Four capital cases of note are covered in this edition. In the first the Washington Supreme Court has vacated conviction inState v. Marshallas the trial court failed to permit withdraw of a guilty plea based on asserted lack of competence. The Sixth Circuit inPorterfield v. Bellremands for clarification the certificate of appealability in that case noting hat a court should make an individualized determination as to each procedurally defaulted claims rather than making a blanket denial or grant of all claims. InGrayson v. Thompson the Eleventh Circuit has held that trial counsel was not constitutionally deficient for failing to use hospital records relating to defendant's intoxication on the night of the murder where additional hospital records indicated defendant knew of the crime and appreciated the criminality of his conduct on the night in question.

A very notable dissent in a state case is also had this week. The dissent in the Missouri case ofState_v._Blackwould hold that the United States Supreme Court's opinion inCooper Industries v. Leatherman Tool Group, Inc.(de novo review of punitive damages) (briefs from Leatherman) should be applicable in capital cases. Note: should anyone have the briefs from State v. Black, please don't be stingy as I suspect I will not be the only one wanting to use peruse, if not plagiarize, the brief.

The featured article this week marks the 250th execution in Texas with a little background information from Amnesty International on the life and impending death of Richard William Kutzner (see http://www.cuadp.org/pressrel32.html for complete details).

Please note that due to two websites "disappearing" from the internet the Texas series will be modified and run once the original materials, or like materials, can be located. With the intended subject matter missing the question became what to run in its place. I had considered running Professor Victor L. Streib's current lists and reports ofwomen on death row(http://www.law.onu.edu/faculty/streib/femdeath.htm) andjuvenile offenders on death row(http://www.law.onu.edu/faculty/streib/juvdeath.htm). Likewise I considered running parts of thebrief bank(http://tcdla.com/mockup/framepages/motionbank.htm) of theTexas Criminal Defense Lawyers Association. Likewise, the recentUniversity of Chicago Journal of Legal StudiesarticleForecasting Life and Death: Juror Race, Religion, and Attitude toward the Death Penaltyby Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells

(http://www.journals.uchicago.edu/JLS/journal/issues/v30n2/013009/013009.web.pdf). Likewise the extensivedeath penalty news index(http://www.nysda.org/Defense_Services/NY_Capital_Defense/ny_capital_defense.html) offered by the New York State Defender Association was considered. Finally, the growing controversy in Nashville aboutmissing evidence for proportionally review in capital cases(http://www.cuadp.org/exinfo.html) was also considered and dismissed, but may be run in the future. In light of significance of Mr. Kutzner's execution, however, information his execution was decided upon.

Until the site's briefbank is online, a search engine covering the three largest death penalty/criminal defense publicly accessible brief banks is available at http://www.capitaldefenseweekly.com/index.htm.

The site's briefbank is currently having he kinks worked out of it & the very expanded list of 2000+ searchable briefs should be available September 1, 2001.

Since last issue one person domestically has been executed:

July 11 Jerald Harjo Oklahoma

Scheduled for execution in the next week are:

July 25 Richard Kutzner Texas

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com.

This issue is located at http://www.capitaldefenseweekly.com/archives/010723.htm.

Supreme Court

Nothing noted this week.

Captial Case Relief Granted

State v. Marshall(Wash.) As " the trial court denied Marshall's motion to withdraw his guilty plea based on asserted lack of competence while failing to convene a required competency hearing pursuant to chapter 10.77 RCW" conviction must be vacated.

While we opined the trial court in Fleming did not abuse its discretion by accepting the defendant's plea where there was no apparent basis to doubt his competency, we nevertheless granted a competency hearing due to ineffective assistance, concluding counsel failed to raise the issue despite an evaluation which called the defendant's competency into question. Id. at 866.

By contrast, here there was ample evidence before the trial court to call Marshall's competency into question at the hearing on motion to withdraw guilty plea. Undisputed evidence was presented indicating Marshall suffered from organic brain damage leading to long-standing brain dysfunction, with significant atrophy in the temporal and frontal lobes.

There was testimony his MRI scan showed an unusual amount of brain abnormality for somebody who isn't 'lying in a hospital.' RP at 351. His ability to respond to stimulation and make decisions allegedly placed him in the fourth percentile of the population, 'way out in the abnormal range.' RP at 357. Marshall scored in the average-to-low-average range on one intelligence test and in the first percentile on another. According to testimony, blood flow to different parts of Marshall's brain was restricted which allegedly affected his ability to think, reason, and control himself. Changes in his behavior were noticed corresponding to changes in his medication.

Testimony indicated Marshall suffered from bipolar mood disorder or manic depressive disorder. He was also diagnosed as a paranoid schizophrenic by the Pierce County jail health clinic seven weeks after the offense and a few weeks before he entered his plea. Over the next several weeks he suffered from a psychotic illness with paranoia accompanied by auditory hallucinations, which was intermittently treated by several medications-- which he was not taking at the time of his plea. A defense expert concluded Marshall could not freely and voluntarily waive his constitutional right to enter a guilty plea because he was delusional and suffering from a psychotic depression at that time.

The court itself accepted Marshall had serious brain damage. During the hearing on motion to withdraw guilty plea the court said, 'It is clear that he has impairment. It is clear that there is brain atrophy. But it is not clear that this has anything to do with whether or not his plea was competent or not competent.' RP at 701. Heavily discounting the testimony of Marshall's neurologist, psychiatrist, and neuropsychologist, and choosing to rely instead on its own observations and on the observations of those who interacted with him at the time of the plea itself, the court found Marshall competent to change his plea to guilty without the benefit of a statutory competency hearing. This was error.

We will not reverse a trial court's order on a defense motion to withdraw guilty plea absent abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 422 P.2d 312 (1966). However leave should be granted to withdraw a plea 'whenever it appears that the withdrawal is necessary to correct a manifest injustice.' CrR 4.2(f). A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept. State v. Wakefield, 130 Wn.2d 464, 925 P.2d 183 (1996). The defendant's claim that he was not competent to enter his plea is equivalent to claiming the plea was not voluntary. State v. Osborne, 102 Wn.2d 87, 98, 684 P.2d 683 (1984).

A person is not competent at the time of trial, sentencing, or punishment if he is incapable of properly appreciating his peril and of rationally assisting in his own defense. State v. Harris, 114 Wn.2d 419, 427-28, 789 P.2d 60 (1990).*fn3 The competency standard for standing trial is the same as the standard required for pleading guilty. Godinez, 509 U.S. at 399.

Whether a person is competent is a mixed question of law and fact. Drope v. Missouri, 420 U.S. 162, 174-75 n.10, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). In such a situation we independently apply the law to the facts. See Clarke v. Shoreline Sch. Dist., 106 Wn.2d 102, 111, 720 P.2d 793 (1986).

Here, despite substantial evidence calling Marshall's competency into question, the trial court denied the motion to withdraw the guilty plea absent the mandatory competency hearing required by RCW 10.77.060. We hold that where a defendant moves to withdraw guilty plea with evidence the defendant was incompetent when the plea was made, the trial court must either grant the motion to withdraw guilty plea or convene a formal competency hearing required by RCW 10.77.060. See Fleming, 142 Wn.2d at 863. Here the court did neither.

Capital Cases Remanded for Further Adjudication

Porterfield v. Bell, (6th Cir.) In granting a certificate of appealability, a court should make an individualized determination as to each procedurally defaulted claims rather than making a blanket denial or grant of all claims.

In this capital case, the State of Tennessee, representing respondent Ricky Bell, the warden of the Riverbend Maximum Security Facility, has filed a motion to dismiss a number of claims certified as appealable by the district court pursuant to 28 U.S.C. § 2253(c). The State takes the position that the district court violated the requirements of Slack v. McDaniel, 529 U.S. 473 (2000), when it certified claims that it had decided adversely to petitioner on procedural grounds. While we deny the State's motion to dismiss, we remand this cause to the district court to permit it to make the kind of individualized determination as to each procedurally defaulted claim that we believe Slack requires.

Before proceeding, we must first decide whether this court should review challenges to the grant of a certificate of appealability or simply decide the certified claims on their merits. As the Court of Appeals for the Seventh Circuit has noted, a certificate of appealability, even if improvidently granted, vests jurisdiction in the court of appeals. United States v. Marcello, 212 F.3d 1005, 1008 (7th Cir. 2000). Under normal circumstances, considerations of judicial economy will discourage review of certificates of appealability: the district court will have already invested substantial time in the certification process; the parties may have already briefed the merits of the claims; and review by this court would not only duplicate the district court's efforts, in capital cases such as the case sub judice, it will further delay an already lengthy process. In this case, however, none of these reasons is present. The parties have not submitted merits briefs to this court and the district court has not engaged in any individualized assessment of whether, pursuant to Slack, "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. Under these circumstances, we believe a review of the district court's decision is appropriate, if only to provide guidance to district courts faced with the task of certifying claims for appeal. . . .

In parsing this statutory language, the Court in Slack first observed that "Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal." Id., 529 U.S. at 483. Nonetheless, the Court went on to hold:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress' requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the "substantial showing" standard provided in Barefoot, supra, at 893, and n. 4, 103 S.Ct. 3383, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. at 484.

Furthermore, the Court went on to underscore that this inquiry has two components, "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 485.

In the case before us, the district court granted summary judgment to the respondent on a number of claims based upon procedural default. Yet, in granting a certificate of appealability as to all claims, the court did not provide us with any analysis to indicate that it had engaged in the two-pronged inquiry set forth in Slack as to each of the procedurally defaulted claims. Rather, the court simply ordered, "In accordance with the standard set forth in Barefoot v. Estelle, 463 U.S. 880, 893 (1983), and Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997), the Court hereby GRANTS a certificate of appealablity as to each of the claims raised in the petition." Order, January 17, 2001. . . .

Since the enactment of AEDPA, this court has noted a disturbing lack of uniformity throughout the districts of our circuit with respect to how trial courts are to determine the extent to which certificates of appealability should issue. The approaches vary from a blanket grant as to all issues, as in this case, to blanket denials. Both of these approaches undermine the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability. Moreover, because the district court is already deeply familiar with the claims raised by petitioner, it is in a far better position from an institutional perspective than this court to determine which claims should be certified for appeal.

Accordingly, we vacate the certificate of appealability granted by the district court in this case and remand the matter in order to permit the court to engage in the reasoned assessment of each procedurally defaulted claim as required by Slack. Respondent's motion to dismiss is likewise denied.

Federal Captial Cases Relief Denied

Grayson v. Thompson, (11th Cir.) In a murder case, defense counsel was not ineffective for failing to use hospital records relating to defendant's intoxication on the night of the murder where additional hospital records indicated defendant knew of the crime and appreciated the criminality of his conduct on the night in question.

In light of counsel's emphasis on Grayson's alcohol consumption and lack of intent to kill Mrs. Orr at trial, we do not find that counsel's presentation of evidence regarding the intent issue fell below the standard of reasonable professional performance. Counsel highlighted the intent issue and Grayson's consumption of excessive alcohol on the night in question. In addition, counsel focused the jury on the physical and forensic evidence suggesting Grayson's lack of intent to kill Mrs. Orr. This approach was not unreasonable. See Thompson v. Haley, No. 00-15572 (11th Cir. July 3, 2001).

Grayson claims that counsel was ineffective despite these efforts because counsel did not present additional evidence with respect to the intent issue. First, Grayson claims that available information in the Bryce Hospital records regarding his intoxication on the night of the offense and his alcoholism generally should have been utilized. Again, Grayson's state habeas counsel never asked defense counsel his reasons for not introducing these records that were in his possession and we must, therefore, presume that the lawyer's decision not to present this evidence at trial was a reasonable one. *fn11

This presumption is amply supported by the Bryce Hospital records themselves. First, it is clear from the records themselves that the opinions regarding Grayson's level of intoxication on the night of the crime and his alcoholism generally are derived exclusively from Grayson's self-reports. As such, those opinions appear no more credible than Grayson's own trial testimony in this regard and would have been merely cumulative on the intoxication issue. At best, this evidence would have been of limited benefit to the defense case. More importantly, defense counsel's use of these particular records at trial would have opened the door for the State to put before the jury significant information contained in the records that could have damaged the defense. *fn12

For example, some information in the reports painted Grayson as a recreational alcohol abuser who lived off women and used alcohol as an excuse for his poor behavior. Further, the reports would have told the jury that Grayson was an individual of average intelligence who appreciated the criminality of his conduct on the night in question.

Grayson's statement that he "would never be taken to court" would have contradicted counsel's efforts to paint Grayson as accepting responsibility for the crime and truthfully denying any intent to cause the victim's death. Finally, statements in the reports that Grayson recalled the crime quite clearly would have impeached his trial testimony regarding his lack of recall. Thus, the Bryce Hospital records were potentially very damaging to the defense. As such, counsel's failure to utilize these records at trial does not amount to deficient representation. *fn13

Grayson also argues that trial counsel was ineffective in failing to gather and present a defense expert regarding intoxication and alcoholism and their effects on an individual's ability to appreciate and understand the consequences of his actions. Given the limited resources available, both financial and temporal, counsel's approach to the intent issue at the guilt/innocence phase of Grayson's trial and failure to retain and present expert testimony regarding alcoholism was reasonable. See Chandler, 218 F.3d at 1318 n.22 ("As we have recognized, Strickland's approach toward investigation `reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources.' How a lawyer spends his inherently limited time and resources is also entitled to great deference by the court.") (citations omitted). This is especially true with respect to expert testimony regarding alcohol consumption. While detailed expert testimony regarding the effects of alcohol on an individual's appreciation of consequences may have been helpful to the jury, the effects of excess alcohol consumption are not necessarily outside the ken of the average juror. *fn14 See United States v. Boyles, 57 F.3d 535, 551-52 (7th Cir. 1995) (rejecting claim of ineffective assistance of counsel which was based, in part, on trial counsel's failure to present expert testimony regarding intoxication, and noting that: "In recent years, there has been much media and television coverage dedicated to the problems of the use of alcohol, educational awareness programs from groups such as M.A.D.D., government mandated labels on bottles warning of the effects of alcohol consumption, and articles and reports concerning domestic violence and sexual assault involving alcohol consumption. In light of all of this information, as well as the jurors's common knowledge and experience in the everyday affairs of life, we are of the opinion that they were more than capable of concluding that [the victim was capable of communicating her lack of consent to the defendant despite her intoxication]").

Grayson points out trial counsel's own testimony at the state habeas hearing that he would have wanted expert evidence had he been able to afford it and that he realized the importance of expert assistance in defending a later capital case. As we have said many times before, a court should avoid "the distorting effects of hindsight" in reviewing a lawyer's performance and should look to "counsel's perspective at the time." Chandler, 218 F.3d at 1316 (citing Strickland, 466 U.S. at 689). Thus, even counsel's own hindsight regarding what might have influenced the jury cannot support a finding of deficient performance. *fn15 "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. Because counsel's presentation of evidence regarding the issue of intent and Grayson's intoxication were reasonable under the circumstances facing counsel at the time, counsel's failure to do something more does not rise to the level of ineffective assistance of counsel. See Chandler, 218 F.3d at 1313 ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (quoting Burger v. Kemp, 483 U.S. 776 (1987)). In sum, Grayson's presentation of evidence at trial to negate the element of intent was not ineffective.

State Captial Cases Relief Denied

State_v._Black(MO) Relief denied on numerous grounds including that (1)the court properly excluded testimony that Johnson died because of bad medical care rather than Black's attack; (2) any negligence by a victim's doctors is irrelevant if death is the proximate result of a defendant's conduct, and here, the testimony elicited during Black's offer of proof shows Johnson's doctor did provide the recommended medical care; (3) on the facts, Black's claim that malpractice evidence is relevant to refute the prosecutor's argument that the severity of the wound shows an intent to kill is almost frivolous; (4). Further claims regarding malpractice testimony are not preserved for appeal, and the court did not abuse its discretion in refusing to allow impeachment on an immaterial or collateral matter; (5) the court erred in admitting a knife because of inadequate foundation, but that error was harmless and does not warrant reversal of the conviction; (6) the evidence is overwhelming that Black stabbed Johnson, including the defense's acknowledgment of the stabbing during closing argument, and there is no reasonable probability that the jury would have acquitted Black but for the erroneously admitted knife; admission of the knife sheath was proper; (7) The special protection against seizures on American Indian land does not apply to seizure of the sheath in Oklahoma because neither Black nor Johnson is of Native American descent; (8) the court properly refused defense counsel's demonstration during the guilt-phase closing argument of a bottle as a potential weapon, which Black claims was critical to his self-defense argument; (9) the bottle was not admitted into evidence and did not resemble a bottle Johnson threw at Black after being stabbed; no error occurred in statements regarding Johnson's race made by the prosecutor during the guilt-phase closing argument because the race of Johnson, Black and Black's girlfriend were in evidence, and the prosecutor may argue inferences from the evidence; (10) no plain error occurred in the court's failure to instruct the jury regarding lesser-included offenses because Black did not request such instructions; & (11) although the evidence does not support the depravity-of-mind aggravator, reversal of the sentence is not required because the jury found another aggravating circumstance, and one statutory aggravating circumstance may support a sentence of death.

NOTABLE DISSENT: Dissent would reverse Black's conviction and death sentence and remand to the trial court for entry of a judgment and sentence for second-degree murder. This dissent would go beyond the independent proportionality review mandated by section 565.035 by extending the de novo review standard for punitive damages cases articulated by the U.S. Supreme Court in Cooper Industries Inc. v. Leatherman Tool Group, Inc., ___ U.S. ___, 121 S. Ct. 1678 (2001), to death penalty cases. Although this dissent agrees there was time for deliberation, he believes the evidence showed rage, not the cool reflection required for a first-degree murder conviction. The dissent surmises the defense's failure to request instructions for lesser-included offenses, including second-degree murder, might have resulted from a failed "all-or-nothing" legal strategy during the guilt phase. The dissent also surmises the prosecution's strategy in calling Black's girlfriend during the penalty phase rather than the guilt phase was to use her testimony about Black's racial epithets to show "depravity of mind" to get the death penalty without undermining the deliberation consideration necessary for conviction. Although this dissent agrees Black's prior convictions for assault and armed robbery meet the threshold for imposition of the death penalty, the author believes the jury's recommendation of the death penalty was tainted by the evidence of racial hatred that was linked to the unsupported notion of depravity of mind.

People v. Catlin(CA) A nine-year delay between homicide and prosecution for murder by poison is justified where forensic technology did not exist to establish cause of death at the time of the homicide.

Commonwealth v. Philistin(Pa.) Relief denied on allegations of racial bias in the selection of jurors, destruction of voir dire evidence, & whether the cheering of the guilt phase verdicts by people present in the court room unduly influenced the sentencing phase.

State v. Pandeli(Ariz.) Conviction and sentence of death affirmed as the lesser included instruction of manslaughter would have inappropriate, admission of defendant's inculpatory statements was permissible, and because the the aggravating circumstances were proven beyond a reasonable doubt (the defendant committed a prior serious offense & especially heinous, cruel or depraved) that outweighed the mitigation evidence.

State v. Harrod(Ariz.) Relief denied holding the trial court did not err in excluding third party culpability evidence, admission of testimony by a witness who had not been successfully hypnotized and permitting her to testify about an identification she made of Harrod after the failed hypnosis session, the trial court did not err in permitting Anne Costello to testify that she left him because she could not live with someone who could be involved in a murder, the trial court did not err in admitting appellant's ex-wife to testify about acts she observed and to impeach Harrod by testifying about otherwise privileged marital communications after he denied having such conversations, the trial court did not err in refusing admit the results of a polygraph examination at the aggravation/mitigation hearing & the Arizona death penalty statute unconstitutional on its face and/or as applied in this case?

State v. Elledge(Wash.) In determining the course of conduct to follow when a condemned inmate wishes to drop all appeals (including the initial appeal as of right) the Washington Supreme Court notes: "First, we must determine whether Elledge's waiver of his right to appeal was made 'knowingly, voluntarily, and intelligently.' Sagastegui, 135 Wn.2d at 82; Dodd, 120 Wn.2d at 18. If it was, we must next conduct the statutory review mandated by RCW 10.95.130, which requires us to answer four questions: (1) Was there sufficient evidence to justify the finding that there were not sufficient mitigating circumstances to merit leniency; (2) Was the sentence of death excessive or disproportionate to the penalty imposed in similar cases; (3) Was the sentence of death brought about through passion or prejudice; and (4) Was the defendant mentally retarded?"

Presnell v. State(Ga) On appeal from resentencing court holds that aggravators were permissible, that challenges for cause as to jurors where properly denied, comments to sequestered jurors to "fry him" did not impact on sentencing, & that potentially inflammatory evidence was not unduly prejudicial.

State v. Sanders(Ohio) Relief denied holding that authorities in lawful charge of prison have no duty to "negotiate in good faith" with inmates who have seized the prison and taken hostages.

Other Notable Cases(As reported by Findlaw, and other sources)

Dalton v. Ashcroft(2nd Cir) A felony DWI conviction under New York State law does not constitute a "crime of violence" under 18 USC 16(b) for purposes of removing an alien, because a person can be convicted of DWI without any risk of force or injury.

Leveto v. Lapina(3rd Cir) In order to pat down a suspect, the government agents must have a reasonable suspicion that the suspect is armed and dangerous, and mere residence of a home subject to a search warrant is not sufficient, even when the person is the target of an ongoing investigation.

Crawley v. Catoe(4th Cir) 28 USC 2244(d)(2) does not toll the one-year limitations period while a petition for writ of certiorari is pending before the US Supreme Court.

Steward v. Cain(5th Cir) There is a presumption that a later state court decision rejecting a prisoner's federal claim did not silently disregard a procedural bar and consider the merits, unless there is some meaningful indication in the opinion that the court no longer relied upon the procedural bar.

Clark v. O'Dea(6th Cir) In murder case, state may present evidence of defendants' Satan worship to show motive, which outweighs potential bad character prejudice, where defendants had previously stated their belief that killing would empower them.

Davila v. United States (07/17/01 - No. 00-3042) When a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her sentence, he or she may not bring a claim of ineffective assistance of counsel based on 28 USC 2255.

Carpenter v. Lock(8th Cir) In a drug case, the defendant is not entitled to disclosure of a confidential informant's identity when informant merely set up the meeting with the undercover police officer who witnessed the drug transaction.

Featured

The featured article this week marks the 250th execution in Texas chosen was a little background information from Amnesty International on the life and impending death of Richard William Kutzner (see http://www.cuadp.org/pressrel32.html for complete details).

USA (Texas)

250th Texas execution looms

Richard William Kutzner, aged 58

Richard Kutzner is set to become the 250th prisoner executed in Texas since the state resumed judicial killing in 1982. He is scheduled to be put to death on 25 July for the murder of Kathryn Harrison in 1996.

Texas accounts for more than a third of the 724 executions carried out in the USA since 2 July 1976, when the US Supreme Court lifted the moratorium on the death penalty which it had imposed four years earlier. A quarter of a century on, the US capital justice system is one marked by arbitrariness, discrimination and error, as well as the inevitable cruelty and dehumanization that defines this punishment wherever it occurs. On 2 July 2001, US Supreme Court Justice Sandra Day O'Connor gave a speech in which she said: 'After 20 years on the high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country.'

Texas is at the heart of this international human rights scandal. It has regularly violated international standards in its use of the death penalty. It accounts for nine of the 17 executions of child offenders - those under 18 at the time of the crime - carried out in the USA since 1976. Its 10th such execution, that of Napoleon Beazley (UA 156/01 issued 22 June), is scheduled for next month. A further 30 child offenders await this fate in Texas, over a third of the national total.

Texas has executed numerous mentally impaired prisoners, including Larry Robison, Oliver Cruz, Mario Marquez and Terry Washington. It has executed five of the 15 foreign nationals put to death in the country since 1977 - Carlos Santana, Ramon Montoya, Irineo Montoya, Joseph Faulder and Miguel Flores - all of whom were denied their consular rights upon arrest, in violation of international law.

In contravention of international standards, Texas has executed several inmates despite serious doubts about their guilt, including Odell Barnes, Gary Graham and David Spence. Seven others have been released from death row after evidence of their innocence emerged. They spent an average of 10 years on death row or in jail before being exonerated. In each case, the state had persuaded a jury that the defendant was a future danger to society - a prerequisite for a death sentence in Texas, and one which has led to a particular brand of 'junk science': so called psychological 'experts' willing to testify with 100 per cent certainty that the defendant will commit future acts of criminal violence inside or outside prison if allowed to live.

One of the condemned later shown to be innocent and released was Clarence Brandley, an African American man sentenced to death by an all-white jury for the murder of a white girl, in a case marked by racism. Despite the fact that blacks and whites are the victims of murder in the USA in almost equal numbers, over 80 per cent of the country's executions have been for crimes involving white victims. This is echoed in Texas, where in 202 of the 249 cases of execution (81 per cent), the original crime involved white victims (Kathryn Harrison was also white). Studies have consistently shown that the murder of a white victim is more likely to result in a death sentence than murders involving minority victims. Since Texas resumed executions, no white defendant has been executed for killing an African American. Fifty-seven blacks have been executed for crimes involving whites (23 per cent of the total executions).

People have been sentenced to death and executed in Texas who were denied their internationally-recognized right to adequate legal representation at all stages of proceedings. Carl Johnson was executed in 1995 despite the fact that his court-appointed lawyer was seen to sleep during parts of the trial. He was the 12th of 152 prisoners executed under the five-year governorship of Governor George W. Bush (1995-2000). Virginia has the next highest execution total to Texas - it has executed 82 prisoners since it resumed executions in 1982.

As elsewhere in the USA, the death penalty in Texas is marked by huge geographical disparities. Sixty-two of those executed, and 155 of those currently on the state's death row, were prosecuted in Harris County. If Harris County was a state it would lie behind only Virginia and Texas in the number of executions. Richard Kutzner was prosecuted in Harris County.

Errata

From theDeath Penalty Information Centerreports:

Oklahoma Governor Denies Clemency for Mexican National

Governor Frank Keating denied clemency for Gerardo Valdez, a Mexican citizen on Oklahoma's death row. Keating's decision came despite a personal appeal from Mexico's President, Vincente Fox, requesting that Valdez's sentence be commuted to life in prison. When Valdez was arrested, he was denied his right to consular access, a move Keating acknowledged as a "clear violation" of the Vienna Convention. Earlier this year, the Oklahoma pardons board had voted to recommend that Keating commute Valdez's sentence.

Attorney General Drew Edmonson can now request an execution date for Valdez. Mexico's foreign relations department said the country "will take all available legal actions in the U.S., as well as international tribunals... in order to preserve the life of our fellow citizen and obtain clemency." (New York Times, 7/21/01 and Associated Press, 7/22/01

In June, the International Court of Justice handed down a ruling against the United States, holding that the U.S. breached its obligation under the Vienna Convention on Consular Relations by denying two German nationals their right to consular notification and by not informing German authorities of the nationals' arrests and convictions until 10 years after they occurred (see below). See also, Foreign Nationals and Clemency

North Carolina House Passes Bill to Prohibit Executing those with Mental Retardation

On July 16th, a bill to ban the execution of the mentally retarded was approved by the North Carolina House by a vote of 66-44. The bill, which differs significantly from the version passed by the Senate in April, now goes back to the Senate for concurrence. If the Senate rejects the House version, which makes it more difficult for defendants to try to prove mental retardation, negotiators from both chambers will have to try to craft a compromise. (News and Observer, 7/17/01) So far this year, Florida, Arizona, Connecticut and Missouri passed legislation to prohibit the execution of those with mental retardation. If the North Carolina bill is agreed upon, the state will become the eighteenth state to ban such executions. See also, mental retardation and the death penalty and proposed legislative changes.

DNA May Clear Idaho Death Row Inmate

Charles Irvin Fain, a Vietnam veteran who has spent over 18 years on Idaho's death row, may soon be cleared by DNA evidence. Although Fain always maintained his innocence, he was convicted and sentenced to death for the 1983 kidnapping, sexual assault and drowning of 9-year-old Daralyn Johnson. At his trial, much of the case against Fain rested on the opinion of an FBI forensics expert who testified that hairs found on the victim's clothing may have been Fain's.

However, in March 2000, U.S. District Judge B. Lynn Winmill authorized funds for additional forensic testing of the hairs. The new tests conclude that the hairs found on the victim did not come from Fain. After reviewing the test results, Judge Winmill set aside Fain's conviction and ordered the state to file new charges or release Fain by September 4. (Associated Press , 7/13/01) See also, Innocence.