The 800 pound gorilla in this edition is Brown v. Sanders. By a 5-4 vote the Court reverses a prior grant of penalty phase relief by the Ninth Circuit. In reversing relief the Court holds that if an invalid aggravating factor was part of the process of narrowing of the class of individuals subject to the death penalty a sentence but others remain to serve the narrowing function a death sentence may be upheld. In dicta the court notes that if the invalid factor introduced evidence that wouldn't otherwise have been introduced in the penalty phase proceedings the sentence must be stricken. In dicta the court seems to hold that it will no long recognize different treatment of weighing and nonweighing states. The majority opinion offers a little something for both prosecutors and defense attorneys including new lingo for penalty phase proceedings. Whether the new lingo and seemingly new approach to penalty phase adjudications is a lasting change will only be known over time, especially the interplay of Sanders with the post-Apprendi line of cases.

The Court also handed down to new habeas opinions, both from the Ninth Circuit and both from California. In Evans v. Chavis the Court narrowly tailors a holding that under California's unique appellate system undue delay in "appealing" a matter may bar federal habeas corpus relief on timeliness grounds. In Rice v. Collins the Court holds that the Ninth Circuit erred in improperly substituting its evaluation of the record for state court's fact-finding. Both cases are overly fact sensitive which, considering Sanders also came from the same lower court, seems to translate into a continued heightened chance of certiorari being granted in Ninth Circuit cases.

In the "win column" the Sixth Circuit granted relief in Franklin v. Anderson on q multi-tiered claims of ineffective assistance of counsel relating to an underlying claim of sitting of a biased juror. In getting to relief the Franklin panels examines the horrible job counsel on appeal did in the state appellate courts. As one blogger noted, the "first page of the opinion says that it's 'recommended for full-text publication.' Here's the lesson for the rest of us lawyers: If this isn't how you want to be immortalized in the Federal Reporter, then don't do what these lawyers did. When you show up for oral argument, be prepared, and be professional."

In Capano v. State the Delaware Supreme Court seemingly explains the dicta the SCOTUS would release the next day in Sanders. Specifically, a statutory "aggravating circumstance operate as 'the functional equivalent of an element of a greater offense' and that the Sixth Amendment required that this element be 'found by a jury'" by a unanimous verdict. The interplay between post-Apprendi state level adjudications like Capano and Sanders will be a trend to watch in 2006.

Three other wins are noted. In State ex rel. Johns v. Kays the Missouri Supreme Court holds that the state may be collaterally estopped from litigating mental retardation claims if a trial court in another proceeding finds the Defendant ineligible for execution under Atkins. In Knight v. Dretke and Hughes v. Dretke, apparently taking the Court's recent "ruminations" on the subject, two different Fifth Circuit panels summarily grant COAs on a grab bag of issues; whether the COAs will translate into grants of relief remain to be seen.

Of the losses one stands out, Blonner v. State. The Oklahoma Court of Criminal Appeals in Blonner overturned its prior holdings in State ex.rel. Lane v. Bassand Murphy v. State on mental retardation. What is notable is that the Bassand and Murphy were both decided post-Atkins. Whether other courts will similarly revisit their post-Atkins standards in light of experience and practice remains to be seen.

Several interesting headlines since the last time edition was sent. DNA came back on Roger Coleman, still guilty. The Houston crime lab's problems are spreading, yet again. California botched the execution of Ray Allen. Judge Alto's confirmation produced some relevant quotes, set forth in detail at the end of this edition. And of course New Jersey declared a time out on executions.

Two additional pieces of news from around the headlines. Julius Murphy has received a stay on Atkins related issues in Texas. John Spirko in Ohio has received a stay as well relating to innocence issues.

Finally, we have been suffering from tech problems here. Much of what appears here relies on an email account at my old practice's site (karlkeys.com) that is down due to problems with the web hosting company (Yahoo! forgot to renew the registration on the domain name). With out that email account I have no access to various automated searches, as well as tip-offs from friends and colleagues, on which the weekly depends. Put another way, what took 5 minutes a few weeks ago now take 5 hours.

As always, please forgive the typos and thanks for reading. - k

Archived on the net at http://capitaldefenseweekly.com/archives/060116.htm

ExecutedJanuary

17 Clarence Ray Allen (California)

20 Perrie Simpson (North Carolina)

Pending Executions

January

24 Clarence Hill (Florida)

25 Marion Dudley (Texas)

27 Marvin Bieghler (Indiana)

31 Jaime Elizalde (Texas)

31 Arthur Rutherford (Florida)

February

6-10 Vernon Evans Jr. (Maryland)

7 Glenn Benner (Ohio)

8 Robert Neville Jr. (Texas)

15 Clyde Smith (Texas)

21 Michael Morales (California)

23 Steven Staley (Texas)

More Execution information

SCOTUS

Brown v. Sanders, 2006 U.S. Lexis 760 (1/11/06) By a 5-4 vote holding since at least one aggravating factor remains to have narrowed the class of death eligible crimes the Ninth Circuit erred in granting relief.

Evans v. Chavis, 2006 U.S. Lexis 757 (1/10/06) Establishing that where states do not themselves impose an exacting timeliness rules for filing an "appeal" a timeliness requirement will be imposed for purposes of the AEDPA's statute of limitations.

Rice v. Collins, 2006 U.S. Lexis 913 (1/18/06) Ninth Circuit erred in improperly substituting its evaluation of the record in the place of the state court's fact-finding

Allen v. Ornoski, 2006 U.S. Lexis 763 (1/16/06) Stay and other relief denied with Justice Breyer dissenting:

Petitioner is 76 years old, blind, suffers from diabetes, is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute “cruel and unusual punishment.” U. S. Const., Amdt. 8. See Knight v. Florida, 528 U. S. 990, 993 (1999) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 525 U. S. 944 (1998) (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., respecting denial of certiorari).

Cert Grant: Dixon v. United States (05-7053) Cert granted on whether the prosecution or the defense has the burden at trial on the issue of duress or coercion as a defense to a criminal charge -- an issue that has divided lower courts.

Favoring Life and Liberty

Franklin v. Anderson, 2006 U.S. App. LEXIS 444;2005 FED App. 2005P (6th Cir. 1/9/2006) Relief granted on multi-tiered claims of ineffective assistance of counsel relating to an underlying claim of sitting a biased juror.

Capano v. State, 2006 Del. LEXIS 1 (Del 1/10/2006) Statutory "aggravating circumstance operate as 'the functional equivalent of an element of a greater offense' and that the Sixth Amendment required that this element be 'found by a jury'" by a unanimous verdict

State ex rel. Johns v. Kays, 2006 Mo. LEXIS 9 (Mo 1/10/2006) State is collaterally estopped from litigating mental retardation claims after a trial court in another proceeding found the Defendant ineligible for execution under Atkins.

Knight v. Dretke, 2006 U.S. App. LEXIS 765 (5th Cir 1/12/2005) (unpublished) COA summarily granted on issues pertaining to: whether Knight's right to due process was violated by the prosecution's suppression of mitigating evidence on future dangerousness; whether Knight's trial counsel rendered ineffective assistance at both phases of his trial by failing to adequately investigate and present evidence of Knight's mental condition and other mitigating evidence; as well as, whether Knight's rights were violated when the trial judge granted the State's challenge for cause and excluded a prospective juror.

Hughes v. Dretke, 2006 U.S. App. LEXIS 113 (5th Cir 1/4/2006) COA granted, in part, on claims relating to: whether the jury instructions at the punishment phase of the trial gave the jury a means for considering and giving effect to Hughes's mitigating evidence, and whether this claim is procedurally barred; whether, at the punishment phase, the jury improperly considered a prior conviction that was later overturned on appeal; and whether the prosecutor violated Hughes's rights under the Fourteenth Amendment by arguing at the close of the punishment phase that Hughes's counsel was wrong to cross-examine Tracy Heggar, who testified as a witness for the State.

Favoring Death

Blonner v. State, 2006 OK CR 1;2006 Okla. Crim. App. LEXIS 1 (Ok Crim App 1/5/2006) Setting forth standards for Atkins claims at the trial level.

Spicer v. State, 2006 Miss. LEXIS 20 (Miss 1/5/2006) Relief denied on claims relating to: being brought before the jury in shackles; improper admission of evidence of flight from authorities.; improper admission of prejudicial evidence of character of the decedent in the State's case in chief; failure to suppress evidence seized; insufficiency of evidence to prove guilt of capital murder; denial of a lesser-included offense instruction; jury instruction relieved the State of the burden of proving intent to commit the underlying felony; allowing the prosecution's "send a message" argument in the guilt phase; failure of the indictment to charge aggravating circumstances and a mens rea standard; removal, for cause, of jurors qualified to serve; prosecutorial misconduct in closing argument of the sentencing phase; allowing the jury to consider the aggravators of robbery and pecuniary gain; admission of irrelevant and prejudicial photographs of the accused; and cumulative error sufficient to require reversal of the conviction and death sentence.

Tisius v. State, 2006 Mo. LEXIS 12 (Mo 1/10/2006) Relief denied on claims including that the prosecutor knowingly presented false and misleading evidence and argument, as well as whether trial counsel was ineffective for failing to object to the prosecutor's argument.

State v. Forrest, 2006 Mo. LEXIS 1 (Mo 1/10/2006) Relief denied on claims relating to: hearsay testimony of two police officers concerning their rendition of the underlying shoot-out; statements made by the prosecutor during the guilt and penalty phase closing arguments; sufficiency of the evidence and state statutory review of sentence.

State v. Jackson, 2006 Ohio LEXIS 1 (Ohio 1/4/2006) Jackson loses on: admission of confession; various rulings on prosecutorial comments; jury instructions on purpose and reasonable doubt; ineffective assistance; as well as statutory review of sentence.

State v. Page, 2006 S.D. LEXIS 6;2006 SD 2 (S.D. 1/4/2006) (dissent) Relief denied on claims relating to: recusal of circuit judge; sufficiency of statute limiting class of persons eligible for death penalty; use of vague and overbroad aggravating factor; sufficiency of evidence on aggravating factors; denial of individualized sentencing hearing; selective & unconstitutional application of sentencing procedure; proportionality of death sentence to similar cases; failure of indictment to allege any aggravating circumstances; capital sentencing scheme violates right to jury trial; proportionality of sentence to co-defendant Hoadley's sentence.

State v. Piper, 2006 S.D. LEXIS 5;2006 SD 1 (S.D. 1/4/2006) (dissent) Relief denied on claims relating to: undisclosed agreement between State and cooperating witness; whether as applied the state's death penalty cruel and unusual punishment; proportionality; failure of indictment to allege any aggravating circumstances; capital sentencing scheme violates right to jury trial; and proportionality of sentence to co-defendant's sentence. Dissent focuses on whether capital sentencing scheme violates right to jury trial (see Capano) and proportionality of sentence to co-defendant's sentence.

Excerpts from this Edition's Cases

Brown v. Sanders, 2006 U.S. Lexis 760 (1/11/06) By a 5-4 vote holding since at least one aggravating factor remains to have narrowed the class of death eligible crimes the Ninth Circuit erred in granting relief.

To answer that question, our jurisprudence has distinguished between so-called weighing and non-weighing States. The terminology is somewhat misleading, since we have held that in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence against the defendant's mitigating evidence. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). The terminology was adopted, moreover, relatively early in the development of our death-penalty jurisprudence, when we were perhaps unaware of the great variety of forms that state capital-sentencing legislation would ultimately take. We identified as "weighing States" those in which the only aggravating factors permitted to be considered by the sentencer were the specified eligibility factors. See, e.g., Parker v. Dugger, 498 U.S. 308, 313, 318-319, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) (citing Fla. Stat. § 921.141(3)(b) (1985)); Richmond v. Lewis, 506 U.S. 40, 47, 113 S. Ct. 528, 121 L. Ed. 2d 411 (1992) (quoting Ariz. Rev. Stat. Ann. § 13-703(E) (1989)). Since the eligibility factors by definition identified distinct and particular aggravating features, if one of them [*11] was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity -- for example, as relevant to an omnibus "circumstances of the crime" sentencing factor such as the one in the present case. In a weighing State, therefore, the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators, Stringer, 503 U.S., at 232, 112 S. Ct. 1130, 117 L. Ed. 2d 367, and required reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors), ibid.

By contrast, in a non-weighing State -- a State that permitted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors -- this automatic skewing would not necessarily occur. It would never occur if the aggravating factors were entirely different from the eligibility factors. Nor would it occur if the aggravating factors added to the eligibility factors a category (such as an omnibus "circumstances of the crime" factor, which is quite common) that would allow the very facts and circumstances [*12] relevant to the invalidated eligibility factor to be weighed in aggravation under a different rubric. We therefore set forth different rules governing the consequences of an invalidated eligibility factor in a non-weighing State. n3 The sentencer's consideration of an invalid eligibility factor amounts to constitutional error in a non-weighing State in two situations. First, due process requires a defendant's death sentence to be set aside if the reason for the invalidity of the eligibility factor is that it "authorizes a jury to draw adverse inferences from conduct that is constitutionally protected," or that it "attaches the 'aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, . . . or to conduct that actually should militate in favor of a lesser penalty." Zant, 462 U.S., at 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235. Second, the death sentence must be set aside if the jury's consideration of the invalidated eligibility factor allowed it to hear evidence that would not otherwise have been before it. See id., at 886, 103 S. Ct. 2733, 77 L. Ed. 2d 235; see also Tuggle v. Netherland, 516 U.S. 10, 13-14, 116 S. Ct. 283, 133 L. Ed. 2d 251 (1995) (per curiam). n4

This weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and incapable of providing for the full range of possible variations. For example, the same problem that gave rise to our weighing-State jurisprudence would arise if it were a sentencing factor, and [*14] not an eligibility factor, that was later found to be invalid. The weighing process would just as clearly have been prima facie "skewed," and skewed for the same basic reason: The sentencer might have given weight to a statutorily or constitutionally invalid aggravator. n5 And the prima facie skewing could in appropriate cases be shown to be illusory for the same reason that separates weighing States from non-weighing States: One of the other aggravating factors, usually an omnibus factor but conceivably another one, made it entirely proper for the jury to consider as aggravating the facts and circumstances underlying the invalidated factor.

We think it will clarify the analysis, and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States, see supra, at 5-6, if we are henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process n6 unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.

This test is not, as JUSTICE BREYER describes it, "an inquiry based solely on the admissibility of the underlying evidence." Post [*16] , at 15 (dissenting opinion). If the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here. See supra, at 6; see also n. 6, this page. n7 The issue we confront is the skewing that could result from the jury's considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty. See, e.g., Stringer, 503 U.S., at 232, 112 S. Ct. 1130, 117 L. Ed. 2d 367 ("When the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale."). As we have explained, such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor.

In California, a defendant convicted of first-degree murder is eligible for the death penalty if the jury finds one of the "special circumstances" listed in Cal. Penal Code Ann. § 190.2 (West Supp. 2005) to be true. These are the eligibility factors designed to satisfy Furman. See People v. Bacigalupo, 6 Cal. 4th 457, 467-468, 24 Cal. Rptr. 2d 808, 862 P.2d 808, 813 (1993). If the jury finds the existence of one of the special circumstances, it is instructed to "take into account" a separate list of sentencing factors describing aspects of the defendant and the crime. Cal. Penal Code Ann. § 190.3 (West 1999). These sentencing factors include, as we have said, "the circumstances of the crime of which the defendant was convicted in the present proceeding."

The Court of Appeals held that California is a weighing State because "'the sentencer [is] restricted to a "weighing" of aggravation against mitigation' and 'the sentencer [is] prevented from considering evidence in aggravation other than discrete, statutorily-defined factors.'" 373 F.3d at 1061 (brackets in original) (quoting Williams v. Calderon, 52 F.3d 1465, 1478 (CA9 1995)). [*18] The last statement is inaccurate. The "circumstances of the crime" factor can hardly be called "discrete." It has the effect of rendering all the specified factors nonexclusive, thus causing California to be (in our prior terminology) a non-weighing State. Contrary to Sanders' contention, and JUSTICE STEVENS' views in dissent, the mere fact that the sentencing factors included "the existence of any special circumstances [eligibility factors] found to be true," Cal. Penal Code Ann. § 190.3(a), did not make California a weighing State. That fact was redundant for purposes of our weighing jurisprudence because it in no way narrowed the universe of aggravating facts the jury was entitled to consider in determining a sentence. n8 But leaving aside the weighing/non-weighing dichotomy and proceeding to the more direct analysis set forth earlier in this opinion: All of the aggravating facts and circumstances that the invalidated factor permitted the jury to consider were also open to their proper consideration under one of the other factors. The erroneous factor could not have "skewed" the sentence, and no constitutional violation occurred.

More specifically, Sanders' jury found four special circumstances to be true: that "the murder was committed while the defendant was engaged in . . . Robbery," § 190.2(a)(17)(A) (West Supp. 2005); that it was "committed while the defendant was engaged in . . . Burglary in the first or second degree," § 190.2(a)(17)(G); that "the victim [Allen] was a witness to a crime who was intentionally killed for the purpose of preventing . . . her testimony in any criminal . . . proceeding," § 190.2(a)(10); and that "the murder was especially heinous, atrocious, or cruel," § 190.2(a)(14). The California Supreme Court set aside the burglary-murder special circumstance under state merger law because the instructions permitted the jury to find a burglary (and thus the burglary-murder special circumstance) based on Sanders' intent to commit assault, which is already an element of homicide, see People v. Wilson, 1 Cal.3d 431, 439-440, 82 Cal. Rptr. 494, 462 P.2d 22, 27-28 (1969) (in banc). 51 Cal. 3d, at 517, 797 P. 2d, at 587. The court invalidated the "heinous, atrocious, or cruel" special circumstance because it had previously found that to be unconstitutionally vague. Id., at 520, 797 P. 2d, at 589 [*20] (citing People v. Superior Court, 31 Cal.3d 797, 183 Cal. Rptr. 800, 647 P.2d 76 (1982)).

As the California Supreme Court noted, however, "the jury properly considered two special circumstances [eligibility factors] (robbery-murder and witness-killing)." 51 Cal. 3d, at 520, 797 P. 2d, at 589-590. These are sufficient to satisfy Furman's narrowing requirement, and alone rendered Sanders eligible for the death penalty. Moreover, the jury's consideration of the invalid eligibility factors in the weighing process did not produce constitutional error because all of the facts and circumstances admissible to establish the "heinous, atrocious, or cruel" and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the "circumstances of the crime" sentencing factor. They were properly considered whether or not they bore upon the invalidated eligibility factors. See 51 Cal. 3d, at 521, 797 P. 2d, at 590.

Sanders argues that the weighing process was skewed by the fact that the jury was asked to consider, as one of the sentencing factors, "the existence of any special circumstances [eligibility factors] found to be true. [*21] " Cal. Penal Code Ann. § 190.3(a) (West 1999). In Sanders' view, that placed special emphasis upon those facts and circumstances relevant to the invalid eligibility factor. Virtually the same thing happened in Zant. There the Georgia jury was permitted to "'consider all evidence in extenuation, mitigation and aggravation of punishment,'" 462 U.S., at 871-872, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (quoting Zant v. Stephens, 250 Ga. 97, 99-100, 297 S. E. 2d 1, 3-4 (1982)), but also instructed specifically that it could consider "'any of [the] statutory aggravating circumstances which you find are supported by the evidence,'" 462 U.S., at 866, 103 S. Ct. 2733, 77 L. Ed. 2d 235. This instruction gave the facts underlying the eligibility factors special prominence. Yet, even though one of the three factors (that the defendant had "substantial history of serious assaultive convictions," id., at 867, 103 S. Ct. 2733, 77 L. Ed. 2d 235) was later invalidated, we upheld the sentence. We acknowledged that the erroneous instruction "might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given," id., at 888, 103 S. Ct. 2733, 77 L. Ed. 2d 235; indeed, we assumed such an effect, [*22] ibid. But the effect was "merely a consequence of the statutory label "aggravating circumstance.'" We agreed with the Georgia Supreme Court that any such impact was "'inconsequential,'" id., at 889, 103 S. Ct. 2733, 77 L. Ed. 2d 235, and held that it "cannot fairly be regarded as a constitutional defect in the sentencing process," ibid. The same is true here.

Evans v. Chavis, 2006 U.S. Lexis 757 (1/10/06) Establishing that where states do not themselves impose a strict timeliness rule for filing an "appeal" a timeliness requirement will be imposed for purposes of the AEDPA's statute of limitations

California argues that the Ninth Circuit's decision in this case is inconsistent with our decision in Saffold. Like California, we do not see how it is possible to reconcile the two cases.

In Saffold, we held that (1) only a timely appeal tolls AEDPA's 1-year limitations period for the time between the lower court's adverse decision and the filing of a notice of appeal in the higher court; (2) in California, "unreasonable" delays are not timely; and (3) (most pertinently) a California Supreme Court order denying a petition "on the merits" does not automatically indicate that the petition was timely filed. In addition, we referred to a Ninth Circuit case holding that a 4-year delay was reasonable as an example of what the law forbids [*16] the Ninth Circuit to do.

Nonetheless, the Ninth Circuit in this case said in effect that the California Supreme Court's denial of a petition "on the merits" did automatically mean that the petition was timely (and thus that a 3-year delay was reasonable). More than that, it treated an order from the California Supreme Court that was silent on the grounds for the court's decision as if it were equivalent to an order in which the words "on the merits" appeared. 382 F.3d at 926. If the appearance of the words "on the merits" does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words "on the merits" in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis' 3-year delay was reasonable. Thus, the Ninth Circuit's presumption ("that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely," post, at 4 (opinion of STEVENS, J.)) is not consistent with [*17] Saffold. See supra, at 4.

Neither do the cases cited by the Ninth Circuit provide it with the necessary legal support. The Circuit's opinion in Saffold (written on remand from this Court) said nothing about the significance of the words "on the merits." Saffold v. Carey, 312 F.3d 1031 (2002). Hunter v. Aispuro, 982 F.2d 344 (CA9 1992), predated AEDPA, not to mention our decision in Saffold, and in any event concerned an entirely different issue of federal habeas corpus law. Delhomme v. Ramirez, 340 F.3d 817 (CA9 2003), addressed the timeliness issue in one sentence in a footnote, id., at 820, n. 2, and did not discuss at any length our opinion in Saffold, which must control the result here.

In the absence of (1) clear direction or explanation from the California Supreme Court about the meaning of the term "reasonable time" in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness. That is to [*18] say, without using a merits determination as an "absolute bellwether" (as to timeliness), the federal court must decide whether the filing of the request for state-court appellate review (in state collateral review proceedings) was made within what California would consider a "reasonable time." See supra, at 3. This is what we believe we asked the Circuit to do in Saffold. This is what we believe it should have done.

Rice v. Collins, 2006 U.S. Lexis 913 (1/18/06) Ninth Circuit erred in improperly substituting its evaluation of the record rather than relying on the state court's fact-finding.

On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. 352, 364-366, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality opinion) (holding that evaluation of a prosecutor's credibility "lies 'peculiarly within a trial judge's province'"). Under AEDPA, however, a federal habeas court must find the state-court conclusion "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Thus, a federal habeas court can only grant Collins' petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by "clear and convincing evidence." § 2254(e)(1). See Miller-El, supra, at ___ 125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196. Although [*12] the Ninth Circuit assumed § 2254(e)(1)'s presumption applied in this case, 365 F.3d at 677, the parties disagree about whether and when it does. We need not address that question. Even assuming, arguendo, that only § 2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court.

Because the California Court of Appeal accepted the trial court's credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See id., at 682. The panel majority's analysis and conclusions, however, depended entirely on its view of the trial court's credibility holding. The panel majority found no error in the trial court's proceedings or rulings in the first two steps of the Batson inquiry. 365 F.3d at 677-678. It disagreed, however, with the trial court's conclusions on the third step, holding that it was unreasonable to accept the prosecutor's explanation that Juror 16 was excused on account of her youth and her demeanor. Id., at 678-687. We conclude the Ninth Circuit erred, [*13] for the trial court's credibility determination was not unreasonable.

Noting that the trial court had not witnessed Juror 16's purported eye rolling, the panel majority concluded that no reasonable factfinder could have accepted the prosecutor's rendition of the alleged incident because the prosecutor's conduct completely undermined her credibility. Id., at 683. Having before it only the trial court record, the Court of Appeals majority drew this conclusion based on three considerations: first, the prosecutor's erroneous statement concerning another prospective African-American juror's age; second, the prosecutor's improper attempt to use gender as a basis for exclusion; and third, the majority's skepticism toward the prosecutor's explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. Id., at 683-684.

The first reason the panel majority noted for rejecting the trial court's credibility finding pertained not to Juror 16, the subject of Collins' claim on appeal, but to another prospective African-American juror, Juror 19. The prosecutor referred to Juror 19 as "young" even though she was a grandmother. [*14] This reference to youth took place during a discussion about three prospective jurors, Jurors 6, 16, and 19. Jurors 6 and 16 were both young. As Judge Hall observed, it is quite plausible that the prosecutor simply misspoke with respect to a juror's numerical designation, an error defense counsel may also have committed. Id., at 688; 2 App. 9. It is a tenuous inference to say that an accidental reference with respect to one juror, Juror 19, undermines the prosecutor's credibility with respect to Juror 16. Seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor's explanation was clearly not credible.

Second, the panel majority concluded that the trial court should have questioned the prosecutor's credibility because of her "attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019." 365 F.3d at 684. Respondent's trial occurred in August 1996, over two years after our decision in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), made clear that discrimination in jury selection on the basis of gender violates the Equal Protection Clause. [*15] Although the record contains a somewhat confusing colloquy on this point, it can be read as indicating that one of the prosecutor's aims in striking Juror 16 was achieving gender balance on the jury. Concerned about the constitutionality of such a strike, the trial court made clear that it would not accept gender as a race-neutral explanation. The panel majority assigned the gender justification more weight than it can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race.

Finally, the panel majority believed to be unsupportable the prosecutor's stated concern that Juror 16 might, as a young and single citizen with no ties to the community, be too tolerant of the crime with which respondent was charged. 365 F.3d at 680-682, 684. This was so, the majority concluded, because during voir dire Juror 16 replied affirmatively when asked if she believed the crime with which respondent was charged should be illegal and disclaimed any [*16] other reason she could not be impartial. Id., at 680. That the prosecutor claimed to hold such concerns despite Juror 16's voir dire averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. Accord, id., at 690 (Hall, J., dissenting). Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. 2 App. 5, 14.

Viewing the panel majority's concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor's credibility regarding Juror 16's alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor's race-neutral justifications and conclude Collins had shown a Batson violation. [*17] Reasonable minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.

The panel majority did not stop at the conclusion that the trial court rendered an unreasonable factual determination in light of the evidence presented. It further concluded that the state courts had unreasonably applied clearly established federal law as determined by this Court. 365 F.3d at 679; 28 U.S.C. § 2254(d)(1). The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law. In this case there is no demonstration that either the trial court or the California Court of Appeal acted contrary to clearly established federal law in recognizing and applying Batson's burden-framework. See 2 App. 14-15; App. to Pet. for Cert. 114-116. The only question, as we have noted, is whether the trial court's factual determination at Batson's third step was unreasonable. For the reasons discussed above, we conclude it was not.

Blonner v. State, 2006 OK CR 1;2006 Okla. Crim. App. LEXIS 1 (Ok Crim App 1/5/2006) Setting forth standards for Atkins claims at the trial court level.In future capital trials, where the defendant [*6] claims mental retardation as a bar to the imposition of the death penalty, the defendant shall file his or her Notice of Intent to Raise Mental Retardation as a defense to the imposition of the death penalty and Motion to Quash Bill of Particulars due to Mental Retardation within sixty (60) days from the date the State of Oklahoma files its Bill of Particulars or from the date of arraignment, whichever is later. The Notice must be accompanied by an averment that the defendant has at least one I.Q. test showing a score of 70 or below, within the margin of error, setting forth the score and date of testing, in order for the defendant to be eligible to raise the issue of mental retardation. If the defendant fails to set forth this information meeting the eligibility requirement, the trial court should make a finding on the record that the defendant has not met the threshold for establishing mental retardation, and deny the Motion to Quash Bill of Particulars. After complete discovery on the issue is afforded both parties and within sixty (60) days from the date the Notice and Motion to Quash is filed, the trial court shall schedule a jury trial on the issue. If additional time to prepare [*7] for the trial on mental retardation is required, the trial court may schedule the trial later upon good cause shown.

If the defendant personally and affirmatively waives his or her right to a jury determination of mental retardation on the record, the issue may be tried to the bench and the hearing shall be conducted as set forth in State ex.rel. Lane v. Bass, 2004 OK CR 14, P14, 87 P.3d 629. The decision of the trial court following the bench trial shall be made in open court and memorialized by written Order Granting or Denying the Motion to Quash Bill of Particulars on grounds of mental retardation, filed in the District Court within ten (10) days, setting forth Findings of Fact and Conclusions of Law.

Jury trials on the issue of mental retardation will be conducted pursuant to the dictates of Okla. Const. Art. II, § 19 n1. The trial court shall impanel a jury composed of twelve (12) jurors, summoned to determine the sole question of mental retardation. The court shall proceed to the selection of the jury in the manner provided by law, and the parties shall be afforded nine (9) peremptory challenges each, pursuant to 22 O.S.2001, § 655 [*8] . The potential jurors should not be death qualified, because the sole issue to be determined is whether the defendant is mentally retarded. The jurors shall receive fees for attendance and mileage as is allowed by law.

Franklin .v Anderson, 2006 U.S. App. LEXIS 444;2005 FED App. 0005P (6th Cir. 1/9/2006) Relief granted on multi-tiered claims of ineffective assistance of counsel relating to an underlying claim of sitting of a biased juror.

Franklin's appellate counsel made many of the errors included in the Mapes list. First, counsel failed to raise the juror bias issue or any of the other issues for which the district court issued a COA. Appellate counsel is, of course, not required to raise every non-frivolous issue on appeal. "As the Supreme Court has recently observed, it is difficult to demonstrate that an appellate attorney has violated the performance prong where the attorney presents one argument on appeal rather than another. In such cases, the petitioner must demonstrate that the issue not presented 'was clearly stronger than issues that counsel did present.'" Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 289, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)) (internal citations omitted); see also McFarland v. Yukins, 356 F.3d 688, 710-12 (6th Cir. 2004). [*43] Just as in Caver, "in the instant case, there can be little doubt but that the omitted issue . . . was much stronger than the issues [petitioner's] appellate counsel presented." Ibid . (footnote omitted). Franklin himself suggested fourteen issues for his attorneys to raise on appeal. Each of these issues found its way into his habeas petition, including the biased juror, Batson, and ineffective assistance of trial counsel errors that are on appeal here, while none of the issues counsel raised on appeal made it past the magistrate judge below. His attorneys ignored his suggestions, telling him they were frivolous, had already been litigated, or could be raised on post-conviction review. They also failed to tell Franklin that he could file a pro se supplementary brief raising additional issues they refused to include.

More egregious, appellate counsel never met Franklin or even spoke to him over the telephone. His lead counsel, Roxann Dieffenbach, only corresponded with him through letters. His other counsel, Candace Greenham, had no contact with him at all. Between December 4, 1989, and November 26, 1991, Dieffenbach's total communication with Franklin consisted [*44] of 26 letters, none longer than one page. Her first letter, sent on December 4, 1989, and thus her first contact with Franklin, came eleven months after she had been appointed to represent him and three weeks before she had to file his brief with the Court of Appeals. Although she asked him for input on the brief, she failed to respond to his December 19, 1989, request for a copy of his transcript until April 22, 1990, and she only sent him a copy of the Court of Appeals brief one month after it had been submitted to the court.

Twice Franklin asked Dieffenbach to withdraw from his case. The first time she responded only by saying the she had argued his case before the Court of Appeals. The second time she responded only by saying that she had argued his case before the Ohio Supreme Court. At no point, therefore, did Franklin's counsel meet the ABA guidelines of keeping Franklin "informed of the developments in the case" or of developing a relationship of trust with him.

Counsel also failed adequately to represent Franklin at oral argument before the Ohio Court of Appeals. The night before the argument before the Court of Appeals, Greenham had a family emergency and could not attend [*45] the argument. The court denied Dieffenbach's request for an extension. At oral argument, Dieffenbach refused to discuss or answer questions on any part of the brief that Greenham had prepared. Having counsel refuse to address half of the issues raised before the appellate court is like having trial counsel refuse to attend half the trial. On those issues, therefore, Franklin suffered a total lack of meaningful advocacy. Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).

Before the Ohio Supreme Court, counsels' behavior was unprofessional. As the magistrate judge wrote,

The transcript of their arguments include five instances of wholly inappropriate laughing on the part of both of Franklin's lawyers, an admission by Dieffenbach that she may be wrong about one of her contentions, equivocal responses to questions from the justices, and Greenham's introductory statement that she "wished we had more to say on Mr. Franklin's behalf." In addition, Franklin's counsel displayed a lack of familiarity with the facts relevant to the arguments she made to the court. For instance, Greenham did not recall the length of the videotape she argued was gruesome and prejudicial, [*46] and stated that "apparently it was very graphic," strongly suggesting she had not even viewed the allegedly offending videotape herself. Dieffenbach did not know how many points of identification existed between Franklin's fingerprint and the print lifted from the champagne bottle found in the Strauss apartment. Greenham displayed an astounding lack of solemnity under the circumstances when she employed the term "overkill" to describe the photographic and videographic evidence, then laughed and said "Excuse the pun."\

JA 615.

There is, thus, no question that Franklin's appellate counsels' performance was deficient. Although we do not believe that appellate counsels' shortcomings at oral argument necessarily prejudiced Franklin, we find that counsel did not meet the ABA standards in their dealings with him concerning his appeals, and we hold that the failure to raise the biased juror issue on appeal was prejudicial, since no claims of strategy can excuse the seating of a juror unable to follow the law.

Capano v. State, 2006 Del. LEXIS 1 (Del 1/10/2006) Statutory "aggravating circumstance operate as 'the functional equivalent of an element of a greater offense' and that the Sixth Amendment required that this element be 'found by a jury'" by a unanimous verdict

We next address whether, as applied to Capano, the 1991 sentencing procedure met procedural constitutional requirements under Ring and the Delaware Constitution. The State argues that the United States Supreme Court decision in Ring applies only to the Arizona statutory scheme and is inapplicable to Delaware's death penalty statute. Instead, the State urges us to apply only Hildwin v. Florida, n35 a decision of the United States Supreme Court before Ring and Apprendi, holding valid a jury's recommendation that the judge impose a death sentence. In this case, we must decide how the United States Supreme Court decisions in Ring and Apprendi apply to the Delaware statutory scheme.

The United States Supreme Court has held that any new finding of fact that increases the penalty for a crime beyond the prescribed statutory maximum must [*20] be submitted to a jury and proved beyond a reasonable doubt. n36 Accordingly, a judge, sitting without a jury, may not find a statutory aggravating circumstance necessary to impose the death penalty. n37 The State argues that Ring does not apply in Delaware because the judge does not sit without a jury, but relies on the jury's recommendation. Ring's holding is not so narrow. Rather, the United States Supreme Court conluded that "capital defendants, no less than non-capital defendants... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." n38 The Superior Court decided that this jury determination does not have to be unanimous under the Delaware Constitution. n39 We disagree.

For over 230 years, Delaware has required that twelve members of a jury unanimously find as fact every element of a crime beyond a reasonable doubt. n40 Under Ring, a statutory aggravating circumstance that qualifies a defendant for capital punishment is itself the "functional equivalent of an element of a greater offense." n41 The advisory jury in Capano's case did not unanimously find the element that the "murder was premeditated and the result of substantial planning." n42 Without a unanimous jury finding of the statutory aggravating circumstance, the procedure used to sentence Capano to death under the 1991 statute was unconstitutional as applied to him.

In 2005, the American Bar Association adopted Principles for Juries and Jury Trials. Principle 1 states that "the right to jury trial shall be preserved." n43 Principle 4 states that "jury decisions should be unanimous." n44 The commentary notes that "at least as early as the fourteenth century it was agreed that jury verdicts should be unanimous." n45 The commentary further explains the rationale for a preference for unanimity:

The historical preference for unanimous juries reflects society's strong desire for accurate verdicts based on thoughtful and thorough deliberations by a panel representative of the community. Implicit in this preference is the assumption that unanimous verdicts are likely to be more accurate and reliable because they require the most wide-ranging discussions--ones that address and persuade every juror. Empirical assessment tends to support this assumption. Studies suggest that where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating and take more ballots. Dennis J. Devine et al., Jury Decision Making: 45 Years of Emprical Research on Deliberating Groups, 7 PSYCHOL. PUB. POL'Y & L. 622, 669 (2001). [*23] In contrast, where unanimity is not required juries tend to end deliberations once the minimum number of a quorum is reached. Id

Unanimous verdicts also protect jury representativeness--each point of view must be considered and all jurors persuaded. Studies have shown that minority jurors participate more actively when decisions must be unanimous. REID HASTIE ET AL., INSIDE THE JURY 45-48 (1983); Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury Decision Making, 4 DEL. L. REV. 2, 23 (2001); Dennis J. Devine et al., supra, at 669. A non-unanimous decision rule allows juries to reach a quorum without seriously considering minority voices, thereby effectively silencing those voices and negating their participation. This fosters a public perception of unfairness and undermines acceptance of verdicts and the legitimacy of the jury system. Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261, 1315 (2000).

Jury verdict unanimity has been required in Delaware for centuries. n46

We recognize that some jurisdictions do not require jury unanimity, n47 but non-Delaware precedent does not control our interpretation of the Delaware Constitution which expressly requires that "trial by jury shall be as heretofore." n48 "Unanimity of the jurors is ...required to reach a verdict since such was the common law rule." n49 Under the common law, the expectation was that the elements of a crime would be determined by a jury. n50

We hold that the Delaware Constitution requires that a jury must unanimously find a statutory aggravating circumstance that empowers a judge to impose the death penalty, just as the jury must unanimously determine every other element of the offense of capital murder. In this case, the conviction by the jury at the guilt phase of the trial did not establish a statutory aggravating circumstance. Nor did the jury unanimously [*26] find a statutory aggravating circumstance during the penalty phase. Capital defendants are "entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." n51 Because the statutory aggravating circumstance was not unanimously found by a jury in this case, the sentencing procedure as applied to Capano did not meet constitutional requirements.

Excerpts from this Week's News

Find below excerpts from Judge Alito's confirmation hearings. From the third day:

FEINGOLD: Thank you for that answer. I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person. You said that the Constitution, of course, is designed to prevent that. We all agree on that. But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?

ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final. If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute. And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks. For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law.

ALITO: And if the state prisoner doesn't do that...

FEINGOLD: My question assumes that all that's been done and the process went

through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent. The question is: Does that person in that posture have a constitutional right not to be executed?

ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.

FEINGOLD: You can't say that the person has a constitutional right not to be executed?

ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt. And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.

FEINGOLD: I'll stop on that topic. But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed. But I'm glad we could talk about that a bit. (Senator Feingold then moved on to ask a question about affirmative action.)

The prior day's hearing has this:

FEINGOLD: Thank you very much.

Now, I want to get into a subject that really requires some attention here and hasn't had much attention, given the important role it plays in the job of Supreme Court justice, and that is the issue of capital punishment or the death penalty.

Judge Alito, the idea that defendants are entitled to effective legal representation is a fundamental part of our criminal justice system. In fact, of course, it's enshrined in the Sixth Amendment's guarantee that the accused have, quote, "the assistance of counsel for his defense," unquote.

Nowhere is this guarantee obviously more important than in cases where the defendant's life is on the line. In a death penalty case you decided in 2004 called Rompilla v. Horn, you rejected the defendant's argument that his attorneys had failed to do an adequate investigation to prepared for his sentencing hearing. As a result, key mitigating evidence about his horrible childhood was never presented to the sentencing jury which ultimately sentenced him to death.

FEINGOLD: As you know, the Supreme Court reversed your decision, ruling that the defense attorney's failure to even review evidence they knew the prosecution was going to introduce at sentencing violated the Sixth Amendment.

This case was one of several Supreme Court cases in recent years to express particular concern -- particular concern about the adequacy of indigent representation and the fairness of the capital sentencing process.

In fact, in several recent decisions, including Rompilla, the court has overturned death sentences because defense attorneys did not do adequate investigations to turn up potential mitigating evidence and because jury instructions did not clearly allow jurors to consider any and all possible mitigating evidence.

And Justice O'Connor, who you have been nominated to replace, has of course often been the author or the deciding vote in these cases.

Judge, what are your views on these issues? Is the court's recent emphasis on the importance of fully developing and considering mitigating evidence in capital sentencing proceedings headed in the right direction?

ALITO: It is vitally important that all criminal defendants receive effective representation, and I could not agree with you more strongly that this is of the utmost importance in death penalty cases where so much is at stake.

In the Rompilla case that you mentioned, we had to apply the standard of review that is set out in the habeas corpus statute as revised by Congress. And where there has been a determination on the merits by the state courts on an issue like whether a defendant receives effective representation within the meaning of the Sixth Amendment and where the state courts have applied the correct legal standard, we are not allowed to disturb their decision unless what they did was unreasonable.

FEINGOLD: Well, let me ask you, then, because you're obviously pointing out the fact that you approached the Rompilla case as an appellate court judge bound by prior Supreme Court precedent, and yet you found that no constitutional violation had occurred.

And I believe when we discussed this case in my office, you indicated you still think your decision was correct.

So the question now is would your approach have been any different as a Supreme Court justice? What about your decision on the outcome of the case?

ALITO: Well, my decision -- and I spoke directly to the issue in the Rompilla case as I saw it when it came before me, and my evaluation of the performance of the attorneys in that case was fully set out in the opinion that I wrote.

ALITO: One of them was a very experienced criminal defense attorney. He was the head of a public defender's office. And there was no dispute whatsoever that this was an attorney of competence and experience and great dedication to the defendant in this case.

And that attorney was assisted by another attorney in the office and, together, they were extremely dedicated to this case.

Now, a number of judges took a look at this. All of the Pennsylvania judiciary, with the possible exception of one justice -- I can't remember clearly whether there was one justice who disagreed -- thought that there had been effective representation provided in this case.

FEINGOLD: But this really isn't about the difference between being on the Court of Appeals and the Supreme Court. You apparently would have, based on what you know here, would have ruled the same way had you been on the Supreme Court.

ALITO: Well, my evaluation of the facts of the case would be the same. Now, if...

FEINGOLD: In other words, if there was not a violation of Sixth Amendment?

ALITO: But I should add, however, that if a case came up in the future, the Supreme Court's decision in that case is a precedent that I would have to deal with. And they...

FEINGOLD: Fair enough.

ALITO: ... expressed the view as to how the standard applies to the facts of the case. It was a 5-4 decision. But it would be a precedent that I would follow.

FEINGOLD: Well then let's go back to my original question, which is: Do you think the Supreme Court has been heading in the right direction in these cases?

ALITO: I think that the Supreme Court is correct in viewing this as a very important part of the criminal justice system and in particular a very important part of the representation of clients in Eighth Amendment cases.

FEINGOLD: Isn't the court doing more than that? The court is moving in a direction of giving greater recognition and ruling on the inadequacy of counsel in these cases?

ALITO: And I think it's entirely appropriate that there be a searching review in every case as to whether a defendant in any criminal case but in particular, of course, in a capital case, has received the representation that the defendant is entitled to under the Sixth Amendment.

FEINGOLD: Do you think your replacing Justice O'Connor will change the direction of the court in this regard?

ALITO: I would approach these cases under the law that the Supreme Court has established in this area with the recognition that I've attempted to explain of how important I believe this right is in all cases and in death cases in particular. When the Supreme Court reviews a case that's come up through the federal system in a habeas proceeding, then the Supreme Court, just like my court, should apply the standards that are set out in the habeas corpus statute.

FEINGOLD: Let's go to a different one. Wiggins v. Smith is a Supreme Court case decided in 2003 also addressing inadequate mitigation investigation. In that case Justice O'Connor, writing for the majority, found trial counsel ineffective for failing to conduct an adequate investigating into possible mitigating evidence that could be presented at sentencing.

Had the attorney done adequate investigation, he would have found abundant evidence of childhood physical and sexual abuse, as well as diminished mental capacity.

Do you think that case was rightly decided?

ALITO: I discussed Wiggins in Rompilla, and I thought that it was distinguishable. Wiggins, as I recall it, was a case where the attorney simply didn't conduct an investigation, without any sound strategic reason for not investigating a particular matter.

FEINGOLD: So you have no sense that that was wrongly decided?

ALITO: I have no sense that that was wrong. I thought it was different from the Rompilla case.

FEINGOLD: According to two independent studies, your record in death penalty case has been more anti-capital defendant even than most Republican-appointed judges. In fact, in every disputed capital case that you heard -- that is, cases in which a panel of three judges did not all agree -- you would have ruled against the defendant.

How do you explain this seeming tendency to favor the government in capital cases?

ALITO: I've only sat on a handful of capital cases, and in some of them I voted to uphold the death penalty and in a number of them I voted to strike down the death penalty. In Carpenter v. Vaughn, I voted to strike down the death penalty.

In the most recent death penalty case I sat on, the Braunstein case, I voted to strike down the death penalty because of the procedure that was followed at the penalty phase in that case.

In the Cruzan case, I was part of a panel that vacated a decision of the district court rejecting the claim of a habeas petitioner. There have been other cases where I voted to uphold the death penalty.

FEINGOLD: Justice Stevens recently gave a speech at the American Bar Association in which he raised a number of serious concerns about the administration of the death penalty.

FEINGOLD: He pointed to aspects of capital proceedings that he believes unfairly tilt the balance in favor of the prosecution, both at the trial and sentencing stages.

Specifically, he raised concerns about the jury selection process, arguing that jurors are questioned so extensively about the death penalty that they might assume their role is primarily to decide the sentence for a presumptively guilty defendant.

He also argued that representation of indigent defendants remains an issue that has not been adequately addressed. And he noted that elected state judges may have a, quote, "subtle bias," unquote, in favor of death because they have to face re-election.

Now, I know all of us on this committee have the greatest respect for state court judges, but we all can understand the pressures of a re-election campaign.

So, what are your views on the potential of these three issues -- the jury selection, the inadequate representation and an elected judiciary -- to skew a capital prosecution against the defendant?

And do you share these concerns that Justice Stevens outlined?

ALITO: I certainly share a concern that there should be a fair procedure for the selection of jurors. That certainly is a concern.

The issue of the election of judges at the state level or the appointment of judges at the state level is a matter for state legislatures to decide.

And, within my circuit, we have three states. In New Jersey and in Delaware, the state judiciary is appointed. In Pennsylvania, the state judiciary is elected.

And I've had the opportunity to view the work of all three of the supreme courts in those states and I think they all are of a very high quality.

I think the elected judges in Pennsylvania do a conscientious effort to carry out their responsibilities. And I have a high regard for the judiciary in all of those states.

So, based on my experience, I think you can have highly competent and, certainly, conscientious state judges who are appointed and the same sort of judges who are elected.

And, of course, we do have habeas corpus. And it is important to make sure that constitutional rights are respected.

ALITO: And the scope of the review that we conduct under habeas is up to Congress.

Congress reformulated the standards in AEDPA, in the Antiterrorism and Effective Death Penalty Act of 1996, limiting our review, and it is our obligation to conduct the kind of review that Congress has indicated we should be conducting.

FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices.

Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.

In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment. In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed. And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions.

Do you agree with these decisions?

ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency. And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis.

FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty?

ALITO: My approach would be to work within the body of precedent that we have. As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process. And the rules in this area are quite complex. But I would work within the body of precedent that is available.

On habeas & the underlying principles:

SPECTER: If it means what it says, and judges like to look to the statute as opposed to going to congressional intent, if it means what it says that there was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.

This may come before the court. What factors would you consider to be relevant in making the analysis as to, again, maintaining equilibrium between the court and the Congress of our authority to take away federal court jurisdiction on this important item?

ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.

The first is that the courts said in a case called INS v. St. Cyr that if there is an attempt to -- that habeas jurisdiction can't be taken away unless it's clear in the statute that that's what was intended. Habeas jurisdiction is not to be repealed by implication. That's one important principle.

And then in Felker v. Turpin, which involved the Anti-Terrorism and Effective Death Penalty Act of 1996, the Supreme Court considered arguments about whether provisions of that legislation, which restructured federal habeas review, violated the Constitution.

And they found that there wasn't a violation because the essentials of the writ were preserved. And so if other legislation is challenged, it would have to be reviewed under standards like that.

On United States v. Morrison:

SPECTER: And I want to move into two other analogous areas, Congress versus the court and the court versus Congress, as Congress has taken away the jurisdiction of the court, notably, very recently, by stripping habeas corpus jurisdiction on detainees.

When the Congress legislated to protect women against violence, the Congress did so with a very expansive record. It wasn't like Lopez, which was a revolution, where the court upset 60 years of congressional power under the Commerce Act.

But in the case of U.S. v. Morrison, involving the legislation to protect women against violence, there was a record which included gender bias from task forces in 21 states, five separate reports. And notwithstanding a, quote, "mountain of evidence," as noted by four dissenters, the court declared the act unconstitutional because of our method of reasoning.

Now, you're a judge; you may be a Supreme Court justice. Is there something we're missing? Do you judges have some method of reasoning which is superior to the method of reasoning of the Congress?

ALITO: I think the branches of government are equal and all the officers in all the branches of government take an oath to the same constitution.

SPECTER: Equality on method of reasoning?

ALITO: I would never suggest that judges have superior reasoning power than does Congress.

I think what the court was getting at when it made that statement in Morrison -- and yesterday, I looked at something that I had written and said, "That was not well phrased."

ALITO: I think that what the court was getting at there in Morrison was that it was applying a certain standard, certain legal standard, as to whether something substantially affected commerce. And I think that's what they were getting at.

SPECTER: Hard to figure out what they were getting at. We do know what they said. They said our method of reasoning was defective.

But I take it, from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning?

On Batson & Deference:

DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.

They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.

I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.

And the question was raised as to whether he had a fair trial. The people who were arguing in his defense said: When we take a look at the various people who were involved in these jury pools in the murder cases here, we find that the local prosecutors had eliminated all the African-Americans in four murder trials that had taken place during the year that led up to his trial.

And they raised the question, in his case, whether there had been a conscious effort to eliminate African-American jurors in this case involving an African-American defendant.

And you dismissed the statistical evidence of these all-white juries. And you made a statement that said: The significance of an all-white jury was as relevant as the fact that, quote, "five of the past six presidents of the United States have been left-handed," end of quote.

That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.

Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed."

DURBIN: "To suggest any comparability to striking a juror based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."

Why did you use that analogy that apparently is so inappropriate?

ALITO: Well, the analogy went to the issue of statistics and the use and misuse of statistics and the fact that statistics can be quite misleading. Statistics are very powerful, but statistics can also be very misleading. And that's what that was referring to. There's a whole -- I mean, statistics is a branch of mathematics, and there are ways to analyze statistics so that you draw sound conclusions from them and avoid erroneous conclusions from them.

Sometimes when you see a pattern it's the result of a cause, and sometimes when you see something that looks like it might be a pattern it's the result of chance.

Riley was a very, very difficult case. And I can tell you I struggled over that case because the issue of racial discrimination in the criminal justice system is an issue of enormous importance.

Obviously, it's very important for the defendant. It's important for the society so that everybody knows that everyone in this country is treated equally regardless of race. And it's important for law enforcement, because I know, from years as a prosecutor, that nothing is a greater poison for law enforcement than even the slightest hint of unfairness.

The issue of racial discrimination in the jury had to be viewed by our court and by me under the habeas corpus statute that Congress passed. And that gave us an important role to play, but a very limited role.

The Pennsylvania -- and what the habeas corpus statute says is that if the state courts have decided a question on the merits and they've applied the correct legal standard, the correct constitutional standard, we can't authorize granting of a writ of habeas corpus unless they were unreasonable.

It's not enough for us to say we don't agree with it. We have to say: You were unreasonable.

Now I think seven members of the Pennsylvania judiciary -- well, I think there were more.

ALITO: There was the judge who heard the state habeas case and the Pennsylvania Supreme Court. And the Pennsylvania Supreme Court, as I recall, was unanimous on the issue that there hadn't been racial discrimination in the selection of the jury in the case.

Then the case came up to us, and the issue was whether the state courts were unreasonable in finding that the particular peremptory challenges at issue in this case were not based on race. And it was a tough question, but I didn't see how we could overturn what they had done under the habeas standard.

lonner v. State