This week's edition examines the three separate state court victories, all three of which are should reads that offer good insights into commonly recurring issues in capital litigation. The Washington Supreme Court in Personal Restraint Petition of Brett offers an outstanding review of the proof required in a capital case to show ineffective. assistance of counsel & how to use expert counsel to show ineffectiveness. The Colorado Supreme Court in Colorado v. Martinez clarified how both the three judge sentencing panel & the state Supreme Court operate under Colorado capital sentencing scheme holding that sentencing judges have broad, virtually unreviewable, leeway in making a decision for life. In Johnson v. Tennessee relief was had as to sentence on the grounds that the prosecution withheld Brady materials relating to the sole aggravating factor. All opinions are available at Lexisone.com.

An interesting development is noted in the area of civil suits alleging prosecutorial misconduct. Justice Thomas has dissented from the denial of certiorari in Michaels v. McGrath (a New Jersey prosecution that ended up in civil suit), stating that section 1983 seemingly provides a method for suing prosecutors who subvert justice.

No capital federal cases are noted.

The Feature this week's offers links to Findlaw.com's annotated and hyperlinked analysis of the federal constitution and the various amendments. The Findlaw analysis is a great place to start when dealing with areas of federal constitutional law that you are unfamiliar with and a good source for black letter law case summaries.

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com.

Supreme Court

Michaels v. McGrath (Thomas, J. dissenting from the denial of certiorari) Justice Thomas in an unusual move for his chambers, issued a dissent in a prosecutorial misconduct case out of New Jersey, stating that section 1983 seemingly provides a method for suing prosecutors who subvert justice.

Petitioner then brought this action against respondents under Rev. Stat. section1979, 42 U. S. C. section1983. The District Court granted respondents’ motion to dismiss, see Michaels v. New Jersey, 50 F. Supp. 2d 353 (NJ 1999), & the Third Circuit affirmed, 222 F. 3d 118 (2000). The Third Circuit held that recovery was barred because the coercion of child witnesses was a violation only of the witnesses’ rights, & not of any right held by petitioner. & although petitioner’ s due process rights were violated when the testimony was used at trial, the court held that the presentation of testimony fell squarely within the doctrine of absolute prosecutorial immunity. See id., at 121–122, citing Imbler v. Pachtman, 424 U. S. 409 (1976).

This view accords with that of the Seventh Circuit, see Buckley v. Fitzsimmons, 20 F. 3d 789 (1994), but it is in tension with the approach taken by at least two other Circuits. See, e.g., Clanton v. Cooper, 129 F. 3d 1147 (CA10 1997); Zahrey v. Coffey, 221 F. 3d 342 (CA2 2000). In Zahrey, the Second Circuit took the position that a plaintiff does state a claim under section1983 when he shows that prosecutorial misconduct in gathering evidence has led to a deprivation of his liberty. The intervention of a subsequent immunized act by the same officer does not break the chain of causation necessary for liability.

I believe that the Second Circuit’ s approach is very likely correct. . .

Captial Case Relief Granted

Personal Restraint Petition of Brett (Wash) (IAC) The record establishes that substantial medical & psychiatric opinion was available at the time of Brett's trial to support a defense theory. The record further establishes that counsel failed to conduct a reasonable investigation into these medical & mental conditions. Finally, the reference hearing's expert legal testimony establishes that counsel, by failing to take any meaningful steps to develop the evidence available for use in Brett's defense, deprived Brett of effective counsel.

A personal restraint petition will be granted [*7] if the petitioner establishes actual & substantial prejudice resulting from a violation of his or her constitutional rights or a fundamental error of law. In re Personal Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998), rev'd sub nom. on other grounds by Benn v. Wood, 2000 U.S. Dist. LEXIS 12741, No. C98-5131RDB, 2000 WL 1031361 (W.D. Wash. June 30, 2000). The burden of proof is a preponderance of the evidence. In re Personal Restraint of Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990) (citing In re Personal Restraint of Hews, 99 Wn.2d 80, 89, 660 P.2d 263 (1983)). At Brett's reference hearing, a number of medical & psychiatric professionals testified for the petitioner. The experts offered testimony concerning Brett's medical & psychiatric conditions & whether such medical evidence was available at the time of defense counsel's trial preparation. . . .

The State has neither presented contrary evidence nor argued the above medical evidence was unavailable. Therefore, the above evidence establishes what defense counsel would have known had it conducted a reasonable investigation into Brett's medical & psychological conditions.

At the reference hearing, Brett also presented uncontroverted testimony of three legal experts to clarify the objective standard of reasonable performance sufficient to meet the competence requirements of the Sixth Amendment to the United States Constitution & article I, section 22 (amendment 10) of the Washington State Constitution. All three legal experts concluded that defense counsel's failure to seek the timely appointment of co-counsel was ineffective to the extent it prevented defense counsel from providing a mitigation package to the prosecutor prior to the State's filing of the death penalty notice. Furthermore, the failure to seek the timely appointment of co-counsel [*12] contributed to defense counsel's subsequent failure to competently investigate Brett's severe medical & mental disorders. . . .

In order to establish what should have been done, Brett called three legal experts to testify accordingly at the reference hearing. Miriam Schwartz, a federal public defender & an attorney experienced in trying homicide cases, testified concerning the performance of Brett's trial counsel. Schwartz stated that Brett received ineffective assistance of counsel because Dane & Foister "did too little, too late . . . ." 10 Bankr. Reference Hr'g Report of Proceedings (Nov. 12, 1998) at 1111. Schwartz based her conclusion primarily on the following factors: (1) Dane failed to prepare a mitigation package to present to the prosecutor before the filing of the death penalty notice; (2) defense counsel did not immediately or adequately explore Brett's mental health problems or seek the appointment of mental health experts; (3) Dane did not timely seek the appointment of co-counsel; (4) defense counsel did not timely seek appointment of investigators; (5) defense counsel did not determine Dr. Stanulis was unqualified to render the diagnoses they sought, nor move the court to appoint a new expert; (6) defense counsel did not seek to continue the trial date to more fully assess Brett's diabetes [*16] or fetal alcohol exposure; & (7) defense counsel did not adequately prepare their approach for the penalty phase. Schwartz testified that any Clark County local practices that might have impeded defense counsel's efforts are not relevant in evaluating the Sixth Amendment standard, which is a constitutional standard & not a regional standard.

Joan M. Fisher, a supervising attorney for the capital habeas corpus unit in Moscow, Idaho, & former prosecutor for King County, testified at the reference hearing on the performance of Brett's trial counsel. Fisher testified that Brett received ineffective assistance of counsel in part for the following reasons: (1) Dane did not promptly seek the appointment of co-counsel; (2) defense counsel did not promptly seek the appointment of investigators; & (3) defense counsel failed to retain the services of a qualified expert on fetal alcohol syndrome or effect. Fisher based her opinions upon her personal experience, & the American Bar Association Guidelines for the Appointment & Performance of Counsel in Death Penalty Cases (Feb. 1989).

Professor John A. Strait, an experienced criminal litigator, consultant, & professor of law [*17] at Seattle University School of Law, also testified at the reference hearing concerning the performance of Brett's trial counsel. Professor Strait opined that defense counsel "did not meet the standard of care of a reasonably competent criminal trial lawyer in Washington in investigating & preparing for the penalty phase or otherwise the mental status testimony of Mr. Brett." 11A Reference Hr'g Report of Proceedings (Nov. 13, 1998) at 1329-30. According to Professor Strait, the defense fell below the standards of Sixth Amendment competence by, among other things: (1) not promptly seeking the appointment of co-counsel; (2) failing to present a mitigation package to the prosecutor before filing of the death penalty notice; (3) failing to promptly investigate mental health issues; (4) failing to seek the earlier appointment of investigators; (5) failing to seek the earlier appointment of mental health experts; (6) failing to seek the appointment of qualified mental health experts, & failing to request a continuance to locate such experts; & (7) discussing fetal alcohol issues in the penalty phase of Brett's trial without calling a qualified expert. Professor Strait testified that [*18] the Sixth Amendment standard of competence does not vary from county to county and, even if the defense believed the trial court would deny a continuance motion based upon local practices, counsel nonetheless should have filed the motion to establish a record.

The testimony & evidence presented at the reference hearing, along with the complete record before us, establish the following: (1) defense counsel knew Brett had physical & mental problems; (2) medical evidence was available at the time of trial preparation if defense counsel had conducted a reasonable investigation; (3) defense counsel failed to conduct a reasonable investigation into Brett's physical & mental conditions; & (4) defense counsel's performance was not reasonable under all of the circumstances of this case. Therefore, Brett received ineffective assistance of counsel under Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. When defense counsel knows or has reason to know of a capital defendant's medical & mental problems that are relevant to making an informed defense theory, defense counsel has a duty to conduct a reasonable investigation into the defendant's medical & [*19] mental health, have such problems fully assessed and, if necessary, retain qualified experts to testify accordingly.

Consistent with this approach is Caro v. Calderon, 165 F.3d 1223 (9th Cir.), cert. denied, 527 U.S. 1049, 119 S. Ct. 2414, 144 L. Ed. 2d 811 (1999). In Caro, counsel was aware of Caro's extraordinary acute & chronic exposure to neurotoxicants, yet failed to consult either a neurologist or a toxicologist, both being experts on the effects of chemical poisoning. Caro, 165 F.3d at 1226. Counsel further failed to provide the "experts" who did examine Caro with the information necessary to make an accurate evaluation of Caro's neurological system. Caro, 165 F.3d at 1226-27. The Ninth Circuit discussed counsel's ineffective assistance in relation to both the guilt & penalty phases, although the court ruled only on the penalty phase. Caro, 165 F.3d at 1228. The court found the type of mitigating evidence omitted to be precisely the type of evidence most likely to affect a jury's evaluation of Caro's punishment. Caro, 165 F.3d at 1227. Concluding Caro had received ineffective assistance of counsel, the [*20] court stated:

Counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert.

Caro, 165 F.3d at 1226; see also Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997), cert. denied, 523 U.S. 1145, 140 L. Ed. 2d 1104, 118 S. Ct. 1856 (1998).

We agree with the Ninth Circuit's approach in Caro, which is consistent with Strickland, & find it analogous to the present case. Here, defense counsel did almost nothing. The only expert sought by counsel to evaluate Brett's fetal alcohol effect was a psychologist wholly unqualified to render a medical diagnosis of Brett. Dr. Stanulis informed defense counsel of this fact immediately. However, neither Dane nor Foister moved for the appointment of a qualified expert. Whatever testimony Dr. Stanulis could have offered was further compromised by defense counsel's failure to deliver Brett's records to him until two days before trial. See Bloom, 132 F.3d at 1277-78 (failure to gather [*21] or deliver relevant records to examining physician was ineffective assistance of counsel). Had the available medical evidence been pursued by counsel at the time of trial preparation, at least some type of informed defense theory could have been argued in both the guilt & penalty phases. See Sanders, 21 F.3d at 1456-57; Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998) (failure to develop penalty phase presentation is a deficiency in trial preparation, not trial strategy), cert. denied, 528 U.S. 922, 145 L. Ed. 2d 239, 120 S. Ct. 285 (1999) . CONCLUSION The record & reference hearing testimony establish that medical & psychiatric opinion was available to support a defense theory at the time of Brett's trial preparation. Had counsel performed a reasonable investigation into Brett's medical & psychiatric conditions, counsel would have discovered such evidence & opinion existed in 1991 & 1992. Furthermore, at the reference hearing all three legal experts testified that failure to seek appointment of co-counsel was ineffective to the extent it prevented defense counsel from providing a mitigation package [*22] to the prosecutor prior to the filing of the death penalty notice. Failure to seek appointment of co-counsel further contributed to defense counsel's subsequent failure to competently investigate Brett's severe mental disorders.

After considering this testimony, we conclude that when counsel knew or had reason to know of a mental defect or illness affecting their client in a possible death penalty case, counsel could & should have: (1) promptly sought the appointment of co-counsel; (2) presented a mitigation package to the prosecutor before a death penalty notice was filed; (3) promptly investigated relevant mental health issues; (4) sought a timely appointment of investigators; (5) sought a timely appointment of qualified mental health experts; & (6) adequately prepared for the penalty phase by having relevant mental health issues fully assessed & by retaining, if necessary, qualified mental health experts to testify accordingly. While the failure to perform one of these actions alone is insufficient to establish ineffective assistance of counsel, the failure to perform the combination of these actions establishes that defense counsel's actions in Brett's trial were not [*23] reasonable under the circumstances of the case.

Therefore, we find Brett's counsel's representation "fell below an 'objective standard of reasonableness.'" Caro, 165 F.3d at 1226 (quoting Strickland, 466 U.S. at 688). Counsel did not conduct a reasonable investigation into Brett's medical conditions & the possible mental effects of such severe conditions. Thus, Brett's counsel was unable to make informed decisions about how to best represent him in both the guilt & penalty phases of the trial. We find Brett has shown by a preponderance of the evidence there is a reasonable probability that, but for counsel's errors, the results of his trial would have been different.

Colorado v. Martinez(Colo)(judicial override) Colorado law does not permit the state Supreme Court to override a decision for life by a three judge panel to a decision of death, even where the split is 2-1 for death.

To make sentencing decisions, each sentencing judge must consider the certified trial transcripts & the evidence presented by the parties at the sentencing hearing. section16-11-103(1)(a.7). A capital sentencer must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh proven statutory aggravating factors. People v. Tenneson, 788 P.2d 786, 790-96 (Colo. 1990). [*12] In its examination of the appropriateness of a sentence of death, the three-judge panel follows the same four-fold inquiry that the pre-amendment statutory scheme assigned to the jury. n6

First, the panel must determine if at least one of the statutory aggravating factors exists. Section16-11-103(2)(a)(I). If the panel does not unanimously agree that the prosecution has proved the existence of at least one statutory aggravator beyond a reasonable doubt, the panel must sentence the defendant to life imprisonment. section16-11-103(2)(b)(I). This serves to narrow the group of individuals convicted of first degree murder who are eligible for the imposition of the death penalty. People v. Dunlap, 975 P.2d 723, 736 (Colo. 1999). Second, if the panel finds that the People prove at least one statutory aggravating factor, [*13] they must then consider whether any mitigating factors exist. section16-11-103(2)(a)(II); Dunlap, 975 P.2d at 736. "There shall be no burden of proof as to proving or disproving mitigating factors," section16-11-103(1)(d), & the panel need not unanimously agree upon the existence of mitigating factors. See McKoy v. North Carolina, 494 U.S. 433, 435, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990) (holding that sentencer is permitted to consider all mitigating evidence); Mills v. Maryland, 486 U.S. 367, 384, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (same). Third, the panel must determine beyond a reasonable doubt whether "sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist." section16-11-103(2)(a)(II); Dunlap, 975 P.2d at 736. Fourth, & finally, if the panel finds that any mitigating factors do not outweigh the proven statutory aggravating factors, it must decide whether the defendant should be sentenced to death or to life imprisonment. section16-11-103(2)(a)(III); Dunlap, 975 P.2d at 736; see also Tenneson, 788 P.2d at 789 (articulating that the jury [*14] must address these four factors to properly exercise its function in a capital sentencing proceeding).

The judges may consider all admissible evidence presented by either party that the panel "deems relevant to the nature of the crime, & the character, background, & history of the defendant, including any evidence presented in the guilt phase of the trial." section16-11-103(1)(b). The panel members' decisions rest upon each panelist's independent assessment of the relevant admissible evidence. Unlike the verdict of a traditional jury, the sentence of the three-judge panel, "whether to death or to life in prison, shall be supported by specific written findings of fact based upon the circumstances as set forth in subsections (4) & (5) of this section [addressing mitigating & aggravating factors] & upon the records of the trial & the sentencing hearing." section16-11-103(2)(c). . . . . .

Having concluded that we have no jurisdiction under section 16-12-102(1), we must now address the prospect of converting this inappropriate appeal into an original proceeding under C.A.R. 21. See Young, 814 P.2d at 838-39.

This court may use an original proceeding under C.A.R. 21 to "test whether the trial court is proceeding without or in excess of its jurisdiction, or to review a serious abuse of discretion when an appellate remedy would not be adequate." Id. at 838. [*16] This court exercises its original jurisdiction under C.A.R. 21 when a pretrial interlocutory ruling interferes with a party's ability to litigate the merits of the case, People v. Dist. Court, 793 P.2d 163, 166 (Colo. 1990), & when an appeal does not provide a plain, speedy, & adequate remedy for the party. Weaver Constr. Co. v. Dist. Court, 190 Colo. 227, 230, 545 P.2d 1042, 1044 (1976). This court has discretion to grant relief under C.A.R. 21. Young, 814 P.2d at 838. Moreover, we have the authority on our own motion to suspend the rules of appellate procedure in a particular case in the interest of expediting decisions or for other good cause shown. C.A.R. 2.

Previously, this court has exercised its original jurisdiction to review trial court rulings dealing with death penalty issues. Young, 814 P.2d at 838 (finding original jurisdiction appropriate as the case was the first request for appellate review of the constitutionality of the 1988 amendments to the death penalty statute); People v. Dist. Court, 196 Colo. 401, 403, 586 P.2d 31, 32 (1978) (exercising original jurisdiction to address [*17] & ultimately affirm lower court decisions finding the 1973 Colorado death penalty statute unconstitutional).

Original jurisdiction allows this court to intervene in a case in which the trial court abuses its discretion in a way that cannot be later remedied on appeal. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 975 (Colo. 1999). It is extraordinary relief, limited in purpose & availability, & the court retains the discretion to choose not to exercise it. Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo. 1992). It has its origins in the common law writs such as habeas corpus, mandamus, quo warranto, certiorari & injunction. See Colo. Const. art. VI, section3. This court has stated that it will not exercise its original jurisdiction except in cases of great public importance, or in cases where not to do so would amount to a denial of justice. Higgs v. District Court, 713 P.2d 840, 849 (Colo. 1985) (allowing original jurisdiction to address issues of significant public importance that we have not yet examined); Groendyke Transp., Inc. v. Dist. Court, 140 Colo. 190, 195, 343 P.2d 535, 537 (1959) [*18] (noting original jurisdiction appropriate to prevent denial or miscarriage of justice).

This is not such a case. There is no ruling of law at issue that could impact other cases or other courts, such as the district court's ruling in Young that the death penalty was unconstitutional. There is no abuse of discretion that could impact the rights of the parties & that this court's intervention could correct. In fact, Defendant Martinez is sentenced to life in prison & his life sentence cannot be replaced with a death sentence irrespective of this court's view of the applicable law. This court has no ability to impose any remedy. Lastly, one judge's view of the application of the law to the evidence in this case has no precedential value.

Johnson v. Tennessee (Tenn SCt)(Brady) The sole issue in this capital post-conviction appeal is whether the State improperly withheld material, exculpatory evidence at the appellee's capital sentencing hearing. The appellee was convicted of felony murder & sentenced to death in 1985, & in 1991, he filed a post-conviction petition alleging, among other things, that the State improperly withheld a police report that was discoverable under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The post-conviction court denied relief, but the Court of Criminal Appeals reversed & vacated the capital sentence. Finding that the police report was exculpatory & material, the intermediate court held that a new sentencing hearing was constitutionally required. The State then appealed to this Court. For the reasons given herein, we hold that the State improperly withheld the police report, which was both "evidence favorable to the accused" & material as to the issue of sentencing.

In response, the State argues that the withheld police report is not material because "it is clear that any reasonable juror would have applied the [(i)(3)] aggravator to Johnson's own actions even if the PacMan Bullet had never been fired." More specifically, the State contends (1) that the other shots fired by the appellee were sufficient by themselves to establish the (i)(3) aggravating circumstance; & (2) that because the (i)(3) aggravating circumstance may be applied vicariously, the jury would have found & considered this aggravating circumstance even if the appellee did not fire the "Pac-Man" bullet. We disagree that either of these arguments renders the withheld police report [*24] immaterial for purposes of Brady.

Upon examination of the substance of these arguments, it is clear that the State is attempting to make a sufficiency of the proof argument, i.e., that because the proof is sufficient for a jury to find this aggravating circumstance on other grounds without the police report, the police report is not material to the appellee's case. The State misconstrues the nature of a Brady materiality inquiry, because, as we stated earlier, the measure of materiality is not that of evidentiary sufficiency. See Strickler, 527 U.S. at 275. Rather, materiality is established "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Kyles, 514 U.S. at 435, & the appellee has made this showing to our satisfaction. Nevertheless, because the proper application of the (i)(3) aggravating circumstance is an issue infrequently discussed in our opinions, we take the opportunity to discuss the State's arguments on their merits. n8

The State first argues that the other shots fired by the appellee were sufficient by themselves to establish the (i)(3) aggravating circumstance. This Court has previously held that this aggravating circumstance "contemplates either multiple murders or threats to several persons at or shortly prior to or shortly after an act of murder upon which the prosecution is based." State v. Cone, 665 S.W.2d 87, 95 (Tenn. 1984). n9 Most commonly, this aggravating circumstance "has been applied where a defendant fires multiple gunshots in the course of a robbery or other incident at which persons other than the victim are present." State v. Henderson, 24 S.W.3d 307, 314 (Tenn. 2000) (citing State v. Burns, 979 S.W.2d 276, 280 (Tenn. 1998)). In many of the cases upholding application of the (i)(3) aggravator, the defendant fired random shots with others present or nearby, n10 the defendant engaged in a shoot-out with other parties, n11 or the defendant actually shot people in addition to the murder victim. n12 In at least one case, this Court has affirmed application of the (i)(3) aggravating circumstance when the defendants fired two shots, one [*26] into the ceiling & a second into the victim, when the defendants also held others at gun point & the surrounding circumstances of the offense indicated that "the threat to their lives was very real." King v. State, 992 S.W.2d 946, 950-51 (Tenn. 1999).

We disagree with the State's assertion that the (i)(3) aggravating circumstance was present beyond a reasonable doubt in this case based on the appellee's actions without considering the "Pac- Man" bullet. The appellee fired three known shots: two into the store manager & one into the ceiling. The shots fired at the store manager were fired at point-blank range, & no other person was within the immediate vicinity or within the line of fire. n13 Moreover, the stray bullet fired into the ceiling was not an intentional shot fired by the appellee to intimidate the other customers, as was the case in State v. King, nor was the bullet fired by the appellee as part of a random shooting spree, as in State v. Henderson, [*28] State v. Burns, or State v. McKay. n14 We see no indication that the appellee threatened the lives of the other customers as did the defendants in King, nor did he actually shoot any other person, as was the case in State v. Johnson, McKay, or State v. Workman.

From our review of the original trial transcript, we did find testimony that the appellee, after shooting the manager, held his pistol to the head of the store manager's wife & demanded money. While this fact could help provide a basis for finding the (i)(3) aggravating circumstance, we note that the great-risk-of-death aggravator requires that two or more people, other than the victim murdered, be placed in great risk of death. n15 See Tenn. Code Ann. section39-2-203(i)(3). From our examination of the record, we cannot conclude that the State proved beyond a reasonable doubt that another person was placed in great risk of death by the appellee without the "Pac-Man" bullet, & we decline to adopt a per se rule that would automatically allow this aggravating circumstance in all felony murder cases where the defendant is armed with a pistol & others are present. Such a per se rule would not adequately provide for individualized sentencing, & it would unnecessarily broaden the (i)(3) aggravating circumstance to a point that it would fail in its essential function of narrowing the death-eligible class. Cf. State v. Keen, 31 S.W.3d 196, (Tenn. 2000) [*30] ("The very purpose of the consideration of aggravating circumstances within a scheme of capital punishment is to provide some principled guidance for the sentencing authority to choose between death & a lesser sentence.")

Captial Cases Remanded for Further Adjudication

No cases available this week.

Federal Captial Cases Relief Denied

No cases available this week.

State Captial Cases Relief Denied

Christian v. Tennessee (Tenn CrimApp) (state pc) The petitioner filed petitions for post-conviction relief for his conviction for first degree felony murder & his sentence of death, as well as for a number of convictions for sexual attacks on four additional victims. The bases of his complaints were that he had ineffective assistance of counsel at both the guilt & punishment phases of his capital trial, as well as in the noncapital cases, two of which were resolved by pleas of guilty. Specifically, he claimed that counsel failed to adequately investigate & prepare his cases; failed to question the probable cause for his arrest; & failed to question whether his confessions were "false." He contends that he did not voluntarily enter his guilty pleas because he was experiencing panic attacks & confusion, which was a side effect of his medication, at the time he entered the pleas. He also claims that he received the ineffective assistance of counsel because his attorneys did not investigate the effects of his medication on his competency & scared him into pleading guilty.

Nichols v. Tennessee (TennCrimApp) (state pc): The petitioner filed petitions for post-conviction relief for his conviction for first degree felony murder & his sentence of death, as well as for a number of convictions for sexual attacks on four additional victims. The bases of his complaints were that he had ineffective assistance of counsel at both the guilt & punishment phases of his capital trial, as well as in the noncapital cases, two of which were resolved by pleas of guilty. Specifically, he claimed that counsel failed to adequately investigate & prepare his cases; failed to question the probable cause for his arrest; & failed to question whether his confessions were "false." He raised additional claims of ineffective assistance of counsel & claims regarding the unconstitutionality of the imposition of capital punishment. The post-conviction court denied the claims other than to order new sentencing hearings in the noncapital cases.

Pickens v. Oklahoma (OK CrimApp) (direct appeal) A fractured Oklahoma Court of Criminal Appeals denies relief chiefly on "Pickens claims his confession to the robbery and homicide was improperly admitted into evidence because it was the fruit of an illegal arrest based upon a lack of probable cause for issuance of the arrest warrant . . . . violation of his right to counsel, because at the time of interrogation he was represented by counsel stemming from the charges in Tulsa County. . . . the trial court erred when it admitted Appellant's statements to Creek County law enforcement, because Appellant had previously invoked his right to counsel during his interrogation on Tulsa County charges." The dissent additionally dissents on the issue of whether the execution of the mentally retarded violates the Eighth Amendment.

Hooks v. Oklahoma (OK CrimApp)(direct appeal) Appellant is denied relief in a terse opinion on grounds, chiefly, on claims that he was denied his right to a jury composed of a fair cross-section of the community through systematic under-representation of African-Americans from the jury panel; that the evidence was insufficient to convict him of first degree murder and that his jury was coerced into returning a death sentence.

Stephenson v. Indiana (IN)(direct appeal) Appellant argues "the evidence was insufficient to support the convictions, the trial court committed reversible error in several respects, and the death sentence was not appropriate. . . .[T]he testimony of the State's two key witnesses and additional circumstantial evidence sufficient to support the convictions. . . .we reject Defendant's claims that the trial court both improperly allowed certain hearsay, opinion, prior misconduct evidence, and photographic evidence and improperly refused evidence of a State's witness's criminal history. We also analyze and reject Defendant's claims that his convictions and sentence should be reversed because of alleged juror misconduct in compiling notes on a home computer, prosecutorial misconduct in several respects, violations of his right to a speedy trial, and three violations of his right to be present at all critical stages of the proceedings."

Other Notable Cases

Giano v. Selsky(2nd Cir 01/23/01) In prisoner suit challenging placement in administrative segregation, court must consider prisoner's similar, prior segregation at another jail even if there is a separate lawsuit involving that detention where present detention is continuation of prior one.

US v. Thomas (5th Cir 01/24/01)A guard employed by a private entity operating a detention center under contract with the Immigration & Naturalization Service is a "public official" for purposes of the federal bribery statute, 18 USC 201(b)(2)

Pearson v. Ramos (7th Cir 01/22/01) Denial of yard privileges to prisoner in a segregation unit or solitary confinement for no more than 90 days at a stretch is not cruel & unusual punishment, given plaintiff-prisoner's history of attacks & assaults upon inmates & prison guards.

Garrett v. Dormire (8th Cir 01/26/01) Where trial counsel's strategy was reasonable, & there is no probability that petitioner would have been acquitted had certain inmate witnesses testified, the state court's findings on the issue of adequacy of counsel were not unreasonable.

Depetris v. Kuykendall (9th Cir 01/26/01) In a murder case under California law where a defendant claims imperfect self-defense from abusive spouse, evidence of spouse's journal recording spouse's violent behavior to first wife is relevant to defendant's state of mind.

Outrages of the Week

US v. Perez De Dios(10th Cir 01/22/01) A defendant's prior conviction & sentence of one year of probation for driving without proof of insurance counts when computing criminal history category under USSG 4A1.2(c).

US v. Christopher (11th Cir 01/22/01) Under 8 USC 1101(a)(43)(G), a theft conviction that receives a sentence of at least one year qualifies as an aggravated felony, & it does not matter that the relevant conviction carries a sentence of at most one year.

Featured

The Feature this week's offers links to Findlaw.com's annotated and hyperlinked analysis of the federal constitution and the various amendments. The Findlaw analysis is a great place to start when dealing with areas of federal constitutional law that you are unfamilar with and a good source for black letter law case summaries.

http://guide.lp.findlaw.com/casecode/constitution/

Annotations

Preamble

Article I - Legislative Department

Article II - Executive Department

Article III - Judicial Department

Article IV - States' Relations

Article V - Mode of Amendment

Article VI - Prior Debts, National Supremacy & Oaths of Office

Article VII - Ratification

Amendments

First Amendment - Religion & Expression

Second Amendment - Bearing Arms

Third Amendment - Quartering Soldiers

Fourth Amendment - Search & Seizure

Fifth Amendment - Rights of Persons

Sixth Amendment - Rights of Accused in Criminal Prosecutions

Seventh Amendment - Civil Trials

Eighth Amendment - Further Guarantees in Criminal Cases

Ninth Amendment - Unenumerated Rights

Tenth Amendment - Reserved Powers

Eleventh Amendment - Suits Against States

Twelfth Amendment - Election of President

Thirteenth Amendment - Slavery & Involuntary Servitude

Fourteenth Amendment - Rights Guaranteed, Privileges & Immunities of Citizenship, Due Process & Equal Protection

Fifteenth Amendment - Rights of Citizens to Vote

Sixteenth Amendment - Income Tax

Seventeenth Amendment - Popular Election of Senators

Eighteenth Amendment - Prohibition of Intoxicating Liquors

Nineteenth Amendment - Woman's Suffrage Rights

Twentieth Amendment - Commencement of the Terms of the President, Vice President & Members of Congress.

Twenty-First Amendment - Repeal of the Eighteenth Amendment

Twenty-Second Amendment - Presidential Tenure

Twenty-Third Amendment - Presidential Electors for the District of Columbia

Twenty-Fourth Amendment - Abolition of the Poll Tax Qualification in Federal Elections

Twenty-Fifth Amendment - Presidential Vacancy, Disability, & Inability

Twenty-Sixth Amendment - Reduction of Voting Age Qualification

Twenty-Seventh Amendment - Congressional Pay Limitation

Errata

From the Death Penalty Information Center reports:

Stay Granted to Tennessee death row inmate

Tennessee death row inmate Philip Workman was granted a stay while the United States Supreme Court considers whether to hear his case. Workman, who has new evidence supporting his claim that he did not shoot the victim, was scheduled to be executed on January 31, 2001. Of the 11 executions that did occur in January, 7 were in Oklahoma and all have been in the south. See also, Number of executions by state.

New Resources

Law Review: "Georgia Death Penalty Law" by Mike Mears and Ken Driggs covers recent death penalty decisions from the Georgia Supreme Court, and examines direct appeal decisions directly affecting death penalty cases. The article discusses jury selection, guilt and sentencing trials, preservation of error, state habeas corpus, and the Georgia electric chair. (52 Mercer Law Review 29 (2000)) See also, Law review & journal articles on the death penalty.

Web page: DPIC's Foreign Nationals and the Death Penalty in the United States has been updated as of January 30, 2001 with information from Mark Warren of Amnesty International. The page offers data on foreign nationals currently on death row and accounts of violations of the rights of foreign nationals. The page also provides news about this issue, including updated information on Germany's action against the U.S. in the International Court of Justice for violations of consular rights in death penalty cases.

Services: Capital Punishment Investigations & Educational Services (CPIES) - This new non-profit agency is an association of experienced defense investigators, social workers, and others dedicated to raising the standard of investigations for death penalty cases. The agency's services will include investigation and consultation, education and training, and client family services in Texas.

Illinois Poll Finds Strong Support for Death Penalty Reforms; Concerns About Executing the Innocent

A recent poll of Illinois residents by Roper Starch Worldwide found the following:

• 7 out of 10 Illinois residents approve of Gov. Ryan's decision last year to place a moratorium on executions
• Three-fourths of Illinois residents are concerned that innocent people have been executed
• 47% said that given the sentencing choice between the death penalty and life in prison with no chance of parole, they would pick life in prison without parole. Only 33% would choose the death penalty for the crime of murder
• Nearly 90% favored providing resources to assure a thorough defense
• 79% favored setting minimum standards for competence and ethics for defense lawyers

(Chicago Sun-Times, 1/26/01) See also, Recent poll findings

Secretary-General of the Council of Europe Urges Americans to Rethink Capital Punishment.

In a recent op-ed in the International Herald Tribune, Walter Schwimmer, the secretary-general of the Council of Europe, wrote:

"The maintenance of the death penalty in the United States is becoming more & more anachronistic. International organizations like the United Nations, the Council of Europe & the European Union have issued calls for a moratorium on executions. There is a clear trend toward abolition, often preceded by the institution of a moratorium.

. . .

"The time has come for Americans to stop & think. Fortunately, this is precisely what a growing number of them seem to be doing. A recent report by the Death Penalty Information Center in Washington refers to polls that confirm that public support for the death penalty is declining. The report speaks of a broad change in the way Americans view capital punishment. More voices are being heard & initiatives taken in favor of a moratorium on executions.

"This movement deserves full support. Establishing moratoriums on executions in Europe has not been an easy process, & there is no reason to think that it will be any easier in the United States. But I have no doubt that willingness to consider the facts can only lead to the conclusion that this madness must end."

(International Herald Tribune, 1/25/01) See also, DPIC's 2000 Year End Report.

Conservative Virginia Republicans Propose Death Penalty Moratorium & Abolition Legislation

Del. Frank Hargrove (R- Hanover County), recently introduced a bill in the Virginia General Assembly to abolish the death penalty. Hargrove, who once proposed bringing back hanging as a method of execution in Virginia, said that he was troubled by the possibility that mistakes could lead to the execution of an innocent person.

Another conservative Republican, Jeannemarie Devolites (R-Fairfax County), is sponsoring a moratorium bill which would suspend executions until after the Joint Legislative Audit & Review Commission completes its review of the state's death penalty system. "I think there's a lot of concern, not just from legislators, but from the public as a whole, that we could be executing innocent people," said Devolites. Del. Robert Marshall (R-Prince William), has proposed legislation that would require that capital juries be told that Virginia nearly executed an innocent man, Earl Washington, who was eventually exonerated by DNA evidence.

Also pending are two other moratorium bills, two bills to abolish Virginia's "21-day" rule, which allows inmates just three weeks after sentencing to introduce newly discovered evidence, & a bill which would establish a procedure for inmates who are seeking DNA testing to prove their innocence. (Associated Press, 1/20/01) For a compilation of proposed Virginia Legislation, see http://www.vadp.org/legis.htm See also, Changes in the Death Penalty.

Illinois Supreme Court Sets Death Penalty Rules

On Monday, January 22, the Illinois Supreme Court set new rules to improve the state's capital punishment system by establishing minimum standards of training & experience for lawyers & prosecutors in death penalty cases. The new rules institute standards of criminal litigation experience for attorneys, require prosecutors to make a "good faith effort" to notify defense attorneys of evidence that could help the defense, & direct them to let defendants know more quickly if they intend to seek the death penalty. In addition, the rules establish new standards for disclosing DNA evidence, & provide seminars for judges who might preside over capital cases. The new rules, which will be published & become official in March, are the product of nearly two years of study, public hearings, & revisions by a committee of 17 judges from across Illinois. (Associated Press, 01/23/01 & Chicago Tribune, 01/23/01) A moratorium on all executions was declared in Illionois in January, 2000 after 13 death row inmates were exonerated for their crimes. See also, Changes in the Death Penalty

Full Fifth Circuit to Review Texas Death Row Inmate's "Sleeping Lawyer" Claim

On Monday, January 22nd, the full U.S. Court of Appeals for the Fifth Circuit will review an earlier ruling in the case of Calvin J. Burdine, a Texas death row inmate whose lawyer slept during parts of his trial. Burdine is appealing the Court's October, 2000, holding that a defendant in a capital murder trial does not have an absolute right to an attorney who stays awake during the entire trial. In his dissent of that decision, Judge Benavides said that sending a man to death row under these circumstances "shocks the conscience." (DPIC Press Release, 1/19/01)

President Clinton Grants Clemency to Federal Death Row Inmate Raising Innocence Claim

On his last day in office, President Clinton commuted David Ronald Chandler's death sentence to life in prison. Chandler was the first man sentenced to death under the 1988 federal drug kingpin law, yet doubts about his guilt have surfaced. Since Chandler's trial, the actual triggerman, Charles Ray Jarrell, who was the main government witness against Chandler, has recanted his testimony. Jarrell told the Atlanta Journal- Constitution that after drinking 23 beers he killed the victim, Martin Shuler, because Shuler badly abused Jarrell's sister. Jarrell said Chandler had nothing to do with Shuler's murder. (Associated Press, 1/20/01 & Atlanta Journal-Constitution, 1/12/01) See also, Federal Death Penalty & Clemency

From the mailbox

From this week's inbox:

Additional information in Capital Defense Weekly

Please consider reprinting Mumia Abu-Jamal's columns from death row in 'Capital Defense Weekly'. -- Joe

[On irregular basis Mumia and other prison writers will be included in the weekly as the observations of those in the pit of hell on the legal system are almost always the most sharp and the most insightful. -- k]

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legalprofessionals doing capitallitigation isin the beginning stages. The hope of the new list is toget somecross-pollination of ideas, as well as to give those practitioner's,whomay not be at a public defender's office or similar non-profit, a forumto seek advice & bounce ideas around. The list is private, & moderatedonly to try to weed out prosecutors & law enforcement.

Post message: capitaldefense@onelist.com

Subscribe: capitaldefense-subscribe@onelist.com

Unsubscribe: capitaldefense-unsubscribe@onelist.com

List owner: capitaldefense-owner@onelist.com

DISCLAIMER & CREDITS -- Anti-copyright1997-2001. ISSN: 1523-6684. Written with the legal professionalinmind. Use does not constitute creationof an attorney-client relationship. If you have a legal questioncontact a lawyer authorized to practice inyourstate.This weekly has been prepared for educational & informationpurposesonly.Since the content contains general information only, it maynot reflectcurrent legaldevelopments, verdicts or settlements. The contentdoes notprovidelegaladvice or legal opinions on any specific matters. Thelaw changesquickly,and information provided may be outdate by the timeitis read. Completedisclaimer located at http://capitaldefenseweekly.com/disclaimer.html.Thisletter may be freely redistributed with attribution. Please note thatthecurrent set up of the weekly is a one way list. Subscription information, including all names & addresses are private & unavailableto third parties. Please note all rights to terminate a subscription areretained by the editorial staff.

FAIR USE NOTICE: This site contains copyrighted materialthe use of which has not always been specifically authorized by the copyrightowner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutesa 'fair use' of any such copyrighted material as provided for in section107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section107, the material on this site is distributed without profit to those whohave expressed a prior interest in receiving the included information forresearch & educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from thecopyright owner.