Holloway v. Horn leads off this double edition. TheHolloway panel grants relief on a Batson violation. The reason the Third Circuit's decision makes the lead-off position is that iteffectively calls into question Pennsylvania's leading Batson case, Commonwealth v. Spence, which is held to have set a threshold standard at odds with the first prong of Batson. WhetherHolloway leads to a new wave of grants of relief remains to be seen.

The Supreme Court has agreed to review the issue of juvenile executions in Roper v. Simmons. The Missouri Supreme Court had granted relief below holding the Eighth Amendment bars killing juvenile offenders. Only three states (Texas, Virginia, and Oklahoma) have killed juvenile offenders during the past ten years. Texas alone currently has 26 juveniles on death row.

Elsewhere, the Alabama Court of Criminal Appeals inEx parte Maples gives a painful reminder about the dangers of what can happen when a lawyer handling a capital case pro bono leaves the firm. The Idaho Supreme Court has recalledIdaho v. Yager which had been reported in the last edition as a win. Examining the issue of exhaustion,the Eighth Circuit notes the appropriateness of staying proceedings for the purposes of returning to state court to exhaust issues inLee v. Norris. Finally, inPeople ex. rel. Madigan v. Snyderthe Illinois Supreme Court has upheld Gov. Ryan's commutations of Illinois's death row.

In other developments, Willie Hall in Georgia has been granted a commutation to life in prison without the posssibility of parole after half of his jury stated that they would have voted for LWOP had that option been available at the time of sentencing. Robert Yarris has been released from death row in Pennsylvania following DNA exoneration. In New York the Capital Defender Office's has petitioned the New York Court of Appeals to require a higher standard of proof of guilt before a death sentence may be sought. Finally, in 2003 the death sentences hit a 25 year low of death sentences per capita

In focus this week examines California's Capital Case Defense Training coming in February.

EXECUTION INFORMATION

Since the last edition there has been the following executions

January

21 Kevin Zimmerman Texas

28 Billy Vickers Texas

Upcoming execution dates include:

February

3 John Roe Ohio

4 Johnny Robinson Florida

5 Scott Panetti Texas

10 Kevin Cooper California

11 Edward Lagrone Texas

12 Bobby Hopkins Texas

17 Cameron Willingham Texas

17 Norman Cleary Oklahoma

SUPREME COURT

HOT LIST

Holloway v. Horn, 2004 U.S. App. LEXIS 943 (3rd Cir 1/22/2004) Conviction vacated as the state appellate courts interpretation of Batson v. Kentucky was unreasonable. Pennsylvania's leading Batson case, Commonwealth v. Spence, held to set a threshold standard at odds with the first prong of Batson, signaling even more trouble for Pennsylvania's already troubled efforts to rev up the execution process.

Batson's primary significance lay in the Court's repudiation of the evidentiary burden that it had previously placed on defendants in making an equal protection claim. In Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), the Court had held that a defendant could make a prima facie case of purposeful discrimination only by showing that a prosecutor, "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the [*30] jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Id. at 223. Batson rejected the Swain standard in favor of a three-part burden-shifting process by which a trial court can evaluate an objection to race-based juror exclusion in light of events as they occur in the case before it. The Court explained the process as follows:First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.Miller-El v. Cockrell, 537 U.S. 322, 328-29, 154 L. Ed. 2d 931, 123 S. Ct. 1029 (2003) (citations to Batson omitted).

Under Batson, although "a defendant has no right to a petit jury composed in whole or in part of persons of his own race ... the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Batson, 476 U.S. at 85-86 [*31] (internal quotations, citations, and footnote omitted). Consistent with this principle, courts have recognized that a prosecutor's purposeful discrimination in excluding even a single juror on account of race cannot be tolerated as consistent with the guarantee of equal protection under the law. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990) (holding that relief must be granted under Batson "when even one black person is excluded for racially motivated reasons"); see also United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (recognizing that "the Constitution forbids striking even a single prospective juror for a discriminatory purpose"); United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987) ("We emphasize that under Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors."). Moreover, a prosecutor who intentionally discriminates against a prospective juror on the basis of race can find no refuge in having accepted others venirepersons of [*32] that race for the jury. See Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003) ("Where purposeful discrimination has occurred, to conclude that the subsequent selection of an African-American juror can somehow purge the taint of a prosecutor's impermissible use of a peremptory strike to exclude a venire member on the basis of race confounds the central teachings of Batson."), cert. denied, 157 L. Ed. 2d 409, 124 S. Ct. 535 (2003).

We have little difficulty in concluding that Holloway met his burden under the first step of the Batson analysis. A court should consider all relevant circumstances in assessing whether a prima facie showing of discrimination has been made. Batson, 476 U.S. at 96. This Court has identified five factors that are generally relevant in this inquiry: "1) the number of racial group members in the panel; 2) the nature of the crime; 3) the race of the defendant; 4) a pattern of strikes against racial group members; and 5) the questions and statements during the voir dire." United States v. Clemons, 843 F.2d 741, 748 (3d Cir. 1988).

The most striking factor in this case is the prosecutor s pattern of strikes. Holloway moved for a mistrial after the prosecutor had used seven of eight peremptory strikes against African-Americans; the Commonwealth ultimately used eleven of twelve strikes in that manner. As the Court explained in Batson, "a 'pattern' of strikes against black jurors in the particular venire might give rise to an inference of discrimination." 476 U.S. at 97. The pattern here was certainly strong [*38] enough to suggest an intention of keeping blacks off the jury. Cf. Harrison, 909 F.2d at 87 (finding prima facie case where prosecutor used six of eight peremptory challenges against African-Americans); see also Clemons, 843 F.2d at 747 (recognizing that "striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks).

In addition, for purposes of a prima facie showing, Holloway is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed. 1244, 73 S. Ct. 891 (1953)). In responding to Holloway s motion for a mistrial, the prosecutor agreed as to the racial composition of the nine jurors seated to that point (seven whites, two blacks), and explained that he had not used his "pre-empts exclusively on blacks" because he had "struck a white woman also." App. Vol. VII at 1368. This explanation, however, did nothing [*39] to dispel Holloway's suggestion that the prosecutor harbored a discriminatory intent in striking the seven prospective black jurors. A prosecutor cannot undermine a pattern of strikes that appears racially motivated by merely pointing to a lone juror of a different race whom he also found objectionable. A prosecutor also cannot "rebut the defendant's case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections." Batson, 476 U.S. at 98 (internal quotation marks and citation omitted). A further relevant circumstance here is that while Holloway, the victim, and key prosecution witness Shirley Baker were all black, the officer who took Holloway s custodial statement, Detective Gilbert, was white. Given that Holloway s defense would rise or fall largely on his claim that the custodial statement was fabricated, Holloway s credibility versus that of Detective Gilbert, a white police officer, was a crucial issue for the jury. n11

In short, there was sufficient reason to believe that discrimination may have been at work here to require the state to come forward with an explanation of its actions. Johnson v. Love, 40 F.3d 658, 666 (1994). The trial court, as noted, did ask the prosecutor for an explanation following Holloway s motion for a mistrial, but we cannot infer from the court's question- "Does the Commonwealth have anything to say at this time?"- that it found a prima facie case. The court's query suggests that the Commonwealth was under no obligation to provide any response at all, thereby indicating that the second stage of the Batson inquiry had not been reached. If anything, we can assume the trial court found no prima facie case because it allowed the matter to proceed without explanation from the Commonwealth as to the basis for the individual strikes. Insofar as the trial court found no evidence sufficient to support a prima facie showing of discrimination, we must reject that unexplained determination as inconsistent with Batson and not fairly supported by the record.

Significantly, we have recognized that the question of whether a prima facie case has been established becomes moot, [*41] and thus need not even be addressed, when the prosecutor provides explanations for the strikes despite the absence of a request from the trial court. See Johnson, 40 F.3d at 663-65. We have explained that,independent of the strength of the evidence tendered as a prima facie case, once a prosecutor attempts to explain a peremptory challenge, we believe the trial and reviewing courts should look to the entire record to determine if intentional discrimination is present. If the prosecutor's explanation raises more concern than it puts to rest, courts cannot effectively close their eyes to that fact by simply deciding that the defendant has not made out a prima facie case.United States v. Clemmons, 892 F.2d 1153, 1156 (1989); see also Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991) (plurality opinion) ("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot."). Thus, based on the prosecutor's explanations alone, the trial [*42] court should have reached the second and third steps in the Batson inquiry in this case.

The second Batson step requires that the prosecutor provide a "neutral, nonpretextual explanation for striking the black venirepersons from the venire panel." Jones v. Ryan, 987 F.2d 960, 973 (1993). After the motion for a mistrial was rejected, Holloway duly noted each peremptory challenge exercised against an African-American, and the prosecutor elected to make a record of his reasons for three of those four strikes. Although we are troubled by the lack of race-neutrality in each of the prosecutor's explanations, and perhaps more troubled by the lack of any explanation at all for eight of his eleven strikes, the explanation given as to venireperson John Hackley, Sr., was plainly insupportable under Batson and warrants relief.

The prosecutor explained the Hackley strike on the ground that Hackley "is a black juror, black male juror approximately the same age as the defendant." In other words, the prosecutor cited Hackley s race, age, and gender as the reasons for the strike. Race, obviously, was impermissible, but we will assume that the prosecutor referred to Hackley s race merely [*43] as a concession that Hackley was black so that his race would be clear as a matter of record. Thus, we focus on the prosecutor s stated reasons of age and gender. n12 This Court has firmly established that "[a] comparison between a stricken black juror and a sitting white juror is relevant to determining whether the prosecution's asserted justification for striking the black juror is pretextual." Riley v. Taylor, 277 F.3d 261, 282 (3d Cir. 2001) (en banc). Hackley was born in 1950 and thus was nine years younger than Holloway, who was born in 1941. Using this nine-year measure for age proximity, the record shows the prosecutor accepted three white jurors approximately the same age as Holloway, two of whom were males Joseph Zingone (born 1935), Patricia Connor (1948), and John Jackubiak (1943). In addition, he chose not to exercise a peremptory strike against four other white jurors (one male) of approximately the same age who ultimately did not serve on the jury Thomas St. Joseph (1941), Blanche Cohen (1933), Kathleen Fallon (1940), and Dolores Kovack (1937). The presence of white jurors who possessed the same characteristic indicates that this explanation was pretextual. [*44] " Jones, 987 F.2d at 973. We find nothing in the prosecutor s explanation of the Hackley strike, or in the record as a whole, to indicate that he harbored anything but a discriminatory intent to remove Hackley because of his race.

The Commonwealth defends the Hackley strike by looking to the voir dire transcript for information that might have motivated the prosecutor s decision beyond the reasons stated on the record. In particular, the Commonwealth notes that Hackley indicated that he lived [*45] in the neighborhood where the murder took place and knew some people around that neighborhood . . . but not by the names. App. Vol. VIII at 1485. The Commonwealth suggests that "the prosecutor could well have been concerned that Mr. Hackley's similarity in age and his connections to the neighborhood could translate into familiarity with 'some of the people' involved in the case." Appellee/Cross-Appellant's Br. at 73. This speculation, however, does not aid our inquiry into the reasons the prosecutor actually harbored for the Hackley strike. Batson is concerned with uncovering purposeful discrimination, and where a prosecutor makes his explanation for a strike a matter of record, our review is focused solely upon the reasons given. As we noted in Riley, "apparent or potential reasons do not shed any light on the prosecutor's intent or state of mind when making the peremptory challenge." 277 F.3d at 282. Thus, the Commonwealth s attempt to recast the prosecutor s stated reasons must be rejected.

In any event, Hackley's statements during voir dire give no indication of an independent basis for the prosecutor's action. Although Hackley lived in the neighborhood where [*46] the murder took place, the prosecutor explored that fact with a single question seeking an assurance that Hackley's residence would not influence his consideration of the case. App. Vol. VII at 1485. Hackley stated that he was "sure" it would have no influence. Id. Hackley was also unequivocal in stating that he could impose the death penalty if warranted. He noted that he was married with two teenage children and held steady employment, and he stated that he could be fair to both sides in hearing the case. The prosecutor, nevertheless, exercised the peremptory strike after defense counsel indicated that he had no questions for Hackley. On this record, we could not impute a proper motive to the prosecutor s action even if it were proper to hypothesize potential reasons for the strike beyond those given. Relief, therefore, must be granted.

We are not unmindful that the state trial court failed to acknowledge or expressly follow the three-step Batson analysis in this case. In particular, the court never formally asked the prosecutor to provide a full explanation for the strikes. Ordinarily, an evidentiary hearing at which the prosecutor might rely upon his recollection of the [*47] voir dire and make reference to his trial notes would seem warranted. Here, however, the parties agree that the prosecutor is psychiatrically disabled and has been for some time, and thus would be unable to testify meaningfully at a hearing. Holloway s trial counsel is deceased (as noted, he became unavailable shortly after the trial), as is the presiding trial judge. It seems unlikely at this stage some seventeen years after the trial that the prosecutor, even were he not disabled, could accurately recall his reasons for the strikes or provide meaningful elaboration upon the reasons that he placed on the voir dire record. Furthermore, given the unavailability of the relevant participants, there would be no benefit to a hearing at this point. See Riley, 277 F.3d at 293-94. The long delay in reaching this stage is certainly regrettable, both for the Commonwealth and for Holloway, but we cannot fault Holloway, who has pursued the Batson argument at every stage of this case since the time of trial in 1986.

Although it did not address the Batson claim on direct appeal, the Pennsylvania Supreme Court rejected the claim on PCRA appeal because it found that Holloway [*48] failed to make a record identifying (1) the race of venirepersons stricken by the Commonwealth, (2) the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and (3) the racial composition of the final jury selected. Holloway II, 739 A.2d at 1045 (citing Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907 (Pa. 1997)). The Court explained that, "where an appellant fails to make a record for review of a Batson challenge, this Court is unable to consider a claim that the trial court failed to find a prima facie case under Batson." Id. (citing Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (Pa. 1993)). We find this analysis inconsistent with the teachings of Batson.

The state court's rejection of Holloway's claim for want of evidentiary support was an application of what the parties here call the "Spence rule." In Commonwealth v. Spence, the Pennsylvania Supreme Court affirmed the denial of a capital defendant's Batson claim on the ground that he failed to make an adequate record to permit meaningful review of the trial court's failure to find a prima facie case. 627 A.2d at 1183. [*49] The Court observed that the defendant had not "specifically identified the race of all the veniremen who had been removed by the prosecution, the race of all the jurors who served, or the race of jurors acceptable to the Commonwealth who had been stricken by the defense." Id. at 1182-83. Applying this rule, the Court noted the defendant's claim that ten of twelve Commonwealth peremptory strikes were used against African-Americans, but it denied relief because the defendant had identified for the record only four, not ten, potential jurors as being black. Id.

The evidentiary requirements set forth in Spence- that the defendant identify the race of all veniremen removed by the prosecution, the race of all the jurors who served, and the race of jurors acceptable to the Commonwealth but struck by the defense- seem to have developed under Pennsylvania law into a standard for assessing whether a defendant can make a prima facie showing of purposeful discrimination so as to move beyond the first step in the Batson analysis. For example, in Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907 (Pa. 1997), which was cited to support the rejection of Holloway's [*50] Batson claim, the Pennsylvania Supreme Court explained the rule as follows: "In order to establish a prima facie case on a Batson claim, defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury selected." Id. at 915.

In Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (Pa. 1995), the Court fully explained the workings of the Spence rule and its role in the Batson analysis:To sustain a prima facie case of improper use of peremptory challenges, a defendant must establish the following: (1) the defendant is a member of a cognizable racial group and the prosecutor exercised peremptory challenges to remove members of the defendant's race from the venire; (2) the defendant can then rely on the fact that the use of peremptory challenges permits those to discriminate who are [of] a mind to discriminate; and, (3) the defendant, through facts and circumstances, must raise an inference that the prosecutor excluded members of the venire on account of their race. Commonwealth v. Dinwiddie, 529 Pa. 66, 601 A.2d 1216, 1218 (1992). [*51] This third prong requires defendant to make a record specifically identifying the race of all the venirepersons removed by the prosecution, the race of the jurors who served and the race of jurors acceptable to the Commonwealth who were stricken by the defense. After such a record is established, the trial court must consider the totality of the circumstances to determine whether challenges were used to exclude venirepersons on account of their race. If the trial court finds in the affirmative, it may then require the prosecutor to explain his or her reasons for the challenge.Id. at 631. Thus, as Simmons and subsequent cases make clear, to raise an inference of discrimination in support of a prima facie Batson showing, a Pennsylvania defendant must first make a record under the Spence rule. See Commonwealth v. Marshall, 570 Pa. 545, 810 A.2d 1211, 1216 (Pa. 2002); Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711, 736 (Pa. 1998); Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d 1152, 1159 (Pa. 1997); Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 518 (Pa. 1995); Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 102 (Pa. 1995); [*52] Commonwealth v. Hill, 1999 PA Super 48, 727 A.2d 578, 582 (Pa. Super. Ct. 1999). n13

In Batson, the Supreme Court discussed the requirements for a prima facie case in the following terms:To establish such a case, the defendant first [*53] must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." . . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute [*54] an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.Batson, 476 U.S. at 96-97.

The Batson standard for assessing a prima facie showing is fluid, mainly because it places great confidence in the ability of trial judges to assess whether discrimination is at work based on the evidence at hand. The judge's assessment "largely will turn on evaluation of credibility," id. at 98 n.21, and "the analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process." Hernandez v. New York, 500 U.S. 352, 358, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991). The defendant's burden at the initial stage is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive. The defendant generally meets this burden if there is a pattern of strikes or if the [*55] prosecutor's questions and statements during voir dire support an inference of discriminatory purpose. Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence rule- nor do we see how such an accounting fits within Batson's first step. A trial judge undoubtedly might find in a given case that a full accounting regarding the race of the venire and the jurors struck would be helpful at the third stage of the Batson analysis, after it has heard the prosecutor's explanation for the strikes and must "determine if the defendant has established purposeful discrimination." Id. at 98. But requiring the presentation of such a record simply to move past the first stage in the Batson analysis places an undue burden upon the defendant.

Under the Batson process, a defendant must identify the race of the venireperson struck if he wishes to raise a challenge to the strike based on race. If the defendant is claiming a pattern of strikes to support an inference of discrimination, then a record of the race-based strikes that preceded the objection is also required. But a defendant's [*56] Batson objection need not always be based on a "pattern" of strikes; it can be based, for example, on a single strike accompanied by a showing that the prosecutor's statements and questions to the juror (or to prior jurors) support an inference of discrimination. Requiring a defendant in that circumstance to identify "the race of all the venirepersons removed by the prosecution" is not necessary to support a prima facie case, and places an irrelevant hurdle in the way of reaching the second step in the Batson process.

Similarly, and perhaps more troubling, is the requirement that defendants support a prima facie case by identifying "the race of the jurors who served and the race of jurors acceptable to the Commonwealth who were stricken by the defense." Simmons, 662 A.2d at 631. As noted, Batson is premised on the fact that defendants "have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria," and the "Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race." Batson, 476 U.S. at 85-86. The final composition [*57] of the jury (or even the composition of the jury at the time the Batson objection is raised) offers no reliable indication of whether the prosecutor intentionally discriminated in excluding a member of the defendant's race. Indeed, the composition of a jury is decided by many factors, including the defendant's use of peremptory challenges, challenges for cause, and jurors' claims of hardship. Thus, "a Batson inquiry focuses on whether or not racial discrimination exists in the striking of a black person from the jury, not on the fact that other blacks may remain on the jury panel." United States v. Johnson, 873 F.2d 1137, 1139 n.1 (8th Cir. 1989). A defendant can make a prima facie case of discrimination without reference to the jury's racial makeup.

Likewise, evidence of "the race of jurors acceptable to the Commonwealth who were stricken by the defense," Simmons, 662 A.2d at 631, finds no place in the prima facie case, as defense strikes are irrelevant to the determination of whether the prosecutor has engaged in discrimination. Batson nowhere suggests that a defendant must support his challenge to the prosecutor's actions by showing [*58] that he has "clean hands," or by admitting that he too struck black jurors from the jury (which is what the trial court here seemed to ask of Holloway when it raised the fact that Holloway had also struck a black juror from the venire). While Batson permits a trial judge to focus at the prima facie stage upon "all relevant circumstances," the nature of a defendant's strikes fails the test for relevancy. Instead, the focus properly falls on the prosecutor's actions, looking primarily at whether there is a pattern of strikes and whether the prosecutor's questions and statements support or refute an inference of discrimination.

In the instant case, the Pennsylvania Supreme Court determined that Holloway's failure to comply with the Spence rule rendered the Court "unable to consider a claim that the trial court failed to find a prima facie case under Batson." Holloway II, 739 A.2d at 1045. As a result, the Court found it "impossible to determine if [Holloway]'s claim has arguable merit." Id. Given the record Holloway established on the Batson claim during voir dire, we conclude that he stated not only a prima facie case, but also an entitlement [*59] to relief under Batson's third step. The voir dire transcript reflects a sufficient "pattern" of strikes at the time of the motion for a mistrial (seven of eight), as well as the prosecutor's evasive statement in response. The record also reflects the prosecutor's inadequate explanations as to three of the four strikes, particularly the Hackley strike, to which Holloway subsequently objected. Thus, there was ample evidence under Batson's first step from which the Pennsylvania Supreme Court could have assessed whether the trial court erred in failing to find a prima facie case. The Court's finding of an insufficient record is not fairly supported and is inconsistent with Batson's mandate.

As a final matter, we note that relief would be warranted even if our analysis were confined by the requirements of AEDPA, as the Pennsylvania Supreme Court's PCRA decision was "contrary to" and an "unreasonable application of" the Batson standard. "A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). [*60] Application of the Spence rule is at odds with Batson's first step because it places a burden upon the defendant to make a record of largely irrelevant information in order to raise an inference that the prosecutor excluded members of the venire on account of race. The Spence rule runs contrary to federal law insofar as it prevents a court from shifting the burden to the prosecutor upon a defendant's showing, based on the factors required by Batson, that discrimination is at work. In that the Spence rule provided a justification for refusing to reach the merits of Holloway's prima facie case, the Pennsylvania Supreme Court engaged in an unreasonable application of the clearly established Batson standard. Accordingly, we must reject the Pennsylvania Supreme Court's PCRA disposition under AEDPA, as well.

CAPITAL CASES (Favorable Disposition)

Lee v. Norris, 2004 U.S. App. Lexis 439 (8th Cir 1/14/2004) District court correctly stayed the proceedings below so that the Petitioner could exhaust his state remedies.

Wilson v. Czerniak, 2004 U.S. App. LEXIS 745 (9th Cir 1/20/2004) Retrial on death eligible murder counts of indictment barred where the jury hung at the first trial on the death eligible murder counts but found the defendant not guilty on lesser included offenses.

McDougal v. Georgia, 2004 Ga. Lexis 19 (GA 1/12/2004) Motion to suppress statement granted as state reinitiated interrogation after McDougal had asserted his right to counsel under Miranda.

People ex. rel. Madigan v. Snyder, 2004 Ill. LEXIS 6 (Ill 1/23/2004) Gov. Ryan's commutations of Illinois's death row upheld as a lawful exercise of the clemency power.

CAPITAL CASES(Unfavorable Disposition)

Ex parte Maples, 2004 Ala. Crim. App. LEXIS 12 (Ala. Crim. App. 1/23/2004) Noting the potential dangers of out of state firms handling capital cases, mandamus denied in post-conviction action where out-of-state counsel didn't receive notice that the trial court had dismissed the case as the attorney handling the matter had left the firm.

Miller v. Mullin, 2004 U.S. App. LEXIS 873 (10th Cir 1/21/2004) Relief denied on claims that: "(1) the prosecution engaged in prosecutorial misconduct when it concealed until final closing its theory that Mr. Dodd identified his killer by writing the letters "JAy" in smeared blood; (2) his trial and appellate counsel were ineffective; (3) the Oklahoma Court of Criminal Appeals' application of the heinous, atrocious, or cruel aggravating factor was vague and overbroad; and (4) cumulative error entitles Mr. Miller to relief." IAC claims based on "trial counsel based on counsel's failure (1) to prepare for the testimony of the state's forensic scientist concerning the blood discovered on Mr. Miller's sandal; (2) to investigate the negotiation of the check written by Ms. Carriger; and (3) to object to the prosecutor's closing remarks concerning the alleged "JAy" and "J" identification in the blood smears."

Walker v. Lee, 2004 U.S. App. LEXIS 952 (4th Cir 1/22/2004) (unpublished) Relief denied on claims relating to: "(1) failing to instruct the jury on the lesser included offense of second-degree murder, in violation of Beck v. Alabama, and (2) declining to grant a new trial based on the prosecution's suppression of one version of a witness' two statements given to the police, in violation of Brady v. Maryland." Ineffective assistance of counsel claims denied relating to failure to locate and introduce witnesses and evidence, as well as failure to argue the presence of a non-statutory mitigator, that Walker was not the triggerman.

Kemp v. Dretke, 2004 U.S. App. Lexis 295 (5th Cir 1/12/2004) (unpublished) COA & relief denied on claims relating to: "Kemp claims that he was (1) denied due process during state habeas proceedings as a result of his incompetence and the operation of the Texas successive writ statute; (2) denied constitutionally effective counsel as a result of his incompetence; (3) denied due process and constitutionally effective counsel as the result of the denial of funds to obtain a mental health expert; (4) denied the right to an impartial jury when his challenge for cause against a racially prejudiced venire member was denied by the court; (5) denied the right to an impartial jury when his challenge for cause against a venire member biased in favor of the death penalty was denied by the trial court; and (6) denied due process as the result of forced medication without a showing of dangerousness."

Hitchcock v. Florida, 2004 Fla. Lexis 4 (FL 1/15/2004) Motion for leave to conduct DNA testing denied.

Carpenter v. Tennessee, 2004 Tenn. Lexis 24 (Tenn 1/13/2004) Carpenter held not to have been denied the effective assistance of counsel on direct appeal when appellate counsel failed to challenge the trial court's refusal to instruct the jury on second degree murder as a lesser-included offense.

Lewis v. Georgia, 2004 Ga. LEXIS 28 (GA 1/20/2004) Relief denied on claims relating to: (1) sufficiency; (2) comments invoking scripture in the state's close; and, (3) notes allegedly passed to the jurors during their deliberations.

Hudson v. Virginia, 2004 Va. Lexis 5 (VA 1/16/2004) Appellant waived all appeals. State mandated proportionality review, however, can not be waived. Death sentence upheld.

Ohio v. Hughbanks, 2004 Ohio 6;800 N.E.2d 1152 (Ohio 1/14/2004) Motion for leave to reopen appeal based on claims of ineffective assistance of counsel denied.

Ohio v. Scott, 2004 Ohio 10;800 N.E.2d 1133 (Ohio 1/14/2004) Motion for leave to reopen appeal based on claims of ineffective assistance of counsel denied.

Hindsv. Tennessee, 2004 Tenn. Crim. App. LEXIS 45 (Tenn. Crim. App. 1/23/2004) Relief denied on claims that that counsel were ineffective at his 1986 trial and 1989 resentencing hearing, that women were excluded from both juries, and that imposition of the death penalty violates his rights under the federal and state constitutions.

Garcia v. Texas, 2004 Tex. Crim. App. LEXIS 68 (Tex. Crim App. 1/21/2004) Relief denied on claims relating to: prosecution's comment on silence, comments on lack of remorse, ad hominem attacks by the state against defense counsel, admission of records from a battered woman's shelter to show that the decedent had been abused by the defendant, evidence about gang activity to which the defendant was claimed to have belonged and admission of guilt phase victim impact evidence.

Paredes v. Texas, 2004 Tex. Crim. App. Lexis 1 ( Tex. Crim. App. 1/14/2004) Conviction and sentenced affirmed over claims relating to: (1) admission of hearsay implicating the defendant under both state rules of evidence and the Confrontation Clause; (2) trial court's failure to give an accomplice charge as to numerous state's witnesses; (3) admission of allegedly inflammatory photographs of the three victims; (4) admission of unadjudicated bad acts at sentencing; and (5) failure to require the state to prove the absence of mitigation beyond a reasonable doubt.

Jackson v. Virginia, 2004 Va. Lexis 8 (VA 1/16/2004) Conviction and sentence affirmed most notably on: (1) constitutionality of Virginia's statute as it impermissibly lowers penalty phase evidentiary standards; (2) failure to suppress certain statements by the defendant; (3) failure to strike for cause certain jurors; (4) allowing jurors to use a transcript of a video statement by the defendant as the tape was being played; (5) use of the victim's photograph and autopsy pictures in the guilt phase; (6) evidentiary rulings relating to demonstrative evidence; (7) admission of an autopsy report; (8) sufficiency of the evidence; (9) violation of the rule of witness sequestration in the penalty phase as to members of the victim's family; and (10) statutory review of death sentence.

Ryder v. Oklahoma, 2004 Okla. Crim. App. Lexis 3 (Okla. Crim. App. 1/14/2004) Relief denied on claims that (1) trial court improperly participated in plea negotiation; (2) defendant was not allowed to be present at side bar conferences; (3) failure to grant a competency evaluation at the beginning of the second stage of trial; (4) the "continuing threat" aggravator was improper on double jeopardy and collateral estoppel grounds (and that counsel was ineffective for failing to argue same); (5) great risk of death" aggravator arguing it was not support by sufficient evidence; (6) prosecution's misstatement of law on aggravating circumstances; (7) IAC for failing to present mitigation (despite defendant's waiver of mitigation); and (8) IAC for failing to request a competency hearing pretrial. Relief also denied on return of prior remand relating to challenges to the sufficiency of the evidence finding him not incompetent and argues the trial court erred in failing to find him incompetent to stand trial.

Powell v. Virginia, 2004 Va. Lexis 6 (VA 1/16/2004) After the Court reversed the first conviction, Powell wrote a letter to the Commonwealth's Attorney providing full details of the crime, including evidence not previously available to the Commonwealth, that permitted the Commonwealth to charge Powell with capital murder under a theory not presented to or considered by the jury in his first trial. The Court held that neither the "mandate rule" nor principles of double jeopardy barred Powell's trial under a new indictment charging the previously untried theory of capital murder.

Johnson v. Virginia, 2004 Va. Lexis 7 (VA 1/16/2004) Relief denied on claims as to the constitutionality of Code § 19.2-264.3, which provides that a resentencing proceeding on remand be held before a different jury than the jury that originally tried the defendant. The Court concluded that the resentencing procedure set forth in Code § 19.2-264.3 did not violate the defendant's due process rights. The Court held that the defendant's claim of mental retardation was frivolous. The Court declined the defendant's request that a jury consider his allegation of mental retardation because the present record showed as a matter of law that the defendant was unable to meet the statutory definition of "mentally retarded." The Court concluded that the circuit court did not err in refusing to impose a life sentence based on the defendant's unsupported allegation.

Parker v. Florida, 2004 Fla. LEXIS 66 (FL 1/22/2004) Relief denied on Parker's claims that: (1) the trial court erred in denying Parker's motion to suppress; (2) the trial court erroneously excluded certain defense evidence; (3) the trial court erred in failing to grant a motion for mistrial based on the prosecutor's improper comment during closing argument; (4) the trial court's misstatement to the venire panel denied Parker the right to a fair trial; (5) the trial court erred in finding HAC; (6) the trial court erred in finding CCP; (7) the trial court erred in finding the avoid arrest aggravator; (8) the trial court erred in finding the pecuniary gain aggravator; (9) the trial court failed to assign the proper weight to the mitigating factors established and Parker's death sentence is disproportionate; (10) the felony murder aggravator is unconstitutional on its face and as applied; (11) the trial court erred in allowing the State to rehabilitate a witness with statements of an unidentified person; (12) the State's use of inconsistent "triggerman" theories is a violation of Parker's due process rights; (13) the trial judge lacked the authority to preside over the penalty-phase proceeding; (14) Florida's death penalty statute is unconstitutional under Apprendi v. New Jersey and Ring v. Arizona; (15) the delay between Parker's indictment and new penalty phase constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (16) the trial court erred in denying Parker's request for a special jury instruction on circumstantial evidence."

CAPITAL CASES(Other)

New Jersey v. Davis, 2004 N.J Super. Lexis 22 (NJ App Div 1/16/2004) "Pool attorney" for state public defender agency does not suffer from a conflict of interest where he has sued the agency while an assigned attorney to a capital case.

OTHER NOTABLE CASES

Henderson v. Briley, 2004 U.S. App. LEXIS 599 (7th Cir 1/16/2004) On remand from the Supreme Court. Previous vacateur of conviction reversed as the state Supreme Court's application of Batson held not to be "unreasonable" in light of the Supreme Court's interpretation § 2254 in Visciotti and Yarborough v. Gentry. Former capital case commuted by Gov. Ryan.

Manning v. Miller, 2004 U.S. App. LEXIS 845 (7th Cir 1/21/2004) Qualified immunity may not be had where the FBI aids in framing the innocent.

FOCUS

Focus this edition covers training events available in California. Note that the CACJ event is scheduled for just two weeks away, my apologies for any delay in getting the information to the list.

The Capital Case Defense Seminar

http://cacj.org/PDF/CCDSbrochure.pdf

California Attorneys for Criminal Justice (CACJ) and the California Public Defenders’ Association (CPDA) are pleased to invite you to participate in the 2004 Capital Case Defense Seminar (CCDS). The CCDS is an intensive education opportunity for anyone involved in, or considering taking on, the defense of a capital case. It is designed not only for lawyers, but also for sentencing consultants, paralegals, investigators, and experts working in capital defense.

The CACJ/CPDA Capital Case Defense Seminar is the largest of its kind in the nation. CCDS is unique in that it offers lectures as well as specialized workshops that give participants the chance to brainstorm and exchange information with other participants. Experienced practitioners in any jurisdiction and those just entering the field can benefit from the lectures and workshops featuring experienced lawyers and experts, from both California and across the nation.

Classes include:

FRIDAY, FEBRUARY 13, 2004

3:00–5:00 Investigators & Attorneys: First Trial Case

Bring Your Case–Brainstorming in Small Groups

Parents Who Kill Their Children

Working With Documentary Evidence to Develop Mitigation and Presenting it Without Experts

Asian Street Gangs

State Post-Conviction: Using Institutional Resources Effectively

Generic Crime Scene Reconstruction, Including Blood Stains

Presentations Using Graphics

Brainstorming Cases with Mexican National Clients

7:30–8:30 pm

Keynote Speaker

8:30–11:30 pm

Reception

SATURDAY, FEBRUARY 14, 2004

8:30–10:30 am

Plenary: Winning Issues From Recent Developments

Plenary For Non-Lawyers: Investigating Winning Issues From Recent Developments

10:45–12:15 pm

Post Conviction Perspective on Recent Legal Developments

Forensics—Fiber, Hair & Handwriting Analysis

How to Review & Understand a Mental Health Evaluation Including the ABC’s of the DSM IV

Surviving the Case—Spouses, Significant Others and Children

Effective Communications Between Lawyers & Investigators in Light of Disclosure Obligations

of Defense Discovery

Prison Gangs

When the Defendant Speaks Another Language: Assessing the Impact of Language and Culture on

Cross-Cultural Investigations, Statements, and Mental Health Testing

Forensic Scientific Evidence in Sexual Crimes – Role of the Coroner and Medical Examiner

Storytelling

Procedural Issues & Factors in Litigating MR Issues

Trying the Case When a Police Officer is the Victim Neuropsychological Testing & Brain Development

Paralegals Being Effective

1:15–2:45 pm

Jury Selection (Including Life/Death Attitudes, Race Issues, & Credibility of Defense Counsel)

Extending Atkins–Taking Litigation Beyond MR to Related Issues

Moratorium, Political Action Issues & Community Involvement

Reaching Out to Victim’s Families

Coerced Statements

State Post Conviction: Motion Practice– Developing a Record While Making a Record Post Conviction–District Court I (Pre-Petition)

3:00 –4:30 pm

Polling for the Perfect Jury

Severe Mental Illness: Schizophrenia, Bipolar Disorders & PTSD

Addiction

African American Street Gangs

Juvenile Institutionalization as Mitigation Exonerating the Wrongfully Convicted, Including Through the Use of DNA

Writing Declarations

Funding–State & Federal

Interviewing Inmates

Conceptually Organizing the Huge Case & Use of Databases to Organize Your Case

How to Investigate Mitigation in Mexico (For Lawyers & Investigators)

Uncovering & Presenting Evidence of MR

Post Conviction: The Impact of Recent U.S.

Supreme Court Cases on Litigating IAC Claims

4:45–6:15 pm

Plenary: Trauma

SUNDAY, FEBRUARY 15, 2003

8:45–10:15 am

Plenary: Appellate & Trial Lawyer Relations

10:30–Noon

Advanced: Determination of Competency–A Case Study

Basic Child Development Including Impact of Trauma

Surviving Your Case–Lawyers

Hispanic Street Gangs

Epidemiology of Poverty

Attacking Behavior Analysis

DNA–Cold Hits, Attacking STR & Mixed Samples

Understanding the California Dept of Corrections: How to Obtain and Understand Clients’s and Snitches’s Institutional Histories in CDC and Other Prison Systems

Protecting & Preserving the Trial Record

Jury Debriefing, Including Drafting Juror Declarations

Creating Opening Penalty Statement & Closing Penalty Argument–The United Theme

Post Conviction–Ninth Circuit Practice: Nuts and Bolts

1:00–2:30 pm

Prosecution Presentations–What is the Enemy Doing? Including Prosecution Final Arguments

Culture, Ethnicity and Trauma

Juror Interviews (Videotape with commentary)

Mitigation

Federal Death Penalty Including Funding

State Post Conviction: Coordinating the Appeal with the Habeas and Vice Versa

District Court II (Post-Petition)

2:45–4:15 pm

The Impact of Community Violence on the Client

The Many Ways to Use Mental Health Experts

The Themeless Case–What do I do Now?

Strategies When There is no Direct Link Between Mitigation & the Crime

Trying the Institutional Violence Case

Decomposition–Entomology & Forensic Anthropology

Developing Relationships & Obtaining Information from the Client

Dealing With the Press & Commentators

Sexual Murders Including Child Victims

Ethics for Paralegals & Investigators

Frontloading Mitigation Evidence & Mitigating Aggravating Evidence

Handling Multiple Defendant Cases

Negotiation Strategies

Post Conviction–Latest Developments in Mental Health

4:30–6:00 pm

Plenary: Uncovering Fraud In Crime Labs, Prosecution Agencies, And Law Enforcement

MONDAY, FEBRUARY 16, 2004

8:30–9:00 am

Plenary: Opening Statement Demonstration

9:15–10:45 am

Bring Your DNA Case–Brainstorming with the Experts

Psychopathy & ASP–What Do You Do if They Are Really There?

Old Cases Newly Filed

Power of the Internet to Investigate

Documenting & Understanding Our Client’s Life History in Context

Working With the Client Who Wants the Death Penalty, Including the Suicidal Client

Motions & Writs for the Trial Lawyer

Post Conviction: Hands-On Claim Drafting Workshop

11:00–Noon

Plenary: Closing Argument Demonstration

From Around the Web

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

Court Finds Racial Bias in Pennsylvania Jury Selection

Arnold Holloway, a Pennsylvania death row inmate who was convicted 18 years ago, was granted a new trial after a federal appeals court found that prosecutors improperly excluded blacks from the jury. The U.S. Court of Appeals for the Third Circuit said that an assistant district attorney in Holloway's case used 11 of his 12 peremptory strikes during jury selection to eliminate blacks. "The pattern here was certainly strong enough to suggest an intention of keeping blacks off the jury," said Circuit Judge Robert Cowen. Philadelphia prosecutors' jury-selection practices came under closer scrutiny in 1997 when a heated campaign for the city's district attorney's office resulted in the public release of a secret training video instructing rookie prosecutors to keep poor blacks off juries because they were less likely to convict. Since that time, there has been a string of at least five death row inmates granted new trials because of evidence that Philadelphia prosecutors used race bias in selecting jurors. (Associated Press, January 23, 2004) See Race; and DPIC's Report: The Death Penalty in Black and White.

Georgia Parole Board Grants 2004's First Clemency

Just one day before Georgia was scheduled to execute Willie James Hall, the state's parole board commuted his sentence to life in prison without parole. During the hearing on Hall's request for clemency, 6 of the jurors from his original trial testified that they would have given Hall life without parole if that sentence had been an option at his trial. In addition, the parole board noted that Hall had excellent behavior in prison and no criminal record before the murder. In 2001, a federal judge in Atlanta threw out Hall's death sentence after finding that his lawyers did not prepare for the sentencing phase of the case, but the sentence was reinstated by a federal appeals court in Atlanta. (Atlanta Journal Constitution, January 26, 2004) See Clemency; Life Without Parole.

U.S. Supreme Court to Review Constitutionality of Juvenile Death Penalty

The U.S. Supreme Court has agreed to consider whether the execution of those who were under the age of 18 at the time of their crime violates the Constitution's ban on "cruel and unusual punishment." The Court will likely hear arguments in the case of Roper v. Simmons , No. 03-633, this coming fall. The Justices have not visited this issue since 1989 and will likely decide whether there is now a national consensus against the practice of executing juvenile offenders. The Justices used a similar "evolving standards of decency" test when they ruled to forbid the execution of offenders with mental retardation in 2002. The United States is the only country in the world in which the execution of juvenile offenders is officially sanctioned and one of the very few nations that has not ratified the United Nations Convention on the Rights of the Child that forbids the practice. Within the U.S., only three states (Texas, Virginia, and Oklahoma) have executed a juvenile offender during the past ten years, with Texas carrying out 13 of the 22 such executions in the U.S. since the death penalty was reinstated in 1976. There are 73 juvenile offenders on death row in America. Only two juvenile offenders received death sentences in 2003, the fewest in 15 years. (New York Times, January 27, 2004) See Juvenile Death Penalty. Note: There are two excellent sources for the number of juveniles on death row: the periodic reports of Prof. Victor Streib, and the NAACP Legal Defense Fund's "Death Row, USA." Statistics from both sources are available on DPIC's Web site. The sources differ slightly in their totals because Death Row USA continues to count defendants whose death sentences have been overturned but where the resolution of the case may not be final.

NEW VOICES: Former Kansas State Senator Urges Legislators to Enact Moratorium

Former Kansas Republican state senator Tim Ebert recently urged members of the Kansas Senate Judiciary Committee to enact a moratorium on imposing the death sentence and executing those who have already been sentenced to die. Noting that capital punishment was his most troubling issue when he was a member of the Kansas legislature, Ebert stated, "I came to the conclusion the only vote I could live with was a 'no' vote on the death penalty in Kansas. I could not, in my mind, be pro-life and pro death penalty." Ebert's testimony before members of the Judiciary Committee took place during a hearing on proposed legislation that would halt executions in the state for two years so that the death penalty could be reviewed. The review would be conducted by a seven-member commission, and would focus on, among other concerns, the cost of capital punishment in Kansas and how death penalty cases are handled in different parts of the state. (Associated Press, January 22, 2004) See New Voices.

Texas to Execute Mentally-Ill Man Who Represented Himself at Trial

On February 5th, Texas is scheduled to execute Scott Panetti, a mentally-ill man who defended himself at his trial despite the fact that he suffers from schizophrenia and bipolar disorder. Panetti was convicted of killing his parents-in-law in 1992, several years after he was first diagnosed with schizophrenia. He was hospitalized for mental illness in numerous facilities before the crime. Evidence suggests that Panetti was psychotic at the time of the shootings, and that he may not have been competent to stand trial when he did. When he served as his own attorney at trial, Panetti dressed as a cowboy and presented an often rambling narrative in his defense. His trial has been described by various lawyers, doctors and family members who attended as a "circus," a "joke," a "farce," "not moral," and a "mockery." (Amnesty International Report, January 16, 2004) Read Amnesty International's Report on Scott Panetti and mental illness. See Mental Illness.

NEW RESOURCE: Amnesty International Launches Campaign to End Execution of Juvenile Offenders

As it launched a global campaign to end the execution of juvenile offenders, Amnesty International released a new report entitled "Stop Child Executions! Ending the death penalty for child offenders." The report condemns the execution of those who commit crimes before reaching the age of 18, a punishment the organization calls a "heinous practice due to a greater awareness that children constitute a 'protected' class." In the report, Amnesty notes that only eight countries (the United States, China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen) have executed juvenile offenders since 1990. The U.S.'s 19 executions of juvenile offenders since 1990 account for more than half of the 34 juvenile offender executions that have occurred throughout the world during that same time.

In a related report, "Dead Wrong: The Case of Nanon Williams, Child Offender Facing Execution on Flawed Evidence," Amnesty focuses on the case of Nanon Williams, a juvenile offender on death row in Texas. The report highlights doubts about Williams's guilt, noting that his case illustrates many of the systemic problems of capital cases, such as inadequate counsel and the state's use of unreliable evidence. (Amnesty International, January 21, 2004) Read Amnesty International's Press Release. Read Stop Child Executions! Ending the death penalty for child offenders. Read Dead Wrong: The Case of Nanon Williams, Child Offender Facing Execution on Flawed Evidence. See Juvenile Death Penalty.

Georgia to Establish State Capital Defender Office

Georgia has enacted legislation to undertake the defense of indigent persons charged with capital felonies for which the death penalty is being sought in any court in the state. The Office of the Multi-County Public Defender will become the Georgia Capital Defender Office in January 2005. The office is now seeking to fill key staff positions. "See Job Description" (Jan. 15, 2004); see also DPIC's report "With Justice for Few: The Growing Crisis in Death Penalty Representation."

China Reconsiders Broad Use of Death Penalty

The Chinese government is planning to implement judicial reforms that could sharply reduce its use of the death penalty. China will restrict the use of capital punishment by requiring its highest court, the Supreme People's Court, to review all death penalty cases before executions are carried out. Currently, the high court reviews only a minority of such cases, allowing the provincial courts that hand down death sentences to review their own judgments. "Criticism of the legal system in society is rising. The Chinese Communist Party, as a ruling party that attaches importance to stability, knows that if it doesn't reform the judicial system, it would be bad for stability," said Liu Renwen, a scholar of law at the Chinese Academy of Social Sciences. China, which does not release statistics on death sentences or executions, has long been criticized for its high number of executions. Based on state-run media reports, Amnesty International estimated that China conducted 1,060 executions in 2002 and 2,468 executions in 2001. A recent book about the Chinese leadership cited internal party documents when it reported that about 15,000 executions took place every year between 1998 and 2001. Occasional cases of innocent people who have been exonerated from China's death row have shaken the general public's confidence in China's death penalty system. (Washington Post, January 18, 2004) See International Death Penalty.

FORMER PENNSYLVANIA DEATH ROW INMATE EXONERATED AND FREED

After spending more than half of his life on Pennsylvania's death row for a crime he did not commit, Nicholas Yarris was released from prison on Friday, January 16. Yarris had been sentenced to death row in 1983 for the murder of Linda Craig and was cleared of all charges in December 2003 (see DPIC's press release) after DNA evidence excluded him from the crime. He remained jailed for weeks after he was exonerated while authorities recalculated sentences he received in Florida for crimes he committed after escaping from sheriff's deputies in 1985. His case was on appeal at that time. Prosecutors now say they do not know who murdered Craig. (Associated Press, January 17, 2004) See Innocence.

Samoa to Abandon Death Penalty

The Pacific island of Samoa has begun formal measures to abolish the death penalty. Samoa has not conducted an execution in more than 50 years, and death sentences that are still delivered by judges are always commuted to life imprisonment. As he introduced the statute to abolish the death penalty, Prime Minister Sailele Malielegaoi told parliament that the death penalty should not be on the law books if it is not going to be carried out. (ONE News and AAP, January 16, 2004) See International Death Penalty.

State-By-State Death Sentencing

DPIC has prepared a new chart showing the number of death sentences in each state by year since 1977. As we have indicated elsewhere, the overall number of death sentences in the U.S. has declined markedly in recent years. For example, the 159 death sentences in 2002 were only HALF of the 320 sentences in 1996. Regionally, sentences in the West have dropped the most, from 66 in 1996 to 21 in 2002. DPIC's chart is based on Bureau of Justice Statistics' reports. For more information on the decline in death sentencing, read DPIC's 2003 Year End Report. For information on the rate of death sentencing.

New Jersey Governor Vetoes Death Penalty Study Bill

A month after New Jersey's legislature passed by a wide margin a bipartisan bill calling for the creation of a study commission to examine the cost, fairness and effects of capital prosecutions in the state, Governor James McGreevey has vetoed the measure. The bill passed the legislature in December 2003 with the support of key state lawmakers, including death penalty proponents. In recent years, public support for capital punishment in general has sharply declined in New Jersey, and the majority of those polled have favored a study. (See N.Y. Times, Dec. 14, 2003; New Jerseyans for a Death Penalty Moratorium, Press Release, Jan. 12, 2004).

Innocence Concerns Spur Calls for Higher Standard in Death Penalty Cases

Attorneys from the New York Capital Defender Office have followed the lead of various death penalty experts and petitioned the New York Court of Appeals to require a higher standard of proof of guilt before a death sentence may be sought. The current standard of "beyond a reasonable doubt" of guilt applies in both capital and non-capital cases. Because of the evidence of mistakes in death penalty cases, the attorneys called for proof "beyond any doubt" in such cases. Frank Keating, a senior Justice Department official in the Reagan administration who tried to raise the level of certainty to secure a capital conviction during his recent tenure as Governor of Oklahoma, noted, "I am certainly no shrinking civil libertarian, but I think if you're going to take somebody else's life, you need to be convinced to a moral certainty." Professor James Liebman of Columbia Law School, who has extensively studied the error rate in capital cases, stated that the movement toward a higher standard of proof is a logical outgrowth of the effort to make the death penalty more reliable. (New York Times, January 11, 2004).

NEW VOICES: District Attorney Talks About Being "Smart on Crime"

Kamala Harris, the newly-elected San Francisco District Attorney, recently spoke about her approach to keeping the community safe:

The dialogue about public safety in San Francisco and across the country is usually dominated by one simplistic question -- are you "tough" on crime, or are you "soft" on crime? As we start a new era in the district attorney's office today, it's time to put an end to that false choice. Let's start today by being smart on crime.

We also need to reject simplistic, reactive public policies. It takes more than building prisons and locking away prisoners to keep our city safe. As district attorney, I will not use 3-strikes enhancements unless the 3rd strike is a violent or serious felony; nor will I ever ask for the death penalty.

At the same time, let me be unmistakably clear that anyone who commits a rape, molests a child, commits murder or any other violent act will be met with the most severe consequences and be removed from this community so that they can do no more harm.

(San Francisco Chronicle, January 8, 2004) See New Voices.

PUBLIC OPINION: Americans More Skeptical of Any Deterrent Effect of Death Penalty

A recent Harris Poll found that only 41% of Americans believe that the death penalty deters crime, marking the smallest number of such respondents in 27 years of this poll. Only 37% of those polled would continue to support capital punishment if they believed "that quite a substantial number of innocent people are convicted of murder." Overall, 69% percent of those polled said that they support capital punishment. The poll was conducted in December 2003. (PR Newswire, January 7, 2004).

Rate of Death Sentencing at Its Lowest Point Since Reinstatement

While the number of death sentences in the United States has fallen in recent years, the drop in the rate of death sentencing has been even more dramatic. The death sentencing rate is the number of death sentences divided by the population, and is one measure of a country's support for the death penalty. The projected rate of sentencing for 2003, 0.048 per 100,000 people, is the lowest rate since the reinstatement of the death penalty in 1976. For more information, read the 2003 DPIC Year End Report (PDF).

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