Capital Defense Weekly, January 30, 2006
The story of the week remains lethal injection. This week the Court granted a stay from a Florida case (Arthur Rutherford) and refused to lift a stay from Missouri (Michael Taylor). Lethal injection related issues may have temporarily (and I mean temporarily) created a seven state moratorium on executions (four states in the Eighth Circuit, three elsewhere holding up a total of at least five executions). Boalt Hall's capital litigation clinic has posted the stay litigation documents in the Missouri litigation which are available here. The second Florida stay litigation from Rutherford v. Crosby are also available from here. The Weekly's daily blog, the SCOTUSBlog, and the Sentencing Blog have all been doing complimentary coverage on the ongoing LI issue.
Whether the LI related stays spread remains to be seen. February has six scheduled "serious dates." At the moment two scheduled executions -- at least -- appear headed for serious lethal injection litigation, Vernon Evans and Michael Morales. Evans was denied relief in the lower courts and, if executed, is a likely botch candidate due to collapsed veins from heroin addiction. Morales has purportedly been granted discovery on three post-mortem examinations done after past executions in California. The three remaining of the six cases are from Texas with no known lethal injection challenges at this time.
In another matter touching on "late inning" proceedings, the Tenth Circuit's decision in Hain v. Mullin examines clemency proceedings and whether CJA panel attorney can submit a voucher to the federal courts for their work. En banc (8-3) the Hain Court holds that counsel "appointed under 848(q)(4)(B) to represent state death row inmates in 28 U.S.C. 2254 proceedings are authorized by the statute to represent these clients in state clemency proceedings and are entitled to compensation for clemency representation." Despite how commonsensical this approach seems in light of the language of the statute, "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . . . proceedings for executive or other clemency as may be available to the defendant." There now exists a Circuit split on the issue with the lower courts nearly evenly split on the issue.
Switching gears, the National Legal Aid and Defender Association's Annual Life in the Balance Conference will be held in Philadelphia, PA, March 4-7, 2006. As always this conference will bring together mitigation specialists, defense investigators, and capital defense attorneys from around the nation, to improve their skills and techniques in all aspects of death penalty defense. Seminars are offered on the latest scientific, medical and psychiatric developments in capital cases; the most recent developments in the law; and a wide range of creative trial strategies and tactics.
Three reports apparently timed to appear in time for a death penalty hearing in the Senate Judiciary Constitution, Civil Rights and Property Rights Subcommittee were had this week. On Monday the ABA released its report on the death penalty in Georgia concluding, in short, Georgia cannot ensure fairness, accuracy in death penalty cases. On Tuesday Amnesty International released a 189-page report entitled “USA: The execution of mentally ill offenders.” On Wednesday the morning the Constitution Project's new report, Mandatory Justice: The Death Penalty Revisited, was released by its bipartisan, blue-ribbon Death Penalty Initiative which updated set of guiding principles for reform of death penalty systems in the United States.
My apologies for being so "stay oriented" this week, but one last "late innings" related topic. If lethal injection litigation is going on in your state (other than those states that have been covered here in the past) can you let me know off list. Likewise, if there has been a proposed rule change to the lethal injection regulations can you likewise let me know off list. Specifically, looking for how, if at all, Departments of Corrections are responding to the lethal injection challenges and whether others outside of DoC may be trying to propose new lethal injection regs.
There is some hope to get back to the normal release of the Weekly during the work-week rather than on the weekends in the coming week, however, it remains to be seen whether that goal can be met. As always, please forgive the typos, thanks for letting us know when something has been missed & for reading. - k
Archived on the net at http://capitaldefenseweekly.com/archives/060130.htm
Execute dJanuar
31 Jaime Elizalde (Texas)
Pending Execution sFebruar
6-10 Vernon Evans Jr. (Maryland
7 Glenn Benner (Ohio
8 Robert Neville Jr. (Texas
15 Clyde Smith (Texas
21 Michael Morales (California
23 Steven Staley (Texas)
Favoring Life and Libert
Hain v. Mullin, 2006 U.S. App. LEXIS 1584 (10th Cir 1/23/2006) En banc (8-3) holding that counsel "appointed under 848(q)(4)(B) to represent state death row inmates in 28 U.S.C. 2254 proceedings are authorized by the statute to represent these clients in state clemency proceedings and are entitled to compensation for clemency representation.
State v. Mapes, 2006 Ohio App. LEXIS 251 (Ohio 8th App 1/26/2006) Penalty phase relief granted as the "trial court committed reversible error by preventing the jury from considering mitigating evidence concerning Mapes’ prior conviction" for murder. The Sixth Circuit had previously held "that Mapes was denied effective assistance of appellate counsel and the court[ ordered] that he receive a new direct appeal. Mapes v. Tate (6th Cir. 2004), 388 F.3d 187 (“Mapes II”).
Favoring Death
Hamilton v. Mullin, 2006 U.S. App. LEXIS 1675 (10th Cir 1/24/2006) "Oklahoma death row inmate Corey Hamilton sought habeas relief on various grounds, including improper comments by the prosecutor during closing arguments. The prosecutor explained that the jury began the trial with the presumption that Hamilton was not guilty, but that the evidence presented at trial "strips away the cloak of innocence." After the defendant’s objection was overruled, the prosecutor made another similar comment. Hamilton challenged his conviction, arguing that these comments implied that the state no longer had the burden of proving Hamilton guilty beyond a reasonable doubt. The "cloak of innocence" metaphor is apparently pretty common, and both the Oklahoma Court of Appeals and the Tenth Circuit have reversed convictions because such statements are impermissible. In Hamilton’s case, however, the Oklahoma Court of Appeals concluded that the error was harmless in light of the overwhelming evidence of Hamilton’s guilt. The Tenth Circuit affirms. Although the remarks "test the bounds of permissibility" and may amount to a due process violation, the evidence of Hamilton’s guilt is strong enough to find any error to be harmless." (From Decision of the Day
People v. Jablonski, 2006 Cal. LEXIS 335 (Cal 1/23/2006) "Abrogation of People v. Mattson which had held that corpus delicti of felony-based special circumstances had to be established independently of accused's statements, by Proposition 115 did not violate Eighth Amendment. Corpus delicti rule is neither of constitutional magnitude nor statutorily mandated. It is a common law rule designed to prevent persons from confessing to crimes that never happened." (From Electiclawyer
People v. Hinton, 2006 Cal. LEXIS 336 (Cal 1/26/2006) Relief denied on claims including: use of prior-murder-conviction special circumstance with a murder that postdated the charged murders; waiver of the right to have a prior-murder-conviction special circumstance determined in a separate proceeding; sufficiency as to the robbery-murder special circumstance; and prejudice suffered from the failure to provide proper notice of factors in aggravation
State v. Newton, 2006 Ohio LEXIS 40 (Ohio 1/25/2006) Relief denied on a litany of claims including: failure to fund battery of “neuropsychiatric” tests including magnetic resonance imaging (MRI) and positron emission tomography (P.E.T.) scans of Newton's brain to identify possible physical abnormalities and determine levels of various chemicals, as well as claims of “severe mental illness” as a mitigating factor
State v. McNeil, 2006 N.C. LEXIS 1 (N.C. 1/27/2006) Relief denied on claims including those relating to: sufficiency of evidence as to “Especially Heinous, Atrocious or Cruel” aggravators; prosecutor's closing argument; and limitations on defendant's closing argument
State v. Hurst, 2006 N.C. LEXIS 7 (N.C. 1/27/2006) Relief denied on claims relating to: facts arising from an alternate juror who brought a newspaper article dealing with the trial into the jury room during jury selection; trial court's admonition to some of the prospective jurors was incomplete and misleading and allowed them to view the allegedly prejudicial newspaper article about the trial; failure to submit the mitigation that the “defendant has no significant history of prior criminal activity” (note that the state supreme court overturned State v. Rouse to deny relief); failure to submit mitigating factor as to defendant's age at the time of the offense; the prosecution's closing argument in the sentencing proceeding; as well as preservation & proportionalit
Henderson v. Dretke, 2006 U.S. App. LEXIS 2190 (5th Cir 1/27/2006) "After federal habeas relief was denied on all 13 claims, the district court granted a certificate of appealability (COA) for six of them, as well as a portion of another. Henderson seeks a COA from this court for four of the remaining issues for which the district court denied a COA: (1) whether her Fifth and Fourteenth Amendment rights were violated because her confession to an FBI Agent was involuntary and coerced; (2) whether, shortly after she was arrested for kidnapping the child she later confessed to killing, her Sixth Amendment confrontation and Fourteenth Amendment due process rights were violated by the trial court's denial of her request to be present at the hearing on the State's motion to compel the production of evidence needed for the grand jury proceeding; (3) whether her Sixth Amendment right to effective assistance of counsel was violated by her trial counsel; and (4) whether her Sixth Amendment confrontation and Fourteenth Amendment due process rights were violated by the trial court's post-trial findings of fact and conclusions of law regarding its pre-trial denial of Henderson's motion to suppress evidence." Additional COA denied
State v. Scott, 2006 Ohio App. LEXIS 203 (Ohio 5th App 1/23/2006) Relief denied on claims relating to: the trial court's verbatim adoption of the prosecution's proposed fact finding; trial court's failing to strike prosecutions tardy response (filed more than 700 days late); grant of summary judgment despite disputed facts; failure to grant postconviction discovery; application of res judicata to some claims; and failure to grant an evidentiary hearing
Rutherford v. State, 2006 Fla. LEXIS 101 (FL 1/27/2006) Relief denied on claims relating to putative Brady violation and lethal injection related claims
Hill v. Crosby, 2006 U.S. App. LEXIS 1674 (11th Cir 1/24/2006) Stay litigation revolving around lethal injection related claims denied
In re Hill, 2006 U.S. App. LEXIS 1665 (11th Cir 1/24/2006) Permission for successive litigation denied on mental retardation claims
Noncapital case
Van Patten v. Deppisch, 2006 U.S. App. LEXIS 1658 (7th Cir. 1/24/2006) The Seventh Circuit holds that identical facts are not necessary for cases to be "materially indistinguishable" for relief to be granted under the AEDPA all that matters is whether the legal implications of the cases are the same
Young v. Runnels, 03-16859 (9th Cir. 1/23/2006) The Ninth Circuit examines just how truly bad the Supreme Court's precedent on guilt phase ineffective assistance of counsel has become.
Selected excerpts from this Edition's Case
Hain v. Mullin, 2006 U.S. App. LEXIS 1584 (10th Cir 1/23/2006) En banc (8-3) holding that counsel "appointed under 848(q)(4)(B) to represent state death row inmates in 28 U.S.C. 2254 proceedings are authorized by the statute to represent these clients in state clemency proceedings and are entitled to compensation for clemency representation.
Ignoring the statute's plain meaning, the government urges this court to follow the Eleventh Circuit in concluding that, because § 848(q) is part of 21 U.S.C. § 848, which focuses primarily on punishments for violations of federal drug laws, "the language contained in the sections preceding and following [§ 848(q)(4)(B)] relates more directly to federal criminal trial and appeals, than to habeas cases seeking relief from state court sentences." King v. Moore, 312 F.3d 1365, 1367 (11th Cir. 2002). n4 On that basis, the Eleventh Circuit held that "the word 'federal' is an implied modifier for 'proceedings,'" as it is used in § 848(q)(8), such that "'proceedings' = the federal proceedings that are available to the defendant." Id. (equals sign in the original). n5 The Eleventh Circuit does not deny that state death row inmates proceeding under § 2254 are entitled to the furnishing of services in accordance with paragraph 8. Rather, the court amends paragraph 8 to encompass only federal proceedings. Under this amended version of the statute, although a state prisoner is entitled to federally-funded counsel at proceedings for executive or [*10] other clemency, such state prisoners will receive representation only at federal clemency proceedings. The analytical complication with this approach is that, as noted, federal clemency proceedings are unavailable to prisoners seeking relief from a state sentence. Moreover, such a reading ignores the plain meaning of the statute, violates the canon of statutory interpretation requiring us to give effect to every word of a statute, and reads the statute out of context. n
Adopting the government's interpretation would fail to "give effect, if possible, to every clause and word" of the statute. Duncan, 533 U.S. at 174. Section 848(q)(8) provides that federally-appointed counsel shall "represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." (Emphasis added). The statute's reference to "other clemency" is meaningless unless it refers to state clemency proceedings, as executive clemency is the only form of clemency in the federal system. See U.S. Const., art. II, § 2. By contrast, some states have vested clemency power exclusively in the legislature, have provided for shared legislative-executive clemency authority, or have permitted the executive and judiciary to share clemency power. n7 See, e.g., McLaughlin v. Bronson, 206 Conn. 267, 537 A.2d 1004, 1006 (Conn. 1988) ("In Connecticut, the pardoning power is vested in the legislature"); Fla. Const. Art. IV, § 8 ("In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session [*13] the legislature may grant a pardon or further reprieve"); Nev. Const. art. 5, § 14 ("The governor, justices of the supreme court, and attorney general [may] remit fines and forfeitures, commute punishments, except as provided in subsection 2, and grant pardons, after convictions"). n
The government argues that § 848(q)(8) must be considered "in its context as part of the Anti-Drug Abuse Act of 1988." Appellee Br. at 10. This implies that because § 848(q) is lodged in a statute generally addressed at federal drug laws, § 848(q)(8) "does not authorize federally appointed and federally funded attorneys to represent state prisoners in state clemency proceedings." Appellee Br. at 11. There is a problem with this argument: viewing § 848(q)(8) in its appropriate context, there is no indication that the statute is limited to federal proceedings. The most informative context is that provided by § 848(q)(4)(B), [*15] which references § 848(q)(8) and establishes that state capital defendants "proceeding under section 2254" are "entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with [paragraph 8]." The provision at issue applies "to habeas cases seeking relief from state court sentences," and does not, as the Eleventh Circuit concludes, relate "more directly to federal criminal trial and appeals." Moore, 312 F.3d at 1367. It cannot be disputed that § 848(q) applies to all capital cases, and not just drug-related cases, even though § 848 is generally addressed at violations of the federal drug laws. See 21 U.S.C. § 848(q)(4)(A) (applies to "every criminal action in which a defendant is charged with a crime which may be punishable by death [and] is or becomes financially unable to obtain adequate representation") (emphasis added); 21 U.S.C. § 848(q)(4)(B) (applies to "any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, [where the defendant] becomes financially unable to obtain [*16] adequate representation") (emphasis added). That § 848(q) is not limited to drug offenses is recognized by the dissent in its acknowledgment that representation at the proceedings listed in § 848(q)(8) are available to all indigent federal capital defendants and not just those charged under § 848. Dissent at 5. The government's suggested approach would distort the plain meaning of § 848(q)
In a final attempt to avoid the plain meaning of the statute, the government argues that its unqualified application would lead to absurd results. In particular, the government argues that it is absurd to think that Congress intended to fund representation at state clemency proceedings. In order "to justify a departure from the letter of the law" on the ground of absurdity, "the absurdity must be so gross as to shock the general moral or common sense." Crooks v. Harrelson, 282 U.S. 55, 60, 51 S. Ct. 49, 75 L. Ed. 156, 1931-1 C.B. 469 (1930); see also Payne v. Fed. Land Bank of Columbia, 916 F.2d 179, 182 (4th Cir. 1990) (noting that the absurdity exception applies only when "the absurdity and injustice of applying the provision [literally] to the case would be so monstrous that all [*17] mankind would without hesitation, unite in rejecting the application") (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-03, 4 L. Ed. 529 (1819)). The federal government providing representation to indigent death row inmates at state clemency proceedings is not an absurdity "so gross as to shock the general moral or common sense." Id. It is entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells, relying on limited resources and little education in a final attempt at convincing the government to spare their lives. The government may not agree with Congress's decision to authorize such funding, but as Justice Scalia has noted, "Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 20 (1997). We would add only that when Congress has spoken, it is not for us to stand in the wings like a classic Greek chorus and explain that Congress did not mean [*18] what it said.
Young v. Runnels, 03-16859 (9th Cir. 1/23/2006) Relief deneid on guilt phase ineffective assistance of counsel. Young was unfortunate enough to have had his family hire an attorney that was in the middle of being disbarred and was more than mildly delusional
It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar he would have been denied his Sixth Amendment right to counsel. But his case is different because he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years to remove from a position where she could harm the public, the courts, and her clients! A fully licensed lawyer with her head full of fantasies and “with complete lack of insight into the wrongfulness of her actions” was counsel enough to satisfy the Sixth Amendment! As Judge Ferguson’s opinion indicates, precedent apparently requires this bizarre conclusion. Only the Supreme Court of the United States can eliminate this cruel parody of the right to counsel