Leading off this edition is a decision we missed last week,State v. Willie Herring, from Ohio's Seventh District Court of Appeals.Herringis a bread and butter ineffective assistance of counsel claim. Speciically, trial counsel's mitigation investigation missed some rather low hanging fruit concerning a bad childhood, substance abuse, depression, low IQ, potential brain damage, and the lack of positive adult role models. The court finds that the strategic choices made by trial counsel, in light of the defective investigation underWiggins/Rompilla, constituted noting more than "naked pleas for mercy." "[G]iven what they could have uncovered with a complete investigation, counsel had scarcely any information about appellant's background." "The undiscovered mitigating evidence in this case 'might well have influenced the jury’s appraisal' of appellant’s culpability and the probability of a different sentence if counsel had presented the evidence is 'sufficient to undermine confidence in the outcome' reached by the jury."

In the news, Nebraskaprison officialshave apparently imported - and tested - enough sodium thiopental to kill 166 people, even though it has just 12 men on death row. In Texas,Gov. Rick Perry promisedto do what he can to get compensation for Anthony Graves who spent 18 years on death row for someone else's crime. Thirteen stateAttorneys General have asked Attorney General Eric Holderasked for help in "identifying an appropriate source for sodium thiopental or making supplies held by the Federal Government available to the States."DPIC notesthat the:

nationwide shortage of sodium thiopental, a key drug used in executions around the country, has forced states to consider alternative drugs for their lethal injections. Tennessee, where 86 inmates are facing execution and sodium thiopental is in short supply, is considering using pentobarbital instead. Oklahoma has already executed three inmates using the new drug as part of a 3-drug protocol. The use of pentobarbital, however, has drawn concerns from some anesthesiologists who said the drug has not been used to put patients to sleep and has not been tested for executions. Dr. David Varlotta, who is on the board of directors of the American Society of Anesthesiologists, noted that there are significant differences between the two drugs, and said pentobarbital "is not used in a clinical setting for clinical anesthesia." Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, said, "Sodium thiopental has been used millions of times, for 90% of operations, for 30 years. Pentobarbital has almost never been used for induction of anesthesia. If you look at the literature, there's one report from the '40s, maybe 2. We're experimenting, and we're taking a huge risk here just for the big desire to make sure we're killing people."

Some time has gone by since we last asked, "how are we doing" and "what would you like to see here?" Feel free to contact us at karl@capitaldefenseweekly.com with your suggestion concerning how we might improve the weekly and its corresponding website.Are we too concerned with federal habeas or trial court work? Not enough focus on trial court decisions? Is there a resource we're missing you'd like to see here? We'd love to hear from you and thanks in advance.

Pending Executions

February

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 2011

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)

17 Frank Spisak* (Ohio)

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

Week of February 14, 2011: In Favor of the Prosecution or Warden

• Edwin Hart Turner v. Epps, 2011 U.S. App. LEXIS 3231 (5th Cir 2/17/2011) COA denied on “his claim that he received ineffective assistance of counsel during the mitigation phase of his capital case.” Likewise, denied is his “request[] that we remand to the district court for an evidentiary hearing on his claim.”
• Raymond Tibbetts v. Bradshaw, 2011 U.S. App. LEXIS 2912; 2011 FED App. 0054P (6th Cir. 2/15/2011) “A certificate of appealability (“COA”) was granted for three claims: (1) whether trial counsel was ineffective for failing to develop and present evidence about Tibbetts’ mental status at the penalty phase; (2) whether trial counsel was ineffective for failing to present mitigating evidence at the penalty phase; and (3) whether counsel on direct appeal was ineffective for failing to argue that the trial court did not consider all relevant information to support the imposition of a sentence less than death. We afirmthe district court’s decision to deny the petition for a writ of habeas corpus because we find that the efforts of Tibbetts’ trial counsel were not constitutionally deficient and because any failure of the trial court to consider relevant mitigation evidence was cured by the Ohio Supreme Court’s independent reweighing of the relevant mitigating factors.” “Habeas petition was properly denied as (1) efforts of trial counsel were not constitutionally deficient under Sixth Amendment because, inter alia, counsel engaged in investigation of mitigating factors, and (2) any failure of trial court to consider relevant mitigation evidence was cured by supreme court’s reweighing of relevant mitigating factors.” [via LexisOne]
• Robert Green Fairbank v. Ayers, 2011 U.S. App. LEXIS 2907 (9th Cir 2/15/2011) “The 9th affirms denial of a habeas capital petition. The 9th found no IAC in the lack of mitigation investigation claims. Strategic choices were made by defense counsel. The 9th also deferred to the state court’s determination that the prosecutorial misconduct claim was procedurally. There was also a lack of state involvement in theMassiahclaim.” [viaJon Sands @ Ninth Circuit blog] “District court did not err in rejecting prisoner’s Sixth Amendment claim that his attorneys were ineffective for failing to investigate and present mitigating evidence because counsel provided defense expert with information necessary to form expert opinion, and defense counsel made a strategic decision to not place prisoner’s mental state in play.” [via LexisOne]
• James Harrison v. Gillespie, 2011 U.S. App. LEXIS 2923 (9th Cir 2/15/2011) (en banc) (dissents) “The jury said it was hung on the penalty phase of a capital trial. It was pretty clear in the notes and the proposed verdict forms that death was off the table, and the choices were between LWOP, LWP, or a term of years. Before the jury was discharged, the defendant asked that the jury be polled. The trial judge declined and discharged the jury. The petitioner then argued that the death penalty was barred by double jeopardy. Sitting en banc, the 9th concluded that the trial judge neither abused its discretion nor subjected petitioner to double jeopardy in discharging the jury because of the deadlock. The 9th held that there was not a constitutional right to inquire into the possibility of a preliminary decision against the death penalty. Allowing the court to do so would risk coercion. Moreover, preliminary jury votes are that: preliminary. The verdict is not final until stated in open court. A refusal to poll by the court fell within the court’s sound discretion. Concurring, Kozinski argues that the petitioner could have, and should have, asked for a special verdict. Dissenting, Thomas (joined by Reinhardt, W. Fletcher, Fisher, and Berzon) argue that the judge acted summarily in discharging the jury, and that by all indications, the jury had reached an acquittal on death, and should have been polled. State statutes allowed for various sentences, as did the capital structure, and the jury seemed to have decided on lesser sentences, and split there. The judge’s actions in declaring a mistrial were not manifestly necessary, and violated double jeopardy. The judge should have polled. The polling would not have lead to a new rule, or right, but under these circumstances, was required. Reinhardt, also dissenting, emphasizes the clear violation of manifest necessity, and the result is the more egregious given the death penalty. Death is different.” [viaJon Sands @ Ninth Circuit blog]
• In re Curtis F. Price, 2011 Cal. LEXIS 1388 (Cal 2/14/2011) “Petition for writ of habeas corpus was denied, where petitioner failed to prove by a preponderance of the evidence his claim that the prosecutor, during a visit to a restaurant, improperly tampered with a juror by sending her alcoholic drinks and money, or by telling her, outside the courtroom, directly or indirectly, to vote for a guilty verdict.” [via LexisOne]

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

• State v. Willie Herring, 2011 Ohio App. LEXIS 540;2011 Ohio 662 (Ohio 7th App 2/11/2010) “Based on the foregoing, we must conclude that the trial court’s decision denying postconviction relief was an abuse of discretion. As the United States Supreme Court concluded inRompilla, the undiscovered mitigating evidence in this case ” ‘ “might well have influenced the jury’s appraisal” ‘ ” of appellant’s culpability and the probability of a different sentence if counsel had presented the evidence is “‘sufficient to undermine confidence in the outcome’” reached by the jury. (Internal citation omitted.) Accordingly, appellant’s first assignment of error has merit.” [internal citation omitted] “In a death penalty case, counsel’s mitigation investigation was less than adequate under R.C. 2929.04 because information in affidavits brought to light defendant’s deeply troubled childhood, his complete lack of any positive role models, his substance abuse problems, his depression, his low IQ, and his possible organic brain impairment.” [via LexisOne]
• 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

• Gary Roland Welch v. Workman, 2011 U.S. App. LEXIS 2843 (10th Cir 2/10/2011) (amendingWelch v. Workman, 607 F.3d 674 (10th Cir. 2010)) Relied denied on “issue Welch raised in his petition for panel rehearing and clarifying that the panel reviewed the Hardcastle family’s victim impact testimony de novo, applying Brecht v. Abrahamson.” “Murder victim’s family’s impact statements improperly characterized and [commented] ]about crime, defendant, and appropriate sentence, assessing improper parts of the victim impact statemen tbut in context of evidence presented, they had no actual impact on sentence, so petitioner’s habeas claims of Eighth and Fourteenth Amendment violations failed.” [via LexisOne]
• Antonio Lebaron Melton v. State, 2011 Fla. LEXIS 411 (FL 2/9/2011) Successive postconviction petition dismissed as premature where it asserted, underJohnson v. Mississippi, the invalidity of prior conviction used as an aggravator that had not yet been vacated.
• 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]

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/11022.htm. Almost all cases can be found by going toLexisone.comand typing in the appropriate lexis cite OR going to Google 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.