Capital Defense Weekly, December 17, 2001

By Capital Defense Newsletter
Dec 17, 2001

In this year end edition two cases are featured,McCarthy v. Texas andBorchardt v. Maryland, as well as the highlights (and lowlights) of the year.

InBorchardt v. Marylandthe state Court of Appeals denied an elaborate challenge to the state's sentencing scheme based on Apprendi v. New Jersey. The Court split sharply. The dissent's analytic work in deconstructing Apprendi & the Maryland sentencing scheme and overlaying the error found in Apprendi with what is perceived as a problem with Maryland's sentencing structure is a should read.

The Texas Court of Criminal Appeals inMcCarthy v. Texasoffers a rare reversal. TheMcCarthyCourt reversed on a Miranda violation. The police's reinitiating of questioning after the invocation of the right to counsel, and consultation with same, required no less.

The next edition will run the first week of the New Year, and will include a look ahead as to the legal landscape for 2002.Abu-Jumal v. Horn(reversal on penalty phase sentencing instructions) &Pennsylvania v. Basemore(Batson error) will also be covered in the next edition.

Since the last edition there have been no domestic executions.

There are no remaining scheduled executions considered likely for the remainder of 2001. Executions slated and considered likely for 2001 include:

January 2002
9 Michael Moore Texas
9 James Johnson Missouri
11 Charlie Alston North Carolina
16 Jamarr Arnold Texas
24 Amos King Florida
29 Stephen Anderson California
29 John Romano Oklahoma
30 Windell Broussard Texas
31 Randall Hafdahl Texas
31 David Woodruff Oklahoma
February
5 Linroy Bottoson Florida
7 Robert Trease Florida
21 Thomas Miller-El Texas
28 Monty Delk Texas
March
7 Gerald Tigner Texas
May
14 Henry Dunn Texas

Merry Christmas & a Joyous New Year to all!!!

HOT LIST CASES

Borchardt v. State, 2001 Md. LEXIS 941 (Md. 12/13/2001) Relief denied on issues relating to the constitutionality of the state's death penalty in light of Apprendi v. New Jersey; state evidentiary law questions regarding admission of certain evidence; voir dire; merger of the robbery convictions; and sufficiency of robbery evidence. Dissent argues that Apprendi requires a finding as to the weight of the penalty phase evidence to be beyond a reasonable doubt before returning death.

II. Federal Due Process
In Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the Supreme Court applied the rule announced in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), that every fact necessary to the crime charged must be proven beyond a reasonable doubt, to a Maine homicide statute that required a defendant to prove heat of passion on sudden provocation in order to negate the element of malice and reduce a charge of murder to manslaughter. In so doing, the Court held that the Winship rule was not limited only to those facts that constituted a crime as defined by state law because of the significance of the consequences to the defendant [*97] depending on whether the fact of provocation could be proven. See Wilbur, 421 U.S. at 698, 95 S. Ct. at 1889, 44 L. Ed. 2d 508; cf. maj. op. at 9. The Court explained that the rationale of Winship "requires an analysis that looks to the 'operation and effect of the law as applied and enforced by the state . . . .'" Wilbur, 421 U.S. at 699, 95 S. Ct. at 1890, 44 L. Ed. 2d 508.
The Court applied the Winship rule again in McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), to a Pennsylvania statute that created a mandatory minimum sentence of five years imprisonment for certain enumerated offenses if the sentencing judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of the offense. Citing Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Supreme Court emphasized that "in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive . . . ." McMillan, 477 U.S. at 85, 106 S. Ct. at 2415, 91 L. Ed. 2d 67. [*98] The Court concluded that visible firearm possession was a sentencing factor, not an element of the substantive offense, and therefore did not have to be proven beyond a reasonable doubt. As the majority recognizes, see maj. op. at 10-11, this was so because visible possession merely limited the sentencing court's discretion in selecting a penalty within the existing range of permissible sentences; it did not alter the maximum sentence for the crime committed or expose the defendant to greater potential punishment. See McMillan, 477 U.S. at 86-8,106 S. Ct. at 2416, 91 L. Ed. 2d 67.
In Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), the Supreme Court limited its earlier holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) (permitting an increased maximum sentence for recidivist offenders based on a prior conviction that was not specifically pleaded in the indictment because it was not an element of the offense), solely to recidivism as a sentencing factor. See Jones, 526 U.S. at 249, 118 S. Ct. at 1227, 140 L. Ed. 2d 350. [*99] In reaching that conclusion, the Court set the stage for its decision in Apprendi, remarking in a footnote that: "under the Due Process Clause of the Fifth Amendment . . .,any fact (other than prior conviction) that increases the maximum penalty for a crime must be . . . proven beyond a reasonable doubt." Id. at 243 n.6, 119 S. Ct. at 1224 n.6, 140 L. Ed. 2d 350 (emphasis added). The Court explained that these constitutional safeguards "concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment: these are the safeguards going to . . . the urden of proof." Id. n13
It was against this backdrop that the Supreme Court decided Apprendi. The Apprendi Court began by tracing the common law development of the definition of elements of offenses for the purpose of the guarantees of due process and trial by jury, which entitle a defendant to have every element of the crime charged proven to a jury beyond a reasonable doubt. The Court noted that "facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense." Apprendi, 530 U.S. at 482 n.10, 120 S. Ct. at 2359 n.10, 147 L. Ed. 2d. 435 (emphasis added). The Court found that "Winship's due process associated jury protections extend, to some degree, 'to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of the sentence.'" Id. at 484, 120 S. Ct. at 2359, 147 L. Ed. 2d 435 (alteration in original) (emphasis added) (citations omitted). The Court made clear that McMillan's holding was limited to "cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's [*101] verdict . . . ." Id. at 487 n.13, 120 S. Ct. at 2361 n.13, 147 L. Ed. 2d 435.
Prior to Jones and Apprendi, the Supreme Court's due process jurisprudence had relied heavily on the formalistic, but often blurry, distinction between "elements" and "sentencing factors." In Apprendi, the Court provided a clear method for distinguishing sentencing factors from elements of an offense, explaining that: "the relevant inquiry is not one of form, but of effect - does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d 435. The Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d 435 (emphasis added). In doing so, the Court discussed the important distinction between facts in aggravation of punishment and facts in mitigation, emphasizing that mitigating circumstances do not need to be proven beyond a reasonable [*102] doubt because, unlike aggravating circumstances, they do not expose a defendant to increased potential punishment. See id. at 490 n.16, 120 S. Ct. at 2363, n.16, 147 L. Ed. 2d 435.
I believe that a finding that aggravating circumstances outweigh mitigating circumstances increases the penalty beyond the prescribed statutory maximum. Under § 412 (b), a defendant is not "death-eligible" merely by having been found guilty of first degree murder. Rather, at the conclusion of the guilt/innocence phase and a finding of guilty of first degree murder, the defendant is eligible only for a sentence of life imprisonment. The defendant cannot receive a sentence of death unless the additional requirements of § 413 have been met, i.e, that at least one aggravating factor has been proven, that the defendant is a principal in the first degree, and that the aggravating circumstances outweigh any mitigating circumstances. See § 413 (h). Just as the presence of the hate crime enhancement in Apprendi transformed a second degree offense into a first degree offense under the New Jersey hate crime statute, the finding that the aggravating circumstances outweigh the mitigating [*103] circumstances transforms a life sentence into a death sentence under the Maryland death penalty statute. Cf. Hoffman v. Arave, 236 F.3d 523, 545-46 (Pregerson, J., concurring in result) (explaining that the presence of an aggravating circumstance under Idaho's death penalty scheme transforms a life sentence into a death sentence in the same way that the presence of the hate crime enhancement transformed the second degree offense into a first degree offense in Apprendi). There can be no doubt that a death sentence is an increased penalty beyond life imprisonment.
The majority asserts that "Maryland law makes death the maximum penalty for first degree murder." Maj. op. at 32. I believe that the majority is wrong. This Court, in an unanimous opinion, recently held that the maximum penalty for first degree murder is life imprisonment and that "death or life imprisonment without the possibility of parole are 'enhanced' sentences for first degree murder, and are dependent upon special circumstances." Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 96 (2001).
In Johnson, we addressed the question of whether Maryland law authorized the imposition [*104] of a sentence of life imprisonment without the possibility of parole for a conviction for conspiracy to commit first degree murder. See id. at 528, 766 A.2d at 94. The State argued that the maximum penalty for conspiracy to commit murder was life without parole. We rejected the State's argument and held that, for the purposes of the limitation on sentences for inchoate offenses, the maximum sentence for murder was its "basic maximum sentence," not including "any enhanced penalty provisions." Id. at 530, 766 A.2d at 96. In reaching that conclusion, we reasoned:
"As shown by the language of Art. 27 § 412 (b), the basic sentence for first degree murder 'shall be imprisonment for life . . . .' The greater sentences of death or imprisonment for life without the possibility of parole cannot be imposed unless certain special conditions are met. In addition to the notice requirements set forth in § 412 (b), there are special conditions for the imposition of death or life without the possibility of parole contained in other statutory provisions."
Id. at 529, 766 A.2d at 95 (citations omitted). n14 Cf. [*105] Gary v. State, 341 Md. 513, 671 A.2d 495 (1996) (holding that life imprisonment was not an illegal sentence for conspiracy to commit murder because it was the maximum penalty for the substantive crime of first degree murder).
In light of the structure of the Maryland statute governing imposition of the death penalty, and consistent with the language in Johnson, the finding that the aggravating circumstances outweigh the mitigating circumstances, pursuant to § 413 (h), clearly exposes a defendant to an increased potential range of punishment beyond the mere conviction for first degree murder.
In keeping with McMillan's deference to the legislative determination of the elements of a particular crime, it is the particular structure of the Maryland statutes and rules governing imposition of the death penalty that guides the analysis of the requirements of due process under Apprendi. In enacting §§ 413 and 414 of the death penalty statute, the General Assembly expressed an intention to base death sentences in Maryland on a factual finding within the meaning of Apprendi in two ways: first, by mandating that the sentencer find that the aggravators outweigh the mitigators by a preponderance of the evidence; and, second, by requiring that the Court of Appeals review that factual finding for sufficiency of the evidence.
While ordinarily, the broad deference accorded to state legislatures [*107] in defining the elements of offenses under Winship and its progeny results in state statutes being upheld against the minimal requirements of due process, in the present case, the way that the Maryland General Assembly has chosen to define the death penalty procedures is precisely what implicates and offends the strictures of the Due Process Clause. The fact that the General Assembly prescribed a burden of proof for the weighing process of § 413 (h) at all is the clearest indication that the legislature envisioned this determination as a factual finding.
The majority finds Apprendi inapplicable, reasoning that:
"It was not a death penalty case, it did not involve a capital punishment sentencing scheme, and the five Justices forming the majority made clear their view that the rulings enunciated in the case did not serve to invalidate any capital punishment laws."
Maj. op. at 7-8. The majority may be correct that Apprendi does not require the invalidation of all state capital punishment schemes. Unfortunately, the majority views the instant challenge to the Maryland statute as occupying the crossroads between the Supreme Court's due process jurisprudence under [*108] Winship, Apprendi, et al. and the Court's death penalty sentencing jurisprudence under Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), and its progeny. I disagree with that analysis. . . . .
The majority makes a point to emphasize that Apprendi "did not involve a capital punishment sentencing scheme . . . ." Maj. op. at 7. Nonetheless, Apprendi's logic is equally applicable to the operation of the Maryland death penalty statute at issue in this case. The fact that the definition of the offense of capital murder occurs within the context of a capital sentencing statute, rather than a hate crimes or carjacking statute, is not dispositive of the due process issue. Such analysis is precisely the type of mere "formalism" against which the Court warned in Wilbur. See Wilbur, 421 U.S. at 700, 95 S. Ct. at 1890, 44 L. Ed. 2d 508.
The United States Supreme Court repeatedly has stated that death is different. The reason why death is different is reiterated throughout [*119] the Court's death penalty jurisprudence. See e.g., Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976). The Court has recognized "that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-999, 103 S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983) . The Court has noted the obvious: that death is different because it is irreversible. This aspect of the difference between death and other penalties merits particularly careful review of the fairness of the trial, the accuracy of the fact-finding process, and the fairness of the sentencing procedure imposing the death penalty. Even a cursory review of Supreme Court death penalty jurisprudence leads to the inescapable conclusion that capital sentencing proceedings are to be subjected to a heightened degree of scrutiny out of concern for the reliability of their outcomes. See Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978); [*120] Woodson, 428 U.S. at 305, 96 S. Ct. at 2991, 49 L. Ed. 2d 944 ("Death in its finality, differs from life imprisonment more than a hundred-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."). As the Court explained in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988):
"The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case."
Id. at 383-84, 108 S. Ct. at 1870, 100 L. Ed. 2d 384. As Chief Justice Quinn of the Colorado Supreme Court explained in State v. Tenneson, 788 P.2d 786 (Colo. 1990):
"The elevated standard of reliability applicable to a capital sentencing proceeding is nothing less than constitutional acknowledgment [*121] that there is a qualitative difference between death and other forms of punishment and that this qualitative difference necessitates a 'corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.'"
Id. at 804 (Quinn, C.J., concurring in part and dissenting in part) (quoting Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733, (1983)(1988)). The majority turns this concern with heightened reliability on its head by suggesting that capital sentencing procedures should somehow constitute an exception to the values of fairness protected by the Due Process Clause.
The majority also devotes a great deal of time to discussing post-Apprendi challenges to other states' death penalty statutes. To a great extent, however, those cases are not persuasive because, as indicated in discussion supra pp. 11-13, they involve death penalty statutes that are significantly different in structure and application than the Maryland statute. . . . .
Finally, the majority takes comfort in the recent decision by the United States Court of Appeals for the Fourth Circuit, in Burch v. Corcoran, 2001 U.S. App. LEXIS 25329 (4th Cir. Nov. 28, 2001). See maj. op. at 22. At the outset, it is important to note that the United States District Court for the District of Maryland held that the appellant's Apprendi claim was barred by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See Brief for Appellant at 19 n.4, Burch v. Corcoran, 2001 U.S. App. LEXIS 25329 (4th Cir. Nov. 28, 2001) (No. 10-4) (citing Burch v. Kavanagh, No. MJG 98- 4054 (D. Md. Aug. 18, 2000) (unpublished Memorandum of Decision denying habeas corpus relief)). The court of appeals agreed, holding that "because his judgment of conviction was final well before the [Supreme] Court's decision in Apprendi, and because Apprendi does not apply retroactively to cases pending on collateral review, Burch cannot obtain any federal habeas corpus relief under Apprendi" Burch, 2001 U.S. App. LEXIS 25329 at *13. As the majority [*137] concedes, see maj. op. at 22, the court of appeals did not reach the merits of the appellant's Apprendi challenge, finding it to be precluded by retroactivity doctrine. n22 Burch, 2001 U.S. App. LEXIS 25329, at *12-13. Nonetheless, the court, in dicta, in a two paragraph footnote and with little analysis, states that, in determining that a death sentence was warranted using a preponderance standard, the jury "was simply selecting the appropriate sentence from a range of penalties that already included the death penalty." Id. 2001 U.S. App. LEXIS 25329 at *13 n.6. It is highly significant to the analysis, however, that neither the parties nor the court even cited, much less discussed, Johnson in their briefs or opinion. n23
The majority and I agree on at least one point, namely, that the State need not charge in the indictment that the aggravating circumstances that it alleges outweigh any mitigating circumstances. I do not agree, however, with the majority's view that the "incongruity of applying Apprendi to this process is particularly apparent with respect to the requirement that, if the determination that aggravating circumstances outweigh mitigating circumstances is treated as an element that must be proved by the State beyond a reasonable doubt, it also must be sufficiently alleged in the indictment." Maj. op. at 36-37. There is no need to allege intent to seek the death penalty in an indictment, or to include aggravating factors and mitigating factors in an indictment, because the Fourteenth Amendment has never been construed to include the Fifth Amendment right to "presentment or indictment of a Grand Jury." See Apprendi, 530 U.S. at 476 n.3, 120 S. Ct. at 2355 n.3, 147 L. Ed. 2d 435. Furthermore, adequate notice, for the purpose of due process analysis, is provided for in the requirement that the State file a notice of its intent to seek the death penalty. See Article 27 § 412(b)(1). [*140] Simply because the indictment ramifications of Apprendi are inapplicable to Maryland death penalty cases does not mean that the logic is also inapplicable.

McCarthy v. Texas, 2001 Tex. Crim. App. LEXIS 127 (Tex. Crim. App. 12/12/2001) Appellant's invocation of her right to counsel was violated.

Appellant argues on appeal that her statement was inadmissible because Bishop approached her and initiated further contact after she invoked her right to counsel. She is correct.
Once a suspect has invoked the right to counsel during questioning by law enforcement, the Fifth Amendment right to counsel has been invoked and all interrogation by the police must cease until counsel is provided or the suspect reinitiates conversation. See Edwards v. Arizona, 451 U.S. 477, 484- 85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Miranda, 384 U.S. at 474; Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim. App. 1995).
This is a clear, "bright line" constitutional mandate frequently repeated by the United States Supreme Court. See Minnick v. Mississippi, 498 U.S. 146, 150, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990) (tracing the historical reiterations of the rule and noting that "the merit of the Edwards decision lies in the clarity of its command and the certainty of its application"). This bright and unbending rule "conserves judicial resources which would otherwise be expended in making difficult determinations of [*7] voluntariness, and implements the protections of Miranda in practical and straightforward terms." Miranda, 498 U.S. at 150. n5 State courts are not free to deviate from the firm constitutional mandate set out in Edwards.
There is no evidence in this record that appellant consulted with counsel before Detective Bishop questioned her. There [*8] is no evidence in this record that appellant herself affirmatively reinitiated conversations with law enforcement. The State does not argue that appellant waived her right to counsel in either of these modes. Instead, the State contends that Bishop did not, in fact, coerce or badger appellant into making a written statement, and therefore, the underlying purpose of the Edwards rule was fulfilled. That may be true. However, the Edwards rule acts as a "clear and unequivocal" guideline to law enforcement precisely because it is "relatively rigid." See Arizona v. Roberson, 486 U.S. 675, 681, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). When a person subjected to custodial interrogation unambiguously invokes the right to counsel, all questioning must cease. Interrogation may not be reinitiated by the police n6 at any time or in any manner unless the person has consulted counsel. Id. at 681-82. Period.
The State also argues that Detective Bishop did not know that appellant had invoked her right to counsel. Whether or not Stallings informed Bishop of appellant's invocation of her right to counsel is irrelevant because courts impute knowledge of the invocation of any Miranda rights to all representatives of the State. See Michigan v. Jackson, 475 U.S. 625, 634, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986); Sterling v. State, 800 S.W.2d 513, 520 (Tex. Crim. App. 1990). Moreover, Stallings' sworn testimony revealed that he informed Bishop that appellant invoked her right to counsel and that Stallings ceased his interrogation of appellant after that invocation.
In sum, the Edwards rule does not take into account the good intentions of the individual police officer, the lack of official coercion or badgering in the particular case, or the actual voluntariness of a person's custodial statement. Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers. We hold, therefore, that the trial court erred in admitting appellant's statement into evidence.

SUPREME COURT CASES & NEWS

No cases noted.

POSITIVE CAPITAL CASE RESULTS

See above

CAPITAL CASES - RELIEF DENIED

Ex parte State of Alabama (In re: William A. Snyder, a/k/a Corky Snyder v. State), 2001 Ala. LEXIS 454, * (Ala 12/14/2001) When "the trial court in this case informed the jury that the prior-conviction evidence had "one purpose" and that that purpose was to determine credibility; consequently, it eradicated the necessity of informing the jury that it would be improper to use the evidence as substantive evidence of guilt. The unambiguous instruction adequately cautioned the jury, explicitly stated the sole purpose of the testimony, and eliminated the risk that the evidence would be used improperly."

Oken v. Maryland, 2001 Md. LEXIS 942 (Md. 12/13/2001) Apprendi v. New Jersey does not invalidate Maryland capital punishment law.

Randolph v. Nevada, 2001 Nev. LEXIS 84; 117 Nev. Adv. Op. No. 80 (Nev 12/14 2001) Although the prosecutorial mischaracteriation if the reasonable doubt standard in closing argument was improper, the error was harmless.

Simmons v. Mississippi, 2001 Miss. LEXIS 316, * (Miss 12/13/2001) Denial of claimed trial court error relating to: the defendant's constitutional right to present a defense; excluding a videotape of the defendant made hours after the commission of the crimes in which the defendant discusses the crimes and exhibits remorse for his part in committing them; the prosecution's engaging in misconduct requiring reversal; submission to the jury the aggravating circumstance that the defendant knowingly created a great risk to many persons; erred by requiring the defense to exercise some of its peremptory challenges prior to the prosecution tendering twelve accepted jurors; committed numerous reversible errors during the "death/life" qualification component of voir dire; &, erred by allowing the prosecution to obtain a promise from prospective jurors to return a specific verdict under a specific set of circumstances, & as well as impermissible limitation on the right to an appeal.

Neill v. Gibson, No. 00-6024 (10th Cir. 12/07/2001) (on rehearing) Relief denied on "the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment."

Evans v. Florida, 2001 Fla. LEXIS 2291 (FL 12/13/2001) Relief denied on "Evans claims that: (1) the trial court erred in denying Evans' motion to quash the indictment or dismiss the charge; (2) reversal is required under Anderson v. State, 574 So. 2d 87 (Fla. 1991), because the State's testimony at trial contradicted the case it presented to the grand jury; (3) the trial court erred in excluding the testimony concerning cannabanoids in the victim's blood; (4) the trial court erred in limiting the cross-examination of Detective Brumley to exclude hearsay; (5) the trial court erred in closing individual voir dire to Evans' family; (6) the trial court erred in denying Evans' motion for a statement of particulars and in allowing the State to argue in the alternative that Evans was the shooter or a principal; (7) the State's closing argument comments during the guilt phase were reversible error; (8) the State's voir dire examination of the jury regarding the testimony of coconspirators or codefendants constituted fundamental error; (9) Evans' death sentence is disproportionate; (10) Evans' death sentence is either disproportionate or unconstitutional because the State presented the jury with the alternative theories that Evans was either the shooter or a principal; (11) the State's closing argument comments during the penalty phase were fundamental error; (12) the trial court erred in giving no weight to valid mitigation; (13) the trial court erred in imposing the death penalty when the jury made no unanimous findings of fact as to death eligibility; (14) the trial court erred in finding that the murder was both cold, calculated, and premeditated and that the murder was committed for pecuniary gain (improper doubling)."

USA v. Lee, 2001 U.S. App. LEXIS 26538 (8th Cir 12/14/2001) Death sentence reinstated on appeal. "The United States [successfully] argue[d] on appeal that the district court abused its discretion in ordering a new penalty trial because (1) individuals have no enforceable rights in the DOJ death penalty protocol, (2) the district court did not commit error, much less plain error, in admitting testimony concerning Lee's past bad acts and potential psychopathy on cross examination and rebuttal, (3) the district court should not have applied Federal Rule of Evidence 611(b) in its post hearing analysis of the evidence at Lee's capital sentencing hearing, (4) Lee had no right to advance notice of the evidence the government would introduce at the penalty phase, and (5) the government's evidence was not limited by its prehearing statement or acceptance of jury instructions."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

USA v. Desir, No. 00-2423 (1st Cir 12/10/01) Under Fed. R. Crim. P. 33, defendant, who failed to state that he knew a juror after juror gave his name and occupation and others notified defendant of the past acquaintance, may not seek a new trial based on "newly discovered evidence".

USA v. Ferrera, No. 00-14723 (11th Cir 12/11/01) Hostage Taking Act, 18 USC 1203, which penalizes only aliens, meets constitutional muster under Article I and Due Process.

Hutto v. Weber, No. 00-3529 (8th CIr 12/14/01) Sixty year prison term for attempted escape does not violate the proportionality rule of the 8th Amendment even if prisoner's prior crimes were non-violent.

Johnson v. Howard, 2001 U.S. App. LEXIS 26666 (6th Cir 12/12/2001) Prisoner's rights verdict affirmed. "Howard appeals the entry of a jury verdict of $ 330,000 against him and in favor of Plaintiff Richard Johnson in Johnson's prisoner civil rights case. Howard claims that the verdict is duplicative, grossly excessive beyond the bounds of due process, and disproportionate to his ability to pay. He also contends that the jury was influenced by passion and prejudice and by the bias and improper conduct of the trial judge."

Huizar v. Carey, 2001 U.S. App. LEXIS 26569 (9th Cir 12/14/2001) A petitioner's claim that he dropped his petition in the prison mail box creates a rebuttable presumption of timeliness, even if the court claims never to have received the documents.

FOCUS

The Focus this week is the year that was. TheDeath Penalty Information Center(http://www.deathpenaltyinfo.org), likewise, has released their annual report from which a large section of what follows was drawn:

  • Executions in 2001 down 33% over the past two years to 66. (AI USA);
  • Public support for the death penalty, down to the lowest levels since the reintroduction of capital punishment, with less than half supporting capital punishment when given the option of life without the possibility of parole. (Gallup);
  • Death row USA down slightly for the second year in a row (NAACP LDF);
  • A majority of Americans now favor a moratorium (ABC News & DPIC);
  • Five additional states passed bans on executing the mentally retarded (DPIC);
  • Seventeen states passed laws permitting greater access to DNA testing (DPIC);
  • Studies in Indiana, Nebraska, New Jersey, and North Carolina concluded that race still has an impact on the decision of whether a person is sentenced to death (DPIC);
  • Vacateur of the death sentence of Mumia Abul-Jumal;
  • The intermittent Hunger Strike at Polunsky is again on.Roy Pippinsince November 26, 2001 has been striking out with the only tool he has left, his own potential death by starvation (Rick Halperin);
  • Five persons were released due to innocence (DPIC); and
  • Three commutations occurred in 2001, the highest number since the reintroduction of capital punishment (DPIC).

The reason for the drop in executions appears to be due to the sharp decrease in the execution rate appears to be a drop in the rate of executions in Texas.

  • The first (and second) federal executions since the Kennedy presidency occurred with the executions of Timothy McViegh & Juan Garza (Reuters);
  • Executions for the first time in a generation in both New Mexico & Ohio (Reuters);
  • Oklahoma's increased by 80% in 2001 from 11 in 2000 to 18 in 2001 (AI USA); and
  • The long anticipated "Innocence Protection Act" has been tabled in the Congress (Roll Call).

Released for innocence this year includes (DPIC):

  • Charles Fain (Idaho)
  • Peter Limone (Massachusetts)
  • Gary Drinkard (Alabama)
  • Joaquin Martinez (Florida)
  • Jeremy Sheets (Nebraska)

Those executed this year include:

ERRATA

TheDeath Penalty Information Centerreports:

Birmingham Post-Herald Investigates Race and the Death Penalty in Alabama
A 5-part investigative series by the Birmingham Post-Herald recently explored the role race plays in Alabama's capital punishment system. Part one of the series focused on Talladega County, which has sent 14 men to death row, half of whom were black. Although 31.5% of the county's population is black, the district attorney and all of its judges are white. The trend is similar in the rest of the state. The series noted that 26% of Alabama's population is black, but the state does not have a single elected black district attorney. In addition, only 4% of criminal court judges are black and none of the Alabama Court of Criminal Appeals or Alabama Supreme Court Justices are black. However, 66% of all prisoners and 46% of the state's death row are black, and 16 of the 23 inmates executed in Alabama since 1976 were black.
In addition, there is a disproportionate percentage of blacks sentenced to death for killing whites. Of all the homicides committed by blacks in the past five years, 11% were committed against whites, yet 57% of the blacks on death row are there for killing whites. The series also noted that only 43% of black inmates are on death row for killing other blacks, even though 89% of homicides committed by blacks are against blacks. "I would be dishonest if I said it doesn't matter if you are African American," said Barrown D. Lankster, who was Alabama's only black elected district attorney in the 1990s. "It matters in this state, and it matters in this country. It matters because you have individuals who are making the decision to pursue the death penalty, and they bring their own biases to that." Read the Series, "Execution of Justice." See also, Race and the death penalty.
International Developments
Pakistani President Musharraf announced on December 13 that he will commute the death sentences of approximately 100 young offenders to life imprisonment.
President Emile Lahoud of Lebanon expressed his commitment to imposing a moratorium on executions while he is in office.
(Amnesty International, 12/13/01) See also, International death penalty.
NEW RESOURCES
The latest edition of the Angolite, published by the inmates at the Louisiana state penitentiary, contains articles about the death penalty, including the cover story on a new movie, "Monsters Ball," which was filmed at Angola earlier this year and will star Sean "Puffy" Combs, Billy Bob Thornton, Halle Berry, and Heath Ledger. (The Angolite, June/July/August 2001)
American Friends Service Committee (AFSC) has released two new publications: "In a Time of Broken Bones: A Call for Dialogue on Hate Violence and the Limitations of Hate Crimes" and "After September 11: Standing on the Brink of a 'Brave New World.'" For ordering information or free downloads of these publications, visit AFSC's Web site.
Judge Orders New Sentencing Hearing for Mumia Abu-Jamal
U.S. District Judge William Yohn overturned Pennsylvania death row inmate Mumia Abu-Jamal's death sentence. The judge cited problems with the jury charge and verdict form in Mumia's trial nearly 20 years ago, saying jurors should have been able to consider mitigating circumstances during sentencing even if they did not unanimously agree that those circumstances existed. Judge Yohn denied all of Abu-Jamal's other claims and refused his request for a new trial. The state must now conduct a new sentencing hearing within 180 days or Abu-Jamal will be sentenced to life imprisonment. They can also appeal Judge Yohn's ruling. (Associated Press, 12/18/01) Read the opinon.
Chicago Tribune Series Investigates False Confessions
A new Chicago Tribune investigative series examines false confessions and the reasons behind them. Their investigation of murder cases filed in Cook County, Illinois since 1991 found at least 247 cases where suspects confessed, but the charges against them were dropped, the confession was thrown out, or the defendant was acquitted. The Tribune found that police obtained confessions from men who were in jail when the crime occurred. Some confessions were refuted by DNA evidence or contradicted by the facts of the crime. In one case, two teenagers confessed to shooting a man from across the street when the actual bullet was fired point-blank, and in another case a teenager confessed to shooting a man point-blank, when the bullet was fired form a distance. Yet another teenager confessed to stabbing a woman, but the autopsy found no stab wounds. (Chicago Tribune, 12/16/01) Read the series, "Cops and Confessions." See also, Innocence.
Executions, Death Sentences, Death Row and Public Support All Decline - DPIC Issues Year End ReportExecutions in the U.S. dropped for the second consecutive year to their lowest level in 5 years according to a report from the Death Penalty Information Center. With no more scheduled this year, there were 66 executions in 2001, down from 85 in 2000 and 98 in 1999. The Bureau of Justice Statistics, in a report on the year 2000, also noted a significant drop in death sentences in 2000 as compared to 1999 and 1998. This is the lowest number of death sentences in 20 years. DPIC's report noted that public support for the death penalty has declined, from a high of 80% in 1994 to 65% in 2001, according to Gallup Poll results. (New York Times, USA Today, Reuters, 12/14/01). DPIC's report states that the population of death row has decreased since the beginning of this year, according to statistics from the NAACP Legal Defense Fund (see below). (Also see DPIC Press Release).

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

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FAX IT! A new update feature is being offered. Several courts are unable to post their decisions on the net & they don't appear in Westlaw or Lexis until months well after publication & therefore they wont appear here. Your help is needed. Feel free to telefax any opinion (or even winning motion) you think may be germane to (617)249-0219 or (617)249-0557 which have been set up to turn your fax into a document file so that it can be used

RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

DISCUSSION LIST FOR LEGAL PROFESSIONALS:A discussion list for legal professionals invoved with capital litigation has been formed. The list is private & limited to just legal professionals at this time due to the natue of the conversations. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe:capitaldefense-subscribe@onelist.com

NOTICES, DISCLAIMERS & CREDITS

DISCLAIMER:Karl R. Keys, Esq*, is an attorney duly admitted in the Commonwealth of Massachusetts. This weekly has been prepared for educational & information purposes only save as noted below. Pursuant to the applicable rules governing attorney conduct this weekly & related website may or may not be construed as legal advertising, however, at of an abundance of caution please treat it as such. No claim as to legal specialization within the meaning of that term as applied lawyer advertising is made as no certification body exists in the Commonwealth, or elsewhere, to make such a specialization finding. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html. Submissions related to this letter may be reproduced without further notice.Translation:Reading this newsletter & writing to me does not make me (or those I work with, for or for me) your lawyer. Although I'm not taking on any additional capital clients, to be on the safe side I am complying with Massachusetts lawyer advertising rules. If you are in a jam call a lawyer in your state.

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WARNING:Although the news letter & related web site are award winning and used as a resource by many, be forewarned it is usually written under the influence of extrreme caffeination at very late hour of the night/morning by someone who is well out of the mainstream of the American body poltic. Perfection takes time that doing this newsletter on a weekly basis for free, on top of a busy work week & practice schedule, simply does not allow. Please use caution before citation, which is why Lexis cites are used (see Lexisone.com on how to plug into that fantastic database system) to allow a quick double check, especially for the noncapital cases that are heavily dependent on Findlaw's weekly newsletter, a newsletter notoriously wrong on the law.

CREDITS & PUBLICATION INFORMATION: ISSN: 1523-6684