In an edition crammed with cases, two cases are especially notably & hot listed, one capital & the other noncapital. The Tenth Circuit in Moore v. Kinney has held that Nebraska's "exceptional depravity" statute remains unconstitutionally vague, even after amendment. In Harvey v. Horan the Fourth Circuit has limited the ability of inmates to request DNA testing holding that requests for DNA either must be presented in a habeas petition or not at all.

Ring v. Arizona, discussed in passing in the last edition, appears to be blooming into a potential landmark decision by the Supreme Court. The Question in Ring is:

Walton v. Arizona, 497 U.S. 639 (1990), held that Arizona’s capital sentencing statute, which assigns solely to the trial judge the responsibility for making the findings of fact which are necessary to subject a defendant to a death sentence, does not contravene the Sixth Amendment’s jury-trial right as made applicable to the States through the Fourteenth Amendment’s Due Process Clause.

Ring Cert Petition (word document) (pdf file) // Ring Opposition brief (word document) // Ring Cert Reply (word document) (pdf file). (For a more complete discussion see, http://capdefnet.org/hat/contents/recent_filing/cert_pet_granted/recent_cert_grants.htm, which discusses the cases impacting on capital litigation this term, including Ring). Following Ring the Supreme Court halted the Florida execution of Amos King pending disposition of a certiorari petition raising an Apprendi/Ring issue. The potential breadth of Ring will be known in the next few weeks as several petitions in which the issue has been raised, such as Linroy Bottoson (Florida - same issues as King), or possibly raised, such as John Byrd Jr. (Ohio - potential issue if Ring is broadly interpreted as the trial court, in accepting the jury's recommendation, may have relied on nonstatutory aggravating circumstance), reach the Court.

Three Supreme Court cases also need brief mention. In United States v. Arvizu the Court again watered down Fourth Amendment protection holding that an officer may rely on combination of otherwise innocent observations to briefly pull over a suspect vehicle. In Kansas v. Crane the court placed limits on its earlier decision that permitted "detention" for those convicted of sex crimes even after their sentences have run. Finally, in Lee v. Kemna the Court revisited what constitutes adequate state grounds to bar federal habeas review.

In the Focus section this week the theme of mitigation and mental health is examined in "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes. The Tomes' "snippet" provides a solid introduction as to why mitigation matters & how to make it more impactful.

Several requests have come in for the United States v. Plaza briefs (admissibility of fingerprints) and the Harvey v. Horan briefs (DNA), should any one be able to forward them they will get out to the respectively parties.

A special thank you for helping to pull together the information on Ring & other materials this week to Julian Killingley (Ring Briefs & the work of Amicus), Thomas Saunders (Ring Briefs), Carol-Ann Roberts (if I started listing all she does I would be here for a week), Julia Pearson (Ring), Rick Halperin (Ring, Amos, Bottoson, & all the rest) & Michelle Brace (Harvey v. Horan).

Finally, a few house keeping issues. The King & Bottoson state court materials will be uploaded this weekend. Last week's missed due to hardware failure. Please excuse the dust as the website is being "fine tuned" to provide a more usable layout & beef up a few sections (notably the briefs section). Lastly, some Findlaw "blurbs" have returned this week, most, but not all have been screened for accuracy, please use them with caution.

Since the last edition there have been the following domestic executions:

16 Jamarr Arnold Texas

29 Stephen Anderson California

29 John Romano Oklahoma

30 Windell Broussard Texas

31 Randall Hafdahl Texas

31 David Woodruff Oklahoma

Executions slated and considered serious for February 2002:

5 Linroy Bottoson Florida

6 Michael Owsley Missouri

7 Robert Trease Florida

8 Leslie Dale Martin Louisiana

19 John Byrd Jr. Ohio

21 Thomas Miller-El Texas (on the web at http://www.thomasmillerel.com)

28 Monty Delk Texas

This week's edition is at http://www.capitaldefenseweekly.com/archives/020128.htm

HOT LIST CASES

Moore v. Kinney, 2002 U.S. App. LEXIS 971 (10th Cir 01/25/02) (dissents) Nebraska's "exceptional depravity" statute, Nebraska Revised Statutes Sections 29-2523(1)(d), which allows enhanced sentencing in a murder case if the defendant purposefully selects a victim on the basis of age, remains unconstitutionally vague even after its amendment, and the statute may not be used as a basis for defendant's death sentence.

This court found the Nebraska courts' attempt at narrowing the definition of exceptional depravity, where age was a part of Nebraska Supreme Court case precedent, unconstitutionally vague in 1990. Moore v. Clarke , 904 F.2d 1226 (1990). The state's petition for rehearing was denied, Moore v. Clarke , 951 F.2d 895 (8th Cir. 1991), and the United States Supreme Court denied certiorari on that very issue. Clarke v. Moore, 504 U.S. 930, 118 L. Ed. 2d 591, 112 S. Ct. 1995 (1992). We remain bound by our 1990 opinion.

The state argues that Joubert v. Hopkins, 75 F.3d 1232, 1240-41 (8th Cir. 1996), authorized the Nebraska courts' definition of the exceptional depravity aggravator. Joubert killed two boys, ages 12 and 13, within a four-month period. He was sentenced [*20] to death in part because the sentencing panel determined that § 29-2523(1)(d) was applicable with respect to both clauses of the subsection. The Nebraska Supreme Court affirmed the sentencing panel's decision because the defendant "planned these abductions and murders far in advance . . . the murders were to be repetitive . . . and the victims selected by the defendant would, by his fantasized standards, be somewhat defenseless and consist of prepubescent boys or women fitting the pictorial description gleaned from detective magazine covers." State v. Joubert, 224 Neb. 411, 399 N.W.2d 237, 250 (Neb. 1986) (citation omitted in the original).

The state supreme court relied on the Palmer factors in finding that the defendant had exhibited exceptional depravity: "the murders were coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability at a time when the likelihood of detection was slight." Id. 399 N.W.2d at 251 (citing State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982)).

On appeal, a panel of this court declined to decide whether the exceptional depravity aggravator was [*21] unconstitutionally vague in Joubert because the claim was not presented in the state courts, and was therefore procedurally barred. Joubert v. Hopkins, 75 F.3d 1232, 1240-41 (8th Cir. 1996). Nevertheless, the majority, with Judge J. Gibson dissenting, opined in dicta that the Nebraska Supreme Court had successfully narrowed the statute in the 1982 Moore decision; the application of the narrowed definition to Joubert at resentencing, therefore, was not plain error. See id.

Contrary to the state's argument, Joubert cannot be cited for the proposition that the Eighth Circuit approved a "broader definition of exceptional depravity than was employed in resentencing Moore." Appellee's Brief at 14. In light of the fact that this court found the exceptional depravity prong of aggravator § 29-2523(1)(d) unconstitutionally vague in 1990 when the sentencing panel applied it to Moore in 1980, it remains unconstitutionally vague. We are bound by our opinion in Moore v. Clarke, 904 F.2d 1226, 1234-35 (8th Cir. 1990); only en banc panels have the authority to alter prior decisions.

B. The State Trial Court Unconstitutionally Narrowed and Applied [*22] the Exceptional Depravity Aggravator at Resentencing

The three-judge panel did not have the authority to impose the death penalty against Moore on the basis of its reconstruction of the exceptional depravity aggravator. The state has failed to cite a case in which an unconstitutionally vague statute regarding the application of an aggravating circumstance has been cured on remand by a state trial court, which then resentences the defendant to death on the basis of the newly-defined statute. Supreme Court precedent does not support that proposition. In Walton v. Arizona, 497 U.S. 639, 653-54, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), the Court authorized a state appellate court's narrowing of an aggravating circumstance definition for trial judges to later apply on remand. It articulated the federal court's role in reviewing the state's application of a statutory aggravator:

When a federal court is asked to review a state court's application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to [*23] the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient.

Id. at 654. The Court then cited two additional cases in which the state supreme court had sufficiently defined the statutory aggravating circumstance to be applied later by the sentencing panel. See Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976).

Gregg v. Georgia, 428 U.S. 153, 195, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (overturned on other grounds), also supports our conclusion that a state trial court may not define a vaguely worded statute at first instance. Gregg requires that the state provide a capital sentencer with "a meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." Id. at 188 (quoting Furman, 408 U.S. 238, 313 (1972) (White, J., concurring)). We acknowledged [*24] in our first opinion in this case, anticipating that the Nebraska Supreme Court would conduct a resentencing hearing if the state filed a timely motion, that "a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute." Moore, 904 F.2d at 1229. This statement reflects a logical assumption that the formulation of a new construction is a job for the state's highest court. The Nebraska Supreme Court's puzzling delegation of this task to the sentencing panel leads us to conclude that Moore's second death sentence is not only foreclosed by this court's previous decisions in his case, but is also the product of an imprudent and unprecedented ad hoc judicial narrowing process. The Gregg court explained:

the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing [*25] authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

428 U.S. at 195.

The concern for eliminating arbitrariness and capriciousness expressed in Gregg is not served by vesting the judicial narrowing function in the same tribunal that will be responsible for applying in the first instance the resulting construction; no "clear and objective" criteria could be expected to emerge from the procedure initiated by the Nebraska Supreme Court upon remand. We have no alternative but to reject the district court's conclusion that the newly defined exceptional depravity component of § 29-2523(1)(d) was constitutionally applied against Moore.

III. Conclusion

Justice demands an end to this twenty-year litigation. Bound to our previous decision, we hold that the definition of exceptional depravity, inclusive of the purposeful selection of a victim on the basis of age, remains unconstitutionally vague. We reverse the district court and direct it to issue the writ of habeas corpus, and request that it remand the case to the Nebraska Supreme Court for resentencing, consistent [*26] with our opinion that the exceptional depravity prong of § 29-2523(1)(d) is unconstitutionally vague, and that Moore cannot be sentenced to death on the basis of the exceptional depravity component of the aggravator.

Harvey v. Horan, 2002 U.S. App. LEXIS 923 (4th Cir 01/23/2002) A section 1983 claim seeking to test DNA that may exculpate a criminal defendant is more properly brought under a habeas corpus petition & therefore relief denied.

Commonwealth's Attorney Horan contends both that § 1983 is not an appropriate vehicle for Harvey's action and that procedural flaws require dismissal of Harvey's claim because it is in reality a successive petition for a writ of habeas corpus brought without leave of court. Harvey responds that his fundamental right to prove his innocence by retesting the DNA evidence in his case is protected by the Due Process Clause and that § 1983 is an appropriate avenue to vindicate his claim.

While we agree [*7] with Harvey that the question of guilt or innocence lies at the heart of the criminal justice system, we also believe that the proper process for raising violations of constitutional rights in criminal proceedings cannot be abandoned. Because the substance of a claim cannot be severed from the proper manner of presenting it, we find Harvey's § 1983 action to be deficient.

Substantively, Supreme Court precedent makes clear that Harvey has failed to state a claim under § 1983. In Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), the Supreme Court held that a convicted criminal defendant cannot bring a § 1983 action that would "necessarily imply the invalidity of his conviction or sentence" unless he proves that his "conviction or sentence has already been invalidated." Heck, 512 U.S. at 486-87.

In Heck, the Supreme Court concluded that bringing a § 1983 action for damages arising from a still valid state conviction would be jumping the gun. In reaching its conclusion, the Court analogized a § 1983 claim that challenges the legality of a state conviction to the common law cause of action for malicious prosecution. [*8] The Court stated that "one element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused." Heck, 512 U.S. at 484. The Court emphasized that civil tort actions are simply "not appropriate vehicles for challenging the validity of outstanding criminal judgments." 512 U.S. at 486. Allowing them to be used for that purpose would undercut the long-standing concern not to undermine the finality of criminal convictions through civil suits. 512 U.S. at 484-86. The Court noted in conclusion:

We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.

512 U.S. at 489.

While Heck dealt with a § 1983 claim for damages, the Court did not limit its holding to such claims. And we see no reason why its rationale would not apply in a situation where a criminal defendant [*9] seeks injunctive relief that necessarily implies the invalidity of his conviction. See Edwards v. Balisok, 520 U.S. 641, 648-49, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997) (leaving issue open). Harvey's § 1983 claim does just that. He seeks access to biological evidence to challenge the fact or duration of his confinement. Harvey claims that he is innocent and that further DNA testing will lead to his exoneration. Because he seeks to use § 1983 to invalidate a final state conviction whose lawfulness has in no way been impugned, his suit fails under Heck. It must be dismissed for failure to state a claim. n1

Harvey relies on the fact that DNA testing may also conclusively prove his guilt in arguing that his claim does not necessarily imply the invalidity of his conviction. However, this attempt to avoid Heck fails. Harvey is seeking access to DNA evidence for one reason and one reason only -- as the first step in undermining his conviction. He believes that the DNA test results will be favorable and will allow him to bring a subsequent motion to invalidate his conviction. As such, an action under 42 U.S.C. § 1983 cannot lie.

The implications of circumventing Heck are no small matter. Harvey would have this court fashion a substantive right to postconviction DNA testing out of whole cloth or the vague contours of the Due Process Clause. We are asked to declare a general constitutional right for every inmate to continually challenge a valid conviction based on whatever technological advances may have occurred since his conviction became final.

The Supreme Court has made clear that the finality of convictions cannot be brought into question by every change in the law. For example, under Teague v. Lane, a new rule cannot be applied retroactively to cases [*11] on collateral review unless the rule "falls within one of two narrow exceptions to the general rule of nonretroactivity." Tyler v. Cain, 150 L. Ed. 2d 632, 121 S. Ct. 2478, 2483 (2001) (discussing Teague v. Lane, 489 U.S. 288, 310-13, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989)). Similarly, we believe that finality cannot be sacrificed to every change in technology. The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon final criminal judgments.

In so holding, we acknowledge that finality is not a value that trumps all others. In some circumstances newly discovered evidence may warrant a new trial. See, e.g., United States v. Christy, 3 F.3d 765, 768 (4th Cir. 1993). But there is no newly discovered evidence in this case. Instead, Harvey seeks to subject existing biological evidence to new DNA testing. This evidence was already subjected to DNA testing using the best technology available at the time Harvey's conviction became final. Establishing a constitutional due process right under § 1983 to retest evidence with each forward [*12] step in forensic science would leave perfectly valid judgments in a perpetually unsettled state. This we cannot do. In Teague, the Court stressed that finality "is essential to the operation of our criminal justice system," and that "without finality, the criminal law is deprived of much of its deterrent effect." 489 U.S. at 309 (plurality opinion). See also McCleskey v. Zant, 499 U.S. 467, 491-92, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). While finality is not the sole value in the criminal justice system, neither is it subject to the kind of blunt abrogation that would occur with the recognition of a due process entitlement to post-conviction access to DNA evidence.

Furthermore, Heck teaches that § 1983 does not exist to provide an open-ended assault on the finality of criminal judgments. See Heck, 512 U.S. at 486-87. Instead, § 1983 exists for the more limited purpose of redressing violations of the Constitution and federal statutes. Harvey has made no argument that his conviction violates the Constitution or any federal law. In fact, at oral argument Harvey conceded that he received due process under the law and under the [*13] science in existence when he was convicted in 1990. To confer upon Harvey a wide-ranging constitutional right in the absence of any argument that his underlying conviction violated the Constitution or a federal statute is simply beyond judicial competence.

In holding that Harvey has failed to state a claim under § 1983, we do not declare that criminal defendants should not be allowed to avail themselves of advances in technology. Rather, our decision reflects the core democratic ideal that if this entitlement is to be conferred, it should be accomplished by legislative action rather than by a federal court as a matter of constitutional right. Permitting Harvey's § 1983 claim to proceed would improperly short-circuit legislative activity by allowing judges, rather than legislatures, to determine the contours of the right.

This is not an area in which legislatures have been inactive. For example, the Innocence Protection Act of 2001 has been introduced in both houses of Congress. See S. 486, 107th Cong. (2001), 147 Cong. Rec. S1999 (Mar. 7, 2001); H.R. 912, 107th Cong. (2001). The Act would increase the availability of post-conviction DNA testing for a person convicted of a federal [*14] crime. The Act would also condition the grant of federal funds for state DNA-related programs on an assurance that the state will make post-conviction DNA testing available in specified types of cases. And the Act would require states to increase the availability of post-conviction DNA testing for death row inmates. See S. 486 §§ 101-104, 147 Cong. Rec. at S2001-03; H.R. 912 §§ 101-104.

Virginia has also passed legislation that increases the availability of post-conviction DNA testing. Currently, Va. Code § 19.2-327.1 (Michie Supp. 2001) allows a convicted felon to apply to the circuit court for DNA testing if, inter alia, the biological evidence was not previously subjected to the current DNA testing method and the testing is "materially relevant, noncumulative, and necessary and may prove the convicted person's actual innocence." Id. Additional statutory sections, scheduled to become effective on November 15, 2002, would allow the Supreme Court of Virginia to issue writs of actual innocence based on the results of post conviction DNA testing. See Va. Code §§ 19.2-327.2 to -327.6 (Michie Supp. 2001).

Allowing Harvey's action to proceed under § 1983 would judicially [*15] preempt legislative initiatives in this area. At oral argument, Harvey urged us to use the balancing test of Mathews v. Eldridge to fashion a broad constitutional due process right of access to DNA testing. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). When identifying the specific dictates of due process, Mathews states that a court should balance three factors: (1) "the private interest that will be affected by the official action," (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards," and (3) "the Government's interest, including the . . . administrative burdens that the additional or substitute procedural requirement would entail." Id. Harvey urges us to balance, under Mathews, an inmate's need for post-conviction DNA testing against the administrative burden to the state of providing it. However, this very balance is the one that legislative bodies are currently trying to strike. Establishing a federally supervised right of access via Mathews would cut off this on-going process and place the federal courts in a distinctly legislative posture. [*16]

We thus hold that Harvey fails to state a claim under § 1983. We now explain why his claim is more properly pressed as a habeas corpus petition -- and as such, why his claim fails. Recognition of the courts' obligation to the habeas corpus process reinforces the substantive point that the district court should have dismissed Harvey's § 1983 claim.

In Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), the Supreme Court held that when a state prisoner challenges the fact or duration of his confinement and the relief he seeks is immediate or speedier release from imprisonment, "his sole federal remedy is a writ of habeas corpus." 411 U.S. at 500. The Court emphasized that despite the literal applicability of § 1983's broad, general terms, the federal habeas corpus statute is "explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement." 411 U.S. at 489-90. The Supreme Court was especially concerned that the habeas corpus exhaustion requirement not be circumvented. Id. See also 28 U.S.C. § 2254(b) (requiring exhaustion of [*17] state remedies before a federal habeas action challenging a state conviction can proceed). The Court stressed that the exhaustion requirement "is rooted in considerations of federal-state comity," and that Congress has decided that exhaustion of state remedies in cases where a state prisoner challenges the fact or duration of his confinement "will best serve the policies of federalism." Preiser, 411 U.S. at 491-92 & n.10.

In contrast to habeas corpus claims, § 1983 claims can come immediately to federal court, without any need for the exhaustion of state remedies. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 500-01, 516, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). The Preiser Court stressed that "it would wholly frustrate explicit congressional intent" to allow state prisoners to evade the exhaustion requirement "by the simple expedient" of putting a § 1983 label on their pleadings. 411 U.S. at 489-90. Harvey was convicted by the Commonwealth of Virginia. If remedial steps are to be taken, the courts of the Commonwealth must have the first shot at them. Allowing Harvey to bypass the exhaustion requirement of § 2254(b) would, [*18] by contrast, give federal courts the right to initial review of innumerable state judgments.

Harvey argues, however, that he is not bound by Preiser because he is not presently challenging the fact or duration of his confinement. He claims that he is seeking access to DNA evidence that will hopefully allow him to challenge his conviction at a later date. This claim is unavailing. We have squarely held that a state prisoner's label for his claim cannot be controlling, even when the prisoner does not request immediate release. See Hamlin v. Warren, 664 F.2d 29, 30, 32 (4th Cir. 1981). In Hamlin, we held that a prisoner's § 1983 claim had to proceed under the habeas framework because he was seeking to establish "every predicate" for a subsequent request for release. Id. We concluded that when a complaint calls into question the validity of a state court conviction and "has all the earmarks of a deliberate attempt to subvert the [exhaustion] requirement of § 2254(b)," the petitioner must observe the habeas requirements, "notwithstanding the absence of any request for release." 664 F.2d at 32. To hold otherwise would sanction an end run around [*19] the exhaustion requirement by "anyone who could state a viable civil rights claim." Id.See also Pressly v. Gregory, 831 F.2d 514, 518 (4th Cir. 1987). Therefore, we must examine whether a state prisoner's claim falls within the federal habeas corpus statute. If it does, the claim cannot proceed under § 1983.

Under Preiser and Hamlin, Harvey's sole federal remedy is a writ of habeas corpus. Like the prisoner in Hamlin, Harvey is challenging the validity of his conviction even though he is not seeking immediate release. Harvey seeks access to DNA evidence to attempt to prove that he is innocent. He is trying to use a § 1983 action as a discovery device to overturn his state conviction. The Supreme Court has made clear that habeas corpus relief is available "to attack future confinement and obtain future releases." Preiser, 411 U.S. at 487. This is precisely what Harvey is attempting to do -- use his claim for access to evidence to set the stage for a future attack on his confinement. Therefore, his claim is effectively a petition for a writ of habeas corpus.

The district court found that under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), [*20] Harvey had a due process right of access to the DNA evidence and a right to conduct new testing on the evidence. The district court concluded that Harvey had a valid Brady claim because the DNA testing "could constitute material exculpatory evidence." Harvey v. Horan, 119 F. Supp. 2d 581, 2001 WL 419142, at *5 (E.D. Va. Apr. 16, 2001). We are not persuaded. Harvey does not state a valid Brady claim because he is not challenging a prosecutor's failure to turn over material, exculpatory evidence that, if suppressed, would deprive the defendant of a fair trial. See United States v. Bagley, 473 U.S. 667, 675-76, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Harvey received a fair trial and was given the opportunity to test the DNA evidence during his trial using the best technology available at the time. However, even were we to accept Harvey's analogy to Brady, it would only reinforce the conclusion that Harvey is bringing a habeas action rather than a § 1983 claim because Brady claims are typically raised in habeas petitions. See, e.g., Williams v. Taylor, 529 U.S. 420, 437-40, 146 L. Ed. 2d 435, 120 S. Ct. 1479 (2000) [*21] (addressing state prisoner's Brady claim brought in a federal habeas proceeding); Strickler v. Greene, 527 U.S. 263, 144 L. Ed. 2d 286, 119 S. Ct. 1936 (1999) (same); Gray v. Netherland, 518 U.S. 152, 161-62, 135 L. Ed. 2d 457, 116 S. Ct. 2074 (1996) (same); Wood v. Bartholomew, 516 U.S. 1, 133 L. Ed. 2d 1, 116 S. Ct. 7 (1995) (same).

We thus proceed to consider Harvey's claim as one brought in habeas corpus. As a habeas petition, Harvey's action must be dismissed as a successive petition brought without leave of court. In 1994, Harvey brought his claim for access to DNA evidence as a federal petition for a writ of habeas corpus in the district court. The district court dismissed Harvey's claim as procedurally defaulted. The court found that, even though Harvey had knowledge of the factual basis for his claim at the time he filed a state habeas petition, he failed to raise his claim in state court. Therefore, pursuant to Va. Code § 8.01-654(B)(2), which states that "no writ [of habeas corpus] shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing any previous petition, [*22] " Virginia would bar Harvey's claim. Because Harvey failed to show cause for his default or prejudice resulting therefrom, the district court dismissed Harvey's claim.

The Supreme Court in another case subsequently reinforced the district court's approach by stating that a state procedural bar "provides an independent and adequate state-law ground for [a] conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default." Gray, 518 U.S. at 161-62 (addressing application of Va. Code § 8.01-654(B)(2)). Harvey had the opportunity to show cause for his default and demonstrate prejudice. But he never appealed the district court's decision.

Harvey has now brought the same claim for access to DNA evidence in this action. Pursuant to 28 U.S.C. § 2244(b)(3), successive habeas petitions may only be filed with leave of court. n2 In order to qualify as a successive petition, the dismissal of the first habeas petition must be on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-89, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000).

Our sister circuits have held that dismissal of a habeas petition for procedural default is a dismissal on the merits for purposes of determining whether a habeas petition is successive. See, e.g., In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998); Hawkins v. Evans, 64 F.3d 543, 547 (10th Cir. 1995); Bates v. Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994); Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990). We agree. By every reckoning, a dismissal for procedural default is a dismissal on the merits. It is critically different from a dismissal for failure to exhaust which does not prevent federal habeas review at a later date.

In light of this, the district court's dismissal of Harvey's original habeas petition for procedural default was a dismissal on the merits. Harvey's current petition is accordingly a successive petition for a writ of habeas corpus. And because Harvey did not obtain leave to file this petition, his claim must be dismissed pursuant to 28 U.S.C. § 2244(b)(3). In addition, even if Harvey had [*24] sought leave of court, it could not have been granted in view of the unambiguous language of 28 U.S.C. § 2244(b)(1), which states: "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." This is reinforced by the language of Rule 9(b) of the Rules Governing § 2254 Cases, which states that "[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits." See also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988); Turner v. Artuz, 262 F.3d 118, 122-24 (2d Cir. 2001).

Appellant Horan points to strong evidence of Harvey's guilt in arguing that there is no prejudice from the denial of post-conviction DNA testing in this case. But in Harvey's case, the issue of prejudice has already been adjudicated by the district court's dismissal of Harvey's first habeas petition as procedurally defaulted. Harvey has never appealed this. This does not mean that there can be no relief for Harvey. What it does mean, however, is that [*25] any such relief must be conferred by either state or federal legislation or by the state courts acting under their own constitutions. Federal and state legislatures and state courts are free in ways that we are not to set the ground rules by which further collateral attacks on state convictions such as Harvey's may be entertained. For example, the proposed Innocence Protection Act of 2001 contains a provision explicitly stating that an application by a state death-row inmate for post-conviction DNA testing under the Act "shall not be considered an application for a writ of habeas corpus under [ 28 U.S.C. § 2254] for purposes of determining whether it or any other application is a second or successive application under section 2254." S. 486 § 104(d), 147 Cong. Rec. at S2003; H.R. 912 § 104(d). But under the current rules, a successive petition in habeas corpus will not lie in Harvey's case.

However strong the evidence of Harvey's guilt may be, Virginia can reopen his case if it so chooses. But what is open to Virginia is presently foreclosed in federal court. Fashioning a new federal constitutional right that would govern all prisoners in all states is not [*26] a permissible way of addressing the question of post-conviction DNA testing. It is not merely that solutions which rely on the democratic process and on the experimental possibilities inherent in our federal system are practically superior. Those solutions alone are constitutionally sound. n3

SUPREME COURT CASES & NEWS

Lee v. Kemna (01/22/02 - No. 00-6933) An adequate and independent state ground to bar habeas relief does not exist where the state procedural rule (relating to written vs. oral objections during trial) would elevate a procedurally technicality over a substantive claim of innocence.

Petitioner Lee was tried for first-degree murder and a related crime in state court. His planned alibi defensethat he was in California with his family at the time of the murdersurfaced at each stage of the proceedings. Although Lees mother, stepfather, and sister voluntarily came to Missouri to testify to his alibi, they left the courthouse without explanation at some point on the third day of trial, the day the defense case began. Lees counsel moved for an overnight continuance to gain time to find the witnesses and enforce the subpoenas he had served on them. Neither the trial judge nor the prosecutor identified any procedural flaw in the motions presentation or content. The trial judge denied the motion, stating that it looked as though the witnesses had in effect abandoned Lee, that his daughters hospitalization would prevent the judge from being in court the next day, and that he would be unavailable on the following business day because he had another trial scheduled. The trial resumed without pause, no alibi witnesses testified, the jury found Lee guilty as charged, and he was sentenced to prison for life without possibility of parole. Lees new trial motion, grounded in part on the denial of his continuance motion, was denied, as was his motion for state postconviction relief, in which he argued, inter alia, that the refusal to grant his continuance motion deprived him of his federal due process right to a defense. His direct appeal and his appeal from the denial of postconviction relief were consolidated before the Missouri Court of Appeals, which disposed of the case on state procedural grounds. The appeals court held that the denial of the continuance motion was proper because Lees counsel had failed to comply with Missouri Supreme Court Rule 24.09, which requires that such motions be in writing and accompanied by an affidavit, and with Rule 24.10, which sets out the showings a movant must make to gain a continuance grounded on witnesses absence. Declining to consider the merits of Lees due process plea, the Missouri Court of Appeals affirmed his conviction and the denial of postconviction relief. He then filed a federal habeas application, which the District Court denied. The Eighth Circuit affirmed, ruling that federal review of Lees due process claim was unavailable because the state courts rejection of that claim rested on state-law groundsthe failure of the continuance motion to comply with Rules 24.09 and 24.10independent of the federal question and adequate to support the judgment, Coleman v. Thompson, 501 U.S. 722, 729.

Held:The Missouri Rules, as injected into this case by the state appellate court, did not constitute state grounds adequate to bar federal habeas review. Pp.1225.

(a)Although violation of firmly established and regularly followed state rules ordinarily bars federal review, there are exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question. See Davis v. Wechsler, 263 U.S. 22, 24. This case fits within that limited category. The Court is guided here by Osborne v. Ohio, 495 U.S.103, 122125. Osborne applied the general principle that an objection ample and timely to bring an alleged federal error to the attention of the trial court, enabling it to take appropriate corrective action, satisfies legitimate state interests, and therefore suffices to preserve the claim for federal review. The sequence of events in Lees case also guides the Courts judgment. The asserted procedural oversights, Lees alleged failures fully to comply with Rules 24.09 and 24.10, were first raised more than two and a half years after his trial. The two Rules, Missouri asserted, work together to enhance the reliability of a trial courts determination whether to delay a scheduled criminal trial due to the absence of a witness. Yet neither the prosecutor nor the trial judge so much as mentioned the Rules as a reason for denying Lees continuance motion. If either had done so at the appropriate time, Lee would have had an opportunity to perfect his plea to hold the case over until the next day. Instead, the State first raised Rule 24.10 as a new argument in its brief to the Missouri Court of Appeals, and that court, it seems, raised Rule 24.09s writing requirements on its own motion. Pp.1217.

(b)Three considerations, in combination, lead to the conclusion that the asserted state grounds are inadequate to block adjudication of Lees federal claim. First, when the trial judge denied Lees motion, he stated a reason that could not have been countered by a perfect motion for continuance: He said he could not carry the trial over until the next day because he had to be with his daughter in the hospital; he further informed counsel that another scheduled trial prevented him from concluding Lees case on the following business day. Although the judge hypothesized that the witnesses had abandoned Lee, no proffered evidence supported this supposition. Second, no published Missouri decision directs flawless compliance with Rules 24.09 and 24.10 in the unique circumstances of this casethe sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trials last day. Third and most important, the purpose of the Rules was served by Lees submissions both immediately before and at the short trial. As to the written motion requirement, Rule 24.09 does not completely rule out oral continuance motions, and the trial transcript enabled an appellate court to comprehend the situation quickly. As to Rule 24.10, two of the Rules components were stressed by the State. Missouri asserted, first, that Lees counsel never mentioned in his oral motion the testimony he expected from the missing witnesses, and second, that Lees counsel gave the trial court no reason to believe that those witnesses could be located within a reasonable time. These matters, however, were either covered by the oral continuance motion or otherwise conspicuously apparent on the record. Thus, the Rules essential requirements were substantially met in this case, and nothing would have been gained by requiring Lees counsel to recapitulate in rank order the showings the Rule requires. See , e.g., Osborne, 495 U.S., at 124. The case is therefore remanded for adjudication of Lees due process claim on the merits. Pp.1725.

213 F.3d 1037, vacated and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, OConnor, Souter, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

Kansas v. Crane (01/22/02 - No. 00-957) Constitution does not permit commitment of dangerous sexual offender considered in Hendricks without any lack-of-control determination

In upholding the constitutionality of the Kansas Sexually Violent Predator Act, this Court characterized a dangerous sexual offenders confinement as civil rather than criminal, Kansas v. Hendricks, 521 U.S. 346, 369, and held that the confinement criterion embodied in the statutes words mental abnormality or personality disorder satisfied substantive due process, id., at 356, 360. Here, the Kansas District Court ordered the civil commitment of respondent Crane, a previously convicted sexual offender. In reversing, the State Supreme Court concluded that Hendricks requires a finding that the defendant cannot control his dangerous behavioreven if (as provided by Kansas law) problems of emotional, and not volitional, capacity prove the source of behavior warranting commitment. And the trial court had made no such finding.

Held:Hendricks set forth no requirement of total or complete lack of control, but the Constitution does not permit commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. Hendricks referred to the Act as requiring an abnormality or disorder that makes it difficult, if not impossible, for the [dangerous] person to control his dangerous behavior. Id., at 358 (emphasis added). The word difficult indicates that the lack of control was not absolute. Indeed, an absolutist approach is unworkable and would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities. Yet a distinction between a dangerous sexual offender subject to civil commitment and other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings, id., at 360, is necessary lest civil commitment become a mechanism for retribution or general deterrence, id., at 372373. In Hendricks, this Court did not give lack of control a particularly narrow or technical meaning, and in cases where it is at issue, inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. The Constitutions liberty safeguards in the area of mental illness are not always best enforced through precise bright-line rules. States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment; and psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law. Consequently, the Court has sought to provide constitutional guidance in this area by proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require, the approach embodied in Henricks. That Hendricks limited its discussion to volitional disabilities is not surprising, as the case involved pedophiliaa mental abnormality involving what a lay person might describe as a lack of control. But when considering civil commitment, the Court has not ordinarily distinguished for constitutional purposes between volitional, emotional, and cognitive impairments. See, e.g.,Jones v. United States, 463 U.S. 354. The Court in Hendricks had no occasion to consider whether confinement based solely on emotional abnormality would be constitutional, and has no occasion to do so here. Pp.48.

269 Kan. 578, 7 P. 3d 285, vacated and remanded.

Breyer, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, OConnor, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.

United States v. Arvizu (01/15/02 - No. 00-1519) Under the totality of the circumstances test for investigatory stops, an officer may rely on otherwise innocent observations to briefly pull over a suspect vehicle.

Respondent was stopped by Border Patrol Agent Stoddard while driving on an unpaved road in a remote area of southeastern Arizona. A search of his vehicle revealed more than 100 pounds of marijuana, and he was charged with possession with intent to distribute. The Federal District Court denied respondents motion to suppress, citing a number of facts that gave Stoddard reasonable suspicion to stop the vehicle. The Ninth Circuit reversed. In its view, fact-specific weighing of circumstances or other multifactor tests introduced uncertainty and unpredictability into the Fourth Amendment analysis, making it necessary to clearly delimit the factors that an officer may consider in making stops such as this one. It then held that several factors relied upon by the District Court carried little or no weight in the reasonable-suspicion calculus and that the remaining factors were not enough to render the stop permissible.

Held:Considering the totality of the circumstances and giving due weight to the factual inferences drawn by Stoddard and the District Court Judge, Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. Because the balance between the public interest and the individuals right to personal security, United States v. Brignoni-Ponce, 422 U.S. 873, 878, tilts in favor of a standard less than probable cause in brief investigatory stops of persons or vehicles, the Fourth Amendment is satisfied if the officers action is supported by reasonable suspicion to believe that criminal activity may be afoot, United States v. Sokolow, 490 U.S. 1, 7. In making reasonable-suspicion determinations, reviewing courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. See, e.g., United States v. Cortez, 449 U.S. 411, 417418. This process allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available. Id., at 418. The Ninth Circuits methodology departs sharply from these teachings, and it reached the wrong result in this case. Its evaluation and rejection of certain factors in isolation from each other does not take into account the totality of the circumstances, as this Courts cases have understood that phrase. The court appeared to believe that each of Stoddards observations that was by itself susceptible to an innocent explanation was entitled to no weight. Terry v. Ohio, 392 U.S. 1, however, precludes this sort of divide-and-conquer analysis. And the courts view that it was necessary to clearly delimit an officers consideration of certain factors to reduce troubling uncertainty also runs counter to this Courts cases and underestimates the reasonable-suspicion standards usefulness in guiding officers in the field. The de novo standard for appellate review of reasonable-suspicion determinations has, inter alia, a tendency to unify precedent and a capacity to provide law enforcement officers the tools to reach the correct decision beforehand. Ornelas v. United States, 517 U.S. 690, 691, 697,698. The Ninth Circuits approach would seriously undermine the totality of the circumstances principle governing the existence vel non of reasonable suspicion. Here, it was reasonable for Stoddard to infer from his observations, his vehicle registration check, and his border patrol experience that respondent had set out on a route used by drug smugglers and that he intended to pass through the area during a border patrol shift change; and Stoddards assessment of the reactions of respondent and his passengers was entitled to some weight. Although each of the factors alone is susceptible to innocent explanation, and some factors are more probative than others, taken together, they sufficed to form a particularized and objective basis for stopping the vehicle. Pp. 611.

232 F. 3d 1241, reversed and remanded.

Rehnquist, C.J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion.

POSITIVE CAPITAL CASE RESULTS

Louisiana v. Bridgewater, 2002 La. LEXIS 23 (LA 1/15/2002) "[T]he evidence is insufficient to support a first degree murder conviction, we reverse defendant's conviction and death sentence; however, we find the evidence sufficient to support a second degree murder conviction."

Floyd v. Moore; Floyd v. Florida, 2002 Fla. LEXIS 28 (FL 1/17/2002) Remand ordered for an evidentiary hearing on claims of ineffective assistance of counsel and his Brady claim as the record can not dispositively disprove the allegations.

" Specifically, Floyd asserted that trial counsel was ineffective for failing to adequately investigate and present mitigating evidence during the penalty phase at resentencing, and counsel provided ineffective assistance during voir dire at the same resentencing. In addition, Floyd asserted that his original trial counsel rendered ineffective assistance during the guilt phase. Floyd contends that the trial court should have held an evidentiary hearing on these claims."

"Floyd [also]alleges that the State withheld the following information: (1) a witness's statement that she saw several white men force their way into the victim's house around the time the State estimated the victim had died; (2) evidence that Huie Byrd, the man who accompanied Floyd when he was arrested, provided deceptive responses on his polygraph; and (3) evidence which would have been used to impeach Gregory Anderson, one of Floyd's former cellmates, who testified that Floyd confessed to the crime. "

Williams v. State, No. 470, 2001 (Del. 01/16/2002) "It would be a violation of the Delaware Rules of Professional Conduct for O'Donnell to advocate conflicting legal positions in two capital murder appeals that are pending simultaneously in this Court. Both the United States Constitution and the Delaware Constitution guarantee each of O'Donnell's clients a right to the effective assistance of counsel in a direct appeal following a capital murder conviction. Given his clients' disparate legal arguments, O'Donnell's independent obligations to his clients may compromise the effectiveness of his assistance as appellate counsel for one or both clients, unless his motion to withdraw is granted. Accordingly, O'Donnell's motion to withdraw must be granted and substitute counsel will be appointed. O'Donnell and the State are both commended for their recognition of and adherence to the highest standards of professional conduct."

Hammon v. Arkansas, 2002 Ark. LEXIS 37 (Ark 1/24/2002) "The three motions are treated as a case in order to resolve the construction of Rule 16 of the Arkansas Rules of Appellate Procedure-Criminal in relation to this court's prior case law holding there is no constitutional right to appointment of counsel in state postconviction proceedings. We now hold that, when this court allows court-appointed counsel to withdraw in an appeal of a denial of postconviction relief for sufficient cause shown, the postconviction petitioner is not automatically entitled to the appointment of new counsel. This court may, however, exercise its discretion and appoint counsel for a Rule 37 appellant."

CAPITAL CASES - RELIEF DENIED

People v. Lawley, 2002 Cal. LEXIS 272 (CA 1/24/2002) Death sentence for conspiracy vacated as unauthorized by law, but death sentence from the murder conviction upheld. Arguments, most notably, relating to collateral estoppel ("coconspirator" did not receive death), third party confession to the crime, self-representation & defendant's mental status.

King v. Florida; King v. Hammon, 2002 Fla. LEXIS 25 (1/16/2002) (US Supreme Court has issued a stay). Relief denied on claims relating to: "(1) appellate counsel was ineffective for failing to challenge the trial court's rulings allowing a State witness to testify that blood on King's clothes was human blood; (2) appellate counsel was ineffective for failing to challenge the trial court's ruling which allowed the State to bolster James McDonough's credibility with irrelevant information; (3) appellate counsel was ineffective for failing to challenge inadmissible hearsay statements made during Carlos Hudson's testimony; (4) appellate counsel was ineffective for failing to challenge inadmissible hearsay statements made during Detective Bragdon's testimony; (5) appellate counsel was ineffective for failing to raise as an appellate point the prosecutor's improper future dangerousness argument during the guilt phase closing; (6) the prosecutor committed fundamental error in the guilt phase closing argument when the prosecutor denigrated defense counsel; (7) appellate counsel was ineffective for failing to address on direct appeal the ex parte communication between the trial court and the prosecutor; (8) appellate counsel was ineffective or violated a duty by failing to ensure the preservation of physical evidence; (9) Florida's death sentencing statute is unconstitutional as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (10) incarceration on death row for twenty-five years violates the Eighth Amendment's prohibition against cruel and unusual punishment; and (11) Florida's clemency process violates the Due Process and Equal Protection Clauses of the United States and Florida Constitutions. "

Rhyne v. State, No. 36064 (Nev. 01/16/2002) (dissent) "[W]e conclude that the district court erred by intervening in Rhyne's relationship with his attorneys but that Rhyne is estopped from complaining because he invited the error by seeking the district court's permission to call a witness despite his attorney's disagreement. We reject Rhyne's claims that the prosecutor committed misconduct warranting reversal, and we conclude that the death sentence was appropriately imposed." From the powerful dissent by Judge Becker on the issue of proportionality:

Finally, there is the issue of Rhyne's severe mental illness. The jury found two mitigating circumstances: that Rhyne committed the murder while under an extreme mental or emotional disturbance, and that Rhyne suffered a serious mental disorder during his life. Rhyne's entire involvement with the criminal justice system is directly a product of his mental illness. Since the age of seventeen, Rhyne has suffered from a bipolar disorder. On occasion, this has escalated into paranoia.

Moreover, the record reflects Rhyne's illness is of the most severe form. It is not completely treatable. As a result, Rhyne's mood swings and unexpected behaviors are not fully controlled, even with medication. In addition, like many individuals with severe bipolar disorder, Rhyne's mental condition destabilizes quickly when he does not take his medication or when he mixes his medication with alcohol or other drugs. Rhyne's mental condition was the heart of the State's future dangerousness argument. He cannot be completely controlled, nor can he always be isolated from his fellow inmates. He might irrationally attack another inmate or a guard because he doesn't like what someone said or how a person looked.

While it is true that Rhyne's mental condition makes him a more difficult and time-consuming inmate to control, the record reflects that his incidents with fellow inmates have been few and of a minor nature (feces throwing, spitting, etc.). Rhyne is no different now than he has been his entire adult life, and his actions during that life are, at least in part, a product of the deficiencies in our mental health system.

Like many states, Nevada's statutes and mental health system are not designed to deal with individuals like Rhyne. Rhyne was institutionalized on several occasions because he posed a threat to himself or others. In each case, once he was partially stabilized, he was released from custody to a least restrictive environment as required by law. The problem is that persons like Rhyne cannot function very well in an unsupervised setting. They begin to destabilize, make threats or commit crimes, and then end up back in custody. They become part of a revolving door syndrome that tragically escalates into more violent crimes. If Rhyne had a history of violence unrelated to his illness, or if his previous convictions were based on more significant facts, the future dangerousness argument might be more compelling. Given the testimony in Rhyne's case, however, it appears to be no more than an argument to execute someone because they are mentally ill and tiresome to handle. A death penalty based on such concerns is excessive.

In re Byrd, 2002 U.S. App. LEXIS 324 (6th Cir 01/07/2002) En Banc stay vacated in light of Magistrate Judge's recommendation on claim of actual innocence.

Gattis v. Snyder , 2002 U.S. App. LEXIS 947 (3rd Cir 01/24/2002) Where the prosecution cited both a prospective juror’s reluctance to impose the death penalty and his gender as bases for exercising a peremptory challenge, and the Superior Court discerned no intent to discriminate against men, the court’s application of a "dual motivation" analysis to the peremptory challenge was appropriate.

Breedlove v. Moore, 2002 U.S. App. LEXIS 728 (11th Cir 01/17/2002) Relief denied on claims relating to: "(1) That the trial court admitted certain hearsay statements from Breedlove's mother and brother that violated his Sixth Amendment rights; (2) that his confession should have been suppressed pursuant to Miranda v. Arizona; (3) that his defense counsel rendered constitutionally ineffective assistance during the guilt phase of his trial; (4) that the Florida Supreme Court misapplied the harmless error standard articulated in Chapman v. California when evaluating Breedlove's claim of prejudicial jury instructions; (5) that defense counsel rendered ineffective assistance at the penalty phase of his trial; (6) that appellate counsel was ineffective for failing to raise certain arguments on direct appeal; and (7) that the prosecutor made improper arguments at the penalty phase."

Romano v. Gibson, 2002 U.S. App. LEXIS 1014 (10th Cir 01/25/2002) In the second-stage of a trial for murder, defense counsel's unsuccessful strategy of offering testimony that defendant sexually abused his sisters in order to show defendant's progression from a terrible person to a "model" prisoner, was not "completely unreasonable," and is therefore not constitutionally ineffective counsel.

Rastafari v. Anderson, 2002 U.S. App. LEXIS 846 (7th Cir 01/22/2002) Relief denied on claims relating to: " 1) that his trial counsel was ineffective for failing to move for severance prior to trial; 2) that his trial counsel was ineffective for failing to move for severance prior to the penalty phase; and 3) that his trial counsel was ineffective for failing to present expert testimony on self-defense."

Wike v. Florida, 2002 Fla. LEXIS 69 (FL 01/24/2002) The first day of jury selection, where only the general qualification of jurors took place, was not a critical phase where defendant's presence was required and, while defendant was entitled to be present during the exercise of juror challenges, his absence was harmless error.

Williams v. Arkansas, 2002 Ark. LEXIS 28 (Ark 1/17/2002) Defense counsel held to have made a strategic decision not to present mitigating evidence of appellant's family and penal history.

Fields v. Gibson, 2002 U.S. App. LEXIS 732 (10th Cir 1/17/2002) Relief denied on claims relating to: "(1) whether trial counsels' pressure of Fields to accept a blind guilty plea resulted in its being involuntary; (2) whether trial counsel rendered ineffective assistance in advising Fields to enter a blind guilty plea; (3) whether the same evidence may support different death penalty aggravators; and (4) whether there was sufficient evidence to support the "prior violent felony" aggravator."

Louisiana v. Irish, 2002 La. LEXIS 13 (LA 1/15/2002) Claims that blood splatter testimony to show intent & improper questioning of expert witnesses about testifying for defendants in other cases, assuming error, was harmless error. Victim impact testimony usage upheld. Sentence held not to be disproportionate.

Hill v. Arkansas, 2002 Ark. LEXIS 36 (Ark 1/24/2002) No error in asking mitigation witnesses whether they "have any religious or philosophical beliefs that would cause you to oppose the imposition of the death penalty?" and hence no IAC for failing to object to it. Likewise no IAC for failing to object to the definition of mitigation or failing to object to the charge as to sentences less than death (LWOP). Use of out of state felonies, assuming error, was harmless.

Pennsylvania v. Howard, 2002 Pa. LEXIS 106 (PA 1/22/2002) Appellant's second PCRA petition held to be untimely.

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

Dispennett v. Cook, No. 98-1252-ST (D.Ore. 10/23/2001) Habeas discovery permitted to examine "rape shield law" documents of the psychological history of the complaining witness, in what the district court calls a case of first impression, in light of Brady/Kyles.

OTHER NOTABLE CASES (from Findlaw.com and other sources)

Dean v. United States, No. 98-3106 (11th Cir. 01/10/2002) Eleventh Circuit further defines the application of the doctrine of "relation back" to the AEDPA

Because there was no time limit on the filing of habeas petitions before the AEDPA, the law of applying Rule 15(c) to such petitions is still developing. Congress intended Rule 15(c) to be used for a relatively narrow purpose. In the Advisory Committee Note to the 1991 amendments to Rule 15, the advisory committee states that "[t]he rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense." Congress did not intend Rule 15(c) to be so broad as to allow an amended pleading to add an entirely new claim based on a different set of facts. See generally Forzley v. AVCO, 826 F.2d 974 (11th Cir. 1987). Thus, while Rule 15(c) contemplates that parties may correct technical deficiencies or expand facts alleged in the original pleading, it does not permit an entirely different transaction to be alleged by amendment. See 6A Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1497 (2d ed. 1990). . . .

The key consideration is that the amended claim arises from the same conduct and occurrences upon which the original claim was based. This may be the case even if one or both claims do not explicitly state supporting facts. When the nature of the amended claim supports specifically the original claim, the facts there alleged implicate the original claim, even if the original claim contained insufficient facts to support it. One purpose of an amended claim is to fill in facts missing from the original claim. Applying this rule to the instant case, we hold that three of Dean's amended claims on appeal expand the facts, and serve to further specify his original claims. This is precisely the sort of amendment contemplated by Rule 15(c).

Donovan v. State of Maine, No. 01-1367 (1st Cir. 01/10/2002) Equitable tolling denied as Petitioner "had no compelling need for the hearing transcript in order to prepare his federal habeas application; and that, in all events, the petitioner dawdled for nearly two months after receiving it before he filed his application."

DiLosa v. Cain, No. 00-31359 (5th Cir. 01/09/2002) "[E]xcluded evidence potentially pointing to intruders in the house, and the statements of three witnesses pointing to potential intruders in the neighborhood, leave us with a definite conviction that the inclusion of the evidence withheld from DiLosa reasonably could undermine the confidence of any reasonable jurist in the conviction. The state court's legal conclusion to the contrary is not simply a misconstruction of Brady, but one serious enough to be unreasonable."

Hess v. Cockrell (01/25/02 - No. 00-11037) By arguing a change in decisional law justified the issuance of a writ of habeas corpus, defendant failed to demonstrate the requisite "extraordinary circumstances" to justify relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure.

Cruller v. Florida (FL 01/24/2002) Where clear legislative intent is to punish the act of taking a car separately from the taking of any other property during a robbery, the Double Jeopardy Clause of the State and federal Constitutions does not bar convictions and punishments for both robbery and carjacking.

Duncan v. Cain (01/18/02 - No. 00-31375) Evidence that witness who identified the defendant equivocated in identifying him because she was afraid defendant may retaliate against her is not "material" evidence under Brady, requiring disclosure to defendant.

Reyes-Vejerano v. United States (01/14/02 - No. 01-1187) A defendant has not shown a fatal conflict by showing only that his lawyer was under investigation and that the lawyer had some awareness of an investigation.

United States v. Haqq (01/17/02 - No. 01-1029) A suspect does not have a reasonable expectation of privacy in a suitcase that belongs to another person in a home that he shares with the other person.

Hill v. Braxton (01/14/02 - No. 00-7408) Under 28 USC 2244(d)(1), the one-year limitation period is an affirmative defense that the state bears the burden of asserting, and while a court may raise the issue on its own, it should allow the petitioner to respond before dismissing the petition.

United States v. Martinez (01/17/02 - No. 00-4245) The standard of review for forfeited errors, i.e., assertions of error raised for the first time on appeal, in a plea agreement under Fed. R. Crim. P. 11, is the plain error analysis and not the harmless error standard.

Packer v. Hill (01/15/02 - No. 00-57051) Judge's favorable comments during jury deliberation that jury was getting "closer" to a verdict is unduly coercive by implying that reaching that verdict would be desirable, even if the judge did not know what the verdict was.

United States v. Bergfeld (01/16/02 - No. 01-50396) Where the government delayed prosecuting a defendant for five years due to its own negligence, defendant is entitled to a presumption of prejudice for his Sixth Amendment speedy trial claim.

United States v. Childs (01/18/02 - No. 00-3111) Questioning during the course of lawful custody need not be related to the reason for that custody if they do not otherwise make the custody itself unreasonable or substantially extend the length of the custody.

United States v.Patzer (01/14/02 - No. 00-30360) Under Idaho Code 18-8004(5), an officer may not arrest a driver under the influence of a non-narcotic drug unless the driver's ability to drive safely is impaired, and marijuana is not classified as a narcotic drug under Idaho law.

Corjasso v. Ayers (01/17/02 - No. 00-16591) Equitable tolling to one-year requirement under the AEDPA applies to a pro se petitioner whose petition was sent back for using the incorrect cover sheet and subsequently lost by the court clerk.

In re: Rosenkrantz (01/18/02 - No. B151016) Governor's parole decisions, under section 8(b) to article V of the California Constitution, are reviewable by the courts and the Governor cannot base his decision on evidence that was not before the Parole Board.

Brosius v. Warden (01/23/02 - No. 01-1102) Absent a challenge to the constitutionality of the statute under which a defendant was convicted, a federal habeas court’s inquiry in a military habeas case may not go further than its inquiry in a state habeas case.

United States v. General (01/24/02 - No. 00-4591) Where the record did not establish any reasonable cause to question a defendant's competency at the time of his guilty plea hearing, and his motion for additional mental examinations prior to sentencing did not suggest any new evidence or mental condition that had not been addressed in one of three prior three examinations, the district court did not abuse its discretion in concluding that further mental examinations were unnecessary to resolve the defendant's competency to be sentenced.

Pryor v. United States (01/25/02 - No. 00-5303) The one-year limitation period applicable to a motion to set aside a conviction for using or carrying a firearm during and in relation to a drug trafficking offense, under 18 U.S.C. section 924(c)(1), commences on the date of the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614 (1998).

United States v. Peters (01/22/02 - No. 00-2441) Evidence that alleged victim had drank a large quantity of beer and testified she would never consent to sex with the defendant is insufficient to show she was incapable of consenting to sex for sexual abuse in violation of 18 USC Section 2242(2)(B).

FOCUS

Continuing on the theme of mitigation and mental heath, "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes, University of Texas Law Review, Winter 1997, is examined this week. Tomes' provides an excellent measuring tool for what constitutes an effective penalty phase presentation.

Counsel must adduce mitigation evidence in death penalty cases for three related reasons: (1) because the Constitution requires procedural protections over and above those required in other criminal trials; (2) because the sentencing authority must consider the defendant's background before imposing a death sentence, and; (3) because, as a practical matter, the defendant has little chance of avoiding the death penalty unless defense counsel adduces evidence to counter the hideous nature of the crime and the prosecution's aggravation evidence. Because of the difficulty of finding and evaluating mitigation evidence, the use of a mitigation expert greatly facilitates counsel's ability to adduce such evidence.

A. Because of the Irrevocable Nature of the Death Penalty, the Constitution Requires Mitigation Evidence

Death is different. Cases are legion in which the justices of the supreme court have endorsed the proposition that the death penalty is different from other punishments.2 Because it is an irrevocable penalty once carried out, the law specifies special procedural requirements over and above those required in other criminal trials. Although death penalty sentencing procedures differ from jurisdiction to jurisdiction, the United States Supreme Court has mandated that no court may impose a death sentence under "a sentencing procedure that created a substantial risk that it would be imposed in an arbitrary and capricious manner. "3

B. The Sentencing Authority Must Consider the Defendant's Background Before Imposing a Death Sentence

To avoid the imposition of a death penalty in an arbitrary and capricious manner, the court insists on individualized sentencing, which requires that the sentencing authority consider the defendant's background before imposing a death sentence.4 At least one commentator has explained the need for individualized sentencing as follows:

The Supreme Court has mandated that before someone may be sentenced to death, the [sentencing authority] must consider the life and background of the individual charged. This constitutional requirement of "individualized sentencing" addresses two fundamental concerns: the need to provide the [sentencing authority] with adequate information before they impose any sentence of death, and the need to ensure that the basic humanity of the individual against whom the death penalty is sought is not completely ignored.5

Put another way, the sentencing authority must consider the defendant as an individual human being.6 Although some state sentencing statutes specify only a limited number of mitigating factors,7 the supreme court has held that the sentencing authority may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. "8 Thus, if the defendant's counsel is to be adequate, he or she must conduct a thorough investigation into the defendant's life and present any mitigating evidence9 to the sentencing authority. Defense counsel may offer a broad range of information in mitigation, including family background, emotional disturbance, and the like.'o In addition,

[d]efense counsel must not simply rely on the guidelines for a defense provided by the mitigating circumstances enumerated in the statute. It is crucial that counsel look beyond the statute for information that will convince the sentencing authority to spare the defendant's life. Indeed, the duty of defense counsel should be to fulfill the mandate of Lockett and Eddings and "present that which reasonably increases the likelihood of a favorable outcome. " "

C. The Defendant Has Little Chance of Avoiding the Death Penalty Without Mitigation Evidence

As a practical matter, the defendant probably has little or no chance of avoiding the death sentence unless the defense counsel gives the jury something to counter both the horror of the crime and the limited information the prosecution has introduced about the defendant.'2 Thus, defense counsel must conduct an extensive investigation into the defendant's background-a task that may be difficult given that, first, law school prepares one to be an advocate, not an investigator, and second, funds may not be available to hire trained investigators. To the extent possible, however, the use of trained investigators, including mental health and mitigation experts, will greatly facilitate gathering information that may be sufficient mitigation to save the client's life.

D. The Use of a Mitigation Expert Can Greatly Facilitate Counsel's Ability to Find and Present Mitigation Evidence

The need for mental health professionals in death penalty cases is obvious. Besides the possibility that they will be able to form a diagnosis that would enable defense counsel to present an insanity defense, they can uncover mental diseases or defects that, although perhaps not arising to the level of a defense, may mitigate the offense.13 Even though a psychiatrist or a psychologist may diagnose a mental disease or defect, effective mitigation demands more. One professor explained this duty as follows:

The jury in a capital case is instructed to consider the background and life of the defendant. In order to effectively present this information, counsel must prepare a complete social history of the defendant by engaging in a comprehensive investigation dissimilar to routine investigative efforts used in non-capital criminal cases. The time and resources required for a thorough investigation are tremendous. Counsel must interview all members of the extended family as well as neighbors, friends and associates. Investigators must explore personal and sensitive issues that many are reluctant to discuss. As the defendant's life begins to unfold, counsel must discover and follow any "paper trail," learning not only where the defendant has been, but reviewing all documents along the way. Counsel cannot begin to evaluate the importance of this evidence until the investigation is complete and the entire life unfolds.14

Thus, defense counsel needs the assistance of a mitigation expert to collect and compile this complete social history. Commentators and experts have urged that this investigation begin with the onset of the client's life and include evidence that (1) portrays any positive qualities the defendant possesses, (2) makes the defendant's violent acts "humanly understandable in light of his past history and the unique circumstances affecting his formative development,"'5 (3) tends to show that his life in prison would likely be productive, or at least not be threatening to others, (4) rebuts the prosecutor's evidence of aggravating circumstances, and (5) provides evidence of extenuating circumstances surrounding the capital crime itself.'6

Little doubt exists that the Constitution, death sentencing procedures, and the practical necessity of countering the hideous evidence of the crime and the prosecutor's aggravating evidence all require the defendant to, when possible, introduce mitigating evidence. A mitigation expert can certainly help counsel accomplish this often daunting task.

III. What Is a Mitigation Expert and What Can Such an Expert Do to Assist Defense Counsel?

With the need for a mitigation expert established, the next step is finding out who are they and how can they help defense counsel.

A. What Is a Mitigation Expert?

Perhaps the best definition of a "mitigation expert" is found in the definition of a "mitigation investigator" in State v. Langley.'7 In that case, the Supreme Court of Oregon held that the trial court did not abuse its discretion in failing to approve the defendant's request for a mitigation investigator.'8 The court apparently adopted the defendant's description of a mitigation investigator as "an individual who specializes in compiling potentially mitigating information about the accused in a capital case," noting that "[i]t is a relatively new area of expertise, developed to aid capital defendants in presenting favorable evidence to the factfinder in the penalty phase of the trial."'9 Although that somewhat circular definition is probably as good as any, other authorities provide more guidance as to what a mitigation expert is. Virginia gives some statutory guidance in Section 19.2-264.3:1 of the Virginia Code, which provides for the use of Commonwealth funds to pay for expert assistance when an indigent defendant's mental condition is relevant to sentencing.20 In such cases,

the court shall appoint one or more qualified mental health experts . . . to assist the defense in the preparation and presentation of information concerning the defendant's history, character, or mental condition, including (i) whether the defendant acted under extreme mental or emotional disturbance at the time of the offense; (ii) whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly impaired at the time of the offense; and (iii) whether there are any other factors in mitigation relating to the history or character of the defendant or the defendant's mental condition at the time of the offense.

The statute specifies that the mental health expert shall be: (i) a psychiatrist, a clinical psychologist, or an individual with a doctorate degree in clinical psychology who has successfully completed forensic evaluation training as approved by the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services and (ii) qualified by specialized training and experience to perform forensic evaluations.22

Although this statute specifies the requirements for a government-paid expert, its list of qualifications seems too restrictive in that they do not include sociologists. Aside from perhaps a greater expertise in diagnosing mental disease or defect, psychiatrists and psychologists may be far less able to investigate a defendant's background to develop mitigation evidence than a trained clinical social worker. One law review article explained the special expertise of the forensic social worker as follows: "The special training of the forensic social worker, which offers the perspective that integrates family history and social history to explain its impact on the defendant's social functioning, can be critical to obtaining sensitive and deep-seated [mitigation] information. "23

Courts have certainly qualified sociologists,24 as well as psychiatrists,25 and psychologists,26 as mitigation experts. In one case, a reporter speculated that a defendant who came within one vote of being sentenced to death avoided that fate because his defense team hired a mitigation expert, a clinical social worker, to oversee the collection of mitigation evidence.2' Considering the evidentiary requirements for expert testimony (knowledge, skill, experience, training, or education under Federal Rule of Evidence 702, for example), apparently any psychiatrists, psychologists, clinical sociologists, and clinical social workers could have the knowledge, skill, experience, or training both to conduct the investigation and to qualify as a testifying expert. Thus, I propose the following definition for a mitigation expert: a person qualified by knowledge, skill, experience, or training as a mental health or sociology professional to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade the sentencing authority in a capital case that a death sentence is an inappropriate punishment for the defendant.28

B. What Can a Mitigation Expert Do to Assist Counsel?

The above definition of a mitigation expert also largely answers what a mitigation expert can do for the defense counsel and, ultimately, his client. A review of the areas such an expert should investigate may help counsel manage the mitigation effort:

Maternity and birth records. A problem pregnancy, involving, for example, prolonged pre-term labor, can result in bleeding in the germinal matrix of the fetus's brain that can cause adverse effects running from mild developmental delay to profound mental retardation.29

School records. School records may document both reasons for subsequent problems, such as learning difficulties, or laudatory information, such as participation in sports or other activities, that can help "humanize" the defendant. Such records may contain early psychological evaluations of the defendant.30

Other agencies. One mitigation expert found references in the defendant's school records to a foster care agency that took care of one of the defendant's siblings. Those records contained considerable information detailing the family's problems, including his mother's drug addiction.3'

Military records. Military records can provide both explanations for subsequent crimes, such as war or training related injuries, and laudatory information, such as awards and decorations, letters of commendation, and the like.

Medical records of the defendant and his or her family. If the defendant's mother's medical records document injuries consistent with spousal abuse, for example, witnessing such abuse could have profound effects on the defendant and provide an explanation of his or her violent conduct. Relatives' medical records of psychiatric problems may be important because some studies indicate that a "predisposition to psychosis" could exist.32 The defendant's medical records may document that he or she was the victim of abuse or may document head injuries that may have resulted in a mental disease or defect.

Prison records. Prison records may show, for example, that the defendant adjusted well and was not violent in prison, a fact that would help make the case for life imprisonment, as opposed to death.33

Employment history. Similar to military records, employment records can show such factors as work-related injuries that may provide an explanation for the defendant's behavior or accomplishments to humanize the defendant.

Interviews with the defendant's immediate and extended family, friends, neighbors, teachers, clergy, coaches, employers, co-workers, physicians or other therapists, and any lead suggested by any of the above records. The mitigation expert must go beyond close family members34 and friends and interview others who do not have such a stake in the trial so as to get accurate information untainted by the desire of the family and others to hide their dirty laundry. One commentator noted:

The defendant or his family may distrust the attorney or may not want private facts they view as shameful or embarrassing aired publicly in a crowded courtroom. The defendant and his family may lack awareness that certain facts about the defendant's upbringing might be considered mitigation, making the attorney's investigation more difficult.35

Physical and psychological testing. The need for such testing is obvious: not only may such evidence mitigate the crime, but it may even exculpate the defendant or reduce the crime from premeditated murder to a lesser form of homicide.36

Evidence of drug and alcohol abuse. Again, such evidence may either provide a defense based on diminished capacity or at least mitigate the offense.

Criminal record or lack thereof. Obviously, the lack of a criminal record is powerful mitigation. Even the existence of a criminal record may, however, offer clues about the underlying psychosocial problems that have brought the defendant to the penalty phase of a murder trial.

Evidence about the victim and his or her family to attempt to rebut victim impact evidence adduced by the prosecution. Victim impact evidence is evidence about the effect of a crime on its victims, their relatives, and the community. It typically excludes information that would be a statutory aggravating factor or information that the defendant knew at the time of the crime.3' In an appropriate case, defense counsel may wish to rebut this evidence because it clearly can make imposition of the death penalty more probable.38

Andrea Lyon, an Illinois attorney with the Cook County public defender's office, and an expert on defending death penalty cases, testified that attorneys should start the mitigation investigation the same day they receive the case and must examine all available records at the outset of the case.39 She admonishes the attorneys to interview all persons mentioned in the records and consult with neurologists, psychiatrists, sociologists, and social workers with a view to "putting all [the] pieces into some kind of psychological picture [of defendant]."40

The magnitude of the effort to gather all this information makes it difficult for defense counsel-even the two-lawyer team many experts advocate as necessary for death penalty cases41-to prepare for both the guilt and the penalty phases without expert assistance. Thus, defense counsel should use such assistance to develop both defense and mitigation evidence.

Counsel should assemble a team to try any death penalty case. If possible, the team could include a forensic social worker. In addition to assisting with the investigation into the defendant's background, the forensic social worker can help the attorney communicate with the client, the client's family, and other witnesses. Law school simply does not prepare lawyers to seek out sensitive information. Advocacy skills bear little resemblance to the investigative skills necessary to conduct in-depth interviews.

The special training of the forensic social worker, which offers the perspective "that integrates family history and social history to explain its impact on the defendant's current functioning," can be critical to obtaining sensitive and deep-seated information.42

ERRATA

The Death Penalty Information Center reports:

NEW VOICES: California Gubernatorial Candidate Open to Moratorium

Richard Riordan, a Republican currently campaigning for Governor of California, recently stated that he supports the death penalty but would be open to halting executions in the state if it were shown that they were being unfairly imposed. "Are we applying the death penalty fairly, honestly?" asked Riordan, the former mayor of Los Angeles. "You can't be afraid to look at things like that." (San Jose Mercury News, 1/24/02) California currently has the largest death row population in the nation, with more than 600 inmates. See also, New Voices.

New North Carolina Law Secures Convictions and Saves Money

A new law in North Carolina allows prosecutors to seek a first-degree murder conviction with a sentence of life in prison without parole instead of the death penalty. "I think that was an excellent change in the law," said District Attorney David Flaherty Jr. "I think we'll have more first-degree convictions. It will cut down on our backlog." Previously, prosecutors were required to seek the death penalty if one or more aggravating factors were present in a murder case. The new law allows prosecutors to secure a conviction, sometimes through a plea bargain, sparing the defendant a possible death sentence, and keeping the victims' families from the pain of a trial and subsequent appeals. It will also save the state considerable amounts of money. According to a 1993 Duke University study, seeking the death penalty adds more than $300,000 to the cost of a non-capital case, more than the $166,000 savings in prison costs. (Charlotte Observer, 1/23/02) See also, Costs of the death penalty.

NEW VOICES: Ann Landers Opposed to the Death Penalty

In her nationally syndicated column, Ann Landers stated that she was "strictly opposed to the death penalty, no matter how heinous the crime." Landers, who was responding to a letter from the Constitution Project, noted her support for the Project's proposed legislative reforms of the death penalty, calling them "compassionate and sensible." (Washington Post, 1/27/02)

The Constitution Project's Death Penalty Initiative, a bipartisan committee of death penalty supporters and opponents concerned about the risks of wrongful executions, recommended 18 reforms for the federal and state death penalty systems. For more information, visit the Constitution Project's Web site.

California Inmate Executed Despite Trial Lawyer's Record of Ineffectiveness

California executed Stephen Wayne Anderson on January 29, despite evidence that his trial attorney was unprepared. Anderson's case was one of the first three capital cases defended by Sherman Ames. In Anderson's case, Ames did not meet with him until the morning of the trial and called few mitigating witnesses during the sentencing phase. In the other two cases, both defendants had their sentences overturned due to Ames' ineffectiveness. In one case, Ames declared himself ready for trial after working 12.5 hours on the case, and argued to the jury that executing the defendant would be a favorable outcome for him.

Although the federal appeals court has recently decided to allow Anderson's execution to go forward, six of the court's judges believe Anderson' s case deserves closer scrutiny in light of Ames' prior ineffectiveness. "Having twice determined that Ames was constitutionally ineffective in representing capital clients. . . we should not now permit an execution to proceed in the case of still another capital defendant whose life the state has placed in Ames' hands, at least not without reviewing the case en banc," wrote Judge Stephen Reinhardt in his dissent. (The Recorder, 1/22/02) For more information on the case, visit Death Penalty Focus' s Web site.

U.S. Supreme Court Stays Florida Execution in Light of Arizona Case

Florida death row inmate Amos King, who was scheduled for execution on January 24, was granted a stay of execution by the U.S. Supreme Court on Wednesday. The Court granted the reprieve in light of its decision earlier this month to hear Ring v. Arizona (see below) to determine the constitutionality of having a judge, rather than a jury, decide the sentence in a death penalty case. In Florida, a trial judge has the power to impose a death sentence, even if the jury recommends a life sentence. If the Court rules that Arizona's law is unconstitutional, it could potentially affect the death penalty laws in Florida and seven other states. (Associated Press, 1/23/02) See also, Supreme Court.

British Authorities Oppose Capital Punishment for Detainees

Chris Patten, the European Commissioner for External Affairs, said that it was inconceivable that the three British citizens being held at the U.S. naval base at Guantanamo Bay could be subject to capital punishment after being tried in a military tribunal. "I just think that would be a way of losing international support and losing the moral high ground that the international coalition has," said Patten.

Foreign Office Minister Ben Bradshaw added: "The British Government regularly, in cases where the death penalty may be imposed on British citizens, makes our views on the death penalty very plain to the American authorities. We are opposed to the death penalty." (BBC News, 1/22/02) See also, DPIC's forum on September 11.

INTERNATIONAL DEVELOPMENTS: De Facto Moratorium on Executions in Cuba

The Cuban Commission on Human Rights and Reconciliation has reported that the Cuban government has applied a de facto moratorium on executions. Currently, about 50 prisoners are under sentence of death in Cuba, but the country has not executed anyone since 2000. "This represents a very important and positive change from the macabre record of thousands of executions carried out during the first 42 years of the current government," said the Commission. The Commission is urging Cuban authorities to switch to a formal moratorium and commute the sentences of all death row inmates as soon as possible. (Agencia EFE, 1/9/02) See also, International Death Penalty.

Innocence Project Announces 100th DNA Exoneration

There have been 99 people exonerated and freed from death row since 1973 (see below). Coincidentally, there has also been a growing number of people freed from prison as a result of DNA testing. The number of inmates freed because of DNA testing has now reached 100, with the release of Larry Mayes from prison in Indiana. "This DNA revolution," said Peter Neufeld, co-founder of the Innocence Project at Benjamin Cardozo Law School, "it's made clear our criminal justice system is not as reliable as we always thought it was." Mayes spent 21 years in prison before the Innocence Project secured his release. (Associated Press, 1/17/02) For more information on Larry Mayes' case, see the Innocence Project's Web page on the case. See also the Innocence Project's Press Release and the Justice Project's Statement.

The 100th exoneration from death row will likely occur in the next new few months. Of the 99 wrongly convicted inmates released from death row, DNA testing played a substantial role in the exoneration of 11 of the defendants. For more information, see Innocence and the Death Penalty.

Kyrgyszstan Announces Plan to Abolish the Death Penalty

Kyrgyszstan President Askar Akayev signed into law an extension of the country's moratorium on executions and announced plans to eliminate capital punishment in an effort to confirm the nation's "commitment to basic human rights and freedoms." Earlier this year, the Central Asian country adopted a human rights program which provided that the death penalty would be abolished by 2010. (New York Times, 1/17/02) See also, International Developments.

UPCOMING PROGRAM: "And then One Night: The Making of Dead Man Walking"

Since January 14th, local PBS stations have been televising, "And then One Night: The Making of Dead Man Walking." This program goes behind the scenes of the San Francisco Opera production of "Dead Man Walking." It provides viewers the opportunity to hear from real-life families affected by capital punishment and from the artists who were involved with the project. A Web site about the program offers a behind-the-scenes look at the launching of this provocative original opera and allows visitors to explore their own views on capital punishment. The site also provides information on local air times for the program. (KQED Public Broadcasting 01/02)

NEW RESOURCES: Amnesty International Report Condemns 25 Years of Executions in the U.S.

On January 17, Amnesty International released a new report, "Arbitrary, Discriminatory, and Cruel: An aide-mémoire to 25 Years of Judicial Killing," a report marking the 25th anniversary of the resumption of executions in the U.S. The report focuses on some of the over 750 executions in the U.S. since 1976, citing specific cases to illustrate instances where the condemned was a juvenile, suffered from mental retardation, or was a foreign national denied consular rights. Also highlighted are cases where the defendant was executed despite doubts of his or her guilt, or received inadequate representation. Since the death penalty was reinstated in the U.S., more than 60 countries have abandoned the use of the death penalty. (Amnesty International, Press Release, 1/17/02) Read the entire report.

NEW VOICES: Support for Moratorium in Maryland

As a corrections officer for 27 years, Willie "Sonny" Leggett says he supports a moratorium on executions in Maryland because he has seen prisoners change their lives for the better. "I really don't believe that the death penalty serves a purpose. Why take a life? I just don't think it's right. Plus, you might get innocent people killed," he said.

The fear of wrongful executions is not the only reasons Marylanders are deadlocked on whether the state should have a moratorium. Del. Salima S. Mariott, (D-Baltimore), who sponsored last year's moratorium bill, believes, "This is an issue of racial disparity." While Marylanders are split on the moratorium, the support for a halt on executions is 65% among African Americans. (Baltimore Sun, 1/9/02) See also, Public Opinion and New Voices.

Florida Capital City Passes Death Penalty Moratorium Resolution

The City Commission of Tallahassee passed a resolution calling for a moratorium on executions in Florida by a 3-1 vote. "The figures and research done so meticulously by the American Bar and others show that the system is flawed," said Commissioner Charles Billings, a supporter of capital punishment who nevertheless voted for the moratorium. "The death penalty is either something that has to work correctly and bring justice or you can't do it." (St. Petersburg Times, 1/13/02) See also, New Voices.

The Tallahassee resolution comes only days after Florida released its 22nd wrongfully convicted death row inmate, Juan Melendez, who spent 18 years on the state's death row (see below). See also, Innocence and the Death Penalty.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

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OTHER RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, there are a few legal professional only discussion groups that can help you with any questions you might have (please drop an email to find out more)

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