Two favorable decisions are noted this week.

InJohn Conaway v. Polkthe Fourth Circuit granted an evidentiary hearing on a claim of actual juror bias. One of the jurors was a "double first cousin" of Conaway's co-defendant. The relationship is enough, the panel holds, to imply bias, especially, as here, the issue at bar was whether the first cousin or Conaway was the killer.

The Missouri Supreme Court unanimously held inTerrance Anderson v. Stat, that trial counsel provided ineffective assistance during jury selection. Specifically counsel erred in failing to ask a particular juror whether he could put aside his personal belief expressed in his statements during jury selection. The jury was life hesitant stating that the death penalty was appropriate automatically unless the defense convinced him otherwise and instead follow the instructions of the court.

In legislation in the news, the Senate has passed theAdam Walsh Child Protection and Safety Act of 2006. The bill is likely to pass the House this week and to become law by the end of the month. The Act adds certain murder / sex crimes combinations to the ambit of the federal defense penalty's scope. The Act also modifies practice in noncapital sex cases through both direct legislation, as well as the usual combination of carrots and sticks.

TheABA Death Penalty Moratorium Implementation Projecton Monday released itsArizona Death Penalty Assessment Reportas part of its two-year grant to examine the extent to which U.S. capital jurisdictions' death penalty systems comport with minimum standards of fairness and due process. Key among the findings: [1] Arizona’s indigent defense services is a mixed and uneven system that lacks level oversight and standards and does not provide uniform, quality representation to indigent defendants in all capital proceedings; [2] the compensation paid to appointed attorneys who represent capital defendants is insufficient for counsel to meet their obligations under the ABA Guidelines despite the fact that the Arizona Rules of Criminal Procedure require defense counsel to be familiar with the Guidelines and that the Arizona Supreme Court may mandate compliance with portions of the Guidelines; [3] while proportionality review is the single best method of protecting against arbitrariness in capital sentencing, the Arizona Supreme Court is not required to undertake a proportionality review in capital cases; and [4] the Arizona Capital Case Commission expressed concerns regarding the ambiguity of the (F)(6) statutory aggravating circumstance (a murder committed in an “especially cruel, heinous or depraved manner”), but no changes have yet been made.

In the news, the RAND corporation has released its study on how the Clinton Administration sought to impose the death penalty with a press releasehere, full texthere, and executive summaryhere. In an effort to find counsel for the 100+ people condemned to death who are without counsel in California the rate for appointed counsel was slightly raised. Missouri exoneratedJohnny Briscoethis week, through the efforts ofCenturion Ministriesand others, after 23 years when a crime lab unexpectedly found DNA from the crime, tested it, and discovered someone else committed the brutal crime for which Briscoe had been convicted. The New Jersey death penalty study commission met this week and a packed hearing room suggests that the current 8 digit cost of the capital prosecutions in the Garden State will be dramatically dropping, the only question is whether it will be all the way to zero. Finally, the past week saw the marking of thesad anniversarymarking the Iranian hanging of two young men on claims they were gay, the anniversary was marked by protests and remembrance services around the globe.

In the realm of new scholarship,Yale Law School's Giovanna E. Shay and Timothy O'Toole from P.D.S. in D.C. recently published"Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures." The article focuses the how and the why that decision has failed to stem the tied of faulty eyewitness identification and what can be done about it.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060717.htm.

Recent Executions

July

19 Maurice Brown (Texas)

20 Robert Anderson (Texas)

20 Brandon Hedrick (Virginia)

Scheduled Executions

July

25 Allen Bridgers (Texas) (note that reports have this date stayed)

27 Michael Lenz (Virginia)

August

3 William Wyatt Jr. (Texas)

8 Darrell Ferguson (Ohio--vol)

11 David Dawson (Montana--vol)

15 Stephen Hugueley(Tenn--vol)

17 Richard Hinojosa(Texas)

22 James Malicoat(Oklahoma)

24 Justin Chaz Fuller(Texas)

28 Elijah Page(South Dakota--vol)

More Execution information

In Favor of Life or Liberty

John Conaway v. Polk, 2006 U.S. App. LEXIS 17304 (4th Cir 7/11/2006) Evidentiary hearing ordered on claim of actual juror bias. One of the jurors was a "double first cousin" of Conaway's co-defendant. The relationship is enough, the panel holds, to imply bias.

Terrance Anderson v. State, 2006 Mo. LEXIS 79 (Mo 7/10/2006) Trial counsel provided ineffective assistance by the manner in which voir dire was conducted, specifically as it was conducted to a life hesitant juror.

Favoring Death

Garcia v. Quarterman, 03-11097 (5th Cir. 7/14/2006) Majority rejects claim, despite recognizing SCOTUS precedent to the contrary, that "evidence of childhood abuse must be considered under Penry regardless of the context in which it was offered at trial."

Kevin Keith v. Mitchell, 2006 U.S. App. LEXIS 17097 (6th Cir 7/10/2006) Trial counsel waived opening and closing arguments. Counsel submitted a presentence report that contained unredacted victim impact testimony, the record of prior convictions, and erroneous statements as the Petitioner's life, as well as submit a psychiatrist's findings no mitigators were present. Counsel conducted NO investigation before deciding not to present mitigation evidence. The ruling is perhaps best summed up by title of the case atDecision of the Day,No Mitigation Investigation? No Problem. This was a private bar case where trial counsel's performance was apparently compromised by the lack of resources and his need for cash.

Edward Zakrzewski v. McDonough, 2006 U.S. App. LEXIS 17484 (11th Cir 7/13/2006) Relief denied on “(1) whether trial counsel was ineffective for failure to object to statements made by the prosecutor in closing argument, and (2) whether trial counsel was ineffective for failure to file a motion to suppress evidence contained in the house which constituted the murder scene.”

Daniel Siebert v. Allen, 2006 U.S. App. LEXIS 17499 (11th Cir 7/13/2006) Relief denied as this Alabama inmate filed his state court Rule 32 petition out of time thereby procedurally defaulting his claim. The bar is held to be regularly applied and hence enforceable. Note that the precedent relied on by the Eleventh Circuit, Hurth v. Mitchem, does not appear to have been tested by either a petition en banc or for cert. Note also that the claimed untimeliness of the state court petition may have resulted from the ongoing crisis in representation in Alabama and the inability to recruit counsel. [If someone can confirm why the Rule 32 filing deadline was missed I would be appreciative.]

Dominick Occhicone v. Crosby, 2006 U.S. App. LEXIS 17737 (11th Cir 7/14/2006) The State's failure to correct perjured testimony held not to require relief as there is "no reasonable likelihood that the state’s failure to correct the untruthful testimony in this case could have affected the judgment of the jury."

People v. Gregory Demetrulias, 2006 Cal. LEXIS 8352 (Cal 7/10/2006) Relief denied on guilt phase issue including: 1.) admission of evidence of crimes against others; 2.) admission of evidence of victims’ peaceful characters; 3.) refusal of instruction on claim of right; 4.) refusal of instructions on heat-of-passion voluntary manslaughter; 5.) exclusion of certain hearsay evidence; 6.) cumulative prejudice from guilt phase error; and, 7.) defendant’s impeachment with statements taken in violation of Miranda. Relief denied on penalty phase issues including: 1.) prosecutorial misconduct in penalty phase argument; 2.) exclusion of testimony offered in mitigation; 3.) prohibition on defense use of chart in jury argument; 4.) admission of certain victim impact evidence; 5.) cumulative prejudice from guilt and penalty phase errors; 6.) lack of a beyond reasonable doubt burden of proof requirement; 7.) lack of a jury unanimity requirement ; 8.) refusal of lingering doubt instruction; 9.) unconstitutionality of California’s death penalty law; 10.) delay inherent in capital appellate system; and, 11.) unconstitutional methods of execution.

State v. Donald Lee Leger, 2006 La. LEXIS 2146 (LA 7/10/2006) (dissent) Relief denied on claims including the admissibility of statements given to the police following a tainted initial statement, the effectiveness counsel, the seizure of evidence from his van and the use of photo identifications made by witnesses. One of the statements made to police had been improperly admitted into evidence, however that error held harmless as to both verdict and sentence.

State v. Kitrich Powell, 122 Nev. Adv. Rep. 65 (Nev 7/13/2006) (dissent) Court sharply splits, 4-3, on the issue of whether trial counsel acted deficiently in failing to contact Powell's two brothers and failing to call them to testify at his penalty hearing.

Selected Excerptsfrom, & Commentary on, this Edition's Cases

John Conaway v. Polk, 2006 U.S. App. LEXIS 17304 (4th Cir 7/11/2006) Evidentiary hearing ordered on claim of juror bias.

By the Juror Bias claim, Conaway contends that Juror Waddell's concealment on voir dire of his relationship to co-defendant Harrington, a key prosecution witness, deprived Conaway of his Sixth Amendment right to trial by an impartial jury. The Sixth Amendment, made applicable to state criminal proceedings through the Fourteenth, affords an accused the right to trial by an impartial jury. See Duncan v. Louisiana, 391 U.S. 145, 160, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). As [*38] the Supreme Court has observed, a "touchstone of a fair trial is an impartial trier of fact -- 'a jury capable and willing to decide the case solely on the evidence before it.'" McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)).

In contesting Conaway's position on the Juror Bias claim, the State makes three principal contentions: (1) that Conaway procedurally defaulted on the claim; (2) that the MAR Court's decision on the claim was not an unreasonable application of clearly established federal law as determined by the Supreme Court; and (3) that Conaway is not entitled to an evidentiary hearing in federal court because he failed to diligently pursue the Juror Bias claim and because his allegations are insufficient to entitle him to relief thereon. As explained below, we reject each of these contentions.

As a preliminary matter, we conclude that Conaway has not procedurally defaulted on the Juror Bias claim by failing to support MAR I with admissible evidence. A claim asserted in a federal habeas corpus proceeding has been procedurally defaulted, [*39] and is therefore not subject to federal review, when "a state court has declined to consider the claim's merits on the basis of an adequate and independent state procedural rule." Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998). If the decision of the "last state court to which the petitioner presented his federal claims . . . did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition." Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (recognizing that state court resolution does not "clearly" rest on independent procedural bar if "interwoven" with federal claim); see also Jenkins v. Hutchinson, 221 F.3d 679, 682-83 (4th Cir. 2000).

In asserting that Conaway procedurally defaulted, the State misconstrues the MAR Court's decision in MAR I, as well as the governing procedural requirements in North Carolina. Although the MAR Court remarked that Conaway had failed to support the claim with "any affidavit or documentary evidence that Mr. [Waddell] is, in fact, related to the Co-Defendant Harrington," State v. Conaway, No. 91 CRS 5877-5878, slip op. [*40] at 11 (N.C. Super. Ct. Jan. 22, 1998), n17 it did not premise its denial of the Juror Bias claim in MAR I on a lack of admissible evidence (as the State would now have it). Rather, the MAR Court's conclusion relied on its determination that the MAR I allegations, if substantiated, would not "constitute . . . a violation of the State or Federal Constitution." See id. As the district court recognized, the MAR Court thereby denied the Juror Bias claim "on the merits." By reaching the merits of the Juror Bias claim, the MAR Court thus did not "clearly and expressly" rely on an independent and adequate state procedural rule. See Coleman, 501 U.S. at 735.

Moreover, contrary to the State's contention, North Carolina does not mandate that admissible evidence must be submitted to an MAR court before an evidentiary hearing can be conducted. See Robinson v. Polk, F.3d , No. 05-01, slip op. at 26 (4th Cir. Feb. 14, 2005). Rather, the applicable North Carolina statute requires that an MAR premised upon facts not in the trial court record be supported by "affidavits or documentary evidence." N.C. Gen. Stat. § 15A-1420(b)(1). There is no authority under North Carolina law (nor has the State asserted any to us) requiring that such affidavits and documents themselves constitute admissible evidence. In deciding whether an evidentiary hearing is warranted, an MAR court is obliged, under the applicable North Carolina statute, to determine whether the allegations of an MAR and the materials submitted in support thereof raise questions of fact which, if resolved in the defendant's favor, would entitle him to relief. See id. § 15A-1420(c)(1); see also State v. McHone, 348 N.C. 254, 499 S.E. 2d 761, 763 (N.C. 1998) ("[A]n evidentiary hearing is required unless the [*42] [MAR] presents assertions of fact which will entitle the defendant to no relief even if resolved in his favor, or the [MAR] presents only questions of law."). If such questions are raised, the MAR court must then conduct an evidentiary hearing and, at that time, assess the admissibility of the proffered evidence. See N.C. Gen. Stat. § 15A-1420(c)(4). Indeed, it would create a "classic catch-22" if an MAR defendant were obliged to submit admissible evidence to the MAR court in order to be accorded an evidentiary hearing, when the defendant is seeking the hearing because he cannot, without subpoena power or mechanisms of discovery, otherwise secure such evidence. See United States v. Mason, 52 F.3d 1286, 1292 (4th Cir. 1995). In these circumstances, we are unable to conclude that Conaway has procedurally defaulted on the Juror Bias claim, and he is therefore entitled to pursue the claim in his federal habeas corpus proceeding. n18

Turning to the merits of the Juror Bias claim, we conclude that the MAR Court's denial of MAR I involved an unreasonable application of clearly established federal law as determined by the Supreme Court. The text of the Sixth Amendment mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial[] by an impartial jury." U.S. Const. amend. VI. And the Supreme Court has long recognized that the Sixth Amendment prohibits biased jurors from serving on criminal juries. See United States v. Wood, 299 U.S. 123, 133, 57 S. Ct. 177, 81 L. Ed. 78 (1936) (recognizing Sixth Amendment's text prohibits partial jurors, whether bias is "actual or implied"). The Court has explained that a juror's bias may be established by showing (1) that the juror "failed to answer honestly a material question on voir dire"; and (2) that "a correct response [to that question] would have provided a valid basis for a challenge for cause." See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (the "McDonough test"). n19 Additionally, a litigant must show that the fairness of his trial was affected either by [*44] the juror's "motives for concealing [the] information" or the "reasons that affect [the] juror's impartiality." Id. n20

By MAR I, Conaway alleged that Juror Waddell failed to disclose that he was co-defendant Harrington's double first cousin, once removed, [*45] and Conaway supported his allegations with an affidavit of his lawyer Berry, as well as the trial's voir dire transcript. The MAR Court denied the Juror Bias claim on the merits, concluding that Conaway's MAR I allegations, if substantiated, would not "constitute . . . a violation of the State or Federal Constitution." See State v. Conaway, No. 91 CRS 5877-5878, slip op. at 11 (N.C. Super. Ct. Jan. 22, 1998). As explained below, the MAR I allegations were sufficient under McDonough to state a constitutional claim for relief, and thus the MAR Court's ruling on the Juror Bias claim was unreasonable

For similar reasons, the district court erred in dismissing the Juror Bias claim without an evidentiary hearing. As explained below, the district court erroneously determined that 28 U.S.C. § 2254(e)(2) [*57] precluded Conaway from being accorded an evidentiary hearing on that claim, and it erred in ruling that Conaway had not alleged facts sufficient to entitle him to relief.

Under AEDPA, a federal district court may not ordinarily grant an evidentiary hearing on a claim that was presented to a state court when the petitioner "has failed to develop the factual basis of a claim in State court proceedings." See § 2254(e)(2). A petitioner has not "failed to develop" the facts of his claim, however, if he has "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams (Michael) v. Taylor, 529 U.S. 420, 435, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000). At a minimum, a diligent petitioner must "seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.

On the facts presented in this record, Conaway reasonably attempted, in light of the information available to him at the relevant times, to investigate and pursue the Juror Bias claim in state court. His efforts were thwarted, however, by reluctant witnesses and unreceptive courts. Conaway's direct appeal was [*58] not resolved until October 1995, and his post-conviction lawyers were not appointed until July 1996. Although Conaway's request for funds to hire an investigator was denied, his attorneys personally investigated the Juror Bias claim, sometimes at their own expense. See, e.g., J.A. 1575. Despite their efforts, potential witnesses in both the Waddell and Harrington families were reluctant to cooperate with the lawyers, or they flatly refused to do so. And, as Conaway's lawyer Smith explained by affidavit, the official records of Richmond County are insufficient -- apparently for race-based reasons -- to establish the relationship between Juror Waddell and co-defendant Harrington. Moreover, Conaway's request for an evidentiary hearing in the MAR Court was denied, depriving him of the opportunity to build a factual record. Because Conaway has been reasonably diligent in pursuing his claim, and his failure to fully develop the facts related to the Juror Bias claim in state court is attributable to external causes, § 2254(e)(2) does not preclude him from being accorded an evidentiary hearing in federal court. See Williams, 529 U.S. at 443.

When a state court has denied [*59] a habeas corpus petitioner the opportunity to develop his claims, he is entitled to an evidentiary hearing in federal court if he can establish one of the six factors enumerated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and if he has alleged facts which, if true, would entitle him to relief. See Walker v. True, 399 F.3d 315, 327 (4th Cir. 2005). A petitioner is not to be awarded relief, however, on the basis of an error that was harmless, in that it did not have a "'substantial and injurious effect or influence'" on the outcome of the underlying proceeding. Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). And where the court is in "grave doubt," as to the effect of a constitutional error -- that is, if the court is in "virtual equipoise" regarding an error's harmlessness -- the petitioner is entitled to an evidentiary hearing. See Fullwood, 290 F.3d at 679.

Conaway has never been afforded an opportunity to develop the facts underlying the Juror Bias claim, and he can therefore satisfy [*60] at least the fifth Townsend factor. See Townsend, 372 U.S. at 313 (listing factors that require hearing, including "(5) the material facts were not adequately developed at the state-court hearing"). And, as our foregoing analysis demonstrates, Conaway has stated a valid claim for relief under McDonough: Conaway has alleged in his federal habeas corpus petition, as he did in MAR I, that Juror Waddell concealed his relationship to co-defendant Harrington during the voir dire proceedings, which affected the fairness of Conaway's trial.

Furthermore, in addition to the MAR I allegations, Conaway has alleged in his federal proceedings that, during voir dire, Juror Waddell failed to honestly answer several material questions -- such as whether he had formed any opinion concerning Conaway's trial -- that would have exposed Juror Waddell's previous statements that he "hope[d to] get on this jury because if [Conaway] did it, he should die." n24 In Morgan v. Illinois, the Supreme Court reiterated that "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances [*61] as the instructions require him to do." See 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). Accordingly, Juror Waddell could have been challenged for cause under Morgan if he had answered truthfully on voir dire. And as the Court said, if "even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Id.

Conaway has alleged that he was convicted and sentenced to death by a jury that included a primary accuser's double first cousin, once removed, and his affidavits reflect that the juror had previously asserted that, if Conaway was guilty, he should die. In these circumstances, we need not labor to conclude that such a serious constitutional injury affected Conaway's substantial rights, nor are we in doubt as to the necessity of an evidentiary hearing. See Fullwood, 290 F.3d at 682 (concluding that allegations that spouse pressured juror to vote for death sentence "are of a type that draw into question the integrity of the verdict, and give rise to a presumption of prejudice" (internal quotation marks and citation omitted)). Yet Conaway has never been accorded the opportunity to develop the facts underlying his claim. See Townsend, 372 U.S. at 313. As the Supreme Court has "long held," the "remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." See, e.g., Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). The district court therefore committed an error [*63] of law -- and abused its discretion -- in denying Conaway an evidentiary hearing on the Juror Bias claim. n25

Terrance Anderson v. State, 2006 Mo. LEXIS 79 (Mo 7/10/2006) The Missouri Supreme Court unanimously held inAndersonthat trial counsel provided ineffective assistance in failing to adequately voir dire a life hesitant juror.

Anderson claims that his trial counsel was ineffective for failing to move to strike Juror Dormeyer for cause because of statements he made during voir dire. These statements indicated that he would vote for a death sentence unless the defense could convince him otherwise. To determine whether Anderson's attorneys' failure to strike Juror Dormeyer was ineffective assistance of counsel, it is necessary to discuss some of the circumstances surrounding the statements.

Anderson had two attorneys involved in the relevant portion of voir dire. Attorney Charles Moreland questioned the panelists, while Attorney Scott McBride communicated the strikes for cause to the trial court. The statements at issue were made while Moreland was questioning panelists about their views on the death penalty. Moreland asked if there was anyone who believed that if a person deliberately takes a life, they must forfeit their own life. Two panelists raised their hands in response to this question. Panelist Sabourin stated unequivocally that he would vote for death in all instances. [*21] Panelist Bowers stated she would vote for death "unless there were other factors where it would be life imprisonment." Moreland then explained that the burden of proof would be on the prosecution throughout the trial. He also explained the weighing of aggravating and mitigating circumstances in the penalty phase. He then asked Bowers whether she would be able to give serious consideration to a sentence of life imprisonment without parole if the defense was not able to present any reasons to spare Anderson's life. Bowers responded that she would "probably weigh more heavily to the death penalty." She also stated that she believed in an "eye for an eye" and that when someone is convicted of first degree murder, a life must be given. Panelist Craft indicated that he shared this view. Thereafter, two other panelists stated that death would be the only appropriate punishment where the murder was carried out in front of children. Panelists Sabourin, Bowers, and Craft were later stricken for cause because they indicated a strong preference for the death penalty.

After questioning the group as a whole, Moreland began asking individual panelists whether they could give serious consideration [*22] to a life sentence even if the defense presented no evidence in mitigation. Panelist Williams stated that she could not. At this point, the prosecutor objected, arguing that Moreland's questions were leaving the jury with the impression that Anderson would not produce mitigating evidence when, in fact, he intended to present a mitigation case. The court admonished Moreland to tailor his questions to what he anticipated presenting to the jury and not to give an impression that there would be no mitigation case when he fully expected to develop one. Moreland then asked if Williams would have any difficulty following an instruction to keep the burden with the State at all times. Williams responded that she "would think the mitigating circumstances would have to be provided by the defense." To this, Moreland clarified that the jury could consider anything in evidence at trial in mitigation. Williams responded that she could consider a life sentence under those circumstances. McBride also later moved to strike Williams for cause because she indicated a strong preference for the death penalty.

Moreland proceeded to question other panelists individually, asking if they could follow the [*23] court's instructions and give serious consideration to a sentence of life in prison without parole. When he questioned Juror Dormeyer, however, the following exchange took place:

[Moreland]: Would you be able to give serious consideration to a sentence of life without parole?

[Dormeyer]: Well, can I ask a question?

[Moreland]: I don't know if I'll be able to answer or not.

[Dormeyer]: Well, if there's no evidence otherwise, I probably--I mean, I believe in capital punishment, but that's not, I have to be really convinced. That's what I'm saying.

[Moreland]: Are you saying you really have to be convinced by the State, or you really have to be convinced by me?

[Dormeyer]: I would have to be convinced that the person was not deserving of capital punishment.

[Moreland]: Okay. So your position in entering--if you're on the jury and entering the penalty phases, the death penalty is automatically an appropriate punishment in your mind, right?

[Dormeyer]: Uh-huh.

[Moreland]: And a life imprisonment could be an appropriate punishment if I can persuade you so?

[Dormeyer]: Right.

[Moreland]: All right. Would you require [*24] me to put on evidence to persuade you that life imprisonment would be appropriate in this case before you would give serious consideration to a life sentence?

[Dormeyer]: I believe so.

[Moreland]: Okay. And you understand the burden of proof is on the state?

[Dormeyer]: Yes.

[Moreland]: But you would nonetheless require us to put on, to convince you otherwise?

[Dormeyer]: Right.

[Moreland]: Against the death sentence?

[Dormeyer]: Right.

Unlike Panelists Sabourin, Bowers, Craft, and Williams, McBride did not move to strike Juror Dormeyer despite his statements indicating that he would put the burden on the defense to convince him that Anderson did not deserve the death penalty.

A defendant has a right to a fair and impartial jury. U.S. Const. amends. VI, XIV; Mo. Const. art. I, sec. 18(a). In cases where the death penalty may be imposed, "[a]ny veniremember who cannot be impartial is unfit to serve, whether the partiality is due to an aversion to the death penalty, an excessive zeal for death, or any other improper predisposition." State v. Clark, 981 S.W.2d 143, 148 (Mo. banc 1998). Failure to strike a juror [*25] that is unfit to serve because of such an improper predisposition is structural error. See Knese v. State, 85 S.W.3d 628, 633 (Mo. banc 2002) (citing Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1997)). A death sentence imposed by a jury tainted with structural error must be vacated. Gray, 481 U.S. at 660.

The State argues that the decision not to strike Juror Dormeyer was trial strategy and that any prejudice to Anderson was cured when the defense presented a mitigation case. For trial strategy to be the basis for denying a Rule 29.15 claim, however, the strategy must be reasonable. Wilkes v. State, 82 S.W.3d 925, 930 (Mo. banc 2002). Nothing in the record reflects any reasonable basis for trial counsel's decision not to move to strike Juror Dormeyer. Indeed, both Moreland and McBride testified that the oversight occurred because of a note-taking error. n7 They stated that they could think of no strategic reason for leaving Juror Dormeyer on the jury. Neither can this Court.

No competent defense attorney would intentionally leave someone on the jury who indicated a strong preference for the death penalty and also stated that he would require the defense to convince him that death was not appropriate even though he was aware that the burden of proof remains with the state. Any strategy that would place someone with such a predisposition on the jury is wholly unreasonable.

The State's argument that any prejudice caused by Juror Dormeyer serving on the jury during the sentencing phase was cured when the defense presented its mitigation case is also unpersuasive. The State cites State v. Hadley, 815 S.W.2d 422, 424 (Mo. banc 1991), to support this proposition. In that case, one of the jurors indicated in voir dire that he would presume guilt unless the defendant testified. 815 S.W.2d at 423. The defendant did take the stand in Hadley, and it was held that "[a]ny potential miscarriage of justice in having [the disputed venireperson] on the jury was entirely dependent upon defendant failing to testify." Id. at 424.

Hadley is distinguishable from the present case. It is true that, prior to questioning [*27] Juror Dormeyer, Moreland asked Panelist Williams if she would give serious consideration to a life sentence if the defense could present no evidence in mitigation. The trial judge sustained an objection to this question because it presented a hypothetical that the defense did not expect to actually occur. This, however, was not the question that was asked of Juror Dormeyer. As set out above, Juror Dormeyer made his statements in response to Moreland asking, "would you be able to give serious consideration to a sentence of life without parole?" He stated that he would "have to be convinced that the person was not deserving of capital punishment." He also indicated that, although he could be persuaded to vote for life, death was automatically an appropriate punishment unless the defense could convince him otherwise. These comments suggest that Juror Dormeyer would not give serious consideration to a sentence of life imprisonment and that he would not employ the proper burden of proof. See State v. Smith, 32 S.W.3d 532, 544 (Mo. banc 2000) ("challenge for cause will be sustained if it appears that the venireperson cannot consider the entire range of punishment, apply [*28] the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case.") Such a predisposition, which amounts to structural error as noted above, is not cured simply by the defense presenting a mitigation case. As such, Hadley is inapplicable.

It is important to note that the structural error in this case could have been easily cured. Anderson's counsel, the prosecutor, or the trial court could have followed up to ask Juror Dormeyer whether, despite his belief that the death penalty was automatically appropriate unless the defense convinced him otherwise, he could put aside his personal beliefs and follow the instructions of the court. Failure to do so denied Anderson his right to a fair [*29] and impartial jury and constituted ineffective assistance of counsel. Knese, 85 S.W.3d at 632-33.

This error only affected the penalty phase. None of Juror Dormeyer's statements indicated a predisposition to vote for guilt. As such, the motion court's judgment is reversed as to penalty phase only, and the case is remanded. On remand, a properly selected jury may consider again whether death is appropriate for the killing of Debbie Rainwater.

B. Other Penalty Phase Arguments

Having found that Anderson is entitled to a new penalty phase, there is no need to address his remaining points related to the penalty phase, including that trial counsel was ineffective for failing to call clinical social worker Cessie Alfonso in the penalty phase, that trial counsel was ineffective for failing to properly object to some of the prosecutor's penalty phase arguments, and that Missouri's method of execution is unconstitutional.

Although there is no need to address Anderson's assertions that the State could not seek the death penalty against him because the State's information failed to allege any aggravating factors, this Court reiterates its position that this argument [*30] is without merit. Anderson's argument on this issue mirrors the defendant's argument in State v. Gill, 167 S.W.3d 184, 193-94 (Mo. banc 2005), wherein it was noted that such claims have been repeatedly rejected.

Kevin Keith v. Mitchell, 2006 U.S. App. LEXIS 17097 (6th Cir 7/10/2006) Trial counsel waived opening and closing arguments. Counsel submitted a presentence report that contained unredacted victim impact testimony, the record of prior convictions, and erroneous statements as the Petitioner's life, as well as submit a psychiatrist's findings no mitigators were present. Counsel conducted NO investigation before deciding not to present mitigation evidence. The ruling is perhaps best summed up by title of the case atDecision of the Day,No Mitigation Investigation? No Problem. FromDecision of the Day:

A divided panel of the Sixth Circuit denies habeas relief to death row inmate Kevin Keith, who argued among other things that his attorney was constitutionally ineffective and that the trial court denied him a fair jury. Keith ineffective assistance claim is based on his attorney’s failure to put on mitigation evidence or do any investigation. According to Keith’s family, the attorney refused to interview them unless they paid him for his time, even though the attorney told the trial court that he was willing to represent Keith for free. Over a dissent from Judge Clay, the majority rejects this claim, concluding that Keith cannot show prejudice: because his three murder victims included two children, a jury would not likely be swayed by testimony about Keith’s bad upbringing.

The majority also rejects Keith’s claim that there should have been further inquiry on jurors’ beliefs about the death penalty before the trial court dismissed jurors who expressed reservations about imposing it. Because Keith’s attorney did not object at the time as required by Ohio law, this claim is procedurally defaulted. Nor can Keith claim ineffective assistance based on counsel’s failure to object, as there is no showing that a different jury would have voted differently. Likewise, Keith has not shown that his attorney was constitutionally ineffective for failing to try to rehabilitate the scrupled jurors.

Garcia v. Quarterman, 03-11097 (5th Cir. 7/14/2006) Majority rejects, despite recognizing SCOTUS precedent to the contrary, that"evidence of childhood abuse must be considered under Penry regardless of the context in which it was offered at trial. FromDecision of the Day:

Here’s another Fifth Circuit decision affirming a death sentence despite a jury instruction that the U.S. Supreme Court has rejected as unconstitutional. At issue is whether Fernando Garcia is entitled to a new trial on sentencing due to a jury instruction that encouraged jurors to sentence Garcia to death despite his mitigation evidence. Although the majority concedes that the instruction is unconstitutional, it nonetheless finds a way to ignore the violation. Writing for the Court, Chief Judge Jones explains that Garcia was not in fact presenting mitigation evidence when he put on testimony about repeated instances in which he was sexually abused before the age of ten. Instead, the evidence helped to explain Garcia’s pedophilia. See the difference? Moreover, Garcia’s own lawyer told the jury that he did not expect it to sympathize with Garcia, a statement which the majority holds up as proof that Garcia did not intend to put on mitigating evidence at all. Judge Benavides dissents, pointing out the total lack of logic in today’s decision.

Miscellany

Sec. 2245. Offenses resulting in death

`(a) In General- A person who, in the course of an offense under this chapter, or sections1591,2251,2251A,2260,2421,2422,2423, or2425, murders an individual, shall be punished by death or imprisoned for any term of years or for life.'.

(4) DEATH PENALTY AGGRAVATING FACTOR- Section3592(c)(1) of title 18, United States Code, is amended by inserting `section224(offenses resulting in death),' after `(wrecking trains),'.

THE SMALL PRINT

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