Leading off this edition is the Fifth Circuit's opinion in Jonathan Bruce Reed v. Quarterman. The Reed Court sums their holding up this way:

[A] careful examination of the record reveals that the State's asserted reasons for striking prospective black jurors Osby and Jones were mere pretexts for discrimination. For some of the explanations, the State misconstrued the jurors' testimony. For others, the State accepted white jurors who exhibited the same characteristics. As stated above, the black and white jurors that we compare need not be exactly the same for us to conclude that the prosecution's proffered reasons for striking the black prospective jurors were pretexts for discrimination, because "[a] per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters." Much like in Miller-El II, "[c]omparing [these strikes] with the treatment of panel members who expressed similar views supports a view that race was significant in determining who was challenged and who was not." Id. at 252. Thus, the comparative analysis demonstrates what was really going on: the prosecution used its peremptory challenges to ensure that African-Americans would not serve on Reed's jury"

On the SCOTUS front, Herring v. US holds that mere negligence in maintenance of a warrant database is not enough to cause the fruits of an otherwise illegal arrest to be suppressed under the exclusionary rule. In Oregon v. Ice a bare majority of the Court holds that in determining to impose a concurrent or consecutive sentence a trial court may rely upon facts not found by a jury. Justice Scalia, writing for the Court in Jimenez v. Quarterman, holds for a unanimous Court that "[w]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal." Finally, in Chambers v. US the Court holds that "[f]ailure to report" to prison is not a "violent felony" for purposes of the Armed Career Criminal Act's (ACCA).

Additionally, the Court in Bobby v. Bies granted cert. Specifically (via SCOTUSBlog):

Whether a state is constitutionally barred from challenging the claim of mental retardation of an individual it seeks to execute for crime, if a state court had once found the person to be retarded even while upholding a death sentence. The case of Bobby v. Bies (08-598) involves an Ohio case that basically revolves around a “double jeopardy” issue. Specifically, it is whether it is unconstitutional double jeopardy if a state begins a new challenge to a convicted killer’s mental retardation, if a state court had previously found the individual to be retarded — thus possibly settling an ultimate issue so that it could not be pursued anew later.

The Bush Administration's proposed regulations governing opt-in have been enjoined, at least for now. The TRO was issued on an application by the Habeas Corpus Resource Center. Habeas Corpus Resource Center v. U.S. Department of Justice, No. C 08-2649 CW (N.D. Cal.):

For the reasons stated in open court, Defendants are temporarily restrained and enjoined from making effective the rule entitled “Certification Process for State Capital Counsel Systems,” published at 73 Fed. Reg. 75,327 (Dec. 11, 2008), without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such period. This temporary restraining order will remain in effect until January 22, 2009, unless it is first superseded by a preliminary injunction.

The new administration will now have the opportunity to determine whether these "Opt-in regs"as proposed by the Bush DoJ will go into effect or not.

In the news, Gov. Martin O’Malley in Maryland went on record last week as noting he would do “'everything in my power' to abolish the death penalty in Maryland this year and for the first time raised the possibility of allowing voters to decide the divisive issue through a constitutional amendment if legislative repeal efforts fail again." DPIC notes: "[t]he legal fight over California’s lethal injection process moved into a new phase as the state has given up its appeals and decided to follow the administrative rules to put the execution plan through public review. " Chicago media meanwhile notes that lawyers for Madison Hobley (pardoned by former Illinois Gov. George Ryan in 2003) "say the former Illinois death row inmate is moving ahead to collect $6.5 million in a legal settlement with the city of Chicago.Hobley served 13 years in prison for a 1987 arson fire that killed seven people, including his wife and infant son." California decided not to appeal the decision to shutter — on the basis of its faulty lethal injection procedures — its death chamber. In North Carolina a bill that would ban execution of mentally ill killers has been introduced at a joint legislative committee\.

My apologies for the delay in posting new CLE information. For the first few months of 2009:

Training for the Long Run

January 22-25, 2009 // Harrisburg, PA

PACDL & NCADP hosts a “nuts & bolts” of capital trials with special emphasis on tactics for winning life sentences at trial (what works & what doesn’t).. For those going to Harrisburg, run me down for happy hour Friday night.

The Capital Habeas in Ohio Seminar

February 5-6, 2009 // Cleveland, Ohio

The agenda for the seminar includes discussions about critical habeas concepts, to fact development in federal court, to end litigation strategies. (Program presented by the ND-OH CHU/ contact christine_sason@fd.org)

Life in the Balance Conference

March 7 -10, 2009 // New Orleans, LA

Life in the Balance 2009 aims to develop and improve the skills and techniques needed to save lives in all phases of capital defense. This year, NLADA will make the best even better, offering expert faculty, high quality instruction, and the most relevant topics for all segments of the capital defense community.

NASAMS 2009 Annual Training

March 7 -9, 2009 // New Orleans, LA

The NASAMS Annual Sentencing Advocacy Training is the premier national sentencing advocacy event for lawyers, experts, sentencing advocates, and capital mitigation specialists. This three-day training event brings together all members of the defense team to improve their knowledge and skills in defense-based sentencing and mitigation practice.

The Fight for Life, Capital Defense Training

April 3-4, 2009 // Murfreesboro, TN

TACDL’s annual capital litigation seminar.

The Development and Integration of Mitigation Evidence in Capital Cases

April 16-19, 2009 // Philadelphia, PA

Seminar will address recent advances in neuroscience and mental health, issues relating to race and culture, and how the mitigation investigation involves much more than preparation for a sentencing proceeding.

National Habeas Corpus Seminar

August 20-23, 2009 // Pittsburgh, PA

Habeas experts discuss issue identification, investigation, factual and legal development and representation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence.

For the next few weeks (most likely until the first week or two in March) I will be in trial and the weekly email edition is likely to be light. My apologies in advance. As always thanks for reading. - k

Recent Executions

January

14 Curtis Moore - Tex*

15 James Callahan - Ala*

Pending Executions

January

21 Frank Moore - Tex*

22 Reginald Perkins - Tex*

22 Darwin Brown - Okla*

27 Larry Swearingen - Tex*

28 Virgil Martinez - Tex*

29 Ricardo Ortiz - Tex*

February

4 David Martinez - Tex*

4 Steve Henley - Tenn*

10 Dale Scheanette - Tex*

12 Johnnie Johnson - Tex*

12 Danny Joe Bradley - Ala*

19 Edward Bell - Va*

March

2 Bennie Adams - Ohio

2 Victor Miller - Oklahoma

3 Jeffrey Hill - Ohio*

3 Willie Pondexter - Tex*

4 Kenneth Morris - Tex*

10 James Martinez - Tex*

11 Luis Salazar - Tex*

19 Phillip Halford - Ala*

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]

Week of January 12, 2009 – SCOTUS

• Oregon v. Ice, No. 07-901, (1/14/2009) In determining to impose a concurrent or consecutive sentence a trial court may rely upon facts not found by a jury.
• Jimenez v. Quarterman, No. 07-6984 (1/13/2009) "Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal."
• Chambers v. US, No. 06-11206, (1/13/2009) "Failure to report" to prison is not a "violent felony" for purposes of the Armed Career Criminal Act's (ACCA)
• Herring v. US, No. 07-513 (1/14/2009) Mere negligence in maintenance of a warrant database is not enough to cause the fruits of an otherwise illegal arrest suppressed under the exclusionary rule.

(Initial List) Week of January 12, 2009 – In Favor of the Defendant or the Condemned

• Jonathan Bruce Reed v. Quarterman, 2009 U.S. App. LEXIS 579 (5th Cir 1/12/2009) "[A] careful examination of the record reveals that the State's asserted reasons for striking prospective black jurors Osby and Jones were mere pretexts for discrimination. For some of the explanations, the State misconstrued the jurors' testimony. For others, the State accepted white jurors who exhibited the same characteristics. As stated above, the black and white jurors that we compare need not be exactly the same for us to conclude that the prosecution's proffered reasons for striking the black prospective jurors were pretexts for discrimination, because "[a] per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters." Much like in Miller-El II, "[c]omparing [these strikes] with the treatment of panel members who expressed similar views supports a view that race was significant in determining who was challenged and who was not." Id. at 252. Thus, the comparative analysis demonstrates what was really going on: the prosecution used its peremptory challenges to ensure that African-Americans would not serve on Reed's jury"
• State v. Curtis Bonilla, --- (Nev 1/12/2009) [via Harmful Error] Stay granted of a "district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case."

(Initial List) Week of January 12, 2009 – In Favor of the State or Government

• Kevin Keith v. Bobby, 2009 U.S. App. LEXIS 399; 2009 FED App. 0016P (6th Cir. 1/13/2009) (dissent) Panel splits on this successive petition over whether (from the dissent's perspective) "Keith’s substantial new evidence together with the lack of physical evidence against Keith, and the weakness of the eyewitness testimony presented at trial, we can and should conclude that the new evidence warrants further exploration."
• State v. Mercer, 2009 S.C. LEXIS 11 (SC 1/12/2009) Relief denied on questions concerning: "(1) the disqualification of a juror; (2) the exclusion of evidence, both in the guilt and sentencing phases; (3) the denial of his post-trial motion for additional funds to test gloves for gunshot residue; and (4) the denial of his post-trial motion for a new trial based on after-discovered evidence."

Week of January 5, 2009 – In Favor of the State or Government

• People v. Doolin, 45 Cal. 4th 390; 2009 Cal. LEXIS 2 (Cal 1/5/2009) "Attorney conflict claims under the California constitution are to be analyzed under the same standard as that articulated by the U.S. Supreme Court in Mickens v. Taylor. In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) alleged conflict of interest based on counsel's compensation agreement; 2) a denial of a request for second counsel; 3) improper admission of evidence of defendant's character; 4) the testimony of defendant's mother; 5) prosecutorial misconduct; 6) admissibility of DNA evidence; 7) a denial of a request for continuance; 8) a Faretta motion; 9) challenges to California's death penalty law; and 10) international law." [via Findlaw]
• Phillip Antwan Davis v. Branker, 2009 U.S. App. LEXIS 261 (4th Cir 1/7/2008) (unpublished) Relief denied on "whether the trial court erred in excluding evidence of various correspondence Davis mailed to his mother while he was awaiting trial.. . . [and] whether the trial court erred in submitting, as separate aggravating circumstances, that Joyce's murder was committed in the course of an armed robbery and for pecuniary gain."
• Thomas Michael Larry v. Branker, 2009 U.S. App. LEXIS 7 (4th Cir 1/5/2009) "Death row inmate's habeas petition is denied where: 1) the state court did not err by rejecting his request for a second-degree murder jury instruction; 2) the relevant North Carolina statute reasonably requires an I.Q. of 70 or below in order to be ineligible for capital punishment because of mental retardation; and 3) the state court reasonably concluded that Petitioner's I.Q. exceeded 70, when he scored above 70 on some tests but below 70 on another test." [via Findlaw]
• Gary Johnson v. Quarterman, 2009 U.S. App. LEXIS 217 (5th Cir 1/7/2009) (unpublished) Relief denied "claims that (1) his due process rights under Brady v. Maryland were violated by the State's suppression of evidence that the Fergusons, who testified for the State at trial, had been hypnotized; and (2) his trial counsel rendered ineffective assistance by calling Johnson's brother, Terry, as a witness at the guilt phase of trial."
• Joseph Murphy v. State, 2009 U.S. App. LEXIS 182; 2008 FED App. 0007P (6th Cir. 1/8/2009) "Denial of petition for habeas corpus is affirmed where: 1) trial counsel did not render ineffective assistance during the mitigation phase of defendant's sentencing by failing to retain certain experts or by providing the prosecution with documentary evidence of defendant's past antisocial behavior; 2) the jury was not improperly precluded from considering defendant's psychological age as mitigating evidence during sentencing; 3) the Ohio Court of Appeals' determination that defendant is not mentally retarded is not an unreasonable application of federal law or an unreasonable determination of the facts; and 4) defendant's Sixth Amendment right to counsel was not violated by the admission into evidence of numerous statements he made to the police." [via Findlaw]
• Marcus Wellons v. Hall, No. 07-13086 (11th Cir 1/5/2008) "Death row inmate is denied habeas relief where: 1) claims of an inappropriate relationship between the judge, jurors and bailiff are procedurally barred; 2) permitting full discovery from all mental health experts consulted by defense counsel was harmless error given that there was no viable insanity and mental illness defense nor a viable actual innocence defense; and 3) ineffective assistance claims are unavailing." [via Findlaw]

Week of December 29, 2008 – In Favor of the Defendant or the Condemned

• Willie H. Nowell v. State, 2008 Fla. LEXIS 2437 (FL 12/30/2008) Relief granted on claims that the trial court erred in allowing the State‘s peremptory strike of Nelson Ortega, a member of a minority group, and that the trial court erred in denying appellant‘s objections and motions for mistrial made during the State‘s penalty phase closing argument.
• Donney S. Council v. State, 2008 S.C. LEXIS 355 (S.C. 12/29/2008) On rehearing, minor modification to prior decision holding. "Given there is evidence to support the PCR judge's holding that Respondent's trial counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of Respondent's trial, we affirm the PCR judge's decision vacating Respondent's sentence and ordering a new sentencing hearing. We, however, find the PCR judge erred in continuing indefinitely one of the PCR grounds until Respondent regains competence. Because Respondent's assistance is not required for PCR counsel to present the issue regarding whether Respondent's trial counsel was ineffective in failing to adequately investigate Respondent's mental competence at the time the crimes were committed, we reverse the PCR judge's order on this issue and remand for the PCR judge to rule based on the evidentiary record presented at the PCR hearing in addition to any relevant evidence admitted at the hearing on remand."
• Edward Jones v. State, No. 47771 (Nev 12/31/2008)(unpublished) [via Harmful Error] "The Court found ineffective assistance of trial counsel based upon failure to investigate mitigating evidence and failure to prepare for the penalty phase. The Court also found extensive prosecutorial misconduct in the closing argument on the penalty phase. The Court acknowledged that it relied upon an erroneous standard of review on direct appeal when it affirmed Jones' death sentence despite a finding of prosecutorial misconduct because of "overwhelming evidence of guilt." "Rather than focusing on the evidence of guilt, when reviewing prosecutorial misconduct committed during a penalty hearing, the focus of the prejudice inquiry should be on the penalty proceedings and whether the misconduct 'so infected the proceedings with unfairness as to make the results a denial of due process." Someone puzzling is the fact that the opinion with the erroneous standard was published, but the Court's acknowledgment of its use of incorrect standard is unpublished, so the erroneous standard appears to stand as valid despite its obvious flaw. The Court affirms Jones' judgment of conviction as to issues raised concerning the guilt phase.
• Fernando Belmontes v. Ayers,2008 U.S. App. LEXIS 26949 (9th Cir 12/30/2008) Denial of rehearing en banc.

Week of December 29, 2008 – In Favor of the State or Government

• Joseph E. Corcoran v. Buss, 2008 U.S. App. LEXIS 26824 (7th Cir 12/31/2008) District court's grant of habeas relief from claim that Mr. Corcoran's "Sixth Amendment right to a jury trial was violated by an offer made by the State during pretrial negotiations, which in turn tainted his death sentence" reversed. Panel affirms district court's decision, however, that "Corcoran was competent to waive his state post-conviction proceedings."
• Richard Tandy Smith v. Workman, 2008 U.S. App. LEXIS 26816 (10th Cir 12/30/2008) Relief denied on claims: "(1) whether the trial court's failure to provide a psychiatric expert violated Ake v. Oklahoma, 470 U.S. 68 (1985), and whether counsel provided ineffective assistance by failing to raise an Ake claim, (2) whether counsel provided ineffective assistance at the mitigation stage of trial, and (3) whether the State violated Mr. Smith's due process rights under Brady v. Maryland, 373 U.S. 83 (1963)."
• Avram Nika v. State, 124 Nev. Adv. Rep. 103 (Nev 12/31/2008) [via Harmful Error] "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction. Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder. We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided. Nika's conviction was final before Byford was decided. Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial."
• State v. Michael Andre Davis, 2008 Ore. LEXIS 1067 (Ore 12/31/2008) (dissent) Relief denied over: "(1) defendant's assertion that the trial court erred in denying defendant's motion to dismiss for preindictment delay; (2) defendant's assertion that the trial court erred in denying defense counsel's motions to withdraw; (3) defendant's assertion that the trial court erred in denying defendant's motion for a mistrial based on the prosecutor's reference in his opening statement to the testimony of a witness who failed to appear at trial; and (4) defendant's assertion that the trial court erred in refusing to admit evidence of the contents of a police report."

Week of December 29, 2008 – rule changes

• In re: Amendments to Florida Rule of Criminal Procedure3.851 and Florida Rule of Appellate Procedure 9.142, 2008 Fla. LEXIS 2436 (FL 12/30/2008) "The counterpart to rule 3.851, rule 3.850, provides for postconviction relief in noncapital cases and, under subdivision (g), authorizes seeking belated appeals from the denial of rule 3.850 motions. To reflect a comparable procedure to seek a belated appeal in capital cases, we amend rule 3.851 to include subdivision (j), providing that "[a] petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner's motion for postconviction relief and counsel, through neglect, failed to do so."

Week of December 29, 2008 – notable noncapital

• Michael W. Brown v. Smith, 2008 U.S. App. LEXIS 26829 (6th Cir 12/31/2008) "[T]rial attorneys’ failure to investigate and obtain records related to his daughter’s counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel." Where "substantial evidence supporting a habeas claim comes to light during the proceedings in federal district court" AEDPA does not apply. "We conclude that the absence of the counseling records before the Michigan Court of Appeals (through no fault of Brown's), combined with that court's explicit statement that its review was "limited to mistakes apparent on the record," means that there is no relevant state court adjudication to which this court can defer."
• Cecilio Gonzalez v. Duncan, No. 06-56523 (9th Cir 12/30/2008) 28 years to life for technical violation for failure to register as a sex offender violates the Eighth Amendment. The Ninth Circuit blog beautifully digests Gonzalez.

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