A new stay by the United States Supreme Court leads off this issue. The Supreme Court inMiller-El v. Cockrellhas granted a stay on four separate issues including, most notably, use of race in jury selection (Batson) & the deference due state court factual adjudications.Miller-Elmarks the fourth stay granted by the Supreme Court in a pending execution since the start of the year. The Supreme Court section lists the issues inMiller-El, the issues in the other cases where stays have been granted in recent weeks, as well as the links to the various briefs.

Concerns over quality of counsel & the legality of forcefully medicated the condemned to competency have also earned a stay in Georgia Board of Pardon and Parole on an imminent execution date in of Alexander Williams, however, information remains scant at this time.

Olive v. Maasis the highlighted case of the week. Olive challenged to the manner in which state postconviction counsel are appointed and compensated in Florida. A victory was had on the funding issue and but lost on the two remaining issue. The case has been "Hot Listed" as it provides a rare glimpse into the ethical requirements governing post-conviction counsel &, equally as important, tools for challenging the compensation for counsel.

Sharing the hot list this week isTurner v. Calderonis the Court's reminder that counsel may be ineffective for failing to present evidence in the penalty phase relating to the degree of culpability that had http://www.law.depaul.edu/cjcc/staff.aspbeen examined the guilt phase for another purpose, such as mens rea.

The Focus section this week coversStephen P. Garvey,Aggravation and Mitigation in Capital Cases: What Do Jurors Think, 98 CLMLR 1538 (October 1998). Garvey examines in depth those factors that lead jurors to vengeance and to mercy.

As you may well know, the electronic version of the Weekly has been & will remain free from cost to the reader. What is not free, however, is the work CUADP (Citizen's United for Alternatives to the Death Penalty) who have serve as one of the leading (if not the leader of,) direct action groups against the death penalty in the United States. CUADP right now is in a difficult financial shape and even the smallest of donations will go along way during the pinch. You can visit them at http://www.cuadp.org or their online pledge page at http://www.cuadp.org/support.html.

Finally, an interesting new web resource is noted,The Death Penalty Law Review Center, http://www.law-forensic.com/dp_law_review_center.htm. Run by Craig Cooley, an Investigator with the Illinois State Appellate Defenders, Death Penalty Trial Assistance Unit and law student DePaul University's College of Law, the site provides some great articles that are often difficult to find on various issues relating to the death penalty.

Since the last edition there have been the following domestic executions:

19 John Byrd Jr. Ohio

Executions slated and considered likely for February & March 2002:

20 Alexander Williams Georgia (stay)

21 Thomas Miller-El Texas (stay)

28 Monty Delk Texas

March

6 Jeffrey Tokar Missouri

7 Gerald Tigner Texas

12 Rodolfo Hernandez Texas

This week's edition is at http://www.capitaldefenseweekly.com/archives/020218.htm

HOT LIST CASES

Olive v. Maas(need Lexis) (FL 2/14/2002) Florida registry attorneys are not foreclosed from seeking compensation if it can be shown that, given the facts and circumstances of a particular case, compensation within the statutory schedule may be less than appropriate, but restrictions under Section 27.711(10) of Florida Statutes (2000) against repetitive, frivolous or successive claims are not unethical.

Capped Fee Schedule

In 1998, the Legislature enacted sections 27.710 and 27.711 which, as previously explained, provide for the maintenance of a registry of private attorneys to represent indigent death row defendants in postconviction proceedings, and establish the fee schedule and other guidelines which must be adhered to by these private attorneys, respectively. The purpose of this program was to "alleviate . . . CCRC's backload of capital cases which have not been assigned to an attorney." Fla. S. Comm. on Crim. Just., CS for SB 1328 Staff Analysis 1 (Mar. 3, 1998) (on file with comm.).

Of particular contention in this case is the language in section 27.711(3), which dictates that "the fee and payment schedule in this section is the exclusive means of compensating a court-appointed attorney who represents a capital [*16] defendant." (Emphasis supplied.) The fee schedule is in turn set forth in subsection (4). n7 The contract which the registry attorneys must sign upon appointment tracks the language in section 27.711(3)-(4), and incorporates the entire compensation scheme by reference. Thus, both the contract and the statutory language indicate that the compensation scheme outlined in the legislation constitutes the exclusive means of compensation. Olive's particular contention is that by agreeing that the fees and costs schedule established in section 27.711 encompasses the exclusive means of compensation, he would be waiving any further compensation to which he may be entitled.

His concern is based on a series of cases from this Court which, in short, provide that statutory maximum fees may be unconstitutional when they are inflexibly imposed in cases involving unusual or extraordinary circumstances because these caps interfere with the trial court's inherent power to ensure adequate representation and the defendant's Sixth Amendment right to assistance of counsel. See Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986); see also White v. Board of County Commissioners of Pinellas County, 537 So. 2d 1376 (Fla. 1989). For example, in Makemson, the Court addressed the constitutionality of section 925.036, Florida Statutes (1981), setting fee caps on compensation provided to attorneys who represented defendants at trial and first appeal as a matter of right. The Court held that, although the statute was not unconstitutional on its face, the statute was "unconstitutional when applied in such a manner as to curtail the court's inherent power to ensure the adequate representation of the criminally accused." Makemson, 491 So. 2d at 1112. The opinion added:

It is within the inherent [*18] power of Florida's trial courts to allow, in extraordinary and unusual cases, departure from the statute's fee guidelines when necessary in order to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory of his or her time, energy and talents.

Id. at 1115. The Makemson Court also focused greatly on a defendant's constitutional right to the effective assistance of counsel, reasoning:

Most fundamentally . . . [a mandatory fee cap] interferes with the sixth amendment right to counsel. In interpreting applicable precedent and surveying the questions raised in the case, we must not lose sight of the fact that it is the defendant's right to effective representation rather than the attorney's right to fair compensation which is our focus. We find the two inextricably intertwined.

Id. at 1112. Overall, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that:

(1) It creates and economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent [*19] attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.

Bottoson v. State, 674 So. 2d 621, 626 (Fla. 1996) (Kogan, J., concurring in part and dissenting in part).

Subsequent to the Makemson decision, we decided White wherein we further elucidated:

We find that all capital cases by their very nature can be considered extraordinary and unusual and arguably justify an award of attorney's fees in excess of the current statutory fee cap.

537 So. 2d at 1378. On the issue of the relationship between attorney compensation and a defendant's right to counsel, we noted:

It must be remembered that an indigent defendant's right to competent and effective representation, not the attorney's right to reasonable compensation, gives rise to the necessity of exceeding the statutory maximum fee cap. The relationship between an attorney's compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided due to the statutory fee limit. As a result, [*20] there is a risk that the attorney may spend fewer hours than required representing the defendant or may prematurely accept a negotiated plea that is not in the best interests of the defendant. A spectre is then raised that the defendant received less than the adequate, effective representation to which he or she is entitled, the very injustice appointed counsel was intended to remedy.

Id. at 1179-80.

The year after White was released, we decided Remeta v. State, 559 So. 2d 1132 (Fla. 1990), where we extended the reasoning of Makemson and White to a case involving the statutory right to counsel, as opposed to a constitutional right to counsel. In that case, a private attorney was appointed to represent Remeta at his executive clemency proceeding. After the representation, the attorney sought fees in excess of those delineated by statute. See § 925.035(4), Fla. Stat. (1987). On appeal, the State argued that,"since Makemson and White establish rules to protect the constitutional right to effective assistance of counsel . . . neither case applies here because there is no such 'right' at issue, constitutional [*21] or otherwise." Id. at 1134. The Court, in rejecting the State's argument, reasoned that "it is clear that this state has established a right to counsel in clemency proceedings for death penalty cases, and this statutory right necessarily carries with it the right to have effective assistance of counsel." Id. at 1135. We ultimately extended the rationale underlying Makemson and White, indicating:

The concerns we addressed in Makemson and White were to ensure effective assistance of counsel for indigent defendants through adequate compensation for time-consuming court-appointed public service, and to prevent confiscatory compensation of counsel. These concerns weigh just as heavily in executive clemency proceedings, especially where a defendant's life is at stake.

Id. We further noted:

The appointment of counsel in any setting would be meaningless without some assurance that counsel give effective representation. As we said is Makemson, our focus must be on the "defendant's right to effective representation rather than the attorney's right to fair compensation." Unfortunately, the "link between compensation [*22] and the quality of representation remains too clear."

Id. (quoting Makemson, 491 So. 2d at 1114) (citation omitted) (alteration in original). It is on the foundation of these decisions that Olive asserts that he may not be "forced" to sign a contract waiving further potential compensation which exceeds the statutory fee cap.

Respondents candidly conceded during oral arguments that Makemson, White, and Remeta were applicable to the present case and that, accordingly, in capital cases where extraordinary or unusual circumstances exist, trial courts are authorized to award fees in excess of the statutory schedule set out in section 27.711(4). That Makemson and its progeny control this issue is expressly noted in a staff analysis forming part of the legislative history of section 27.711. Specifically, the Staff Analysis to SB 2054, which ultimately became chapter 99-221, Laws of Florida, amending sections 27.710 and 27.711, indicates the following under the heading "Other Constitutional Issues:"

Section 27.711(4), F.S., provides for the hourly rate and maximum compensation of registry attorneys. In Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986), [*23] the Florida Supreme Court held that a statute which set a maximum fee limitation for compensation to attorneys who were appointed by the court to represent indigent criminal defendants was constitutional, on its face. However, the Court stated that such a statute may be "unconstitutional when applied in such a manner as to curtail the court's inherent power to ensure the adequate representation of the criminally accused." Id. According to the Court, "statutory maximum fees, as inflexibly imposed in cases involving unusual or extraordinary circumstances, interfere with the defendant's sixth amendment right 'to have the assistance of counsel for his defense.'" Id[.] (citation omitted).

Consequently, where unusual or extraordinary circumstances exist, the fees caps established by s.27.711(4), F.S., and increased by the provisions of this bill, do not prevent a court from ordering payment above the maximum authorized.

Fla. S. Comm. on Crim. Just., CS for SB 2054 Staff Analysis 7 (March 17, 1999) (on file with comm.) (emphasis supplied); see also Arbelaez v. Butterworth, 738 So. 2d 326, 328 (Fla. 1999) (Anstead, J., specially [*24] concurring) (discussing 1999 amendments to section 27.711 and noting that the "staff analyses from both the Senate and the House specifically indicate that the legislature is concerned about compliance with this Court's decision in Makemson."). Accordingly, although section 27.711 indicates that the fee schedule set forth in subsection (3) is the "exclusive means of compensation," the legislative history and staff analysis clearly contemplate, and indeed accommodate, fees in excess of the statutory schedule in cases where unusual or extraordinary circumstances exist. In doing so, it is obvious that the legislative process patently acknowledged that unless room is made to allow compensation in excess of the fee caps, a statutory framework may run afoul of this Court's precedent in Makemson and its progeny.

Thus, as to this issue, we conclude, consistent with Makemson, White, Remeta, the legislative history of section 27.711, and respondents' concessions, that trial courts are authorized to grant fees in excess of the statutory schedule where extraordinary or unusual circumstances exist in capital collateral cases. To be sure, by so concluding, we do not purport [*25] to hold that fees in excess of the statutory cap will always be awarded to registry attorneys in capital collateral cases. Obviously, the Makemson standard clearly envisions an "as applied" analysis. Instead, we simply hold that by accepting an appointment, a registry attorney is not forever foreclosed from seeking compensation should he or she establish that, given the facts and circumstances of a particular case, compensation within the statutory cap would be confiscatory of his or her time, energy and talent and violate the principles outlined in Makemson and its progeny.

Turner v. Calderon, 2002 U.S. App. LEXIS 2219 (9th Cir 2/12/2002) New evidentiary hearing ordered on Turner's claims relating to trial counsel's failure to investigate and present evidence of his long-term drug use and his abusive and difficult childhood.

Turner claims prejudice in Mr. Ellery's failure to develop and introduce mitigating evidence during the penalty phase. In California, the admissibility of aggravating and mitigating factors is governed by California Penal Code § 190.3, which provides for a wide range of evidence to be considered by the jury in weighing whether the penalty of death or life without possibility of parole is [*94] the more appropriate penalty for the individual before it. Far from developing and introducing the statutorily indicated evidence to aid in the jury's heavy responsibility, Mr. Ellery admitted to the judge that he was not prepared to proceed with this phase of trial. Even though Mr. Ellery called six witnesses to testify, the entire penalty phase took less than one day, and the jury returned its verdict of death in just over an hour. As summarized by the California Supreme Court, the prosecution's penalty phase evidence consisted of the following:

The only new prosecution evidence introduced at the penalty phase concerned the circumstances of the homicide. Pathologist Murdoch was recalled to testify in detail concerning the number, angles, depths, and force of the stab wounds in Savage's body. Dr. Murdoch emphasized that most of the wounds were deep and were inflicted with considerable force. According to Dr. Murdoch, the superficiality of certain cuts was caused by the fact that the knife had struck bone before penetrating deeply. Dr. Murdoch's testimony was illustrated by photographs which showed forcep-like devices inserted in the wounds to demonstrate their depths. [*95]

Turner, 50 Cal. 3d at 687.

The defense evidence consisted of the following:

Detective Strength testified that the remote control for the upstairs television was not taken. Ruth Turner, defendant's mother, testified that defendant had been a gentle and helpful child and youth, who made average grades in school and caused little trouble; he gave her a portion of each paycheck from his post-prison job as a carpenter's helper. Ms. Turner noted that defendant's brother and three sisters had never been in trouble with the law; two sisters were currently attending college. A half-sister, an older cousin, and a neighbor confirmed that defendant had been quiet, gentle, and loving. A job developer, Louis Coleman, testified that defendant received good reports for punctuality and reliability in post-prison job placements.

Id.

Turner argues that had Mr. Ellery" called experts properly qualified on the subject of the effects of P.C.P. and had [he] called family witnesses and friends who had observed his radical behavioral changes while under the influence of drugs, such mitigating evidence might have influenced the jury to bring back a verdict other than [*96] death." We must agree.

Turner's argument can be broken down into three evidentiary categories. First, Turner alleges that, despite the jury's rejection of his diminished intent or diminished responsibility argument at the guilt phase, Mr. Ellery should have investigated and presented further evidence of Turner's drug use and the effects that it had on him. Second, Turner implicitly argues that evidence of his abusive and difficult childhood should have been investigated and introduced. Further inquiry would have revealed for example that, if asked, his mother would have testified that his father "socked him in the head and forced him to sit on a dangerous embankment as a form of discipline." Additional investigation also have revealed that, contrary to his mother's testimony, his transcripts demonstrated low grades and low achievement scores. Third, Turner alleges that, as his probation reports from his earlier incarceration indicate, approximately ten individuals, from school teachers to employers, could have been called upon to testify on his behalf, giving him "a far more complete penalty phase than what was presented at trial."

After reviewing the requirements for constitutionally [*97] effective assistance of counsel, the district court found that Turner had failed to demonstrate the need for an evidentiary hearing and concluded that counsel was not constitutionally ineffective. With respect to the first category of omitted evidence -- that of Turner's drug use -- the district court stated:

Much of the evidence Turner claims should have been developed and introduced by Mr. Ellery, in fact, could, have been mitigating to the imposition of the death penalty. Evidence of Turner's prolonged drug use and its effects could have attenuated the impression jurors had of Turner as a malicious, opportunistic killer. Whereas during the guilt proceedings evidence of Turner's past drug use and violent drug reactions would not have been helpful to his case in assessing his criminal responsibility for killing Mr. Savage, the accumulation of toxic substances in his system together with an explanation by qualified experts as to why a person resorts to such drug use and how those drugs could affect a person with Turner's background may have been more persuasive on sentencing.

Despite these findings, however, the district court does not appear to have specifically [*98] addressed whether Mr. Ellery was ineffective for failing to adduce evidence of narcotics usage in the penalty phase. The only reference to Turner's drug use in the court's analysis is found in its conclusion that Mr. Ellery's alleged failure to develop and present evidence concerning Turner's family and background (the second category of omitted evidence) was not constitutionally incompetent:

Unlike the defendant in Eddings [who was 16], Turner was 22 at the time of the crime, and was no longer subjected to abuse from his father. As measured against the brutality of the crime, Turner's family history is too attenuated to have swayed the jury to impose a lesser sentence. Nor would Turner's voluntary drug use have moved jurors in Merced County to sympathy. The proffered evidence must be considered in the context of the crime and the venue in which the case was tried. In that context, Mr. Ellery's alleged failures do not amount to constitutional incompetence. Nor is there prejudice.

With respect to the third category of omitted evidence, allegedly favorable letters and reports from former teachers and employers, the district court stated:

None of these [*99] documents have been produced for the Court's review, and as far as the record demonstrates, they were not produced in state court either. To the extent the evidence was available, as Turner claims, and it was not presented during state proceedings, it is subject to the restriction mandated in Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 2d 318, 112 S. Ct. 1715, that cause and prejudice, or a fundamental miscarriage of justice must be demonstrated before the evidence may be considered on federal habeas. The required showing has not been made.

We believe that Turner does meet the standard for an evidentiary hearing as to ineffective assistance of counsel at the penalty phase. It is clear from the record that Mr. Ellery was not prepared to begin the penalty phase when the jury returned its verdict of first degree murder. Even the State informed the court that, "in all fairness to the defendant," the defense needed more time to prepare for this phase of trial.

It is also clear from the record that Mr. Ellery was on notice of both Turner's history of extensive drug use and of his claim to have smoked P.C.P. on the day of the homicide. Despite this information, [*100] Mr. Ellery did not question any of his penalty phase witnesses about Turner's drug use. Nor did Mr. Ellery call any additional experts to supplement Dr. Hamm's guilt phase testimony about the effects of P.C.P., even though the focus of the two phases was completely different: At the guilt phase Mr. Ellery was trying to establish lack of premeditation and intent as a defense, while at the penalty phase Mr. Ellery should have been trying to make Turner seem less culpable and therefore more deserving of life. Not only did Mr. Ellery fail to question Turner's mother, half-sister, and cousin, all of whom he called to testify at the penalty phase, about Turner's drug use, he also failed to question them about whether Turner's father was abusive towards his children or whether there was any history of substance abuse in the family. In sum, Mr. Ellery did nothing to demonstrate that Turner's actions were influenced by his early childhood.

Turner's declarations indicate that Turner's family and friends had information that may have influenced the jury to spare Turner's life. Turner's family and friends could have testified about his drug use, his abusive family home, his intellectual slowness, [*101] and his victimization in prison. For example, Turner's three sisters would have testified that their father repeatedly beat their mother and their brother, and that their father used razors when beating Turner. One sister would have testified that when her mother got mad she whipped the children with switches, extension cords, telephone wires, and big plastic wheel tracks. The three sisters also would have testified that they lived in fear of their father who was often drunk. Finally, they would have testified that, contrary to Mrs. Turner's testimony, Turner had difficulty in school and had always been considered "slow."

Declarations from two of Turner's friends demonstrate that they never considered Turner to have a violent nature or to enjoy fighting. They believed that, due to his peaceful nature, Turner was victimized when he was previously incarcerated in the Fresno County Jail. According to one friend, Turner had been raped regularly. Furthermore, both declarations confirm Turner's "amazing sherm habit" -- up to two P.C.P.-laced cigarettes a day. Thus, Turner has alleged sufficient facts with respect to Mr. Ellery's failure to investigate and present evidence of his long-term [*102] drug use and his abusive and difficult childhood, which, if true, could have altered the result of the penalty phase. Because he failed to uncover potentially persuasive mitigating evidence, we conclude that Mr. Ellery's penalty phase assistance may have been constitutionally ineffective.

There is no evidence in the record, however, as to the investigation Mr. Ellery did conduct or his penalty phase strategy. For example, Turner states that at an evidentiary hearing, Mr. Ellery would testify that he had not prepared for the penalty phase, and that he never treated Turner's case as a capital case. Turner also represents that his mother would testify that Mr. Ellery did not interview her in depth about his father's alcoholism or about their family's background. Because the motions, files, and records in this case do not conclusively show whether Turner is entitled to relief, we remand for an evidentiary hearing on whether Mr. Ellery's failure to investigate mitigating evidence constituted constitutionally ineffective assistance of counsel at the penalty phase. See Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir. 1994) ("Without the benefit of an evidentiary hearing [*103] . . . we cannot determine if counsel's decision was a strategic one, and if so, whether the decision was a sufficiently informed one.") (second alteration in original) (quoting Hendricks, 974 F.2d 1099 at 1109); Blaylock, 20 F.3d at 1465 ("Pursuant to 28 U.S.C. § 2255, a district court must grant a hearing to determine the validity of a petition brought under that section, 'unless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'") (quoting 28 U.S.C. § 2255).

SUPREME COURT CASES & NEWS

Miller-El v. Cockrell[cert petition][Amici of ABA]The Questions Presented in the cert. petition are:

1. Whether a court is required to ignore uncontested evidence of a pattern and practice of racial discrimination, and evidence of contemporaneous instances of discrimination, when assessing the genuineness of the alleged discriminator's proffered race-neutral reason for exercising a peremptory challenge?

2. Whether the court of appeals incorrectly concluded that 28 U.S.C. § 2254(d)(2) and § 2254(e)(1) require a habeas corpus petitioner to rebut state court determinations of fact by proving them "unreasonable" by "clear and convincing evidence"?

3. When assessing whether the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," may a federal court ignore the unreasonableness of the process by which the state court determined the facts?

4. Whether 2254(d)(2) embodies a presumption of correctness applicable to state court factfindings or a standard for assessing when a petitioner is entitled to relief?

Other recent stays include:

Ring v. Arizona:

Question Presented:

Walton v. Arizona, 497 U.S. 639 (1990), held that Arizona’s capital sentencing statute, which assigns solely to the trial judge the responsibility for making the findings of fact which are necessary to subject a defendant to a death sentence, does not contravene the Sixth Amendment’s jury-trial right as made applicable to the States through the Fourteenth Amendment’s Due Process Clause.

Ring Cert Petition ( word document) ( pdf file)

Ring Opposition brief ( word document)

Ring Cert Reply ( word document) ( pdf file)

Bottoson v. Floriida

King v. Florida

Question Presented:

Whether Walton v. Arizona, 497 U.S. 639 (1990), Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984), were overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000),

where this Court held that "for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed" ( id. at 490 [internal quotation marks omitted]) violates the defendant's Sixth Amendment right to a jury trial?

Bottoson cert petition

Mickens v. Taylor

Martin v. Cain

Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?

Mickens Amici brief of the United States

POSITIVE CAPITAL CASE RESULTS

People v. Mower, No. 3 No. 9 (NY 02/14/2002) Under New York's death penalty scheme, only a defendant who never faced the death penalty may plead guilty to first degree murder in exchange for life imprisonment without the possibility of parole.

CAPITAL CASES - RELIEF DENIED

Bishop v. Mississippi,2002 Miss. LEXIS 39 (Miss 2/14/2002)Relief denied on whether the trial court: [1] erred failing to follow rule 9.08 of the uniform circuit and county court rules as to the timing of certain pretrial matters; [2] erred in refusing to grant defendant funds for an independent psychological expertto help develop and present mitigation evidence; [3] erred in failing to recuse himself; [4] erred in allowing the state to amend constructively the indictment; [5]erred in giving the state's aiding and abetting instruction; [6] erred in allowing waiver of sentencing by jury; and [7] erred in finding sufficient to support Bishop contemplated lethal force would be employed.

Williams v. Puckett, 2002 U.S. App. LEXIS 2343 (5th Cir 02/13/2002) No certificate of appealability will issue under the AEDPA where petitioner could not make a substantial showing that: (1) there was insufficient evidence to support a conviction for kidnaping; (2) the prosecutor failed to turn over potentially exculpatory evidence; and (3) the sentencing jury was not instructed on the elements of kidnaping.

Mathis v. Texas, 2002 Tex. Crim. App. LEXIS 30 (Tex Crim App 2/13/2002) Relief denied on claims that: [1] the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter; [2] the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society; [3] the trial court erred in overruling his Batson challenge to the State's use of peremptory strikes on prospective jurors; [4] rhe trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter; [5] the prosecution's reference to the defendant as a "despicable piece of human trash;" [6] counsel rendered ineffective assistance by neglecting to object to the prosecutor's comments during final argument concerning his non-testimonial courtroom demeanor; and [7] the trial court erroneously overruled his objection to "victim impact."

Ex parte Shonelle Jackson, 2002 Ala. LEXIS 58 (Ala 2/15/2002) Relief denied on whether the trial court erred in granting the State's motion in limine, preventing him, Jackson argues, from presenting motive evidence; and whether the trial court erred in overriding the unanimous jury recommendation of life imprisonment without the possibility of parole and sentencing Jackson to death.

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

US v. Saenz, No. 00-11267(5th Cir 2/11/2002) The district court abused its discretion by not addressing the merits of Petitioner's motion to amend his motion pursuant to FRCP 15.

Nelson v. Hvass, No. 01-1423 (8th Cir 2/14/2002) Where a state court stays a direct appeal the AEDPA's one-year limitation period is likewise stayed..

Wyatt v. Terhune, No. 00-16568 (9th Cir 2/12/2002) Failure to meet the requirements of the fair notice requirements concerning pro-se litigants requires reversal of summary judgment against a Rastafarian prisoner's First Amendment and equal protection claims.

Taylor v. Delatoore, 2002 U.S. App. LEXIS 2240 (02/12/2002) Aprisoner cannot be prohibited from bringing and prosecuting a civil rights action because of his inability to pay the initial fee even after the enactment of the PLRA:

we conclude, however, that a prisoner cannot be prohibited from bringing and prosecuting a civil rights action because of his inability to pay the initial fee, the district court abused its discretion in dismissing Taylor's action for failure to prosecute and for failure to comply with the court order to pay the initial fee. We accordingly reverse the order of dismissal and remand for further proceedings.

FOCUS

The Focus section this week coversStephen P. Garvey,Aggravation and Mitigation in Capital Cases: What Do Jurors Think, 98 CLMLR 1538 (October 1998). Garvey examines in depth those factors that lead jurors to vengeance and to mercy.

Nothing can stand in the way of a capital defendant's ability to present mitigating evidence. Although the state can "structure" how a jury treats mitigating evidence, [FN100] it violates the Eighth Amendment when structuring the evidence turns into obstructing the defendant's plea for life.

For the most part, mitigating evidence falls into three broad categories: reduced culpability, general good character, and lack of future dangerousness. [FN101] Evidence of lack of future dangerousness speaks for itself and includes whatever might persuade the jury that the defendant will do *1562 no more harm, such as evidence of good behavior while in prison between arrest and trial. [FN102] Evidence of general good character includes evidence of the defendant's "positive character traits and past good works." [FN103]

Evidence of reduced culpability is slightly more complicated. Penalty-phase culpability is not the same as guilt-phase culpability. [FN104] A defendant's culpability may be great enough to convict, yet not great enough to sentence him to death. Evidence that reduces a defendant's culpability for purposes of the penalty phase can be broken down into two basic categories, which I'll call "proximate" and "remote." Evidence of "proximate" reduced culpability is evidence that "suggests any impairment of a defendant's capacity to control his or her criminal behavior, or to appreciate its wrongfulness or likely consequences." [FN105] Evidence of "remote" reduced culpability, in contrast, focuses on the defendant's character. It includes such things as abuse as a child and other deprivations that may have helped shape the defendant into the kind of person for whom a capital crime was a conceivable course of action. In short, proximate reduced culpability speaks to the defendant's lack of responsibility for what he has done; remote reduced culpability speaks to his lack of responsibility for who he is.

Most of the factors about which the survey asked involved reduced culpability, either proximate or remote. None of the factors about which the jurors were asked directly related to the defendant's general good character. [FN106] Responses to the two factors related to lack of future dangerousness-- that the defendant had "no previous criminal record" and that the defendant "would be a well-behaved inmate"--suggest that while this fact has some mitigating potential, its impact is relatively modest, especially in comparison to the number of jurors who treat the existence of future dangerousness as aggravating. [FN107] So, for example, only about a quarter of the jurors attributed mitigating effect to the likelihood that the defendant would be well-behaved, and only a fifth did so to the fact that the defendant had no previous criminal record. Moreover, most jurors *1563 who said these factors were at all mitigating thought they were only slightly mitigating. [FN108]

1. "Residual doubt" over the defendant's guilt is the most powerful "mitigating" fact.--Table 4 suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do, all else being equal, [FN109] is to raise doubt about his guilt. Although a disturbingly large minority of jurors reported that they would be just as likely to impose death if they had lingering doubts about the defendant's guilt, 60.4% said they would be much less likely to impose death, and 77.2aid they would be at least slightly less likely. [FN110] However, among those twenty-eight jurors who said they actually held lingering doubt over the defendant's guilt, only 46.4% said it made them much less likely to vote for death, and only 57.1% said it made them at least slightly less likely. [FN111] Fully 35.7% said it made no difference to them. [FN112] Learned Hand once wrote that the thought of an innocent man condemned was little more *1564 than a "ghost" that haunted the law. [FN113] Capital jurors appear to take the matter more seriously, but perhaps not seriously enough.

2. Proximate culpability--Evidence of mental retardation is highly mitigating, and evidence of the defendant's youthfulness is significantly mitigating.--Evidence that the defendant was mentally retarded was almost as powerful as lingering doubt over his guilt. Among the jurors surveyed, 29.5% reported that the defendant's mental retardation would make them slightly less likely to vote for death, and 44.3% reported that it would make them much less likely, for a total of 73.8%. [FN114] However, of the sixteen jurors in the survey who actually believed the defendant was mentally retarded, only seven found it mitigating. [FN115] Nine of them said it would leave them just as likely to vote for death. [FN116] Like mental retardation, the defendant's age is also significantly mitigating, with 41.5% of the jurors reporting that they would give at least some mitigating weight to the fact that the defendant was under eighteen at the time of the crime. [FN117]

3. Proximate culpability--Circumstances over which the defendant had no control and that diminish his individual responsibility at the time of the offense are highly mitigating. [FN118]--Returning for a moment to Table 2, a little more than half of the jurors reported that they would be at least slightly less likely to vote for death if the killing was committed under the influence of extreme mental or emotional disturbance, and almost a quarter of them reported that this fact would make them much less likely to vote for death. [FN119] Similarly, a majority of jurors would be at least slightly less *1565 likely to vote for death if the defendant had a history of mental illness. [FN120] All of this suggests that evidence of diminished proximate culpability can have relatively strong mitigating appeal.

However, not everything that diminishes an offender's self-control at the time of the offense is mitigating in jurors' minds. Jurors were willing to excuse a defendant if his lack of control at the time of the offense was due to something beyond his control, but they were noticeably less sympathetic if they thought the defendant's lack of control was his own fault. Only 18.5%, for example, would attach mitigating significance to the fact that the killing was committed under the influence of drugs, and only 18.3% would attach mitigating significance to the fact that the killing was committed under the influence of alcohol. [FN121] Nor did being a drug addict or an alcoholic have much mitigating potential. [FN122] Indeed, more jurors thought drug addiction was aggravating than mitigating (11.8% compared to 9.7%). [FN123]

4. Remote Culpability--Circumstances over which the defendant had no control and that may have helped form (or misform) his character had a noticeable but limited mitigating effect.--Looking again at Table 4, a third of jurors would assign some mitigating weight to the fact that the defendant had been seriously abused as a child, although nearly two-thirds would assign it no weight. Similarly, only 15.0% attached any mitigating significance to the fact that the defendant had a background of extreme poverty, [FN124] although this figure increased to 31.6% when the factor was actually present. [FN125] On the other hand, nearly half of the jurors assigned some mitigating weight to the fact that the defendant had been in state institutions but had never received any "real help or treatment" for his problems, although almost the same proportion would attach no significance to this fact. [FN126]

In sum, notions of collective or societal responsibility for shaping the defendant's character played some role in jurors' capital sentencing decision, especially if it appeared that the defendant tried to get help for his problems but society somehow failed him. Notions of individual responsibility, however, played a larger role. [FN127] Jurors were not completely unsympathetic *1566 to factors that reduced the defendant's responsibility for who he was, but they were more persuaded by factors that reduced his responsibility for what he had done, at least if he had no control over those factors.

5. "Relative culpability" plays little role.--Codefendants often turn on one another, and defendants in capital cases have a particularly strong incentive to cooperate with the state, since cooperation can often be exchanged for a sentence of less than death. Such bargains may be routine, but they are also troubling. Why should otherwise similarly situated defendants receive different treatment based on who gets to the prosecutor's office first? Consequently, if jurors realize that one codefendant escaped death just because he cooperated with the state, they might be less inclined to condemn the other codefendant.

In fact, few jurors actually seem to think like that. Although 17.2aid they would be less likely to vote for death if the defendant's accomplice received lesser punishment in exchange for testimony against the defendant, slightly over two-thirds said they would be just as likely to impose death under such circumstances. [FN128] Jurors perhaps take the view that the defendant should not escape the full measure of punishment just because his codefendant did.

Keep in mind that jurors were not actually told to assume that the relative culpability of the two defendants was the same, i.e., that the only difference between them was that one cooperated with the state and the other didn't. Whether this information would have made a difference is impossible to know. Moreover, it's worth noting that support for the death penalty in public opinion polls drops from 70-76% when respondents are asked whether or not they support the death penalty in the abstract to 25-29% when they are asked whether they support the death penalty for a defendant who was "[o]nly an accomplice to the killing." [FN129]

ERRATA

TheDeath Penalty Information Centerreports:

NEW RESOURCES: Mental Illness in Mothers Who Kill

Andrea Yates is on trial in Texas for murdering her children. The prosecution is seeking the death penalty. An opinion piece in the Dallas Morning News by Karen Patterson provides some insights into the mental illness which can lead to such acts:

Matching threads weave through much of the research on filicidal mothers. Compared with other such mothers, those who are severely disturbed are more likely to be older. They are more likely to be married. They tend not to conceal their act. They more often try to kill themselves at the same time. And they are more likely than other such mothers - who kill during abuse or moments after childbirth - to murder more than one child.

. . .

"Most are women who really care a lot about being mothers," Dr. Stanton, of the University of Auckland, found. "It's very important to them ... and I think that's partly why, when they develop the illness, the delusional stuff tends to relate to their children."

. . .

Among the mothers with severe mental illness, the decision to kill a child can arise abruptly. But then, so can the mental problems.

. . .

"They all had either a new illness that nobody knew about ... or their illness changed," Dr. Stanton says. "When you listen to these stories you can hear that they had signs and symptoms of illness, but they hadn't been recognized."

. . .

The mothers themselves wear a mantle of guilt and grief for years. "When I interviewed these women," Dr. Stanton recalls, "it was just so painful, still incredibly painful for them. It's a terrible thing to have to live with."

(Dallas Morning News, opinion, 2/17/02) Read the entire article.

Mentally Ill Juvenile Offender Receives Stay of Execution in Georgia

The Georgia Board of Pardons and Paroles has granted a temporary stay of execution until Feb. 25 to consider the case of Alexander Williams (see below), a mentally ill inmate who was sentenced to death for a crime he committed when he was 17 years old. Williams's attorneys assert that he should not be executed because he is a juvenile offender who suffers from chronic paranoid schizophrenia. Williams has a standing "involuntary medication order" that permits guards to forcibly inject his medication if he does not take it voluntarily. At Williams's trial, neither his age nor his mental health issues were presented to the jury. (Atlanta Journal Constitution, 2/20/02)

In an editorial urging a court to consider the Williams case, The Washington Post stated:

[T]he Williams case raises the question of whether Georgia may treat an inmate to restore competency, in order then to kill him.

. . .

The state does not concede the extent of Mr. Williams's impairment, contending instead that the matter has never been raised in the appropriate forum. But it apparently does take his delusions seriously enough to forcibly inject him with drugs if he does not take them willingly.

At the very least, a court should consider the evidence of Mr. Williams's current mental state and determine whether his execution would offend the Constitution. No court has yet done so. Ultimately, the Supreme Court should make clear that states may not treat mental illness in order to pave the road to the death chamber. The court faced this question once before, and it punted. It should not do so again. . . . Here's hoping someone has the decency to stop it altogether.

(The Washington Post, editorial, 02/20/02) Read the entire editorial. See also, juveniles and the death penalty.

NEW VOICES: Maryland High Court Judge: Death Penalty "Not Worth the Aggravation"Maryland Court of Appeals Judge Dale R. Cathrell, in his dissent to the Court's grant of a stay of execution to Stephen Oken, wrote:

To be honest, if I were a member of the legislative branch of government, I would probably vote to abolish the death penalty. . . . I would so vote because of the way the death penalty system works, it simply is not worth the aggravation it costs throughout the body politic.

(Baltimore Sun, 2/10/02)

NEW RESOURCES: EJI Legal Quarterly

In its most recent newsletter, the Equal Justice Initiative of Alabama provides articles about two upcoming Supreme Court cases, Ring v. Arizona (see below) and Bell v. Cone, and the recently decided case, Lee v. Kemna. There is also an article about EJI's class action law suit on behalf of Alabama death row inmates challenging their lack of access to legal counsel. (EJI Legal Quarterly, Winter 2001) See also, News from the U.S. Supreme Court.

EDITORIALS: Arizona Should Suspend the Death Penalty

Citing the study recently released by Columbia University Law School (see below), the Arizona Daily Star recommended a moratorium on executions, stating:

Tucson earned an alarming distinction this week in a new study on the death penalty in America. The study by the Columbia University Law School found that Pima County leads the nation in the rate at which it sentences convicts to death. However, the county frequently gets it wrong. More than 70 % of local death sentences are overturned on appeal.

. . .

Given these findings, the Legislature should impose an immediate moratorium on executions while it investigates what appear to be serious systemic problems in halls of justice all around the state.

. . .

The Columbia report noted several types of problems which can contribute to "overuse" of the death penalty and resulting high error rates. Those factors include chronic underfunding and overloading of courts, inadequacies in a community's overall approach to dealing with crime, and political pressures when judges or prosecutors face reelection.

Any of these factors - perhaps all of them - are arguably at play in Arizona. The best solution would be for the Legislature to eliminate the death penalty. Short of that, it must examine these issues in detail to ensure that the state is applying the death penalty fairly.

(Arizona Daily Star, editorial, 2/13/02) See also, Editorials.

Ohio Execution Raises Troubling Questions

John Byrd, who always maintained his innocence, was executed in Ohio on Feb. 19. Byrd was convicted primarily on the testimony of a jail-house informant. Similar testimony has been found suspect leading to exonerations of death row inmates in other states. In addition, another man, John Brewer, has signed an affidavit admitting that he killed the victim, not Byrd.

Pulitzer-Prize-winning author Arthur Schlesinger, Jr., voiced his opposition to Byrd's execution. In a letter to the Governor, Schlesinger wrote that capital punishment "should be reserved for cases where there is absolutely no shred or tremor of doubt . . . . The case of John Byrd is, to say the least, shrouded in doubt." (Columbus Dispatch, 2/17/02) For more information on Byrd's case, visit Amnesty International.

Death Penalty Prosecution Dropped After Prosecutor Alters EvidenceThe Los Angeles County District Attorney's office dropped its bid for the death penalty against Kenneth Leighton and Randall Williams after it was discovered that the prosecutor altered key evidence during the capital murder trial. On February 13, a Superior Court judge threw out Leighton's conviction, declaring a mistrial because prosecutor Michael Duarte violated a court order requiring him to turn over unrevised witness statements to the defense. The offense was brought to light when a law clerk told her supervisors that Duarte had instructed her to alter her notes of a witness statement. Duarte was fined $1,000, but contempt of court charges were dropped. In addition, he reported himself to the State Bar of California for possible discipline. (Los Angeles Times, 2/14/02)

Prominent Organizations Oppose Execution of Mentally Ill Juvenile Offender in Georgia Alexander E. Williams, a juvenile offender who suffers from paranoid schizophrenia, is scheduled for execution in Georgia on February 20 (stayed until at least Feb. 25). The Georgia Board of Pardons and Paroles has received pleas for clemency for Williams from organizations and individuals such as the American Bar Association, former First Lady Rosalynn Carter, the European Union, the National Alliance for the Mentally Ill, and the National Mental Health Association.Williams's trial lawyer failed to present available mitigating evidence to the sentencing jury, including the fact that Williams suffers from severe mental illness, and that his childhood was plagued with chronic physical, sexual, and emotional abuse. Five of the eight living jurors from his original trial have signed affidavits stating that they would not have sentenced Williams to death if they had known about his history of abuse and mental illness. (ABA Juvenile Justice Center, Action Alert, 2/13/02)To read a selection of clemency appeals and news articles written about Williams's case, see ABA Juvenile Justice Center. See also, Amnesty International's report "USA: Crying out for clemency."Currently, legislation to ban the execution of juvenile offenders is pending in Arizona, Florida, Indiana, Kentucky, and Missouri. See also, Juveniles and the death penalty.