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Capital Defense Weekly, January 7, 2002

By Capital Defense Newsletter
Jan 6, 2002

The Supreme Court's sweeping holding inKelly v. South Carolinaleads off this edition.The Court in Kelly expanded the prior holdings in Simmons v. South Carolina and Shafer v. South Carolina to hold that whenever the government puts the defendant's "dangerous character" into question jury instructions on the alternative of life without parole must be given.The breadth of the impact of this decision is noted with, just in this edition alone three cases, Sallahdin, Bracey, and Lambert are potentially impacted by this decision.

Three other cases of note are also had this week. InSallahdin v. Gibsonthe Tenth Circuit has remanded on the question penalty phase ineffectiveness where trial counsel failed introduce evidence of steroid use. A non-capital district court opinion,United States v. Plaza, has held that expert witnesses may not use the term "match" when discussing fingerprints. Finally, a very troubling unpublished opinion,Robinson v. Gibbons, has upheld a sentence of death where the lone hold out and only African-American on the jury was "harassed, coerced, physically threatened and racially intimidated" into changing her vote to death.

The "Focus" section this week is a look ahead at the coming year including trends to watch, the Supreme Court docket of cases that may impact criminal law and prisoner rights (and where possible questions presented and briefs), as well as upcoming training events.

Please note thatCharlie Alstonhas won clemency in North Carolina and had his sentence commuted to life in prison without parole. More to follow on this the second commutation in as many months in North Carolina. For more complete news on Charlie Alston see the websites of the National Coalition Against the Death Penalty website (http://www.ncadp.org/) and People of Faith Against the Death Penalty (http://www.pfadp.org).

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

9 Michael Moore Texas
9 James Johnson Missouri

Executions slated and considered likely for January 2002:

16 Jamarr Arnold Texas
24 Amos King Florida
29 Stephen Anderson California
29 John Romano Oklahoma
30 Windell Broussard Texas
31 Randall Hafdahl Texas
31 David Woodruff Oklahoma

Finally, a special thank you to Jeff Gamso for the United States v. Plaza decision.

This week's edition is at http://www.capitaldefenseweekly.com/archives/020107.htm

HOT LIST CASES

Kelly v. South Carolina, 2002 U.S. LEXIS 402 (US) The Supreme Courtcalled into question, by one colleagues estimate 5-10% of the death sentences around the country in a rather dense ruling concerning jury instructions. In Kelly v. South Carolina, No. 00-9280, the justices clarified t hereach of the rule of Simmons v. South Carolina, 512 U.S. 154 (1994),concerning the due process right of a capital defendant to a jury instruction that he would be ineligible for parole if sentenced to life imprisonment rather than death.

Simmons applies not only if the prosecution argues the defendant's future dangerousness as a reason forthe imposition of a death sentence but also if the prosecution introduces, for other reasons, evidence that tends to

prove the defendant's "DANGEROUS CHARACTER", the court held in a 5-4 decision.

(See Blume, John H., Stephen P. Garvey, & Sheri Lynn Johnson. "Future Dangerousness in Capital Cases: Always 'At Issue'." 86 Cornell Law Review 397 (2001). )

TRANSLATION:

In plain English,

IF

[A]the prosecution presents evidence of a defendant's bad character in the penalty phase of a death penalty trial

AND

[B] that evidence would make a juror think that killing him is a way of protecting society,

then

[C] that jury must be informed that the person is ineligible for parole

IF

[D] at least one sentencing choice other than death is life without the possibility of parole.

We take the State Supreme Courts reasons out of order, for the second one can be answered with little more than citation to Shafer, in which we reversed a South Carolina judgment last Term. The state court said that Simmons is inapplicable under [South Carolinas] new sentencing scheme because life without the possibility of parole is not the only legally available sentence alternative to death. 343 S.C., at 364, 540 S.E. 2d, at 858. That statement mistakes the relationship of Simmons to the state sentencing scheme. It is true that a defendant charged with murder carrying the possibility of a death sentence can, under some circumstances, receive a sentence less than life imprisonment. But, as we explained in Shafer, under the South Carolina sentencing scheme a jury now makes a sentencing recommendation only if the jurors find the existence of an aggravating circumstance. When they do make a recommendation, their only alternatives are death or life without parole. 532 U.S., at 4950.2 We therefore hold, as we did in Shafer, that the state courts reasoning is not to the point.
The State Supreme Courts first ground, that Kellys future dangerousness was not at issue, is unsupportable on the record before us. It is not that the state court failed to pose the legal issue accurately, for in considering the applicability of Simmons it asked whether Kellys future dangerousness was a logical inference from the evidence, or was injected into the case through the States closing argument. 343 S.C., at 363, 540 S.E. 2d, at 857; see also Shafer, supra, at 5455 (whether prosecutors evidence or argument placed future dangerousness in issue); Simmons, 512 U.S., at 165, 171 (plurality opinion) (future dangerousness in issue because State raised the specter of future dangerousness generally and advanc[ed] generalized arguments regarding the [same]); id., at 174 (Ginsburg, J., concurring); id., at 177 (OConnor, J., concurring in judgment). The error, rather, was on the facts: the evidence and argument cited by the state court are flatly at odds with the view that future dangerousness was not an issue in this case. 343 S.C., at 363, 540 S.E. 2d, at 857.
The court acknowledged the prosecutors [e]vidence that Kelly took part in escape attempts and carried a shank, id., at 362, 540 S.E. 2d, at 857, and that he had been caught carrying a weapon and planning or participating in escape attempts, ibid. The court concluded, however, that this evidence was not the sort contemplated by Simmons, that is, evidence demonstrating future danger if released from prison. 343 S.C., at 362, n.8, 540 S.E. 2d, at 857, n.8 (quoting Simmons, supra, at 163) (emphasis added by state court). The court saw the evidence as going only to Kellys likely behavior in prison, or to his proclivity to escape from it; the state court said that Kelly was allowed to rebut this evidence of his inability to adapt to prison life, but that explaining parole ineligibility would do nothing to rebut evidence that Kelly was an escape risk. 343 S.C., at 362363, 540 S.E. 2d, at 857.
Even if we confine the evidentiary consideration to the evidence discussed by the State Supreme Court, the courts conclusion cannot be accepted. To the extent that it thought that [e]vidence that Kelly took part in escape attempts and carried a shank is not the type of future dangerousness evidence contemplated by Simmons, id., at 362, 540 S.E. 2d, at 857, it overlooked that evidence of violent behavior in prison can raise a strong implication of generalized future dangerousness. Simmons, supra, at 171. (And, of course, the state courts reasoning says nothing about the evidence of the crime, or of Kellys sadism generally, and his mercurial thirst for vengeance.) A jury hearing evidence of a defendants demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.3
The fallacy of the State Supreme Courts attempt to portray the thrust of the evidence as so unrealistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but to [Kellys] character and characteristics. App. 249. The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous character may show characteristic future dangerousness, as it did here. This, indeed, is the fault of the States more general argument before us, that evidence of future dangerousness counts under Simmons only when the State introduc[es] evidence for which there is no other possible inference but future dangerousness to society. Brief for Respondent 27 (emphasis in original). Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.4
The prosecutor accentuated the clear inference of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would never in [their] lives again have to experience [b]eing some thirty feet away from such a person as Kelly. App. 64. The State Supreme Court made no mention of this, despite its thrust: since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible. The argument thus echoed the one made in Simmons itself, that the imposition of the death penalty was an act of self-defense. Both statements implied that petitioner would be let out eventually if the jury did not recommend a death sentence. 512 U.S., at 178 (OConnor, J., concurring in judgment) (emphasis in original).
And there was more. The state court to be sure considered the prosecutors comparison of Kelly to a notorious serial killer, variously calling him a dangerous bloody butcher. The court nonetheless thought it could somehow cordon off these statements as raising nothing more than a call for retribution. 343 S.C., at 363, 540 S.E. 2d, at 857. But the import of the argument simply cannot be compartmentalized this way. Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road.5 They complemented the prosecutors submissions that Kelly was more frightening than a serial killer, App. 260, and that murderers will be murderers, id., at 272.6 Thus was Kellys jury, like its predecessor in Simmons, invited to infer that petitioner is a vicious predator who would pose a continuing threat to the community. Simmons, supra, at 176 (OConnor, J., concurring in judgment).
Perhaps because this is so undeniable, the State in its argument before us takes a tack never pursued by the state court, in claiming there was no need for instruction on parole ineligibility, because there is nothing whatsoever to indicate that the jurors were concerned at all with the possibility of [Kellys] future release when they decided death was appropriate. Brief for Respondent 47. But it cannot matter that Kellys jury did not ask the judge for further instruction on parole eligibility, whereas the Simmons and Shafer juries did. See Shafer, 532 U.S., at 44; Simmons, supra, at 160. A trial judges duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any other indication of perplexity on their part. Cf. C. Wright, Federal Practice and Procedure 485, p.375 (3d ed. 2000) (It is the duty of the trial judge to charge the jury on all essential questions of law, whether requested or not). Time after time appellate courts have found jury instructions to be insufficiently clear without any record that the jury manifested its confusion; one need look no further than Penry v. Johnson, 532 U.S. 782 (2001), for a recent example. While the jurors questions in Simmons and Shafer confirmed the inadequacy of the charges in those cases, in each case it was independently significant that [d]isplacement of the longstanding practice of parole availability remains a relatively recent development [in South Carolina], and common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole. 532 U.S., at 52 (quoting Simmons, supra, at 177178 (OConnor, J., concurring in judgment)).7
Nor is there any reason to believe that Kellys jury was better informed than Simmonss or Shafers on the matter of parole eligibility. The State, to be sure, emphasizes defense counsels opening statement that the jurys recommendation would be the sentence actually imposed and the sentence that will actually be carried out, Record 1660, as well as counsels closing, which stressed that Kelly would be in prison for the rest of his life and would never see the light of daylight again, id., at 2060. The State stresses that the judge told the jury that the terms life imprisonment and death sentence should be understood in their plain and ordinary meanings. App. 289.
But the same things could be said of Shafer, where we explicitly noted defense counsels statement to the jury that Shafer would die in prison after spend[ing] his natural life there, as well as the trial judges instructions that life imprisonment means until the death of the defendant. 532 U.S., at 52 (emphasis deleted). We found these statements inadequate to convey a clear understanding of Shafers parole ineligibility, id., at 5354,8 and Kelly, no less than Shafer, was entitled to his requested jury instruction.

SUPREME COURT CASES & NEWS

See Above.

POSITIVE CAPITAL CASE RESULTS

Sallahdin v. Gibson, 2002 U.S. App. LEXIS 185 (10th Cir. 1/4/2002) Evidentiary hearing ordered on trial counsel's failure to introduce evidence of steriod use at the time of the crime.

In reviewing whether trial counsel's representation in the sentencing phase of trial was constitutionally deficient, we must first determine whether the evidence was admissible during the sentencing phase. Lockett v. Ohio, 438 U.S. 586 (1978) (plurality), and Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), set the standards for admission of mitigating evidence during the sentencing phase of a capital case. Those cases require "that a capital sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record, and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Boyd v. Ward, 179 F.3d 904, 921 (10th Cir. 1999) (quotation marks omitted), cert. denied, 528 U.S. 1167 (2000). Thus, the jury cannot be precluded from considering any "constitutionally relevant mitigating evidence." Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (citations omitted).
Consistent with these holdings, the Supreme Court has indicated "that a state court may not apply a state rule of evidence in a per se or mechanistic manner so as to infringe upon a defendant's constitutional right . . . to present mitigating evidence in a capital proceeding." Paxton v. Ward, 199 F.3d 1197, 1214 (10th Cir. 1999) (discussing Supreme Court cases on the issue). Thus, for example, in Green v. Georgia, 442 U.S. 95 (1979), the Court concluded it was constitutional error for a trial court in a capital case to mechanistically exclude proffered mitigation evidence under a state hearsay rule, particularly when the proffered evidence bore sufficient indicia of reliability. Id. at 97. Likewise, this circuit and others have found constitutional errors arising out of the wholesale exclusion of proffered mitigating evidence pursuant to state evidentiary rules. See, e.g., Rupe v. Wood, 93 F.3d 1434, 1439-41 (9th Cir. 1996) (concluding that the exclusion of polygraph evidence pursuant to state evidentiary rules violated a capital defendant's right to present mitigating evidence); Dutton v. Brown, 812 F.2d 593, 602 (10th Cir. 1987) (en banc) (concluding that constitutional error occurred when mitigating evidence was excluded in the sentencing phase of a capital case on the basis of a state witness sequestration rule).
This is not to say, however, that a trial court must admit any and all mitigation evidence proffered by a capital defendant. Review of the above-cited cases indicates that proffered mitigation evidence must be reliable and relevant to be admitted. See, e.g., Green, 442 U.S. at 96 (emphasizing that "substantial reasons existed to assume" the reliability of the proffered mitigation evidence); Paxton, 199 F.3d at 1214 (noting that "the reliability of the excluded polygraph test was corroborated by the fact that the state relied upon it in dismissing the earlier charges against" the defendant); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("[W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability-even if the defendant would prefer to see that evidence admitted."); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (noting that a defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence").
In his January 13, 1997, affidavit, Dr. Pope stated that, "[a]t the time of [Sallahdin's] trial in 1993, a substantial and consistent scientific literature had already accumulated, showing that anabolic steroids could cause severe psychiatric effects . . . in some individuals." Post-Conviction Addendum, App. 20 at 2. Although Pope conceded that the term "steroid rage syndrome" was "a popular term with no scientific acceptance," he stated "it was [nevertheless] well recognized in the scientific community that anabolic steroids could cause severe psychiatric effects in some individuals." Id.
Applying the above-outlined standards to Dr. Pope's proposed testimony, we conclude that the proposed testimony was admissible during the sentencing phase of the trial. In short, we are persuaded that Dr. Pope's conclusions regarding the effects of anabolic steroids were based upon scientific knowledge (for purposes of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) and thus were sufficiently reliable. Further, the record indicates that Dr. Pope previously had been admitted to testify as an expert witness on the precise topic in three criminal trials in the states of Florida, Massachusetts, and Wisconsin.
Having concluded that Dr. Pope's testimony was admissible, we now turn to application of the Strickland test. The federal district court found it unnecessary to decide whether trial counsel's performance was constitutionally deficient because, in its view, Sallahdin was not prejudiced by the absence of Dr. Pope's testimony:
First, the trial court properly excluded expert testimony regarding steroid use. Second, the steroid effects could have been viewed as an aggravating circumstance, rather than as mitigating evidence. (Citation omitted.) Use of steroids could have been viewed as an attempt by petitioner to become tough, powerful and macho, all of which support petitioner's cold-hearted domination over a weaker store clerk solely for money. This portrayal of petitioner would not evoke sympathy from a jury sufficient to overcome the aggravating circumstances. Trial counsel fully advised the jury of the difference in petitioner's personality, i.e., that he was under tremendous stress and that typically he was well-liked by his family, friends and peers. The jury merely found this insufficient to overcome the crime.
ROA, Vol. 1, Doc. 27 at 18-19. Further, the federal district court noted Sallahdin could have personally testified at the sentencing phase about the effects of steroid use, but did not. Id. at 19. Finally, the federal district court found that the strength of the evidence against Sallahdin, the brutality of the crime, and evidence of additional threats he made during a period of pretrial detention would have overwhelmed any mitigating effect that the steroid evidence might have brought to the deliberations. Id.
We are persuaded that Dr. Pope's proposed testimony is considerably stronger than the district court determined it to be. During the sentencing phase, Sallahdin presented testimony from family members, friends, his Army commander, and correctional officers at the jail where he was confined prior to trial. Generally speaking, this evidence indicated that Sallahdin (a) had a normal upbringing, (b) experienced success academically, athletically and (at least initially) with the military, (c) did not have a prior criminal record, (d) was non-violent, (e) was perhaps undergoing marital-related stress, and (f) was a good, quiet prisoner who did not cause any problems. In our view, evidence from Dr. Pope regarding the potential of steroid use to cause severe personality changes in the user could have explained how Sallahdin could have been transformed from an allegedly mild-mannered, law-abiding individual into a person capable of committing the brutal murder with which he was found guilty.(9) In addition to mitigating Sallahdin's culpability in the crime, Dr. Pope's testimony could have specifically helped to rebut one of the two remaining aggravators found by the jury: that there was a probability Sallahdin "would commit criminal acts of violence that would constitute a continuing threat to society." Okla. Stat. tit. 21, § 701.12. If the jury believed Dr. Pope, it could well have rejected the future threat argument by concluding that Sallahdin's crimes were an aberration in the overall context of his life that could be explained by his use of or withdrawal from steroids. Once the effects of the steroids passed from Sallahdin's system, he arguably would no longer have represented a threat to his community. Assuming the jury determined that Sallahdin did not represent a continuing threat, the overall balance of aggravating and mitigating factors would have been substantially altered, leaving the jury to weigh Sallahdin's mitigating evidence against a single aggravating factor.
Although we conclude there is a reasonable probability that the presentation of Dr. Pope's testimony could have altered the outcome of the sentencing phase, we are unable at this point to conclude that Sallahdin was denied his right to effective assistance of counsel and, in turn, his right to a fair trial. Instead, Sallahdin must also demonstrate that his trial counsel's performance was constitutionally deficient, i.e., "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. As the Supreme Court noted in Strickland, "[t]here are countless ways to provide effective assistance in any given case," and "[e]ven the best criminal attorneys would not defend a particular client in the same way." Id. at 689. Thus, as previously noted, we must "indulge a strong presumption . . . that counsel's conduct was not the result of error or omission but derived instead from trial strategy." Elliott, 248 F.3d at 1208 (internal quotations omitted).
Notwithstanding our conclusions regarding the relative strength of Dr. Pope's proposed testimony, we cannot say that presentation of a steroid-use defense was without risk of negative consequences, or was the only reasonable second-stage strategy that trial counsel could have adopted.(10) It is thus imperative to determine trial counsel's reasons, or lack thereof, for presenting Dr. Pope's testimony during the second-stage proceedings. See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.").
Because the record on appeal is inadequate to allow us to properly conduct this inquiry,(11) we conclude it is necessary to remand this case to the district court to conduct an evidentiary hearing on the issue of trial counsel's performance. More specifically, the purpose of the evidentiary hearing will be to determine trial counsel's reasons, or lack thereof, for foregoing the use of Dr. Pope's testimony during the sentencing phase. If trial counsel made a strategic decision not to use Dr. Pope's testimony, the district court will then need to assess whether that was a constitutionally reasonable decision under the circumstances. If, however, it is established that trial counsel was neglectful, or otherwise erred, in failing to call Dr. Pope as a second-stage witness, then trial counsel's performance cannot be deemed constitutionally reasonable. In turn, Sallahdin would be entitled to federal habeas relief in the form of a new sentencing proceeding.

CAPITAL CASES - RELIEF DENIED

Robinson v. Gibbons, 2002 U.S. App. LEXIS 187 (10th Cir 1/4/2002) (unpublished) Relief denied. "Robinson, who is an African-American, alleges that jurors harassed, coerced, physically threatened and racially intimidated the only African-American on the jury, Marcia Davidson. During deliberations, Davidson was the sole vote against sentencing Robinson to death." Other grounds include instruction on flight and sufficiency of evidence.

In support of this claim, Robinson submits his defense investigator's affidavit relating what Juror Davidson told the investigator, as well as another investigator's affidavits relating other jurors' statements corroborating Davidson's story. Robinson, however, acknowledges that individual jurors generally cannot impeach the jury's verdict. While evidence concerning external influences on a jury may be admissible, a juror,
upon an inquiry into the validity of a verdict or indictment, . . . may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith . . . . Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Fed. R. Evid. 606(b); see also Okla. Stat. Ann. tit. 12, § 2606(B). n3 "Testimony concerning intimidation or harassment of one juror by another falls [*12] squarely within the core prohibition of the Rule." United States v. Stansfield, 101 F.3d 909, 914 (3d Cir. 1996) (federal direct criminal appeal) (further quotation omitted).
Rule 606(b) "is grounded in the common-law rule against admission of jury testimony to impeach a verdict . . . ." Tanner v. United States, 483 U.S. 107, 121, 97 L. Ed. 2d 90, 107 S. Ct. 2739 (1987). The rule has long been "that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict." McDonald v. Pless, 238 U.S. 264, 269, 59 L. Ed. 1300, 35 S. Ct. 783 (1915); see also Tanner, 483 U.S. at 117 (noting that "near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict"). Precluding this evidence represents a choice of the "lesser of two evils" -- not redressing a private litigant's injury in favor of upholding the public policy promoting private and unassailable juror deliberations. McDonald, 238 U.S. at 267-68; see also Tanner, 483 U.S. at 120 (recognizing and further explaining the "weighty government interest in insulating the jury's deliberative process").
Robinson, however, relies upon language in McDonald indicating a possible exception to this general [*14] rule when a juror's testimony "could not be excluded without violating the plainest principles of justice." McDonald, 238 U.S. at 268-69 (further quotation omitted). Although we cannot condone the conduct alleged here, however, invoking McDonald's exception is not warranted. Cf., e.g., Gall v. Parker, 231 F.3d 265, 277, 332-33 (6th Cir. 2000) (declining to consider, in capital case, post-trial evidence from juror concerning internal influences on jury deliberations), cert. denied, 150 L. Ed. 2d 739, 121 S. Ct. 2577 (2001); Bacon v. Lee, 225 F.3d 470, 472, 485 (4th Cir. 2000) (declining, in capital case, to consider jurors' evidence that, during deliberations, jurors referred to African-American defendant's race and his interracial relationship, and made racial jokes), cert. denied, 149 L. Ed. 2d 360, 121 S. Ct. 1420 (2001); United States v. Roach, 164 F.3d 403, 407, 412-13 (8th Cir. 1998) (holding inadmissible, in Native American's federal direct criminal appeal, Native American juror's affidavit alleging, among other things, that other jurors pressured her, referred to her race, and [*15] told her it was ten white people versus one Indian); United States v. Brito, 136 F.3d 397, 402, 414 (5th Cir. 1998) (holding inadmissible, in federal direct criminal appeal, juror's affidavit asserting, among other things, that other jurors coerced her vote through threats and insults); United States v. Jones, 132 F.3d 232, 237, 245-46 (5th Cir. 1998) (declining, in federal capital appeal, to consider jurors' affidavits impeaching death sentence), aff'd on other grounds, 527 U.S. 373, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999). But see Wharton v. People, 104 Colo. 260, 90 P.2d 615, 616-18 (Colo. 1939) (applying McDonald's exception to permit evidence of threats against, and abuse and coercion of, lone juror holding out against imposing death sentence).

Darling v. Florida, 2002 Fla. LEXIS 6 (FL 1/3/2002) (foreign national) Darling raised the following issues in his initial brief: that the trial court reversibly erred in (1) denying Darling's motion for judgment of acquittal; (2) admitting DNA evidence; (3) not allowing defense counsel to comment on the State's failure to exclude other suspects; (4) limiting Darling's voir dire examination during jury selection; (5) denying Darling's requested instruction regarding circumstantial evidence; (6) precluding defense counsel's rebuttal closing argument where the State had waived its closing argument; (7) refusing to allow Darling to argue residual doubt as a mitigator; and (8) denying Darling's requested special penalty phase jury instructions. Additionally, Darling asserted that (9) the absence of a complete record on appeal deprived him of adequate appellate review; (10) his death sentence is disproportionate; and (11) his death sentence violates the Vienna Convention on Consular Relations, 596 U.N.T.S. 261 (Dec. 24, 1969) (the "Vienna Convention")."

State v. Terry, No. S42818 (Or. 12/28/2001) Claims on admissibility of statements, reference to a polygraph, admissibility of victim impact evidence, and alleged defects in the indictment.

Kenley v. Bowersox, 2002 U.S. App. LEXIS 37 (8th Cir 1/3/92) Trial counsel's decisions on resentencing not to conduct certain testing procedures were "reasonable professional judgments" and therefore not error, especially due to the speculative nature of Petitioner's evidence. Trial counsel's extensive capital experience cited as one reason for deference.

Pennsylvania v. Brown, 2001 Pa. LEXIS 2762 (Pa. 12/31/2001) (dissents) Relief denied on penalty phase jury instructions on the torture aggravator and standards for finding a mitigating circumstance, double jeopardy, evidentiary issues as well as that the jury had made unlawful contact with the victims family and discussed the case prior to the close of evidence.

Pennsylvania v. Bracey , 2001 Pa. LEXIS 2775 (PA 12/31/2001) "[W]e find no error in the PCRA court's determination that counsel was not ineffective for failing to pursue and present evidence related to Appellant's alleged mental illness and organic brain damage when previous mental health evaluations did not conclude that Appellant was brain damaged or mentally ill and when counsel consulted a recognized mental health expert and relied on his conclusion that his evaluation revealed no mitigating mental health evidence to which he could testify."

Pennsylvania v. Lambert, 2001 Pa. LEXIS 2760 (PA 12/31/2001) (dissents) "In summary, trial/direct appeal counsel cannot be deemed ineffective per se for failing to identify and pursue the ten claims . . . nor can PCRA counsel be deemed ineffective per se for failing to raise the claim that appellant was denied his right to testify during the guilt phase. Appellant has failed to demonstrate how previous counsel were actually ineffective with respect to these claims, and this Court will not make appellant's arguments for him."

DELAYD PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

U.S. v. Plaza(E.D. Penn. 1/7/2002) When admitting evidence of fingerprint identification, Judge Pollak rules that expert witnesses may not use the term "match" when discussing fingerprints.

Ex parte Fountain, No. 1991893 (Ala. 12/28/2001) Due process on appeal was denied when the attorney general's office sent its brief to the wrong address.

Jiminez v. Rice, No. 99-15574 (9th Cir. 12/28/2001) "We hold that section 2244(d)(2) does not toll the AEDPA limitations period while a federal habeas petition is pending."

FOCUS

The focus this week is a "look ahead" towards 2002 including likely trends, Supreme Court docket watch, legislative trends, as well as upcoming training and "activist" events.

Some Trends to Watch
Penalty Phase jury instructions:As noted by several high-profile victories in recent editions such as Kelly (US) (Simmons error), Kleypas (Kan) (misleading jury instructions as to state law), Riley (3rd Cir) (Caldwell error) & Abu-Jumal (ED PA) (unanimity), penalty phase jury instruction issues are hot, really hot. With Supreme Court's substantial broadening of Simmons v. South Carolina in Kelly look for 2002 to be the year of the penalty phase jury instruction issue.
Quality of Counsel: Quality of counsel remains a troubling problem nationally. Several states still lack a basic guarantee of counsel at all levels of proceedings in a capital case. Few states have guaranteed that counsel so appointed are anything more than a middle aged man in a suit who is currently a member of the bar. Although the Fifth Circuit in a watershed case has held that a sleeping lawyer is not permissible, drug addicted, alcoholic, disbarred, indicted, and inexperienced attorneys, however remain permissible. I am hoping to cover issues of quality of counsel and ineffectiveness in late winter/early spring over the course of several weeks.
Quality of State Proceedings: In recent years the quality of state court "justice" has also improved. Gone are the days in the four major death penalty states where state appellate court's adopted the stance of "This is a death penalty case, therefore we will affirm." Most encouraging is the change, albeit slight (such as Ex Parte Kerr), in the Texas Court of Criminal Appeals legendary jurisprudence of never meeting a death sentence it couldn't affirm and the corresponding move towards accepting its awesome responsibility in capital case. Likewise the state Supreme Courts in California, Georgia, Florida, Pennsylvania and Tennessee have grown increasingly aware that federal habeas corpus no longer serves as back up for cases of innocence and fair play; a generation ago the federal habeas courts often lead the way to new legal approaches, today it appears state courts are increasingly leading the way. Although some state courts appear to remain recalcitrant, (as the U.S. Supreme Court noted in Kelly), the realization of the devolution of primary responsibility in capital cases to state courts continues to be a trend to watch in coming years.
Innocence: To date ninety-nine people (101 if you include Joseph Spaziano and Sonia Jacobs) have been released from death row for innocence. Translated that would mean in the last 35 years for every 7.5 persons executed in this country, a jury has found a man guilty beyond a reasonable doubt & sentenced him to die despite his innocence. Already this year one person has had his sentence commuted, Charlie Alston of North Carolina, on the basis of innocence. Likewise the Innocence Protection Act is likely to pass in the upcoming year in the Congress as the "sponsors" and "co-sponsors" in both chambers alone number just under what is necessary for passage. Finally, the Innocence Projecthas to date cleared ninety-nine persons, both capital and noncapital, of their crimes through DNA testing, number 100 should come some time later in the year.
Clemency: A noticeable trend in 2001 was a surprise increase in the clemency rate. Approximately 5% of "imminent executions" were commuted in 2001 and those governors granting clemencies ranged across the political spectrum. With Republican governors, as if following Ronald Reagan's example of commuting every imminent execution that came before him to life, leading the way. While 2001 saw numerous questionable executions where clearly clemency should have been afforded, such as Abdullah Hameen in Delaware, the increase in clemency, and the related need to actively prepare for clemency, remains a trend to watch.
Means of execution: (electrocution) When this "e-zine" was launched in late 1997electrocution (http://www.capitaldefenseweekly.com/chair.htm) and lethal gas as a means of execution were still somewhat common place. Like, the iron maiden and rack, however both means are slowly being left on the trash heap of history. The Georgia Supreme Court in Dawson v. Staterecently ruled that electrocution violated constitutional norms. Whether 2002 sees abolition of electrocution of the primary means of execution in the two remaining states that retain is uncertain. Both states that retain electrocution are likely to abandon it sometime soon with the only question of being whether abandonment is by judicial or legislative action.
Prison conditions: The hunger strike over prison conditions in Texas has brought some light to the inhuman conditions many are kept pending execution. Similar hunger strikes are planned at other death rows to highlight prison conditions. Reuters has already run two stories (link here) on the subject. The question remains, however, whether there will be any interest in the story in the wider media.
Supreme Court Docket:
00-8452 Atkins, Daryl v. VirginiaFeb. 20, 2002 Capital punishment, mentally retarded
Question:
[Question Presented]
Decisions:
Resources:

Northwestern University - Medill School of Journalism: On the Docket
01-0400 Bell, Warden v. Cone, Garyafter Jan. 16, 2002 Capital case, sentencing, ineffective counsel
Question:
[Question Presented]
Decisions:
Resources:
Briefs:
  • [Coming Soon]

00-8727 McCarver, Ernest v. North CarolinaN/A Dismissed (Sept. 25, 2001) Capital punishment, mental retardation, 8th Amendment, cruel & unusual punishment
Question:
[Question Presented]
Decisions:
Resources:
Briefs:
Amicus - Petitioner:
  • American Bar Association [PDF]
  • American Civil Liberties Union et al. [TEXT]
  • Diplomat Morton Abramowitz et al. [TEXT]

00-9280 Kelly, William v. South CarolinaNov. 26, 2001 5-4 for Kelly (Jan. 9, 2002) Capital case, jury instructions, parole ineligibility, "future dangerousness"
Decisions:
Resources:

00-9285 Mickens, Walter, Jr. v. Taylor, Warden (VA)Nov. 5, 2001 Capital case, attorney conflict, due process
Question:
Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?
Decisions:
Resources:
Briefs:
Amicus - Respondent:

01-0339 Stewart, Terry, Dir., Arizona Dept. of Corrections v. Smith, Robert Douglasnot scheduled Habeas corpus, ineffective assistance of counsel
00-10666 Harris, William J. v. U.S.after Jan. 16, 2002 Sentencing, burden of proof, judge/jury
Question:
Given that a finding of “brandishing”, as used in 18 U.S.C. Sec. 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of “brandishing” be alleged in the indictment and proved beyond a reasonable doubt?
Decisions:
Resources:
Briefs:
  • [Coming Soon]

00-6933 Lee, Remon v. Kemna, Supt., Crossroads Correctional CenterOct. 29, 2001 Due process, habeas corpus
Question:
[Question Presented]
Decisions:
Resources:
Briefs:
Amicus - Respondent:
Criminal Justice Legal Foundation [ TEXT]
01-0301 Newland, Anthony v. Saffold, Tony EugeneFeb. 27, 2002 Habeas corpus, statute of limitations
Question:
[Question Presented]
Decisions:
Resources:
Briefs:
[Coming Soon]
00-1260 U.S. v. Knights, MarkNov. 6, 2001 9-0 for U.S. (Dec. 10, 2001) 4th Amendment, probation searches, waiver
Question:
Whether respondent's agreement to a term of probation that authorized any law enforcement officer to search his person or premises with or without a warrant, and with or without individualized suspicion of wrongdoing, constituted a valid consent to a search by a law enforcement officer investigating crimes.
Decisions:
Resources:
Briefs:
Parties:
Petitioner [ PDF] [ TEXT] [ RTF]
00- 0853 Porter, Correction officer v. Nussle, RonaldJan. 14, 2002 Prisoner litigation, exhaustion, 8th Amendment physical force
Subject:
Prisoner Litigation Reform Act of 1995, Eighth Amendment, Assault or Excessive Use of Physical Force, Exhaustion of Administrative Remedies
Question:
Whether the exhaustion provision of the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e(a)(Supp. V 1999), requires an inmate to exhaust available administrative remedies before filing an action alleging a use of excessive force by a correction officer.
Decisions:
Resources:
Briefs:
Amicus - Petitioner:
United States [ PDF] [ TEXT] [ RTF]
00-0860 Correctional Services Corp. v. Malesko, John E. Oct. 1, 2001 5-4 for Correctional Services Corp. (Nov. 27, 2001) Privatization, civil rights, immunity
Question:
Whether a private corporation operating a Community Corrections Center that houses and provides services to federal prisoners under a contract with the Bureau of Prisons is subject to suit under the implied damages action this Court recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Decisions:
Resources:
Briefs:
Respondent [ TEXT]
Amicus - Petitioner:

Amicus - Respondent:
  • American Civil Liberties Union [PDF]

00-0957 Kansas v. Crane, MichaelOct. 30, 2001 "Sexual predators," civil commitments, constitutionality
Question:
Whether the Fourteenth Amendment's Due Process Clause requires a State to prove that a sexually violent predator "cannot control" his criminal sexual behavior before the State can civilly commit him for residential care and treatment?
Decisions:
Resources:
Briefs:
Amicus - Petitioner:
  • Association for the Treatment of Substance Abusers [PDF]
Amicus - Respondent:
  • National Association of Criminal Defense Lawyers et al. [PDF]

00-0973 U.S. v. Vonn, AlphonsoNov. 6, 2001 Right to counsel, guilty pleas
Question:
  1. Whether a district court's failure to advise a counseled defendant at his guilty plea hearing that he has the right to the assistance of counsel at trial, as required by Federal Rule of Criminal Procedure 11(c)(3), is subject to plain-error, rather than harmless-error, review on appeal when the defendant fails to preserve the claim of error in the district court.
  2. Whether, in determining if a defendant's substantial rights were affected by a district court's deviation from the requirements of Federal Rule of Criminal Procedure 11(c)(3), the court of appeals may review only the transcript of the guilty plea colloquy, or whether it may also consider other parts of the official record.
Decisions:
  1. U.S. Court of Appeals - 9th Circuit, Filed: April 20, 2000
  2. U.S. Court of Appeals - 9th Circuit, Filed: September 14, 2000.
  3. United States Supreme Court, Cert. Granted: February 26, 2001
Resources:
  1. Docket SheetFrom the U.S. Supreme Court.
  2. Northwestern University - Medill School of Journalism: On the Docket
Briefs:
Parties:
  1. Petitioner (Petition) [PDF] [TEXT] [RTF]
  2. Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]
  3. Petitioner [PDF] [TEXT] [RTF]
Petitioner - Reply [ PDF] [ TEXT] [ RTF]
00-1187 McKune, Warden, et al. v. Lile, RobertNov. 28, 2001 Self-incrimination, prison privileges, sex offenses
Question:
Whether the Fifth Amendment privilege against compelled self-incrimination prevents a State from encouraging incarcerated sexual offenders to participate in a clinical rehabilitative program, in which participants must accept responsibility for their offenses, by conditioning the availability of certain institutional privileges on participation in the program.
Decisions:
Resources:
Briefs:
Amicus - Petitioner:
00-1214 Alabama v. Shelton, LeReedFeb. 19, 2002 Right to counsel, waiver, misdemeanors, suspended sentence
Question:
[Question Presented]
Decisions:
Resources:

00-1519 U.S. v. Arvizu, RalphNov. 27, 2001 4th Amendment, border search & seizure
Question:
  1. Whether the court of appeals erroneously departed from the totality-of-the-circumstances test that governs reasonable-suspicion determinations under the Fourth Amendment by holding that seven facts observed by a law enforcement officer were entitled to no weight and could not be considered as a matter of law.
  2. Whether, under the totality-of-the-circumstances test, the Border Patrol agent in this case had reasonable suspicion that justified a stop of a vehicle near the Mexican border.
Decisions:
  1. U.S. Court of Appeals - 9th Circuit, Amended: December 1, 2000
  2. United States Supreme Court, Cert. Granted: June 4, 2001
Resources:
  1. Docket SheetFrom the U.S. Supreme Court.
  2. Northwestern University - Medill School of Journalism: On the Docket
Briefs:
Parties:
  1. Petitioner (Petition) [PDF] [TEXT] [RTF]
  2. Petitioner - Reply (Petition) [PDF] [TEXT] [RTF]
Petitioner [ PDF] [ TEXT] [ RTF]
00-6567 Dusenbery, Larry D. v. U.S.Oct. 29, 2001 5-4 for U.S. (Jan. 8, 2002) Drug forfeitures, notice
Question:
Whether the United States satisfied the notice requirements of the Due Process Clause by sending a federal prisoner notice of an administrative forfeiture proceeding by certified mail addressed to the prisoner at the prison where he was incarcerated.
Decisions:
Resources:
Briefs:
Parties:

01-0332 Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, Lindsay, et al.after Jan. 16, 2002 4th Amendment, random drug testing, schools
Question:
[Question Presented]
Decisions:
Resources:
Briefs:
[Coming Soon]
01-0309 Hope, Larry v. Pelzer, Mark, et al.after Feb. 27, 2002 inmates, "bright-line rule," cruel & unusual punishment, 8th Amendment
01-0595 U.S. v. Ruiz, Angelaafter Feb. 27, 2002 Criminal discovery, exculpatory information, guilty pleas
01-0631 U.S. v. Drayton, Christopher & Brown, Clifton, Jr.after Feb. 27, 2002 Searches & seizures, 4th Amendment, public transportation
01-0687 U.S. v. Cotton, Leonard, et al.after Feb. 27, 2002 Enhanced sentences, indictments

Training, Conferences & Other Notable Events:

January 26, 2002 New York, NY
RIGHTS ON THE LINE: Consequences and Implications of the USA Patriot Act and Other Anti-Terrorism Laws
A full-day Continuing Legal Education (CLE) Program for Attorneys
New York Law School 47 Worth Street, New York, NY
Registration information is available on line at www.nlg.org/post911
For additional information about the program or about joining the National Lawyers Guild, NYC Chapter, please call (212) 255-4181 or email nyc@nlg.org.
NYLS (47 Worth Street) is between Church St. and West Broadway.
Take subways 1&9 to Franklin Street; 1, 2, 3 to Chambers Street; A,C,E to Chambers Street; R, N to City Hall.
Presented by The National Lawyers Guild-NYC Chapter, Center for Constitutional Rights, Legal Aid Society of New York, NLG Post 9-11 Project and NY Law School Justice Action Center.
Jan 31 - Feb 2
Virginia Death Penalty College
by: Virginia Capital Representation Resource Center
TBA, at Omni Richmond Hotel, Richmond, VA.
The program's focus is a series of small group practice workshops on various aspects of a capital trial, including brainstorming the theory of the case, penalty phase opening argument, challenging risk assessment, voir dire, identifying mitigating factors, and closing argument. Program participants will be expected to bring their own capital case to the workshop and use this as a "sample problem" in the various sessions. Small group sessions will be led by experienced capital trial lawyers. There will be lectures and demonstrations prior to each small group workshop.
his program is modeled after similar national "Death Penalty Colleges," such as those at Santa Clara, California, University of Michigan (Death Penalty Project), and Fambush, Kentucky (NITA). The agenda for this program was modified to make it shorter and focus on topics particularly relevant to Virginia.
Contact : Marie Donnelly at mfdonnelly@aol.com 804-817-2970
Feb 8-9
Loosening the Death Belt VI: Tightening the Defense - One Life at a Time
by: Alabama Criminal Defense Lawyers Association
TBA, at Cumberland School of Law, Samford University, Birmingham, AL.
The Alabama Criminal Defense Lawyers Association is pleased to present this two-day death penalty seminar featuring some of the top criminal defense lawyers in the country. Don't miss this opportunity to hear highly accalimed death penalty lawyers talk about successful techniques necessary to prepare and defend capital cases. Topics will include how jurors think and vote in capital cases, motions practice and record preservation, opening and closing statements, voir dire, defending the federal death penalty case, and defending the impossible case. Faculty include John Blume, Steve Bright, David Bruck, Ruth Freidman, Andrea Lyon, John Mauldin, Mike Mears, and Bryan Stevenson.
CLE Credit is available
Contact : Ann Cooper at annscooper@acdla.org 334-272-0064
Feb 15-18
2002 Capital Case Defense Seminar - Team Defense: Beating the Drum for Justice
by: California Attorneys for Criminal Justice/California Public Defenders Association
TBA, at Monterey Conference Center, Monterey, CA.
If you are involved in the defense of capital cases, then this seminar is for you! The program is designed so that defense practitioners in any jurisdiction can benefit from the lectures and workshops featuring experienced lawyers and experts, both from California and across the nation. Sponsored by CACJ and the California Public Defenders Association, the program is an intensive educational opportunity for anyone involved in, or considering taking on, the defense of a capital case. It is designed not only for lawyers, but also for sentencing consultants, paralegals, investigators, and other experts who find themselves working in capital defense. This seminar is the largest of its kind in the country and is unique in that, in addition to lectures, it offers specialized workshops that give participants the chance to brainstorm and exchange information with other participants. The program addresses the needs of experienced practitioners as well as those just entering the field. Attendance is limited to the criminal defense bar and associated professionals.
CLE Credit is available
Contact : California Attorneys for Criminal Justice at 323-933-9414
March 1-2, 2002 Eugene, OR
Abolition, Moratorium or Reform?
CALL FOR CONFERENCE PAPERS AND PRESENTATIONS THE LAW AND POLITICS OF THE DEATH PENALTY
Sponsored by the Wayne Morse Center for Law and Politics
1221 University of Oregon
Eugene, OR 97403-1221
In March 2002, the Morse Center is hosting a conference on the death penalty for which we are actively seeking papers and presentations. This conference aims to bring together advocates, scholars and practitioners from law, politics and related disciplines to discuss the future of the death penalty in the United States.
Keynote speakers include Sister Helen Prejean, Stephen Bright, and Senator Mark Hatfield, in addition to Professor Ogletree, and respected figures in the legal, political and religious communities. The conference will include plenary sessions, workshops and roundtables appropriate for students, faculty, practicing lawyers seeking CLE credit and the informed public.
This call is directed to academics, practitioners and advocates. We seek two types of proposals for participation at the conference. First, we seek scholarly papers for a special edition of the Oregon Law Review. Papers selected must be presented at the conference and completed for publication by March 31, 2002. Second, we also will accept proposals for conference presentations by practitioners and advocates. Such presentations might discuss strategy regarding political developments, analyze advocacy efforts, or present the viewpoint of inmates or victims.
For further information, including Topics for Papers and Presentations, Timelines for submissions and papers and Submission Process for Papers and Presentations
Contact: the Wayne Morse Center for Law and Politics, 541-346-3700, Web Site: www.morsechair.uoregon.edu/deathpen.html
Mar 7-8
Federal Capital Defense Strategy Session
by: Administrative Office of the U.S. Courts
TBA, at Kansas City, MO.
The Tenth Annual Federal Capital Defense Strategy Session will be offered in conjunction with (and immediately preceding) the NLADA's Life in the Balance Conference. The session draws together most of the lawyers currently handling federal capital cases throughout the country for two full days of death penalty training ane discussion of issues specific to federal death penalty litigation. Topics include representing our clients in the DOJ death penalty authorization process; selective prosecution and discovery; government mental health evaluations; mitigation in the 21st century; and resources and case budgeting.
Contact : Merle Freedman at merle_freedman@ao.uscourts.gov 800-788-9908
Mar 9-12
Life in the Balance
by: NLADA
TBA, at Kansas City Marriott.
Life in the Balanace is a capital case training conference for defense attorneys, mitigation specialists, and defense investigators. Life in the Balance 2002 is a day and a half of specialized mitigation/investigation training, plus two and a half days devoted to instruction for capital defense litigators. The training program provides an opportunity to improve skills and techniques. Participants will increase their knowledge in all areas of capital litigation. See www.nlada.org for additional information.
Contact : Aimee Gabel at a.gabel@nlada.org 202-452-062
Apr 5
Mental Issues in Capital Cases
by: Virginia Capital Case Clearinghouse
TBA, at Washington and Lee University School of Law, Lexington, VA.
This program, which focuses on mental issues in capital cases, will include the following topics: competency issues in capital cases; sanity issues in capital cases, including mitigation and psychiatric issues; mitigation issues with respect to mental impairment; current issues and developments in capital jurisprudence; the ethics of working with and putting on a case for mentally impaired individuals; and examining mental retardation issues.
Contact : Tina Pignatelli at pignatellic@wlu.edu 540-463-8557
Apr 11 - 14
Forensic Evidence and the Criminal Law
by: Administrative Office of the U.S. Courts
TBA, at New Orleans, LA.
This is the Second National Seminar on Forensic Evidence and the Criminal Law, designed to teach attorneys how to understand, evaluate, and challenge all aspects of forensic evidence at trial and in post-conviction. Important areas of this continuously changing field to be covered will include trace evidence analysis, crime scene analysis, serology, DNA testing, and fingerprint evidence.
Contact : Merle Freedman at merle_freedman@ao.uscourts.gov 800-788-9908
May 18 -23
Clarence Darrow Death Penalty Defense College
by: University of Michigan Law School
TBA, at Ann Arbor, MI.
The third annual Clarence Darrow Death Penalty Defense College is an intensive death penalty trial practice institute. Topics to be covered include the following: introduction to death penalty practice, joining the guilt and penalty phase, brainstorming the case, jury selection introduction and demonstration, penalty phase opening statements, attacking aggravating evidence, creative motions practice, capital case negotiations, mitigation evidence: expert evidence, opening statements, investigation and presenting mitigation evidence, how juries perceive mitigation evidence, federalizing issues, representing the difficult client, and penalty phase closing argument.
Contact : Andrea Lyon at alyon1@depaul.edu 312-362-8402
June 29 - July 2, 2002 Washington D.C.
Annual Fast & Vigil to Abolish the Death Penalty at the U.S. Supreme Court. See www.abolition.org/annual.html for details on the 2002 event June 29th is the anniversary of the Furman v. Georgia decision in 1972, in which the U.S. Supreme Court found the death penalty to be arbitrary and capricious. More than 600 condemned inmates had their death sentences reduced to life. All states were required to re-write their death penalty laws. July 2nd is the anniversary of the Gregg v. Georgia decision in 1976 which allowed the resumption of executions in the United States.

ERRATA

TheDeath Penalty Information Centerreports:

The High Cost of the Death Penalty:
"As a growing number of local governments are discovering, there is often a new twist on an old saying: Nothing is certain except the death penalty and higher taxes. . . . Just prosecuting a capital crime can cost an average of $200,000 to $300,000, according to a conservative estimate by the Texas Office of Court Administration. Add indigent-defense lawyers, an almost-automatic appeal and a trial transcript, and death-penalty cases can easily cost many times that amount. . . . The cost, county officials say, can be an unexpected and severe budgetary shock -- much like a natural disaster, but without any federal relief to ease the strain. To pay up, counties must raise taxes, cut services, or both."
(Wall Street Journal, 1/9/02) See also, Costs of the Penalty.
Taiwan Abolishes Mandatory Death Penalty Law
On January 8, 2002, Taiwan's legislature abolished a 1944 law that required the death penalty for certain violent crimes, including kidnapping and gang robbery. "[W]e failed to deter crime even by imposing the severest criminal punishment," said the Justice Ministry, which sees the move as a crucial crucial step that could lead to total abolition of the death penalty within the next few years. (Associated Press, 1/8/02) See also, International Death Penalty.
North Carolina Prepares for Execution Despite Doubts of Guilt
Death row inmate Charlie Alston is scheduled to be executed in North Carolina on January 11, even though serious questions about his guilt remain unanswered. Alston was sentenced to death for the 1992 murder of his ex-girlfriend, Pamela Perry. Alston has always maintained his innocence.
One of Alston's last chances for a reprieve would be to have DNA testing on fingernail scrapings taken of Perry after the murder. However, law enforcement officers lost the evidence and a superior court judge refused to stay Alston's execution until it is found. "The fundamental concept of fairness demands that the state give Charlie Alston enough time to prove his innocence," said Ken Rose, director of the Center for Death Penalty Litigation. (The Herald-Sun, 1/5/02 and The Nation, 1/7/02) Read the Nation article. For more information on the case, visit People of Faith Against the Death penalty's Web page on the Alston case and the Coalition of Criminal Justice Organizations' Press Release.
NEW VOICES: September 11th
In a letter to the New York Times, Orlando and Phyllis Rodriguez, whose son Greg died in the terrorist attacks on September 11, expressed their opposition to the death penalty:
We can understand why victims' families would look to the death penalty as a justifiable punishment for convicted terrorists, but we feel that it is wrong to take a life. Nothing will erase the pain and loss that we must learn to live with, and causing others pain can only make it worse.
If any good can come out of the disaster of Sept. 11, perhaps it will include examination of how we can maintain our humanity in the face of terrorists' threats.
(New York Times, letter to the editor, 1/4/01) See also, New Voices.
NEW RESOURCES: "Justice: Denied -- The Magazine for the Wrongly Convicted"
A special edition of Justice: Denied, highlighting the best of the magazine's two years of publication, is now available on-line. The magazine, which is devoted to helping people who have been wrongly convicted, offers information about these individuals, including stories on the attorneys who work on their cases, personal histories, and photographs. The Web site also offers an archive of previous issues. Read the Special Edition of Justice: Denied. See also, Death Penalty Related Web sites.
EDITORIALS: Washington Post Notes Decline in Executions and Calls for Abolition
Citing the Death Penalty Information Center's Year End Report, a Washington Post editorial recently remarked on the decline of executions in 2001, and cautioned that the events of September 11th ought not diminish the growing conern about the death penalty:
The decline [in executions] is an encouraging development for death penalty opponents. But caution is warranted. . . . Without systematic reform at both the state and federal levels -- something that has begun but is far from complete -- the current favorable trend in death penalty use could easily take a turn for the worse.
It is, therefore, all the more critical to remember why capital punishment must be abolished. The death penalty doesn't deter crime -- much less terrorism. It is a capricious act toward human life on the state's part. And it can produce disastrous, irreversible errors.
(Washington Post, editorial, 1/1/02) Read the entire article. See also, DPIC's 2001 Year End Report and articles on the death penalty.
Florida Inmate Becomes 99th Death Row Exoneration
Prosecutors in Florida have announced their decision to drop all the charges against Juan Roberto Melendez, a man who spent 18 years on Florida's death row. Melendez was sentenced to death in 1984 for the murder of Delbert Baker. In December 2001, Florida Circuit Court Judge Barbara Fleischer overturned Melendez's capital murder conviction after determining that prosecutors in his original trial withheld critical evidence. The judge noted that no physical evidence linked Melendez to the crime (see below). At trial, the state had used the testimony of two witnesses whose credibility was later challenged with new evidence. (Associated Press, 12/5/01) Following the reversal of Melendez's conviction, prosecutors decided not to retry the case. (Associated Press, 1/3/02)
Melendez is the 99th person to be exonerated from death row since 1973, and the 22nd person to be freed from Florida -- more than any other state. See DPIC's Press Release about the case. See also, Innocence and the death penalty.
NEW VOICES: E.R. Shipp Comments on the Death Penalty
Pulitzer Prize-winning writer E. R. Shipp wrote recently about Pennsylvania death row inmate Mumia Abu-Jamal and American Taliban soldier John Walker in the New York Daily News:
I don't have to believe in Abu-Jamal to demand due process. I just have to believe in the American ideal of justice.
And I don't have to buy into Walker's parents' plea for understanding of their son to see that the death penalty won't fly in his case.
This is where I stand: A life for a life is the way of the ancient world, not of the 21st century - and it should not be the way of this country, which claims to be the standard-bearer of all that is civilized.
(N.Y. Daily News, 12/23/01) See also, New Voices.
EDITORIALS: The Chicago Tribune calls for an extension on the moratorium on executions in Illinois until greater reforms are enacted:
Only after those reforms are in place should the debate turn to this question:
Has the criminal justice system been sufficiently fixed that Illinois can lift [Gov.] Ryan's moratorium on executions with the assurance that no innocent person will be put to death?
So far, the answer is easy: No. Before there is to be assurance that our system issues punishments that are fair and correct, many more reforms need to be enacted.
The Tribune noted the many flaws in Illinois' justice system that have been revealed in the paper's investigations, including prosecutorial misconduct, convictions based on the notoriously unreliable testimony of jailhouse informants, and inadequate defense representation. (Chicago Tribune, 12/31/01) See also, Editorials and New Voices.