Numerous wins are noted this week. Perhaps most significant are five cases from the Oklahoma Court of Criminal on the contours of the definitions of mental retardation, four of which were wins. In three 4-1 decisions, the Court changed the sentences of three men to life in prison without parole. In a 5-0 decision, it also sent a case back to the trial court to decide whether mental retardation. A more in-depth analysis will follow in (hopefully) in the next edition.

Two cases, one from the Sixth Circuit (White v. Mitchell) and one from the Ninth Circuit (Brown v. Lambert) look at the intricacies of jury selection. In White the panel grants relief as the trial court failed to strike a juror who could not "lay aside [her] impression or opinion and render a verdict based on the evidence presented in court." In the the other matter, Brown, a Ninth Circuit panel holds that the trial court was too quick on the draw in striking a juror on the basis of Witherspoon.

In the news of the week, John Holdridge has taken over the helm at the ACLU's Capital Punishment Project. Members of the New Jersey Senate have overwhelmingly passed a bill that would suspend executions in the state and create a new death penalty study commission to examine New Jersey’s death penalty. Gov. Pataki Pataki has called back into session the New York State Legislature for the coming week to revive that state's broken death penalty. The PATRIOT Act was effectively blocked, for now, in the Senate, in a procedural move which also means that the . Four noncapital exonerations were noted this week, Joseph Wayne Eastridge and Joseph Nick Sousa, with two DNA exonerations in Virginia who have asked to have their names withheld (both released due to the meticulous work of Mary Jane Burton).

Looking ahead to next week, there are two truly ugly Fifth Circuit opinions coming. The first is In re Wilson in which a panel denies relief on a mental retardation claim on the basis that the claim was filed within the AEDPA's time limits in the wrong court and that by the time it was filed in the right court petitioner was out of time. The other is Herron v. Dretke in which a panel never even bothers to list a single issue on which the appeal was had but rather spills much ink in seeming self-congratulatory hubris.

Finally, someone from Oklahoma sent a fantastic examination of the Oklahoma decisions this week. I read it. I loved it. I placed it away so I could "borrow" from it. Unfortunately, I lost it. If you sent it to me, would you please send it again.

Full edition archived at http://capitaldefenseweekly.com/archives/051212.htm

As always please forgive the typos in advance & thanks for reading. - k

Recent Executions

December

13 Stanley Williams (California)

14 John Nixon (Mississippi)

Favoring Life and Liberty

White v. Mitchell, 2005 U.S. App. LEXIS 26632 (6th Cir 12/7/2005) Trial court erred in not removing a juror who lacked sufficient impartiality to serve on the jury. She "had a strong inclination toward imposing the death penalty, they also indicate that she was looking forward to participating in the imposition of this particular defendant's sentence." [ Decision of the Day's view of the case]

Brown v. Lambert, 2005 U.S. App. LEXIS 26807 (9th Cir 12/8/2005) Trial court was too quick to kick a potential off the jury as too death hesitant. "The reasons that the court did give for upholding Z's exclusion are misplaced and insufficient. Z's statement that he would impose the death penalty where the defendant would be likely to kill again did not exclude the possibility that Z would vote to impose the death penalty in other circumstances as well. And the fact that Z misstated the law means nothing: If all prospective jurors who did not fully understand the law before the trial began were struck, only lawyers would be allowed to serve on juries (and only a handful of lawyers at that)." [Decision of the Day's view of the case]

State ex rel Thomas v. Granville, 2005 Ariz. LEXIS 131 (Az 12/8/2005) Appeal taken by State following a hung penalty phase jury and before the impanelment of a second jury. "This case concerns the propriety of two jury instructions relating to sentencing in a capital case. The prosecutor requested that the jury be instructed at the close of the penalty phase of the trial that the defendant bears the affirmative burden to prove that mitigation is "sufficiently substantial to call for leniency." The second instruction advised the jurors to sentence the defendant to life in prison if they had "a doubt" whether a death sentence was appropriate. For the reasons set forth below, we hold that neither instruction is proper."

State v. Gomez, 2005 Ariz. LEXIS 129 (Az 12/6/2005) Death sentence vacated as the court ordered defendant, who argued the penalty phase pro se, to be shackled during those proceedings.

Pickens v. State, 2005 OK CR 27 (Ok Crim App 12/7/2005) Vacated in light of Atkins despite a trial court finding no mental retardation.

Salazar v. State, 2005 OK CR 24 (Ok Crim App 12/7/2005) Vacated in light of Atkins despite a trial court finding no mental retardation.

Lambert v. State, 2005 OK CR 26 (Ok Crim App 12/7/2005). Vacated in light of Atkins despite a trial court finding no mental retardation.

Murphy v. State, 2005 OK CR 25 (12/7/2005) Remand ordered for trial on mental retardation claims.

United States v. Taveras, 2005 U.S. Dist. LEXIS 31048 (EDNY 12/6/2005) In a superseding indictment the feds alleged a new theory to make the murder here death eligible. Since the death penalty statute (firearm-related murder of Jose Rosario during the course of a drug conspiracy) under which he is charged did not exist at the time of the alleged murder, he cannot be prosecuted under the ex post facto clause. It should be noted that the indictment charges defendant with another capital crime for the same killing under a slightly different theory that remains.

Favoring Death

Fields v. Brown, 2005 U.S. App. LEXIS 26851 (9th Cir 12/8/2005) "We hold that Fields was not deprived of an impartial jury and therefore the district court's judgment on his conviction is affirmed. Even assuming that trial counsel was deficient in preparing for the penalty phase by not interviewing friends and family in Fields's hometown, Fields was nevertheless not deprived of the effective assistance of counsel in violation of the Sixth Amendment because there is no reasonable likelihood that the mitigating evidence that could have been produced at trial would have outweighed the aggravating evidence of a crime spree involving three kidnapings, three rapes, four robberies, and one murder within a couple of weeks of release from prison for another homicide. Counsel was not deficient and neither was Fields prejudiced by the investigation into his mental condition. To this extent we also affirm the district court's judgment. However, we conclude that juror misconduct, if it occurred, had no substantial or injurious effect on the verdict. To this extent, the district court's judgment is reversed. In sum, we see no prejudicial error, nor any cumulative error, requiring the writ to issue." [ Decision of the Day's view of the case]

Sims v. Brown, 2005 U.S. App. LEXIS 26806 (9th Cir 12/8/2005) (Amended) Relief denied, in the words of the dissent, despite that "[t]he penalty phase was marred by two constitutional errors: the prosecutor's use of Sims's inculpatory statements obtained in violation of Miranda, and the prosecutor's insistence that the compelling evidence of Sims's childhood abuse could not be considered by the jury in mitigation. Because there is "grave doubt" as to the effect of these errors, the district court's denial of the writ with respect to Sims' death sentence should be reversed."

People v. Manriquez, 2005 Cal. LEXIS 13664 (CA 12/5/2005) Relief denied on severance, premeditation and failure to instruct on voluntary manslaughter.

Harp v. State, 2005 Fla. LEXIS 2508 (FL 12/8/2005) Relief denied on claims relating to whether: "(1) his trial counsel was ineffective for failing to challenge the State's case and for failing to effectively cross-examine an alibi witness and call an available alibi witness; (2) his trial counsel was ineffective during the guilt phase for failing to investigate an unknown negroid hair sample and argue its exculpatory value; (3) his trial counsel was ineffective during the penalty phase by failing to investigate and present mitigation regarding Happ's drug abuse history; (4) Happ was denied a full and fair evidentiary hearing because the trial court denied his request to permit expert tests of Happ's shoes and refused to permit proffered evidence of expert witnesses relating to the shoeprint evidence; and (5) his trial counsel was ineffective for failing to hire and use sufficient expert witnesses to challenge the State's case."

Hooks v. State, 2005 OK CR 23 (Ok Crim App 12/7/2005) Affirming the trial court finding that the defendant was not mentally retarded.

Bond v. Beard, 2005 U.S. Dist. LEXIS 31574 (EDPA 12/6/2005) Attempts to admit statistical evidence on two related issues rebuffed. "[F]irst, to support his claim that "as an African-American in Philadelphia charged with killing a non-black victim, he was far more likely to be sentenced to death in Philadelphia than a person convicted of killing an African American," Petition at 9, and second, that statistical evidence of strikes by John Doyle, the prosecutor in Petitioner's case, and the Philadelphia District Attorney's Office as a whole shows a pattern of striking black jurors."

Baker v. Saar, 2005 U.S. Dist. LEXIS 31324 (D MD 12/1/2005) Challenge to Maryland lethal injection procedures denied.

Excerpts from this Week's Cases

White v. Mitchell, 2005 U.S. App. LEXIS 26632 (6th Cir 12/7/2005) Trial court erred in not removing a juror who lacked sufficient impartiality to serve on the jury.

Our review of the line of questioning as a whole reveals a series of highly troubling and contradictory statements made by Sheppard with regard to her ability to be a fair and impartial juror for the penalty phase of sentencing. Sheppard stated repeatedly that she had doubts as to whether she could follow the law, and explicitly stated, in contrast to her earlier voir dire statements, that she did not think it would be fair to the defendant for her to sit on the jury. As we read Sheppard's statements in their entirety, we are struck by the vacillating nature of her responses; she contradicts [**19] herself from question to question, sometimes openly equivocating during a single answer. Further, the prosecution's repeated comments to Sheppard that she need only try [*64] to the best of her ability to apply the law are an impermissibly lax statement of the duty of a juror to set aside her own views and apply the law as the judge presents it. See Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir. 2000) (granting habeas relief based on a finding that it was unreasonable for a trial judge to fail to excuse two jurors who were unable to state unequivocally that they would set aside their personal beliefs and decide the case fairly and noting that "each juror's tentative statements that they would try to decide this case on the evidence presented at trial . . . . [was] without more, . . . insufficient.") (emphasis added).

Ultimately, however, the most problematic of Sheppard's comments are those about being a part of the Ashland community and feeling a duty to serve on the jury: her statements strongly indicate that (1) she had already decided what punishment was appropriate and believed that the rest of the jurors would feel similarly: "And if we come to the truth that I feel we are going to, and I hate to see one man's life taken, but in fair honesty, in him taking another life, I think that he should be punished for that," (2) [*65] she relished taking part in the imposition of the death penalty in this particular case: " and I'd like to be a part of that," and (3) she believed that her anticipated outcome of the case was the true and honest one, thus reflecting an inherent bias: "people out there want people on that jury that's going to listen and find the real truth;" "And if we come to the truth that I feel we are going to;" "I hate to see one man's life taken, but in fair honesty, in him taking another life, I think he should be punished for that."

These statements not only indicate that Sheppard had a strong inclination toward imposing the death penalty, they also indicate that she was looking forward to participating in the imposition of this particular defendant's sentence. Further, her use of the words "fair," "truth," and "honesty" in the context of discussing preformed biases regarding the defendant make her claims of fairness and impartiality toward the defendant elsewhere in her voir dire testimony suspect. Although Sheppard stated subsequent to these comments that she could follow the law and not let her personal feelings interfere, her statements to this effect were far more cursory [*66] and, given the frequency with which her statements shifted back and forth on her ability to be fair, such subsequent statements are insufficient to alleviate the grave concerns raised by her previous comments.

In light of these facts, we find that juror Sheppard was unable to "lay aside [her] impression or opinion and render a verdict based on the evidence presented in court." Irvin, 366 U.S. at 723. Notwithstanding the deference owed to trial judges on issues of juror impartiality, Sheppard's statements fell far short of the dictates laid out in Supreme Court case law regarding juror bias. See Wolfe, 232 F.3d at 504 (Wellford, J., concurring) (noting that although a trial court's determination of juror bias is entitled to deference, a judge's discretion is nonetheless "subject to the essential demands of fairness") (internal quotation marks and citation omitted). In our review of this claim, we are guided by the Supreme Court's holding in Patton, 467 U.S. at 1036. In that case, the Supreme Court stated that HN27Go to the description of this Headnote.the appropriate question on review of a juror bias issue is "did a juror swear that [s]he could set aside any opinion [s]he [*67] might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Id. The second portion of that inquiry-whether the statements of the impartiality should have been believed--highlights the grave problem with Sheppard's voir dire testimony in this case. With a transcript reflecting statements as internally inconsistent and vacillating as these, including numerous statements of strong doubt regarding impartiality and merely a few tentative or cursory statements that she would be fair, Sheppard was simply unbelievable as an impartial juror. Despite the deference usually owed to trial judges, we conclude that nothing about Sheppard's demeanor could cure the weighty concerns raised by her voir dire testimony. Accordingly, we find that the trial judge's failure to excuse Sheppard and the Ohio Supreme Court's finding that the trial court did not abuse its discretion in failing to strike Sheppard were contrary to or an unreasonable application of Supreme Court precedent.

Brown v. Lambert, 2005 U.S. App. LEXIS 26807 (9th Cir 12/8/2005) Trial court was too quick to kick a potential off the jury as too death hesitant.

Brown next argues that three prospective jurors were erroneously dismissed for cause, and that he was therefore sentenced by a "tribunal organized to return a verdict of death." Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). [*6]

1. Juror X was uncertain whether she would be able to impose the death penalty. Though she initially professed a willingness to follow the court's instructions, she later expressed serious reservations: "Oh, yeah, I could follow the instructions. I think that--actually making that decision, no." When the court asked her about her ability to vote for death, she responded, "I don't think I could. It would have to be so crystal clear. I would have to be--." Based on these responses, the trial judge properly excused X for cause, finding that her views on the death penalty would "substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)) (internal quotation mark omitted).

Juror Y's voir dire exposed even stronger antipathy toward the death penalty, bordering on moral outrage. She described the death penalty as "barbaric" and suggested that it "makes . . . brutes of us all." She expressed resentment toward the state of Washington for putting her in the position [*7] of choosing between life and death. Finally, when asked by the court if she would be able to consider sentencing anyone to death, Y "crossed her arms, held her hand up . . . and sat back." n4 The trial judge properly excused juror Y for cause as well, noting that her impairment was "obvious."

The voir dire examinations of jurors X and Y contrast sharply with the examination [*8] of juror Z. Z expressed no antipathy toward the death penalty; to the contrary, he stated that he "believed in the death penalty." In explaining his views, Z outlined a balanced and thoughtful position. For example, Z was discomfited by an earlier era in which "it seemed like . . . [the death penalty] wasn't used at all," because he believed "there are times when it would be appropriate [to impose the death penalty]." But he expressed caution that the death penalty be reserved for "severe situations": "I don't think it should never happen, and I don't think it should happen 10 times a week either." Z felt most comfortable imposing the death penalty where the defendant is "incorrigible and would reviolate if released," and less comfortable where the defendant is found to have been "temporarily insane." But he stated unequivocally that he could consider the death penalty as an option if told to do so.

In essence, Z's views on whether to impose the death penalty mirrored Washington's death penalty statute itself: He believed a defendant should be put to death where his crime was appropriately severe but not otherwise, and was willing to take into account mitigating factors (mental [*9] health issues, for example), aggravating factors (likelihood of recidivism, for example) and the particular circumstances of the instant murder. See Wash. Rev. Code §§ 10.95.060, 10.95.070. Additionally, he was open to considering other types of mitigating circumstances, such as "somebody's childhood" or "emotional development," was welcoming of his fellow jurors' views, and was accepting of the heavy responsibility assigned to jurors by the state. Most importantly, he promised he would "follow the law" without reservation.

Despite these assurances, the prosecutor protested that Z was too reluctant to impose the death penalty, and that he would only vote for death if convinced that the defendant would "kill again." The prosecutor thus moved to excuse juror Z for cause, and the trial judge granted the motion without further inquiry.

2. In 1985, and again in 1987, the Supreme Court explained that the "standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment . . . is 'whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance [*10] with his instructions and his oath."'" Gray v. Mississippi, 481 U.S. 648, 658, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987) (quoting Witt, 469 U.S. at 424 (quoting Adams, 448 U.S. at 45)). The Supreme Court insisted that capital jurors not be struck for cause unless they are unable to follow the court's instructions. Even jurors "who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Id. (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (Rehnquist, J.)).

Further, the Supreme Court significantly circumscribed the state courts' role in excusing jurors for cause in capital cases: It held that

the State's power to exclude for cause jurors from capital juries does not extend beyond its interest in removing those jurors who would "frustrate the State's legitimate interest in administering constitutional capital sentencing schemes by not following their oaths." To permit the exclusion for cause of other prospective jurors based [*11] on their views of the death penalty unnecessarily narrows the cross section of venire members. It "stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law."

Id. at 658-59 (alterations in original) (citation omitted) (quoting Witt, 469 U.S. at 423, and Witherspoon, 391 U.S. at 523). Thus, it is--and was at the time of Brown's trial in 1993--clearly established that excusing a juror for cause in a capital case is unconstitutional, absent evidence that the juror would not follow the law.

When the Washington Supreme Court upheld the trial judge's decision to excuse jurors X, Y and Z for cause, it found that both X and Y were "substantially impaired" in their ability to perform their duties as jurors. Brown, 940 P.2d at 585. Those findings are adequately supported by the record. But a similar finding is missing from the state court's discussion of juror Z. The court's entire review of Z's exclusion from the jury is as follows:

Appellant did not object at trial to the State's challenge of [Z] for cause. At any rate, [Z] was properly [*12] excused. On voir dire he indicated he would impose the death penalty where the defendant "would reviolate if released," which is not a correct statement of the law. He also misunderstood the State's burden of proof in a criminal case and understood it to be "beyond a shadow of a doubt," although he was corrected later. The trial court did not abuse its discretion in excusing [Z] for cause.

Id. Nowhere did the court find that Z would be unable to follow instructions. Nor could the court have found this: Just like the juror at issue in Gray, juror Z "ultimately stated that [he] could consider the death penalty in an appropriate case." Gray, 481 U.S. at 653. n5 Had there been a finding that Z was "substantially impaired" in his ability to follow the law, it would have been unreasonable. See 28 U.S.C. §§ 2254(d)(2), (e)(1).