Leading off this week isIn re Hearn. The Hearn opinion reflects a potential major shift in the Fifth Circuit's jurisprudence as it relates to both "late inning" stay litigation & mental retardation. On the first point counsel is appointed & a stay is granted to prepare a successive petition. On the second point, the stay is granted on a claim of mental retardation despite a test score indicating an IQ test result of 82.

Other key wins this week include,California v. Stewartwhere the court concludes that "the trial court erred in excusing five prospective jurors for cause based solely upon their checked responses and written answers on a jury questionnaire."Doss v. Mississippi, also covered in the "Hot List" section gives an excellent example of the nuts & bolts of what needs to be done both by trial & post-conviction counsel as it relates to penalty phase investigations.

Elsewhere, in a bizarre stay case from the Supreme Court, a 4-4 final vote on staying Georgia's execution of Eddie Crawford on claims relating to his actual innocence; it appears that Justices O'Connor & Breyer could not initially be reached in time to vote on at least one stay application, but that Justice Breyer was subsequently contacted in time to vote for a stay, but Justice O'Connor could not be reached . TheAmerican Bar Associationhas web posted the various briefs inRoper v. Simmonsto their website. Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. The award-winning documentary "Deadline," which takes viewers directly into the emotional and legal storm surrounding former Illinois Governor Ryan's decision to commute the death sentences of all those on death row, will air on NBC during a special 2-hour "Dateline" program at 8 p.m. on July 30th.

In the "Focus" section covers my annual review of the internet websites relating to criminal & capital defense. The big addition this year is theNinthCircuit Capital Punishment Handbook, which covers both habeas & Eighth Amendment law. Several "blawgs" (legal web logs) have also been added. If I missed something on the list that should be there please let me know so that that resource list can be updated & sent out to the list & counsel.

Two other notes relating to the site & list. The first is that the weekly website will slowly being returning to blog format to make working on it easier & more timely; during this transition I will be switching back to westlaw cites & adding some district court coverage over the course of the remainder of the summer. Second, I am being forced out on three separate one week "felony trials" in a four week period (one last week, and one each of the next two weeks), the weekly will run only if it will not impact on those trials.

This edition archived athttp://capitaldefenseweekly.com/archives/040719.htm

EXECUTION INFORMATION

Since the last edition the following people were executed in the United States:

July

19 Eddie Crawford Georgia

20 Scott Mink Ohio----volunteer

22 Mark Bailey Virginia

Pending execution dates believed to be serious include

August

5 James Hubbard Alabama

9-13 Terry Dennis Nevada----volunteer

18 James Hudson Virginia

25 Jasen Busby Texas

26 James Allridge III Texas

26 Windel Workman Oklahoma

SUPREME COURT

See above.

CAPITAL CASES (Favorable Disposition)

In re Hearn, 2004 U.S. App. LEXIS 13839 (5th Cir 7/6/2004) Motion granted to "appoint counsel to prepare his application for authority to file a successive federal habeas corpus petition, and to stay his execution pending the disposition of such petition," on claims relating to mental retardation. Intriguing language in concurrence by Judge Higginbotham.

Arizona v. Armstong, 2004 Ariz. LEXIS 91 (Az 7/16/2004) Remand for new sentencing in light of Ring v. Arizona.

California v. Stewart, 2004 Cal. LEXIS 6285 (Cal 7/15/2004) "[T]he trial court erred in excusing five prospective jurors for cause based solely upon their checked responses and written answers on a jury questionnaire."

Doss v. Mississippi, 2004 Miss. LEXIS 847 (Miss. 7/15/2004) (dissent) Evidentiary hearing granted "on the merits of his claim of ineffectiveness of counsel during the mitigation or penalty phase of his trial and his claim of mental retardation, pursuant to Atkins."

CAPITAL CASES (Unfavorable Disposition)

Harris v. Johnson, 2004 U.S. App. LEXIS 13624 (5th Cir 6/30/2004) (dissent) TRO vacated on challenges relating to lethal injection.

Sanders v. Woodford, 2004 U.S. App. LEXIS 14091 (9th Cir 7/8/2004) "The California Supreme Court neither independently reweighed aggravating and mitigating sentencing factors after it had invalidated two of the aggravating factors, nor did it conduct an appropriate harmless-error analysis. "

Jackson v. Crosby, 2004 U.S. App. LEXIS 14204 (11th Cir 7/9/2004) Since the Petitioner filed his Rule 59 motion out of time the time for filing his appeal was not tolled. Note the panel's decision appears to be ripe for the Supreme Court to address several procedural issues especially in light of a stunning concurrence by Judge Black that calls into serious question of whether death is indeed different in the Eleventh Circuit .

Arizona v. Armstong,2004 Ariz. LEXIS 90 (Az 7/16/2004) Guilt phase relief denied on prosecutorial misconduct claims including delayed disclosure of witnesses, bad faith, alleged discovery violations, personal attacks on defense counsel, & ex parte contacts with the trial court.

California v. Brown, 2004 Cal. LEXIS 6275 (Cal 7/12/2004) Relief denied on claims including: (1) reasonable doubt instructions; (2) duty to deliberate instructions; (3) the use of victim impact evidence (ex post facto & constitutionality of California scheme); (4) penalty instructions on about being guided by guilt phase instructions; & (5) validity of California's death penalty scheme under theta federal constitution & international law.

Sochor v. Florida, 2004 Fla. LEXIS 985 (FL 7/8/2004) "[T]hat trial counsel's performance was patently deficient [the majority concludes, however,] counsel's deficient performance did not prejudice the defendant's entitlement to have his plea for life presented to the jury by a competent lawyer. Among the factors that the majority overlooks is the fact that the death recommendation here, in spite of the incompetency of counsel, was not unanimous, and the fact that this Court itself later set aside the serious aggravator of CCP used to justify the sentence of death. In addition, the majority fails to acknowledge the quantitative as well as qualitative differences between the evidence presented by incompetent counsel at the penalty phase and the mitigation we now know existed but was not discovered or used. The majority has also mistakenly relied on the irrelevant guilt phase evidence of insanity and competency that was actually harmful to the defendant, to substitute for the mental health mitigation that was neither investigated nor presented at the penalty phase of Sochor's trial."

Pearce v. Florida, 2004 Fla. LEXIS 975;29 Fla. L. Weekly S 323 (FL 7/1/2004) Relief denied on claims trial counsel erred: "(1) by refusing to allow defense counsel to impeach State witness Brittingham with a previous videotaped statement; (2) in denying his motion for judgment of acquittal on first-degree murder on the element of premeditation; (3) in denying his motion for judgment of acquittal on felony murder; (4) in finding the aggravating circumstance that the murder occurred during the course of a kidnapping; and (5) in finding the cold, calculated, and premeditated (CCP) aggravating circumstance."

Berry v. Mississippi, 2004 Miss. LEXIS 802 (Miss 7/1/2004) Relief denied on resentencing on whether: (1) trial & appellate counsel were ineffective; (2) the state withheld exculpatory evidence; (3) the verdict at resentencing was in proper form; (4) it was error for the sentencing court not to allow Berry to the attack the validity of his confession; (5) the jury's ability to consider mitigating evidence was limited by jury instructions; & (6) the state's closing argument.

Ohio v. Fitzpatrick, 2004 Ohio LEXIS 1556;2004 Ohio 3167 (Ohio 7/7/2004) Relief denied on claims including: that the plea colloquy did not contain sufficient information about what rights Appellant was giving up by entering the plea, validity of guilty plea, inflammatory penalty phase photos, failure of the three judge sentencing panel to explain their decision, constitutionality of the child murder aggravating circumstance.

Ohio v. Hoffner, 2004 Ohio LEXIS 1584 (Ohio 7/14/2004) Relief denied chiefly on claims relating to Miranda & ineffective assistance of counsel as his trial attorneys used words such as “horrific” and “a terrible tragedy” in describing the crime, made only a brief opening statement & no closing argument in the guilt stage, & told jurors that giving Hoffner the lightest available sentence (life imprisonment with eligibility for parole after 20 years) would be “an insult” to the victim's family.

Grant v. Oklahoma, 2004 Okla. Crim. App. LEXIS 28 (Okla Crim App 7/16/2004) (dissent) On remand from the United States Supreme Court in light of Wiggins, relief denied on issues relating to whether "(1) his trial counsel failed to adequately investigate and present substantial mitigating evidence about his childhood and family history; and (2) the trial court erroneously refused to excuse a particular juror, resulting in the prejudicial denial of one of Grant's statutory peremptory challenges. "

Pennsylvania v. Edmiston,2004 Pa. LEXIS 1328 (PA 6/22/2004) Relief denied on "layered" ineffective assistance of counsel claims: " (1) the claim that trial counsel were ineffective in failing to conduct a reasonable investigation into appellant's background, including mental health issues, and for failing to present such evidence as additional mitigation evidence; (2) the claim that appellant was denied due process when the trial court improperly remarked on his credibility at the penalty phase and trial and subsequent counsel were ineffective in failing to object; (3) the claim that appellant was denied his rights to direct appeal "and a variety of related . . . rights" when the trial court failed to produce and trial counsel failed to request transcripts of the voir direproceedings; (4) the claim that the trial court erred in failing to instruct the sentencing jury that, if sentenced to life imprisonment, appellant would be ineligible for parole; (5) the claim that the prosecutor repeatedly misstated the law during his penalty phase summation when discussing appellant's intoxication evidence and counsel were ineffective for failing to object; and (6) the claim that the prosecutor improperly questioned appellant at the penalty phase concerning his prior arrest, trial and acquittal of sexual assault and molestation charges involving his adopted daughter."

Pennsylvania v. Harris, 2004 Pa. LEXIS 1399 (PA 6/23/2004) Relief denied on Confrontation Clause claim (trial court not permitting cross using mental health records) on procedurally defaulted. Relief also denied on claims trial counsel erred in"(1) committing further errors relating to the testimony of Ronald Caison; (2) failing to object to the prosecution's use of inadmissible "habit" evidence; and (3) entering into an erroneous stipulation before the jury. Appellant also asserts at the end of his brief that direct appellate counsel was ineffective for failing to raise the above claims."

Pike v. Tennessee, 2004 Tenn. Crim. App. LEXIS 635 (Tenn Crim App 7/15/2004) A " petitioner, under a capital sentence, may waive post-conviction review; that the hearing was in compliance with due process standards; and that the evidence supported the findings that the petitioner was competent to withdraw her post-conviction petition and that her decision to do so was voluntarily and knowingly made."

Hines v. Tennessee, 2004 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 7/14/2004) Relief denied on claims including whether: (1) trial counsel during the guilt phase were ineffective in failing to interview and effectively cross-examine Ken Jones, to object to Sheriff Weakley's participating in the voir dire of prospective jurors, to discover impeachment evidence, and ineffective as well because of their lack of experience and resources (2) trial counsel at resentencing were ineffective in failing to investigate his background, failing to present effective mitigation proof; failing to challenge the heinous, atrocious, and cruel aggravating circumstance; & failing to give a closing argument; & (3) the the state sentencing scheme is constitutional.

Ex parte Harris, 2004 Tex. Crim. App. LEXIS 1120 (Tex. Crim. App. 6/30/2004) (dissent) Motion to permit stay of execution and to file a successive state habeas petition denied.

Escamilla v. Texas, 2004 Tex. Crim. App. ---- (Tex. Crim. App. 6/30/2004) Relief denied on claims including: sufficiency, death / life qualification of the jury panel, failing to suppress a custodial videotape interview that was given to a television reporter about two days after his arrest; defendant's statements to police and medical personnel, admission of autopsy photographs & admission of evidence of extraneous offense.

Cantu v. Texas, 2004 Tex. Crim. App. ---- (Tex. Crim. App. 6/30/2004) Relief denied in near summary form on direct appeal on claims that include sufficiency of evidence to support the findings as to guilt and the penalty phase special questions; that the verdict was against the weight of the evidence; suppression of evidence & the constitutionality of the Texas death penalty scheme

HOT LIST

In re Hearn, 2004 U.S. App. LEXIS 13839 (5th Cir 5/3/2004) (dissent) Motion granted to "appoint counsel to prepare his application for authority to file a successive federal habeas corpus petition, and to stay his execution pending the disposition of such petition," on claims relating to mental retardation. Intriguing language in concurrence by Judge Higginbotham.

On March 2, 2004, Hearn filed a successive application for state post-conviction [*3] relief, claiming that he is mentally retarded and that his death sentence is cruel and unusual punishment under the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002). On March 3, 2004, the Texas Court of Criminal Appeals dismissed Hearn's application on the ground that it constituted an abuse of writ, finding that he failed to make a prima facie showing of mental retardation. Ex parte Hearn, No. 50,116-02 (Tex. Crim. App. Mar. 3, 2004). Later that day, Hearn moved the United States District Court for the Northern District of Texas for appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B), and for a stay of execution under 28 U.S.C. § 2251. The district court sua sponte transferred the motions to this Court, and Hearn filed a separate notice of appeal--asking us to reverse the transfer order, appoint counsel, and enter a stay of execution. n1 In order to thoroughly address Hearn's claim, we granted a temporary stay of execution, requested supplemental briefing, and heard oral argument.

A. Appointment of Counsel

The legality of Hearn's detention was determined on a prior application for a writ of habeas corpus. Hearn v. Dretke, 157 L. Ed. 2d 440, 124 S. Ct. 579 (2003). "Before a second or successive application [for a writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). In order to facilitate the preparation of his application for § 2244(b)(3)(A) authority, Hearn now moves this Court to appoint counsel pursuant to 21 U.S.C. § 848(q)(4)(B). n2

(1) Scope of § 848(q)(4)(B)

The Director contends that § 848(q)(4)(B) does not authorize the appointment of counsel to prepare an application for authority to file a successive habeas writ petition. We disagree.

Section 848(q)(4)(B) provides that:In any post-conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of other services in accordance with paragraphs (5), (6), (7), (8), and (9).21 U.S.C. § 848(q)(4)(B) (emphasis added). Significantly, this provision expressly incorporates subsection (q)(8), which states thateach attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pre-trial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process [*6] , together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.21 U.S.C. § 848(q)(8) (emphases added). On their face, these statutes grant indigent capital prisoners a mandatory right to qualified legal counsel and reasonably necessary legal services in all federal post-conviction proceedings. Needless to say, this is not language of limitation. n3

The expansive nature of § 848(q)(4)(B) is further evinced by the Supreme Court's decision in McFarland v. Scott, 512 U.S. 849, 129 L. Ed. 2d 666, 114 S. Ct. 2568 (1994). The question before the Court was whether a motion to appoint counsel under § 848(q)(4)(B) qualified as a "post-conviction proceeding under section 2254 or 2255," invoking the district court's jurisdiction and allowing it to appoint counsel and grant a stay of execution. The language of § 2254 and § 2255 make no reference to motions to appoint counsel, and a simple reading of the habeas statutes would lead one to believe that a motion to appoint counsel would not be a "post-conviction proceeding under section 2254 or 2255." The McFarland Court, however, heeded Congress's concern for unrepresented capital prisoners and came to the opposite conclusion, holding that the right to the appointment of counsel adheres before the filing of a formal habeas corpus petition.This interpretation is the only one that gives meaning to the statute as a practical matter. Congress' provision of a right to counsel under § 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital [*8] habeas corpus proceedings in light of "the seriousness of the possible penalty and . . . the unique and complex nature of the litigation."

. . .

Criminal defendants are entitled by federal law to challenge their conviction and sentence in habeas corpus proceedings. By providing indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty.McFarland, 512 U.S. at 855, 859 (quoting 21 U.S.C. § 848(q)(7)). The McFarland Court's explanation of Congress's intent to provide capital prisoners with habeas counsel, and its illustration of how far it was willing to go to effectuate that intent, guide our analysis in this case.

The Director asserts that the relief recognized in McFarland is limited to those capital prisoners who have not yet filed an initial habeas petition. Such a contention is without merit. While the petitioner in McFarland was indeed pursuing his first federal habeas writ, no language in the Supreme Court's [*9] opinion limits its holding to initial petitions. We note, however, that the Court did place special emphasis on the necessity of counsel during the initial investigation of potential habeas claims. McFarland explains that Congress, through § 848(q)(4)(B), granted indigent capital prisoners the opportunity to investigate and research the factual bases of possible habeas claims. Id. at 855 (discussing the right to "the services of investigators and other experts that may be critical in the pre-application phase of a habeas corpus proceeding, when possible claims and their factual bases are researched and identified"); id. at 858 (recognizing the importance of the petitioner's "opportunity" to "meaningfully research and present [his] habeas claims"). The Court found that McFarland--who was without counsel, and was pursuing previously unavailable habeas relief--was denied this opportunity to investigate the factual bases of his potential habeas claims. It seems clear to us that the McFarland Court would have been just as concerned with a capital prisoner in need of investigating a successive habeas petition, based on a claim previously [*10] unavailable to the prisoner, as it was with the capital prisoner seeking to file an initial petition. Under both scenarios, the prisoner has been denied the opportunity to conduct an initial investigation into the factual bases of a potential habeas claim.

One of our cases, however, includes language suggesting that indigent capital prisoners are never entitled to the appointment of counsel to prepare a successive habeas petition. See Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir. 2002) ("'The McFarland Court was concerned only with that period of time between the habeas petitioner's motion for the appointment of counsel and the filing of the initial petition.' Thus, McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.") (quoting Turner v. Johnson, 106 F.3d 1178, 1182 (5th Cir. 1997)). n4 While such a statement, taken by itself, strongly supports the Director's position, its authoritative value is significantly diminished when read in the proper context.

The issue before the Kutzner Court was whether the petitioner was entitled to counsel pursuant to § 848(q)(4)(B) in light of McFarland. Kutzner begins its analysis by recognizing that the "core concern of McFarland [is] that an un-counseled prisoner would be required to 'proceed without counsel in order to obtain counsel and thus would expose himself to the substantial risk that his habeas claim never would be heard on the merits' . . . ." 303 F.3d at 338 (quoting McFarland, 512 U.S. at 856). The Court then reviewed the facts of Kutzner's case, and found that he was equipped with competent counsel throughout the entire habeas process. Id. ("Kutzner was well-represented by qualified counsel . . . [and] current counsel has represented Kutzner for over a year"). The Court also reasoned that his "original § 2254 petition was fully litigated on the merits." Id. at 338. The opinion takes particular note that Kutzner had been long-aware of the Brady material and false testimony alleged in his proposed petition, and that he was not seeking relief pursuant to a new rule of constitutional law. Id. at 336, 337. Based [*12] on these findings, the Court ultimately concluded that Kutzner's situation did not implicate the "core concern" of McFarland, and that his request for counsel should be denied accordingly.

We read Kutzner as holding that the relief enunciated in McFarland does not apply to successive habeas petitioners who had been afforded sufficient opportunities to investigate the factual bases of their proposed claim. The statement of law cited by the Director, limiting McFarland to initial petitions, is not an alternative rationale supporting this narrow fact-based holding. n5 It would be illogical to find otherwise, as this statement of law would wholly subsume, rather than facilitate, the Court's analysis of whether Kutzner enjoyed an opportunity to raise his habeas claim in an earlier petition. Moreover, the contested statement of law does not stand by itself as an alternative holding. The statement is found in the final sentence of a paragraph that addresses the wholly distinct subject of Kutzner's foregone opportunities to raise habeas claims. Further, the Court does not expressly apply the contested statement of law to the facts of Kutzner's case. This absence of analysis [*13] is particularly striking in light of the Court's detailed discussion, in the preceding sentences, whether McFarland's "core concern" is implicated by the petitioner's situation.

We find, after reading Kutzner in its proper context, that its limitation on McFarland does not constitute an alternative rationale or an alternative holding, but rather a mere "judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential." Black's Law Dictionary 1100 (7th ed. 1999) (defining "obiter dictum"); see also Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385-86 (5th Cir. 1998) ("That which is 'obiter dictum' is stated only 'by the way' to the holding of a case and does not constitute an essential or integral part of the legal reasoning behind a decision.") (internal quotations omitted). Further, we do not find such dictum persuasive because it contravenes McFarland's intent to provide indigent capital prisoners with the opportunity to conduct--at the very least--a single, cursory investigation into the factual bases of each potential habeas claim.

Upon review of the statutory language, McFarland, and the prior decisions of this Circuit, we hold that courts are not barred from appointing § 848(q)(4)(B) counsel to prepare [*15] an application for authority to file a successive habeas petition. We now proceed to a discussion of whether the petitioner in the case sub judice is entitled to such relief.

(2) Hearn's opportunity to investigate the factual bases of his Atkins claim

The Director asserts that Hearn's motion for § 848(q)(4)(B) counsel should be denied on the ground that Hearn, like the prisoner in Kutzner, had a sufficient opportunity to investigate the factual bases of his proposed habeas claim. We disagree. Hearn's proposed successive petition will seek habeas relief pursuant to the new constitutional rule created in Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002). Atkins, however, had not yet been decided when Hearn filed his initial habeas petition. Although Atkins was issued while Hearn's first petition was pending in federal court, Texas's habeas-abstention procedure--which barred the filing of a state petition while a habeas writ was pending in federal court--effectively precluded him from seeking Atkins relief until his initial habeas petition was disposed of by the federal courts. See discussion infra Part II.A(4).

Upon the [*16] denial of his initial federal habeas petition, Jan Hemphill withdrew from her representation of Hearn. Put plainly, Hearn lost his court-appointed habeas counsel on the very day he became eligible to raise his Atkins claim. Hearn made various efforts to persuade Hemphill to file a successive writ petition, and even dispatched family members to the federal district court and Texas Attorney General's Office in an effort to compel her to investigate a successive claim. When all else failed, Hearn promptly contacted his current pro bono counsel, who conducted an expedited investigation into Hearn's records and brought such evidence before this Court. We find that Hearn has made a sufficient showing that Texas's habeas-abstention procedure, and the unavailability of qualified habeas counsel after the disposition of his initial petition, denied him the opportunity to sufficiently investigate the factual bases underlying his Atkins claim.

(3) Hearn's showing of mental retardation

The Director maintains that, even if Hearn were, in fact, denied an opportunity to investigate the factual bases of his Atkins claim, we should withhold § 848(q)(4)(B) counsel on the ground [*17] that Hearn has failed to make the requisite prima facie showing of mental retardation. n6 Such an assertion is without merit. Because § 848(q)(4)(B)--read in conjunction with McFarland--affords counsel to prisoners to prepare federal habeas petitions, "a substantive, merits assessment of the petition is irrelevant to the appointment of counsel." Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996); see Barnard v. Collins, 13 F.3d 871, 879 (5th Cir. 1994) ("On its face, § 848(q)(4)(B) does not condition the appointment of counsel on the substantiality or non-frivolousness of petitioner's habeas claim."). As a result, a prisoner's motion for counsel to investigate and prepare a successive Atkins claim need only be supported by a colorable showing of mental retardation. n7

We hold that Hearn has met this modest evidentiary threshold. For instance, Hearn has presented school records showing that he failed first grade, and that his marks often hovered in the 50s (or below) despite his regular attendance. He further proffered evidence that his score on the state-administered Weschler Adult Intelligence Scale-Revised ("WAIS-R") Short-form test--taking into account its inherent band of error--falls within the upper range of scores indicating mild mental [*19] retardation. n8 Hearn also presents a note from Hemphill stating her belief that he was "not very intelligent--maybe below normal." n9 He further cites the trial testimony of a family member to demonstrate his compromised social skills. n10 We find that this evidence, while certainly insufficient to establish a prima facie case of mental retardation, nonetheless presents a colorable claim of mental retardation sufficient to justify the appointment of counsel to investigate and prepare a § 2244(b)(3)(A) application.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n8 Hearn scored an 82 on the WAIS-R Short-form test. "The basic requirement for any short-form is a minimum correlation of .90 with the full administration. . . . With a .90 correlation, two-thirds of the IQs will fall within 9 points of a person's actual IQ and a full one-third will be 10 or more points away from the actual IQ." GARY GROTH-MARNAT, HANDBOOK OF PSYCHOLOGICAL ASSESSMENT 200 (3d ed. 1999). Due to the Short-form's substantial margin of error, we find that Hearn may have an IQ "between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition." Atkins, 536 U.S. at 309 n.5. [*20]

- - - - - - - - - - - - End Footnotes- - -- - - - - - - - - - - -

(4) Hearn's showing of rare and equitable circumstances

The Director lastly contends that Hearn's motion for counsel should be denied because his eventual Atkins claim will be time-barred. It is true that potential procedural bars may be so conclusive that the right to counsel under § 848(q)(4)(B) becomes unavailable. See Cantu-Tzin v. Johnson, 162 F.3d 295, 298-99 (5th Cir. 1998); [*21] Barnard, 13 F.3d at 879. This Court in Cantu-Tzin explained that the "appointment of counsel for a capital-convicted defendant would be a futile gesture if the petitioner is time-barred from seeking federal habeas relief." 162 F.3d at 299. Hearn cannot bring his Atkins claim within the one-year statute of limitations dictated by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). n11 The AEDPA limitations period, however, is subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Hearn contends that Texas's habeas-abstention procedure, known as the "two-forum rule," presented a rare and exceptional circumstance that precluded him from raising an Atkins claim.

Texas state law has traditionally barred prisoners from having pending habeas litigation in both state and federal courts. Through its judicially-created two-forum rule, Texas prevented petitioners from lodging a mixed petition in federal court and simultaneously returning to state court, or having a federal court hold a petition in abeyance while further state court remedies were sought. See generally Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App. 1977) ("A petitioner must decide which forum he will proceed in, because [the Texas Court of Criminal Appeals] will not, and a trial court in this State should not, consider a petitioner's application so long as the federal courts retain jurisdiction over the same matter."). n12

On February 11, 2004, the Texas Court of Criminal Appeals expressly modified the two-forum rule, enabling Texas courts to consider the merits of a subsequent writ application once a federal court stays the federal habeas proceedings. Ex parte Soffar, 2004 Tex. Crim. App. LEXIS 200, No. 29,890, 2004 WL 245190 (Tex. Crim. App. Feb. 11, 2004). The court in Soffar reasoned:Because of the strict one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the application of [the two-forum rule], combined with the federal exhaustion requirement, may lead to unintended and unfortunate consequences. The problematic situation is when the Supreme Court announces a "watershed" procedural or substantive change in the law which applies retroactively to all cases, even those on collateral review. Atkins v. Virginia seems to be one such case.2004 Tex. Crim. App. LEXIS 200, [WL] at *3.

By June 20, 2003, the date the AEDPA limitations period for Atkins claims expired, Hearn had already filed his initial federal habeas petition, and he was awaiting this Court's ruling on his application for a COA. If Hearn had petitioned for Atkins relief in Texas court, he would [*24] have been compelled to move the federal court to dismiss without prejudice his then-pending federal petition. Such a dismissal likely would have time-barred Hearn from later asserting the claims in his pending federal petition. See Duncan v. Walker, 533 U.S. 167, 172, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (2001) (stating that the AEDPA limitations period is not tolled during the pendency of a federal habeas petition). On the other hand, because Hearn waited to file his Atkins claim until the disposition of his then-pending federal habeas proceeding, he faced Texas's assertion of a time bar on his Atkins claim. The two-forum rule appears to have effectively forced Hearn to choose between federal review of his pending writ petition and his right to pursue successive habeas relief under Atkins.

The Director contends that equitable tolling is improper because--four months prior to Soffar--the Texas Court of Criminal Appeals implicitly negated the two-forum rule when it remanded a petitioner's Atkins claim for review on the merits even though that petitioner had a writ pending in federal court. Ex parte Smith, No. 40,874-02 (Tex. Crim. App. Oct. 8, 2003). This argument [*25] is without merit. One petitioner's willingness to jeopardize review of his pending federal habeas petition in order to file an Atkins claim does not mean that all others must. For instance, it is plausible that the petitioner in Smith was prepared to sacrifice review of his federal writ petition because it was comprised of frivolous claims. Moreover, the Texas Court of Criminal Appeals's decision to remand one case for review on the merits, absent any express criticism of the governing two-forum rule, does not undermine decades of Texas precedent reinforcing the preclusive effect of that rule. Although it is not apparent that the AEDPA limitations period must be equitably tolled on Hearn's behalf, we find that the facts relevant to this analysis are in dispute such that Hearn is entitled to counsel to investigate and prepare a tolling claim.

As discussed above, Hearn has made sufficient showings that he was not afforded an opportunity to investigate his Atkins claim, that he is in fact mentally retarded, and that his potential Atkins claim is not time-barred. This case therefore implicates the "core concern of McFarland . . . 'that an un-counseled prisoner [*26] would be required to proceed without counsel in order to obtain counsel and thus would expose himself to the substantial risk that his claim would never be heard on the merits' . . . ." Kutzner, 303 F.3d at 338 (quoting McFarland, 512 U.S. at 856). As a result, we hold that Hearn is entitled to the appointment of counsel and reasonably necessary services under § 848(q)(4)(B) to investigate and prepare his application for authority to file an Atkins claim.

B. Stay of Execution

Hearn also moves this Court for a stay of execution to provide his appointed counsel with sufficient time to prepare an application for authority to file his Atkins claim. The Director contends that this Court is not authorized to grant a stay of execution because a writ of habeas corpus is currently not pending before this Court as required by 28 U.S.C. § 2251. The Director's claim is meritless. The Supreme Court in McFarland held that a habeas proceeding is pending before a court, for the purposes of staying an execution, once a capital prisoner moves for the appointment of habeas counsel pursuant to § 848(q)(4)(B). 512 U.S. at 856. [*27] The McFarland Court explained that the pre-application appointment of counsel alone, without the time to adequately develop the facts and brief the claims, renders the statutory guarantee of counsel an empty promise. Id.

In accordance with the reasoning of McFarland, we find that a stay of execution is imperative to ensure the effective presentation of Hearn's application for authority to file his Atkins claim. Because Hearn was not dilatory in his search for counsel, and the stay of execution will not substantially harm the State of Texas, the preliminary stay ordered March 4, 2004, is hereby extended to provide Hearn's counsel with sufficient time to prepare an application for § 2244(b)(3)(A) authority.

CONCUR: PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring.

I concur fully in Judge Clement's opinion. Hearn is on death row in Texas. He does not have counsel. The Texas Defender Service, lacking the resources to undertake the representation of Hearn and aware that Hearn's date of execution was looming, asked the federal district court to stay the execution and appoint counsel to develop his claim that he is mentally retarded and ineligible for execution. This case reached the panel only hours before the execution. We granted a stay to allow sufficient time to properly decide the request. We found the case sufficiently complex and uncertain that additional briefs and oral argument were requested. The dissent now "regrets" not dissenting from that stay.

I remain convinced that the stay was proper and that this prisoner is entitled to a lawyer and an opportunity to investigate and present any claim of retardation that he may have. I am not prepared to hold that he must first make a prima facie case that he is retarded to be entitled to a lawyer to [*29] make that case. The dissent argues just that and is prepared to disregard a filed affidavit as incompetent evidence. This approach has it backwards. We don't have enough evidence to peg Hearn's ability. What little "evidence" that has been presented is equivocal and needs explanation. If the record before us is all that Hearn can produce before the district court with the assistance of a lawyer, I would quickly agree that it falls far short of a prima facie showing. There is enough, however, to warrant development as Judge Clement explains. As best I sift from its rhetoric, the dissent would hold that a prisoner on death row with no lawyer must make a prima facie case that he is so retarded that he cannot be executed in order to have the benefit of counsel.

We are instructed that we must take this approach or face the fact that every person on death row with no lawyer but with colorable claims of retardation would be entitled to a lawyer. I do not see that as a frightening possibility. Rather, that it is being urged by the dissent as such is a chilling comment on the confused state of the law of capital punishment in this circuit.

The dissent would run the one year clock on Hearn [*30] during the time he had no lawyer. If there is a doctrine of equitable tolling, it must not tolerate a limitations bar to a retarded prisoner awaiting execution and without counsel. It is no answer to assert that Hearn is not retarded unless we are prepared to dispense with lawyers and hearings.

But, it is argued, Hearn did have counsel for part of the time. The dissent has no answer for the fact that during that period of representation a claim of retardation could not have been filed, given the two-forum rule Texas then adhered to. The dissent in a footnote asserts, with no authority, that Texas was never serious about that rule, passing over the fact that much later, Texas, recognizing the plight it created for petitioners such as Hearn, abandoned it. The dissent says the two-forum rule was never real.

The dissent accuses the majority of ignoring circuit precedent, Judge Davis's opinion in Kutzner and Judge Politz's opinion in Turner. It bears mention that neither petitioner in these cases had an available writ path. The panel in Kutzner pointedly observed that the petitioner had no right to pursue a successive writ with a claim that did not rely upon a new rule of [*31] constitutional law. Petitioners had counsel in both cases at all relevant times and neither petitioner presented Akins claims.

This is not an easy case. The state has been represented at all times by counsel and has full access to prisoner records and other resources to reply to this claim. I cannot be so dismissive of Hearn's statutory right as to refuse him a lawyer when at the least there is enough to warrant examination. If there is nothing there, as the dissent seems to know, the district court will so conclude. In the end I have more confidence in facts decided by an Article III trial judge with competent counsel before him than those determined on appeal by appellate judges.

California v. Stewart, 2004 Cal. LEXIS 6285 (Cal 7/15/2004) "[T]he trial court erred in excusing five prospective jurors for cause based solely upon their checked responses and written answers on a jury questionnaire."

A. Excusal of prospective jurors for cause

Defendant contends the trial court erroneously excused five prospective jurors for cause, based solely upon their written answers to a jury questionnaire concerning their views relating to the death penalty, and without any opportunity for follow-up questioning during which the court and counsel might have been able to clarify the responses and determine whether, in fact, the prospective jurors were disqualified from service.

As we observed in People v. Cunningham (2001) 25 Cal.4th 926 (Cunningham), decisions of the United States Supreme Court and this court establish that “[a] prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would ‘ “prevent or substantially impair” ’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. (Wainwright v. Witt [supra] 469 U.S. 412, 424; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey (1992) 2 Cal.4th 408, 456.)[] ‘ “ ‘ A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” [Citation.] In addition, “ ‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ [Citations.]” ’ [Citation.]” (Cunningham, supra, 25 Cal.4th 926, 975; see also People v. Heard (2003) 31 Cal.4th 946, 958 (Heard).)

Applying these standards in this case, we conclude, for the reasons set forth below, that the trial court erred in excusing five prospective jurors for cause based solely upon their checked responses and written answers on a jury questionnaire.

The trial court, with input from counsel, prepared a 13-page written questionnaire for completion by the prospective jurors. Before distributing the questionnaire, the court orally advised the assembled prospective jurors concerning “essential . . . background . . . on the case and the procedure to be followed.” The court explained that the prospective jurors would be asked “some questions regarding the death penalty” because the death penalty was a possibility in the case, and the court was obligated to determine whether each prospective juror could be “be fair to both the prosecution and to the defendant concerning the question of punishment, if we get to that decision.” The court proceeded to explain that the case would proceed with a guilt phase — at which the jury would be asked to determine whether, beyond a reasonable doubt, defendant is guilty of the charged offenses, and whether any defined special circumstance is true. The court explained that only if the jury found guilt, and found an alleged special-circumstance allegation true, would the jury address a second, or penalty, phase of the trial, at which point the jury would be “asked to select — to choose — between two possible penalties: the death penalty or life [imprisonment] without possibility of parole.” The court explained that the prosecution at a penalty phase might offer aggravating evidence and the defendant might offer mitigating evidence, and continued: “Now, the jury, in the penalty phase, is not asked simply to do a mechanical weighing of these aggravating and mitigating circumstances. It’s not putting them on an imaginary scale and seeing which way it tips. The jury is free to assign whatever moral or sympathetic value it deems appropriate to each and all of the various factors that it is allowed to consider in the choice of penalty decision.” The court then asked each prospective juror to complete a questionnaire and leave it with the court’s bailiff.

Question No. 35 — the only question that focused on prospective jurors’ views concerning the death penalty — read in relevant part as follows:

“As explained during the orientation, the Court is asking questions regarding your opinions about the death penalty because one of the possible sentences for a person convicted of the charges the prosecution has filed is the penalty of death. Thus, the Court must determine whether you could be fair to both the prosecution and the defendant if you should ever be called upon to make a decision as to the choice of penalty in this case.

“By asking these questions, the Court is not suggesting in any way that the charges are true and that the only question the jury will have to decide is whether the penalty is to be life imprisonment without parole or death in the gas chamber. It is only because the case could involve such a decision, that the Court must ask you about your opinions on this subject even though it may never be required in this trial. With these comments in mind, please answer the following questions. If you don’t understand the question, please so indicate.

“(1) Do you have a conscientious opinion or belief about the death penalty which would prevent or make it very difficult for you:

“(a) To find the defendant guilty of first degree murder regardless of what the evidence might prove? ( ) Yes ( ) No

“(b) To find a special circumstance to be true, regardless of what theevidence might prove? ( ) Yes ( ) No

“(c) To ever vote to impose the death penalty?

( ) Yes ( ) No

“If your answer to (a), (b) or (c) is ‘Yes,’ please explain [in the space provided].”

After the prospective jurors completed their questionnaires and the results were shared with the court and counsel for both parties, the court met with counsel, out of the presence of the prospective jurors, to rule on a number of stipulated challenges for cause — that is, the elimination of those prospective jurors who both counsel agreed should be excused for cause. At the outset, the prosecutor asked for clarification that “[t]he court is anticipating making at least some rulings with respect to cause based upon exclusively the — what would be fairly characterized as ‘unambiguous’ answers in the questionnaire.” The court confirmed that intention but commented that an ambiguous response “would have to be cleared up” by questioning the prospective juror. Defense counsel, expressing no objection to this general plan, concurred in the court’s assertion that “the ambiguous ones . . . — they’re going to have to be done individually.” A short while later, the court reiterated its plan, stating that, with regard to prospective jurors as to whom the questionnaires showed “ambiguous responses, those persons can either be deferred to our afternoon or tomorrow’s session . . . .’ ”

The court proceeded to grant 17 stipulated challenges for cause, based solely upon each prospective juror’s written responses to the questionnaires. The court deferred ruling on three prospective jurors whom defendant wished to challenge for cause, commenting that “the answers in the questionnaire do not on their face give rise to a challenge for cause” and that “we’re just going to have to see what they say when we talk to them.” The court then turned its attention to the prospective jurors whom the prosecutor, alone, wished to challenge for cause.

The prosecutor challenged Juror No. 8 “for cause based upon the questionnaire.” That prospective juror had checked “No” in response to question No. 35(1)(a) and (b), thereby indicating that he or she did not “have a conscientious opinion or belief about the death penalty which would prevent or make it very difficult” to find defendant guilty of first degree murder, or to find a special circumstance to be true, “regardless of what the evidence might prove.” But Prospective Juror No. 8 also had checked “Yes” with regard to question 35(1)(c) — thereby indicating that he or she had a “conscientious opinion or belief about the death penalty which would prevent or make it very difficult” to “ever vote to impose the death penalty.” In addition, in response to the questionnaire’s direction to “explain” any “Yes” answer, Prospective Juror No. 8 had written, “I do not believe a person should take a person’s life. I do believe in life without parole.”

The court asked to hear the view of defense counsel, who objected to excusal for cause on the basis that “because of the global nature of the [question 35](1)(c) inquiry,” coupled with the written response, there existed ambiguity as to whether the prospective juror would be able to serve and “follow the instructions of the court.” The court summarily dismissed these concerns, ruling immediately as follows: “All right. I’m satisfied that this is an unambiguous expression of opinion here especially with the added handwritten portion that says, ‘I do not believe a person should take a person’s life.’ ”

Thereafter the prosecutor also challenged juror Nos. 53, 59, 93, and 122, each of whom, like Prospective Juror No. 8, had checked “No” in response to question 35(1)(a) and (b), and had checked “Yes” with regard to question 35(1)(c). In response to the direction to “explain” any “Yes” answer, Prospective Juror No. 53 wrote: “I am opposed to the death penalty.” Prospective Juror No. 59 wrote: “I do not believe in capit[a]l punishment.” Prospective Juror No. 93 wrote: “In the past, I supported legislation banning the death penalty.” Prospective Juror No. 122 wrote: “I don’t believe in irrevers[i]ble penalties. A prisoner can be released if new information is found.”

Again, defense counsel objected to each of the prosecutor’s motions for excusal for cause on the ground that the checked answers and brief written comments left ambiguity as to whether each prospective juror would be able to serve and follow the instructions of the court, notwithstanding his or her personal opposition to the death penalty. As to each objection, the court found the juror’s checked answer and brief written response to be clear and unambiguous, and granted the challenge for cause.

On appeal, defendant asserts that each of the trial court’s rulings granting the prosecution’s five for cause challenges was erroneous. We agree that the trial court erred in excluding these prospective jurors on the basis of their questionnaire responses alone.

Before granting a challenge for cause concerning a prospective juror, over the objection of another party, a trial court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would “prevent or substantially impair” the performance of his or her duties (as defined by the court’s instructions and the juror’s oath) (Witt, supra, 469 U.S. 412, 424) “ ‘ “ ‘in the case before the juror’ ” ’ ” (People v. Ochoa (2001) 26 Cal.4th 398, 431 (italics omitted)).

The prosecution, as the moving party, bore the burden of demonstrating to the trial court that this standard was satisfied as to each of the challenged jurors. (Witt, supra, 469 U.S. 412, 423 [“As with any other trial situation where an adversary wishes to exclude a juror because of bias, . . . it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality . . . . It is then the trial judge’s duty to determine whether the challenge is proper.”].) In resting its motion solely upon the prospective jurors’ checked answers and brief written comments on the juror questionnaire, the prosecution apparently acted on the premise that those answers and comments were fully adequate, standing alone, to support a determination by the court that each prospective juror’s views would prevent or substantially impair the performance of his or her duties as a juror in the case before the juror. As we shall explain, this premise was mistaken.

As noted above, question No. 35(1)(c) asked each prospective juror whether his or her conscientious opinions or beliefs concerning the death penalty would either “prevent or make it very difficult” for the prospective juror “to ever vote to impose the death penalty.” (Italics added.) In light of the gravity of that punishment, for many members of society their personal and conscientious views concerning the death penalty would make it “very difficult” ever to vote to impose the death penalty. As explained below, however, a prospective juror who simply would find it “very difficult” ever to impose the death penalty, is entitled — indeed, duty-bound — to sit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performance of his or her duties as a juror.

Decisions of the United States Supreme Court and of this court make it clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt, supra, 469 U.S. 412. In Lockhart v. McCree (1986) 476 U.S. 162, 176 (Lockhart), the high court observed that “[n]ot all those who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Similarly, in People v. Kaurish (1990) 52 Cal.3d 648, 699 (Kaurish), we observed: “Neither Witherspoon[ v. Illinois (1968) 391 U.S. 510] nor Witt, [supra, 469 U.S. 412,] nor any of our cases, requires that jurors be automatically excused if they merely express personal opposition to the death penalty. The real question is whether the juror’s attitude will ‘ “ prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ (Wainwright v. Witt, supra, 469 U.S. at p. 424, fn. omitted.) A prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law. A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.” (Italics added.)

Kaurish, supra, 52 Cal.3d 648, recognizes that a prospective juror may not be excluded for cause simply because his or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would make it very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinions or beliefs concerning the death penalty would make it very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will “substantially impair the performance of his [or her] duties as a juror” under Witt, supra, 469 U.S. 412. In other words, the question as phrased in the juror questionnaire did not directly address the pertinent constitutional issue. A juror might find it very difficult to vote to impose the death penalty, and yet such a juror’s performance still would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law.

It follows that a qualified juror might well answer “Yes” to the inquiry posed in question No. 35(1)(c), and yet, in response to brief follow-up questioning, persuasively demonstrate an ability to put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence. Such a prospective juror would not be substantially impaired in performing his or her duties as a juror. The record here, however, suggests that the trial court erroneously equated (i) the nondisqualifying concept of a very difficult decision by a juror to impose a death sentence, with (ii) the disqualifying concept of substantial impairment of a juror’s performance of his or her legal duty, and failed to recognize that question No. 35(1)(c), standing alone, did not elicit sufficient information from which the court properly could determine whether a particular prospective juror suffered from a disqualifying bias under Witt, supra, 469 U.S. 412, 424.

Nor did the brief written answers supplied by the five prospective jurors, considered in conjunction with their checked answers to question No. 35, provide an adequate basis upon which to dismiss any of those jurors for cause.

In concluding that all five prospective jurors (Nos. 8, 53, 59, 93, and 122) were erroneously excused for cause based solely upon the combination of their checked answers to question No. 35(1)(c) and their brief written comments, we need not and do not hold that a trial court never may properly grant a motion for excusal for cause over defense objection based solely upon a prospective juror’s checked answers and written responses contained in a juror questionnaire. We are, however, unaware of any authority upholding such a practice. In United States v. Chanthadra (10th Cir. 2000) 230 F.3d 1237 (Chanthadra), the United States Court of Appeals for the Tenth Circuit — while explicitly reserving judgment on the broad question of whether a trial court always has an obligation “to voir dire prospective jurors before removing them for cause based on their views on the death penalty” (id., at p. 1269) — found it necessary to reverse a death penalty judgment after the trial court, over objection, excused nine jurors for cause, based solely upon the jurors’ responses to a juror questionnaire. The court in Chanthadra, reviewing the record with respect to only one of those prospective jurors, found that the prospective juror’s written responses, in and of themselves, did not establish that the juror was disqualified to serve under the standard set forth in Witt, supra, 469 U.S. at page 424 (id., at pp. 1270-1272) and thus found that the trial court erred by granting the challenge. (Id., at p. 1272; cf. State v. Anderson (Ariz. 2000) 4 P.3d 369, 372-379 (Anderson) [finding error in excusing three jurors over objection for cause based solely upon each juror’s responses to a juror questionnaire].)

Like the court in Chanthadra, supra, 230 F.3d 1237, 1272, we do not suggest that all or indeed any of the prospective jurors at issue in this case eventually would have withstood a properly adjudicated challenge for cause. We simply do not know how these potential jurors would have responded to appropriate clarifying questions posed to them by the trial court. Had the trial court conducted a follow-up examination of each prospective juror and thereafter determined (in light of the questionnaire responses, oral responses, and its own assessment of demeanor and credibility) that the prospective juror’s views would substantially impair the performance of his or her duties as a juror in this case, the court’s determination would have been entitled to deference. (Witt, supra, 469 U.S. 412, 426-430; see, e.g., People v. Ervin, supra, 22 Cal.4th 48, 70-71 [deferring to trial court’s finding, based upon voir dire responses and prospective jurors’ demeanor, that prospective jurors had demonstrated inability to impose death penalty]; Chanthadra, supra, 230 F.3d 1237, 1269-1270.)

In response to the trial court’s request for proposed juror questionnaire language, defense counsel submitted four death qualification questions, the last of which employed the phase, “very hard — if not impossible.” But the context in which that phase was suggested by defense counsel to the trial court was significantly different from the context in which the trial court’s revised phrasing, “prevent or make it very difficult,” ultimately was employed. It is clear that the prospective jurors’ answers to written questions — however phrased — never were intended by defense counsel to provide the sole information upon which the trial court would base its determination of contested challenges for cause. Indeed, as noted above, the trial court repeatedly had confirmed during pretrial discussions that it would undertake appropriate oral voir dire of jurors who were challenged for cause. In suggesting questionnaire language at the trial court’s specific behest, there is no indication that defense counsel contemplated that the trial court subsequently would rely solely upon the juror questionnaires and refuse to conduct any oral voir dire before ruling on the People’s five contested for-cause challenges.

Accordingly, we perceive no basis upon which to conclude that defendant is procedurally barred from raising the claim that the trial court erred by granting the People’s contested challenges for cause, based solely upon the prospective jurors’ answers to question No. 35(1)(c) as phrased, and their brief written responses.

For the reasons set forth above, we conclude that the record does not support the trial court’s excusals for cause under the governing legal standard (Witt, supra, 469 U.S. 412, 424), and that under the compulsion of United States Supreme Court cases this error requires reversal of defendant’s death sentence, without inquiry into prejudice. (See Davis v. Georgia, supra, 429 U.S. 122, 123; Gray v. Mississippi, supra, 481 U.S. 648, 659-667 (opn. of the court); id., at pp. 667-668 (plur. opn.); id., at p. 672 (conc. opn. of Powell, J.); People v. Ashmus (1991) 54 Cal.3d 932, 962; accord, Chanthadra, supra, 230 F.3d 1237, 1272-1273, 1275.)

As in another recent case (Heard, supra, 31 Cal.4th 946), we are troubled by this result because the error here at issue easily could have been avoided. In essence, the penalty judgment in this matter was doomed from the inception, merely because the trial court failed to take the extra few minutes that would have been required to clarify the ambiguity inherent in the questionnaire responses of the five excused prospective jurors. (Id., at p. 968.) Such an outcome should be avoided in future trials, not only through the conduct of the trial court, but also through the proper involvement of counsel, who have since 2001 enjoyed expanded rights to participate in oral voir dire. (See Code Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § 1.)

Although the penalty judgment must be reversed on this basis, past decisions make it clear, contrary to defendant’s assertions, that error under Witt, supra, 469 U.S. 412, 424, does not require reversal of the guilt judgment or special circumstance finding. (Heard, supra, 31 Cal.4th 946, 972-982 [reversing penalty phase judgment for erroneous exclusion of prospective juror for cause, but affirming guilt judgment and special circumstance findings]; see Lockhart, supra, 476 U.S. 162, 173-184 [rejecting assertion that exclusion of “guilt phase includables” at the guilt phase of a bifurcated capital trial offends constitutional “fair-cross-section” or “impartial jury” guarantees]; People v. Ashmus, supra, 54 Cal.3d 932, 956-957 [same, under both federal and state law].) Defendant has not provided any persuasive basis upon which to reconsider that authority or view the trial court’s error as a “structural defect” that impugned the entire proceeding below. Accordingly, we proceed to consider defendant’s remaining claims relating to the guilt judgment and the special circumstance finding.

Doss v. Mississippi, 2004 Miss. LEXIS 847 (Miss. 7/15/2004) (dissent) Evidentiary hearing granted "on the merits of his claim of ineffectiveness of counsel during the mitigation or penalty phase of his trial and his claim of mental retardation, pursuant to Atkins."

Doss relies first on the affidavit of his trial attorney who states that: Doss's was the first case he had defended where the death penalty was sought; he did not seek any school, medical, mental health or other records, because he did not realize the importance of the records in presenting a defense during the sentencing phase; he did not seek advice from a mental health expert, funds for a mental health expert or any kind of mental health evaluation; and he did not obtain any records resulting from the investigation of criminal charges against Doss in Shelby County, but he did obtain the indictment and judgment in that case. Bailey also obtained the appointment of an investigator, Kelvin Winbush, who was also the investigator for Doss's co-defendant, Frederick Bell. Bailey stated that Winbush told him he had interviewed: Doss's aunt, Lillie Moore; Doss's sisters, Lucretia Monger and Mavis McCaster; Doss's brothers, Marvin Doss and Randy Doss; and John Westmoreland and that all stated that Doss was a good and/or quiet person who got involved with the wrong crowd. Bailey did not follow up with these witnesses or ask them to testify at the sentencing phase. Bailey stated that Winbush told him he had contacted two teachers in Bruce, a Mrs. Parker and a Coach Smith, but it was questionable as to whether these people actually knew Doss, or whether they had mistaken him for Frederick Bell. Bailey did not realize that a conflict might result from using Winbush, where one of Bailey's potential defense strategies was to blame Bell as the instigator of the shooting. Bailey states that he interviewed only Doss's mother and an aunt for a few minutes. Bailey states that he felt he did a good job in defending the case at the guilt phase, but that he did not know what he was doing as to the sentencing phase.. . .

Carolyn Watkins, the public defender who handled Doss's murder charge in Shelby County, states in an affidavit that she obtained school records for Doss from Chicago; Doss's medical records from Chicago, including records involving a 1986 head injury; and the 1988 psychological report done at the University of Mississippi. She states that Lee Bailey never requested these records.

Doss attaches the affidavits of his mother, Sadie Doss; Verlene Forest Williams, a woman who became friends with Doss during his imprisonment; Carolyn Phillips, an aunt; Ernestine Williams, an aunt; Lucretia Monger, ; Randy Doss, ; Roselyn Monette Jackson, Doss's aunt; Mary Jennings, Doss's aunt; John Westmoreland, who had been married to Doss's aunt; Annette James, a girlfriend; Marvin Doss, Anthony's half-brother; Q.T. Doss, a family member; Lillie Moore, ; Sandra Price, a daughter of Sam "Joe" Brown, who lived with Doss's mother in Chicago; Chantay Price, Sandra Price's sixteen-year-old daughter; Varnado McDonald, step-sister of Lucretia Monger; Carrie Cole, Doss's aunt; Rosie Caldwell, a friend of Doss's mother; and Sam Phillips, Doss's biological father. The affiants say that Doss was shy and quiet, not a violent person; that there were times when Doss seemed to go into a seizure or trance of some kind, when he did not respond to people; that he had mental or medical problems that began with his mother's drinking and drug use during her pregnancy with him, followed by lead poisoning and head injuries during Doss's childhood; that mental illness seemed to run in the Doss family; that Doss was easily led by Frederick Bell, who was a bad, violent person and came from a violent family; that Doss began to run with a bad crowd when he moved from Chicago to Mississippi; that Doss's birth and upbringing in Chicago were riddled with crime, drug abuse and poverty. Specifically mentioned and blamed for much of the misfortune suffered by Doss and his family in Chicago was Sam Brown, who lived with Doss's mother. Doss apparently believed for much of his early life that Sam Brown was his biological father. According to various affidavits, Sam Brown was violent and abusive toward Doss, his mother and the rest of the family; he took what little money the family had to buy drugs and gamble; and he sold drugs and introduced the children in the family to drugs.

In Wiggins v. Smith , 539 U.S. 510,123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), the United States Supreme Court found that prejudice resulted from counsel's failure to discover and present mitigating evidence. Doss relies on Davis v. State , 743 So.2d 326, 329 (Miss. 1999), in which this Court stated: "[W]hile attorneys will be granted wide discretion as to trial strategy, choosing defenses and calling witnesses, a certain amount of investigation and preparation is required. Failure to call a witness may be excused based on the belief that the testimony will not be helpful; such a belief in turn must be based on a genuine effort to locate or evaluate the witness, and not on a mistaken legal notion or plain inaction." This Court granted Davis leave to proceed on that issue where his attorney called three witness in sentencing, a friend of Davis's, and Davis's sister and mother. Davis alleged that his trial attorney did not call available character witnesses and did not prepare the ones he did call. . .

The State cites a psychological report issued by the University of Mississippi after Doss was tested there in 1988. In that report Sadie Doss told the interviewers that her pregnancy and Anthony's delivery was normal, that there was no history of mental illness in the family, that there was no history of alcohol or drug abuse in the immediate family; and that the first of Anthony's three most important wishes was to return to Chicago. The State points out affidavit testimony supplied by Doss which supports his desire to return to Chicago. The State also points out that Doss does not supply any police or medical reports to support the stories of assaults against the family by Sam Brown and others, or the stories of illness and drug abuse. The State points out these inconsistencies and some untruths in the affidavits, such as citing Sandra Price's affidavit as evidence of the family's history of mental problems, where Sandra Price, the daughter of Sam Brown, and Anthony Doss are not blood relatives.

The State argues that defense counsel Bailey's opinions about his own performance are irrelevant because (1) effective assistance of counsel is based on an objective standard and (2) such evidence is not newly discovered evidence. See In re Hill , 460 So.2d 792 (Miss. 1984). While Bailey's opinions about his own performance may not be relevant, there is no doubt that his many statements about what he did not do, because he did not think it would be helpful, and that he did not know enough about death penalty litigation to know better, and that his decisions were not a part of trial strategy, are relevant. Doss does not allege that Bailey's statements are newly discovered evidence because there is no such need at this point. Doss is not trying to get past a procedural bar.

The State sums up its argument by citing Dowthitt v. Johnson , 230 F.3d 733 (5th Cir. 2000), for the proposition that counsel cannot be ineffective for failure to interview or call witnesses when those witnesses will not cooperate; Chase v. State , 699 So.2d 521 (Miss. 1997), where this Court stated that an attorney was not ineffective where a witness supporting a defense motion refused to appear and the attorney did not attempt to force the witness to appear; Brown v. State , 798 So.2d 481, 496 (Miss. 2001), where this Court stated that the duty to investigate and prepare is not limitless; Washington v. Watkins , 655 F.2d 1346 (5th Cir. 1981), which finds that, when considering a claim of ineffective assistance, one must take into account all circumstances, but only as known to counsel at the time in question; and Ladd v. Cockrell , 311 F.3d 349 (5th Cir. 2002), which states that, in the face of overwhelming evidence, modest mitigation evidence to the contrary becomes irrelevant.

What the State does not attempt to do is distinguish, or even mention, Davis , Woodward , Leatherwood or Burns , the cases from this Court cited by Doss. The State points out that some of what is included in Doss's affidavits is not helpful to him, but this did not prevent this Court from granting relief in Burns . We acknowledge that many discrepancies exist among the affidavits presented by Doss in support of this issue. However, we conclude that Doss has made a sufficient showing under the Strickland test that Bailey's efforts fell short of the efforts a counsel should make in a death penalty sentencing trial, so as to entitle Doss to an evidentiary hearing on this claim in the circuit court. This was Bailey's first death penalty case, and he admitted that he did not know what he was doing in the sentencing phase. When counsel makes choices of which witnesses to use or not use, those choices must be made based on counsel's proper investigation. Counsel's minimum duty is to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. Woodward , 635 So.2d at 813 (Smith, J., concurring in part).

Under Strickland, "[t]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances" and once a deficient performance is shown "a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [sentencing phase] would have been different." Strickland , 466 U.S. at 694. In the present case, the inquiry is whether the sentence would have been different if mitigating evidence which was available, but not used, had been presented. Doss should have the opportunity to present evidence to the trial court in support of his claim that his counsel's failure to investigate and present available evidence in mitigation amounted to ineffective counsel.

OTHER NOTABLE CASES

United States v. Booker, 2004 U.S. App. LEXIS 14223 (7th Cir 7/9/2004) Federal sentencing guidelines unconstitutional. Link to booker briefs.

Hamilton v. Newland, 2004 U.S. App. LEXIS 13614 (9th Cir 7/1/2004) The court below should have treated the Rule 60(b) motion as a Rule 60(b) and not a successive habeas petition.

FOCUS

This week covers the annual review of capital defense web site resources presented at the annual ABCNY capital punishment seminar (updated irregularly at http://capitaldefensewekly.com/defense.htm):

Best of the Net

CapDefNet.org (http://www.CapDefNet.org) The HAT/FDPRC site saves lives & saves valuable hours of labor. CapDefNet.org is the top "must visit" site on the net for every death penalty lawyer. The site focuses primarily on the federal system and offers a large collection of well written direct appellate briefs in the federal system, to case law updates, and guides to various areas of the criminal law

Probono.net (http://Probono.net) The American Bar Association in conjunction with the Association of the Bar of the City of New York offers the broadest range of state materials on any one site. Password access is required, but readily given.

Ninth Circuit Capital Punishment Handbook (http://www.ce9.uscourts.gov/dph) Although aimed at judges & practitioners in the Ninth Circuit, this manual contains a solid introduction to both issues in capital litigation & federal habeas corpus, amply documented with case law & secondary sources, on almost every issue likely to be encountered by an advocate. This a great companion to "Federal Habeas Corpus Practice & Procedure" by Liebman & Hertz, but in no way supplants that text.

Habeas-l discussion list By and away the best death penalty discussion list for lawyers is habeas-l run by Prof. Eric Freedman. To subscribe send an e-mail to Prof. Freedman stating your interest at lawemf - at - Mail1.Hofstra.edu.

Supreme Court Materials:

Supreme Court Blog (http://www.goldsteinhowe.com/blog/index.cfm) The upstart law firm Goldstein & Howe currently has the leading internet coverage on the Supreme Court, including substantial links to most of the SCOTUS resources on the net.

Findlaw.com Supreme Court Center (http://supreme.lp.findlaw.com/supreme_court ) The Center contains certs granted, issues in pending cases, briefs and other materials, many of which I have not been able to locate on Westlaw & Lexis.

ABA's Supreme Court Preview: Briefs (http://www.abanet.org/publiced/preview/briefs/home.html) Briefs for cases currently before the Supreme Court, often not otherwise available.

Briefs:

Eight Circuit Briefs (http://www.ca8.uscourts.gov/cgi-bin/new/briefs.cgi) The United States Court of Appeals for the Eighth Circuit has placed all of their briefs online & provides a great quick resource to see what others are doing.

Federal Public Defender for the District of Columbia (http://www.dcfpd.org) The best collection of motions and briefs for noncapital cases on the web. An invaluable tool for litigation and a must try site. Good navigation & excellent quality. Training & CLE opportunities catalogued.

Florida Supreme Court Briefs (http://www.law.fsu.edu/library/flsupct/index.html) All briefs since 1998 are available on the net including innumerable briefs from capital cases. The relative high quality of legal counsel in Florida's death cases make these briefs especially appealing. The downside is that there is no readily searchable but rather filed by docket number. When I am looking for a brief on point I generally use a legal research database (http://Westlaw, Lexis, or Versuslaw) to find a Florida Supreme Court case that has mentioned the issue I want, get the docket number, and then simply go download the brief. Note the briefs are in PDF format.

Louisiana Indigent Defense Board (http://www.lidab.com) The largest single collection of pretrial motions for capital cases on the web with the Louisiana Capital Defense manual. Another great site to visit.

Tennessee Capital Case Information (http://www.tsc.state.tn.us) The Tennessee Supreme Court has created a special section on its site for the capital cases in which a "serious" execution has been set at least once. The Philip Workman stay materials are also included on the site and are a must read for anyone preparing to fight for a stay following exhaustion of all normal means of appeal.

Briefreporter.com (http://briefreporter.com) A pay site that deserves some mention. Although the prices for briefs are excessively high, the site contains a good search engine for searching their database and a nice selection of death penalty briefs (http://although Florida, noted above, is highly over represented.

Resources from State/Regional Sites:

California Appellate Project (http://capsf.org) California Appellate Project is a firewall protected site covering the breadth and width of death penalty practice in California. Included on the site is Re-CAP which covers virtually all capital case and important habeas decisions from California and the lower federal courts .

Equal Justice Initiative of Alabama (http://www.eji.org) EJI's work on the web is no less impressive than their work in the court room. The site offers a good overview of their work and the materials available off-line from them.

Florida Commission on Capital Cases (http://www.floridacapitalcases.state.fl.us/ccc/index.cfm) FCCC covers the appointment process in Florida capital cases as well as contains the (in)famous Florida registry for capital attorneys, as well as Florida case handling guides.

Florida Public Defender Association(http://www.flpda.org/pages/life_over_death.htm) A a number of capital defense motions downloadable in Word.

Georgia Indigent Defense Council (http://GIDC.com/) Covers Georgia indigent defense.

Georgia Multi-County Public Defender Office (http://georgiacapitaldefenders.com/) The Multi-County Public Defender Office serves as a trial resource center for attorneys handling death penalty cases. The site contains many of hte basics for defending a Georgia capital case at trial Gulf Region Advocacy Center(http://www.GraceLaw.com) GRACE a nonprofit providing quality representation to indigent persons charged with capital crimes in the state courts of Texas and Louisiana.

Illinois State Appellate Defender (http://state.il.us/defender/dpenalty.html) The ISAD site is the "go to" site for the Seventh Circuits. Included on the site are state & federal court opinions, relief grants by the state supreme court, summary of issues before the state supreme court and the Seventh Circuit, as well as a catalog of their off line information.

Kentucky Department of Public Advocacy (http://dpa.state.ky.us) The DPA site offers several unique contributions. Most notably is DPA's periodical the Advocate, the Preservation Manual & the Kentucky Evidence Manual. Although aimed at Kentucky practitioners. the applicability of the materials presented, especially the Preservation Manual, is well worth an examination.

Louisiana Indigent Defense Board (http://www.lidab.com)- The largest single collection of pretrial motions for capital cases on the web with the Louisiana Capital Defense manual. Another great site to visit.

Missouri Public Interest Litigation Clinic (http://www.pilc.net) PILC's website offers a good collection of post-conviction motions and pleadings, including materials, such as clemency petitions, that simply cant; be found anywhere else.

New York State Defender Association (http://www.nysda.org) NYSDA offers the best criminal defense and death penalty litigation in the northeast. The Hot Topics list is the best of its sort on the net and is among the leading post-9/11 sites for defense of those "rounded up" since the terrorist attacks.

Southern Center for Human Rights (http://SCHR.org) One of the best legal websites on the net from one of the most important nonprofits in the country. A good selection of articles written by Stephen Bright as well as useful general information on the death penalty. SCHR also has a "contact" list for legal resources and activists around the nation that is second to none.

Texas Defender Service (http://www.texasdefender.org) A must for Texas lawyers (or anyone involved in the fight in Texas), the TDS site offers one of the few Directory of Expert Witness Websites around, as well as their now famous report "Texas Defender Service Report - A State of Denial: Texas Justice and the Death Penalty"

Tennessee Capital Case Information (http://www.tsc.state.tn.us/OPINIONS/TSC/CapCases/CapCases.htm) The Tennessee Supreme Court has created a special section on its site for the capital cases in which a "serious" execution has been set at least once. Stay materials are also included on the site and are a must read for anyone preparing to fight for a stay following exhaustion of all normal means of appeal.

Virginia Capital Case Clearinghouse (http://www.vc3.org) VC3 is a trial-level legal aid clinic assisting capital defense counsel throughout Virginia. Run by Prof. Roger D. Groot at William & Mary Law, the site contains numerous stock motions & explainations for those motions.

Federal Defender sites

Federal Public Defender for the District of Columbia (see above)

Texas Federal Defender (http://fpd.home.texas.net/) This defender site has downloadable instructions among other information.

Washington/Idaho Federal Defender (http://www.fdewi.org/) This excellent defender site includes a motion bank; you'll have to call to get a password.

Colorado Public Defender (http://www.state.co.us/defenders/Main_Topics/Topics_Links/prevlibrary.htm) This defender site has downloadable noncapital motions among other information.

Death Penalty Manuals:

Ninth Circuit Capital Punishment Handbook(see above)

Louisiana (http://www.lidab.com) Louisiana Indigent Defense Board m's manual, slightly dated, much of the information contained

ProBono.Net (see above)

Federal Caselaw & Habeas Guides:

Capdefnet.org (see above)

Probono.net (see above)

Ninth Circuit Capital Punishment Handbook (see above)

Findlaw.com (http://profs.findlaw.com/habeas/index.html)Todd Maybrown's Federal Habeas Corpus Review: A Brief Overview and The New Habeas Act Checklist offers a good overview for those new to the field of post-conviction litigation of habeas corpus jurisprudence, especially, post - AEDPA litigation. Note that this material has quickly become dated.

Capital Defense Weekly (http://capitaldefenseweekly.com) Covers case "highlights" on weekly/biweekly basis & is available also in an email subscription format.

General Death Penalty Information:

Death Penalty Information Center (http://www.deathpenaltyinfo.org) The first site to click to for information about the death penalty. Dick Dieter and his staff have made the website the crown jewel of abolition on the web. The site also contains the a good selection of recent law review article titles.

Legal Press, Commentary & Blawgs:

National Law Journal (http://www.law.com) The electronic version of the nation's largest circulation legal newspaper. The online version offers email updates of the daily edition & a good searchable archive of prior stories.

Findlaw.com News and Commentary (http://news.findlaw.com & http://writ.news.findlaw.com/) from around the globe including numerous cutting edge examinations of developing case law.

Jurist: Legal Education Network (http://jurist.law.pitt.edu/) Academia from around the country writing and debating about issues impacting the procession.

Talk Left / CrimLynx (http://talkleft.com & http://crimlynx.com) Arguably the best defense blawg on the net, covering criminal defense issues from a progressive viewpoint.

How Appealing (http://legalaffairs.org/howappealing/) A solid wrap-up of every major law related story available on the web. How do he do it? Don't ask.

Legal Theory Blog (http://lsolum.blogspot.com/) Prof. Lawrence Solum's controversial legal theory blog which amply reviews contemporary legal theory & upcoming law reviews from a rightward leaning/libertarian viewpoint.

For a more complete list see karlkeys.com

Discussion Lists

Discussion lists -- By and away the best death penalty discussion list for lawyers is habeas-l run by Prof. Eric Freedman. To subscribe send an e-mail to Prof. Freedman stating your interest at lawemf@Mail1.Hofstra.edu.

An alternative discussion list for legal professionals involved with capital litigation can be found at capitaldedfense@yahoogroups.com. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. Subscribe: capitaldedfense-subscribe@yahoogroups.com.

Other Tools & Sites of Note:

Abolish Archives(http://maelstrom.stjohns.edu/CGI/wa.exe?S1=abolish) Comprehensive archives search of most death penalty related news stories going back 8 years.

Campaign for Criminal Justice Reform's (http://justice.policy.net/) The first source to turn to for back round information on the national political discussion on the death penalty. CCJR is the home for the Liebman study on error in capital cases, and numerous other articles.

Clark County Indiana Prosecutor (http://www.clarkprosecutor.org) No discussion of death penalty resources on the web would be complete without discussing the enormous list of materials catalogued by the site. They may be on the wrong side of the issue but they are an invaluable catalog of resources.

Cornell Death Penalty Page (http://www.law.cornell.edu/topics/death_penalty.html) & Capital Jury Project (http://www.lawschool.cornell.edu/library/death/) Solid information on capital sentencing process. General information about federal habeas corpus review and capital punishment, a synopsis of recent federal court decisions on habeas corpus and capital punishment, and links to other pertinent sites.

Death Penalty News & Updates from Southern Methodist University. (http://www.smu.edu/~deathpen/) Up-to-date execution statistics and alerts; U.S. Executions since 1977 by name, date, state, and victim(http://s); Death Row Inmate Homepages and Links.

Equal Justice USA (http://www.quixote.org/ej/) A good collection of materials relating to moratoria, execution of innocents, and the case of Mumia Abu Jamal.

Federal Defenders (http://fd.org) Homesite of the Defender Services Division Training Branch of the Federal Defenders. Site contains everything from CJA voucher information to handouts from some recent AOC trainings.

Illinois Governor's Commission on Capital Punishment: Report to Governor Ryan (http://www.idoc.state.il.us/ccp/ ) The final report from the Illinois Commission on Capital Punishment, established by Governor George Ryan shortly after he instituted a moratorium on executions in the state of Illinois in 2000, following the highly publicized"exonerations" of 13 death row inmates since 1976. The report concludes with several controversial recommendations, all restricting the ability of prosecutors to seek a death sentence and the judge and jury's power to deliver one.

Jeff Flax's Homepage (http://www.jflax.com) Links to other sites containing valuable information on all aspects of criminal law and procedure.

The Justice Project (http://www.thejusticeproject.org) The Justice Project is a campaign to educate the public about the scope of the problem of wrongful executions, and what reforms can be made to prevent them. Contains general information about the death penalty, and numerous studies on the inadequacies of the system. Includes testimony presented to the House Judiciary Committee on H.R. 4167, the Innocence Protection Act of 2000 & the Liebman study

National Association of Criminal Defense Lawyers (http://www.nacdl.org) The name says it all. The onsite death penalty materials are not as numerous and/or well put together as they could be, however, a solid site overall.

National Association Of Federal Defenders (http://federaldefenders.com) NAFD has summarized the many of the various reversible error lists from around the country at http://www.federaldefenders.org/revr_errors_2000.pdf

The Other Side of the Wall (http://www.prisonwall.org), A must for California practitioners, Arnold Erickson's site is one of the oldest criminal defense website on the net, and the oldest active site dealing with issues of postconviction that I am aware. In quality and endurance, Mr. Erickson is s true pioneer.

Prof. Geimer's Death Penalty Defense (http://deathpenaltydefense.com) Covering the basic motions through the details of nuts and bolts at trial & provides a good understanding for post-conviction attorneys of what trial counsel should & must do. (http://password protected)

Activist Organizations

National Coalition Against the Death Penalty (http://www.ncadp.org) -- The site of the nation's largest anti-death penalty groups offers some solid in depth resources on upcoming executions, as well as good information on ongoing legislative drives around the nation.

Canadian Coalition to Abolish the Death Penalty (http://www.ccadp.org)-- This site is the most information packed site on death row inmates, clemency campaigns and claims of innocence on the web. Although the not the easiest site on the web to navigate, it is a must see for activist, and lawyers should visit it to find out [1] what information it lists on their clients, and [2] to see how a web campaign for the client's life can be put together. Like the CUADP listed above, CCADP is run on a shoestring budget with impact well beyond its relatively meager economic resources.

Citizen United for Alternatives to the Death Penalty (http://www.cuadp.org) -- This site, as well as the relatedAbolition Action Committee , offer the best listing of ongoing anti-death penalty events in the nation. The CUADP and the AAC (http://through Abe Bonowitz and others) also provide an invaluable resource for attorneys wishing to get in contact with grassroots activists around the country.

Information Gathering Tools:

Google.com (http://google.com) Offers the best single source news tracking on the net & is one of the few major websites that permits searching of PDF files. As a plus it permits narrowing of queries to individual websites.

Google.com Newsgroups (http://groups.google.com) Google tracks all posting to usenet groups. The site provides a quick source for impeachment evidence, basic information, and even basic research into non-legal areas that members of a defense team may be unfamiliar.

FROM AROUND THE WEB

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

Editorial Questions Merits of Kansas Death Penalty

A recent Witchita Eagle editorial criticized the cost and arbitrariness of Kansas's death penalty, especially given the impossibility of predicting who would be given the ultimate punishment. Convicted murderer Arturo Garcia was given a sentence of more than 100 years without parole for a grisly murder in the Club Mexico murder case, while other state cases ended with death sentences. The paper noted:

"(The Garcia case) certainly also raises questions about what merits an execution in Kansas -- and what doesn't.

"Clearly, the Club Mexico case involved, as spelled out among the legal conditions for the death penalty, 'desecration of the victim's body in a manner indicating a particular depravity of mind.'

"If execution is just, then surely justice would have been served by pursuing execution in this case. But that little word --'if' -- is of vital importance.

"Even if one grants that the state has the right to take a life to avenge a crime, it's hard to make a case for justice, knowing that the consideration and application of the penalty vary by jurisdiction and the decision makers' sensibilities. It's not quite the luck of the draw, but it might as well be.

"And given the expense of a typical capital punishment case, it's no wonder that some officials would be hesitant to take on the additional burden to their already tight budgets. Late last year, the Kansas Legislative Division of Post Audit found that it costs an average of $1.26 million to successfully prosecute death penalty cases in Kansas, well above the $740,000 average for cases that result in Hard 40 or Hard 50 prison sentences.

"Further, this brand of justice is not swift. No execution dates have been set for any of the seven men on Kansas' death row. The extended appeals process and the heightened due-process standards set by the U.S. Supreme Court ensure that many, many years pass at taxpayer expense before the actual punishment is meted out in any given case.

"Mr. Garcia was not deterred by the existence of the death penalty, nor has he been touched by it in the course of his trial and sentencing. If his punishment of a lifetime behind bars is logical and appropriate, as determined by the court, then how can the arbitrary nature of punishment by death be defended?"

(Witchita Eagle, July 20, 2004) (emphasis added) See Costs, Deterrence, and Life Without Parole. See also, Editorials.

National, International Leaders Urge Supreme Court to Ban Execution of Juvenile Offenders

Former U.S. President Jimmy Carter, former Soviet Union President Mikhail Gorbachev, medical experts, and 48 nations are among those who filed friend-of-the-court briefs on Monday (July 19) urging the U.S. Supreme Court to end the juvenile death penalty. The Court is scheduled to hear arguments this fall in Roper v. Simmons, a case that will determine the constitutionality of executing juvenile offenders. The U.S. is one of only a handful of nations around the world that continues to permit the execution of juvenile offenders, and one of only five nations (Congo, China, Iran, Pakistan, and the U.S.) to carry out such executions during the past four years, according to the brief filed by Nobel Peace Prize winners, including Carter and Gorbachev. The Court also received briefs from the 25-nation European Union, Mexico, Canada, and other nations that argued that executions of juvenile offenders "violates widely accepted human rights norms and the minimum standards of human rights set forth by the United Nations." Similar briefs were filed by former U.S. diplomats, the American Medical Association, the American Psychiatric Association, and the U.S. Conference of Catholic Bishops. (Associated Press, July 19, 2004) View the Amicus Briefs. See DPIC's Roper v. Simmons page.

NEW VOICES: League Of Women Voters Cautions Against "Quick Fix" for NY's Death Penalty

The New York League of Women Voters has urged state lawmakers not to attempt a "quick fix" solution to the state's flawed death penalty law. "We now have a unique opportunity to re-examine the use of the death penalty in New York," said Marcia Merrins, president of the League of Women Voters. In June 2004, the New York Court of Appeals declared the state's death penalty unconstitutional. The League of Women's Voter's, which plans to host a series of capital punishment forums throughout New York in the coming months, believes that the ruling offers lawmakers an opportunity to look beyond the immediate concern of the unconstitutional provision and examine other issues that will inevitably emerge despite the passage of patch work legislation. (New York Law Journal, July 15, 2004) See DPIC's Summary of the New York ruling. See New Voices.

NBC to Air Award-Winning Documentary "Deadline" on July 30

The award-winning documentary "Deadline," which takes viewers directly into the emotional and legal storm surrounding former Illinois Governor George Ryan's extraordinary decision to commute the death sentences of all those on death row, will air on NBC during a special 2-hour "Dateline" program at 8 p.m. on July 30th. The Big Mouth Productions documentary has gained widespread critical acclaim and it was featured at the 2004 Sundance Film Festival. During filming, the program's producers had unprecented access to Governor Ryan, to death row exonerees from Illinois, the special clemency hearings held prior to Ryan's decision to commute the sentences, and to those death row inmates whose lives he spared. Renowned film critic Roger Ebert notes, "'Deadline' is all the more effective because it is calm, factual and unsensational. There are times when we are confused by its chronology and by how its story threads fit together, but it makes an irrefutable argument: Our criminal justice system is so flawed, especially when it deals with the poor and the nonwhite, that we cannot be sure of the guilt of many of those we put to death. George Ryan, not running for re-election, faced that truth and commuted those sentences, and said he could live with his decision." Read more about the documentary. See also, Innocence.

NEW RESOURCE: Study Finds High Risk of Error in Eyewitness Identification

A study conducted by the U.S. Navy and Yale University found that eyewitness testimony is often largely inaccurate, even when victims get a long look at violent criminals, and police and juries may be giving this evidence too much credibility. After a unique study of 509 Navy and Marine officers undergoing high-level and low-level stress during elite hostage survival training at Fort Bragg, N.C., researchers discovered that few of the participating top officers could accurately identify their "interrogators" and "guards" during a line-up conducted 24 hours after the grueling sessions. When asked to select their captors from a line-up, only 30% of the high-stress group made correct identifications and only 62% of the low-stress group made accurate identifications. When sequential photos were used, the accuracy rate of the high-stress group rose to 49% and the low-stress rate improved to 76%. Researchers found that nearly 7 out of 10 high-stress participants made mistaken identifications, and there was no relationship between the participant's confidence level and the accuracy of their memory. In fact, officers who were absolutely positive that they had selected the right person were no more likely to be correct than officers who expressed some doubt. "Memory in healthy people is not inherently terribly accurate. There's a substantial amount of error. Maybe we should demand more evidence," said Charles A. Morgan III, a Yale psychiatrist and lead author of the study. One explanation for these identification errors may be the high levels of hormones such as cortisol and adrenaline that result from stress and may degrade spatial memory. (New Hampshire Register, Science Section, June 21, 2004). See Resources.

European Union Urges Iraq Not to Reinstate Death Penalty

European Union foreign ministers have urged Iraq's interim government not to reinstate capital punishment as it continues to develop the nation's justice system. "The European Union reconfirms its opposition to the death penalty in all cases," the ministers said in a draft statement to Iraq Foreign Minister Hoshiyar Zebari. "The message has been very clear . . . We have this policy, and we will maintain this policy," said Dutch Foreign Minister Bernard Bot at a news conference with Zebari. The European Union has a long-standing policy against capital punishment, and all 25 member nations have abandoned the practice. Although the death penalty was suspended in Iraq during the U.S.-led occupation, some senior-level Iraqi politicians have publicly stated that they intend to reinstate the death penalty for certain crimes now that control of the government has been given back to the Iraqi people. The discussion about capital punishment took place as Zebari, himself an opponent of capital punishment, met with European Union leaders to discuss EU support for rebuilding efforts in Iraq. He noted that the nation is facing an ever-deteriorating security situation and that funding from the EU is essential to organizing upcoming elections. (Reuters, July 12, 2004) See International Death Penalty.

NEW RESOURCES: DPIC Offers Useful Web Resources

The Death Penalty Information Center has new Web resources to assist educators and those following recent court developments related to capital punishment:

1) DPIC's revised Educational Curriculum on the Death Penalty is an excellent tool for TEACHERS planning to involve their students in the upcoming national focus on juveniles and the death penalty. See also DPIC's Web page on Roper v. Simmons and an overview of the Juvenile Death Penalty.

2) The Supreme Court recently added three death penalty cases to its docket for next term. See a summary of the issues in these cases on DPIC's Supreme Court page.

3) DPIC has prepared a summary of the New York Court of Appeals' decision that held the state's death penalty law unconstitutional. See the summary of People v. LaValle.

See Resources.

POSSIBLE INNOCENCE: New Evidence Throws Doubt on an Ohio Death Penalty Case

In an editorial entitled "Too Many Questions" that followed a two-part news series examining new information that casts doubt on the guilt of Ohio death row inmate John Spirko, the Mansfield News Journal of Ohio called for a re-examination of Spirko's case before the state allows an execution to go forward. A federal judge in the same case has said he has considerable doubts about the lawfulness of the case against Spirko. The editorial noted:

It's not often we call for careful reconsideration of the criminal case involving an inmate on death row at the Mansfield Correctional Institution. The judicial system in death penalty cases has many checks and balances along the way.

After an examination of the facts surrounding the case, with the benefit of two decades of hindsight, we believe many questions should be answered before this ultimate penalty is exacted.

In a recent two-day series, the News Journal offered information that raises questions about Spirko's role in the killing of Betty Jane Mottinger. These questions are led by the fact prosecutors decided not to bring accused accomplice Delaney Gibson to trial, a move that has Spirko and his attorneys renewing efforts to get a new trial.

Gibson faced a capital murder charge for the crime while serving 15 years of a 20-to-life sentence in Kentucky for an unrelated murder, but was paroled in July 2001.

At issue are photographs, receipts and other evidence that show a bearded Gibson in North Carolina the night before the crime, which happened at 8:30 a.m. more than 500 miles away in Elgin, near Indiana. Spirko obtained the photographs from postal records after a 10-year fight, and argues the state inappropriately concealed the Gibson alibi.

The state's key eyewitness testified she was 100-percent certain she saw a clean-shaven Gibson outside the post office the morning of the murder. She was shown an old mug shot of him without a beard and never saw him at trial because he escaped a Kentucky jail and was on the run.

In order for this murder to have occurred in the manner which the state alleges, Gibson must have finished visiting with relatives in North Carolina early Sunday evening, shaved his beard, jumped in a vehicle and drove more than 500 miles through the night to northwestern Ohio. Spirko, a convicted murderer and former cellmate of Gibson's, was paroled 13 days earlier and was living in Swanton with his sister. He allegedly met Gibson and the pair made the two-hour drive to the tiny village of Elgin, where they robbed the post office of less than $100 before kidnapping and murdering the postmistress.

No physical evidence links Spirko to the crime: He matches none of the fingerprints lifted, no blood evidence, no fibers, no murder weapon, no burglary proceeds.

The chief link is the stories Spirko told trying to bargain himself into the witness protection program and get his girlfriend out of trouble for smuggling him hacksaw blades into the county jail, where he was being held on unrelated assault charges. He admitted his involvement in the killing, according to a postal inspector. That is the primary evidence against him. It's an admission he now denies.

In a recent opinion, U.S. Circuit Court Judge Ronald Lee Gilman said the case record "leaves me with considerable doubt as to whether he has been lawfully subjected to the death penalty."

Spirko should not be executed until those questions and doubts have been answered.

(Mansfield News Journal, July 8, 2004) See Innocence.

NEW RESOURCE: Death Row Numbers Continue to Decline

The latest edition of the NAACP Legal Defense and Educational Fund's quarterly publication "Death Row USA" is now available on DPIC's Web site. The April 2004 report reveals a continuing decline in the number of individuals on death row in the United States. The current population of 3,487 is 17 less than the 3,504 individuals reported in January 2004 and 210 fewer than the 3,697 reported in October 2002. "Death Row USA" provides a comprehensive look at the nation's death row population, including a complete listing of those serving death sentences in each state. The report also details execution data, race statistics, and information on women and juvenile offenders. In addition, this resource provides a useful overview of important court cases from around the country that could shape the future of capital punishment. (NAACP Legal Defense and Educational Fund "Death Row USA," April 2004) Read the report. See DPIC's "Death Row USA" summary page.

NEW VOICES: Murder Victims' Family Members Join Call for North Carolina Death Penalty Moratorium

In a letter to the North Carolina House of Representatives, 21 family members of murder victims voiced their concerns about the state's error-ridden death penalty system and urged members to pass legislation that would impose a two-year moratorium on executions while a study is conducted. "We are troubled by cases in which inadequate representation or prosecutorial misconduct led to innocent people being sent to our North Carolina Death Row. We are troubled by the ongoing evidence that our death penalty system is plagued by class and racial bias," the family members wrote. "The criminal justice system cannot assuage the sorrow of a murder victim's family, but the system should demonstrate to us that it is just and fair." The 21 victims' family members join a lengthy list of moratorium proponents, including 8 former North Carolina Supreme Court justices, religious leaders, and other community leaders. Last Spring, the North Carolina Senate passed companion legislation to the House bill. A statewide poll showed that North Carolinians support the moratorium by more than two-to-one. (North Carolina Moratorium Now Press Release, July 7, 2004, with letter from family members). See Victims.

Freed Death Row Inmate Awarded Large Settlement Based on Poor Representation

Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. Miranda's conviction and death sentence were thrown out in 1996 when a federal judge ruled that the defense attorney who represented him during his 1982 trial had committed glaring errors. The judge ordered a new trial, but prosecutors declined to proceed with the case and Miranda was then freed from prison. He filed a civil complaint two years later in 1998, arguing that his civil rights were violated when public defenders did virtually nothing to defend their Spanish-speaking client after he performed poorly on a polygraph examination by an English speaking examiner. He also claimed that police withheld exculpatory evidence during his trial. At first, a federal judge threw out the suit, finding that Miranda could not sue the county or the public defenders office regarding his representation. The Court of Appeals for the Ninth Circuit later reinstated the case, and the U.S. Supreme Court declined to review the Ninth Circuit's ruling, thereby opening the door for similar suits around the country. Miranda's attorney, JoNell Thomas, stated, "There's no amount of money that will give him back those 14 years." (Associated Press, June 29, 2004; see also Spence, Maoriarity & Shockey Press Release, June 29, 2004). See Innocence.

NEW RESOURCES: American Prospect Features Special Report on Capital Punishment

The July 2004 edition of The American Prospect features a special section on capital punishment with articles by some of the nation's most respected experts on the topic. "Reasonable Doubts: A Special Report on the Death Penalty" examines the growing movement to reform or abolish capital punishment in America. Among the topics examined are public opinion, innocence, race, and the death penalty for juveniles. The series also provides a closer look at the death penalty in states such as Illinois and Texas, and offers an overview of the Supreme Court's recent decisions on the death penalty. The authors included are: Anthony Amsterdam, Hugo Bedau, Christina Swarns, Tom Lowenstein, Sasha Abramsky, Jean Templeton, Joseph Rosenbloom, and Connie de la Vega. See Resources.

POSSIBLE INNOCENCE: DNA Evidence Leads to Juvenile Offender's Release

Following a fifth round of DNA tests, a Louisiana death row inmate has been released on bond while awaiting a new trial. Earlier this year, Ryan Matthews' conviction and death sentence were overturned. The recent round of DNA tests on a ski mask, which prosecutors claimed was worn by Matthews during the crime, excluded Matthews but matched the genetic markers of another inmate. To date, no physical evidence linking Matthews to the crime has been found. Following the latest round of DNA testing, the Jefferson Parish District Attorney's office did not oppose Matthews' request for bond. Matthews was a juvenile at the time the crime was committed. His attorneys indicated that he suffers from mental retardation and a seizure disorder. (Times-Picayune, June 23, 2004) See Innocence. See also, Juvenile Death Penalty.

Commutation Granted in Indiana

Darnell Williams, who was scheduled to be exectued in Indiana on July 9, was granted a commutation of his death sentence to life without parole by Governor Joe Kernan. It was the first commutation in a death penalty case in that state in 48 years. The governor cited the fact that a co-defendant in the case, Gregory Rouster, had received a life sentence, and hence it would be unfair to execute Williams. (CNN.com (AP story), July 2, 2004). See Clemency.

SUBSCRIBING & ARCHIVES

Capital Defense Weekly is published forty (40) times (or so) a year with the archives accessible from the pull down bar located at http://capitaldefenseweekly.com/index.html.Capital Defense Weekly has migrated to Yahoo Groups to guarantee that deliver of the weekly will continue to your email box, as well as to maintain your privacy. Sorry for the problems but the net's watchers, in their infinite wisdom, decided the weekly was spam and therefore placed it on the spam banned list. When the weekly was moved it was still listed as spam. I have moved the weekly over to yahoogroups whichshould cure this problem.

Subscribe:capital_defense_weekly-subscribe@yahoogroups.com&

Unsubscribe:capital_defense_weekly-unsubscribe@yahoogroups.com