This week's edition highlights several capital cases out of the Fourth Circuit which cover a myriad of issues from AEDPA to bias jurors. One other case given more then cursory attention is juror competency/juror insanity case out of the First Circuit. In Depth looks at two gentlemen who got off death row 20 years ago and attempts to compensate them for apparent "Jim Crowe Justice" in the murder of two white men. Finally my apologies for a late mailing this week as caseload, well enough say.

In Focus

Wright v. Angelone (7/16/1998, No. 97-32)Fourth Circuit denies relief "[o]n appeal, Wright contends that he is entitled to relief because (1) the Virginia circuit court lacked jurisdiction over counts four and five of the indictment; (2) the Virginia Supreme Court denied him equal protection of the law when it affirmed his convictions on counts four and five in violation of Virginia state law; (3) he was denied a fair and impartial jury when the victim's family intimidated a juror during the trial; and (4) he was denied effective assistance of counsel. He further contends that the district court abused its discretion when it denied his motion for funds to hire a neurologist pursuant to 28 U.S.C.A. § 848(q)(9) (West Supp. 1998)." Of interesting is the analysis of the AEDPA question:

The Virginia Supreme Court summarily dismissed Wright's state habeas petition in a single paragraph order without a hearing. (J.A. at 478.) Wright questions, therefore, whether the more deferential standards of review of the AEDPA should apply to the state court's decision, "[g]iven the brevity of the state court order." (Petitioner's Br. at 15.) We reject Wright's assertion to the extent that he argues that the Virginia state court decision was not an "adjudication," and, therefore, not subject to the stricter AEDPA standards of review. The Virginia Supreme Court decision was clearly an adjudication in which some claims were rejected pursuant to procedural default, while others were decided on the merits. In a similar situation, the Seventh Circuit, faced with reviewing a state court's "perfunctory" analysis of a petitioner's claim, observed:

[O]f course the better the job the state court does in explaining the grounds for its rulings, the more likely those rulings are to withstand further judicial review. That is just realism. It doesn't follow that the criterion of a reasonable determination is whether it is well reasoned. It is not. It is whether the determination is at least minimally consistent with the facts and circumstances of the case. Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.), cert. denied, 118 S.Ct. 72 (1997); see also Porter v. Gramley, 112 F.3d 1308, 1313 (7th Cir. 1997) (interpreting § 2254 to provide that "a responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment" (citing Lindh v. Murphy, 96 F.3d at 871)), cert. denied, 118 S. Ct. 886 (1998); Lindh v. Murphy, 96 F.3d 856, 857 (5th Cir. 1996) (holding that federal habeas courts "will accord greater weight to thoughtfully reasoned [state court] decisions"), rev'd on other grounds, 117 S. Ct. 2059 (1997).

As the Hennon court candidly acknowledged, a detailed state court order is more likely to withstand federal judicial scrutiny. This Court will not, however, presume that a summary order is indicative of a cursory or haphazard review of a petitioner's claims. As a result, unless we conclude, after an independent review of the applicable law, that the Virginia Supreme Court's resolution of Wright's claims was "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," the writ will not issue. 28 U.S.C.A. § 2254(d); see also Green, 1998 WL 237506 at *12.

Brown v. AngeloneFourth Circuit in this capital case holds that AEDPA's statute of limitation applies one year from the date of enactment and will do so in all cases in that circuit, and rejects any suggestion of a case by case analysis. Of note:

We hold that a prisoner whose statutory right to seek federal habeas relief accrued prior to the AEDPA must receive a reasonable period of time after the statute's effective date to file his petition. This holding comports with that of every one of our sister circuits -- six to date -- to consider the proper application of the new limitation periods found in § 2244(d) or § 2255 (the analogous statutory provision governing habeas petitions filed by federal prisoners). See Flores, 135 F.3d at 1002-04 (§ 2255); Burns, 134 F.3d at 110-12 (§ 2244(d) and § 2255); Calderon, 128 F.3d at 1286-87 (§ 2244(d)); Simmonds, 111 F.3d at 744-46 (§ 2255); Peterson v. Demskie, 107 .3d 92, 93 (2d Cir. 1997) (§ 2244(d)); Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir. 1996) (en banc) (dicta), rev'd on other grounds, 117 S. Ct. 2059 (1997); see also Andrews v. Johnson, 976 F. Supp. 527, 531-32 (N.D. Tex. 1997) (§ 2244(d)); Dickerson v. Stalder, 975 F. Supp. 831, 832 (E.D. La. 1997) (§ 2244(d)); Kapral v. United States, 973 F. Supp. 495, 499 (D.N.J. 1997)(§ 2255); United States v. Ramos, 971 F. Supp. 199, 202 n.2 (E.D. Pa. 1997) (§ 2255); Martin v. Jones, 969 F. Supp. 1058, 1060-61 (M.D. Tenn. 1997) (§ 2244(d)); Duarte v. Hershberger, 947 F. Supp. 146, 148-49 (D.N.J. 1996) (§ 2244(d)).

Fitzgerald v. GreeneFourth Circuit rejects claims: "(1) that he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments; (2) that the Commonwealth failed to provide exculpatory information as required by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, in violation of the Fourteenth Amendment; (3) that the trial court failed to instruct the jury that he was parole ineligible in violation of the Eighth and Fourteenth Amendments; and (4) that he was denied effective assistance of counsel in violation of the Sixth Amendment."

Turning to the specific facts of this case, we find that during voir dire, the trial court asked Bradshaw if "[he] or any member of [his] immediate family [had] been the victim of a rape, robbery, or abduction?" Bradshaw answered "no." (J.A. at 29-30.) The court later asked him if he knew of any reason that he could not give Fitzgerald a fair trial based solely upon the evidence presented and the law. Bradshaw agreed that he could render a fair verdict. Bradshaw subsequently was seated on the jury.

Bradshaw disclosed to the jury that he had no sympathy for rapists because his granddaughter had been molested as a child. He then made a motion that the jury impose a life sentence upon Fitzgerald for the rape of Tiffany Lovelace.

The Virginia Supreme Court rejected Fitzgerald's claim. The court concluded that Bradshaw "testified truthfully during the voir dire. No one asked Bradshaw during voir dire whether his granddaughter had been molested. Rather, he was asked whether any member of his immediate family had been raped." Id. at 511-12.

Absent clear and convincing evidence to the contrary, we will presume the correctness of the state court's finding that Bradshaw's responses during voir dire were not only honest, but factually accurate. See 28 U.S.C.A. § 2254(e)(1). Because Fitzgerald has failed to present any evidence to the contrary, we will not disturb the state court's factual determination. As a result, Fitzgerald has failed to satisfy the McDonough test.

[Further] At the time of Bradshaw's statement, the jury had already voted to convict Fitzgerald on all counts and unanimously had agreed to rec- ommend the death sentence for the murders of White and Morrison. In fact, the jury had agreed to all of Fitzgerald's sentences except the rape charge when Bradshaw stated that he had no sympathy for a rap- ist and recommended that Fitzgerald receive a life sentence for the rape of Tiffany Lovelace. The jury declined to adopt Bradshaw's recommendation and instead imposed a forty-year sentence for the crime. Also, during the post-trial hearing, Bradshaw stated unequivo- cally that his granddaughter's experience did not affect his voting to convict or sentence Fitzgerald. Based upon the foregoing circum- stances, combined with the overwhelming evidence of Fitzgerald's guilt, his propensity for future dangerousness, and the vileness of his crimes, we are confident that Bradshaw's presence on the jury did not result in actual prejudice to Fitzgerald. See Brecht, 507 U.S. at 637 (holding that an error does not have a substantial and injurious effect on a jury verdict unless "it resulted in `actual prejudice'" to the habeas petitioner (quoting United States v. Lane, 474 U.S. 438, 449 (1986))).

Williams v. DrakeWith juror competency & questioning being an oft risen issue in post-conviction proceedings the First Circuit hold that a juror's mutterings about knowing the identity of JonBennet Ramsey's killer not sufficiently colorful to render them incompetent to sit as a juror.

During a recess on the first day of trial, a voluble juror struck up a conversation with a court attaché. The juror -- whom we shall call by the nom de guerre "Smith" -- recounted his recent jury service in an unrelated criminal case and confided that he had come to believe the accused might be involved in the celebrated murder of JonBenet Ramsey.

We start with the obvious. Smith's remark does not evince any bias in Williams's favor or any prejudice against the appellants; indeed, as the magistrate observed, the comment has no bearing whatever on the case sub judice. Moreover, the comment does not call into legitimate question Smith's ability to decide the case at and based solely on the evidence presented at trial. Under ordinary circumstances, then, it would not be error to retain the juror. See id. at 69-70; United States v. Angiulo, 897 F.2d 1169,1185 (1st Cir. 1990).

Of course, the appellants asseverate that the circumstances here are far from ordinary. Smith's statement, they maintain, is so bizarre that it makes manifest his incompetency to sit in judgment on any case. We accept the appellant's core premise: a person incapable of making rational judgments should not be permitted to serve on a trial jury if that disability is called to the judge's attention and a party seasonably requests the juror's removal. See United States v. Walsh, 75 F.3d 1, 4-5 (1st Cir. 1996).

We need go no further. We conclude that on this bareboned record the magistrate's decision that Smith was presumptively fit to continue serving as a juror in a civil case unrelated to the notorious murder to which his eccentric comment pertained was not an abuse of discretion.

Capital Cases

Wright v. Angelone (7/16/1998, No. 97-32)Fourth Circuit holds." After exhausting his state appeals, Wright petitioned the United States District Court for the Eastern District of Virginia for habeas relief. The district court denied Wright's petition and his motion for a Certificate of Appealability (COA), see 28 U.S.C.A. § 2253(c)(1)(B)(2) (West Supp. 1998); Fed. R. App. P. 22(b). After reviewing the record, briefs, and having had the benefit of oral argument, we, too, conclude that Wright has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(1)(B)(2)."

Brown v. AngeloneFourth Circuit in this capital case holds that AEDPA's statute of limitation applies one year from the date of enactment and will do so in all cases in that circuit, and rejects any suggestion of a case by case analysis.

Fitzgerald v. GreeneFourth Circuit rejects claims: "(1) that he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments; (2) that the Commonwealth failed to provide exculpatory information as required by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, in violation of the Fourteenth Amendment; (3) that the trial court failed to instruct the jury that he was parole ineligible in violation of the Eighth and Fourteenth Amendments; and (4) that he was denied effective assistance of counsel in violation of the Sixth Amendment."

Federal Criminal Law (selected cases)

United States v. WarrenEighth Circuit examines the rule of lenity and mandatory minimums

Prisoner Rights & Police Misconduct Cases

Williams v. DrakeFirst Circuit -- in a strange appeal revolving around juror competency -- holds that the prison guard brutality claims properly decided in favor of plaintiff & that a juror's mutterings about knowing the identity of JonBennet Ramsey's killer not sufficiently colorful to render them incompetent to sit as a juror.

Peterson v. Shanks Tenth Circuit upholds finding of denial of access to courts and retaliation claims.

Colston v. Barnhart Fifth Circuit holds in this police misconduct case that police were justified in shooting suspect and thus entitled to immunity.

Murray v. Dosal Eighth Circuit addresses Prisoner Rights, PLRA, and the constitutionally of the filing requirements under the PLRA.

Shaffer v. Saffle TenthCircuit holds DNA extraction from inmates does not violate due process.

Other Perspecitives

As I do most weeks, find below the nation's premiere legal online provider, The National Law Journal (http://www.ljx.com) Courthouse section's analysis of cases covered here first last week, as well as those few cases that seem to slip through the net of coverage.

THE TRIAL COURT did not err in admitting evidence that the victim of rape had consensual sexual intercourse with the defendant after the alleged rape, the Supreme Court of Arkansas ruled July 9. State v. Babbs , CR97-1101. Affirming, the court agreed with the state that a victim's purported consensual sex with the defendant, although occurring after the alleged rape took place, is "prior sexual conduct" under the Rape Shield statute and may be ruled inadmissible for that reason. Associate Justice Tom Glaze held, however, that considering the evidence in this case, the trial court did not abuse its discretion in admitting the evidence because the defendants presented evidence showing that the later willingness to have sex with the defendant somehow indicated that her earlier sexual encounter was also consensual.

THE TRIAL COURT did not abuse its discretion by admitting into evidence a plea agreement that stated that the witness subject to the plea had agreed to testify truthfully, the Supreme Court of Minnesota ruled July 9. State v. Folkers, C9-96-1338. Affirming as modified, the high court held that mere admission of an agreement, without more, does not constitute improper vouching for the witness' credibility by the state. Justice Sandra S. Gardebring

THE SECRETARY OF the Treasury cannot keep Secret Service agents from testifying before a grand jury by asserting a "protective function" privilege, the U.S. Circuit Court of Appeals for the District of Columbia held July 6. In re: Sealed Case, 98-3069. Affirming in a per curiam decision, the appeals panel found the alleged privilege neither necessary nor efficacious and raised questions about the Treasury Department's logic. "We think it significant that the Secret Service does not require its agents to sign confidentiality agreements as a condition of employment; without such an agreement ...the Secretary of the Treasury would find it difficult by invoking the proposed privilege to prevent a former Secret Service agent from testifying," the panel wrote.

THE TRIAL COURT should instruct jurors that only testimony proffered by a defendant's accomplices that is unfavorable to the defendant should be viewed with care and caution, the Supreme Court of California ruled July 6. People v. Guiuan, S063097. Affirming the judgment of conviction, the high court held that the trial court did not err in instructing the jury to view with distrust all accomplice testimony. The high court continued, however, that its prior holding in People v. Williams, 45 Cal.3d 1268 (1988), should be modified so that trial courts no longer instruct the jury to view all accomplice testimony with distrust.

THE WITNESS-TAMPERING statute does not require a jury to find that a defendant's sole motivation for killing was to prevent the victim from communicating with law enforcement authorities, the 6th U.S. Circuit Court of Appeals ruled July 8. U.S. v. Jefferson, 96-5644. Affirming, Judge Alan E. Norris concluded that, when considered in the light most favorable to the prosecution, the evidence more persuasively supported the government's theory of guilt than it supported defendant's theory of innocence, and accordingly, the court found the evidence sufficient to support a reasonable jury in concluding that the defendant was guilty of witness tampering.

In Depth

This week's "In Depth" focuses on what happens when innocence is proven and life becomes something for living and nota sentence. From The Lawstreet Journal athttp://www.lawstreet.com/journal/art980715pitts_lee.html

Miami - Florida has finally attempted to make some reparations for what is one of the more public ugly miscarriages of justice of the 20th Century. Freddie Pitts, 54, and Wilbert Lee, 62, received $500,000 each on June 13 for their wrongful convictions by the state.

The two black men were twice convicted by all-white juries of the 1963 murders of two white has station attendants in Port St. Joe, a small fishing town on the Florida panhandle. There was no evidence linking either Pitts, then a 19-year old cook, or Lee, then a 27-year-old soldier, to the crimes. Both men confessed only after police beat them repeatedly.

The men spent nine years on death row before their convictions were thrown out after a white man confessed to the crimes. Curtis "Boo" Adams admitted to the crimes and passed a lie detector test, but a judge in the 1972 retrial of the two men did not allow jurors to hear about Adams' confession, and the two men were again convicted and sentenced to death.

In 1975, the two men were the subjects of a Pulitzer Prize-winning book, and Florida governor Ruben Askew ordered an investigation into the conduct of the police and the courts. Askew used his executive privilege to pardon both men.

"For a southern governor back in 1975 to pardon two black men that are accused of killing two white men in the Panhandle of the state of Florida alone speaks for itself," said Florida Democratic Representative Kendrick Meeks.

"This is the biggest miscarriage of justice," said Meeks, who sponsored the legislation to compensate the two men. "They deserve this and more. If it was me, I would be bitter."

"I am bitter, and I will be until the day I die," said Pitts. "But it's a bitterness I control. It's like a scar, a burn. It's going to be there."

"I lost all my young lifehood," said Lee,who now serves as a correctional counselor in Miami-Dade county. "I lost all my family. I lost everything."

The Florida state legislation has contemplated legislation to compensate the two men since 1977, but had never settled on an amount. Meeks' bill won the necessary support this year because the Republican party is gearing up for a run at the governor's office, and is seeking to win more support from Florida's black population. The Republican-controlled state legislature passed a compromise bill in May.

Pitts, who now drives an oil tanker truck, said that hewants the government to go further than just giving them money.

"What you gotta do is you gotta start cleaning up," he said. "You get a bad cop, you get a bad politician, you gotta throw his butt out."