Launched in the early halcyon days of dotcom glory, the weekly has recently celebrated turning three (or 21 in both dog and internet years). This week's edition marks a return to the original mandate of the weekly, to provide timely and informative materials on capital defense, by radically expanding coverage with the appellate courts of all 50 states and federal circuits now being covered. Thanks to the good people at Lexisone.com (who now provide the internet's most comprehensive free research on appellate case law from around the country) the weekly can now provide increased coverage without an increase in expense or workload. Similarly, thanks to Findlaw.com's new service, which provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, the weekly can now focus on providing capital defense specific materials in the newsletter while still guaranteeing that you have all the access to criminal law news that you may need.

Several capital case victories are noted this week, all in state court, several of which are notable. Of the four cases this week in which there was an outright reversals most remarkable perhaps isMuhammad v. Statewhich held the fact that even though no mitigating evidence was presented for the jury's consideration due to the client's wishes there is still an affirmative duty on the trial court and counsel to include into a presentence report any and all relevant mitigation evidence. The Indiana Supreme Court inProwell v. Stateexamines violations of Indiana's seemingly unique Criminal Rule 24 (limiting the workload of public defenders who have been assigned to represent a capitally charged citizen) and holds counsel was ineffective by being forced to carry too great a caseload while fighting the battle for Mr. Prowell's life. The Alabama Court of Criminal Appeals reversed the capital conviction in Yancey v. State based on the strong inference of misconduct where the government used 12 of 15 strikes to remove black jurors from the jury pool. A fourth and final capital case is noted as reversed this week, when the police, the Maryland Supreme Court held inWinder v. State, made improper promises to secure a confession. made by police interrogation team.

In three additional cases remands are had. The Louisiana Supreme Court remands inState v. Frankto the trial court for a determination on whether the defendant was entitled to state-funded expert assistance for the sentencing phase of her trial and if so to vacate the sentence of death. InRussell v. Statethe Mississippi Supreme court has remanded to the trial court (sitting in post-conviction review) several discovery requests ordering, with instructions, the court examine anew the requests. Finally, inPeople v. Thomasthe Illinois Supreme Court clarifies that for purposes of a post-conviction evidentiary hearing that death is indeed different and state strongly encourages that a hearing be held in almost all capital cases.

Of the federal cases noted, all are losses. InHousel v. Headthe use of uncharged crimes to determine aggravating factors, even if it was in error, was barred under Teague. Continuing the Third Circuits prolonged trend of seemingly denying relief to every capital petitioner from Delaware, a panel affirms inRiley v. Taylorholding (chiefly) that the government's peremptory challenges were not based on race. The final decision is out of the so-called "circuit of death" (the Fifth Circuit) which denied relief inNeal v. Pucketton the question of whether or not the Mississippi Supreme Court correctly decided that excluded mitigation evidence was cumulative and would not have altered the jury's decision for death.

Two Supreme Court cases of import are also noted.Fiore v. Whiteis possibly the most notable and indicates a seeming sea change in the Supreme Court's equal protection analysis post-Bush v. Gore holding that a state violates equal protection when it fails to retroactively apply a judicial interpretation redefining whether the conduct at issue is or is not a criminal offense. Significant also is the Court's holding inGlover v. United Statesin which it held that there where a sentence is increased there is no minimum a standard of significance for Strickland purposes.

As part of the changes with the weekly the website is slowly migrating from www.capitaldefenseweekly.com to www.karlkeys.com as the dotcom venture originally associated with capitaldefenseweekly.com has now been shelved. As the migration occurs changes will continue with the newsletter including the adding of a few sections, the renaming of a few others, such as the renaming of the "In Depth Feature" column this week to simply "Featured," and elimination of a few sections as the "realignment" of the weekly continues.

Featured this week is Edward Lazarus's examination of the federal death penalty landscape. In "The Coming Era of Federal Executions? Legal Challenges We Can Expect If More Federal Defendants Share Mcveigh's Fate," Lazarus offers a sober and realistic examination of how the federal death penalty is working in practice. Lazarus's analysis, while not covering new ground, is an excellent encapsulation of what has gone before and a good general primer to developments with the federal death penalty.

Finally, Issue 12 of the Federal Habeas Corpus Update is now available to be downloaded at http://www.capdefnet.org/FHCU12.htm Format, searchability and other details are set forth at the website as well.

Supreme Court

Fiore v. White(US) The Court seemingly holds that a state violates equal protection when it fails to retroactively apply a judicial interpretation redefining whether the conduct at issue is or is not a criminal offense. (Note that the court does not perform Teague or AEDPA analysis).

Because we were uncertain whether the Pennsylvania Supreme Court's decision in Scarpone's case represented a change in the law of Pennsylvania, we certified the following question to that court:

"Does the interpretation of Pa. Stat. Ann., Tit. 35, §6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?" 528 U. S., at 29.

We received the following reply:

"Scarpone did not announce a new rule of law. Our ruling merely clarified the plain language of the statute. . . . Our interpretation of [§6018.401(a)] in Scarpone furnishes the proper statement of law at the date Fiore's conviction became final." Fiore v. White, 562 Pa. 634, 646, 757 A. 2d 842, 848-849 (2000) (citation omitted).

The Pennsylvania Supreme Court's reply specifies that the interpretation of §6018.401(a) set out in Scarpone "merely clarified" the statute and was the law of Pennsylvania--as properly interpreted--at the time of Fiore's conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.

This Court's precedents make clear that Fiore's conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson, supra, at 316; In re Winship, 397 U. S. 358, 364 (1970). In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. Scarpone, supra, at 279, 634 A. 2d, at 1112. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, see Brief for Respondents 1, necessarily concedes that it did not prove he failed to possess one.

The simple, inevitable conclusion is that Fiore's conviction fails to satisfy the Federal Constitution's demands. We therefore reverse the contrary judgment of the Third Circuit and remand this case for proceedings consistent with this opinion.

Glover v. United States (US)The prejudice branch of the Strickland test does not require that any increase in sentence must meet a standard of significance.

(a) The Government no longer asserts that a 6 to 21 month prison term increase is not prejudice under Strickland. The Seventh Circuit drew the substance of its rule from Lockhart v. Fretwell, 506 U. S. 364, 369, which holds that in some circumstances a mere difference in outcome will not suffice to establish prejudice. This Court explained last Term that the Lockhart holding does not supplant the Strickland analysis. See Williams v. Taylor, 529 U. S. 362, 393. The Seventh Circuit was incorrect to rely on Lockhart to deny relief to persons who might show deficient performance in their counsel's failure to object to an error of law affecting the sentencing calculation because the sentence increase does not meet some baseline prejudice standard. This Court's jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance. E.g., Argersinger v. Hamlin, 407 U. S. 25. Moreover, decisions on the right to jury trial in a criminal case, see id., at 29, do not control the question whether a showing of prejudice, in the context of an ineffective-assistance claim, requires a significant prison term increase. The Seventh Circuit's rule is not well considered in any event, because there is no obvious dividing line by which to measure how much longer a sentence must be for the increase to constitute substantial prejudice. Although the amount by which a defendant's sentence is increased by a particular decision may be a factor in determining whether counsel's performance in failing to argue the point constitutes ineffective assistance, under a determinate system of constrained discretion such as the Sentencing Guidelines it cannot serve as a bar to a showing of prejudice. Here the Court considers the sentencing calculation itself, which resulted from a ruling that had it been error, would have been correctable on appeal. The question of deficient performance is not before the Court, but it is clear that prejudice flowed from the asserted error in sentencing. Pp. 4-6.

(b) The Government's various arguments for affirming the Seventh Circuit's judgment were neither raised nor resolved below, and are outside the questions presented by the petition for certiorari. Whether these issues remain open, and if so whether they have merit, are questions for the lower courts to determine in the first instance. Pp. 6-7.

182 F. 3d 921, reversed and remanded.

Lopez v. Davis(US) The BOP may categorically exclude prisoners from early release eligibility based on their preconviction conduct. The Court rejects Lopez's argument that the BOP may take into account only postconviction conduct. The BOP need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior--and for the very conduct leading to conviction. The BOP may reasonably attend to these factors as well.

Selling v. Young(US) Washington State's Community Protection Act of 1990 (Act), which authorizes the civil commitment of "sexually violent predators," cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses.

Captial Case Relief Granted

Muhammad v. State(Florida)(mitigation) Court holds that reversible error occurred when the trial court gave great weight to the jury's recommendation in imposing the death penalty despite the fact that no mitigating evidence was presented for the jury's consideration.

Reversible error occurred in this case due to the trial court's decision to afford "great weight" to the jury's recommendation when that jury did not hear any evidence in mitigation and the defendant had, in fact, requested waiver of the advisory jury without objection by the State. Accordingly, we vacate the sentence of death and remand for resentencing proceedings before the trial court.

Because of the possibility that during resentencing proceedings before the trial court Muhammad will continue in his refusal to put on mitigating evidence, it is appropriate for thisCourt to consider what prospective procedures should apply on resentencing. It is clear from our previous cases that we expect and encourage trial courts to consider mitigating evidence, even when the defendant refuses to present mitigating evidence. We have repeatedly emphasized the duty of the trial court to consider all mitigating evidence "contained anywhere in the record, to the extent it is believable and uncontroverted." Farr v. State, 621 So. 2d 1368, 1369 (Fla. 1993) ("Farr I"); see, e.g., Hauser v. State, 701 So. 2d 329, 330-31 (Fla. 1997); Robinson v. State, 684 So. 2d 175, 176, 179 (Fla. 1996). [*45] This requirement "applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence." Farr I, 621 So. 2d at 1369.

In the past, we have encouraged trial courts to order the preparation of a PSI to determine the existence of mitigating circumstances "in at least those cases in which the defendant essentially is not challenging the imposition of the death penalty." Farr v. State, 656 So. 2d 448, 450 (Fla. 1995) ("Farr II"); see Allen v. State, 662 So. 2d 323, 330 (Fla. 1995). Having continued to struggle with how to ensure reliability, fairness, and uniformity in the imposition of the death penalty in these rare cases where the defendant waives mitigation, we have now concluded that the better policy will be to require the preparation of a PSI in every case where the defendant is not challenging the imposition of the death penalty and refuses to present mitigation evidence. n10 To be meaningful, the PSI should be comprehensive and should include information such as previous mental health problems (including hospitalizations), school [*46] records, and relevant family background. In addition, the trial court could require the State to place in the record all evidence in its possession of a mitigating nature such as school records, military records, and medical records. n11 Further, if the PSI and the accompanying records alert the trial court to the probability of significant mitigation, the trial court has the discretion to call persons with mitigating evidence as its own witnesses. This precise procedure has been suggested by the New Jersey Supreme Court in State v. Koedatich, 112 N.J. 225, 548 A.2d 939, 992 (N.J. 1988), n12 and recognized as appropriate by the Georgia Supreme Court in Morrison v. State, 258 Ga. 683, 373 S.E.2d 506, 509 (Ga. 1988). n13 If the trial court prefers that counsel present mitigation rather than calling its own witnesses, the trial court possesses the discretion to appoint counsel to present the mitigation as was done in Klokoc v. State, 589 So. 2d 219 (Fla. 1991) n14 or to utilize standby counsel for this limited purpose. n15

In all capital cases, this Court is constitutionally required "to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases." Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990); see, e.g., Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998); Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). This case provides a perfect example of why the defendant's failure to present mitigating evidence makes it difficult, if not impossible, for this Court to adequately compare the aggravating and mitigating circumstances in this case to those present in [*50] other death penalty cases. Muhammad was only twenty-three at the time of the crime and appears to have suffered from an extremely difficult childhood. Many years of Muhammad's early childhood were spent in foster care. Muhammad's mother had him involuntarily committed at a mental hospital and then refused to pick him up after the hospital released him. In addition, it appears that Muhammad has a history of serious psychological problems. Even though it appears from the PSI that this evidence was readily available in the form of records from hospitalizations, no evidence related to mental mitigation was presented at the penalty phase.

An adoption of a prospective procedure in this case would not call into question those cases that are already final on appeal or those cases that already have been tried but not yet decided on appeal at the time this opinion is rendered. n16 For example, we established a prospective procedure in Koon, 619 So. 2d at 250, for cases in which the defendant decided to waive the presentation of mitigating evidence against the advice of counsel. n17 Because we specifically stated in Koon that this procedure would apply prospectively, we [*51] later found the procedure inapplicable to cases in which the penalty phase had been held before our opinion in Koon became final. See Allen v. State, 662 So. 2d 323, 329 (Fla. 1995); Elam v. State, 636 So. 2d 1312, 1314 (Fla. 1994).

Yancey v. State (Alabama)(Batson)(only at lexisone.com) "Yancey argues that the prosecutor violated Batson, by using 12 of his 15 strikes to remove black prospective jurors from the venire. . . . Specifically, Yancey argues that the reasons given for striking these jurors were merely a pretext or a sham and white prospective jurors sharing the characteristics for which black jurors were removed were not struck. He asserts that the record reflects that the prosecutor exercised disparate treatment when striking black prospective jurors and white prospective jurors."

"'Disparate treatment furnishes strong evidence of discriminatory intent.'" Freeman v. State, 651 So. 2d 576 (Ala.Crim.App. 1994), quoting Ex parte Bird, 594 So. 2d 676, 681 (Ala. 1991), on remand, 594 So. 2d 689 (Ala.Crim.App. 1992) . See also Kynard v. State, 631 So. 2d 257 (Ala.Crim.App. 1993). "This court has condemned the failure to strike white venirepersons who share the same characteristics as black venirepersons who were struck." Bishop v. State, 690 So. 2d at 500.

We have also considered the other factors articulated in Branch. Here, [*21] the prosecution used its first four strikes to remove black prospective jurors and its fifth strike to remove a white juror who indicated that the circumstantial evidence would have to be overwhelming for him to vote to convict. It then used its next nine strikes to remove black prospective jurors and used it final two to remove white prospective jurors who it stated, had had prior misdemeanor or traffic offenses. The State used 12 of its 15 strikes to remove black veniremembers. We consider this relevant when examining the merits of this Batson claim. Ex parte Thomas, 659 So. 2d 3 (Ala.), on remand, 654 So. 2d 14 (Ala.Crim.App. 1994).

This Court is aware of only one conviction that was reversed because the Russell County district attorney' s office had violated the principles of Batson. See Owens v. State, 531 So. 2d 22 (Ala.Crim.App. 1987). The voir dire in this case covered portions of five volumes of the record. It appears that the jurors were questioned equally about their views concerning capital punishment; however, there is no discussion concerning any prospective jurors' prior misdemeanor offenses or traffic offenses. [*22] Thus, the voir dire provides no support for some of the reasons advanced by the prosecution. From the record it appears that the prosecutor engaged in disparate treatment when striking Yancey's jury.

This Court will reverse a trial court's ruling on a Batson objection if it is clearly erroneous. Ex parte Drinkard, [Ms. 1980662, April 21, 2000] So. 2d , 2000 Ala. LEXIS 152 (Ala. 2000); Farrior v. State, 728 So. 2d 691 (Ala.Crim.App. 1998); Brown v. State, 705 So. 2d 871 (Ala.Crim.App. 1997); Owens, supra. A ruling is clearly erroneous if a reviewing court is left with the belief that a mistake has been committed. See Owens. The record supports Yancey's claim that a mistake has been committed; therefore, the trial court's ruling was clearly erroneous.

For the foregoing reasons, Yancey's conviction and his sentence to death are due to be reversed. This case is remanded to the Circuit Court for Russell County for proceedings consistent with this opinion.

Prowell v. StateIndiana (guilt & penalty phase mitigation; Ake; IAC guilt & penalty phase) "Prowell argues that his trial counsel were ineffective at the guilt phase on four grounds: (1) inadequate factual mitigation investigation; (2) inadequate development of expert testimony; (3) failure to form and execute a reasonable trial strategy; and (4) violations of Criminal Rule 24. . . . It is sufficient that there is a reasonable probability that this is the case, and we have no doubt that this showing was easily made. "

Prowell offers an explanation for why his trial counsel failed to conduct an adequate mitigation investigation, retain experts who could provide the severe diagnosis that Liffick and Bailey found, or even take the time to create a reasonable strategy. Prowell points out that, throughout his representation, Vowels carried a felony caseload far in excess of that permitted under Criminal Rule 24(B)(3). Indiana is unique among the states in its effort to prevent ineffective assistance of counsel in capital cases. Criminal Rule 24 provides that "appointed [*32] counsel shall not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations." Salaried or contractual public defenders are to be appointed as trial counsel in capital cases only if:

(i) the public defender's caseload will not exceed twenty (20) open felony cases while the capital case is pending in the trial court;

(ii) no new cases will be assigned to the public defender within thirty (30) days of the trial setting in the capital case;

(iii) none of the public defender's cases will be set for trial within fifteen (15) days of the trial setting in the capital case; and

(iv) compensation is provided as specified in paragraph (C).

Although the point has never been made explicit, we think it is clear that unless any variances from the standards of the rule are disclosed to the court, acceptance of employment under the rule constitutes a representation to the trial court that counsel meets the requirements of the rule. Courts cannot be expected to police sua sponte the caseloads of the counsel appearing before them. It is incumbent upon defense counsel to raise [*33] any issue presented by counsel's workload in excess of the limits laid out in the rule. The rule is self-enforcing to the extent that the State may refuse to reimburse counties for attorney expenses if the requirements of Criminal Rule 24 are not met.

The most obvious remedy is found within the rule itself, that is, refusing to compensate a county for attorneys' fees and expenses where the defense attorney is found to be in violation of the caseload limits prescribed by the rule without the court's permission. Presumably, the county would then penalize the lawyer who violated the rule by withholding payment for time spent on cases where the rule was violated. Experience suggests that lawyers are likely to observe rules if their paychecks depend on it.

We note that Vowels may well have reasonably concluded that there was no need to raise the Criminal Rule 24 issues with the trial court because the trial court's appointments were themselves the source of these Criminal Rule 24 problems. In any event, the issue here is not the remedy for a Criminal Rule 24 violation. It is the effectiveness of Prowell's representation, whether it stemmed from that circumstance or others. [*34]

In this case, Vowels apparently made no effort to limit his caseload to comply with Criminal Rule 24 or to raise the issue with the court. Vowels was appointed to represent Prowell on May 31, 1993. On that day, he had twenty-eight open public defender felony cases. From May 31, 1993 through May 5, 1994, the day when Judge Young sentenced Prowell to death, Vowels' felony public defender caseload ranged from twenty-one to forty-three open felony cases. Prowell's original trial date was set for late January 1994. In the months of November and December 1993, when Vowels presumably should have focused his attention on Prowell's case, he had an average of thirty-eight open public defender felony cases, nearly twice the number allowed under Criminal Rule 24. Vowels is a salaried part-time public defender in Vanderburgh County. The number of additional private felony cases that he carried during his year-long representation of Prowell is unknown.

Vowels' caseload also violated subsection (B)(3)(c)(iii) of Rule 24, which specifies that none of the public defender's cases may be set for trial within fifteen days of the capital trial. Vowels was appointed to represent Raphael Hastie on [*35] a non-capital murder charge with trial set for February 7, 1994, approximately ten days after Prowell's trial was scheduled to begin. Vowels testified at Prowell's postconviction relief hearing that he believed that he had a good chance of securing an acquittal for Hastie and that he had spent a large number of hours in December 1993 and January 1994 preparing for the case.

Given the rigors of his high caseload, and particularly the demands of the Hastie case, Vowels testified that he was not prepared to take the Prowell case to trial on January 27, 1994. He testified that he took no steps to select a jury for the Prowell trial, was not prepared to question potential jurors in a death penalty case, was not prepared to present a defense in the guilt phase of the trial, and was not prepared to present a mitigation case. Vowels did not counsel Prowell to plead guilty to two death-penalty-eligible murders without a sentencing agreement based on a reasonable trial strategy. Instead, in his words, he did so because he "was afraid to try his case."

Winder v. State, (Maryland) (confession) Trial court's denial of a motion to suppress a custodial confession was improper when the State failed to establish that the confession was not made in reliance on improper promises made by police interrogation team.

Unquestionably, the second group of inducing remarks made it clear to Appellant that, in order to insure the officers' protection from the alleged angry mob of Salisbury residents, he needed to confess to murdering the Mainors.

In prior cases, we have held that the following statements constituted improper inducements: "produce the narcotics, [and your] wife would not be arrested" Stokes, 289 Md. at 157, 423 A.2d at 553; "if you are telling me the truth . . . I will go to bat for you," Hillard, 286 Md. at 153, 406 A.2d at 420; "it would be better for [you] if [you] [*63] made a statement because if [you] did they would try to get him put on probation," Streams v. State, 238 Md. 278, 281, 208 A.2d 614, 615 (1965); "it will help you a lot," Lubinski v. State, 180 Md. 1, 4-5, 22 A.2d 455, 457-58 (1941); and "it would be better . . . to tell the truth and have no more trouble about it," Biscoe v. State, 67 Md. 6, 6, 8 A. 571, 571 (1887). The common thread in each of these cases is that a singular statement communicated to the suspect may be sufficient to qualify as an inappropriate offer of help held out to the suspect.

In the present case, the interrogating officers' statements and conduct go far beyond that in any of our prior cases where improper inducements were recognized. During the twelve hour interrogation, the officers repeated many times that they would help Appellant. They offered him an apparent means to garner leniency from the state prosecutors and the trial court and protection from an angry mob. The only thing Appellant had to do in return for these meaningful inducements was confess to a triple murder. The first prong of the Hillard test has been satisfied.

Turning to the second [*64] part of the Hillard analysis, our inquiry focuses on whether the State has shouldered its burden to prove that Appellant did not rely on the inducements held out to him by the interrogating officers in making his confession. See Hillard, 286 Md. at 153, 406 A.2d at 420. In its brief and again at oral argument, the State argued that the inducements made during the interrogation, in combination or each standing alone, were not the cause of Appellant's confession. To support its argument, the State suggests that Appellant's behavior and manner during the interrogation indicated that the statements communicated to him during the interrogation made no impression on him. The State characterizes Appellant as appearing "smug," "cold," and "hard" as he sat calmly and listened to the officers. Specifically, the State points out that at one point during a long soliloquy by Sergeant Ford, Appellant "apparently unfazed by Ford's words, simply asked to go to the bathroom." This, the State proposes, illustrates Appellant's mind was not focused on or receptive to the interrogation tactics, and therefore, the officers' statements had little, if any, impact on him.

The State further [*65] contends that Appellant's answers to certain interrogation questions were indicative of someone that was not swayed by a potential grant of leniency or offers of protection. The State highlights for us that when Sergeant Benton asked Appellant if he was "scared of going to jail," or "of what people would think," Appellant replied that he was not scared of anything.

We are not persuaded by the State's effort to convince us that the officers' statements were not the cause of Appellant's confession. In light of the suppression record in this case, we cannot comprehend how the State legitimately could characterize Appellant as a calm, collected individual during the interrogation. The record before the Circuit Court at the suppression hearings reveals that Appellant was intimidated by his surroundings and impressed by the matters communicated to him by the officers. The officers themselves, in comments made during and after the interrogation, made it abundantly clear that Appellant was not "calm," "cool," or "smug." During the interrogation, Sergeant Benton claimed he could see Appellant's heart beating through his jacket. As Sergeant Fisher questioned Appellant, she noted, "you're shaking [*66] like a leaf. Can you feel that? You're shaking and you're cold. My God you're cold. [Sergeant Benton is] hot, I'm hot. You're freezing." At the suppression hearing, Sergeant Benton testified that "Appellant's "jaw was quivering" during the questioning and Sergeant Fisher later explained that Appellant "had a nervous twitch in his neck" and "his heart was beating rather fast." She also added that she had to get a cold towel for Appellant's head and that she was "afraid he was going to commit suicide." Taking into account the apparent physical manifestations of Appellant's fear, the fact that he was quiet during much of the interrogation and sometimes only gave terse answers to the officers' questions, is equally indicative that he was overwhelmed by the situation unfolding before him.

The timing of the confession vis vis the statements of the officers does not support the State's thesis of non-reliance. Appellant sat through twelve hours of interrogation during which he answered hundreds of questions and listened to long exhortations addressing many different reasons why he should confess to the crimes. Throughout the early to middle parts of the interrogation, he consistently denied [*67] any involvement in the murders. Each time Sergeant Benton suggested that Appellant had already confessed to the murders, Appellant clearly stated "I wasn't there" or "I don't know what happened." Appellant maintained this position for hours. It was only after many more hours of statements that the officers "could help him" and "try to protect him" that Appellant changed his story.

The timing of the actual confession is critical. Because of the apparent malfunctioning of the tape recorder, we are unable to tell precisely when all the police inducements were complete, but sometime after 3:45 a.m. and before 6:00 a.m., just before Appellant confessed, Sergeant Ford uttered some of the more flagrant promises to Appellant, including statements regarding "leaving Salisbury after all this" and that Sergeant Ford had to "save" Appellant because people "are ready to come out here and do some bad things to [him]." n21 The closeness in time between these significant inducements and the actual confession leaves us unpersuaded that the State has met its burden to demonstrate Appellant did not rely upon them in deciding to make his confession.

We are also persuaded by the fact that the State has failed to point out any other, intervening factors that may have caused Appellant to confess when he did, or which may have attenuated the effect of the improper inducements. Unlike Johnson, in the present case there is no attenuation in time or circumstance, no change of environment, and no interruptive change of the interrogation team. Appellant confessed to virtually the same team of officers, in the same environment in which his entire interrogation took place, following twelve hours of interrogation.

The final factor that weighs in our analysis is the egregiousness of the officers' conduct. The State argues that the interrogation was "a classic example of effective police interviewing." The opposite is true. As evidenced by our holding, the tactics employed by the officers are counter-effective. In the present case, we are not upsetting Appellant's convictions because the interrogating officers merely stepped over the line of effective and permissible interrogation tactics. Rather, these officers disregarded interrogation guidelines in their quest to gain a confession. The State carries the burden to establish that Appellant's [*69] confession was made "free of any coercive barnacles." See Hillard, 286 Md. at 150, 406 A.2d 418. The State has failed to meet its burden, and therefore, we hold that the Circuit Court erred in denying Appellant's suppression motion as to the ultimate confession.

Captial Cases Remanded for Further Adjudication

State v. Frank(Louisiana)(state Ake violation) Case is remanded to the trial court in order for it to hold an evidentiary hearing as to whether the defendant was entitled to state-funded expert assistance for the sentencing phase of her trial. If the court determines she was so entitled, it is to vacate the defendant's sentence and order a new penalty phase at which the defendant will have the benefit of that expert assistance. If the trial court finds that the defendant can not make the proper showing of need for state funds, the defendant may appeal that decision to this court along with the other assignments of error regarding the penalty phase of her trial.

This court addressed the specific issue of what showing an indigent needs to make in order to obtain state-funded expert assistance in more detail in State v. Touchet, 93-2839 (La. 9/6/94), 642 So. 2d 1213. In that case, the court elaborated on its holding in Craig, stating that:

Henceforth, for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution's case or to support a critical element of the defense. If the trial court finds that the indigent defendant [*16] is able to meet this standard, it is to authorize the hiring of the expert at the expense of the state.

Id. at 1216.

The court's most recent pronouncement on this subject is found in State v. Jones, 97-2593, p. 4 (La. 3/4/98), 707 So. 2d 975, 977, where it held that the retention of private counsel from a collateral source of funds at no cost to the defendant did not affect a defendant's ability to prove indigency. The court recognized that regardless of whether a defendant derives any assistance from an ancillary source, "the determinative question is the defendant's indigency" in assessing whether he or she is entitled to make a showing of need for state-funded expert assistance. Id. The court further suggested that even if a defendant retains counsel at his own expense, he may still be eligible for state-funded auxiliary services, but his alleged indigency status should be more closely questioned. Id. The Jones court concluded that a defendant, who has private counsel retained by a collateral source, may still be entitled to state funding for expert assistance provided he or she can meet the requirements articulated in Touchet. [*17] Id. at 977-78.

The court has made clear that an indigent defendant is entitled to present a trial court with evidence of his or her need for state-funded expert assistance at a hearing on the matter. See Touchet, 642 So. 2d at 1221. In the present case, the trial court precluded the defendant from making such a showing of need by refusing to find her indigent in the first place. While the defendant filed an ex parte application for expert funding, specifically requesting psychiatric/psychological expert assistance for both the guilt and penalty phase of her trial and a mitigation expert/social worker for the penalty phase and providing how much that assistance would cost, the trial court failed to address the application or hold a hearing on the matter. n4 As a result, the defendant argues she was forced to go to trial without necessary expert assistance, which prejudiced her ability to present an adequate defense at both the guilt and penalty phase. n5

Regarding the defendant's request for psychiatric and/or psychological expert assistance for the guilt phase of her trial, her argument that the trial court's error in not finding her indigent precluded her from making the appropriate showing of need for this assistance is without merit. Louisiana law is well-settled that evidence of mental condition or defect is inadmissible at the guilt phase of a capital case unless the defendant has pleaded not guilty by reason of insanity. State v. Koon, 96-1208, p. 19 (La. 5/20/97), 704 So. 2d 756, 768; [*19] State v. Deboue, 552 So. 2d 355, 366 (La. 1989); State v. Lecompte, 371 So. 2d 239, 243 (La. 1978), on rehearing, (La. 5/21/79). The defendant never argued that she was insane or incompetent to proceed at trial, and, therefore, she was not entitled to admit psychiatric testimony as to her mental condition during the guilt phase in the first place. Therefore, the trial court's finding that the defendant was not indigent had no bearing whatsoever on the outcome of her case during the guilt phase of the trial.

However, because both this court and the Supreme Court have repeatedly stressed that a capital defendant has the right to introduce virtually any evidence in mitigation during the penalty phase of a capital trial, we find the trial court committed error in not allowing the indigent defendant the opportunity to make a showing under Touchet as to her need for state-funded assistance for the purpose of presenting any such mitigating evidence. See State v. Brumfield, 96-2667, p. 50 (La. 10/20/98), 737 So. 2d 660, 686 (citing Lockett v. Ohio, 438 U.S. 586, 605-06, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); State ex rel. Busby v. Butler, 538 So. 2d 164 (La. 1988)). [*20] By not allowing a hearing on the matter, the trial court did not provide this court with adequate information upon which to review the question of whether the defendant was entitled to the expert assistance she requested for the penalty phase of her trial and what prejudice she may have suffered as a result of not obtaining state-funded assistance. n6 See State v. Prestridge, 399 So. 2d 564, 581 (La. 1981) (stating that when an indigent defendant has been denied funds to obtain expert assistance, the issue on review becomes whether the denial of funds substantially prejudiced the defendant at trial); State v. Monroe, 397 So. 2d 1258, 1266 (La. 1981) (finding that the indigent defendant was not substantially prejudiced by the denial of expert assistance at trial).

We therefore find it necessary to remand the case for an evidentiary hearing at which the defendant will be afforded the opportunity to make the necessary showing under Touchet for obtaining state-funded expert assistance. If she is able to meet the standards provided in Touchet, the trial court is to vacate the defendant's sentence, order a new penalty hearing, and order that state funds be procured so that the defendant may hire the requested experts to assist her defense at the sentencing hearing. If the trial court finds that the defendant can not make the proper showing of need, the defendant may appeal that decision to this court along with the other assignments of error concerning the penalty phase of her trial.

The defendant's conviction is affirmed for the reasons that her indigent status did not have any effect on her case during the guilt phase of the trial and because we do not find that any of her other arguments constitute reversible error.

Russell v. State(Mississippi)(post-conviction discovery) Remanded so the trial court can determine and adjudicate Russell's right to discovery of other materials covered by his previous requests, including but not limited to those in the custody and under the control of the Mississippi Department of Corrections, and other materials in the determination by the circuit judge that are in the custody or under the control of the state.

In the case at bar, the Supreme Court ordered this Court to appoint counsel for Petitioner and to grant him investigative assistance. Surely the Court did not go through the trouble of granting Petitioner an attorney and investigative assistance if it intended to foreclose any real opportunity to produce a meaningful, complete petition. The Circuit Court in this case must be allowed to grant some initial discovery. Absent this authority, appointment of counsel and investigative assistance would be meaningless.

In its response, the State objects to the fact that proceedings regarding discovery were conducted in camera without notice to the State or an opportunity for the State to be heard and asks that if the Court determines that discovery at this stage should be allowed, such matters not be handled ex parte in the trial court.

During the past year, the Mississippi Legislature has taken action to reform the post- conviction process in death [*7] penalty cases. On July 27, 2000, this Court amended Rule 22 of the Mississippi Rules of Appellate Procedure to provide direction in such matters, and to the extent that the statutory and rule changes are remedial, they should be given application in cases pending at the time of their adoption. Rule 22 addresses the discovery and disclosure issues now before us.

Upon appointment of counsel, or the determination that the petitioner is represented by private counsel the petitioner's prior trial and appellate counsel shall make available to the petitioner's post-conviction counsel their complete files relating to the conviction and sentence. The State, to the extent allowed by law, shall make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner. If the State has a reasonable belief that allowing inspection of any portion of the files by post-conviction counsel for the petitioner would not be in the interest of justice, the State may submit for inspection by the convicting court those portions of the files so identified. If upon examination of [*8] the files, the court finds that such portions of the files could not assist the capital petitioner in investigating, preparing, or presenting a motion for post-conviction relief, the court in its discretion may allow the State to withhold that portion of the files. Discovery and compulsory process may be allowed the petitioner from and after the appointment of post-conviction counsel or the determination that the petitioner is represented by private counselor or is proceeding pro se, but only upon motion indicating the purpose of such discovery and that such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court . . . .

M.R.A.P. 22(c)(4)(ii).

The State is justified in its complaint regarding excessive use of ex parte proceedings on discovery. The rule recognizes the burden placed on the inmate to file fully developed post-conviction pleadings. At the same time, the State is entitled to resist unwarranted discovery as well as unnecessary awards of investigative [*9] expenses, which will, at least implicitly, condone the areas of inquiry to be pursued in the investigation. Ex parte presentation should be available in proceedings for expenses and discovery, but only after a determination that disclosure to the State is incompatible with a meaningful opportunity to prepare the defendant's case. This necessarily entails service on the Attorney General of pleadings and notice of hearings.

To the extent that discovery is allowed, the inmate is entitled to the compulsory process of the court. It would be of no avail to declare that Russell is entitled to discovery, but not entitled to the process of the court to compel responsiveness.

For these reasons, we deny the petition for interlocutory appeal, and grant the petition for extraordinary relief to the extent stated in the order entered concurrently with this opinion, and remand this case to the Circuit Court of Sunflower County for further proceedings consistent with this opinion and the order entered concurrently with this opinion.

People v. Thomas(Illinois) (right to a state pc hearing) State supreme court held that the circuit court did not follow the proper procedures for handling the post-conviction petition, treating it as a noncapital rather than a capital case. Statute makes special provisions for capital cases.

The defendant then brought the present action for post-conviction relief, filing another petition in the circuit court of Du Page County in April 1999. Appearing pro se, the defendant filed a motion to proceed in forma pauperis and submitted an affidavit of indigence. Without appointing counsel, and in the absence of any responsive pleading by the State, the circuit judge summarily dismissed the defendant’s petition. The defendant brings this appeal. 134 Ill. 2d R. 651(a).

The defendant first argues that the circuit court erred in failing to inquire whether he wanted counsel appointed to represent him in this matter. The State has confessed error on this issue, and we agree that the circuit court erred in failing to determine whether the defendant wished to be represented by counsel and, if he did, in failing to make the appointment. The Post-Conviction Hearing Act (725 ILCS 5/122—1 through 122—7 (West 1998)) contains special procedures that are applicable in capital cases. Section 122—2.1(a)(1) of the Act provides:

"If the petitioner is under sentence of death and is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel." 725 ILCS 5/122—2.1(a)(1) (West 1998).

For noncapital defendants, in contrast, the Act requires the appointment of counsel only if the court first determines that the petition is not "frivolous or *** patently without merit." 725 ILCS 5/122—2.1(a)(2) (West 1998).

In the present case, the defendant is under sentence of death. Although the defendant was appearing pro se and was seeking to proceed in forma pauperis, the circuit judge did not determine whether the defendant wanted to be represented by counsel, as the judge was required to do in capital cases under section 122—2.1(a)(1) of the Act. Accordingly, the cause must be remanded to the circuit court so that the defendant may be provided with appointed counsel, if that is his choice. See People v. Dye, 50 Ill. 2d 49 (1971).

The defendant also contends that the post-conviction court erred in summarily dismissing his petition without first receiving a responsive pleading from the State. The State has correctly confessed error on this issue also. Again, the Post-Conviction Hearing Act contains different procedures for capital petitioners and noncapital petitioners. In a noncapital case, the post-conviction court may summarily dismiss the petition if the court judge decides that it is "frivolous or *** patently without merit." If the judge does not dismiss the petition, then the matter will be docketed for further consideration in accordance with other provisions of the Act.

Post-conviction petitions filed by capital defendants are handled differently. There is no provision authorizing the circuit court to dismiss the petition of a capital defendant if it is "frivolous or *** patently without merit." As noted above, the court must first determine whether the petitioner, if indigent, wants to be represented by counsel. After the petitioner makes that choice, the matter is then docketed for further proceedings. 725 ILCS 5/122—2.1(b) (West 1998). At that juncture the State may either answer the petition or move to dismiss it. 725 ILCS 5/122—5 (West 1998).

The circuit judge in the present case did not follow the procedure applicable to capital cases. Instead, she examined the contents of the petition and determined on her own that the matters raised by the defendant were without merit. That inquiry is appropriate only when the post-conviction petitioner has been sentenced to imprisonment. This was a capital case, however, and the judge could not rule on the defendant’s petition without first receiving a responsive pleading from the State. Cf. People v. Brisbon, 164 Ill. 2d 236 (1995) (responsive pleading not required when State had previously moved to dismiss earlier post-conviction petition).

Federal Captial Cases Relief Denied

Housel v. Head(11th Cir) Argument that use of uncharged crimes to determine aggravating factors should not be used unless it passes reasonable doubt standard in death penalty case is not entitled to retroactive application.

Housel next argues that the Eighth Amendment's requirement of reliability in death sentencing forbade the jury from weighing his unadjudicated crimes in Iowa, New Jersey, and Texas as nonstatutory aggravators until the jury had found, beyond a reasonable doubt, that he had committed the offenses. Like the district court, we reject this argument, although for a different reason.

Housel's argument is not novel. But it has never been accepted in any form by a majority [*18] of this court or the Supreme Court. See, e.g., Williams v. Lynaugh, 484 U.S. 935, 937-38, 108 S. Ct. 311, 313, 98 L. Ed. 2d 270 (1987) (Marshall, J., dissenting from denial of certiorari, addressing use of unadjudicated-crimes evidence in support of a statutory aggravating factor); Devier v. Zant, 3 F.3d 1445, 1467 (11th Cir. 1993) (Kravitch, J., specially concurring) (arguing for the adoption of Housel's proposed constitutional rule); see also Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir. 1984) (rejecting the argument that admission of evidence of unadjudicated crimes at sentencing violates an unspecified constitutional right).

Perhaps since last a court visited the question Eighth Amendment jurisprudence has evolved to recognize the right that Housel espouses. But we need not reach the merits of the question in this case. New rules of constitutional law are not a proper ground for relief in collateral proceedings. Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S. Ct. 1517, 1525, 137 L. Ed. 2d 771 (1997). This nonretroactivity rule, born in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), [*19] is a threshold issue, Lambrix, 520 U.S. at 524, 117 S. Ct. at 1523, and one that we have discretion to raise sua sponte, see Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 953, 127 L. Ed. 2d 236 (1994) ("[A] federal court may, but need not, decline to apply Teague if the State does not argue it."). The interests of comity -- especially here, where Housel did not offer his present constitutional arguments to the trial court or the Georgia Supreme Court -- persuade us to exercise that discretion.

To determine if a rule is new, Teague requires us to "survey the legal landscape," as of the date that Housel's conviction became final, to determine whether the relevant constitutional rule (here, one requiring a threshold jury finding of "guilt" of unadjudicated crimes before the jury considers them in death sentencing) "was dictated by then-existing precedent -- whether, that is, the unlawfulness of [Housel's] conviction was apparent to all reasonable jurists." Lambrix, 520 U.S. at 527-28, 117 S. Ct. at 1525 (emphasis in original). Housel's conviction became final on August 25, 1988, when the U.S. Supreme Court declined [*20] to rehear its denial of Housel's petition for certiorari to review the affirmance of his conviction. At that time, and even years later, the legal landscape was barren of all but the most general support for the rule Housel urges. General principles do not dictate rules. See Gray v. Netherland, 518 U.S. 152, 169, 116 S. Ct. 2074, 2084, 135 L. Ed. 2d 457 (1996) (rejecting the dissent's argument that a general right of due process -- a meaningful opportunity to explain or deny evidence -- dictated a rule that defendant be apprized of exactly the evidence that the prosecution would offer). Justices Marshall and Brennan's 1987 dissent in Williams v. Lynaugh, which contended that the Eighth Amendment prohibits the introduction of unadjudicated-crimes evidence altogether in capital sentencing, could cite no more specific authority for their arguments than the plurality opinion's statement in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976), that because death is different, "there is a corresponding difference in the need for reliability in the determination that death is an appropriate punishment." Williams, 484 U.S. at 938, 108 S. Ct. at 313 [*21] (Marshall, J., dissenting from denial of certiorari). n7 Six years later, well after the finality of Housel's conviction, Judge Kravitch of this court looked to similarly broad principles to justify an Eighth Amendment right to a threshold finding, at a death sentencing, of beyond-a-reasonable-doubt guilt on unadjudicated crimes used as future-dangerousness evidence. Judge Kravitch believed that such an instruction would balance the need for reliability articulated in Woodson with the state's "important interest" in presenting "all relevant evidence regarding the defendant's character." Devier, 3 F.3d at 1467 (Kravitch, J., specially concurring). But the rule she cogently supported was suggested, not dictated, by the precedent she cited. Nor is Housel's proposed rule, and we therefore conclude that it would be new.

Housel maintains, nonetheless, that the new rule he proposes falls within Teague's exception for "watershed rules of criminal procedure." Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1264, 108 L. Ed. 2d 415 (1990). The Supreme Court has emphasized the narrowness of this exception and held up Gideon v. Wainwright's n8 right to counsel as a benchmark of the advance in fairness and accuracy that a watershed rule must have. See id. Housel's rule would, perhaps, promote some marginal reliability in death sentencing. But it is only marginal; the jury would still hear potentially prejudicial evidence of unadjudicated crimes, tempered only by a requirement of an intermediate finding of "guilt" midway through the process before they weighed those crimes in the balance. The slight rigor conferred by this intermediate finding is not enough to give the rule the "primacy and centrality" of Gideon. Id. We thus think that the exception does not apply.

Neal v. Puckett(5th Cir) Whether or not the Mississippi Supreme Court correctly decided that mitigation evidence would be cumulative, it was not an unreasonable decision because the additional evidence would not have reduced the defendant's moral culpability for his heinous crimes.

Our conclusion that the state court's prejudice determination is incorrect, however, is not enough to afford federal habeas relief to Neal because, under AEDPA, we owe considerable deference to the Mississippi Supreme Court. The statute plainly states that we may not grant habeas relief unless the state court's decision unreasonably applies federal law. See 28 U.S.C. § 2254(d)(1); H.R. Conf. Rep. 104-518, 104th Cong., 2d Sess. 111 (1996) (Section 2254(d) generally "requires deference to the determinations of state courts"). Thus, Neal must go further yet and demonstrate that the prejudice determination of the Mississippi Supreme Court "involved an unreasonable application" of Strickland. We now turn to try to give meaning to the term "unreasonable application," especially as it applies to this case.

The Supreme Court in Williams explained that "a federal court making the 'unreasonable application' inquiry should ask whether the state court's application of law was objectively unreasonable." Williams, 120 S. Ct. at 1521. [*36] But even after Williams, it is not immediately clear to us whether a federal habeas court looks exclusively to the objective reasonableness of the state court's ultimate conclusion or must also consider the method by which the state court arrives at its conclusion. This question takes on some significance in a case such as Neal's, where the state court's holding (that Neal suffered no prejudice under Strickland) may be objectively reasonable, but in reaching that holding, the court did not adequately evaluate and weigh the substantial evidence-the implicit suggestion being that the state court may have reached a different, but still "reasonable," conclusion if a more thorough method of reasoning had been applied. n10

The Seventh Circuit, sitting en banc, appears to have concluded that federal courts must scrutinize a state court's method of reasoning. "By posing the question whether the state court's treatment was 'unreasonable,' § 2254(d)(1) requires federal courts to take into account the care with which the state court considered the subject." Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). The reasonableness of a court's application of federal law must be measured, at least in part, by determining whether a state court provided "a responsible, thoughtful answer reached after a full opportunity to litigate." Id. n11

Certain passages in the Williams decision could be read to support this view. Writing for the Court, Justice Stevens explained that the Virginia Supreme Court's "prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence--both that adduced at trial, and the evidence adduced in the habeas proceeding--in reweighing it against the evidence in aggravation." Williams, 120 S. Ct. at 1515. There is, therefore, at least some basis for the view that Section 2254(d)'s "unreasonable application" standard refers to the quality of the state court's analysis.

On the other hand, this process-oriented view has been rejected by other circuits n12 and challenged by Chief Judge Posner of the Seventh Circuit. In his view, scrutinizing state courts' methods of reasoning "would place the federal court in just the kind of tutelary relation to the state courts that the [AEDPA was] designed to end." Hennon, 109 F.3d at 334-35. Similarly, we do not interpret AEDPA in such a way that would require a federal habeas court to order a new sentencing hearing solely because it finds the state court's written [*39] opinion unsatisfactory. n13 It seems clear to us that a federal habeas court is authorized by Section 2254(d) to review only a state court's "decision," and not the written opinion explaining that decision.

In the absence of clear guidance from the Supreme Court, we conclude that our focus on the "unreasonable application" test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence. The latter approach appears unduly formalistic considering that the federal habeas court has the full [*40] record before it and is competent to determine whether Strickland has been unreasonably applied to the case before it. Even though a thorough and well-reasoned state court opinion may be more likely to be correct and to withstand judicial review, it simply does not follow that "the criterion of a reasonable determination is whether it is well reasoned." Id. at 334-35. Instead, the only question for a federal habeas court is whether the state court's determination is "at least minimally consistent with the facts and circumstances of the case." Id. at 335.

Thus, in making our unreasonable application determination, we look only to the substance of the Mississippi Supreme Court's decision. The state court concluded that presentation of the additional mitigating evidence would probably not have changed the outcome of the case. The precise question, then, is whether the court's ultimate conclusion--that there was no prejudice and, consequently, no ineffective assistance of counsel under the Strickland test--is minimally consistent with the facts of Neal's case.

As we have iterated throughout this opinion, the facts of this case are as horrible [*41] as one can imagine. The jury was reminded repeatedly that Neal killed his own brother in an argument that began when Neal fondled his young niece; that Neal, after killing his brother, kidnaped his niece and her friend and then brutally raped and killed both girls; that he shot his niece and left her to suffer for perhaps thirty minutes before she died. If any murder qualifies as "heinous, atrocious, or cruel," the murder of Amanda Joy Neal does. We acknowledge that it was surely not unreasonable for the Mississippi Supreme Court to suggest (implicitly) that the evidence mitigating his moral culpability would have to be overwhelming.

The jury in mitigation heard Neal's pitiful life story from his mother and a psychiatrist. The jury thus had before it evidence that Neal had an IQ of 54 and the mental ability of an eight year old; that he had been neglected by his family and spent much of his youth in state institutions for the retarded and mentally ill; that he had sexual identity problems; and that because of his mental deficiencies, he was less able to control his impulses. The evidence actually presented at the sentencing hearing did not persuade the jury to mitigate Neal's sentence. [*42]

Neal's supplemental mitigation evidence also relies almost exclusively on testimony that he was mentally retarded and had been badly mistreated by numerous people throughout his life. Much of this evidence had already been presented, even if in an outline form. The only new evidence was that some of the people whom he had encountered felt sorry for Neal and that their sympathy for his plight caused them to reach out to him. Moreover, the testimony about Neal's life at Whitfield and the Oklahoma prison would have proved to have been double-edged in the sense that it would have reminded the jurors that Neal was a bully and had a criminal conviction. Although the additional mitigating evidence was of a significantly better quality than that actually presented, much of it was similar in nature to the original evidence. With those considerations in mind, the Mississippi Supreme Court concluded that the additional evidence was not substantial enough to outweigh the overwhelming aggravating circumstances.

Under the deferential standard of Section 2254(d), and given the circumstances of this case, we cannot conclude that the Mississippi Supreme Court unreasonably applied Strickland to [*43] the facts of Neal's case. It was not unreasonable, in other words, to conclude that the outcome would have been the same because the additional evidence did not serve to reduce further his moral culpability for such a heinous and unforgivable crime beyond the evidence already presented. We thus hold that the state court's prejudice determination was objectively reasonable in the sense that it is not inconsistent with the facts of this case--specifically, when those facts are viewed in the context of the extreme cruelty of the murder as an aggravating circumstance and that much of the mitigating evidence had already been presented to the jury, albeit in an abbreviated form.

Riley v. Taylor(3rd Cir) In striking three African Americans from jury panel, prosecution did not violate prohibition against race-based peremptory challenges of jurors under Batson v. Kentucky where district court found each of the prosecution's strikes to be race-neutral, or unrelated to race.

State Captial Cases Relief Denied

Kight v. State(Florida)(state pc) "On appeal to this Court, Kight raises three claims relating to the denial of his motion for postconviction relief: (1) that the trial court erred in denying sentencing relief after finding that Kight's death sentence is "unconstitutionally disparate"; (2) that the newly discovered evidence of Hutto's involvement entitled [*8] Kight to a new trial and sentencing; and (3) that the trial court failed to consider the cumulative effect of all the evidence not presented at Kight's original trial."

Valle v. State(Florida)(state pc) "In the present case, Valle raises two issues on appeal from the trial court's denial of postconviction relief. First, Valle claims the trial court erred in adopting almost verbatim the State's proposed order denying 3.850 relief, in violation of Valle's due process rights. Second, Valle asserts that the record demonstrates ineffective assistance at his resentencing due to defense counsel's presentation of Skipper evidence"

Daniels v. State (Indiana)(successive state pc) In this appeal from the denial of his successive petition for post-conviction relief, Daniels contends that (1) his trial counsel were ineffective; (2) the attorney who filed his motion to correct error was ineffective; and (3) counsel from the first post-conviction proceeding was ineffective. We affirm [*2] the denial of post-conviction relief.

State v. Taylor(Louisiana) (direct appeal) Relief denied on direct appeal on a challenges to the racial composition of the jury under Batson (with dissents), as well as whehter several jurors should have been removed for cause.

State v. Kelly (South Carolina) (direct appeal) (available only at lexisone.com) Appeal denied on challneges based upon the comments relating to the victim being pregnancy, the trial court's refusal to charge the jury on parole ineligibility (with dissents), the trial court refusing to charge the jury that future dangerousness was not at issue, improper bolstering of witnesses, and admission of hearsay.

Salazar v. State, (Texas)(direct appeal)Relief denied on claims that the evidence legally insufficient to support the jury's affirmative answer to the "future dangerousness" special issue, insufficienct evidence to support the jury's negative answer to the mitigating evidence special issue, failure to instruct on parole eligibility, the failure to change venue, the admission of inflammatory evidence, the excusal of a juror for causem and the admission of hearsay testimony regarding an extraneous offense

Ray v. State (Alabama)(direct appeal)(available only at lexisone.com) Appellant argues that the trial court erred in: allowing jurors to consider as an aggravating circumstance his 1999 capital conviction for multiple murders; allowing certain comments by the prosecutor during his arguments to the jury; by not arraigning him on a new indictment; denying two of his challenges for cause, which, he says, forced him to use peremptory strikes to remove the two veniremembers from the jury;in denying his challenge to the method of execution; admitting into evidence statements that he made while he was in police custody; admitting into evidence photographs of the victim and the crime scene; and, denying his motions for a judgment of acquittal, which were made at the close of the State's case and again at the close of all the evidence.

Baker v. State (Alabama)(direct appeal) (available only at lexisone.com) The appellant argues that the trial court erred in: denying his request for new counsel, which he made before and during the trial; showing a bias against him by joking when discussing the issue of appropriate attire for him at trial, by characterizing his motion as ridiculous, and by refusing to grant mistrials on several occasions during trial. In his reply brief to this court, the appellant also cites an occasion when the trial court threatened to gag the appellant;denying his motion for a change of venue, because he alleges that there was adverse publicity and that he was prejudiced by it was demonstrated through voir dire examination of potential jurors; indicating a bias against the appellant by making inconsistent rulings on hearsay objections; the appellant argues that by denying defense counsel's hearsay objection and sustaining the State's objection on the same ground, the trial court showed "a preference for the State's case;" the admission into evidence of "oversized, grossly inflammatory, and highly prejudicial photographs"; in failing to inform the appellant of his right to apply for youthful offender status; finding the present case were not ineffective for failing to present any evidence at the youthful offender hearing or for failing to timely file an application for youthful offender treatment; failing to grant a mistrial based on four separate motions raised by defense counsel; and failing to grant his strike for cause of a juror who was related to a supervisory official of emergency 911 dispatch.

Other Notable Cases

Magouirk v. Warden(5th Cir) Where defendant's confrontation rights under the Fifth Amendment were thwarted because of a lack of a meaningful opportunity to cross-examine the witness, hearsay statements are inadmissible absent a waiver.

Doan v. Brigano(6th Cir) Application of Ohio Evid. R. 606(B) to exclude affadavit of juror misconduct in motion for new trial violated petitioner's Sixth Amendment right to confront evidence and the witnesses presented against him, as well as his right to a jury that considers only the evidence presented at trial.

Taylor v. Rodriguez(2nd Cir) Notice to prisoner for placement in disciplinary segregation must be more specific than a general accusation of being in a prison gang, or a conclusory accusation of causing prison unrest.

Outrages of the Week

People v. Palmer(California) Following the acquittal of all alleged co-conspirators but one, California Supreme Court holds that the remaining conspirator can seemingly conspire with himself for purposes of state law.

InFeatured

Edward Lazarus this week examines the scheduled McVeigh execution and considers what this may portend for those on federal death row. Mr. Lazarus is a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently,Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

THE COMING ERA OF FEDERAL EXECUTIONS? Legal Challenges We Can Expect If More Federal Defendants Share Mcveigh's Fate

By EDWARD LAZARUS

elazarus@findlaw.com

Last week, a federal court set an execution date for convicted mass murderer Timothy McVeigh; the nation prepared to inaugurate a President who, as Governor of Texas, presided over the modern record for annual executions by a single state; and the Senate appeared on the verge of confirming an Attorney General who, as Senator from Missouri, torpedoed the nomination of a state supreme court justice because he had voted to overturn roughly one in five death sentences to come before his court.

The confluence of these events gives rise to the very real possibility that, for the first time in nearly 40 years, the federal government will soon start executing people again. This is cause for reflection. Why do we countenance the death penalty? And what legal challenges await the federal government as it seeks to revive a punishment abandoned in the 1960s?

Claimed Death Penalty Justifications

Politicians consistently obfuscate the reasons for having a death penalty. In one of the more stunning moments of the presidential debates, both George W. Bush and Al Gore agreed on the legal and moral justification for the death penalty. Each said that capital punishment serves as a deterrent.

I doubt either candidate believes this highly counter-intuitive proposition. Most capital murders are committed either by stone cold killers or people with deep emotional disturbances and limited mental capacities. Many capital crimes are committed in a state of insobriety. Death sentences, meanwhile, remain rare, and actual executions are even rarer — and, moreover, are delayed on average more than 10 years after conviction. It defies logic to think that the remote possibility of a long-delayed execution deters the kind of people who commit capital crimes. And I am aware of no credible scientific evidence to support a deterrence theory.

Timothy McVeigh embodies the real reason to have a death penalty. Some conduct is so brutally destructive of the social compact that society has a moral and legal right (some might say a duty) to extinguish the life of the perpetrator.

As prominent political philosophers have argued for centuries, it can be a profoundly moral act to declare some actions beyond the bounds of humanity and, thus, punishable by death. That is why executing Eichmann was justifiable. That is why executing McVeigh is justifiable as well. And politicians only degrade this ethical rationale for the death penalty by hiding behind the pretense of deterrence.

Even if the Penalty Is Justified, Can Our System Impose It Fairly?

But to recognize that, in theory, the death penalty is easily justified (as well as constitutional) does not answer the unavoidable question of whether we have the ability to design a system of capital punishment that meets with our competing ideals of accuracy, equality, and fairness. The new federal death penalty statute creates an exquisite case in point.

The current federal death penalty system was designed by several of the smartest legal minds in the country, including Seth Waxman, the outgoing Solicitor General who, ironically, cut his teeth as a lawyer defending capital cases. These death penalty skeptics designed a system filled with guidelines, review committees, and review of the review committees — all intended to filter out the possibility of mistake or inequity. Importantly, the system includes final review by a special committee inside the Department of Justice, and at a distance from the "line" prosecutors who make the initial decisions whether to seek the death penalty.

In some respects, the DOJ masterminds may have succeeded. In recent years, DNA testing has proven the innocence of dozens of people sentenced to death in state courts. To date, no one sentenced to death in the federal system has made a similar showing of innocence. Perhaps the multiple levels of case review in the federal system have successfully reduced the odds that federal capital charges are brought against innocent persons.

Persistent Racial Issues with the Death Penalty: the Court's McCleskey Decision

But for all the careful planning, by DOJ's own analysis, the federal death penalty remains fatally flawed. As is evident from a report that DOJ released last fall (which regrettably received little media attention amid the white noise of the election campaign), the federal death penalty system is deeply infused with racial bias.

The issue of race discrimination in the death penalty is not new. In the 1987 case of McCleskey v. Kemp, the Supreme Court, by a 5-4 vote, rejected an equal protection and Eighth Amendment (cruel and unusual punishment) challenge to Georgia's death penalty statute that raised this issue.

The challenge was based on a state-of-the-art statistical study showing that murderers of white people were 4.3 times more likely to get the death penalty than comparable murderers of blacks. Put simply, the study showed that Georgia's capital case prosecutors and juries valued white lives far more than black lives.

But Justice Lewis Powell, the author of McCleskey and the swing vote in the case, was unimpressed with these statistics. In his view, if Georgia's death penalty really were discriminatory, then the statistical study would have shown that a disproportionate number of Georgia's death penalty defendants were black. Powell took considerable comfort in the fact that, instead, the only significant racial disparity in the Georgia system correlated not with the race of capital defendants, but rather with the race of their victims.

More Recent Racial Statistics Are Particularly Damning

Well, the dog that did not bark in McCleskey is raising hell now. DOJ's statistical analysis of the federal death penalty shows (despite all the well-intentioned safeguards) a stunning racial disparity in the race of capital defendants.

In other words, exactly the kind of evidence of racism that would have convinced Powell of the Georgia death penalty's unconstitutionality in McCleskey has now emerged unmistakably with respect to the federal death penalty. Thus, if Powell were still on the Court, one would think he would vote to declare the federal death penalty unconstitutional — and at least four of the current Court's members might well agree.

Take Justice Powell's home state of Virginia. Since the reinstitution of the federal death penalty in 1988, DOJ has sought to impose the punishment on 60 Virginia defendants. Of this group, 53 were black, 2 were Hispanic, and 5 were white. Notably, the 5 white defendants were in a class by themselves. They were indicted for espionage.

Admittedly, these are raw numbers. Perhaps a part of this glaring racial disparity can be accounted for by decisional factors unrelated to race. But can anyone seriously argue that race did not play an invidious role in how the federal government chose to prosecute potential capital cases in Virginia?

In 12 years, not a single white defendant in a non-espionage case was thought to deserve the death penalty, while 55 minority defendants were. Despite having worked as a federal prosecutor and holding federal law enforcement and prosecutors in generally very high regard, I find that's far more than I can swallow.

Apparently, the Clinton Administration felt the same way. In 1992, Clinton won office in part by rushing back to Arkansas to preside over the execution of a borderline mentally retarded person. But recently, he quietly pushed off the federal execution scheduled on his watch (Juan Garza's) into the Bush Administration.

The new President is a staunch proponent of the death penalty. He also avows a deep devotion to racial justice and equality. One of the first great challenges of George W. Bush's presidency will be to reconcile these two irreconcilable commitments — that is, to come to terms with the fact that Timothy McVeighs of the world deserve to die, yet the system that would put them to death remains, despite the best of intentions, seemingly irreparably flawed.

Errata

From theDeathPenaltyInformation Centerreports:

Illinois Supreme Court Sets Death Penalty Rules

On Monday, January 22, the Illinois Supreme Court set new rules to improve the state's capital punishment system by establishing minimum standards of training and experience for lawyers and prosecutors in death penalty cases. The new rules institute standards of criminal litigation experience for attorneys, require prosecutors to make a "good faith effort" to notify defense attorneys of evidence that could help the defense, and direct them to let defendants know more quickly if they intend to seek the death penalty. In addition, the rules establish new standards for disclosing DNA evidence, and provide seminars for judges who might preside over capital cases. The new rules, which will be published and become official in March, are the product of nearly two years of study, public hearings, and revisions by a committee of 17 judges from across Illinois. (Associated Press, 01/23/01 and Chicago Tribune, 01/23/01) A moratorium on all executions was declared in Illionois in January, 2000 after 13 death row inmates were exonerated for their crimes.

Full Fifth Circuit to Review Texas Death Row Inmate's "Sleeping Lawyer" Claim

On Monday, January 22nd, the full U.S. Court of Appeals for the Fifth Circuit will review an earlier ruling in the case of Calvin J. Burdine, a Texas death row inmate whose lawyer slept during parts of his trial. Burdine is appealing the Court's October, 2000, holding that a defendant in a capital murder trial does not have an absolute right to an attorney who stays awake during the entire trial. In his dissent of that decision, Judge Benavides said that sending a man to death row under these circumstances "shocks the conscience." (DPIC Press Release, 1/19/01)

President Clinton Grants Clemency to Federal Death Row Inmate Raising Innocence Claim

On his last day in office, President Clinton commuted David Ronald Chandler's death sentence to life in prison. Chandler was the first man sentenced to death under the 1988 federal drug kingpin law, yet doubts about his guilt have surfaced. Since Chandler's trial, the actual triggerman, Charles Ray Jarrell, who was the main government witness against Chandler, has recanted his testimony. Jarrell told the Atlanta Journal- Constitution that after drinking 23 beers he killed the victim, Martin Shuler, because Shuler badly abused Jarrell's sister. Jarrell said Chandler had nothing to do with Shuler's murder. (Associated Press, 1/20/01 and Atlanta Journal-Constitution, 1/12/01)

Texas Legislator Introduces Death Penalty Moratorium Bill

Texas State Rep. Harold Dutton (D-Houston) filed legislation to put a two-year ban on executions while a nine-member commission studies capital punishment in Texas. The commission would examine the quality of defense attorneys and the appellate review process and report back to the Texas Legislature in 2003. "Let's fix the whole system once and for all," Dutton said. "That was the whole reason for the bill." (Houston Chronicle, 1/18/01)

DNA Exonerates Another Texas Prisoner

Texas District Judge Bob Perkins ordered Christoper Ochoa's release from a life sentence after DNA tests proved his innocence. Perkins stated that Ochoa "suffered a fundamental miscarriage of justice." In 1988, Ochoa and Richard Danziger were convicted of rape and murder and were sentenced to life imprisonment. Ochoa says he only confessed to the crime, and implicated his then-roommate Danziger, after prosecutors threatened him with the death penalty. "There is no way to explain what happened here without pointing out one of the real problems with the death penalty," said attorney Barry Scheck, co-founder of the Innocence Project at Cardozo Law School. "We have a man who gave a false confession and testified falsely against another man in order to avoid execution." Evidence of Ochoa's innocence was first discovered by law students at the University of Wisconsin's Innocence Project.

In 1998, Achim Josef Marino, who is serving a life sentence for an unrelated offense, sent a letter to Governor George W. Bush confessing to the crime, but Bush never turned it over to law enforcement authorities. DNA tests now point to Marino as the perpetrator. "It's a bad feeling knowing [the system] failed," said Bryan Case, assistant district attorney for Travis County, Texas.

Danziger, who's lawyers plan to ask for his release, sustained permanent head injuries as a result of being severely beaten in prison. (Associated Press, 1/16/01 and Los Angeles Times, 10/14/00) See also, Innocence

$ Costs: Death Penalty Strains Budget in Georgia Counties

The Savannah Morning News recently reported that small counties in Georgia are going broke prosecuting death penalty cases. "If you're spending $300,000 for a (death penalty) case, that's $300,000 that could be used for buying road equipment, paying salaries, the fire and sheriff's departments. We don't have a lot of room to play with," said Richard Douglas, the Long County, GA, Administrator. Douglas, who had to rely on emergency state grants to keep paychecks from bouncing, added, "If you have 2 or 3 of these in a row, that can put you in a million dollar hole. We're probably not too far removed from that." (Savannah Morning News, 1/14/01)

Texas Legislator Introduces Death Penalty Moratorium Bill

Texas State Rep. Harold Dutton (D-Houston) filed legislation to put a two-year ban on executions while a nine-member commission studies capital punishment in Texas. The commission would examine the quality of defense attorneys and the appellate review process and report back to the Texas Legislature in 2003. "Let's fix the whole system once and for all," Dutton said. "That was the whole reason for the bill." (Houston Chronicle, 1/18/01)

DNA Exonerates Another Texas Prisoner

Texas District Judge Bob Perkins ordered Christoper Ochoa's release froma life sentence after DNA tests proved his innocence. Perkins statedthat Ochoa "suffered a fundamental miscarriage of justice." In 1988,Ochoa and Richard Danziger were convicted of rape and murder and were sentenced to life imprisonment. Ochoa says he only confessed to the crime, and implicated his then-roommate Danziger, after prosecutors threatened him with the death penalty. "There is no way to explain what happened here without pointingout one of the real problems with the death penalty," said attorney BarryScheck, co-founder of the Innocence Project at Cardozo Law School. "We have a man who gave a false confession and testified falsely againstanother man in order to avoid execution." Evidence of Ochoa's innocencewas first discovered by law students at the University of Wisconsin's InnocenceProject. In 1998, Achim Josef Marino, who is serving a life sentence for an unrelated offense, sent a letter to Governor George W. Bush confessing to the crime, but Bush never turned it over to law enforcement authorities. DNA tests now point to Marino as the perpetrator. "It's a bad feeling knowing [the system] failed," said Bryan Case, assistant district attorney for Travis County, Texas. Danziger, who's lawyers plan to ask for his release, sustained permanent head injuries as a result of being severely beaten in prison. (Associated Press, 1/16/01 and Los Angeles Times, 10/14/00) See also, Innocence

$ Costs: Death Penalty Strains Budget in Georgia Counties

The Savannah Morning News recently reported that small counties in Georgia are going broke prosecuting death penalty cases. "If you're spending $300,000 for a (death penalty) case, that's $300,000 that could be used for buying road equipment, paying salaries, the fire and sheriff's departments. We don't have a lot of room to play with," said Richard Douglas, the Long County, GA, Administrator. Douglas, who had to rely on emergency state grants to keep paychecks from bouncing, added, "If you have 2 or 3of these in a row, that can put you in a million dollar hole. We'reprobably not too far removed from that." (Savannah Morning News, 1/14/01)

Federal Death Row Inmate Raises Innocence in Clemency Petition to Clinton

David Ronald Chandler, the first man sentenced to death under the 1988 federal drug kingpin law, is asking President Clinton to commute his death sentence. "Mr. Chandler's sentence of death should be commuted primarily because there is now substantial doubt as to his guilt," said Chandler's attorney JackMartin. Since Chandler's trial, the actual triggerman, Charles RayJarrell, who was the main government witness against Chandler, has recantedhis testimony. Jarrell told the Atlanta Journal-Constitution that afterdrinking 23 beers he killed the victim, Martin Shuler, because Shuler badlyabused Jarrell's sister. Jarrell said Chandler had nothing to do with Shuler's murder. Chandler's final appeal is now pending before theU.S. Supreme Court. (Atlanta Journal-Constitution, 1/12/01)

2001 Executions Begin with 4 in the South

The first executions of 2001 were all in the south, with one each in Florida and Texas, and two in Oklahoma. This continued a pattern from lastyear when almost 90% of all executions were in the south. Among thefirst executions was that of Wanda Jean Allen, the first black woman executedsince the death penalty was reinstated. Ms. Allen was represented byan inexperienced attorney who failed to raise the issue of her mental disabilities.

New Voices:

California District Attorney Refuses to Seek Execution

San Francisco District Attorney Terence Hallinan has promised not to pursue the death penalty and recently refused to seek an execution date for death row inmate Robert Lee Massie, despite the fact that Massie has waived his appeals.

"[T]here's a moratorium on the death penalty inSan Francisco during my administration.... I am cognizant of what's happening all over the country, where people are questioning the fairness and appropriateness of the death penalty. I feel LWOP (life without parole) is a better resolution in those cases, so I want to see if I can do anything with [the Massie] case, which happened before I was in office."

(San Francisco Chronicle, 1/6/01)

Oklahomans Split on Moratorium

A Tulsa World poll found that 41% of Oklahomans said that they agreed with Oklahoma religious leaders, who have been calling for a 5-year moratorium on the death penalty, and would support a moratorium; 49% said they opposed it. (Tulsa World, 1/9/01) See also, Public Opinion

EDITORIAL

After Ronnie Burrell and Michael Graham were released from Louisiana's death row (see below), an editiorial in the Minneapolis Star-Tribune stated:

"A great and glorious deed has been done, but still it must be asked: Why should it take two lawyers from Minnesota - two commercial lawyers at that - to save an innocent man from Louisiana's electric chair? The question nearly answers itself. By its nature, capital punishment singles out society's unlucky - its poor, its unschooled, its castoffs, - for cruel sport. States that embrace such brutality must shrug off mounting evidence of its caprice and its great potential to claim innocent lives. And since the death-penalty states shrug, lawyers from elsewhere - thereare many from Minnesota - must step in to see that justice is done.

"After all, justice does not seek out people likeRonnie Burrell. It must be sought out for them. This triumph holds at itscore a tragedy - one which Shakespeare knew cold. 'Plate sin with gold,'he wrote in 'King Lear,' 'and the strong lance of justice hurtless breaks. Arm it in rags, a pygmy's straw doth pierce it.'

"A sweeter way of saying that only the poor get the chair. But despite his rags, Ronnie Burrell committed no sin. He deserved neither the chair nor a moment's nap on a prison bed. It took two Minnesota attorneys to prove it. One good reason, among others, not to kill all the lawyers."

(Minneapolis Star-Tribune, "Death-row rescue by Minnesota's life-saving lawyers" January 5, 2001)

Earlier Death Row Exoneration Reported

Jimmy Lee Mathers was convicted of first degree murder in 1987 andsentenced to death along with two co-defendants. At trial, Mathers movedfor a judgment of acquittal at the close of the prosecution's case, maintainingthat the state had not presented evidence sufficient to support a conviction. The motion was denied, and all three men were found guilty and sentencedto death. Mathers' case was reviewed by the Arizona Supreme Court in1990, and viewing the evidence in the light most favorable to the prosecution,the Court found that there was a complete absence of probative facts to support Mathers' conviction. The court stated that most of the evidence presented at trial had "nothing to do with Mathers" and noted that even the trial judge expressed doubt as to whether Mathers was involved in the crime. The Court set aside Mathers' conviction and sentence and entered a judgment of acquittal. (State v. Mathers, 796 P.2d 866 (Ariz. 1990)) Oneof Mathers' co-defendants, Theodore Washington, has raised a similar claimabout the insufficiency of the evidence against him, but remains on deathrow. Mathers' exoneration brings the number of death row inmates whohave been freed to 93. See also, Innocence.

From the mailbox

From this week's inbox:

CDW & Copyright

I'm trying to create a web site for the DP in Texas and I was looking for a nice Disclaimer for the use of copyrighted materials. The last CDW that I've got had a real nice "fair use notice" that I've pasted at the end of this message. Well, can I use it in my web site? I would never EVER be able to write one as good as this one. . .

Alessandra

[CDW: Thanks, but almost everything on the CDW site (save the intro to each week's CDW) is swiped from somewhere else. This site and this newsletter (except for the disclaimer below) is released into the public domain and may be "borrowed" in whole or part as long as you are "borrowing" my works and not someone else's work that I "borrowed." --k]

(T)executions, (Okla)homicides

Greetings. The following is the execution calendar for the next few weeks. It's a long list and probably includes the name of the 700th person to be executed since resumption.

I am thinking about how to mark that awful 700th execution, but haven't yet made plans. I am overwhelmed by the number. I want this huge number to be broken down into small, discrete particles, so that instead of aggregating these people into a neat, faceless group, we could pause and look at each and every one of them, so that we could look at their faces, into their eyes, know their stories, know their families, know their joy and their pain, know their victims, know their jailers and their executioners, and finally see how very much each one of them is exactly us. I pray that we can remember this.

May we stop killing and may we have the courage to prevent others from killing. May all beings have happiness and the causes of happiness. May all beings be free from suffering. May all beings affirm life and live their lives fully. May all beings treasure not knowing the hour of their death. May all beings bask in the spiritual bliss that is beyond sorrow. May all beings have peace. peace, david.

note: execution datesthought to be considered SERIOUS are marked with adesignation of "s"-- This means that an execution is considered most likely to be carried out. But a name with no "s" designation may simply mean that not enough information is currently available to know whether the execution date is serious.

-- David Seth Michaels

[As always David, thank you for your invaluable contributions. --k]

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