This week notes the continuing uncertainty about the scope of Apprendi v. New Jersey & Ring v.Arizona.Two different appellate courts have held that Apprendi/Ring requires that grand juries have a role to play in capital cases,InUnited States v. Allenthe Eighth Circuit holds that a grand jury must find the presence of at least one statutory aggravating factor if the government wants to proceed as a capital case.InNew Jersey v. Fortinthe state supreme court held that post-Apprendi/Ring " aggravating factors and capital triggers are the functional equivalent of elements of capital murder pursuant" and hence required to be presented to a grand jury and returned in an indictment.The holdings in Allen & Fortin set up a strong split in the lower courts on the issue.The Apprendi/Ring issue now appears set for a Supreme Court show-down.

Elsewhere, inNorth Carolina v. Maskethe state supreme court, in addition to holding certain penalty phase instruction erroneous, holds that the prosecution's cross & closing in the penalty phase crossed the line of permissible advocacy. Likewise inNorth Carolina v. Matthewsthe state supreme court severely chides the state for its penalty phase conduct but reverses on the defense's concession of guilt on a lesser included degree of homicide with the permission of the accused.

In othernews, despite the current pending oral arguments over executing juvenile offenders,Texas has scheduled the execution of four juvenile offenders between March and June of 2004.In California Associated Press found that the geographic location of a crime plays a significant role in the decision of prosecutors to seek death and juries to return it.In Maryland, following national trends noted here recently,the size of its death row has markedly fallen (50%) in recent years;the state has not carried out an execution since 1998.

EXECUTION INFORMATION

Since the last edition there has been the following executions

February

11 Edward Lagrone Texas

Upcoming execution dates include:

February

12 Bobby Hopkins Texas

17 Cameron Willingham Texas

17 Norman Cleary Oklahoma

26 Hung Thanh Le Oklahoma----foreign national

27 George Page North Carolina

SUPREME COURT

No cases noted.

HOT LIST

United States v. Allen, 2004 U.S. App. LEXIS 1474 (8th Cir 2/2/2004) Apprendi/Ring requires that in federal capital cases grand jury’s must find the presence of at least one statutory aggravating factor in order for the case to proceed as a death eligible.

Prior to trial, at sentencing, and on direct appeal, Allen argued that a death sentence in his case would violate the Fifth Amendment [*3] Indictment Clause. Specifically, Allen argued that the government's failure to allege in his indictment the mens rea specified in 18 U.S.C. § 3591(a)(2) and at least one aggravating factor from 18 U.S.C. § 3592(c), elements essential to a death sentence, was constitutional error in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

We rejected Allen's argument. At the time, our review of Supreme Court precedent and the Federal Death Penalty Act (FDPA) persuaded us that the mental culpability and aggravating factors were sentencing factors rather than elements of the offense. Allen, 247 F.3d at 762-64. This decision was premised on Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), in which the Supreme Court, in upholding a state capital sentencing scheme, deemed aggravating circumstances not separate penalties or offenses but rather "'standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment.'" Id. at 648 (quoting Poland v. Arizona, 476 U.S. 147, 156, 90 L. Ed. 2d 123, 106 S. Ct. 1749 (1986)). [*4] Applying this reasoning to Allen's case, we explained that Apprendi was not implicated, and the Fifth Amendment Indictment Clause not violated, because the statutes at issue exposed Allen to either death or a life sentence, and thus the mental culpability and aggravating factors "did not increase the sentencing range but rather provided the particularized standards for choosing which of the alternative available sentences should be imposed." Allen, 247 F.3d at 763.

On June 24, 2002, the Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428. Overturning Walton in relevant part, the Court held that any fact essential to imposition of the death penalty must be submitted to a jury and found beyond a reasonable doubt, even where the statute at issue authorizes alternative sentences of life or death. Ring, 536 U.S. at 609. Because Arizona's death penalty could not be imposed without a finding of at least one aggravating factor, that factor operated as the functional equivalent of an essential element and could not be treated as merely a sentencing factor. Id.

The Supreme Court, at 536 U.S. 953, 153 L. Ed. 2d 830, 122 S. Ct. 2653, [*5] subsequently granted Allen's petition for writ of certiorari, vacated our 2001 opinion, and remanded for reconsideration in light of Ring. On remand, we resolve the following question:In light of Ring v. Arizona, was the indictment in this case sufficient to charge a capital offense, and, if not, must Allen's death sentence be vacated because no aggravating factors were charged in the indictment? n2

The Fifth Amendment provides that "no person shall be [*6] held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]" U.S. Const. amend. V. The government concedes that in light of Ring, Apprendi, and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), the Supreme Court would likely hold that at least one statutory aggravating factor specified in 18 U.S.C. § 3592(c) must be alleged in Allen's indictment. See Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987) (stating that a new rule for criminal prosecutions applies to all cases pending on direct review). We agree. Just as the aggravating factors essential to qualify a particular defendant as death eligible must be found by the jury under Apprendi and Ring, they too must be alleged in the indictment. See Ring, 536 U.S. at 609 (concluding that where a state statute requires the finding of a statutory aggravating circumstance before imposition of the death penalty, such facts "operate as 'the functional equivalent of an element of a greater offense'") (quoting Apprendi, 530 U.S. at 494 n.19); United States v. Cotton, 535 U.S. 625, 627, 152 L. Ed. 2d 860, 122 S. Ct. 1781 (2002) [*7] ("In federal prosecutions, such facts [that increase the penalty for a crime beyond the prescribed statutory maximum] must also be charged in the indictment) (citing Apprendi, 530 U.S. at 476, and Jones, 526 U.S. at 243 n.6); Apprendi, 530 U.S. at 476, 490 (applying principles "foreshadowed" in Jones to a state prosecution, and holding, on Fourteenth Amendment due process grounds, that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"); n3 Jones, 526 U.S. at 243 n.6 (1999) ("Under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."). See also United States v. Jackson, 327 F.3d 273, 286-87 (4th Cir. 2003) (Neimeyer, J., conc.) (concluding, after Ring, that an aggravating factor necessary to the imposition of [*8] the federal death penalty must also be alleged in the indictment); United States v. Higgs, 2003 U.S. App. LEXIS 25904, 2003 WL 22992273, at * 8 (4th Cir. 2003) ("any factor required to be submitted to the jury must be included in the indictment"); United States v. Regan, 221 F. Supp. 2d 672, 679 (E.D. Va. 2002) ("In light of Jones's requirement that 'any fact . . . that increases the maximum penalty for a crime must be charged in an indictment,' it appears to be a foregone conclusion that aggravating factors that are essential to the imposition of the death penalty must appear in the indictment.") (quoting Jones, 526 U.S. at 243 n.6).

We start, then, from the premise that inclusion in Allen's indictment [*9] of at least one statutory aggravating factor from 18 U.S.C. § 3592(c) was constitutionally mandated. See Apprendi, 530 U.S. at 490 n.15 ("The indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.") (quoting United States v. Reese, 92 U.S. 214, 232-33, 23 L. Ed. 563 (1875) (Clifford, J., dissenting) (emphasis added)). Allen argues that his indictment included no statutory aggravators and thus his death sentence cannot stand. The government defends the sentence on two grounds. First, the government argues that Allen's indictment sufficiently alleged the requisite elements for imposition of the death penalty. Second, if error is found, the government argues that the error is harmless. We find neither argument persuasive.

We decline to construe Rule 52(a) in a way which renders harmless all indictment errors in federal capital cases. Nor will we interpret the Fifth Amendment in a manner that would strictly curtail the right to grand jury indictment. The government's theory would sanction indictment by information in all cases, or at least make such a practice constitutionally harmless error. Further, it would permit the government to indict narrowly and then expand or change the case and charges as it so chose - as long as it informed the defendant as it went along. To use an extreme example, a defendant could be indicted on a simple weapons charge, and then tried and convicted on completely unrelated drug charges, and the error would be harmless if the defendant received notice of the government's intention prior to trial. [*31] We presume that if a defendant challenged such practices prior to trial, he would succeed and the government would be directed to obtain an indictment on each charged offense. However, there will be instances where errors occur or objections are not timely made. If, as the government's theory posits, a defendant's substantial rights are not affected by practices such as these, it is difficult to imagine any scenario by which a defendant could ever prevail in an Indictment Clause challenge that, for whatever reason, was not resolved in his favor prior to trial. We find nothing in the underpinnings of the Indictment Clause, or in Supreme Court case law, that suggests that such an approach would be constitutional. See, e.g., Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959) (reversing federal kidnapping conviction initiated by information, and stating that "the Fifth Amendment made the [grand jury indictment] rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings . . . To permit the use of informations where . . . the charge states [*32] a capital offense, would . . . make vulnerable to summary treatment those accused of . . . our most serious crimes.") (internal citation omitted).

We note that if Allen's trial were still pending, there is virtually no doubt that the government would seek a superseding indictment which included the statutory aggravating factors referenced in the notice of intent to seek the death penalty. See United States v. Pennington, No. 3:01-CR-35-R, slip op. at 3 (W.D. Ky. Feb. 21. 2003) (granting defendant's motion to preclude imposition of the death penalty where indictment did not allege death-qualifying statutory aggravating factor or requisite mens rea, and government did not seek superseding indictment prior to jeopardy attaching "notwithstanding the acknowledged mandate from the Attorney General to seek a superseding indictment in all pending federal death penalty cases so as to include the requisite intent and statutory aggravators"); United States v. Regan, 221 F. Supp. 2d 672, 675 (E.D. Va. 2002) (noting that, in light of Ring, the government filed a second superseding indictment re-alleging espionage charges and including the statutory aggravating factors [*33] previously set forth only in the notice of intent to seek the death penalty). We recognize that at the time of Allen's indictment, Walton was still good law, and thus the indictment appeared constitutionally sufficient. n8 But there is no good-faith exception to a violation of a properly asserted right to indictment by grand jury, and we now know that Allen's indictment was constitutionally deficient - that, in fact, Allen was correct back in 1997 when he challenged the indictment before the trial court and in 2000 when he challenged it on appeal.

Allen was constitutionally entitled to a separate and independent determination by a grand jury that probable cause existed to find the death-qualifying facts in this case. As a result of the error, Allen was denied the first of a constitutionally-mandated two-tiered check [*34] on prosecutorial power - a protection which reaches paramount importance in a capital case. Consequently, the death sentence imposed exceeded that authorized by the indicted offense and was based solely on post-grand jury charging decisions. See Stirone, 361 U.S. at 218 ("The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.") (emphasis added).

The government points to the practical reality of grand jury practice, specifically the low burden of proof and majority vote required to obtain a grand jury indictment, and the rarity of a grand jury refusing a prosecutor's requested charge. The problem with this speculative reasoning for our purposes, however, is that it disregards the constitutional framework that, for felonies and capital crimes, places two separate bodies of citizens between the accused and a state-sanctioned judgment. In this respect, we see an arguable distinction between a Sixth Amendment challenge to judge-made findings and a Fifth Amendment indictment clause challenge. As observed by the [*35] Supreme Court:If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.Ex parte Bain, 121 U.S. 1, 10, 30 L. Ed. 849, 7 S. Ct. 781 (1887), quoted in Stirone, 361 U.S. at 217. See also Cotton, 535 U.S. at 631, 634 (citing Bain, 121 U.S. 1, 30 L. Ed. 849, 7 S. Ct. 781, Stirone, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270, and Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962), for the "settled proposition of law" that "an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form," and approving the general proposition that "the Fifth Amendment grand jury right serves a vital function in providing [*36] for a body of citizens that acts as a check on prosecutorial power"); United States v. Miller, 471 U.S. 130, 142-43, 85 L. Ed. 2d 99, 105 S. Ct. 1811 & n.7, 471 U.S. 130, 85 L. Ed. 2d 99, 105 S. Ct. 1811 (1985) (noting the Court's consistent reaffirmation of Bain as standing for recognition of the important constitutional safeguard represented by the grand jury). See also United States v. Harris, 536 U.S. 545, 564, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (Kennedy, J., concurring) ("The grand and petit juries thus form a 'strong and two-fold barrier . . . between the liberties of the people and the prerogative of the [government].'") (quoting Duncan v. Louisiana, 391 U.S. 145, 151, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968)).

There may be instances where a reviewing court can confidently say that given the grand jury's findings, that same grand jury would have found the omitted element had the prosecutor asked. See, e.g., Cotton, 535 U.S. at 633 (noting, under fairness-integrity prong of plain error review, that "surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base"). Here, however, the government asks us to [*37] determine what the grand jury would have found based on the petit jury's findings. The reasoning underlying the Supreme Court's comment in Cotton, and some of our Sixth Amendment Apprendi decisions, does not hold in the context of this case. Nothing in the petit jury's findings compels the conclusion that a completely different group of people - the grand jury - would have found the same fact, even if the evidentiary burdens are lower. This is particularly true where, as here, at issue are relatively qualitative determinations which do not lend themselves to precise fact-finding in the same way that drug quantity determinations might. See, e.g., State v. Finch, 137 Wn.2d 792, 975 P.2d 967, 1007-08 (Wash.), cert. denied, 528 U.S. 922, 145 L. Ed. 2d 239, 120 S. Ct. 285 (1999) (finding that there is no such thing as "overwhelming evidence" of the death penalty because although there can be objective evidence of a person's guilt or evidence, such that a reviewing court can say whether a trial jury's deliberations would have come out the same way as to the underlying offense, aggravating and mitigating factors are "of a more subjective nature . . .").

Because [*38] we are unable to conclude beyond a reasonable doubt that the indictment error did not affect Allen's substantial rights, the government has not met its burden to prove that the error was harmless. See Neder, 527 U.S. at 19 (cautioning that if, after thorough examination of the record, a reviewing court cannot conclude beyond a reasonable doubt that the error did not prejudicially influence the outcome, the court should not find the error harmless). Accordingly, we vacate Allen's death sentence and remand to the district court for imposition of a life sentence.

New Jersey v. Fortin,2004 N.J. LEXIS 18 (N.J. 2/22004) & New Jersey v. Fortin, 2004 N.J. LEXIS 21 (NJ 2/6/2004) Reversal had on multiple grounds. "The [trial]court denied defendant his right to a fair trial by depriving him of the opportunity to discover which jurors would be unwilling or unable to remain impartial and follow the court's limiting instructions after hearing the highly inflammatory evidence about defendant's crime against" the decedent. The defendant's right to confront witnesses was infringed upon when the state's expert failed to produce the database on which he relied in making his analsysis that the same perpetrator committed crimes against both victims in this matter. Trial court erred in not permitting the defendant to waive any ex post facto concerns so as to permit the jury to have the sentencing option of life without parole. Trial court erred in "not 'explicitly inform the jurors that if the jury as a group rejected an aggravating factor, no one juror could consider that factor during the weighing process, even if he or she voted for that factor individually'." Apprendi/Ring require grand jury presentment of aggravating circumstances in a capital prosecution.

Where "enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a [*165] jury." Id. at 609, 122 S. Ct. at 2443, 153 L. Ed. 2d at 577 (citations omitted). Ring thus fundamentally altered the constitutional significance of aggravating factors that expose a defendant to the death penalty. In the context of deciding when the Fifth Amendment's double jeopardy protection applied to a penalty-phase hearing in a capital case, the Supreme Court in Sattazahn v. Pennsylvania reasserted the principles established in Ring.. . .

It is clear to us, however, that functionally, [*167] the aggravating factors in the Act are indistinguishable, for this purpose, from the elements of a crime. For example, no more or less than premeditation under our prior law, proof of an aggravating factor could mark the difference between imprisonment and death.. . .

Although we recognize that the Fifth Amendment right to indictment by a grand jury does not apply to the States, Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 122, 28 L. Ed. 232, 239 (1884), we have never construed our grand jury provision under Article I, Paragraph 8 as providing lesser protection than its federal analogue.. . .

In light of Apprendi and Ring and our recognition that "functionally, the aggravating factors in [N.J.S.A. 2C:11-3c] are indistinguishable . . . from the elements of a crime," Ramseur, supra, 106 N.J. at 201 n.27, we conclude that Article I, Paragraph 8 requires the submission of the aggravating factors and capital "triggers" to the grand jury.

CAPITAL CASES (Favorable Disposition)

Cooper v. Woodford, — F.3d — (9th Cir 2/9/2004) (en banc) (dissent) Stay & permission to file a second or successive habeas petition granted. Stay granted, in part, as DNA related tests would readily determine Cooper’s guilt or innocence. The California Attorney General has stated he plans to file cert., stay tuned, however, as there appears to be no procedural device to get the case to the Supreme Court under 28 U.S.C. sec. 2244(b)(3)(B).

North Carolina v. Maske, 2004 N.C. LEXIS 18 (NC 2/6/2004) The pecuniary gain penalty phase instruction was erroneous. Prosecutor's cross of the defendant, and later in closing, in the penalty phase improperly commented on the defendant's plea of not guilty in light of the defendant's professed remores in committing the crime.

North Carolina v. Matthews, 2004 N.C. LEXIS 15 (NC 2/6/2004) Counsel held to be per se ineffective for conceding the defendant's guilt to a lesser included degree of homicide without the defendant's knowledge. Prosecution severely chided as "his personal opinion about defendant's theory of the case exceeded proper boundaries and he engaged in improper name-calling."

CAPITAL CASES (Unfavorable Disposition)

Robinson v. Crosby, 2004 U.S. App. LEXIS 1634 (11th Cir 2/3/2004) Stay denied on claims arising to the constitutionality of lethal injection.

Busby v. Dretke, 2004 U.S. App. LEXIS 1707 (5th Cir 2/4/2004) Relief denied on (1) whether appellate counsel’s decision not to appeal the trial court’s denial of Busby’s motion to exclude the letters constituted ineffective assistance of counsel; (2) the trial court’s denial of Busby’s motion to suppress the letters violated the First Amendment; (3) whether a change of venue should have been granted.

California v. Danks, 2004 Cal. LEXIS 736 (Cal 2/2/2004) (dissent) A sharply split state supreme court affirms, most notably, holding harmless juror misconduct including one of the penalty phase jurors passed around passages from the Bible during deliberations, including this verse: "If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death" and two jurors having spoken to their pastors about the Danks fate.

Colorado v. Vasquez, 2004 Colo. LEXIS 66 (Colo 2/9/2004) Colorado statute requiring a capital defendant to prove his mental retardation by clear and convincing evidence upheld.

Bolin v. Florida, 2004 Fla. LEXIS 159 (FL 2/5/2004) Relief denied on claims relating to: (1) failure to recuse certain jurors for cause; (2) use of the term match in regards to DNA; (3) lack of record as to the venire's oath; (4) waiver of a penalty phase jury; (5) proportionality; & (6) sufficiency of the evidence.

OTHER NOTABLE CASES

Texas v. Medrano, 2004 Tex. Crim. App. LEXIS 165 (Tex. Crim. App. 2/4/2004) Trial court's exclusion of hypnotically enhanced witness testimony affirmed. Standards for a trial court's admission of hynotically enhanced witness testimony examined.

FOCUS

Back soon.

From Around the Web

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

State Medical Examiner Indicted for Lying; Participated in a Third of Death Row Cases

Posted: February 13, 2004

A Tennessee medical examiner who helped convict about a third of the state's death row inmates has been indicted for faking an attack in which he was strapped with a homemade bomb around his neck. [ More]

Prosecutors Drop Death Penalty As Victims' Mother Seeks Closure

Posted: February 12, 2004

Prosecutors from Middlesex County, New Jersey, have decided to adhere to the wishes of the victim's family and will not seek the death penalty against Dwayne Carreker of New Brunswick at his retrial. [ More ]

Despite Upcoming Supreme Court Argument, Texas Schedules Execution Dates for Four Juvenile Offenders

Posted: February 11, 2004

Texas has scheduled the execution of four juvenile offenders between March and June of 2004 despite the fact that the U. S. Supreme Court has agreed to review whether such executions are constitutional. [ More ]

Geography Influences California Death Penalty Policies

Posted: February 11, 2004

A recent investigation of California's death penalty by the Associated Press found that the geographic location of a crime plays a significant role in whether a defendant receives the death penalty. [ More ]

NEW VOICES: Victim's Family Requests Life Sentence For Death Row Inmate

Posted: February 10, 2004

After consulting with the family of the murder victim, Maryland prosecutors decided not to seek the death penalty against Kenneth Collins during a recent resentencing hearing. The victim's widow noted that seeking the death penalty for Collins would result in years of agonizing appeals and that her family is "tired of reliving the memories of his death every time a new hearing is scheduled." [More]

Maryland Death Penalty Numbers Decline, Reflecting U.S. Trends

Posted: February 9, 2004

Mirroring a nationwide decline in both executions and death row population, Maryland's death row has fallen by 50% in recent years and the state has not carried out an execution since 1998. [ More ]

New Jersey Supreme Court Changes Death Penalty Process

Posted: February 6, 2004

The New Jersey Supreme Court has ruled that prosecutors who plan to seek the death penalty must submit that request to a grand jury for approval. Prior to the 4-2 ruling by the Court, prosecutors could decide to seek the death penalty as late as the middle of the trial. [ More ]

Mentally Ill Man's Execution Stayed in Texas

Posted: February 5, 2004

Three stays of execution were issued on February 4th in cases in Florida, Texas, and Pennsylvania. The United States Supreme Court briefly stayed an execution in Florida to examine the appeal from Johnny Robinson. However, the Court voted 5-4 to allow the execution to take place. [ More]