Capital Defense Weekly, December 25 , 2000

By Capital Defense Newsletter
Dec 25, 2000

Three new capital decisions are noted this week. InRIDEAU v. WHITLEYa Fifth Circuit panel, in a case where the death sentence was originally vacated in during the post-Furman moratorium, vacates the underlying conviction holding that the grand jury was chosen in a manner that violates due process. In SMITH v. MASSEYthe Tenth Circuit holds unpersuasive petitioner's claim that trial counsel suffered a conflict of interest representing bother her and her son, as she was unwilling to finger her son for the crime at their joint trial. The Fourth Circuit, in the final decision of this edition, FRYE v. LEEholds trial counsel's investigation and presenting of mitigation evidence over petitioner's objections at trial was not unduly ineffective.

In the coming weeks coverage will be expanded to include state court opinions in published capital cases from the major death penalty jurisdictions including Texas, Florida, California, Pennsylvania, Oklahoma and Missouri. Additionally, decisions from other states will be added from time to time as space allows. The expanded coverage is possible due to formatting changes, and to a lesser degree Versuslaw.comandLexisone, without which this newsletter would have long since folded in the dotcom dust. Additionally, from time to time two sections will be presented, "lawyering on the net" featuring various legal and other resources on the net & "outrages" featuring the most outrageous criminal law and prisoner rights decisions from around the country; submissions from readers on either are always welcomed.

This week's feature examines developments in the battered woman's syndrome defense in light the Massachusetts Supreme Judicial Court's landmarkCOMMONWEALTH vs. CONAGHANwhich held that BWSD can be used as a defense to murder even when the victim is a person other than the batterer.

Finally, as has been the tradition for several years, there will be no edition next week as the courts are virtually shut down for the holidays and there will be little to cover.

Happy holidays.

Supreme Court

The Supreme Court is currently in recess.

Capital Cases

RIDEAU v. WHITLEY (5thCir 12/22/00 - No. 99-30849) (prior capital case) Token inclusion of a single African-American on the grand jury panel does not rectify the overwhelming statistical evidence of under representation and, coupled with a racially non-neutral selection process, constitutes a prima facie case of racial discrimination.

For well over a century, the Supreme Court has held that a criminal conviction of an African-American cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which African-Americans were excluded on the basis of race.SeeRose v. Mitchell, 443 U.S. 545, 556 (1979);Alexander v. Louisiana, 405 U.S. 625, 628 (1972);Bush v. Kentucky, 107 U.S. 110, 119 (1883);Neal v. Delaware, 103 U.S. 370, 394 (1881);see alsoCastaneda v. Partida, 430 U.S. 482, 492-95 & n.12 (1977). Recently the Supreme Court reaffirmed this principle in holding that a white criminal defendant has the requisite standing to raise equal protection and due process objections to discrimination against black persons in the selection of grand juries.Campbell v. Louisiana, 523 U.S. 392, 397-401 (1998). "Regardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination. '[D]iscrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system' because the grand jury is a central component of the criminal justice process."Campbell, 523 U.S. at 398 (1998) (quotingRose, 443 U.S. at 556).
A criminal defendant "is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice."Alexander, 405 U.S. at 628-29. Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, the Supreme Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed.See, e.g.,Hill v. Texas, 316 U.S. 400, 406 (1942). InCastaneda, the Court noted that among the cases in which the Court had applied this principle in circumstances involving grand jury discrimination wereAlexander,supra;Arnold v. North Carolina, 376 U.S. 773 (1964);Eubanks,supra;Reece v. Georgia, 350 U.S. 85 (1955);Cassell v. Texas, 339 U.S. 282 (1950);Hill,supra;Smith v. Texas, 311 U.S. 128 (1940);Pierre v. Louisiana, 306 U.S. 354 (1939);Rogers v. Alabama, 192 U.S. 226 (1904);Carter v. Texas, 177 U.S. 442 (1900); andBush v. Kentucky,supra. 430 U.S. at 492 n.12.
These holdings make clear that claims of discrimination in the selection of members of the grand jury are cognizable on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed.Rose, 443 U.S. at 564-65. Nevertheless, to be entitled to habeas relief a claimant is required to prove discrimination under the standards set out in the Supreme Court's cases.Id.That is, "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs."Castaneda, 430 U.S. at 494. Specifically, Rideau was required to prove his prima facie case with regard to selection of the grand jury as follows:
The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case. 494-95 (citations and footnote omitted).
The petitioner may also prove a prima facie case without showing a statistical disparity "over a significant period of time"; he may satisfy his prima facie burden by showing a disparity in the particular grand jury body that indicted him, coupled with proof either that (1) the selection process was itself not racially neutral and presented an opportunity for discrimination, or that (2) the jury commissioners had made no attempt to acquaint themselves with eligible members of the African-American 493-94 (quotingWashington v. Davis, 426 U.S. 229, 241 (1976) ("A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community . . . or with racially non-neutral selection procedures."));cf.Batson v. Kentucky, 476 U.S. 79, 94-95 (1986) (regarding the selection of petit jury venires, holding that, "[s]ince the ultimate issue is whether the State has discriminated in selecting the defendant's venire, however, the defendant may establish a prima facie case in other ways than by evidence of long-continued unexplained absence of members of his race from many panels. In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant's race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing the opportunity for discrimination. This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse." (internal quotations and citations omitted)).
Because racial discrimination in the grand jury selection process "strikes at the fundamental values of our judicial system and our society as a whole," it is well-established that a criminal defendant has suffered an equal protection violation when he is indicted by a grand jury that is the product of such a discriminatory process.Rose, 443 U.S. at 556 (citingNeal, 103 U.S. at 394;Reece, 350 U.S. at 87). "Since the beginning," the United States Supreme Court has "reversed the conviction and ordered the indictment quashed in such cases without inquiry into whether the defendant was prejudiced in fact by the discrimination at the grand jury stage." 556-57 (citingNeal, 103 U.S. at 394;Bush, 107 U.S. at 119;Virginia v. Rives, 100 U.S. 313, 322 (1880)).
[N]o state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. It is the state's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all-the least deserving as well as the most virtuous.
Hill, 316 U.S. at 406 (citations omitted).
The ultimate question in the present case, whether the grand jury was selected in a systematically unrepresentative or racially discriminatory manner, has long been recognized to be a question of law or a mixed question of fact and law.See, e.g.,Rose, 443 U.S. at 561-62;Whitus, 385 U.S. at 550;Hill, 316 U.S. at 406;Cassell, 339 U.S. at 291-92 (Frankfurter, J., concurring). (8)
Rideau, as an African-American, is a member of a distinct, cognizable class that has been singled out for discrimination.Rose, 443 U.S. at 555-56. Rideau has also made a showing that the grand jury venire in his case was disparate in its representation of African-Americans in comparison to the proportion of African-Americans in the community. The 1960 Census figures for Calcasieu Parish indicate that 18.5% of the parish's male population over the age of 21 was African-American. F.H.P., at 167-69. An affidavit by the Calcasieu Parish registrar of voters shows that 16-2/3% of the registered voters in Calcasieu Parish was African-American. S.J.T. III. Nevertheless, only one member, or 5%, of the twenty-person grand jury venire was African-American, a mathematical disparity similar to those that the Supreme Court has found to establish a presumption of discrimination.SeeCastaneda, 430 U.S. at 495-96 (finding a presumption of discrimination where 79.1% of county's population was Mexican-American but only 39% of people summoned to grand jury service were Mexican-American) (citingWhitus, 385 U.S. at 550 (27.1%-to-9.1% disparity);Sims v. Georgia, 389 U.S. 404 (1967) (24.4%-to-4.7% disparity);Jones v. Georgia, 389 U.S. 24 (1967) (19.7%-to-5% disparity)). This 18.5%-to-5% disparity between the distinct group's presence in the community population and its representation on the grand jury venire in Rideau's case might, standing alone, support a presumption of discrimination. We need not decide that, however. The Supreme Court has stressed that it has never announced mathematical standards for the demonstration of "systematic exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral.
Alexander, 405 U.S. at 630. Here, as well, additional factors supplement the statistical disparity. For example, Mr. Hillebrandt testified that neither he nor any of the other commissioners, to his knowledge, had made any attempt to identify and call upon eligible African-Americans for potential selection as general or grand jury venire persons.Washington, 426 U.S. at 241 (holding that a presumption of prejudice is shown when the disparity on a particular grand jury venire panel is "combined with the failure of the jury commissioners to be informed of eligible" African-Americans in the community);Smith v. Texas, 311 U.S. 128, 132 (1940) ("Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who knew no negroes as well as from commissioners who know but eliminate them.");Scott v. Walker, 358 F.2d 561, 573-74 (5thCir. 1966) (en banc) ("It is plain from the record here that the commissioners put on the list only those personally known to them. They made no especial effort to ascertain whether there were qualified Negroes in the parish for jury service. In failing to do so they violated the rule announced by the Supreme Court . . . inCassell v. State of Texas, where it was said, 'When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination.'" (quoting 339 U.S. at 289)).
Also, it is evident that the degree of underrepresentation of African-Americans on the general and grand jury venires had prevailed over a significant period of time. According to Mr. Hillebrandt, who had attended virtually all of the meetings of the jury commission since his election in 1948, the commission's venire selection practices and procedures were of long standing and long vintage in Calcasieu Parish. Many years before 1961, Mr. Hillebrandt testified, after a jury conviction had been reversed, he began the practice of making sure that there was at least one "colored person" on each grand jury venire. (9)This practice, however, he clearly indicated, was merely a token inclusion of African-Americans and was by no means intended to rectify their underrepresentation.
Rideau introducted additional census and venire composition evidence in the proceedings before the Magistrate Judge that fully corroborates the Calcasieu Parish jury commission's long-lived pattern of discrimination against African-Americans in the selection of general and grand jury venires. As the Magistrate Judge's report correctly found:
The statistical evidence of under-representation is overwhelming and unrebutted. According to the 1960 U.S. Census, Calcasieu Parish had 7,237 black men over the age of 21, and 31,729 white men in the same category. Thus, about 18.5 percent of the parish's population was black and eligible for grand jury service in 1960 and 1961. According to the 1950 U.S. Census, Calcasieu Parish had 26,172 men over the age of 21. Of that number, 5,626 were black-about 21.5 percent of the eligible population.
According to undisputed evidence of the 12 grand juries that were selected between October 3, 1954 and January 16, 1961, no grand jury had more than one black member (out of 12 on each panel). Of 144 grand jurors that were selected during this period, only six were black-about four percent.
F.H.P., at 190-91 (footnote omitted). Consequently, under either standard, disproportionate underrepresentation over a significant period of time, or disproportionate underrepresentation of African-Americans in Rideau's own grand jury venire coupled with a racially non-neutral selection process and the failure of the jury commissioners to acquaint themselves with a representative number of African-Americans eligible for jury service, we conclude that Rideau proved a prima facie case of unconstitutional grand jury venire selection and composition.
A telling sign that the prevalent statistical underrepresentation of minorities on the grand jury venires resulted from racial discrimination was the commission's venire selection procedure, which was "susceptible of abuse or [was] not racially neutral."Castaneda, 430 U.S. at 494. According to Mr. Hillebrandt's testimony, as supported by the general venire identification cards introduced at the two state evidentiary hearings, and not disputed here, each potential grand jury venire member's identification information was entered onto a card that also indicated the race of each person. S.J.T. III, at 128. In cases in which the jury commissioners have had access to the racial identity of potential grand jurors while engaged in the selection process, the Supreme Court has repeatedly found that the procedure constituted a system impermissibly susceptible to abuse and racial discrimination.Castaneda, 430 U.S. at 495 (finding that the non-random selection of names of grand jurors was susceptible to abuse because Mexican-Americans were easily identifiable by their Spanish surnames);Alexander, 405 U.S. at 630 ("[W]e do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves are not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination.");Whitus, 385 U.S. at 548-49 (finding a selection system was susceptible to abuse where potential grand jurors were selected from segregated tax digest lists, which also coded African-Americans with a "(c)" behind each name);cf.Avery v. Georgia, 345 U.S. 559, 562 (1953) (finding that the practice of placing potential petit jurors' identification on yellow cards if they were African-American and on white cards if they were white "[o]bviously . . . makes it easier for those to discriminate who are of a mind to discriminate." (quoted approvingly inAlexander, 405 U.S. at 631)).
That Mr. Hillebrandt testified that he did not intentionally seek to discriminate against prospective grand jurors by using cards bearing racial identifications, and that he did not know whether the other jury commissioners did so, does not dissipate a prima facie case established under the Court's decisions.Norris v. Alabama, 294 U.S. 587, 598 (1935) ("If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the [Equal Protection Clause] would be but a vain and illusory requirement.");see alsoAlexander, 405 U.S. at 630 (finding the racial identification in the selection process impermissible "although there is no evidence that the commissioners consciously selected by race");Whitus, 385 U.S. at 551 ("While the commissioners testified that no one was included or rejected on the jury list because of race or color this has been held insufficient to overcome prima facie evidence.");Eubanks, 356 U.S. at 587 (quoting above passage fromNorris);Reece, 350 U.S. at 88 ("[M]ere assertions of public officials that there has not been discrimination will not suffice."). The Supreme Court has spoken to this point in words that are equally applicable to the present case:
As inWhitus v. Georgia,supra, the clerk of court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. . . .The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.
Alexander, 405 U.S. at 632 (internal quotations and citations omitted).
Consequently, we conclude that Rideau established a prima facie case of racial discrimination in the process used to select the grand jury that indicted him. The State produced no evidence to rebut any portion of Rideau's prima facie case in either the two state evidentiary hearings or the federal district court proceedings. The only evidence the State can point to is Mr. Hillebrandt's testimony that neither he nor any other commissioner to his knowledge used the race-coded identification cards to intentionally exclude African-Americans from grand jury venires. As we have noted, however, such disclaimers are insufficient to rebut a prima facie showing of discrimination. The State must "show[] that permissible racially neutral selection criteria and procedures have produced the monochromatic result," and it has made no strides in making such a showing, either here or in the state courts.Alexander, 405 U.S. at 632.
Accordingly, Rideau's conviction must be reversed and his unconstitutionally obtained indictment quashed.Vasquez, 474 U.S. at 264 ("The overriding imperative to eliminate this systematic flaw in the charging process, as well as the difficulty of assessing its effect on any given defendant, requires our continued adherence to a rule of mandatory reversal.").
[I]ntentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century-the only effective remedy for this violation-is not disproportionate to the evil that it seeks to deter. If grand jury discrimination becomes a thing of the past, no conviction will ever again be lost on account of it. 262. However, as the Supreme Court noted inHill, "A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict him and try him again by the procedure which conforms to the constitutional requirements." 316 U.S. at 406. Consequently, the State of Louisiana is free to seek another indictment and retrial of Rideau in accordance with the Constitution, the laws, and this opinion.
For the foregoing reasons, we REVERSE and REMAND to the district court with instructions to issue the writ of habeas corpus unless, within a reasonable time to be designated by the district court, the State should again indict and try Rideau.

SMITH v. MASSEY(10thCir 12/19/00 - No. 99-7143) Defendant did not suffer ineffective assistance of counsel in murder trial where counsel represented her and her co-conspirator son where she failed to object at trial and expressed an unwillingness to accuse her son of the murder alone.

Ineffective assistance of trial counsel - conflict of interest
Smith contends she was denied her Sixth Amendment right to effective assistance of counsel because her attorney, Monte Strout, simultaneously represented her and her son Greg against the murder charges even though they had conflicting interests. According to Smith, "there was ample evidence Greg wanted Baillee killed and manipulated [Smith's] maternal protective instincts to accomplish that end." Smith's Opening Br. at 15. Due to the conflict of interest, however, Smith alleges that Strout failed to develop this theme at Smith's trial, "consistently attempted to exclude evidence pointing to Greg's culpability," and "consistently underemployed such evidence that came in naturally as witnesses related events." Id. The result, Smith argues, was that "the State had free rein to assert [she] was . . . the embodiment of maniacal evil," which in turn resulted in the jury sentencing her to death. Id.
A criminal defendant's Sixth Amendment right to effective assistance of counsel, which is rooted in "the fundamental right to a fair trial," Strickland v. Washington, 466 U.S. 668, 684 (1984), includes the right to conflict-free representation. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). This right is unaffected by a defendant's decision to retain his or her own counsel. See Stouffer v. Reynolds, 168 F.3d 1155, 1161 (10th Cir. 1999). As the Supreme Court has noted, "[t]he vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection." Cuyler, 446 U.S. at 344.
Where, as here, a defendant raises no objection at trial, her later assertion that her counsel was representing potentially conflicting interests is insufficient to establish a Sixth Amendment violation. Id. at 348. Instead, "[i]n order to establish a violation of the Sixth Amendment [right to effective counsel], a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected h[er] lawyer's performance." Id. (emphasis added). "During joint representation, an actual conflict of interest arises if the codefendants' interests `diverge with respect to a material factual or legal issue or to a course of action.'" Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Cuyler, 446 U.S. at 356 n. 3). "The adverse performance requirement is satisfied if the attorney took action on behalf of one client that was necessarily adverse to the defense of the other or failed to take action on behalf of one because it would adversely affect the other." Wilson v. Moore, 178 F.3d 266, 280 (4th Cir.) (internal quotations omitted), cert. denied, 120 S. Ct. 191 (1999). If a defendant asserting an ineffective assistance of counsel claim based on conflict of interest is able to make these showings, "[p]rejudice is presumed and the applicant is entitled to relief." Id.
Smith first raised the conflict of interest issue in her direct appeal. In particular, Smith argued that "the possibility of a conflict of interest was apparent to the trial judge and he should have taken action to remedy the apparent conflict." Smith I, 727 P.2d at 1369. In rejecting the issue, the OCCA noted there was "no record of an objection to th[e] appointment [of Strout to represent Greg] based upon a conflict of interest, nor were any objections made by the codefendants." Id. The OCCA then identified and applied Cuyler, concluding:
There is no evidence that a conflict of interest arose during the course of appellant's trial. She asserts, however, that an actual conflict of interest is shown by the defense theory in Greg Smith's trial that the appellant alone planned and carried out the killing of Cindy Baillee. But this theory was used only after the appellant's conviction, and was first presented by defense counsel during closing argument in Greg Smith's trial, which occurred six months after the appellant's conviction. She also asserts that defense counsel prevented the State from calling Greg Smith as a witness, and speculates concerning his possible testimony. The possibility which is not addressed by the appellant is that Greg Smith's testimony would have severely damaged his mother's case.
As nothing in the record exists to alert the trial judge that a conflict of interest existed, and the appellant has not shown an actual conflict of interest, but merely speculated on the possibilities, we find this assignment of error to be without merit.
Smith reasserted the issue in her application for post-conviction relief, asserting in part that her counsel on direct appeal had inaccurately alleged that a possible conflict existed when, in fact, an actual conflict existed. Because the general issue had been raised by Smith in her direct appeal, the state district court concluded that further consideration of the issue was barred by res judicata and, in any event, Smith failed to demonstrate she was deprived of her right to effective assistance of counsel. Although the state district court conducted a limited evidentiary hearing on the issue, it made no factual findings regarding the alleged conflict of interest issue. On appeal, the OCCA disposed of the claim on the merits:
Petitioner sets out the following as demonstrating actual conflict of interest:
1. Defense counsel Monte Strout's acquiescence in Petitioner's expressed demand that "[a]bove all else, you've got to save Greg."
2. Defense counsel's loyalty to Greg as demonstrated in his argument to sever their trial where he argued that because all the evidence at the preliminary hearing pointed at Petitioner as the shooter, Greg would be unduly prejudiced.
3. The failure to call Greg as a witness in Petitioner's trial to corroborate her testimony for fear it might implicate and discredit him, thereby again demonstrating his loyalty to Greg.
4. Defense counsel's strategy to use the "alibi defense" (that Teresa Baker DeMoss had actually committed the offense) without corroboration from Greg or otherwise, where there was evidence implicating Greg as the "principal actor in the murder."
We have examined the record of the post-conviction proceedings below, considered Petitioner's argument and find that Petitioner has failed to demonstrate that defense counsel's representation amounted to an actual conflict of interest which adversely affected defense counsel's performance.
Smith II, 915 P.2d at 930 (footnotes omitted).
After Smith filed her federal habeas petition, the district court referred the case to the magistrate court to conduct an evidentiary hearing "on the issue of whether Petitioner was advised by counsel of a potential conflict of interest and, if so, whether Petitioner knowingly and voluntarily waived any such conflict." Record Vol. VII, Doc. 62. Strout was the sole witness at the evidentiary hearing. After the hearing, the magistrate issued its report (Id., Vol. VIII, Doc. 89), finding:
1. Strout met with Nadine and Greg shortly after their arrest and was informed by both that Nadine "had shot Cindy Baillee and that Greg Smith was in another part of the house with Teresa Baker [DeMoss] when the murder occurred."
2. Strout advised Smith and Greg "of the possibility of a potential conflict of interest and discussed the possibility of other counsel handling the case."
3. Smith "was insistent that she wanted Mr. Strout, because she trusted him."
4. Although Strout believed Smith was concerned for Greg's welfare, he felt she "was honestly relaying what had occurred to him."
5. Strout stressed "to both [Smith] and her son that, in the event either of their stories changed, they should contact him immediately because other counsel might have to take over the case." Strout "advised [Smith] and her son that if any change occurred in their version of events or, if third party information surfaced which altered their version of events, he would more than likely not be able to represent [Smith] or her son."
6. Smith "understood that a potential conflict could arise and she understood the potential risks involved."
7. Smith's "version of events remained consistent at [her] trial concerning the actions of" Greg. Specifically, Smith testified Greg "was in the back room [of Jim Smith's house] listening to the stereo when the shooting occurred."
The district court affirmed the magistrate's findings. In disposing of Smith's habeas petition, the district court concluded:
After considering Petitioner's allegations, this Court ordered an evidentiary hearing for the sole purpose of ascertaining whether Petitioner was advised of a "potential conflict of interest" and, if so, whether Petitioner waived said conflict. After conducting an evidentiary hearing, the Magistrate Judge found that counsel advised both Petitioner and Greg Smith of the possibility of a potential conflict of interest and discussed the possibility of other counsel handling the case. This Court, after reviewing the transcript from the evidentiary hearing, affirmed the Magistrate Judge's findings and recommendation. Based upon the testimony presented not only at the state court evidentiary hearing, but also at the evidentiary hearing held before the Magistrate Judge, this Court finds that, at the time of Petitioner's trial, an actual conflict of interest did not exist between Petitioner and her son. Accordingly, Petitioner has failed to establish that the decision of the [OCCA] is contrary to or an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.
Id., Vol. IX, Doc. 97 at 24.
The initial question we must address is whether the OCCA erred in concluding that no actual conflict of interest arose out of Strout's representation of both Smith and her son. Shortly after her arrest, Smith contacted Strout and retained him to represent her. Strout was subsequently appointed to represent Greg as well. In their initial meetings, Smith and Greg informed Strout that Smith had in fact killed Baillee and that Greg was in a back bedroom at the time of Baillee's murder. Strout advised Smith and Greg that, as long as their stories remained consistent, he could represent both of them. Strout also advised them, however, that "if any change occurred in their version of events or, if third party information surfaced which altered their version of events, he would more than likely not be able to represent [Smith] or her son." Record Vol. VIII, Doc. 89 at 3. Based upon the information obtained from Smith and Greg, as well as information obtained from the prosecution, Strout concluded there was no conflict of interest. In particular, he believed that his clients generally agreed on the material factual issues, and he concluded that the course of action for each client was compatible with the other. Strout's preferred strategy of defense for Smith was to argue that, at the time of the murder, she was impaired by alcohol and drugs. His strategy of defense for Greg was to argue that he was not responsible for the murder.
At some point prior to her trial (it is unclear from the record precisely when), Smith altered her story. Although she continued to admit that she choked and stabbed Baillee in the car and fired two shots into the recliner where Baillee was sitting, she alleged that DeMoss ultimately shot Baillee. In support of this new version of events, Smith alleged that DeMoss was jealous of Baillee's relationship with Greg. Smith further alleged that DeMoss was high on drugs at the time of the murder. Notwithstanding these alterations in her story, Smith continued to maintain that Greg was not involved in the murder.
At Smith's trial, Strout based his defense strategy upon Smith's "new" version of events. Although the prosecution's evidence was contrary to Smith's "new" version of events, Strout's defense strategy for Smith was to argue that DeMoss had a motive and was responsible for Baillee's murder. Strout's cross-examination of prosecution witnesses focused on highlighting DeMoss' motives and actions, as well as creating doubts regarding Smith's motives and actions. Further, Strout presented the testimony of Smith, who testified consistently with the story she told Strout, except for her refusal at trial to acknowledge that she was under the influence of alcohol and drugs at the time Baillee was murdered.
Notwithstanding Smith's arguments to the contrary, we conclude there was little basis for Strout to investigate or pursue on behalf of Smith a defense strategy that Greg was the "architect" of the murder or that he otherwise "manipulated" Smith into killing Baillee. None of the witnesses who were present in Jim Smith's house prior to or at the time of Baillee's murder testified that Greg was the "architect" or "mastermind" of the murder. Although the prosecution's evidence strongly indicated that Greg was actively involved in the murder, all of the witnesses, except for Smith herself, testified that Smith controlled the actions of Baillee and others inside the house. The prosecution bolstered this evidence by introducing a post-arrest note written by Smith to Greg in which Smith directed Greg how to testify regarding the events of the murder. Aside from the lack of evidence to support the "architect" or "manipulation" theory, we are not persuaded that this theory would have absolved Smith of criminal liability for Baillee's murder or altered the outcome of the second stage proceedings. Our review of the trial transcript demonstrates that the jury at Smith's trial was well aware during both the first and second stage proceedings that Greg was actively involved in Baillee's murder and may very well have been an equal participant in her death. Nevertheless, the jury found Smith guilty of first degree murder, found the existence of two aggravating factors, and sentenced her to death for the crime.
Further, we are convinced after examining the record that Smith would have refused to allow Strout to pursue any defense theory on her behalf that placed responsibility for the murder on Greg. Although the legal expert who testified on behalf of Smith in her post- conviction proceedings testified that Strout should have pursued the "architect" or "manipulation" theory notwithstanding Smith's wishes, this testimony is clearly inconsistent with the Supreme Court's view of the attorney-client relationship. In Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 568-69 (1990), the Court noted that "a client controls the significant decisions concerning his representation" and can thus "fire his attorney if he is dissatisfied with his attorney's performance." In light of Smith's consistent statements to Strout prior to trial indicating her desire to protect her son, Smith's own trial testimony, which itself attempted to absolve Greg of responsibility for the crime, and Smith's post-trial statements, we are unwilling to assume that Smith would have allowed Strout to pursue the "architect" or "manipulation" theory. Indeed, the evidence suggests Smith would have fired Strout and retained other counsel had he done so. Cf. Emerson v. Gramley, 91 F.3d 898, 906 (7th Cir. 1996) (concluding that trial counsel's failure to warn criminal defendant of the consequences of standing mute during the sentencing phase of capital trial was constitutionally inadequate "unless it can be said that [the defendant] would have refused to permit argument or evidence no matter what [trial counsel] . . . had said and done").
We conclude the OCCA reasonably applied Cuyler in resolving Smith's claim that Strout's representation of both Smith and her son presented a conflict of interest. In particular, we agree with the OCCA that no actual conflict of interest arose out of Strout representation of both Smith and her son.

FRYE v. LEE, (4thCir 12/22/00 - No. 00-7) Where petitioner refused to allow himself or his family to participate in the development or presentation of mitigation evidence before sentencing, and counsel nonetheless attempted to present such evidence, petitioner's counsel were not unreasonably ineffective.

Frye has raised two constitutional questions in this proceeding. Frye initially contends that he was denied his right to the effective assistance of counsel because his lawyers failed to competently prepare for the sentencing phase of his trial. Frye alleges two different bases for the ineffective assistance of his counsel. First, he asserts that his lawyers were constitutionally ineffective in not presenting the jury with supplemental witnesses and other evidence to verify and explain Frye's troubled past. Specifically, Frye maintains that additional non- family witnesses and certain documentary evidence would have provided crucial support of the mitigating circumstances presented to the jury by Dr. Noble. Perhaps more importantly, this evidence may have facilitated the jury's belief in the story of Frye's childhood, as related to the jury through Dr. Noble. Second, Frye maintains that his representation in the trial's sentencing phase was compromised by an asserted alcohol dependency on the part of Mr. Portwood. According to the district court, Portwood consumed approximately twelve ounces of liquor each evening during the course of the trial, but was never intoxicated prior to or during each day's proceedings. Frye, 89 F. Supp. 2d at 701.
Frye also contends that constitutional error is found in the sentencing court's jury instructions regarding the "heinous, atrocious, or cruel" aggravating circumstance of the Childress murder. These terms may be, without an appropriate limiting instruction, unconstitutionally vague. Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988). Although the instruction in this case was accompanied by a narrowing provision, Frye argues that the limiting language does not meet the standards required by Maynard and Godfrey v. Georgia, 446 U.S. 420 (1980).
B. As pointed out above, both of the constitutional claims asserted by Frye have been adjudicated on their merits by the North Carolina state courts. Accordingly, we review his 28 U.S.C. § 2254(d) petition under the standards recently enunciated by the Supreme Court in Wil- liams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000). Under § 2254, as interpreted by Williams, we are precluded from granting habeas corpus relief unless we find the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. at 1518. Thus Frye can only secure relief by demonstrating: (1) the state court decision was contrary to, or an unreasonable application of, federal law that (2) was clearly established.
At the threshold, we must consider whether Frye's claims are premised on "clearly established Federal law." The first claim in Frye's petition -- ineffective counsel -- is certainly based on clearly established law, notably Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that, for a conviction to be invalidated because of ineffective assistance, the defendant must show that "particular errors of counsel were unreasonable [and that those errors] actually had an adverse effect on the defense." Id. at 693. Williams involved facts somewhat similar to those here, i.e., failure to present mitigation evidence. In Williams, the petitioner argued that his claim was premised on Strickland, and it thus satisfied the requirement of being based on clearly established federal law. The Supreme Court agreed, observing that the question of whether the petition fell under clearly established law was "easily answered." Williams, 120 S. Ct. at 1511. This observation applies to Frye's ineffective assistance claim as well.
Frye's second claim -- the unconstitutional instruction -- is based on the Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1 (1990), and on a line of related authorities. Although the challenged instruction in Frye's case is similar to the one held to be unconstitutional in Shell, the instruction under challenge here contained a limiting provision that, the State argues, cures the Shell problem. While we must determine whether the State's position has validity, this second claim of Frye's petition is also governed by clearly established law enunciated by the Supreme Court.
Our conclusion that Frye's claims are premised on clearly established federal law, however, merely allows us to continue our inquiry. Even though Frye's petition is properly premised on errors of clearly established federal law, we may not grant habeas corpus relief merely because we conclude "that the relevant state court decision applied [such law] erroneously or incorrectly." Rather, the state court's "application must also be unreasonable" in order for us to grant the writ. 6 Williams, 120 S. Ct. at 1522 (emphasis added). We are cognizant of, and we are bound to apply, the Williams reasonableness standard as we analyze and consider the claims made in this proceeding.
A.1.Frye asserts that his counsel was constitutionally ineffective for failing to adequately investigate and present mitigating evidence to the jury. His claim is primarily based on his assertion that the holding in Williams, supra, is controlling in his case. In Williams, the Court held defense counsel's performance deficient for failing to adequately prepare for the sentencing phase of a murder trial. We, however, are able to identify controlling factual distinctions that doom Frye's claims. In Williams, for example, preparations were not even begun until a week before trial. And when counsel finally prepared the defense, they purposely ignored evidence of the"petitioner's night marish childhood, not because of any strategic calculation, but because they incorrectly thought state law barred access to such records[.]" Williams, 120 S. Ct. at 1514.
Another important factor distinguishing this case is that Frye adamantly refused to permit his lawyers to contact his family members or to engage their services in securing mitigation evidence. In Williams, the prisoner's counsel failed to gather the required evidence because of professional negligence, while in this situation Frye personally stymied his lawyers' efforts. As the Supreme Court concluded in Strickland, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harm- ful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691.
Based on Frye's refusal to allow himself or his family members to participate in the development or presentation of mitigation evidence, Frye's counsel came to the reasonable conclusion that attempting to find such evidence would be fruitless. Simply because a defendant objects to the development of evidence, however, does not necessarily absolve his lawyers from gathering that evidence. The Sixth Circuit, in a situation involving failure to present adequate mitigation evi- dence, observed that "reluctance on [the defendant's] part to present a mental health defense or to testify should not preclude counsel's investigation of those potential factors." Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000). Similarly, the Eleventh Circuit has found error when defendant's counsel "acquiesced in [the defendant's] defeatism without knowing what evidence [the defendant] was foregoing." Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir. 1991). See also Emerson v. Gramley, 91 F.3d 898, 908 (7th Cir. 1996).7
2.The controlling distinction in this case, however, is that Frye not only flatly forbade his attorneys from involving his family in investigating his background, but that his defense counsel also took numerous alternative steps to prepare for and present evidence of Frye's personal history. Unlike the cases arising from the Sixth and Eleventh Circuits, supra, this is not a situation where counsel completely gave up in response to reluctance or defeatism that ambiguously telegraphed the client's uninformed wishes. Frye gave repeated and explicit instructions to his lawyers about not contacting or involving family members. Nonetheless, counsel convinced him to go to Doro- thea Dix Hospital for a psychological evaluation.8 They then hired Dr. Noble to examine their client and present evidence to the sentencing jury. These steps were a logical -- and indeed thorough -- response to Frye's continued insistence that he did not want his family members "to assist in forming mitigating factors[.]" MAR Hearing at 6. As the MAR court concluded, defense counsel painstakingly informed Frye of the consequences of not involving family members in the mitigation stage. Id. Frye, however, refused to accede to the warnings and advice of his lawyers. And it is not our role to second-guess the competence of counsel in these circumstances. Fisher v. Lee, 215 F.3d 438, 447 (4th Cir. 2000); Eaton v. Angelone , 139 F.3d 990, 994 (4th Cir. 1998).
This is simply not a case involving professional negligence or lack of attention on the part of counsel. We instead perceive this to be a situation where two court-appointed lawyers endeavored to do their best, under difficult circumstances interposed by their client. Frye's counsel, as a result of their investigation, knew that Frye had suffered from serious child abuse and neglect, and they introduced evidence in that connection -- in the most effective way possible under the circumstances. However, Frye now claims that the method of introducing the evidence -- through Dr. Noble -- was constitutionally inadequate, in part because Dr. Noble was not presented with suffi- cient background information about Frye. In this regard, Frye relies on our decision in McCarver v. Lee, 221 F.3d 583, 595 (4th Cir. 2000), where we concluded that "it is sound and reasonable trial strat- egy to provide all available information" to an expert psychological witness.
Frye's reliance on McCarver, however, is misplaced, and he over- states its relevance in this instance. While it may be "reasonable" to provide an expert witness with all available information, we did not hold in McCarver that it is per se"unreasonable" to fail to provide the expert with such information. Importantly, Frye's attorneys simply did not possess all the relevant information, and they were not privy to it, because of their client's steadfast refusal to allow them to complete a full investigation.9 Significantly, however, counsel provided Dr. Noble with a "stack" of documents from Dorothea Dix Hos- pital, which was all the "available information" they were able to provide while honoring their client's explicit instructions.
Dr. Noble testified at the MAR hearing that his work in preparing for trial was constrained by the lack of time and paucity of background material, and that he was unable to testify as convincingly as he otherwise might have. However, he gave no indication, either at trial or at the MAR hearing, that he had been unable to render a competent opinion. Indeed, at the MAR hearing, he testified that supplementary materials concerning Frye's background (which Frye's trial counsel did not uncover and therefore did not present to Dr. Noble before his testimony) had "not really altered[his] diagnosis[.]" J.A. 418.
The purpose of Frye's pretrial meeting with Dr. Noble was to develop additional evidence and history, which Frye was unwilling to allow his lawyers to uncover by way of interviews with his family. Frye only agreed to meet with Dr. Noble on the insistence of his counsel, which led to a compromise -- between Frye and his lawyers -- that Frye would accept expert testimony as an alternative way of presenting mitigating evidence. In these circumstances, any diminu- tion in the effectiveness of Dr. Noble's testimony did not result from his counsel's lack of competence, but emanated directly from Frye's refusal to follow their advice.
Notwithstanding the complications hindering its development, Dr. Noble's testimony was effective, as demonstrated by the jury's accep- tance of thirty-four of the fifty-nine mitigating circumstances. Whether Dr. Noble could have been more effective if corroborated by other evidence is speculative. We must, under the law, judge the rea- sonableness of the lawyers' conduct as of the time their actions occurred, not the conduct's consequences after the fact. Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hind- sight, to reconstruct the circumstances of counsel's challenged con- duct, and to evaluate the conduct from counsel's perspective at the time."); see also Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991) ("When examining ineffective assistance claims, however, we must appreciate the practical limitations and tactical decisions that trial counsel faced."). In this situation, the presentation of mitigation evidence through Dr. Noble was a reasonable solution to the dilemma faced by Frye's lawyers.
3.In our analysis of the ineffective assistance claim alleged by Frye, we are mindful that in North Carolina -- as in most jurisdictions -- the client must be permitted by his lawyers to control his own defense, as long as he is "fully informed" in making his decisions. See State v. White, 508 S.E.2d 253, 273 (N.C. 1998), cert. denied, 527 U.S. 1026 (1999); State v. Wilkinson, 474 S.E.2d 375, 382 (N.C. 1996) ("The attorney is bound to comply with her client's lawful instructions, `and her actions are restricted to the scope of the author- ity conferred.'") (quoting People v. Wilkerson, 463 N.E.2d 139, 143- 44 (Ill. App. Ct. 1984)); State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991).
Frye's attorneys took reasonable steps to comply with their profes- sional responsibilities in this regard. Frye's decision not to allow his family to aid in mitigation was unchanged after repeated discussions where his lawyers explained their displeasure with his position, and the consequences thereof. The MAR court specifically found that:
Mr. Portwood engaged in several conferences with the defendant wherein he sought to convince the defendant to permit the defense to produce mitigating evidence. Also, Mr. Portwood tried to convince the defendant to permit family members to testify.
MAR Hearing at 6. There is simply no basis for us to conclude that this finding of fact is unreasonable. Williams , 120 S. Ct. at 1522. Indeed, this finding is fully supported in the record, and it is uncontroverted. Were we to hold that Portwood and Cummings rendered ineffective assistance, despite their repeated attempts to have Frye change his mind on presenting mitigation evidence, we would be forcing defense lawyers in future cases to choose between Scylla and Charyb- dis.10 If the lawyer facing a reluctant client accedes to the client's requests, he might be constitutionally ineffective. On the other hand, if the lawyer defies his client's wishes, and in so doing presents evidence that harms the client, he might render ineffective assistance and commit malpractice as well.
B. Frye also contends, in connection with his ineffective assistance claim, that Portwood's asserted alcohol dependency rendered him incapable of providing constitutionally effective assistance up to and during the sentencing phase of the trial. We are indeed troubled by Portwood's acknowledgment of a decades-long routine of drinking approximately twelve ounces of rum each evening. However, the district court found that Portwood "never consumed alcohol during the work day and never performed any work on the case when he had consumed alcohol." Frye, 89 F. Supp. 2d at 701. We agree with our sister circuits that, in order for an attorney's alcohol addiction to make his assistance constitutionally ineffective, there must be specific instances of deficient performance attributable to alcohol. See Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995); Cabarello v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Berry v. King , 765 F.2d 451, 454 (5th Cir. 1985); Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir. 1984). In this case, there is no evidence of specific instances of defective performance caused by Portwood's alcohol abuse.11 Furthermore, it is significant that Frye was not represented by Portwood alone -- he had the benefit of two court-appointed lawyers assisting in his defense. And no attack is made on the professional capacity of Mr. Cummings. See Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir. 1990) ("[T]he presence of a second attorney during the proceed- ings seriously undermines appellant's claim of ineffective assistance of counsel.").

SKAGGS v. PARKER(Modified dicta) (6thCir 12/18/00 - No. 98-6249) Defendant's counsel provided ineffective assistance in penalty phase of murder trial by using same expert witness to testify to defendant's mental incompetence used in the guilt phase where the expert's testimony had been bizarre and eccentric.


CANTELLOPS v. ALVARO-CHAPEL (1stCir 12/18/00 - No. 99-2323) Where a jury provides seemingly inconsistent responses to verdict interrogatory questions approved by all litigants, the jury verdict will stand if the responses can be reconciled on any theory.

US v. BROWN(1stCir 12/18/00 - No. 00-1046) Conditions to supervised release are intended to be tailored specifically for each occasion, so even onerous requirements are not "departures" from the Sentencing Guidelines. Further, since such conditions are meant to ease a prisoner's return to society, the district court did not commit plain error in requiring cocaine dealer to abstain from drinking alcohol.

FAMA v COMM'R OF CORRECTIONAL SERV.(2ndCir 12/21/00 - No. 99-2586) While district court erred in its non-exhaustion and procedural bar determinations, and in denying petitioner's motion to amend his petition, petitioner failed to show any substantial evidence that would require a finding that he did not receive a fair trial.

HUDSON v. HUNT(4thCir 12/20/00 - No. 99-7314) Where defendant's counsel merely informed defendant that they do practice appellate law, but did not inform of his right to appeal, they were constitutionally deficient for failing to consult with defendant regarding an appeal.

BRONAUGH v. OHIO(6thCir 12/19/00 - No. 99-3886) Where 362 days passed between petitioner's completion of direct review under Rule 26(B) and filing of petitioner's habeas corpus petition, convicted prisoner timely filed petition for habeas corpus relief under the one-year statute of limitations under 28 USC 2244(d).

WHITE v. MCANINCH(6thCir 12/21/00 - No. 98-4267) Trial counsel's "strategy" of allowing and encouraging testimony about uncharged act of sexual intercourse between defendant and victim fell well below objective standard of reasonableness and, combined with "woefully inadequate" trial preparation, violated defendant's Sixth Amendment rights.

OWENS v. BOYD(7thCir 12/19/00 - No. 00-1521) The timeliness of a state prisoner's petition for collateral relief from federal court is a question under 28 USC 2244, not under the Constitution, so an error in treating a collateral attack as untimely is not enough to support a certificate of appealability.

VALONA v. US PAROLE COMM'N(7thCir 12/22/00 - No. 00-2971) Where federal offender was released on parole and presumptively entitled to release from supervision after five years, Parole Commission retained discretion to deny release if unresolved criminal investigation involving parolee remained ongoing.

US v. BAILEY(8thCir 12/22/00 - No. 99-3050, 99-3244, 99-3225) Record showed defendants carried weapons in relation to the underlying drug conspiracy and that they could not establish the actual innocence necessary to overcome their default of their Bailey issue.

MCMAHON v. U.S.(10thCir 12/21/00 - No. 00-5001) Recantation defense is available under 18 USC1623(d) only to "the person making the declaration," not to non-declarant of false testimony, and defendant must make substantial showing of attorney's failure to request a downward departure to support ineffectiveness of counsel claim.

SMITH v. STATE OF KANSAS (10thCir 12/21/00 - No. 00-3134) Petitioner failed to make a "substantial showing of a denial of a constitutional right" where he failed to exhaust his remedies under the Kansas Interstate Agreement on Detainers Act.

Section1983 & Related Filings

No cases noted this week.

InDepth Feature

This week's feature examines developments in the battered woman's syndrome defense in light the Massachusetts Supreme Judicial Court's landmarkCOMMONWEALTH vs. CONAGHANwhich held that BWSD can be used for crimes against third persons in some circumstances. From the National Law Jounral,

In a ruling that could expand the rights of women using the battered woman defense, Massachusetts' highest court said a woman who wants to change her guilty plea in her son's death may be tested for the disorder.
The state Supreme Judicial Court ruled in the case of Deborah Conaghan, who pleaded guilty to manslaughter in 1992 in the death of 5-year-old Garrett Swinson and was sentenced to 12 to 18 years in prison.
Conaghan later tried to withdraw the guilty plea, claiming that her boyfriend, Paul Haynes, forced her to abuse her son and that she obeyed to keep him from beating the boy even more harshly.
Her lawyer, Dana Curhan, said the ruling would expand women's access to post-conviction examinations in Massachusetts, and that it also implicitly legitimized battered woman syndrome as a possible defense in a crime against a third party.
The syndrome has traditionally been used to excuse crimes against abusers, but Curhan said it might now be considered in crimes committed by victims against others.
"My client says that she participated in a crime because she was afraid of the batterer,'' Curhan said. "It's not a self-defense but more a necessity context.''
Curhan acknowledges that Conaghan participated in the crime, but says it is more likely that Haynes struck the fatal blows and forced her to falsely confess. Haynes is serving a 30- to 50-year sentence for forcible rape of a child and other child abuse convictions.
In Friday's 4-3 ruling, the Judicial Court did not rule on the merits of Conaghan's case, but it said her motion raises questions about whether she was mentally fit to plead guilty voluntarily or help her attorney establish a defense.
It said her motion cannot be decided until she is examined by an expert on battered woman syndrome. Then the Worcester Superior Court will decide whether Conaghan should get a new trial.
Prosecutors had said that Conaghan wasn't credible because she waited two years after her sentencing to try to withdraw her plea.
But Justice Ruth Abrams said evidence of battered woman syndrome could warrant a new trial.
"Usually there is delay in coming forward with information on the abuse, even if there were some knowledge of the abuse at trial,'' Abrams wrote.
Curhan, said he didn't know if battered woman syndrome had ever been used as a justification to withdraw a plea in Massachusetts, though the issue has been raised in courts in other states.
In a dissenting opinion, Justice Martha Sosman said the majority ruling tried "to solve what it perceives as a miscarriage of justice'' even though there was little evidence that battered woman syndrome could have helped in Conaghan's defense or prevented her from pleading guilty.
At her plea hearing, Conaghan was specifically asked if she had been threatened, and she replied, "No.''
However, her lawyer had presented evidence that Haynes was a habitually abusive personality who may have pressured her into a false plea and had similarly abused other women and their children.
"He'd say to these mothers, 'If you don't punish this child, I will,''' Curhan said. "They would punish them to avoid a more severe beating, to avoid a more severe punishment from Haynes.''


From theDeathPenalty Information Centerreports:

Famous Prison Journalist's Conviction Overturned
The U.S. Court of Appeals for the Fifth Circuit overturned the murder conviction of celebrated author and editor, Wilbert Rideau, who has been in prison in Angola, Louisiana for 39 years. Rideau, who has served for 25 years as the editor of the award-winning prison publication, The Angolite, had been on death row until 1972, when the Supreme Court overturned all death sentences. Rideau's conviction was reversed because of racial discrimination in the selection of the grand jury which indicted him. The state plans to appeal to the U.S. Supreme Court, and even if they lose, Rideau could be retried. (NY Times, 12/23/00)
Wrongly Convicted Inmate Denied Parole
Earl Washington, the former death row inmate whose DNA tests led to an absolute pardon earlier this year by the governor of Virginia, was denied parole on an unrelated charge of malicious wounding. Washington, who suffers from mental retardation, has been in prison for 18 years. Other inmates convicted of the same crime have been paroled on average after serving 30% of their time, which would have meant that Washington could have been released after 10 years. Washington came close to execution on the charge for which he had been wrongly convicted. (Washington Post, 12/23/00)
Last Execution for 2000
The last scheduled execution for 2000 occurred in Arkansas on Dec. 19. David Johnson became the 85th person executed this year. Johnson's trial attorney was also serving time in prison. Contact DPIC for a copy of our Year End Report on the death penalty in 2000 - "A Watershed Year of Change."
New Voices
U.N. Secretary General Kofi Annan, upon receiving 3.2 million signatures of people seeking an end to executions presented to him by Sister Helen Prejean:
"The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree." (Washington Post, 12/9/00)
R. Emmett Tyrrell, Jr., Editor-in-Chief, The American Spectator Magazine:
"The most compelling reason for ending state executions is that, though the state has a right to defend its citizenry, capital punishment merely silences life. It neither dramatizes the horror of crime nor speaks out for life. It was once thought to do both, but not in our brutal society. Capital punishment actually adds to the increasing anger and morbidness of society." (12/14/00)
Recent Editorials Focus on Death PenaltyWashington Post Editorial
"The newfound enthusiasm among some capital punishment supporters for DNA testing is welcome, but it is also an inadequate response to the systemic failures that lead to wrongful convictions....It offers, rather, a window on the system's performance, and the view through that window has not been pretty.
. . .
"At the point of execution, the justice system makes a decision to bury any residual doubts and whatever remaining questions a particular conviction might present. But the system will never be as infallible as capital punishment is irreversible. With its failures now so evident, those who would be executioners ought to display more humility."
(Washington Post, 12/16/00)
Los Angeles Times Op-Ed by Anthony Amsterdam
In light of the recent U.S. Suprme Court's decision in the Florida election case overturning the Florida Supreme Court, Professor Anthony Amsterdam reflected on the high court's death penalty decisions:
"In 1983, a majority of the Supreme Court rejected a claim by a condemned Florida inmate that the Florida courts had violated his federal constitutional rights by flagrantly disregarding clear, long-settled rules of Florida law in sentencing him to death. The U.S. Supreme Court opinion, written by Justice William Rehnquist, declared that the federal courts and the federal constitution could have nothing to do with the matter, because Florida law is whatever Florida courts say it is, and their interpretations of Florida law are unreviewable by federal Supreme Court justices.
. . .
"To take human life by decisions made in this way -- as the court has done again and again in the past 2 decades -- is among the greater crimes for which the court can now be held accountable on the record it has made for history and eternity."
(Los Angeles Times, 12/17/00)(Professor Amsterdam argued and won the pivotal case of Furman v. Georgia, which stopped the death penalty temporarily in 1972)

A discussion list for legal professionals doing capitallitigation isin the beginning stages. The hope of the new list is toget somecross-pollination of ideas, as well as to give those practitioner's,whomay not be at a public defender's office or similar non-profit, a forumto seek advice and bounce ideas around. The list is private, and moderatedonly to try to weed out prosecutors and law enforcement.



As always, this newsletter was put together,flying by the seat of my pants,and only reviewed while under the influenceof a caffeine induced stupor,or put another way, please excuse any creativeuse of the mother tongue,typos and/or errors.

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