Capital Defense Weekly, December 14, 2009The Illinois Supreme Court's decision in People v. Brian Nelson leads off this edition (and thanks to the loyal read whose tip off lead us to this gem). Nelson repeats a familiar refrain. A hold-out juror decided not to compromise their scruples and tried to hold out for life. The trial court removed the juror. "Based upon the record, we conclude that had the jury been allowed to continue to deliberate with [the holdout juror] as a member of the jury, a nonunanimous verdict would likely have been rendered" resulting in a life sentence.

Two notable year end reports are noted this week. "The work of Innocence Network member organizations led to the exoneration of 27 people 2009. Together, they served 421 years in prison for crimes they didn't commit.. . . download the full report here (PDF)."

In the other report DPIC "released the “The Death Penalty in 2009: Year End Report” on December 18, noting that the country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years .. . . 'The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,' said Richard Dieter, the report’s author and DPIC’s executive director. 'In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty.' There were 106 death sentences in 2009 compared with a high of 328 in 1994. " Texas had just nine new death sentences.

In the states, the Georgia Supreme Court on Wednesday halted the execution of Carlton Gary’ for hi request for DNA testing. The Kansas legislature, StandDown reports, is to consider repeal in 2010. In New Hampshire the "House blocks introduction of home invasion bill" that would permit death for home invasion murders. A skeptical Third Circuit panel recently heard Delaware's lethal injection challenge, however, the matter will likely go en banc.

Pending Executions

January 2010

7 Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Lamont Smith)* (Ohio)

7 Gerald Bordelon * (LA)(vol)

7 Kenneth Mosley* (Texas)

8 Quincy Allen* (SC)(vol)

12 Gary Johnson* (Texas)

14 Julius Young* (Okla)

February

4 Mark Brown* (Ohio)

24 Hank Skinner* (Texas)

Recent Executions

December 8

Kenneth Biros (Ohio)

11 Eric Wrinkles (Ind)

* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date

(note that none of the Pennsylvania dates listed are likely actual execution dates)

Supreme Court

• Beard v. Joseph Kindler, 2009 U.S. LEXIS 8944 (12/8/2009) "Where an inmate's challenges to his capital murder conviction and death sentence were denied in state court based on Pennsylvania's fugitive forfeiture rule, but his federal habeas petition was granted, remand was warranted because a discretionary state procedural rule could serve as an adequate ground to bar federal habeas review." [via Lexis]

Week of December 14, 2009:In favor of the Accused or Condemned (initial list)

• People v. Brian Nelson, 2009 Ill. LEXIS 2308 (Ill 12/17/2009) Trial court erred in removing deliberating penalty phase juror simply because the juror wouldn't go along with the majority who sought death. "Based upon the record, we conclude that had the jury been allowed to continue to deliberate with Juror 20 as a member of the jury, a nonunanimous verdict would likely have been rendered. According to the jury foreperson's notes and interview, the jury was at loggerheads because of Juror 20's position opposing a sentence of death for defendant. Several of the jurors refused to sign the nonunanimous verdict. Had the trial court not dismissed Juror 20, it would have sent the jury back for further deliberations, with or without a Prim instruction. Eventually, the nonunanimous verdict would most likely have been signed and defendant would not have been sentenced to death. To remand this matter for a new capital sentencing hearing under these circumstances would deprive defendant of that one vote that would have resulted in a sentence other than death. We conclude therefore that remand for a second capital sentencing hearing would be inappropriate. Instead, we must remand the matter to the trial court for imposition of a sentence of imprisonment."

Week of December 14, 2009:In Favor of the State or Government (initial list)

• Darick Demorris Walker v. Kelly, 2009 U.S. App. LEXIS 27545 (4th Cir 12/16/2009)(dissent) Relief denied on Brady related claims. "In habeas proceedings, defendant's conviction and death sentence are affirmed where: 1) the district court properly conducted an evidentiary hearing on the Brady issue and rendered a decision on the merits; and 2) the district court properly determined that, even if defendant were able to show that the evidence at issue was withheld and that it was favorable to him, the alleged Brady material does not undermine confidence in the guilty verdict. " [via FindLaw]

• Jason Farrell McGehee v. Norris, 2009 U.S. App. LEXIS 27434 (8th Cir 12/16/2009) "The district court erred in considering mitigation evidence which was not before the state courts; the Arkansas Supreme Court's decision rejecting McGehee's mitigation argument was not unreasonable or contrary to established law, and the district court erred in granting habeas relief on the ground that the state court improperly excluded certain mitigation evidence during the sentencing phase of defendant's death penalty prosecution; any error in excluding the evidence was harmless in light of the other mitigating evidence concerning McGehee's dysfunctional family background which was admitted and the overwhelming and horrific evidence of the crime; McGehee was not entitled to an Ake expert as he did not make an initial showing that his mental state was likely to be a significant factor at trial; claims that sentence was disproportionate and that the state relied on unconstitutional victim impact testimony are foreclosed by Eighth Circuit precedent and AEDPA; district court did not abuse its discretion in denying McGehee's request for an evidentiary hearing; grant of habeas relief reversed and case remanded with directions to dismiss the habeas petition." [via 8th Circuit Clerk's Office]

• Timothy Wayne Kemp v. State, 2009 Ark. 631; 2009 Ark. LEXIS 831 (Ark 12/17/2009) "[A]ppellant was required to ask this court to recall our mandate and allow him to pursue a second Rule 37 [postconviction[ petition. This court has consistently upheld the rule that a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition."

• Joseph Smith v. State, 2009 Fla. LEXIS 2067 (FL 12/17/2009) Relief denied on claims relating to: "the State violated the Confrontation Clause of the Sixth Amendment to the United State Constitution when it failed to present the biologists who performed the DNA tests on the known sample taken from Smith and the unknown semen sample taken from the victim‘s shirt;" the trial court erred when it permitted [State's expert] to present opinion testimony that the victim had been sexually assaulted;" and ""the trial court erred when it refused to suppress statements by his brother....which related to comments made by Smith with regard to the sexual battery and murder of the victim." [Note: still reviewing.]

• State v. Christopher Cameron, 2009 Ohio 6479(Ohio 10th App. 12/10/2009) Relief denied on claims relating to: "1. The conviction is contrary to the manifest weight of the evidence. 2. Christopher was denied effective assistance of counsel when his counsel failed to give closing argument regarding the only charge of which Christopher was convicted. [and] 3. The trial court abused its discretion in overruling Christopher's pre-trial motion for separate trial on the only charge of which he was convicted."

• Anthony Castillo Sanchez v. State, 2009 OK CR 31 (Okla. Crim. App. 12/14/2009) [Note: still reviewing.]

• Antonio Lee Williams v. State, 2009 Tex. Crim. App. LEXIS 1751 (Tex. Crim. App 12/16/2009) "Evidence was sufficient to sustain a capital murder conviction under Tex. Penal Code Ann. 19.03 because defendant engaged in a continuous and uninterrupted chain of conduct over a very short period of time; a witness testified that when defendant was shooting victim 1, the shots were coming 'rapidly, nonstop, with no break'." [via Lexisone]

• Richard Lee Tabler v. State, 2009 Tex. Crim. App. Unpub. LEXIS 830 (Tex. Crim. App 12/16/2009) Relief denied on claims relating to: 1) "sentence of death is unconstitutional because the Eighth and Fourteenth Amendments of the United States Constitution preclude the death penalty for the mentally ill;" 2) "prosecutor's closing argument at punishment violated Tennard v. Dretke;" 3) "trial counsel was ineffective when he failed to object to the prosecutor's closing argument at the punishment phase that there had to be a nexus between the mitigating evidence and the offense;" 4) "the trial court erred at the guilt phase when it denied his request for jury instructions on self-defense, defense of a third person, and the lesser-included offense of murder;" 5) "trial court erred in failing to suppress appellant's statements because they were the fruits of his illegal arrest;" and 6) the use of the "10-12 rule."

• Rueben Gutierrez v. State, 2009 Tex. Crim. App. Unpub. LEXIS 817 (Tex. Crim. App 12/16/2009)(unpub) "We therefore order the parties to brief the following issue: Whether an order denying appointed counsel under Article 64.01(c) is an immediately appealable order. 2 The parties shall also address whether the absence of a certification of the right to appeal in the record has any bearing on this issue."

• Ex parte Terry Darnell Edwards, 2009 Tex. Crim. App. Unpub. LEXIS 808 (Tex. Crim. App 12/16/2009)(unpub) Relief denied in near summary fashion and without a meaningful discussion of the merits.

Week of December 7, 2009:In favor of the Accused or Condemned

• Anthony Pierce v. Thaler 2009 U.S. App. LEXIS 26646 (5th Cir 12/7/2009) (unpublished) "The State’s appeal of the district court’s grant of relief under Penry is now before us, as is Pierce’s request for a COA for some of the claims he unsuccessfully raised in the district court. We grant Pierce’s request for a COA as to his claims that he is mentally retarded (rendering him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002)), and that he received ineffective assistance of counsel. Pierce’s request is denied on all other claims. We reserve opinion on the government’s appeal of the Penry issue until after oral argument, during which we will hear argument as to Pierce’s Penry, Atkins, and ineffective assistance claims."

• Scott Lynn Pinholster v. Ayers, 2009 U.S. App. LEXIS 26850 (9th Cir 12/9/2009) (en banc) (dissent) Relief granted as trial counsel's penalty phase performance was unduly wretched. The Ninth Circuit blog has more.

• People v. Butler, 2009 Cal. LEXIS 12407 (Cal 12/10/2009) "In a case in which defendant was sentenced to death for stabbing another inmate, trial court erred in deciding that he could not adequately represent himself because of jail restrictions resulting from disciplinary infractions. Although defendant was a security risk, there was no showing that his pro. per. status increased the risk in any way." [via Lexis]

Week of December 7, 2009:In Favor of the State or Government

• State v. Eugene Johnny Williams, 2009 N.C. LEXIS 1292 (N.C. 12/11/2009)Relief denied on claims relating to 1) not replacing trial counsel following a breakdown in the attorney - client relationship; 2) "the trial court erred by "summarily denying" his pro se motion to dismiss on speedy trial grounds;" 3) "defendant argues that the trial court erred in "summarily denying" his pro se motion to suppress;" 4) admission of "inadmissible lay opinion testimony;" 5) " the trial court erred in admitting the pre-trial statements of Sharon Cogdell and Jimmy Locklear for the purpose of corroborating their testimony;" 6) sufficiency of the evidence; 7)"[d]Defendant argues the trial court lacked jurisdiction to enter a sentence of death against him because (1) Judge Lock did not preside over the guilt phase of defendant's trial; (2) the jury that recommended a sentence of death was not the same jury that returned the guilty verdicts in the guilt phase; and (3) the sentencing judgment was entered out-of-session and out-of-term;" 8) "the trial court violated his right under Article I, Section 23 of the North Carolina Constitution to be present at all proceedings of his capital trial when the deputy clerk selected forty-eight prospective jurors from the pool in the jury assembly room, outside defendant's presence; 9) the trial court erred in admitting during the penalty proceeding evidence that defendant, following the murders, possessed items that belonged to the victims;" 10) preserviation issues; and 11) proportionality.

• State v. Christopher Cameron, 2009 Ohio 6479(Ohio 10th App. 12/10/2009) Relief denied on claims relating to: "1. The conviction is contrary to the manifest weight of the evidence. 2. Christopher was denied effective assistance of counsel when his counsel failed to give closing argument regarding the only charge of which Christopher was convicted. [and] 3. The trial court abused its discretion in overruling Christopher's pre-trial motion for separate trial on the only charge of which he was convicted."

• People v. Ervine, 2009 Cal. LEXIS 12406 (Cal 12/7/2009) "In the absence of evidence that confidential information was actually conveyed to prosecution as result of the reading of defendant's privileged legal materials by unrelated jail personnel from another county, defendant had no claim that his Sixth Amendment rights were violated; there was no evidence he was prejudiced in preparation of his defense."

• Daniel Wilkes v. State, 2009 Ind. LEXIS 1516 (Ind. 12/10/2009) Relief denied on direct appeal over claims that "I. The trial court erred in admitting transcripts and recordings of four interviews in which he acknowledged his guilt; II. The trial court erred in admitting evidence of his molesting of Avery, expert testimony regarding a presumptive test for blood, and opinion testimony on guilt; III. Indiana's death penalty statute violates the Indiana Constitution's requirement of separation of powers and the Federal Sixth Amendment; and IV. Wilkes was not sentenced properly."

• Cooey II, Kenneth Bir v. Strickland, 2009 U.S. App. LEXIS 26695 (6th Cir. 12/7/2009) Relief denied on claims arising from Ohio's one drug protocol.

• Tiequon Aundray Cox v. Ayers, 2009 U.S. App. LEXIS 26892 (9th Cir 12/10/2009) "Tiequon Aundray Cox was convicted in California state court, and sentenced to death,for the murders of four victims. In this habeas proceeding, brought pursuant to 28 U.S.C. sec 2254, he challenges his convictions and death sentence on the grounds that (1) the state trial court's decision to shackle him during the guilt phase of the trial prejudiced the jury during both the guilt and penalty phases and (2) that he received ineffective assistance of counsel during the penalty phase. Because Petitioner was not prejudiced by the trial court's decision to shackle him during the guilt phase of the trial, and because Petitioner received constitutionally sufficient assistance of counsel at the penalty phase, we affirm."

• Lisa Coleman v. State, 2009 Tex. Crim. App. Unpub. LEXIS 792 (Tex. Crim. App. 12/9/2009) (unpub) Relief denied on suffiency; failure of the indictment to allege aggravating factors; "admitting statements she made to CPS investigators while she was in custody;" jury instructions on parole; gal sufficiency of the evidence supporting the jury's determination regarding the future-dangerousness; sufficiency of the state's penalty phase presentation and jury instructions on the weight of mitigation.

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