As if following Yuletide tradition, a spate of new capital decisions were handed down in the immediate aftermath of Christmas. Additionally, due to delayed web release two decisions from the week priorto Christmas are also noted. Two different sets of opinions highlight the case trends of the week, both sets touching on the right to counsel.

The first pair of opinions focuses on interrogations. The Eighth Circuit denied relief inSIMMONS v. BOWERSOXholding that there was no improper coercive activity bythe police under either the test announced in Miranda or under the "totality of the circumstances." In the second case, the Fifth Circuit, in a rare capital habeas grant, holds inSOFFAR v. JOHNSONthat the police continued their interrogations of Petitioner after he had invoked the right to counsel.

The second set of opinions focuses on the outer contours of the right to effective assistance of counsel. InHOFFMAN v. ARAVE a Ninth Circuit panel holds that Idaho's requirement of raising any challenge to a capital sentence within forty-two days of the entry of judgment, is an unreasonable restriction on exercising one's federally protected constitutional right to counsel. The Tenth Circuit inBATTENFIELD v. GIBSONhold counsel for petitioner rendered ineffective assistance of counsel despite apparent waiver of the right to present mitigation evidence during the penalty phase of the trial.

Of the four remaining cases, all are losses. The Eighth Circuit, after remanding for factual development under the Schlup actual innocence analysis denies relief inAMRINE v. BOWERSOX. InWHEAT v. JOHNSON the Fifth Circuit turns aside on the merits concerns about the constitutionality of the Texas death penalty scheme (that the statute is unconstitutional for failingto allow mitigating testimony about defendant's low risk of danger to society), as well as denying relief due to procedurally default concerning evidence that was the allegedlyerroneously excluded. The Fourth Circuit, in an unpublished opinion,SKIPPER v. LEE denies relief on issues relating to lesser included offenses and issues relating to mental retardation (currently before the Supreme Court in Penry). In the last case of the edition,ALLEN v. MASSIEthe Tenth Circuit denies relief on a motion to recall mandate.

Debuting this week are two new areas. The first is a mailbox features a sample of feedback, notes, requests, and questions received. The second feature is tentatively titled "Outrages of the Week" and examines cases of questionable holding or that cast ominous shadows over liberty.

Two final notes. A stunning London Mirror photographic recount ofthe Texas execution is now available at http://www.geocities.com/mirror_bush/ thanks in large part to the efforts of the Canadaian Coalition to Abolish the Death Penalty (ccadp.org). And lastly, Robert Jay Lifton and Greg Mitchell, authors of "Who Owns Death? Capital Punishment, the American Conscience and the End of Executions," in a January 3, 2000 editorial boldly proclaim,"The Death Penalty's Days Are Numbered" and are the featured column of week.

Supreme Court

The Supreme Court is hearing the following cases this week of relevance:

Shafer v. South Carolina, No. 00-5250 Court below: Supreme Court of South Carolina

CAPITAL PUNISHMENT (Jury Instructions on Parole Eligibility)

The issue in this capital punishment case is whether petitioner's due process rights under Simmons v. South Carolina, 512 U.S. 154 (1994), were violated by the trial court's refusal to instruct the sentencing jury that "under South Carolina law, [petitioner] would be ineligible for parole if the jury were to vote for a life sentence."

Shafer shot and killed a convenience store operator during a robbery attempt. Shafer was convicted of murder, and the trial judge refused to instruct thejury that, if sentenced to life imprisonment, petitioner would be ineligiblefor parole. On direct appeal, the Supreme Court of South Carolina affirmedthe sentencing and the trial judge's refusal to give the requested instruction. The Court held the Simmons case, requiring an instruction regarding the ineligibility of parole, was inapplicable to post-1995 South Carolina capital cases because life imprisonment was not the only legally available sentence alternative to death.

Daniels v. United States: No. 99-9136 Court below: United States Court of Appeals, Ninth Circuit

HABEAS (Collateral Attack on the Validity of Prior Convictions)

The issue in this habeas case is whether 28 U.S.C. s2255 allows a defendant the opportunity to challenge previous convictions as constitutionally invalid when they are used to enhance the current sentence.

Daniels was indicted for being a felon in possession of a firearm in violationof 18 U.S.C. s922(g). The gov. sought use of the Armed Career CriminalAct of 1984 (ACCA), which requires a 15 year mandatory sentence foranyone violating s922(g) and having three previous convictions for a violentfelony or a serious drug offense. The district court found that Danielshad four previous violent convictions, and sentenced him to 176 months. Danielsfiled a motion under 28 U.S.C. s2255 challenging the 176-month sentence asinvalid because two of the previous convictions were unconstitutional. The district court held that Custis v. United States, 511 U.S. 485 (1994),prevented a collateral attack of the previous convictions unless there hadbeen a violation of Daniels' right to counsel under Gideon v. Wainwright,372 U.S. 335 (1963). The Court Below affirmed, holding that Custis bars federalhabeas review without a Gideon claim. Daniels argues that Custis extended the right to challenge as unconstitutional prior-convictions due to the denial of counsel, but did not limit that ability to make other constitutional challenges such as habeas corpus.

Capital Cases

SIMMONS v. BOWERSOX(8th Cir 01/02/01 - No. 99-3643) Petitioner's confession was voluntary as threat to use statements of denial in capital case was not an unconstitutional use of a suspect's silence, and there was no improper coercive activity by the police.

Simmons argues that he was impermissibly promised leniency in exchange for his statement and that his statement was involuntary under the totality of the circumstances. We consider these arguments together as the analysis of one informs that of the other. United States v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997). Simmons argues that circumstances surrounding the interrogation rendered his statement involuntary. In support of his contention, he relies on the following: he was seventeen years old at the time; he was a poor student of below average intelligence; he was interrogated by three police officers for over two hours; law enforcement officials raised their voices while in close proximity to him, misrepresented to him that his accomplice was confessing, and reminded him that he was facing the death penalty while also telling him things would go better for him if he told the truth.

We have carefully reviewed Simmons' videotaped statement to police, along with transcripts of pretrial hearings on its admissibility, depositions of law enforcement officials, and the trial transcript. We find Simmons' claim that his self- incriminating statement resulted from coercive activity is without merit. On videotape, Simmons acknowledged that his rights had been read to him and that he understood those rights but chose not to exercise them. He also acknowledged that he voluntarily chose to speak to law enforcement officials. Law enforcement officials testified that Simmons was read his Miranda rights before the officials began questioning him. Although the requirement that a Miranda warning be given does not dispense with the voluntariness inquiry, "'[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was "compelled" despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.'" Dickerson v. United States, __ U.S. __, 120 S. Ct. 2326, 2336 (2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)).

To merit habeas corpus relief, Simmons must prove he involuntarily made his statement to law enforcement officials. Jenner v. Smith, 982 F.2d 329, 333 (8th Cir. 1993). A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant's will and critically impair his capacity for self-determination. United States v. Pierce, 152 F.3d 808, 812 (8th Cir. 1998). In applying this test, we look at the totality of the circumstances surrounding the interrogation, including law enforcement officials' conduct and the defendant's capacity to resist any pressure. Id. Specifically, we consider factors such as detention length, the repetitive and prolonged nature of questioning, and the accused's age. Bramlett v. Lockhart, 876 F.2d 644, 646 (8th Cir. 1989).

We find that the questioning tactics in the present case were not improperly coercive. Officers may elicit statements by claiming not to believe the accused's denials. Jenner, 982 F.2d at 334. Tactics such as deception and raised voices do not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne. Id. Questioning a suspect for six or seven hours is not unconstitutionally coercive per se. Id. We do not find the period of interrogation in the present case-approximately two hours-to be particularly lengthy. Cf. id. Furthermore, although it may have taken up to two hours for Simmons to make a statement implicating himself in the murder of Mrs. Crook, he waived his rights at the beginning of questioning and did not later assert them.

Although a promise made by law enforcement is a relevant consideration in assessing police conduct, it is only one circumstance to be considered and does not render a confession involuntary per se. Larry, 126 F.3d at 1079; United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) (indicating that even if the suspect had been promised some form of leniency, this circumstance alone would not render his confession involuntary). The statement to an accused that telling the truth "would be better for him" does not constitute an implied or express promise of leniency for the purpose of rendering his confession involuntary. Bolder v. Armontrout, 921 F.2d 1359, 1366 (8th Cir. 1990) (involving penalty of death); see, e.g., Pierce, 152 F.3d at 813 (statement that it would be to the suspect's benefit if he cooperated with them is not improperly coercive); Bannister v. Armontrout, 4 F.3d 1434, 1440 (8th Cir. 1993) (comments that it would be in the accused's best interest to cooperate did not render his statement involuntary in death penalty case). Furthermore, "[a] truthful and non-coercive statement of the possible penalties which an accused faces may be given to the accused without overbearing one's free will," even when the accused is a minor. United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978).

In the present case, the Missouri Supreme Court determined that, during the interrogation, Lt. Edward Robertson stepped into the room and told Simmons that he "was facing either the death penalty or life in prison and that it would be in his 'best interest' to tell the truth." Simmons, 944 S.W.2d at 173. After Robertson exited, "Knoll and the other detectives encouraged Simmons to remember what Robertson had said and that it would be better for him to tell the truth." Id. Simmons argues that, together, the statements constituted an implied promise of leniency. We agree with the state court, which found "this supposed nexus far too tenuous to support Simmons' contentions." Id. at 175.

We recognize that courts have a duty to scrutinize juveniles' statements with special care. Rone v. Wyrick, 764 F.2d 532, 534-35 (8th Cir. 1985) (citing Haley v. Ohio, 332 U.S. 596, 599 (1984)). Statements by an accused juvenile must not be the product of "'ignorance of rights or of adolescent fantasy, fright or despair'" in addition to not being coerced or suggested. Id. at 534 (quoting In re Gault, 387 U.S. 1, 55 (1967)). Factors to consider in the totality-of-the-circumstances analysis involving a juvenile include the juvenile's intelligence, maturity, and prior dealings with law enforcement. Id. at 535.

Considering those factors, we cannot find that Simmons' will was overborne by police tactics. Particularly compelling to us is Simmons' acknowledgment, on videotape, that he understood his rights and agreed that he had not been coerced by police officials. In the post-conviction relief proceedings, Dr. Daniel Cuneo-who had been hired by defense counsel prior to trial to investigate possible mitigating factors-testified that Simmons has a full-scale IQ of 88 and that he "was bright enough to do well in school if he had wanted. It wouldn't have been easy, but he could have done it." One of Simmons' defense attorneys testified in the post- conviction relief proceedings that Simmons had previously been arrested as a suspect in a rape case. Simmons, therefore, was not unfamiliar with the criminal legal process.

The facts of this case are less compelling than those presented in Sumpter v. Nix, 863 F.2d 563 (8th Cir. 1988), where a special agent interrogated a suspect with an IQ of 89 for seven and one-half hours, suggested that the suspect's wife would understand what had happened, and made implied promises of leniency and treatment for alcoholism if the suspect were to confess. Id. at 564-65. We concluded that the suspect's will had not been overborne nor his capacity for self-determination critically impaired. Id. at 565. Simmons has similarly failed to show that his will was overborne and his capacity for self determination critically impaired. Law enforcement officials followed the dictates of Miranda and our totality-of-the- circumstances analysis convinces us that his waiver of rights and confession were not involuntary.His confession, therefore, satisfies constitutional scrutiny.

SOFFAR v. JOHNSON, No. 98-20385 (5th Cir. 12/21/2000) Petitioner granted relief on the ground that his custodial interrogation violated the right to counsel.

[W]e now turn to our analysis of the merits of Soffar's claim that the State violated his Fifth Amendment rights by continuing to interrogate him in custody and without counsel present after he invoked his right to counsel. We consider first whether Soffar's invocation of his right to counsel was sufficiently clear under the totality of the circumstances, and second, whether Clawson's responses to Soffar's inquiries about a lawyer invalidated his subsequent waivers of the right to have counsel present during his custodial interrogation.

a. Clear Invocation?

The first question we must answer is whether Soffar's questions to Clawson constituted a clear invocation of his right to counsel. As the Supreme Court put it in Edwards and later in Davis, a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 114 S. Ct. at 2364 (Souter, J., concurring). Although, in Davis, the Supreme Court held that police have no duty to stop an interrogation if the suspect makes an ambiguous request for counsel, Davis requires the police to stop an interrogation if a reasonable officer, under the totality of circumstances, would understand that the suspect desires to confer with counsel before answering further substantive questions. The Davis Court supplied the following test for determining whether a suspect has invoked his right to counsel:

Although a suspect need not 'speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clear that a reasonable officer in the circumstances would understand the statement to be a request for an attorney. Davis, 114 S. Ct. at 2355 (citations omitted, emphasis supplied).

In deciding whether a request for counsel is sufficiently clear to constitute an invocation of the right to counsel, we must consider "the totality of the circumstances," and we must also remain mindful of the teachings of Michigan v. Jackson, 106 S. Ct. 1404, 1409 (1986), wherein the Supreme Court, cognizant of the settled principles of indulging every presumption against waiver and resolving all doubts in favor of protecting constitutional claims, stated that the courts must "give a broad, rather than a narrow, interpretation to a [suspect's] request for counsel."

The district court relied heavily on the state habeas court's factual finding that Bruce Clawson did not consider Soffar's questions about a lawyer to be an invocation of his right to counsel, and that based thereupon, Soffar's claim that he had sufficiently articulated a request for counsel "must fail as a factual matter." This factual finding, however, is not entitled to the heightened level of deference afforded it by the district court, and as discussed below, taken in the context of Clawson's full testimony, it is most certainly not dispositive of the ultimate legal issue of whether Soffar's statements did constitute an effective invocation, which legal issue is to be decided by the court and not Clawson. Clawson's testimony as to his belief that Soffar's questions were not an invocation, while probative of whether a reasonable officer would understand Soffar's questions to be a request for an attorney, is simply not dispositive, and the district court erred in so stating.

As discussed above, our analysis of the entirety of Clawson's testimony reveals the following. Soffar asked Clawson first whether he should talk to a lawyer. Clawson said "if you're guilty talk to the police, if you're innocent you should talk to a lawyer." Based on this, Soffar then asked "how do I get a lawyer?" Clawson deflected this question by asking, "can you afford" an attorney, implying that if Soffar couldn't afford a lawyer he wouldn't be able to get one. Undeterred, Soffar thirdly asked "then how do I get a court-appointed lawyer, and how long will it take?" Clawson once again deflected this question by giving knowingly false information, i.e., that it could take up to a month to get a lawyer. Finally, based on Clawson's misleading responses, Soffar said "well, then I guess I'm on my own?" We conclude that either Clawson's failure to respond to that question as he stated he did in his state habeas affidavit, or his affirmative response of "yes, you are" as he stated in his state habeas evidentiary hearing testimony (see supra note 22), together with Clawson's follow-up question "now will you talk to the detectives again?," constituted an implicit affirmative response to Soffar's last question which was the equivalent of saying "you can't get a lawyer, Max, and yes, you're on your own now." Additionally, we are persuaded by Clawson's state habeas evidentiary hearing testimony, in which Clawson responded to habeas counsel's question, "based on everything you heard and observed . . . what did you conclude [Soffar] wanted?," by stating, "well, the obvious answer is he wanted an attorney."

Clawson also stated in his state habeas testimony that his "duty" as a police officer that day was to keep Soffar talking. Under Miranda, Clawson's duty was to respond honestly and completely to Soffar's questions, and not to mislead him into believing that he could not get a lawyer if he wanted one. The fact that Soffar asked how he could get a lawyer immediately in response to Clawson's statement that if he was innocent he should talk to a lawyer, is particularly evident of an invocation of the right to counsel. The essence of Soffar's question was as if Soffar responded, "well, I'm innocent, so how do I get my lawyer?" Unfortunately, Clawson's very next statement was a calculated move to imply that Soffar could only get a lawyer if he could afford one himself, a condition which Clawson knew did not exist. Indeed, it was Soffar who had to interject the idea of getting a court-appointed lawyer. And Clawson's response to that request was equally deceitful. Clawson admitted to knowing about Houston's 72-hour rule, and he further testified that Max was incapable of thinking much farther into the future than the present day, but he responded to Soffar's inquiry by stating that it could take up to a month. Also, Clawson's response when Soffar stated "I guess I'm on my own," which he testified at one point was silence, but which he testified at another point was an affirmative "yes, you are," coupled with Clawson's next question, "so will you talk the cops?," is further evidence that Clawson directly violated the tenets of Miranda by pressuring Soffar not to invoke his right to counsel.

Clawson admitted as much in his habeas testimony. According to his testimony, Clawson deliberately "derailed [Soffar's] inquiries about the subject of obtaining a lawyer," because of the pressure he was under from the Houston detectives not to "derail their investigation" by letting their only lead consult a lawyer. Clawson knew that Soffar, seeking Clawson's advice as a friend, would "follow his lead," and he purposefully sought to manipulate Soffar's trust to ensure that Soffar did not ask for a lawyer then, or at any time during the later interrogation, by convincing Soffar that he was going to have to deal with the detectives "on his own." In our view, Soffar tried his best to invoke his rights and get counsel, but Clawson deliberately distorted the reality of Soffar's rights, relying upon his personal relationship with Soffar to convince Soffar that he had none. Our conclusion in this regard is only further supported by Soffar's lament, "I guess I'm on my own then."

We pause here to note that in Miranda, the Supreme Court stated that:

[i]n order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent--the person most often subjected to interrogation--the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. Miranda, 86 S. Ct. at 1627.

Clawson's responses when Soffar broached the subject of legal assistance were not the answers required by Miranda - that he had the right to have an attorney present to advise him without regard to his guilt or innocence and even though he could not afford to pay for one; that the State would pay for a lawyer to assist him in deciding whether to continue talking to the police; and that he could demand that the questioning stop until his attorney was present. Instead, Clawson's remarks can only be read to mean that Soffar could not have an attorney within a reasonable time unless he could pay for one; that it might take a month for him to obtain the services of a court-appointed lawyer; and in the meantime, he was on his own in dealing with the other police interrogators.

In light of the foregoing, we conclude that Clawson's "belief" that Soffar's inquiries were not a request for an attorney, was simply willful ignorance designed to further his stated goal of ensuring that Soffar did not ask for an attorney. That Clawson would not allow himself to perceive Soffar's inquiries as an "invocation of the right to counsel" is wholly consistent with Clawson's admitted role as the facilitator of uncounseled custodial interrogation. Based on these conclusions, we cannot rely on Clawson's testimony that he did not consider Soffar's inquiries to be a request for an attorney as dispositive with respect to the legal issue of whether Soffar invoked his right to counsel.

In our view, and considering the totality of the circumstances, including Clawson's historical association with and understanding of Soffar's thinking, we find that a reasonable officer in Clawson's position, knowing everything about Soffar that Clawson did, but without the stated mission of preventing Soffar from invoking his right to counsel, would have viewed Soffar's series of question to be an invocation of his right to counsel, especially in light of Soffar's follow-up questions to each of Clawson's intentionally deflective responses. Indeed, when referring to the totality of the circumstances surrounding the Clawson-Soffar colloquy, even Clawson stated that it was "obvious" that Soffar "wanted an attorney." Not that he "might" want or "possibly" wanted an attorney, or that he was considering asking for an attorney, but that he indeed "did" want an attorney. In such circumstances as these, where the interrogating officer had personal knowledge of Soffar's background (his inability to afford private counsel) and his distinguishing, relevant character traits (his trust in the officer resulting from a relationship built over time; his modes of communication, including his argot mannerisms, and gestures; and his incapacity to "think much farther into the future than the present day"), a reasonable officer would have understood Soffar's questions and responses to express a clear "desire to have counsel," as in fact Clawson ultimately testified he did understand.

As a result, we conclude that under the totality of the circumstances, Soffar's collective inquiries about getting a lawyer constituted a sufficiently clear invocation, under both Davis and Edwards, of his right to counsel -- an invocation which Clawson fully appreciated but intentionally ignored. Thus, irrespective of the fact that Soffar gave subsequent, otherwise valid waivers of his rights, all subsequent custodial interrogation was taken in violation of Soffar's Fifth Amendment rights, and the written statements derived from such interrogations were inadmissible in his trial.

SKIPPER v. LEE (4th Cir. 12/19/2000 No. 00-8) (unpublished) (link requires free registration) Petitioner denied relief on relief on allegations that the trial court failed to instruct the jury on second-degree murder and the district court's refusal to grant an evidentiary hearing to determine whether trial counsel rendered ineffective assistance in failing to present evidence of Skipper's mental retardation and diminished capacity at the guilt phase of trial.

In the present case, Skipper argues that the guilt-phase jury could have concluded that he lacked the requisite premeditation and deliberation because he "drank a large quantity of beer in the hours prior to the offense," and "asked [Smith] to drive because he was afraid to drive after drinking so much." (Appellant's Br. at 15-16.) We agree with the district court that this evidence is not sufficient to meet the standard of intoxication necessary to entitle the defendant to a second-degree murder instruction. As the Supreme Court of North Carolina noted in rejecting this same argument on direct appeal, "[t]here was no evidence as to how much [Skipper] had had to drink that day, nor over what period of time. The evidence did establish that the defendant was not visibly intoxicated." Skipper , 446 S.E.2d at 266. . . . .

We reject Skipper's argument that the jury could have concluded that he did not premeditate and deliberate based upon evidence that he expressed remorse in the days that followed the murders and that he had a cordial relationship with the victims. First, Skipper did not demonstrate remorse until several hours after leaving the murder scene, first at a restaurant in Fayetteville and later at an old house on the highway. Notwithstanding these brief expressions of regret, Skipper purposefully continued to evade capture, even warning Smith of the consequences if he turned himself in, i.e., that Smith would "g[e]t twenty years." (J.A. at 256.) Second, immediately after killing Pittman and Fipps, Skipper confirmed with Smith that he"g[o]t" them, and he proceeded to direct Smith to a wooded area where Skipper disposed of the weapons and ammunition. (J.A. at 242.) Third, although Smith eventually turned himself in, Skipper did not; instead, he was captured a week after the murders, only after Smith told the police where Skipper was hiding. We do not believe that Skipper's limited statements of regret, made hours after the killings and demonstrably inconsistent with his earlier and later behavior, undermine the conclusion that Skipper premeditated and deliberated prior to killing Pittman and Fipps. Likewise, although Skipper maintains that his lack of premeditation and deliberation is reflected by the cordial relationship that he had with Pittman, we agree with the Supreme Court of North Carolina that this contention is unsupported by the record and, indeed, is belied by the fact that Pittman asked Smith not to bring Skipper to her house anymore. See State v. Skipper, 446 S.E.2d 252, 266 (N.C. 1994).

In sum, the evidence of Skipper's drinking, combined with his post-murder statements of remorse and allegedly cordial relationship with Pittman, simply are not enough in conjunction with the other undisputed facts to permit a jury to "rationally find the defendant guilty of the lesser offense but not guilty of the greater offense." Wright, 131 F.3d at 1112 (quoting Walker, 75 F.3d at 180).*fn8 Accordingly, we conclude that Skipper is not entitled to relief based upon the trial court's failure to instruct the jury on second-degree murder.*fn9

AMRINE v. BOWERSOX (8th Cir 01/05/01 - No. 96-1892) District court did not err in finding that petitioner did not present sufficiently new and reliable evidence of actual innocence entitling him to a Schlup actual innocence analysis where court explained why petitioner's witness testimony was not reliable.

A habeas petitioner who raises a gateway claim of actual innocence must satisfy a two-part test in order to obtain review of otherwise procedurally barred claims. First, the petitioner's allegations of constitutional error must be supported with new reliable evidence not available at trial. Schlup, 513 U.S. at 327-28. Second, the petitioner must establish "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327.

Amrine contends that the district court erred in finding that his proffered evidence was not sufficiently new or reliable to warrant proceeding to the second step of the actual innocence analysis. He maintains that the district court misapplied Schlup when it considered only Poe's recantation for purposes of his actual innocence claim. The state contends that the district court correctly found that Amrine had not put forth sufficient evidence of actual innocence to permit merits review of his barred claims.

The district court followed our instructions on remand consistent with Schlup. It ruled that evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence. The testimony of Noble, Dean, Russell, and Ferguson was thus not new evidence, and the court did not err by deciding to focus on the testimony of Poe. The district court was to "make its own credibility determinations" in order to ascertain whether the new evidence proffered by Amrine was sufficiently reliable to warrant conducting a Schlup actual innocence analysis. Amrine I, 128 F.3d at 1230. After considering the videotaped deposition, the district court found that Poe was not a credible witness and that his recantation could not be relied upon. The court clearly explained its reasons for finding that Poe's testimony was not reliable. This is a credibility determination which is entitled to great deference, and we see no reason to overturn it. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985) ("[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently").

In order to prevail on his actual innocence claim, Amrine was required to show "new reliable evidence . . . not presented at trial establishing that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Lee v. Kemna, 213 F.3d 1031, 1039 (8th Cir. 2000) (citations omitted). Amrine did not present such evidence, and consequently cannot utilize the actual innocence gateway. Thus, the merits of his procedurally barred claims cannot be considered.*fn3

HOFFMAN v. ARAVE (9th Cir 01/03/01 - No. 99-99002) Idaho Code 19-2719, which requires capital defendants to file any legal or factual challenge to the sentence or conviction that is known within forty-two days of the entry of judgment, is an unreasonable restriction on exercising one's federally protected constitutional right to counsel.

No allegation of ineffective assistance of counsel was made on Hoffman's behalf until 1995, when a successive petition for post-conviction relief was filed by appointed counsel Peterson and Matthews, who replaced Hoffman's trial counsel. Peterson and Matthews investigated errors apparent from the record, and supplied the court with depositions and affidavits in which Hoffman's trial counsel admitted that they failed to: (1) obtain or review their client's educational, medical, or psychological records; (2) request a psychiatric evaluation of their client until after the trial despite awareness of his illiteracy, low intelligence, and psychological problems; and (3) follow up on the conclusion, stated in Dr. Sanford's report, that Hoffman suffered from possible brain damage.

Peterson and Matthews also investigated errors outside of the record, and supplied the court with depositions and affidavits in which trial counsel, neither of whom had previously tried a capital case, admitted that they had advised Hoffman to reject a plea of life in prison because they mistakenly believed, based on their misinterpretation of existing case law, that the Idaho death penalty statute would be found unconstitutional. Peterson and Matthews's petition was the first time that allegations documenting specific instances in which Hoffman's counsel had been ineffective had been presented to the state court.

As Peterson and Matthews's investigation shows, a claim of ineffective assistance of counsel requires review of the trial transcript and the entire record to determine the nature, frequency, and effect of counsel's errors. But Idaho Code S 19-2719 makes no provision for expedited delivery of trial transcripts to ensure that compliance with the forty-two day filing deadline does not deprive capital defendants of access to the complete record of their cases.*fn20 Indeed, the record indicates that Hoffman's trial counsel prepared their post-conviction petition for relief without access to the trial transcript, which was completed on November 6, 1989, more than three months after the post-conviction petition was filed. Completion and service of the full record did not occur until late March of 1990, several months after the state court ruled to deny Hoffman's post-conviction petition.

The investigation conducted by Peterson and Matthews also shows that raising a claim of ineffective assistance of counsel requires that new counsel have the opportunity to conduct an investigation beyond the court records to uncover possible omissions made by trial counsel in the investigation and presentation of the case. See, e.g ., Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir. 1988) ("[I]neffectiveness claims are ordinarily inappropriate to raise on direct appeal because they . . . cannot be made on the basis of the record[.]"); Cruz v. Warden, 907 F.2d 665, 670 (7th Cir. 1990) ("An ineffective assistance claim alleging that counsel failed to prepare involves facts outside the trial record and presents a situation in which the Illinois courts will not invoke the res judicata or waiver doctrines.").

Hoffman's case involves allegations of ineffectiveness at trial, sentencing, and on appeal, stemming from counsel's legally inaccurate advice regarding the possibility that the death penalty would be imposed and counsel's failure to review educational, physical, and psychiatric records in order to present mitigating evidence. All of these allegations required investigation outside of the record at trial.

For the reasons outlined above, S 19-2719 effectively prevented Hoffman from timely raising his ineffective assistance of counsel claims.

APPRENDI ISSUE

Hoffman argues that in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), Idaho's capital sentencing statute unconstitutionally deprives him of the right to have a jury -rather than a judge -- determine the presence of an aggravating circumstance, a determination that could result in a sentence of death. In Apprendi, the Supreme Court announced a general rule that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. Hoffman contends that the presence of an aggravating circumstance should be treated as an element of a capital case to be decided by the jury rather than as a factor in sentence enhancement to be decided by the judge.

In Walton v. Arizona, the Supreme Court addressed a similar sentencing scheme and held that the presence of an aggravating circumstance in a capital case may constitutionally be determined by a judge rather than a jury. 497 U.S. 639, 647-48 (1990). The Supreme Court in Apprendi did not overrule Walton. It wrote:

Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Apprendi, 120 S. Ct. at 2366 (citing Walton, 497 U.S. at 64749; Id. at 709-14 (Stevens, J. dissenting)).

We are aware that four dissenting Justices in Apprendi asserted that Apprendi effectively overruled Walton, and that one concurring Justice stated that Walton could be reexamined on "another day." But while Apprendi may raise some doubt about Walton, it is not our place to engage in anticipatory overruling. The Supreme Court has specifically directed lower courts to "leav[e] to this Court the prerogative of overruling its own decisions." Agostini v. Felton , 521 U.S. 203, 207 (1997) (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). We therefore conclude that Walton forecloses Hoffman's Apprendi-based challenge to Idaho's capital sentencing scheme.

WHEAT v. JOHNSON (5th Cir 01/05/01 - No. 00-10433) Defendant did not preserve the offer of proof where counsel failed to specify which testimony the trial court allegedly erroneously excluded. Death penalty statute is not unconstitional for failing to allow mitigating testimony about defendant's low risk of danger to society.

Wheat argues that the Texas death penalty scheme violates the Fifth, Eighth, and Fourteenth Amendments to the extent that it prevents juries from considering the mitigating circumstances that dictate against the imposition of the death penalty. Fifty-three-year-old Wheat argues that the mitigating circumstances in his case are that there is an exceedingly low probability that, given his forty-year parole ineligibility on a life sentence, he would constitute a continuing threat to society. Wheat therefore analogizes his case to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), where the Supreme Court held that a capital defendant must be given the opportunity to inform the sentencing jury that he is parole ineligible if the prosecution argues future dangerousness.

The district court found that this argument would ask the court to adopt a new rule of constitutional law, so that the claim is Teague-barred, regardless of the merits. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, L.Ed.2d 334 (1989). We agree.

Under Teague, a federal court may not create new constitutional rules of criminal procedure on habeas review. See Teague, 489 U.S. at 301, 109 S.Ct. at 1070; Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999). The treatment of parole eligibility that Wheat seeks would constitute a rule of criminal procedure. See O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (characterizing the rule announced in Simmons as a rule of criminal procedure). Wheat's proposed approach, although he takes pains to point out the similarities between his own situation and that in Simmons, would also constitute a "new" rule under existing Fifth Circuit law. We have repeatedly recognized that the Simmons rule applies only where there is a life-without-possibility-of-parole alternative to the death penalty, an alternative that does not exist in Texas. To hold that a lengthy parole ineligibility is the de facto equivalent of a life sentence without possibility of parole, as Wheat argues, would create a new rule under the law of our Circuit. See Simmons, 512 U.S. at 168 n.8, 114 S.Ct. at 2196 (noting that Texas is unlike South Carolina in that it does not offer a life-without-possibility-of-parole alternative to the death penalty); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir. 2000) (holding that the Simmons rule is not applicable to defendants who would be eligible for parole if sentenced to life); Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir.), cert. denied, 2000 WL 38193 (No. 99-7701)(U.S. Jan. 24, 2000) (same); Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir.), cert. denied, 523 U.S. 1113 (1998) (same); Montoya v. Scott, 65 F.3d 405, 415 (5th Cir. 1995) (same); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir.), cert. denied, 514 U.S. 1108 (1995) (holding that Simmons is only applicable where the state argues future dangerousness and the defendant is legally ineligible for parole); Collier v. State, 959 S.W.2d 621, 623 (Tex. Crim. App.), cert. denied, __ U.S. __, 199 S.Ct. 335, 142 L.Ed.2d 276 (1998) (holding that parole considerations do not apply to capital cases because when deciding future dangerousness, juries are free to consider dangerousness to prison as well as free society). Thus, even if Wheat's construction could in the abstract be seen as an extension of the Simmons rule, avoiding the Teague bar, this possibility has been ruled out by this Circuit.

BATTENFIELD v. GIBSON(10th Cir. 01/03/2001 - No. 99-7096) Counsel for petitioner rendered ineffective assistance of counsel, despite apparent waiver of the right to present mitigation evidence during the penalty phase of the trial, for failing to investigate and present mitigation evidence.

Battenfield contends his trial counsel, Dennis Shook, rendered ineffective assistance during the penalty phase of trial because he failed to adequately prepare or present any mitigating evidence. According to Battenfield, a variety of mitigating evidence was available, including (a) evidence that Battenfield's father and grandfather were involved in moonshining, (b) Battenfield's involvement in a serious car accident at age 18, during which he sustained a serious head injury and after which he heavily used alcohol and drugs, (c) Battenfield's family history of alcoholism and possible drug addiction, (d) mental health evidence, including evidence that Battenfield suffered from substance addiction, (e) the underlying circumstances of Battenfield's previous conviction for assault and battery, which allegedly occurred while he was under the influence of drugs and alcohol and was an act of self-defense, (f) evidence from family members and friends indicating that Battenfield was known for his compassion, gentleness, and lack of violence, even when provoked, and (g) testimony of prison personnel describing the security where Battenfield would be incarcerated if given a life sentence. Although Battenfield acknowledges that he informed Shook and the trial court prior to the beginning of the penalty phase that he did not want to present any mitigating evidence, he argues that he did not knowingly and intelligently waive his right to present such evidence. Specifically, Batten field argues that prior to the waiver, neither Shook nor the trial court adequately informed him of the nature or purpose of mitigating evidence. . . .

Less than a month after Battenfield's trial, the OCCA established guidelines for trial courts to follow "when a defendant refuses to allowthe presentation of mitigating evidence in the sentencing stage." Wallacev. State, 893 P.2d 504, 512 (Okla. Crim. App. 1995). Those guidelines, intendedto ensure that a defendant "has an understanding of his or her rights . .. in the sentencing process," require a trial court to: (1) inform the defendantof the right to present mitigating evidence, and what mitigating evidenceis; (2) inquire both of the defendant and his attorney (if not pro se) whetherhe or she understands these rights; (3) inquire of the attorney if he orshe has attempted to determine from the defendant whether any mitigatingevidence exists; (4) inquire what that mitigating evidence is (if the defendanthas refused to cooperate, the attorney must relate that to the court); (5)inquire of a defendant and make a determination on the record whether thedefendant understands the importance of mitigating evidence in a capitalsentencing scheme, understands such evidence could be used to offset theaggravating circumstances proven by the prosecution in support of the deathpenalty, and the effect of failing to present that evidence; (6) after beingassured the defendant understands these concepts, inquire of the defendantwhether he or she desires to waive the right to present such mitigating evidence;and (7) make findings of fact regarding the defendant's understanding andwaiver of rights. Id. at 512-13. The trial judge in Battenfield's case failed to satisfy any of these requirements.

Although the State correctly argues that Wallace "was not the law at the time of Appellant's 1985 trial," State's Appellate Br. at 30 n.3, the guidelines set forth in Wallace are, in our view, little more than commonsense and should have been substantially followed by the trial court. We emphasize that our conclusion regarding the inadequacy of the trial court's inquiry does not hinge in any way upon the holding in Wallace. Instead, we simply find it useful, for analytical purposes, to contrast the trial court's inquiry in this case with the guidelines set forth by the OCCA in Wallace.

Given our conclusion that Battenfield's waiver was neither knowing nor intelligent, the next question is whether Shook was ineffective for failing to present any mitigating evidence. Although the OCCA determined that Battenfield's waiver was knowing and intelligent (a determination we have already rejected under the AEDPA standards of review), it alternatively determined that "[e]ven without the waiver, . . . Battenfield ha[d] failed to show that [Shook] was ineffective by not presenting mitigating evidence." Battenfield III, 953 P.2d at 1127. According to the OCCA, most of the mitigating evidence to which Battenfield pointed in his application for post-conviction relief could have been presented by "Battenfield and his family . . . had Battenfield cooperated with his attorney." Id. In other words, the OCCA determined, Shook's failure to present mitigating evidence was "a direct result of Battenfield's own refusal to testify and allow his parents to testify." Id.

In our view, this is a patently unreasonable application of Strickland. We see no difference between Battenfield's purported waiver and his so-called "lack of cooperation." If the waiver is found to be neither knowing nor intelligent, the so-called lack of cooperation must fall by the wayside. Even ignoring this flaw in the OCCA's reasoning, we fail to see how Battenfield can be held responsible for Shook's failure to present mitigating evidence unknown to Shook. *fn10 Had Shook conducted a constitutionally adequate investigation of potential mitigating evidence, he would have had a variety of witnesses from whom to choose.

We conclude that Battenfield was deprived of effective assistance of counsel during the penalty phase of trial. Shook failed to conduct a constitutionally adequate pretrial investigation into potential mitigation evidence which, in turn, hampered his ability to make strategic choices regarding the second-stage proceedings and competently advise his client regarding those proceedings. Because Battenfield did not receive competent advice from Shook regarding the second-stage proceedings, and because the trial court failed to conduct an adequate inquiry into his decision to waive mitigation evidence, we conclude Battenfield's purported waiver was neither knowing nor voluntary. Finally, we conclude Shook was ineffective for failing to present any mitigation evidence during the second-stage proceedings.

The remaining question is whether Battenfield was prejudiced by Shook's inadequate performance. Because the OCCA never addressed this issue, we are free to exercise our independent judgment. Battenfield must "affirmatively prove actual prejudice by demonstrating `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Cooks, 165 F.3d at 1296 (quoting Strickland, 466 U.S. at 693-94). "As applied to the sentencing stage of his trial, [Battenfield] must demonstrate `a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Id. (quoting Strickland, 466 U.S. at 695). . . .

Battenfield had available a variety of mitigating evidence to counterbalance this single aggravating factor. Although the underlying facts of his 1978 conviction are somewhat sketchy, the record suggests it may have been an act of self defense on the part of Battenfield. In particular, the evidence indicates Battenfield "was playing pool in a bar when a `drunk Indian' fell or knocked into the pool table. Words were exchanged, the Indian pulled a gun, and [Battenfield] defended himself with a knife." St. Peter Aff. ¶ 17. Both the 1978 crime and the murder of Cantrell were committed when Battenfield was under the influence of drugs or alcohol. Arguably, this evidence could be viewed in a mitigating light, particularly if combined with evidence that Battenfield would have little or no access to drugs or alcohol while in prison, or evidence that Battenfield was amenable to treatment for his substance abuse problems (or even perhaps evidence indicating that Battenfield's reliance on drugs and alcohol dramatically worsened after his 1970 car accident). Battenfield's family members and friends would have testified that Battenfield "was known for his compassion, gentleness, and lack of violence even when provoked." Id. Further, persons familiar with the Oklahoma correctional system could have testified about Battenfield's chances of parole and the limitations that would be placed on his access to alcohol and drugs. . . .

Without discounting the calloused nature of Cantrell's murder, we conclude there is a reasonable probability that this mitigating evidence would have led the jury to reach a different sentencing result. We emphasize that, because of Shook's failure to present any mitigating evidence during the penalty phase, the jury sentenced Battenfield knowing only that he was involved in the murder of Cantrell and previously had been convicted of assault and battery with a dangerous weapon. Had they been given more information about Battenfield's background, personality, and the facts of his prior conviction, we conclude there is a reasonable probability they would have determined the mitigating circumstances outweighed the single aggravating circumstance. See generally Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000) (noting the "overwhelming importance" of mitigation evidence in humanizing a criminal defendant and explaining his conduct). Alternatively, we conclude there is a reasonable probability they would have determined Battenfield did not represent a continuing threat to society. *fn13 For these reasons, we conclude that Shook's deficient conduct "so undermined the proper functioning of the adversarial process that the [penalty phase of] the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

ALLEN v. MASSIE(10th Cir. 01/04/2001 - No. 98-6340)(link requires free registration) Order on motion to recall mandate.

This case is before the court on Wanda Jean Allen's motion to recall the mandate and accompanying request for a stay of execution. This court previously affirmed the district court's denial of Allen's 28 U.S.C. § 2254 habeas petition, which petition challenged her first degree murder conviction and resulting death sentence. See Allen v. Massie, No. 98-6340, 2000 WL 16321 (10th Cir. Jan. 11) (unpublished disposition), cert. denied, 148 L. Ed. 2d 175, 121 S. Ct. 244 (2000). In her motion to recall the mandate, Allen asks this court to reexamine her claims of ineffective assistance of trial counsel in light of the Supreme Court's recent opinion in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). This court construes Allen's motion to recall the mandate as an application to file a successive habeas corpus petition, denies the application on the ground that it does not satisfy the requirements of 28 U.S.C. § 2244(b), and denies Allen's request for a stay of execution.

HabeasCases

GOCHICOA v. JOHNSON(5th Cir 12/29/00 - No. 99-50596) District court erred in granting habeas relief for alleged Sixth Amendment claims based upon a constructive-denial test, rather than the ineffective-assistance of counsel test, and fact that hearsay testimony was harmless error warrants denial of ineffective-assistance claim.

IN RE: LANDLOCKED(10th Cir 12/29/00 - No. 00-1465) Colorado Organized Crime Control Act (COCCA), Colo. Rev. Stat. 18-17-101 to -109, does not prohibit a federal court from staying its proceedings while parallel litigation is occurring in another court.

WADSWORTH v. JOHNSON(5th Cir12/28/00 - No. 00-20296) District Court lacked jurisdiction to hear prisoner's application for habeas relief under 28 USC 2241(d) where neither the place of the initial state court conviction and sentence, nor current place of incarceration, were within the District Court's district.

MAYS v. DRUG ENFORCEMENT ADMINISTRATION(DC Cir 12/26/00 - No. 99-5334) Under Exemption 7(D) of the Freedom of Information Act, 5 USC 552, express and implied grants of confidentiality protect informant reports about plaintiff's conspiracy to traffic in cocaine, but district court must assess whether Exemption 7(C) makes other information non-exempt.

MUNIZ v. US (2nd Cir 01/02/01 - No. 00-3571) Habeas petitioner need not apply for permission to file a second, "successive" petition under 28 USC 2244(b)(3)(A) & 2255 where the first habeas petition was incorrectly dismissed as untimely.

WILLIAMS v. ARTUZ (2nd Cir 01/03/01 - No. 99-2195) A state prisoner's conviction becomes final for purposes of the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996 when the U.S. Supreme Court denies certiorari, or the time for seeking it expired.

LINDSTADT v KEANE (2nd Cir 01/04/01 - No. 99-2002) While closed-circuit televising of child's testimony in sexual abuse and rape case did not violate petitioner's rights under the Confrontation Clause, his trial attorney's cumulative errors were prejudicial and amounted to constitutional ineffectiveness of counsel.

US v. MIKELS (9th Cir 01/05/01 - No. 98-16479) Where no certificate of appealability was issued, and no possibility that it would be since petitioner made no habeas claims based on constitutional error, appellate court lacks jurisdiction to hear the appeal.

BELL v. JARVIS(4th Cir 12/29/00 - No. 98-7002) Trial court's closure of courtroom from during trial testimony of sexual abuse victims does not violate defendant's Sixth Amendment rights.

DOYLE v. JOHNSON(5th Cir 12/27/00 - No. 99-40487) Defendant's state conviction for possession of methamphetamine with intent to deliver, and subsequent tax violation under Section 159.101 of Texas Tax Code, does not violate Double Jeopardy where criminal conviction was the preceding punishment and the tax was the successive punishment.

Section1983 & Related Filings

SKURSTENIS v. JONES(11th Cir 12/28/00 - No. 00-10122) Jail policy which does not require any reasonable suspicion to conduct a strip search violates the Fourth Amendment, but a detainee's possession of a weapon provides the "reasonable suspicion" necessary to authorize one.

Outrages of the Week

US v. SANTOS(8th Cir 12/27/00 - No. 00-1615) While admission of alien defendant's confession violated Article 36 of the Vienna Convention on Consular Relations, it was harmless error in light of the overwhelming evidence of defendant's guilt and his failure to seek notification 5 months prior to trial.

US v. BALTAS (1st Cir 01/02/01 - No. 99-1547) Government agents' failure to minimize electronic surveillance of material beyond the scope of the warrant does not require suppression of all intercepted communications.

US v. UKOMADU (6th Cir 01/05/01 - No. 99-1809) Government agents' reasonable belief that destruction of drugs was imminent justified a warrantless search where agents had reason to know that multiple people were in residence with suspect package that customs and drug officials had modified.

US v. ORTIZ (8th Cir 01/03/01 - No. 00-2297, 00-2330) Apprendi does not require submission of drug quantity to jury where the factual determination on drug quantity did not increase defendant's maximum sentence beyond the statutory range authorized by the jury's verdict under the statute, 21 USC 841(b)(1)(C).

US v. MOORE(1st Cir 12/29/00 - No. 00-1174)Officers who were justified in making investigatory stop of defendant in high crime area may also require a suspect to reveal object he is hiding in his hand, which was obscured from officers' view.

In Depth Features

Robert Jay Lifton and Greg Mitchell, authors of "Who Owns Death? Capital Punishment, the American Conscience and the End of Executions," in a January 3, 2000 editorial boldly proclaim, "The Death Penalty's Days Are Numbered" and are the featured column of week.

Published on Wednesday, January 3, 2001 in the Los Angeles Times

The Death Penalty's Days Are Numbered

by Robert Jay Lifton and Greg Mitchell

The prevailing wisdom--that America is fiercely in favor of executions--is dead wrong. You'd never know it from the views expressed by most political figures and media pundits, but many Americans are uncomfortable with the notion of the state as killer, and this number increases with every death row inmate released when new evidence establishes his innocence. Most Americans now prefer another method to punish the wrongdoer and protect society: life without parole.

After talking with scholars, judges, prosecutors, defense attorneys, prison officials and murder victim families, we have concluded that even as America executes prisoners at an appallingly high rate, the death penalty's days are numbered. The public still embraces the death penalty in theory, but looks at it with an increasingly critical eye. That's one reason California, for example, has had several hundred prisoners on death row for a decade or more but has executed only a few since 1980.

The past year has been a turning point, with the continuing rise in the number of executions forcing the public, the media and religious figures to confront the issue. Perhaps the most significant moment came when Illinois Gov. George Ryan, a conservative Republican, halted executions in that state, the first such moratorium in the country. It is officials like Ryan--tough-minded but troubled about state killing--who will bring an end to executions in this country. Ryan's move met with little public or political opposition, a measure of how much the support for executions has dropped. Related actions have occurred in many states, including New Hampshire, where the House voted to abolish the death penalty, a decision later overturned by the governor's veto.

Although polls are drifting in the anti-death penalty direction, lawmakers and candidates continue to embrace the death penalty, convinced it would be political suicide to act otherwise. But they are increasingly reluctant to carry on their own shoulders the moral and psychological burden of state killing. A recent Gallup poll found support for capital punishment at its lowest level in 19 years, down to 66% today. Support plummets when tough alternative sentencing, such as life without parole, is an option.

Until recently, in most states, there was no such thing as true "life without parole." Even convicted murderers often emerged from prison eventually. The public knew this. In recent years, however, more than two-thirds of the states, including California, have enacted procedures for sentencing some murderers to life without parole with no chance that they will ever get out. Many recent polls have shown that support for the death penalty drops to about 50% when those polled were asked to choose between execution or life without parole for convicted killers.

The growing support for life without parole signals the beginning of the end for capital punishment in our society. The number of those opposed or ambivalent about executions will grow so large that the U.S. Supreme Court, or dozens of state legislatures, will move against executions.

Even if opposition to the death penalty does not reach majority levels, that doesn't mean that executions can't be outlawed in America. Capital punishment had majority support in many Western nations, such as France, England and Canada, at the time they abolished the death penalty, and yet there was no widespread protest.

Some of the trends that led other countries to abolition are occurring in America, including the growing number of legislators who are speaking against the death penalty, and outrage over the possible execution of innocent people, especially as DNA evidence has come into play. Evolving support for life without parole as a preferred alternative to executions could change the way judges, lawmakers and the media respond to this issue on every important level, especially if new cases of innocent prisoners on death row come to light. This will foster the growing realization that, since the justice system can never be 100% right, it must not be allowed to administer a punishment that's 100% irreversible. America would then join most of the modern industrial world, which has abandoned capital punishment as a savage relic of a less enlightened age.

Robert Jay Lifton and Greg Mitchell are authors of "Who Owns Death? Capital Punishment, the American Conscience and the End of Executions," just published by William Morrow.

Errata

From the DeathPenalty Information Center reports:

Oklahoma Prepares to Execute FirstWoman Since 1903WandaJean Allen is scheduled to become the first woman executedin Oklahomasince statehood on January 11, 2001. Oklahoma City NAACP presidentRooseveltMilton and others are urging the state Pardon and Parole Board torecommendthat Governor Keating commute Allen's sentence to life without parole,saying her case illustrates the injustices of the death penalty. Allen'strial attorney, who had no previous experience with capital cases,tried thecase with no co-counsel, no investigator, and no resources tohire expertwitnesses. The trial court denied his offer to act asco-counsel forfree if an experienced public defender was appointed aslead counsel. Mitigating evidence, such as Allen's low IQ and herpsychological state andbrain trauma from previous injuries, were not raisedat trial. If executed,Allen willbe the first African American woman to be put to death in the UnitedStatessince Betty Butler was executed in Ohio in 1954. The last womantobe executed in Oklahoma was Dora Wright in 1903. (The Daily Oklahoman,12/12/00 and National Coalitionto Abolish the Death Penalty Press Release,12/00) Seealso Women and the Death Penalty

New Resource: In the past 100 years, 44 women have been executed in the U.S. See DPIC's new Web page, Women Executed in the U.S. 1900-2000 for the date, state, race, and method of each execution.

New Voices

In her weekly news conference, Attorney General Janet Reno expressed her wishes that the Bush administration continue the Justice Department study of the fairness of the federal death penalty, stating:

"The debate that is now ongoing is probably at the healthiest stage of debate that I have seen in my lifetime. It's important, because for too long there was a knee-jerk reaction that supported the death penalty."

(Associated Press, 12/4/00)

Eight Oklahoma Executions Set for January - First One Stayed

Oklahoma had scheduled eight of the fourteen executions planned for January 2001, including the first execution of a black female since the death penalty was reinstated. The first Oklahoma execution was to take place on January 4, but was stayed by the Lieutenant Governor to allow DNA testing. See also, Upcoming Executions.

Second Exonerated Inmate Released from Louisiana's Death Row

A week after the Louisiana Attorney General'soffice dismissed the charges against him and his co-defendant Michael Graham,Albert Burrell was freed from death row. Burrell, who is mentallyretarded, spent 14 years on death row and once came within 17 days of execution. Graham was released on December 28th (see below). (The Advocate, 1/3/01) For more information, read DPIC's PressRelease. See also, Innocence.

Abolition Bill Proposed by Former Death Penalty Supporter

Kentucky state Rep. Tom Burch (D-Louisville),who in 1974 voted to reinstate the death penalty because he believedit was a deterrent, said he now intends to introduce legislation to abolishcapital punishment in Kentucky. "I was just wrong," said Burch of his 1974vote. "I've seen the death penalty applied unjustly around the country. I've seen it used for political gain by unscrupulous prosecutors. I've seen it used in a discriminatory fashion against minorities." (Cincinnati Enquirer, 12/29/00) See also, NewVoices.

Two More Innocent Men Released From Death Row

After spending 13 years on death row, Michael Grahamwas released from the Louisiana State Penitentiary at Angola onDecember 28, 2000 after theLouisiana Attorney General dismissed chargesagainst him and his co-defendantAlbert Burrell. Burrell isexpected to be released next week. Grahamand Burrell were sentenced todeath in 1987 for the murder of an elderly couple.Earlier this year, ajudge threw out their convictions because of a lack ofphysical evidenceand suspect witness testimony used at trial. ProsecutorDan Gradyacknowledged that the case was weak and "should never havebeen broughtto [the] grand jury." During the trial, prosecutors withheldkey informationfrom the defense, failed to produce any physical evidence,and relied onlyon witness testimony, which has since been discredited. Dismissingthe charges, the Attorney General's office cited a "total lackof credibleevidence" and stated "prosecutors would deem it a breach of ethicsto proceedto trial." Recent DNA tests proved that blood found at the victims'homedid not belong to Burrell or Graham. The trial attorneys appointed todefendBurrell were later disbarred for other reasons. (Associated Press 12/28/00) The release of Burrell and Graham brings the total number of inmates freedthis year to eight. Since 1973, 92 innocentinmates have been releasedfrom death row, with a record 16 inmatesreleased from death row in the pasttwo years. See also, Innocence

New Resources

DPIC's Year End Report on the death penalty in 2000, "A Watershed Year of Change" is now available on our Web site. The report shows how a steady sequence of events -- including six releases from death row, numerous reports on the unfairness of the process, and governmental action to limit or halt the death penalty -- produced a sharp decline in public support for capital punishment over the past year. See also, DPIC's Press Release; email DPIC for a hard copy.

Bryan Stevenson Wins International Palme Award The Olof Palme Memorial Fund for International Understanding and Common Security has awarded this year's Olof Palme Prize to Bryan Stevenson for his outstanding achievement in fighting to abolish the death penalty. Stevenson, who founded the Equal Justice Initiative in Montgomery, Alabama, was called "a courageous representative of all the individuals, women and men from the entire world, who have maintained tirelessly that the right to life cannot be controverted, that the death penalty is an ultimate form of torture, and that the state does not have the right to kill its citizens," by Fund chairman Pierre Schori. Stevenson will receive a diploma and $50,000 in cash at a ceremony to be held in Stockholm on January 30. Previous winners include Czech President Vaclav Havel, Amnesty International, and Chinese dissident Wei Jingsheng. (Associated Press, 10/28/00)

From the mailbox

From this week's inbox:

Help requested

I am a producer working on a documentary on post conviction DNA testing for CBS Television. This documentary will profile the cases of inmates currently in prison who maintain that DNA testing would prove their innocence. The majority of these cases will be of those convicted prior to the availability of DNA testing in 1992. We would be willing to assist the inmate financially to obtain these tests if necessary.

I am most interested in cases where DNA testing has not yet been done but has been approved to be done. This documentary special will present fair, factual, and even-handed stories by showing all sides in each case. If you know anyone who would be interested in having their case profiled

Chris Werber [cwerber@asphollywood.com/Arnold Shapiro Productions/Los Angeles/323/769-5500]

Problems with mail:

I have not been receiving the Capital Defense Weekly for some time now. Please put me back on your subscription list. I have really com to depend on it. You provide us with an invaluable resource. Thanks.

[To resubscribe to the Weekly please send an email to subscribe@capitaldefenseweekly.com]

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

Post message:capitaldefense@onelist.com

Subscribe:capitaldefense-subscribe@onelist.com

Unsubscribe:capitaldefense-unsubscribe@onelist.com

List owner:capitaldefense-owner@onelist.com

DISCLAIMER & CREDITS--Anti-copyrite 1997-2000. ISSN: 1523-6684. Written with the legal professionalinmind. Use does not constitute creationof an attorney-client relationship. If you have a legal questioncontact a lawyer authorized to practice inyourstate. This weekly has been prepared for educational and informationpurposesonly. Since the content contains general information only, it maynot reflect current legaldevelopments, verdicts or settlements. The contentdoes not providelegaladvice or legal opinions on any specific matters. The law changes quickly,and information provided may be outdate by the time it is read. Complete disclaimer located athttp://capitaldefenseweekly.com/disclaimer.html.This letter may be freely redistributed with attribution. Please note thatthe current set up of the weekly is a one way list. Subscription information, including all names and addresses are private and unavailableto third parties. Please note all rights to terminate a subscription are retained by the editorial staff.