Four grants of relief are noted this edition.

The South Carolina in Nance v. Ozmint examines when does an attorneys conduct cross the line from just merely ineffective to abandonment of a client. The U.S. Supreme Court remanded this case back to the South Carolina court in light of Florida v. Nixon. "We again recognize that this type of "consistently inept form of lawyer conduct [is not] acceptable in this state, nor will we employ a prejudice analysis, for '[defense] counsel's ineffectiveness [is] so pervasive as to render a particularized prejudice inquiry unnecessary.'" Why? The only "testimony that defense counsel presented in Petitioner's guilt phase defense consisted of testimony of a corrections officer concerning the only incident of misconduct that Petitioner committed while incarcerated; an opinion by an uninformed psychiatrist who was not qualified as an expert; and unprepared testimony of Petitioner's sister about Petitioner's oddities as a child;" and the guilt phase was arguably the stronger of the two phases of the trial for counsel.

Concerns over innocence under gird the decision of the Florida Supreme Court in Penalver v. Florida. The evidence against Penalver at trial was slim. The reversal here appears to be based on a heartfelt concern of factual innocence and that the trial judge unduly increased the risk of wrongful conviction by permitting the introduction of hearsay and other impermissible evidence.

In State v. Hancock the trial judge excluded certain guilt phase exhibits from the penalty phase of the trial. The trial court excluded the evidence out of fear the evidence might unduly focus the jurors' minds not on weighing the aggravating and mitigating circumstances but on the underlying homicide. The jury was given the excluded evidence in error during the penalty phase deliberations. The trial court vacated the death sentence and imposed a life sentence. An intermediate appellate court reinstated the death sentence. The Ohio Supreme Court holds that the jury improperly considered the excluded evidence and remands for a new sentencing hearing.

The final case in the "win" column is State v. Dean. In Dean the Alabama Court of Criminal Appeals looks at murder made capital by killing a witness. Under Alabama law, the Court holds, where a witness has not yet been placed under subpoena (even if the state projects it will call the witness) the killing is not covered by the statute.

Elsewhere, several new resources are noted. the Innocence Institute of Point Park University has added a new element to its web site that includes statutes from all 50 states regarding post-conviction DNA testing, compensation statutes, preservation of evidence, interrogation practices and eyewitness procedures at: www.pointpark.edu/innocence. Dan Williams has posted Roper v. Simmons and the Limits of the Adjudicatory Process (which will appear in Michigan State Law Review, Vol. 1, 2006), which offers a quick read and ideas for those looking to expand the categorical bars to topics outside the areas of mental retardation and juvenile executions, as well as ideas for those who represent juveniles. The New York Times ran a piece this past Tuesday on "moral disengagement" and the execution process entitled "When Death Is on the Docket, the Moral Compass Wavers."

In the news, Robert Neville Jr. was executed this week despite, according to press reports, raising questions whether the lethal drugs used in the punishment were humane and claims Neville suffered a mental illness brought on by lupus that should disqualify him from the death penalty. The Maryland Supreme Court stayed the scheduled execution of Vernon Lee Evans Jr. on claims including questions of the racial composition of who gets life & death in Maryland, as well as, (to no one's surprise) lethal injection. In neighboring Delaware Thomas Capano, a former prosecutor and political insider, will not face a new penalty phase proceeding after the state supreme court vacated his sentence on Apprendi/Ring grounds. In Virginia the trial of Zacarias Moussaoui began Monday; PACER for the Eastern District of Virginia is here for those wanting to "borrow" anything from the case.

There is some hope to get back to the normal release of the Weekly during the work-week rather than on the weekends in the coming weeks, however, it remains to be seen whether that goal can be met. As always, please forgive the typos, thanks for letting us know when something has been missed & for reading. - k

Archived on the net athttp://capitaldefenseweekly.com/archives/060206.htm

Executed

February

7 Glenn Benner (Ohio)

8 Robert Neville Jr. (Texas)

Pending Executions

February

15 Clyde Smith (Texas)

21 Michael Morales (California)

March

15 Tommie Hughes (Texas)

17 Patrick Moody (North Carolina)

22 Robert Salazar Jr. (Texas)

28 Raymond Martinez (Texas)

29 Kevin Kincy (Texas) More Execution information

In Favor of Life & Liberty

Penalver v. Florida, 2006 Fla. LEXIS 141 (FL 2/2/2006) Relief granted in light of plausible claim of factual innocence. "Because we find that the trial court erred in several of its evidentiary rulings, we vacate the judgments and sentences imposed and remand for a new trial."

State v. Hancock, 108 Ohio St. 3d 57;2006 Ohio 160;2006 Ohio LEXIS 215 (Ohio 2/1/2006) "[T]he erroneous submission of the excluded exhibits to the jury during penalty-phase deliberations invalidated the jury's recommendation of death."

Nance v. Ozmint, 2006 S.C. LEXIS 26 (S.C. 1/30/2006) On remand in light of Florida v. Nixon, the Court holds that "[w]e again recognize that this type of "consistently inept form of lawyer conduct [is not] acceptable in this state, nor will we employ a prejudice analysis, for '[defense] counsel's ineffectiveness [is] so pervasive as to render a particularized prejudice inquiry unnecessary.'"

State v. Dean, 2006 Ala. Crim. App. LEXIS 14 (Ala Crim App 2/3/2006) Murder of a witness under Alabama law is only made capital where the witness has already been placed under subpoena. The witness here had not yet been placed under subpoena even though the state projected it would call the decedent. The trial court, therefore, properly dismissed capital murder under the theory of murder of a witness.

Favoring Death

Wyatt v. Dretke, 2006 U.S. App. LEXIS 2544 (5th Cir 1/31/2006) Relief denied on "(1) whether the State's failure to produce a notebook prepared by the victim's mother (after her child's death) violated due process, pursuant to Brady . . . ; and (2) whether Ring v. Arizona is inconsistent with the prejudice prong for ineffective assistance of counsel (IAC) under Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002)". COA denied relief on a Bush v. Gore claim that "whether the Texas death penalty statute violates equal protection because it provides no uniform standards for when prosecutors should seek that penalty."

Bucklew v. Luebbers, 2006 U.S. App. LEXIS 2238 (8th Cir 1/30/2006) Relief denied on claims including: "(1) Whether Bucklew's trial counsel rendered ineffective assistance during the guilt phase of the trial by failing to investigate and present evidence relevant to his mental state at the time of the crime and by opening the door to evidence of prior bad acts; and (2) Whether Bucklew's trial counsel rendered ineffective assistance during the penalty phase by failing to investigate and present substantial mitigating evidence, failing to investigate and present evidence to rebut the State's aggravating factors, and failing to object to improper argument by the prosecutor."

Rutherford v. Crosby, 2006 U.S. App. LEXIS 2287 (11th Cir 1/30/2006) Lethal injection litigation, subsequently resulting in a stay

Jackson v. Crosby, 2006 U.S. App. LEXIS 2557 (11th Cir 2/2/2006) "Although an intervening decision of the Supreme Court makes clear that the district court's resolution of Petitioner's motion for relief from judgment relied on an erroneous understanding of the procedural law, the Petitioner's motion for reconsideration is denied because relief under Rule 60(b) is nonetheless unavailable under these circumstances."

Swearingen v. State, 2006 Tex. Crim. App. LEXIS 186 (Tex. Crim. App. 2/1/2006) Appeal of trial court's refusal to do DNA testing held to have been filed too late, under a complicated interpretation of the Texas rules of appellate procedure.

State v. Jones, 2006 Ala. Crim. App. LEXIS 2 (Ala Crim App 2/3/2006) Relief denied. Claims included: finding that defendant's statements were made to police were voluntarily & Mirandized; failure to suppress evidence seized from residences andvehicles; sufficiency of aggravators and conviction, and diminished capacity defense under Alabama law

Selected excerpts from this Edition's Cases

State v. Hancock, 108 Ohio St. 3d 57;2006 Ohio 160;2006 Ohio LEXIS 215 (Ohio 2/1/2006) "[T]he erroneous submission of the excluded exhibits to the jury during penalty-phase deliberations invalidated the jury's recommendation of death."

{¶ 29} After the penalty phase, the jury recommended a death sentence. However, before sentencing, the trial court learned that several exhibits, admitted in the guilt phase but excluded from the penalty phase, had been inadvertently sent to the jury room during the penalty-phase jury deliberations. These included the crime-scene photographs, the ligatures used to tie Wagner to the bed and strangle him, and Hancock’s statements to investigators. Finding that the admission of these exhibits constituted outside communication and was presumptively prejudicial, the trial court declared a mistrial of the penalty phase and – expressly declining to weigh the aggravating circumstances against the mitigating factors – sentenced Hancock to life imprisonment without the possibility of parole.

{¶ 30} The state filed a motion for leave to appeal the trial court’s decision granting a mistrial in the penalty phase. The Court of Appeals for Warren County granted the motion. On appeal, the court of appeals held that the trial judge had erred by excluding the guilt-phase exhibits from the penalty phase; therefore, the submission of those exhibits to the jury was not a proper ground for mistrial. Accordingly, the court of appeals vacated the life sentence and remanded for resentencing. State v. Hancock, Warren App. Nos. CA2001-12- 115, CA2001-12-116, and CA2002-01-004, 2003-Ohio-1616, 2003 WL 1689612.

{¶ 31} On remand, the trial court found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and sentenced Hancock to death. Hancock appeals directly to this court as a matter of right.

{¶ 120} In his first proposition of law, Hancock argues that the imposition of a death sentence on remand was erroneous because the trial court did not abuse its discretion in the penalty phase when it excluded the guilt-phase exhibits in question. We agree. For the reasons that follow, we conclude that the trial court acted within its discretion by excluding the exhibits.

{¶ 121} “R.C. 2929.03(D)(1) ‘permit[s] repetition of much or all that occurred during the guilt stage.’ ” Fears, 86 Ohio St.3d at 345-346, 715 N.E.2d 136, quoting State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542. See, also, State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 157. In State v. DePew, we held that “the prosecutor, at the penalty stage of a capital proceeding, may introduce, ‘* * * any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing.’ ” Id., 38 Ohio St.3d at 282, 528 N.E.2d 542, quoting R.C. 2929.03(D)(1). However, the statute does not compel the trial court to admit guilt-phase evidence wholesale into the penalty phase. Instead, the trial court is “required to determine what evidence is relevant” in the penalty phase. State v. Getsy (1998), 84 Ohio St.3d 180, 201, 702 N.E.2d 866.

{¶ 122} In exercising that responsibility, trial judges are clothed with a broad discretion. See State v. Sanders, 92 Ohio St.3d at 259, 750 N.E.2d 90; State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 67-68. “[I]t is the trial court’s province to determine whether, under the circumstances, testimony is ‘essentially misleading or too remote’ to be deemed relevant. Whiteman v. State (1928), 119 Ohio St. 285, 298, 164 N.E. 51.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 35. A reviewing court must be “slow to interfere” with the trial court’s exercise of that discretion. State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126 (rejecting challenge to trial court’s exclusion of evidence as irrelevant). Thus, a trial court’s decision to admit or exclude evidence “will not be reversed unless there has been a clear and prejudicial abuse of discretion.” O’Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 17 O.O.3d 98, 407 N.E.2d 490.

{¶ 123} The court of appeals held that the exhibits in question were relevant to “show the nature and circumstances of the * * * aggravating circumstance and as rebuttal evidence to Hancock’s asserted mitigating factor that he was under duress/coercion/strong provocation.” State v. Hancock, 2003-Ohio- 1616, 2003 WL 1689612, at ¶ 31. See, also, id. at ¶ 29-33.

{¶ 124} However, the court of appeals never explained how the exhibits were relevant to the aggravating circumstance that the murder was committed by an inmate under detention.

{¶ 125} The court of appeals held, and the state argues here, that the exhibits in question were relevant to rebut the existence of “duress, coercion, or strong provocation,” R.C. 2929.04(B)(2). State v. Hancock, 2003-Ohio-1616, 2003 WL 1689612, at ¶ 30-32. The state contends that the photographs and ligatures show that Hancock “was not fearful or forced into his actions.” But Hancock never claimed at trial that he was “fearful or forced into his actions.”

{¶ 126} Finally, the state argues that the exhibits in question were admissible in the penalty phase because they were relevant to the nature and circumstances of the aggravated murder.

{¶ 127} We have said that the sentencer must consider the nature and circumstances of the offense, whether they have mitigating impact or not and whether the defense raises them or not.4 We have further said that the sentencer “may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.” State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus. But, cf., Wogenstahl, 75 Ohio St.3d at356, 662 N.E.2d 311 (“the nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation” (emphasis sic)).

{¶ 128} Accordingly, guilt-phase evidence bearing on the nature and circumstances of the offense is not categorically inadmissible in the penalty phase simply because it is introduced by the prosecution rather than the defense. See State v. Woodard (1993), 68 Ohio St.3d 70, 78, 623 N.E.2d 75; State v. Jones (2001), 91 Ohio St.3d 335, 350, 744 N.E.2d 1163; State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 111.

{¶ 129} Moreover, “it must be kept in mind that the term ‘abuse of discretion’ means more than an error of law or error of judgment.” State ex rel. Wilms v. Blake (1945), 144 Ohio St. 619, 624, 30 O.O. 220, 60 N.E.2d 308. In other words, a reviewing court may not override the trial court’s determination that a particular item of evidence is relevant or irrelevant simply because it disagrees with the trial court. “The issue of whether testimony or evidence is relevant or irrelevant, confusing or misleading, is best decided by the trial judge, who is in a significantly better position to analyze the impact of the evidence on the jury.” Renfro v. Black (1990), 52 Ohio St.3d 27, 31, 556 N.E.2d 150.

{¶ 130} “The term ‘abuse of discretion’ * * * implies that the court's attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855. “Abuse of discretion” means “ ‘a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ 1 Bouv.Law Dict., Rawle’s Third Revision, p. 94. * * * The term has been defined as ‘a view or action that no conscientious judge, acting intelligently, could honestly have taken.’ ” Wilms, 144 Ohio St. at 624, 30 O.O. 220, 60 N.E.2d 308 quoting Long v. George (1937), 296 Mass. 574, 579, 7 N.E.2d 149, quoting Davis v. Boston Elevated Ry. Co. (1920), 235 Mass. 482, 502, 126 N.E. 841. Accord State ex rel. Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 591, 50 O.O 465, 113 N.E.2d 14.

{¶ 131} The trial judge’s action in excluding the evidence in question here simply cannot be described in the above terms. The central task of the jury in the penalty phase of a capital case is to “determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case.” R.C. 2929.03(D)(2). A trial judge cannot be said to have acted arbitrarily or unconscionably merely because he exercised caution to ensure that the jury focused its attention on that task. Here, the trial court could reasonably have determined that these particular exhibits had an excessive tendency to focus the jury’s attention on the aggravated murder itself and away from the aggravating circumstances and mitigating factors that the jury was required to balance.

{¶ 132} Our holding that the trial judge did not abuse his discretion should not be understood as an endorsement of his ruling. The exhibits were not intrinsically inadmissible, and the trial judge might reasonably have made a different ruling. But the question before us is whether, in excluding them, the trial judge acted arbitrarily, unreasonably, or unconscionably. On the record before us, we cannot conclude that he did.

{¶ 133} The jury’s recommendation of death was tainted by its exposure, during penalty-phase deliberations, to evidence that the trial court had reasonably excluded from that phase. Therefore, that recommendation cannot serve as the basis for a death sentence in this case. It follows that the court of appeals erred in holding the declaration of a mistrial by the trial court to be an abuse of discretion. We therefore sustain Hancock’s first proposition of law, vacate his death sentence, and remand for resentencing.

Nance v. Ozmint, 2006 S.C. LEXIS 26 (S.C. 1/30/2006) On remand in light of Florida v. Nixon, the Court holds that "[w]e again recognize that this type of "consistently inept form of lawyer conduct [is not] acceptable in this state, nor will we employ a prejudice analysis, for '[defense] counsel's ineffectiveness [is] so pervasive as to render a particularized prejudice inquiry unnecessary.'" Nance, 358 S.C. at 490, 596 S.E.2d at 67. (citing Frett v. State, 298 S.C. 54, 56, 378 S.E.2d 249, 251 (1988)). As a result, we hold that counsel was ineffective under Cronic and failed to act as an adversary to the prosecution, but instead helped to reinforce the case against his client.

We hold that this case represents a very rare situation where counsel failed to provide an adversarial challenge to the prosecution. We find it most compelling that in the present case counsel abandoned his role as defense counsel and in fact helped to bolster the case against his client. In particular, counsel’s statement that his client was “a sick man” who has done “sick things” points to the fact that he was not acting as defense counsel and failed “to function… as the Government’s adversary.” See Jones v. Barnes, 463 U.S. 745, 758 (1983) (stating that in order to satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court); Ferri v. Ackerman, 444 U.S. 193, 204 (1979) (stating that an indispensable element of the effective performance of [defense counsel's] responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation). In addition, counsel called a defense witness who testified about Petitioner’s one incident of misbehavior in jail. Finally, Petitioner’s sister testified as to his propensity for killing animals as a child. These witnesses, in addition to counsel’s opening and closing statements, helped to further bolster the prosecution’s case against Petitioner rather than providing him with a defense.

We again recognize that this type of “consistently inept form of lawyer conduct [is not] acceptable in this state, nor will we employ a prejudice analysis, for ‘[defense] counsel’s ineffectiveness [is] so pervasive as to render a particularized prejudice inquiry unnecessary.’” Nance, 358 S.C. at 490, 596 S.E.2d at 67. (citing Frett v. State, 298 S.C. 54, 56, 378 S.E.2d 249, 251 (1988)). As a result, we hold that counsel was ineffective under Cronic and failed to act as an adversary to the prosecution, but instead helped to reinforce the case against his client.