A rare grant of relief out of the Fifth circuit leads off this edition, Guidry v. Dretke. A split panel in Guidry holds that the district court correctly interpreted the deference requirements of the AEDPA as to whether the Appellant's confession, as well as other hearsay, was improperly admitted at trial. Noting that deference to a state court's decision does not mean abandonment of any meaningful review, the majority holds that the state court's factual determination as to the confession were simply not credible.

Two other favorable decision of note are also had. The Georgia Supreme Court in Grant v. State has held that the trial court abused its discretion by removing counsel, imposing contempt sanctions and appointing replacement counsel over the defendant's objection. In Lebron v. State the Florida Supreme Court grants a new penalty phase hearing where separate juries heard the penalty and guilt phase but the trial court permitted the prosecution to use in the penalty phase a factual theory that the guilt phase jury had explicitly rejected.

Several "volunteer" cases are also noted. Courts in Connecticut hold in Ross, as next friend, v. Rell & State v. Ross the father and public defenders assigned, respectively, lack standing to intervene to stop the execution of a pathetically mentally ill death row inmate who seeks to drop his appeals. In Corcoran v. State the Indiana Supreme Court holds Corcoran sane enough to waive appeals, that his former public defenders lack standing to seek post-conviction review without the approval of former putative client, and that there is no right to automatic post-conviction review of their death sentences. In Ashley v. Bagley the Southern District of Ohio refuses to seal the records of mental health experts who were used to determine competency to waive appeals.

Rounding out the decisions is In re United States of America. The Government had the option of seeking death in this case for twelve different Defendants. It chose to seek death against the only black defendant. The district court ordered the government to explain its charging decision, and, when it refused, the trial court stated it would give an instruction about the government's charging decision. On appeal the Fifth Circuit granted a writ of mandamus holding that the trial court abused its discretion in ordering the government to disclose its decision making process and would hence err in taking any remedial measures related to the government's flouting of the discovery order.

Elsewhere the Beardslee execution produced several opinions that will be covered in the next edition relating to lethal injection challenges and protocols but yet, somehow despite this intensive litigation about the California lethal injection protocol, the execution appears to have been botched. In Louisiana Wilbert Rideau, who spent many of his 44 years behind bars, including many on death row, was released after the jury hearing his retrial convicted him of what amounted to a time-served charge. The Georgia legislature is considering making child sodomy a capital offense. Finally, also in Georgia, seven death row inmates will be forced to represent themselves pro se as that state's capital post-conviction process simply can't keep up with the demand for counsel.

Archived on the net at http://capitaldefenseweekly.com/archives/050117.htm

As always thanks for reading. - k

EXECUTION INFORMATION

Since the last edition the following people have executed:

19 Donald Beardlee California (lethal injection possibly botched)

Potentially serious executions noted are:

SUPREME COURT

Oral arguments were had earlier this week in Rompilla v. Beard on issues relating to the trial court's failing to define, after three jury questions on the subject, that life means life without parole. The Court also heard a claim in that case relating to ineffective assistance of counsel in the penalty phase for failing to review certain readily available public files.

CAPITAL CASES (Favorable)

Guidry v. Dretke, 2005 WL 78304 (5th Cir 1/14/2004) (dissent) District Court was correct in conducting an evidentiary hearing on Guidry's disputed confession even though state court's held a hearing on that very issue. The district court did not improperly substitute its credibility determinations for those made by the state court. “[A]dmission of the confession and the hearsay testimony against Guidry's interest was not harmless error.”

Grant v. State, 2005 WL 35594 (GA 1/10/2005) Trial court abused its discretion by removing counsel, imposing contempt sanctions and appointing substitute counsel over defendant's objection.

Lebron v. State, 2005 WL 67026 (FL 1/13/2005) (dissent) Where separate juries heard the penalty and guilt phase, the State may not submit to a new penalty phase jury that Lebron actually committed the specific act for which he was acquitted.

So that we may be abundantly clear, our determination today does not, as the State contends, require the change, alteration, modification, or falsification of any witness testimony. We are simply mandating that the trial court fulfill its capacity as the guardian of the constitutional rights accorded every criminal defendant in this state. A jury has already considered whether Lebron actually personally shot Oliver, and determined that he did not. The State may not submit to a new penalty phase jury that Lebron actually committed the specific act for which he was acquitted.

The witnesses need not change their versions of events. All that is required for the trial court to fulfill its duty is to foreclose lines of questioning, summaries, or approaches designed to elicit testimony that Lebron was the shooter, require the State to tailor questions regarding the events on the night of the murder and subsequent investigation carefully, and ensure that the parties inform the witnesses of the scope of proscribed testimony to avoid any confusion that may produce even an unintended slip of prohibited facts. The trial court must also ensure that the State's opening and closing arguments are not based on excluded evidence. Despite the State's protestations, the exclusion of evidence in this manner to protect a defendant's constitutional right to a fair trial, as with most rules concerning the exclusion of certain evidence otherwise probative, is not a novel or extreme measure. To the contrary, it is precisely what our constitution, state laws, and rules of evidence require.

Ex parte McGriff, 2005 WL 78770 (Ala 1/14/2005) (dissent) On application for rehearing, the Supreme Court held that testimony that alleged provocation occurred five hours before murder, without more, did not render trial court's giving of heat of passion instruction improper.

CAPITAL CASES (Other Than Favorable)

Nunley v. Bowersox, 2005 WL 76914 (8th Cir 1/14/2005) Missouri Supreme Court has previously held that Ring v. Arizona is retroactively applicable as a matter of state constitutional law. If Nunley wants to raise the claim, after Schriro v. Summerlin, he must do so in state, not federal, court.

In re United States of America, 2005 WL 57969 (5th Cir 1/12/2005) In a highly watched case, mandamus granted holding that the trial court abused its discretion in granting wide-ranging discovery of the government's capital-charging practices inclusive of defendant's case. Proposed instruction in the penalty phase relating to selective prosecution in light of the federal government's refusal to turn over said discovery held inapprorpiate.

Ashley v. Bagley, 2005 WL 59028 (S.D. Ohio 1/11/2005) Motion to seal records of mental health experts who were appointed to evaluate competency to drop appeals, denied.

Ross, as next friend, v. Rell, 2005 WL 61494 (D.Conn. 1/10/2005) Father held not to have standing to file next of friend

Corcoran v. State, 2005 WL 43771 (Ind. 1/11/2005) No state right to automatic post-conviction review of a death sentence. Appellant held competent to waive appeals. Counsel did not have the standing to file post-conviction petition without the consent of the condemned.

State v. Ross, 2005 WL 88808 (Conn 1/14/2004) State public defender lacks standing to challenge waiver of post-conviction appeals

Winkles v. State, 2005 WL 67025 (FL 1/13/2005) (dissent) Relief denied on claims relating to (1) Apprenedi/Ring; (2) failure of the state statute to require that aggravating circumstances be charged in the indictment; (3) competent, substantial evidence review; & (4) proportionality.

Kokal v. State, 2005 WL 67027 (FL 1/13/2005) Relief denied on the five claims he presents: "First, he appeals the trial court's denial of his motion to disqualify the trial judge. Next, he appeals the denial of three claims from his successive postconviction motion--the newly discovered evidence claim, the ineffective assistance of postconviction counsel claim, and his claim challenging the constitutionality of Florida's death penalty statute. Finally, Kokal presents this Court with a due process challenge, asserting that his constitutional rights were violated by the State's failure to preserve evidence."

State v. Binney, 2005 WL 53250 (S.C. 1/10/2005) Trial court did not err in admitting into evidence a statement by Binney despite claims it was taken in violation of Binney's Fifth Amendment right to have an attorney present during a custodial interrogation.

OTHER NOTABLE CASES

None noted this week.

HOT LIST

Guidry v. Dretke, 2005 WL 78304 (5th Cir 1/14/2004) (dissent) District Court was correct in conducting an evidentiary hearing despite state court evidentiary hearing on the same issue. The district court gave proper deference to the factual determinations of the state court. Confesssion and other hearsay held inadmissible as a matter of federal constitutional law. “[A]dmission of the confession and the hearsay testimony against Guidry's interest was not harmless error.” (My apologies in advance for the long out take from Guidry that follows.)

At issue is whether the district court reversibly erred: (1) by conducting an evidentiary hearing on Guidry's confession, in the light of the state court's having held one for that issue and, according to the State, for the same evidence and in order to substitute its credibility determinations for those by the state court; (2) by ruling on that confession issue that, pursuant to 28 U.S.C. § 2254(e)(1), Guidry, with the requisite clear and convincing evidence, rebutted the presumption of correctness AEDPA accords to state court determinations of fact; and (3) by ruling that the admission of the confession and the hearsay testimony against Guidry's interest was not harmless error. We hold that the district court applied AEDPA properly both in conducting the hearing and in granting Guidry conditional habeas relief.

****

1.

The trial court held pre-trial evidentiary hearings in 1996 and 1997 on the voluntariness vel non of Guidry's confession; the state habeas court did not conduct a hearing; and the district court held an evidentiary hearing on the same issue in 2002. The State does not contend that AEDPA expressly bars the district court hearing; instead, consistent with the abuse of discretion standard of review for this issue, it contends that the district court abused its discretion by conducting the hearing. See, e.g., Valdez v. Cockrell, 274 F.3d 941, 948, 952 (5th Cir.2001), cert. denied, 537 U.S. 883, 123 S.Ct. 106, 154 L.Ed.2d 141 (2002); Barrientes v. Johnson, 221 F.3d 741, 770 (5th Cir.2000) (citing McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir.1998)).

***

As we understand the State's narrow challenge to the evidentiary hearing's being held, it is premised in large part on the same evidence being presented in that hearing that was presented in the two pre-trial hearings in state court on the motion to suppress Guidry's confession. Had this narrow issue been presented to the district court upon its ordering the hearing to be held, the district court could have decided whether it had merit. (Likewise, the Dissent at ---- maintains "the district court ... [held] an evidentiary hearing to rehear the same testimony heard by the state court". This is not so.) In any event, although the same witnesses testified in district court as in state court, there was no way, of course, for the district court to know whether testimony at the federal hearing would be identical to that at the state hearings, even if the same witnesses were to be called. This is demonstrated vividly by how Detective Roberts' testimony changed.

Because of the belated manner in which the issue has been raised (post grant of conditional habeas relief), a far different scenario exists. As discussed, although the evidence at the district court hearing was, in most respects, the same as at the state hearing, there were some significant differences. For example, Detective Roberts testified at the district court hearing that: prior to questioning Guidry on 7 March 1995, he contacted an assistant district attorney to ensure there would be no conflict in his doing so because Detective Roberts knew that, for persons in Guidry's circumstances (in jail for several days on another charge (bank robbery)), "usually ... an attorney is appointed [for] them"; nevertheless, for the 7 March interrogation of Guidry, he did not know Guidry had an attorney. As another example, Detective Roberts did recall the 15 March 1995 in-chambers conversation.

Accordingly, the factual prong for the State's narrow issue fails: the evidence was not the same. Arguably, therefore, there is no merit to this issue. On the other hand, the State may be contending that, as a matter of law, the hearing should not have been held because, when the district court ordered the hearing in conjunction with denying the State's summary judgment motion, the district court knew the same witnesses would testify at that hearing as had testified in state court; that, without more, the district court was required to accept the state trial court's implied credibility rulings.

In Guidry II at 12-14, the district court explained in great detail why, notwithstanding the AEDPA-mandated deference owed the state court decision, it could not, pursuant to AEDPA, determine whether that decision was unreasonable without first conducting an evidentiary hearing to test the state court decision. In that regard, in the light of the summary judgment record, the district court made the following observations about the State's summary judgment motion and the state court suppression hearings:

[The State] argues that the testimony from the [15 March in-]chambers episode is not as beneficial as anticipated by Guidry's claim. [The State] focuses on three main factors: (1) the police denied making the [in-chambers] statements; (2) if the episode in chambers indeed occurred, the motive behind the [in-chambers] statement is unclear; and (3) the [in-chambers] statement does not prove that Guidry invoked his right to counsel. These factors, however, do not detract from the strength of Guidry's assertion. First, while Detective Roberts testified that no one made the [in-chambers] statement in question, three members of the bar testified otherwise. Detective Roberts' testimony in that respect is suspect. This is especially the case as Detective Roberts gave contradictory and inconsistent testimony on other grounds. Second, the fact that the motive behind the [in-chambers] statement is unclear highlights the inadequacies of the state review. Respondent's attempt to characterize the [in-chambers] statement as a joke is pure speculation, accentuating the need for factual development. It is especially difficult to ascertain Detective Roberts' motive from the record because he emphatically denied making any such statement in chambers. Tr. vol. 7 at 203. Finally, while the officer making the [in-chambers] comment did not expressly say that Guidry had invoked his right to counsel, the Court cannot turn a blind eye to the fact that the comment is based on the assumption that Guidry asked to speak to counsel. The police would have no need to concoct a story about getting an attorney's permission to speak with a client if Guidry did not request counsel's assistance. The [in-chambers] comment by the police does more than enhance Guidry's credibility and detract from their own, it shows that the police potentially ignored Guidry's right to counsel.

Id. at 13-14 (emphasis added). (The above demonstrates vividly why the district court felt a hearing necessary; obviously, it felt it could offer far more than, in the dissent's words, "little aid in determining whether the trial court's factual determination was unreasonable in light of the evidence presented". Dissent at ----.)

Accordingly, in the light of this record, we turn to the district court's authority to conduct the evidentiary hearing. The State does not challenge a district court's discretion to conduct an evidentiary hearing, so long as it is not violative of the constraints imposed by AEDPA. Instead, the State claims the district court abused that discretion, especially concerning the state court's credibility determination.

iii.

In the light of the narrow issue presented by the State, it is not necessary to discuss pre-AEDPA jurisprudence in detail in order to understand AEDPA's constraints on a federal habeas court's discretion to conduct an evidentiary hearing. Well in advance of AEDPA's enactment in 1996, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), had delineated the boundaries of a federal habeas court's authority and obligation to conduct evidentiary hearings. The Court determined the circumstances under which federal habeas courts had discretion to do so, as well as when they were required to do so.

***

In contrast to former § 2254(d), AEDPA greatly curtailed federal habeas court discretion to conduct evidentiary hearings. Express restrictions are found at 28 U.S.C. § 2254(e)(2).. . . Understandably, this standard is almost identical to the one a petitioner must satisfy to be permitted to file a second or successive habeas application under § 2254. See 28 U.S.C. § 2244(b)(2). Subpart (e)(2) is recognized as a "dramatic[ ] restric[tion]" on "the ability of district courts to hold an evidentiary hearing". Spreitzer v. Schomig, 219 F.3d 639, 648 n. 1 (7th Cir.2000), cert. denied, 532 U.S. 925, 121 S.Ct. 1366, 149 L.Ed.2d 294 (2001).

Pursuant to its plain language, subpart (e)(2)'s hearing-bar applies, however, only if a habeas petitioner failed in state court "to develop the factual basis" for his claim. Moreover, "[u]nder the opening clause of [subpart](e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel". Michael Williams, 529 U.S. at 432, 120 S.Ct. 1479; see also Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000). Restated, if a petitioner develops a factual basis for a claim in state court (or sufficiently attempts to do so), subpart (e)(2) does not bar an evidentiary hearing in district court.

Guidry requested, and received, an evidentiary hearing in state court and provided ample evidence, to say the least, for the factual basis for his Fifth Amendment claim. Testimony at the pre-trial hearings--Guidry's and that of four lawyers--more than adequately developed that factual basis. Therefore, subpart (e)(2) did not bar the evidentiary hearing in district court. The State conceded this at oral argument here.

As noted, the dissent maintains the district court abused its discretion in holding an evidentiary hearing because it did not intend to hear "new evidence", Dissent at 4, so there was "no justification" for its holding a new hearing, id. at 5. Where subpart (e)(2)'s bar does not apply, Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts grants district courts the very discretion the dissent would proscribe. The version of Rule 8 in effect when the hearing was granted provided:

If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require.

Rule 8(a) (emphasis added). The amendment to Rule 8(a), effective 1 December 2004, makes no substantive change. The amended Rule provides:

If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 [allowing district judge to "direct the parties to expand the record by submitting materials relating to the petition"] to determine whether an evidentiary hearing is warranted.

Post-AEDPA, Rule 8(a) has been interpreted to vest district courts with discretion to conduct an evidentiary hearing if not barred by subpart(e)(2).

Pursuant to subpart (e)(1), the district court found the presumption of correctness rebutted by clear and convincing evidence (did not accept) for at least the following two trial court findings concerning the 7 March 1995 interrogation: that Guidry did not ask for his attorney; and that the detectives did not inform Guidry that his attorney gave Guidry permission to discuss the case with them. These non-accepted state court findings necessarily rest on several credibility determinations. In its findings and conclusions, the trial court found Guidry was not credible but the detectives were. But, again, the trial court was silent with respect to the testimony by the four lawyers who testified on Guidry's behalf. The State characterizes this silence, viewed in the context of the trial court's findings and conclusions as a whole, as "implied" credibility determinations against those lawyers. Citing Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir.2002) (holding federal court defers to trier of fact for credibility determinations), the State claims AEDPA proscribes the district court's non-acceptance of the trial court's express and implied credibility determinations and of other trial court findings of fact.

The State maintains: contrary to subpart (e)(1), the district court erred in not according the state trial court's findings the requisite presumption of correctness to which they were entitled because the four lawyers' testimony cannot be the requisite clear and convincing evidence for rebutting that presumption. The State bases this on its assertion that the evidence found clear and convincing by the district court is, according to the State, essentially the same evidence that was provided--unsuccessfully--in state court. Therefore, again according to the State, the district court effectively substituted its credibility determinations for those of the state trial court. As discussed, a federal habeas court is prohibited from doing this simply because it disagrees with the state court's determinations. See Pondexter, 346 F.3d at 148. (The Dissent at 4-5 errs in suggesting we do not employ this rule.) Before considering the findings by the state trial court, explanation is required for why we do not consider those by the state habeas court.

a.

In July 2000, in adopting verbatim the State's proposed findings of fact and conclusions of law, the state habeas court made alternative findings of fact and conclusions of law concerning the confession's admissibility. Neither the State nor Guidry analyzes these alternative findings of fact and conclusions of law, nor does the district court mention them in its opinion. Instead, the focus is on the trial court's March 1997 written findings and conclusions. Possibly, this is because we can ignore the state habeas court's findings on the confession issue; as that court ruled, state law barred it from considering the issue because it had been addressed on direct appeal. "The general doctrine ... forbids an application for a writ of habeas corpus after direct appeal has addressed an issue." Gill v. State, 111 S.W.3d 211, 214 n. 1 (Tex.App.--Texarkana 2003) (holding this general rule does not apply to ineffective assistance of counsel claim).

In any event, the state habeas court's findings did not conflict with the state trial court's. Although the state habeas court's findings added a summary of Gottlieb's and Duer's testimony at the 1996 hearing, they included no evaluation of that testimony, no credibility determinations, and no mention of the testimony at the 1997 hearing. Because the state habeas court's findings were in the alternative, and because that court reached the same legal conclusion as did the state trial court and did not make any conflicting findings or determinations, the state trial court's findings of fact control. Cf. Walbey v. Dretke, 100 Fed. Appx. 232, 235 (5th Cir.2004) (unpublished) (holding state habeas court's "factual findings did not survive [state habeas] appellate review, so that the district court did not err when it failed to defer to those findings in denying habeas relief", where the state habeas appellate court (1) failed to adopt the habeas court's findings and (2) those findings were directly inconsistent with the appellate court's). Therefore, the district court was correct to focus on the state trial court's determinations of fact.

b.

When a district court considers whether to accept a state court's determinations of fact, including credibility determinations, it must act, of course, in accordance with "the respect due state courts in our federal system". Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. For state court determinations of fact, this deference is embodied in subparts (d)(2) and (e)(1). The State's challenge is to the district court's application of subpart (e)(1) (state court determinations of fact presumed correct unless rebutted by clear and convincing evidence). Under subpart (d)(2), a state court decision may be overturned on factual grounds only if its determinations of fact are "objectively unreasonable in the light of the evidence presented in the state-court proceeding". Miller-El, 537 U.S. at 340, 123 S.Ct. 1029 (citing Terry Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of O'Connor, J.)).

Again, the dissent mistakenly views our position as being contrary to the well-established rule that the district court may not substitute its own credibility determinations for those of the state court simply because it disagrees with the state court's findings.

Notwithstanding AEDPA's requiring substantial deference for state court determinations of fact, such

deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude [under subpart (d)(2) ] the decision was unreasonable or that [under subpart (e)(1) ] the factual premise was incorrect by clear and convincing evidence.

Id. (emphasis added). Consistent with this scheme, and pursuant to subpart (e)(1), the district court did not accept the state court's determinations of fact because the trial court made no findings on considerable evidence critical to Guidry's claim. Guidry III at 12-15. Consequently, under subpart (d)(2), the district court concluded the trial court's decision "was based on an unreasonable determination of the facts". Id. at 15 (citing Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

Guidry has challenged the state court's failure, through express determinations of fact, including credibility determinations, to resolve evidentiary conflicts that are crucial to his claim. According to the dissent, the district court must defer to trial court factual determinations, even when they are presented without explanation concerning extremely important and conflicting evidence. On the contrary, certainly on this record, such absence suggests an unreasonable determination; the district court was required to review the underlying facts, even though they were adduced at a full and fair hearing. Contrary to the dissent, we certainly do not suggest "that a habeas petitioner can satisfy his burden under subpart (e)(1), and thereby discredit the state court's factual finding, merely by pointing to a failure by the trial court to make explicit credibility findings regarding particular witnesses". Dissent at 1-2.

Again, in its written findings, the trial court weighed Guidry's testimony against the testimony of Detectives Roberts and Hoffman and Sergeant Billingsley; but, it omitted the testimony of four lawyers--Duer, Gottlieb Scott, and Yarborough--that corroborated Guidry's. The lawyers' testimony is crucial for determining whether Guidry asked for his attorney and whether the detectives stated falsely that they had spoken with that attorney and he had stated Guidry could talk with them. The district court did not err in its application of subpart (e)(1).

The state trial court's omission, without explanation, of findings on evidence crucial to Guidry's habeas claim, where the witnesses are apparently credible, brought into question whether, under subpart (d)(2), its "decision ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding". After reviewing the demeanor of Detectives Roberts and Hoffman at the 2002 hearing, and finding them not credible, while observing the credible testimony of the four lawyers and Guidry, the district court, pursuant to subpart (e)(1), was in an even better position not to accept the trial court's findings.

****

After reviewing the record and the witnesses' testimony ("particularly their demeanor"), the district court ruled that the detectives were not credible, but the lawyer witnesses and Guidry were. It was well aware of the conflicts in the testimony noted by the dissent. The court found that Guidry had invoked his right to counsel, and that the detectives had told him, untruthfully, that they had contacted his attorney, who had approved Guidry's cooperation. Again, the court was aware of ambiguities in the lawyers' testimony identifying Detective Roberts as the detective present for the in-chambers conversation; but, these ambiguities were resolved when, at the district court hearing, Detective Roberts admitted to being present in those chambers. These findings are not clearly erroneous.

b.

Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), provides the bright-line rule for applying the Fifth Amendment to the confession claim: when an accused expresses his desire to speak to police only through counsel, he is not subject to further interrogation until counsel is made available to him, unless the accused initiates further communications with the police. In reviewing whether a waiver of this Fifth Amendment right is knowing and voluntary, a court must assess whether: it was the product of intimidation, coercion, or deception; and it was made with full awareness of one's constitutional rights. See Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

The district court ruled that Guidry invoked his Fifth Amendment right by asking, twice, to speak to his attorney. And, as the district court noted, although Guidry later signed and initialed a waiver of his rights, and received a recitation of his Miranda rights in a subsequent videotaped walk-through of the crime scene,

those events occurred after Guidry invoked his right to counsel, and, according to his credible testimony, only because Guidry believed counsel had advised him to speak freely with police. The police deception caused Guidry to waive his rights under a misapprehension of the full circumstances surrounding that waiver.

Guidry III at 16 (emphasis in original).

The district court concluded correctly that, under these circumstances, Guidry's confession was not voluntary and that the state trial court erred by not suppressing it. Therefore, pursuant to 28 U.S.C. § 2254(d)(2), the district court concluded properly that the state court's adjudication of the claim was based on an unreasonable determination of the facts. (The State contends that, even if the confession should have been excluded, its admission was harmless error. We disagree, as discussed infra.)

FOCUS

The Los Angeles Times explores the critical shortage of counsel on death row in this week's "Focus" section.

ATLANTA — Seven inmates on Georgia's death row may be forced to represent themselves at hearings because the state is not required to provide appellate lawyers and a prisoners' advocacy group says it cannot help.

Georgia is the only state that does not provide prisoners with lawyers after their initial appeals.

The state funds a resource center to help inmates in the second phase of their appeals. But its executive director, Tom Dunn, said his four-person staff was too overloaded to take the seven cases.

One of the inmates, Gregory Lawler, has a hearing scheduled in a month.

"He's frightened," Dunn said. "They're all frightened. They want a lawyer."

Many states provide little funding for representation during phase two, the state habeas corpus petition, in which an inmate can raise legal issues from his or her trial such as prosecutorial misconduct or suppression of exculpatory material.

But Georgia stands out when it comes to not providing legal representation, one expert said.

"Georgia is the only state that has just shrugged its shoulders and said if a condemned person doesn't have a lawyer, it doesn't matter," said Stephen B. Bright, director of the Southern Center for Human Rights. "Other states have made a pretense of supplying a lawyer, even if it is an inadequate lawyer."

Since 1996, Georgia has executed 16 people and set aside the death penalty in 17 appeals, Dunn said. There are 113 people on Georgia's death row.

Dunn's nonprofit organization, the Georgia Appellate Practice and Educational Resource Center, receives $800,000 a year to represent death row inmates.

The center's funding has not increased since 2000, but its caseload has jumped 40%, said Emmet Bondurant, chairman of its board of directors. Meanwhile, the center has lost three lawyers whose salaries were paid by an outside source — reducing the staff to four — and recruiting pro bono lawyers has become more difficult.

Russ Willard, a spokesman for Georgia Atty. Gen. Thurbert E. Baker, said the center's warnings were part of a strategy to increase funding.

The group's budget to defend death row inmates, Willard said, is more than the attorney general's budget to uphold the death penalty. State prosecutors must handle twice as many cases, Willard said.

"The arguments put forth by the Georgia Resource Center are hard to take at face value," he said.

A series of court decisions set the stage for this standoff.

In 1989, the U.S. Supreme Court ruled that states are not constitutionally obliged to fund appellate representation for the poor. In that Virginia case, Justice Anthony M. Kennedy wrote that a state law provided counsel for death row inmates, and that no inmate had ever gone unrepresented in appeal.

In 1996, a Georgia case highlighted the issue: Exzavious Gibson was the first death row inmate in modern history to be forced to represent himself in a state habeas corpus proceeding — an event the Atlanta Journal-Constitution described as a "mockery of justice."

Gibson, whose highest IQ rating was 81, was convicted of stabbing a grocer to death when Gibson was 17. He arrived at the hearing without so much as a pen to take notes, an article in the Toledo Law Review reported.

Sitting alone opposite a lawyer for the state, Gibson answered with confusion when the judge asked him to present objections, witnesses or evidence in his defense. When the judge asked if he had any objection to a piece of evidence submitted by the state, he said: "Your honor, I don't waive any rights, but I don't have counsel, so I don't know what to say about anything you have asked me or anything you will ask me."

When the case moved up to the third phase of the appeal, the federal habeas corpus petition, U.S. District Judge Dudley H. Bowen Jr. sent it back for a second state hearing. "There is not a lawyer … who, in the exercise of intellectual honesty, could say that this [case] is one which has no troubled background," Bowen said.

Gibson's case remains at the level of the state habeas corpus petition. As part of his appeal, the Georgia Supreme Court was asked in 1999 to rule on whether death row inmates had the right to taxpayer-funded counsel. The justices ruled 4 to 3 that the state should not be forced to provide funds.

As a result, that funding decision falls to the state legislature. Michael Mears, an Atlanta defense lawyer, said the yearly appropriations process was "a cat-and-mouse to see who blinks first."

For the last two years, state legislators have voted to cut off funding for the resource center altogether, and the money has been restored at the last minute.

Habeas corpus is an area of law so technical that most lawyers are not able to grasp it, Bright said.

"I think everyone in the system — including the state — has an interest in people being represented in these cases," he said. "The idea that someone can represent themselves in a habeas case is like suggesting you go to the airport and fly the plane yourself to Los Angeles."

AROUND THE WEB

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

Georgia's Death Row Faces a Crisis Without Adequate Legal Representation

Seven people on Georgia's death row are without legal representation as they face their final rounds of appeal. Georgia does not guarantee publicly funded lawyers for death row inmates beyond the first round of appeal. According to many legal experts, including retired Georgia Supreme Court Chief Justice Harold Clark, the failure to provide legal counsel increases the likelihood of a wrongful execution. "It's a very important check in the system that's missing. There can be slips in the process along the way. When you've got a person sitting on death row who shouldn't be there, I can't think of many things more serious than that," said Clark.

Currently, the Georgia Appellate Practice and Educational Resource Center represents 55 of the state's 113 death row inmates, but the lack of sufficient funding and staff prevent it from taking all the cases on death row. The Center has asked Georgia's legislature for a 25% increase in its budget to offset the loss of three attorneys who had been funded through fellowships. If the funding increase is denied or if the Center's budget is cut, dozens of others on Georgia's death row could be without legal representation. "That would be a public disaster," said Emmet Bondurant, who chair's the Center's board. "You'll be basically increasing the odds that people will be executed whose constitutional rights were violated or who, as the DNA exoneration cases have shown, may be...actually innocent."

(Associated Press, January 18, 2005). See Representation.

NEW VOICES: Understanding Mental Illness and the Death Penalty

In a recent Hartford Courant opinion piece, psychiatrist Robert C. Goodwin spoke about the mental illness afflicting Michael Ross, who is scheduled for execution in Connecticut on January 26. Dr. Goodwin was a psychiatric consultant to the state of Connecticut from 1983-2001 and took part in Michael Ross' evaluation and treatment over the years, appearing as an expert witness in Ross' second trial. Dr. Goodwin believes the execution should be stopped:

Although demonstrably sane, Ross suffers from a clear-cut, well-documented case of the most severe sort of paraphilia (sexual deviation). This is not just my view. It is the considered opinion of almost every psychiatrist and mental health professional who has examined him, including at least one who customarily testifies for the prosecution. In Ross' case, the condition resulted in intense, constant and virtually irresistible violent fantasies toward women.

He likened his fantasies to a loud, abrasive college roommate who plays music at maximum volume all day long. In other words, they weren't fun.

An indication of the forcefulness of his desire to rid himself of them: Shortly after his first sentencing, he began to receive a hormonal preparation called Provera. The drug proved extremely effective in curbing his fantasies, but it had an insurmountable drawback; it caused abnormal liver-function tests. If he remained on it, he would almost certainly die of liver failure. Ross said he wanted to stay on the drug, even knowing it might kill him. He was even willing to sign a waiver absolving the state from responsibility for adverse consequences. When his request was denied, he successfully brought suit to receive a similar but more expensive drug called Depot Lupron.

The Ross case brings up a point so obvious that it can easily be overlooked: Someone might be absolutely sane, yet have an incapacitating psychiatric disorder. Consider the businessman who washes his hands 100 times a day and spends the entire morning taking a shower, or the housewife too depressed to get out of bed, or the college student who panics whenever he enters a classroom. They may all be sane (they probably are). Still, their symptoms wreak havoc with their lives.

Jurists appreciate this point, at least in theory. In most states, and most nations, a criminal is absolved of responsibility for his acts if they result from mental illness, whether or not the illness is a psychosis. Putting aside the niceties of psychiatric diagnosis and criminal law, however, one intuitively senses that a man who rapes and kills half a dozen women, who takes huge chances in doing so (his last crime was committed in broad daylight near a busy highway), and who risks his life and liberty in the process isn't thinking right. By the same token, a man who submits to chemical castration to rid himself of his symptoms is apt to be significantly impaired, whether or not he meets the criteria for insanity.

The many arguments against the death penalty, however convincing to some of us, remain abstractions. Michael Ross, whatever else he might be, is no abstraction. He is a profoundly impaired man whose life is made marginally tolerable by potent medication that turns him into a eunuch. To execute him would be analogous to executing a schizophrenic, a man with an IQ of 50 or a psychotically depressed woman who killed her children because she thought she was rescuing them from an evil world. I submit that in any or all of these cases, including Ross', a state-sponsored killing is unacceptable.

(Hartford Courant, January 16, 2005). See Mental Illness and New Voices.

Kansas Death Penalty Advisory Committee Releases Report

A recent report issued by the Kansas Judicial Council Death Penalty Advisory Committee examines the state's application of capital punishment and the hefty price tag of seeking the death penalty. The Committee found that since Kansas reinstated the death penalty in 1994 there were 44 potential capital cases involving minority victims. However, none of these cases resulted in a death sentence. Of the eight defendants in Kansas who did receive death sentences, all of their victims were white. Of those eight cases, six originated in Sedgwick County and only two cases were from the entire rest of the state.

This disparity may be partially due to the high costs associated with capital punishment. The report noted that the cost of prosecuting a death penalty case is generally quite high because each side is more likely to employ costly expert witnesses and subsequent appeals are financially draining. The Committee concluded that larger and more populous counties in Kansas - such as Sedgwick County - can more readily absorb the cost of death penalty litigation because of a larger tax base.

In addition to the issues of race, costs, and geographic disparity, the panel also examined issues such as innocence, deterrence, and the state's ability to meet the needs of all murder victims' family members. (Report of the Kansas Judicial Council Death Penalty Advisory Committee on Certain Issues Related to the Death Penalty, November 2004) Read the Report. See also, Race and Costs.

Los Angeles Times Urges Clemency for Beardslee While Challenging the Arbitrariness of the System

Just days before the scheduled execution of Donald Beardslee in California, the Los Angeles Times has called for his clemency while questioning the even-handedness of the whole system. The editorial concludes that the death penalty is a "lie" to the people of California:

Donald Beardslee was 38 years old in 1981 when he shot one woman and strangled and slashed another in San Mateo County, retaliation for a soured drug deal. He is now 61. So many years have passed since a jury sentenced him to die in the gas chamber that the infamous green room at San Quentin Prison has become a grisly relic. Beardslee's execution, now scheduled for Wednesday, will be by lethal injection.

It's taken state prosecutors nearly 24 years to arrive at this moment, and Beardslee's case alone has probably cost taxpayers more than $1 million. Yet his winding path to the death chamber is hardly unusual, and his case demonstrates the caprice, unfairness and waste woven through California's death penalty.

In concept, many Californians seem to approve of capital punishment; as voters, they regularly declare additional crimes subject to the death penalty. California law now lists more than 30 "death-eligible" special circumstances, more than any other state.

The broad latitude of prosecutors to ask for death and the willingness of juries to comply has put 640 men and women on death row, the largest condemned population in the nation.Texas, which executes its condemned prisoners more swiftly, is second with 455 inmates.

Beardslee was subject to the death penalty because he committed multiple murders. So was Leonard E. Brown. In 1981, the Compton man, then 23, was convicted of two murders committed during a four-day PCP-fueled spree that also included rape, assault and robbery. But the Los Angeles jury that heard Brown's case sentenced him to life without parole instead of death. That same year an Orange County judge sentenced another man, William Caywood, to life after a jury deadlocked over the death penalty. Caywood murdered his two bosses at the gas station where he worked, shooting them execution style.

Three men, each convicted of two murders, yet only one is sentenced to death.

California does more than many states to keep the innocent from being executed and to ensure that those condemned get fair trials. The appeals and assurances may take decades to work their costly way through the courts, which is another matter. But in the whole complicated process, nothing addresses the inequality of the death penalty's application. Judges in California cannot throw out a capital sentence on the ground that defendants who committed similar crimes were not sentenced to die.

So few California lawyers are qualified to handle death-penalty appeals that 248 inmates still have no attorney appointed for at least one phase of this review process. So much cost and time are involved in these complex challenges that Beardslee's execution would be only the 11th since voters reinstated the death penalty in 1978. But speeding up the process would necessarily mean accepting less-qualified lawyers for the appeals and increasing the risk of executing defendants who are innocent or were unfairly convicted.

Beardslee confessed to his crimes, and prosecutors painted him as a calculating, remorseless killer. Those were among the factors that led the jury to recommend death. But Beardslee's appellate lawyers argue that extensive brain damage he suffered in accidents as a child and young man put him under the sway of a domineering accomplice who directed the murders.

The original trial jury heard about those accidents but not about the lasting damage they might have caused or the effect on his personality and behavior. The brain-imaging technology now available didn't then exist. His lawyers' contentions on that damage form the basis of a clemency petition now before Gov. Arnold Schwarzenegger.

The governor should grant that petition and at least commute Beardslee's sentence to life without the possibility of parole. But Beardslee's case also demonstrates the impossible position California is now in: By erecting a death penalty scheme that sentences so many to death and executes so few, the state lies to itself and the people about what it's doing.

(Los Angeles Times, January 17, 2005) (emphasis added). See Clemency, Editorials, and Upcoming Executions.

Former Death Row Inmate Wilbert Rideau Freed After 44 Years

Following a manslaughter conviction for a crime committed when he was 19 years old in Louisiana in 1961, Wilbert Rideau, the acclaimed prison journalist, was set free by the trial judge on Saturday, January 15. His conviction carries a maximum sentence of 21 years and Rideau has already served 44 years in prison, primarily in Angola. Rideau, who is black, was originally convicted and sentenced to death by an all-white, all-male jury for killing a white woman. His death sentence was overturned when the U.S. Supreme Court found that the death penalty was being applied in an arbitrary manner in 1972. He has had three previous trials. In 2000, a federal appeals court granted him a new trial because blacks had been excluded from the original grand jury that indicted him in 1961. In his current trial, he faced a mixed-race jury for the first time.

During his years in Angola, Rideau served as the editor of the prize-winning publication, The Angolite, and has received numerous awards for his writing and his part in producing the documentary "The Farm" about life in the prison. (Washington Post-AP, Jan. 16, 2005).

9th Circuit Weighs Lethal Injection Challenge in California

Note: The Court of Appeals denied the challenge to California's lethal injection process. Just one week before the scheduled execution of California death row inmate Donald Beardslee, judges from the U.S. Court of Appeals for the Ninth Circuit are considering a suit filed by the ACLU of California, Death Penalty Focus, and Beardslee's defense attorneys concerning the state's use of a paralyzing chemical called Pavulon in lethal injections. Beardslee's attorneys said that Pavulon could prevent an inmate from crying out in pain, and that it could mask suffering caused by asphyxiation and the searing sensation caused by the last administered chemical in the lethal injection process, potassium chloride. Some of the judges expressed concerns about the state's secretiveness and lack of detail regarding the chemical: "You're putting us in an awkward position," said Judge Sidney Thomas to the state's lawyer. "Some other states don't use it." Defense attorneys argued that the purpose of including Pavulon is to keep the public in the dark about whether the state's lethal injection method is inhumane. A ruling is still pending regarding this appeal, and a separate bid for clemency from the governor will be heard soon by the state's parole board. (Sacramento Bee, January 13, 2005). This would be the 11th execution in California since the death penalty was reinstated 30 years ago. There are 638 people on the state's death row. See Methods of Execution and Clemency.

AROUND THE BLOGS

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

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

First Hand Account of Beardslee Execution

San Franicisco Chronicle reporter Kevin Fagan was a witness at the California execution of James Beardslee this week. Here's his account. Fagan reports the execution took 11 minutes. He says Beardslee slipped quietly into death, but how does he know when one of the drugs paralyzes and prevents the injectee from making any sounds or movements or response?

After 12:21 he didn't twitch a muscle. At 12:29 it was over.

One of Beardslee's last unsuccessful grounds for appeal was that the particular drugs administered amounted to a violation of his first amendment right to scream in agony should he feel it.

Then there was this, according to the reporter, " one slight hitch":

From midnight to 12:16 a.m., two prison guards hunted for the right places to insert the needles -- and that's where the only complication cropped up. The right arm catheter was attached in five minutes, about normal, but as the guards prodded his left arm for the vein they thought would yield easily, they had no luck.

It took 11 minutes to tap a secondary spot, about twice as long as in most other executions, but Beardslee never moved or spoke as the metal poked at his skin again and again. Neither did the guards, though their lips progressively tightened as they undoubtedly realized the procedure was taking too long.

At least one family member of the victim was glad to see Beardslee die. "I saw what I wanted to see. I'm glad," he said. Not all family members of murdered victims share that view. Check out Murder Victims Families for Reconciliation.

There are also differing views of Beardslee's crimes. The Chronicle reports:

Beardslee was in the death chamber because he had throttled and slashed 19-year-old Stacey Benjamin and shotgunned her friend, 23-year-old Patty Geddling, in 1981 after they were lured to his Redwood City apartment in a beef over a drug debt.

According to Jeanne D'Arc of Body and Soul,

Four men murder two young women, but only one of them is sentenced to death. The one who planned the murders? Of course not. It's the one with virtually no function on the right side of his brain. The one who confessed and led investigators to one of the bodies. The one with the passive personality who surely was taking orders from others.

Schwarzenegger's next clemency decision might involve Crips founder Stanley 'Tookie' Williams, nominated for a Nobel peace prize while on death row. He's also the subject of the tv movie Redemption, starring Jamie Fox. We'll have a lot more to say about his clemency petition as that decision gets closer.

Death Penalty Questioned in Indiana by TChris

The South Bend Tribune today called upon Indiana Gov. Mitch Daniels to do two things. First, follow the advice of former Gov. Joe Kernan to "examine whether the sentencing system is fair in Indiana death penalty cases." Second, until that review has been completed, impose a moratorium on the imposition of the death penalty.

Kernan granted clemency to two individuals who had been sentenced to death -- "the only two times in the 48 years since the death penalty was reinstated that an Indiana governor has stepped in to spare the lives of condemned prisoners."

That fact may say something about Kernan's willingness to take the chance of being labeled soft on crime. More than that, it speaks to his willingness to take a new, objective look at the clemency petitions before him. What he found ought to shake anyone's confidence in Indiana's application of capital penalties.

In Kernan's words, "I now have encountered two cases where doubt about an offender's personal responsibility and the quality of the legal process leading to the capital sentence has led me to grant clemency. These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences."

As the Tribune points out, even the strongest supporters of the death penalty should not accept a flawed system for dispensing the ultimate penalty.

Donald Beardslee Execution: Warden Calls It 'A Shame'

Donald Beardslee was executed in California last night, following Governor Arnold Schwarzenegger's denial of clemency.

In the nearly quarter-century that he waited in San Mateo County Jail and on San Quentin's death row, Beardslee is reported to have become a model prisoner. According to testimony read at Friday's clemency hearing, he even assisted corrections officials on prison security.

Former San Quentin Warden Daniel Vasquez described Beardslee as a rare inmate with no discipline record. "Killing him would be a shame," Vasquez said.

But Schwarzenegger was not swayed by the good behavior argument. "I expect no less," he said.

Clock Ticking for Calif. Death Row Inmate

Update: Gov. Arnold Schwarzenegger denies clemency. According to the New York Times,

Mr. Schwarzenegger agreed that Mr. Beardslee "suffers from a mental impairment" but said he was not "disconnected from the events of that fateful night."

California is set to have its first execution in three years at 12:01 am Wednesday morning. It's a controversial execution because prisoner Donald Beardslee allegedly is severely brain-damaged from childhood accidents and at the time of his trial in the 80's, there was no brain imaging technology to demonstrate this to the jury.

A clemency request to change the death sentence into one of life without possibility of parole is pending before Gov. Arnold. I hope he does the right thing and commutes the sentence, but speculation is that he will not because Beardslee does not claim to be innocent. The Supreme Court is expected to take its final action today.

The 9th circuit has denied Beardslee's claim that California's lethal injection method violates his first amendment right to free speech because it prevents him from screaming in pain.

The San Francisco Chronicle opposes the execution. So does the Los Angeles Times. His lawyers are arguing:

Laurence argued that Beardslee's life should be spared because jurors who considered his case did not have access to scientific evidence about the effects of brain damage that Beardslee suffered as a child and young man. A former juror, Robert Martinez, has said he might not have agreed to the death penalty if he had had more information about Beardslee's purported brain damage. Laurence also presented testimony that Beardslee has been a model prisoner for 21 years on San Quentin's death row.

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

California Executes First Inmate in Three Years; Schwarzenegger's First

Early yesterday morning, CA executed 61-year-old Donald Beardslee, who was convicted and sentenced to death for killing two women during a drug deal more than 25 years ago. More than 300 protesters were present at San Quentin for the execution. The execution proceeded a few hours after Gov. Schwarzenegger rejected Beardslee's clemency petition for life in prison without parole and the Supreme Court rejected constitutional claims of cruel and unusual punishment and improper juror influence in rendering the death sentence. This marked the first execution in California in 3 years, and the first during Schwarzenegger's term as Governor. More... [Mark Godsey]

Exoneration Roundup

In an appeal to a single judge of the Wisconsin Court of Appeals, a 30 day sentence for making a false rape accusation was affirmed; conviction could have brought a 40 year sentence to the person falsely accused. Story here. A Bristish woman convicted of making a false rape accusation was sentenced to eight months. Canada has started an inquiry into the David Milgaard case; convicted of a murder 36 years ago, he was released in 1991 and cleared by DNA in 1997. Here's an anti-death penalty editorial from the Indianapolis Star, emphasizing the number of wrongful convictions and exonerations. [Jack Chin]

Death for Child Rape

The Georgia legislature is considering making child sodomy a capital offense. Of course, Coker v. Georgia held that rape of an adult woman cannot be made capital, but the Court has never returned to the issue of whether sexual abuse of a minor warrants death. LSU CrimProf Stuart Green is quoted in the article talking about Louisiana's law which also provides for death for some crimes involving children. [Jack Chin]

"The Death Penalty and Mental Illness" Conference at Catholic

The Catholic University of America Law Review will hold a symposium entitled "The Death Penalty and Mental Illness" on January 26th. Speakers include Florida Crimprof Chis Slogobin and Skadden attorney Ronald Tabak, Co-Chair of the ABA's Death Penalty Committee, among others. Details . . . [Mark Godsey]

Supreme Court To Hear Oral Arguments in Two Criminal Cases Today

Rompilla v. Beard, 04-5462, questions presented: (1) Does Simmons v. South Carolina, 512 U.S. 154 (1994) require a life-without-parole jury instruction where the only alternative to a death sentence under state law is life without the possibility of parole? (2) Has a defendant received unconsitutionally ineffective assistance of counsel at a capital sentencing hearing where counsel does not review the defendant's prior conviction record which would provide mitigating evidence regarding the defendant's traumatic childhood and mental health impairments? More details here. Read Talkleft's analysis of the case here.

Johnson v. U.S., 04-05, question presented: When a federal court bases an enhanced sentence on a vacated state conviction, is the elimination of the state conviction a "fact" supporting a prisoner's 28 U.S.C. sec. 2255 claim requiring reduction of the prisoner's sentence? Details here. [Mark Godsey]

New Article Spotlight: Silence and the Racial Dimensions of Megan's Law

CrimProf Daniel Filler of Alabama has posted the above-titled paper on SSRN. The paper was recently published in the Iowa Law Review. The abstract states:

In the last decade of the twentieth century, every state adopted a new criminal offender community notification law. While critics challenged these provisions on a number of grounds, one potential consequential cost of these laws received no attention: the possibility that they might disparately impose their significant burdens on racial minorities and, particularly, African-Americans. This article breaks this silence about race and Megan's Laws, establishing that community notification provisions do have a significantly disparate racial impact. Using newly gathered statistical data, across multiple jurisdictions, it shows that African-Americans are over-represented on these public registries of criminals. It considers how the contours of these provisions may promote this result, and also explores why this disparity is consequential.

Moving from an empirical study of these provisions, the article then investigates the reasons why race concerns never surfaced in the community notification debates. Given the centrality of racial critiques in the criminal law literature, one might have expected legislators, advocates, or at least scholars to have investigated this issue previously. The article suggests several reasons for this remarkable silence, including the narrow scope of equal protection doctrine, failures of legislatures to demand transparency about race, social phenomena such as moral panics and availability cascades, and the framing of Megan's Laws as an answer to white-on-white crime. It then offers suggestions for doctrinal, legislative, and scholarly moves that increase the transparency of race issues, exposing them to fuller democratic debate.

Sounds pretty interesting. To obtain a copy of the paper, click here. [Mark Godsey]

Trial of a Now-Acclaimed Journalist for 1961 Bank Robbery: UPDATE: Convicted of Manslaughter

On January 10, 62 year-old Wilbert Rideau went on trial for the 4th time for a 1961 bank robbery and killing of a bank teller. Rideau, an African American, has been convicted of murder and sentenced to death for these crimes by all-white, all-male juries in 1961, 1964, and 1970, but each of these verdicts were vacated for government misconduct. In 1961 Rideau was 19 years old. Now that 44 years have passed, Rideau has become an acclaimed journalist and documentary filmaker while serving time in prison (he has served significant prison time because his 1970 conviction was not reversed until recently). Also in this timespan, the bank has been demolished, the crime scene has become an interstate highway, and most of the witnesses are dead. In this 4th trial, the prosecution is not seeking the death penalty and plans to use the previous testimony of 13 witnesses who are now unavailable but were previously cross-examined. The defense plans to emphasize Rideau's complete transformation into a man who has contributed to society in notable ways--he has won a journalism award, made public speeches about the criminal justice system, served as an NPR correspondent, and had his documentary nominated for an Academy Award all during his 44 years in prison. Four parole boards have recommended Rideau for clemency, but each recommendation has been rejected by LA governors. The presiding judge, Judge Ritchie intends to exclude most of this mitigating evidence, but according to LSU Law's CrimProf Stuart Green, the defense should still use "some kind of jury nullification" theory. More . . . (picture is CrimProf Stuart Green)

UPDATE: The jury convicted him of the lesser charge of manslaughter, which means he walked free, as he had already served more time than the maximum allowed for manslaughter. Story . . . [Mark Godsey]

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

Signs of the (crowded prison) times Marc Mauer, assistant director of The Sentencing Project and the author of "Race to Incarcerate," has this important op-ed which encourages Congress to use this Booker moment to examine more broadly "the unprecedented harshness of the policies adopted over the past 20 years, which have combined to produce a prison population unimaginable until recently." Significantly, key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales suggested at recent confirmation hearings, as detailed here, that there may be some hope of moving from being only "tough on crime" to becoming more "smart on crime." As noted previously here, many states in recent years have taken steps to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. And Republicans Governors, from Alabama to Maryland to Michigan to Texas, have been among the leading proponents of this notable modern shift from penal retribution toward rehabilitation. And, as detailed in this recent LA Times article, republican Governor Arnold Schwarzenegger just this month announced his plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission." Of course, budget and prison overcrowding realities are a major catalyst for "smart on crime" reforms in the states. Indeed, newspaper articles today from Alabama to Vermont to Texas highlight that two decades of toughness may have (at least economically) reached a tipping point in many states. (As detailed in this post, the blog Grits for Breakfast has done a terrific job covering Texas prison overcrowding issues.) And, because tight budgets do not seem to impact federal criminal justice policy-making, I am not sure we should be too optimistic that Congress will follow the lead of the states in any post- Booker reforms.

The importance of counsel, and the challenges of judging it As detailed in this Tony Mauro article at law.com, the Supreme Court "appeared sharply divided Tuesday over a Pennsylvania case [ Rompilla v. Beard] that could set new minimum standards for effective assistance of counsel in death penalty cases." Though capital cases always make headlines, I think Dahlia Lithwick basically has it right when she explains in this Slate commentary that Rompilla "isn't all that significant, really, [because it] is just one of thousands of claims about inadequate trial lawyers that capital defendants put forward." And yet, though the Rompilla case may not be exceptional, any elaboration on the meaning and application of ineffective assistance of counsel regarding sentencing representation is of great import in the wake of Blakely and Booker. I noted this point last week here in conjunction with the Supreme Court's cert. grant in Halbert v. Michigan, and I believe that these issues have now become even more important in light of the Supreme Court's creation of advisory guidelines through its ruling in Booker. I have been thinking lately that advisory guidelines for sentencing judges in non-capital cases have a quality similar to the guidelines given to sentencing juries in capital cases. And we know from experience in capital cases that the quality of defense counsel can have a profound impact on ultimate sentencing outcomes, particularly with respect to the development and presentation of mitigating evidence about the defendant. Similarly, I expect that, in the new federal advisory guidelines system, quality of defense counsel will have a profound impact on ultimate sentencing outcomes. Of course, as I detailed in an article a few years ago, From Lawlessness to Too Much Law? Exploring the Risk of Disparity From Differences in Defense Counsel under Guidelines Sentencing, 87 Iowa Law Review 435 (2002) ( abstract here), quality of defense counsel surely has a profound impact on ultimate sentencing outcomes in a mandatory guidelines systems, too.

But the Booker move to advisory guidelines should make even more critical whether and how defense attorneys develop and present mitigating personal evidence about the defendant — evidence that the mandatory federal guidelines largely took off the table. Indeed, I think the work of defense counsel in presenting mitigating offender information will profoundly impact when and how often advisory guidelines are followed in the federal system. And, bringing us back to the issue in Rompilla, it will be interesting to see if any courts ultimately deem some federal defense counsel ineffective at sentencing if they do not develop and present mitigating offender information while representing defendants in the new federal sentencing world.

Clemency denied for Beardslee UPDATE: Donald Beardslee, according to this Reuters story, was executed by the state of California at 12:29am pacific time on January 19th, 2005. ---- As TalkLeft has detailed here and here, and as more fully detailed in this AP article, California Gov. Arnold Schwarzenegger and the US Supreme Court have "turned back a plea for mercy for a convicted murderer, clearing the way for California's first execution in nearly three years." Here is a link to the Governor's official statement, which has a lot of substantive discussion of the arguments pressed in favor of clemency. The statement concludes with these paragraphs:

Nothing in Beardslee's application, supporting papers, or testimony on his behalf before the Board convinces me that he did not understand that he committed two grisly murders and that his decision to take those actions was wrong. Clemency is not designed to undo the considered judgment of the people in favor of the death penalty, but to prevent the miscarriage of justice. The Board of Prison Terms unanimously recommended that I deny clemency to Beardslee. A copy of their recommendation is attached to this decision. After my own independent study and analysis, I agree with the Board. Although I have given serious consideration to Beardslee's plea for mercy, I do not believe the evidence presented warrants the exercise of clemency in this case. For this reason, Donald J. Beardslee's application for clemency is denied.

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

• Indiana capital commutation and other capital news
• The capital story of clemency
• Sister Prejean's powerful perspective

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

Martin Soto-Fong

Those who follow this blog know that we've written about several pending innocence cases out of Texas. Names like Anthony Graves, Frances Newton, Nanon Williams and Max Soffar may well ring a bell. But Texas, of course, is not the only state that has arguably innocent people on death row (although history may prove it to be the worst offender). Today, courtesy of investigative journalist Jeffrey Toobin and the New Yorker magazine, we have a case out of Arizona that should command everyone's attention. The inmate's name is Martin Soto-Fong. The prosecutor who helped put him on death row is Kenneth Peasley. Peasley has since been disbarred by the Arizona Supreme Court for falsifying evidence in this triple murder, but Soto-Fong remains on death row (and running out of appeals). In disbarring Peasley, Arizona Supreme Court Justice Michael D. Ryan (writing for a unanimous court) had this to say:

"A prosecutor who deliberately presents false testimony, especially in a capital case, has caused incalculable injury to the integrity of the legal profession and the justice system."

Hear that, Charles Sebasta? Hear that, Chuck Rosenthal? How about you, Johnny Holmes? To read the entire article, go here.

Here's a novel idea

This editorial appeared in the Houston Chronicle today:

Say why

Prosecutors who seek the death penalty should willingly explain their reasons to the public.

U.S. District Judge Vanessa Gilmore is guilty of unorthodox methods, but it was not unreasonable of her to ask prosecutors why they are seeking the death penalty against the one black defendant among 14 indicted in a smuggling case that ended with the death of 19 illegal immigrants.

Last week a three-judge panel of the 5th Circuit Court of Appeals slapped down Gilmore's threat to tell jurors that prosecutors had refused her order to say why they were seeking the death penalty against Tyrone Williams, the driver of the truck that pulled the sweltering trailer in which the immigrants perished May 14, 2003. Williams is the lone African-American defendant to be tried in the case.

Prosecutors said they were under no legal obligation to give a reason for singling out Williams among his co-defendants for the death penalty. They stated that Williams, as the truck's driver, was the sole defendant with "the power to release the aliens and possibly save their lives." This reasoning is akin to the uncommon notion that the triggerman is guiltier than the person who hires him — a notion not recognized by law or custom.

Gilmore then asked for a letter of explanation from U.S. Attorney John Ashcroft, who ignored the request.

Gilmore could have dismissed the death penalty as a sanction against the government for not obeying her order. Perhaps she was more interested in bringing attention to the controversial racial disparities in the application of the death penalty.

In 2001, Attorney General Ashcroft released a report showing "no evidence" of racial bias in the federal death penalty system. But the original study, released the previous year by then-Attorney General Janet Reno, showed minorities accounted for 80.4 percent of the 682 federal criminal defendants accused of capital crimes between 1995 and 2000.

Instead of setting aside the possibility of the death penalty, Gilmore decided she would announce to jurors during the punishment portion of Williams' trial — if he were convicted — that prosecutors had not abided by her order to provide a rationale for seeking the death penalty. The judge said she further would allow the defense team to say the prosecution's refusal showed Williams' race had been a motivating factor in the government's decision.

Gilmore can be accused of jumping to a conclusion there. But in the absence of a real reason for seeking the death penalty, prosecutors left the door open for the public to jump to its own conclusions.

The New Orleans-based three-judge panel threw out Gilmore's entire plan. But if the judge accomplished anything, she got the public to think about why prosecutors are so secretive about providing information concerning how and why they choose to subject accused criminals to the ultimate punishment. A competent prosecutor eventually presents that information to the jury, so there is little reason why the public should not know from the start.

Graner guilty!

Charles Graner, the former Pennsylvania death row prison guard, was found guilty this evening of a number of counts involving abusing Iraqi prisoners at Abu Ghraib.

Will Rehnquist be able to swear Bush in?

Chief Justice William Rehnquist is scheduled to swear in President Bush for Bush's second term this Thursday. However, will Rehnquist be able to do it?

From death row to Abu Ghraib

No one seems to be focusing on the fact that Charles Graner Jr. served as a guard on death row in Pennsylvania before his assignment to the notorious Abu Ghraib jail in Iraq. Graner Jr., in fact, was accused of cruelty and brutality toward people on death row. Now the defense has rested in Graner's court martial and closing arguments are beginning about now.

Anthony Graves

If you've followed this blog, then you've read about Anthony Graves before. It's always dangerous to proclaim that a person on death row is innocent. For how does one go about proving innocence, anyway? DNA evidence, for instance, rarely proves it innocence. At most, it tends to disprove a prosecutor's theory of how a crime occurred. But this case speaks to innocence. Remember Anthony Graves' name. And while you are at it, remember the name of Charles Sebasta, who put him on death row.

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

Donald Beardslee - California

This is the first time I've had the state of California in italics in one of my post titles. This is true, of course, because for the first time in three years, California executed one of its over 600 death row inmates. Donald Beardslee was executed by lethal injection at 12:20am PST this morning. He died just nine minutes later.

Beardslee had filed several appeals and moved the governor for clemency. His last two appeals were denied by the United States Supreme Court earlier on January 18th. Governor Schwarzenegger also denied his request for clemency. Like many of those executed by our governments, Beardslee was no choir boy. There is no question that he committed two hideous murders. No one argued that he was innocent...or even "not guilty." However, there were serious legal questions about the application of the death penalty (under the laws of California) to Beardslee. Even if he knew right from wrong (as stated by the governor), doesn't his severe brain damage and the related ability of others to control and manipulate him decrease his culpability at least a small amount? Why was he the only one of the three involved in the murders to be given death? There is also the question of the chemicals used to paralyze. That is an overarching question. The chemicals certainly do paralyze the viewers from having to witness the body's true reaction to euthenization; however, what if they don't paralyze the man being killed? What if he can't move or speak but can feel? How is this different than the difficulties with hanging, the gas chamber, a firing squad or the electric chair?

California executes double murderer

Ronald Rompilla

The United States Supreme Court heard arguments in the case of Ronald Rompilla today. The case will define how a state must approach the penalty phase of a trial and what a jury is entitled to know before sentencing a defendant to death. In Rompilla's case, the jury was not informed that, under Pennsylvania law, it could impose a sentence of life without parole. In Pennsylvania, the jury is apparently not entitled to know about the option of life without parole even if it asks. As such, Rompilla's jury could not be clear regarding the chances of Rompilla's release if it refused to impose death. If a jury is not aware of a life without parole option, it may assume that it must give him or her death in order to prevent future harm. In a way, it takes the choice away from the jury because it plays on their fear. This is especially key in Rompilla's case since the prosecution apparently implied that Rompilla would be a danger to society if he were ever released. Though it supposedly never directly stated that Rompilla would be a future danger, it implied it by concentrating on his past criminal history. High Court Hears Pa. Death Row Appeal

Donald Beardslee: Legal Update

The United States Supreme Court and California Governor Arnold Schwarzenegger have both refused to stay the execution of Donald Beardslee. Barring any last minute reprieve, California will execute Beardslee at one minute after midnight tonight. Beardslee's lawyers have asked the Governor for a 120 day reprieve to allow the federal courts time to review evidence regarding the constitutionality of the chemicals used in lethal injection. This reprieve is doubtful considering the Governor's refusal of clemency earlier today.

If Beardslee is executed, it will be the first execution in California in over three years. Last reprieve for Beardslee? Clemency and appeals are denied

Donald Beardslee

Here is an interesting LA Times editorial on the death penalty in California. It focuses on Donald Beardslee's upcoming execution and the problems with the application of death in his case, but it also discusses the inherent problems with California's death penalty (and any other state's!). In particular, it addresses the question of unequal application of death. Its the same issue I hound on about once a month: who decides who lives and who dies? What makes one person fit for a death sentence but not another?

At least California takes the appeals process seriously. Of course, in Beardslee's case, it means he's spent over 20 years on death row waiting for his own murder. It also means that the victim's family has dealt with Beardslee and his appeals process for over 20 years. Now, do I want Beardslee to be executed earlier? HECK NO. The system needs to go the course to at least assure some sense of constitutionality. Thing is, after all these years, what purpose does killing him serve? He's 61 years old with some serious brain damage from childhood that likely influenced the progression of his crimes. Does it bring some sort of closure after 20 years? Wouldn't life without possibility of parole have served some closure? At least then he'd be put in a cell for the remainder of his natural life, an anonymous number deep in the fortress of a California prison. He'd have limited appeals and would likely never be heard from again. California's Death Penalty Lie

Troy Kunkle Update

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

Editorial by Donald Connery

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

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

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

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