The Sixth Circuit's decision in Mason v. Mitchell, leads off this edition. In Mason a divided panel remands for an evidentiary hearing. On remand the panel instructs the district court to examine ineffective assistance of counsel in the penalty phase including failure to adequately investigate, failure to use what information was known, and ineffectiveness relating to use of experts

A split Eighth Circuit en banc in Moore v. Kinney addresses the questions left unanswered in Gregg, Furman and Jurek, how much discretion is too much. Examining the Nebraska death penalty statute it holds that it is valid "on its face" despite the appellant's claims that it is "open-ended and vague, and it fails to channel application of the death penalty" as to the "exceptional depravity" aggravator. The Moore majority goes on to conclude that there was no error in how the Nebraska courts constructed the statute on resentencing. The dissent perhaps explains it more succinctly, the majority's holing "permits trial courts to decide for themselves what criteria would support a death sentence after hearing all the evidence on the matter, and then conclude if the evidence presented fits within their newly-established criteria."

Closing out the Hot List is an unusually fiery dissent in Ex Parte Rojas from the Texas Court of Criminal Appeals. The Rojas dissent notes that for purposes of post-conviction proceedings condemned was appointed an attorney who should not have been appointed for purposes of post-conviction. Indeed, post-conviction counsel for Rojas did such a poor job that he failed to raise a single claim from outside the record. Rojas, joins a growing list of Texas death sentenced inmates who were represented by counsel who so negligent as to actually be worse than no counsel at all, including counsel in at least five cases who filed federal habeas petitions outside the statute of limitations thereby abandoning that avenue of revenue.

In the other cases of note the Missouri Supreme Court reversed in Wolfe v. Missouri on trial counsel's ineffectiveness relating to the scientific testing of evidence that may have resulted in an actually innocent person being sentenced to death. A fractured Eighth Circuit en banc in Singleton v. Norris upholds the medicating of prisoners to make them sane enough to execute, at least under certain conditions. Finally, in a rare move, the Fourth Circuit offers a positive capital case decision holding (albeit unpublished) in United States v. Lentz upholding the exclusion of certain statements made pretrial by a capitally charged defendant.

The Focus section will run next week.

Now a quick appeal for a friend's antideath penalty work. CUADP (Citizen's United for Alternatives to the Death Penalty), one of the movement's most vocal opponents of the death penalty, notes the following."We're in the red. Donations have practically stopped. Now is not the time for CUADP to be grounded for a lack of funds. If you can spare even just a few dollars, now is the time. CUADP needs your help. To reach CUADP's secure server, please click here: https://www.compar.com/donation/donateform.html .If you would like to contribute but don't wish to do so over the internet, please call 800-973-6548 FREE or mail your contribution to the address shown below CUADP/ PMB 297/ 177 US Highway 1/ Tequesta, FL 33469."

EXECUTION INFORMATION

Since the last edition the following people have been executed in the United States:

HOT LIST

Mason v. Mitchell, 2003 U.S. App. LEXIS 2026;2003 FED App. 0042P (6th Cir. 2/6/2003) Remand ordered to hold an evidentiary hearing on ineffective assistance of counsel in the penalty phase, including ineffectiveness relating to use of experts. One of rationales the Court cites is:

Under the Eighth Amendment, the jury in a capital case may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Ohio law thus provides that, once the prosecution has proven one or more statutory aggravating circumstances beyond a reasonable doubt, the jury must weigh the aggravating circumstance(s) against the evidence in mitigation before imposing a death sentence. Ohio Rev. Code Ann. § 2929.04(B). Juries may consider as mitigating evidence "the history, character, and background of the offender," certain specified factors, and "any other factors that are relevant to the issue of whether the offender should be sentenced to death." Id. Moreover, a defendant is entitled to "great latitude" in presenting evidence of any and all mitigating factors. Id. § 2929.04(C).

The sole aggravating circumstance in this case was the rape. See Ohio Rev. Code Ann. § 2929.04(A)(7). When the trial court [*25] convened the penalty phase of Mason's trial on June 27, 1994, defense counsel offered the testimony of seven witnesses, as well as Mason's unsworn testimony, but did not inquire into mitigating evidence. The first two witnesses were deputy sheriffs from the Marion County Jail, who stated that Mason had not been a problem prisoner. n5 Defense counsel then called four members of Mason's family. Given no more direction than to speak on Mason's behalf, Mason's mother, brother, sister, and cousin simply asked the jury not to recommend the death penalty.

Defense counsel's direct examination of Mason's wife Terri ("Terri") was almost as perfunctory. Asked whether she had anything to tell the jury, Terri made an emotional plea for mercy. Counsel then asked Terri to identify a few pictures that Mason had drawn for her. On cross-examination, the prosecutor questioned Terri about Mason's art and [*26] his activities on the day that Robin disappeared. Redirect-, recross-, and further redirect-examination concerned Terri's interview with the police. Defense counsel did not question Terri again about mitigating evidence.

Mason himself spoke as the last mitigating witness. In his unsworn statement, he declared his innocence and requested that the jury "give me the chance to take it through the Appeals Courts." J.A. at 1255. Defense counsel questioned Mason about his drawings and then rested. The prosecutor offered no evidence in rebuttal, but emphasized during his closing argument that defense counsel had not presented any mitigating evidence about Mason's history, character, or background.

a. Failure to Investigate or to Prepare Witnesses

Mason argues that defense counsel rendered ineffective assistance by failing to conduct an independent and thorough investigation of his life history and psychological background when his family members were available for interviews, thereby foreclosing the discovery of potential mitigating evidence. He also contends that defense counsel's performance in preparing Mason's family members before calling them as mitigation witnesses [*27] was constitutionally deficient.

In examining Mason's claim of ineffective assistance at the sentencing stage, the Ohio Supreme Court inferred from the record "that defense counsel had voluminous records about [Mason's] history and background" and noted that "counsel prepared twelve exhibits documenting aspects of Mason's childhood, such as reports that he was beaten by his father and released by his parents to juvenile authorities, as well as early psychological evaluations, but did not present them to the jury." Mason, 694 N.E.2d at 956. The district court similarly deemed meritless Mason's claim "that his trial counsel improperly failed to investigate possible psychosocial mitigating factors that could have spared him the death penalty." Mason, 95 F. Supp. 2d at 793.

Much has been made in this case of the twelve exhibits that defense counsel prepared in conjunction with the videotaped deposition of Dr. Joseph T. Spare ("Spare"), the psychiatrist appointed by the trial court to assist the defense with the mitigation phase. The mere existence of mitigation exhibits, however, is not conclusive, because the question under Strickland [*28] is whether defense counsel's investigation into potential mitigation evidence was constitutionally adequate:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

. . .

What investigation decisions are reasonable depends critically on [the information that the defendant supplies]. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason [*29] to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions.

Strickland, 466 U.S. at 690-91. We have previously held that the complete failure to investigate mitigating evidence constitutes ineffective assistance of counsel. See Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997), cert. denied, 523 U.S. 1079, 140 L. Ed. 2d 677, 118 S. Ct. 1526 and 523 U.S. 1088 (1998); cf. Scott v. Mitchell, 209 F.3d 854, 881 (6th Cir.) ("Without effective research into the available mitigating testimony, of course, it would be impossible for the lawyers to have made an informed decision either way."), cert. denied, 531 U.S. 1021, 148 L. Ed. 2d 503, 121 S. Ct. 588 (2000). We have also emphasized the importance of an independent investigation: "The sole source of mitigating factors cannot properly be that information which [a] [*30] defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000).

The record before us is inadequate for a meaningful review of Mason's claim of ineffective assistance of counsel. We recognize that the Strickland Court directed state courts "to analyze effectiveness based on the then prevailing norms and counsel's perspective at the time," Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001), which entails a "highly deferential" standard. Strickland, 466 U.S. at 689. However, in order for us to evaluate whether defense counsel rendered constitutionally ineffective assistance at sentencing, we must know more about the extent of counsel's investigation and preparation of mitigating evidence. There is a significant likelihood that defense counsel acted unreasonably in failing to conduct an independent and thorough investigation of Mason's background. Because the record as it now stands reflects disputes about defense counsel's performance with respect to the sentencing phase of Mason's trial, we [*31] remand the case to the district court for an evidentiary hearing on this issue. n6

We begin our analysis of Mason's ineffective assistance claim by reviewing the investigation that apparently did take place. In the fall of 1993, soon after Mason was charged with the rape and aggravated murder of Robin, the trial court issued an order appointing an investigator for the defense and authorizing independent DNA testing. J.A. at 1954-55. n7 According to the Ohio Supreme Court:

The defense team of two lawyers and an investigator looked fully into Mason's background. Moreover, the state had collected and released to the defense in January 1994 voluminous records concerning Mason, including records about his last nine years in and out of prison as well as school records and juvenile incarcerations.

Mason, 694 N.E.2d at 945. The record, however, suggests that the investigator's assignment was limited to interviewing witnesses and taking measurements at the crime scene. Tr. at 35-39. Because the case against Mason was based on circumstantial evidence, we infer from the record that the witness interviews were primarily about the facts surrounding Robin's disappearance and murder. Defense counsel indicated as much when the trial [*33] court asked why a mitigation expert was necessary given the appointment of an investigator. Tr. at 452. Furthermore, Mason averred that his conversations with defense counsel and the investigator "were almost exclusively about trial phase issues -- concerning witnesses, my whereabouts, Chris Dennis and other theories of who had killed Robin Dennis." Maurice A. Mason Aff. at P 5. Mason's family members were also not interviewed about Mason's background. J.A. at 1992 (Terri A. Mason Aff. at P 14); J.A. at 1997 (James Michael Mason Aff. at P 9); J.A. at 2006 (Mioshi Mason Aff. at PP 13-14). n8

As for the documents obtained during discovery, the trial court found that defense counsel "had in their possession and had reviewed, prior to trial, over 3,000 pages of comprehensive records and documents regarding [Mason]'s social history, including records from the Marion City Schools, Marion Area Counseling Center, Marion County Children's Services, Marion County Adult Probation Department, Adult Parole Authority, and Ohio Dept. of Rehabilitation and Corrections." State v. Mason, No. 93-CR-0153, slip op. at 9-10 (Ohio Ct. Com. Pl. Nov. 21, 1996). None of these documents is in the record before us.

In May 1994, before this case went to trial, the trial court appointed Dr. Spare and a forensic pathologist to assist the defense. J.A. at 1955. Dr. Spare then examined Mason and prepared a five-page psychiatric report. J.A. at 1952. On June 7, 1994, during the trial, defense counsel deposed Dr. Spare on videotape, using twelve mitigation exhibits. These exhibits, according to the record as it stands, appear to have been based largely on the discovery provided by the prosecution to defense counsel. n9 As noted above, defense counsel apparently never interviewed anyone, [*35] including Mason himself, about possible mitigating aspects of Mason's background, even though various family members were ready and willing to discuss his life history. n10

Although the Ohio Supreme Court did not make an explicit finding about the extent of defense counsel's independent investigation of mitigating evidence, it did conclude that defense counsel, in choosing not to present whatever mitigating evidence was known, made a strategic decision to foreclose the state from introducing negative evidence in rebuttal. Mason, 694 N.E.2d at 956. Under Strickland, however, courts must first determine whether defense counsel's investigation decisions were reasonable. Only then may they reject a defendant's challenge to any decision characterized as strategic by defense counsel.

Had trial counsel conducted an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason's background and life history. From the record before us, n11 we have learned that Mason's alcoholic parents were heavy marijuana users and drug dealers from the time Mason was four or five years old. Indeed, Mason's mother admitted "that for the majority of [Mason]'s life the family home was a 'drug house.'" J.A. at 1874 (Crates Aff. at P 20S). Four years later, Mason began to experiment with drugs, [*37] stealing marijuana and pills from his parents' supply for his own use; by age eleven, he had become a significant user himself. About this time, Mason accompanied his father on trips out-of-state to buy drugs. By age fourteen, Mason began to use drugs with his parents; he also ran away from home. In addition to drugs, violence overran the Mason household. Mason's parents struggled through repeated bouts of domestic violence in front of their children; they also beat Mason on a regular basis for stealing their drugs and for the misconduct of his siblings, for which he was blamed.

Having received official documents from the prosecution during discovery, trial counsel appears to have been aware of some of this evidence. Mitigation [*38] Exhibit 10, for example, apparently concerned Mason's drug use as a teenager, see Mason, No. 93-CR-0153, slip op. at 5, but not his significant use at a much earlier age. We emphasize that the discovery documents by their very nature only concerned the Mason family's limited contacts with the authorities. For example, a record from Marion County Children's Services indicates that Mason's father was charged with assault in 1977 for beating Mason. J.A. at 1874-75 (Crates Aff. at P 20W). This charge, however, stemmed from a missing person report that Mason's father himself filed with the police; Mason had run away while being disciplined. J.A. at 2000-01 (James Michael Mason Aff. at P 31). The authorities do not appear to have been aware of the regular whippings that Mason suffered. Furthermore, Mason's mother never reported episodes of domestic abuse to the police, because it was "a no-no in our family . . . to call the cops . . . We didn't want them around." J.A. at 1871 (Crates Aff. at P 20H). Mason's mother also did not go to the hospital, where social services may have intervened and documented the Mason family's plight.

Therefore, the documents provided by the prosecution to [*39] defense counsel could not have contained anything close to the amount of mitigating evidence that could have been and later was obtained in an independent and thorough investigation. n12 Indeed, we find it particularly telling that not even the trial court referred to any knowledge on the part of trial counsel about Mason's troubled childhood or the extent to which drugs and violence ravaged Mason and his family. We believe that it was just this evidence, which did not enter the record until the post-conviction stage, that was Mason's best hope. As we observed in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946, 145 L. Ed. 2d 284, 120 S. Ct. 369 (1999), the information about Mason's background may amount to little more than "slim evidence of mitigation, but it is something. And what is most important, it was [his] only shield from a death sentence." Id. at 426. Yet trial counsel does not appear to have made any independent effort to investigate the particulars of Mason's history, character, or background. n13 The alleged failure of defense counsel to prepare Mason's family members [*40] for their testimony at sentencing further demonstrates that counsel conducted an inadequate investigation of mitigating evidence.

Trial counsel's failure to conduct an independent and thorough investigation may have hampered their ability to make strategic decisions at sentencing; it may also have affected their ability to give competent advice to Mason about the meaning of mitigation evidence and the availability of possible mitigation strategies. Indeed, according to Mason, trial counsel did not offer any such advice:

Neither of my lawyers ever explained to me what the mitigation trial is or what it was intended to prove. I had no knowledge that mitigation was intended to save my life, or that this was to be the only opportunity for me to demonstrate to the jury why I should not be given the death penalty.

Maurice A. Mason Aff. at P 7. The evidence in mitigation that was so readily available in this case offered an arguably reasonable probability of "humanizing Mason before the jury such that at least one juror could have found he did not deserve the death penalty." Carter, 218 F.3d at 592. Because we cannot determine from the record before us whether the Ohio Supreme Court applied Strickland unreasonably by not examining the extent of trial counsel's investigation [*42] into mitigating evidence, we remand the case to the district court with the instruction to hold an evidentiary hearing on Mason's claim of ineffective assistance at the sentencing phase of his trial.

Moore v. Kinney, 2003 U.S. App. LEXIS 2199 (8th Cir 2/10/2003) (en banc) (dissent) Relief denied on "whether Neb. Rev. Stat. § 29-2523(1)(d) is unconstitutional: (1) on its face because it remains open-ended and vague, and it fails to channel application of the death penalty; and (2) as applied by the Nebraska courts because the resentencing panel's construction of the statute denied Moore due process."

Thus, the key inquiry concerning whether the "cold, calculated" formulation is constitutional is not the specific substance of that narrowed definition, but simply whether the sentencing process is infected with bias or caprice. This is the "controlling objective when we examine eligibility and selection factors for vagueness." Id. The vagueness review is deferential, however, and "as long as an aggravating factor has a core meaning . . . capable of understanding, it will pass constitutional [*14] muster." Jones v. United States, 527 U.S. 373, 400, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999) (Thomas, J., plurality). Furthermore, an aggravating factor must be sufficiently narrow so that it does not apply to everyone convicted of first-degree murder. Tuilaepa, 512 U.S. at 972. Under this deferential standard, the resentencing panel adequately and constitutionally narrowed the "exceptional depravity" aggravator.

The resentencing panel defined "exceptional depravity" to include "the killer's cold, calculated planning of the victim's death, as exemplified by experimentation with the method of causing the victim's death or by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age." State v. Moore, 553 N.W.2d at 132 (emphasis omitted). This is a definition which has a core meaning that is capable of being understood and that will not lead to bias or caprice. Furthermore, the definition is not overbroad. Moore's decision to choose his victims on the basis of a specific characteristic-their advanced ages-separates his case from murderers [*15] who made no such decision. Thus, the Nebraska Supreme Court's resolution of this issue was clearly not an unreasonable application of United States Supreme Court precedent and will not be disturbed on habeas review by this court.

Moore, to the contrary, argues that the resentencing panel's definition of "exceptional depravity" was unconstitutionally vague, and he argues that his claim is governed by Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726. In Furman, the Supreme Court, in a one paragraph per curiam opinion (followed by nine separate concurring and dissenting opinions), held that the application of the death penalty by the states of Texas and Georgia was unconstitutionally cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 408 U.S. at 239-40. Supreme Court opinions following Furman have clarified that a capital sentencing scheme must not be "arbitrary and capricious," Gregg, 428 U.S. at 189 (Stewart, J., concurring), nor leave the sentencer with "standardless and unchanneled" discretion, Godfrey v. Georgia, 446 U.S. 420, 429, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980) [*16] (Stewart, J., plurality). See Maynard v. Cartwright, 486 U.S. 356, 362, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). At the time of Furman, in 1972, the Georgia and Texas sentencing schemes had no statutory aggravators whatsoever. The statutes merely provided a capital jury the choice among death, life imprisonment, or five to twenty years of imprisonment. 408 U.S. at 308 nn.8-9 (Stewart, J., concurring). The various concurring opinions in Furman came to the general conclusion that imposition of the death penalty in these (and similarly situated) jurisdictions was random, and akin to "being struck by lightning," with race being the only discernible factor playing a role in the selection for the death penalty. Id. at 309-10 (Stewart, J., concurring).

In response to Furman, the legislatures in death penalty states which had previously allowed absolute discretion to the sentencer were "compelled . . . to specify particular 'aggravating factors' that must be found before the death penalty can be imposed." Ring, 122 S. Ct. at 2444 (Scalia, J., concurring). Whether "erroneously coerced" to do so or not, 122 S. Ct. at [*17] 2445 (Scalia, J., concurring), the fact remains that death penalty states, including Nebraska, n4 did specify these aggravating factors. Thus, Moore's claim may be a "Furman" claim in the loose sense that he is asserting that Nebraska's application of its death penalty to him is arbitrary, but the specifics of his constitutional argument are not controlled by Furman.

Moore also vigorously argues that Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, controls the outcome here. The contention being, apparently, that the "exceptional depravity" component of section 29-2523(1)(d) is not reasonably susceptible of a constitutionally sufficient narrowing [*18] under any circumstance. This argument seriously misreads Cartwright. In Cartwright, the Supreme Court found the "especially heinous, atrocious, or cruel" portion of a statutory aggravator to be impermissibly vague. 486 U.S. at 362-64. However, the Court also held that this same aggravating factor could be constitutionally narrowed by requiring a finding of torture or serious physical abuse, for example, or some other formulation. Id. at 364-65 . The Cartwright aggravator, "especially heinous, atrocious, or cruel," if anything, paints with a broader brush than Nebraska's "exceptional depravity" component. So, the validity of the resentencing panel's narrowing construction, achieved through the requirement of a selection of the victims on the basis of age, is actually supported by Cartwright. The Cartwright decision contemplated such a narrowing. Id. Thus, Cartwright, given its best gloss for Moore, does no more for his claim than Tuilaepa, or even Godfrey and Gregg. Each of these Supreme Court decisions reiterate that the sentencer cannot have unfettered discretion, but instead must be guided by an aggravator with a core meaning [*19] presented through a definition capable of comprehension, and considered via a process not infected with bias or caprice. All of these conditions were met in the 1995 resentencing. Thus, Moore's first ground for habeas corpus relief is without merit.

Ex Parte Rojas, No. 39,062-01 (Tex.Crim.App 02/12/2003) (unpublished) (dissent) Court denies relief to the applicant even though it appointed an attorney who should not have been appointed for purposes of post-conviction & who conducted a grossly incompetent post-conviction investigation of facts and claims. From the dissent

This Court should have granted relief to the applicant because it appointed an attorney who should not have been appointed to represent a capital defendant in his one opportunity to raise claims not based solely on the record. See Ex parte Graves, 70 S.W.3d 103, 118, 125, 129 (Tex. Crim. App. 2002) (Price, J., dissenting, joined by Holcomb, J.), (Johnson, J., dissenting) (Holcomb, J., dissenting joined by Price and Johnson, J.J.).

The applicant was convicted of capital murder and sentenced to death by lethal injection. This Court affirmed his conviction on direct appeal. Rojas v. State, 986 S.W.2d 241 (Tex. Crim. App. 1998). We appointed counsel to file an application for writ of habeas corpus under Texas Code of Criminal Procedure article 11.071 on March 18, 1997. We received the application September 18, 1998. We denied relief without written order December 9, 1998. See Ex parte Rojas, 981 S.W.2d 690 (Tex. Crim. App. 1998) (Baird, J., concurring). The one-year statute of limitations for filing a petition for federal habeas relief under the Antiterrorism and Effective Death Penalty Act began February 2, 1999. See 28 U.S.C. § 2244(d) (1999).

After relief was denied under Article 11.071, habeas counsel had a duty to preserve the applicant's right to federal habeas review. Article 11.071 Section 2(g), then in effect, required that habeas counsel file either a motion to be appointed federal habeas counsel or a motion to have a substitute appointed.

If the court of criminal appeals denies an applicant relief under this article, an attorney appointed under this section to represent the applicant shall, not later than the 15th day after the date the court of criminal appeals denies relief or, if the case is filed and set for submission, the 15th day after the date the court of criminal appeals issues a mandate on the initial application for a writ of habeas corpus under this article, move to be appointed as counsel in federal habeas review under 21 U.S.C. Section 848(q) or equivalent provision or, if necessary, move for the appointment of other counsel under 21 U.S.C. Section 848(q) or equivalent provision. Act of June 7, 1995, 74th Leg., R.S., ch. 319, § 1, 1995 Tex. Gen. Laws 2764-65(current version at Tex. Code Crim. Proc. art. 11.071, § 2(e)).

In order to preserve an applicant's right to federal habeas review, state habeas counsel must take action.

Once habeas relief was denied by this Court, habeas counsel failed to take any action to preserve the applicant's right to federal habeas review. Indeed, he did not even notify his client that the Court had denied relief in his case. He claims he was unaware that he was responsible for filing in federal district court for the appointment of counsel or a motion to substitute counsel. *fn1

As a result of habeas counsel's omission, the applicant's federal habeas petition was not heard on the merits. The federal district court that reviewed the applicant's federal petition denied relief on the basis that the petition was filed too late. Rojas v. Cockrell, No. 3:00-CV-0716-D (N.D. Tex. Sep. 6, 2001). The Fifth Circuit panel that reviewed the applicant's case affirmed on the same basis. Rojas v. Cokrell, No. 01-11204 (5th Cir. Jun. 7, 2002), cert. denied, 71 U.S.L.W. 3351 (Nov. 18, 2002).

The facts of which the Court should have been aware when it appointed habeas counsel show that counsel was not competent to represent the applicant in this case. The attorney we appointed to represent the applicant had received two probated suspensions from the State Bar of Texas. Two weeks after his appointment, he received another probated suspension. He was under treatment for bipolar disorder, which he admits affected his representation of the applicant and was the cause of the omissions that gave rise to his suspensions.

Habeas counsel has since explained that he had never represented a capital defendant in habeas proceedings. He did not consult with his client except for a short get-acquainted session when he was first appointed. He failed to conduct an investigation and filed a habeas application alleging three claims with twelve sub-claims that could have been raised on direct appeal, and thus were procedurally barred and not reviewable on the merits. See Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998) (op. on reh'g); see also Rojas, 981 S.W.2d at 690 (Baird, J., concurring). The argument section of the application took up only five pages with no subject headings separating the claims.

The State argues the three probated suspensions are not relevant to the goals of Article 11.071. The State notes competent counsel under Article 11.071 means that counsel must possess the qualifications, experience, and ability at the time of appointment. Graves, 70 S.W.3d at 114. The State claims habeas counsel met these requirements. This denies reality. Would those who protest that habeas counsel was qualified desire to have him represent them in any proceeding while under a probated sentence for failing to take care of his clients? A capital murder habeas proceeding is no place for a green attorney or an attorney with multiple suspensions from the State Bar, whether probated or not.

At the time habeas counsel was appointed he was under two probated suspensions because he (1) neglected legal matters, (2) failed to carry out the obligations of his clients, (3) failed to keep his clients informed about the status of matters, (4) failed to respond to reasonable requests for information, and (5) failed to withdraw from representing a client after his psychological condition materially impaired his fitness to represent his client. That is quite an indictment.

Although the State Bar probated the suspensions allowing counsel to continue to practice law, the representation of a criminal defendant under a sentence of death should not be left to those who have demonstrated an inability to effectively represent clients, especially when counsel had never represented anyone in Article 11.071 proceedings before. Counsel's performance was found to be deficient. He neglected his duties. It is hard to imagine that there was no one more able or better qualified on the list. Counsel should have been removed from the list until he demonstrated that he was able to represent his clients in the manner prescribed by the Texas Disciplinary Rules of Professional Conduct.

The State contends this attorney was qualified, experienced, and able at the time of his appointment to competently represent the applicant in habeas proceedings for a death penalty case although he had never done so before. Counsel must be competent when appointed but need not represent the client competently. See Graves, 70 S.W.3d at 114. The applicant's attorney did not meet even the low standards set by the Court in Graves.

Habeas counsel claims not to have known that he was required by law to file a motion to be appointed counsel or a motion for a substitution of counsel. Article 11.071, the article under which habeas counsel was appointed, explains that appointed habeas counsel must file one of the two motions. See Act of June 7, 1995, 74th Leg., R.S., ch. 319, § 1, 1995 Tex. Gen. Laws 2764-65(current version at Tex. Code Crim. Proc. art. 11.071, § 2(e)). To be considered competent, at a minimum, counsel should be required to be knowledgeable about the contents of Article 11.071.

A habeas application must do no more than seek relief from the underlying judgment. Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002). But the issues ought to be, at a minimum, cognizable. And competent counsel ought to understand the difference between claims that must be raised on direct appeal or are waived and claims that are cognizable in habeas proceedings. Either habeas counsel understood and disregarded the requirement, or counsel did not understand the requirement

The State adds that habeas counsel wrote and presented a paper on habeas corpus law at an Advanced Criminal Law seminar held in 1998. *fn2 One would expect that an expert on habeas law would have understood that habeas is reserved for claims based on jurisdictional, constitutional, and fundamental rights that may not be raised on direct appeal. If counsel possessed this knowledge, he failed to apply it.

The State also claims that habeas counsel's affidavit shows that he understood what to look for in habeas review. He spoke with his client on one occasion. *fn3 He read the trial record. He talked to one of the applicant's trial attorneys. That is all. As counsel explains in his affidavit, the list of things he did not do is much longer.

I did not raise any claims in the petition that relied on facts outside of the trial record. I did not interview Mr. Rojas to obtain a social history from him because I knew this was not pertinent in Texas habeas corpus law. I did not explore his background by interviewing family members, close relatives, friends, or teachers for the same reason. I did not seek funds from the Texas Court of Criminal Appeals for investigative or expert assistance. I did not obtain releases from Mr. Rojas to facilitate the gathering of school records or mental health or other records, because I had met Mr. Rojas and, like everyone else, saw no sign that such information would be helpful on habeas corpus. I did not review any records pertaining to Mr. Rojas's mental health for the same reason. I did not file any Open Records Act requests seeking police reports and jail records because, once again, that did not, does not, seem pertinent under Texas habeas requirements, much as I might disagree with them. I did not interview the police officers who investigated the case and questioned Mr. Rojas. I did not review the district attorney's file on Mr. Rojas's case but much of that record was available to me through appellate counsel. I was very aware of the facts of the case and felt, in light of Texas habeas corpus law, that these areas of inquiry would not be fruitful avenues to explore. When I refer to Texas habeas corpus law, I mean the body of it as I know it, but also the primary rule of it, which is that the applicant must show facts and harm.

In addition to these omissions, counsel failed to deliver a copy of the habeas application to his client and even failed to notify his client when this Court denied relief.

Habeas counsel is required by Article 11.071 to conduct a thorough investigation. Article 11.071, section 3 states: "On appointment, counsel shall investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the filing of an application for a writ of habeas corpus." Habeas counsel did no more than is required by appellate counsel on direct appeal. In effect, the applicant received two direct appeals, one of which was not reviewed on the merits, and no habeas review of his conviction.

The Court is in an awkward position, to be sure. We maintain the list of qualified attorneys for Article 11.071 proceedings. It is difficult to admit that mistakes have been made. Indeed, it is rare for a trial attorney to file a motion for new trial alleging that he was ineffective at trial. This potential conflict begs the question, should we really be maintaining this list? Perhaps the better course would be to have appointments for Article 11.071 proceedings made in the same way as for other death penalty proceedings.

Under Code of Criminal Procedure Article 26.052, the presiding judge of each administrative judicial region creates a local committee to make a list of qualified counsel for trials in which the State is seeking the death penalty and for direct appeals from the imposition of a death sentence. The standards for counsel appointed in these cases are adopted by the local selection committees with minimum standards set by the legislature. Tex. Code. Crim. Proc. art. 26.052 (d)(1) & (d)(2).

The minimum standards require that death penalty counsel

(A) be a member of the State Bar of Texas;

(B) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;

(C) have at least five years of experience in criminal litigation;

(D) have tried to a verdict as lead defense counsel a significant number of felony cases, including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies;

(E) have trial experience in:

(i) the use of and challenges to mental health or forensic expert witnesses; and

(ii) investigating and presenting mitigating evidence at the penalty phase of a death penalty trial; and

(F) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases. Tex. Code Crim. Proc. art. 26.052 (d)(2).

Once on the list, attorneys must continue to demonstrate their proficiency.

Not later than the second anniversary of the date an attorney is placed on the list of attorneys qualified for appointment in death penalty cases and each year following the second anniversary, the attorney must present proof to the committee that the attorney has successfully completed the minimum continuing legal education requirements of the State Bar of Texas, including a course or other form of training relating to the defense of death penalty cases. The committee shall remove the attorney's name from the list of qualified attorneys if the attorney fails to provide the committee with proof of completion of the continuing legal education requirements. Tex. Code Crim. Proc. art. 26.052 (d)(4).

This Court has appointed attorneys in Article 11.071 proceedings who have not met these minimum standards. See e.g., Graves, 70 S.W.3d at 120 n.4 ("We appointed [Graves's] first habeas counsel in October 1997. At that time, counsel had been out of law school for just under three years and had been licensed by the Texas Bar for just over two years").

Under the current system in Texas, a capital murder defendant is entitled to an attorney of a certain level of competence at trial and on direct appeal, but he is not so entitled in his habeas proceedings. There is a certain disturbing irony in the fact that habeas proceedings are where he may enforce his right to competent and effective counsel in the prior proceedings. Because the administrative districts already deal with appointments in death penalty cases for trial and direct appeal, it makes sense for the legislature to relieve this Court of the burden.

These arguments were presented to the Court by the applicant in pleadings filed only nine days after the United States Supreme Court denied certiorari in his federal case. A majority of the Court chose to deny the applicant's motion without, at the time, explaining why in a written opinion. No arguments the majority has presented convince me that the motion should have been denied. Judges on this Court have a right to disagree with the majority and to explain their reasons for doing so.

This Court approved habeas counsel's application to be on the list of capital habeas counsel. The Court appointed habeas counsel in the applicant's case. *fn4 In this case, we had no way to be certain that there were no cognizable and meritorious claims.

The Court denied relief without filing and setting this case for review and without issuing a published opinion explaining the decision. The boundaries of Article 11.071, section 2(e) have never been discussed by this Court. It is an issue of first impression, and the criminal jurisprudence of Texas could benefit from an explanation beyond "motion denied."

The Court incorrectly denied relief in Graves. It did so again in this case. I dissent.

SUPREME COURT

No cases noted this week.

CAPITAL CASES ( Favorable Disposition)

Wolfe v. Missouri, 2003 Mo. LEXIS 25 (Mo 2/11/2003) (*SCI) Reversal had on trial counsel's failure to have testing performed on certain hair evidence that indicated another had been present and not this defendant as the "evidence of Wolfe's guilt is not overwhelming."

United States v. Lentz, 2003 U.S. App. LEXIS 2062 (4th Cir 2/6/2003) (unpublished) Divided panel affirms on interlocutory appeal certain statements made pretrial by the defendant that were excluded:

The government takes exception to the district court's exclusion of the following six statements: (1) Doris's statement to a pastor at her church, the Reverend Lauren Gough, that Lentz told her that "if O.J. [Simpson] can get away with it, so can I." (2) Doris's statement to another of her pastors, the Reverend Victoria Heard, that Lentz asked Doris if she was watching the O.J. Simpson trial and told her that "O.J. could happen again" and that if he (Lentz) got to her, "there would be no body." (3) Doris's statement to an Arlington County, Virginia, police officer that Lentz told her that "O.J. had the right idea." (4) Doris's statement to her boyfriend, Tim O'Brien, that Lentz told her that the O.J. Simpson case could happen again. (5) Doris's statement to nurse Ruth Colvin (or Cauvin) that "if anything ever happens to me -- Jay did it." (6) Doris's statement to nurse Ann Sarkes that "if she ever turned up dead -- tell police Jay did it." (We refer to statements (1) through (4) as "the O.J." statements and to statements (5) and (6) as "the Jay did it" statements.)

CAPITAL CASES ( Unfavorable Disposition)

Singleton v. Norris, 2003 U.S. App. LEXIS 2198 (8th Cir 2/10/2003) (en banc) (dissent) "Ford prohibits only the execution of a prisoner who is unaware of the punishment he is about to receive and why he is to receive it. A State does not violate the Eighth Amendment as interpreted by Ford when it executes a prisoner who became incompetent during his long stay on death row but who subsequently regained competency through appropriate medical care."

Thompson v. Crosby, 2003 U.S. App. LEXIS 2089 (11th Cir 2/6/2003) District Court did not abuse its discretion in refusing to stay habeas proceedings for purposes of exhaustion.

Texas ex rel. Rosenthal v. Poe, 2003 Tex. Crim. App. LEXIS 37 (Tex. Crim. App. 2/12/2003) (dissent) Mandamus granted to block the videotaping of the penalty phase deliberations.

Harris v. State, No. 74,025 (Tex.Crim.App. 02/12/2003) (unpublished) Relief denied on issues relating to sufficiency as to "future dangerousness", autopsy photos, admission of inculpatory statements, jury composition, and absence of the defendant during trial.

Ex parte Brooks, 2003 Ala. Crim. App. LEXIS 45 (Ala Crim App ) The mere fact the trial judge signed the search warrant used to obtain evidence against the defendant is not alone sufficient to warrant the trial judge's recusal.

Norcross v. Delaware, 2003 Del. LEXIS 79 (Del 2/6/2003) Relief denied on claims: "(A) that the trial court erred in several evidentiary rulings, including its denial of his motion to suppress the statement he gave to the police;. . . (B) that the victim impact evidence and the State's closing argument unfairly prejudiced him at the penalty hearing;" and (C) that the 1991 Delaware death penalty statute as applied is constitutionally permissible.

NOTABLE NONCAPITAL CASES

Newsome v. McCabe, 2003 U.S. App. LEXIS 2214 (7th Cir 2/10/2003) Fifteen million dollar verdict relating to apparent police suborning perjury resulting in the conviction of an innocent person affirmed despite claims of qualified and other immunity.

Harden v. Pataki, 2003 U.S. App. LEXIS 2218 (11th Cir 2/10/2003) "[C]laim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to extradite him from Georgia to New York, otherwise cognizable under § 1983, is [not] barred by Heck [v. Humphrey]."

FOCUS

Will return next week

OTHER RESOURCES

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

Now Available on DPIC's Web site:

Descriptions of the four pardons granted by Governor George Ryan in Illinois on January 10, 2003 are now available on DPIC's Innocence page. The addition of Aaron Patterson, Madison Hobley, Leroy Orange, and Stanley Howard to DPIC's Innocence List brings the total number of death row exonerations to 107.

New statistics from the NAACP Legal Defense and Educational Fund report, "Death Row USA" - The new report, with statistics through January 1, 2003, notes that the number of death row inmates has continued to drop, falling from 3,697 on October 1, 2002, to 3,692 on January 1, 2003. The new report does not reflect the recent pardons and commutations in Illinois, which would bring the total number of death row inmates to 3,516. Additional statistics and information about "Death Row USA" are available on DPIC's "Death Row USA" page. (A link to the January 1, 2003 report will be available shortly.).

International Opposition to Death Penalty Continues to Grow

The Zenit News Agency recently reported on a series of official state actions curtailing the death penalty around the world:

Turkey abolished the death penalty in an effort to meet with European Union qualifications.

Montenegro and Serbia abolished the death penalty to clear the way for entry into the Council of Europe.

The President of Kazakhstan said that the nation should seriously consider halting executions and abolishing capital punishment altogether.

Turkmenistan abolished capital punishment.

Kyrgyzstan extended its moratorium on the death penalty for an additional year.

South Korea has not carried out an execution since 1998.

Taiwan, which has carried out nearly 300 executions over the past decade, said that it wants an end to executions.

Blas Ople, Foreign Affairs Secretary in the Philippines, said that the nation will suspend all executions while its Congress continues to debate the merits of the death penalty.

(Zenit News Agency, February 8, 2003). See International Death Penalty.

Texas Judges Issue Dissent After Execution

More than two months after Leonard Rojas was executed on December 4th in Texas, three judges from the Texas Court of Criminal Appeals decried the court's earlier decision to deny Rojas's request for a reprieve. The request was based on claims that his defense attorney, David Chapman, had cost him all of his federal appeals. In the dissent, Judge Tom Price stated Chapman had never handled a death penalty appeal and, at the time of his appointment, was under two probated suspensions handed down by the state bar because he ineffectively represented other clients. Court records also reveal that Chapman suffered from bipolar disorder and conducted no independent investigation of the Rojas case. The dissent further noted that in a brief filed by Chapman, he failed to file a single appropriate claim, suggesting that he did not understand the critical habeas corpus appeal process. (Chicago Tribune, February 13, 2003) The Texas Defender Service will hold a press conference regarding this case today, February 13. Read the Texas Defender Service Press Release.

NEW RESOURCE: Nevada Death Penalty Study and Recommendations

The recommendations recently released by the Nevada Legislative Commission's Subcommittee to Study the Death Penalty are now available on the Web and have been forwarded to the Legislative Commission for consideration during the lawmakers' 2003 session. The Subcommittee made 17 recommendations addressing: racial, gender and economic discrimination, aggravating and mitigating circumstances, competency and funding of counsel, juries and jury instruction, judicial functions and three-judge panels, rules of procedure and argument, DNA evidence, defendants with mental retardation, and the costs of capital punishment. (Death Penalty and Related DNA Testing, Bulletin No. 03-5, January 2003) Read the full report. See Studies, Books and Law Reviews.

NEW VOICES: Legendary Basketball Coach Dean Smith Challenges Capital Punishment

Legendary North Carolina basketball coach Dean Smith recently stated that executions are a communal act, and one that he does not believe to be moral or effective. "I do not condone any violence against any of God's children, and that is why I am opposed to the death penalty," Smith stated in his autobiography "A Coach's Life." Previously, Smith had noted, "It simply is not fair and it doesn't even work." As an advocate against capital punishment, Smith urged former North Carolina Governor Jim Hunt to stay executions and reconsider his support for the death penalty. (Chicago Tribune, February 9, 2003) See New Voices.

Missouri Attorney General Representative Says Conclusive Evidence of Innocence Is Not Enough

Frank Jung, an assistant to Missouri Attorney General Jay Nixon, recently told the Missouri Supreme Court that it should not concern itself with mounting evidence that death row inmate Joseph Amrine might be innocent. Jung said the Court's sole consideration must be whether Amrine's constitutional rights had been violated, and he noted that even if DNA evidence conclusively exonerated an inmate, the court would need a constitutional violation to stop an execution. One judge asked Jung, "Is it not cruel and unusual punishment to execute an innocent person?" Jung responded, "If there is no underlying constitutional violation, there is not a right to relief." (Kansas City Star, February 8, 2003) Listen to the exchange about whether a judge can knowingly order the execution of an innocent person. See Innocence.

TRACKING PROGRAM INFORMATION

Tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:

*PCI from the face of the decision a possible claim of actual innocence appears possible.

*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.

*RC from the face of the decision questions about the interplay of race is made.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).