Capital Defense Weekly, January 27, 2003

Louisiana v. Wattsleads this edition with a grant of relief based on newly discovered evidence. The relief grant lies, in this factually complex case, not on actual innocence but on the degree of moral culpability. Since theWattsCourt carefully examines how one piece of evidence can be stacked on another to achieve reversal on the issue of lesser included offense, the holding is repeated at some length below.

Two Georgia cases are also noted this week. InRogers v. Georgia, the Georgia Supreme Court has granted a hearing on wither Rogers is actually mental retardation as the court below was improperly held Rogers could waive his right to a mental retardation evaluation. InGeorgia v. Johnsonthe Georgia Supreme Court has ordered that, in at least some circumstances, the mental health evaluation of a defendant done by the state's expert can be sealed until after the jury returns a verdict in the guilt/innocence phase of the proceedings to protect the right against self-incrimination.

Florida death row inmate Rudolph Holton was released on January 24, 2003, making him, according to theDeath Penalty Information Center, the 103rd person exonerated and freed from death row nationwide since 1973. Holton's conviction for murder was overturned in 2001 and prosecutors announced today that the state was dropping all charges against Holton, who had spent 16 years on death row. Crucial evidence had been withheld from the defense that pointed to another perpetrator.

In Focus this week is a small out take from Jennifer Van Bergen's "Brain Chemistry and Criminal Defenses, A Legal & Philosophical Inquiry" fromCriminal Defense Weekly.

Finally, the Weekly has moved to the beginning of the work week due to scheduling conflicts.

EXECUTION INFORMATION

Since the last edition the following people have been executed in the United States:

January

22 Robert Lookingbill Texas

The following stays have been granted:

January

23 Elkie Taylor Texas (mental retardation)

24 Henry Hunt North Carolina (Ring/indictment did not state the aggravators)

The following executions dates for the next few weeks that are considered serious:*

January

28 Alva Curry Texas

29 Richard Dinkins Texas

30 Granville Riddle Texas

February

4 John Elliott Texas (British National)

5 Kenneth Kenley Missouri

6 Henry Dunn Texas

12 Richard Fox Ohio

13 Bobby Joe Fields Oklahoma

18 Gregory Van Alstyne Texas

25 Richard Williams Texas

26 Michael Johnson Texas

HOT LIST

Louisiana v. Watts, 2003 La. LEXIS 15 (LA 1/14/2003) (*PCI) "[N]ewly discovered evidence puts at issue the degree of culpability and whether the death penalty is the appropriate sentence based on the newly discovered evidence. That determination must be made based on an evaluation of all of the evidence by a jury."

In his most recent motion for a new trial, defendant asserted that Anthony Spears's post-trial confession to Jackson that he, and not the defendant, killed the victim, entitles defendant to a new trial. We agree.

Grounds for seeking a new trial are set forth in LSA-C.Cr. P. art. 851. That article provides in pertinent part:

The court, on motion of the defendant, shall grant a new trial whenever:

. . . .

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

Thus, a new trial shall be granted based on Article 851(3) when: (1) new evidence was discovered after trial; (2) the new evidence is material; (3) the failure to discover the evidence was not due to a lack of diligence on the part of the defense; and, (4) had the evidence been introduced, the verdict or judgment of guilty probably would have been changed. See State v. Cavalier, 96-3052, 97-0103, p. 3 (La. 10/31/97), 701 So. 2d 949, 951; [*12] State v. Hammons, 597 So. 2d 990, 994 (La. 1992); State v. Knapper, 555 So. 2d 1335, 1339 (La. 1990).

In State v. Talbot, 408 So. 2d 861, 885 (La. 1981) (on rehearing), Justice Dennis explained:

The scope of the trial judge's duty toward the motion for a new trial based upon the new evidence must be kept in mind. It was not for him to determine the guilt of [another alleged suspect] or the innocence of [the defendant]; it was not for him to weight the new evidence as though he were a jury, determining what is true and what is false. The judge's duty was the very narrow one of ascertaining whether there was new material fit for a new jury's judgment. If so, will honest minds, capable of dealing with evidence, probably reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues?[ n5 ] Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adducible by the defense at the time of [*13] the original trial?

The test is objective in that the trial judge does not sit as the ultimate arbiter of the resolution of the case once the new evidence is considered, that is, the trial court does not weigh the evidence. The role of the trial court is to review the evidence constituting the State's case, not to determine [*14] the sufficiency of the evidence, but to evaluate the effect of the newly discovered evidence. n6 Hammons, 597 So. 2d at 998.

As an initial matter in the instant case, the State concedes defendant has met the first three requirements of LSA-C.Cr.P. art. 851(3). Spears confessed to Jackson in the late summer or early fall of 2000, almost a year after defendant's trial. Thus, the evidence was new and obviously defendant had no opportunity to discover the confession prior to trial, as the confession was made after the trial. Further, the confession is material to the case, as it involves the identity of the victim's killer. Thus, the State's sole contention is that the new evidence would [*15] not lead a new jury to reach a different conclusion.

At the hearing on defendant's motion for new trial, Jackson explained that his brother and Spears's mother had dated for several years, causing Jackson to consider himself "like an uncle" to Spears. Jackson, a former sheriff's deputy, testified that during the late summer or early fall of 2000, while working as a security guard at an apartment complex, he received word that Anthony Spears was involved in a heated argument with three other people. Jackson told those arguing to leave the premises, and all but Spears complied. When Spears attempted to enter one of the apartment buildings, Jackson stopped him, and he began to curse. Jackson warned Spears that he would call the police, and Spears threatened to beat Jackson. Jackson told Spears not to "go that route" with him, but Spears lunged at Jackson nevertheless. Jackson hit Spears as he lunged and knocked him down. Spears then got up and said that he was going to get his gun and that "when I come back I'm gonna kill you like I killed that old white lady." Jackson then called police, who were unable to apprehend Spears.

A few days later, Spears returned to the apartment complex [*16] and apologized to Jackson. Jackson brought up Spears's statement regarding the killing, warning him about admitting such a matter. Nevertheless, Spears told Jackson that he was not worried because he had already served time on charges related to the murder; thus, in his view, double jeopardy barred his prosecution. Jackson further testified that on the night of the confrontation, Spears was acting "way out there" and that he probably would have made good on his threat to return with his gun had police not arrived. [Id.] On cross examination, Jackson added that Spears had threatened to kill him the night before the confrontation described above, but admitted that Spears had not acted on his earlier threat.

The trial court found Jackson remarkably creditable, due in part, no doubt, to the fact that Jackson was a former deputy sheriff who considered himself "like an uncle" to Spears. The trial judge believed that Spears told Jackson he (Spears) would kill Jackson "like I killed that old white lady." Thus, although the trial judge believed Jackson, the trial judge did not believe that Jackson was told the truth by Spears. The trial judge found Spears, an initial suspect in [*17] the murder investigation, n7 to be untruthful.

When ruling on an Article 851(3) motion, a trial judge's duty is not to weigh the new evidence as though he were a jury deciding guilt or innocence or to determine what is true or false in light of the additional information. In other words, the trial judge is not to assess the newly discovered evidence as though he were a thirteenth juror. n8 Under Talbot, 408 So. 2d 861, the trial judge should not weigh the new evidence as if he or she were a jury deciding guilt or innocence (or in this case, whether or not to impose the [*18] death penalty) but should ascertain whether there is new material fit for a new jury's judgment. The only issue is whether the result will probably be different. n9

Contrary to these principles, the trial judge in the instant case stated specifically that he was evaluating the new evidence as a thirteenth juror. Thus, the trial judge fell into legal error. n10

Reviewing the new evidence by the proper standard, this court concludes the new evidence probably would have led a new jury to a different result, at least in the penalty phase of the proceedings.

In support of its position, the State argues that Spears made the admission in question during the course of a heated argument "to make himself seem even badder" and that the statement does not call into question defendant's guilt. The State further claims that "the statement made by Anthony Spears amounts to nothing more than bragging." Had Spears only made inculpatory remarks during the course of his heated encounter with Jackson, such argument might be persuasive. However, as mentioned above, Jackson testified that even once tempers had cooled, days after the heated confrontation, Spears did not deny killing the victim. Instead, Spears expressed his belief that he could not be prosecuted for his action. Accordingly, the circumstances do not support the State's contention or the trial court's factual finding that Spears's statement was mere braggadocio.

Further evidence supports the defendant's contention that Spears's confession would have influenced the verdict. At trial, the State [*21] based a significant portion of its case on Spears's testimony. Spears testified that on the night of the murder:

[Defendant] came to me. He told me that he needed to talk. I stepped outside. He told me that he shot a lady. An old lady. And he told me that he went to this house, demanded money. And lady say she didn't have no money. So he tried to take her to the bank. And she say she didn't know her bank number card. So took her in her room, put her on her knees and he shot her.

Spears also testified that initially defendant only admitted that he shot the victim because she had surprised him. He explained that defendant told him that he shot the victim because she had no money. Spears then testified that defendant gave him the murder weapon, which he sold to Chuckie Gibson. On cross examination, Spears claimed that before trial he and the District Attorney had talked "about just me coming and telling the truth. And he was telling me if I lie, that the deal is off." Spears then said that he had never been to the victim's house. Spears concluded his testimony by repeating that he was telling the truth, while reminding the jury that if he did not tell the truth, he would go to trial [*22] on the charges to which he had pled guilty.

During closing argument, the State placed great weight on Spears's testimony, stating:

You know what else my daddy told me? An honest man cannot tell a lie. Now a liar every now and then will tell the truth. I'm not asking you to believe him. I'm asking you to consider whether or not you believe him. That's your job. You listened to his testimony. And you decide if Anthony Spears is telling you the truth. I'll tell you this, I made a deal with him. Made him sign this form. I made him discuss it with his lawyer. And if he doesn't abide by this form, I can revoke his deal. And, you know, what's the first thing I told him he's got to do in his deal; answer any question put forth to you by any law enforcement officer. Not about this case. Not anything. Anything at all. He has to tell the truth. Period. If he doesn't tell the truth. No deal. That's all I told him. That's all I want.

The State also sought to discredit the testimony of Charles "Boo" Chaney. Chaney testified that on the night of the murder, he and Spears had attended a wedding reception. At the reception, Spears pulled his friend Chaney aside and admitted to him, through tears, [*23] that he had shot an old lady. Specifically, Spears stated that he "told her to get on her knees and look at him. And shot her in the face." The prosecutor attempted to discredit Chaney's claim during closing argument, stating:

Charles Chaney. Charles Boo Chaney, convicted murderer.[ n11 ] Murderer. I didn't call Charles Chaney. Wouldn't call him. He's trash. Don't trust him. Don't like him. Wouldn't believe a word he said. He's a convicted murderer. But you heard him, and you're going to have to make that decision.

Spears's confession to Jackson casts doubt on the above quoted testimony and argument submitted by the State. The person Spears confessed to after the trial, Jackson, had no particular interest in the case. Unlike Chaney, Jackson was neither a convicted felon nor someone who had a possible grudge against Spears. n12 Instead, he is a former police officer.

Likewise, Spears's admission is bolstered by the fact that it corroborates the defendant's first recorded statement to police. In that statement, the defendant told police that on the morning of the killing, he and Anthony Spears went to the Colona residence together; that as they entered the house, Spears pulled out a gun; that he went into the kitchen, while Spears went in the other direction, farther into the house; that when the victim surprised him, he wanted to leave, but Spears wanted to stay and force the woman to take them to a bank; and that while he waited at the back door, he heard a commotion in the bedroom, then a gunshot, and then he ran.

Spears's admission also casts doubt on defendant's second recorded statement to police, as well as Detective Hauck's testimony that defendant admitted to the shooting while he and Hauck were riding unaccompanied in a police car, searching for evidence. In defendant's second recorded statement, curiously, he did not know "how the victim got on her knees." Such a lack of knowledge is more consistent with the events admitted to by Spears n13 and with defendant's first recorded admission to police than with any admission that he shot [*25] the victim. As to the unrecorded statement, a defense witness testified that she was in the police car with the defendant, another officer, and Detective Hauck, and that defendant did not make the comments which Hauck testified he had made.

Likewise, the physical evidence supports an inference that Spears and not defendant actually killed the victim. The shoe print was found in the kitchen, not the bedroom. Thus, if one concludes the print was defendant's, n14 his original recorded statement to police that he stayed in the kitchen is corroborated. Further, although defendant admitted to taking the murder weapon days before the shooting, he testified that he sold it to Spears before the day of the murder. Police obtained the murder weapon from a third party who bought the gun from Spears after the shooting.

Because Spears's statement that he committed the murder is corroborated by the physical evidence related to the shoe print, by Chaney's testimony, and by defendant's first statement, it is also admissible evidence under LSA-C.E. art. 804(B)(3). n15 Under this article, a statement tending to expose the declarant to criminal liability and to exculpate the accused is admissible when corroborating circumstances clearly indicate the trustworthiness of the statement. Hammons, 597 So. 2d at 996.

Accordingly, Spears's admission to Jackson that he "killed that old white lady" and his failure to deviate from the admission when confronted indicate that another jury presented with all of the evidence would [*27] probably have reached a different result, especially in the penalty phase of the trial, a matter to which the trial court gave only cursory consideration. See, Hammons, 597 So. 2d at 998; Knapper, 555 So. 2d at 1339.

The new evidence will also interject the issue of whether defendant or Spears was the triggerman, which remains a pertinent inquiry despite the fact that this court recently rejected the argument that a defendant who did not "pull the trigger" cannot be sentenced to death. See State v. Anthony, 98-0406, pp. 13-14 (La. 4/11/00), 776 So. 2d 376, 386 (the State is not required to show that defendant actually pulled the trigger.) The State's burden is to prove that defendant acted in concert with his co-perpetrator, that defendant had the specific intent to kill, and that one of the aggravating elements enumerated in LSA-R.S. 14:30 was present. Id. n16

SUPREME COURT

No cases noted this week.

CAPITAL CASES(Favorable Disposition)

Rogers v. Georgia, 2003 Ga. LEXIS 10 (GA 1/13/2003) As a matter of state & federal law a defendant cannot waive a hearing to determine whether he is mentally retarded once a court finds sufficient credible evidence of mental retardation to create an issue for a jury.

Under both the Georgia and United States Constitutions, a criminal defendant may not be put to death if he is found to be mentally retarded. See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); Fleming, supra, 259 Ga. at 690. Accordingly, where a defendant's mental capacity is challenged or otherwise appears to be in question, the Georgia and United States Constitutions require adjudication of the defendant's mental capacity in order to determine his or her eligibility for a death sentence. In Georgia, the procedure to be followed in making such a determination depends upon the date of trial. For those defendants tried after July 1, 1988, O.C.G.A. § 17-7-131 permits [*5] them to contend that they were mentally retarded at the time of the crime and to present evidence of such mental retardation to the fact finder. In capital cases, the fact finder is then required to determine during the guilt- innocence phase of trial whether the defendant is guilty but mentally retarded. O.C.G.A. § 17-7-131 (j). Under this statutory scheme, where the trier of fact makes a specific finding that the defendant is mentally retarded, the defendant cannot be executed but must instead be sentenced to life imprisonment. n3 Id.

Georgia v. Johnson, 2003 Ga. LEXIS 12 (GA 1/13/2002) "The State argues that the trial court's sealing of the results of its mental health expert's examination until the conclusion of the guilt/innocence phase unfairly constrains the State in preparing for the sentencing phase. However, because there is nothing in the record before this Court to demonstrate the likelihood of unfair prejudice to the State stemming from the trial court's order sealing the results of the State's expert's examination, we find no error in this case."

CAPITAL CASES(Unfavorable Disposition)

Anderson v. Florida, 2003 Fla. LEXIS 37 (FL 1/16/2003) The trial court "erred in denying [appellant's] motion for judgment of acquittal as to felony murder premised on a kidnapping theory. Although the trial judge erred in this regard" the record supports a finding of premeditation.

Arizona v. Prince, 2003 Ariz. LEXIS 10 (Az 1/16/2003) Relief denied on severance of certain noncapital charges, motion for mistrial, and the prosecutions closing remarks. Claims relating to capital sentencing to be addressed in future opinion in light of Ring v. Arizona.

Georgia v. Ramirez, 2003 Ga. LEXIS 17 (GA 1/13/2003) Relief denied "where, as here, the grand and traverse jury source lists prepared by the jury commissioners do not include data sufficient to allow a direct comparison of percentages [of Latinos] by the trial court and the defendant has failed to provide such data himself or herself through admissible evidence."

Brice & Caulk v. Delaware, 2003 Del. LEXIS 44 (Del 1/16/2003) "[N]othing in Ring suggests that the trial judge may not retain the responsibility of making the ultimate sentencing decision, subject to affording the jury its acknowledged role in the sentencing process."

Lightbourne v. Florida, 2003 Fla. LEXIS 36 (FL 1/16/2003) (*PCI) Newly discovered information relating to jail house informants would not have resulted in a different outcome below had the jury heard the evidence. The concurrence notes "the recantations of the jailhouse informants have resulted in nearly twenty years of postconviction proceedings that have cast a cloud over Lightbourne's death sentence."

Utah v. Arguelles, 2003 Utah LEXIS 1; 2003 UT 1 (UT 1/14/2003) A death sentenced inmate may not waive his direct appeal as the state supreme court has an independent duty to examine the appropriateness of any sentence, however, no error in the proceedings below noted.

Missouri v. Williams, 2003 Mo. LEXIS 5 (MO 1/14/2003) (*RC) Williams alleges ten points of trial court error relating to Batson, evidentiary rulings, voir dire, instructional error, and closing argument.

Canales v. Texas, 2003 Tex. Crim. App. LEXIS 2 (Tex. Crim. App. 1/15/2003) Relief denied admission of evidence relating to: (A) gang affiliation, (B) improper comments during voir dire; (C) comments on appellant's failure to testify; (D) sufficiency; (E) evidentiary issues, as well as, (F) interference by prison authorities with the attorney-client privilege & denial of a related continuance

Conahan v. Florida, 2003 Fla. LEXIS 35 (FL 1/16/2003) Relief denied, amongst other claims, on claims that: (A) "State's circumstantial evidence was legally insufficient;" (B) that the jury instructions on "(1) the murder was cold, calculated, and premeditated (CCP) and (2) the murder was committed during the course of a kidnapping" were deficient; (C) "the prosecutor violated his right to a fair trial by making improper comments in both his opening and closing statements to the jury in the penalty phase of the trial" and (D) admissibility of autopsy photographs.

Lyons v. Lee, 2003 U.S. App. LEXIS 915 (4th Cir 1/21/2003) Relief denied on: "(1) whether he can challenge his common law robbery conviction in its own right; (2) whether he can challenge his enhanced sentence for first-degree murder on the ground that his prior common law robbery conviction was unconstitutionally obtained; (3) whether the jury instructions during the sentencing phase of his first-degree murder conviction violated his due process rights; and (4) whether North Carolina's short-form indictment renders the first-degree murder conviction and death sentence invalid pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)."

Louisiana v. Taylor, 2003 La. LEXIS 16 (LA 1/14/2003) Relief denied on claims relating to claims that : (A) the customs inspectors lacked probable cause to detain and search defendant at the border; (B) the state's introduction of inflammatory evidence concerning participation in other crimes; (C) the state violated his confrontation rights by eliciting testimony about his non-testifying co-defendant statement to police; (D) the trial court improperly curtailed defense counsel's cross-examination of customs agent concerning the circumstances of defendant's interrogation and confession; (E) defense counsel's denigration of the defense's mitigation evidence, emphasized the gravity of the instant offense, and pointed out defendant's father asked the jury to vote for the death penalty; and (F) defendant contends the state impermissibly commented on the victim's character during his opening statement at the guilt phase.

Cole v. Florida, 2003 Fla. LEXIS 34 (FL 1/16/2003) Relief denied on a grab bag of claims including: (A) failure to present codefendant's testimony; (B) failure to contemporaneously object to prosecutor's opening statement; (C) alleged Brady violations; (D) failure to request statutory mitigators; (E) mental health examination related claims; (F) failure to present evidence of drug and alcohol abuse; (G) failure to present evidence of childhood abuse; (H) failure to object during penalty phase closing; (I) failure to request a HAC limiting construction instruction; (J) failure to introduce codefendant's life sentence' and (k) failure to request co-counsel

NOTABLE NONCAPITAL CASES

Whitley v. Senkowski, 2003 U.S. App. LEXIS 660 (2nd Cir 1/17/2003) "[I]t was error for the district court, without further analysis, to dismiss, on statute of limitations grounds, Whitley's petition, which claimed actual innocence."

Colorado v. Sepulveda, 2003 Colo. LEXIS 10 (Colo 1/13/2003) The trial court's instruction that : "[y]ou may consider evidence of the defendant's self-induced intoxication when you consider whether the People have proved beyond a reasonable doubt that the defendant acted 'with intent'. . . . [But] the defendant's self-induced intoxication is not a defense to 'after deliberation'. . . ." had the improper effect of excluding consideration of intoxication as to the element of deliberation,

FOCUS

This Week's Focus is a "snippet" of Jennifer Van Bergen's "Brain Chemistry and Criminal Defenses, A Legal & Philosophical Inquiry" fromCriminal Defense Weekly, Nov. 15-30, 2002 Vol 1, Issue 24.

Dressler briefly discusses hypnotism and MPD in his section entitled "Voluntariness: At the Edges," but he does not treat automatism or unconsciousness defenses. LeFave relates the automatism defense to the insanity defense, noting that at trial the former is frequently supplanted by the latter. These distinctions and the different ways of handling them are significant. The common ingredient of impaired consciousness or automatism defenses is an altered state of consciousness during which the defendant has committed a crime. LeFave notes that the difference between the insanity and automatism defense is the difference between the "no-mental-state" and the "no-voluntary-act.

Multiple Personality Disorder

While Robinson's criteria for impaired consciousness clears up much confusion as to such a defense, and "[s]uch a label is useful ... in that it conjures up the kind of conditions that clearly merit excuse but which are not readily covered under another excuse such as insanity," among which could be found a defense based on abnormal brain chemistry, his list excludes at least one condition which it ought to include, namely MPD. While MPD is a medically recognized disorder, which could easily fall into the category of impaired consciousness, it may or may not be "a physiologically confirmable disease or defect."

Further, there may be some question whether a person suffering from MPD (a "multiple") fits into any of the excusing conditions on Robinson's list. Or, rather, the questions must be asked, "WHO does not perceive the physical nature or consequences of his conduct?" or "Who does not know his conduct is wrong or criminal?" or "Who is not sufficiently able to control his conduct so as to be held accountable for it?" If a crime is committed by one alter who does not remember or could not control the actions of the responsible alter, the court should inquire whether the responsible alter was able to control himself, knew his conduct was wrong, etc. Yet, even if he did know and/or was able to control himself, can the host alter personality be held liable for the responsible alter's actions?

MPD brings up a rather interesting and novel question: can a person act voluntarily when they have no recall of it? A person in an altered state of consciousness may act involuntarily with or without recall of his act. Can she also act voluntarily without recall? An involuntary act with recall would be simple involuntariness. An involuntary act without recall (unconsciousness) would be automatism, and could include grand mal or psychomotor (temporal lobe) epilepsy, concussional states, and perhaps some types of metabolic disorders. A voluntary act without recall (unconsciousness), or with only partial recall (impaired consciousness), might include petit mal or psychomotor epilepsy, sleepwalking (and hypnagogic states), PTSD and MPD, or other dissociative disorders.

For example, multiples may be said to act voluntarily even when there is no recall of the act. This occurs when one personality is in possession of the body while the other is not. Some multiples are unconscious when another personality, or "alter," takes over; some are "co-conscious" - that is, they are "watching" or half-conscious. This description resembles the dissociative states (flashbacks) experienced by some persons suffering from PTSD, and those asserting crimes of passion, such as voluntary manslaughter (as a defense to murder charges), where the defendant claims to have been watching while he acted involuntarily.

Such descriptions may have relevance to a defense utilizing evidence of abnormal brain chemistry, if it can be shown that different alters possess different brain chemical compositions - but this raises an entirely different question: if a multiple can change her own brain chemistry, albeit involuntarily, does this not disprove the absoluteness and involuntariness of brain chemical changes?

While PTSD as impaired consciousness, or other states which involve half-consciousness, may fall into other categories such as involuntariness or insanity, there may be good reason for dealing with them separately. They bring to the surface issues of the nature of consciousness and personhood that challenge our notions of free will.

Brain Chemistry and Involuntary Manslaughter

The proof for an involuntary manslaughter defense would be quite different from other involuntariness defenses. If a defendant wants to claim involuntary manslaughter as a defense to murder charges he needs to prove that the killing was not intentional. Different kinds of evidence can go to proving intent. They range from circumstantial evidence of acts leading up to the crime, to evidence concerning state-of-mind directly. The latter is the point where brain chemistry might be useful. Brain chemistry data could be used to prove that the offender was acting under the influence of an overdose of noradrenaline and/or insufficient serotonin, and therefore had no specific or general intent. It is doubtful, however, that either judges or juries would accept such an argument standing alone, although brain chemistry data may be allowable as supporting evidence. But, in any case, since scientific data on brain chemistry is still new, it would have to pass the Frye, or "general acceptance," test, or the Daubert, or "validity," test, depending on the jurisdiction, in order to be introduced as evidence by a qualified expert.

If it were not introduced by an expert, it would probably not be allowed, as it would be of little assistance to the trier of fact, or would have little or no probative value. Again, there would have to be proof not only of the altered brain chemistry, and expert testimony as to how to interpret it, but also a firm connection established between the defendant's brain chemistry and his inability to form the intent. The brain chemistry data is a double-edged sword in this case, because it can be used both to prove aggressive propensities and lack of impulse control. Thus, a defendant may claim that he simply struck in a rage which he could not control, but once the defendant has opened the door to using brain chemistry, a prosecutor may say that the evidence shows only that defendant could and did form a murderous intent which cannot be excused.

Syndrome Defenses

Syndrome defenses have been used in criminal law to excuse or justify behavior otherwise held criminal. These defenses are based on the notion that prior trauma, prolonged stress, or abuse has caused the person to react abnormally and prevented him from using normal control over his behavior. The most common category of syndrome defenses is PTSD, which includes Battered Women Syndrome, action-addict syndrome, rape trauma syndrome, and abused child syndrome. Syndrome defenses can be used in a variety of ways: to establish an insanity defense, diminished capacity, or to negate the intent element of a crime.

The question is whether the new scientific data on brain chemistry shifts the legal boundaries on these defenses. For example, if PTSD, as a recognized mental disorder, is insufficient as a complete defense in a particular case, could evidence of permanent brain chemistry alterations be sufficient, or would it merely lower the hurdle? Let us posit, for example, that a woman asserting Battered Women Syndrome killed her husband while he was asleep. Ordinarily, she may not even get an opportunity to assert Battered Women Syndrome as self-defense, because she does not meet the imminence requirement. Would brain chemistry allow a jury to hear her self defense argument?

While a court might allow a jury to determine whether the defendant with abnormal brain chemistry was in imminent danger of death or severe bodily injury sufficient to justify her using violent force to defend herself, brain chemistry data does not change the imminence requirement in self defense. Only if the jury was permitted to apply the standard used in Goetz, would brain chemistry be relevant.

Collision Course

"Science may be on a collision course with one of society's most cherished beliefs," as one writer put it. That belief is, of course, free will, which this writer says is "a cornerstone of law, religion, and most people's own understanding of themselves." Neuroscience has created a new form of determinism, "biological determinism, in which free will is merely a rationalization, artifact or epiphenomenon of biochemical and genetic predestination." One neuroscientist predicts that eventually "the best criminal evidence, the very principles of jurisprudence, will come from an understanding of the principles of brain operation." According to Philip E. Johnson, a law professor at Boalt Hall School of Law, the way this will happen will be to fit the "physical causes of impulsive violence" into "one of the exceptions in common law." One professor of philosophy states that "[i]f we are able to get explanations of capacities of conscious thought, deliberation, reasoned sensitivity, and guided action in neuroscientific terms, then this naturalistic conception of voluntariness will be refined, not diminished." Scientific findings that show that brain chemistry plays a role in aggression and violence can certainly help courts make more just decisions in cases where the defendant can show trauma and document brain chemical changes. But if we "reduce everything to material causes," if we try to explain all human behavior with neuroscience, "the whole approach collapses into nihilism."

OTHER RESOURCES

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

NEW VOICES: Illinois Senator Durbin Supports National Moratorium on Executions

A long-time supporter of capital punishment, U.S. Senator Richard Durbin of Illinois now backs a national moratorium on executions until questions of fairness are resolved. Durbin recently noted, "I think Governor Ryan has set the state for an honest debate about creating safeguards in the legal process. Because of inequity and injustices involved in the court system, we need to take a serious national look at death penalty reform, and until we can get that debate under way I support a moratorium." (New York Times, January 19, 2003) See New Voices.

Another Innocent Inmate Freed From Florida's Death Row

Florida death row inmate Rudolph Holton was released on January 24, 2003, making him the 103rd person exonerated and freed from death row nationwide since 1973. Holton's conviction for murder was overturned in 2001 and prosecutors announced today that the state was dropping all charges against Holton, who had spent 16 years on death row. Crucial evidence had been withheld from the defense that pointed to another perpetrator. For more information on Holton's release, see DPIC's Press Release. See also, Innocence.

Connecticut Commission Releases Results of State Death Penalty Study

The Connecticut Commission on the Death Penalty submitted its report, "Study of the Imposition of the Death Penalty in Connecticut," to the state General Assembly on January 8, 2003. The Commission was created in 2001 by the General Assembly to study the state's capital punishment system and report back with findings and recommendations. The report found racial and geographic disparities in the imposition of Connecticut's death penalty, and called for further study. Among the report's findings are:

86% of the crimes resulting in a death sentence involved a white victim

89% of the 166 capital prosecutions since the state reinstated the death penalty in 1973 came from just six judicial districts, and 40% came from Hartford alone.

The Commission's report provided legislative recommendations for improving the state's capital punishment system, including: an increase in hourly rates for public defenders in death penalty cases; reinstating proportionality review of each death sentence to ensure that it is not excessive or disproportionate to the sentence imposed in similar cases; video or audio taping of police interrogations and conducting "blind" lineups; mandating pre-trial determinations by capital trial judges to decide the reliability and admissibility of jailhouse informant testimony; preservation of biological evidence; and making DNA testing available to defendants. (State of Connecticut Commission on the Death Penalty, Study Pursuant to Public Act No. 01-151 of the Imposition of the Death Penalty in Connecticut, January 8, 2003) Read the report. See also, Legislative Changes and Studies on the Death Penalty.

NEW RESOURCE: Death Penalty Symposium Examines Religion and the Death Penalty

The New York Central Synagogue's day-long symposium, "The Death Penalty, Religion, and the Law: Is Our Legal System's Implementation of Capital Punishment Consistent with Judaism or Christianity?", is now available on the Web. The resource contains expert discussion about religious texts and the death penalty, and it highlights related topics such as innocence, executing those with mental retardation or mental illness, the juvenile death penalty, and death penalty moratoriums. Read the presentations. See also, Studies, Books and Law Reviews.

Georgians Oppose Juvenile Death Penalty

A recent University of Georgia poll found that 60% of Georgians favor trying to rehabilitate young criminals rather than executing them. Only 23% of respondents said courts should be allowed to give children the death penalty. In addition, 81% of those polled believe that judges should be granted greater flexibility when dealing with convicted children than the mandatory sentencing rules used for adults. Currently, Georgia law requires juveniles ages 13 to 18-years-old to be tried in adult court and face adult penalties when they are accused of seven violent crimes, such as murder and rape. (The Augusta Chronicle, January 17, 2003) See Public Opinion and Juvenile Death Penalty.

NEW VOICES: Scott Turow Questions Death Penalty in Government Hands

Scott Turow, former federal prosecutor and author who served on Illinois's blue-ribbon Commission on Capital Punishment, reflected on Governor George Ryan's decision to pardon four men and commute the remaining death sentences in the state (see below):

What happened in Illinois is a cautionary lesson. Inaction by legislatures forces more and more of the responsibility for creating remedies into the hands of government executives or the courts. The solutions they arrive at are often unpopular, and the principles that guide them prove subject to constant change because of the irreconcilable tension between individualized decision-making and the constitutional demand that we impose this ultimate sanction on a consistent and reasoned basis.

At the end of the day, perhaps the best argument against capital punishment may be that it is an issue beyond the limited capacity of government to get things right. (New York Times, January 17, 2003)

In the U.S. Supreme Court: Sattazahn v. Pennsylvania

On January 14, 2003, the U.S. Supreme Court ruled that the Constitution's bar against double jeopardy does not apply when a defendant is sentenced to death in a second trial after the first jury's deadlock resulted in the defendant receiving a life sentence. Earlier, the U.S. Supreme Court had ruled that after a jury determined that there was sufficient evidence to establish legal entitlement to a life sentence, and the defendant was then sentenced to life, it was unconstitutional to seek the death penalty on retrial. In upholding the Pennsylvania Supreme Court, the U.S. Supreme Court distinguished David A. Sattazahn's case from the earlier case by noting that the jury deadlocked in determining Sattazahn's sentence, and because of the deadlock, the trial judge was bound by Pennsylvania law to sentence him to life in prison. Because neither the jury's deadlock nor the judge's entry of a life sentence constituted an "acquittal" of the capital sentence, the U.S. Supreme Court held (5-4), that jeopardy did not attach and that it was constitutional for Sattazahn to be sentenced to death at his second trial.

The dissent stated that this ruling interfered with a defendant's right to appeal. Justice Ruth Bader Ginsburg wrote, "The court's holding confronts defendants with a perilous choice. A defendant in Sattazahn's position must relinquish either her right to file a potentially meritorious appeal, or her state-granted entitlement to avoid the death penalty." (New York Times, January 15, 2003 and Sattazahn v. Pennsylvania, No. 01-7574). Read the opinion. See also, U.S. Supreme Court.

International Community Praises Governor Ryan's Actions

Legal scholars and lawmakers from around the world have voiced their support for Illinois Governor George Ryan's recent decision to clear the state's death row. (See below) Walter Schwimmer, secretary general of the Council of Europe, said, "On making this decision, he proves a shared commitment and belief with the Council of Europe, that the death penalty has no place in a civilized society. I sincerely hope that this is a step forward in the abolition of the death penalty in the whole of the United States." Ryan also received high praise and congratulations from Mexican president Vincente Fox and Kenyan justice minister Kiraitu Murungi. Kenya, where more than 1,000 people have been sentenced to death even though there have been no executions since 1984, is now working to abolish the death penalty. "We think the fundamental human right to life should be respected, and no human being should have the authority to take the life of another. Capital punishment is a barbaric punishment," said Murungi. (New York Times, January 14, 2002) See International Death Penalty.

In the U.S. Supreme Court: Sattazahn v. Pennsylvania

On January 14, 2003, the U.S. Supreme Court ruled that the Constitution's bar against double jeopardy does not apply when a defendant is sentenced to death in a second trial after the first jury's deadlock resulted in the defendant receiving a life sentence. Earlier, the U.S. Supreme Court had ruled that after a jury determined that there was sufficient evidence to establish legal entitlement to a life sentence, and the defendant was then sentenced to life, it was unconstitutional to seek the death penalty on retrial. In upholding the Pennsylvania Supreme Court, the U.S. Supreme Court distinguished David A. Sattazahn's case from the earlier case by noting that the jury deadlocked in determining Sattazahn's sentence, and because of the deadlock, the trial judge was bound by Pennsylvania law to sentence him to life in prison. Because neither the jury's deadlock nor the judge's entry of a life sentence constituted an "acquittal" of the capital sentence, the U.S. Supreme Court held (5-4), that jeopardy did not attach and that it was constitutional for Sattazahn to be sentenced to death at his second trial.

The dissent stated that this ruling interfered with a defendant's right to appeal. Justice Ruth Bader Ginsburg wrote, "The court's holding confronts defendants with a perilous choice. A defendant in Sattazahn's position must relinquish either her right to file a potentially meritorious appeal, or her state-granted entitlement to avoid the death penalty." (New York Times, January 15, 2003 and Sattazahn v. Pennsylvania, No. 01-7574). Read the opinion. See also, U.S. Supreme Court.

International Community Praises Governor Ryan's Actions

Legal scholars and lawmakers from around the world have voiced their support for Illinois Governor George Ryan's recent decision to clear the state's death row. (See below) Walter Schwimmer, secretary general of the Council of Europe, said, "On making this decision, he proves a shared commitment and belief with the Council of Europe, that the death penalty has no place in a civilized society. I sincerely hope that this is a step forward in the abolition of the death penalty in the whole of the United States." Ryan also received high praise and congratulations from Mexican president Vincente Fox and Kenyan justice minister Kiraitu Murungi. Kenya, where more than 1,000 people have been sentenced to death even though there have been no executions since 1984, is now working to abolish the death penalty. "We think the fundamental human right to life should be respected, and no human being should have the authority to take the life of another. Capital punishment is a barbaric punishment," said Murungi. (New York Times, January 14, 2002) See International Death Penalty.

TRACKING PROGRAM INFORMATION

Tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:

*PCI from the face of the decision a possible claim of actual innocence appears possible.

*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.

*RC from the face of the decision questions about the interplay of race is made.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/(Louisiana's public defender), probono.net(ABA/ABCNY) & http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised). For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).