No favorable decisionsare noted for the period this edition covers (from July 14 to July 21, 2008).

One favorable development, however, is noted. Oklahoma Gov. Brad Henry commuted Kevin Young's sentence to life Thursday. "In testimony presented at the board’s clemency hearing, Young’s attorneys argued the shooting was not premeditated and did not merit a capital sentence. They said their client turned down a plea agreement in his original trial that would have given him a life sentence." "However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence,” Henry said." TheOklahoman has more.

DPICnotes two key stories on DNA:

New research has called into question the reliability of some use of DNA tests to definitively identify suspects in criminal investigations. After recent evidence of chromosomal "matches" based on DNA testing turned out to belong to unrelated individuals, some scientists wonder whether there are flaws in the assumptions that underlie the FBI’s statistical estimates of DNA accuracy. In 2001, Arizona state crime lab analyst Kathryn Troyer was running tests on the state’s database when she came across two felons with remarkably similar genetic profiles. They matched at 9 of the 13 locations on chromosomes, or loci, commonly used to distinguish people. While the FBI estimated the odds of finding unrelated people sharing those genetic markers to be 1 in 113 billion, Troyer found the men to be unrelated and of different races--one was black and the other white. [ More]

The Justice Project has just released two policy reviews related to DNA testing and the criminal justice system. The first, “Improving Access to Post-Conviction DNA Testing,” chronicles the lessons to be learned from the case of Kirk Bloodsworth. Bloodsworth was sentenced to death in Maryland and spent almost nine years in prison for the rape and murder of nine-year-old Dawn Hamilton before DNA testing proved he did not commit the crime. The report contains the Justice Project's recommendations for avoiding such mistakes in the future, including: preservation of biological evidence, openness to legal claims based on DNA testing from prisoners, availability of DNA testing and representation to bring claims, and standardization of testing procedures. [ More]

In public defender news, recent headlines note a seemingly national budget crunch. "Georgia public defender system in tug-of-war," is the AP report via Law.com's Fulton County Daily Report. In Kentucky the Lexington Hearld-Leader reports, "State wants defenders to stop refusing cases." Mississippi's Jackson Clarion-Ledger carries an editorial, "Death penalty: State must improve process." "State report says Dallas County shouldn't cut public defender's appeal unit," by Kevin Krause.

In other news, Missouri's dyslexic execution doc appears to havemoved west to Arizona.The USA Todayrecently ran a piece noting "prisoners' time spent on death row double. The Morning Call of Allentown, Pennsylvania examines two of my favorite mitigation specialists in an article entitled "New specialists delve deep to keep convicts off death row."Iran hanged twenty-nine peopleSunday for crimes ranging from murder to being a public nuisance while drunk to sex outside of marriage. The Wilmington News Journal reports, "Delaware to change execution procedure." A new round of lethal injection litigation has begun in Missouri according tolocal press accounts."A newHouston editorialfrom Senator Rodney Ellis and law professor Craig Jackson argues that Gov. Perry and the Texas Board of Pardons should follow the International Court of Justice’s order to stay the executions of the Mexican citizens in Texas."

Looking ahead, a win is noted from the Fifth Circuit, as well as a slew of opinions from Pennsylvania's Supreme Court. InRobert Alan Fratta v. Quartermanthe panel grants relief on a Confrontation Clause challenge to the use co-defendants' statements where the state failed to put those potential witnesses on the stand. InComm. v. Ronald Gibsonthe Pennsylvania Supreme Court remands for further hearings on claims that trial counsel failed to adequately perform in the penalty phase. InComm. v. Joseph Daniel Millerthe same court affirms the PCRA trial court's grant of relief underAtkins v. Virginia. InComm v. David Allen Sattazahn, relief is granted on the failure counsel to adequately investigate potential penalty phase defenses. Finally the Pennsylvania Supreme Court holds inComm. v. Thavirak Sam, &Comm. v. Herbert Watsonthat a person may be involuntarily medicated in order to render them competent to continue with their post-conviction review applications (here there had been some indications that at least one one of the two sought to drop his postconviction petition).

I should note that this week's news round-up drew heavily from the work of Steve Hall, Project Director ofStand Down - Texas, as well asDPIC.

Pending Executions

July

28 Gregory Decay - Ark.(s)

31 Larry Davis - Tex.*

31 Tommy Arthur - Ala*

August

5 Jose Medellin - Tex.*

7 Heliberto Chi - Tex.*

12 Leon Dorsey - Tex.*

14 Michael Rodriguez Tx* (v)

20 Denard Manns - Tex.*

21 Jeff Wood -Tex.*

27 Dennis Skillicorn - Mo*

September

9 Gregory Wright -Tex.*

9 Frank Williams, Jr., - Ark*

10 Charles Hood - Tex.*

17 William Murray -Tex.*

18 Joseph Ries -Tex.*

23 Richard Henyard - FL*

25 Jessie Cummings - Okla*

October

7-13 Briley Piper - S.D.

14 Richard Cooey - Ohio*

16 Kevin Watts - Tex*

28 Eric Nenno - Tex*

Recent Executions

July

23 Derrick Sonnier - Tex.*

23 Dale Lee Bishop - Ms*

24 Christopher Emmett Va*

Commutation

Kevin Young - Okla

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

Week of July 14, 2008 – In Favor of the State or Government

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

(InitialList)Week of July 21, 2008 – In Favor of the Defendant or the Condemned

• Robert Alan Fratta v. Quarterman, 2008 U.S. App. LEXIS 15421 (5th Cir 7/22/2008) Relief granted on State's use, through hearsay, of the purported confession of co-conspirators without placing those co-conspirators on the stand.
• Comm. v. Ronald Gibson, 2008 Pa. LEXIS 1182 (Pa 7/24/2008) "It is well established that capital counsel has the “obligation to conduct a thorough investigation” for possible mitigating evidence, or to make reasonable decisions that render particular investigations unnecessary. Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, reviewing courts are to take all reasonable efforts to avoid distorting effects of hindsight. Nevertheless, courts must also avoid “post hoc rationalization of counsel's conduct.” Here, the credited evidence supports the conclusion that no pre-trial investigation of mitigating evidence was undertaken. While in light of Attorney Gaskins’ late entry into the case, it is certainly debatable whether the deficient stewardship should be attributed to him or to Appellant’s original counsel whom Attorney Gaskins replaced, this question is largely collateral to the present inquiry. For our purposes, it is enough that there is a supported finding that no pre-trial investigation was undertaken, and there is no evidence (or finding) that some reasonable professional judgment supported the limitation of the investigation."
• Comm. v. Joseph Daniel Miller, 2008 Pa. LEXIS 1176 (Pa 7/23/2008) PCRA trial court's grant of relief underAtkins v. Virginaaffirmed.
• Comm v. David Allen Sattazahn, 2008 Pa. LEXIS 1180 (Pa 7/24/2008) "[W]e recognize that the substantial aggravation advanced by the Commonwealth encompassed Appellee’s commission of the present killing in the perpetration of a robbery, as well as his history of violent offenses including two murders. Nevertheless, the presentation at trial of the credited post-conviction evidence would have provided support for the finding of several statutory mitiigators, which also bore upon the degree of Appellee’s culpability in terms of selecting between capital punishment and a life sentence. The absence, due to an inadequate investigation, of substantial, relevant, mitigating evidence diminishes confidence in the outcome of the sentencing proceeding, particularly given the appropriate single-juror frame of reference."

(InitialList) Week of July 21, 2008 – In Favor of the State or Government

• Jeffery William Paul v. United States, 2008 U.S. App. LEXIS 15571 (8th Cir 7/22/2008) "District court did not err in denying habeas relief on Paul's claim that his attorneys provided ineffective assistance of counsel by failing to investigate and present evidence of his mental, medical and physical history; viewing the evidence and information proffered in connection with the claim in the context of the trial record as a whole, Paul has failed to show prejudice from counsel's actions as there is no reasonable probability that the jury would not have selected the sentence of death if trial counsel had gathered and presented the additional evidence; district court did not err in denying claim that trial counsel were ineffective in failing to pursue his allegations that he was incompetent to stand trial; Paul's alleged incompetence did not bar him from presenting his Sixth Amendment claims in the habeas proceedings, and the district court's finding that Paul was competent to proceed in his habeas was neither clearly erroneous nor prejudicial." [via the Eighth Circuit Clerk's Office]
• People v. Tomas Verano Cruz, 2008 Cal. LEXIS 9079 (Cal 7/24/2008) "Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court. Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for drunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense. Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective." [via Shaun Martin]
• Robert Allen Gattis v. State, 2008 Del. LEXIS 341 (Del 7/24/2008) "Denial of a motion for postconviction relief in a capital murder case is affirmed where: 1) the trial judge did not err in declining to disqualify herself; 2) the appellate court did not abuse its discretion by denying defendant's requests to extend the time and length limitations on his opening brief; 3) an ineffective assistance of counsel claim was procedurally barred; 4) Delaware's capital sentencing procedure is constitutional; 5) there was no merit to a claim that the trial judge was improperly influenced by extrajudicial contact with jurors; and 6) the trial judge properly weighed the jury's death penalty recommendation in imposing sentence." [via Findlaw]
• People v. Tomas Verano Cruz, 2008 Cal. LEXIS 9079 (Cal 7/24/2008) "Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court. Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for drunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense. Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective." [via Shaun Martin]
• Robert Allen Gattis v. State, 2008 Del. LEXIS 341 (Del 7/24/2008) "Denial of a motion for postconviction relief in a capital murder case is affirmed where: 1) the trial judge did not err in declining to disqualify herself; 2) the appellate court did not abuse its discretion by denying defendant's requests to extend the time and length limitations on his opening brief; 3) an ineffective assistance of counsel claim was procedurally barred; 4) Delaware's capital sentencing procedure is constitutional; 5) there was no merit to a claim that the trial judge was improperly influenced by extrajudicial contact with jurors; and 6) the trial judge properly weighed the jury's death penalty recommendation in imposing sentence." [via Findlaw]
• Comm. v. Robert Cook, 2008 Pa. LEXIS 1181 (Pa 7/24/2008) More next week, however, relief denied on a grab bag of guilt phase issues. Comm. abandoned appeal of trial court's order for a new penalty phase hearing.
• Comm. v. Michael Pruitt, 2008 Pa. LEXIS 1177 (Pa 7/23/2008) More next week, however, relief denied on a grab bag of claims including a medical examiner who was permitted to speak well outside what one would normally think is his area of expertise.
• Comm. v. James Jones, 2008 Pa. LEXIS 1172 (Pa 7/22/2008) Relief denied on the following claims "I. Did this Court err in requiring the PCRA court to apply Commonwealth v. Uderra as the controlling law in reviewing [Appellant’s] claim for relief under Batson v. Kentucky?; II. Did the PCRA court err in declining to treat this claim in the posture of a direct appeal nunc pro tunc as a result of the state courts’ failures at all stages prior to post-conviction to produce the notes of testimony of the voir dire and the failures of all trial, post-trial, and direct appeal counsel to request production of the voir dire transcripts?; III. Did the PCRA court improperly deny relief on [Appellant’s] claim that the Commonwealth exercised its preemptory strikes in a racially discriminatory manner, in violation of the Sixth and Fourteenth Amendments, and Article I Sections 1, 9, and 26 of the Pennsylvania Constitution?; and IV. Did the PCRA court err in refusing to grant discovery and an evidentiary hearing on [Appellant’s] claim that the Commonwealth exercised its preemptory strikes in a racially discriminatory manner?"
• Comm. v. Thavirak Sam, 2008 Pa. LEXIS 1175 (Pa 7/22/2008) (dissent) Comm. may involuntarily medicate to make him competent for purposes "[W[e hold that the PCRA court erred in determining that appellee may refuse the administration of antipsychotic medication under the circumstances of this case. Accordingly, we reverse that part of the order of the PCRA court which denied the Commonwealth's Motion to Compel Psychiatric Medication. We direct the PCRA court to order that appellee be administered, involuntarily if necessary, antipsychotic medication to render him competent. If such medication renders appellee competent, the PCRA court is hereby directed to ascertain the following:first,whether appellee, in fact, wishes to proceed with the PCRA petition that Attorney Dunham filed without his authorization; and, if the answer to the first question is in the affirmative, then,second,whether appellee can assist counsel in pursuing PCRA relief. If antipsychotic medication does not succeed in rendering appellee competent, the PCRA court is directed to consider whether the PCRA petition should be dismissed, assuming a suitable third party cannot be appointed to serve as appellee's next friend."
• Comm. v. Herbert Watson,2008 Pa. LEXIS 1173 (Pa 7/22/2008) (dissent) "[W]e hold that the PCRA court erred in determining that appellee, or his counsel and next friend on his behalf, may refuse the administration of antipsychotic medication under the circumstances of this case. Accordingly, we reverse the PCRA court's denial of the Commonwealth's request that appellee be compelled to take such medication. We direct the PCRA court to order that appellee be administered, involuntarily if necessary, antipsychotic medication to render him competent. If such medication renders appellee competent, the PCRA court is hereby directed to ascertain the following:first,whether appellee, in fact, wishes to pursue PCRA relief; and, if the answer to the first question is in the affirmative, then,second,whether appellee can assist counsel in pursuing such relief. If antipsychotic medication does not succeed in rendering appellee competent, the PCRA court is directed to definitively determine whether Mrs. Watson is a suitable party to serve as appellee's next friend. If the PCRA court determines that Mrs. Watson should not serve as appellee's next friend, then the court should proceed to determine whether appellee's PCRA petition should be dismissed, in accordance with the procedure set forth in this Court's mandate in Sam."

(InitialList) Week of July 21, 2008 –Noncapital of note

• People v. Arthur Lourdes Lenix, 2008 Cal. LEXIS 9080 (Cal 7/24/2008) "In the context of Batson claims, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons. A conviction for crimes arising from a fatal shooting is affirmed is affirmed over a Wheeler/Batson claim regarding jury selection. " [via Findlaw]
• Brown v. Craig Farwell, 2008 U.S. App. LEXIS 15393 (9th Cir 7/21/2008) "Grant of the habeas petition and reversal of the prisoner's conviction was affirmed because had the expert's inaccurate and unreliable testimony on the DNA evidence been excluded, there would have been insufficient evidence to convict the prisoner on each essential element of the sexual assault offenses beyond a reasonable doubt."
• People v. Blaine Allen Evans(Cal. Supreme Ct. - July 24, 2008) "Throughout the history of Anglo-American jurisprudence, for almost half a millennium, a defendant has had the right to allocute after being convicted of a crime. To express sorrow for what he's done. To explain his actions. To beg for mercy. To try to place a human face on things before the court pronounces sentence." [via Shaun Martin]