Leading off this week is the Third Circuit's ruling inJames Lambert v. Beard. The panel inLambertgranted relief onBradygrounds. The Commonwealth apparently conceded before the panel that the trial prosecutors failed to disclose evidence that its key witness initially indicated someone other than Mr. Lambert committed the offense. The panel concludes that on the facts of this case, the suppressed evidence was both exculpatory and material.

Also notable this edition is Florida's First Appellate District's decision inCriminal Specialist Investigators, Inc. v. State. InCriminal Specialist Investigators, Inc.the appellate panel granted relief in a funding dispute holding that the trial court failed to adequately weigh the importance of the role mitigation experts play in capital cases. “[R]elevant legal authorities establish that ‘mitigation coordinator’ or ‘mitigation specialist’ is the title of a legitimate job related to the defense of criminal defendants who are eligible for the death penalty.”

In legislative news, theMontana Senatehas approved a bill repealing that state's death penalty. Last Wednesday the state senate inWashingtonheld a hearing on SB 5456, a bill to repeal the death penalty in that state. On Thursdaya new death penalty repeal bill in Marylandis likely to be introduced in the legislature. Illinois Governor Pat Quinn remains on the fence on SB 3539, the bill to repeal the death penalty in that state, you can call him at his Springfield office at 217-782-6830 and also at his Chicago office at 312-814-2121, to express your thoughts.

Elsewhere, in Maryland, Gov. Martin O'Malley's administration announced Thursday that it iswithdrawing proposed regulationsneeded for executions to resume in Maryland.Ronnie Milligan, who spent 30 years on death row for the murder of a Las Vegas woman, has been granted parole following the reversal of his death sentence last year.In North Carolina, "the fledgling Racial Justice Act survived its first challenge when a Forsyth County judge rejected contentions by prosecutors that the law was too sweeping to comply with the N.C. Constitution."

Finally, the Great Recession hasn’t been kind to my ability to keep the weekly as timely as I would like. Business is up, way, way up, which was great when I was in private practice, not so much as a line trial public defender.Invariably I’ve missed a few things, such as Nita A Farahany’s incredible work over at theStanford CLB blogwhich includes a fair amount of constructive criticism on mitigation claims. Also missing has been the incredible work of Sara Mayeux, also at Stanford, at thePrison Law Blog. Similary missed, Prof. Michael Radelet's collection ofall mitigating factorsfound in Florida in the modern era. Finally, anew search functionhas been added in the right hand column of the daily blog to permit a search of all the weekly email edition’s archives.

Pending Executions

February

17 Frank Spisak* (Ohio)

22 Timothy Adams* (Tex)

March

10 Johnie Baston* (Ohio)

29 Eric King* (Az)

April

5 Cleve Foster* (Tex)

5 Daniel Wayne Cook* (Az)

6 Wayne Kubsch (Ind)

12 Clarence Carter* (Ohio)

Stays & Commutations

January

11 Edmund Zagorski* (Tenn)

11 Cleve "Sarge" Foster (Tex)

12 Richard Clay* (Mo) (commuted)

14 Ricky Ray Malone* (Okla)

31 Ronald Allen Smith* (Mont)

February

9 Roy Blankenship(Ga)

15 Edward Harbison* (Tenn) (clemency)

Executions

January

6 Billy Don Alverson* (Okla)

11 Jeffrey Matthews* (Okla)

13 Leroy White* (Ala)

25 Emmanuel Hammond*(GA)

February

9 Martin Link (Mo)

15 Michael Wayne Hall* (Tex)

*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [via DPIC]

Week of February 7, 2011: In Favor of the Accused or Condemned

• James Lambert v. Beard, 2011 U.S. App. LEXIS 2333 (3rd Cir 2/7/2011) Relief granted on Brady grounds. The Commonwealth apparently conceded that at trial counsel failed to disclose evidence that the lynch-pin witness of the prosecution initially indicated someone other than Mr. Lambert committed the offense. The panel concludes that on the facts of this case, the suppressed evidence was both exculpatory and material.
• Criminal Specialist Investigators, Inc. v. State, 2011 Fla. App. LEXIS 1587 (FL 1st App 2/7/2011) Intermediate Florida appellate court granted relief in a funding dispute holding that the trial court failed to adequately weigh the importance of the role mitigation experts play in capital cases in denying services. “[R]elevant legal authorities establish that ‘mitigation coordinator’ or ‘mitigation specialist’ is the title of a legitimate job related to the defense of criminal defendants who are eligible for the death penalty.”

Week of February 7, 2011: In Favor of the Prosecution or Warden

• Kevin Brewington & Tyrone Brown v. State, 2011 Ga. LEXIS 100 (Ga 2/7/2011) “As two defendants’ speedy trial time from the date of their mistrial through to the date their second dismissal motion was denied was only a little over three months, there was no presumption of prejudice and their speedy trial rights were not violated under U.S. Const. amend. VI and Ga. Const. art. I, § 1, para. XI(a).” [via Lexisone]
• Gregory Scott Dickens v. Brewer,No. 09-16539 (9th Cir 2/9/2011) “In death row inmates’ challenge to Arizona’s three-drug lethal injection protocol brought under 42 U.S.C. section 1983, asserting that Arizona’s execution protocol violates the Eighth Amendment because of the risk of improper anesthetization, grant of summary judgment in favor of Arizona is affirmed where the protocol’s safeguards are adequate under the Baze standard and because there is no material issue of fact regarding compliance with the protocol.” [via Findlaw]
• Paul Ezra Rhoades v. Henry, 2011 U.S. App. LEXIS 2578 (9th Cir 2/8/2011) "Exclusion of testimony about another person's confession to a kidnapping and murder for which an inmate was convicted did not violate due process; the other person recanted and had an alibi. Counsel's failure to develop mitigating evidence did not violate the Sixth Amendment; no prejudice was shown, as aggravating circumstances were too strong." [via LexisOne]
• Steven Richard Taylor v. State, 2011 Fla. LEXIS 337 (FL 2/10/2011) "On defendant's Fla. R. Crim. P. 3.850 motion for postconviction relief, the trial court did not abuse its discretion in denying his motion to further amend where the arguments asserted in defendant's closing memorandum were merely refinements and expansions upon arguments that had already been raised in his amended motion for postconviction relief." [via LexisOne]

Week of January 31, 2011: In Favor of the Accused or Condemned

• Frederick Bell v. State, 2011 Miss. LEXIS 85 (Miss 2/3/2011) (dissent) Leave granted to file a successive postconviction petition on the issue of mental retardation, all other claims denied outright.
• Jerry Jerome Smith v. State, 2011 Ala. Crim. App. LEXIS 7 (Ala. Crim. App. 2/4/2011) On remand from the Alabama Supreme Court ordering a new penalty phase hearing.

Week of January 31, 2011: In Favor of the Prosecution or Warden

• Jerry Devane Bryant v. State, 2011 Ala. Crim. App. LEXIS 1 (Ala. Crim. App. 2/4/2011) “For the reasons stated above, we remand this case to the circuit court for it to afford Bryant the opportunity to present evidence at an evidentiary hearing to support the following claims in his petition: (1) that trial counsel at his first trial were ineffective for not properly investigating and retaining a blood-spatter expert and a DNA expert, as set out in Part II.B. of this opinion; (2) that trial counsel at his first trial were ineffective for not properly investigating and presenting evidence to support a motion to suppress the first statement he made to police, as set out in Part II.C. of this opinion; and (3) that trial counsel at his first trial and trial counsel at his second penalty-phase trial were ineffective for failing to adequately impeach Ricky Vickers’s testimony and that trial counsel at his second penalty-phase trial were ineffective for failing to adequately challenge Vickers’s unavailability, as set out in Part II.D. of this opinion.”
• Dominique Ray v. State, 2011 Ala. Crim. App. LEXIS 6 (Ala. Crim. App. 2/4/2011) Still working through. “Another failed attempt at claiming IAC for failing to introduce mitigating evidence during capital sentencing. The defendant was convicted of murder during the course of a rape and a robbery. The jury (by a vote of 11-1) recommended he be sentenced to death, which the circuit court followed. The conviction and sentence were affirmed on direct appeal. Here, the Defendant unsuccessfully appeals the denial of a post-conviction petition he filed attacking his capital-murder conviction and death sentence. Among other arguments, he claims to have received ineffective assistance of counsel during the penalty phase of his capital-murder trial because his trial counsel failed to introduce expert mental health testimony. At the post-conviction evidentiary hearing, the Defendant introduced expert testimony that the Defendant had an “anomalous brain development that causes [him] to suffer severe problems with interpersonal relationships and self control,” and that his IQ is 80, which places him in the level of low mental functioning. To rebut the mental health evidence, the State introduced expert testimony to the contrary, in which the expert opined that there was no need for neuropsychological testing, because the defendant had no history of “head trauma, head injury, [or] neurological disease.” This appellate court found the mitigating evidence weak, at best, and that there was no prejudice to the Defendant in not having had the mental health evidence introduced at trial.” [via Nita A Farahany @Stanford CLB blog]
• Ralph Baze, Jr. v. Parker, 2011 U.S. App. LEXIS 2172,(6th Cir 2/4/2011) All Writs Act does not ensure, even where there is a statutory right to counsel in clemency proceedings, the district court has "the power to ensure acquisition of information against all outside obstacles" for clemency proceedings.
• Gerald Stanley v. Cullen, 2011 U.S. App. LEXIS 1912 (9th Cir 1/31/2011) “On federal habeas petitioner’s due process claim, trial judges were not unreasonable in finding insufficient incompetency evidence to warrant sua sponte competency hearing order; there was insufficient evidence of incompetence during guilt phase to find that defense counsel were ineffective in failing to move for competency proceedings.” [via Lexisone] "Conviction and death sentence for arson, burglary, and first degree murder are affirmed over five certified claims, including due process violations, ineffective assistance of counsel, and evidentiary errors. Court declines to certify the uncertified claim that petitioner was denied a "full and fair" opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial." [via FindLaw]
• People v. Albert Jones, 2011 Cal. LEXIS 968 (Cal 1/31/2011) “In a capital murder trial under Pen. Code, § 187, there was no Batson/Wheeler error in the prosecutor's use of peremptory challenges to excuse three African-American prospective jurors, in part because an absence of racial motivation was shown by the prosecutor's acceptance of an African-American juror and an African-American alternate.”[via Lexisone]
• People v. Alex Dale Thomas, 2011 Cal. LEXIS 970 (Cal 2/3/2011) ”In the penalty phase of a capital murder trial, there was no Confrontation Clause error in admitting an inmate's out-of-court statement to a deputy identifying defendant as the man who slashed his throat because the statement was not testimonial; the deputy was responding to an emergency and asked a simple question to determine what had occurred.” [via Lexisone]
• People v. Ronald Wayne Moore, 2011 Cal. LEXIS 967 (Cal 1/31/2011) “Although criminalist's response to hypothetical question by prosecutor, which was if a bloodstain found on victim's living room carpet was deposited by a person, the person had to have been lying down rather than standing up, was improper because there was no evidence the stain was deposited from a person, admission of evidence was not prejudicial.” [via Lexisone]
• Donald William Dufour v. State, 2011 Fla. LEXIS 289 (FL 2/3/2011) “ [W]e affirm the circuit court's determination that Dufour has not established that he is mentally retarded.”
• State v. Glenn Ford,2011 La. LEXIS 259 (LA 2/4/2011) (respecting denial of application) Trial counsel’s “complete unfamiliarity with capital litigation and her lack of experience in presenting a mitigation case resulted in a breakdown of the adversarial process which rendered the death penalty unreliable. Except for relator's father, from whom he had been largely estranged most of his life, counsel not only failed to present any witnesses who had known relator for much more than three years before the crime, but also, failed to have prepared them to testify at the sentencing hearing of a capital case. Given her failure to investigate and/or prepare witnesses, relator has demonstrated that trial counsel failed the task of ‘acting as a diligent, conscientious advocate for [relator's] life.’ Because of this deficient performance by defense counsel, defendant suffered actual prejudice.”
• State v. Kevin Keith, 2011 Ohio App. LEXIS 365;2011 Ohio 407 (Ohio 3rd App1/31/2011) “A trial court properly denied appellant's Crim. R. 33 motion for new trial. Prosecutor's alleged suppression of evidence did not implicate due process as appellant did not show evidence was material. While police phone logs did not show call victim made to officer identifying shooter, victim and officer were subject to cross-examination on matter.” [via Lexisone]

This edition was compiled & edited by Karl Keys, Esq. If you have problem accessing this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/110214.htm. Almost all cases can be found by going toLexisone.comand typing in the appropriate lexis cite OR going toGoogle Scholarand typing in the name of the condemned. We'd simply ask that before printing consider our environment and saving our trees. If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a special thanks go to Steve Hall whoseStand Downwebsite is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named.

As a reminder, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to a nonprofit involved in some aspect of the capital punishment issue, such as Pennsylvanians for Alternatives to the Death Penalty (website/donate), where I'm the past co-chair, or the Fair Trial Initiative (website/donate) which provides trial level assistance to attorneys in North Carolina, theEqual Justice Initiativewhich assists trial and postconviction counsel in Alabama and surrounding states,Gulf Regional Advocacy Center, which provides exceptional mitigation services to those facing capital trial in the Gulf region, orTexas Defender Service, whose work speaks for itself. On most of the above links you're able to make a tax deductible donation and set up a monthly automated gift.