The Florida Supreme Court's decision inEddie Junior Bigham v. Stateleads this week. TheBighamCourt reduces the condemned's conviction to second degree murder. "ecause we conclude the evidence is insufficient to prove premeditation." "While we find that the evidence was sufficient to rule out any hypothesis but that Bigham caused Lulu's death, we do not find that the evidence was sufficient to prove that Bigham had the conscious purpose to kill Lulu." One justice dissents on whether there was even enough evidence to convict Bigham of any degree of homicide in the death of Lourdes "LuLu" Cavazos-Blandin. Another justice dissented believing there was enough circumstantial evidence to prove premeditation.

Falling in the "win for now" category isPaul Everette Woodward v. Eppsfrom the Fifth Circuit granting a COA. A "COA is granted on the issue of whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson." "Woodward has provided evidence that the prosecution struck 100% of the eligible black jurors using its peremptory challenges. While it is unclear at this juncture whether Woodward has demonstrated that 'all relevant circumstances' raise an inference of purposeful discrimination, we conclude that, given the State’s strike of every potential black juror, and the district court’s apparent failure to consider Woodward’s 'totality of the circumstances' argument, this issue is 'adequate to deserve encouragement to proceed further.'"

"Acting on a claim by Mexico’s government that the U.S. government has not done enough to assure the treaty rights of Mexican nationals facing execution for murders in the U.S., the World Court on Wednesday ordered the U.S. — by a 7-5 vote — to stop five imminent executions in Texas. Leaving it up to the U.S. to choose the way to carry out the order, the international tribunal — formally, the International Court of Justice that sits in The Hague, Netherlands — told the U.S. only to “take all measures necessary to ensure” that Texas does not execute five individuals on its death row.. . . The text of the World Court decision (but not including three dissenting opinions) can be downloadedhere. A press release summarizing the 21-page majority rulinghere."[via SCOTUSBlog]

Responding to juror concerns that unclear jury instructions resulted in any unnecessary death sentence, “on July 15th, GovernorBrad Henry of Oklahoma granted a 30-day stay of execution to Kevin Young, who was originally scheduled to be executed on July 22nd. His new execution date is August 21st. Governor Henry announced the stay in order to have more time to review Kevin Young’s case.” [via AI’s DP blog].

The Missouri Supreme Court hasstayed John Middleton’s executiondate. The Court stayed Middleton’s execution date in light of ongoing lethal injection litigation. With the stay, in the next 60 days there appears to be no executions scheduled outside the states of the Death Belt (the Old Confederacy + Oklahoma).

In other news, as most probably know, cops in Maryland have been targeting people opposed to the ultimate use of state power. Maryland State Police officers conducted surveillance on local peace activists and groups opposed to the death penalty, including some inTakomaPark, for more than a year during the administration of former Gov. Robert L. Ehrlich Jr. (R), documents released this morning show. No evidence of criminal behavior was reported during almost 3 years of observation.Read more

New scholarship is noted.DePaul Law Reviewspends an entire looking at Atkins & its aftermath. Three articles from law review are the “to read” stack already.

• Andrea D. Lyon,But He Doesn’t Look Retarded: Capital Jury Selection for the Mentally Retarded Client Not Excluded after Atkins v. Virginia, 57 DePaul Law Review 701 (2008)
• Carol S. Steiker and Jordan M. Steiker,Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Capital Punishment, 57 DePaul Law Review 721 (2008)
• Bryan Stevenson,The Effect of Atkins Below the Mason-Dixon Line, 57 DePaul Law Review 741 (2008)

Suffolk Transnational Law Reviewrecaps a recent symposium on Medellin v. Texas (link is to the entire issue of the law review). I am especially looking forward to:

• Margaret E. McGuinness,Three Narratives of Medellin v. Texas, 31 Suffolk Transnational Law Review 227 (2008)

Other recent articles of notecan be found here.

In the last of our news roundups, DPIC has a thought provoking post entitled “STUDIES: Estimates of Wrongful Convictions by Those Involved in the System.” DPIC also notes, "anew study published in the American Journal of Political Science investigates the connection between death penalty decisions and the practice of electing judges." Finally, the Canadian Press looks at capital charging choices in "Ohio Prosecutors Seeking Life Without Parole Instead of Death Penalty."

Looking ahead, no favorable opinions are so far noted and two troubling opinions. The Georgia Supreme Court inAntron Daway Fair & Damon Antwon Jolly v. State holds a Defendant need not know the decedent was a police officer in order for the officer's death to be tried capitally. The Ohio Supreme Court holds inState v. Delano Halethat where lawyer voir dire is available a judge need not "life qualify" a jury even if counsel does not.

Pending Executions

July

22 Kevin Young - Okla*

23 Derrick Sonnier - Tex.*

23 Dale Lee Bishop - Ms*

24 Christopher Emmett Va*

28 Gregory Decay - Ark.(s)

30 John Middleton - Mo.*

31 Larry Davis - Tex.*

31 Tommy Arthur - Ala*

August

5 Jose Medellin - Tex.*

7 Heliberto Chi - Tex.*

12 Leon Dorsey - Tex.*

14 Michael Rodriguez Tx* (v)

20 Denard Manns - Tex.*

21 Jeff Wood -Tex.*

September

9 Gregory Wright -Tex.*

9 Frank Williams, Jr., - Ark*

10 Charles Hood - Tex.*

17 William Murray -Tex.*

18 Joseph Ries -Tex.*

23 Richard Henyard - FL*

25 Jessie Cummings - Okla*

October

7-13 Briley Piper - S.D.*

14 Richard Cooey - Ohio*

16 Kevin Watts - Tex(

28 Eric Nenno - Tex*

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin& AP]

Week of July 7, 2008 – In Favor of the Defendant or the Condemned

• Eddie Junior Bigham v. State, 2008 Fla. LEXIS 1232 (Fl 7/10/2008)"[W]e reverse the first-degree murder conviction and vacate the death sentence because we conclude the evidence is insufficient to prove premeditation. However, we find that the record supports a conviction of second-degree murder, and we remand to the trial court to enter a judgment of conviction on second-degree murder and to conduct a sentencing proceeding on that conviction."
• Paul Everette Woodward v. Epps, 2008 U.S. App. LEXIS 14247 (5th Cir 7/7/2008) (unpublished) "COA is granted on the issue of whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson."
• Ex parte State of Alabama; (In re: State of Alabama v. Jason Murphy), 2008 Ala. Crim. App. LEXIS 120 (Ala Crim App 7/3/2008) "Judge Reynolds is directed to grant the motion to compel and to continue Murphy's third trial until a transcript of the second trial is prepared by his official court reporter, Deborah Sharman."

Week of July 7, 2008 – In Favor of the State or Government

• Christopher Scott Emmett, v. Johnson, 2008 U.S. App. LEXIS 14701 (4th Cir 7/10/2008) Challenge to Virginia's lethal injection protocol in this section 1983 action denied as: 1) Virginia's protocol is substantially similar to that at issue inBaze;2) plaintiff failed to produce sufficient evidence that Virginia's scheme would produce undue risk of pain; and 3) anecdotal evidence and speculation of future incidents are insufficient to defeat summary judgment.
• Samuel Bustamante v. Quarterman, 2008 U.S. App. LEXIS 14248 (5th Cr 7/7/2008) "Bustamante contends that counsel rendered ineffective assistance by failing to inspect the trial exhibits before they were given to the jury, thus allowing an exhibit that had not been admitted to be considered by the jury."
• Carlton Akee Turner v. Quarterman, No. 08-70025 (5th Cir 7/7/2008) (unpublished) Payment for clemency denied under § 3599.
• Frank Moore v. Quarterman, 2008 U.S. App. LEXIS 14284 (5th Cir 7/7/2007) In "a prosecution for capital murder, denial of a certificate of appealability after the district court denied petitioner habeas relief is affirmed over claims of error regarding: 1) the state's withholding of evidence favorable to his cause both as to guilt and punishment; 2) comments made in a second trial referring to a first trial, as being a violation of his right to a presumption of innocence; and 3) ineffective assistance of counsel based on a failure to adequately investigate the facts surrounding the shooting." [via Findlaw]
• Abdullah Shariv Kaazim Mahdi v. Bagley, 2008 U.S. App. LEXIS 14260 (6th Cir. 7/7/2008) Relief denied. "Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause."
• People v. Billy Ray Riggs, 2008 Cal. LEXIS 8244 (Cal 7/10/2008) "A conviction and death sentence for first degree murder are affirmed over claims of error regarding: 1) inadequate Faretta advisement; 2) denial of a motion to change venue; 3) error in failing to excuse jurors during death qualifying voir dire; 4) admissibility of a videotape of America's Most Wanted; 5) admission of battered woman syndrome evidence; 6) the trial court's decision to deem the defense case complete; 7) prosecutorial misconduct during the guilty and penalty phases; 8) improper admission of photographs of the victim's body; 9) instructional error during the guilty and penalty phases; 10) constitutionality of the death penalty; and 11) the cumulative effect of errors."[via FindLaw]
• People v. Richard Ray Parson, No. S056765 (Cal 7/10/2008) "A conviction and death sentence for murder, robbery, and burglary are affirmed over claims of error regarding: 1) denial of defendant's motion to suppress evidence seized; 2) the court's failure to instruct sua sponte on assault because there was evidence to show that the offense he committed was less than burglary and robbery; 3) a failure to instruct sua sponte on theft and on the definition of the term "steal" in connection with the elements of burglary; 4) jury instructions which undermined the requirements of proof; 5) prosecutorial misconduct; 6) ineffective assistance of counsel; 7) a failure to provide intercase proportionality review; 8) the constitutionality of the death penalty; 9) violations of international law; and 10) the cumulative effect of errors in both the guilt and penalty phase."[via FindLaw]
• James Armando Card, Sr. v. State, 2008 Fla. LEXIS 1231 (Fl 7/10/2008) "In a prosecution for murder, robbery and kidnapping, denial of defendant's motion to vacate his death sentence is affirmed over claims of error regarding ineffective assistance of counsel in his re-sentencing, based on an alleged failure to investigate and present mitigation evidence that would have supported two statutory mitigating circumstances."[via FindLaw]
• Neil K. Salazar v. State, 2008 Fla. LEXIS 1235 (FL 7/10/2008) "A conviction and death sentence for first degree murder are affirmed over claims of error regarding: 1) denial of defendant's motion for a mistrial based on improper prosecutorial comments during guilt-phase final arguments; 2) improper self-bolstering witness testimony; 3) the trial court's error in finding the cold, calculated, and premeditated aggravator; 4) arguments during penalty phase closing arguments that victims were terrorized; 5) the unconstitutionality of the death penalty; 6) the sufficiency of the evidence; and 7) the proportionality of the death sentence."[via FindLaw]
• Michael Reaves v. State, 2008 Ga. LEXIS 622 (GA 7/11/2008) Court below did not err as to: "(1) whether the trial court erred in denying a motion to suppress Reaves’ statements; (2) whether the trial court erred in denying a motion to suppress evidence seized with warrants; and (3) whether the trial court erred in refusing Reaves’ request to have a video recording of his custodial statements examined by the FBI. Reaves’ wife was also charged with murder and related offenses,"
• Charlott Lynett Reaves v. State, 2008 Ga. LEXIS 622 (GA 7/11/2008) Trial court did not err as to: "(1) whether the trial court erred regarding a motion to suppress evidence seized with warrants and (2) whether the trial court erred in denying a motion to exclude a printed e-mail under the privilege afforded to inter-spousal communications."
• Ex parte Edgar Arias Tamayo, 2008 Tex. Crim. App. Unpub. LEXIS 488 (Tex. Crim. App. 7/2/2008) Dismissed with written order as to Vienna convention claim.

(Initial List) Week of July 14, 2008 – In Favor of the State or Government

• Danny Dean Frogge v. Branker, 2008 U.S. App. LEXIS 15132 (4th Cir 7/15/2008) (unpublished) Panel denies relief, per curiam, on claims "that he is entitled to such relief on the ground that his trial counsel was constitutionally ineffective by failing to develop and present, for sentencing purposes, mitigating evidence of his permanent organic brain damage."
• David Lee Powell v. Quarterman, 2008 U.S. App. LEXIS 15038 (5th Cir 7/16/2008) "In a murder case, denial of defendant's petition for a writ of habeas corpus is affirmed over claims of error regarding: 1) a failure to require his capital resentencing proceeding to be a complete new trial on all the elements of the capital offense, rather than just a retrial on the punishment elements; 2) a prosecutor's failure to timely disclose documents related to culpability; and 3) testimony of an emergency room doctor who testified for the prosecution about defendant's answers to questions the doctor asked during examination." [via FindLaw]
• Michael Delozier v. Sirmons, 2008 U.S. App. LEXIS 15298 (10th Cir 7/18/2008) "On appeal Mr. DeLozier challenges his conviction and sentence on the grounds that his trial counsel was ineffective in (1) not properly challenging four jurors who were biased in favor of the death penalty; (2) not moving before trial to exclude evidence of his prior convictions; (3) not calling as witnesses his sister and a friend who were with him shortly after the murders but who did not participate in the murders; (4) not effectively impeaching Nathaniel Madison’s testimony; (5) not objecting to the State’s improper comment on his pretrial silence; (6) not objecting to the State’s improper questions when he was cross examined and to its improper arguments to the jury; and (7) not conducting a proper investigation to obtain mitigating evidence for the penalty phase of trial and not presenting available mitigating evidence. He also contends (8) that his counsel on direct appeal to the OCCA was ineffective for not raising a claim of ineffective trial counsel and (9) that the cumulative effect of trial counsel’s deficient acts rendered counsel’s assistance ineffective. We affirm."
• People v. Gerardo Romero, 2008 Cal. LEXIS 8668 (Cal 7/14/2008) "In a capital murder case, the evidence was sufficient to support the jury's finding that defendant's killing of his victim was premeditated and deliberate, thus constituting first degree murder. There was evidence from which the jury could infer planning. Defendant brought a gun to a video store where, without any warning, he shot the victim." [via Lexisone]
• Antron Daway Fair & Damon Antwon Jolly v. State,2008 Ga. LEXIS 624 (Ga 7/14/2008) (dissent) A Defendant need not know the decedent was a police officer in order for the officer's death to be tried capitally. "This is an interim appellate review of two related cases in which the State seeks the death penalty. Antron Dawayne Fair and Damon Antwon Jolly allegedly killed Bibb County Deputy Joseph Whitehead, who was on assignment as an investigator with the Middle Georgia Drug Task Force. The State contends that in the early morning hours of March 23, 2006, both defendants opened fire on Deputy Whitehead as he and other members of the Task Force and the Bibb County Drug Unit were executing a "no-knock" warrant at 3135 Atherton Street within the City of Macon in Bibb County. Pursuant to OCGA § 17-10-35.1, we granted their applications for interim review to consider the following issues: (1) whether the trial court erred in denying the defendants' motions for a pre-trial determination of whether they are entitled to immunity from prosecution under OCGA § 16-3-24.2; (2) whether the trial court erred in denying the defendants' motions regarding an alleged scienter element in the OCGA § 17-10-30 (b) (8) statutory aggravating circumstance; and (3) in Fair's case, whether the trial court erred regarding his motion to suppress evidence seized during a search with a warrant."
• State v. Delano Hale, 2008 Ohio 3426 (Ohio 7/15/2008) Relief denied, most notably on claims concerning, (1) failure of the police to advise him of his Miranda warning prior to questioning; (2) failure to adequately life-qualify jury (including finding that "the trial court had no obligation to personally life-qualify the jurors.… The fact that the judge did ask death-qualifying questions did not create any such obligation. The fact remains that the trial judge did not prevent defense counsel from asking such questions, and counsel in fact did ask such questions without hindrance."), and (3)certain evidentiary rulings that let in "evidence and testimony that were irrelevant, misleading and prejudicial" to the defense, but did not permit the defense to use certain life vs life comparison (such as the victim’s criminal history).
• State v. Freddie Eugene Owens, 2008 S.C. LEXIS 204(S.C. 7/14/2008) Relief denied on three issues: "1) Whether the trial judge erred in disqualifying a juror? 2) Whether the solicitor's closing argument was improper? and 3) Whether the trial judge erred in admitting redacted prison disciplinary records?"
• State v. Danny Lee Hill, 2008 Ohio 3509 (11th Ohio App 7/14/2008) (dissent) Split panel loss on the issue of whether Hill is mentally retarded within the meaning of Atkins v. Virginia.