No capital decisions are reported this week out of the federal appellate courts, however, the Supreme Court has again put a challenge to the electric chair on its docket. Please note, however, in the capital case section a link to theNinth Circuit Capital Punishment Handbook(http://www.ce9.uscourts.gov/web/sdocuments.nsf/Death+Penalty+View) which has been recently been updated.

Supreme Court

The U.S. Supreme Court granted a stay to Alabama death row inmate Robert Tarver, who was to be executed by electrocution on February 4, 2000. Tarver's case may provide the basis for another challenge to the constitutionality of the electric chair. Previously, the U.S. Supreme Court agreed to review Florida's use of the electric chair. The Court, however, dismissed the case as moot when Florida changed its primary method of execution to lethal injection. Exact cert questions and petitions currently unavailable.

Capital Cases

No reported cases this week.

The Ninth Circuit has released theNinth Circuit Capital Punishment Handbook(http://www.ce9.uscourts.gov/web/sdocuments.nsf/Death+Penalty+View) onto the net. This is a must see & read as it contains a great analysis of claims and ideas for both trial and post-conviction mitigators, for both capital and non-capital cases.

Habeas Cases

Lopez v. Thompson (9th Cir) "Under the circumstances of this case, which included two hearings and a written waiver, we conclude that Lopez did knowingly and intelligently waive his right to counsel and choose self-representation."

Bowev v Hood (consolidated with 45 other cases) (9th Cir) In a highly complex plurality opinion, a panel holds the Bureau of Prisons erred in its calculation early release pursuant to the provisions of 18 U.S.C. S 3621(e)(2)(B).

Smith v. United States District Court Officers(7th Cir) Mandamus granted ordering federal court to make copies of everything in its position for an inmate.

Hutchings v. US Parole (8th Cir) Commission's proceedings revoking supervised release did not deprive Hutchings of due process; Commission retained jurisdiction to revoke release because Hutchings' violations were willful.

Fuller v. Bowersox (8th Cir) Fuller failed to establish a juror who failed to reveal that his mother worked at the jail where Fuller was being detained was biased in favor of the prosecution; claims regarding ineffective assistance of counsel were procedurally barred.

Mansfield v. Dormire (8th Cir) Counsel's failure to present evidence that others may have committed the murder for which Mansfield was convicted was not ineffective assistance of counsel because there were objectively reasonable strategic reasons for not presenting the evidence.

Kingsberry v. USA(8th Cir) Counsel was not ineffective in failing to advise Kingsberry with respect to a plea offer as Kingsberry failed to establish a plea offer was actually made by the Government; affidavits supplied by Kingsberry did not create a need for an evidentiary hearing on the issue.

Section 1983 & Related Filings

Andrews v. Daw (4th Cir) "The district court dismissed Andrews's suit on the ground of res judicata, reasoning that it was barred by the district court's previous dismissal of a nearly identical suit brought by Andrews against Daw in Daw's official capacity. We disagree with the district court's decision and hold that a government employee in his official capacity is not in privity with himself in his individual capacity for purposes of res judicata."

Hatchett v. Unknown Nettles Officer(5th Cir) "If the inmate trust account contained no funds for the six-month period immediately preceding the filing of the complaint, the district court should issue an order assessing an initial partial filing fee of $0, and the prisoner should be ordered to pay the full filing fee in installments."

Franklin v. Terr(9th Cir) "Terr is absolutely immune from § 1983 liability for civil damages based on the allegation that she conspired to present her own and another witness's perjured testimony at Franklin's criminal trial."

In Depth

This week's installment of "in depth" examines victim impact and capital appeals . (From at theHabeas Assistance Traininggang from AOC).

VII. VICTIM IMPACT

The Court held that the Eighth Amendment does not preclude a state from allowing victim impact evidence and statements. Payne v. Tennessee, 501 U.S. 808 (1991).24 According to the Court, "victim impact evidence serves entirely legitimate purposes," for it enables the jury to have before it all information necessary to a determination of punishment. Id., 501 U.S. at 825. Payne, however, recognized the right of the defendant to rebut victim impact evidence. Id.

The state, however, does not have free rein to introduce anything or everything about the victim. For example, Payne suggests that the state can only present "a glimpse of the life" of the victim. Id., 501 U.S. at 822 (citation omitted); see also Id. at 830 (O'Connor, J. concurring). In addition, the Court indicated that victim impact evidence "is not offered to encourage comparative judgments." Id., 501 U.S. at 809. Payne also left undisturbed Booth's prohibition against the victim's family offering its opinion about the crime, the defendant, and the appropriate punishment. Id., 501 U.S. at 830 n.2. Furthermore, the Court recognized that victim impact statements or evidence may potentially render the sentencing proceeding fundamentally unfair. Id., 501 U.S. at 825; Id. at 831 (O'Connor, J., concurring); Id. at 836 (Souter, J., concurring).

VIII. APPELLATE REVIEW

Gregg and its companion cases stressed the fact that all of the approved statues required meaningful appellate review. 428 U.S. at 153. The purpose of appellate review is to provide "a means to promote the evenhanded, rational, and consistent imposition of death sentences..." Jurek v. Texas, 428 U.S. at 276. In Parker v. Dugger, the Court re-emphasized "the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally." 498 U.S. 308 (1991). It is a "crucial protection." Id. While the Court has held that comparative proportionality review is not required by the Eighth Amendment, see Pulley v. Harris, 465 U.S. 37 (1984), some form of meaningful appellate review is still required. See also Sochor v. Florida, 504 U.S. 527 (1992).

Specifically, the Court has required "close Appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases." Stringer v. Black, 503 U.S. 222, 230 (1992) (citations omitted). In order for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must "determine what the sentencer would have done absent the factor." Id. at 1137. The analysis may vary depending upon whether the error occurred in a "weighing" or "non-weighing" state.25 In a weighing jurisdiction, in order to affirm a death sentence in a case where the sentencer relied upon an invalid aggravating circumstance, the state court must either independently reweigh aggravating circumstances or conduct harmless error analysis. Clemons, 494 U.S. at 750-51; see also Parker v. Dugger, 498 U.S. 308 (1991) (The state supreme court's affirmance of the death sentence, without affording the petitioner appropriate appellate review, either by re-weighing all the evidence, or including the evidence of non-statutory mitigating factors, deprived the petitioner of his Eighth Amendment right to individualized sentencing); Sochor v. Florida, 504 U.S. 527 (1992) (Florida Supreme Court, having found insufficient evidence to support the separate aggravating factor found by the sentencing judge that the murder was "committed in a cold, calculated and premeditated manner," failed to cure the error when it affirmed the death sentence without either independently re-weighing aggravating against mitigating factors or engaging in harmless error analysis). In a non-weighing state, the appellate court is not obligated to reweigh, but it still must determine the effect of the error. In Tuggle v. Netherland, 516 U.S. 10 (1995) (per curiam), the Court of Appeals concluded, as had the state courts, that the jury's consideration of an invalid aggravating circumstance was not error because the death sentence was still supported by an unchallenged aggravating circumstance. The Court held that "[a]lthough our holding in Zant [v. Stephens, 462 U.S. 862 (1983)] supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence." 516 U.S. at 14. Because neither the state courts nor the Court of Appeals considered whether harmless error analysis was applicable to Tuggle's case, the Court vacated the judgment and remanded the case to the Fourth Circuit.

In addition, the Court has acknowledged that, in some ways, it functions as a court of last resort in capital cases. In Kyles v. Whitley, 514 U.S. 419 (1995), for example, the Court reaffirmed that its "duty to search for constitutional error with painstaking care is never more exacting that it is in a capital case." 514 U.S. at 422 (quoting Burger v. Kemp, 483 U.S. 776 (1987)). In his concurring opinion, Justice Stevens, joined by Justices Ginsburg and Breyer, noted that due to the "current popularity of capital punishment," the Supreme Court's "duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with newly minted rule of law." Id. 514 U.S. at 455. In other words, even if a capital case does not present a "cert-worthy" issue, the Court may grant review to correct an incorrect lower court decision. See, e.g., Kyles, supra (finding that Court of Appeals erroneously determined that state's failure to disclose exculpatory information did not violate Brady); Yates v. Evatt, 500 U.S. 391 (1991) (Court granted certiorari to review state supreme court's determination that unconstitutional, burden-shifting presumption of malice was harmless).

Errata

Please note due to scheduling conflicts, the edition schedule for the final week of February will most likely not run. I was bright enough to relocate to a state, New Jersey, that won't permit me to waive into the bar.