The notable news of this edition focuses on the end of the year stay flurry. Three stays were had (two in Texas, one in Virginia) on the use of pancuronium bromide as one of the chemicals used in the lethal injection cocktail. Bobby Lee Hines in Texas was stayed on the basis of a mental retardation claim. In Georgia, just hours before the scheduled execution of Eddie Crawford, the state Supreme Court agreed to hear his appeal to have several pieces of possible blood evidence tested for DNA. In Oklahoma Hung Thanh Le, a Vietnamese foreign national on the state's death row received a stay to permit the Governor to more fully consider a clemency request. (Note that the Supreme Court issued a stay for Kevn Zimmerman in Texas just 20 minutes before his scheduled execution on the lethal injection challenge but has has since lifted the stay). More will be posted on the stay developments as they unfold.

The Louisianae Supreme Court inLouisiana v. Cisco, vacated both conviction and sentence due to counsel's confict of interest. Most notably, the Court goes through a solid review of the law in this area, as well as practical suggestions for how to handle such problems for both that state's lower courts and counsel in general. The Cisco Court's suggestions, in light of the reality of conflict of interests that burden day to day trial work, makes this case the "Hot" case of the week.

Elsewhere, Stephen Bright of the Southern Center for Human Rights has been named Newsmaker of the Year by the Fulton County Daily Report for his "unrelenting efforts over the years to expose Georgia's shortfalls in indigent defense." Darnell Williams, who was at one point three days from execution when then Governor Frank O'Bannon issued a stay to allow the DNA testing of blood at the crime scene, has had DNA tests come back supporting his claims of innocence. On December 9, 2003, Nicholas James Yarris of Pennsylvania became the 10th person to be exonerated from death row in 2003, equalling the most exonerations in a single year since the death penalty was reinstated.

EXECUTION INFORMATION

Stayed since the last edition.

December

9 Billy Vickers Texas

10 Kevin Zimmerman Texas

10 Eddie Crawford Georgia

11 Bobby Lee Hines Texas

18 James Reid Virginia

January

6 Hung Thanh Le Oklahoma----foreign national

Upcoming execution dates include:

January

6 Ynobe Matthews Texas---volunteer

6 Charles Singleton Arkansas

6 Karl Roberts Arkansas

9 Raymond Rowsey North Carolina

13 Tyrone Darks Oklahoma

14 Kenneth Bruce Texas

14 Lewis Williams, Jr. Ohio

21 Kevin Zimmerman Texas

SUPREME COURT

Maryland v. Pringle, --- U.S. --- (12/15/03) Cocaine found in the back seat of a car when defendant was a front-seat passenger held sufficient to establish probable cause for an arrest for possession, thus defendant's arrest did not violate the Fourth and Fourteenth Amendments.

Castro v. United States, --- U.S. --- (12/15/03) Pro se litigant's motion was ambigious as to whether it was a post-conviction motion. Such a motion can not be held to be a first § 2255 motion unless the district court first informs the movant of its intent to treat it as a § 2255 motion and that any subsequent § 2255 motion may be subject to the restrictions on "second or successive" motions. In such circumstances an opportunity to withdraw the motion or to amend must be granted to permit it to contain all possible § 2255 claims movement believes he has.

HOT LIST

Louisiana v. Cisco, 2003 La. LEXIS 3434 (LA 12/3/2003) Cisco "did not knowingly and intelligently waive his right to conflict-free representation by appointed counsel."

On appeal, the defendant claims that Oubre labored under a conflict of interest, in that, at or around the time of trial, Oubre represented "Lucky" DeLouche in what defense counsel alternately termed "an unrelated civil matter" or "a family law matter." Defense counsel also represented DeLouche's wife in what counsel referred to as a "separate family law matter."

The right of a criminal defendant to the assistance of counsel during the proceedings against him is a cornerstone of our legal system. State v. Franklin, 400 So. 2d 616, 620 (La. 1981). "To be more than just a hollow right, our law requires that assistance of counsel be effective." Id. As a general rule, therefore, Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant she is representing. Id. [*29]

The issue of conflicting loyalties usually arises in the context of joint representation, but it can also arise "where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney." State v. Tart, 93-0772, p. 19 (La. 2/9/96), 672 So. 2d 116, 125; State v. Kirkpatrick, 443 So. 2d 546, 552 (La. 1983). In a pretrial context, regardless of how the conflict of interest issue arises, the trial court has two options to avoid a conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel. Tart, 94-0772 at 19-20, 672 So. 2d at 125 (relying on Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)); State v. Edwards, 430 So. 2d 60, 62 (La. 1983); State v. Marshall, 414 So. 2d 684, 687-88 (La. 1982). Failure to do one or the other in a case in which an actual conflict exists requires reversal. Holloway, 435 U.S. at 480, 98 S. Ct. at 1181; [*30] State v. Carmouche, 508 So. 2d 792, 805 (La. 1987) (on reh'g). As we stated in Franklin, 400 So. 2d at 620, "If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby." n18 Accordingly, in this case we are called upon to determine whether an actual conflict of interest existed and, if so, whether the defendant knowingly and intelligently waived his right to conflict-free counsel and whether the trial court took adequate steps to assure that defendant was afforded the very important requisite that the defendant's representation be conflict free.

After the court has been alerted that an actual conflict of interest exists, the judge must take the proper steps to assure that the defendant's Sixth Amendment right to effective assistance of counsel is not violated. Carmouche, 508 So. 2d at 804. As noted above, when a defendant raises the issue of a conflict of interest prior to trial, the judge is required either to appoint [*37] other counsel or to take adequate steps to determine whether the risk of a conflict of interest is too remote to warrant other counsel. State v. Edwards, 430 So. 2d 60, 62 (La. 1983) (quoting Holloway v. Arkansas). Those steps were set forth in Carmouche, wherein we determined that the judge, while being mindful of the restrictions inherent in the attorney/client privilege, should first require the attorney to disclose the basis of the conflict. 508 So. 2d at 805. Then, "if the judge determines that the conflict is not too remote, he should explain the conflict to the defendant . . . and inform the defendant of his right to representation that is free of conflict." Id. Thereafter, if the defendant chooses to proceed with conflicted counsel, "a statement should be prepared in narrative form, which indicates that the defendant is fully aware of his right [to conflict free counsel] but has chosen to make a knowing and intelligent waiver thereof. Id. (citing United States v. Winkle, 722 F.2d 605 (10th Cir. 1983), and United States v. Martinez, 630 F.2d 361 (5th Cir. 1980)); see State v. Odle, 2002-0226, pp. 19-20 (La. App. 3d Cir. 11/13/02), 834 So. 2d 483, 497; [*38] State v. Sartain, 98-0378, pp. 11-12 (La. App. 4th Cir. 12/1/99), 746 So. 2d 837, 846; see also United States v. Schwarz, 283 F.3d 76, 95 (2d Cir. 2002); United States v. Kliti, 156 F.3d 150, 153 (2d Cir. 1998).

We stress the importance of the trial judge's protecting the defendant's Sixth Amendment rights, even if a defendant expresses a desire to proceed with conflicted counsel. Because courts "possess an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that the legal proceedings appear fair to all that observe them[,]" Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140 (1988), the defendant's ability to waive certain conflicts is not unfettered. n20 Id. For example, in United States v. Fulton, 5 F.3d 605, 612 (2d Cir. 1993), the court stated, "When a lawyer's conflict, actual or potential, may result in inadequate representation of a defendant or jeopardize the federal court's institutional interest in the rendition of a just verdict, a trial judge has discretion to disqualify an attorney [*39] or decline a proffer of waiver." Nonetheless, a trial court ruling on potential conflicts when raised pretrial is entitled to broad discretion, regardless of whether the court permits or refuses enrollment of potentially conflicted counsel after a valid waiver. Wheat, 486 U.S. at 164, 108 S. Ct. at 1700.

This court has previously set forth the requirements for a knowing and intelligent waiver of the right to counsel unburdened [*40] by a conflict of interest. Before a defendant can knowingly and intelligently execute a valid waiver of conflicted counsel he must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Sartain, 98-0378 at 12, 746 So. 2d at 846 (citing State v. Castaneda, 94-1118, p. 5 (La. App. 1st Cir. 6/23/95), 658 So. 2d 297, 301)); see also United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975); State v. Salinas, 97-0716, p. 5 (La. App. 3d Cir. 10/29/97), 703 So. 2d 671, 674; Duncan v. Alabama, 881 F.2d 1013, 1017 (11th Cir. 1989). n21

Applying the waiver requirements to the instant case, we find the waiver was not knowingly and intelligently entered into, nor did the trial court adequately facilitate such a waiver by ensuring that the defendant was fully informed of the consequences of proceeding with conflicted counsel. As to the first requirement, the defendant did have notice that a potential conflict of interest existed. However, as discussed below, the defendant was clearly left on his own in determining whether an actual conflict of interest existed. The defendant was, troublingly, presented with contradictory viewpoints. On one hand, the defendant's primary attorney was insisting there was no conflict of interest. On the other hand, the trial court apparently recognized that there might be a conflict of interest, but took no steps to inquire of counsel as to the particulars of her representation of the prosecution witness and his wife, nor for that matter her representation of the other VCTF detective, other than to accept at face value counsel's statement that the representations of Delouche and his wife were separate family matters.

As to the second requirement, the court explained one of the potential [*42] consequences of continuing with current defense counsel when it addressed some of the potential problems counsel might have cross-examining one of her clients in an attempt to gain acquittal of the defendant. However, in her letter to the defendant seeking a waiver of his right to conflict-free counsel, Oubre expressed the unsupported conclusion that her representation created no conflict of interest. At no time did counsel shed any light on the nature of her representation of either DeLouche or his wife other than to say that it was in "separate family law matters." n22 The district court made no inquiry of counsel regarding the nature of the matters in which she represented DeLouche and his wife. Nor did the district court ever inquire of counsel as to the substance of the Lorenzi letter. Moreover, although at the arraignment on October 13, 1998, the district court acknowledged that going "into a lengthy discourse with [the defendant] about what he understands about the conflict and putting more of that on the record . . . may be required under Wheat[,]" the court never engaged in such discourse with the defendant. Consequently, despite the fact that DeLouche's significant [*43] involvement in the defendant's case was readily apparent each time the defendant purportedly waived any conflict of interest counsel Oubre had because of her dual representation of DeLouche and the defendant, neither Judge Godwin nor Judge Minaldi had taken appropriate steps to put themselves in a position to inform the defendant of the true nature of his counsel's conflict and any effects it could have on counsel's representation and her defense of his rights.

Finally, as to the third requirement, that the defendant be informed that he has a right to obtain other counsel, the record does not reflect that he was ever so informed. Notably, in the letter seeking a waiver from counsel Oubre to the defendant, the [*44] choice counsel presents is whether he wishes to continue with her representation or not. Oubre's letter makes no mention of the court appointing other counsel in the event that the defendant did not want her to continue representing him. Likewise, at the September 24, 1998 hearing, the trial court mentioned only a potential peril of proceeding with conflicted counsel; it failed to set out any alternatives for the defendant to consider. At arraignment on October 13, 1998, the trial court did not even engage the defendant in a colloquy much less advise him of his right to be appointed conflict-free counsel. The trial court again failed to make such an advisement in November of 1999, when the defendant's allegations of collusion between DeLouche and Oubre surfaced.

Finally, we note that had the defendant decided to exercise his right to conflict-free counsel, the trial judge in this particular case could have taken a number of simple steps to safeguard the defendant's Sixth Amendment rights. See Carmouche, 508 So. 2d at 806, Lemmon, J., concurring on reh'g. In the instant case, for example, the trial judge could have easily appointed another attorney to represent the [*45] defendant, since on each occasion when the issue arose trial would not transpire for many months or years in the future. n23 Alternatively, the trial judge could have ensured that the cross-examination of Detective DeLouche was conducted by the "second chair" attorney, who was not similarly conflicted.

Conflicts of counsel, whether actual or potential, as well as unknowing waivers of conflicted counsel, take a heavy toll on the integrity of our judicial system and the public's confidence in the bench and bar. Because the record in this case does not establish that the defendant [*46] knowingly and intelligently waived his right to the assistance of conflict-free counsel, we reverse the defendant's convictions and sentence.

CAPITAL CASES (Favorable Disposition)

Commonwealth v. Boxley, 2003 Pa. LEXIS 2357 (PA 12/17/2003) Death sentence vacated for failing to allow proper "life" qualifying questions under state statute:

It is well settled that "whenever a juror's views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath, he is properly excluded from the jury." Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 48 (Pa. 1997) (quoting Commonwealth v. Jasper, 531 Pa. 1, 610 A.2d 949, 953 (Pa. 1992)) [*9] (internal quotation omitted). Here, the trial court collectively conducted general voir dire regarding preliminary matters. Then, instead of permitting defense counsel to conduct individual voir dire, the court collectively asked the panel questions regarding the imposition of the death penalty, as well as other life qualification questions. n4 The trial court phrased these questions to identify only those potential jurors who responded affirmatively. During this general questioning, eleven venirepersons affirmatively responded that because of some moral, religious, or ethical belief, they would not impose the death penalty. In addition, numerous other venirepersons responded affirmatively to other general questions. Prior to the commencement of jury selection, the court ruled--over appellant's objection--if no venirepersons responded affirmatively to general life qualification questions, there would be no further questioning regarding the death penalty during individual voir dire. None of the venirepersons responded affirmatively to any life qualification questions posed by the court.

Counsel were then permitted to conduct sequestered individual voir dire of all 75 venirepersons regarding affirmative responses they may have made to general questions, or notations made on a prospective juror's information questionnaire that called into question their beliefs regarding the death penalty. Despite the court's ruling to the contrary, defense counsel were also permitted to individually voir dire some potential jurors regarding the death penalty and other life qualification questions, even though they did not respond affirmatively to the court's general life qualification questions. Although defense counsel was permitted to individually voir dire some potential jurors regarding life qualification, the manner in which individual voir dire was conducted, as a whole, does not comport with the requirements of Pa.R.Crim.P. 631(E). Defense counsel was not permitted to individually question all prospective jurors regarding the death penalty, notwithstanding whether they responded affirmatively to the life qualification questions posed by the court during general voir dire.

Such limitation of individual voir dire deprived trial counsel the opportunity to individually life qualify every venireperson to uncover bias or prejudice, and to exclude prospective jurors who had a fixed opinion and were unwilling to follow the law. In capital cases, the right to individual voir dire is mandatory, not discretionary, and cannot be limited in the interest of judicial economy.

The inadequacy of voir dire in this case requires that appellant's death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. See, e.g., Turner v. Murray, 476 U.S. 28, 37, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (1986) (death sentence vacated but conviction upheld after trial court erroneously refused to permit questioning of prospective jurors on racial bias). The error in this case was the undue restriction of appellant's ability to question venirepersons to uncover those who might harbor fixed opinions concerning imposition of the death penalty. The risk of such a venireperson serving on a petit jury is that the jury would be biased toward imposing a death sentence. In other words, the jury's sentencing discretion could be improperly swayed in favor of a death sentence once the jury found the defendant guilty. For such a juror to taint the guilt phase, one would have to assume a juror with a predilection for death sentences would be more likely than other jurors to wrongly convict an innocent defendant in order to indulge that predilection. We find this tenuous assumption an insufficient reason to overturn the jury's assessment of appellant's guilt. Accordingly, we vacate appellant's death sentence and remand for a new penalty hearing only.

Pennsylvania v. Rush, 2003, Pa. Lexis 2399 (PA 12/18/2003) Remand ordered to correct post-conviction trial court's failure to follow the state's PCRA statute by not setting forth with sufficient specificity reason for denying certain claims.

Arkansas v. Newman, 2003 Ark. LEXIS 644 (Ark 12/4/2003) Trial court ordered to conduct a competency hearing on Newman's desire to waive post-conviction proceedings.

CAPITAL CASES(Unfavorable Disposition)

Wilson v. Ozmint, 2003 U.S. App. LEXIS 25436 (4th Cir 12/17/2003) Grant of habeas reversed as to petitioner's ability to knowingly, voluntarily and competently plead guilty, as well as counsel's penalty phase performance (use of experts)

Tucker v. Ozmint, 2003 U.S. App. LEXIS 24270 (4th Cir 12/1/2003) Panel turns aside Tucker's claims "that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel (1) failed to provide the defense expert two documents relating to Tucker's childhood sexual abuse and (2) failed to discover that one of the State's three experts was subject to professional discipline at the time of trial. We issued a certificate of appealability on both of these claims. After further review, we find no error in the denial of habeas relief, and we affirm the judgment of the district court."

Kunkle v. Dretke, 2003 U.S. App. LEXIS 24737 (5th Cir 12/9/2003) Counsel did not fail to prepare and present mitigating evidence in the punishment phase of the trial. State's failing to record portions of voir dire did not result in a violation of any cognizable legal right.

Aldrich v. Dretke, 2003 U.S. App. LEXIS 24189 (5th Cir 12/1/2003) Relief denied on trial court's refusal to permit testimony, judicial instruction, or argument as to his 35 year period of ineligibility for parole violate. Teague held to foreclose any such rule even if the panel believed there was error.

Henderson v. Haley, 2003 U.S. App. LEXIS 25379 (11th Cir 12/16/2003) Petitioner held to have procedurally defaulted his claims. Two alternative arguments of "cause" to excuse his procedural default held not persuasive on claims: "(1) Henderson's waiver of his right to proceed under Alabama Rule 32 was not knowing, voluntary, and intelligent, because Henderson lacked a sufficient understanding of his rights and the actual legal claims being dismissed; and (2) Henderson's waiver was involuntary because it was the product of the undue influence of a Rule 32 counsel saddled by conflicting interests."

Orbe v. True, 2003 U.S. App. LEXIS 24896 (4th Cir 12/11/2003) (unpublished) At least one judge of the panel found five issues debatable under the reasonable jurist standard therefore COA granted on those issues. Relief subsequently denied on: "(1) whether the prosecutor's decision making was tainted by improper considerations of race, (2) whether the trial court improperly excused a venireman from jury service, (3) whether defense counsel was ineffective by unreasonably failing to protect Orbe from the prosecutor's improper considerations of race, (4) whether defense counsel was ineffective by unreasonably failing to challenge the exclusion of the venireman, and (5) whether defense counsel rendered ineffective assistance during the sentencing phase of Orbe's trial by unreasonably failing to investigate, obtain and present additional mitigating evidence."

Powers v. Mississippi, 2003Miss. LEXIS 850 (Miss 12/18/2003) Relief denied on claims that: "(1) the evidence of attempted rape was insufficient to support the capital murder charge; (2) ineffective assistance of trial counsel during the motion to suppress; (3) ineffective assistance of trial counsel during the guilt phase; (4) ineffective assistance of trial counsel during jury selection; (5) ineffective assistance of trial counsel for failing to have the capital murder charge reduced to simple murder or manslaughter; (6) ineffective assistance of trial counsel in instructing the jury; and (7) ineffective assistance of trial counsel during the sentencing phase."

Stevens v. Mississippi, 2003 Miss. LEXIS 822 (Miss 12/11/2003) Relief denied on claims relating to: (1) Constitutionality of the death penalty statutes; (2) proportionality of Stevens's death sentence; (3) evidence of diminished capacity; (4) limiting instructions on statutory aggravating circumstance; (5) use of testimony of spouse despite claim of marital privilege; (6) felony child abuse as an aggravating circumstance; (7) double jeopardy; (8) cumulative error; (9) proportionality; and (10) aggravating factors not charged in the indictment.

Skinner v. Texas, 2003 Tex. Crim. App. LEXIS 927 (Tex. Crim. App. 12/10/2003) Appellant failed to make the required showing to establish a reasonable probability that exculpatory DNA tests would prove the petitioner's innocence.

Padilla v. McDaniel, 2003 Tex. Crim. App. LEXIS 911 (Tex. Crim. App. 12/3/2003) Mandamus denied as to forcing the trial court to have DNA testing performed as the case should have been heard in the intermediate appellate courts.

Louisiana v. LeGrand, 2003 La. LEXIS 3438 (LA 12/3/2003) Relief denied on claims relating to: (1) the state failing to prove beyond a reasonable doubt that the defendant had the specific intent to kill or inflict great bodily harm at the time of the crime; (2) the evidence being insufficient to support the jury's finding at the penalty phase that the offense was committed in a heinous, atrocious or cruel manner; (3) a series of claims surrounding the state's principal witness testifying that he had passed a polygraph examination; & (4) proportionality.

Manns v. Texas, 2003 Tex. Crim. App. LEXIS 960 (Tex. Crim. App. 12/17/2003) Relief denied on: (1) sufficiency of evidence; (2) whether a certain snitch was a state actor; (3) impeachment of defendant with extraneous, unadjudicated bad acts; (4) impeachment of defendant with a questionably obtained video, & (5) legal sufficiency of future dangerousness determination.

Orndoff v. Arkansas, 2003 Ark. LEXIS 648 (Ark 12/4/2003) Evidence of petitioner's guilt so overwhelming to render witness's hypnotically enhanced testimony harmless as his identity was not substantially in issue.

Crawford v. Mississippi, 2003 Miss. LEXIS 755 (Miss 12/4/2003) Relief denied on whether: (1) Crawford was denied due process by the failure to disclose an F.B.I. report prior to trial; (2) the trial court erred in failing to suppress Crawford's confessions; (3) Crawford was improperly denied a timely appearance; (4) the form of the verdict as to aggravating factors was improper, thus requiring reversal of the sentence; (5) the venire was tainted due to the jury questionnaire mailing informing the identity of the defendant and victim; (6) at the inception of trial the diminished capacity of Crawford to assist counsel and the failure of the attorney client relationship should have been addressed by the trial court; (7) Crawford received ineffective assistance of counsel during the guilt & penalty phases of the trial; & (8) cumulative error.

North Carolina v. Miller, 2003 N.C. LEXIS 1410 (NC 12/5/2003) Claims denied on: (1) trial court's failing to intervene to prevent and correct the effects of improper cross-examination and closing argument by the State during the sentencing phase; (2) prosecutor's misstating the evidence during his cross-examination; (3) trial court's denying motion for a protective order requiring raw psychological test data pertaining to the defendant to be released only to qualified professionals retained by the State and alleged misuse of the raw psychological data during the State's cross-examination; (4) instructions that allowed double-counting of evidence and elements between statutory aggravating circumstances; (5) the prosecutor's argument that the murder was especially heinous, atrocious, or cruel; (6) counsel's failure to object or preserve error; (7) IAC relating to preparation and use of experts; (8) preservation issues & (9) proportionality.

North Carolina v. Smith, 2003 N.C. LEXIS 1415 (NC 12/5/2003) Claims turned aside relating to the: (1) admitting a hearsay statement of the victim at trial; (2) nonexpert testimony regarding the effects of ten milligrams of Valium; (3) trial court admitting testimony that defendant sometimes carried a pocketknife; (4) State's closing argument being unsupported by the evidence and being grossly improper; (5) denial of defendant's motion to dismiss as to sufficiency; (6) penalty phase comments on defendant's failure to testify; (7) trial court's failing to inquire whether defendant wished to testify at his sentencing proceeding; (8) whether trial court lacked jurisdiction to enter a death sentence against defendant because the indictment did not allege any aggravating circumstances; and (9) proportionality of punishment.

Brice v. Alabama, 2003 Ala. Crim. App. LEXIS 311 (Ala. Crim. App. 12/2/2003) To be covered next week.

McGowan v. State, 2003 Ala. Crim. App. LEXIS 314 (Ala. Crim. App. 12/12/2003) To be covered next week.

OTHER NOTABLE CASES

Padilla v. Rumsfeld, 2003 U.S. App. LEXIS 25616 (2nd Cir 12/18/2003) Habeas court has jurisdiction where it has power over the Respondent even if the Petitioner is physically being held in another district. Only Congress can authorize the detention of an American citizen seized on American soil incommunicado as an enemy combatant.

FOCUS

Back next edition

OTHER RESOURCES

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

Costly Death Penalty Takes Toll on State Budgets

A report in the Polk County (Florida) Lakeland Ledger examined the financial impact of costly capital trials on states that are struggling to make ends meet. The report noted that death penalty cases negatively impact county governments because the hundreds of thousands of dollars that is spent annually on capital cases takes away funding from crucial indigent care programs and other important services. As an example, the paper notes, "Take the case of Tavares Wright. The legal bill stands at $200,000 and a 3rd murder trial for the Lakeland man is pending after the first 2 ended in mistrials." During the early 1990's, two capital trials in Jefferson County, Florida caused significant debt for the county. The trials were so expensive that they forced significant cuts in the county budget, such as a freeze on employee raises and a 20% reduction in the library budget. The article notes that counties in Texas, Indiana, Georgia, and elsewhere face similar budget challenges. (Lakeland Ledger, December 14, 2003). See Costs.

Pentagon List Gives Names of 169 Military Members Who Were Executed

A list containing the names of 169 members of the U.S. military who were executed between 1942 and 1961 was recently discovered at the Pentagon. The list also contains a few dozen additional cases where persons were sentenced to death, but not executed, and the names of 7 German prisoners of war who were executed. The 1961 execution of Pvt. John Bennett, who was hung after convictions for rape and attempted murder, was the military's last execution. The ledger also includes the name of Pvt. Eddie Slovik, who is the only member of the U.S. military to be executed for desertion since the Civil War. The list was discovered by accident by Pentagon employees and was made public as the military prepares to try accused terrorists currently held at the detention center in Guantanamo Bay, Cuba. The death penalty is a possible sentence in such military tribunals. (Associated Press, December 12, 2003) See U.S. Military Death Penalty.

Murder Victims' Families for Reconciliation Releases Juvenile Report

On December 17, 2003, Murder Victims' Families for Reconciliation released a report regarding the perspectives of family members on the juvenile death penalty: "I Don't Want Another Kid to Die." The report opens a window into murder victims' families struggles with the death penalty in general, and more specifically, how the issue changes when the defendant is a juvenile. Read their Press Release. Read the Report (in PDF format).

DNA Test Casts Doubt on Death Sentence of Indiana Man

After 16 years on death row, Darnell Williams was 3 days from execution when then Governor Frank O'Bannon issued a reprieve to allow the genetic testing of droplets of blood found on Williams' shorts after the shooting. Recently released test results support Williams' claim that he wasn't present when a Gary, Indiana couple was fatally shot 17 years ago. Thomas Vanes, the prosecutor at Williams' 1986 trial, now says that Williams should not be executed. He said, "I agree now that this is not a death penalty case." (Indianapolis Star, December 13, 2003). See Innocence

New Jersey Legislators Vote to Study Death Penalty

Members of New Jersey's legislature have passed by a wide margin a bipartisan bill calling for the creation of a study commission to examine the cost, fairness and effects of capital prosecutions in that state. The bill had the support of key state legislators, including Republican Senator Robert Martin. Martin said that he believed it might be time for New Jersey to consider a complete ban on capital punishment, noting that the state's review process "is so cumbersome and expensive" that New Jersey might be better off "with a punishment that was life imprisonment without parole." Public opinion surveys show that many New Jerseyans agree with Martin. In a recent poll, public support for the death penalty drops to 36% when respondents are given the sentencing option of life without parole. Support for capital punishment in general has also sharply declined. According to the Eagleton Poll at Rutgers University, 76% of those questioned supported the death penalty in 1975, and in 1981, 73% stated support for the punishment. A 1999 poll revealed that support had declined to 63%. The study bill will now go to New Jersey Governor James McGreevey for his consideration and signature into law. (New York Times, December 14, 2003) Read the legislation. See Recent Legislative Activity.

NEW VOICES: Bill Cosby Addresses Capital Punishment During "Larry King Live" Appearance

During a recent appearance on CNN's "Larry King Live," comedian Bill Cosby addressed capital punishment and his experience as the father of a murdered child. Cosby noted:

"And when they said, 'Do you want, you know, the death penalty?' My wife was the first one. She said no. No, it's not for us to deal with the obvious. And my thought was, 'Hey man. They could poison, they could strap 1,000 of these people in the chair."

Larry King: "Isn't going to bring him back." (CNN.com Transcripts, December 10, 2003) See New Voices and Victims and the Death Penalty.

North Carolina Man Is Sixth in State to be Spared Under New Law on Mental Retardation

Anthony Maurice Bone will become the sixth North Carolina death row inmate to have his sentence commuted to life in prison due to a 2001 state law banning the execution of individuals with mental retardation. The state defines as mentally retarded anyone with an IQ of 70 or below who also has significant impairment in at least two of ten life activities, such as communicating and taking care of themselves. The law requires that defendants show signs of retardation before they turn 18. The U.S. Supreme Court banned the execution of those with mental retardation in its 2002 Atkins v. Virginia ruling. (News & Record, December 10, 2003). See Mental Retardation.

NEW VOICES: Former Supporter Will Oppose Any Measure to Restore Minnesota Death Penalty

Minnesota Senator Tom Neuville, the leading Republican committee member on the state's Senate Judiciary Committee, says he will oppose Governor Tim Pawlenty's efforts to reinstate death penalty. Neuville's basic opposition is moral: "If we solve violence by becoming violent ourselves, we become diminished." Neuville, a former death penalty supporter whose reexamination of his pro-life beliefs led him to change his mind on the issue, feels that many of his colleagues share his concerns. "Life is a gift from God. It isn't up to us to take it away," Neuville said. "Whether you take an innocent life of a baby, or of a person who has committed a heinous act, it is still an act at our hands, and it makes us a less caring and less sensitive society." Minnesota abolished the death penalty in 1911.(Minneapolis Star Tribune, December 7, 2003). See New Voices.

Four Executions in Texas and Georgia Stayed, Clemency Recommended for Foreign National in Oklahoma

Four stays were granted for executions that were scheduled to take place this week in Texas and Georgia, and Oklahoma's Pardon and Parole Board unanimously recommended clemency for a foreign national facing execution in January 2004. In Texas, courts ordered three stays of execution. Two of the cases involved challenges to the use of pancuronium bromide as part of the state's lethal injection process. A third case, that of Bobby Lee Hines, was stayed on the basis of a mental retardation claim. Attorneys for Texas death row inmates Billy Frank Vickers and Kevin Lee Zimmerman filed a suit stating that one of the lethal injection drugs, which has been banned by the American Veterinary Medical Association, violates the constitutional protection against cruel and unusual punishment. The Supreme Court issued a stay for Zimmerman just 20 minutes before his scheduled execution. Vickers' execution was put off by the state because of uncertainty of how the courts would rule. (Associated Press, December 11, 2003) Pancuronium bromide is used in 28 states that execute by lethal injection.

In Georgia, just hours before the scheduled execution of Eddie Crawford, the state Supreme Court agreed to hear his appeal to have several pieces of possible blood evidence tested for DNA. Attorneys for Crawford stated that the evidence must be tested based on a new law granting inmates greater access to post-conviction DNA-testing. Oral arguments in the case are expected to take place in February. (Atlanta Journal-Constitution, December 11, 2003).

The Oklahoma Pardon and Parole Board recommended clemency to Hung Thanh Le, a Vietnamese foreign national on the state's death row. The Board voted unanimously to recommend relief after hearing Le's claim that he did not have access to legal help from his embassy after being arrested and accused of murder, and that his original trial attorney failed to consider his client's post traumatic stress disorder as a possible defense. (The Oklahoman, December 10, 2003).

See Methods of Execution and Clemency.

PUBLIC OPINION: Polling Reveals Only a Minority of Americans Supports Execution of Juvenile Offenders

A series of public opinion polls reveals that only about a third of Americans support the death penalty as applied to those who are under the age of 18 at the time of their crime. Recent survey results include the following:

A fall 2001 National Opinion Research Center poll found that while 62% of respondents favored the death penalty in general, only 34% supported the execution of juvenile offenders. In a series of follow-up questions that further probed respondents about their positions, it was determined that the opposition to the juvenile death penalty is firmer (89.5% of respondents did not change their position) than support for the death penalty generally (67% unchanged after follow-up questions).

A similar 2001 poll conducted by Princeton Survey Research Associates revealed that while 72% of those polled supported the death penalty, only 38% supported it when applied to "juveniles younger than 18."

A May 2002 Gallup poll found 72% support for capital punishment in general, but that support dropped to 26% for juveniles convicted of murder, 19% for the mentally ill, and 13% for the mentally retarded.

(Tom W. Smith, Director of the General Social Survey, National Opinion Research Center, Chicago Tribune, December 7, 2003) See Public Opinion, Juveniles.

NEW VOICES: Author of Law Establishing Lethal Injection Reflects on Politicization of Death Penalty

Twenty-six years ago, Bill Wiseman drafted the first lethal-injection law in U.S. history, forever changing the way most death penalty states administer executions. He now says that guilt compelled him to draft the legislation after voting to reinstate the death penalty in Oklahoma despite the fact that he had always been an opponent of capital punishment. At the time, Wiseman was a first-term lawmaker in Oklahoma's assembly, and he knew opposing the state's 1976 measure to bring back capital punishment would be political suicide. Wiseman recalls, "I said, 'Oh jeez, I'm going to have to vote for this. I was back and forth on it. You've got to understand, I just loved being in the legislature." He notes, "It was one of those big moments in my life when I had the opportunity to show what kind of character I had and failed miserably." Wiseman is currently an administrator at the University of Central Oklahoma. (Washington Post, December 7, 2003) See New Voices.

PA Man Cleared by DNA Evidence--2003 Is Record-Tying Year for Exonerations

On December 9, 2003, Nicholas James Yarris of Pennsylvania became the 10th person to be exonerated from death row in 2003, equalling the most exonerations in a single year since the death penalty was reinstated. He is the nation's 112th death row exoneree. Yarris's conviction was initially overturned when three DNA tests of the forensic trial evidence excluded him. His exoneration became final when Delaware County prosecutors announced that they were dropping all charges against him. In July, attorneys for Yarris announced that DNA tests excluded him from the rape and murder for which he was convicted. Yarris, 41, has spent 21 years on Pennsylvania's death row, and has always maintained his innocence. Yarris is Pennsylvania's fifth death row exoneree since 1986, and he is the first person in the state to be freed based on DNA evidence. The state has executed three people since it reenacted the death penalty in 1974. The 10 death row exonerations in the U.S. in 2003 equals the highest number since 1973, when states began enacting new death penalty laws. Ten inmates were also freed in 1987. Of the 112 exonerations, 13 have been as a result of DNA evidence. Read DPIC's Press Release. See Innocence.

Protess Wins Puffin/Nation Prize for Creative Citizenship

David Protess, a professor at Northwestern University's Medill School of Journalism in Chicago, has been awarded the Puffin/Nation Prize for Creative Citizenship. Protess and his investigative journalism students exposed miscarriages of justice in a number of high-profile cases in Illinois, including the case of Anthony Porter, who was only 48 hours away from his execution until students found evidence of his innocence. Porter's case has often been cited by former Illinois Governor George Ryan, whose questions about innocence and systemic fairness led him to impose a moratorium on executions in Illinois shortly after Porter's exoneration. Protess said he will use a portion of the $100,000 prize to expand his investigations to other states and to establish a project to help ease the transition of exonerated inmates to daily life outside prison. When asked about his work, Protess noted, "Some people think it's inspiring. I think it's dismaying. Seniors in college should not be the last line of defense against an innocent person being executed." (Bob Herbert, New York Times, December 5, 2003). To date, 111 people have been exonerated from America's death rows. See Innocence.

Stephen Bright Named Newsmaker of the Year

Stephen Bright, Executive Director of the Atlanta-based Southern Center for Human Rights (SCHR), has been named Newsmaker of the Year by the Fulton County Daily Report for his "unrelenting efforts over the years to expose Georgia's shortfalls in indigent defense." Bright has worked in Georgia for more than 25 years. During that time, he has represented countless indigent defendants, many of whom have been on Georgia's death row, and he has led the Southern Center's fight to provide legal representation to those who are less fortunate. According to the paper, in large part because of Bright's work to expose the state's systemic flaws, "starting in 2005, every Georgia judicial circuit will have a public defender office providing representation to the poor, presumably ending a system that left Georgia with a 2-tier legal system - one for the poor, and one for those who could afford to pay lawyers." (Fulton County Daily Report, December 3, 2003) See Southern Center for Human Rights. See DPIC's report on representation.

Supreme Court to Hear Arguments in Banks v. Dretke

The Supreme Court will hear arguments in Banks v. Dretke on Monday, December 8, 2003. The Court will review the lower court's denial of relief despite evidence that Banks was poorly represented at his 1980 trial, that prosecutors withheld key information, and that testimony from two prosecution witnesses was unreliable. For more information about this case, please see DPIC's Banks v. Dretke page.

NEW RESOURCE: "Legacy of Violence"

"Legacy of Violence: Lynch Mobs and Executions in Minnesota," a book by John D. Bessler, examines the history of illegal and state-sanctioned executions in Minnesota, one of twelve states that currently does not have the death penalty. The book is timely in that the current governor, Tim Pawlenty, has proposed reinstating the death penalty, which was abolished in 1911. The book includes detailed personal accounts from those who were involved in the events, as well as a history of Minnesota's anti-execution and anti-lynching movements, a review of historical wrongful convictions, and an analysis of the role that the media played in the death penalty debate. The author recounts the details of the largest mass execution in the U.S. of 38 Native Americans in Mankato in 1862 at the order of President Lincoln, and the brutal lynching in Duluth of 3 African-Americans accused of rape.(University of Minnesota Press, 2003) See Resources.

NEW VOICES: Nobel Laureates Oppose Death Penalty, Decry Execution of Juvenile Offenders

A gathering of Nobel Laureates in Rome concluded with a common statement calling for abolition of the death penalty and specifically decrying the death penalty for juvenile offenders. The statement noted "the death penalty is a particularly cruel and unusual punishment that should be abolished. It is especially unconscionable when imposed on children." Among those in attendance at the summit were Mikhail Gorbachev, former Israel Prime Minister Simon Peres, the Dalai Lama, Mairead Corrigan Maguire, Lech Walesa, Betty Williams, Jody Williams, Costa Rican President Oscar Arias Sanchez, and a number of organizations that participated in the summit. (Fourth World Summit of Nobel Peace Laureates, November 30, 2003) Read more about the summit. See Juvenile Death Penalty and International Death Penalty.