In an unusually large edition (even for one covering two weeks) there are fourteen wins noted for the period from June 18 to July 2, 2007. Due to the length, and the untimely nature of the reviews, please forgive a truncated introduction.

By now anyone interested in readingPanetti v. Quartermanhas read it. The opinion is rather straightforward: Texas failed to afford Panetti a meaningful opportunity to test whether he was competent enough to be executed. Panetti readily could have been a case about error correction or even redefining the standards the Court laid out in Ford v. Wainwright. The Court instead spilled much ink focusing on what it held to be insufficient process afforded to Panetti by the state trial court & the subsequent rubber stamping of that flawed process by the Texas Court of Criminal Appeals and then the Fifth Circuit. In that regard, the issue at bar in Panetti (competency to be executed) was less important as the language of the opinion made clear Justice Kennedy had problems with the failure to afford the procedural protections afforded by precedent.When read in conjunction with the Court’s other opinions this term the Court continues to suggest to the Texas Court of Criminal Appeals & the Fifth Circuit that it is overproducing executions and new death sentences.

In a quick round of cases that would normally get a paragraph (or more), a split Seventh Circuit panel grants penalty phase relief for failing to investigate and present mitigation evidence inChristopher Stevens v. McBride. The Kentucky Supreme Court, in a case that the unanimous court suggests maybe a case of wrongful conviction, grants relief inComm. v. Charles Bussellon counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that someone else committed the crime. Although the South Carolina Supreme Court inState v James Earl Reedis holds the appellant to be competent, it concludes he has not made a knowing and intelligent waiver of his right to appellate review. The Third Circuit in an unpublished grant of relief inWilliam Wallace v. Priceholding the trial court improperly excluded the statement of an alleged co-conspirator asserting that Wallace was not the triggerman for the crime in which he was convicted.The Montana Supreme Court inMiller & Lebrum v. 18th Judicial Districtholds the local prosecutor was too dilatory in filing a notice of capital prosecution under court rules. In a growing split among the lower federal courts, the Eastern District of Missouri in Lyons v. Luebbers grants permission to bill for state clemency work. The Louisiana Supreme Court inState v. Shon Millerholds that trial judge erred in pre-trial rulings that substantially prevented him from pleading not guilty by reason of insanity. The Alabama Court of Criminal Appeals in Donald Broadnax v. State holds the circuit court erred in denying his motion for leave to file a second amendment to his petition. The Ninth Circuit inGeorge Lopez v Shriroremands as the district court erred in finding penalty phase IAC claims unexhausted. Favorable Atkins cases are noted inSedrice Maurice Simpson v. Norris(8th Cir)(claim not defaulted),Comm. v. Jerome Gibson(Penn.),State v. Porfirio Jimenez(NJ) (MR need to be unanimously disproved).

The most notable denial of relief -- and a strong contender for cert -- isEric Moore v. Quarterman. Moore appears to present issues with a fair chance of rehearing en banc and/or cert. “This court granted Moore authorization to file a second federal habeas petition to raise an Atkins claim. The federal district court ultimately found him to be mentally retarded and accordingly granted the requested relief. But because Moore failed to exhaust the remedies available to him on his Atkins claim in state court, and because Texas’s abuse-of-the-writ doctrine would preclude him from filing another petition based on facts he inexcusably failed to develop, we vacate and remand with instruction to dismiss the petition with prejudice.” The dissent notes that Moore is clearly mentally retarded, that once again the Fifth Circuit is creating a rule to deny the benefits of black law letter to a Texas death row inmate, and, perhaps most importantly, that the Fifth Circuit is once again faulting counsel for not being psychic and knowing what the Texas Court of Criminal Appeals would do before it did it. The lengths to which the Fifth Circuit has gone in this opinion to deny relief in light of a string of opinions out of Texas & the Fifth Circuit (such as Panetti) puts Moore well within the ambit of cert bait.

Looking ahead, two favorable decisions are already noted. The Tennessee Court of Criminal Appeals inPaul Reid v. Stateholds that Reid is not able to competently drop the normal review process in a capital case. In the other opinion the Eleventh Circuit examines the interplay of Rule 60(b) and AEDPA's successive writ rules inEdward Zakrzweski v. McDonoughthat the trial court erred on these facts finding the Rule 60(b) motion was a successor.

As always thanks for reading. - k

Recent Executions

June

26 Patrick Knight (Texas)

26 Jimmy Dale Bland (Oklahoma)

26 John Hightower (Georgia)

Pending Executions

July

9-13 Elijah Page (S.D. -vol)

10 Rolando Ruiz (Texas)

24 Lonnie Johnson (Texas)

26 Darrell Grayson (Alabama)

More Execution information*

SCOTUS

(Since the last edition)

• Scott Panetti v. Quarterman, No. 06-6407 (6/28/2007) Both the federal and state courts applied an unduly restrictive standard, both substantively and procedurally, on claims relating to competency to be executed. Excellent guide on what procedures do & do not provide adequate procedural due process,.

Week of June 18, 2007--InFavor of Life or Liberty

• Christopher Stevens v. McBride, 2007 U.S. App LEXIS ----- (7th Cir 6/18/2007) A divided three-judgeSeventh Circuitpanel vacates this Indiana death sentence imposed on “an emotionally disturbed young man who had been abused and raped as a child” where “the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth.” The vote in favor of setting aside the death sentence was 2-1. One of the judges in the majority on that issue would have also set aside the habeas petitioner's murder conviction due to ineffective assistance of counsel, but neither of the other two judges agreed on that issue. [Congrats to counsel]
• George Lopez v Shriro, 2007 U.S. App. LEXIS 14470 (9th Cir 6/20/2007) “[T]he district court erred by determining that Lopez's ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.” [Congrats go out to counsel Cary Sandman, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, Arizona]
• Comm. v. Charles Bussell, 2007 Ky. LEXIS 133 (KY 6/21/2007) Relief granted on counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that another person, and not Bussell, committed the crimes for which Appellant was convicted. [Congrats go out to Kentucky defenders, Susan J. Martin; David Hare Harshaw, III, & Theodore S. Shouse]
• Miller & Lebrum v. 18th Judicial District, 2007 MT 149 (MT 6/19/2007) Prosecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted, “filing the required notice of intent 72 days late clearly is a ‘material' violation of (our rules).”(link includes access to the briefs of the parties). [Congrats go out to counsel: Al Avignone & Lisa Banick (both of Garrity, Avignone & Banick), as well as Randi Hood & Peter Ohman (both public defenders from Bozeman, Mt)].
• State v. Porfirio Jimenez, 2007 N.J. LEXIS 700 (NJ 6/18/2007) For purposes of making a Mental Retardation determination under Atkins v. Virginia: (A) a jury must be unanimous in its finding the Defendant is not mentally retarded if the matter is to be tried capitally, and (B) anything less than unanimous jury (that is at least one juror believing the defendant is mentally retarded) means a sentence less than death must be imposed. [Congrats go out to New Jersey defenders Stephen Kirsch, Joseph E. Krakora, and Susan Remis Silver]
• State v James Earl Reed, No. 26345 (S.C. 6/18/2007) Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review. [Congrats go out to counsel: Teresa L. Norris, of Blume, Weyble & Norris]
• William Wallace v. Price, 2007 U.S. App. LEXIS 14326 (3rd Cir 6/18/2007) (unpublished) Relief granted as the trial court improperly excluded statement of an alleged co-conspirator asserting that Wallace was not the triggerman for which he was convicted and sentenced to death.
• Lyons v. Luebbers, 2007 WL 1796212 (E.D. Mo. 6/19/2007) District court authorizes attorneys who had unsuccessfully represented Andrew Lyons in federal habeas proceedings to pursue executive clemency.

Week of June 18, 2007 -- In Favor of Death

• Cone v. Ricky Bell, 2007 U.S. App. LEXIS 14362 6th Cir. 6/19/2007) Panel splits 2-1. Relief denied on claims "(1) that the jury's improper consideration of the HAC and “great risk of death” aggravating factors at sentencing has not been cured and so he deserves a new sentencing hearing; and (2) that we should revisit our first decision's holding that Cone's Brady claims are procedurally defaulted, because the Supreme Court has since decided Banks v. Dretke."
• Allen Niclasson v. Roper, 2007 U.S. App. LEXIS 14698 (8th Cir 6/21/2007) Relief denied on claims relating to: "(1) conducting a confusing and inadequate death qualification voir dire without defense participation, (2) prohibiting the defense from conducting follow-up voir dire after asking the jury about their ability to follow Missouri"s diminished capacity instruction, (3) barring any voir dire of jurors concerning their potential reaction to the introduction of evidence of Nicklasson"s involvement in two other Good Samaritan murders, and (4) finding that the prosecution did not commit a racially-motivated Batson violation for striking two black jurors.
• State v. Cory Morris, 2007 Ariz. LEXIS 65 (AZ 6/18/2007) Relief denied on claims relating to: "that the State presented insufficient evidence of the corpus delicti for the deaths of Codman and Davis;" "that prescreening prospective jurors to determine which ones could serve for the length of the trial violated his right to be present at all stages of the criminal proceeding against him;" "that the prosecutor engaged in misconduct;" and "that the trial court abused its discretion in admitting excessively gruesome photographs."
• People v. Steven Bonilla, 2007 Cal. LEXIS 6394 (CA 6/18/2007) Relief denied on claims including (1) sufficiency of evidence of the lying-in-wait special circumstance; (2) Wheeler/Batson error as the People all prospective jurors who were Hispanic women and 67 percent of its strikes on women; (3) sleeping jurors; and (4) photographs of the victim's grave site and mummified remains. The actual killer in this pay for hire homicide cooperated with the State and received just 3 years.
• Ronnie Williams v. State, 2007 Fla. LEXIS 1106 (FL 6/21/2007) Findlaw notes that relief is denied on claims relating to "1) admission of out-of-court statements made by the victim during a 911 call, to an officer, and while in the intensive care unit of the hospital; 2) the alleged departure of the trial court from a neutral stance; 3) jury access to a transcript of a 911 call that was prepared by the state; 4) admission of evidence of the victim's pregnancy; 5) submission of a felony murder case with sexual battery or attempted sexual battery as the underlying felony; 6) jury instruction on the aggravating circumstance that the murder occurred during a sexual battery or an attempted sexual battery; 7) premeditation; 8) improper constructive amendment of the indictment; 9) the presumption of innocence; 10) the unanimity of the verdict; 11) the weighing of aggravating and mitigating factors; 12) a failure to make the required findings for imposition of the death penalty; 13) the use of defendant's! conviction for indecent assault as a prior violent felony aggravator; 14) the heinous, atrocious, or cruel (HAC) aggravator; 15) the cold, calculated, and premeditated (CCP) aggravator; 16) the proportionality of the death sentence; and 17) the constitutionality of the death penalty."
• Quawn Franklin v. State, 2007 Fla. LEXIS 1107 (FL 6/21/2007) Relief denied on "claims that (1) the admission of hearsay statements relating to his prior violent felony convictions during the penalty phase violated his constitutional right to confront witnesses in light of the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36 (2004); (2) the trial court erred in admitting the objected-to portions of Franklin's taped interview with the newspaper reporter; (3) the guilt phase admission of hearsay statements made by the victim also constituted a Crawford violation; (4) the trial court erred by refusing to accept Franklin's stipulation to his prior violent felony convictions in lieu of testimony regarding the crimes; (5) improper victim impact evidence was presented to the jury; (6) the CCP aggravating factor was not properly found; (7) the pecuniary gain aggravating factor was not properly found; and (8) Florida's capital sentencing statute is facially unconstitutional under Ring because the judge rather than the jury determines the sentence to be imposed.
• Jimmy Dale Bland v. State, 2007 Okla. Crim. App. LEXIS 24 (Okla. Crim. App. 6/21/2007) Relief denied on lethal injection claims and claims that it would violate the Eighth Amendment to execute a person who is terminally ill and had less than a year to live.
• James Reed .v. Ozmint, 2007 S.C. LEXIS 254 (S.C. 6/18/2008) Relief denied on claims "the trial judge erred in (1) failing to disqualify the Tenth Judicial Circuit Solicitor's Office and (2) refusing to dismiss a juror."

Week ofJune 252007--InFavor of Life or Liberty

• Sedrice Maurice Simpson v. Norris, 2007 U.S. App. LEXIS 15229 (8th Cir 6/27/2007) Remand ordered where the district court held Atkins claims had been defaulted.
• Comm. v. Jerome Gibson, 2007 Pa. LEXIS 1347 (PA 6/26/2007) Atkins relief granted defining the governing standard as "1) limited or subaverage intellectual functioning; 2) significant adaptive limitations; and 3) age of onset as being prior to his eighteenth birthday. In terms of intellectual functioning, the primary measure is an Intelligence Quotient ("IQ"�) of below 65-75 on the Wechsler scales."
• Ex parte LaRoyce Smith, No. AP-74,228 (Tex. Crim. App. 6/27/2007) Remand from the SCOTUS, this time the TCCA takes the hint and remands to the trial court.
• State v. Shon Miller, 2007 La. LEXIS 1508 (LA 6/29/2007) The Court below's pre-trial rulings prevented Miller from pleading not guilty by reason of insanity which resulted in a "constitutionally flawed jury trial."
• Donald Broadnax v. State, 2007 Ala. Crim. App. LEXIS 110 (Ala. Crim. App. 6/29/2007) "[T]he circuit court erred in denying his motion for leave to file a second amendment to his petition."
• Cooey, et al. v. Taft, 2007 WL 1831115 (S.D. Ohio) Additional inmates permitted to join lethal injection litigation.

Week ofJune 25,2007--InFavor of Death

• Eric Moore v. Quarterman, 2007 U.S. App. LEXIS 15328 (5th Cir 6/27/2007) (dissent )"This court granted Moore authorization to file a second federal habeas petition to raise an Atkins claim. The federal district court ultimately found him to be mentally retarded and accordingly granted the requested relief. But because Moore failed to exhaust the remedies available to him on his Atkins claim in state court, and because Texas"s abuse-of-the-writ doctrine would preclude him from filing another petition based on facts he inexcusably failed to develop, we vacate and remand with instruction to dismiss the petition with prejudice." Note this case appears to present issues with a fair chance of rehearing en banc and/or cert.**
• Jeffery Wood v. Quarterman, 2007 U.S. App. LEXIS 15243 (5th Cir 6/26/2007) Relief denied on claims: "(1) that the state trial court violated his Sixth Amendment right to self representation by denying his request to proceed pro se during the punishment phase of his trial; and (2) in the alternative, that his trial counsel were ineffective for failing to present any mitigating evidence during the punishment phase of Wood"s trial."
• Samuel Crowe v. Hall, 2007 U.S. App. LEXIS 15250 (11th Cir 6/27/2007) Relief denied on claims relating to whether: (1) the state withheld evidence that the victim"s coworkers had been investigated for drug use; (2) an improper reenactment of the murder occurred when the jury viewed the crime scene; (3) a courtroom bailiff made an improper remark to the jury; and (4) the jury engaged in premature deliberations."
• John Henry v. Secretary, 2007 U.S. App. LEXIS 15227 (11th Cir 6/27/2007) Relief denied on claims that trial counsel rendered ineffective assistance of counsel as trial counsel "failed to call Drs. Afield and Berland, who could have presented additional mitigating evidence to the jury and countered the State"s expert testimony."
• Ex Parte Juan Jose Reynoso, 2007 Tex. Crim. App. LEXIS 859 (Tex. Crim. App. 6/27/2007) State postconviction petition held out of time as petitioner did not want to have an attorney he was uncomforable with represent him.
• Michael Brown v. State, 2007 Ala. Crim. App. LEXIS 111 (Ala. Crim. App. 6/29/2007) Relief denied on numerous claims including: (1) trial counsel suffered from an actual conflict of interest; (2) the trial court erred in life/death qualification(3) admission of evidence from the autopsy and victims; DNA & confession; (4) prosecutorial comments in the guilt and sentencing phases of the trial; (5) denial of motion for an acquittal; (6)al variance between the indictment and the proof at trial; (7) jury instructions; (8) the imposition of the death penalty was appropriate and, perhaps most egregiously, (9) denial of ANY funds for mitigation investigation asserting counsel could get whatever he needed from talking to the Defendant's family (including no funds for a mitigation specialist, penalty phase mental health evaluation, etc.).
• In re State v. Darryl Dewayne Turner, 2007 Ala. Crim. App. LEXIS 109 (Ala. Crim. App. 6/29/2007) "[W]e grant the State's petition and issue a writ of mandamus. Judge Woodroof is directed to set aside his ruling allowing Turner discovery of the personnel files of Det. Emerson and Officer Kennemer, the jail records maintained by the Limestone County jail, and the DHR records related to Turner's family members."
• State v. Ruben Garza, 2007 Ariz. LEXIS 68 (Az 6/29/2007) Relief denied on jury selection issues ( (1) allowing the State to speak first in every voir dire session improperly implied that the prosecutors were the authority figures in the courtroom; (2) the prosecutor’s statements unfairly biased the jury pool; (3) questioning whether prospective jurors could “follow the law” improperly signaled that a capital sentence was required upon conviction; and (4) the one-hour time limit initially imposed on defense voir dire of each panel of twenty-four prospective jurors denied Garza due process.Garza alleges that the State improperly withheld evidence about Larry Franco’s history as a confidential informant); guilt phase ((A) admission of the jailhouse telephone conversations; (B) Admission of the jailhouse telephone conversations; (C) reasonable doubt instruction; (D) Enmund/Tison findings; (E) guilt phase jury instructions [(1) the court erred in giving the State’s requested instruction on accomplice liability both because the State’s theory at trial was that Garza acted alone and because the request was untimely; (2) a “mere presence” instruction should have been given; and (3) the standard “absence of other participant” instruction should not have been given.]) and penalty phase (1) failure to allege specific aggravating factors in the indictment and notice of intent to seek the death penalty; (3) alleged comment on Garza’s failure to testify; (3) use of 911 recordings in the penalty phase; (4) penalty phase closing argument; (5) victim impact statements and accompanying photos; (6) denial of right to allocution under Arizona Rule of Criminal Procedure 19.1(d)(7) because the trial court indicated it might allow the State to cross-examine him or comment on any statements he made; (7)trial court should have instructed the jury that the presumptive sentence; (8) denial of a jury instruction on residual doubt; (9) denial of a third-party culpability instructionInstructing the jury not to consider sympathy or sentimentl; (10) instruction that the jury must unanimously determine that mitigation is sufficiently substantial to call for leniency; and (11) A.R.S. § 13-703 creates an unconstitutional presumption of death."
• People v. Frank Abilez, 2007 Cal. LEXIS 6758 (CA 6/28/2007) "A conviction and death sentence for the murder of defendant's mother are affirmed on automatic appeal over claims of error regarding: 1) a failure to grant a motion to relieve defendant's attorney and appoint new counsel; 2) admonishments to jurors during voir dire; 3) the excusal of a juror for cause; 4) cumulative error; 5) exclusion of a codefendant's prior sex crimes; 6) sufficiency of the evidence; 7) alleged inconsistent verdicts; 8) instructional errors; 9) aggravating evidence; 10) mitigating evidence; 11) a failure to instruct the jury on the meaning of life without the possibility of parole; 12) double counting felonies; 13) defendant's motion for modification; 14) a failure to instruct on reasonable doubt; 15) a failure to instruct on pity as a mitigating circumstance; 16) constitutional challenges to California's death penalty law; 17) a challenge to the method of execution; 18) the cumulative effect of penalty phase errors; and 19) an attempted reservation of rights." [via Findlaw]
• People v. Mark Thornton, 2007 Cal. LEXIS 6759 (CA 6/28/2007) "A conviction and death sentence are modified as to the sentence on a noncapital crime and otherwise affirmed on automatic appeal over claims of error regarding: 1) denial of a motion to dismiss the indictment; 2) excusing prospective jurors for cause over defense objections; 3) treating life- and death-leaning prospective jurors differently; 4) testimony regarding defendant's burglary adjudication; 5) restrictions on the cross-examination of a prosecution witness; 6) claims regarding defendant's statements to his grandmother; 7) instructional error; 8) a ruling against playing a videotape to the jury; 9) exclusion of other items of proposed mitigating evidence; 10) cumulative error; 11) prosecutorial misconduct; 12) the procedure for replacing an excused juror; 13) evidence and instructions regarding prior crimes; 14) a refusal to give a special age-related factor instruction; 15) a failure to instruct on the burden of proof; and 16) additional challenges to California's death! penalty statute and other aspects of state law."[via Findlaw]
• Jesse Guardado v. State, 2007 Fla. LEXIS 1145 (FL 6/28/2007) "A judgment and sentence finding defendant guilty of first degree murder and imposing a death sentence is affirmed over claims of error regarding: 1) a decision not to conduct a Nelson hearing; 2) a heinous, atrocious, or cruel aggravator; 3) a cold, calculated and premeditated (CCP) aggravator; 4) a Ring issue; 5) the sufficiency of the evidence; and 6) the proportionality of the death sentence." [via Findlaw]
• William Ziegler v State, (FL 6/28/2007) DNA tests, although favorable, are not, under the unique facts of this case, exculpatory.
• Chadwick Willacy v. State, 2007 Fla. LEXIS 1141 (FL 6/28/2007) Post-conviction appeal denied on claims relating to whether: "(1) the trial court erred in denying an evidentiary hearing on claims 4, 6, and 15 of his motion for postconviction relief; (2) counsel was ineffective for failing to assert the independent act defense; (3) counsel was ineffective for failing to move to recuse the trial judge at the resentencing proceeding; (4) counsel was ineffective for failing to investigate and present evidence of statutory and nonstatutory mitigating factors; (5) counsel was ineffective for failing to inquire regarding juror Clark"s status; (6) the trial court erred in failing to retroactively apply this Court"s decision in Lowrey v. State; and (7) the trial court erred in denying Willacy"s motion for postconviction DNA testing."
• People v. Frank Abilez, 2007 Cal. LEXIS 6758 (CA 6/28/2007) "A conviction and death sentence for the murder of defendant's mother are affirmed on automatic appeal over claims of error regarding: 1) a failure to grant a motion to relieve defendant's attorney and appoint new counsel; 2) admonishments to jurors during voir dire; 3) the excusal of a juror for cause; 4) cumulative error; 5) exclusion of a codefendant's prior sex crimes; 6) sufficiency of the evidence; 7) alleged inconsistent verdicts; 8) instructional errors; 9) aggravating evidence; 10) mitigating evidence; 11) a failure to instruct the jury on the meaning of life without the possibility of parole; 12) double counting felonies; 13) defendant's motion for modification; 14) a failure to instruct on reasonable doubt; 15) a failure to instruct on pity as a mitigating circumstance; 16) constitutional challenges to California's death penalty law; 17) a challenge to the method of execution; 18) the cumulative effect of penalty phase errors; and 19) an attempted reservation of rights." [via Findlaw]People v. Mark Thornton, 2007 Cal. LEXIS 6759 (CA 6/28/2007) "A conviction and death sentence are modified as to the sentence on a noncapital crime and otherwise affirmed on automatic appeal over claims of error regarding: 1) denial of a motion to dismiss the indictment; 2) excusing prospective jurors for cause over defense objections; 3) treating life- and death-leaning prospective jurors differently; 4) testimony regarding defendant's burglary adjudication; 5) restrictions on the cross-examination of a prosecution witness; 6) claims regarding defendant's statements to his grandmother; 7) instructional error; 8) a ruling against playing a videotape to the jury; 9) exclusion of other items of proposed mitigating evidence; 10) cumulative error; 11) prosecutorial misconduct; 12) the procedure for replacing an excused juror; 13) evidence and instructions regarding prior crimes; 14) a refusal to give a special age-related factor instruction; 15) a failure to instruct on the burden of proof; and 16) additional challenges to California's death! penalty statute and other aspects of state law."[via Findlaw]Jesse Guardado v. State, 2007 Fla. LEXIS 1145 (FL 6/28/2007) "A judgment and sentence finding defendant guilty of first degree murder and imposing a death sentence is affirmed over claims of error regarding: 1) a decision not to conduct a Nelson hearing; 2) a heinous, atrocious, or cruel aggravator; 3) a cold, calculated and premeditated (CCP) aggravator; 4) a Ring issue; 5) the sufficiency of the evidence; and 6) the proportionality of the death sentence." [via Findlaw]
• Rivera v. State, 2007 Ga. LEXIS 486 (GA 6/25/2007) "�In affirming the conviction the Court found no abuse of discretion by the trial court in allowing similar transaction evidence of the murder of Bosdell, for which Rivera was indicted in Columbia County where her remains were discovered, and of the rapes and murders of two South Carolina victims. The Court also held that the evidence supported the trial court"s finding that audiotaped statements made by Rivera to the police were admissible. Furthermore, the Court rejected Rivera"s argument that the trial court abused its discretion by sua sponte forcing upon him, without making any inquiry as to whether he was competent to control his defense, a form of hybrid representation in which he represented himself as co-counsel. The Court concluded that Rivera acted merely as an involved client who wished to have his own views made known to the jury and that the trial court, by ensuring that counsel respected Rivera"s wishes, did not transform counsel into Rivera"s co-counsel.The Court also held that the evidence was sufficient to authorize the jury to find that certain statutory aggravating circumstances existed beyond a reasonable doubt which authorized imposition of the death sentence and that the sentence of death in this case was not excessive or disproportionate."�[Drawn from the Court provided headnotes]
• Anjail Muhammad v. State, 2007 Ga. LEXIS 489 (GA 6/29/2007) , 2007 Ga. LEXIS 489 (GA 6/29/2007) Appeal denied on claims relating to "provisions of Georgia’s amended criminal discovery statute, OCGA § 17-6-1 et seq. Muhammad has been indicted on malice murder, felony murder, and related charges in connection with the death of Nodiana Antoine. Justice Robert Benham wrote for the Court. Chief Judge Roger W. Dunaway, Jr. also participated in the decision.. . . The Court observed that the majority of Muhammad’s challenges to the amended Act were decided adversely to her in the Court’s decision in Stinski v. State. Further finding that a defendant’s attorney is free to investigate for mitigating evidence and need not produce any substantive discovery to the State until the close of evidence in the guilt/innocence phase of the trial, the Court rejected Muhammad’s assertion that the amendments to the Act violated her constitutionally-guaranteed right to effective assistance of counsel. The Court also addressed in detail Muhammad’s argument that the amended Act’s requirement that a defendant disclose any mitigating evidence she intends to introduce in the presentence hearing violates the privilege against self-incrimination as guaranteed by both the state and federal constitutions. The Court held that requiring a defendant to produce at or before the guilt/innocence verdict the items of evidence listed in OCGA § 17-16-4 (b) (3) (A) and (B) that she intends to introduce in the presentence hearing is not compelled self-incrimination and that statements of witnesses the defendant intends to call to testify are not personal to the defendant. Accordingly, as there are four requirements for triggering the privilege against self-incrimination, including that the information sought is incriminating, is personal to the defendant,is compelled, and is testimonial in nature, the production of these items of evidence and of the statements of witnesses did not trigger the privilege. The Court, however, did conclude that with regard to the defendant’s disclosure of the list of witnesses she intends to call in the presentence hearing, the disclosure could in some circumstances trigger the privilege. Thus, upon proper invocation by the defendant, the trial court may conduct an appropriate proceeding to hear the matter and, where the defendant is able to show that such a disclosure would violate her constitutional rights, issue a protective order or grant a continuance pending the completion of the guilt/innocence phase of the trial. [Drawn from the Court provided headnotes]
• State v. Paul McManus, 2007 Ind. LEXIS 496 (Ind 6/27/2007) Atkins relief vacated.. McManus contends that his trial attorneys were ineffective for their failure to adequately advocate for his incompetency at trial and for their failure to properly investigate mitigating factors for the penalty phase.
• State v. Alturik Francis, 2007 N.J. LEXIS 711 (NJ 6/27/2007) Grand Jury can be used as fishing expedition in some circumstances to inquire in to potential defense mitigation strategy.
• Elwood Jackson v. State, 2007 Okla. Crim. App. LEXIS 23 (Okla Crim App 6/25/2007) Relief denied over a cacophony of claims including: (A) the trial court applied an unconstitutional standard in excusing two prospective jurors for cause, based upon their moral reservations about the death penalty; (B) the trial court erred in allowing the videotapes to be played for the jury over defense objection and without first reviewing them; (C) the material contained within the videotapes was cumulative; (D) numerous irrelevant and prejudicial statements that should not have been introduced into evidence; (E) introduction of gruesome and unfairly prejudicial photographs; (F) victim impact evidence; (G) the victim impact statements were improper as they contained characterizations of the crime and requested the jury return a sentence of death; (H) Oklahoma’s capital sentencing scheme because it functions as a “super-aggravator” outside the statutory process of weighing aggravating and mitigating circumstances; (I) prosecutor’s improper comments; (J) evidence was insufficient to establish beyond a reasonable doubt the “great risk of death to more than one person” aggravating circumstance; (K) t the “great risk of death to more the one person” aggravating circumstance; (L) “the murder was committed for the purpose of avoiding arrest or prosecution” is unconstitutionally vague and overbroad; and (M) trial errors, when considered cumulatively, deprived him of a fair sentencing determination/

(Advance Sheet Week of July 2, 2007) -- In Favor of Life or Liberty

• Edward Zakrzweski v. McDonough, 2007 U.S. App. LEXIS 15827 (11th Cir 7/3/2007) Eleventh Circuit vacates a finding that a Rule 60(b) motion was an abuse of a writ. Initial habeas counsel (Nall) for Zakrzweski took positions and actions that resulted in a pro se bar complaint and a request for new counsel. The district court denied the request for new counsel and denied relief, on subsequent appeal Zakrzweski lost. New counsel was recruited nonetheless while the habeas appeal was pending and filed a Rule 60(b) motion requesting reconsideration. The Eleventh Circuit, despite previously denying relief, remands the finding of abuse of the writ and orders the district court to examine whether relief is appropriate under Rule 60(b)
• Paul Reid v. State,2007 Tenn. Crim. App. LEXIS 525 (Tenn.Crim.App. 7/3/2007) Reid is not able to competently “waive his appeals.”

(Advance Sheet Week of July 2, 2007) -- In Favor of Death

• Arturo Diaz v. Quarterman, 2007 U.S. App. LEXIS 15855 (5th Cir 7/3/2007) (unpublished) Relief denied on "whether trial counsel rendered ineffective assistance during the punishment phase of trial by failing to adequately investigate and present readily available mitigating evidence."
• Bryan Jennings v. McDonough, 2007 U.S. App. LEXIS 15828 (11th Cir 7/3/2007) In case involving death row prisoner, denial of habeas petition is affirmed over claims that: 1) petitioner's sentence was rendered unconstitutional by the application of two invalid aggravating factors—that the murder was "heinous, atrocious, and cruel" and "cold, calculated, and premeditated"; 2) the prosecution withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); and 3) petitioner received ineffective assistance of counsel during the penalty phase of his trial.
• People v. Christopher Geier, 2007 Cal. LEXIS---- (CA 7/2/2007) "A conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) joinder; 2) exclusion of third party culpability evidence; 3) exclusion of an allegedly incriminating videotaped statement by a third party; 4) admission of evidence; 5) jury instruction; 6) a failure to give a unanimity instruction; 7) DNA evidence; 8) judicial misconduct; 9) denial of defense penalty phase instructions; 10) denial of an automatic motion to modify the verdict; 11) the constitutionality of the lying-in-wait special circumstance; 12) intercase proportionality; 13) constitutional challenges to the death penalty statute; 14) international law; and 15) the cumulative effect of errors." [via Findlaw]
• Allen Cox v. State, 2007 Fla. LEXIS 1188 (FL 7/5/2007)" Denial of a motion to vacate defendant's conviction for first-degree murder and sentence of death, and a petition for a writ of habeas corpus are affirmed and denied, respectively, over claims of error regarding: 1) ineffective assistance of counsel; and 2) newly discovered evidence." [via Findlaw]
• Richard Johnson v. State, 2007 Fla. LEXIS 1189 (FL 7/5/2007) "Convictions of first-degree murder, kidnapping, and sexual battery with great force, and a resulting death sentence, are affirmed over claims of error regarding: 1) a grant of a challenge for cause to a potential juror over defense objection; 2) admission of a statement by the victim while she was being strangled; 3) allowing the state to proceed on a robbery count charged by information rather than indictment; 4) improper cross-examination of the defendant; 5) sufficiency of the evidence of kidnapping, sexual battery, and felony murder; 6) proportionality of the death sentence; 7) imposition of a death sentence after the defendant rejected a plea bargain for a sentence of life imprisonment; 8) application of the heinous, atrocious, or cruel (HAC) aggravator; and 9) the constitutionality of Florida's capital sentencing laws and procedures" [via Findlaw]
• David Alan Gore v. State, 2007 Fla. LEXIS 1198 (FL 7/5/2007) "Denial of a motion for postconviction relief and a petition for a writ of habeas corpus from a murder conviction and death sentence is affirmed and denied, respectively, over claims of error regarding: 1) the presentation of allegedly untruthful parole possibilities; 2) improper ex parte communications; 3) ineffective assistance of counsel; 4) time served on death row being cruel and unusual punishment; 5) the constitutionality of the death penalty statute; and 6) Apprendi and Ring violations with the death penalty statute" [via Findlaw]
• Brenda Evers v. State, 2007 Ok Cr 23; 2007 Okla. Crim. App. LEXIS 25 (Okla. Crim. App. 6/21/2007) Relief denied over dissent. The dissent sums up the case better than I ever could when it notes: "The first stage of this capital murder trial is rife with error. That error, at its most egregious, includes a pattern of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman. The jury was allowed to consider such evidence, with no limiting instruction, in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman. I cannot agree with the majority’s analysis of the Oklahoma Evidence Code’s provisions which embody this rule.That analysis is contrary to the purpose of the rule and to the jurisprudence of this Court.. . . The evidence in question here included testimony about(1) Andrew’s prior adulterous affair with J.T.H., and (2) her prior adulterous affair with another man; (3) neighborhood boys had once told their mother that Andrew had “come on to them” when they were working at her house; (4) on the occasion of a restaurant dinner her dress was too short, she showed too much cleavage, and someone there called her a “hoochie;” (5) she had said she liked having workmen at her house and used them to babysit; (6) she dyed her hair red after learning a male acquaintance was partial to redheads; and (7) during an argument with a plumber, she threatened to kill him." This is only a partial list of the testimony Andrew complains of on appeal, but it will suffice to demonstrate the tenor of the prosecutor’s evidence."
• State v. Maxwell White, 2007 Ohio 3424 (Ohio 5th App 7/3/2007) Relief denied on claims "the trial court abused its discretion in failing to appoint appellant’s counsel of choice to pursue his PCR petition and the instant appeal;" trial court erred in accepting and adopting findings of fact and conclusions of law submitted allegedly ex parte to the court;" and "trial court erred in finding it did not have jurisdiction to entertain appellant’s January 30, 2006 post conviction petition."

Noncapital of note:

• State v. Barbara Oakly, et. al. , 2007 Tex. LEXIS 525 (Tex 6/8/2007) Examination of Texas's compensation statute for those wrongfully convicted.

Selected Excerpts from, & Commentary on, this Edition's Cases

[Note formatting may be off below this point.]

Scott Panetti v. Quarterman, No. 06-6407 (6/28/2007) By now anyone interested in readingPanetti v. Quartermanhas read it. The opinion is rather straightforward: Texas failed to afford Panetti a meaningful opportunity to test whether he was competent enough to be executed. From theCDW blog

Here is what I saw:

• This was not an error correction case. This was also not a case that set new standards or even redefining the governing case law (Ford v. Wainwright).Panetti, likeSmith,Brewer,Abdul-Kabir,Miller-El(etc) before it, was yet another message to the Fifth Circuit & the Texas courts about a perceived over-production of executions in Texas.Panettireadily could have been a case about error correction or even redefining the standards the Court laid out inFord v. Wainwright. The Court instead spilled much ink focusing on what it held to be insufficient process afforded to Panetti by the state trial court & the subsequent rubber stamping of that flawed process by the Texas Court of Criminal Appeals and then the Fifth Circuit. In that regard, the issue at bar inPanetti(competency to be executed) was less important as the language of the opinion made clear Justice Kennedy had problems with the failure to afford the procedural protections afforded by precedent.
• The fact that Kennedy wrote the opinion and Thomas wrote the lead dissent means that at the conference the majority was likely 5-4 in favor of reversal.
• The Court issued opinions in nine capital cases this Term. The Court ruled in favor of death four times (Belmontes,Landrigan,Lawrence,Brown) and in favor of the defendant five times (Abdul-Kabir,Brewer,Smith,Weaver,Panetti). Only one case was not decided by how Justice Kennedy aligned himself (Weaver). Justice Kennedy’s vote, to repeat the obvious, governs the Court’s capital jurisprudence. He doesn’t seem to be in favor of dismantling it, but rather slowly modifying it.
• The outlines of capital jurisprudence for the foreseeable future is set out by the decisions this term. Justice Kennedy is likely to be the swing vote — at least until Justice Scalia alienates one (or both) of the newer Justices or one of the liberals retires. Looking atSCOTUSBlog’s stat packjustices Robert, Kennedy & Alito — other than in capital cases — vote together more often than any other three judge combination so it would not be out of the question as those justices remain on the Court they will move to the left like Justices Kennedy, O’Connor, Stevens, & Souter did before them.
• In cases granting relief to the condemned four of the five (Abdul-Kabir,Brewer,Smith,Panetti) come from the Fifth Circuit or Texas which historically would affirm almost any capital case that came before them, including those where counsel was asleep, drunk or stoned at trial.
• My earlier commentsonUttecht v. Brownwere again confirmed today by thePanettiCourt — Justice Kennedy appears to want to move capital jurisprudence towards greater protection for capital defendants, but not to the extent of stopping all (or even more than a few) executions. In some ways the message inPanetti& the three other Texas capital cases this term sent a message that is the mirror opposite of the message Kennedy & the conservatives have purportedly been giving the Ninth Circuit.
• When read in conjunction with the Court’s other opinions this term - the Court continues reigning in what Justice Kennedy perceives as the excesses of capital jurisprudence that he sees as out of the mainstream, whether that is granting too much or too little relief in capital cases. Put another way, Justice Kennedy appears to be proposing a “Goldilocks standard” for capital jurisprudence– not too hot (Texas & the Fifth Circuit) not too cold (a certain unnamed west coast circuit) but somewhere in between. What the next Term holds remains to be seen, but some already foreseeing another scolding of the Texas Court of Criminal Appeals early next Term in Medellin v. Texas.

DPIC notes another aspect ofPanetti

• Looking beyond this decision, the American Bar Association has passed a resolution calling for an end to executing those with serious mental illness. An almost identical resolution has been endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness, which urged the Justices to take Panetti’s case.

Christopher Stevens v. McBride, 2007 U.S. App LEXIS ----- (7th Cir 6/18/2007) A divided three-judgeSeventh Circuitpanel vacates this Indiana death sentence imposed on “an emotionally disturbed young man who had been abused and raped as a child” where “the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth.” The vote in favor of setting aside the death sentence was 2-1. One of the judges in the majority on that issue would have also set aside the habeas petitioner's murder conviction due to ineffective assistance of counsel, but neither of the other two judges agreed on that issue.Rob Loblaw notes:

In a splintered habeas decision, a divided panel of the Seventh Circuit orders a new sentencing hearing for Indiana death row inmate Christopher Stevens, who was convicted of molesting and brutally murdering a 10-year old. Stevens himself had been abused and raped as a child, and the defense intended to use his history of mental health problems as mitigating evidence to convince the jury to save his life. To do that, the defense team needed to hire an expert. They chose Dr. Lawrence Lennon, who focused on adolescent psychiatry.

Dr. Lennon wrote an extremely damaging report, in which he described Stevens as cold and calculating, opined that he showed no remorse for his actions and instead blamed others, and concluded that he would likely molest again if he had the opportunity. When the defense team questioned Dr. Lennon about why his report was so unfavorable, he told them not to worry, and assured them that the report was designed to “sandbag” the prosecution. Shortly thereafter, the defense team learned that Dr. Lennon was a rare breed of psychiatrist indeed, as he believed that mental disorders were “a myth.” Dr. Lennon’s favored therapeutic technique was putting teenage boys on his lap and nursing them from a bottle.

Perhaps all this should have given the defense team pause about putting Dr. Lennon in front of the jury. But no. The defense did not bother to have Stevens examined by any other mental health professional. During the sentencing phase, the defense called Dr. Lennon as its only expert witness. Dr. Lennon’s testimony did nothing to help Stevens, and on cross examination, the prosecution was able to use his report practically verbatim. And as if to seal Stevens’ fate, Dr. Lennon testified about some gruesome details that Stevens had admitted to him, details he had not shared with the defense team. The jury recommended the death penalty.

PerhapsDr. Lennon’s performancein front of the jury should have given the defense team pause about using Dr. Lennon at the sentencing hearing. But no. The defense again called Dr. Lennon, who told the trial judge that Stevens was “a great risk to society.” The judge accepted the jury’s recommended and sentenced Stevens to death.

The majority of Judges Wood and Ripple concludes that calling Dr. Lennon not once but twice amounts to ineffective assistance of counsel. Accordingly, it orders the state to resentence him. On the other hand, the majority of Judges Wood and Manion rejects Stevens’ argument that he should also get a new guilt phase trial. Judge Ripple dissents from this portion of the decision, arguing that Stevens’ attorneys inexplicably failed to pursue a mental illness defense. He’d grant Stevens an entirely new trial. Finally, in a partial dissent, Judge Manion explains that he would not grant Stevens habeas relief at all.

George Lopez v Shriro, 2007 U.S. App. LEXIS 14470 (9th Cir 6/20/2007) “[T]he district court erred by determining that Lopez's ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.” From theCDW blog

The Ninth Circuit has ordered a remand in George Lopez v. Shriro, No. 06-99000 (9th Cir 6/20/2007), holding “the district court erred by determining that Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.”

In finding that exhaustion occurred the Court notes that “Lopez’s initial [state] bifurcated petition did not specifically challenge counsel’s lack of preparation for the penalty phase, the issue was eventually briefed in memoranda to the state trial court, and that court did issue a ruling on the merits.” “In his statement of issues, Lopez indicated he was prejudiced by his trial counsel’s ‘abandonment [of] his client at the trial and/or sentencing.’ He identified Strickland as the governing federal constitutional standard.”

We conclude that the district court erred by determining that Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted. Lopez did at least make the general allegations of his counsel’s lack of penalty phase preparation to the Arizona Supreme Court (including improper delegation to an inexperienced subordinate and failure to prepare mental health experts), and the state court record contains some evidence of a dysfunctional childhood and alcoholism. A “quick look” at the merits of his federal claim also reveals that Lopez has sufficiently alleged the deprivation of a constitutional right.

Miller & Lebrum v. 18th Judicial District, 2007 MT 149 (MT 6/19/2007) Prosecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted, “filing the required notice of intent 72 days late clearly is a ‘material' violation of (our rules).” From theCDW blog

A win is noted out of the Montana Supreme Court. Long-story short, the prosecution filed its intent to seek death months late and that was held to be improper.

John LeBrum and Branden Miller filed pre-trial motions to strike and preclude the State from seeking the death penalty when the prosecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted,“filing the required notice of intent 72 days late clearly is a ‘material’ violation of (our rules).”

The trial court denied defendants’ motions. The defendants filed a Petition for Writ of Supervisory Control. The Montana Supreme Court granted defendants’ Petition, reversed the trial court, and ordered that the defendants’ motions to strike and preclude the death penalty must be granted.

The decision is Miller & Lebrum v. 18th Judicial District, 2007 MT 149 (6/19/2007) (link includes access to the briefs of the parties).

State v. Porfirio Jimenez, 2007 N.J. LEXIS 700 (NJ 6/18/2007) For purposes of making a Mental Retardation determination under Atkins v. Virginia: (A) a jury must be unanimous in its finding the Defendant is not mentally retarded if the matter is to be tried capitally, and (B) anything less than unanimous jury (that is at least one juror believing the defendant is mentally retarded) means a sentence less than death must be imposed.CapDefNet notes:

Last week, on June 18, 2007, the New Jersey Supreme Court issued an opinion clarifying State v. Jimenez, 908 A.2d 181 (N.J. 2006), which adopted a framework for adjudicating Atkins claims. State v. Jimenez, ___ A.2d ___, 2007 WL 1752645 (N.J. June 18, 2007). The Court ruled: “Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death.” In light of this holding, the Court concluded that conducting a separate proceeding to determine mental retardation following the close of the guilt phase and prior to the penalty phase no longer made sense. The appropriate procedure, the Court found, “is to give a defendant the opportunity to demonstrate to the jury in the penalty phase, by a preponderance of the evidence, that he or she is mentally retarded. If a single juror is satisfied that a defendant has met his or her burden, the defendant will be sentenced to life imprisonment.” The Court ended by noting that “a defendant may have as many as three opportunities to present a mental retardation issue: at pretrial before the trial court; before a jury during the guilt-phase trial [to negate an element of the crime]; and finally, before a jury at the penalty-phase trial.”

Comm. v. Charles Bussell, 2007 Ky. LEXIS 133 (KY 6/21/2007) Relief granted on counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that another person, and not Bussell, committed the crimes for which Appellant was convicted.CapDefNet notes:

Last week, on June 21, 2007, the Kentucky Supreme Court affirmed the lower court’s granting of Charles Bussell’s motion to vacate his conviction and death sentence. Commonwealth v. Bussell, ___ S.W.3d ___, 2007 WL 1790691 (Ky. June 21, 2007). The Court upheld the lower court’s finding that the Commonwealth suppressed numerous police reports that suggested “the possibility of an alternate suspect in [the victim’s] death.” It rejected the Commonwealth’s contention that “alternate suspect” information is not exculpatory unless it eliminates the defendant as a culprit. The Court further found that “the Brady violation in this case was compounded by the ineffective assistance of Bussell’s trial counsel who has since been permanently disbarred.”

Bussell alleged that trial counsel performed deficiently in failing to investigate key prosecution witnesses. Had he done so, he would have found significant information that would have undermined their credibility, including evidence of mental limitations, inconsistent statements, and poor reputation for truthfulness. Bussell also complained about trial counsel’s failure to impeach testimony of the victim’s son. The lower court found “disturbing” that a statement contradicting the victim’s son was in trial counsel’s files but was not used. Finally, Bussell contended that counsel was ineffective in failing to educate himself in various forensic fields, thereby rendering his decision not to retain experts in the fields unreasonable. At the evidentiary hearing, he presented testimony from Doctor Saferstein, former Director of the New Jersey State Police Crime Lab, who strongly criticized the Commonwealth’s experts on paint, hair and fiber analysis. Bussell also presented testimony from an expert in tree and wood identification who offered an opinion contrary to that presented by the Commonwealth at trial. In affirming the lower court’s finding that Bussell was deprived of a fair trial, the Court accepted the lower court’s conclusion that trial counsel’s failings were the result of his inadequate investigation and his decision not to employ forensics experts could not be described as “tactical” given his ignorance about the relevant subjects.

The Kentucky Supreme Court also upheld the lower court’s finding that trial counsel was ineffective at the penalty phase. It agreed that counsel’s inability “to show the jury that Bussell had a single positive character trait” was because counsel “had not taken the time to find if he possessed any.” As for counsel’s explanation that Bussell’s uncooperativeness left him with only lingering doubt as mitigation evidence, the Court pointed out that residual doubt is not a mitigating factor in Kentucky. Further, “Bussell’s uncooperativeness did not relieve [counsel] of his duty to conduct a reasonable investigation for mitigating evidence.”

State v James Earl Reed, No. 26345 (S.C. 6/18/2007) Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review. From theCDW blog

The South Carolina Supreme Court on Monday in State v James Earl Reed, No. 26345 (S.C. 6/18/2007) finds that

James Earl Reed (Petitioner), who has been sentenced to die for murder, seeks to waive appellate review of the order denying his application for post-conviction relief (PCR) and to be executed. Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review.

Specifically, on his desire to drop his appeals:

On proceeding pro se it notes:

We questioned Petitioner at length about his decision to waive his right to counsel. Petitioner stated he was not satisfied with counsel’s representation of him because, according to Petitioner, she presumed he was guilty and was “against the evidence that proves his innocence.” Petitioner appeared upset that his counsel would not “fight for his innocence” in accordance with his wishes. We also questioned Petitioner whether he fully understood the nature of PCR proceedings and the appellate process following a denial of a PCR application. Petitioner asked the Court to allow him to waive his right to appeal and he stated he did not want us to review the questions raised in his PCR application. Yet, he also asked us to review the merits of his case, and he raised substantive claims regarding his trial which he desired the Court to address. Although Petitioner is competent to waive this right, we find troubling the fact that Petitioner clearly does not understand the procedural posture of his case

State v. Shon Miller, 2007 La. LEXIS 1508 (LA 6/29/2007) The Court below's pre-trial rulings prevented Miller from pleading not guilty by reason of insanity which resulted in a "constitutionally flawed jury trial." CapDefNet notes

The South Carolina Supreme Court on Monday in State v James Earl Reed, No. 26345 (S.C. 6/18/2007) finds that

James Earl Reed (Petitioner), who has been sentenced to die for murder, seeks to waive appellate review of the order denying his application for post-conviction relief (PCR) and to be executed. Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review.

Specifically, on his desire to drop his appeals:

We thoroughly questioned Petitioner during oral arguments about his trial, the PCR process, and the appeals process. We also questioned him about the consequences of his request to terminate any appeals from the denial of his PCR application. Petitioner alleged he wanted to waive his right to appeal, but he also requested the Court review his pro se brief and either dismiss the case if the Court found him innocent or set a date for execution if the Court found him guilty. Specifically, Petitioner asked the Court to review substantive claims regarding the quality of representation he received during his trial and PCR proceeding, evidentiary matters which he claims should have been pursued during prior proceedings, and whether he had a right to two standby counsel during his trial. We find Petitioner conditioned his request to waive his right to appellate review on our determination of his innocence or guilt based on the merits of the case.3 Unlike other capital defendants who have confirmed their guilt and waived their right to appeal, Petitioner’s conditional request is not an unequivocal waiver of the right to appeal. Compare State v. Passaro, 350 S.C. 499, 507-08, 567 S.E.2d 862, 867 (2002) (capital defendant reaffirmed his request to waive his right to appeal); State v. Torrence, 322 S.C. 475, 477-79, 473 S.E.2d 703, 705-06 (1996) (capital defendant remained steadfast in his desire to withdraw his appeal). Accordingly, Petitioner has failed to make a knowing and intelligent waiver of his right to appeal.

On proceeding pro se it notes:

We questioned Petitioner at length about his decision to waive his right to counsel. Petitioner stated he was not satisfied with counsel’s representation of him because, according to Petitioner, she presumed he was guilty and was “against the evidence that proves his innocence.” Petitioner appeared upset that his counsel would not “fight for his innocence” in accordance with his wishes. We also questioned Petitioner whether he fully understood the nature of PCR proceedings and the appellate process following a denial of a PCR application. Petitioner asked the Court to allow him to waive his right to appeal and he stated he did not want us to review the questions raised in his PCR application. Yet, he also asked us to review the merits of his case, and he raised substantive claims regarding his trial which he desired the Court to address. Although Petitioner is competent to waive this right, we find troubling the fact that Petitioner clearly does not understand the procedural posture of his case

State v. Shon Miller, 2007 La. LEXIS 1508 (LA 6/29/2007) The Court below's pre-trial rulings prevented Miller from pleading not guilty by reason of insanity which resulted in a "constitutionally flawed jury trial."CapDefNet notes

On June 29, 2007, the Louisiana Supreme Court reversed the convictions and death sentence of Shon D. Miller, Sr., because “the pretrial rulings of the trial court denied [Miller] his constitutional right to have the jury decide whether he was not guilty by reason of insanity . . ..” State v. Miller, ___ So.2d ___, 2007 WL 1866753 (La. June 29, 2007). Under state law, a defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the trial court may allow the change of plea upon a showing of “good cause.” Here, Miller first sought to change his plea some three months after arraignment but ten months prior to trial. He again sought to change his plea one month before trial. Although he presented extensive evidence about his history of mental health problems, the trial court rejected his requests to enter a plea of not guilty by reason of insanity. The Louisiana Supreme Court found that the trial court erred “by making proof of insanity at the time of the offense the sole determinative factor in deciding whether [Miller] could change his plea.” The court clarified that “good cause” for a change of plea is shown when “the defendant produces an indicia of insanity and shows the plea is not changed as a dilatory tactic to achieve a strategic advantage.” The language of the statute “does not obligate the defendant to prove his insanity at the time of the offense to change his plea.” In this case, “the trial court usurped the jury’s role to decide the ultimate merits of the insanity defense.”

Donald Broadnax v. State, 2007 Ala. Crim. App. LEXIS 110 (Ala. Crim. App. 6/29/2007) "[T]he circuit court erred in denying his motion for leave to file a second amendment to his petition."CapDefNet notes

On June 29, 2007, the Alabama Court of Criminal Appeals held that the circuit court erred in denying Donald Broadnax’s motion for leave to file a second amended petition for post-conviction relief. Broadnax v. State, ___ So.2d ___, 2007 WL 1865450 (Ala. Crim. App. June 29, 2007). The motion was filed by replacement counsel some three months after her appointment and 45 days before the scheduled evidentiary hearing. (Original counsel had been permitted to withdraw because of financial hardship, “a situation not unusual in the representation of indigent death-row inmates.”) Replacement counsel explained that during her interviews with Broadnax, she had discovered relevant mitigating factors that had not been included within the pending Rule 32 motion which raised a claim of ineffective assistance of counsel at sentencing. She had also learned that Broadnax suffered from a hand injury at the time of the offense that may have made it impossible to have beaten the victims as severely as the trial testimony indicated they had been beaten. An allegation that trial counsel was ineffective in failing to discover this information constituted a new claim.

In finding that Broadnax should have been permitted to amend his petition to add the new allegations and claim, the court rejected the State’s contention that having to respond to the amendment alone established undue prejudice to the State. Further, it found the motion was not filed on the “eve” of the hearing and that amendment would not have unduly delayed the proceedings. Nor could the court fault replacement counsel for taking three months to file the motion as counsel “clearly needed time to familiarize herself with the case and to investigate after her appointment in January 2005, and three months is not an unreasonable amount of time to prepare in a capital case.” The court concluded: “Although there was an almost-two-year delay between the filing of Broadnax’s original petition and [replacement counsel’s] motion to file a second amended petition, under the circumstances of the case, we cannot say this was the result of negligence or intentional delay.”

The court found additional error by the circuit court. It had denied some of Broadnax’s allegations of ineffective assistance of counsel on the ground that the court of criminal appeals had rejected the underlying substantive claims on direct appeal under the plain error rule. The Alabama Supreme Court has held, however, that a finding of no plain error does not automatically foreclose a determination of prejudice under Strickland. The case was remanded for reconsideration of the allegations erroneously denied and for amendment of the petition.

Lyons v. Luebbers, 2007 WL 1796212 (E.D. Mo. 6/19/2007) Authorizing attorneys who had unsuccessfully represented Andrew Lyons in federal habeas proceedings to pursue executive clemency.CapDefNet notes

Last week, on June 19, 2007, United States District Judge Charles A. Shaw of the Eastern District of Missouri authorized interim payments to the attorneys who had unsuccessfully represented Andrew Lyons in federal habeas proceedings for their work in pursuing executive clemency. Lyons v. Luebbers, 2007 WL 1796212 (E.D. Mo. June 19, 2007).