that the trial court itself will draft the death-sentence opinion: "The court * * * when it imposes sentence of death, shall state in a separate opinion its specific findings as to the existence of any of the mitigating factors * * *, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors * * *." (Emphasis added.)

Our prior decisions have stressed the crucial role of the trial court's sentencing opinion in evaluating all of the evidence, including mitigation evidence, and in carefully weighing the specified aggravating circumstances against the mitigating evidence in determining the appropriateness of the death penalty. For example, in State v. Green (2000), 90 Ohio St.3d 352, 360, 2000 Ohio 182, 738 N.E.2d 1208, we vacated the death penalty because the trial court's sentencing opinion "was constitutionally deficient." There, the trial court's sentencing opinion "improperly considered [*53] nonstatutory aggravating circumstances, and failed to consider relevant mitigating evidence." Id. We concluded that "the collective deficiencies in the trial court's decision to impose the death penalty, as reflected in the sentencing opinion, undermine our confidence in that decision. * * * These cumulative errors reflect grievous violations of the statutory deliberative process." Id. at 363-364, 738 N.E.2d 1208.

Similarly, in State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925, we vacated the death sentence because of grievous errors in the trial court's sentencing opinion. In Davis, we noted, "[T]he General Assembly has set specific standards in the statutory framework it created to guide a sentencing court's discretion 'by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.'" (Emphasis sic.) Id. at 372-373, 528 N.E.2d 925, quoting Proffitt v. Florida (1976), 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913.

In this case, our confidence in the trial [*54] court's sentencing opinion is undermined by the fact that the trial judge directly involved the prosecutor in preparing the sentencing opinion and did so on an ex parte basis. The trial judge is charged by statute with the sole responsibility of personally preparing the opinion setting forth the assessment and weight of the evidence, the aggravating circumstances of the murder, and any relevant mitigating factors prior to determining what penalty should be imposed. The fact that the trial judge provided his notes to the prosecutor to guide the prosecutor in drafting the sentencing opinion does not change the result. The various drafts of the opinion that ultimately imposed death on Roberts involved the assistance of the prosecutor.

The trial court's delegation of any degree of responsibility in this sentencing opinion does not comply with R.C. 2929.03(F). Nor does it comport with our firm belief that the consideration and imposition of death are the most solemn of all the duties that are imposed on a judge, as Ohio courts have also recognized. See State v. Vrabel (Mar. 2, 2000), Mahoning App. No. 95 CA 221, 2000 Ohio App. LEXIS 803, 2000 WL 246482, *15 [*55] ("The role of this Court in reviewing a death penalty case is codified by statute and defined by the Ohio Supreme Court. It is a duty of immense proportions which we undertake with great solemnity"). The judge alone serves as the final arbiter of justice in his courtroom, and he must discharge that austere duty in isolation. The scales of justice may not be weighted even slightly by one with an interest in the ultimate outcome. Given the prosecutor's direct role in the preparation of the sentencing opinion, we cannot conclude that the proper process was followed here.

That conclusion is compelled particularly in light of the trial court's ex parte communications about sentencing with the prosecutor in preparing the sentencing opinion. The Code of Judicial Conduct, Canon 3(B)(7) specifies, "A judge shall not initiate, receive, permit, or consider communications made to the judge outside the presence of the parties or their representatives concerning a pending or impending proceeding * * *" Both the trial judge and the prosecutor should have known that any ex parte assistance in the preparation of the court's sentencing opinion was wholly inconsistent [*56] with these vital ethical constraints. See Disciplinary Rule 7-110(B)(2) and (3).

The trial court's consultation with the prosecutor, particularly when undertaken without the knowledge or participation of defense counsel, can neither be ignored nor found to be harmless error. Cf. Gardner v. Florida (1977), 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (defendant "was denied due process of law when the death sentence was imposed, at least in part, on the basis of information [from a presentence report] which he had no opportunity to deny or explain"). We cannot cure the deficiencies in the preparation of the sentencing opinion by our own independent assessment.

The trial court's decision to use the prosecutor in preparing the sentencing opinion constitutes a grievous violation of the statutory deliberative process. It is so severe a violation that independent reweighing cannot serve as an adequate remedy. See State v. Green, 90 Ohio St.3d at 363-364, 738 N.E.2d 1208. We find that we must vacate the sentence because of the critical constitutional interests and notions of justice that are implicated by the prosecutor's [*57] participation in drafting the sentencing opinion.

We accordingly sustain Roberts's claim of error in the trial judge's use of the prosecutor to assist directly in the preparation of the sentencing opinion. Accordingly, we vacate the sentence and remand to the trial court for resentencing as set forth expressly below.

THE SMALL PRINT

SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible at http://capitaldefenseweekly.com/index.html.