The Supreme Court's decision in United States v. Booker leads off this edition. The Booker majority (or is it majorities) struck down the federal Sentencing Guidelines but, as a remedial measure, have held that the Guidelines must still be consulted in sentencing. The immediate impact is that the lower federal courts are likely to be involved in resentencing for the foreseeable future; in the words of Prof. Peter Henning, "Booker will become a source of many judicial opinions plumbing its depths -- pity the poor trees felled in its wake." As it relates to capital cases, which is already being discussed on several of the more secure discussion lists, the language of Booker calls into serious question the sentencing schemes in many, if not most, states that still retain the death penalty as to the weighing of aggs v. mits with a standard of less than proof beyond a reasonable doubt, as well as, use of "advisory" juries whose decision need not be unanimous.

Of course Booker is not the only news of this edition. In State ex rel Bourque v. Cain the Louisiana Supreme Court has remanded for a evaluation of his competency to be executed hearing under a new state competency to be executed statute. In State v. Bays an intermediate Ohio appellate court examines when an expert is needed to litigate an Atkins claim. In an unpublished opinion the Fifth Circuit has granted a Certificate of Appealability on issues relating to use of an expert in eyewitness identification in Ford v. Dretke. Likewise, in an unpublished opinion (or possibly and order) not available from Lexis, Westlaw or even the Fifth Circuit's own website, that Court appears to have stayed the scheduled execution of Jose Briseno in light of concerns about whether he is mentally retarded. Finally, a district court has denied relief in Beardslee v. Woodford on a rather unique challenge to lethal injection asserting that pancuronium bromide, the second of three chemicals injected into condemned inmates in that state's protocol, could violate the First Amendment by preventing Beardslee from telling witnesses that he was uncomfortable or in pain.

Several grants of certiorari are also noted, including two capital cases from the Sixth Circuit. In Bell v. Thompson cert was apparently granted on on the ability of a federal appeals court to withdraw an opinion decidedly adversely to a habeas petitioner some six month after the mandate Issued. The Court also granted cert in Mitchell v. Stumpf on the question of prosecutor's using different theories for prosecution in differing cases.

Elsewhere, the Chicago Tribune reports that more and more fingerprints are taken and examined electronically and in the process "cleaned up" in Photoshop resulting in "digital images that may be missing crucial details or may have been manipulated without the [anyone else] knowing it." Over at the Death Penalty Information Center, the site notes it has pulled together additional resource pages about the pending capital cases before the Court, some apparently available nowhere else. Finally, Jeffrey Toobin, writing in the upcoming January 17, 2005, New Yorker examines a recently disbarred former Arizona prosecutor whose misconduct in two different death penalty cases lost him his license and whose conduct appears to have put the wrong man on the row

On a personal note, thanks to all those who have forwarded their stories about their experience in living with the aftermath of having a client executed as well as those who still are in the process of forwarding their stories. If you would like to submit your story there is still some time left.

Finally, a new section has been added entitled "Around the Blogs." With the sudden proliferation of experts posting their thoughts on the death penalty, including blogs by no less than four criminal law professors, as well as NACDL, hit and miss coverage of the blogs was no longer a viable option. This this week covers postings from TalkLeft, CrimProfs Blog, Sentencing Law and Policy, Abolish the Death Penalty and The Lonely Abolitionist.

Archived on the net at http://capitaldefenseweekly.com/archives/050110.htm

As always thanks for reading. - k

EXECUTION INFORMATION

Since the last edition there have been no executions:

Potentially serious executions noted are:

SUPREME COURT

United States v. Booker, 543 U.S. ---; No. 04-104 (1/12/2005) Federal sentencing guidelines held unconstitutional as they are mandatory. The Guidelines must still be used, but are not binding. Feeney Amendment struck. See below.

Whitfield v. United States, 543 U.S. ----; No. 03-1293 (1/11/2005) Statute governing conspiracy to commit money laundering (18 U.S.C. section 1956(h)) does not require proof of an overt act in furtherance of the conspiracy.

Cert Grants are also noted:

04-514, Bell, Warden v. Thompson (review limited to Question 2), tests the authority of a federal appeals court to withdraw an opinion against a habeas petitioner six months after the mandate had to have been issued.

04-637, Mitchell, Warden, v. Stumpf, involving tests for voluntariness of a guilty plea and of the impact of a later prosecution of a different person that brings out evidence inconsistent with the basis of guilt in the defendant’s trial earlier.

04-563, Mayle, Warden v. Felix, testing the scope of the one-year filing deadline for federal habeas petitions, when a state inmate amends his petition to include a new claim.

Halbert v. Michigan (03-10198), the issue is the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court.

Johnson v. California (04-6964), is a case that had been before the Court last Term, testing the method of establishing racial exclusion of jurors by prosecutors using peremptory challenges.

CAPITAL CASES (Favorable)

Ford v. Dretke, 2005 WL 19507 (5th Cir 1/5/2005) (unpublished) ”[T]he court grants Ford a COA on the following issues: (1) whether the district court erred in determining that Ford's trial counsel provided effective assistance in advocating his request for the appointment of an expert in eyewitness identification, (2) whether the district court erred in determining that Ford was not entitled to an eyewitness identification expert, and (3) whether the district court erred in determining that Ford's appellate counsel was effective despite his failure to raise a due process claim based on the trial court's failure to appoint Ford an expert. The court DENIES a COA for Ford's claim that he was entitled to an evidentiary hearing to develop his claim that the police identification process was unconstitutionally suggestive.“

Borden v. State, 2005 WL 30546 (Ala Crim App 1/7/2005) On return to remand, grant of relief under Atkins upheld.

State ex rel Bourque v. Cain, 2005 WL 32082 (LA 1/7/2005) Remand ordered for a “Ford” mental competency to be executed hearing under a new state statute.

State v. Bays, 2005 WL 32799 (Ohio App Dist 2 1/7/2005) ”Bays, an indigent capital defendant with significant, documented cognitive deficits, contends that the trial court abused its discretion when it denied his request for funding to obtain the expert assistance he needed to meet his burden of proving that he is mentally retarded, and therefore should not be executed, pursuant to Atkins and Lott. We conclude that the trial court did abuse its discretion when it denied Bays's request for funding for an expert on mental retardation for Atkins purposes.”

CAPITAL CASES (Other Than Favorable)

Thacker v. Dretke, 2005 WL 18542 (5th Cir 1/5/2005) Relief denied on “seven issues related to only two alleged errors: that (1) the instruction given the jury on his capital murder charge was a misstatement of Texas law, or at the very least was substantially confusing to the jury as to the sufficient level of intent required to convict; and (2) the trial court's disallowance of any reference to Thacker's parole eligibility in the presence of the jury was unconstitutional. Thacker argues that the erroneous jury charge violated his due process rights under the Fourteenth Amendment and the Trial by Impartial Jury Clause of the Sixth Amendment, and that he was deprived of his Sixth Amendment right to effective assistance of counsel.”

Hunter v. Secretary, Dept of Corrections, 2005 WL 17741 (11th Cir 1/5/2005) Relief denied on (1) whether a conflict of interest existed because the public defender’s office had previously represented several of the state’s witnesses; and “(2) whether his trial counsel rendered ineffective assistance by failing to present the jury with certain evidence concerning photographs that had been taken of the four robbers shortly after the crime.”

Beardslee v. Woodford, 2005 WL 40073 (N.D. Cal. 1/7/2005) Relief denied on claims that “executing him pursuant to California's lethal injection protocol, contending that executions performed pursuant to that protocol violate the Eighth Amendment's prohibition of cruel and unusual punishment as well as his First Amendment right to freedom of speech.”

Holmes, n/k/a An Nur v. State, 2005 WL 32199 (Ind. 1/7/2005) Permission to file successive petition denied as changes to Indiana's death penalty statute and Apprendi do not require relief.

Hall v. State, 2005 WL 22951 (Tenn Crim App 1/5/2005) Relief denied on allegations: “(1) counsel were ineffective at the guilt phase; (2) counsel were ineffective at the penalty phase; (3) the heinous, atrocious or cruel aggravating circumstance is unconstitutional as applied in this case; (4) the imposition of the death penalty is unreliable and violates principles protected by both the United States and Tennessee Constitutions; and (5) the death sentence is unconstitutional as it infringes upon the petitioner's right to life and is not necessary to promote any compelling state interest.”

OTHER NOTABLE CASES

Board v. Farnham, 2005 WL 18109 (7th Cir 1/5/2005) Jailers are not entitled to qualified immunity where he allegedly deprived inmate of toothpaste for over three weeks; deprived him of his asthma inhaler; and placed inmate in allegedly unhealthy condition of the jail's ventilation system. (Note that the plaintiff at issue was found not guilty at trial.)

Arnett v. Jackson, 2005 WL 20492 (6th Cir 1/6/2005) (dissent) Ohio Supreme Court's conclusion, that a trial judge's turning to a passage from the Christian Bible to help make determination what sentence the petitioner should get did not violate the petitioner's due process rights, was not an unreasonable application of clearly established federal law so as to warrant federal habeas relief.

HOT LIST

United States v. Booker, 543 U.S. ---; No. 04-104 (1/12/2005) Federal sentencing guidelines held unconstitutional as they are mandatory. The Guidelines must still be used, but are not binding. Feeney Amendment struck.

Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker’s drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month,sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U. S. 466, 490, holding that “[o]ther 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.” Relying on Blakely v. Washington, 542 U. S. ___, the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury. In respondent Fanfan’s case, the maximum sentence authorized by the jury verdict under the Guidelines was 78 months in prison. At the sentencing hearing, the District Judge found by a preponderance of the evidence additional facts authorizing a sentence in the 188-to-235-month range, which would have required him to impose a 15- or 16-year sentence instead of the 5 or 6 years authorized by the jury verdict alone. Relying on Blakely’s majority opinion, statements in its dissenting opinions, and the Solicitor General’s brief in Blakely, the judge concluded that he could not follow the Guidelines and imposed a sentence based solely upon the guilty verdict in the case. The Government filed a notice of appeal in the First Circuit and a petition for certiorari before judgment in this Court. Held: The judgment of the Court of Appeals in No. 04–104 is affirmed, and the case is remanded. The judgment of the District Court in No. 04–105 is vacated, and the case is remanded. No. 04–104, 375 F. 3d 508, affirmed and remanded; and No. 04–105, vacated and remanded.

JUSTICE STEVENS delivered the opinion of the Court in part, concluding that the Sixth Amendment as construed in Blakely applies to the Federal Sentencing Guidelines. Pp. 5–20.

(a) In addressing Washington State’s determinate sentencing scheme, the Blakely Court found that Jones v. United States, 526 U. S. 227; Apprendi v. New Jersey, 530 U. S. 466; and Ring v. Arizona, 536 U. S. 584, made clear “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at ___. As Blakely’s dissenting opinions recognized, there is no constitutionally significant distinction between the Guidelines and the Washington procedure at issue in that case. This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges. Were the Guidelines merely advisory—recommending, but not requiring, the selection of particular sentences in response to differing sets of facts—their use would not implicate the Sixth Amendment. However, that is not the case. Title 18 U. S. C. A. §3553(b) directs that a court “shall impose a sentence of the kind, and within the range” established by the Guidelines, subject to departures in specific, limited cases. Because they are binding on all on judges, this Court has consistently held that the Guidelines have the force and effect of laws. Further, the availability of a departure where the judge “finds . . . an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described,” §3553(b)(1), does not avoid the constitutional issue. Departures are unavailable in most cases because the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is legally bound to impose a sentence within the Guidelines range. Booker’s case illustrates this point. The jury found him guilty of possessing at least 50 grams of crack cocaine, based on evidence that he had 92.5 grams. Under those facts, the Guidelines required a possible 210-to-262-month sentence. To reach Booker’s actual sentence— which was almost 10 years longer—the judge found that he possessed an additional 566 grams of crack. Although, the jury never heard any such evidence, the judge found it to be true by a preponderance of the evidence. Thus, as in Blakely, “the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 542 U. S., at ___. Finally, because there were no factors the Sentencing Commission failed to adequately consider, the judge was required to impose a sentence within the higher Guidelines range. Pp. 5–12.

(b) The Government’s arguments for its position that Blakely’s reasoning should not be applied to the Federal Sentencing Guidelines are unpersuasive. The fact that the Guidelines are promulgated by the Sentencing Commission, rather than Congress, is constitutionally irrelevant. The Court has not previously considered the question, but the same Sixth Amendment principles apply to the Sentencing Guidelines. Further, the Court’s pre-Apprendi cases considering the Guidelines are inapplicable, as they did not consider the application of Apprendi to the Sentencing Guidelines. Finally, separation ofpowers concerns are not present here, and were rejected in Mistretta. In Mistretta the Court concluded that even though the Commission performed political rather than adjudicatory functions, Congress did not exceed constitutional limitations in creating the Commission. 488 U. S., at 393, 388. That conclusion remains true regardless of whether the facts relevant to sentencing are labeled “sentencing factors”

or “elements” of crimes. Pp. 13–20.

JUSTICE BREYER delivered the opinion of the Court in part, concluding that 18 U. S. C. A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with today’s Sixth Amendment “jury trial” holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines’ mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see §3553(a). Pp. 2–26.

(a) Answering the remedial question requires a determination of what “Congress would have intended” in light of the Court’s constitutional holding. E.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767. Here, the Court must decide which of two approaches is the more compatible with Congress’ intent as embodied in the Act: (1) retaining the Act (and the Guidelines) as written, with today’s Sixth Amendment requirement engrafted onto it; or (2) eliminating some of the Act’s provisions. Evaluation of the constitutional requirement’s consequences in light of the Act’s language, history, and basic purposes demonstrates that the requirement is not compatible with the Act as written and that some severance (and excision) is necessary. Congress would likely have preferred the total invalidation of the Act to an Act with the constitutional requirement engrafted onto it, but would likely have preferred the excision of the Act’s mandatory language to the invalidation of the entire Act. Pp. 2–6.

.(b) Several considerations demonstrate that adding the Court’s constitutional requirement onto the Act as currently written would so transform the statutory scheme that Congress likely would not have intended the Act as so modified to stand. First, references to “[t]he court” in §3553(a)(1)—which requires “[t]he court” when sentencing to consider “the nature and circumstances of the offense and the history and characteristics of the defendant”—and references to “the judge” in the Act’s history must be read in context to mean “the judge without the jury,” not “the judge working together with the jury.” That is made clear by §3661, which removes typical “jury trial” limitations on “the information” concerning the offender that the sentencing “court . . . may receive.” Second, Congress’ basic statutory goal of diminishing sentencing disparity depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct underlying the crime of conviction. In looking to real conduct, federal sentencing judges have long relied upon a probation officer’s presentence report, which is often unavailable until after the trial. To engraft the Court’s constitutional requirement onto the Act would destroy the system by preventing a sentencing judge from relying upon a presentence report for relevant factual information uncovered after the trial. Third, the Act, read to include today’s constitutional requirement, would create a system far more complex than Congress could have intended, thereby greatly complicating the tasks of the prosecution, defense, judge, and jury. Fourth, plea bargaining wouldnot significantly diminish the consequences of the Court’s constitutional holding for the operation of the Guidelines, but would make matters worse, leading to sentences that gave greater weight not to real conduct, but rather to counsel’s skill, the prosecutor’s policies, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Fifth, Congress would nothave enacted sentencing statutes that make it more difficult to adjust sentences upward that to adjust them downward, yet that is what the engrafted system would create. For all these reasons, the Act cannot remain valid in its entirety. Severance and excision are necessary. Pp. 6–15.

(c) The entire Act need not be invalidated, since most of it is perfectly valid. In order not to “invalidat[e] more of the statute than is necessary,” Regan v. Time, Inc., 468 U. S. 641, 652, the Court must retain those portions of the Act that are (1) constitutionally valid, ibid., (2) capable of “functioning independently,” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684, and (3) consistent with Congress’ basic objectives in enacting the statute, Regan, supra, at 653. Application of these criteria demonstrates that only §3553(b)(1), which requires sentencing courts to impose a sentence within the applicable Guidelines range (absent circumstances justifying a departure), and §3742(e), which provides for de novo review on appeal of departures, must be severed and excised. With these two sections severed (and statutory cross-references to the two sections consequently invalidated), the rest of the Act satisfies the Court’s constitutional requirement and falls outside the scope of Apprendi v. New Jersey, 530 U. S. 466. The Act still requires judges to take account of the Guidelines together with other sentencing goals, see §3553(a)(4); to consider the Guidelines “sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant,” pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities and to restitute victims, §§3553(a)(1), (3)–(7); and to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed training and medical care, §3553(a)(2). Moreover, despite §3553(b)(1)’s absence, the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range). See §§3742(a) and (b). Excision of §3742(e), which sets forth appellate review standards, does not pose a critical problem. Appropriate review standards may be inferred from related statutory language, the statute’s structure, and the “sound administration of justice.” Pierce v. Underwood, 487 U. S. 552, 559–560. Here, these factors and the past two decades of appellate practice in cases involving departures from the Guidelines imply a familiar and practical standard of review: review for “unreasonable[ness].” See, e.g., 18 U. S. C. §3742(e)(3) (1994 ed.). Finally, the Act without its mandatory provision and related language remains consistent with Congress’ intent to avoid “unwarranted sentencing disparities . . . [and] maintai[n] sufficient flexibility to permit individualized sentences when warranted,” 28 U. S. C. §991(b)(1)(B), in that the Sentencing Commission remains in place to perform its statutory duties, see §994, the district courts must consult the Guidelines and take them into account when sentencing, see 18 U. S. C. §3553(a)(4), and the courts of appeals review sentencing decisions for unreasonableness. Thus, it is more consistent with Congress’ likely intent (1) to preserve the Act’s important pre-existing elements while severing and excising §§3553(b) and 3742(e) than (2) to maintain all of the Act’s provisions and engraft today’s constitutional requirement onto the statutory scheme. Pp. 15–22.

(d) Other possible remedies—including, e.g., the parties’ proposalsthat the Guidelines remain binding in cases other than those in which the Constitution prohibits judicial factfinding and that the Act’s provisions requiring such factfinding at sentencing be excised— are rejected. Pp. 22–24.

(e) On remand in respondent Booker’s case, the District Court should impose a sentence in accordance with today’s opinions, and, if the sentence comes before the Seventh Circuit for review, that court should apply the review standards set forth in this Court’s remedial opinion. In respondent Fanfan’s case, the Government (and Fanfan should he so choose) may seek resentencing under the system set forth in today’s opinions. As these dispositions indicate, today’s Sixth Amendment holding and the Court’s remedial interpretation of the Sentencing Act must be applied to all cases on direct review. See, e.g., Griffith v. Kentucky, 479 U. S. 314, 328. That does not mean that every sentence will give rise to a Sixth Amendment violation or that every appeal will lead to a new sentencing hearing. That is because reviewing courts are expected to apply ordinary prudential doctrines, determining, e.g., whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine. Pp. 24–25.

STEVENS, J., delivered the opinion of the Court in part, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered the opinion of the Court in part, in which REHNQUIST, C. J., and O’CONNOR, KENNEDY, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion dissenting in part, in which SOUTER, J., joined, and in which SCALIA, J., joined except for Part III and footnote 17. SCALIA, J., and THOMAS, J., filed opinions dissenting in part. BREYER, J., filed an opinion dissenting in part, in which REHNQUIST, C. J., and O’CONNOR and KENNEDY, JJ., joined.

FOCUS

Back soon.

AROUND THE WEB

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

New Resources Available on DPIC's Web Site

Among the new resources available on DPIC's Web site are summaries of death penalty cases the U.S. Supreme Court has recently agreed to hear, including the case involving Mexican citizens on U.S. death rows. The upcoming cases summaried include Medellin v. Dretke, Bell v. Thompson, and Mitchell v. Stumpf. In addition to these summaries, DPIC has posted an overview of the new Innocence Protection Act, as well as an updated version of it's 4-page Death Penalty Fact Sheet.

NEW RESOURCE: "Executed on a Technicality" Scheduled for April Release

Executed on a Technicality: Lethal Injustice on America's Death Row, by Professor David Dow, to be released in April 2005, is a behind-the-scenes look at the death penalty through the lens of an attorney who formerly supported capital punishment. Dow, who teaches at the University of Houston Law Center and founded the Texas Innocence Network, provides case histories illustrating serious flaws in the death penalty system. He uses these cases to guide readers through a web of coerced confessions, incompetent representation, racist juries, and unfair judges, all of which he believes contribute to the arbitrariness of capital punishment.

In many cases, obscure technicalities in the law prevented courts and juries from hearing evidence that would have prevented an execution or a death sentence. Dow relates the case of one man who was executed because the jury never heard from two eyewitnesses who swore he was not the murderer. In another case, a man was allowed to represent himself despite the fact that his mental imbalance - which resulted in attempts to issue a subpoena to Jesus Christ and to dressing as a cowboy during his trial - was obvious. (Beacon Press, 2005). See Resources.

Arizona Case Exposes Prosecutorial Misconduct and Wrongful Convictions

In an examination of the case against three men sentenced to death for a triple murder that occurred in Tucson's El Grande Market, reporter Jeffrey Toobin in the New Yorker describes the incidents that led to the fall of the lead prosecutor, Kenneth Peasley, for presenting false evidence in the case. Only one of the co-defendants, Martin Soto-Fong, remains on Arizona's death row. Of the other two defendants, Christopher McCrimmon was acquitted at a re-trial in 1997, and Andre Minnett had his conviction reversed in 1996, with subsequent prosecution barred on double jeopardy grounds in 2002 because of Peasely's intentional misconduct. In 2004, Peasley was disbarred for his actions in the El Grande case. Soto-Fong, who was 17-years-old and a foreign national when the crime occurred, is appealing in federal court and has maintained his innocence. Recently, a new witness has emerged pointing to other defendants and excluding the three who were originally convicted. (J. Toobin, "Killer Instincts," The New Yorker, January 17, 2005).

See Innocence.

Indiana Governor Grants Clemency While Calling for Death Penalty Review

With just days remaining in his term, Indiana Governor Joe Kernan (pictured) has granted clemency to Michael Daniels, whose case underscored the Governor's concerns about the death penalty. "I have now encountered two cases where doubt about an offender's personal responsibility and the quality of the legal process leading to the capital sentence has led me to grant clemency. These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences," said Kernan, who hopes the state government can soon examine whether Indiana's sentencing system is fair in death penalty cases.

The Governor noted that evidence casting doubt on Daniels' guilt was never presented in court, and that Daniels' IQ of 77 is just above the level to be considered mentally retarded. He also stated that Daniels, who was the only one of three co-defendants to receive a death sentence, was psychotic for some time and unable to assist in his defense. In July 2004, Kernan granted clemency to Darnell Williams just days before his scheduled execution.

This most recent commutation earned praise from the victim's son, Tim Streett, a minister who opposes capital punishment and has supported clemency for Daniels. Streett said that his late mother would have been glad to have the case come to an end, noting, "As long as he (Daniels) was on death row, every couple of years there was a story about it in the paper. She just wanted that to be over." (Associated Press, January 9, 2005). See Clemency - this is the 228th clemency granted in the U.S. since the death penalty was reinstated in 1976, including 171 granted by Gov. Ryan of Illinois; Innocence, and Victims.

RELIGIOUS VIEWS: Connecticut Archbishop Asks Parishoners to Protest the Death Penalty

As Connecticut prepares to carry out its first execution in over 40 years, Catholic Archbishop Henry J. Mansell of Hartford called on local parishes to sign a Church petition that calls for an end to capital punishment. "The death penalty offers the tragic illusion that we can defend life only by taking life," Mansell wrote in a letter that will be read during Masses on January 8 and 9. Other bishops in Connecticut are taking similar actions prior to the scheduled execution of Michael Ross on January 26.

The U.S. Conference of Catholic Bishops has called for a complete rejection of the death penalty, in accordance with Catholic teaching to uphold the human dignity of all persons. Archbishop Mansell is part of a broad spectrum of religious leaders and groups seeking to halt executions in the state. Many of these leaders will hold a press conference publicly calling for the abolition of the death penalty on January 12 on the state Capitol steps. (Hartford Courant, January 6, 2005). See Statements from Religious Organizations and New Voices.

Washington Post Explores Gonzales Clemency Memos

The Washington Post has conducted further research into the clemency memos prepared by U.S. Attorney General nominee Alberto R. Gonzales, who served as lead counsel to then-Governor George W. Bush in Texas. Gonzales crafted 62 memos regarding clemency requests from Texas death row inmates, and several Texas attorneys have voiced their criticisms that the clemency memos contained incomplete and unfair summaries of evidence and mitigating circumstances. The memos, first reviewed in 2003 by investigative journalist Alan Berlow for The Atlantic Monthly contained Gonzales's recommendations for each upcoming execution and resulted in Bush's denial of clemency in all but one instance between January 1995 and November 1997. In one memo written about the case of Henry Lee Lucas, Gonzales failed to mention that a 1986 investigation by the Texas attorney general's office concluded that Lucas had falsely confessed to numerous murders and had not killed the victim in the crime for which he was to be executed. "[I]t does not really address in any way...all the questions that were raised about his guilt," said former Texas attorney general Jim Mattox after reviewing the Lucas clemency memo written by Gonzales.

In the case of Kenneth Ray Ransom, defense attorney Jim Marcus believes the memo given to Bush failed to correctly state the basis for Ransom's clemency request. Marcus notes, "Had I known that the 40-page petition I filed would be boiled down to one slipshod sentence in Mr. Gonzales's memo, I would simply have filed a one-sentence petition." Defense attorney David Herman stated that Gonzales's summary of Jack Strickland's case failed to accurately address questions about Strickland's mental competency and was "a skeletal attempt to brief Bush on a complex case." Another Texas defense attorney, Greg Wiercioch, said that for two of his death row clients, appellate courts granted stays of execution or ordered additional evidentiary hearings after Gonzales had declared in his memos that the case had no worthy pending legal issues. (The Washington Post, January 6, 2005). See Clemency.

AROUND THE BLOGS

Around the Blogs this week looks at postings from TalkLeft, CrimProfs Blog, Sentencing Law and Policy, Abolish the Death Penalty and The Lonely Abolitionist:

TalkLeft (http://talkleft.com) notes:

Did Texas Execute an Innocent Man?

The debate continues over the execution of Cameron Todd Willingham last February. Chicago Trib reporters Maurice Possley and Steve Mills outlined the case and its disputed forensics last month.

...trapped to a gurney in Texas' death chamber earlier this year, just moments from his execution for setting a fire that killed his three daughters, Cameron Todd Willingham declared his innocence one last time. "I am an innocent man, convicted of a crime I did not commit," Willingham said angrily. "I have been persecuted for 12 years for something I did not do."

While Texas authorities dismissed his protests, a Tribune investigation of his case shows that Willingham was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances. According to four fire experts consulted by the Tribune, the original investigation was flawed and it is even possible the fire was accidental.

Today a Chicago Tribune editorial focuses on the errors in the Willingham case to make the point:

That's what passes for justice in Texas. The Willingham case undermines the notion that we execute only those we know to be guilty "beyond a reasonable doubt." It should send a shiver across the nation

A Mother Visits Her Son on Death Row in Texas

This was left in the comments today to our latest post on the juvenile death penalty:

how wonderful it was to see my son today. we laughed and talked for a couple of hours. we enjoyed a drink and some junk-food out of the vending machines. we took a couple of photos with a instant camera, photos that i will cherish for ever. we gazed into each others eyes and enjoyed each others company. the time passed so fast, as if it were only minutes.

time's up said the guard, so i gathered my trash and photos. we say our good bye's and i love you's. i walk away, leaving the youngest boy on texas death row waiting for the guards to take him back to his cell.

this is what we do, once a week, until the state of texas kills him or until our standards of decency evolve.

Unconstitutional Death Penalty Leads to Motion to Withdraw Plea

by TChris

Defendants who face the death penalty often have an incentive to plead guilty in exchange for a sentence of life imprisonment. Even the innocent might want to make that deal rather than risking death.

Deborah Green made that deal, but it turns out that she may not have benefitted from it. The Kansas Supreme Court ruled that the state's death penalty statute is unconstitutional. Since she could not have been put to death even if convicted in a trial, should she be entitled to withdraw her plea so she can have her day in court?

[A]ttorneys for the former Prairie Village doctor say she should be allowed to withdraw those pleas. "As a result of this decision, Ms. Green received no benefit from her bargain with the state, and allowing her plea to stand in light of this decision would result in a manifest injustice and violation of due process of law," attorneys Angela Keck and Jessica Travis asserted in a motion filed this week in Johnson County District Court.

Green is accused of setting a fire that destroyed her home and caused the death of her two children. She's also "challenging the validity of her pleas based on new scientific methods of arson investigation."

CrimProf Blog (http://lawprofessors.typepad.com/crimprof_blog/) notes:

New Yorker Article on Arizona Frame-Up

Jeffrey Toobin writes in The New Yorker about Ken Peasley, a former Pima County Deputy County Attorney recently disbarred (Arizona Supreme Court opinion here) for hiding evidence in two capital cases. Toobin suggests that another Peasely case could represent a wrongful conviction. Talkleft has a link to a pre-publication copy of the article. [Jack Chin]

New Article Spotlight: Capital Punishment and Jewish Law

Irene Merker Rosenberg and Yale L. Rosenberg of Houston have posted Of God's Mercy and the Four Biblical Methods of Capital Punishment: Stoning, Burning, Beheading and Strangulation on SSRN. The article was recently published in the Tulane Law Review. The abstract states:

In this article Professors Irene and Yale Rosenberg analyze capital punishment under Jewish Law, focusing on the four biblical death penalties: stoning, burning, beheading, and strangulation. To modern sensibilities these methods of execution may appear barbaric, especially as compared to the modern death by lethal injection. As with most of Jewish Law, however, one cannot read the Bible without reference to the Talmud. The Talmud makes it clear that because of various evidentiary, procedural and substantive barriers to conviction it is almost impossible to impose the death penalty.

The Talmudic discussions of the death penalties reveal that the Sages stressed the need for a favorable death, one that would not unnecessarily prolong the death agony nor subject those undergoing execution to indignity. Finally, the authors compare the Jewish Law of capital punishment with that of the United States. They conclude that although Jewish Law seems harsher, in fact it prevents innocent people from being executed and emphasize the sanctity of life.

To obtain a copy of the paper, click here. (picture and link of Yale Rosenberg not available) [Mark Godsey]

Judge Rejects Novel First Amendment Argument to Halt Execution

From Findlaw.com: "A federal judge Friday rejected a death row inmate's request to halt his upcoming execution on grounds that a chemical used to paralyze condemned prisoners during lethal injections could impair their free speech rights. Barring a successful appeal, U.S. District Judge Jeremy Fogel's decision means that convicted double murderer Donald Beardslee will be executed as scheduled at San Quentin on Jan. 19. Legal experts said Beardslee's appeal was the first argument of its kind in death penalty law. But Fogel was unpersuaded, saying at a hearing Thursday that Beardslee 'hasn't shown a sufficient violation of his constitutional rights.' He took the case under submission and issued his ruling Friday afternoon. Beardslee argued in an application for a temporary restraining order to halt his execution that pancuronium bromide, the second of three chemicals injected into condemned inmates at executions, could violate his First Amendment rights by preventing him from telling witnesses that he was uncomfortable or in pain. But in a seven-page ruling, Fogel said he was unconvinced that there was any chance that an inmate would be conscious when receiving the paralytic drugs because doctors first administer a strong barbiturate, sodium pentothal. 'Even with protocols under which only two grams of sodium pentothal -- as opposed to the five grams used in California -- are to be administered, the likelihood of such an error occurring is so remote as to be nonexistent,' Fogel said." More . . . [Mark Godsey]

Exoneration Roundup

The Northwestern Center on Wrongful Convictions has persuaded the governor of Illinois to pardon two inmates on the ground of innocence; the men served 27 years before being exonerated by DNA testing. Two others exonerated by DNA were also pardoned. The men had been released in 2003 and 2004. The Boston Phoenix reports on the loss of public confidence on the Boston police based on some high profile exonerations; Here's a similar article about the Suffolk County (Boston) prosecutor's office. Here's a story about the new joint law-journalism innocence project at the University of Oregon. Brooklyn CrimProf William Hellerstein successfully represented David Wong, who served 18 years for a murder he did not commit; now he's free--to be deported. Talkleft blogs a big settlement in a Chicago wrongful arrest case. [Jack Chin]

Digital Fingerprint Technology

The Chicago Tribune reports that more and more fingerprints are taken and examined electronically. In the process, many are "cleaned up" on Photoshop. "Across the country, police departments and crime labs are submitting fingerprints for comparisons and for entry into databases, using digital images that may be missing crucial details or may have been manipulated without the FBI knowing it." [Jack Chin]

Indiana Governor Calls for a Review of IN's Death Penalty

On January 7, former Indiana Governor Joe Kernan, (whose term as governor ended on January 10), called for a review of Indiana's administration of the death penalty. "I have now encountered two cases where doubt about an offender's personal responsibility and the quality of the legal process leading to the capital sentence has led me to grant clemency," Kernan said. "These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences." Along with Kernan's call for a review of Indiana's capital punishment, he granted clemency to Michael Daniels, an Indianapolis man convicted and sentenced to death row for the 1978 killing of an Army chaplain. Daniels was incarcerated on Indiana's death row longer than any other prisoner; now instead of facing the death penalty, Daniels will serve life in prison without the possibility of parole. More... [Mark Godsey]

Sentencing Law and Policy (http://sentencing.typepad.com/) notes:

Noteworthy pleas to stop executions

The scheduled executions of doubler murderer Donald Beardslee in California next week and of serial killer Michael Ross in Connecticut the following week continue to produce amazing developments and stories.

From California, this article details that a "former San Quentin State Prison warden and a juror who voted for Donald Beardslee's execution are urging Gov. Arnold Schwarzenegger to commute his sentence to life without parole."

From Connecticut, this article reports that the Connecticut Conference of the United Church of Christ filed a lawsuit Tuesday against the state's Board of Pardons and Parole in an effort to force the Board to hold a hearing to consider commuting Ross' death sentence to life in prison.

For more recent posts on capital clemency developments and issues, see

Indiana capital commutation and other capital news

The capital story of clemency

Sister Prejean's powerful perspective

In other sentencing news

Though, yet again, there is no sentencing news from SCOTUS, there are recent developments in a number of other on-going sentencing dramas.

In the death penalty arena, there is news from Connecticut and from California that legal efforts to block executions scheduled for later this month are not succeeding. This article from the Hartford Courant reports on two courts rejecting efforts to slow down the march of "volunteer" Michael Ross to the death chamber, and this article from law.com details the rejection of a novel legal claim by Donald Beardslee by a US District Judge in California. . . ..

Indiana capital commutation and other capital news

As detailed in this article, out-going Indiana Governor Joe Kernan yesterday commuted the death sentence of Michael W. Daniels to life without parole for his 1978 murder of a minister during a petty robbery that netted $1. As the article details, this is Gov. Kernan's second capital commutation and his written explanation asserts these cases "should cause us to take a hard look at how Indiana administers and reviews capital sentences."

The four-page statement by Gov. Kernan in support of this commutation, available here, is a fascinating read which covers many issues including ineffective assistance of counsel, proportionality and the defendant's low IQ. The statement partially undermines and partially underscores some of Professor Austin Sarat's recent commentary about clemency in capital cases.

And there are other interesting death penalty stories, in addition to the SCOTUS cert. grants, to review this morning:

• From Alabama, this story details that the state's Court of Criminal Appeals had to commute a death sentence because the offender's mental retardation meant, after Atkins v. Virginia, he could be constitutionally executed.
• From Connecticut, this story discusses the first bill filed in the state legislature to eliminate the death penalty and possibly block the looming execution of serial killer Michael Ross. Relatedly, this article details that the state's Roman Catholic bishops are asking followers to sign a petition opposing the death penalty (which spotlights issues noted in my recent Sentencing and religion post).

Death penalty litigation updates

I previously noted here that, though December was death-penalty free, January would be an active death penalty month, especially because Connecticut is poised to have its first execution in the modern capital era and California is scheduled to have its first execution in a number of years.

Thanks to Howard Bashman at How Appealing, I can provide updates on both of these capital stories. At this post here, Howard has collected an array of articles and links concerning the legal battle over the planned execution of serial killer Michael Ross, who has voluntarily waived his remaining appeals and adamantly opposed others trying to halt his execution. And here, Howard has the latest articles detailing Donald Beardslee latest failed efforts to get a court to disrupt his scheduled January 19 execution.

Abolish the Death Penalty (http://www.deathpenaltyusa.blogspot.com/) notes

Anthony Graves

If you've followed this blog, then you've read about Anthony Graves before.

It's always dangerous to proclaim that a person on death row is innocent. For how does one go about proving innocence, anyway? DNA evidence, for instance, rarely proves it innocence. At most, it tends to disprove a prosecutor's theory of how a crime occurred.

But this case speaks to innocence.

Remember Anthony Graves' name. And while you are at it, remember the name of Charles Sebasta, who put him on death row.

The Lonely Abolitionist (http://lonelyabolitionist.blogspot.com/):

Troy Kunkle Update

Troy Kunkle's execution has been rescheduled for January 25th. Mea culpa on the January 19 date listed below. Apparently, I had old information.

Editorial by Donald Connery

I encourage you all to read this essay. Mr. Connery is writing a book on miscarriages of justice. He has followed case after case of wrongful conviction and has studied the application of the death penalty throughout the United States. A Connecticut resident, he has an interesting perspective on resuming executions in Connecticut. Mr. Connery has been a journalist most of his life, a career he began after serving in the Philippines during World War II.

If you have questions about Connecticut's execution of Michael Ross (or the death penalty in general), please do read this essay.

"We are all, of course, on God's death row, saints and sinners alike. Losing a life is personal, especially if it is our own. Taking a life is personal, especially if we freely choose to do so."

You Me and the Death Penalty

Michael Ross In reaction to the upcoming execution of Michael Ross, the Roman Catholic bishops in Connecticut are circulating a letter to be read in each of the parishes in their dioceses this weekend. The letter relates the Church's teachings on the death penalty and emphasizes that the Church teaches that Catholics must respect all human life, even that of murderers. The letter is also meant to encourage parishioners to sign an upcoming petition that calls on the state legislature to abolish the death penalty.

The attached article discusses the bishops' letters as well as religious reactions to the death penalty in general. There was one quote that stuck out to me in particular. It came from a Rev. Allie Perry regarding Michael Ross: "'These are horrific crimes. It's human to feel angry and to call for revenge and retaliation,' she said. 'But if retaliation and retribution is the basis of law, then we become that which we abhor.'" (emphasis added). I encourage you to read the article. As always I tried to provide a link to a page that does not require a login.

Catholics will be urged to oppose death penalty for Ross

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