Four cases are listed as hot this week. Three cases are "wins" but all four deal with simple, gutsy lawyering & old fashion sweat.

The first of the four cases is California v. Cash. Cash deals with how much leeway trial counsel should be allowed in examining potential jurors for penalty phase bias. The trial court erred, the state supreme court holds, when it limited the defense's questioning to establish a "for cause" basis for removing potential jurors for bias.

In Sofar v. Cockrell the Fifth Circuit sitting en banc has reversed a panel's grant of relief. The question before the Court was whether Sofar's numerous specific questions concerning the right to counsel constituted an assertion of that right. Additionally, the majority addressed whether misleading statements made by the interrogating officers rendered any statement invalid.

The New Jersey Supreme Court in New Jersey v. Nelson has granted relief. The instructions given by the trial court are not erroneous per se, the ambiguous wording, coupled with the jury's confused response and the failure of the trial court to obtain clarification, renders the death verdict unreliable. Additionally, the prosecutor erroneously implied at several points during summation that the testimony of the defense experts was contrived because they were “partisan” and had an “agenda,” while the testimony of the State’s expert was above reproach.

In Connecticut v. Sostre the state Supreme Court substantially narrowed one of that state's aggravating circumstance. The Sostre Court holds that the aggravating circumstance relating to ''consideration,'' ''receipt'' and ''expectation'' of "pecuniary value" covers contract murder but not robbery.

In other news, Larry Osborne has become the latest exonerated former death row inmate. Mr. Osborne is the 102nd person so released in the modern era and the fourth person released this year. Highlighting the dangers of juvenile facing capital punishment, Mr. Osborne was just 17 at the time of his arrest. Congratulations to Gail Robinson & the lawyers of the Department of Public Advocacy for this hard fought win.

The Focus section is on vacation and will return next week.

Execution Information

Since the last edition the following have been executed:

HOT LIST

California v. Cash, 2002 Cal. LEXIS 4828 (CA 07/25/2002) Trial court's voir dire relating to limiting the defense's questioning concerning penalty phase issues requires appellant's sentence of death to be vacated.

The trial court conducted death qualification voir dire of each prospective juror individually and out of the presence of other prospective jurors (see People v. Hovey (1980) 28 Cal.3d 1, 80), followed immediately by general voir dire of that juror. Voir dire of each prospective juror proceeded in three steps: The court asked death-qualifying questions, attorneys for each side posed death-qualifying questions, and finally each side posed questions on general voir dire. After each step, the court entertained challenges for cause. All prospective jurors not excused for cause during this process [*11] were directed to return at a later date. When the prospective jurors remaining after voir dire assembled on that date, they were called into the jury box according to randomly assigned numbers, the court entertained the parties' peremptory challenges, and in this manner the final selection of the jury and the alternates was concluded.

On the second day of voir dire, when defense counsel attempted to ask a prospective juror whether there were "any particular crimes" or "any facts" that would cause that juror "automatically to vote for the death penalty," the trial court ruled the questions improper because "we're restricted to this case." Later, when no prospective juror was present, defense counsel asked the court to reconsider the restriction. Counsel explained that the defense wanted to determine whether prospective jurors could return a verdict of life without parole for a defendant who had killed more than one person, without revealing that defendant had killed his grandparents. The trial court replied that because the prior murders were not expressly alleged in the charging document, it would not permit any such questions: "You cannot ask anything about the facts that are not [*12] charged in the Information, period. You can't raise one mitigating factor, nor can [the prosecutor] raise one aggravating [factor] that is not charged in the Information. . . . You cannot go past the Information."

The defense then prepared and filed a written motion seeking permission to ask prospective jurors "whether there are any aggravating circumstances which would cause a prospective juror to automatically vote for the death penalty, without considering the alternative of life imprisonment without possibility of parole." The trial court denied the motion with this comment: "I am not permitting you to ask them about any specific acts of mitigation or aggravation, as that would in my opinion have them prejudge the evidence." The trial court enforced this ruling during the remainder of the voir dire, prohibiting any defense questioning about uncharged facts or circumstances that would cause a prospective juror to vote automatically for the death penalty.

Defendant contends that by preventing all voir dire on the issue of prior murders, the court denied him his rights under our federal and state Constitutions to an impartial penalty jury. We agree.

Prospective jurors may be [*13] excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors. ( Wainwright v. Witt (1985) 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844.) "The real question is ' " 'whether the juror's views about capital punishment would prevent or impair the juror's ability to return a verdict of death in the case before the juror.' " ' " ( People v. Ochoa (2001) 26 Cal.4th 398, 431, 28 P.3d 78, 110 Cal. Rptr. 2d 324, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1318, 939 P.2d 259, 65 Cal. Rptr. 2d 145, quoting in turn People v. Hill (1992) 3 Cal.4th 959, 1003, 839 P.2d 984, 13 Cal. Rptr. 2d 475.) Because the qualification standard operates in the same manner whether a prospective juror's views are for or against the death penalty ( Morgan v. Illinois (1992) 504 U.S. 719, 726-728, 119 L. Ed. 2d 492, 112 S. Ct. 2222), it is equally true that the "real question" is whether the juror's views about capital punishment would prevent or impair the juror's ability to return a verdict of life without parole in the case before the juror.

A challenge for cause may be based on the juror's response when informed of [*14] facts or circumstances likely to be present in the case being tried. ( People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005, 874 P.2d 248, 30 Cal. Rptr. 2d 818.) In Kirkpatrick, the defendant was charged with the execution-style killings of a teenage employee and a former supervisor against whom he bore a grudge. ( Id. at pp. 999-1000.) The prosecution's case in aggravation included two uncharged assaults by the defendant on teenage boys, and an incident in which the defendant had threatened to harm the daughter and the pet dogs of a woman with whom he had a dispute over a calculator. ( Id. at pp. 1001-1002.) The trial court permitted the defendant to ask jurors if they would automatically vote for or against death "in cases involving any generalized facts, whether pleaded or not, that were likely to be shown by the evidence" ( id. at p. 1004, italics added). But the court ruled that the parties could use this voir dire only as a basis for peremptory challenges, not to establish grounds to challenge a prospective juror for cause.

We concluded the trial court erred by not permitting such questions to support a challenge for cause. We held: [*15] "A prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is therefore subject to challenge for cause, whether or not the circumstance that would be determinative for that juror has been alleged in the charging document." ( People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005, italics added; accord, People v. Ervin (2000) 22 Cal.4th 48, 70, 990 P.2d 506, 91 Cal. Rptr. 2d 623; People v. Earp (1999) 20 Cal.4th 826, 853, 978 P.2d 15, 85 Cal. Rptr. 2d 857.) Thus, we affirmed the principle that either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine penalty after considering aggravating and mitigating evidence. (See CALJIC No. 8.85 (2000 rev.) (6th ed. 1996).)

We have endorsed such particularized death-qualifying voir dire in a variety of situations. A prosecutor may properly inquire [*16] whether a prospective juror could impose the death penalty on a defendant in a felony-murder case ( People v. Pinholster (1992) 1 Cal.4th 865, 916-917, 824 P.2d 571, 4 Cal. Rptr. 2d 765), on a defendant who did not personally kill the victim ( People v. Ochoa, supra, 26 Cal.4th at p. 431; People v. Ervin, supra, 22 Cal.4th at pp. 70-71), on a young defendant or one who lacked a prior murder conviction ( People v. Livaditis (1992) 2 Cal.4th 759, 772-773, 831 P.2d 297, 9 Cal. Rptr. 2d 72), or only in particularly extreme cases unlike the case being tried ( People v. Bradford, supra, 15 Cal.4th at p. 1320).

Here, the trial court's ruling prohibited defendant's trial attorney from inquiring during voir dire whether prospective jurors would automatically vote for the death penalty if the defendant had previously committed another murder. Because in this case defendant's guilt of a prior murder (specifically, the prior murders of his grandparents) was a general fact or circumstance that was present in the case and that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances, the [*17] defense should have been permitted to probe the prospective jurors' attitudes as to that fact or circumstance. In prohibiting voir dire on prior murder, a fact likely to be of great significance to prospective jurors, the trial court erred. In fairness to the trial court, we note that most of our decisions clarifying the law on this point were announced after the trial in this case.

Arguing that the trial court did not err in restricting voir dire to facts and circumstances alleged in the information, the Attorney General relies on language in some of our prior decisions to the effect that death qualification voir dire " 'seeks to determine only the views of the prospective jurors about capital punishment in the abstract' " and " ' "without regard to the evidence produced at trial." ' " ( People v. Medina (1995) 11 Cal.4th 694, 746, 906 P.2d 2, 47 Cal. Rptr. 2d 165; People v. Clark (1990) 50 Cal.3d 583, 596-597, 268 Cal. Rptr. 399, 789 P.2d 127.) Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially [*18] impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. (See People v. Jenkins (2000) 22 Cal.4th 900, 990-991, 997 P.2d 1044, 95 Cal. Rptr. 2d 377 [not error to refuse to allow counsel to ask juror given "detailed account of the facts" in the case if she "would impose" death penalty].) In deciding where to strike the balance in a particular case, trial courts have considerable discretion. ( People v. Champion (1995) 9 Cal.4th 879, 908, 891 P.2d 93, 39 Cal. Rptr. 2d 547; People v. Pinholster, supra, 1 Cal.4th at p. 918.) They may not, however, as the trial court did here, strike the balance by precluding mention of any general fact or circumstance not expressly pleaded in the information. ( People v. Ervin, supra, 22 Cal.4th at p. 70; People v. Earp, supra, 20 Cal.4th at p. 853; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005; see also People v. Livaditis, supra, 2 Cal.4th at pp. 772-773.) [*19]

In Medina on which the Attorney General particularly relies, the trial court initially declined to permit voir dire on whether prospective jurors could vote for life imprisonment if the defendant had committed multiple murders, but later the trial court changed its ruling and allowed such questioning. Despite dictum expressing doubt that the court's initial ruling was incorrect, we held that the initial ruling did not prejudice the defendant because "after the trial court clarified its position with respect to the multiple murder question, defendant failed to ask to reexamine any juror on this topic." ( People v. Medina, supra, 11 Cal.4th at p. 746.) Here, by contrast, the trial court never altered its erroneous ruling, and defendant had no opportunity to reexamine any juror with respect to the prior murder question.

Error in restricting death-qualification voir dire does not invariably require reversal of a judgment of death. ( People v. Cunningham (2001) 25 Cal.4th 926, 974, 25 P.3d 519, 108 Cal. Rptr. 2d 291.) In particular, we have suggested that such error may be deemed harmless if the defense was permitted "to use the general voir dire to explore further the prospective jurors' [*20] responses to the facts and circumstances of the case" or if the record otherwise establishes that none of the jurors had a view about the circumstances of the case that would disqualify that juror. (Ibid.) Here, however, the general voir dire of each prospective juror immediately followed the death-qualification voir dire, and it seems clear from the record that the trial court's ruling extended to both portions of the voir dire. The Attorney General does not contend otherwise. As a result, defendant was unable to use the general voir dire to cure the prejudice resulting from the trial court's erroneous limitation on the scope of voir dire.

A defendant who establishes that "any juror who eventually served was biased against him" is entitled to reversal. ( People v. Cunningham, supra, 25 Cal.4th at p. 975; People v. Avena (1996) 13 Cal.4th 394, 413, 916 P.2d 1000, 53 Cal. Rptr. 2d 301.) Here, defendant cannot identify a particular biased juror, but that is because he was denied an adequate voir dire about prior murder, a possibly determinative fact for a juror. By absolutely barring any voir dire beyond facts alleged on the face of the charging document, the trial court [*21] created a risk that a juror who would automatically vote to impose the death penalty on a defendant who had previously committed murder was empanelled and acted on those views, thereby violating defendant's due process right to an impartial jury. (See Morgan v. Illinois, supra, 504 U.S. at p. 739.) The trial court's restriction of voir dire "leads us to doubt" that defendant "was sentenced to death by a jury empanelled in compliance with the Fourteenth Amendment." (Ibid.)

Because the trial court's error makes it impossible for us to determine from the record whether any of the individuals who were ultimately seated as jurors held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murders other than the murder charged in this case, it cannot be dismissed as harmless. Thus, we must reverse defendant's judgment of death. ( Morgan v. Illinois, supra, 504 U.S. at p. 739.)

Sofar v. Cockrell, 2002 U.S. App. LEXIS 15133 (5th Cir 07/29/2002) (en banc) (dissent) Relief denied on Sofar's Fifth Amendment claims raised in his habeas petition on which the panel had previously granted relief. Remanded to the panel for further deliberations.

Soffar argues that he invoked his right to remain silent at some point during the interview with Schultz. To support this claim, he relies on Schultz's statement to Clawson that he had "hit a brick wall" with Soffar. See Kelly v. Lynaugh, 862 F.2d 1126, 1130 (5th Cir. 1988) (holding suspect invoked right to remain silent by declining to talk). Once warnings are given, if a suspect "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 Ohio Misc. 9, 36 Ohio Op. 2d 237 (1966). If Soffar had invoked this right, his subsequent statements would be [*11] inadmissible unless the police "scrupulously honored" his right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975) (holding admissibility of statements obtained after person in custody has decided to remain silent is case-by-case inquiry depending on whether police respected suspect's request). We do not agree, based on the record before us, that Soffar invoked his right to remain silent.

Schultz's statement, standing alone, does not support an inference that Soffar had invoked his right to remain silent. n4 At the outset, based on Soffar's prior conduct and the fact that he continued the interrogation with Clawson after Schultz left the room, it does not appear that he wanted to stop talking. See, e.g., Barnes, 160 F.3d at 224 (finding no invocation of right to silence when viewed in light of suspect's prior statements and fact that suspect initiated discussion); West v. Johnson, 92 F.3d 1385, 1403 (5th Cir. 1996) (holding detective's testimony that suspect said he "didn't want to tell us anything about it," was not an invocation of the suspect's right to remain silent, but rather [*12] a denial of involvement in the crime).

Moreover, courts have adopted fairly strict standards when evaluating claims of invocation of silence. n5 A third-party statement expressing frustration over the suspect's unwillingness to talk does not meet this standard. See Barnes, 160 F.3d at 224-25 (holding that when suspect answered "no" to question of whether he waived his right, this was not invocation because it was evident he misunderstood the question and continued to talk); Burket v. Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (holding statements such as "I just don't think I should say anything," are not clear assertions); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) ("Ramirez's silence in the wake of two questions, while answering others, did not constitute even an equivocal invocation of his right to remain silent.").

In light of these facts and the relevant case law, we conclude that Soffar did not invoke his right to remain silent, and therefore, the police were free to continue questioning him.

Soffar argues that he invoked his right to counsel during his conversation with Clawson, and that his subsequent statements were therefore inadmissible. n6 In Davis v. United States, the Supreme Court held that law enforcement officers are not required to cease questioning when a suspect makes an ambiguous or equivocal request for counsel. 512 U.S. 452 (1994). An unambiguous statement "that can reasonably be construed to be an expression of a desire for the assistance of an attorney" is required under this stringent standard. Id. at 459. Davis established a bright-line rule, under which "a statement either is such an assertion of the right to counsel or it is not." Id.

Soffar's statements to Officer Clawson can be categorized as follows: he asked whether he should get an attorney; how he could get one; and how long it would take to have an attorney appointed. Courts have rejected each and every one of these questions as procedural, and too equivocal to constitute a clear invocation of the right to counsel. First, courts have rejected as ambiguous statements asking for advice on whether or not to obtain an attorney. See United States v. Posada-Rios, 158 F.3d 832, 867 (5th Cir. 1998) (holding that a suspect's statement that she "might have to get a lawyer then, huh?" was not a clear request); United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984) ("Why should I not get an attorney?" was not a clear request); see also Davis, 512 U.S. at 462 ("Maybe I should talk to a lawyer" was not a clear invocation).

Second, a suspect's question about how to obtain an attorney does not constitute an unambiguous assertion of his right. See United States v. Cruz, 22 F.3d 96, 98 (5th Cir. 1994) (holding that a suspect's statement that he was a "working man" who "couldn't afford an attorney" [*16] was not a clear request); see also Duckworth, 29 F.3d at 1220-21 (the statement, "I can't afford a lawyer but is there anyway I can get one?" was not a clear request).

Third, a suspect's inquiry into how long it would take to get an attorney is not a clear invocation. See United States v. Lux, 905 F.2d 1379, 1382 (10th Cir. 1990) (finding question about how long it would take to get a lawyer, and whether suspect would wait in jail during the interim, was not a clear request); United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999) (holding "what time will I see a lawyer" was not a clear request).

While a suspect need not "speak with the discrimination of an Oxford don," he must nevertheless clearly articulate his desire to have an attorney present. Davis, 512 U.S. at 459. Soffar's questions did not rise to the level of an unambiguous invocation of his right to counsel under Davis. n7

Soffar validly waived his rights, and did not subsequently invoke his right to remain silent or his right to counsel. The only remaining question, then, is whether Clawson's misleading statements invalidated the multiple waivers Soffar had given prior to the interview. We conclude they do not.

Soffar relies on language from the Supreme Court's decision in Miranda v. Arizona to argue that any misleading statement, trickery or deceit by an interrogating officer invalidates a suspect's waiver. See384 U.S. at 476 ("Any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege."). n8 We disagree with his interpretation. Subsequent cases interpreting Miranda's language show that trickery or deceit is only prohibited to the extent it deprives the suspect "of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Moran, 475 U.S. at 424. In this case, Soffar was well aware of his rights because he had been given numerous Miranda warnings and had waived his rights multiple times [*18] prior to his interview with Clawson. Furthermore, courts have found waivers to be voluntary even in cases where officers employed deceitful tactics. See Spring, 479 U.S. at 575 (holding waiver voluntary despite failure to inform suspect of potential subjects of interrogation); United States v. Tapp, 812 F.2d 177, 179 (5th Cir. 1987) (holding waiver voluntary even though officers failed to tell defendant he was target of investigation). Cf. Illinois v. Perkins, 496 U.S. 292, 297, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990) (upholding use of undercover agents in jails to elicit incriminating statements).

We have previously rejected, in a case involving very similar facts, an argument of retroactive waiver based on misleading statements. See De La Rosa v. Texas, 743 F.2d 299 (5th Cir. 1984). In De La Rosa, a suspect was arrested and subsequently questioned by an officer he knew. Several sets of Miranda warnings were given before the interview, but during the interview the officer told him that "it [would] take some time" before a lawyer could be appointed. Id. at 302. We held the suspect's waiver was still valid, stating:

We cannot accept the position that would have us ignore the repeated full and accurate warnings to focus only on the remark that appointing an attorney would take some time. The cumulative effect of the repeated incantations of Miranda and explanations in simpler language was such that De La Rosa was fully informed of his constitutional rights.

Id. at 302.

The Fourth Circuit has also held that misleading statements do not invalidate a prior waiver. In Mueller v. Angelone, n9 a suspect waived his Miranda rights and asked the police officer during the subsequent interrogation, "Do you [*20] think I need an attorney here?" 181 F.3d 557, 573 (4th Cir. 1999). The officer responded by "shaking his head slightly from side to side, moving his arms and hands in a 'shrug-like manner,' and stating, 'You're just talking to us.'" Id. at 573-74. The court rejected the suspect's argument that this exchange invalidated his prior waiver, stating that "it is clear from the record that [the suspect], with his extensive experience in such matters, understood both his rights and the consequences of their abandonment. [The officer's] expression of his opinion on the advisability of [the suspect's] consulting with counsel could not change that understanding." Id. at 575.

The panel opinion concluded that Fifth Circuit precedent, as set forth in the Nash line of cases, compels the conclusion that deceptive clarifying questions can invalidate a suspect's prior waiver. See Soffar, 237 F.3d at 458. We disagree. The primary holding of these cases, that all questioning following an ambiguous invocation should be limited to clarifying questions, was overruled by the Supreme Court's holding in Davis. See Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en banc); Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979); United States v. Cherry, 733 F.2d 1124 (5th Cir. 1984). In dicta, our opinion in Nash stated that an officer could not "utilize the guise of clarification as a subterfuge for coercion or intimidation," but the case itself did not involve any clarifying statements used to mislead a suspect. Nash, 597 F.2d at 517 (holding that clarifying questions are permissible after an ambiguous invocation, and ultimately holding that suspect did not invoke right to counsel). Likewise, Cherry noted in dicta that clarifying questions "cannot be used as a means of eliciting [*22] any incriminating statements." Cherry, 733 F.2d at 1130 (holding that when an equivocal request for counsel is made, the scope of interrogation must be limited to clarification). And in Wainwright, the court held that an officer's question was not limited to clarification and was therefore impermissible, but noted only that "the limited inquiry permissible after an equivocal request for legal counsel may not take the form of an argument between interrogators and suspect about whether having counsel would be in the suspect's best interests." Wainwright, 601 F.2d at 772.

Moreover, even if the Nash line of cases is applicable to the facts of this case, Soffar would be barred from relying on them by the non-retroactivity principle set forth in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). In Teague, the Supreme Court held that a new rule of law will not be applied on collateral review to cases that became final prior to the announcement of the new rule. Id. at 310. In determining whether a rule is "new," we must "survey the legal landscape as it then existed and determine [*23] whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution." Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (citations omitted) (emphasis added).

In order to qualify as existing, a rule must be dictated by Supreme Court precedent, not circuit court precedent. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 375-76, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993) (Thomas, J., concurring) (discussing fact that "neither federal supremacy nor any other principle of federal law requires a state court's interpretation of federal law give way to a (lower) federal court's interpretation"); Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en banc) (describing relevant inquiry under Teague as "whether a state court in 1987 would have felt compelled by Supreme Court precedent"); Glock v. Singletary, 65 F.3d 878, 885 (11th Cir. 1995) (holding that federal courts of appeals "do not 'dictate' a particular rule to state courts"). But see, e.g., Williams v. Taylor, 529 U.S. 362, 380-82, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) [*24] (Stevens, J. for four Justices) (discussing how AEDPA codifies Teague, yet extends the principle of Teague by limiting source of doctrine on which courts may rely in addressing habeas applications to Supreme Court precedent); Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999) (holding that state courts can be compelled to follow federal circuit case law if "foreordained" by Supreme Court precedent). Because the rules in Nash, Cherry and Wainwright prohibiting deceptive clarifying questions have never been dictated by the Supreme Court, we do not believe a state court, at the time Soffar's conviction became final, would have felt compelled to follow the holdings of these cases. Soffar has failed to show his prior waivers were invalidated by Clawson's misleading statements; thus, his valid waivers were still in effect and his subsequent statements were admissible.

Connecticut v. Sostre, 2002 Conn. LEXIS 290 (Conn. 07/30/2002) State Supreme Court takes a narrow of the aggravator relating to ''consideration,'' ''receipt'' and ''expectation'' of "pecuniary value" to exclude robbery:

General Statutes § 53a-46a (i) provides in relevant part: ''The aggravating factors to be considered shall be limited to the following . . . (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value . . . .'' We do not conclude, as the state urges, that this language clearly and unambiguously applies to robbery. *fn16 The words ''consideration,'' ''receipt'' and ''expectation'' invoke transactional concepts central to contract murder and invite the question whether the statute was intended to target capital felonies involving the taking of property by force. See footnote 2 of this opinion. Accordingly, to determine the intent of the legislature, we must examine the structure of the statute and the context of the language at issue, its legislative history and the case law of our sister states construing similar statutes.

II. CONSTRUCTION WITH GENERAL STATUTES § 53a-46a (i) (5)

As noted by the trial court, § 53a-46a (i) (5) provides significant context for the interpretation of § 53a-46a (i) (6). The (i) (5) factor applies to a defendant who procures the commission of a capital felony ''by payment, or promise of payment, of anything of pecuniary value,'' whereas the (i) (6) factor applies to a defendant who commits a capital felony ''as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value . . . .'' The proximity and parallel structure of these two factors suggest that they were intended to apply respectively to the two parties to a murder for hire, and that it is the procurer's promise of payment, referred to in (i) (5), that gives rise to the expectation of receipt, referred to in (i) (6). See Soares v. Max Services, Inc., 42 Conn. App. 147, 159, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996) (proximity of statutory provisions may reveal legislative intent).

The state claims, however, that this interpretation would render the clause ''in expectation of the receipt'' mere surplusage. It argues that, because ''[a]n exchange of promises is sufficient consideration to support a contract''; Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526 (1966); a murder for hire is committed for ''consideration'' whether payment is actually made or merely promised prior to the commission of the offense. See 1 Restatement (Second), Contracts § 77 (1) (1981) (''[t]o constitute consideration, a performance or a return promise must be bargained for'' [emphasis added]). Therefore, the state contends, the phrase ''as consideration for the receipt'' encompasses both actual receipt and expected receipt. Accordingly, it argues, if § 53a-46a (i) (6) is construed to apply only to murders for hire, that construction would render superfluous the second clause dealing with murders committed ''in expectation of the receipt ... ofanything of pecuniary value ....''

We conclude that the state's interpretation rests on a faulty reading of the statute. As used in § 53a-46a (i) (6), the term ''consideration'' does not refer to the benefit for which the capital offense was committed, but to the commission of the capital offense itself. *fn17 See General Statutes § 53a-46a (i) (6) (''the defendant committed the offense as consideration for the receipt'' [emphasis added]). In other words, it is the intentional murder that serves as the consideration for receipt of payment. Therefore, the fact that, under contract law, the term ''consideration'' may mean either performance or the promise of performance is irrelevant to our construction of the statute. It does not follow from that legal principle that, for purposes of § 53a-46a (i) (6), the term ''receipt'' may mean either actual receipt or the expectation of receipt any more than it follows that, under § 53a-46a (i) (5), the term ''payment'' may mean either actual payment or the promise of payment. Accordingly, if § 53a-46a (i) (6) were construed to apply only to murders for hire, the second prong would not be superfluous because, unlike the first prong, it covers the situation where the defendant either received the promised pecuniary value after the capital felony was committed or never actually received it.

We emphasize that this statutory language was drafted with a view to prosecuting capital felonies, not to enforcing contracts. Accordingly, it is reasonable to infer that the legislature included the ''expectation of the receipt'' language in § 53a-46a (i) (6) to clarify that it did not intend to require the state to prove actual receipt of a promised payment in order to establish the aggravating factor.

III. DEFINITIONS OF ''RECEIPT'' AND ''EXPECTATION''

The state also claims, however, that even if the second prong of § 53a-46a (i) (6), referring to the ''expectation of the receipt,'' covers murders for hire that are not covered by the first prong, referring to ''consideration for the receipt,'' the phrase ''in expectation of the receipt'' is not limited to cases in which the defendant has received a promise of payment, but includes any circumstance where the defendant expects to take possession of something of pecuniary value as a result of committing a capital offense. In support of its claim, the state relies primarily on the definition of the word ''receipt.'' It points out that the court in United States v. Walker, 910 F. Sup. 837, 848 n.15 (N.D.N.Y. 1995), *fn18 in interpreting an identical aggravating factor and rejecting the interpretation of the statutory language urged by the defendant in this case, concluded that the term '' 'receipt' '' did not ''serve to limit interpretation of the statute to pecuniary benefit which accrues to a defendant in a transactional sense . . . .'' Rather, the court noted, '' '[r]eceipt' in its plain and ordinary meaning is defined as '1a. An act of receiving something; b. The fact of being received.' Webster's II New Riverside Dictionary 981 (1994) 'Receive' is defined as '1. To acquire or take (something given, offered or transmitted): GET.' Id.'' (Emphasis in original.) United States v. Walker, supra, 848 n.15; see also id., 848, citing Webster's II New Riverside Dictionary (1994) *fn19 (concluding that ''nothing in the plain and ordinary meaning of 'expectation' serves to limit an understanding of Congress' use of the term to murders in expectation of the receipt of an inheritance''). Accordingly, the court concluded that the statutory language was sufficiently broad to apply to robbery. United States v. Walker, supra, 848-49. The state in this case also cites Webster's New Universal Unabridged Dictionary (1996), which defines ''to receive'' as ''to take into one's possession (something offered or delivered),'' in support of its claim.

We disagree with the Walker court's analysis. In our view, neither the definition cited by that court nor the definition cited by the state in this case supports that court's broad interpretation of the statutory language. Both definitions are accompanied by parenthetical qualifiers that clearly connote the passive stance of a person who ''receives.'' See Webster's II New Riverside Dictionary 981 (1994) (received item is ''something given, offered or transmitted''); Webster's New Universal Unabridged Dictionary (1996) (received item is ''something offered or delivered''). This connotation is at odds with the notion of robbery, which involves the use, or the threat of immediate use, of physical force upon a person to take property or to compel its delivery. See footnote 2 of this opinion. Similarly, the phrase ''in expectation of'' does not carry with it the connotation of purposive activity that the phrases ''with intent to'' or ''in an attempt to'' do, while it does connote both a sense of probability and of debt or obligation. See Webster's Ninth New Collegiate Dictionary (1991) (''expect'' means ''1 archaic: AWAIT 2: SUPPOSE, THINK 3: to anticipate or look forward to the coming or occurrence of 4 a: to consider probable or certain b: to consider reasonable, due, or necessary c: to consider bound in duty or obligated ''). The phrase ''in expectation of the receipt,'' therefore, more accurately describes the mental state of a defendant who anticipates taking possession of something offered or to be delivered to him under a promise than that of a defendant who intends to take property from a person by force.

The state also claims that its interpretation is supported by General Statutes § 53a-118 (a) (6), which provides that, for purposes of part IX of chapter 952 of the Penal Code, relating to larceny, robbery and related offenses, ''[t]o 'receive' means to acquire possession, control or title, or to lend on the security of the property.'' Although this definition appears, at first blush, to be broader than the dictionary definitions cited by the state, the state has pointed to no penal statute pertaining to larceny or robbery where the term ''to receive'' is actually used in the sense of ''to rob.'' Rather, the statutes consistently distinguish those offenses in which the property is ''received,'' i.e., is not taken by use of force directly from the person of the victim, from other theft offenses. See General Statutes § 53a-119 (8) and (13); *fn20 see also General Statutes §§ 53a-128a (f), *fn21 53a-128c, *fn22 and 53a-128g. *fn23

Accordingly, we conclude that the dictionary and statutory definitions of ''expectation'' and ''receipt'' are consistent with the interpretation that the aggravating factor was not intended to apply to capital felonies committed in the course of a robbery.

[statutory construction snipped]

VI. OTHER JURISDICTIONS

The state also urges this court to follow two jurisdictions with aggravating factors identical to § 53a-46a (i) (6) that have construed the factor to apply to capital felonies committed during the course of a robbery. See United States v. Walker, supra, 910 F. Sup. 837 (construing 21 U.S.C. § 848 [n] [7]); State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 612 (1980) (construing Ariz. Rev. Stat. § 13-454 [E] [5] [1956]). *fn29 For the reasons set forth in the foregoing analysis, however, we reject the conclusions of the court in Walker that (1) the defendant's interpretation of the factor would render the '' 'in expectation of the receipt' '' language superfluous; (2) the proximity and parallel structure of the aggravating factor for procurement of murder for hire was not significant; and (3) nothing else in the plain language or structure of the statute precluded the application of the statute to robbery. See United States v. Walker, supra, 848-49.

Nor are we persuaded by the Arizona court's conclusory statement that ''[t]he circumstances surrounding the total episode reflect that the expectation of financial gain [from a robbery] was a cause of the murders,'' and that the factor was, therefore, applicable to robbery. State v. Clark, supra, 126 Ariz. 436. Moreover, that court subsequently held that ''the language in [Ariz. Rev. Stat.] § 13-703 (F) (5) [1978] makes clear . . . that this aggravating [circumstance] does not apply in every situation where an individual has been killed while at the same time the defendant has made a financial gain. It is limited to those situations where the defendant committed the offense . . . in the expectation of the receipt of anything of pecuniary value. . . . In other words, the hope of pecuniary gain must provide the impetus for the murder. For example, if a beneficiary killed an insured in order to gain the proceeds of a life insurance policy this aggravating circumstance would be satisfied. On the other hand, an unexpected or accidental death that was not in furtherance of the defendant's goal of pecuniary gain, which occurs during the course of or flight from a robbery, does not in itself provide a sufficient basis for finding the same aggravating circumstance.'' (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hensley, 142 Ariz. 598, 603-604, 691 P.2d 689 (1984). Accordingly, it is far from clear that Arizona courts would apply the aggravating factor under the circumstances of this case. See also United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir. 2000), cert. denied, U.S. , 122 S. Ct. 457, 151 L. Ed. 2d 376 (2001) (noting that person who kills in course of robbery does not necessarily do so for pecuniary reasons and holding that, under 18 U.S.C. § 3592 [c] [8], *fn30 capital felony itself, rather than robbery, must be committed in expectation of pecuniary gain). Moreover, to the extent that Hensley and Chanthadara could be read as suggesting that the aggravating factor is applicable to certain capital offenses committed during the course of a robbery, namely, those in which the sole motive for the killing was pecuniary gain, for the reasons set forth in parts II, III and IV of this opinion, we are not convinced that the Connecticut legislature had any such intent. *fn31

The defendant also points out that the court in State v. Chew, supra, 150 N.J. 56, construing an aggravating factor identical to § 53a-46a (i) (6), concluded that, to satisfy the factor, ''it must be found that the killing is the essential prerequisite to the receipt of the gain, not just a killing that results in pecuniary gain.'' *fn32 The issue in that case, however, was whether the factor applied to a murder committed in order to obtain insurance proceeds, not whether it applied to robbery. Id., 50. Although the court stated in dicta that ''our statute does not sustain the breadth of the factor adopted by the . . . court [in United States v. Walker, supra, 910 F. Sup. 837]''; State v. Chew, supra, 55; and ''that it would be double-counting to apply the c (4) (d) factor to a killing in the course of a robbery;'' id., 56; we conclude that, because the analysis in Chew focused on whether murder to obtain insurance proceeds, rather than murder in the course of a robbery, is covered by the aggravating factor, it adds little to the foregoing discussion.

VII. RULE OF LENITY

We recognize that, in a very broad sense, a defendant who commits a capital felony during the course of a robbery could be said, under certain circumstances, to have done so ''in expectation of the receipt'' of something of pecuniary value. General Statutes § 53a-46a (i) (6). As the trial court noted, however, ''[t]he issue . . . is not whether the language of the statute could be [so] construed . . . but whether the legislature intended that it would.'' (Emphasis in original.) We conclude that the language, structure and legislative history of § 53a46a (i) (6) all support the defendant's interpretation that the legislature had no such intention.

Even if we were to conclude, however, that it is simply uncertain whether § 53a-46a (i) (6) was intended to apply to a capital felony committed during the course of a robbery, when ''a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute''; (internal quotation marks omitted) State v. Jason B., supra, 248 Conn. 555; we apply the rule of lenity and resolve any ambiguity in favor of the defendant.

We conclude that § 53a-46a (i) (6) does not apply to a capital felony committed in the course of a robbery.

New Jersey v. Nelson, 2002 N.J. LEXIS 1089 (NJ 07/30/2002) Penalty phase verdict was unduly confusing & prosecution's penalty phase closing was improper.

We turn now to the special verdict sheet. In order to provide context for our analysis, we reproduce the verdict sheet at the conclusion of this opinion.

We have stressed above the need [*48] for correct and unambiguous jury instructions in capital cases, "especially with respect to the jury's balancing of aggravating and mitigating factors." Koskovich, supra, 168 N.J. at 525. The need for clear verdict sheet directions is no less important. After verbal instructions are given and the jurors retire to the jury room, they are left alone with the directions on the verdict form. Their efforts to answer questions that they may have about verbal instructions almost certainly would involve an examination of the verdict sheet directions. Jurors are likely to refer, and refer often, to the directions on the verdict form. If verbal instructions are unclear, or if jurors do not fully comprehend verbal instructions, the typewritten verdict sheet is likely the primary road map they will use to direct their deliberative path.

Preliminarily, the State asserts that the verdict sheet reinforces its position that the trial court made repeated reference to the unanimity requirement. Specifically, the State emphasizes the following excerpts from the verdict sheet:

On page 1 of the verdict sheet:

Do you unanimously find beyond a reasonable doubt that

any n3 [*49] of the following aggravating factors exist[;]

On page 2 of the verdict sheet:

If you have unanimously found that one or more aggravating factors were present, go to number "2" below [; and]

On page 4 of the verdict sheet:

If you have unanimously found more than one aggravating factor present, then indicate as to each factor whether it, by itself, outweighs the mitigating factors beyond a reasonable doubt.

We disagree that these excerpts support the State's position. Rather, we find that they suffer from the same ambiguity as the jury instructions discussed above. Like the jury instructions, the verdict sheet merely directs that if each juror found "any," "one or more" or "more than one" of the aggravating factors exists, then the jury is to move on. It does not specify that the jury needs to be unanimous regarding a specific aggravator in order to consider [*50] it.

It is true that, like the ambiguous oral jury instructions, the verdict sheet also could have been understood to reflect what the trial court intended and what the State contends that it conveys - that a specific aggravating factor must be found unanimously in order to be considered in the weighing process.

The ambiguously drafted verdict sheet differs from the ambiguous oral jury instructions in that the verdict sheet does not contain a written analogue to the one comprehensive oral instruction contained in the oral instructions. Stated differently, there is no language in the verdict sheet that could serve to clarify the ambiguous language contained therein. All the jury had to refer to was the ambiguous language itself - on the verdict sheet in black and white.

The State's response is that the jury could hearken back to the one clear oral instruction it was given to allay any potential confusion created by the ambiguous verdict sheet. There are two difficulties with that argument. First, a jury is more likely to refer to the writing directly before it to resolve any potential confusion rather than attempt to recollect an oral instruction. Second, even though a jury is presumed [*51] to consider whatever it remembers from the court's charge, the State's position in this appeal places inordinate faith in the jurors' abilities to recall details in a verbal instruction to reconcile an ambiguity found in a verdict sheet. As one commentator stated:

Studies show[] that jurors frequently cannot answer simple true-false questions concerning statements of law taken from instructions they were given in court. Their understanding is often little better than that of persons who never heard the instructions at all. This suggests that the problem is not just one of comprehension, for jurors in these studies were not asked to explain or apply the legal rules. Rather, it was simply a matter of whether they could recall or recognize instructions they had heard.

[Christopher N. May, "What Do We Do Now?": Helping Juries Apply the Instructions, 28 Loy. L.A. L. Rev. 869, 879-80 (1995)(emphasis added).]

Although we do not find the instructions on the verdict sheet to be erroneous per se, we hold that the verdict sheet's ambiguous wording, coupled with the jury's clearly confused response to the special verdict instruction and the failure of the [*52] trial court to obtain clarification for the jury, demonstrates trial court error, which we cannot consider harmless.

The special verdict instruction, followed by the jury's response, was as follows:

If you have unanimously found more than one aggravating factor present, then indicate as to each factor whether it, by itself, outweighs the mitigating factors beyond a reasonable doubt:

Aggravating Factor "a" No (0) Yes (12) Aggravating Factor "b" No (1) Yes (11)

Aggravating Factor "c" No (0) Yes (12)

The instruction's apparent intent was to have the jury "indicate," or identify, on the special verdict sheet only those specific aggravating factors that the jury unanimously had found. By inserting a response for aggravating factor B, which the jury had not found unanimously, the jury demonstrated that it might not have understood that it was prohibited from considering those aggravating factors that it did not find unanimously. Moreover, the jury may have been indicating that eleven jurors found that aggravating factor B, by itself, outweighed the mitigating factors beyond a reasonable doubt. Accordingly, there is the possibility that at least some of those eleven jurors [*53] considered aggravating factor B in the balancing process that determined the imposition of the death penalty in this appeal. If eleven jurors found aggravating factor B sufficient enough to outweigh all the mitigating factors by itself, one or more of those jurors may well have taken factor B into account when making the ultimate decision whether defendant would receive life imprisonment or the death penalty.

Specifically, the jury's responses to the special verdict section of the verdict sheet are troublesome on two levels. First, under a reasonable interpretation of the special verdict section, its question supports the jury's consideration of any aggravating factor, regardless of whether that factor had been unanimously found. It suggests that the jury may evaluate the relative weights of each aggravating factor, considered alone, against the mitigating factors, so long as the jury unanimously found more than one aggravating factor present. The danger the question posed is that it might lead jurors to believe that jurors could consider an aggravating factor that an individual juror found, even if that specific factor was not found by all twelve jurors, so long as the jury found [*54] more than one aggravating factor present.

Second, and more important, that danger might have come to fruition. The jury answered the special verdict question, indicating that it might well have considered the relative weights of aggravating factor B and the mitigating factors. The jurors' possible consideration of aggravating factor B substantiates our concern that the verdict sheet supported the jurors' consideration of a rejected aggravating factor when weighing the aggravating factors against the mitigating factors. The verdict sheet and the jury's responses to it undermine our confidence in the jury's verdict because there is no guarantee that the jurors understood they were not to consider factor B in weighing the aggravating and mitigating factors. We cannot be certain that the jurors did or did not give weight to aggravating factor B.

Importantly, defense counsel objected to the inclusion of the special verdict question even before the trial judge submitted it to the jury. Specifically, defense counsel objected "to the last portion where the jury is asked to advise the Court whether in the event it finds a death verdict any one of the three aggravating factors or two of the [*55] three in and of themselves were found by the jury to outweigh the mitigating factors beyond a reasonable doubt." Perhaps defense counsel was concerned that subsection B of the "Decision of the Jury" portion of the verdict sheet could encourage some jurors to rely on an aggravating factor not found unanimously. What we do know is that counsel had a constitutional concern because the special verdict question essentially asked the jury to provide an advisory opinion, which could not serve as the basis for a death sentence. Whatever may have been the precise reason for the objection, defense counsel emphasized that "we rather strongly oppose that portion of the verdict form," referring to the special verdict question, which asked the jurors to indicate whether any aggravating factor "by itself" outweighed the mitigating factors.

After the jurors completed the verdict form, defense counsel also brought to the attention of the trial court his concerns about the jurors' responses to the special verdict question. Specifically, counsel stated:

The jurors have indicated that with respect to aggravating factor B, eleven jurors found that it in and of itself outweighed the mitigating factors [*56] beyond a reasonable doubt but the jury didn't find unanimously beyond a reasonable doubt that mitigating [sic] factor B had been proven in the case. And the obvious concern that we have is the extent to which that suggests that eleven jurors who voted for B considered it in the weighing process even though they were not supposed to because it makes no sense that they would indicate that 11 to 1 considered that B outweighed the mitigating factors beyond a reasonable doubt and at least from that point of view I'm extremely troubled by the suggestion that these 11 jurors who voted for B used it improperly in the weighing process to decide that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt in contravention to the Court's instruction.

[Emphasis added.]

The State acknowledged, at least implicitly, some merit to defendant's concerns. The assistant prosecutor stated at the trial that "it appears that the question may not have been as artfully framed as it might have been." The State also indicated that it would not object if the trial court sent the issue back to the jury for clarification of the verdict sheet. The trial court said that [*57] it thought it understood the jury's intent and thus, despite the State's invitation to the trial court, the court refused to clarify the matter.

As we stated in Koskovich, supra, 168 N.J. at 523, "we have emphasized repeatedly the importance of the balancing process engaged in by jury members during the penalty phase." Based on conflicting beliefs about whether a defendant should live or die, that balancing process results in a judgmental determination by the jury. Ibid. "The importance of the jury's determination cannot be overstated as 'the entire system of capital punishment depends on the belief that a jury representing the conscience of the community will responsibly exercise its guided discretion in deciding who shall live and who shall die.'" 168 N.J. at 524 (quoting State v. Ramseur, 106 N.J. 123, 311, 524 A.2d 188 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)). Accordingly, "we are especially sensitive to ensuring the correctness of jury instructions concerning the jury's balancing of aggravating and mitigating factors, because that balancing represents the core of the jury's function in the penalty [*58] phase." Ibid. "Because of the singular and unique importance of that decision, there must be little chance that the jury as a whole, or even an individual juror, is confused about the process." 168 N.J. at 525-26.

We find that Koskovich's admonition to ensure the correctness of jury instructions concerning the balancing of aggravating and mitigating factors applies to jury verdict sheets as well. Although the jury verdict sheet in this appeal might not have been obviously incorrect, it was ambiguous concerning the crucial unanimity requirement. Moreover, the verdict sheet did not fail simply to clarify the law; it exacerbated the ambiguity by suggesting the consideration of aggravating factors not unanimously found. Cf. Clausell, 121 N.J. at 345-46 (noting that verdict form compounded confusion created by verbal instructions, even though trial court correctly instructed jury on matter at issue once). Coupled with the jury's response - its confusion in respect of whether it was permitted to consider those aggravating factors it did not find unanimously, as well as the strong possibility that some of the eleven jurors erroneously considered aggravating factor B [*59] in the jury's imposition of the death penalty on defendant - we find that there was trial court error here. The enhanced reliability required for death sentence mandates that there "be little chance that the jury as a whole, or even an individual juror, is confused about the process." Koskovich, supra, 168 N.J. at 526. When assessing a confusing charge, "'where the life of an accused is at stake, it is too risky to determine what the instructions . . . could mean to the twelve lay minds of the jurors." 168 N.J. at 524 (quoting State v. Wynn, 21 N.J. 264, 271, 121 A.2d 534 (1956)).

Here, the verdict sheet suggests the possibility, indeed probability, that the jurors were confused about whether eleven of them could consider aggravating factor B in the weighing process. Even the prosecutor recognized the possibility that jurors were confused. Accordingly, the trial court should have asked the jury to clarify its response to the special verdict sheet. Because the court failed to do so, we must find that there was trial court error here. The "singular and unique importance of [the jury's] decision," ibid., demands nothing less.

For the benefit of parties [*60] and trial courts in the event that similar circumstances arise in the future that call for clarification, a trial court should emphasize that in order for each juror to weigh a specific aggravating factor when balancing it against the mitigating factors, all twelve jurors must have found that that factor was proven beyond a reasonable doubt. If even one juror does not find that factor beyond a reasonable doubt, no juror can consider it in the weighing and balancing process.

SUPREME COURT

The Court is in summer recess.

CAPITAL CASES (Favorable Disposition)

See above

CAPITAL CASES (Unfavorable Disposition)

Collier v. Cockrell, 2002 U.S. App. LEXIS 14910 (5th Cir 07/25/2002) No error in trial court's refusal to inform the jury that life meant at least 40 years & the right to self-representation

St. Pierre v. Walls, No. 01-3480 (7th Cir. 07/23/2002) (dissent) Relief denied on guilt phase claims relating to failing not to adequately consider an insanity defense, 2) investigate and obtain reports on defendant's childhood, and 3) have defendant examined by a mental health expert, did not amount to ineffective assistance. Penalty phase relief granted below and the state chose not to appeal that decision.

People v. Gurule, 2002 Cal. LEXIS 4825 (CA 07/22/2002) Appellant was not deprived, most notably, of right to confront witnesses when trial court refused access to mental health records generated by accomplice's defense experts.

OTHER NOTABLE CASES

Avila v. Galaza, No. 01-55149 (9th Cir 07/22/2002) Trial counsel failed to adequately develop strong evidence of Avila's actual innocence.

Jones v. Williams, No. 00-56929 (9th Cir 07/24/2002) Police officers cannot be held liable under 42 U.S.C. section 1983, for an allegedly unlawful search, resulting in the destruction of personal property, when there is no direct evidence of their individual participation.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

Will return next week.

OTHER RESOURCES:

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

NEW VIDEO: Senator Kennedy Speaks on Death Penalty Developments

During DPIC's Sixth Annual Thurgood Marshall Journalism Awards program, Senator Edward Kennedy addressed recent death penalty developments, including the Supreme Court ruling in Atkins v. Virginia, Congressional efforts to ensure fairness in capital cases, and the application of the death penalty to juvenile offenders. Senator Kennedy also praised the role of the Death Penalty Information Center. Video of Senator Kennedy's remarks. See also, Thurgood Marshall Journalism Awards.

NEW RESOURCE: Drug Companies and Their Role in Aiding Executions

It its most recent report, "Drug Companies and Their Role in Aiding Executions," the National Coalition to Abolish the Death Penalty calls upon the nationÕs manufacturers and distributors of lethal injection drugs to take steps to prevent their drugs from being used in executions. The report contains 10 recommendations that manufacturers of lethal injection drugs should implement to make sure that their products are not used in executions. In addition to tracing the history of lethal injection drugs in executions, the report examines what can go wrong during these executions, lists the companies that produce lethal injection drugs, and discusses medical guidelines regarding doctor participation in executions. See NCADP's Press Release. Read the Report. See also, Methods of Execution.

New Voices: Arizona Legislators Voice Concerns About State's Death Penalty

As Arizona legislators consider reforms to the state's death penalty in light of the Supreme Court's decision in Ring v. Arizona, a number of State House members have come forward with concerns about Arizona's capital punishment statutes. Rep. Gabrielle Giffords, who was elected as a supporter of capital punishment, now questions whether executing inmates makes any sense because she believes the death penalty does not deter crime. Rep. John Huppenthal, a Republican, noted that after the release of the nation's 100th innocent death row inmate, Ray Krone in Arizona, he now supports a moratorium on executions until it is clear that the system protects the innocent. Rep. Henry Camarot urged his colleagues to apply any changes in the law retroactively. Under current legislative proposals, approximately 100 Arizona death row inmates who were sentenced by judges - a practice that was affected by the Ring ruling - and who have exhausted their appeals would not be entitled to resentencing with a new jury. (Arizona Daily Star, July 26, 2002). See also, U.S. Supreme Court: Ring v. Arizona and New Voices.

Texans Question Accuracy of Death Penalty, Support Life Without Parole

A recent Texas poll revealed that approximately 40% of Texans would support a moratorium on executions while a study is conducted to review the fairness of the state's death penalty policies. The poll also found that 66% of residents in the state believe that an innocent person has been wrongfully executed in Texas. Nearly three-quarters of residents favor changing the state's existing law to allow life in prison without parole, and just 51% favor the law that allows executing an inmate who committed capital murder at age 17. (Austin American-Statesman, June 22, 2002). See also, Public Opinion.

New Voices: The Arizona Republic Reverses Position on the Death Penalty

The Arizona Republic, a long-time supporter of capital punishment, has called on the state to abandon the death penalty and make life in prison without parole the maximum punishment under Arizona law. The editorial stated:

The argument against the death penalty has become more profound and salient. Simply put, we now know beyond dispute that the criminal-justice system wrongly sentences people to death. We even know their names, because since 1970, 101 of them have subsequently been found innocent. Moreover, the pace of exonerations has been accelerating, due in part to the wider use of DNA evidence.

...

The theoretical argument that the criminal-justice system, being a human institution, is bound to be fallible is no longer theoretical. It's a reality, and public policy must confront it.

Currently, 12 states do not allow capital punishment as a sentencing option. Read the entire editorial. See also, New Voices.

Juvenile Offenders on Pakistan's Death Row Get Life Sentence

As Pakistan's federal government enforces the Juvenile Justice System Ordinance 2002 in Punjab, 74 juvenile offenders had their death sentences converted to life imprisonment, according to Punjab Law Minister Rana Ijaz Khan. (Pakistan News, July 25, 2002.) According to the American Bar Association, in the last three years, the number of nations that execute juvenile offenders has dropped significantly to only three: Iran, the Democratic Republic of Congo, and the United States. See also, Juveniles and the Death Penalty and International Death Penalty.

Death Row Appeal Denied Despite Drunk Attorney

North Carolina death row inmate Nathan Bowie, whose defense attorney admitted drinking more than 12 ounces of 80-proof rum every night during his client's trial, has been denied a new trial by Superior Court Judge Michael Helms. The appeal claimed that Bowie's trial attorney, Thomas Portwood, failed to comply with a Supreme Court decision requiring defense attorneys to thoroughly investigate a defendant's background. Appellate attorneys asserted that, during Bowie's trial, Portwood failed to obtain crucial evidence that he could have presented to the jury on behalf of Bowie, and he did not call witnesses to detail his client's troubled childhood, alcohol abuse, or mental problems. Appellate attorneys are asking the state Supreme Court to review the decision by Judge Helms. (Associated Press, July 25, 2002).

DPIC Bestows Sixth Annual Thurgood Marshall Journalism Awards to Honor Excellence in Coverage of Capital Punishment

Bill Kurtis's A&E Network documentary "Investigative Reports: Death Penalty on Trial," an exceptional series titled "Uncertain Justice" by Rebekah Denn and Lise Olsen of the Seattle Post-Intelligencer, and the groundbreaking program "The Executions Tapes" by Sound Portraits Productions and WNYC received honors during the Death Penalty Information Center's (DPIC) Sixth Annual Thurgood Marshall Journalism Awards at the National Press Club in Washington, DC. The program also featured keynote remarks from Stephen B. Bright, Executive Director of the Southern Center for Human Rights, and a special greeting from U.S. Senator Edward M. Kennedy (D-Mass.). Read DPIC's Press Release. See also, Thurgood Marshall Journalism Awards.

Human Rights Commission to Review Petition of Mexican National Scheduled for Execution

The Inter-American Commission on Human Rights will review a petition submitted on behalf of Javier Suarez Medina, a Mexican national scheduled for execution in Texas on August 14th. The Commission, established to ensure that nations comply with safeguards established in human rights treaties, will review whether or not the arresting police notified Medina of his right to obtain assistance from the Mexican Consulate. The petition claims that, while Texas police were aware of Medina's Mexican nationality, new evidence reveals that they provided false information to Mexican consular officials about his nationality and prevented them from assisting Medina during his capital murder trial. If consular rights were denied, Medina's execution would be illegal under international law according to the representatives of the Mexican Capital Legal Assistance Program. See the Press Release from Medina's Legal Counsel. See also, Foreign Nationals.

If you have found this e-zine useful you might want to visit: www.lidab.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).

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CITATION

This edition may be cited as:

Capital Defense Weekly, Volume V, Issue 27; http://capitaldefenseweekly.com/archives/020729.htm