Capital Defense Weekly, December 23, 2002
Two Texas cases lead off this edition, one capital and one non-capital. In the first of the pair,Herrin v. Texas, the Texas Court of Criminal Appeals holds the "evidence legally insufficient to support appellant's conviction for capital murder based on the aggravating elements of kidnapping and robbery." In the noncapital case,Ex Pate Tuley, the Texas Court of Criminal Appeals favorably examines free standing constitutional claims of actual innocence following Herrera.
Nine capital cases, several of which in a normal week would have been extensively highlighted, are also noted as wins covering: proportionality (North Carolina v. Kemmerlin), jury instructions penalty phase (North Carolina v. Berry), jury instructions guilt phase (North Carolina v Millsaps), ineffective assistance of counsel on jury instructions (Pirtle v. Morgan, ), penalty phase mitigation (Hooper v. Mulin), DNA testing (Illinois v. Kliner), Brady (Illinois v. Harris), Ring (Johnson v. Nevada), and sufficiency of evidence relating to aggravating circumstances (Leslie v. McDaniel). Additionally, two noncapital cases are noted of import,Schultz v. Page(relief granted on Ake ground with good habeas language) andCatalan v. Cockrell(failure to ask for a continuance held reversible error).
In the Focus section this week is Oregon Law Review's current editionWayne Morse Center for Law and Politics Symposium: The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform? The out takes from that edition, in light of the current issues of race and politics in the national political forum, isBlack Man's Burden: Race and the Death Penalty in America? by Professor Charles J. Ogletree, Jr., 81 Or. L. Rev. 15.
EXECUTION INFORMATION
The following executions dates for the next few weeks that are considered serious:*
January
2 Daniel Revilla Oklahoma
8 Ronald Foster Mississippi----juvenile
8 Daniel Revilla Oklahoma
14 Samuel Gallamore Texas
14 Bobby Joe Fields Oklahoma
15 John Baltazar Texas
22 Robert Lookingbill Texas
23 Elkie Taylor Texas
28 Alva Curry Texas
29 Richard Dinkins Texas
30 Granville Riddle Texas
February
4 John Elliott Texas
5 Bobby Cook Texas
12 Richard Fox Ohio
18 Gregory Van Alstyne Texas
25 Richard Williams Texas
26 Michael Johnson Texas
HOT LIST
Herrin v. Texas, 2002 Tex. Crim. App. LEXIS 238, (Tex. Crim. App. 12/18/2002) (dissent) "[E]vidence legally insufficient to support appellant's conviction for capital murder based on the aggravating elements of kidnapping and robbery."
Viewed in a light most favorable to the verdict, we cannot conclude there is sufficient evidence upon which a rational jury could find beyond a reasonable doubt that appellant formed the intent to commit a robbery before or at the time of the murder. The disappearance of the victim's wallet after the murder is not enough evidence upon which to support a verdict for murder committed in the course of robbery or attempted robbery. While appellant's belief that Wayne or his family owed him money might supply the motive for murder, it does not supply the evidence that appellant took the wallet.
The State cites Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994), in support of its argument that the evidence is legally sufficient to establish murder committed in the course of a robbery. In Robertson, the victim lived with her grandson who was a friend of the defendant. 871 S.W.2d at 704. The defendant killed the victim's grandson while outside of the victim's house. The defendant later told one police officer that he then went into the house to steal the grandson's drugs. In oral confessions, he also told police he searched the house for valuables, drugs and the title to the victim's car. In his written confession, the defendant stated that after shooting the grandson, he ran into the house, through the grandson's bedroom, into the grandson's bathroom where he splashed cold water on his face, and walked into the den where the victim was watching television, and shot her. Id. He then went into the victim's bedroom and looked through her jewelry, taking a watch. He returned to the grandson's room and took some drugs. Id. Finally, he drove off in the victim's car. The defendant challenged the sufficiency of the evidence to prove that he formed the intent to rob the victim during or prior to her murder. Noting that "[i]ntent may be inferred from the actions or conduct of appellant," we pointed out that the victim and her grandson had living quarters in separate parts of the house which could each be entered separately from the outside. Id. at 705. If the defendant had intended only to steal the grandson's drugs, he could have accomplished that objective without entering the victim's portion of the house. Thus, a rational inference could be made based on the defendant's actions that he entered the victim's portion of the house intending to look for the keys, title to the car and other valuables. Id. The instant case has little in common with Robertson. In Robertson, the victim's valuables could be linked directly to the defendant. He confessed to taking them and was found in possession of them after the murder. In the instant case, the victim's wallet was never found and there is no evidence linking appellant to the wallet.
The State also cites Zimmerman v. State, 860 S.W.2d 89 (Tex. Crim. App. 1993). In that case, the defendant claimed the evidence was insufficient to prove that he formed the intent to rob the victim before the murder. 860 S.W.2d at 92. The defendant's conviction was based in part on letters written by the defendant from jail. In one letter, the defendant wrote that the victim "had 4 or 5 hundred dolars (sic) on him and we were drinking so I decided to kill him and take his fucking money." Id. Because there was trial testimony that the victim's wallet was not taken until after an altercation in which the victim was stabbed, the defendant argued the evidence was insufficient to prove that his intent to commit the robbery was formed before the murder. We held the jury could rationally conclude the defendant had formed the intent prior to the murder, based on the defendant's statement in the letter. Id. at 93. In Zimmerman, like in Robertson, there is some evidence (i.e., confession, correspondence) upon which rational inferences could be made regarding the defendant's actions and linking the defendant with the missing items. In the instant case, any inferences would be based wholly on speculation arising from the missing wallet and appellant's belief that Wayne or the Martindales owed him money.
While direct evidence is not required to support a finding that the evidence is legally sufficient, the circumstances amount only to suspicion here. And we have previously emphasized that "[i]f the evidence at trial raised only a suspicion of guilt, even a strong one, then that evidence is insufficient." Urbano, 837 S.W.2d at 116-17 (holding evidence legally insufficient where it only raised "strong suspicion of guilt," but not proof to high degree of certainty under Jackson). Point of error three is sustained.
Because appellant concedes the legal sufficiency of the evidence to support his conviction for the lesser-included offense of murder, (10) we now consider reforming his conviction to the lesser-included offense of murder. See Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999).
In Urbano, 837 S.W.2d at 117, a capital murder case in which the evidence was held insufficient to support the defendant's conviction and a judgment of acquittal ordered, the State argued that the evidence was nonetheless sufficient to prove the lesser-included offense of murder and urged this Court to reform the judgment to murder. We rejected that argument, quoting Stephens v. State, 806 S.W.2d 812, 818 n.8 (Tex. Crim. App. 1990), cert. denied, 502 U.S. 929 (1991), for the proposition that "[t]his Court does not have authority to reform a conviction of a greater felony found to be based on insufficient evidence to [a] lesser felony, which the evidence will support." Stephens relied on former Rule of Appellate Procedure 80 in support of such proposition. Former Rule 80 provided in part that the courts of appeals may, among other things, "modify the judgment of the court below by correcting or reforming it." By citing Rule 80 and concluding that this Court had no authority to reform a judgment of a lower court on which we found the evidence to be insufficient, Stephens suggested that since Rule 80 granted courts of appeals a power of reform but did not make a similar grant to this Court, we did not have such power.
But the Rules of Appellate Procedure were amended in 1997, subsequent to Urbano. Newly promulgated Rule of Appellate Procedure 78.1 provides that the Court of Criminal Appeals may, among other things, "modify the lower court's judgment and affirm it as modified" or "reverse the court's judgment in whole or in part and render the judgment that the lower court should have rendered." Rule 78.3 further provides that the Court of Criminal Appeals "may make any other appropriate order required by the law and nature of the case." The language of this rule parallels that of the language in the current rule pertaining to the courts of appeals. (11)
After the passage of these rules, we addressed the question of reformation by courts of appeals in Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999). We held that
a court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense only if (1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction.
Id. at 782. We see no reason why these principles would not apply to this Court, particularly when we serve in our capacity as the "court of appeals" in the direct appeal of a death penalty case. See Bigby v. State, 892 S.W.2d 864, 874-75 (Tex. Crim. App. 1994)(recognizing factual review limited by constitution to direct appellate courts, which includes Court of Criminal Appeals when serving as direct appellate court in capital cases in which death penalty has been assessed). Accordingly, we hold that under Rule 78.1 this Court has the authority in the direct review of a death penalty case, to (among other things) reform the judgment of the trial court below. See Collier, 999 S.W.2d at 782.
Having found the evidence legally insufficient to support appellant's conviction for capital murder based on the aggravating elements of kidnapping and robbery, we turn to the questions of whether the evidence is legally sufficient to support appellant's conviction for a lesser-included offense and whether the jury was instructed on the lesser-included offense. Id.
Ex Pate Tuley, 2002 Tex. Crim. App. LEXIS 239 (Tex. Crim. App. 12/18/2002) (dissent) Habeas corpus granted on innocence claim.
There are two types of actual innocence claims that may be raised in a collateral attack on a conviction. A bare innocence claim, or Herrera-type (1) claim "involves a substantive claim in which applicant asserts his bare claim of innocence based solely on newly discovered evidence." Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 314 (1995); Elizondo, 947 S.W.2d at 208). The other actual innocence claim, a Schlup-type claim, we explained "is a procedural claim in which applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial." Ibid. (citing Schlup, 513 U.S. at 314).
In Elizondo, we held that a bare innocence claim is cognizable in an application for writ of habeas corpus. Elizondo, 947 S.W.2d at 205. Incarceration of an innocent person offends federal due process, therefore a bare innocence claim raises a constitutional challenge to the conviction. Ibid. But we also said that a conviction should not be overturned lightly and that the burden on the applicant who has had error-free proceedings is exceedingly heavy to take into account society's and the State's interest in finality. Elizondo, 947 S.W.2d at 208. To be granted relief on a bare innocence claim, the applicant must show that the new evidence unquestionably establishes his innocence. Id. at 208-09. We interpreted this to mean that the applicant must prove by clear and convincing evidence that no reasonable juror would have convicted the applicant in light of the new evidence. Id. at 209. To determine whether a habeas applicant has reached this level of proof, the convicting court weighs the evidence of the applicant's guilt against the new evidence of innocence. Id. at 207.
We have never discussed what effect, if any, a guilty plea would have on this analysis. This is the question we turn to today.
There is nothing explicit in Elizondo or the cases on which it relies that prohibits or limits the analysis to jury or bench trials. Elizondo instructs the convicting court to "weigh the evidence in favor of the prisoner against the evidence of his guilt." Ibid.
In Elizondo, we said that our job was to "decide whether the newly discovered evidence would have convinced the jury of applicant's innocence." Ibid. That was in the context of that case, in which a jury had decided Elizondo's guilt. But we said a bare innocence claim is not an attack on the jury's verdict. Id. at 209. "What [the applicant] wants is a new trial based on newly discovered evidence which he claims proves his innocence." Ibid. The policy supporting our holding in Elizondo, that the punishment of an innocent person violates federal due process, is the same for an applicant regardless of whether his case was heard by a judge or jury or whether he pleaded guilty or not guilty. See ibid.
Convicting courts reviewing bare innocence claims should give great respect to the jury's verdict of guilt. Convicting courts should also give great respect to knowing, voluntary, and intelligent pleas of guilty. But we should not foreclose relief because a defendant pleaded guilty when the policy behind granting relief on a bare innocence claim is the same.
The legislature has enacted two statutes that contemplate a defendant's being able to seek relief on a claim of actual innocence after a guilty plea: Code of Criminal Procedure article 64.03(b), and Texas Civil Practices and Remedies Code section 103.001.
Newly-enacted Chapter 64 of the Code of Criminal Procedure sets out procedures for convicted defendants to obtain forensic DNA testing. Article 64.03(b) states that:
A convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea.
Tex. Code Crim. Proc. art. 64.03(b). Defendants who pleaded guilty or nolo contendere may obtain forensic DNA testing if they meet the requirements of Chapter 64.
Chapter 64 provides for forensic DNA testing but does not provide a vehicle for obtaining relief if testing reveals affirmative evidence of innocence. The vehicle for relief after obtaining test results that constitute affirmative evidence of innocence is article 11.07 for noncapital felonies and article 11.071 for capital murder. The legislature has not limited actual innocence claims based on forensic DNA testing to defendants who pleaded not guilty and went to trial. Neither should we.
Chapter 103 of the Civil Practices and Remedies Code sets out procedures to compensate persons wrongfully imprisoned. Section 103.001 names claimants who are eligible for compensation. Before 2001, the statute provided compensation only for claimants who had pleaded not guilty to the criminal charge that led to imprisonment. The legislature amended the statute, and it now states:
(a) A person is entitled to compensation if:
(1) the person has served in whole or in part a sentence in prison under the laws of this state;
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or
(B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced.
Tex. Civ. Prac. & Rem. Code § 103.001(a). Compensation is available under this provision for claimants who have been granted relief on the basis of an actual innocence claim, regardless of how the claimant pleaded to the charges.
The State makes three main arguments against our conclusion: (1) the applicant's plea is not subject to collateral review; (2) public policy is served by finality; and (3) granting relief to the applicant would encourage and reward perjury.
The State argues the applicant's plea is not subject to collateral review. Habeas corpus, it argues, is traditionally governed by equitable principles, and the applicant's conduct in this case may preclude his being entitled to relief. Here the State claims the guilty plea and judicial confession prevent collateral review. But we do not make the distinction between those who have pleaded guilty and those who have pleaded not guilty for other claims of relief raised in habeas applications.
We address cognizable claims in habeas proceedings regardless of the plea in the case. We are unpersuaded that equitable principles should prevent an innocent person from obtaining the relief simply because he pleaded guilty. There is nothing equitable about permitting an innocent person to remain in prison when he produces new evidence that unquestionably shows that he did not commit the offense for which he is incarcerated.
The purpose of criminal proceedings is to separate the guilty from the innocent. Herrera, 506 U.S. at 398 (citing United States v. Nobles, 422 U.S. 225, 230 (1975)). From time to time something goes awry in the process by which a defendant is convicted, for example, when a complainant makes false charges. The error occurs within the judicial system though it happened through no fault of the convicting court or the parties. It is appropriate for the judicial system to correct the error through habeas corpus.
The State says that a guilty plea waives any contention regarding the sufficiency of the evidence. This is true, but the State's assertion that a claim of actual innocence is nothing more than a challenge to the sufficiency of the evidence is not true.
An applicant claiming actual innocence is not claiming that the evidence at trial was insufficient to support the conviction. On the contrary, the successful applicant shows by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence. The burden is on the applicant because we presume that the conviction is valid. See Elizondo, 947 S.W.2d at 207.
Moreover, if an actual innocence claim were nothing more than a challenge to the sufficiency of the evidence, then no claim of actual innocence--whether the conviction was based on a jury trial, bench trial, or guilty plea--would be cognizable on a writ of habeas corpus. Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981) (attack on sufficiency of the evidence at trial may not be raised in habeas proceedings).
The State finds it significant that the applicant's trial resulted in a hung jury that never made a finding on the applicant's guilt. According to the State, the crux of the analysis in Elizondo and its progeny is if the new evidence is such that it undermines confidence in the jury's finding of guilt, then the jury's verdict was infirm. Were we to follow the State's argument to its natural conclusion, a defendant could raise a bare innocence claim only if guilt had been determined by a jury. But the policy supporting the relief granted in Elizondo was that federal due process is violated when an innocent person is incarcerated. Elizondo, 947 S.W.2d at 209. That policy applies with no less force when the conviction is obtained by a bench trial or guilty plea.
The existence of a trial record permitting an Elizondo analysis is not sufficient reason to ignore a guilty plea, according to the State. A convicting court is not free to ignore a guilty plea when reviewing a collateral attack. "Rather, the court charged with deciding such a claim should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances." Id. at 207 (quoting Herrera, 506 U.S. at 244 (Blackmun, J., dissenting)). The circumstances may include that an applicant pleaded guilty. A reading of the extensive findings of the convicting court in this case shows that convicting courts are capable of fully considering the significance of a guilty plea and weighing that circumstance against the newly discovered evidence.
The State next argues that the applicant's argument rewards and encourages perjury. The applicant entered a false plea and compounded this with a false judicial confession. The State claims that allowing this applicant to obtain relief will encourage innocent defendants to plead guilty to get a lighter sentence and then collaterally attack the conviction when the sentence becomes too difficult to bear. This ignores the realities of pursuing a bare innocence claim under article 11.07. A defendant would have to assume that new evidence that affirmatively shows his innocence will appear from nowhere. If a habeas application amounts to a challenge to the sufficiency of the evidence, the applicant will not obtain the relief he seeks. See e.g., Easter, 615 S.W.2d at 721.
The guilty plea process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation. The decision to plead guilty, as we have seen in this case, may be influenced by factors that have nothing to do with the defendant's guilt. The inability to disprove the State's case, the inability to afford counsel, the inability to afford bail, family obligations, the need to return to work, and other considerations may influence a defendant's choice to plead guilty or go to trial. (2)
Being aware of these considerations, we will not preclude actual innocence claims because the conviction was the result of a guilty plea.
Finally, the State argues that public policy is served by finality. We agree. Convictions based on knowing, intelligent, and voluntary pleas of guilty ought to be afforded the highest level of respect. As the Supreme Court quoted in United States v. Timmreck:
Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.
Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-529 (7th Cir. 1971) (Stevens, J., dissenting)). Though Timmreck was based on an interpretation of the federal rules, the underlying principle is the same in Texas. The Supreme Court noted that a federal rule violation "does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" The same is true in our habeas proceedings. Cognizable claims on habeas are limited to claims to "jurisdictional or fundamental defects and constitutional claims." Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).
We are not dealing with a statutory or rule violation in this case; here, the applicant presents a valid claim of actual innocence based on evidence that was unavailable at the time he pleaded guilty.
In Brady v. United States, 397 U.S. 742 (1970), the United States Supreme Court noted that a rule that made pleading guilty attractive to defendants because it allowed them to avoid the death penalty did not render the pleas involuntary when the Court later held that the statute was unconstitutional. Id. at 757. The Court found it significant that nothing in the record indicated that the conviction was inaccurate or unreliable. Ibid.
In cases in which the Supreme Court has held there is no collateral review after a guilty plea, it has specifically noted the absence of findings that the plea was inaccurate or unreliable.
This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. . . . But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.
Brady, 397 U.S. at 757-58. If we have reason to think that an applicant's plea was accurate and reliable, we would conclude that the claim would not support relief for actual innocence. But when a habeas record supports a finding that new evidence unquestionably established an applicant's innocence, it is difficult to conclude that a prior guilty plea was accurate or reliable. The holdings in Brady and Timmreck do not require that we ignore clear and convincing evidence of actual innocence.
The State also cites Schlup v. Delo, 513 U.S. 298, 321 (1995), for the proposition that the interest in releasing innocent defendants does not extend to prisoners whose guilt is conceded or plain. The case cited for this proposition in Schlup discussed finality in relation to claims of error at trial, not actual innocence claims, which the Court explicitly permits in Schlup. See Kuhlman v. Wilson, 477 U.S. 436, 452 (1986). And though an applicant concedes his guilt by pleading guilty, when new evidence unquestionably established innocence, a conclusion that the applicant was guilty of the offense is anything but plain.
The State claims that allowing this applicant to obtain relief would allow any applicant to seek relief if he can show actual innocence and an excuse for the guilty plea. As the cases the State cites show, claims of actual innocence are rare and the cases in which relief is granted are even more rare. See Schlup, 513 U.S. at 321 n.36 (and cases cited therein). We are confident that the convicting courts of Texas can tell the difference between a meritorious claim of actual innocence accompanied by compelling new evidence and a bogus claim accompanied by bare allegations of innocence. Applicants may file applications, but it does not mean that convicting courts will recommend granting relief.
We also do not think that the convicting courts will be flooded with countless applications. Applicants have been permitted to file bare innocence claims in the courts of this State since Elizondo was handed down six years ago. The flood of applications has not materialized. Nor have we seen evidence that Elizondo's holding encouraged inmates or their friends and family to harass victims of crimes to encourage them to recant. Since Elizondo was handed down, in a few cases when applicants have presented credible and compelling new evidence of innocence that met the Elizondo standard, innocent people have been released from punishment. The criminal justice system has done justice.
SUPREME COURT
No cases noted.
CAPITAL CASES(Favorable Disposition)
North Carolina v. Kemmerlin, 2002 N.C. LEXIS 1260 (NC 12/20/2002) Death sentence held disproportionate.
"This Court has conducted an exhaustive review of the record in analyzing whether defendant's death sentence is consistent with other cases in the proportionality pool. The differences between defendant's case and other cases in the pool are too numerous to list. However, among the factors persuasive to our determination are: (1) the weak evidence supporting the pecuniary gain aggravating circumstance, (2) the evidence that defendant considered stopping the murder immediately prior to its occurrence, (3) the fact that defendant's codefendant Antone Johnson received a life sentence without parole, and (4) the jury's finding of three statutory mitigating circumstances and three nonstatutory mitigating circumstances. We therefore conclude that the totality of the circumstances do not warrant imposition of the death penalty. To be sure, any murder is a horrendous and reprehensible act; however, when compared to other cases in the proportionality pool, we cannot say that the death sentence imposed in defendant's case is proportionate."
North Carolina v. Berry, 2002 N.C. LEXIS 1264 (NC 12/20/2002) "[W]e remain advertent to the possibility that knowledge of this earlier murder could have an inflammatory effect on the jury. The trial court's cautionary instructions when evidence of the Maves murder was admitted during the guilt-innocence phase of the trial prevented that evidence from being unfairly prejudicial. By contrast, the instruction given during the sentencing proceeding allowed the jury to find the course of conduct aggravating circumstance solely on the basis that defendant had committed another murder, effectively negating the cautionary instructions given during the guilt-innocence phase. Because the sentencing instruction allowed the jury to disregard both the potentially attenuating effects of the passage of time on an alleged course of conduct and the differences between the two murders, while relieving the burden on the State of proving the required link between the two murders, we are satisfied that the instruction constituted plain error. Accordingly, we reverse defendant's sentence of death and remand to the trial court for a new sentencing proceeding."
North Carolina v Millsaps, 2002 N.C. LEXIS 1251 (NC 12/20/2002) On appeal for multiple capital murder convictions, "the trial court erred in failing to instruct on second-degree murder as a lesser offense included within premeditated and deliberate murder."
Pirtle v. Morgan, 2002 U.S. App. LEXIS 26208 (9th Cir 12/19/2002) Relief granted as Petitioner "was denied his Sixth Amendment right to effective assistance of counsel when his attorney failed to request a diminished capacity jury instruction."
Hooper v. Mulin, 2002 U.S. App. LEXIS 26342 (10th Cir 12/19/2002) "In light of defense counsel's constitutionally ineffective handling of the defense's mitigating psychological evidence, we AFFIRM the district court order granting Petitioner relief from his death sentences."
Illinois v. Harris, 2002 Ill. LEXIS 1643 (Ill 12/19/2002) Remand ordered for hearing on Brady claims.
Illinois v. Kliner, 2002 Ill. LEXIS 1641 (Ill 12/19/2002) State has no standing to challenge DNA testing.
Leslie v. McDaniel, 2002 Nev. LEXIS 96;118 Nev. Adv. Op. No. 78 (Nev 12/18/2002) "[T]he record does not support the jury's finding with respect to the "at random and without apparent motive" aggravator. After considering the remaining aggravating and mitigating circumstances, we cannot say that the jury would have imposed death in the absence of the erroneous aggravators."
Johnson v. Nevada, 2002 Nev. LEXIS 92;118 Nev. Adv. Op. No. 79 (Nev 12/18/2002) "In light of the Supreme Court's decision in Ring, the instant case presents this court with the question: after a jury is unable to agree on a sentence in a capital case, does the finding of aggravating circumstances and imposition of the death penalty by a three-judge panel violate the Sixth Amendment? We conclude that it does. We also conclude that the error here was not harmless beyond a reasonable doubt."
CAPITAL CASES(Unfavorable Disposition)
Israel v. Florida, 2002 Fla. LEXIS 2664 (FL 12/19/2002) Israel loses on the seven issues he raised "on appeal, claiming the trial court erred in (1) conducting portions of the trial when Israel was involuntarily excluded; (2) denying Israel's motion for continuance of trial; (3) denying Israel's motion for mistrial; (4) requiring Israel to be held in visible restraints before the jury; (5) ignoring nonstatutory mitigating evidence of drug abuse, brain damage, and low intellectual functioning presented during the penalty phase; (6) allowing the jury's death sentence to stand even though it was grounded on a split jury vote; and (7) ruling Israel's death sentence was proportionate."
Fotopoulos v. Moore, 2002 Fla. LEXIS 2665 (FL 12/19/2002) Relief denied on claims "that (1) his appellate counsel rendered constitutionally deficient assistance, (2) the resentencing of Deidre Hunt results in an unconstitutional disparity in sentences between coconspirators, (3) the Florida capital sentencing statute and procedures are unconstitutional, (4) cumulative error deprived him of a fundamentally fair trial, and (5) his execution will violate the Eighth Amendment to the United States Constitution because he may be incompetent at the time his sentence is carried out."
Illinois v. Miller, 2002 Ill. LEXIS 1639 (Ill 12/19/2002) Relief denied on claims relating to: (1) ineffective assistance of counsel: failure to investigate and present mitigating evidence (2) ineffective assistance of counsel: plea negotiations; and (3) failure of the state to turn over evidence of plea agreements with key witnesses.
Illinois v. Lucas, 2002 Ill. LEXIS 1640 (Ill 12/19/2002) Relief denied on claims relating to: (1) ineffective assistance of counsel in preparation of mitigation; (2) violations of Brady; and (3) post-conviction discovery.
Illinois v. Johnson, 2002 Ill. LEXIS 1642 (Ill 12/19/2002) Relief denied on "(1) whether he must be granted a new trial because, at the time he pleaded guilty, facts existed that would have raised a bona fide doubt as to his competence; (2) whether he received effective assistance of trial counsel because he had only one attorney and no mitigation specialist, (3) whether his court-appointed attorney was operating under a conflict of interest, (4) whether his death sentence is disproportionate to sentences imposed on similarly situated defendants, and (5) whether the death penalty statute is unconstitutional."
Colwell v. Nevada, 2002 Nev. LEXIS 93;118 Nev. Adv. Op. No. 80 (Nev 12/18/2002) Relief denied holding, most notably, Ring is not retroactive and since appellant waived his right to a jury trial there is no cognizable Ring claim.
North Carolina v. Carroll, (NC 12/20/2002) Relief denied on claims including: (1) whether the defendant knowingly waived his right to testify because the trial court's inquiry of him regarding his right to testify was inadequate; (2) whether felonious assault as the underlying felony for his felony murder conviction is prohibited by the felony murder “merger doctrine”; (3) whether the trial court erred by failing to censure the prosecutor's gross misconduct during closing argument; (4) instructions on diminished capacity & intoxication; (5) whether the trial court erred by admitting the victim's hearsay statements; and (6) whether trial court erred by allowing the jury to consider and find the aggravating circumstance that defendant had been previously convicted of another felony involving the use or threat of violence to another person.
Ohio v. Noling, 2002 Ohio LEXIS 3076;2002 Ohio 7044 (Ohio 12/20/2002) Relief denied, notably, on (1) limits on cross-examination; (2) state treatment of hostile witness; (3) other acts evidence; (4) weight of the evidence; (5) victim impact evidence; (6) missing element of indictment; (7) jury instructions in both phases of the trial; (8) ineffective assistance for failing to question on pretrial publicity and (9) proportionality.
Ohio v. Taylor, 2002 Ohio 7017; 2002 Ohio LEXIS 3072 (Ohio 12/20/2002) Relief denied most notably: (1) speedy trial; (2) failure to appoint substitute counsel; (3) right to self-representation; (4) failure to accommodate the defendant's hearing problems; (5) jury selection issues revolving around death/life qualifications of jurors; (6) trial court erred in excluding expert testimony that he proffered to support his plea of not guilty by reason of insanity; (7) use of gruesome photographs; and (8) "his performance as his own attorney was clearly deficient and that he was prejudiced by it."
Pennsylvania v. Marshall, 2002 Pa. LEXIS 2729 (PA 12/18/2002) Relief denied on claims that trial counsel failed to conduct a meaningful penalty phase investigation.
Pennsylvania v. Busanet, 2002 Pa. LEXIS 2761 (PA 12/19/2002) Relief denied on claims relating to, most notably: (1) ineffectiveness for failure to give opening and for questioning the defendant on direct about priors; (2) alleged "complete failure" to investigate and present mitigation evidence during the penalty phase; and (3) trial court error at the post-verdict evidentiary hearing.
NOTABLE NONCAPITAL CASES
Schultz v. Page, 2002 U.S. App. LEXIS 26202 (7th Cir 12/19/2002) Relief granted on Ake grounds
It bears noting that under Illinois law manic-depression, a bipolar disorder, might serve as a basis for finding
a person legally insane. See People v. Hammerli, 662 N.E.2d 452, 456 (Ill. App. Ct. 1996) (affirming decision
that defendant was guilty but mentally ill due to manicdepression); see also People v. Black, 10 N.E.2d 801, 803
(Ill. 1937) (discussing testimony of expert witness who diagnosed defendant as “suffering from manic-depressive
insanity with alcoholism”); Hall v. Pittenger, 6 N.E.2d 134, 137 (Ill. 1936) (discussing testimony over whether defendant “had been suffering from a manic depressive form of insanity”). . . .
First, the State’s decision to order a psychiatric examination of a defendant has little to do with an indigent defendant’s right under Ake to have a mental health expert assist in the preparation of his defense. A state initiated, psychiatric examination of a defendant merely demonstrates that in such a situation the defendant is
clearly entitled to his own expert and examination to help prepare his defense because the state has signaled
that it may use psychological evidence against the defendant.
The absence of such an examination by the State, however, cannot be used by a court to determine that an indigent defendant is not entitled to an examination when the defendant initiates the request for one. The State’s belief that such absence is in some way relevant is unfounded. The appellate court’s reliance on the fact that prosecutors did not initiate a psychiatric exam of Schultz, therefore, is misplaced.
Catalan v. Cockrell, No. 02-10373 (5th Cir. 12/18/2002) Failure to ask for a continuance held reversible error.
Grett did not request the ten-day preparation period for appointed counsel that is provided under Article 1.051(e) of the Texas Code of Criminal Procedure. *fn1 Instead he consulted with Catalan and Montemayor for less than an hour before proceeding to trial. He conducted no investigation and was apparently unaware of facts and evidence helpful to Catalan's defense. In conducting the trial, Grett relied on the decisions of Montemayor. Because of this reliance and his ignorance of the facts of the case, Grett did not impeach the victim on cross examination with prior inconsistent testimony that Catalan was a mere bystander to the assault. Catalan was subsequently convicted of aggravated assault. On direct appeal, Catalan's appellate counsel did not raise the issue of Grett's failure to request the ten-day preparation time. Catalan did raise the issue in his state habeas petition. The state court denied habeas relief without issuing a written opinion. Catalan raised the issue in his federal habeas petition, which was referred to a magistrate judge. After conducting an evidentiary hearing, the magistrate entered his findings which the district court adopted.. . .
The Texas court did not refer to Strickland at all in denying habeas relief. This could be an indication that the court either acted contrary to or misapplied clearly established federal law. However, we have held that under the deferential standard of AEDPA, we review only the state court's decision, not its reasoning or written opinion, to determine whether it is contrary to or a misapplication of clearly established federal law. Neal v. Puckett, 286 F.3d 230, 246 (5 th Cir. 2002)(en banc). "We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of Strickland is erroneous or incorrect." Id. at 236. If the Texas court identified Strickland as the applicable federal law in this case, we must determine whether the decision resulting from the state court's application of federal law was an unreasonable misapplication of the law. Id.
Assuming that the Texas court applied Strickland in denying relief in this case, we find that its application of Strickland was objectively unreasonable. *fn3 Grett failed to request the ten days provided by statute to prepare for trial; therefore, he was unaware of and unable to introduce evidence in favor of Catalan. Most importantly he relied entirely on the decisions of Montemayor, an attorney with a clear conflict of interest who had been removed from representing Catalan. We agree with the district court that "considering the conflicting evidence adduced at trial and the complainant's prior inconsistent statement that the jury never heard, there can be no doubt the petitioner was prejudiced by the deficient performance of his trial attorney." Grett's failure to prepare for trial, his reliance on conflicted counsel, and his resulting failure to introduce evidence favorable to his client presents such a clear case of deficient performance and prejudice under Strickland that the Texas court's denial of relief in this case was an objectively unreasonable application of clearly established federal law.
Edmonds v. State, No. 20 September Term, 2002 (Md. 12/18/2002) "[W]e remand this case to the Circuit Court for Baltimore County to make a determination whether the prosecutor's race-neutral reasons were pretextual and therefore whether petitioner has met his burden of proving purposeful discrimination as to jurors Ashe and Smith. If the court cannot effectively do so, or finds purposeful discrimination, it shall order a new trial."
FOCUS
Nearly 120 years ago, Frederick Douglass, the former slave and great African American leader, described the American criminal justice system as follows: “Justice is often painted with bandaged eyes. She is described in forensic eloquence, as utterly blind to wealth or poverty, high or low, white or black, but a mask of iron, however thick, could never blind American justice, when a black man happens to be on trial.” [FN1] Sadly, little has changed in the century and a half since Douglass had cause to condemn the state of the justice system in America. Nowhere is this more true than in the application of the “ultimate punishment”--the punishment of death.
After September 11th, America’s attitudes about crime and punishment shifted dramatically. Americans, without regard to race, class, or religion, were all shocked by the tragic circumstances of the terrorist attack, and have not been reluctant to seek vengeance. The response in the African American community has been particularly surprising, given the history of racial discrimination in America. As I discuss the intersection of race and criminal justice, specifically in the context of capital punishment, it is critical to reveal some facts that are frequently ignored in this country today. African Americans are, by and large, conservative. They are among our nation’s most patriotic citizens. They are prepared to sacrifice their own liberty by supporting governmental efforts to protect their security. Even though discriminatory treatment by law enforcement against African *16 Americans is well documented, [FN2] a recent survey indicates that an overwhelming majority of African Americans support the racial profiling of Muslims and Arab- Americans as a result of September 11th. [FN3]
Like the entire criminal justice system, the administration of the death penalty in America places a disproportionate burden on African Americans. The focus of my comments will be on race and capital punishment. Beyond my concerns about race, the death penalty faces challenges from a number of other quarters as well. Among the most recent developments:
-On June 20, 2002, the Supreme Court decided Atkins v. Virginia, [FN4] holding that it is unconstitutional to execute the mentally retarded. Writing for the court, Justice Stevens followed previous decisions articulating how the Eighth Amendment’s prohibition on cruel and unusual punishment is to be applied. The Court noted that prohibited forms of punishment are not fixed, but rather vary according to “evolving standards of decency that mark the progress of a maturing society.” [FN5] When the Supreme Court upheld executions of the mentally retarded thirteen years ago in Penry v. Lynaugh, [FN6] Justice Sandra Day O’Connor’s reasoning for the majority was based on a determination that there was no national consensus against the practice--that is, executing the mentally retarded did not violate Americans’ notions of decency at the time. [FN7] Since that case was decided in 1989, the number of death penalty states barring executions of the retarded has grown from two to eighteen, such that eighteen of thirty-eight death penalty states--and thirty of fifty states total--bar executions of the mentally retarded. [FN8] In Atkins, Justice O’Connor was again in the majority, but this time holding that “evolving standards of decency” now prohibit *17 executing the mentally retarded. [FN9]
- Further evidence of the shift in attitude came in late February 2002, when the Georgia Parole Board commuted the death sentence of a mentally ill defendant to life in prison. [FN10] We will watch carefully Supreme Court cases in the near future since we can see that even staunch supporters of capital punishment, like Justice O’Connor, are noticing the public mood shifting away from the death penalty.
- In addition, the Supreme Court issued a stay of execution on February 15, 2002, to Thomas Miller-El, an African American death row inmate in Texas who claims that prosecutors deliberately kept African Americans off the jury during his murder trial. [FN11] Miller-El’s case could provide some much-needed clarity to the Supreme Court’s jurisprudence on racial discrimination in jury selection, and, as I will discuss shortly, could also provide one step toward reducing the disparities in sentencing rates of people of color sitting on death row.
- The Supreme Court also recently found unconstitutional state death penalty laws that allow the judge, rather than the jury, to decide whether the death penalty will be imposed. This case, Ring v. Arizona, [FN12] implicates capital punishment laws in nine states, calling into question up to 800 death sentences. [FN13]
- More recently, a federal district court judge in New York struck down the Federal Death Penalty Act as unconstitutional because it “deprived innocent people of a significant opportunity to prove their innocence ... [and] creates an undue risk of executing innocent people.” [FN14] On September 24, 2002, a federal district judge in Vermont overturned a death sentence based on a finding that the Federal Death Penalty Act determines eligibility for imposition of the death penalty in a manner inconsistent with Sixth Amendment *18 and Due Process rights. [FN15] The court also noted that “[c]apital punishment is under siege.” [FN16]
- And finally, Professor James Liebman of Columbia Law School released the second part of his comprehensive study of error rates in capital sentencing in early 2002. The initial findings from two years ago showed an error rate in capital sentencing of 68%--that is, more than two out of every three death sentences were overturned due to “serious error.” [FN17] Further study has shown that the states that use the death penalty most often have error rates that exceed the national average, and that the occurrence of capital sentencing error is higher in states that have a higher proportion of African Americans in the population. [FN18]
In addition to issues regarding who should be eligible for execution, who makes that decision, and how to guarantee accuracy and avoid error, there is a fundamental issue regarding the role that race has played in the death penalty in America. I will discuss a number of racial elements of the application of capital punishment, and I will specifically mention the impact of the death penalty on black defendants, black victims, and black communities. In the context of race, I will note the connection between the current system of capital punishment and the historical use of extra-judicial lynchings against blacks during the Jim Crow era. Based on this analysis I will then raise some questions regarding the best strategies for abolitionists who want to address the racially disparate impact of the death penalty.
* * *
II Race and the Death Penalty
This history of lynching and the reasons for its prevalence will be useful to bear in mind as we consider the ways in which race still predominates in the American criminal justice system.
A. Racial Discrimination in Jury Selection
An examination of recent findings just in the area of racial jury composition illustrates this point. Race has historically played a role in the ability of black defendants to invoke their right under the U.S. Constitution to a fair and impartial jury of their peers, [FN43] *24 and the racial composition of the jury is of particular importance in capital cases. These rights are dramatically undermined by the use of peremptory jury challenges as a pretext for discriminating against people of color.
Some background into the relevant history and caselaw is necessary at this point. In the 1986 decision Batson v. Kentucky,[FN44] the Supreme Court held that prosecutorial use of peremptory challenges to exclude potential jurors on the basis of race violated the Equal Protection Clause. In a concurring opinion, Justice Thurgood Marshall (who had other problems with the decision, to be discussed in a moment) celebrated the decision as a “historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.” [FN45]
Before Batson, prosecutors routinely struck black jurors based purely on racism, or gross racial prejudice and generalizations. The history of criminal prosecution in Dallas County, Texas, is illustrative of this point. The prosecutor’s office in Dallas County prepared a jury selection instruction book that included the following instruction: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury no matter how rich or well educated.” [FN46] Even once the instruction manual was revised to remove the explicitly racist terms, prosecutors were still advised to eliminate “any member of a minority group” from a petit jury. [FN47]
While such blatant and outrageous instructions now seem to be a relic of the past, existing statistical evidence reveals the continuing disproportionate use of peremptory challenges to remove blacks from the venire. [FN48] As one commentator has explained, *25 “the discriminatory use of peremptory challenges is the single most significant means by which racial prejudice and bias are injected into the jury selection system.” [FN49]
Batson has been viewed as a major accomplishment in the effort to eliminate this form of jury discrimination. The Court in Batson reaffirmed the principle, established in Strauder v. West Virginia, [FN50] that a state denies a black defendant equal protection by putting him on trial before a jury from which members of his race have been purposefully excluded. [FN51] Moreover, Batson reaffirmed the principle, announced in Swain v. Alabama, [FN52] that a state’s purposeful denial of jury participation on the basis of race also violates the excluded juror’s Fourteenth Amendment right to equal protection. [FN53]
The Batson decision, however, left to the trial courts the important issue of determining whether a defendant had established a prima facie case of discrimination, and whether the prosecution had rebutted that prima facie showing. The Supreme Court has since provided lower courts with little direction regarding how those determinations are to be made, and has declined to give lower courts more information on how to determine when a prosecutor’s race-neutral justifications for challenges are acceptable.
State and lower federal courts have shown widely different views regarding the existence of a prima facie case under Batson. At the trial level, many courts frequently accept explanations that are no more than after-the-fact rationalizations for challenges which appear to have been made on subconsciously racial grounds. [FN54] For example, although the Alabama Supreme Court *26 has insisted that “[n]o merely whimsical or fanciful reason will suffice as an adequate explanation,” [FN55] state trial courts have not always scrutinized prosecutorial explanations closely. In Wallace v. Alabama, [FN56] the prosecutor explained that he challenged:
A young black female because she was a homemaker and lacked knowledge of what life was like out on the street;
Another young black female because she was a student who did not indicate that she was working, and therefore “would not have had the necessary experience to be able to draw on and make a judgment in this case”;
An older black female who was retired, and might be more sympathetic because she “appeared to be a grandmotherly type”;
A young black male who had a beard, which the prosecutor explained meant he was likely to “go against the grain”;
A middle-aged black man because he was unemployed and therefore might be irresponsible; and
A middle-aged black female because she appeared to be in the same age group as the defendants’ parents or mothers. [FN57]
Amazingly, the trial court found the prosecutor’s thin, allegedly “race- neutral” explanations sufficient to rebut the prima facie case of discrimination, and the appeals court affirmed. [FN58]
In Missouri v. Alexander, [FN59] a prosecutor explained that he challenged a black juror because the juror was unemployed, did not understand one of the questions asked during voir dire, and lived in a high crime neighborhood. [FN60] Unemployment, lower education, *27 and crime are found more frequently in minority communities, yet the court seemed unconcerned that minorities might be excluded disproportionately because of these reasons.
B. Disproportionate Imposition of Capital Punishment
Death penalty opponents have been pursuing claims of racial discrimination in the application of the death penalty for a long time. A number of major death penalty cases were actually brought as racial discrimination claims, even though the Supreme Court chose to decide the cases on other grounds. One example is Coker v. Georgia, [FN61] in which the Supreme Court invalidated laws that imposed the death penalty for the crime of rape.
Coker had argued in his brief to the Supreme Court that capital sentencing was tainted by an impermissible degree of racial bias. Coker presented evidence that over a twenty-year period in the South, black men accused of raping white women were more than eighteen times as likely to be sentenced to death as white men accused of the same crime. [FN62] But the Supreme Court decided the case solely on the grounds that the death penalty was disproportionate to the crime of rape, and was thus in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. [FN63] The Court completely sidestepped the racial issue--remarkably, there is not a single mention of race, or of Coker’s racial argument, in the Court’s reported opinion.
There is ample other data of racial disparities in the criminal justice system. In February 2002, Human Rights Watch released an analysis of the 2000 Census data, and reported a number of disturbing, if unsurprising, findings: [FN64]
Blacks and Hispanics make up 62% of the incarcerated population, though comprising only 25% of the national population. [FN65]
In twelve states, between 10-15% of the black male population is in prison.
In some states, Hispanic youths are incarcerated at seven to seventeen times the rate of white youths, and black youths are incarcerated at twelve to twenty-five times the rate of whites.
Black women are incarcerated at rates between ten and thirty-five times greater than white women in fifteen states.
These statistics serve to highlight what we already knew about the overwhelming degree to which blacks are involved in the nation’s penal system-- as Marc Mauer’s famous book Race to Incarcerate pointed out, twenty-nine percent of black males born in 1991 can be expected to be imprisoned in their lifetime. [FN66]
The Supreme Court’s silence on the racial disparities in Coker is instructive--the Court was doing its best to avoid discussing the overwhelming evidence of racial disparity, and it succeeded. But less than ten years after Coker, the Court confronted the issue of racial discrimination in capital sentencing head-on, in the landmark case of McCleskey v. Kemp. [FN67]
Professor David Baldus’ seminal study on racial disparities in the imposition of the death penalty [FN68] served as the centerpiece of the McCleskey case, in which Warren McCleskey’s lawyers argued that the racially discriminatory application of Georgia’s death penalty statute violated the Equal Protection Clause of the Fourteenth Amendment. The study revealed racial disparities in the imposition of the death penalty in the state of Georgia, and identified the race of both the defendant and the victim as determinative factors in whether a defendant would be sentenced to death. [FN69] Specifically, the study noted:
[D]efendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants . . . *29 who kill white victims have the greatest likelihood of receiving the death penalty. [FN70]
Professor Baldus also noted a remarkable disparity in the rate at which the death penalty was sought--”prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.” [FN71]
Writing for the 5-to-4 majority in McCleskey, Justice Lewis Powell conceded that the Baldus study was “valid statistically,” [FN72] but concluded that it only demonstrated a risk that race factored into some capital sentencing determinations. [FN73] The Court determined that the risk of racial discrimination in capital sentencing determinations was negligible:
The likelihood of racial prejudice allegedly shown by the study does not constitute the constitutional measure of an unacceptable risk of racial prejudice. The inherent lack of predictability of jury decisions does not justify their condemnation . . . . At most, the Baldus study indicates a discrepancy that appears to correlate with race, but this discrepancy does not constitute a major systemic defect. Any mode for determining guilt or punishment has its weaknesses and the potential for misuse. Despite such imperfections, constitutional guarantees are met when the mode for determining guilt or punishment has been surrounded with safeguards to make it as fair as possible. [FN74]
While premising its holding on the determination that racial disparity in the administration of the death penalty did not constitute a “constitutionally significant risk of racial bias,” [FN75] Justice Powell articulated another reason for his holding, which seemed to indicate a fear that treating McCleskey’s claim as legitimate would open up a Pandora’s Box and reveal the pervasive role of race in criminal processes:
McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. *30 Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. . . . [T]here is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. [FN76]
Thus, despite overwhelming evidence of discrimination, [FN77] the response of the courts has been to deny relief on the grounds that patterns of racial disparities are insufficient to prove racial bias in individual cases. Justice William Brennan criticized this approach, remarking:
It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. [FN78]
While the Court offered a number of rationalizations to deny Warren McCleskey relief, Justice Brennan’s strongly-worded dissent left no doubt as to the significance of race in the application of the death penalty. As Justice Brennan explained:
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black. . . . Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential *31 narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died. [FN79]
Regrettably, Justice Powell did respond to Justice Brennan’s challenge, but only after he left the Court. When interviewed by his biographer and asked whether there were any decisions he would change, he stated that he would have voted differently on McCleskey. [FN80]
What Justice Brennan characterized as the “reverberations of injustice” are still being felt today. A number of recent studies show that racially disproportionate death penalty sentencing is as pervasive as ever, and continues to plague the capital punishment system.
C. Recent Empirical Findings
Two recent studies by Professor Baldus report a number of key findings. First, as I discussed earlier, Batson has not been particularly successful in eliminating racially-motivated peremptory challenges in capital trials. [FN81] Second, and perhaps more importantly, there is a distinct correlation between the likelihood that a jury will return a capital sentence and the number of blacks on the jury--the more black jurors there are, the less likely the jury is to return a death sentence. [FN82] This correlation grows even stronger when the capital defendant is black.
A recent study from Professor William Bowers, resulting from his work with the Capital Jury Project, confirms the finding that the more black members there are on a jury, the less likely the jury is to return a death sentence. [FN83] Again, the pattern is even more noticeable when the defendant is black. Professor Bowers interviewed capital jurors to identify what might explain this *32 striking result, and his findings confirm the assertion that capital sentencing is unacceptably susceptible to racial factors. Jurors listed three main considerations that weighed into a decision whether to apply the death penalty: lingering doubts about the defendant’s guilt, [FN84] the extent of the defendant’s remorsefulness, and the defendant’s future dangerousness. [FN85] In each consideration, black jurors viewed black defendants more favorably than did white jurors. [FN86] When evaluations of the defendant’s character are so starkly different along racial lines, and when the result of the evaluation means the difference between lethal injection or life in prison, we can see that battles over who sits on the jury really are battles for life or death.
D. Burdens Resulting from Racially Disproportionate Capital Sentencing
In light of the continued racial imbalance in the application of the death penalty, the burden that the Supreme Court’s decision in McCleskey places on blacks continues to operate at a number of levels. At the first, most obvious level, the racially disproportionate sentencing of blacks puts black defendants in the position of having their actions judged and punished more harshly than similarly situated white defendants.
At a second level, however, the racial imbalance in how death sentences are handed out shows a disregard for black victims. Disproportionate application of the death penalty in cases where the victim is white compared to cases where the victim is black reflect a disturbing racial calculus: White lives are considered to be more valuable than black lives, because the killing of a white is treated as a more serious crime--a crime worthy of a more severe punishment--than the killing of a black.
And at a third level, following from this devaluation of black life, we can see that the judicial failure to acknowledge racially disproportionate capital sentencing shows a systemic disregard for black communities. By treating the lives of black victims as being less valuable than the lives of white victims, the Court’s *33 death penalty jurisprudence deprives black communities of equal access to and treatment by the justice system. Professor Randall Kennedy has pointed out a seeming paradox in claims of this kind--he notes that because most killers of blacks are other blacks, correcting the systemic bias that assigns more lenient punishment to killers of blacks would ultimately result in more blacks being sent to death row. [FN87] Kennedy argues that “the [black] community as a whole is disadvantaged by the relative leniency extended to killers of blacks, but black . . . criminals who murder Negroes benefit from the undervaluation of black victims. Remedying that bias . . . might move some black criminals closer to the gas chamber.” [FN88]
The fallacy of this assertion, with all due respect to my colleague, Professor Kennedy, is that he assumes the way to rectify this imbalance is to move in the direction of executing more people--that is, he claims that the way to address the undervaluation of black life is to sentence black killers of other blacks to death at the same (higher) rate at which black killers of whites are sentenced to death. However, we could approach the problem instead by ceasing to over-value white life so much--that is, we could decrease the rate at which we execute black killers of whites such that it matches the rate at which we execute black killers of blacks. Rather than executing more people, we could execute fewer.
More importantly, the undervaluation of black life is not just evident in our capital sentencing rates, but is seen in the grossly racially disproportionate way in which our entire system of criminal justice operates. These racial differences occur at every stage of criminal processing, from arrest, prosecution, and jury selection to trial conduct, sentencing, and parole.
Justice Powell’s majority opinion in McCleskey recognized this reality, when he noted, as I quoted earlier, that “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.” [FN89] Justice Powell recognized that if statistical evidence of racially disparate impact sufficed to call the procedural regularity of the death penalty into question, every stage of the criminal justice *34 system would be vulnerable to the same charge. Unfathomably, rather than taking that as a reason to reject the death penalty imposed in McCleskey’s case, Justice Powell claimed that the Court should punt on the issue, leaving it instead to the legislature to deal with if it so chose. As Justice Brennan suggested in his dissenting opinion, this astounding rationale “[t]aken on its face . . . seems to suggest a fear of too much justice.” [FN90] This is exactly the claim I am making with respect to the disregard for black defendants, black victims, and black communities that we see in the way the death penalty is administered--capital punishment is but one particularly egregious example of the system-wide failure to offer to blacks the same amount of justice.
OTHER RESOURCES
The Death Penalty Information Center (Deathpenaltyinfo.org) notes:
False Confessions Investigation
A recent investigation by The Miami Herald found that 38 false or questionable confessions have been discredited in just one Florida county since 1990. The confessions were either thrown out by Broward County courts, rejected by juries, or abandoned by police or prosecutors. The Herald's study found examples of illegal interrogation, coercive questioning, and flawed fact-checking. At least six confessed "killers" who were charged with murder were later determined to be innocent. Among the false confessions listed was that of Frank Lee Smith who spent 14 years on Florida's death row. DNA evidence eventually cleared him of the charges, but he died of cancer six months before his exoneration. (Miami Herald, Dec. 22, 2002). See also Innocence.
NEW RESOURCE: Capital Punishment 2001
Earlier in December, the Bureau of Justice Statistics released its annual report on the death penalty with statistics from the previous year. The report contained a number of interesting findings:
- The number of people sentenced to death in 2001 was 155, the smallest number since 1979, and an almost 50% drop from the average number of death sentences in 1994-99.
- Between 1973 and 2001, Texas sentenced the most people to death (889), followed by Florida (863) and California (779).
- The number of people under sentence of death declined in 2001, the first decrease in 25 years.
- The time between sentencing and execution for those executed in 2001 was 11 years and 10 months, slightly longer than for those executed in 2000. Overall, the average time between sentencing and execution for those executed between 1977 and 2001 was 10 years and 3 months.
(BJS, Capital Punishment 2001 (published 2002)). See also DPIC's 2002 Year End Report for statistics on 2002.
NEW RESOURCE: Law Review Examines the Policy and Politics of the Death Penalty
The Spring 2002 Oregon Law Review titled "The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?" features articles written to complement an Oregon symposium on the death penalty. The resource contains articles by capital punishment experts from around the country, and highlights issues such as the future of capital punishment in the U.S., the power of clemency, and international policies regarding the death penalty. It also examines the issues of race, gender, and geographic disparities concerning the death penalty. (81 Oregon Law Review 1 (2002)). See Studies, Books and Law Reviews.
NEW VOICES: New York DA Calls Death Penalty "A Hollow Victory"
Queens District Attorney Richard Brown recently called the death penalty a hollow victory because it offers victims' families "a false hope of closure." Brown said that the use of the death penalty is regrettable because the long and expensive appeals process causes victims' family members to relive the crime that took their loved one. He noted that families "hang on" to a false belief that a capital conviction will ease their pain. (Queens Chronicle, December 20, 2002) See New Voices.
Innocence I: Judge Overturns Central Park Jogger Convictions
New York State Supreme Court Justice Charles Tejada vacated the convictions of five men who were wrongfully convicted of the 1989 Central Park jogger attack after the Manhattan District Attorney recommended dropping charges. (See below) The men, ages 14-16 at the time of the crime, spent years in jail for the crime before DNA evidence in the case confirmed that the rape was committed by another man. (Associated Press, December 19, 2002) See, Innocence.
Innocence II: FBI Says State's Top Scientist Misidentified Evidence in Wrongful Conviction Case
A recently released FBI report disclosed that Arnold Melnikoff, a forensic scientist who served as the director of Montana's state crime laboratory for nearly two decades, misidentified critical hair evidence in the state's (non-death penalty) case against Jimmy Ray Bromgard. The report was issued after DNA testing cleared Bromgard, who had spent 15 years in jail for the crime. "This conceivably will be the biggest crime lab scandal in the country," said Peter Neufeld of the Innocence Project at the Benjamin N. Cardoza School of Law in New York City. "He was the top guy in the state." For the past 13 years, Melnikoff has also worked as a forensic scientist for the Washington State Police. Authorities in both Washington and Montana are reviewing cases in which he provided forensic analysis. (New York Times, December 19, 2002) See, Innocence.
ADDITIONAL RESOURCES
If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit:http://www.lidab.com/(Louisiana's public defender),probono.net(ABA/ABCNY) &http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised). For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).