Capital Defense Weekly, January 13, 2003
Two cases are covered as "Hot" this week, both delve into the byzantine world of habeas corpus jurisprudence and the death penalty.
Following remand from the Supreme Court a Third Circuit panel upholds its prior grant of relief inBanks v. Horn. The Supreme Court had remanded in previously instructing the Court of Appeals to analyze the applicability of "Teague" to Mills v. Maryland. On remand from the Supreme Court the panel holds that Mills did not announce a new rule of constitutional law for retroactivity purposes. Of interesting note is Judge Sloviter's concurring opinion that would hold, in at least some limited instances, that the time from which "Teague" analysis is made is the most recent state supreme court opinion.
The Fourth Circuit inRouse v Leeremands on the issue of equitable tolling. Examining when, if at all, equitable tolling is applicable theRouseCourt, over dissent, holds that equitable tolling may be used where the Petitioner is one day out of time due to a putative misunderstanding of state and federal procedural rules, has a potential meritorious claim (juror bias), and the penalty is death. The dissent notes that prior Fourth Circuit precedent seemingly does not permit equitable tolling.
The United States Supreme Court has delivered another loss this week inSattazahn v. Pennsylvania. In a very narrow opinion the Court holds 5-4 that double jeopardy does not bar a sentence of death under Pennsylvania law following a successful appeal as to guilt where the original jury deadlocked as to sentence.
As the repercussions of Governor Ryan's blanket commutations continue to reverberate, the law and politics of clemency are at note in this week's Focus section.The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?, 81 Or. L. Rev. 231 (2002), by Beau Breslin and John J.P. Howley from the recent "Wayne Morse Center for Law and Politics Symposium:
The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?" examines the history and law of clemency. A
small "taste" of that article is noted this week.
Finally, as noted last week, this edition kicks off a tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:
*PCI from the face of the decision a possible claim of actual innocence appears possible.
*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.
*RC from the face of the decision questions about the interplay of race is made.
EXECUTION INFORMATION
Since the last edition the following people have been executed in the United States:
January
14 Samuel Gallamore Texas
15 John Baltazar Texas
16 Daniel Revilla Oklahoma
The following executions dates for the next few weeks that are considered serious:*
January
22 Robert Lookingbill Texas
23 Elkie Taylor Texas
24 Henry Hunt North Carolina
28 Alva Curry Texas
29 Richard Dinkins Texas
30 Granville Riddle Texas
February
4 John Elliott Texas (British National)
5 Kenneth Kenley Missouri
6 Henry Dunn Texas
12 Richard Fox Ohio
13 Bobby Joe Fields Oklahoma
18 Gregory Van Alstyne Texas
25 Richard Williams Texas
26 Michael Johnson Texas
HOT LIST
Banks v. Horn, 2003 U.S. App. LEXIS 525 (3rd Cir 1/14/2003) On remand from the Supreme Court panel holds that Mills did not announce a new rule of constitutional law for retroactivity purposes, and thus that our analysis and resolution of Bank's Mills claims was proper. In concurrence, Judge Sloviter, adopts an intriguing view as to the applicability of Teague worthy of highlighting:
Notwithstanding my view that Mills created a new rule under Teague that does not fall within either of the Teague exceptions, I believe that Teague does not apply in the special circumstances under which the Pennsylvania Supreme Court reviewed Banks' post-conviction petition. I note initially that in its opinion remanding to this court, the Supreme Court focused only on our failure to analyze the Teague issue and did not reach the merits of our holding in Banks I "that the Pennsylvania Supreme Court ruling involved an unreasonable application of Mills ." Banks v. Horn, 271 F.3d 527, 545 (3d Cir. 2001). There would be no basis therefore to assume that the Court rejected that holding. But in light of my conclusion that Mills established a new rule, it is incumbent on me to explain why I believe we are free to apply Mills retroactively to Banks' case. The explanation lies in Pennsylvania's unique relaxed waiver rule in effect at the time of Banks' state post-conviction proceedings.
Banks' 1983 conviction of first degree murder and related crimes was affirmed by [*79] the Pennsylvania Supreme Court on direct appeal in 1987. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (Pa.), cert. denied, 484 U.S. 873, 98 L. Ed. 2d 162, 108 S. Ct. 211 (1987). When Banks appealed the trial court's 1993 denial of his petition for post-conviction relief to the Pennsylvania Supreme Court, he asserted, among other claims, that the jury instructions, jury poll and verdict slip violated Mills (decided after Banks' direct appeal was completed) by suggesting that the jury's findings as to mitigating circumstances must be unanimous. The Commonwealth argued that all of the issues raised in the post-conviction petition were waived because Banks failed to raise them on direct appeal. The Pennsylvania Supreme Court agreed that some of the issues could have been raised on direct appeal and thus could be deemed waived under the Post Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-46 ("PCRA"), but stated that it would "address all of Appellant's claims since the trial court addressed all of those claims and since it is this Court's practice to address all issues arising in a death penalty case irrespective of a finding of waiver." Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 470 n.7 (Pa. 1995). [*80] The first issue it addressed was Banks' claim that the jury instruction, jury poll and the verdict slip violated the Supreme Court's mandate in Mills.
The Pennsylvania Supreme Court considered the Mills claim on the merits. This was the first time it did so. It reviewed the jury instruction and found that it had determined in another case that the instruction, "which mirrors the language found in the death penalty statute of [the Pennsylvania] Sentencing Code," did not violate Mills. 656 A.2d at 470. It similarly held that the form of the verdict slip did not violate Mills, and that the answers provided by the jurors during the poll did not suggest that they believed unanimity was required in finding mitigating circumstances. Id.
A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. Caspari, 510 U.S. at 390; Kapral v. United States, 166 F.3d 565, 572 (3d Cir. 1999). Although Banks' direct appeal technically had been exhausted, the [*81] Pennsylvania Supreme Court treated his petition for collateral relief like a direct appeal by considering his Mills claim on the merits. Because the Pennsylvania Supreme Court applied the relaxed waiver doctrine, Banks' conviction was not final within the meaning of Teague until the Pennsylvania Supreme Court affirmed the denial of his PCRA petition and his petition for a writ of certiorari was denied.
The Teague rule stems in large part from the desire to accord comity to decisions of the state courts, which, in their review of the case, did not have the opportunity to analyze the effect of a subsequent Supreme Court decision. The rationale for the comity principle has been articulated most forcefully in the cases dealing with the exhaustion doctrine. More than a century ago, in Ex parte Royall, 117 U.S. 241, 251, 29 L. Ed. 868, 6 S. Ct. 734 (1886), the Supreme Court wrote that as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act.
After Congress' 1948 codification of the exhaustion doctrine at 28 U.S.C. § 2254, the Supreme Court in Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), [*82] analyzed the policies underlying the statute as follows:
The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. [citation omitted]. Under our federal system, the federal and state 'courts [are] equally bound to guard and protect rights secured by the Constitution.' [citation omitted]. Because 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' federal courts apply the doctrine of comity, which 'teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' [citations omitted].
Id. at 518 (emphasis added).
More recently, in O'Sullivan v. Boerckel, 526 U.S. 838, 845, 144 L. Ed. 2d 1, 119 S. Ct. 1728 (1999), where the Court held that a state prisoner must present his claims to a state supreme court in a petition [*83] for discretionary review in order to satisfy the exhaustion requirement, the Court explained that the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. It further stated, citing Rose,
State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. [citations omitted]. This rule of comity reduces friction between the state and federal court systems by avoiding the 'unseemliness' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance. [citations omitted].
Id. at 844-45. See also Duncan v. Walker, 533 U.S. 167, 178-79, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (2001) (recognizing principle of comity set forth in O'Sullivan and Rose). We also have recognized the [*84] same rationale. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000), cert. denied, 532 U.S. 980, 149 L. Ed. 2d 483, 121 S. Ct. 1621 (2001).
In this case, because of the application of Pennsylvania's unique relaxed waiver doctrine in capital cases, the Pennsylvania Supreme Court not only had the first opportunity to review Banks' jury instructions, verdict slip, and jury poll in light of Mills, but exercised that opportunity. It thus treated that claim as on direct appeal and there is no reason why, even though Mills announced a new rule, the Pennsylvania Supreme Court's resolution of that issue should not be cognizable on federal habeas review. I adhere to the majority's judgment in our decision filed October 31, 2001 that the Pennsylvania Supreme Court's ruling denying Banks' claim under Mills was unreasonable. Therefore, I concur in its judgment today. n3
Rouse v Lee, 2003 U.S. App. LEXIS 145 (4th Cir 1/7/2003) (dissent) (*RC) Remand ordered as equitable tolling (one day) held applicable under the exceptional facts of the case.
[In] determining whether to exercise its equitable power to toll the statute of limitations here, the district court was required [*19] under Harris to consider the particular "facts and circumstances" of Rouse's case. They are compelling. Rouse filed his petition only one day late. n5 Cf. Spencer, 239 F.3d at 631 (five days late); Harris, 209 F.3d at 328 (six months late). Although the petition was late, his counsel's disastrous error rested on plausible, albeit incorrect, legal theories, some of which have since been clarified. See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) (noting lack of clarity in the relevant law and plausibility of a petitioner's legal theory in equitably tolling the AEDPA), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L. Ed. 2d 241 (2001). Moreover, Rouse has never received a hearing on his habeas claims, in any forum -- state or federal. Cf. Spencer, 239 F.3d at 627-28 (two evidentiary hearings in state court); Brief for Appellant in Harris, 209 F.3d 325, at 3 (evidentiary hearing in state court). Without equitable tolling, he will lose any hope of receiving such a hearing and will be afforded no federal habeas review at all.
Furthermore, Rouse presents what must be considered on its face a powerful constitutional claim: that a juror's personal vengeance and racial bias infected his death sentence. To date, he has never received, even post-sentence, any opportunity to explore at a hearing -- before any court -- the evidence that one of his jurors harbored an invidious prejudice against African-Americans, the evidence as to the potential effect of the sexual assault and murder of the juror's mother on his impartiality, or the evidence that in fact the juror concealed active bias -- all matters that may require credibility determinations. If proved, these facts support a strong constitutional claim. See Morgan v. Illinois, 504 U.S. 719, 728, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992) (reviewing the "strictures dictated by the Sixth and Fourteenth Amendments to ensure the impartiality of any jury that will undertake capital sentencing" (emphasis omitted)); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984); Rosales-Lopez v. United States, 451 U.S. 182, 190-91, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981); Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). [*21] To be sure, the State presented sufficient evidence to prove Rouse guilty of these terrible crimes, and a federal court might conclude that Rouse's habeas claims, including his juror bias claim, lack merit even with respect to his sentencing -- but at present, no federal court has ever examined any of his habeas claims. n6
Moreover, the sentence that is assertedly tainted by racial and personal bias is a death sentence. Until today, we have not had occasion to consider equitable tolling in a habeas case involving a sentence of death. Cf. Spencer, 239 F.3d at 627 (life sentence); Harris, 209 F.3d at 326 (same). We have, however, implicitly recognized that the presence of a death sentence affects the equitable tolling analysis. Thus, in holding that equitable tolling is proper under the AEDPA, we have cited, with approval, the statement that although in some contexts, strict limitations rules may have to yield "occasional injustices" "in order to maintain a workable regime," these "occasional injustices . . . are decidedly not an acceptable cost of doing business in death penalty cases." Harris, 209 F.3d at 329 (citing Calderon v. United States Dist. Court for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 n.4 (9th Cir. 1997) (internal quotation marks and citations omitted; emphasis added), overruled on other grounds, 163 F.3d 530 (9th Cir. 1998) (en banc)). n7
The fact is that death is different. The phrase itself is timeworn and familiar -- because it is true. Like the Supreme Court, we must recognize that "in its finality," death "differs more from life imprisonment than a 100-year prison term differs from one of only a year or two." Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (plurality opinion). For this reason, the death penalty presents different and far more serious concerns than any other sanction. See, e.g., Ring v. Arizona, 153 L. Ed. 2d 556, 122 S. Ct. 2428, 2441 (2002) ("There is no doubt that 'death is different.'" (citation omitted)); Gardner v. Florida, 430 U.S. 349, 357, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977) (stating that "death is a different kind of punishment") (opinion of Stevens, Stewart, and Powell, JJ.); see also Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir. 2002) (en banc) ("We are again mindful that death is indeed different."), cert. denied, 154 L. Ed. 2d 161, 123 S. Ct. 169 (2002). In short, the conclusion "that 'death is different' . . . means that the firm view of our society demands [*24] that it be treated differently in certain identifiable respects. . . ." Thompson v. Oklahoma, 487 U.S. 815, 877-78, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988) (Scalia, J., dissenting).
The Supreme Court has emphasized that courts, at all levels, considering the deliberate infliction of death are to act with particular care. The Court has insisted that "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination," that is, "the procedure by which the State imposes the death sentence," to "ensure that the death penalty is not meted out arbitrarily or capriciously." California v. Ramos, 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983) (emphasis in original); accord Harmelin v. Michigan, 501 U.S. 957, 995, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991); Caldwell v. Mississippi, 472 U.S. 320, 329, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985); see also Bracy, 286 F.3d at 412 ("Like all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death [*25] sentence because, as the Supreme Court has often recognized, death is different." (citation omitted)).
Indeed, the Supreme Court itself has been willing "in the interests of justice" to overlook requirements that it would ordinarily impose in non-capital cases. Eddings v. Oklahoma, 455 U.S. 104, 117, 71 L. Ed. 2d 1, 102 S. Ct. 869 n. * (1982) (O'Connor, J., concurring) (quoting Wood v. Georgia, 450 U.S. 261, 265 n.5, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981)). For example, the Court has treated the requirement that an argument be raised below, ordinarily a prerequisite for appellate review, as merely "technical [ ]." Id. (O'Connor, J., concurring in the Court's reversal of a death sentence, despite a dissenting argument that the contention had been waived below, "because the trial court's failure . . . risks erroneous imposition of the death sentence") (citation omitted); see id. at 105, 113 n.9 (majority opinion) (reversing a death sentence while citing Wood, 450 U.S. at 265 n.5 (overlooking failure to raise an argument below "in the interests of justice"), in partial response to the dissenting argument of waiver below); [*26] see also Dobbs v. Zant, 506 U.S. 357, 360, 122 L. Ed. 2d 103, 113 S. Ct. 835 (1993) (Scalia, J., concurring) ("I am willing to make an exception from that [previously stated 'general' internal] rule in capital cases -- but only where there is a realistic likelihood that the 'technical error' affected the conviction or the sentence." (emphasis added)). Confronting the particular demands of capital cases, the Supreme Court "has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Eddings, 455 U.S. at 118 (O'Connor, J., concurring).
We look to the Court's example today. Like the Supreme Court, we acknowledge the special demands of cases in which a defendant stands sentenced to death. Given that this case, in which Rouse faces execution, involves the shortest possible delay in filing the habeas petition, a total lack of prejudice to the State, a petitioner who was diligent in all other regards, and habeas claims, including at least one apparently compelling constitutional [*27] claim, that will receive no federal habeas review and no hearing in any court if the limitations period is not tolled, we conclude that the district court's refusal to toll the limitations period was indeed "unconscionable." Harris, 209 F.3d at 330. If ever a case was suitable for an exercise of a court's discretion -- the most minor exercise imaginable, a one-day tolling of a limitations period -- surely, this is that case.
In reaching this conclusion, we have considered the limited impact of such a decision, both on our system of justice as a whole, and within this circuit. A number of systemic and legal concerns that are often at the heart of habeas jurisprudence on the merits have no relevance to equitable tolling. In particular, equitable tolling raises none of the concerns related to constitutional interpretation that are sometimes invoked in opposition to a "'death-is-different' jurisprudence," Shafer v. South Carolina, 532 U.S. 36, 55, 149 L. Ed. 2d 178, 121 S. Ct. 1263 (2001) (Scalia, J., dissenting); see Simmons v. South Carolina, 512 U.S. 154, 178-79, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994) (Scalia, J., joined by Thomas, [*28] J., dissenting), and it does not in any way affect the "'standard of review on federal habeas corpus,'" because AEDPA's stringent standards of review of course still apply. Herrera v. Collins, 506 U.S. 390, 405, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993) (quoting Murray v. Giarratano, 492 U.S. 1, 9, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989) (plurality opinion)); see 28 U.S.C.A. § 2254(d), (e) (West Supp. 2002). Similarly, equitable tolling of this federal deadline poses no threat of intrusion on a state's enforcement of its own procedural rules, cf. Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), on a state's legislative choices, cf. Murray, 492 U.S. at 13-15 (O'Connor, J., concurring, and Kennedy, J., concurring in the judgment), or on the prerogatives of the executive branch. Cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276, 284-85, 140 L. Ed. 2d 387, 118 S. Ct. 1244 (1998) (plurality opinion).
Nor do we see any cause to fear that within our own circuit, equitable tolling in Rouse's case might "loose the rule of law to whims about the [*29] adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris, 209 F.3d at 330. Of course, all non-capital petitions continue to be governed by Harris. Even in capital cases, the effect of tolling in this case will be slight, for several reasons.
Before or after a holding that limitations should be tolled in Rouse's case, a deliberate decision to file late -- to gamble any chance of federal review of a capital petitioner's habeas claims in hopes that equity would slightly extend the deadline -- would constitute recklessness of a nature and a magnitude that we decline to impute to our Bar. Thus, the limited precedent established by tolling in this case creates little incentive for habeas petitioners to file after the deadline. Furthermore, even if this were attempted, equitable tolling is "a discretionary doctrine that turns on the facts and circumstances of a particular case," id. at 330 (internal quotation marks and citation omitted), and application of the doctrine will continue to depend on a court's confidence that "there is no evidence of abuse of the process." See Fahy, 240 F.3d at 245. [*30] Most importantly, the strength of the claims in a habeas petition obviously affects a court's decision to exercise its equitable power to toll limitations, and few petitioners present claims as facially compelling as Rouse's. See Lonchar v. Thomas, 517 U.S. 314, 320, 322, 325, 134 L. Ed. 2d 440, 116 S. Ct. 1293 (1996) (emphasizing the distinction between habeas claims suitable for summary dismissal and those warranting more attention in reversing a lower court's employment of "special ad hoc 'equitable' reasons not encompassed within the framework" of the Habeas Corpus Rules to bar all consideration of a first federal capital habeas petition); cf. Spencer, 239 F.3d at 630 n.2 (suggesting that petitioner's underlying habeas claim was weak when determining whether district court's tolling decision was correct). Because this is Rouse's first federal habeas petition, moreover, a court must exercise great care before allowing it to be summarily dismissed. See Lonchar, 517 U.S. at 324 ("Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great [*31] Writ entirely, risking injury to an important interest in human liberty." (emphasis in original)). Of course, in this case as in any other, the district court on remand remains free to dispose promptly of any claim that it determines lacks merit.
We note that other courts have tolled the AEDPA limitations period in cases involving more egregious delay. In a capital case involving a petition that was thirty-five days late due to attorney error in interpreting debatable procedural provisions, the Third Circuit tolled the precise statute at issue here. See Fahy, 240 F.3d at 245; accord Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir. 2001), rev'd on other grounds, 536 U.S. 266, 122 S. Ct. 2147, 153 L. Ed. 2d 301 (2002) (applying equitable tolling in a capital case involving a petitioner convicted of murdering thirteen people). The court reasoned that a court "must allow less than 'extraordinary' circumstances to trigger equitable tolling of the AEDPA's statute of limitations when a [capital] petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair." Id.; see also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) [*32] (tolling AEDPA's statute of limitations despite a procedural defect and listing cases); Lagrone v. Cockrell, 2002 U.S. Dist. LEXIS 15456, 2002 WL 1968246, at *8-9 (N.D. Tex. Aug. 19, 2002); DeJesus v. Miller, 215 F. Supp. 2d 410, 412 (S.D.N.Y. Aug. 13, 2002). Like the Third Circuit, we believe it is appropriate that a court toll limitations "under the facts of this capital case where there is no evidence of abuse of the process." Fahy, 240 F.3d at 245; accord Banks, 271 F.3d at 535. In view of the facts and circumstances of this capital case, including the brevity of the delay and the apparently compelling nature of an underlying constitutional claim, to do otherwise would be "unconscionable" and might well result in "gross injustice." Harris, 209 F.3d at 330.
SUPREME COURT
Sattazahn v. Pennsylvania, 71 U.S.L.W. --- (1/14/2003) In a very narrow opinion, Court holds 5-4 that double jeopardy does not bar a sentence of death under Pennsylvania law following a successful appeal as to guilt where the original jury deadlocked as to sentence.
Under Pennsylvania law, (1) the verdict in the penalty phase of capital proceedings must be death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance or one or more aggravating circumstances outweighing any mitigating circumstances, but it must be life imprisonment in all other instances; and (2) the court may discharge a jury if it determines that the jury will not unanimously agree on the sentence, but the court must then enter a life sentence. When petitioner's penalty-phase jury reported to the trial judge that it was hopelessly deadlocked 9-to-3 for life imprisonment, the court discharged the jury and entered a life sentence. On appeal, the Pennsylvania Superior Court reversed petitioner's first-degree murder conviction and remanded for a new trial. At the second trial, Pennsylvania again sought the death penalty and the jury again convicted petitioner, but this time the jury imposed a death sentence. In affirming, the Pennsylvania Supreme Court found that neither the Fifth Amendment's Double Jeopardy Clause nor the Fourteenth Amendment's Due Process Clause barred Pennsylvania from seeking the death penalty at the retrial.
Held:
1. There was no double-jeopardy bar to Pennsylvania's seeking the death penalty on retrial. Pp. 4-8, 11-13.
(a) Where, as here, a defendant who is convicted of murder and sentenced to life imprisonment succeeds in having the conviction set aside on appeal, jeopardy has not terminated, so that a life sentence imposed in connection with the initial conviction raises no double-jeopardy bar to a death sentence on retrial. Stroud v. United States, 251 U. S. 15. While, in the line of cases commencing with Bullington v. Missouri, 451 U. S. 430, this Court has found that the Double Jeopardy Clause applies to capital-sentencing proceedings that "have the hallmarks of the trial on guilt or innocence," id., at 439, the relevant inquiry in that context is not whether the defendant received a life sentence the first time around, but whether a first life sentence was an "acquittal" based on findings sufficient to establish legal entitlement to the life sentence--i.e., findings that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt, Arizona v. Rumsey, 467 U. S. 203, 211. Pp. 4-7.
(b) Double-jeopardy protections were not triggered when the jury deadlocked at petitioner's first sentencing proceeding and the court prescribed a life sentence pursuant to Pennsylvania law. The jury in that first proceeding was deadlocked and made no findings with respect to the alleged aggravating circumstance. That result, or nonresult, cannot fairly be called an acquittal, based on findings sufficient to establish legal entitlement to a life sentence. Neither was the entry of a life sentence by the judge an "acquittal." Under Pennsylvania's scheme, a judge has no discretion to fashion a sentence once he finds the jury is deadlocked, and he makes no findings and resolves no factual matters. The Pennsylvania Supreme Court also made no finding that the Pennsylvania Legislature intended the statutorily required entry of a life sentence to create an "entitlement" even without an "acquittal." Pp. 7-8.
(c) Dictum in United States v. Scott, 437 U. S. 82, 92, does not support the proposition that double jeopardy bars retrial when a defendant's case has been fully tried and the court on its own motion enters a life sentence. The mere prospect of a second capital-sentencing proceeding does not implicate the perils against which the Double Jeopardy Clause seeks to protect. Pp. 11-13.
2. The Due Process Clause also did not bar Pennsylvania from seeking the death penalty at the retrial. Nothing in §1 of the Fourteenth Amendment indicates that any "life" or "liberty" interest that Pennsylvania law may have given petitioner in the first proceeding's life sentence was somehow immutable, and he was "deprived" of any such interest only by operation of the "process" he invoked to invalidate the underlying first-degree murder conviction. This Court declines to hold that the Due Process Clause provides greater double-jeopardy protection than does the Double Jeopardy Clause. Pp. 13-15.
563 Pa. 533, 763 A. 2d 359, affirmed.
Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and V, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Part III, in which Rehnquist, C. J., and Thomas, J., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.
Woodford v. Garceau, No. 01-1862, will be argued on January 21st. (Court below: 275 F.3d 769 (9th Cir. 2001), Willamette Law Online, a service of Willamette University College of Law notes the following for this oral argument:
The issue is this case is what events prompt application of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Garceau was convicted of two murders and sentenced to death. He appealed. The California Supreme Court discarded his writ of habeas corpus, upheld the case, and held the “other crimes” jury instruction was not a detrimental error. At Garceau’s request on May 12, 1995, an attorney was appointed so he could petition for habeas corpus at the federal level. The AEDPA took effect on April 26, 1996 and on July 2, 1996 Garceau’s federal habeas petition was filed. The district court denied Garceau’s petition, however, the United States Court of Appeals for the Ninth Circuit reversed, holding Garceau's petition was “pending” on the AEDPA’s effective date. Thus, the AEDPA did not apply. Woodford argues the “trigger[ing] event” for the AEDPA’s application is the date the writ of habeas corpus was filed based on the plain meaning of “pending,” thereby making the AEDPA applicable to Garceau’s petition.
CAPITAL CASES(Favorable Disposition)
See above
CAPITAL CASES(Unfavorable Disposition)
Thompson v. Bell, 2003 U.S. App. LEXIS 241;2003 FED App. 0006P (6th Cir. 1/9/2003) (dissent) Three judge panel with three separate opinions, holding,
"claims that his trial counsel was constitutionally ineffective in presenting mitigating factors at his sentencing because his counsel did not present appropriate psychological evidence of his mental condition.. . . [the Court] cannot conclude that Thompson's trial counsel was constitutionally ineffective in [using an industrial psychologists] in this case because Thompson has presented no evidence that his counsel knew or should have known either that Thompson was mentally ill or that his mental condition was deteriorating at the time of his trial or at the time of his crime"
Bramblett v. True, 2003 U.S. App. LEXIS 220 (4th Cir 1/8/2003)(unpublished) (*CI) Relief denied on claims relating to competency to stand trial, failure to retain a ballistics expert, failure to object to certain evidence, failure to use a mental health expert, defaulted claims relating to prosecutorial suppression of exculpatory evidence, defaulted claims of prosecutorial knowing use of perjured testimony, and a defaulted Massiah claim.
Even if counsel were ineffective for failing to present further evidence regarding Bramblett's mental illness, there is no reasonable probability that Bramblett suffered prejudice. Here, "further evidence" would have consisted of testimony from Dr. Nelson regarding Bramblett's delusions of persecution. Such testimony, we know from Nelson's testimony at the competency hearing, would have included statements that delusions are very firmly held even in the face of rational evidence to the contrary, see J.A. 139 ("You can argue until you are blue in the face and these [delusional] people will not change their minds."); that "delusional disorder is a hard [*28] disorder to treat," id. at 155; and that new people could be incorporated into the delusion, see id. at 170. The danger in allowing such evidence to be presented to a capital sentencing jury considering the issue of the defendant's future dangerousness is obvious. As the Seventh Circuit has explained, "jurors may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that, when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate." Burris v. Parke, 116 F.3d 256, 260 (7th Cir. 1997); see Penry v. Lynaugh, 492 U.S. 302, 324, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) (characterizing evidence of mental retardation as "a two-edged sword" that "may diminish [the defendant's] blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future").
Daniels v. Lee, 2003 U.S. App. LEXIS 333 (4th Cir 1/10/2003) Relief denied on claims relating to (A) the prosecution improperly referred to the Bible and incorrectly advised the jury that it would not be the ultimate decision maker on a death sentence (the "Closing Argument claim"); (B) deprivation of both his right to call a material witness during the guilt phase and his right to self-representation; (C) awareness of his right to testify in the trial's sentencing phase and that he received ineffective assistance of counsel regarding his right to testify; (D) that the indictment failed to make the allegations necessary for either the first degree murder conviction or the death sentence; and (5) that the State, in the sentencing phase, presented false testimony through Dr. White.
Hubbard v. Haley, 2003 U.S. App. LEXIS 130 (11th Cir 1/7/2003)(unpublished) Relief denied on claims relating to the suppression of an inculpatory statement "due to appellant's "biologically coercive state" - the combined effect of his alcoholism and low I.Q;" trial court error at retrial in admitting as an aggravating circumstance a 1957 second degree murder conviction due to Sixth Amendment problems with that conviction; as well as IAC for failing to proffer in suppression of the above statement "(1) expert testimony establishing that he was likely suffering from delirium tremens when he made the statement and (2) the records of his in-patient treatment at Bryce Hospital describing his alcoholism and low I.Q. Addtionally, IAC claims are had for (A) failing to object to the admission of the Marcum statement on the ground that Marcum's conduct in giving him a drink of whiskey, so he could sign the statement, denied him due process of law; (B) to the court's instruction to the jury on the element of malice; (C) failing to object to the prosecutor's comments in closing argument in the penalty phase; (D) failing to introduce mitigating evidence, including expert testimony of the effects of his alcoholism.
Lynch v. Florida, 2003 Fla. LEXIS 4 (FL 1/9/2003) "On appeal, Lynch argues that the trial court erred in finding the aggravating factor of HAC as to the murder of Caday and the aggravating factor of CCP as to the murder of Morgan. He also asserts that the trial court's sentencing order is unclear as to the findings of the mental health mitigators, and therefore this Court must either construe them as statutory mitigators or remand to the trial court for clarification. Finally, he contends that his death sentence is disproportionate and Florida's death penalty is unconstitutional on its face and as applied."
Spencer v. Florida, 2003 Fla. LEXIS 18 (FL 1/16/2003) "Spencer claims that: (1) he was denied a fair trial by various instances of prosecutorial misconduct; (2) trial counsel rendered ineffective assistance during the guilt phase of the trial; (3) trial counsel rendered ineffective assistance during the penalty phase of the trial; (4) the State committed a Brady n2 violation by failing to disclose that a reserve deputy sheriff assisted in the investigation of Spencer's first attack on the victim; (5) pretrial publicity and improper contact between protesters and the jurors resulted in juror bias; (6) trial counsel rendered ineffective assistance during voir dire questioning of the prospective jurors; (7) the postconviction court should have granted an evidentiary hearing on several other claims of ineffective assistance of trial counsel during the penalty phase; (8) the State committed several Giglio n3 violations by either presenting false evidence or by misrepresenting the evidence during argument to the jury; (9) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits trial counsel from interviewing jurors, denied him adequate assistance of counsel in pursuing postconviction relief; and (10) cumulative errors resulted in an unfair proceeding."
Lucas v. Florida, 2003 Fla. LEXIS 5 (FL 1/9/2003) Relief denied on claims that trial counsel, in this procedurally complex case, was ineffective "failing to determine the particular drug, aside from alcohol and marijuana, Lucas ingested on the day of the crime, and for failing to present evidence of the effect that drug had on him at the time the crime was committed" as well as "for failing to show, through testimony from expert crime scene analysts, that [the decedent] was neither beaten nor dragged."
NOTABLE NONCAPITAL CASES
Patterson v. Haskins, 2003 U.S. App. LEXIS 529; 2003 FED App. 0020P (6th Cir.) Trial court erred in setting forth the instructions for involuntary manslaughter based on child endangering
FOCUS
As the reprecussions of Governor Ryan's blanket commutations continue to reverberate, the politics of clemency are at note in this week's Focus section.The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?, 81 Or. L. Rev. 231 (2002), by Beau Breslin and John J.P. Howley from the recent "Wayne Morse Center for Law and Politics Symposium:
The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?" examines the history and law of clemency. A small "taste" of that article is noted this week.
Witnessing the sharp decline in the incidence of clemency, many death penalty opponents are beginning to criticize the entire process as broken. They invariably claim that complacent courts now hide behind the myth of super due process and the “safety” of executive clemency, while governors cower under the pressure of public sentiment. Scholars note with thinly veiled criticism the passage byChief Justice Rehnquist in Herrera v. Collins [FN28] that “clemency has provided a ‘failsafe’ in our criminal justice system and is ‘exercised frequently”‘ [FN29] when suggesting that courts are out of touch with reality. Clemency, they assert, is neither a safeguard against miscarriages of justice nor a frequently used executive power. What is more, the character of this criticism has taken on a decidedly legalistic tone. Daniel Kobil, one of the leading clemency scholars, recently remarked that a denial of clemency to an individual who “may have been set up” and who “had a sad story to tell” represents a “malfunctioning of the justice system.” [FN30] In a recent article, Elizabeth Rapaport also framed the process of executive clemency in primarily judicial terms. She insists that “grants of clemency are vulnerable to the charge that the executive has failed to treat like cases alike and are at least morally unjust because equally worthy inmates have been denied.” [FN31]
The result of this frustration is a burgeoning reform movement. Aided in no small part by the position of two Supreme Court Justices, [FN32] a number of notable scholars are now endorsing various proposals that would align the clemency decision with more traditional principles of due process. [FN33] In fact, there are *241 two distinct strands emerging from the argument that the clemency process now requires greater objectivity. One strand suggests that like cases should be treated alike, that they should be reviewed, at least during the initial stages, by the governor in an impartial and nonpolitical way, much as the judiciary considers cases through a largely objective prism. The idea is that the current state of executive clemency, as a standardless, independent, unreviewable grant of mercy, seems incongruous with an understanding of fairness, modeled after our judicial system, that seeks to maximize the principle of impartiality. Governors are not acting dispassionately; their decisions are therefore hypocritical when they are not informed by, say, prior grants of clemency or by contemporary notions of mercy.
The argument from this set of scholars seems to be that resolving the incongruity between the politics of clemency and the objectivity of justice will result in a more transparent clemency system, and a more transparent system will force governors to commute death sentences with greater frequency. The tone of three leading authorities--Michael Korengold, Todd Noteboom and Sara Gurwitch--is typical. They argue:
Any attempt to reform and improve the clemency system must target and remove [the] controlling political element. By the nature of their offices, the governor and the pardon board are politically accountable. It is immaterial what procedural safeguards are put in place, if in the end these politically accountable actors must react to fluctuating public opinion. In an attempt to deal with the current state of capital punishment in the United States, a strong departure from the current clemency procedures must be implicated. [FN34]
A second strand of the debate highlights the deregulation of the clemency process. As the leading spokespersons promoting this particular line of thinking, Victoria Palacios and Daniel Kobil want to minimize the political nature of clemency appeals by downplaying the role of elected officials in the decisionmaking process. Palacios contends that the Supreme Court has abdicated its responsibility to scrutinize death penalty appeals because of the perception that the clemency process will somehow catch any mistake in the administration of justice. [FN35] She insists *242 that the Court is relying far too much on the clemency process to perform a duty--the review of death sentences--that is more properly handled by the independent judiciary. Her argument follows a rational progression. She first asserts that death penalty convictions are often “unreliable” insofar as the system produces “wrongful convictions” and the “maldistribution” of sentences. [FN36] Logically, therefore, she insists that the Court should properly examine these injustices. And yet, the Court has recently adopted a disturbing stance based on the principle that “super due process,” the underlying aspiration for all death penalty cases, will virtually “eliminate all error” and that mistakes that do escape the scrutiny of the lower courts will be fixed by the clemency process. Hence the Supreme Court can take, and has taken, a relaxed approach to death penalty appeals. After inspecting a real clemency petition, Palacios concludes that the reliability of the clemency process is dubious at best. It does not provide a safety net for those on death row. Her solution? “Revive” the clemency process by isolating it almost completely from the mechanisms of politics. [FN37] Establish citizen-boards that do not respond to political pressures in the same way elected officials do, and give those institutions the power to commute sentences. In short, create quasi-judicial bodies to carry out the difficult task of deciding who is worthy of clemency.
III Ohio Adult Parole Authority v. Woodard [FN38]
Both strands of the argument in favor of greater objectivity have been buoyed recently by the Supreme Court’s decision in Ohio Adult Parole Authority v. Woodard. Indeed, the case marks the first time the Court has squarely addressed the issue of whether the Due Process Clause of the Fourteenth Amendment applies to capital clemency proceedings. [FN39] Woodard, a convicted capital murderer, exhausted all of his available legal remedies and was thus entitled to a “thorough investigation” by the Ohio *243 Adult Parole Authority, as well as a clemency hearing prior to his scheduled execution. Pursuant to the Ohio constitution and statutory law, the Ohio Adult Parole Authority was further required to “advise the prisoner that he is entitled to a pre-hearing interview with one or more parole board members,” [FN40] but that the hearing and interview would be conducted without the assistance of counsel. In accordance with these stipulations, the state scheduled Woodard’s interview with a member of the board for September 9, 1994; his hearing before the entire parole board was scheduled for a week later.
Troubled by certain demands of the Ohio clemency statute, Woodard raised two constitutional challenges: one based on the Fourteenth Amendment Due Process Clause and a second that specifically implicated the Fifth Amendment’s protection against self-incrimination. [FN41] Woodard argued that because “there is a life interest in clemency broader in scope than the ‘original’ life interest adjudicated at trial and sentencing,” the clemency process must adhere to the general rules of due process. He insisted that the death sentence did not alter his right under the Fourteenth Amendment and that, if anything, his current status as a death row inmate only exacerbated his need for constitutional protection. For example, he insisted that an attorney be present during the clemency interview and the subsequent parole board hearing because, he claimed, the assistance of counsel during all parts of the trial and appeals process is mandated by the Due Process Clause. Similarly, Woodard maintained that the clemency proceedings jeopardized his freedom from self- incrimination; his only hope for commutation, he thought, lay in implicating himself.
A divided Court ultimately upheld parts of Woodard’s procedural argument, insisting that even though Connecticut Board of Pardons v. Dumschat, [FN42] the case in which the Court failed to recognize a liberty interest in executive clemency, governed the current proceeding, Dumschat could not be read so literally as to bar all due process challenges in death penalty cases. [FN43] Indeed, *244 Justices O’Connor and Stevens crafted separate concurring opinions that left open the possibility that a certain portion of the High Court (and perhaps a five-member majority) does view the clemency procedure as a seamless extension of the adjudicatory process. O’Connor remarks:
It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. . . . Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the state arbitrarily denied a prisoner any access to its clemency process. [FN44]
Justice O’Connor’s opinion implies that any state willing to put people to death must also adhere to “minimal procedural safeguards” when considering clemency. [FN45] In other words, there is a standard (governed by the Due Process Clause) by which all state executives involved in the clemency process must adhere. Justice Stevens agrees. Concluding that only “the most basic” elements of fair procedure are required, Stevens responds to those who claim clemency is not subject to constitutional scrutiny by insisting there are “equally valid reasons for concluding that [clemency] proceedings are not entirely exempt from judicial review.” [FN46] He writes:
“I think, for example, that no one would contend that a governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as *245 a standard for granting or denying clemency.” [FN47] What is more, he adopts much of Woodard’s primary argument that the accused’s interest in life is exacerbated by virtue of his particular sentence. Distinguishing Dumschat, he notes that the “interest in life at stake in this case warrants even greater protection than the interests in liberty [that are] at stake in [other] cases.” [FN48]
Together, the opinions of Justices O’Connor and Stevens in Woodard have emerged as a lightning rod for those advocating reform of the entire clemency system. Brian S. Clark notes that “the Supreme Court’s decision in Ohio Adult Parole Authority v. Woodard was long overdue,” and that states should presently adopt clemency procedures similar to those in Ohio. [FN49] Daniel Kobil is also visibly bolstered by the decision. The Woodard opinion is a component of what he refers to as a “tiny glimmer of hope” that, with modification, clemency can now reemerge as a more effective tool for abolitionists. [FN50] The Court has indicated that it will no longer ignore the most arbitrary and abusive procedural transgressions within the clemency scheme. Hence, Clarke, Kobil, Korengold and others assert that abolitionists should seize the opportunity to reform the system in accordance with contemporary notions of justice and fairness. Construct specific procedures (and institutions) that will negate or at least temper the subjectivity currently hampering clemency decisions and the result is a system that performs as it should, a system that protects the truly innocent and yet still has room for random acts of mercy. The clamor for greater impartiality in the clemency process logically emerges from this outlook.
OTHER RESOURCES
The Death Penalty Information Center (Deathpenaltyinfo.org) notes:
NEW VOICES: Texas Baptist Commission Calls for Moratorium
The Texas Baptist Christian Life Commission has joined the call for a moratorium on the death penalty. Declaring the state's capital punishment system "broken" and "unfair," the organization issued a capital punishment report examining the death penalty from biblical, historical and social justice perspectives. The report, which includes concerns about racial and socio-economic bias in how the death penalty is applied in Texas, concludes: "In the final analysis, biblical teaching does not support capital punishment as it is practiced in contemporary society." Moreover, the report stated, "The practice of capital punishment in our nation and state is an affront to biblical justice, both in terms of its impact on the marginalized in society and in terms of simple fairness." (Business Wire, January 13, 2002) For more information about the report, contact Becky Bridges or Kenneth Camp at the Baptist General Convention of Texas Communications Center (214-828-5229). See also, Additional Death Penalty and Religion Web Sites and New Voices.
$California Governor Seeks $220 Million Death Row Facility
As California lawmakers seek to overcome one of the largest budget deficits in the state's history, Governor Gray Davis has proposed building a $220 million state of the art death row complex at San Quentin prison. More than 600 death row inmates are currently housed in facilities throughout the state. The new facility would hold up to 1,000 death row inmates, leaving room for a significant growth in death row population. California averages more than 20 new death sentences per year, and it has carried out 10 executions since it reinstated capital punishment in 1977. (The New York Times, January 14, 2003) According to a report in the Sacramento Bee, the death penalty costs California $90 million annually beyond the ordinary costs of the justice system, which indicates that the state has spent more than $1 billion on the death penalty in the course of achieving these 10 executions. (Sacramento Bee, March 18, 1988). See Costs.
NEW VOICES: President of Illinois Prosecutors' Association Calls Death Penalty "Cruel Hoax"
John Piland, the chief prosecutor in Champaign County and president of the Illinois State's Attorneys Association, recently called the state's death penalty a "cruel hoax." Piland said that if a relative of his was killed, he would ask the prosecutor not to seek the death penalty. " In Illinois we can say that we have [the death penalty], but in fact I'm not sure it's fair to victims' families to suggest to them that it truly exists," Piland said. (New York Times, January 14, 2003). See New Voices.
NEW VOICES: Texas Legislation Challenges Fairness of State's Death Penalty
Last term, Houston Representative Harold V. Dutton Jr. sponsored legislation to impose a moratorium on executions to provide lawmakers with time to address the questions of fairness and innocence that taint the state's capital punishment laws. This year, Dutton has introduced a bill that would abolish Texas's death penalty. In a recent Dallas Morning News commentary, Dutton noted:
I listened to my constituents. In town hall meetings and in one-on-one conversations, my constituents were troubled by Texas' application of the death penalty. "We need to find out what is broken in our system," they would tell me.
. . .
Last session, other legislators also introduced moratorium proposals. At committee hearings, there was overwhelming support for a moratorium and the need for a study commission.
. . .
If we can't answer the first and simplest question correctly, "Is this person guilty?," how can we expect to answer the infinitely more difficult question correctly: "Is the death penalty the only appropriate punishment for this individual?" (Dallas Morning News, January 13, 2003)
See, New Voices and Innocence.
Editorials Commend Illinois's Governor, Call for Reconsideration of Death Penalty
Recent editorials appearing in The New York Times, USA Today, and The Washington Post praised Illinois Governor George Ryan's courage in addressing his state's flawed system of capital punishment (see below). The papers called for states around the nation to follow Ryan's lead and reconsider death penalty policies that have resulted in wrongful convictions and unfairness in death sentencing.
The New York Times noted:
We can only join in his (Governor Ryan's) hope that this sweeping, and almost shocking, gesture leads the rest of the country to reconsider whether America wants to continue to be in the business of state-sanctioned death.
. . .
The satisfaction of retribution that the death penalty supplies can never outweigh the danger of unfair or erroneous application as long as it exists. Virtually every country on the planet has rejected capital punishment as barbaric. Perhaps Governor Ryan, in the tortured end to his political career, can help lead the nation to a similar conclusion. (New York Times, January 13, 2003)
The Washington Post urged Maryland Governor-elect Robert Ehrlich to follow Ryan's example and to take a less "cavalier" attitude regarding his state's troubling death penalty record:
On this issue, he (Governor Ryan) leaves Illinois a better place - and a model for the nation as to how a state can begin facing the problem of the death penalty.
That model, alas, seems to hold little interest for Maryland Gov.-elect Robert L. Ehrlich Jr. It's early, but Mr. Ehrlich thus far has demonstrated a breathtaking lack of concern for the evident problems with capital punishment in Maryland. Even before the release of a University of Maryland study of geographical and racial disparities in capital punishment's application, he pledged to lift the current moratorium on executions no matter what the study showed.
. . .
Such a cavalier attitude is inappropriate for a man who will wield power over life and death. If the new governor continues to ignore the study results, he will be saying that it doesn't trouble him that Maryland prosecutors effectively value white lives more highly than black lives. Pretending this unfairness doesn't exist won't make it disappear. Mr. Ehrlich may be too busy planning his inauguration, but he should take time out to learn from the outgoing governor a few states west. (Washington Post, January 12, 2003)
USA Today said Ryan's decision gives lawmakers an opportunity to fix Illinois's flawed, biased and costly death penalty system:
Ryan's act of conscience provides only a brief window. State prosecutors will still seek the death penalty. Some will win it But in this moment of clear air, the ill wisdom of the death penalty - the harm it inflicts on justice, society and survivors - is illuminated. This is especially so in contrast with the practical alternative: life without the parole, which offers the same certainty of criminal punishment and benefit to public safety at a fraction of the cost, care, risk and delay.
. . .
The practical solution is Ryan's. End the death penalty. Get on with life. (USA Today, January 13, 2003)
ADDITIONAL RESOURCES
If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit:http://www.lidab.com/(Louisiana's public defender),probono.net(ABA/ABCNY) &http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised). For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).