Capital Defense Weekly, Febuary 19 , 2001
Five capital cases of note are covered this week, three wins, two losses. Possibly the most wide reaching is Fahy v. Horn (3rd Cir) which deals with the technicalities of the AEDPA's statute of limitations. With similar potential for broad impact is the Florida Supreme Court's holding in Rogers v. Florida vacating the condemned's conviction due to prosecutorial misconduct. Likewise the Illinois Supreme Court in People v. Lee vacates a death sentence due to the trial court's lack of statutory authority to order a capital defendant to submit to a psychiatric examination during the penalty phase of a trial. In Romano, et. al. v. Gibson the Tenth Circuit in this Oklahoma double prosecution denies relief where the petitioners attempted to put on evidence inculpating others & were denied. Finally, the Fifth Circuit in Kutzner v. Johnson holds conflicting or inconsistent testimony alone did not meet the materiality requirements for prosecutorial error.
The Illinois Supreme Court's death penalty proposed rules are now available at http://www.capitaldefenseweekly.com/briefbank/illinois/illinoisdeathpenaltyrules.pdf. My apology for the delay as they were difficult to obtain.
The briefbank at the Toolbox is being overhauled & the hope is to have about 400 briefs & motions from around the country online by the of the summer (they are scanned it is just a question of getting them indexed). As part of the overhaul links the weekly will link to the briefs in a covered case where possible. At the moment it is largest public collections of briefs & motions relating to capital defense (or more appropriately links to briefs and motions) on the net. If you have a motion, brief or pleading you are proud of and would like to share please feel free to forward to cdw@karlkeys.com. Noncapital materials are always appreciated as well. If your briefs are already online, drop a line and say where and it will be included in a complimentary link. At the moment the briefbank update appears to be relying heavily on Florida capital materials and links to federal motions and appellate brief. Details of the project will be released as the project appears fruition sometime this summer. A big thanks goes out to the technical consultants on this project, who have helped figure out how to acquire the needed briefs & get the briefbank into shape.
Featured this week is the DC federal defenders and their amazing briefbank. For those who receive this newsletter in a hard copy format, get to a web browser, otherwise point and click to http://www.dcfpd.org/motions. The DC brief bank is not readily navigable, from either search engines or even from the website proper, however, what it lacks in layout, it more than makes up in content. For those online, many of thebriefs & motionsare linked below.
The last week's edition of Capital Defense Weekly was sent out on the fourteenth. The weekly appears to have vanished into the ether of the net with no one apparently to locate where it went. A remailing has been sent out as well, that too has disappeared into the ether of the net. The link is http://www.capitaldefenseweekly.com/archives/010212.html. This week's edition is available at http://www.capitaldefenseweekly.com/archives/010219.html Capital Defense Weekly will most likely not run next week due to an out of town commitment.
Supreme Court
Illinois v. McArthur (US) "Police officers . . . believed that a man had hidden marijuana in his home, prevented that man from entering the home for about two hours while they obtained a search warrant. . . .. We conclude that the officers acted reasonably. They did not violate the Amendment’ s requirements.
Held: Given the nature of the intrusion and the law enforcement interest at stake, the brief seizure of the premises was permissible under the Fourth Amendment. Pp. 3-10.
(a) The Amendment's central requirement is one of reasonableness. Although, in the ordinary case, personal property seizures are unreasonable unless accomplished pursuant to a warrant, United States v. Place, 462 U. S. 696, 701, there are exceptions to this rule involving special law enforcement needs, diminished expectations of privacy, minimal intrusions, and the like, see, e.g., Pennsylvania v. Labron, 518 U. S. 938, 940-941. The circumstances here involve a plausible claim of specially pressing or urgent law enforcement need. Cf., e.g., United States v. Place, supra, at 701. Moreover, the restraint at issue was tailored to that need, being limited in time and scope, cf. Terry v. Ohio, 392 U. S. 1, 29-30, and avoiding significant intrusion into the home itself, cf. Payton v. New York, 445 U. S. 573, 585. Consequently, rather than employing a per se rule of unreasonableness, the Court must balance the privacy-related and law enforcement-related concerns to determine if the intrusion here was reasonable. Cf. Delaware v. Prouse, 440 U. S. 648, 654. In light of the following circumstances, considered in combination, the Court concludes that the restriction was reasonable, and hence lawful. First, the police had probable cause to believe that McArthur's home contained evidence of a crime and unlawful drugs. Second, they had good reason to fear that, unless restrained, he would destroy the drugs before they could return with a warrant. Third, they made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrantless entry or arrest and preventing McArthur only from entering his home unaccompanied. Fourth, they imposed the restraint for a limited period, which was no longer than reasonably necessary for them, acting with diligence, to obtain the warrant. Pp. 3-6.
(b) The conclusion that the restriction was lawful finds significant support in this Court's case law. See, e.g., Segura v. United States, 468 U. S. 796; United States v. Place, supra, at 706. And in no case has this Court held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period. But cf. Welsh v. Wisconsin, 466 U. S. 740, 754. Pp. 6-7.
(c) The Court is not persuaded by the countervailing considerations raised by the parties or lower courts: that the police proceeded without probable cause; that, because McArthur was on his porch, the police order that he stay outside his home amounted to an impermissible "constructive eviction"; that an officer, with McArthur's consent, stepped inside the home's doorway to observe McArthur when McArthur reentered the home on two or three occasions; and that Welsh v. Wisconsin, 466 U. S. 740, 742, 754, offers direct support for McArthur's position. Pp. 7-10.
304 Ill. App. 3d 395, 713 N. E. 2d 93, reversed and remanded.
Captial Case Relief Granted
Rogers v. Florida (Florida) Conviction vacated where government suprressed earlier confession by a co-defendant thta was favorable to the condemned's defense, suppressed exculpatory police reports, & evidence of unduly coached testimony.Defendant's briefGovernment's Brief
(1) The second confession by McDermid. McDermid wrote a list of robberies to which he confessed, and Rogers obtained a copy of this first confession. However, McDermid later wrote a more extensive list of robberies and stated in the second confession that Rogers participated in each robbery listed. Rogers was not given a copy of this second confession. There is no doubt that this second confession was in the State's possession in this case since that confession has on it the initials of Detective Edmonson, who was a police investigator in the Winn-Dixie case. For the reasons stated below, the second confession was material, and the Court's conclusion that the availability of McDermid's first confession sufficed is legally erroneous.
(2) The report from the Jacksonville police concerning a Pantry Pride robbery in Jacksonville in December 1981. This report, dated January 30, 1982, states in pertinent part:
The 2nd lead in this case is information developed at the beaches area on suspects named George William Cope, Carolyn Woods, and Dennis L. Herman. A confidential [*23] informant reported that he overheard a conversation with these subjects in a bar at the beaches area that they were possibly involved or he was led to believe that they may have been involved in the robbery/murder of the Winn-Dixie Manager in St. Augustine that occurred after this robbery occurred. The subject forwarded the name of Billy Cope to this office . . . . the writer requested records on all these people from the Ohio police and instead of sending them to me, they sent them to Sg. Nicklo in St. Augustine who is working the robbery/murder there. The writer is still trying to get this information from Ohio police or Sgt. Nicklo, but as of this date has been unsuccessful in getting it."
(Emphasis added.)
(3) A cassette tape of a witness preparation conference in which McDermid discusses what his trial testimony will be with one of the prosecutors and Detective Edmonson.
We also do not agree with the trial court's conclusion that the documents were not material under Brady. The overarching theory of Rogers' defense was that he had been misidentified and was not McDermid's accomplice. The State's case, to a substantial extent, relied upon McDermid's testimony [*24] that Rogers was the other person involved in robbing the Winn-Dixie and who fired the fatal shot resulting in the murder.
. . .
In reviewing the impact that withheld materials might have on defendants, courts must assess the cumulative effect of the evidence. See Kyles, 514 U.S. at 441. In other words, courts should assess the importance of the suppressed materials taken together. See id. In addition, courts should consider not only how the State's suppression of favorable information deprived the defendant of direct relevant evidence but also how it handicapped the defendant's ability to investigate or present other aspects of the case. See United States v. Bagley, 473 U.S. 667, 683, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) (reviewing court may consider directly any adverse effect that prosecutor's failure to respond to request for information from defendant might have had on preparation or presentation of defendant's case).
The materials that the State withheld from Rogers are bedrock Brady materials of the sort upon which many [*35] courts have relied in ordering new trials. We conclude that the individual as well as the cumulative effect of the suppression of the materials discussed above indeed undermines confidence in the outcome of the trial.
In light of this Brady error, we conclude that Rogers is entitled to a new trial. Accordingly, we reverse the order denying Rogers' motion for postconviction relief and remand to the trial court with directions that a new trial be conducted without delay.
People v. Lee (Illinois) (Available only from Lexisone.com) No statutory authority existed to order a capital defendant to submit toa psychiatric examination during the penalty phase for the purposes of the state to rebut mitigating evidence.
It is clear that Dr. Markos' testimony at the death penalty hearing was critical. For purposes of this appeal, however, the critical question is whether the trial court could require that defendant submit to the examination by Dr. Markos. The State concedes, and we agree, that section 115-6 of the Code of Criminal Procedure does not authorize the psychiatric examination in question. Section 115-6 comes into play if a defendant gives notice that he may rely upon the defense of insanity at trial or if the defendant indicates that he intends to plead guilty but mentally ill or the defense of intoxicated or drugged condition. See 725 ILCS 5/115-6 (West 1996); People v. Harlacher, 262 Ill. App. 3d 1, 7-8, 199 Ill. Dec. 527, 634 N.E.2d 366 (1994). Defendant informed the trial court and the State that he would not rely upon any of these defenses at trial. Indeed, defendant did not present any testimony at trial.
The State also concedes, and we agree, that Supreme Court [*20] Rule 413 does not authorize a psychiatric examination of a defendant. Pursuant to Rule 413, a judicial officer may require that an accused submit to a reasonable physical or medical inspection of his body. See 134 Ill. 2d R. 413(a)(ix). However, a psychiatric examination is not "a 'medical inspection' of the type contemplated by the rule." People v. Larsen, 74 Ill. 2d 348, 352, 24 Ill. Dec. 538, 385 N.E.2d 679 (1979).
Nevertheless, the State maintains that the trial court's order requiring that defendant submit to the psychiatric examination was proper because the examination was necessary to provide the State a fair opportunity to rebut the expert testimony defendant presented in mitigation. Defendant counters that the supreme court rules governing discovery in criminal trials (134 Ill. 2d Rs. 411 through 415) are not applicable at a death penalty hearing. We agree that, as presently written, the supreme court rules governing discovery do not apply to death penalty hearings.
In People v. Foster, 119 Ill. 2d 69, 115 Ill. Dec. 557, 518 N.E.2d 82 (1987), this court considered the defendant's claim that the State was required to disclose notes on interviews [*21] it conducted with witnesses testifying in aggravation. The court noted that Rule 411 provides that the criminal discovery rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. Thus, the criminal discovery rules were designed for use in connection with criminal trials. The court reasoned:
"[A] defendant at the sentencing stage of a felony prosecution has already been convicted and, therefore, is 'entitled to fewer procedural safeguards than one who has not been convicted at all.' [Citations.] Indeed, it has repeatedly been held that the admissibility of evidence at the aggravation and mitigation phases of a sentencing hearing is not governed by the restrictive rules of evidence in effect at the guilt stage of the trial. [Citations.] As stated, discovery is not constitutionally required. We consider that the defendant's request to change our discovery rules to include sentencing hearings is unnecessary in light of the present safeguards afforded a defendant in sentencing hearings." Foster, 119 Ill. 2d at 102-03.
See also People v. Williams, 147 Ill. 2d 173, 264, 167 Ill. Dec. 853, 588 N.E.2d 983 (1991). [*22]
In the case at bar, the trial court convicted defendant of murder and aggravated vehicular hijacking on November 7, 1997. On December 3, 1997, following opening arguments at the second phase of the death penalty hearing, the trial court ordered that defendant submit to a psychiatric examination by the State's expert. The trial court's order was not authorized either by statute or by rule. As such, the trial court's order was improper.
The State maintains that it must be afforded an opportunity to rebut the mitigation evidence presented by defendant. The State argues that the only way it could effectively rebut the mitigation evidence was to have its expert perform the psychiatric examination in question. The State requests that this court "impose a rule which is grounded in equity" allowing the psychiatric examination. We are cognizant of the problems confronting the State. However, the actions of the trial court and the actions of this court must be guided by the supreme court rules as presently written. At the time the trial court ordered defendant to submit to the psychiatric examination, such action was not authorized.
Having determined that the trial court's order requiring [*23] that defendant submit to a psychiatric examination was improper, we must determine whether the error prejudiced defendant. We find that it did. Defendant was 23 years old when he killed Officer Samfay. Defendant did not have a criminal history; the murder and aggravated vehicular hijacking were his first criminal offenses. Defendant presented substantial evidence in mitigation, including the testimony of three experts regarding defendant's mental health. Discounting Dr. Markos' testimony, the State's evidence in aggravation consisted of the facts of the offenses defendant committed; defendant's admission that he transported a gun under the passenger seat of his car; testimony that defendant possessed certain periodicals and catalogs related to weapons and ammunition; and testimony that defendant was able to deal with stress at work and did not appear to be upset on the day of the shooting. With respect to the periodicals and catalog, the State did not, and could not, contend that it is illegal to possess these items. As to the testimony that defendant did not appear to be upset at work, defendant left work at 3 p.m., had a discussion with his adoptive mother regarding the proposed [*24] wedding when he returned home, left the house to go target shooting, and had the tragic encounter with Officer Samfay shortly thereafter.
Dr. Markos' testimony was critical to the State. Dr. Markos contradicted the defense theories that mental disorders ran through defendant's biological family; that defendant suffered harm from his abandonment by his biological mother, placement in foster care, separation from his foster care family and adoption by his adoptive family after he had bonded with his foster care family; that defendant was a troubled adolescent who was hospitalized for latent psychotic problems, but did not receive follow-up care after his discharge from the hospital; that defendant continued to experience problems after his discharge from the hospital and was less capable than others of dealing with stress; and that the murder of Officer Samfay was an explosive manifestation of the mental disorders from which defendant suffered. Dr. Markos also testified that defendant had adjusted to prison life and was not receiving psychiatric treatment in the penitentiary, even though, having been convicted of the present offenses, defendant was in a situation most people would find [*25] very stressful. Moreover, Dr. Markos' testimony had several indicia of reliability. The jury was informed that Dr. Markos' examination of defendant was done pursuant to a court order. Further, Dr. Markos was able to relate to the jury information given by defendant regarding defendant's state of mind on the day of the shooting.
We believe that defendant was prejudiced by the order requiring that he submit to the psychiatric examination. Accordingly, we remand to the trial court with instructions to hold a new death penalty hearing.
Captial Cases Remanded for Further Adjudication
Fahy v. Horn (3rd Cir) (Available only from Lexisone.com) Appellee 's petition was not out of time under the AEDPAdue to equitable tolling.
I. Statutory Tolling
Three provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are relevant to Fahy's habeas petition. First, the AEDPA sets a statute of limitations period of one year to apply for a writ of habeas corpus challenging state court action. See 28 U.S.C. § 2244(d)(1); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999). This period begins running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. However, the statute of limitations may be statutorily tolled during "the time during [*6] which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." Id. (emphasis added). Second, § 2254 requires petitioners to exhaust their state court remedies "unless there is an absence of available corrective state process or state remedies are ineffective." Morris, 187 F.3d at 337; see also Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); 28 U.S.C. § 2254(b)(1). Third, the AEDPA "severely limits the extent to which a federal habeas petitioner can file a 'second or successive' habeas petition." Morris, 187 F.3d at 338; see also 28 U.S.C. § 2244(b). The AEDPA statute of limitations can only be statutorily tolled when a collateral petition for state relief was "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Morris, 187 F.3d at 338 (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998)). Thus, in the AEDPA Congress set forth the requirement that only [*7] a properly filed petition for state collateral relief can toll the statute of limitations for filing a federal habeas petition, and in Lovasz, 134 F.3d at 146, we defined "properly filed" as being submitted in accordance with the state's procedural requirements. State petitioners therefore must file their state claims promptly and properly under state law in order to preserve their right to litigate constitutional claims that are more than one year old in federal court. As the Ninth Circuit has stated, "had Congress intended to toll the statute of limitations for the period during which even improper applications were pending in state court, it would not have included the 'properly filed' limitation." Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir. 1999).
Fahy argues that we must decide whether his state PCRA petition was "properly filed" as a matter of federal law and that the state court's determination of this issue is not binding on us. Fahy is correct that in applying a federal statute we must construe its terms as a matter of federal law. However, the AEDPA explicitly directs us to toll the statute of limitations only when a collateral [*8] petition for state relief was "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Morris, 187 F.3d at 338. Therefore, to apply this statute as a matter of federal law we must look to state law governing when a petition for collateral relief is properly filed. The AEDPA requires us to interpret state law as we do when sitting in diversity cases, and we therefore must defer to a state's highest court when it rules on an issue. Here the Pennsylvania Supreme Court has specifically ruled that Fahy's PCRA petition was not properly filed as a matter of state law. As a result, because final judgment in Fahy's case occurred on October 21, 1986, before the new habeas statute became effective on April 24, 1996, Fahy had one year from the statute's effective date to file his habeas petition. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). The one year filing deadline thus expired well before Fahy filed his habeas petition in 1999. Fahy's petition was therefore not statutorily tolled because his PCRA petition was not properly filed.
II. Equitable Tolling
Fahy delayed filing his federal [*9] habeas petition because he believed he was required to pursue a fourth petition for collateral relief in state court. At the time Fahy made this ill-advised choice, he reasonably believed that the state petition was properly filed. The Pennsylvania Supreme Court eventually disagreed, but the filing period for Fahy's federal habeas petition had run by the time the Court ruled. Fahy claims, and the District Court ruled, that the statute of limitations for filing his habeas petition should have been tolled to allow him to determine if he could maintain his state petition.
We have explained that the one year filing deadline contained in 28 U.S.C. § 2244(d)(1) can be subject to equitable tolling
only when the principle of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing the claims. Mere excusable neglect is not sufficient.
Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998). [*10] We later enumerated three circumstances permitting equitable tolling:
if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted).
In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the "extraordinary" circumstances required for equitable tolling. See Freeman v. Page, 208 F.3d 572 (7th Cir. 2000) (finding no basis for equitable tolling where the statute of limitations was changed to shorten the time for filing a PCRA only four months prior to the filing of the petition); Taliani v. Chrans, 189 F.3d 597 (9th Cir. 1999) (finding lawyer's inadequate research, which led to miscalculating the deadline, did not warrant equitable tolling); Seitzinger v. Reading Hosp. and Medical Ctr., 165 F.3d 236 (3d Cir. 1997) (finding that an attorney's deception, which caused a prisoner to miss the habeas [*11] filing deadline, merits equitable tolling); Doherty v. Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386 (3d Cir. 1994) (allowing time to toll because of the death of the petitioner's attorney). As the Supreme Court has repeatedly stated, however, "death is different." See Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 2639, 86 L. Ed. 2d 231 (1985) ("The qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination."); Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977) ("Death is a different kind of punishment from any other which may be imposed in this country. . . . It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."). In a capital case such as this, the consequences of error are terminal, and we therefore pay particular attention to whether principles of "equity would make the rigid application of a limitation period unfair" and whether the petitioner [*12] has "exercised reasonable diligence in investigating and bringing the claims." Miller, 145 F.3d at 618.
If the limitation period is not tolled in this case, Fahy will be denied all federal review of his claims. Here the penalty is death, and courts must consider the ever-changing complexities of the relevant provisions Fahy attempted to navigate. Because the consequences are so grave and the applicable law is so confounding and unsettled, we must allow less than "extraordinary" circumstances to trigger equitable tolling of the AEDPA's statute of limitations when a petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair. The subsequent question, therefore, is whether Fahy diligently and reasonably asserted his claims.
First, at the time Fahy filed his fourth PCRA petition Pennsylvania law was unclear on the operation of the new PCRA time limit. The Pennsylvania courts could have accepted Fahy's petition as timely because of its role within the capital case, see Banks v. Horn, 126 F.3d 206 (3d Cir. 1997), or could have found the government interference exception applicable. See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000). [*13] The law at the time of Fahy's petition was inhibitively opaque. Fahy filed his fourth PCRA petition in November, 1997, months before the Pennsylvania Supreme Court announced that it would no longer observe the relaxed waiver rule in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Further, the Pennsylvania Supreme Court did not clarify that the state PCRA statute was jurisdictional and not waivable until 1999 in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999). In Banks, 126 F.3d at 214, we rejected the Commonwealth's claim that a PCRA petition would be timebarred and required Banks to return to state court because we could not confidently determine that the state court would not apply the relaxed waiver rule it had applied in previous capital cases. If we could not predict how the Pennsylvania court would rule on this matter, then surely we should not demand such foresight from the petitioner. Fahy's misjudgment, therefore, was reasonable.
Second, it was also objectively reasonable for Fahy to believe that if he filed a § 2254 petition at the time he filed his fourth PCRA petition, the § 2254 petition would be [*14] dismissed as unexhausted. As we stated in Banks, at the relevant time we could not, "with confidence," predict the Pennsylvania court's position regarding procedural bars on unexhausted claims. Banks, 126 F.3d at 214. In light of this uncertainty, the changes wrought by the AEDPA, and our strong opinions regarding exhaustion, it was reasonable for Fahy to believe that a fourth petition was necessary.
If we refuse to equitably toll the statute, then we would deny this capital defendant federal review of his claims. Fahy diligently asserted his claims and the strategic choices he made during the appeal process were reasonable. When state law is unclear regarding the operation of a procedural filing requirement, the petitioner files in state court because of his or her reasonable belief that a § 2254 petition would be dismissed as unexhausted, and the state petition is ultimately denied on these grounds, then it would be unfair not to toll the statute of limitations during the pendency of that state petition up to the highest reviewing state court. We will therefore equitably toll the AEDPA's statute of limitations. We elect to exercise this leniency under the [*15] facts of this capital cases where there is no evidence of abuse of the process.
We therefore affirm the order of the District Court, albeit on equitable tolling grounds and not on statutory tolling grounds.
Federal Captial Cases Relief Denied
Kutzner v. Johnson (5th Cir) Conflicting or inconsistent testimony is not perjury, and petitioner failed to show that the government knew of any material falsity, or that the the state habeas court's resolution of this issue was not eminently reasonable.
Kutzner argues first that the state knowingly introduced perjured testimony when it introduced the testimony of Tommy McDonald that Rome Cable electrical wiring was not common in the Montgomery County area. Kutzner bases his contention on an affidavit by Carl Schmidt, an employee of another local electrical products company, that at least two wholesalers in Conroe, Texas stock Rome Cable electrical wiring and that it is also available at local home improvement stores. Kutzner also relies on a facsimile communication from Rome Cable that states that the company sells approximately 41,000 feet of wire in the Houston market monthly. The state habeas court considered Kutzner's claim and specifically found that McDonald did not commit perjury.
For Kutzner to establish that his right to the due process of law has been violated, he must show (1) the actual falsity of a witness's testimony, (2) that the testimony was material, and (3) that the prosecution knew the witness's testimony was false. Giglio v. United States, 405 U.S. 150, 153-4, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Fuller v. Johnson, 114 F.3d 491, 496 (5th Cir. 1997); [*9] Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). At most, Kutzner has established that McDonald's opinion about the availability of Rome Cable electrical wiring conflicts with or is inconsistent with the affidavit of Schmidt and the communication from Rome Cable. Conflicting or inconsistent testimony is insufficient to establish perjury. Koch, 907 F.2d at 531. In any event, McDonald's testimony was hardly unequivocal. He stated on cross-examination that his opinion about the availability of Rome Cable products in the Montgomery County area was based on his employer not stocking those products; he stated that he did not know if any other firms might stock them. Furthermore, Kutzner has made no showing that this testimony was material in light of the overwhelming evidence of his guilt, or that the prosecution team knew of the testimony's falsity. In sum, Kutzner has made no showing that the state habeas court's resolution of this issue was not eminently reasonable.
Romano v. Gibson (10th Cir) Relief denied where petitioners' attempts to put on evidence inculapting others was denied at trial and where an officer's testimony about the temperature of the victim's apartment would have been cumulative and would not have ultimately bolstered the defendant's theory about the decomposition rate of the victim's body, the State's failure to disclose the officer's recollection did not violate Brady
Oklahoma has an evidentiary rule that a criminal defendant cannot put on evidence that someone else might have committed the charged offense, absent proof that person took an overt act toward the commission of the crime. See, e.g., Dennis v. State, 879 P.2d 1227, 1232 (Okla. Crim. App. 1994). Proof of another's motive is not enough. See, e.g., id.
In this case, Woodruff and Romano sought to cast suspicion for Sarfaty's robbery and murder on T.R. "Tippy" Ballard, Kathy Ford, and Susan Babbitt. The state trial court admitted some evidence connecting these three individuals with Sarfaty, but excluded other such evidence. Applying Oklahoma's evidentiary rule, the Oklahoma Court of Criminal Appeals upheld the trial court's exclusion of this evidence. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at 1137-38.
Although, on direct appeal, Woodruff and Romano did challenge the trial court's exclusion of this evidence on federal constitutional grounds, the Oklahoma Court of Criminal Appeals addressed these claims only under state law. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at 1137-38. [*19] We, therefore, review de novo the federal district court's denial of habeas relief on these due process and Sixth and Eighth Amendment claims. See Thomas, 218 F.3d at 1220.
Of course, sitting as a federal habeas court applying 28 U.S.C. § 2254, it is not for us to review a state court's evidentiary rulings. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991). Rather, a federal habeas court reviews only for violation of "the Constitution, laws, or treaties of the United States." Id. at 68 (citing, e.g., 28 U.S.C. § 2241). Further, state evidentiary determinations ordinarily do not present federal constitutional issues. See Crane v. Kentucky, 476 U.S. 683, 689, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (noting Court's "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts"). However, the Supreme Court, in, e.g., Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and Green v. Georgia, 442 U.S. 95, 97, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979) [*20] (capital sentencing proceeding), has provided an exception, under some circumstances, if a state court applies the State's evidentiary rules unfairly to prevent a defendant from presenting evidence that is critical to his defense. See also, e.g., Washington v. Texas, 388 U.S. 14, 16, 23, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). This, however, is not such a case. The state trial court did not exclude any evidence critical to Woodruff's or Romano's defense. n3
Here, Woodruff and Romano were in fact able to put on a significant amount of evidence concerning these three individuals. See Boyd, 179 F.3d at 921; see also Richmond v. Embry, 122 F.3d 866, 873-74 (10th Cir. 1997). They first presented evidence that it was generally well known that Sarfaty frequently carried lots of jewelry and money with him. Additionally, Sarfaty had been a crime victim on several previous occasions, having had things taken from his home and jewelry stolen from him. Sarfaty told a friend he suspected "some woman" had perpetrated these crimes. Within two weeks prior to the murder, Sarfaty had reported separate incidents of assault and burglary and, immediately prior to the murder, Sarfaty told a friend that he anticipated another robbery attempt against him. His friend urged Sarfaty to change the way he did business, late at night in bars and clubs.
Woodruff and Romano also presented evidence at trial specifically pertaining to Ballard, Babbitt and Ford. T.R. Ballard was Sarfaty's acquaintance. They occasionally went to the same pool hall, and had, at times, also discussed business together at the Celebrity Club. Prior to Sarfaty's [*22] death, Ballard had indicated that he was broke. Yet, immediately after the murder, Ballard appeared to have a large amount of money and jewelry. No one had seen Ballard in the pool hall or Celebrity Club after Sarfaty was killed. However, a detective investigating Sarfaty's death testified that, although he had come across Ballard's name early in the investigation, the detective never considered him a suspect. Nor could the detective find a link between Ballard and either Kathy Ford or Susan Babbitt.
The detective did come across Kathy Ford's name during his investigation, but he was never able to find her or even verify that she existed. He indicated she may have been a prostitute. The owner of a pawn shop and his employee testified that they knew Ford and had sold her a knife just before Sarfaty's murder. The medical examiner could not rule out that knife as the murder weapon.
The investigating detective had also come across the name of Susan Babbitt, purportedly another prostitute, but the detective was unable to link her to either Ballard or Ford. The only connection he could make between Babbitt and Sarfaty was that they were acquaintances from the Celebrity Club.
Based upon [*23] this evidence, defense counsel could have argued to the jury that someone other than Woodruff and Romano killed Sarfaty. Nonetheless, Woodruff and Romano assert that the trial court erred in excluding additional evidence concerning Ballard, Ford and Babbitt. The record, however, does not support their contention that the trial court excluded evidence that Ballard had threatened Sarfaty. The trial court did sustain an objection to defense counsel's cross-examination of Sarfaty's friend as to whether Sarfaty ever had any problems with Ballard. In response, defense counsel asserted to the court that one of the witnesses had indicated that, on one occasion, Ballard had slapped Sarfaty, but defense counsel was not sure which witness it was. The trial court then instructed defense counsel to find out which witness it was before counsel posed the question, and indicated counsel could recall this witness if it was necessary to do so. Defense counsel, however, never recalled that witness, nor did she attempt to elicit this information from any other witness. The trial court, therefore, did not preclude the defense from introducing this evidence. Cf. United States v. Ramone, 218 F.3d 1229, 1237 [*24] (10th Cir.) (noting defense counsel's failure to seize opportunity to cross-examine did not show that trial court unfairly limited right to confront witnesses), cert. denied, 148 L. Ed. 2d 512, 121 S. Ct. 598 (2000).
Nor could we find any instance in the record that the trial court prevented Woodruff or Romano from asserting any evidence specifically concerning Susan Babbitt. The trial court, therefore, did not deprive petitioners of any opportunity to present evidence concerning these two uncharged individuals.
The trial court did exclude some defense evidence concerning Kathy Ford. At trial, defense counsel made an offer of proof that Sarfaty's friends had mentioned that Kathy Ford had possibly set up and robbed Sarfaty on previous occasions. Sarfaty himself had told friends that she had robbed him and, on one occasion, Sarfaty had asked a pawn shop owner to help him find Ford so that he could get back the property she had stolen from him. Nonetheless, this evidence was not critical to Woodruff's and Romano's defense. Rather, the state court's application of Oklahoma's evidentiary rule pertaining to uncharged individuals only prevented Woodruff and Romano from [*25] presenting incremental evidence concerning another individual who might have been involved in this crime. It did not deprive them of significant and fundamentally exculpatory evidence. See Boyd, 179 F.3d at 921 (holding evidence must be material; that is, that it might have affected trial's outcome); see also Richmond, 122 F.3d at 872, 874-75. See generally United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982).
Woodruff and Romano argue that it is somehow unfair to apply the state-law overt act requirement concerning uncharged individuals who may have committed the crime because no similar requirement applies in order for the State to convict the individual charged. This particular argument is like comparing apples and oranges. At trial, the jury unavoidably has to focus on whether the charged individual did or did not commit the crime alleged. Crimes can be proven by circumstantial evidence; there is no requirement that substantive crimes must be proven only through direct evidence. See generally Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998) (reviewing sufficiency [*26] of both direct and circumstantial evidence to support conviction). Moreover, the jury did have to find that Woodruff and Romano had committed overt acts toward commission of robbery and murder. The jury could do so, however, based on circumstantial evidence.
The ability to cast aspersions on uncharged individuals, however, is a very different story. See Irvin v. State, 11 Okla. Crim. 301, 146 P. 453, 464 (Okla. Crim. App. 1915) ("While it is competent for the defendant to show, by any legal evidence, that some other person committed the crime with which he is charged, . . . evidence which could have no further effect than to cast a bare suspicion upon another is incompetent and inadmissible."). The main purpose of Oklahoma's evidentiary rule requiring proof of an overt act by an uncharged individual is to prevent juries from embarking on wild goose chases. See, e.g., 146 P. at 464-66 (citing authority). Here, there was no proof, either direct or circumstantial, that Ballard, Ford or Babbitt ever took any overt act toward commission of these offenses. The jury, then, had to remain focused on the trial's central issue--whether the charged individuals committed the [*27] crimes alleged. See id. at 466 (citing Horn v. State, 12 Wyo. 80, 73 P. 705 (Wyo. 1903)).
In any event, here, in light of Green and Chambers, we need ask no more than whether the trial court's application of this state evidentiary rule excluded critical exculpatory evidence. See Green, 442 U.S. at 97; Chambers, 410 U.S. at 302. It did not.
State Captial Cases Relief Denied
Jackson v. Delaware (Delaware) Relief denied on claims relating to (1) failure of the state to disclose that it had made a deal wth its star wtinessl(2) failure of the trial court to grant forensic funds; as well as, (3) ineffective assistance of counsel as second chair had only sixteen days to prepare for trial, which amounted to ineffective assistance of counsel, per Se; trial counsel failed to conduct independent forensic tests of the physical evidence; and trial counsel failed to object to certain propensity testimony that Jackson argues was inadmissible under D.R.E. 404.
Singleton v. Florida (Florida) Relief denied on claims that Singleton that: (1) the trial court erred in denying Singleton's cause challenges for four jurors; (2) the trial court erred in admitting a videotape of Singleton wearing jail clothing and handcuffs while in custody the night of his arrest; (3) the trial judge failed to evaluate each mitigating factor proposed by the defense and to explain how he weighed the mitigating factors found to be established; (4) the trial court erred by directing a witness wearing prosthetics to raise her right hand to be sworn and to point to Singleton; (5) the trial court erred in admitting evidence of Singleton's lack of remorse for prior crimes; (6) the trial court erred in finding and considering nonstatutory aggravating circumstances; (7) the trial court erred by allowing a State expert to testify about Singleton's credibility; and (8) the death sentence is disproportionate.
Defendant's Initial Brief Government's answer Defendant's reply
Other Notable Cases
US v. Kaczynski (9th Cir) Where the district court determines that the defendant asserted his right to self-representation solely to delay the trial, and lacked valid reasons for waiting until after trial proceedings had begun to assert the right, denial of defendant's request is proper.
Roberts v. Rhode Island (1st Cir ) Rhode Island Department of Corrections policies providing that all males committed to the state prison be subject to a strip search and a visual body cavity search are unreasonable and therefore unconstitutional.
US v. Zaccaria (1st Cir) A witness' failure to defend his evidence after being given Miranda warnings cannot be used later in the trial of a confederate to impeach his testimony that he was an innocent dupe, absent special circumstances exist in a given case that materially shift the balance in favor of
US v. Cruz (2nd Cir) Defendant's convictions for drug distribution under 21 USC 841(a) violate the Double Jeopardy Clause of the Fifth Amendment since they are lesser included offenses of convictions for drug distribution within 1000 feet of a school under 21 USC 860. District court has discretion to depart from USSG 5G1.2's "stacking" provisions.
US v. Ramirez (6th Cir) Under Apprendi, aggravating factors, other than a prior conviction, that increase the penalty from a non-mandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the crime to be charged and proven. Where the government fails to charge or attempt to prove to the jury a quantity of drugs that would permit a mandatory sentence under 21 USC 841(b)(1)(CD), the case must be remanded to district court for re-sentencing under the Guidelines.
US v. Hoults (7th Cir) The sentencing court may not rely on assumed additional facts that were not in the record in order to classify defendant as a career offender under USSG 4B1.1.
Abdullah v. US (8th Cir) Petitioner procedurally defaulted on his Bailey claim by failing to raise it before the district court. Even assuming that petitioner could show actual innocence, petitioner's claim is time-barred, precluding the court from authorizing a successive habeas on the Bailey issue.
Rigler v. Ferguson (10th Cir) District court's adequate explanation as to why it was not unreasonable for the state courts to find that none of petitioner's allegations rose to the level of ineffective assistance of counsel is sufficient to deny petitioner's certificate of appealability.
Etheridge v. US (8th Cir) Denial of ineffective assistance of counsel claim for counsel's failure to conduct an evidentiary hearing on sentencing issue relating to leadership enhancement is appropriate where petitioner failed to show prejudice, violation of Sixth Amendment right or error in not holding evidentiary hearing.
Cruz v. City of Laramie, Wyoming (10th Cir) Where a suspect suffers from diminished mental capacity apparent to law enforcement officers, whether intoxication, a discernible mental condition or any other situation where use of the "hog-tie" restraint presents a significant risk to the suspect's health or well being, the individual's condition mandates the use of less restrictive means for physical restraint.
Collins v. Dormire (8th Cir) Given evidence against defendant, witness's in-court identification could only have been harmless error; so defendant could not show ineffective assistance of counsel from prejudice by deficient performance of appellate counsel for failing to raise and brief the claim of unreliable identification.
Hanes v. Dormire (8th Cir) State court's finding that defendant's counsel discussed case and possible defenses, and was aware of content of police report is entitled to deference, so that counsel's actions were not constitutionally deficient, and defendant could not show prejudice to support ineffective
assistance of counsel claim for lack of trial preparation.
Outrages of the Week
US v. White (7th Cir) Sentence enhancement for obstruction of justice under USSG 3C1.1 is proper when defendant took the stand in his own defense and submitted perjured testimony denying any involvement or participation in the criminal scheme for which he was convicted, after government witnesses uniformly testified that defendant was personally involved in the criminal scheme.
US v. Crickon (7th Cir) District court had discretion to decline sentence reduction of sixty-year-old defendant under 18 USC 841(b)(1)(A)(viii) following his conviction for possession of narcotics with intent to distribute in violation of 18 USC 846, and defendant's claims of drug dependence and abuse are not a basis for downward departure under USSG 5H.4.
US v. Larrabee (1st Cir) Evidence that defendant possessed material, nonpublic information concerning a merger between two banks, and that he conveyed that information to a stockbroker with whom he had a close personal and financial relationship is sufficient for conviction for securities fraud.
Featured
Featured this week is the DC federal defender's amazingbriefbank (strictly noncapital) (http://www.dcfpd.org/motions). The brief bank is not readily navigable, from search engines or even from the website proper, however, what it lacks in notice, it more than makes up in content. Additionally, the site contains a substantial onlinebriefbank. Unless your interest in criminal defense is purely academic, this is a must see site.
-including Old Chief motions
-evidence of prior felonies/convictions
-including motions for extension of time to file appeallate brief
Addiction Prevention Recovery Administration
-modifications of pretrial detention order
-Singleton release motion 922(g)
Compel or Resist
-resist compulsion of fingerprinting
-resist compulsion of testifying
Consolidation
-continuance of trial or to file pre-trial motions
-(see also: Continuance of Sentencing below)
-Includes Confidential Informant and Exculpatory Information
-Includes Brady, Jencks, Giglio Motions Request Letters
-Motions to Compel Production of Discovery
-Includes demand for notice from government of its intention
to rely upon other crimes evidence
-dismissal for Speedy Trial Act violations
-dismissal for Double Jeopardy/collateral estoppel violations
-dismissal of indictment
-duplicity of counts
-failure to state a claim
-motion to compel records
-issuance of subpoenas
-to admit expert testimony
-for travel outside of DC area
-emergency situations
-proposed jury instructions
-late file of pre-trial motions
-late file withdrawl of guilty plea
-late file motion to suppress
-compel election between and handgun/ammunition counts
Sentencing Related Motions . . .
Continuance of Sentencing
Memorandum in Aid of Sentencing
Vacate, Set Aside, Correct, or Modify Sentence
-severance of defendants and/or counts
Motions to Suppress . . .
-to suppress tangible/physical evidence
-to reopen suppression hearing
-proposed question for voir dire
-statement of the case
All Motions
SECTION 1 - PROCEDURAL MOTIONS (Procedur) (top)
Compel Election Between Multiplicitous Counts
Continue Trial Due to Complexity
Inventory and Return of Propery
Opposition to Government Deposition
Preclude AUSA From Filing Documents Under Seal
Preclude AUSA From Making Reference to Marine Service
Reconsider Conditions of Release
Reply to Governments Motion to Amend Conditions of Release
SECTION 2 - MOTIONS TO DISMISS INDICTMENT (Dismiss) (top)
1326(b) Underlying Felony is not an Aggravated Felony
1326(b) Underlying Felony is not an Aggravated Felony
Deportation Proceeding in Violation of Due Process
Dismiss Indictment, Access to Grand Jury Transcripts, In Camera Review
Double Jeopardy After Mistrial
Failure to Preserve Exculpatory Evidence
Hobbs Act (No Interstate Nexis, Double Jeopardy with 924(c))
Lack of Subject Matter Jurisdiction
Racially Biased Grand Jury Selection Process
Racially Biased Jury Selection
Unconstitutional Statute -car jacking
Unconstitutional Statute -unregistered firearm
Unconstitutional Statute - interstate commerce
Unconstitutional Statute -vaguenss
Unconstitutional Statute -child support
Violation of Interstate Agreement on Detainers
SECTION 3 - DISCOVERY MOTIONS (Discover) (top)
Compel Polygraph Results of Government Witness
Impeachment Evidence of Government Witnesses
Jencks, In Camera Inspection of Law Enforcement Notes
Stipulation Regarding Discovery
SECTION 4 - MOTIONS TO EXCLUDE (Exclude) (top)
In Limine, Exclusion of Evidence
SECTION 5 - MOTIONS TO SUPPRESS (Suppress)(top)
Statement of Defendant/Right to have Attorney Present
Statement of Defendant/Right to have Attorney Present
SECTION 6 - TRIAL MOTIONS (Trial)(top)
Admit Testimony Regarding Veracity
Admit Testimony Regarding Veracity
Attorney to Participate in Voir Dire
Attorney to Participate in Voir Dire
Notice of Government's Intent to Introduce Certain Evidence
Prohibit Witness from Viewing Defendant
Objection to Giving Deliberate Ignorance Charge
Objection to Giving Deliberate Ignorance Charge
Response to Gov.'s Motion Precluding Theory of Defense
SECTION 7 - SENTENCING MOTIONS (Sentenc)(top)
Assorted Grounds for Departure
Reconsider Substantial Assistance
SECTION 8 - POST CONVICTION MOTIONS (Post_Con)(top)
Application for Post Conviction Relief
Appeals
Errata
From thereports:
International Perspective
In a recent op-ed in the Washington Post, Felix G. Rohatyn, the former U.S. Ambassador to France from 1997 to 2000, and current counselor of the Council on Foreign Relations expressed his concern about America's use of the death penalty:
During my nearly four years in France, no single issue evoked as much passion and as much protest as executions in the United States. Repeated protests in front of the embassy in Paris, protests at our consulates and, just recently, a petition signed by 500,000 French men and women delivered to our embassy in Paris were part of a constant refrain. My colleague in Germany, Ambassador John Kornblum, had indicated to me that he was challenged as frequently in Germany on this issue as I was in France.
. . .
[T]he United States is seen as executing people who have not had appropriate legal assistance, people who may be innocent, people who are mentally retarded as well as minors. We are viewed as executing disproportionate numbers of minorities and poor people, and there is no compelling statistical evidence that the death penalty is a greater deterrent to potential criminals than other forms of punishment.
...
Some 300 million of our closest allies think capital punishment is cruel and unusual and it might be worthwhile to give it some further thought.
(Washington Post, 2/20/01) Read the complete editorial. See also, International Death Penalty.
Poll Finds Support for Death Penalty Has Dropped in Canada
A recent Ipsos-Reid poll for the Toronto Globe and Mail and CTV shows that support for capital punishment has fallen to 52% among Canadians - down from 69% in 1995 and 73% in 1987. The poll also showed a rise in opposition to the death penalty to 46% - up from 24% in 1987 and 29% in 1995. Ipsos-Reid spokesperson Darrell Brickier suggested that the decline in support is due to increasing media attention on the issue of wrongful convictions. Canadian legislators outlawed the death penalty in 1976. (Toronto Globe and Mail, 2/16/01) See also, Polls and International Death Penalty.
Canada Supreme Court Holds No Extradition to the U.S. if the Death Penalty will be Sought
The Canadian Supreme Court held 9-0 that two Canadian men wanted on murder charges in the U.S. cannot be extradited for trial without assurances that the men will not face the death penalty. "[S]uch assurances," the Court held, "are constitutionally required in all but exceptional cases." The men, Atif Rafay and Glen Sebastian Burns, are wanted in Washington state for the murder of Rafay's father, mother, and sister. (Canadian Press, 2/15/01). Read the Canadian Supreme Court opinion.
Juvenile Offender with Borderline Mental Retardation Scheduled for Execution in Missouri
Antonio Richardson is scheduled to be executed on March 7, 2001 in Missouri. Richardson, who was 16 at the time of the crime, was originally offered a life sentence in exchange for a guilty plea. Pressured by a local activist, Richardson rejected the plea and was convicted. Richardson's lawyer had never participated in the penalty phase of a capital trial, and failed to present expert testimony as to Richardson's mental retardation and brain damage. When the jury deadlocked on whether or not to impose the death penalty, the decision went to the judge, who sentenced Richardson to death. Currently, a bill is pending in the Missouri legislature to exclude the mentally retarded from execution. If not granted clemency, Richardson will be only the second 16-year-old offender executed since the death penalty was reinstated. (American Bar AssociationÕs Juvenile Justice Center, Execution Alert, 2/15/01).
For more information on Antonio Richardson and his case, or the juvenile death penalty, please go to www.abanet.org/crimjust/juvjus/juvdp.html. See also, juveniles and mental retardation and the death penalty.
From the mailbox
From this week's inbox:
Please consider the attached for posting to your members or web site. Should you have any questions, please feel free to contact me.
[Always glad to post press releases if not to the weekly than to the site. - k]
Case Closed Productions, LLC
c/o Paul J. Ciolino & Associates, Inc.
800 E. Northwest Highway Suite 1080
Palatine, IL 60607
847-963-6500 Fax: 847-963-0200
Contact: Grace Castle or Paul Ciolino
PRESS RELEASE
The nation’s leading experts on wrongful conviction investigations will gather in Chicago, Illinois, in May, for the first North American Conference on Wrongful Conviction Investigations.
Sponsored by Case Closed Productions, LLC, the May 18 and 19 event is designed to provide top quality forensic science, and specialized investigation, education for investigators, attorneys, journalists, educators, students, Innocence Project Coordinators, and others involved in the struggle to find justice for the wrongly convicted.
Paul Ciolino and Grace Castle, Chicago area investigators who have long been among the nation’s leaders in this struggle, are bringing to Chicago such noted experts as Profiler Ray Pierce, retired Captain of the New York Police Department; Dr. Fred Whitehurst, the laboratory scientist and attorney who blew the whistle on the FBI’s lab procedures; South Dakota Attorney Bruce Ellison, renowned defender of Native American prisoners; Chicago Attorney Andrea Lyon, noted death penalty defense expert; Prof. David Protess, whose unique classroom projects for journalism students has set the standard for other universities, and a multitude of others who will be teaching on topics ranging from profiling to minority issues; from record gathering to interviewing.
Ciolino will facilitate a workshop on difficult interviews, instructed by Kitty Hailey, nationally-known investigator/writer from Philadelphia; Illinois Investigator Steven Kirby; and Canadian Investigation Specialist Brian King. Castle will present sessions on case evaluation and developing a timeline. A new scientific technique known as Brain Fingerprinting will be presented by Iowa Professor Larry Farwell.
A special panel discussion at the end of the conference will be moderated by Prof. Larry Marshall of Northwestern University’s Center on Wrongful Convictions, and will feature two persons who were wrongly convicted and imprisoned for 18 years before being released, and one who, though wrongly charged, was acquitted, despite police and prosecutorial misconduct.
A second panel discussion will focus on the role of the media in overturning wrongful convictions. Led by Chicago author and director of Northwestern University’s Center on Wrongful Convictions Rob Warden, the panel will include popular, hard-hitting NBC journalist Dave Savini, award-winning television investigative reporter; Chicago Tribune columnist Eric Zorn; Atlanta Constitution Journal reporter Maurice Tamman; Chicago Sun-Times Investigative Reporter Brian Smith, and CBS News/48 Hours’ reporter Erin Moriarity.
This two-day event, to be held at the Holiday Inn O’Hare in Rosemont, a Chicago suburb, near the O’Hare Airport, is being co-sponsored by the Illinois Association of Criminal Defense Lawyers, Northwestern University Medill School of Journalism’s Innocence Project, DePaul University Law School Center for Justice in Capital Cases, and CLUESONLINE™.
For additional information, see the website at www.caseclosedprod.com, or request a brochure from conference@caseclosedprod.com.
CAPITAL DEFENSE DISCUSSION LIST:A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement.
Post message:capitaldefense@onelist.com
Subscribe:capitaldefense-subscribe@onelist.com
Unsubscribe:capitaldefense-unsubscribe@onelist.com
List owner:capitaldefense-owner@onelist.com
RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.