Two opinions of note are had, one good and one not so good.

In Ben-Yisrayl v. Davis, the Seventh Circuit grants relief on repeated references in the prosecution's closing to Ben-Yisrayl's silence. “'Let the Defendant tell you' was purposeful, directed at Ben-Yisrayl individually, and intended to guide jurors to an impermissible inference under the Fifth Amendment. The progression of the prosecutor’s words constitute clear and convincing evidence rebutting the Indiana Supreme Court’s finding that the jury in this case could not reasonably have interpreted the prosecutor’s comments as a suggestion to infer guilt from the defendant’s silence."

In an opinion that has been roundly condemned in the mainstream and legal press In re Wilson, the Fifth Circuit denies relief on a mental retardation claim on the basis that the claim was filed out of time. Without getting into the minutae of the then existing rules "two forum" rule in Texas and the Fifth Circuit counsel filed his Atkins claim within the applicable time-limits of the AEDPA. The district court then permitted Wilson to exhaust his remedies. Following exhaustion Wilson refiled in the federal district court. Unfortunately for Wilson the Fifth Circuit holds by not also filing in the Fifth Circuit as a successor petition the petitioner was out of time, that Wilson's counsel should have filed defensively in every possible court. More here.

Three great year end round-ups are noted. DPIC's year end review is reporting that death sentences for the current year reached historic lows, executions have appeared to stabilize around 60 and that, unlike several years ago, state legislatures seem less willing to kill for votes. Criminal Appeal offers up a great review of the California Supreme Court's capital jurisprudence noting 26 losses on direct appeal this year in 26 direct appeals. The Dallas Morning News notes, here, that capital prosecutions have dropped in that county and statewide in Texas, including just two death verdicts in Harris County. County officials estimate that one million dollars a year have been saved by being more selective in choosing who they seek to kill.

Governor Warner continues his war on wrongful conviction with 300 more tests ordered to be done in Virginia on backlogged DNA, two wrongfully convicted have already been released a few days before Christmas. Ken Strutin over at LLRX has developed this resource list for innocence related issues. On the special session of the NY Legislature called by Gov. Pataki to reinstate the Empire State's death penalty, Pataki lost. The Virginia Capital Case Clearinghouse at the Washington and Lee University School of Law has launched a new web site offering materials and resources for capital defense attorneys at www.vc3.org. A new resource is available in the constant discussion about deterrence, Donohue III, John J. and Wolfers, Justin, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" Stanford Law Review, Vol. 58, December 2005.

Full edition archived at http://capitaldefenseweekly.com/archives/051226.htm

Thanks to those that have visited the site or read the email edition in 2005, especially considering all the life changes and felony trials this past year. A special thanks to those of you who took the time to email information, ideas, links, or attachments that led to postings here, or perhaps more importantly, forwarded on trial tips that lead to a pretty good year for most of my clients. I have truly enjoyed working on this project for the past year, but as always please forgive the typos in advance & thanks for reading. - k

Recent Executions

December

2 Kenneth Boyd (North Carolina)

2 Shawn Humphries (South Carolina)

5 Wesley Baker (Maryland)

13 Stanley Williams (California)

14 John Nixon (Mississippi)

Pending Executions

January

17 Clarence Ray Allen (California)

19 John Spirko (Ohio)

19 Julius Murphy (Texas)

20 Perrie Simpson (North Carolina)

24 Clarence Hill (Florida)

25 Marion Dudley (Texas)

31 Jaime Elizalde (Texas)

31 Arthur Rutherford (Florida)

More Execution information

Favoring Life and Liberty

Ben-Yisrayl v. Davis, 2005 U.S. App. LEXIS 27166 (7th Cir 12/13/2005) In challenging Ben-Yisrayl to explain his confession to the jury, the prosecutor invited the jury to infer guilt from Ben-Yisrayl's silence at trial.

Ex parte Adams, 2005 Ala. LEXIS 217 (Ala 12/23/2005) Death sentence vacated in light Roper v. Simmons.

Favoring Death

Vinson v. True, 2005 U.S. App. LEXIS 27416 (4th Cir 12/15/2005) Relief denied on "three issues: (1) whether the district court erred in failing to hold an evidentiary hearing on Vinson's claim that his trial counsel operated under an unconstitutional conflict of interest; (2) whether Vinson was denied effective assistance of counsel; and (3) whether the state failed to disclose material exculpatory evidence. "

Herron v. Dretke, 2005 U.S. App. LEXIS 27667 (5th Cir 12/14/2005) Relief denied. What issues on which relief was denied remains a mystery as the Court failed to even deign to mention on what issues it denied relief.

Spirko v. Bradshaw, 2005 U.S. App. LEXIS 28684 (6th Cir 12/22/2005) (unpublished) Spirko filed a Rule 60 claiming fraud. “[T]he district court was correct in addressing Spirko's fraud claims on their merits“ rather than as a successive petition. Relief denied.

Parson v. Warden, 2005 U.S. App. LEXIS 27785 (9th Cir 12/13/2005) (unpublished) Pro se appeal denied. District court found claims unexhausted and permitted dismissal without prejudice to exhaust.

Williams v. Ornoski, 2005 U.S. App. LEXIS 27089 (9th Cir 12/12/2005) Tookie fails to meet the gatekeeping provision for § 2244(b) on what appears to be claims relating to innocence.

In re Wilson, 2005 U.S. App. LEXIS 28906 (5th Cir. 12/13/2005) Petition held to be filed out of time as the court finds filing in wrong court doesn't toll time for AEDPA purposes, even where the state affirmatively misleads a petitioner on where to file.

People v. Robinson, 2005 Cal. LEXIS 13680 (Cal 12/15/2005) Judgment affirmed in its entirety. Relief denied most notably according to the concurring opinion, that the defendant had waived a challenge to penalty-phase victim impact evidence, but also stating that some of the testimony of the victim's family was not admissible because it constituted opinion or characterization of the crime or defendant, rather than reflecting on loss to society or family caused by the victim's death. [Hattip to Criminal Appeal blog, focuses on California criminal appellate and post-conviction law.]

Grandison v. State, 2005 Md. LEXIS 748 (Md 12/16/2005) The court held, "first, that given the overwhelming evidence of guilt, defendant had not established that certain evidence that he claimed had not been made available to him would have made any difference in his outcome, so there was no Brady violation. Second, there was no Sixth Amendment violation in the procedure under which, after finding facts of death eligibility beyond a reasonable doubt, the jury then went on to exercise its judgment in weighing aggravating and mitigating circumstances looking to a preponderance of the evidence. Finally, the plain language of the statute indicated that although for the most part only principals were death eligible, there was an exception for those who procured murders for hire."

State v. Sigmon, 2005 S.C. LEXIS 372 (S.C. 12/19/2005) Relief denied on whether since the murder indictments did not include aggravating circumstances, he was denied his constitutional right to notice of the charges against him.

Porterfield v. State, 2005 Tenn. Crim. App. LEXIS 1274 (Tenn. Crim.App. 12/13/2005) Relief denied. “The Petitioner argued that his sentence is illegal because the indictment failed to allege the aggravating circumstances relied upon to support the death penalty, that the state erroneously introduced evidence of a non-violent conviction in support of one of the aggravating circumstances, and that the death penalty statute is unconstitutional. “

Burns v. State, 2005 Tenn. Crim. App. LEXIS 1282 (Tenn. Crim. App. 12/21/2005) Relief denied on whether: " (1) he was denied a fair post-conviction evidentiary hearing; (2) he was denied due process; (3) trial counsel were ineffective; and (4) the imposition of the death penalty is unconstitutional."

State v. Duke, 2005 N.C. LEXIS 1314 (N.C. 12/16/2005) Relief denied on numerous issues including prior bad acts in the guilt & penalty phase; prosecutors comments about his belief in the defendant's guilt; jury instruction on confession; exclusion of evidence of the defendant's remorse; did the jury hang / penalty phase deadlock charge; prosecutor's closing went beyond the evidence; and constitutionality of the N.C. post-McKoy instructions.

Jackson v. Carroll, 2005 U.S. App. LEXIS 28167 (3rd Cir 12/20/2005) (unpublished) Relief denied. "He argues that his attorneys were ineffective at trial because they did not have enough time to adequately prepare a defense, and because they failed to object to certain trial testimony. He also argues that he was denied a fair trial as a result of the prosecution's failure to disclose an implicit promise of immunity to a prosecution witness."

Noncapital

Edwards v. LaMarque, 2005 U.S. App. LEXIS 27088 (9th Cir 12/12/2005) (noncapital) A split panel takes up the question of whether trial counsel made a tactical decision in asking questions that waived the marital communications privilege. Counsel's " acts were not tactical but simple incompetence; alternatively, if tactical, they were objectively unreasonable; and there is a reasonable probability that but for Meyers' ineffective assistance, Edwards would have received a different verdict."

Moore v. State, 2005 Md. LEXIS 741 (Md 12/14/2005) (noncapital) A right to the assistance of experts extends to non-psychiatric experts and those who retain private counsel. Since defendant did not comply with the procedural requirements of applying for legal representation through the public defender, his constitutional rights were not violated when the state refused to pay for an expert.

Ex parte Briggs, 2005 Tex. Crim. App. LEXIS 2114 & 2174 (Tex. Crim.App. 12/14/2005) "[U]nder these particular circumstances, the failure by applicant's attorney to take any steps to subpoena the treating doctors, withdraw from the case because applicant's indigency prevented him from providing constitutionally effective assistance of counsel, or request state-funded expert assistance under Ake, constituted deficient performance. Applicant's trial counsel's financial decision to do nothing about the obvious need to develop evidence concerning Daniel's medical history did not reflect reasonable professional judgment. This was not a "strategic" decision made after a full investigation of the facts and law."

Excerpts from this Week's Cases

Ben-Yisrayl v. Davis, 2005 U.S. App. LEXIS 27166 (7th Cir 12/13/2005) In challenging Ben-Yisrayl to explain his confession to the jury, the prosecutor invited the jury to infer guilt from Ben-Yisrayl's silence at trial.

The Indiana Supreme Court's decision denying Ben-Yisrayl's Fifth Amendment claim was based upon its factual determination that the prosecutor's comment, "Let the Defendant tell you" was not directed at Ben-Yisrayl individually, but, "a challenge directed at defense counsel" that, "invited defense counsel to explain, in its closing argument," why the jury should not take the confession as valid. Ben-Yisrayl I, 690 N.E.2d at 1148 n.17. We find this determination by the Indiana Supreme Court unsupported by sufficient evidence. Just seconds before the prosecutor invited the jury to "Let the Defendant tell you," the prosecutor told the jury that "the Defendant confessed to killing these two people with his shotgun." Trial Record at 5568, quoted in Ben-Yisrayl III, 277 F. Supp. 2d at 901. Specifically, the prosecutor stated:

I told you in the opening statement that the Defendant confessed to killing these [two] people with his shotgun. We proved that. We told you that was the cornerstone of [*15] our case and why? Because it is self evidence [sic] that no one freely and voluntarily confesses to a murder unless they're guilty. Let the Defendant tell you why somebody would freely and voluntarily confess . . .

(Id.) Over an objection from defense counsel, the prosecutor further compounded his challenge to Ben-Yisrayl by continuing to focus the jury's attention on the defendant's confession:

I said the confessions were the cornerstone of our case because it's self evidence [sic] that no one, anybody, nobody will ever confess to a murder freely and voluntarily unless they commit sicit . . . . So if you believe that there isn't any reason for somebody to admit to murder unless they did it, you're there . . . . What are the chances that if somebody falsely accuses me of murder that within 24 hours I'm going to falsely admit to it[?] They don't match. I mean it just doesn't make sense. It's--two things don't make sense.

(Trial Record at 5570-75.) Without a doubt, the references in this argument to "the Defendant" were aimed at Ben-Yisrayl alone and not at his counsel. Thus, it was at least reasonable for the jurors to interpret the prosecutor's [*16] recommendation to "Let the Defendant tell you" as a reference to Ben-Yisrayl individually, and, therefore unreasonable for the Indiana Supreme Court to determine that no juror could have reasonably made this logical jump.

In following with the legal maxim noscitur a sociis, n2 that a term can be properly defined by interpreting the text surrounding that term, we find that the prosecutor's natural progression of references including his challenge, "Let the Defendant tell you" was purposeful, directed at Ben-Yisrayl individually, and intended to guide jurors to an impermissible inference under the Fifth Amendment. The progression of the prosecutor's words constitute clear and convincing evidence rebutting the Indiana Supreme Court's finding that the jury in this case could not reasonably have interpreted the prosecutor's comments as a suggestion to infer guilt from the defendant's silence.

Additional clear and convincing evidence rebutting the state court's finding [*17] can be found by analyzing how the prosecutor used the term "Defendant" throughout its entire closing argument. The district court also reviewed how the prosecutor used the term "Defendant" throughout the closing argument and by the district court's count, in the portion of the argument that preceded the suspect language, the prosecutor used "the Defendant" to refer to Ben-Yisrayl alone seven times n3 and used the term to refer to Ben-Yisrayl's counsel only once. n4 Our own independent review reveals an additional instance in which the prosecutor used "the Defendant" to refer to Ben-Yisrayl, n5 one where the prosecutor's use of the word "Defendant" was unclear, n6 and six in which the prosecutor referred to a generic or hypothetical defendant. n7

In the portion of the argument that followed, [*18] "Let the Defendant tell you," the district court located forty-nine instances in which the prosecutor used "the Defendant" to refer to Ben-Yisrayl alone, n8 compared to only four instances where "the Defendant" meant Ben-Yisrayl's counsel. n9 We agree with the district court's assessment of the record, and we have located two additional instances in which the prosecutor referred to Ben-Yisrayl individually as "the Defendant"; n10 one in which the prosecutor referred to a generic or hypothetical defendant n11; and one case where we find the term used ambiguously. n12

By our count, then, the part of the State's closing argument that preceded the challenged language included eight clear references to Ben-Yisrayl as "the Defendant" versus one to his counsel, and the portion after the quotation included fifty clear references to Ben-Yisrayl as "the Defendant" versus four to his counsel. As a result, in looking at the prosecutor's closing argument as a whole, these overwhelming statistics constitute further evidence that, contrary to the finding of the Indiana Supreme Court, a reasonable juror could indeed interpret "Let the Defendant tell you" as a reference to Ben-Yisrayl individually, and not to his counsel.

The respondent argues that such statistical evidence is immaterial because there is no predictive value in the prosecutor's references to Ben-Yisrayl individually as it is clear from the record that the prosecutor said "the Defendant" when he meant either Ben-Yisrayl or Ben-Yisrayl's counsel.

Respondent's argument is unavailing as the question before us is not whether the jury could ascertain with any certainty whether the prosecutor's [*20] use of "the Defendant" was a reference to Ben-Yisrayl's counsel rather than to Ben-Yisrayl individually. Instead, our inquiry is whether, based on the prosecutor's comments as a whole, it would have been reasonable for a juror to interpret the challenged prosecutor's comments as reference to Ben-Yisrayl individually. Because the Indiana Supreme Court found that it was unreasonable for any juror to interpret the prosecutor's comments as reference to Ben-Yisrayl individually, but expressed no comment on whether a juror could predict with any certainty the target of the prosecutor's comments, the respondent's argument in no way undermines the clear and convincing evidence rebutting the state court's determination.

The facts of this case, reasonably construed, indicate that the jury could have believed that the prosecutor was arguing that, because Ben-Yisrayl failed to testify as to why he would confess to a crime that he did not commit, the inference is that his confession was voluntary and true. The prosecutor's challenge to Ben-Yisrayl to explain his confession is closely analogous to the jury instruction that the Supreme Court expressly ruled unconstitutional in Griffin v. California: [*21]

As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because [they are] within his knowledge, if he does not testify . . . the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are most probable.

In re Wilson, 2005 U.S. App. LEXIS 28906 (5th Cir. 12/13/2005) Petition held to be filed out of time as the court finds filing in wrong court doesn't toll time for AEDPA purposes, even where the state affirmatively misleads a petitioner on where to file.

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year limitations period for habeas applications. 28 U.S.C. § 2244(d)(1). In cases like Wilson's, the year commences to run from "the date on which the constitutional right asserted was ... newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2244(d)(1)(C). The Supreme Court issued Atkins on June 20, 2002; thus, the one-year limitations period for filing a habeas application based on Atkins expired on June 20, 2003. See In re Hearn, 376 F.3d 447, 456 n.11 (5th Cir. 2004).

On that date, the very last day of his AEDPA limitations period, Wilson filed successive applications for habeas corpus in both federal district court and Texas state court. We dismissed without prejudice his federal application, as noted above, while his state application went forward in the Texas courts. As the time during which a properly filed application is pending in state court is not counted toward the federal limitations period, 28 U.S.C. § 2244 [*3] (d)(2), Wilson's time for filing in federal court -- with one day remaining -- was tolled for as long as his state application was pending in the Texas courts.

On November 10, 2004, the Texas Court of Criminal Appeals issued a final judgment denying Wilson's state application. This left Wilson with one business day to refile his application in federal court. As November 11 was a federal holiday, Wilson's filing deadline was November 12, 2004.

Wilson attempted to refile his successive application in the district court on November 12, but without our prior authorization as required under the AEDPA. 28 U.S.C. § 2244(b)(3)(A). Nearly a month later, on December 10, Wilson submitted a motion to us for reinstatement of the proceedings which we had dismissed without prejudice. He did not file a new motion for authorization at that time. We took no action on the motion for reinstatement, and on December 15, the district court dismissed Wilson's successive application as unauthorized.

Not until December 22, 2004, a full forty days after his filing deadline, did Wilson properly file his new motion for authorization. His application is clearly barred by AEDPA's statute [*4] of limitations and must be denied, unless he has demonstrated that he is entitled to equitable tolling of the limitations period.

****

Although the timing of Wilson's application may have been partially affected by factors beyond his control that might in some cases justify equitable tolling, we are not convinced that his case presents the sort of rare and [*5] exceptional circumstances we require before applying this "narrowest of exceptions." Fierro, 294 F.3d at 684. The actions of his counsel -- particularly in waiting until the very last day of the limitations period to file his application -- appear to us to be more indicative of brinkmanship than of careful diligence. "For equitable tolling to apply, the applicant must diligently pursue ... relief." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). As it appears readily to us that Wilson deliberately waited until the last possible moment to file his application, and thereby took a risk that could have been avoided, we decline to extend to him the benefit of equitable tolling.

Wilson contends, however, that he was prevented from timely filing in federal court by the Texas habeas corpus procedure that was in effect during the year immediately following Atkins. Until recently, a unique rule in the Texas courts prevented habeas petitioners from maintaining both state and federal applications at the same time. Often referred to as the "two-forum rule," it forced a petitioner to "decide which forum he [would] proceed in, because [the state courts [*6] would not] consider a petitioner's application so long as the federal courts retained jurisdiction over the same matter." Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App. 1977) (quoted in In re Hearn, 376 F.3d 447, 456 (5th Cir. 2004)); see also Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972) (dismissing state writ when federal courts had not dismissed parallel writ). Wilson insists that this Texas rule precluded the filing of an Atkins claim during the pendency of his initial federal habeas proceedings and that it justifies equitable tolling for his successive application.

Although we have previously recognized the potential of the two-forum rule to present a rare and exceptional circumstance for a successive habeas applicant seeking to raise an Atkins challenge, In re Hearn, 376 F.3d 447, 457 (5th Cir. 2004), n1 it does not explain Wilson's waiting until the very last day of the limitations period to file his successive application in federal court. Even if we assume arguendo that the rule did effectively force Wilson to choose between his pending federal writ petition and his successive Atkins [*7] claim, that dilemma presented itself just the same on the first day of the limitations period as it did on the last: Wilson did not in any way limit his risk of dismissal by waiting until June 20, 2003, to file. Prudence -- and diligence -- would seem to us to have required Wilson's counsel to leave himself at least a little room for error, rather than to delay his life-and-death filing to the very last minute. However great an obstacle the two-forum rule may have posed, Wilson's decision to stand mute all the way up to the statutory deadline cannot be said to have resulted from rare and extraordinary circumstances.

Wilson additionally argues that he is entitled to equitable tolling because the State misled him and the court about the proper procedure for preserving federal review of his Atkins claim. We recognize that being actively misled by an opponent concerning the timing for filing may entitle a party to equitable tolling. See Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996). Wilson has not, however, presented sufficient facts to support his allegation.

Wilson calls our attention to the State's September 16, 2003, letter urging us to deny his motion for authorization as premature. Specifically, he points to the statement that

If this Court denies Wilson's motion as premature and without prejudice, Wilson could re-file his mental retardation claim in this Court immediately after the state court renders its decision as his statute of limitations for filing in federal court is tolled while his properly filed state application for writ of habeas corpus remains pending in state court.

This is, of course, an accurate statement of the tolling rules. The only portion of the quoted text that may be even remotely [*9] misleading is the assertion that Wilson could re-file "in this Court" after the state court ruling, rather than in the district court. But surely Wilson's counsel does not require his opponent's instruction on when and where to file. Moreover, he did not even rely on this statement: When the state court's ruling came down, Wilson filed in the district court and not here. There might be a different result if, for example, the State had promised in its letter not to raise a limitations defense and then reneged on that promise; but nothing of that sort happened here. Wilson has not demonstrated that he was misled in any meaningful way by the State concerning the appropriate procedure for filing his successive habeas application such that he would be entitled to equitable tolling on that basis.