This edition (covering June 30 through July 11, 2003) highlights a single case as hot for the national reader. In

Nixon v. Florida, the Florida Supreme Court re-examines the age old defense dilemma of how much can counsel concede in closing. In a warning to trial counsel everywhere, the Nixon Court reminds that counsel can not concede of guilt in closing without the defendant's permission & to do such amounts to per se ineffective assistance of counsel under United States v. Cronic.

Of special note for Texas litigators is Valle v. Texas. The Valle Court denies relief on a wide variety of currently "hot" Texas issues & in the process reminds even the casual observer of Texas practice why the law in the Lone Star state is so lethal. I should hasten to note that the issues in Valle appeare sufficiently ripe that further action (either in this case or a later case raising these issues) should be watched for possible cert. by the United States Supreme Court. Also of special note for Texas practitioners is Janet and Robert Morrow, In a Narrow Grave: Texas Punishment Law in Capital Murder Cases, 43 S. Tex. L.R. 979 (2002) which covers much of the same ground, as well as what Texas death penalty litigators need to know & what needs to be done to preserve a client's claims. Finally, where Texas is concerned, the Fifth Circuit in Vickers v. Cockrell shows its intransigence to the Supreme Court's decision relating to Certificates of Appealability ("COA") in Miller-El by again conflating merits review and the requirements for granting a COA.

The Oklahoma Court of Criminal Appeals has adopted new standard instructions for criminal case, In re Adoption of the 2003 Revisions. Of special note is the modification of the penalty phase "Allen charge" which appears to emphasize that if the jury deadlocks death is off the table.

This week's Focus section covers of Alex Kotlowitz's New York Times Magazine piece "In the Face of Death" from July 6, 2003. As one investigator told me following reading the article "it explained to me why the mitigation investigation is so important" by examining jurors reactions in an Indiana death penalty case (Jeremy Gross) where guilt was not at issue. While other juror studies and articles are available, Kotlowitz's article brings it home in black and white, as well as provides some solid suggestions for how to save a client's life.

Just a quick reminder, if you don't have Lexis, by typing in any of the "Lexis" case identification numbers below at www.lexisone.com the "Lexis" version of the case (without their proprietary headnotes found only on their regular service) can be retrieved for free.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

HOT LIST

Nixon v. Florida, 2003 Fla. LEXIS 1158 (FL 7/10/2003) (dissent) Counsel's concession of guilt in closing without the defendant's permission amounted to per se ineffective assistance of counsel under United States v. Cronic.

The dispositive issue is whether Nixon is entitled to a new trial under this Court's decision in Nixon II. In reaching the merits of this issue, this Court must decide whether there is competent, substantial evidence to support the trial court's conclusion that Nixon consented to trial counsel's strategy of conceding guilt. n7 In Nixon II, this Court directed the trial court to conduct an evidentiary hearing to determine whether evidence existed which indicated an "affirmative, explicit acceptance by Nixon of counsel's strategy. Silent acquiescence is not enough." 758 So. 2d at 624. Nixon never testified at the evidentiary hearing on this issue. On direct examination, trial counsel repeatedly testified that Nixon did nothing when asked his opinion regarding this trial strategy.

Q: [Nixon's Postconviction Counsel] Did you discuss the strategy of not contesting guilt with the defendant?

A: [Corin] I thought I answered it. But if I didn't answer it, then yes, he was advised as to that, yes.

Q: And how did he respond?

A: To the best of my knowledge, again he did nothing, except after it occurred that he was not real pleased. And I think I answered that before also.

Q: Now what do you mean by he did nothing?

A: He did nothing. I don't know. I don't know what else I can say, Mr. Evans. I have said it before.

Corin further testified that Nixon provided neither verbal nor nonverbal indication that he did or did not wish to pursue counsel's strategy of conceding guilt. n8 Thus, at most, this testimony demonstrates silent acquiescence by Nixon to counsel's strategy.

The trial court indicated that it would consider the totality of the circumstances in making a determination of whether Nixon affirmatively and explicitly agreed to counsel's strategy of conceding guilt to the charged crime. The court in its written order noted that one of the factors that needed to be examined was the general pattern of Corin's interactions and communications with Nixon. After reviewing the trial record, Nixon I and Nixon II, the transcript of the evidentiary hearing conducted on December 19, 1988, and Corin's testimony at the May 11, 2001, evidentiary hearing, the trial court found that Nixon's pattern of interactions with counsel involved information being provided by Corin, followed by silence from Nixon. In essence, the trial court found that Nixon's failure to approve or disapprove verbally was approval of counsel's strategy.

In Nixon II, we found that counsel's comments at trial were the functional equivalent of a guilty plea. Since counsel's comments operated as a guilty plea, in order to affirm the trial court's ruling, the record must contain substantial evidence which would enable this Court to determine that Nixon did more than silently submit [*11] to counsel's strategy. There is no evidence that shows that Nixon affirmatively, explicitly agreed with counsel's strategy. The only evidence presented at the evidentiary hearing was Corin's testimony, which indicated that Nixon neither agreed nor disagreed with counsel's trial strategy. Thus, there is no competent, substantial evidence which establishes that Nixon affirmatively and explicitly agreed to counsel's strategy. Without a client's affirmative and explicit consent to a strategy of admitting guilt to the crime charged or a lesser included offense, counsel's duty is to "hold the State to its burden of proof by clearly articulating to the jury or fact-finder that the State must establish each element of the crime charged and that a conviction can only be based upon proof beyond a reasonable doubt." Nixon II, 758 So. 2d at 625 (emphasis added). Since we held in Nixon II that silent acquiescence to counsel's strategy is not sufficient, we find that Nixon must be given a new trial.

SUPREME COURT

The Court is in recess until September.

CAPITAL CASES (Favorable Disposition)

Arizona v Jones, 2003 Ariz. LEXIS 104 (Az 7/7/2003) Death sentence vacated in light of Ring as error was not harmless beyond a reasonable doubt.

Arizona v. Canez, 2003 Ariz. LEXIS 96 (AZ 6/30/2003) Death sentence vacated in light of Ring as error was not harmless beyond a reasonable doubt.

In re Adoption of the 2003 Revisions, 2003 Okla. Crim. App. LEXIS 14;2003 OK CR 13 (Okla. Crim. App. 7/3/2003) Standard instructions changed in Oklahoma relating, in pertinent part, to capital voir dire, mental retardation & a special deadlock charge emphasizing that if the jury deadlocks death is off the table.

CAPITAL CASES (Unfavorable Disposition)

Valle v. Texas, 2003 Tex. Crim. App. LEXIS 143 (Tex. Crim. App. 7/2/2003) Relief denied on claims including failure to give meaningful appellate review to the special questions findings; sufficiency of mitigation evidence; the penalty phase anti-parties instruction; and exclusion of the certain mitigation evidence in violation of Chambers v. Mississippi.

Avila v. Texas, 2003 Tex. Crim. App. LEXIS 142 (Tex. Crim. App. 7/2/2003) Relief denied on issues relating to admission of a certain written statement; admission of certain photographs; qualifying a child as a competent witness; effective assistance of counsel; and sufficiency of future dangerousness;

Matthews v. Texas, 2003 Tex. Crim. App. LEXIS 146 (Tex. Crim. App. 7/2/2003) (unpublished) Relief denied on claims relating to the sufficiency of the evidence that "at the time he murdered the victim, Matthews was sexually assaulting or attempting to sexually assault her."

Vickers v. Cockrell, 2003 U.S. App. LEXIS 13919 (5th Cir 7/8/2003) (unpublished) Relief & COA denied on "(1) the evidence was insufficient to establish that he shot Kinslow or that the shooter acted with the intent to cause death; (2) the lack of evidence of intent rendered the death sentence unconstitutional; (3) the jury instructions on conspiracy allowed Vickers to be sentenced to death under a lower standard than that required by the Supreme Court; (4) the jury instructions on conspiracy denied Vickers the right to know the nature of the charge against him; and (5) appellate counsel rendered ineffective assistance by not raising these issues on direct appeal."

Nebraska v. Lotter, 2003 Neb. LEXIS 111;266 Neb. 245 (Neb 7/11/2003) Ring is not retroactive to cases that are final for purposes of direct appeal.

Ohio v. Vrabel, 2003 Ohio LEXIS 1685;99 Ohio St. 3d 184; 2003 Ohio 3193 (Ohio 7/2/2003) (dissent) Relief denied on issues of competency; defendant's waiver of mitigation; right of self-representation; ineffective assistance of counsel; peremptories; gruesome photos; constitutionality of state DP scheme; and proportionality. Dissent on issue of weighing of aggravators vs. mitigators.

Pennsylvania v. Tharp, 2003 Pa. LEXIS 1159 (PA 7/2/2003) Relief denied on sufficiency and weight of evidence of first degree murder; change of venue based on pre-trial publicity; admission of certain photos (victim impact & autopsy); failing to grant a mistrial after jurors overheard comments by a defense witness during a break; and failing of the trial to sua sponte recuse himself.

Lewis v. Alabama, 2003 Ala. Crim. App. LEXIS 135 (Ala. Crim. App 5/30/2003) (dissent) Relief denied as to capital charges, most notably, on the failure to charge on the trial court's failure to instruct the jury on the offense of abuse of a corpse as a lesser-included offense of capital murder during a rape.

McGahee v. Alabama, 2003 Ala. Crim. App. LEXIS 133 (Ala. Crim. App. 5/30/2003) Relief denied on claims of juror misconduct; Brady violations; sufficiency; limitations on post-conviction proceedings; as well as, ineffectiveness relating to (1) funding of counsel, (2) failure to present an intoxication defense, (3) failure to request an intoxication instruction as to intent, (4) for pursuing a defense that he says was legally unsupported, (5) failed to object to numerous instances of prosecutorial misconduct, (6) failed to object to jury instructions, (7) failure to adequately present evidence for a change of venue, (8) jury selection, (8) delivery of openings/closings, (9) failure to object to certain evidence, and (10) penalty phase performance.

Martin v. Alabama, 2003 Ala. Crim. App. LEXIS 136 (Ala. Crim. App 5/30/2003) Relief denied on claims including: admission of hearsay; denial of continuance; suppression of key evidence; chain of custody of certain evidence; qualification of a certain expert witness; trial court bias; permitting the jury to separate in between guilt and penalty phase; limitations on appellate review; constitutionality of Alabama's death penalty scheme; and preparation of the sentencing order by the trial court before the start of penalty phase deliberations.

Periata v. Alabama, 2003 Ala. Crim. App. LEXIS 137(Ala. Crim. App 5/30/2003) (dissent) Relief denied most notably on the failure in the guilt phase to permit a defense expert witness as to prison psychology as it relates to self-defense.

Lee v. Alabama, 2003 Ala. Crim. App. LEXIS 166 (Ala. Crim. App. 6/27/2003) Relief denied most notably on prosecutorial misconduct in the penalty phase (relief denied as there was an override to death); misstatements of fact and law made by the judge during jury selection; and reliance by the trial court in making its override decision based in part on a "a highly prejudicial presentence investigation report."

Wright v. Florida, 2003 Fla. LEXIS 1144 (FL 7/3/2003) (dissent) Relief denied on claims that (1) the State failed to disclose pertinent facts necessary for appellate review; (2) appellate counsel failed to raise numerous meritorious issues on direct appeal; (3) the presiding judge unconstitutionally made factual findings in support of Wright's death sentence in violation of Apprendi; and (4) the appropriateness of the state supreme court's harmless error analysis after striking an aggravating circumstance on direct appeal.

Blackwelder v. Florida, 2003 Fla. LEXIS 1145 (FL 7/3/2003) (dissent) Relief denied on issues relating to strikes of certain jurors; the trial court's sentencing order being a near verbatim use of the government's sentencing memorandum; use of certain nonviolent felonies as aggravators; sufficiency; Ring; and proportionality.

Nelson v. Florida, 2003 Fla. LEXIS 1170 (FL 7/10/2003) (dissent) Relief denied on (1) suppression of certain statements; (2) the use of the avoid arrest aggravator; (3) use of the cold, calculated, and premeditated aggravator (CCP) aggravator; (3) improper doubling of aggravators; (4) failure to give weight to age as a mitigator; (5) failure to give weight to the extreme disturbance mitigator; (6) failure to use other statutory mitigators; (7) discounting of several non-statutory mitigators; & (8) proportionality.

Caballero v. Florida, 2003 Fla. LEXIS 1157 (FL 7/10/2003) (dissent) Relief denied on claims relating to (1) comments on silence; (2) consideration of the CCP aggravator; (3) failure to count age as a mitigator; (4) purported co-perpertrator's "confession"; (5) relative culpability; & (6) proportionality.

Allen v. Florida, 2003 Fla. LEXIS 1156 (FL 7/10/2003) Relief denied chiefly: (1) failure to turn over hairs found on the victim; & (2) counsel's closing argument that the decedent may have committed suicide.

Belcher v. Florida, 2003 Fla. LEXIS 1161 (FL 7/10/2003) (dissent) Relief denied on claims including: (1) inflammatory prosecutorial closing; (2) the use of the HAC aggravator; (3) denial of a special jury instruction that listed the non-statutory mitigators & in its stead a general non-statutory mitigator instruction; (4) Ring/Apprendi; & (5) proportionality.

Owen v. Crosby, 2003 Fla. LEXIS 1174 (FL 7/11/2003) Relief denied on claims relating ineffective assistance of appellate counsel.

Freeman v. Florida, 2003 Fla. LEXIS 1175 (FL 7/11/2003) Relief denied on: (1) trial counsel's failure to challenge purported racial animus in pursuit of the death penalty; & (2) failure to investigate & present a rational penalty phase defense.

Fennie v. Florida, 2003 Fla. LEXIS 1176 (FL 7/11/2003) (dissent) Relief denied on claims (1) that guilt phase trial counsel was functionally and constructively absent during voir dire in Fennie's case because he failed to effectively question jurors on the issues of race and racial tensions in the community in which the trial was held; (2) trial counsel's performance in the penalty phase; (3) insufficiency of the trial court's sentencing order; & (4) inflammatory comments by the prosecution

NOTABLE NONCAPITAL CASES (from Findlaw.com & other sources)

Ward v. Sternes, 2003 U.S. App. LEXIS 13688 (7th Cir 7/8/2003) Habeas granted where defendant equivocated on his right to testify in his own behalf.

[I]n determining that Ward's statement "I guess, I don't know" constituted a personal waiver that Ward made knowingly and intelligently, the Illinois appellate court committed unreasonable error. In reaching its conclusion, the Illinois appellate court recognized that "the record makes it clear that [Ward] had little understanding of the strategic implications of his decision." .. . .

The uncontroverted trial testimony was that Ward's brain injuries severely disrupted his ability to think, reason, take in verbal information, and understand and use language to express his understanding. As the district court noted, "his individual answers to questions posed to him by physicians, his attorney, or the court may have the semblance of coherence and validity, in the sense that they are possible answers to the questions asked. But taken together, they make no sense." Sternes, 209 F. Supp. 2d at 960. Although Ward was deemed competent to stand[[trial,]] n3 his fitness report cautioned that to overcome this severe language-processing deficit, one must expend an inordinate amount of patience with Ward.

Simply put, the trial court did not exercise that level of extraordinary patience in extracting Ward's purported waiver. Under these circumstances, an in-chambers conference on the subject of Ward's understanding of his rights was not an exceptional measure to be credited to the court's patience, but was a required procedure. In other words, there was an indication that Ward was prevented by his own mental deficiencies from exercising his fundamental right to testify, which then necessitated further inquiry from the court. See United States v. Manjarrez, 258 F.3d 618, 623-24 (7th Cir. 2001). And more than an equivocal, "I guess, I don't know," in response to the trial court's question of whether Ward was "in agreement" with his counsel's "best advice and professional judgment that he not be called to testify [himself]" was required to ensure an accused with severe brain damage was knowingly and intelligently waiving a fundamental right. In the abstract, the words themselves are inconclusive, equally capable of classification as words of assent or of reluctance. Yet, absent any evidence that the speaker had mental handicaps and a severe language-processing deficiency, [*27] we would accept a trial court's interpretation given that court's superior position to observe the speaker and infuse meaning into the statement. Here, however, where it was known that the defendant's ability to express himself through language was severely compromised, it was unreasonable to assign the statement meaning without the benefit of further inquiry. By quickly deciding "that's the best we'll ever do," the trial court concluded its inquiry prematurely and accepted what was an at-best ambiguous statement for a conclusive waiver.

New Jersey v. Patton, 2003 N.J. Super. LEXIS 243 (NJ App Div 5/7/2003) "[U]se of police-fabricated evidence to induce a confession that is then used at trial to support the voluntariness of a confession is per se a violation of due process."

FOCUS

This week's Focus section covers one of the singularly most important articles on the death penalty in the popular press in recent years. Alex Kotlowitz New York Times Magazine piece "In the Face of Death" from the July 6, 2003 edition covers some jurors interviewed in relation to an Indiana death penalty case (Jeremy Gross) where the guilt was never in doubt. The defense in Gross put on a text book example of what to do in mitigation. I can not recommend this article enough. While other juror studies and articles are available on line, see, e.g., http://www.law-forensic.com/dp_law_review_center.htm#juries, the power of Kotlowitz's article on what counsel must do and why mitigation is important carries the real life, real story weight that no law review article I have read does. The following is the introduction portion of that article:

At 2:40 a.m. on Aug. 26, 1998, along a main drag on the west side of Indianapolis, 18-year-old Jeremy Gross approached a convenience store with a friend. They intended to rob it. At 5-foot-8 and of slender build, Gross was not particularly physically imposing, and he had a distant look about him. He wore his blond hair in a bowl cut and often seemed nervous and fidgety. He knew the store well, since he worked there part time, and he also knew the young man, Christopher Beers, who was the lone clerk that morning. Beers, who was 24, had been raised by his father and had completed one year at Purdue University before running out of money for tuition. He was overweight and, according to his uncle, mild-mannered. He was working to earn money to return to school. An avid reader, he welcomed the graveyard shift; it gave him time with his books.

Gross stood outside the glass doors, behind his accomplice, Joshua Spears. He held a small, black semiautomatic pistol at his side, out of sight. Gross was jumpy, turning his head from side to side to make sure no one was in the parking lot. Beers buzzed them in. Gross took long, hurried strides into the store, raised his right arm and started shooting. It happened so quickly that Beers didn't have a chance to say anything. The first shot hit him in the abdomen. Gross continued to fire. Three shots missed, but a fourth hit Beers in the chest. ''Oh, God, please, no,'' he pleaded. As Beers stumbled into the back office, Gross followed and, to get a better angle, shifted the pistol from his right hand to his left. From close range, Gross shot Beers in the face. With blood now gushing from his eyes, Beers reached out for Gross, as if he were asking for support. Gross pushed him away, and he crumpled to the floor. ''Why, Jeremy, why?'' Beers asked. Gross told him to shut up.

Gross's partner, Spears, had headed for another room to get the surveillance tape, but he couldn't get the eject to function, so he grabbed the VCR. Meanwhile, Gross emptied the cash register and office safe of $650, then ripped the two telephone cords from the wall. This all happened in less than a minute. The two fled by foot, through a neighborhood of mobile homes to their trailer park not more than half a mile away. Along the way, Gross and Spears threw the gun and the VCR over a wire fence into a retaining pond.

After they left, Beers lifted himself off the floor and shuffled out the door to a pay phone, where he again collapsed. He died under a dangling phone, rivulets of blood running from his head.

A passer-by who was a regular customer at the Convenient Food Mart had seen Gross and Spears enter the store. He gave the police a description, and another employee said that the description sounded like that of Gross. Less than seven hours later, Gross confessed to detectives, steering them to the VCR and gun. They found the VCR lying in shallow water, protruding from the mud; divers recovered the gun.

F.B.I. experts salvaged the videotape of the murder, and a few weeks later, after viewing the terror of that night, Scott Newman, then the Marion County prosecutor, told a reporter for The Indianapolis Star, ''There isn't a jury in this world . . . that would not recommend the ultimate penalty in this case, the death penalty.''

On the 24-page jury questionnaire, Elizabeth Stone, who is 60 and works as a nurse, wrote that she ''strongly favored'' the death penalty. ''I looked at it as an eye for an eye,'' she told me when I recently spoke with her. ''Someone who takes someone's life deserves death.'' Another juror, 54-year-old Cheryl Berkowitz (then Cheryl Rader), who works at a drug-treatment center, said during the voir dire that she thought the death penalty was not used often enough. These two, along with nine other women and a man, were chosen to serve on the jury that would decide the case of the State of Indiana v. Jeremy Gross.

Like most juries, this one was composed of a diverse group. There was a manager of a McDonald's, a cook at a child-care center and a machine operator at a foundry. On the questionnaires where it asked, ''Whom do you most admire?'' one wrote ''Ronald Reagan,'' another ''John F. Kennedy,'' another ''Princess Diana'' and still another ''Montel Williams.'' But they all shared one thing in common. Each of them told the court that yes, they could vote to end someone's life. This is a requirement to sit on a capital murder case, and it is, in some measure, what attracted me to Jeremy Gross's case. That, and the fact that in what most likely is the only opportunity they would ever get, these 12 jurors, all of whom swore their allegiance to the death penalty, in the end, balked.

The trial took place in the spring of 2000, two years after the shooting, though I learned about it only recently as I began making inquiries around the country in an effort to understand what would sway 12 jurors who believe in capital punishment to spare a life. Whether someone lives or dies is the ultimate of Solomonic decisions, and 33 of 38 death-penalty states entrust it to a jury rather than to a judge. What happens when 12 people who support the death penalty face it up close?

Over the past few years, detective work and advances in DNA technology have uncovered a frighteningly high number of wrongfully convicted, especially on death row. But there may be another, albeit quieter, revolution taking place, out of view, in jury rooms. The number of death sentences handed down has dropped precipitously, from a modern-day peak of 319 in 1996 to 229 in 2000, and then to 155 in 2001. And a study released just last month reported that in 15 of the last 16 federal capital trials, jurors chose life sentences over death.

There are a number of factors at work here. In early 2000, Gov. George Ryan of Illinois, staggered by the number of wrongful convictions in his state, declared a moratorium on executions. It received a good deal of national press and undoubtedly made some prosecutors and jurors more cautious. (Last January, Ryan went beyond a moratorium; he pardoned four inmates and commuted the sentences of the other 167 on Illinois's death row.) Additionally, the murder rate has been in a steady decline, though that has been going on for some time.

There are two factors, however, that more than anything else may help explain the decline in death-penalty sentences. One is the increasing availability of life without parole as an option, which all but three death-penalty states now offer. In polls, three-fourths of Americans say they believe in the death penalty. But when asked whether they'd support capital punishment if life without parole was an option, the number is reduced to half.

The other contributor, perhaps tougher to measure, is a development over the last decade: an increasing number of defense attorneys have become more skilled and resourceful in persuading jurors that the lives of their clients are worth saving.

The proceedings in a capital trial are unlike any other. They are divided into two distinct phases. In the first phase, a jury, as in any other criminal case, decides guilt or innocence. Then, if they've reached a guilty verdict, the trial enters what's called the penalty phase, in which the same jurors hear what is called mitigating evidence -- testimony about the defendant's character, about his childhood, about his past deeds, good and bad. It is, in essence, a plea for mercy, an unapologetic and sometimes mawkish effort to win sympathy for someone who has killed another human being. Because of what's at stake, the Supreme Court has ruled that capital cases must be highly individualized affairs, so it has opened the door to just about anything that will help jurors get to know and understand the defendant.

The notion that a jury in a capital case has to determine not only legal culpability but also moral blameworthiness has always struck me as a remarkable measure of our unresolved attitudes toward capital punishment. ''It's a tremendous moral moment,'' Austin Sarat, a professor of law and political science at Amherst College, says of the penalty phase. ''It's where the rubber meets the road.''

I settled on the State of Indiana v. Jeremy Gross because I'd been looking for a case in which guilt was not in doubt and in which substantial mitigation was presented. I also sought out a case that occurred a few years ago in the hope that the lapse of time might make the jurors more likely to speak about their personal journeys through the trial. In the end, I tracked down nine of the jurors; only one of them declined to speak with me.

These jurors -- each of whom, remember, believed in capital punishment -- looked death in the face and walked away. Newman, the prosecutor at the time of the trial, has suggested that jurors in instances like this get ''weak in the knees.'' Is it that simple?

OTHER RESOURCES

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

New York Time Magazine Examines Why Death Penalty Jurors Are Sparing Lives

A recent article by Alex Kotlowitz in the New York Times Magazine examined why jurors who affirmed their willingness to impose a death sentence are increasingly voting for life in capital cases. The article noted:

Over the past few years, detective work and advances in DNA technology have uncovered a frighteningly high number of wrongfully convicted, especially on death row. But there may be another, albeit quieter, revolution taking place, out of view, in jury rooms. The number of death sentences handed down has dropped precipitously, from a modern-day peak of 319 in 1996 to 229 in 2000, and then to 155 in 2001. And a study released just last month reported that in 15 of the last 16 federal capital trials, jurors chose life sentences over death.

There are a number of factors at work here. In early 2000, Gov. George Ryan of Illinois, staggered by the number of wrongful convictions in his state, declared a moratorium on executions. It received a good deal of national press and undoubtedly made some prosecutors and jurors more cautious. (Last January, Ryan went beyond a moratorium; he pardoned four inmates and commuted the sentences of the other 167 on Illinois's death row.) Additionally, the murder rate has been in a steady decline, though that has been going on for some time.

There are two factors, however, that more than anything else may help explain the decline in death-penalty sentences. One is the increasing availability of life without parole as an option, which all but three death-penalty states now offer. In polls, three-fourths of Americans say they believe in the death penalty. But when asked whether they'd support capital punishment if life without parole was an option, the number is reduced to half.

The other contributor, perhaps tougher to measure, is a development over the last decade: an increasing number of defense attorneys have become more skilled and resourceful in persuading jurors that the lives of their clients are worth saving.

(New York Times Magazine, July 6, 2003). See Innocence and Life Without Parole.

NEW VOICES: Australian Judge and Parent of Bombing Victim Rejects Death Penalty

Brian Deegan, a magistrate in South Australia who lost his son in the October 2002 Sari nightclub bombing in Bali, recently stated that he believes the terrorists who commited that crime should not receive the death penalty, but should be sentenced to a term of life in prison without parole. In an opinion piece in The Australian, Deegan noted:

The Bali bombers who murdered my son last October are evil extremists, but they don't deserve the death penalty.

. . .

Indeed, I have no problem with the idea that he [Amrozi] and his accomplices should remain in prison for the rest of their lives. But the prospect of their judicial murder is something I want no part of.

. . .

As a measure employed to dissuade potential criminals, the death penalty has been an abject failure. This is borne out by statistics that point to the commensurate rise of murders and executions in countries where capital punishment is awarded.

The argument in favour of executions remains difficult to reconcile with the universal revulsion generated by periods in history when society thought nothing of hanging a child or burning a witch. We read with disgust ? or perhaps with guilt ? of the stoning of adulterers, the removal of a thief's hand or the decapitation of a blasphemer. Yet we find it palatable to break a man's neck, to poison his veins or to electrocute him.

The suggestion that Amrozi and his fellow evildoers should face an Indonesian firing squad is unconscionable because that would make the punishment as barbaric as the crime. What the Bali bombers did to my child and to the hundreds of others defies description. But the October 12, 2002, terrorist attacks do not give anyone the right to repeat such a vile act.

(The Australian, July 9, 2003). See New Voices.

Texas Lawmakers Receive Failing Grade from Criminal Justice Reform Leaders

As the Texas legislative session came to a close, criminal justice reform advocates gave lawmakers a failing grade for their work in addressing problems in the state's legal system. Senator Rodney Ellis of Houston joined an array of legal experts to criticize the state legislators' inability to pass measures to end the execution of juvenile offenders, to strengthen the consular notification process for foreign nationals, and to require the Texas Board of Pardons and Paroles to hold a hearing when addressing clemency matters in a capital case. The advocates also chastised failed attempts to pass bills to allow the governor to issue multiple 30-day execution reprieves, to create an innocence commission to review and investigate the Texas death penalty and wrongful convictions, to offer the sentencing alternative of life without the possibility of parole, and to require a trial judge to determine if a defendant is mentally retarded before the trial of a capital case. Ellis noted that the only successful measure passed by the legislature was a bill mandating the temporary release of 12 Tulia residents who had been convicted during a controversial drug sting in 1999. The only evidence used to convict them was the later-discredited testimony of an undercover narcotics officer. While vowing to continue his fight for meaningful criminal justice reform, Ellis said, "There are problems in Texas. How many other Tulias are out there that we don't know about?" (Associated Press, June 18, 2003, and Houston Chronicle, June 18, 2003). See Recent Legislative Activity.

NEW VOICES: Former Missouri Supreme Court Judge Decries Death Penalty

Charles B. Blackmar, senior judge of Missouri's Supreme Court from 1982-1992, recently called for consideration of abolishing the death penalty. In a letter to the editor that appeared in the Kansas City Star, Blackmar stated:

Most nations that share our political and cultural traditions have done away with the death penalty. The nations that still have capital punishment include China, North Korea, Iran, Saudi Arabia, Syria and, before the American invasion, Iraq. I am not aware of any nation of our tradition that did away with capital punishment that has a worse crime problem than we have.

Death-sentence cases seem interminable, with continuing appeals in state and federal courts. Yet there is a feeling that every defendant has the right to plead for his or her life as long as any court is available to review the case.

Nothing would be lost if death penalty statutes were repealed.

(Kansas City Star, July 1, 2003). See New Voices.

$ Kansas Lawmakers to Study Death Penalty Costs

The Legislative Coordinating Council of Kansas, a group of legislative leaders who represent the Kansas legislature when it's not in session, recently authorized committees to study three aspects of the state's capital punishment law this summer. Among the topics under review are the cost of imposing the death penalty, the state's funding of the Board of Indigents' Defense Services and its Death Penalty Unit, and the effectiveness of laws to ensure that mentally ill defendants are not executed. The cost study won't begin until the legislative auditors complete a review of the costs of prosecuting death penalty cases, which is excepted to begin this month. The study results for all three reviews will be given to legislators during their 2004 session. (Kansas City Star, June 27, 2003). See Costs.

ACLU Report Calls for Halt to Executions

The ACLU Capital Punishment Project recently released "Three Decades Later: Why We Need A Temporary Halt on Executions," a report that comes just over 30 years after the Supreme Court's Furman v. Georgiadecision that placed a temporary halt on executions because the death penalty was being applied in an arbitrary, discriminatory, and capricious manner. While the Supreme Court upheld state capital punishment statutes written after Furman in its 1976 Gregg v. Georgia decision, the report notes that questions of fairness remain. In its report, the ACLU calls for a temporary halt to executions to give states the chance to review these concerns, including issues such as wrongful convictions, inadequate representation, geographic disparity, and racial and socioeconomic bias. Read the report. See Resources and Supreme Court.

American Bar Association Endorses North Carolina Death Penalty Moratorium

The American Bar Association (ABA) has voiced support for legislation to impose a two-year moratorium on executions in North Carolina while the state studies its death penalty. In its announcement, the ABA noted a "growing consensus within the legal community that North Carolina urgently needs a moratorium on executions until it evaluates issues of fairness, due process and possible racial bias in its death penalty system." The bill, which was recently passed by the North Carolina Senate, is currently under consideration by members of the state's House of Representatives. The ABA has also called for a national moratorium on executions until the death penalty is studied and procedural flaws are fixed. (News Observer, July 1, 2003). See Recent Legislative Activity.

Law Enforcement Views: Houston Police Chief Voices Concern About Prosecutors

Houston Police Chief C.O. Bradford said that criminal defendants in Texas are at the mercy of prosecutors in an unfair system that emphasizes winning rather than justice. Bradford said that he believes there is sufficient probable cause to convene a court of inquiry to investigate the entire Police Department crime lab, not just the DNA portion (see below). Bradford also voiced support for changes that would help to balance the Texas justice system, which he believes currently works in favor of prosecutors. He described the attitude in the district attorney's office as, "What can I do to win? Win, win, win." Bradford supports measures such as an open discovery process in criminal trails and standardizing the appointment of forensics experts to assist court-appointed attorneys in cases with DNA evidence." (Houston Chronicle, June 24, 2003). See Innocence.

Death Penalty Costs Cause Concern in Kansas

As Kansas lawmakers struggle to make ends meet, some are calling for an examination of the costs associated with capital punishment. Senators Steve Morris and Anthony Hensley have opposing views on the death penalty, but the men recently joined forces to propose an audit of the state's death penalty. Among other items, the audit will review $9 million in expenses filed by the Board of Indigents' Defense Services between 1995-2002. The funding was used to defend those facing capital charges. While Hensley opposes capital punishment and Morris voted to reinstate the death penalty in 1994, both believe that now is the time to examine the costs and effectiveness of capital punishment and to consider other less expensive options. Morris, a Republican, noted, "Overall, we just need to evaluate the whole death penalty issue. If it's going to take millions and millions of dollars per inmate and years before we can execute someone, that's a major policy issue we need to look at." (Hutchinson News, June 29, 2003). See Costs.

NEW VOICES: Leading Forensic Scientist Calls For Halt to Executions Because of Faulty DNA Testing

An editorial by Dr. Cyril H. Wecht, past president of the American Academy of Forensic Sciences, notes that crime labs are overwhelmingly backlogged with work and that deficiencies of personnel, space and equipment in forensic science labs often lead to shoddy practices and erroneous test results, as recently exemplified by the problems uncovered at the Houston Police Department DNA lab (see below). Dr. Wecht notes:

There can be little doubt in the minds of trained, experienced forensic scientists that testing defects, backlog pressures, inadequately qualified personnel, and prosecutorial bias exist in many other DNA labs even though they have not yet been uncovered and publicly reported.

. . .

Until these glaring deficiencies are identified, objectively reviewed, and carefully corrected, society cannot expect that justice will be served.

. . .

State lawmakers should carefully scrutinize DNA labs that use inferior testing methods that lead to inaccurate results. An immediate freeze on executions is essential until scrupulous federal and state reviews of all DNA labs have been accomplished. This is the only just way to proceed. Close attention to this critical problem will not only lower the risk of executing innocent people, it will also facilitate the capture and conviction of the guilty. (Emphasis added).

(Knight Ridder Tribune - Tallahassee Democrat, June 15, 2003) See New Voices

DNA Evidence Frees Three in New York

For nearly two decades, Dennis Halstead, John Kogut, and John Restivo maintained their innocence in the 1985 murder of 16-year-old Theresa Fusco. Although DNA testing in the 1990's cast doubt on their guilt, the men remained in jail in New York because a judge deemed the tests not reliable enough to overturn the convictions. Now the men have been freed from prison after prosecutors joined defense attorneys in asking a second judge to vacate the convictions based on more sophisticated DNA evidence showing that semen found on the victim's body was from another man. The new tests were conducted on behalf of The Innocence Project at the Cardozo School of Law in New York City, which uses DNA technology to help free the wrongly convicted, and Centurion Ministries of New Jersey. Following the release of Halstead, Kogut, and Restivo, district attorney Denis Dillon noted that the men didn't get a fair trial, but he said that the state is still considering whether it will retry the men for the murder. (New York Times, June 12, 2003). See Innocence.

NEW RESOURCE: Effective Assistance of Postconviction Counsel

An article in the Wisconsin Law Review, "The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel" by Celestine Richards McConville, examines the need for experienced and effective counsel during state and federal capital postconviction proceedings. The author notes that, "Despite the important role of postconviction counsel, the United States Supreme Court has held that criminal defendants seeking state postconviction relief possess no constitutional right to counsel. . . .As a result, the existence of any right to counsel in postconviction proceedings depends entirely on the federal and state legislatures." The article lists standards for determining qualified counsel, and it explores how the appointment of effective postconviction counsel can play a crucial role in ensuring accuracy and fairness in death penalty appeals. 2003 Wisconsin Law Review 31 (2003). See Law Reviews.

Ohio Governor Grants Clemency

Ohio Governor Bob Taft has granted clemency to Jerome Campbell, who was scheduled to be executed on June 27th for a 1988 murder in Cincinnati. The clemency, Taft's first since he took office, follows the recommendation of the state's Parole Board, which voted 6-2 in favor of clemency. Defense attorneys maintain that Campbell should be retried because a DNA test he requested from the state showed that blood on his gym shoes introduced as trial evidence was Campbell's own blood, not the victim's. The results marked the first time an Ohio prisoner obtained DNA test results through a state law that allows death row inmates to have DNA testing at the state's expense. In its recommendation, the Parole Board noted that jurors may have spared Campbell's life during his initial trial had they had the opportunity to consider the DNA information. (Associated Press, June 26, 2003). See Clemency.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).