Richey v. Mitchell takes the spotlight this week. The Sixth Circuit grants relief on claism of ineffective assistance of counsel in the preparation and handling of scientific evidence, as well as whether murder could be had on a theory of transferred intent. I should note that Richey has a strong case of possible innocence making it unlikely, despite a strong dissent, to be revisited by either that court en banc or the Supreme Court on cert.

In other cases of note, in State v. Crisp, the South Carolina Supreme Court holds the trial court went too far in getting involved in discussion about the advisability of taking plea. In Lantz, Comm'r, CT DOC, et al. v. Ross the Supreme Court, despite Chief Justice Rehnquist's continuing ailments, voted 5-4 to lift a stay on issues relating to competency to waive appeals to be executed. Likewise, the Court in Kunkle v. Dretke denied a stay 5-4; it should be noted that the Supreme Court's onilne docket sheet appears to note one hell of a fight in that Court with at least half a dozen filings in that court by Kunkle's attorney Rob McGlasson.

In Connecticut Michael Ross has agreed to a stay following a flurry of litigation about his competency to be executed. Chief Judge Chatigny's discussion with Ross's counsel on the ethics issues relating to volunteers, due diligence and fraud on the court should be read by those facing a client who is considering "volunteering." In solidarity with Ross's decision inmates on Connecticut's death row have begun a hunger strike and to bring attention to the so-called "death row syndrome" (a theory that solitary isolation can cause severe mental health problems and suicidal tendencies and which many observers believe contributed to Ross's decision to drop his appeals).

In other news of the week, the AOC has upped the maximum rate for capital representation to $160/hour. The President in the State of the Union, in an applause getting line, noted his intent to use $50 million over the course of the next three years for training lawyers in capital defense, however this is less than a third of the money authorized by Congress in the Innocence Protection Act and and about half the amount of money allocated to do exactly this in the early through mid-90s. In proof of how inaccurate DNA drag nets can be, Gary Leiterman has been bound over for trial for the 1969 murder of University of Michigan Law student Jane Mixer, at the time Leiterman was 4 years old (I am going out on a limb and expecting a "NG" if this matter goes to trial should the proofs play out as reported). Finally, Max Soffar is featured this week in a Jerusalem Post article written by Kinky Friedman, the author/musician and, more recently, the quixotic independent candidate for Texas governor, entitled "A Jew on Death Row."

This week's edition is running a little late due to the lethal injection protocol hearings in New Jersey this past Friday. As long time readers know, my personal bias on issues I have been working on regularly creep in here so in the coming weeks the issue of lethal injection will be covered extensively as this is an issue that is increasingly being raised at all levels of litigation. For those interested, the transcript of the lethal injection hearing will be posted by Wednesday.

Archived on the net at http://capitaldefenseweekly.com/archives/050131.htm

As always thanks for reading. - k

EXECUTION INFORMATION

SUPREME COURT

Lantz, Comm'r, CT DOC, et al. v. Ross, 2005 WL 180484 (1/27/2005) 5-4 to lift stay on competency to be executed.

Kunkle v. Dretke, 2005 WL 159493 (1/25/2005) Stay denied, 5-4.

FAVORABLE CAPITAL DECISIONS

Richey v. Mitchell, 2005 WL 147080 (6th Cir 1/25/2005) (dissent) Relief granted as to ineffective assistance of counsel in the preparation and handling of scientific evidence, as well as whether a murder conviction could be had on a theory of transferred intent.

State v. Crisp, 2004 WL 3127977 (S.C. 1/24/2005) Trial court's comments about advisability of taking a plea (and hence having a judge sentence him) "were improper and contrary to South Carolina law. Although the trial court must strive to ensure that a criminal defendant's waiver of the right of a jury trial is knowing and voluntary, the court should never inject its personal opinion into that decision. The comments here impermissibly did so."

Ross v. Lantz, 2005 WL 152016 (2nd Cir 1/25/2005) Stay upheld as it was premature for district court to determine whether public defender had next friend standing prior to proceedings to determine whether defendant was incompetent to forgo his right to bring habeas corpus proceedings. Relief subsequently vacated by the Supreme Court.

Ross v. Lantz, 2005 WL 162479 (D.Ct. 1/25/2005) Stay granted on whether "the Office [of the Public Defender] should be granted next friend standing [and] an evidentiary hearing on the issue of Ross's competence should be conducted." Relief subsequently vacated by the Supreme Court.

Ross v. Rell, 2005 WL 181883 (D.Ct. 1/26/2005) TRO granted to enjoin execution until the issues relating to competency to be executed are settled. Relief subsequently vacated.

UNFAVORABLE CAPITAL DECISIONS

Ramirez v. Dretke, 2005 WL 174643 (5th Cir 1/27/2005) COA denied on claims including: "(1) his conviction for capital murder is based upon legally insufficient evidence; (2) he was denied his right to confront a witness when the court admitted out-of-court statements by an accomplice implicating Ramirez in the murder; (3) he was denied his right to trial by jury because the district court allowed the jury to consider improper evidence during sentencing; (4) he received ineffective assistance of counsel because his trial counsel failed to locate, interview and subpoena an alibi witness; and (5) he received ineffective assistance of counsel because his trial counsel failed to object to the district court's punishment charge."

Rowell v. Dretke, 2005 WL 151916 (5th Cir 1/25/2005) COA denied on issues relating to the trial court’s refusal to define for the jury the term "society" in the future dangerousness special question of the punishment charge and failure to assign a proper burden of proof on the special issues and failed to provide for appellate review of the mitigating evidence.

Prible v. State, 2005 WL 156555 (Tex Crim App 1/26/2005) Relief denied on sufficiency; admission into evidence that three children died from smoke inhalation caused by fire because said testimony held admissible as same-transaction contextual evidence and probative outweighing prejudice, as well as, admission of photographs that depicted the three dead children.

Sales v. State (Tex Crim App 1/26/2005) (unpublished) Relief denied on claims including limitations placed on the ability to present mitigation evidence; life qualification of the jury; qualification of jurors as to presumption of innocence; failure to grant strikes for cause; and admission of certain pieces of evidence

Ochoa v. State (Tex Crim App 1/26/2005) Relief deneid on issues including: sufficiency of evidence supporting special questions findings; preservation of issues relating to confrontation clause and admission of tape that contained inaudible portions.

United States v. Catalan-Roman, 2005 WL 218643 (D.P.R. 1/26/2004) Counsel sought pretrial to use dual juries for co-defendants in both stages of a federal capital trial. "The Court shall empanel one jury for both capital defendants' guilt phase and make any further determination regarding the penalty phase if and when the case reaches that stage."

Walker v. Alabama, 2005 WL 182832 (Ala 1/28/2005) (return to remand) "The sentencing order and the amended sentencing orders show that the trial court weighed the aggravating and mitigating circumstances and correctly sentenced the appellant to death. The record supports its decision, and we agree with its findings."

State v. Faulkner, 2005 WL 195371 (Tenn 1/28/2005) (dissent) Relief denied most notably on "1) whether the trial court improperly excluded testimony at the guilt phase regarding Faulkner's "diminished capacity"; 2) whether the trial court committed harmful error in its instructions defining "intentionally" and "knowingly"; 3) whether the failure of the verdict form to recite that the jury found the aggravating circumstance "beyond a reasonable doubt" rendered the verdict invalid; and 4) whether the sentence of death is disproportionate or invalid under the mandatory review."

Arbelaez v. State, 2005 WL 168570 (FL 1/27/2005) Relief denied on claims including (1) ineffectiveness during the penalty phase of trial in his investigation and presentation of mitigation evidence concerning three issues: (A) Arbelaez's epilepsy, (B) his "other mental health mitigation," including possible mental retardation, and (C) his "family history of abuse" in Colombia' (2) admission of ten photographs of body of child victim during guilt phase; and (3) ineffective assistance of appellate counsel.

Cave v. Florida, 2005 WL 167607 (FL 1/27/2005) Relief denied on claims concerning: (1) co-defendant's statements before being executed that Cave did not kill the victim and left the crime scene prior to the murder; (2) whether Florida's sentencing scheme violates Ring v. Arizona; (3) failing to present expert mental-health testimony and evidence of Cave's extensive history of heroin abuse; as well as (4) counsel's overall performance being ineffective, "specifically counsel's failure to present evidence of Bush's statement, his failure to object to the State's misleading voir-dire questions, his decision to introduce the fact of Cave's prior arrest and failure to object when the State later elicited the nature of the charge, his failure to prepare Cave and Cave's mother for their testimony, and his overall strategy of not presenting expert mental-health testimony."

Fitzpatrick v. Florida, 2005 WL 168510 (FL 1/27/2005) Relief denied on claims including: " (1) the trial court erred in denying Fitzpatrick's motion for judgment of acquittal on the issue of identity; (2) the trial court erred in denying Fitzpatrick's motion for judgment of acquittal on the issue of sufficiency of the evidence to prove premeditation or that the killing occurred during a sexual battery; (3) the trial court erred in denying Fitzpatrick's motions to suppress statements he made to detectives; (4) the trial court erred in denying Fitzpatrick's motion to suppress DNA results obtained from his blood sample; (5) the trial court erred in permitting the State to introduce the detective's testimony regarding Romines' statements made at the hospital; (6) the trial court erred in not granting a mistrial when Bousquet testified that during the initial interview Fitzpatrick mentioned that he thought he needed an attorney; (7) the trial court erred in denying Fitzpatrick's motions to suppress Howard and Yarborough's identifications of Fitzpatrick; (8) the trial court excluded critical evidence, thereby depriving Ftizpatrick of a fair trial; (9) the trial court committed errors that could have rendered Fitzpatrick's sentence of death unreliable; (10) Florida's death penalty statute is unconstitutional; and (11) the trial court erred in sentencing Fitzpatrick on the noncapital count of sexual battery without the benefit of a sentencing guidelines scoresheet."

State v. Jones, 2005 WL 181651 (Sup Ct Del 1/27/2005) Defendant’s motion “seeks to preclude the State from offering evidence during his penalty hearing that he committed another unrelated murder” denied.

OTHER NOTABLE CASES

None noted.

SPOTLIGHTED CASES

Richey v. Mitchell, 2005 WL 147080 (6th Cir 1/25/2005) (dissent) Relief granted as to ineffective assistance of counsel in the preparation and handling of scientific evidence, as well as whether murder could be had on a theory of transferred intent.

At the outset, the State, and the dissent to this opinion, argue that Richey has no constitutional right to the "effective assistance of an expert." The district court also noted that it was not unreasonable for trial counsel to "decline [to conduct] further expert-shopping once that expert rendered his opinion." Both might be true if trial counsel had done everything he was supposed to have done, and--through no fault of trial counsel--the expert had simply come up short. See Skaggs v. Parker, 235 F.3d 261, 268 (6th Cir.2000) (defense expert's erratic and incoherent testimony during trial was not attributable to the failings of counsel given that the expert had been recommended by two colleagues and that counsel had used the expert before). But Richey argues, and the record reflects, that the failures of Richey's expert were largely caused by the failures of Richey's counsel. See Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir.1997) ("[C]ounsel's failure to adequately prepare his expert and then present him as a trial witness [amounts to] constitutionally deficient performance."). As Richey's counsel observes, "[i]ncompetence cannot excuse incompetence."

First, trial counsel hired DuBois, based solely on a promotional flier that he happened to come across. DuBois was unqualified for the job because he worked primarily in another field, lacked training to do the job, and came into the litigation believing that the State's experts were more reliable than he was. Moreover, the minimal training he had received came from the very people whose conclusions he was being hired to review. The dissent notes that "There is no suggestion in the record that counsel was put on notice that DuBois was either incompetent or unqualified to serve as Richey's expert." However, we have held that the deficiencies of an expert can be imputed to counsel when counsel has failed to adequately research and screen an expert witness. See Glenn v. Tate, 71 F.3d 1204, 1210 n. 5 (6th Cir.1995) (finding deficient performance because "we are not prepared to assume that Drs. Ramani and Siddal would have been the experts retained by the defense ... if counsel had done their homework"). Thus, counsel owes more to his client than a passive duty to watch for red flags of incompetence.

Moreover, trial counsel waited two months after he was retained, and a full month after he received the State's scientific results, to contact and meet with DuBois. After their first meeting, he limited DuBois's initial investigation to ten hours--without any basis for doing so. See Skaggs, 235 F.3d at 270 (finding deficient handling of expert not excused "simply because counsel believed it would not be worth their time to request additional money from the court"); Lloyd v. Whitley, 977 F.2d 149, 158 (5th Cir.1992) (finding deficient performance when counsel "wrongly assumed that funds were unavailable and he abandoned what he knew to be an important pursuit"). After DuBois's stunted investigation, counsel waited another two months to meet with DuBois, who did no work in the interim.

Third, counsel failed to thoroughly inform DuBois about a critical problem with the State's scientific evidence--that the carpet had been housed in a garbage dump and on a parking lot located near gasoline pumps. See Glenn, 71 F.3d at 1210 ("[D]efense counsel should obviously have worked closely with anyone retained as a defense expert to insure that the expert was fully aware of all facts that might be helpful to the defendant."); see also Affinito v. Hendricks, 366 F.3d 252, 260 (3d Cir.2004) ("When the key issue in a criminal case is whether the defendant suffered from a diminished capacity, we can think of nothing more critical than ensuring that the defense' psychiatric expert has as complete and accurate a description of the facts and circumstances surrounding the crime as possible.... [Failure to provide the expert with this information] was not a trial tactic, it was gross incompetence."); Bloom, 132 F.3d 1273 (finding deficient performance when counsel possessed information that defendant had suffered extensive abuse as child, but counsel "failed to provide the information to Dr. Kling or to any other physician who examined [defendant]"). Although DuBois does not remember precisely what trial counsel told him, he did acknowledge that "I don't think [that counsel] told me the entire sequence of events involving the carpeting after the fire and before trial."

Fourth, trial counsel kept himself in the dark about all aspects of his expert's analysis. counsel had no idea that DuBois, rather than performing his scientific tests or even conducting his own analysis of the test results, was essentially being spoon-fed the results by Gohar (who was the chief of the State Arson lab). Only after the trial did counsel learn that DuBois performed no testing or independent analysis; counsel had never bothered to instruct or simply ask DuBois about the investigation and analysis he had hired him to perform. Moreover, counsel did not ask for a written report from DuBois explaining his conclusions, nor did counsel ask DuBois about the bases for his conclusions, or even if the State's conclusions suffered from any flaws or gaps. Despite DuBois's endorsement of the State's forensic findings--which seriously damaged Richey's case--counsel, in DuBois's words, "was surprisingly nonargumentative with me [and] didn't challenge me on what I thought or why I thought what I did or anything."

Even though trial counsel was not a scientist, this should not relieve him of his responsibility to understand the evidence being used to convict and execute his client. Furthermore, aside from the presentation of testimony from his own expert, he would have to be sufficiently informed to cross-examine the State's experts. See Dees v. Caspiri, 904 F.2d 452, 455 (8th Cir.1990) ("[C]ounsel had a duty to garner the expertise necessary to cross examine [the State's expert]."). This responsibility was heightened here, given that the State called to the stand not only its own experts but also DuBois. See Glenn, 71 F.3d at 1210 ("We can only assume that defense counsel, not having done their homework, were not prepared to interrogate [their court-appointed experts] about the basis for the very damaging conclusions they stated."). That counsel was a lawyer, rather than scientist, should not have left him unable to comprehend even the basics of the science at issue. This is particularly so when the chain of custody, which is a legal issue, was critical to the reliability of the scientific evidence.

Fifth, trial counsel prematurely placed DuBois on his witness list and then failed to mitigate this mistake. Because trial counsel dragged his feet in hiring and debriefing DuBois, he had to put DuBois on his witness list before he was aware how DuBois would testify. See Skaggs, 235 F.3d at 270 (rejecting time-pressure as excuse for counsel's performance when the time pressure was itself caused by counsel's "wait[ing] until the eleventh hour to prepare for the penalty phase and to line up a psychiatric expert to testify on [defendant's] behalf"). This became a problem, as once counsel decided against using DuBois, the State subpoenaed him to testify on its behalf. Nor, at this point, did counsel attempt to quash the subpoena or otherwise contest the testimony, or even cross-examine DuBois when he testified.

Finally, counsel failed to offer any competing scientific evidence. Of course, it is not always the case that "counsel must continue looking for experts just because the one he has consulted gave an unfavorable opinion." Dees, 904 F.2d at 454. However, the testimony of Custer and Armstrong makes it clear that, even in 1986, a reasonably diligent attorney would have found witnesses to attack the State's conclusions. And "[w]here there is substantial contradiction in a given area of expertise, it may be vital in affording effective representation to a defendant in a criminal case for counsel to elicit expert testimony rebutting the state's expert testimony." Knott v. Mabry, 671 F.2d 1208, 1213 (8th Cir.1982). Nor was this a case in which counsel would have had to uncover an expert willing to spew junk science, because Armstrong and Custer both agreed that the scientific standards prevailing in 1986 would have seriously undermined the State's results, and both testified that they would have been available to apply such standards. See Soffar v. Dretke, 368 F.3d 441, 477 (5th Cir.2004) ("As was made evident during the state habeas proceedings, ... defense counsel would not have had to look far to find a ballistics expert who could have provided testimony to aid his defense.").

Instead, counsel adopted a defense that rendered Richey a sitting duck. Given the testimony of witnesses that Richey was upset at his ex-girlfriend and had made threatening comments, trial counsel's theory--that the fire was intentionally started by someone else--was doomed to fail. See Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.1993) (presentation of alibi defense did not excuse counsel's failure to investigate possibility that defendant in rape case was impotent, given that "[defendant's] alibi defense was vulnerable"--"[t]he vulnerability of the alibi defense shows the unreasonableness of the attorney's failure to investigate further and present the impotency defense"). And even if counsel had reasonably believed that this defense had merit, he could not have made an informed choice without reasonably investigating the alternatives. See Soffar, 368 F.3d at 474 ("[A]n actual failure to investigate cannot be excused by a hypothetical decision not to use its unknown results.").

rial counsel's failure to screen, supervise, or engage DuBois left Richey with little more than "a warm body with a prefix attached to his name," Skaggs, 235 F.3d at 273 n. 3 (quoting Ramdass v. Angelone, 187 F.3d 396, 411 n. 1 (4th Cir.1999) (Murnaghan, J., dissenting)). In a case anchored by scientific evidence, the failure to subject this evidence to meaningful adversarial testing was woefully deficient. Moreover, we are unable to articulate any sound professional reason why counsel did not do so. The dissent argues that counsel was obligated to provide DuBois's name as a potential witness, and that the prosecution's use of the defense's expert does not violate the defendant's rights. While we agree that Richey's rights were not violated simply because the State used DuBois as its own witness, we believe that given the context here--where the defendant had a single expert witness who conducted no independent analysis and then became the witness for the other side without any cross-examination--there was a massive failure by trial counsel in his handling of the expert witness. Accordingly, we must conclude that counsel's performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. The state court's conclusion to the contrary was unreasonable.

b. Prejudice

We proceed to measure prejudice. In order to show prejudice, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt about his guilt." Combs, 205 F.3d at 290. "A reasonable probability is a probability sufficient to undermine confidence in the trial's outcome." Foster, 9 F.3d at 726. In determining whether there was prejudice, we "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695. The prejudice inquiry is complicated slightly in this case because trial counsel's errors were twofold: deficiencies plagued both his hiring and handling of DuBois. Under either scenario, however, the evidence of prejudice is overwhelming.

Had counsel made the effort to find a qualified expert, rather than blindly hiring DuBois, the expert would have had the expertise and wherewithal to undermine the State's evidence that the fire was caused by arson. Custer and Armstrong highlighted a litany of irregularities in the State's scientific evidence. First, Custer revealed alternative explanations for the circumstances that led Cryer to finger arson as the culprit, and surmised that the fire was more consistent with an accidental outbreak. Second, Armstrong opined that "there is no evidence of an identifiable ignitable liquid in any of the samples from the fire scenes." Moreover, the blunders that Armstrong highlighted--the State's failure to use accepted methodology, use control groups, and eliminate other explanations, to name a few--would likely have led the factfinder to adopt the defense's understanding of the science.

Custer and Armstrong similarly explained, without refutation, that the scientific standards upon which they relied were widely accepted in 1986, leaving little doubt that counsel would have been able to find a competent expert had he bothered to look for one. See Horsley v. Alabama, 45 F.3d 1486, 1495 (11th Cir.1995) ("[T]o prove prejudice by failure to investigate and failure to produce a certain kind of expert witness, a habeas petitioner must demonstrate a reasonable likelihood that an ordinarily competent attorney conducting a reasonable investigation would have found an expert similar to the one eventually produced."). Indeed, both Custer and Armstrong averred that they would have served as experts at the time, had they been contacted by counsel.

These experts' attacks on the State's evidence would have been all the more powerful given the absence of corroborating physical evidence. Neither Richey's clothing, boots, or bandage revealed the presence of accelerants. No empty cannisters of flammable liquids were found at or around the scene. And the owner of the neighboring greenhouse--from which the State theorized Richey stole the accelerants--was unable to determine whether anything was missing.

Furthermore, even if counsel's initial decision in hiring DuBois was proper, counsel's ineffective handling of DuBois resulted in prejudice to Richey. First, counsel's delays in hiring DuBois, and his arbitrarily limiting the hours that DuBois could work without understanding what type of work needed to be done in this case, made DuBois more dependent on the legwork of the State's experts, whose conclusions he was already predisposed to accept. Moreover, counsel's procrastination forced him to disclose DuBois as a potential witness before he knew whether doing so would benefit his client. The result was that the State was able to present not only the testimony of its own scientists, but also use Richey's own expert against him. Cf. Bloom, 132 F.3d at 1278 (finding prejudice when "[expert]'s report, which he now acknowledges was inaccurate, permitted the prosecution to turn Kling's trial testimony against [defendant]").

Second, trial counsel's failure to supervise DuBois left him unaware that DuBois was being spoon-fed results from the State, rather than conducting an independent analysis of the data. Counsel's failure to engage DuBois meant that possible deficiencies in the State's evidence were never explored, and also left him wholly unprepared to challenge the State's evidence or to cross examine his own expert as later became necessary. See Skaggs, 235 F.3d at 274 (prejudice when "defense counsel failed to prepare or present any other meaningful mitigation evidence that might have compensated for their use of [an unqualified expert]").

Finally, trial counsel's failure to fully inform DuBois about the carpet samples' excursions at the garbage dump and parking lot deprived DuBois of all the information he needed to draw his conclusions, and made him more likely to agree with the conclusions of the State. Indeed, DuBois has subsequently indicated that his conclusions would likely have changed had he been fully informed about the chain of custody problems. Bloom, 132 F.3d at 1276 (finding prejudice from failure to disclose information to expert given that "had he been provided with this information at the time of his original evaluation, he would have altered his conclusions").

The record indicates that a competent arson expert--fully informed and supervised, and using the methods available to him at the time of trial--would have all but demolished the State's scientific evidence, and with it a large part of the case against Richey. See Foster, 9 F.3d at 722 (finding prejudice because "[i]f the attorney had investigated further, he would have discovered objective medical evidence casting substantial doubt on the victim's story"). The State presented other evidence, of course, which demonstrated Richey's motive, means, and opportunity. But the prejudice inquiry is not the same as the sufficiency of the evidence analysis or the analysis that a court might perform when deciding a motion for summary judgment. As the Fifth Circuit has explained, we need not find "that a reasonable jury could not have reached the same verdict if counsel had performed effectively." Johnson v. Scott, 68 F.3d 106, 109 n. 4 (5th Cir.1995). Richey "need not show that he could not have been convicted. Instead, he need only undermine our confidence in the trial's outcome." Foster, 9 F.3d at 726.

Witnesses, moreover, are not always believed. Just as an alleged victim's testimony that the defendant had raped her became far less persuasive given evidence that the defendant was impotent and thus physically incapable of raping her, see id., the testimony of Richey's acquaintances and Hope Collins, who had a motive to downplay her own responsibility for her daughter's death, would have been far more vulnerable to impeachment and skepticism absent evidence that the fire stemmed from arson. See also Combs, 205 F.3d at 290 (finding prejudice from defense counsel's mishandling of scientific evidence of defendant's mental capacity for acting with "purpose and intent," even though "the State presented other evidence of [defendant]'s purpose and prior calculation and design"); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9th Cir.1996) (finding prejudice from defense counsel's failure to pursue evidence that semen found at scene of the first of a series of rapes did not come from defendant, even though defendant had made detailed confession to the rapes); cf. United States v. Tarricone, 996 F.2d 1414, 1419 (2d Cir.1993) (finding prejudice from defense counsel's failure to pursue exculpatory handwriting evidence, even though there was other circumstantial evidence of defendant's guilt).

Accordingly, we find that counsel's incompetent handling of the sole forensic expert in this case fell far below the wide range of acceptable professional standards, and that absent counsel's grave mistakes, there is a reasonable probability that the three-judge panel would have at least had a reasonable doubt as to whether Richey set the fire that ultimately caused the death of Cynthia Collins.

FOCUS

To return soon with lethal injection discussions.

AROUND THE WEB

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

Florida Supreme Court Judge Criticizes "Worst Lawyering I've Seen"

Justice Raoul Cantero (pictured), recently appointed to Florida's Supreme Court by Gov. Jeb Bush, criticized the quality of private lawyers handling the appeals of death row inmates, noting that some attorneys have botched cases, muddled and omitted key arguments, and generally performed "the worst lawyering I've seen." He also seriously questioned Governor Bush's effort to replace the state-run regional offices that handle death penalty appeals with private attorneys as a cost-cutting measure.

To date, lawmakers have closed one of Florida's three Capital Collateral Regional Counsel offices. The state has registered 150 private lawyers to take over the cases formerly handled by that office, as well as to handle any overflow cases from the remaining two regional centers. Cantero stated that the minimal qualification standards for attorneys wishing to be listed on this registry have resulted in some of "the worst briefs that I have read." He emphasized that an attorney familiar with a few burglary trials does not have the skills to replace someone devoted to the highly specialized death row appeals process, which takes years to master. Cantero noted, "I'm not sure we have enough quality lawyers out there that would be able to pick up the slack.... Some of the registry counsel have little or no experience in death penalty cases. They have not raised the right issues. Sometimes they raise too many issues and still haven't raised the right ones. In arguments, they're unable to respond to questions, or they don't know what the record shows. They don't have a real good understanding of death penalty cases.... For us to wade through the morass of baseless claims takes a lot of work for the justices and eventually leads to a lot of inefficiencies in the process. That takes a lot of time that we can be spending on civil cases, on other criminal cases, on important issues."

Governor Bush is seeking to close all three of the state's Capital Collateral Regional Counsel offices and to completely privatize appellate representation. Representative Joe Negron, a top-ranked Republican who supported closing the first regional center, stated that Cantero's remarks would "carry a lot of weight" as lawmakers decide this spring whether to proceed with plans to close the remaining two offices or eliminate the privatization plan.

(Miami Herald, January 28, 2005). See Representation.

Connecticut Legislative Hearings Exhibit Strong Opposition to the Death Penalty

A retired prison warden, victims' family members, and a former death row inmate were among the nearly 75 speakers at a state Judiciary Committee hearing in Hartford, almost all of whom proposed ending Connecticut's death penalty. Many of the witnesses noted that the death penalty brings no relief to victims' family members, fails to deter murder, risks innocent lives, and is applied in an arbitrary way.

"I'm here to tell you that I never met an inmate for whom I had no hope," said Mary Morgan Wolff, a former state deputy warden who worked 37 years for the state Department of Corrections.

Laurence Adams, a former death row inmate from Massachusetts, told the committee that he was freed in 2004 by long-forgotten evidence proving his innocence. "I'm here today because Massachusetts abolished the death penalty," he noted as he described his 30 years in prison for a crime he did not commit and the likelihood that he would have been executed long before his recent exoneration if the state had not ended capital punishment.

During later testimony, Elizabeth Brancato said that despite her initial rage and belief that the man who murdered her mother should be executed, she later concluded that his execution would not bring her peace.

Testimony from Connecticut's chief public defender noted that of the 69 people who have been convicted in Connecticut of capital crimes, only seven are on death row and six of those men were prosecuted in one jurisdiction. "The determination of who lives and who dies is totally subjective and controlled by a variety of arbitrary factors," said Gerard Smyth.

(Hartford Courant, February 1, 2005). See Life Without Parole, Innocence, and Victims.

NEW VOICES: Federal Judge Calls for More Resources for Texas Death Penalty Trials

Judge Patrick Higginbotham of the U.S. Court of Appeals for the 5th Circuit called on Texas to pay more than 'lip service' to providing individuals facing the death penalty with a truly fair and constitutional trial. He stated that more resources must be placed on training attorneys and judges at the trial level in order to protect against executing the innocent. Higginbotham, writing along with attorney Mark Curriden of Vinson & Elkins, noted that during the past three years, the U.S. Supreme Court has reviewed seven capital cases from Texas and reversed all seven. Moreover, "the Supreme Court and lower courts have overturned 165 Texas death penalty convictions or sentences since capital punishment was reinstated three decades ago."

"The cases include instances in which defense attorneys slept through trial, came to court intoxicated, or did very little work on their clients' behalf. There are cases in which prosecutors withheld evidence or allowed witnesses to fabricate testimony. And there are cases in which judges misinterpreted the law, mishandled jury selection, or issued flawed jury instructions."

They highlighted the training programs of the Center for American and International Law, a nonprofit corporation that promotes continuing legal education. The Center will conduct programs for defense attorneys, judges and prosecutors in 2005. (The Dallas Morning News, January 23, 2005). See Representation, Innocence, and Costs.

POSSIBLE INNOCENCE: Federal Appeals Court Reverses Capital Conviction of British Foreign National

A federal appeals court has ruled that Ohio must either retry British foreign national Kenny Richey within 90 days or free him from death row. The U.S. Court of Appeals for the 6th Circuit threw out Richey's 1987 conviction and death sentence in the arson death of 2-year-old Cynthia Collins, ruling that prosecutors failed to offer sufficient evidence of Richey's guilt. The court also found that his court-appointed attorney was "outside the wide range of professionally competent assistance" because he failed to challenge the state's evidence. The opinion stated: "The record indicates that a competent arson expert - fully informed and supervised, and using the methods available to him at the time of the trial - would have all but demolished the state's scientific evidence, and with it a large part of the case against Richey.... Based on the state of the law at the time of his actions, the only way that Richey could have been constitutionally convicted of aggravated felony murder would have been upon a showing that Richey intended to kill the person that actually died. Because it is undisputed that there was no evidence to that effect, Richey's conviction necessarily lacked the support of sufficient evidence." (Emphasis added).

Richey is the only British foreign national on death row in the United States, and his case has been closely monitored in the United Kingdom. In response to the ruling, Alistair Carmichael, a member of the British Parliament who visited Richey in 2004, stated that it was "excellent news for all of us who have campaigned to highlight the flaws in the conduct of Kenny Richey's initial trial. Where so much doubt exists about the safety of a conviction it would be an offense against humanity to carry out a death sentence." (Toledo Blade, January 26, 2005). See Foreign Nationals and Innocence.

NEW RESOURCES: State Information Now More Readily Available

DPIC has added a new easy-to-use state database of death penalty information to its Web site. In addition, Richard Dieter's (DPIC's Executive Director) testimony before the New York State Assembly Standing Committees on Codes, Judiciary, and Correction regarding the costs of the death penalty is also available. The Committees are holding hearings on whether New York should re-instate the death penalty.

To access information on any state's death row population, the number of exonerations, executions, or clemencies, and to learn facts about the state's history of the death penalty, and more: Click Here. For the testimony on costs: Read the PDF File of Mr. Dieter's testimony (January 25, 2005).

Former Death Row Inmate Wins $6.6 Million Lawsuit Against FBI Agents

Former Illinois death row inmate Steven Manning (pictured) has been awarded $6.6 million in a civil lawsuit against two FBI agents. A jury found that the agents had framed Manning twice, including once for murder. The jury found FBI agents Robert Buchan and Gary Miller liable of concocting evidence to frame Manning, their one-time informant and a former Chicago police officer, in the murder of a trucking firm executive and in the kidnapping of two Missouri drug dealers. Manning's attorney, Jon Loevy, noted that the agents were motivated by revenge because Manning had sued them for harassment after quitting as an informant. Manning's wrongful convictions were overturned and he was eventually released from death row in February 2004. "He was in prison with the worst of the worst. Everybody was a murderer or a rapist and they all hated cops. It was hell," said Loevy of Manning's case.

At a time when Illinois had carried out 12 executions, Manning was the 13th death row exoneree in the state to be freed. His exoneration was among a series of events that prompted then-Governor George Ryan to declare a moratorium on executions until the state took steps to address its flawed capital punishment system. The civil judgment against the federal agents may be paid by the federal government. The agents found liable in the case are unlikely to face charges. (Reuters, January 25, 2005). See Innocence and Costs.

New Voices: Key New York Legislator Doubts Need For Death Penalty

New York Assembly Speaker Sheldon Silver voiced serious doubts about the necessity for capital punishment in light of its high cost and the alternative sentencing option of life without parole. Silver, who supported the death penalty in the past, said: "I have some doubt whether we need a death penalty.... We are spending tens of millions of dollars [that] may be better spent on educating children." He also remarked that the life-without-parole statute the state now has in place ensures that those convicted of murder can't go free. Last year, New York's Court of Appeals declared the state's death penalty statute unconstitutional. Any attempt to correct the unconstitutional provisions in the law would have to be considered and passed by the Assembly of which Silver is the Speaker. New York Senate Majority leader, Republican Joseph Bruno, has predicted that the Assembly will not pass a bill attempting to fix the statute. (Democrat and Chronicle, January 27, 2005). See Life Without Parole and Costs.

"The Exonerated" Premieres on Court TV

On Thursday, January 27, a movie based on the acclaimed play "The Exonerated" will air on Court TV at 9 p.m. EST. The movie features award-winning actors Susan Sarandon, Danny Glover, Aidan Quinn, Brian Dennehy, Delroy Lindo, and David Brown, Jr. giving voice to the troubling stories of six persons originally condemned to death but who have since been freed from death row. It follows the original theater script by Jessica Blank and Erik Jensen. For more information, see "The Exonerated" on Court TV's Web site. See also, Innocence.

Cleveland Plain Dealer Series Examines Possible Innocence in Spirko Case

A three-part series appearing in the Cleveland Plain Dealer examines the capital conviction of John Spirko, who remains on Ohio's death row for the 1982 murder of Elgin, Ohio postmaster Betty Jane Mottinger. The paper's investigation found that Spirko's imagination and "not much else" had brought him to the brink of execution despite concerns of his innocence. Shortly after Mottinger's body was found, Spirko voluntarily contacted police to provide information about the murder. According to the paper's investigation, Spirko's ill-conceived plan was to use false information about the crime as leverage to secure a sentencing deal for two unrelated felonies and an agreement that his girlfriend would be given probation for assisting him in a prison escape attempt. Federal authorities initially agreed to his terms and conducted a series of 15 interviews with Spirko, most featuring a shifting and contradictory series of accounts that Spirko said he learned about at several Toledo-area parties.

Six weeks after the interviews began, Spirko, a known liar within the law enforcement community, "had talked himself right onto Ohio's death row." More than two decades later, the Plain Dealer's news investigation of Spirko's case details the role that over-zealous investigators, prosecutorial misconduct, and conflicting eye-witness testimony have played in Spirko's case. Judge Ronald Lee Gilman of the U.S. Court of Appeals for the 6th Circuit stated in a dissenting opinion that the state's case against Spirko was built "on a foundation of sand" and that the "complete absence" of physical evidence against him raised considerable doubt about his guilt. (The Plain Dealer, January 23-25, 2005). See Part 1, Part 2, and Part 3 of the series. See also Innocence.

Wrongful Convictions Raise Concerns About New York's Death Penalty

In a recent op-ed in the Albany Times Union, criminal justice expert Scott Christianson asked that state leaders consider New York's well-documented problems with wrongful convictions before trying to fix the state's unconstitutional death penalty statute. Christianson, a former state criminal justice official, documented more than 130 cases (most of them involving convictions since 1980), in which innocent persons were convicted (mostly of murder) and sentenced to long prison terms in New York. Experts have found that from 1 to 10 percent of those convicted of a felony in New York are actually innocent, and these proven cases are "simply the tip of the iceberg," according to Christianson. He wrote further: "In the past, prosecutors didn't have to worry as much that their mistakes would ever come to light. Today, however, with the advent of DNA and possibly other definitive technologies, actual innocence in some cases threatens to become positively established even after an offender has been convicted or even legally executed. ... Any proven wrongful conviction can expose serious injustices and undermine respect for law enforcement."

Among Christianson's recommendations for addressing these concerns are reforms such as requiring a specific state agency to maintain a database of defendants who have been found wrongfully convicted and convening a blue-ribbon panel to hold public hearings and report its findings. Christianson also believes that New York should require the videotaping of police interrogations, overhaul its public defense system, and hold those involved in improperly prosecuting cases accountable for their actions. Based on the studies and data Christianson concluded, "The inevitability of error is just one reason why the death penalty is a bad idea. But it's one that fair-minded citizens . . . can understand." (Times-Union, January 23, 2005). See Innocence.

Kentucky to Conduct Hearing on Whether Lethal Injection Is Humane

In Kentucky, a Franklin Circuit Court judge will hear evidence for possibly five days in April on whether the state's method of executing prisoners is humane. Medical experts will testify about the drugs, dosage and training of the people who administer the 3-drug lethal-injection cocktail. Lawyers for condemned inmates Thomas Clyde Bowling Jr. and Ralph Baze sued the state in August, saying Kentucky's method of execution violates a prisoner's Eighth Amendment right not to be subjected to cruel and unusual punishment.

Among the issues to be reviewed are the type of chemicals used in lethal injection, the dosage, and how much of the drugs make it into the body of the condemned. Kentucky has executed only one person, Eddie Lee Harper, by lethal injection, in 1999. In court papers, Baze and Bowling's lawyers have argued that there is more than a 50 percent chance that Harper was awake when the third drug was administered, meaning he could have felt pain. But because the state uses a drug called Pavulon, which paralyzes the muscles, Harper could not have communicated that he was in pain. (Kentucky Herald-Leader, Jan. 20, 2005). See Methods of Execution.

Georgia's Death Row Faces a Crisis Without Adequate Legal Representation

Seven people on Georgia's death row are without legal representation as they face their final rounds of appeal. Georgia does not guarantee publicly funded lawyers for death row inmates beyond the first round of appeal. According to many legal experts, including retired Georgia Supreme Court Chief Justice Harold Clark, the failure to provide legal counsel increases the likelihood of a wrongful execution. "It's a very important check in the system that's missing. There can be slips in the process along the way. When you've got a person sitting on death row who shouldn't be there, I can't think of many things more serious than that," said Clark.

Currently, the Georgia Appellate Practice and Educational Resource Center represents 55 of the state's 113 death row inmates, but the lack of sufficient funding and staff prevent it from taking all the cases on death row. The Center has asked Georgia's legislature for a 25% increase in its budget to offset the loss of three attorneys who had been funded through fellowships. If the funding increase is denied or if the Center's budget is cut, dozens of others on Georgia's death row could be without legal representation. "That would be a public disaster," said Emmet Bondurant, who chair's the Center's board. "You'll be basically increasing the odds that people will be executed whose constitutional rights were violated or who, as the DNA exoneration cases have shown, may be...actually innocent."

(Associated Press, January 18, 2005). See Representation.

NEW VOICES: Understanding Mental Illness and the Death Penalty

In a recent Hartford Courant opinion piece, psychiatrist Robert C. Goodwin spoke about the mental illness afflicting Michael Ross, who is scheduled for execution in Connecticut on January 26. Dr. Goodwin was a psychiatric consultant to the state of Connecticut from 1983-2001 and took part in Michael Ross' evaluation and treatment over the years, appearing as an expert witness in Ross' second trial. Dr. Goodwin believes the execution should be stopped:

Although demonstrably sane, Ross suffers from a clear-cut, well-documented case of the most severe sort of paraphilia (sexual deviation). This is not just my view. It is the considered opinion of almost every psychiatrist and mental health professional who has examined him, including at least one who customarily testifies for the prosecution. In Ross' case, the condition resulted in intense, constant and virtually irresistible violent fantasies toward women.

He likened his fantasies to a loud, abrasive college roommate who plays music at maximum volume all day long. In other words, they weren't fun.

An indication of the forcefulness of his desire to rid himself of them: Shortly after his first sentencing, he began to receive a hormonal preparation called Provera. The drug proved extremely effective in curbing his fantasies, but it had an insurmountable drawback; it caused abnormal liver-function tests. If he remained on it, he would almost certainly die of liver failure. Ross said he wanted to stay on the drug, even knowing it might kill him. He was even willing to sign a waiver absolving the state from responsibility for adverse consequences. When his request was denied, he successfully brought suit to receive a similar but more expensive drug called Depot Lupron.

The Ross case brings up a point so obvious that it can easily be overlooked: Someone might be absolutely sane, yet have an incapacitating psychiatric disorder. Consider the businessman who washes his hands 100 times a day and spends the entire morning taking a shower, or the housewife too depressed to get out of bed, or the college student who panics whenever he enters a classroom. They may all be sane (they probably are). Still, their symptoms wreak havoc with their lives.

Jurists appreciate this point, at least in theory. In most states, and most nations, a criminal is absolved of responsibility for his acts if they result from mental illness, whether or not the illness is a psychosis. Putting aside the niceties of psychiatric diagnosis and criminal law, however, one intuitively senses that a man who rapes and kills half a dozen women, who takes huge chances in doing so (his last crime was committed in broad daylight near a busy highway), and who risks his life and liberty in the process isn't thinking right. By the same token, a man who submits to chemical castration to rid himself of his symptoms is apt to be significantly impaired, whether or not he meets the criteria for insanity.

The many arguments against the death penalty, however convincing to some of us, remain abstractions. Michael Ross, whatever else he might be, is no abstraction. He is a profoundly impaired man whose life is made marginally tolerable by potent medication that turns him into a eunuch. To execute him would be analogous to executing a schizophrenic, a man with an IQ of 50 or a psychotically depressed woman who killed her children because she thought she was rescuing them from an evil world. I submit that in any or all of these cases, including Ross', a state-sponsored killing is unacceptable.

(Hartford Courant, January 16, 2005). See Mental Illness and New Voices.

Kansas Death Penalty Advisory Committee Releases Report

A recent report issued by the Kansas Judicial Council Death Penalty Advisory Committee examines the state's application of capital punishment and the hefty price tag of seeking the death penalty. The Committee found that since Kansas reinstated the death penalty in 1994 there were 44 potential capital cases involving minority victims. However, none of these cases resulted in a death sentence. Of the eight defendants in Kansas who did receive death sentences, all of their victims were white. Of those eight cases, six originated in Sedgwick County and only two cases were from the entire rest of the state.

This disparity may be partially due to the high costs associated with capital punishment. The report noted that the cost of prosecuting a death penalty case is generally quite high because each side is more likely to employ costly expert witnesses and subsequent appeals are financially draining. The Committee concluded that larger and more populous counties in Kansas - such as Sedgwick County - can more readily absorb the cost of death penalty litigation because of a larger tax base.

In addition to the issues of race, costs, and geographic disparity, the panel also examined issues such as innocence, deterrence, and the state's ability to meet the needs of all murder victims' family members. (Report of the Kansas Judicial Council Death Penalty Advisory Committee on Certain Issues Related to the Death Penalty, November 2004) Read the Report. See also, Race and Costs.

AROUND THE BLOGS

Around the Blogs this week looks at postings from TalkLeft, CrimProfs Blog, Sentencing Law and Policy, Abolish the Death Penalty and The Lonely Abolitionist:

TalkLeft (http://talkleft.com) notes:

Ken Starr For the Defense

Wonders never cease. Ken Starr is representing a death row inmate in Virginia, seeking to overturn his conviction. At no charge.

Conn. Holds Hearings On Abolishing the Death Penalty

The Connecticut Legislature held hearings yesterday on abolishing the death penalty.

Murder victims' relatives, a retired prison warden and even a former death row inmate were among dozens Monday who spent hours urging a state legislative committee to scrap Connecticut's death penalty.

Almost all the 75 speakers at the judiciary committee's hearing in Hartford backed a proposal to abolish the death penalty and make life in prison without release the state's worst punishment.

Among the great quotes of the day:

"I'm here to tell you that I never met an inmate for whom I had no hope," said Mary Morgan Wolff, a retired state deputy warden who worked 27 years for the state Department of Correction.

Deadline: The Movie - Still in Demand

A year ago former Ill. Governor George Ryan was at Sundance for the premier of the movie Deadline, about his granting of clemency to Illinois's death row inmates. The movie has a weblog, which we wrote about here.

The film's recent screening in Urbana was a sellout. Here's more. And even more from Crim Prof Blog

CrimProf Blog (http://lawprofessors.typepad.com/crimprof_blog/) notes:

The Felony-Murder Rule and The "Inherently Dangerous" Requirement

The Supreme Court of California held last week in People v. Howard, S108353, that the crime of "driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer" is not an "inherently dangerous" crime for purposes of the felony-murder rule. California determines whether a crime is inherently dangerous by looking at the elements in the abstract as opposed to how the crime was actually carried out in the case in question. The Court noted:

"Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673; but see People v. Henderson (1977) 19 Cal.3d 86, 96, 137 Cal.Rptr. 1, 560 P.2d 1180), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354, 92 Cal.Rptr.2d 727; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169, 17 Cal.Rptr.3d 604, 95 P.3d 872 [quoting Clem with approval] ), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271, 74 Cal.Rptr.2d 7), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377, 68 Cal.Rptr.2d 61; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299, 280 Cal.Rptr. 584), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646, 3 Cal.Rptr.2d 343). Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96, 137 Cal.Rptr. 1, 560 P.2d 1180); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41, 98 Cal.Rptr. 33, 489 P.2d 1361); possession of a sawed-off shotgun (id. at pp. 41-43, 98 Cal.Rptr. 33, 489 P.2d 1361); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52, 98 Cal.Rptr. 44, 489 P.2d 1372); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583, 51 Cal.Rptr. 225, 414 P.2d 353); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458, 47 Cal.Rptr. 7, 406 P.2d 647); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238, 72 Cal.Rptr.2d 918); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099, 8 Cal.Rptr.2d 439); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229, 286 Cal.Rptr. 117)."

The ruling in Howard was based on the fact that California defines "driving with a willful or wanton disregard for the safety of persons or property," to include any flight from an officer during which the motorist commits three traffic violations that are assigned a "point count" under section 12810, or which results in "damage to property." Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds.(e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)). Since these violations are not inherently dangerous to human life, and since it is conceivable that someone could commit the crime in question by simply driving with a suspended license and failing to signal 100 feet before a stop sign, the crime in the abstract could not be considered inherently dangerous. Thus, the felony-murder rule was inapplicable. [Mark Godsey]

Two Murder Exonerations in Chicago; Tribune Forensics Package Available

Two men who served 12 years for murder were exonerated on Monday based on DNA. This link also has the Chicago Tribune's package on flawed forensic evidence, and on the criminal justice system in Chicago, through the NY Newsday site. When the Tribune suggested the prosecuting attorney re-investigate the cases of a detective whose work led to over a dozen questionable confessions, including the confessions in this case, a spokesperson replied: "There's no reason to review every single case of a detective," Milan said after the hearing. "This detective has had a long career, a good career," which included getting a murder confession from a suspect who was in jail when the crime was committed. [Jack Chin]

Zoloft Defense

MSNBC.com reports: "A teenager who shot and killed his grandparents as they slept is "a shy, decent boy" who was led to kill by the antidepressant Zoloft, his attorney said as the boy went on trial." Story . . . [Mark Godsey

Prominent DA in Texas Arrested for Possessing Meth and Coke

. . . and an illegal firearm on top of the dope. The defendant, Rick Roach, is several days into his second term as DA of five counties in Texas. His secretary has also stated that she has seen him ingest meth. More . . . [Mark Godsey] UPDATE: The've found 35 guns in his home and office. Ascording to the AP, "Federal prosecutor Christy Drake wouldn't discuss whether Roach owned the guns legally, whether they were evidence from criminal cases Roach's office handled, or why Roach had so many guns. "The origin of those guns I can't really comment on, other than to say they traveled in interstate commerce," Drake said." Translation: He's getting charged for the guns. [Jack Chin]

New Article Spotlight: Analyzing the Consent Searches Doctrine

SimmonsCrimProf Ric Simmons of Ohio State has published Not "Voluntary" But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine in the Indiana Law Journal. Here's the abstract:

In the wake of the recent Supreme Court case United States v. Drayton, this article dissects the current jurisprudence regarding consensual searches, which seems to be disconnected from the practical reality of a police/civilian interaction. My thesis is that we need a new paradigm for evaluating these searches, both to assist courts in judging the validity of consent, and also to better understand how courts are arriving at the decisions that they make. Under the old paradigm, courts have been using the "voluntariness" paradigm, derived from the Due Process clause, which (in theory) looks to the subjective state of mind of the individual being searched to determine whether the consent was "voluntary."

I argue that this paradigm is clumsy and fails to capture the critical nuances of the interaction between the police and civilians. It is so unworkable that the Supreme Court has already begun using a different test in practice, even as it maintains the rhetoric of "voluntariness." I therefore propose that we adopt a "compulsion" paradigm, based on the reasonableness standard of the Fourth Amendment. Under this new paradigm, the court would conduct a purely objective inquiry into the conduct of the law enforcement official. As part of the inquiry, the court would examine the degree of compulsion that was applied and also evaluate the types of compulsion used by the law enforcement officer. I justify my theory through an examination of the consent searches jurisprudence, a comparison with the voluntary confession jurisprudence, and a review of psychological studies on obedience to authority. [Mark Godsey]

New Documentary Film About Gov. Ryan's Decision to Commute Death Row

A new documentary film has been released titled "Deadline." A review here says "[t]he film chronicles the time leading up to Governor Ryan's landmark 2002 blanket commutation. Courtroom footage, interviews with the exonerated, their families, organizations for and against capital punishment, and victims' families, reveal the miscarriages of justice that the system permitted, but also the devastation that those errors, like the crimes themselves, had left in their wake. It contextualizes the debate in history -- the 1972 the US Supreme Court found capital punishment to be a violation of the 8th Amendment of the Constitution (cruel and unusual punishment), but the ban was short-lived, and capital punishment was resumed in 1977 -- and showed that the Governor, a Republican in favor of the death penalty, truly agonized over the decision before him. He met with groups and legislators for and against capital punishment, and reviewed the cases, all the while aware that opposition to the death penalty was unpopular, a political Achilles' heel belaying to some a softness of crime.

Like the file folders probably crossing the Governor's desk at the time, the film shifts straight-forwardly from case to case, in a well-produced and highly articulate display of the multiple sides and situations, from Illinois to the whole country, and from over 30 years ago to the Clinton and Bush administrations. Lobbyists lobbied right up to the eve of Ryan's decision. A petition arrived from all of the Illinois exonerated -- captured in the film as a solemn but ambitions relay march from the state prison to the Governor's office, in which one man said that 'only through miracles did the truth emerge' bringing justice to the valley in which they walked -- to a spokesman for the Governor. Ryan also met with victims' families. As the time went on the media speculated one way then another, as the Governor himself said that his own heart went from pro to against as he deliberated." [Mark Godsey]

Exoneration Roundup

A California high school coach publicly identified as a molestation suspect but not charged was awarded $4.5 million in a civil suit. A British pathologist is undergoing a disciplinary hearing for concealing evidence in a wrongful conviction case. A Chicago college student was charged with making a false rape allegation. A Canadian pathologist testified in a board of inquiry that pathologists should not appear for the prosecution or defense, but rather as impartial friends of the court. A Washington state firefighter was charged with arson and attempted murder after his house burned and flammable materials appeared on the computer records associated with his Safeway shopper card; charges were dropped when someone else confessed. [Jack Chin]

DNA Test Links Killer, then Four Years Old, to 1969 Murder

The 1969 murder of University of Michigan Law student Jane Mixer led to an arrest in November, 2004 based on a DNA match. Mixer had been shot and strangled with silk stockings, but had not been sexually assaulted. Further DNA testing gave rise to startling results. According to the Detroit Free Press: "A 35-year-old murder mystery deepened Friday as a State Police scientist testified that DNA from two people was found on the body of a slain University of Michigan law student. One DNA sample was traced to the man charged with killing Jane Mixer in 1969 and the other to someone who was 4 years old at the time and who grew up to brutally murder his own mother." Story here. Follow up here. Perhaps the 4 year old was indeed at the crime scene somehow. Or, perhaps the profile identification is a false hit. In the former case, it is spooky and tragic; in the latter, it is, perhaps a crack in the idea that DNA (done right) is infallible. UPDATE: Curiouser and curiouser. The Detroit Free Press reports the defendant, Gary Leiterman, was bound over for trial. It also says that Leiterman's DNA found on Jane Mixer's pantyhose was from neither blood nor semen, and that she had not been sexualy assaulted before she was shot. It is hard to explain semen from a rape or blood from a fight, but if this DNA is saliva or nasal discharge from a cough, sneeze or spit, or skin cells, then the probabtive value is much diminished. [Jack Chin]

Former Death Row Inmate Wins Millions from FBI

Former Illinois death row inmate Steven Manning recently won $6.6 million in a civil lawsuit against two FBI agents for framing him twice, including once for murder. Story . . . [Mark Godsey]

California Train Wreck Case--How Do They Get to Murder?

CourtTV reports that the man whose suicide attempt-gone-bad caused 11 deaths in the big train derailment this week in California could be facing the death penalty. Prosecutors are still deciding whether to charge him with death specs. Story . . . He was attempting to commit suicide by parking his car on train tracks, and then lost his nerve at the last second and bailed. The train smashed into his car, derailed, and passengers died.

How do they get to capital murder? One possibility is First Degree Felony Murder under California Penal Code 189: "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . train wrecking . . . is murder of the first degree."

This route is may be doubtful. California Penal Code 218 and 219 deal with train wrecking, so the use of the term in the felony murder statute probably does not deal with train wrecking in general, divorced from the specific statutory felonies. However, 218 and 219 apply to train wrecking by fire, which is not what happened in this case. (218 applies to any person "who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train").

A more promising theory is the Special Train Derailment Statute, which has its own death penalty: Cal. Penal Code 219: "Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same . . . is guilty of a felony and punishable with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof . . . ." Evidently there are no cases interpreting the section.

The critical question here is what "with the intention of derailing" means; in Model Penal Code terms, does it mean the defendant's purpose in the sense of subjective goal has to have been derailment, or is the defendant's mere knowledge, awareness of a substantial certainty that the train would derail, enough? On the evidence as reported in the newspapers, it will be easier to prove knowledge; whether he had the purpose of derailing the train is questionable.

Although there may be a California case giving a clear answer that I [Jack Chin] could not find in a quick search, what I found conflicts about the meaning of the mens rea term "intent" under California law. Compare People v. Osband, 919 P.2d 640, 681 (Cal. 1996) ("To '[i]ntend' means 'to have in mind as a purpose or goal....'" (People v. Balcom (1994) 7 Cal.4th 414, 423, fn. 2, 27 Cal.Rptr.2d 666, 867 P.2d 777") with People v. Smith, 67 Cal.Rptr.2d 604, 613 (Cal. App. 1997) ("'As Professor Perkins puts it: 'Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)."').

Other posts on this issue: CrimLaw, DUIBlog, Three Generations. The blogosphere has its doubts about these charges.

There's a federal statute covering similar ground, 18 USC 1992; it has been held not to require a specific intent to derail the train; that derailment is a natural and probable consequence of conduct wilfully performed may be enough. See, e.g., United States v. Alcorn, 329 F.3d 759 (10th Cir. 2003); United States v. Dreding, 547 F.2d 471 (9th Cir. 1976). However, the language of the federal statute and the California statute is sufficiently different that the federal decisions may not be particularly weighty.

For cases under the predecessor version, see People v. Thompson, 43 P. 748 (Cal. 1896); People v. Thompson, 46 P. 912 (Cal. 1896); for a conviction under a misdemeanor version of the statute holding that no mens rea is required, see People v. Bohmer, 120 Cal. Rptr. 136 (Cal. App. 1975). These and other California court opinions available here. [Mark Godsey and Jack Chin]

You Can't Make This Stuff Up

A man who robbed a convenience store in Minnesota was caught when he returned a few minutes later to reclaim the gun that the store clerk had snatched from his hand during the robbery. In Michigan, a woman was convicted of DUI after having had too much Listerine. Listerine contains 27% alcohol. In NC, a man who was prounced dead at the scene was taken to the morgue, where the coroner noticed that he was breathing faintly. The man was taken to the hospital where he remains in critical condition. Here's a story about some kids who drew suspicion when they started showing up before school at a convenience store to buy candy with $100 bills. Turns out, one of the youngsters had run across tens of thousands of dollars from a drug dealer's stash. A police officer in London says he has the cure for high crime rates: getting the public to read more Jane Austen novels. Finally, police in Cleveland have decided not to press animal cruelty charges against a high school student who skinned and cooked a guinea pig and rabbit that he purchased from a local pet store. An important fact in their decision not to prosecute was that the young man killed the animals for a cooking class, and the students and teacher dined on the would-be pets afterward (the fact that they ate the animals meant the killings were not "unnecessary" under the cruelty statute, according to police). [Mark Godsey]

Sentencing Law and Policy (http://sentencing.typepad.com/) notes:

A capital sentencing moment in the State of the Union

Unsurprisingly, and as I predicted here, President Bush did not discuss Booker directly in his State of the Union address tonight. The speech did have, however, this line which might have been an indirect reference to sentencing reform issues: "Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice."

Two subsequent sentences spoke more directly to issues of criminal justice concern. And, somewhat surprisingly (at least to me), theses sentences included a commitment to fund special training for defense counsel in death penalty cases:

In America we must make doubly sure no person is held to account for a crime he or she did not commit — so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction. Soon I will send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side.

Continued Connecticut capital commotion

As well covered by the blogs Kirby's Reports and Three Generations, Connecticut has hit a major roadblock in its efforts to have the first execution in the Northeast in 40+ years. This AP story provides all the details, including the fact that now, under state law, the execution cannot be scheduled for at least a month after a new warrant is issued.

As evidenced by posts here and here at Crime & Federalism, Norm Pattis is not too pleased with these developments. TalkLeft appears pleased. I continue to wonder how much time, money and energy has been expended on litigation concerning this one sad, but symbolic, case.

You never under-litigate your first

The legal wrangling over the pending execution of serial killer (and death penalty "volunteer") Michael Ross is continuing in Connecticut. Howard Bashman at How Appealing has a lot of the newspaper coverage and other materials linked here and here, and the blog Kirby's Reports continues to be the go-to source for legal news and analysis concerning Connecticut's efforts to go forward with the first execution in the Northeast in 40 years.

With all the rapid happenings, I have not been able to keep up with the legal issues in the Ross case. But I continue to view all the Ross developments as a remarkable object lesson in the symbolic significance of the death penalty. The two-bit empiricist in me wishes someone would find a way to quantify all the time, money and energy that has been devoted to determining whether and how Michael Ross, an undisputed murderer, will essentially be allowed kill himself at the state's behest.

Abolish the Death Penalty (http://www.deathpenaltyusa.blogspot.com/) notes

Mox Soffar arraignment set for today

Max Soffar, who has an unusually strong claim of innocence and whose death sentence AND conviction were thrown out by the federal courts, is in a Harris County courtroom today. The Harris County District Attorney's office apparently really is going to retry him for capital murder. We will continue to follow this case closely.

In the interim, here are excerpts from an article that just popped up in, of all places, the Jerusalem Post. The article is written by Kinky Friedman, the author/musician and, more recently, the quixotic independent candidate for Texas governor. This is weird, even by Texas standards:

Max Soffar: A Jew on death row

...Max doesn't have a lot of time and neither do I, so I'll try to keep it

brief and to the point.

"I'm not a murderer," he told me. "I want people to know that I'm not a murderer. That means more to me than anything. It means more to me than freedom."

...Somewhere along the line, Max's life fell between the cracks. A sixth-grade dropout whose IQ tests peg him as borderline mentally retarded, he grew up in Houston, where he was a petty burglar, an idiot-savant car thief and a low-level if highly imaginative police snitch.

...For the past 23 years, since confessing to that triple homicide, Max has been at his final station on the way: the Polunsky Unit, in Livingston, Texas. But he long ago recanted the confession, and many people, including a number of Houston-area law enforcement officers, think he didn't commit the crime. They say he told the cops what they wanted to hear after three days of interrogation without a lawyer present. At the very least, they say, Max's case is an example of everything that's wrong with the system.

...Another observer troubled by Max's case is Fifth Circuit Court of Appeals judge Harold R. DeMoss Jr., who wrote in 2002, after hearing Max's last appeal, "I have lain awake nights agonizing over the enigmas, contradictions and ambiguities" in the record.

Chief among these Kafka-esque elements is the fact that Max's state-appointed attorney was the late Joe Cannon, who was infamous for sometimes sleeping through his clients' capital murder trials. Cannon managed to stay awake for Max's, but he did not bother to interview the one witness who might have cleared him. There are, incidentally, 10 men on death row who were clients of Cannon's.

...[T]here was no physical evidence linking Max to the crime. No eyewitnesses who placed him at the scene or saw him do it. Two police lineups in which Max was not fingered. Missing polygraphs. If the facts had been before them, Schropp says, no jurors would have believed that the prosecution's case had eliminated all reasonable doubt.

"When you peel away the layers of the onion," he says, "you find a rotten core."

Hurray for the death penalty!

Here is a piece from Counterpunch that -- while perhaps more strongly phrased than I would have made it -- nonetheless raises a valid issue:

You really know the state killers have lost it when they call for the death penalty for someone who was just trying to kill himself in the 1st place.

That's what prosecutors are doing in the case of Juan Manuel Alvarez, the 25-year-old Californian who apparently parked his SUV on the tracks of a Los Angeles commuter train line in order to commit suicide.

Alvarez, according to news reports, lost his nerve and left the vehicle as the train approached, and escaped injury, but the resulting crash, which derailed the train, ended up killing 11 riders and injuring many others.

Death penalty aficionados, including L.A. County's vote-hungry District Attorney, see killing Alvarez as the logical punishment for his horrible misdeed. Under the Old Testament eye-for-an-eye logic of state killers in this great Christian Nation, it's kill and be killed.

But what exactly is the punishment when you kill someone who was trying to do that to himself anyway? If anything, after causing so much suffering and pain and loss of life, Alvarez probably wants to die more than he did before the tragedy. In any event, he certainly wanted to die badly enough to try to do himself in. All the state will accomplish by injecting him with their deadly cocktail of toxins at the end of a high-profile legal process and millions of dollars in legal costs will be helping him to do what he didn't have the courage to do himself.

The death penalty is a deterrent.

Texas has executed more people since 1976 than the next five states combined. So it should come as no surprise that between 2002 and 2003, Texas' murder rate increased 8.6 percent. After all, the death penalty is a deterrent.

Ooops....wait, we got that backwards. The death penalty obviously is not a deterrent. But if you are a supporter of the death penalty and you just googled the words, "The death penalty is a deterrent," then we got you, didn't we? :)

Thanks to Grits For Breakfast for pointing out this statistic to us.

The Lonely Abolitionist (http://lonelyabolitionist.blogspot.com/):

Max Soffar

Max Soffar has been on death row for over 23 years. His conviction was overturned late last year and he is being re-arraigned today in a Houston district court. Max has a very strong claim of innocence. There is no physical evidence to put him at the scene of the crime or any eye witness, and his "confessions" to the crimes all contradict one another and do not match up with the facts of the murders themselves. Why would Max confess? Well, read the article, the author does a better job of explaining the reasons than I could at this juncture.

New York Death Penalty Petition

Network for Justice is working to get folks networked together against the reinstatement of the death penalty in New York State. If you are in New York, please select the link below to go to my partner networking site with Network for Justice and sign the petition.

Michael Ross: Legal Update VI

Well, I never thought there would be a legal update VI, but there is. Michael Ross has now requested a psychiatric exam (or he will later today). His execution is scheduled for 9:00 tonight, but a request for a psychiatric exam should stay that date with death. If so, the state's death warrant will expire at the end of the night. The state will then have to go back to the courts for another warrant.

Michael Ross: Legal Update V

This time, the delay in the execution of Michael Ross is at the request of the attorney Ross hired to fight FOR his execution. The lawyer requested the delay after federal District Judge Robert Chatigny addressed him and threatened to have his license if evidence emerged that Ross is indeed incompetent and counsel fought for his execution despite knowing of such evidence. Ross is now scheduled to die at 9:00 p.m. on Monday.

Michael Ross: Legal Update IV

The Supreme Court has lifted the 22 hour stay put in place by the Second Circuit. Connecticut will execute Michael Ross at 2:01 am Saturday morning.

Michael Ross: Legal Update III

The United States Court of Appeals for the Second Circuit has overturned the temporary restraining order issued by District Judge Robert N. Chatigny on Wednesday. However, the Second Circuit stayed its ruling until 12:01 Sunday morning in order to give Dan Ross, Michael's father, time to appeal its decision to the United States Supreme Court.

If the Supreme Court rules before 2:00 a.m. Saturday morning then Ross will be executed on schedule. If it does not rule until sometime during the day on Saturday, then the state will not get its execution until after 12:01 Sunday morning. Based on its earlier rulings in this case, it is doubtful that the Supreme Court will reinvoke the restraining order. However, stranger things have happened.

The Exonerated

Court TV is showing the TV movie version of the off-Broadway play The Exonerated several times this week. I strongly encourage you to tune in. Record it and show it to all of your friends. The play is powerful and I'm sure the TV movie version will be exceptionally well done. The six real-life individuals portrayed in the play are being read on screen by Susan Sarandon, Brian Dennehy, Aidan Quinn, Danny Glover, Delroy Lindo and David Brown Jr. These are amazing actors telling heart wrenching stories. If you care about this movement (or even if you don't and you just want to view amazing true life drama), you cannot miss The Exonerated. These portrayals are real people with real histories and real experience on death row. Their stories are important.

Sarandon is a noted death penalty activist (I imagine she would be alright with that term, but to be honest I'm not sure I've seen her use it). In the article I've linked below, she is quoted as saying: "What an individual will feel or want to do is different from the rules you want your government to apply, and how you treat your prisoners and how you apply your justice is one of the main tenets of society. It's a very mixed message to teach your kids to use words to work things out and then have a government that so blithely and capriciously doles out the death penalty. It's a completely corrupt system." I've never thought to explain myself in this way. People ask me all the time what I would do if one of my beloved were the victim of a horrible murder. It's possibly the hardest question to answer. I am against the application of the death penalty in all cases, but I imagine that if someone I loved dearly were murdered my anger and grief would rock me to the core. Sarandon's statement clarifies what I want my answer to be: what I may feel or want to do is different from the rules I want the government to apply; how we treat our prisoners and how we apply justice is one of the main tenets of our society. Indeed, it speaks to the very value we place on humanity.

(As an aside, how amazing does Ms. Sarandon look in those Revlon ads she's been doing? There are so many people UNDER fifty who wish they could look like that. GOOD FOR YOU...and many props to Revlon for recognizing true quality and attraction! You go girl!)

Michael Ross: Legal Update II

In another 5-4 vote, the United States Supreme Court overturned the stay of execution granted to Michael Ross (well actually to those acting in Ross' interests) by District Court Judge Robert Chatigny earlier this week. There is one more appeal pending before the Second Circuit. Chances are, no matter how the Second Circuit rules on that appeal, the case will again go to the United States Supreme Court. Nevertheless, the State of Connecticut has scheduled Ross' execution for 2:00am Saturday morning. Barring any emergency stays to grant the Court more time for review (unlikely), Connecticut will go through with its first lethal injection and its first execution in over forty years.

Curiously, the USSC vote was 5-4. The Chief Justice has been working from home and has not been hearing oral argument or voting on many of the other non-emergency cases on the Court's 2004-2005 calendar. Yet, he took part in this vote (and has in other death penalty stay cases). As such, there was no possibility of a tie.

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