This combination issue is packed with more cases granting relief or a favorable result than any prior issue with eighteen cases noting either an out right reversal, remand or some other kind of positive relief.

The Supreme Court left town with an unusually heavy end of the year fury. In the second landmark death penalty decision of the term, the Court in Ring v. Arizona held, at the risk of over simplification, that juries and not judges must decide who lives and who dies. In a per curiam opinion released the last day of term, the Court held in United States v. Bass that the accused had failed to submit relevant evidence that similarly situated persons were treated differently and was therefore not entitled to discovery of racial bias in prosecution. In Stewart v. Arizona that the Arizona rules governing procedural default meant that petitioner had defaulted his claims, but a remand was required to see if Petitioner could overcome the default. The Habeas Assistance & Training Counsel review of the Supreme Court term's highs and lows is the focus of the week.

In news from the lower courts, the decision by Judge Rakoff of the Southern District of New York holding that the federal death penalty violates the United States constitution due to the grave risk of killing the innocent makes the hot list. The South Carolina Supreme Court's decision in South Carolina v. Burkhart also makes the hot list due to its excellent analysis of when a defendant is entitled to a self defense instruction and the prosecution's burden of proof when it is given. Two additional notable grants of relief, not included on this week's hot list include Beltran v. Cockrell, (5th Cir) (IAC on "defense counsel's unreasonable strategic decisions and investigative failures" and Williams v. True (4th Cir) (juror bias & prosecutorial misconduct).

Several notable stays have been had since last issue. Punctuating the need to never stop investigating a case, counsel for Jose Briseno (Dick Burr & Mandy Welch) won a stay after they found a prison record that indicated, unbeknownst to anyone involved in the case, that Mr. Briseno had tested below the threshold for mental retardation (no opinion is yet available). In Florida Linroy Bottoson and Amos King won very hard fought stays (Bottoson had already had his "last meal") in the Florida Supreme Court on the question of whether Ring applies to the Florida sentencing scheme -- the United States Supreme Court refused to lift the stay (the Florida Supreme Court opinion is not yet available). In Texas, Gary Etheridge received a stay on claims that the judge who had set the execution date should have recused himself based on prior statements he had made about Mr. Etheridge; a new judge has sent an execution date of August 20, 2002.

In other news, the European Union has earmarked approximately 7 million dollars in grants for work against the death penalty both here in the states and around the world. Grants are available for between $300,000 and $1.5 million. There are many stipulations and the process appears from those who have looked at it seems VERY involved. And the application deadline is July 29. The URL is http://europa.eu.int/comm/europeaid/projects/eidhr/cfp_en.htm.

Next week's edition may not run due to a very tight filing deadline.

Execution Information

Since the last edition the following have been executed:

HOT LIST (Supreme Court)

Ring v. Arizona, 2002 WL 1357257 (June 24, 2002) (See above) The Supreme Court, 6-3, overrules Walton v. Arizona, 497 U.S. 639 (1990), and holds that "[c]apital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Note that the Court did not reverse from any state that had an advisory jury, but did call into question the federal death penalty by reversing in Allen v. United States. (See Focus section below for the HAT analysis)

Based solely on the jurys verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. See 200 Ariz., at 279, 25 P.3d, at 1151 (citing Ariz. Rev. Stat. 13703). This was so because, in Arizona, a death sentence may not legally be imposed unless at least one aggravating factor is found to exist beyond a reasonable doubt. 200 Ariz., at 279, 25 P.3d, at 1151 (citing 13703). The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendments jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4

As earlier indicated, see supra, at 1, 89, this is not the first time we have considered the constitutionality of Arizonas capital sentencing system. In Walton v. Arizona, 497 U.S. 639 (1990), we upheld Arizonas scheme against a charge that it violated the Sixth Amendment. The Court had previously denied a Sixth Amendment challenge to Floridas capital sentencing system, in which the jury recommends a sentence but makes no explicit findings on aggravating circumstances; we so ruled, Walton noted, on the ground that the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury. Id., at 648 (quoting Hildwin v. Florida, 490 U.S. 638, 640641 (1989) (per curiam)). Walton found unavailing the attempts by the defendant-petitioner in that case to distinguish Floridas capital sentencing system from Arizonas. In neither State, according to Walton, were the aggravating factors elements of the offense; in both States, they ranked as sentencing considerations guiding the choice between life and death. 497 U.S., at 648 (internal quotation marks omitted).

Walton drew support from Cabana v. Bullock, 474 U.S. 376 (1986), in which the Court held there was no constitutional bar to an appellate courts finding that a defendant killed, attempted to kill, or intended to kill, as Enmund v. Florida, 458 U.S. 782 (1982), required for imposition of the death penalty in felony-murder cases. The Enmund finding could be made by a court, Walton maintained, because it entailed no element of the crime of capital murder; it only place[d] a substantive limitation on sentencing. 497 U.S., at 649 (quoting Cabana, 474 U.S., at 385386). If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding, Walton stated, we cannot conclude that a State is required to denominate aggravating circumstances elements of the offense or permit only a jury to determine the existence of such circumstances. 497 U.S., at 649.

In dissent in Walton, Justice Stevens urged that the Sixth Amendment requires a jury determination of facts that must be established before the death penalty may be imposed. Id., at 709. Aggravators operate as statutory elements of capital murder under Arizona law, he reasoned, because in their absence, [the death] sentence is unavailable. Id., at 709, n.1. If th[e] question had been posed in 1791, when the Sixth Amendment became law, Justice Stevens said, the answer would have been clear, for [b]y that time,

the English jurys role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jurys role in finding facts that would determine a homicide defendants eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendants state of mind. By the time the Bill of Rights was adopted, the jurys right to make these determinations was unquestioned. Id., at 710711 (quoting White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendants Right to Jury Trial, 65 Notre Dame L.Rev. 1, 1011 (1989)).

Walton was revisited in Jones v. United States, 526 U.S. 227 (1999). In that case, we construed the federal carjacking statute, 18 U.S.C. 2119 (1994 ed. and Supp. V), which, at the time of the criminal conduct at issue, provided that a person possessing a firearm who takes a motor vehicle from the person or presence of another by force and violence or by intimidation shall(1) be imprisoned not more than 15 years , (2) if serious bodily injury results, be imprisoned not more than 25 years , and (3) if death results, be imprisoned for any number of years up to life . The question presented in Jones was whether the statute defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict. 526 U.S., at 229.

The carjacking statute, we recognized, was susceptible of [both] constructions; we adopted the one that avoided grave and doubtful constitutional questions. Id., at 239 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). Section 2119, we held, established three separate offenses. Therefore, the factscausation of serious bodily injury or deathnecessary to trigger the escalating maximum penalties fell within the jurys province to decide. See Jones, 526 U.S., at 251252. Responding to the dissenting opinion, the Jones Court restated succinctly the principle animating its view that the carjacking statute, if read to define a single crime, might violate the Constitution: [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id., at 243, n.6.

Jones endeavored to distinguish certain capital sentencing decisions, including Walton. Advancing a careful reading of Waltons rationale, the Jones Court said: Walton characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available. 526 U.S., at 251.

Dissenting in Jones, Justice Kennedy questioned the Courts account of Walton. The aggravating factors at issue in Walton, he suggested, were not merely circumstances for consideration by the trial judge in exercising sentencing discretion within a statutory range of penalties. Under the relevant Arizona statute, Justice Kennedy observed, Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment. 526 U.S., at 272 (cita-tion omitted). Jones, Justice Kennedy concluded, cast doubtneedlessly in his viewon the vitality of Walton:

If it is constitutionally impermissible to allow a judges finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judges finding may increase the maximum punishment for murder from imprisonment to death. In fact, Walton would appear to have been a better candidate for the Courts new approach than is the instant case. 526 U.S., at 272.

One year after Jones, the Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendant-petitioner in that case was convicted of, inter alia, second-degree possession of a firearm, an offense carrying a maximum penalty of ten years under New Jersey law. See id., at 469470. On the prosecutors motion, the sentencing judge found by a preponderance of the evidence that Apprendis crime had been motivated by racial animus. That finding triggered application of New Jerseys hate crime enhancement, which doubled Apprendis maximum authorized sentence. The judge sentenced Apprendi to 12 years in prison, 2 years over the maximum that would have applied but for the enhancement.

We held that Apprendis sentence violated his right to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Id., at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). That right attached not only to Apprendis weapons offense but also to the hate crime aggravating circumstance. New Jersey, the Court observed, threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. Apprendi, 530 U.S., at 476. Merely using the label sentence enhancement to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently. Ibid.

The dispositive question, we said, is one not of form, but of effect. Id., at 494. If a State makes an increase in a defendants authorized punishment contingent on the finding of a fact, that factno matter how the State labels itmust be found by a jury beyond a reasonable doubt. See id., at 482483. A defendant may not be expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Id., at 483; see also id., at 499 (Scalia, J., concurring) ([A]ll the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.).

Walton could be reconciled with Apprendi, the Court finally asserted. The key distinction, according to the Apprendi Court, was that a conviction of first-degree murder in Arizona carried a maximum sentence of death. [O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed. 530 U.S., at 497 (emphasis deleted) (quoting Almendarez-Torres v. United States, 523 U.S. 224, 257, n. 2 (1998) (Scalia, J.,

dissenting)).

The Apprendi dissenters called the Courts distinction of Walton baffling. 530 U.S., at 538 (opinion of OConnor, J.). The Court claimed that the jury makes all of the findings necessary to expose the defendant to a death sentence. Ibid. That, the dissent said, was demonstrably untrue, for a defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Ibid. Walton, the Apprendi dissenters insisted, if properly followed, would have required the Court to uphold Apprendis sentence. If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed. 530 U.S., at 537 (opinion of OConnor, J.).

The Arizona Supreme Court, as we earlier recounted, see supra, at 89, found the Apprendi majoritys portrayal of Arizonas capital sentencing law incorrect, and the description in Justice OConnors dissent precisely right: Defendants death sentence required the judges factual findings. 200 Ariz., at 279, 25 P.3d, at 1151. Recognizing that the Arizona courts construction of the States own law is authoritative, see Mullaney v. Wilbur, 421 U.S. 684, 691 (1975), we are persuaded that Walton, in relevant part, cannot survive the reasoning of Apprendi.

In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majoritys portrayal of Arizonas system: Ring was convicted of first-degree murder, for which Arizona law specifies death or life imprisonment as the only sentencing options, see Ariz. Rev. Stat. Ann. 131105(C) (West 2001); Ring was therefore sentenced within the range of punishment authorized by the jury verdict. See Brief for Respondent 919. This argument overlooks Apprendis instruction that the relevant inquiry is one not of form, but of effect. 530 U.S., at 494. In effect, the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jurys guilty verdict. Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151. The Arizona first-degree murder statute authorizes a maximum penalty of death only in a formal sense, Apprendi, 530 U.S., at 541 (OConnor, J., dissenting), for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. See 131105(C) (First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by 13703. (emphasis added)). If Arizona prevailed on its opening argument, Apprendi would be reduced to a meaningless and formalistic rule of statutory drafting. See 530 U.S., at 541 (OConnor, J., dissenting).

Arizona also supports the distinction relied upon in Walton between elements of an offense and sentencing factors. See supra, at 1112; Tr. of Oral Arg. 2829. As to elevation of the maximum punishment, however, Apprendi renders the argument untenable;5 Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an element or a sentencing factor is not determinative of the question who decides, judge or jury. See, e.g., 530 U.S., at 492 (noting New Jerseys contention that [t]he required finding of biased purpose is not an element of a distinct hate crime offense, but rather the traditional sentencing factor of motive, and calling this argument nothing more than a disagreement with the rule we apply today); id., at 494, n.19 ([W]hen the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict.); id., at 495 ([M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense. (internal quotation marks omitted)); see also id., at 501 (Thomas, J., concurring) ([I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.).

Even if facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone ordinarily must be found by a jury, Arizona further urges, aggravating circumstances necessary to trigger a death sentence may nonetheless be reserved for judicial determination. As Arizonas counsel maintained at oral argument, there is no doubt that [d]eath is different. Tr. of Oral Arg. 43. States have constructed elaborate sentencing procedures in death cases, Arizona emphasizes, because of constraints we have said the Eighth Amendment places on capital sentencing. Brief for Respondent 2125 (citing Furman v. Georgia, 408 U.S. 238 (1972) (per curiam)); see also Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (Since Furman, our cases have insisted that the channeling and limiting of the sentencers discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.); Apprendi, 530 U.S., at 522523 (Thomas, J., concurring) ([I]n the area of capital punishment, unlike any other area, we have imposed special constraints on a legislatures ability to determine what facts shall lead to what punishmentwe have restricted the legislatures ability to define crimes.).

Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents no specific reason for excepting capital defendants from the constitutional protections extend[ed] to defendants generally, and none is readily apparent. Id., at 539 (OConnor, J., dissenting). The notion that the Eighth Amendments restriction on a state legislatures ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence is without precedent in our constitutional jurisprudence. Ibid.

In various settings, we have interpreted the Constitution to require the addition of an element or elements to the definition of a criminal offense in order to narrow its scope. See, e.g., United States v. Lopez, 514 U.S. 549, 561562 (1995) (suggesting that addition to federal gun possession statute of express jurisdictional element requiring connection between weapon and interstate commerce would render statute constitutional under Commerce Clause); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (First Amendment prohibits States from proscrib[ing] advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action); Lambert v. California, 355 U.S. 225, 229 (1957) (Due Process Clause of Fourteenth Amendment requires actual knowledge of the duty to register or proof of the probability of such knowledge before ex-felon may be convicted of failing to register presence in municipality). If a legislature responded to one of these decisions by adding the element we held constitutionally required, surely the Sixth Amendment guarantee would apply to that element. We see no reason to differentiate capital crimes from all others in this

regard.

Arizona suggests that judicial authority over the finding of aggravating factors may be a better way to guarantee against the arbitrary imposition of the death penalty. Tr. of Oral Arg. 32. The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Entrusting to a judge the finding of facts necessary to support a death sentence might be an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free. Apprendi, 530 U.S., at 498 (Scalia, J., concurring).

In any event, the superiority of judicial factfinding in capital cases is far from evident. Unlike Arizona, the great majority of States responded to this Courts Eighth Amendment decisions requiring the presence of aggravating circumstances in capital cases by entrusting those determinations to the jury.6

Although the doctrine of stare decisis is of fundamental importance to the rule of law[,] [o]ur precedents are not sacrosanct. Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (quoting Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 494 (1987)). [W]e have overruled prior decisions where the necessity and propriety of doing so has been established. 491 U.S., at 172. We are satisfied that this is such a case.

For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647649. Because Arizonas enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, Apprendi, 530 U.S., at 494, n.19, the Sixth Amendment requires that they be found by a jury.

The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Duncan v. Louisiana, 391 U.S. 145, 155156 (1968).

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendants sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.7

United States v. Bass, 2002 U.S. LEXIS 5166,*;70 U.S.L.W. 3797 (6/28/2002) Bass failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery of racial bias in prosecution.

In United States v. Armstrong, 517 U.S. 456, 465, 134 L. Ed. 2d 687, 116 S. Ct. 1480 (1996), we held that a defendant [*2] who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent. We need go no further in the present case than consideration of the evidence supporting discriminatory effect. As to that, Armstrong says that the defendant must make a "credible showing" that "similarly situated individuals of a different race were not prosecuted." Id., at 465, 470. The Sixth Circuit concluded that respondent had made such a showing based on nationwide statistics demonstrating that "the United States charges blacks with a death-eligible offense more than twice as often as it charges whites" and that the United States enters into plea bargains more frequently with whites than it does with blacks. 266 F. 3d, at 538-539 (citing U.S. Dept. of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), p. 2 (Sept. 12, 2000)). * Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers in respondent's case), raw statistics regarding overall charges say nothing about charges brought against [*3] similarly situated defendants. And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain but declined it. See Pet. for Cert. 16. Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery.

The Sixth [*4] Circuit's decision is contrary to Armstrong and threatens the "performance of a core executive constitutional function." Armstrong, supra, at 465. For that reason, we reverse.

Stewart v. Arizona, 2002 U.S. LEXIS 5165 (6/28/2002) Petitioner defaulted his claims under governing Arizona post-conviction rules. Remand ordered to determine whether cause existed to overcome the default.

Because we were uncertain about the proper interpretation of Rule 32.2(a)(3), we certified the following question to the Arizona Supreme Court:

"At the time of respondent's third Rule 32 petition in 1995, did the question whether an asserted claim was of 'sufficient constitutional magnitude' to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), depend upon the merits of the particular claim, see State v. French, 198 Ariz. 119, 121-122, 7 P. 3d 128, 130-131 (App. 2000); State v. Curtis, 185 Ariz. App. 112, 115, 912 P.2d 1341, 1344 (1995), or merely upon the particular right alleged to have been violated, see State v. Espinosa, 200 Ariz. 503, 505, 29 P. 3d 278, 280 (App. 2001)? [*5] " 534 U.S., at 159.

We received the following reply:

"We hold that at the time of respondent's third Rule 32 petition in 1995, the question whether an asserted claim was of 'sufficient constitutional magnitude' to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to 32.2(a)(3), depended not upon the merits of the par-ticular claim, but rather merely upon the particular right alleged to have been violated." Stewart v. Smith, Ariz. , , 46 P. 3d 1067, 1068, 2002 Ariz. LEXIS 89, (2002) (en banc).

The Arizona Supreme Court's reply makes clear that Rule 32.2(a)(3) does not require courts to evaluate the merits of a particular claim, but only to categorize the claim. According to the Arizona Supreme Court, courts must evaluate whether "at its core, [a] claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver." Id. at , 46 P. 3d, at 1071, 2002 Ariz. LEXIS 89 (2002). Courts need not decide the merits of the claim, i.e., whether the right was actually violated. They need only identify what type of claim it is, and there is no indication that this identification is [*6] based on an interpretation of what federal law requires. See Delaware v. Prouse, 440 U.S. 648, 652, 59 L. Ed. 2d 660, 99 S. Ct. 1391-653 (1979).

Our cases make clear that "when resolution of [a] state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our [direct review] jurisdiction is not precluded." Ake, supra, at 75. Even assuming that the same standard governs the scope of a district court's power to grant federal habeas relief as governs this Court's jurisdiction to review a state-court judgment on direct review, see Coleman v. Thompson, 501 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct. 2546-732, 741 (1991), Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits. The District Court properly refused to review respondent's ineffective-assistance-of-trial-counsel claim. The Ninth Circuit erred in holding otherwise.

Even though Rule 32.2(a)(3) does not require a federal constitutional ruling on the merits, if the state court's decision rested primarily on a ruling on the merits nevertheless, its decision [*7] would not be independent of federal law. The Ninth Circuit interpreted the state court's order rejecting respondent's ineffective-assistance-of-trial-counsel claim as possibly resting on a ruling on the merits of the claim. The record, however, reveals no such ruling.

The state court did not even reach the merits of respondent's ineffective-assistance-of-trial-counsel claim, finding it waived because respondent had failed to raise it in prior petitions for postconviction relief. As an excuse, respondent asserted that his prior appellate and Rule 32 counsel, who were members of the Arizona Public Defender's office, had refused to file the claim because his trial counsel was also a member of the Public Defender's office. The state court did not find this excuse sufficient to overcome respondent's procedural default. See App. H to Pet. for Cert. The state court explained that, because deputies in the Public Defender's office represent their clients and not their office, respondent's appellate lawyers would never have allowed "a colorable claim for ineffective assistance of counsel" to go unstated. Id., at 2. The Ninth Circuit read the reference to a "colorable claim" as a conclusion [*8] that respondent's claim that his trial counsel had rendered ineffective assistance lacked merit, that is, as a comment on the merits of respondent's underlying claim. 241 F. 3d, at 1197. In context, however, it is clear that the reference to "colorable claim" was used only as a rhetorical device for emphasizing the lack of any conflict of interest that might excuse respondent's waiver.

Because the state court's determination that respondent waived his ineffective-assistance-of-counsel claim under Ariz. Rule Crim. Proc. 32.2(a)(3) did not require an examination of the merits of that claim, it was independent of federal law. We voice no opinion on whether respondent has provided valid cause to overcome his procedural default in state court. The Ninth Circuit's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

HOT LIST (lower courts)

United States v. Quinones,--- F.Supp --- (SDNY 7/1/2002) Federal district court holds federal death penalty violates the US constitution due to the grave risk of killing the innocent.

while the Government correctly notes (Govt. Mem. 19-20) that both the majority and dissenting opinions in Herrera briefly discuss the implications for the death penalty of the inherent fallibility of any system of justice, that discussion is not informed by the ground-breaking DNA testing and other exonerative evidence developed in the years since. Rather, the essential premise of the discussion, as well captured in Justice O’Connor’s crucial concurring opinion, is that “our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.” 506 U.S. at 420. In light of the subsequently-developed evidence, that “high degree of confidence” is no longer tenable, and the whole discussion has been placed on a new footing.

In sum, the Court remains unpersuaded that anything in Herrera, the legislative history of the Federal Death Penalty Act, or the Due Process clause itself precludes the decision here reached. If anything, the combined view of five justices in Herrera that execution of the innocent is constitutionally Finally, in Point III of its Memorandum (Govt. Mem. 24- 36), the Government argues that the evidence on which the Court premises its legal conclusions is either unreliable, irrelevant, or both. Again, each component of this argument, upon scrutiny, proves unconvincing.

Regarding the DNA testing that has exonerated at least 12 death row inmates since 1993, Quinones, 196 F.Supp.2d at 417, see Def. Mem. 4-5, the Government argues that, since such testing is now available prior to trial in many cases, its effect, going forward, will actually be to reduce the risk of mistaken convictions. Govt. Mem. 25-26. This completely misses the point. What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been found guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction impermissible supports the instant decision.

Finally, in Point III of its Memorandum (Govt. Mem. 24- 36), the Government argues that the evidence on which the Court premises its legal conclusions is either unreliable, irrelevant, or both. Again, each component of this argument, upon scrutiny, proves unconvincing.

Regarding the DNA testing that has exonerated at least 12 death row inmates since 1993, Quinones, 196 F.Supp.2d at 417, see Def. Mem. 4-5, the Government argues that, since such testing is now available prior to trial in many cases, its effect, going forward, will actually be to reduce the risk of mistaken convictions. Govt. Mem. 25-26. This completely misses the point. What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been found guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and the manner of conviction. Yet, for all this alleged “due process,” the result, in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases.

DNA testing may help prevent some such near-tragedies in the future; but it can only be used in that minority of cases involving recoverable, and relevant, DNA samples. Other scientific techniques may also emerge in the future that will likewise expose past mistakes and help prevent future ones, and in still other cases, such as those referenced below, exoneration may be the result of less scientific and more case-specific developments, such as witness recantations or discovery of new evidence. But there is no way to know whether such exoneration will come prior to (or during) trial or, conversely, long after conviction.9 What is certain is that, for the foreseeable future, traditional trial methods and appellate review will not prevent the conviction of numerous innocent people.

Where proof of innocence is developed long after both the trial and the direct appeal are concluded, it is entirely appropriate that the defendant make a truly persuasive showing of innocence, as Herrera requires, before his case can be reopened. But given what DNA testing has exposed about the unreliability of the primary techniques developed by our system for the ascertainment of guilt, it is quite something else to arbitrarily eliminate, through execution, any possibility of exoneration after a certain point in time. The result can only be the fully foreseeable execution of numerous innocent persons.

While the DNA evidence alone is sufficient to establish this basic point, the Court, in its Opinion of April 25, also relied on the even larger number of death row inmates who have been exonerated over the past decade by investigations that, while inspired by the DNA testing, used more conventional methods. See Quinones, 196 F.Supp.2d at 418. Although, as the Government notes in its Memorandum (Govt. Mem. 34-35) and as the Court itself noted in its prior Opinion (see Quinones at 418 n.5), the website of the Death Penalty Information Center (“DPIC”) that lists these cases may be over-inclusive,10 the Court, upon review of the underlying case summaries, conservatively concluded that at least 20 such defendants released from death row over the past decade for reasons unrelated to DNA testing were factually innocent. Quinones at 418. 11 These included people like Joseph Burrows, who was released after 5 years on death row only after the state’s chief witness against him confessed to the murder; Anthony Porter, who spent no less than 16 years on death row until prosecutors decided they had made a mistake (upon which determination they then brought murder charges against a different suspect, who confessed); and Gary Drinkard, whose 1995 conviction and death sentence were overturned in 2001 only after an entire team of lawyers and investigators uncovered conclusive proof that he was at home at the time of the murder for which he was charged. Because, moreover, DNA testing was not applicable to these cases and they therefore required a more onerous investigation before innocence could be proved to the high degree necessary to satisfy the relevant court or prosecutor, these additional 20 innocent convicts served an average of 10 years in prison before their innocence was established. See Def. Mem. Ex. A (listing dates of convictions and releases).

The Government does not deny that an increasing number of death row defendants have been released from prison in recent years for reasons other than DNA testing. Nor does the Government, despite its quibbles with the DPIC website, directly contest the Court’s conservative conclusion that at least 20 of these non-DNA exonerations likely involved the capital convictions of innocent persons. Instead, the Government argues that both the DNA and non-DNA exonerations are irrelevant to consideration of the Federal Death Penalty Act because the exonerated defendants were all state convicts, rather than federal. Govt. Mem. 27-29. This, moreover, is no accident, argues the Government, but is rather the result of the allegedly greater protections that federal procedure generally, and the Federal Death Penalty Act in particular, afford defendants. Govt. Mem. 20.

Upon analysis, however, the Government’s distinction proves ephemeral, for several reasons. To begin with, while it true that none of the 31 persons so far sentenced to death under the Federal Death Penalty Act has been subsequently exonerated (-though five of the sentences have already been reversed, see Govt. Mem. 27-28-), the sample is too small, and the convictions too recent, to draw any conclusions therefrom. The 32 exonerated death row inmates identified by the Court in its prior Opinion, see Quinones, 196 F.Supp.2d at 417-418, are part of a relevant pool of anywhere from around 800 to around 3,700 death row inmates, depending on how you look at it.12 As previously noted, moreover, the time-lag between conviction and exoneration for the 32 exonerated inmates averaged somewhere in the range of 7 to 10 years after conviction. Consequently, if federal practices were equally as vulnerable to wrongful capital convictions as state practices, still, on any reasonable statistical analysis, one would not expect any exonerations to have yet emerged with respect to a sample as small as 31 federal capital convicts, none of whom was sentenced before 1995. 13

More fundamentally, there is no logical reason to suppose that practices and procedures under the Federal Death Penalty Act will be materially more successful in preventing mistaken convictions than the deficient state procedures that have already been shown to be wanting. By virtue of the Fourteenth Amendment, all the primary protections are the same in both systems: proof beyond a reasonable doubt, trial by jury, right to effective assistance of counsel, right of confrontation, etc.

If anything, certain federal practices present a greater risk of wrongful capital convictions than parallel state practices. For example, federal practice, in contrast to that of many states that allow the death penalty, permits conviction on the uncorroborated testimony of an accomplice. Compare, e.g., United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993)(“conviction may be sustained on the basis of the testimony of a single accomplice”); United States v. Baker, 985 F.2d 1248, 1255 (4 th Cir. 1993)(same) with, e.g., Ala. Code § 12-21-222 (prohibiting conviction based solely on uncorroborated testimony of accomplice); Cal. Penal Code § 1111 (same); Nev. Rev. Stat § 175.291 (same); N.Y. Crim. Proc. Law § 60.22 (same); Or. Rev. Stat. § 136.440 (same); S.D. Cod. Laws § 23A-22-8 (same); Tex. Code Crim. Pro., art. 38.14 (same).14 Similarly, federal practice treats circumstantial evidence identically to direct evidence and permits conviction based solely on such evidence, whereas many states that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt. Compare, e.g., United States v. Russell, 971 F.2d 1098, 1108-09 (4 th Cir. 1992)(“a jury need not be instructed that circumstantial evidence must be so strong as to exclude every reasonable hypothesis other than guilt”) with, e.g., Gregory v. State, 15 S.W.3d 690, 694 (Ark. 2000)(where conviction based solely on circumstantial evidence, the evidence must “show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused”); Jackson v. State, 758 N.E.2d 1030, 1036 (Ind. Ct. App. 2001)(same); People v. Guiliano, 482 N.E.2d 557, 558 (N.Y. 1985)(same).

Even more fundamentally, it appears reasonably well established that the single most common cause of mistaken convictions is inaccurate eye-witness testimony. As recently summarized by Senior Circuit Judge Jon O. Newman of the Second Circuit:

Experience has shown that in some cases juries have been persuaded beyond a reasonable doubt to convict and vote the death penalty even though the defendant is innocent. The most common reason is that one or more eyewitnesses said they saw the defendant commit the crime, but it later turned out that they were mistaken, as eyewitnesses sometimes are.

Newman, “Make Judges Certify Guilt In Capital Cases,” Newsday, July 5, 2000, p. A25. 15 See also, e.g., National Institute of Justice DNA Study, supra, at 15; Def. Mem. 23. The federal rules of evidence are no less receptive to such eye-witness testimony than state rules, and federal courts, at both the trial and appellate levels, apply, even more than state courts, highly deferential standards to jury findings premised on such testimony.

Accordingly, there is no good reason to believe the federal system will be any more successful at avoiding mistaken impositions of the death penalty than the error prone state systems already exposed.

In its Opinion of April 25, the Court also supported its overall conclusions by reference to the unusually high rate of legal error (68%) detected in appeals (both state and federal) from death penalty convictions, as shown by the comprehensive study of those appeals released in 2000 by Professor James Liebman and his colleagues. See Quinones, 196 F.Supp.2d at

418. While legal error is not a direct measure of factual error, Liebman’s study was concerned with errors that the appellate courts had determined were not harmless and that therefore could be outcome-determinative. See James S. Liebman, et al., A Broken System: Error Rates In Capital Cases, 1973-1995 (2000) at 32. That such errors could infect nearly 7 out of every 10 capital cases strongly suggests that, at a minimum, the trial process appears to operate with less reliability in the context of capital cases than elsewhere. Moreover, Liebman and his colleagues conclude, in a recently-released follow-up analysis of their data, that the 68% error rate if anything understates the extent of the problem so far as factually mistaken capital convictions are concerned. See James S. Liebman, et al., A Broken System, Part II: Why There Is So Much Error In Capital Cases, And What Can Be Done About It (2002), at 25.

In response, the Government launches an extended, and remarkably personal attack on Liebman and his study, annexing critical press releases from elected officials such as the Attorney General of Montana and the Governor of Florida, and even arguing that the study is suspect because Liebman (though only one of the six authors of the study) is, allegedly, an avowed opponent of the death penalty. Govt Mem. 30-31. As convincingly shown, however, in the Brief Amicus Curiae Of 42 Social Scientists filed in response, the Liebman study, commissioned at the behest of the Chairman of the U.S. Senate Judiciary Committee, is by far the most careful and comprehensive study in this area, and one based, moreover, exclusively on public records and court decisions.16 When it comes to something as fundamental as protecting the innocent, press releases and ad hominem attacks are no substitute for reasoned discourse, and the fatuity of the Government’s attacks on Liebman’s study only serves to highlight the poverty of the Government’s position. At the same time, no judge has a monopoly on reason, and the Court fully expects its analysis to be critically scrutinized. Still, to this Court, the unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected (and then often only fortuitously or by application of newly-developed techniques), compels the conclusion that execution under the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.

South Carolina v. Burkhart, 2002 S.C. LEXIS 107 (SC 6/17/2002) Trial court committed reversible error when it refused to charge the jury that the State bore the burden of disproving self-defense beyond a reasonable doubt.

If there is any evidence in the record to support self-defense, the issue should be submitted to the jury. State v. Hill, 315 S.C. 260, 433 S.E.2d 848 (1993). In general, the trial judge is required to charge only the current and correct law of South Carolina. Cohens v. Atkins, 333 S.C. 345, 509 S.E.2d 286 (Ct. App. 1998). [*14] A jury charge is correct if it contains the correct definition of the law when read as a whole. Keaton v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1990). The substance of the law must be charged to the jury, not particular verbiage. Keaton. "Current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt." Wiggins, 330 S.C. at 544, 500 S.E.2d at 493. Finally, to warrant reversal, a trial judge's refusal to give a requested charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990).

This Court recently clarified the State's burden when a defendant raises self-defense:

In Wiggins, we specified for the first time, though not in the context of a jury charge, that the State has the burden of disproving self-defense. . . . When self- defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. n5

State v. Addison, 343 S.C. 290, 293, 540 S.E.2d 449, 451 (2000). n6

In this case, the trial judge charged the jury on the four elements of self- defense pursuant to State v. Davis and, additionally, charged that the defendant did not have to prove self-defense and that the burden remained on the State at all times. The State argues that [*16] this charge, coupled with the other charges given by the judge, complied with Wiggins by conveying to the jury that all of the evidence, including evidence of self-defense, must be considered in the jury's calculation of reasonable doubt.

We disagree with the State. We do not believe the trial judge's self- defense charge adequately conveyed that the State has the burden of disproving self-defense beyond a reasonable doubt as required under Wiggins. It is the substance of the law and not the "particular verbiage" of a charge that determine whether the charge is adequate, and, in this case, the trial judge's charge did not accurately communicate the "substance of the law" as pronounced in Wiggins. Keaton.

In State v. Fuller, this Court made clear that it did not intend Davis to be the exclusive self-defense charge. 297 S.C. 440, 377 S.E.2d 328 (1989). This Court removed the burden of proving self-defense from the defendant and placed it instead on the State in Davis. In Wiggins, this Court eliminated any confusion lingering since Davis by enunciating the State's precise burden clearly: "current law requires the State to [*17] disprove self-defense, once raised by the defendant, beyond a reasonable doubt." 330 S.C. at 544, 500 S.E.2d at 492.

Under Wiggins and now Addison, when self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. Addison; Wiggins. The instruction regarding burden of proof in this case did not reference the beyond reasonable doubt standard, required arguably since Davis, and without a doubt since Wiggins. Further, the instruction did not include any language indicating that the State must disprove Appellant's self- defense claim or, conversely, that the State must prove Appellant did not act in self-defense.

There is a difference between the charge given in this case and the charge required by Wiggins and now, if requested, by Addison. Charging that the State must disprove Appellant's self-defense claim is a vastly clearer description of the burden of proof than simply charging that the defendant does not need to prove self-defense, as the trial judge charged in this case. Charging that the State must [*18] disprove self-defense or, that the State must prove the elements of self-defense are not present, clearly places the burden on the State, as this Court intended. n7 Addison; Wiggins. In our opinion, the trial judge erred by not charging under Wiggins as requested by defense counsel immediately after the charges were given.

As noted, to warrant reversal, a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant. Keaton; State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000). The jury charge is to be read as a whole in considering whether it adequately covers the law. Hughey. Failure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining the issues. Orders Distributing Co., Inc. v. Newsome Carpets & Wallcovering, 308 S.C. 429, 418 S.E.2d 550 (1992).

Appellant admitted to killing all three victims and relied entirely on self- defense at trial. In another case, the Court of Appeals found the judge's failure to give a requested charge to be prejudicial when the charge related to the "sole issue before the jury." Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990). The Ellison court held prejudice resulted from the judge's failure to give a general charge on circumstantial evidence when the majority of evidence presented on payment, the sole issue in the case, was circumstantial. Because we consider [*20] the issue of self-defense versus murder to be the sole issue in this case, we find the trial judge's failure to properly instruct the jury on burden of proof to be prejudicial, warranting reversal. n8

Although the trial judge did charge that the burden was on the State and remains on the State, we do not believe that charge was adequate. Similarly, the fact that defense counsel enunciated the proper burden in his closing argument, telling the jury, "you must find the defendant not guilty unless the State proves to you beyond a reasonable doubt that each of the elements of self- defense do [*21] not exist in this case" does not adequately convey the State's burden. Clearly, the judge's instruction carries far more weight with the jury than defense counsel's word in his closing argument. We cannot assume the jury was able to connect the State's general burden to prove Appellant's guilt beyond a reasonable doubt to the trial judge's charge regarding self-defense when the judge failed to mention the reasonable doubt standard at all and only said the defendant did not have to prove self-defense. The trial judge's charge only implicitly placed the burden on the State, and that is not sufficient under Wiggins and Addison.

Self-defense was the most significant issue for the jury to decide. Appellant admitted to the killings on the stand at trial. His credibility and the relative burdens of proof surrounding self-defense were central to this case. In light of that conclusion, we find the trial judge's error was prejudicial to Appellant and constituted reversible error.

**Footnotes

n5 Nearly all state courts considering the prosecution's burden of proof have held the defendant is entitled to such a charge. See, E.g., Williams v. State, 245 Ga. App. 670, 538 S.E.2d 544 (Ga. 2000); Miller v. state,720 N.e.2d 696 (Ind. 1999); State v. Osborne, 775 So. 2d 607 (La. App. (4th Cir.) 2000); Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 732 N.E.2d 311 (Mass. 2000); State v. Plante, 623 A.2d 166 (Me. 1993); State v. Cooper, 561 N.W.2d 175 (Minn. 1997); State v. Santamaria, 145 N.H. 138, 756 A.2d 589 (N.H. 2000); State v. Garcia,2001 Ut App 19, 18 P.3d 1123 (Utah App. 2001); State v. Walden, 131 Wash. 2d 469, 932 P.2d 1237 (Wash. 1997).

SUPREME COURT

Ring v. Arizona, 2002 WL 1357257 (June 24, 2002) (See above) The Supreme Court, 6-3, overrules Walton v. Arizona, 497 U.S. 639 (1990), and holds that "[c]apital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." (See Focus section below for the HAT analysis)

United States v. Ruiz 2002 WL 1357244 (June 24, 2002) The Supreme Court unanimously holds that neither the Fifth nor the Sixth Amendment requires federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses," or information concerning potential affirmative defenses.

After immigration agents found marijuana in respondent Ruizs luggage, federal prosecutors offered her a fast track plea bargain, whereby she would waive indictment, trial, and an appeal in exchange for a reduced sentence recommendation. Among other things, the prosecutors standard fast track plea agreement acknowledges the Governments continuing duty to turn over information establishing the defendants factual innocence, but requires that she waive the right to receive impeachment information relating to any informants or other witnesses, as well as information supporting any affirmative defense she raises if the case goes to trial. Because Ruiz would not agree to the latter waiver, the prosecutors withdrew their bargaining offer, and she was indicted for unlawful drug possession. Despite the absence of a plea agreement, Ruiz ultimately pleaded guilty. At sentencing, she asked the judge to grant her the same reduced sentence that the Government would have recommended had she accepted the plea bargain. The Government opposed her request, and the District Court denied it. In vacating the sentence, the Ninth Circuit took jurisdiction under 18 U.S. C. 3742; noted that the Constitution requires prosecutors to make certain impeachment information available to a defendant before trial; decided that this obligation entitles defendants to the information before they enter into a plea agreement; ruled that the Constitution prohibits defendants from waiving their right to the information; and held that the fast track agreement was unlawful because it insisted upon such a waiver.

Held:

1.Appellate jurisdiction was proper under 3742(a)(1), which permits appellate review of a sentence imposed in violation of law. Respondents sentence would have been so imposed if her constitutional claim were sound. Thus, if she had prevailed on the merits, her victory would also have confirmed the Ninth Circuits jurisdiction. Although this Court ultimately concludes that respondents sentence was not imposed in violation of law and therefore that 3742(a)(1) does not authorize an appeal in a case of this kind, it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction. See United States v. Mine Workers, 330 U.S. 258, 291. In order to make that determination, it was necessary for the Ninth Circuit to address the merits. Pp.34.

2.The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. Although the Fifth and Sixth Amendments provide, as part of the Constitutions fair trial guarantee, that defendants have the right to receive exculpatory impeachment material from prosecutors, see, e.g., Brady v. Maryland, 373 U.S. 83, 87, a defendant who pleads guilty forgoes a fair trial as well as various other accompanying constitutional guarantees, Boykin v. Alabama, 395 U.S. 238, 243. As a result, the Constitution insists that the defendant enter a guilty plea that is voluntary and make related waivers knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences. See, e.g., id., at 242. The Ninth Circuit in effect held that a guilty plea is not voluntary (and that the defendant could not, by pleading guilty, waive his right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that they would have had to make had the defendant insisted upon a trial. Several considerations, taken together, demonstrate that holdings error. First, impeachment information is special in relation to a trials fairness, not in respect to whether a plea is voluntary. It is particularly difficult to characterize such information as critical, given the random way in which it may, or may not, help a particular defendant. The degree of help will depend upon the defendants own independent knowledge of the prosecutions potential casea matter that the Constitution does not require prosecutors to disclose. Second, there is no legal authority that provides significant support for the Ninth Circuits decision. To the contrary, this Court has found that the Constitution, in respect to a defendants awareness of relevant circumstances, does not require complete knowledge, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See, e.g., Brady v. United States, 397 U.S. 742, 757. Third, the very due process considerations that have led the Court to find trial-related rights to exculpatory and impeachment informatione.g., the nature of the private interest at stake, the value of the additional safeguard, and the requirements adverse impact on the Governments interests, Ake v. Oklahoma, 470 U.S. 68, 77argue against the existence of the right the Ninth Circuit found. Here, that rights added value to the defendant is often limited, given that the Government will provide information establishing factual innocence under the proposed plea agreement, and that the defendant has other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11. Moreover, the Ninth Circuits rule could seriously interfere with the Governments interest in securing guilty pleas by disrupting ongoing investigations and exposing prospective witnesses to serious intimidation and harm, thereby forcing the Government to modify its current practice, devote substantially more resources to preplea trial preparation, or abandon its heavy reliance on plea bargaining. Due process cannot demand so radical a change in order to achieve so comparatively small a constitutional benefit. Pp.49.

3.Although the fast track plea agreement requires a defendant to waive her right to affirmative defense information, the Court does not believe, for most of the foregoing reasons, that the Constitution requires provision of this information to the defendant prior to plea bargaining. Pp.910.

241 F.3d 1157, reversed.

Breyer, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, OConnor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed an opinion concurring in the judgment.

Harris v. United States, 2002 WL 1357277 (June 24, 2002) Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude a judge from making factual-findings that result in a mandatory minimum sentence if the sentence imposed is within the range of punishment authorized by the jury’s findings.

Petitioner, who sold illegal narcotics at his pawnshop with an unconcealed semiautomatic pistol at his side, was arrested for violating, inter alia, 18 U.S.C. § 924(c)(1)(A), which provides in relevant part that a person who in relation to a drug trafficking crime uses or carries a firearm “shall, in addition to the punishment for such crime” “(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to … not less than 7 years; and (iii) if the firearm is discharged, be sentenced to … not less than 10 years.” Because the Government proceeded on the assumption that the provision defines a single crime and that brandishing is a sentencing factor to be found by the judge following trial, the indictment said nothing about brandishing or subsection (ii), simply alleging the elements from the principal paragraph. Petitioner was convicted. When his presentence report recommended that he receive the 7-year minimum sentence, he objected, arguing that brandishing was an element of a separate statutory offense for which he was not indicted or convicted. At the sentencing hearing, the District Court overruled his objection, found that he had brandished the gun, and sentenced him to seven years in prison. Affirming, the Fourth Circuit rejected petitioner’s statutory argument and found that McMillan v. Pennsylvania, 477 U.S. 79, foreclosed his argument that if brandishing is a sentencing factor, the statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466. In Apprendi, this Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum is, in effect, an element of the crime, which must be submitted to a jury, and proved beyond a reasonable doubt (and, in federal prosecutions, alleged in an indictment handed down by a grand jury). But 14 years earlier, McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the judge found that the defendant had possessed a firearm.

Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, and IV, concluding:

1. As a matter of statutory interpretation, §924(c)(1)(A) defines a single offense, in which brandishing and discharging are sentencing factors to be found by the judge, not offense elements to be found by the jury. Pp. 4—9.

(a) The prohibition’s structure suggests that brandishing and discharging are sentencing factors. Federal laws usually list all offense elements in a single sentence and separate the sentencing factors into subsections. Castillo v. United States, 530 U.S. 120, 125. The instant statute’s lengthy principal paragraph lists the elements of a complete crime. Toward the end of the paragraph is the word “shall,” which often divides offense-defining provisions from sentence-specifying ones. Jones v. United States, 526 U.S. 227, 233. And following “shall” are the separate subsections, which explain how defendants are to “be sentenced.” Thus this Court can presume that the principal paragraph defines a single crime and its subsections identify sentencing factors. Pp. 4—5.

(b) As Jones illustrates, the statute’s text might provide evidence to the contrary, but the critical textual clues here reinforce the single-offense interpretation. Brandishing has been singled out as a paradigmatic sentencing factor, Castillo, supra, at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging are factors that affect sentences for numerous crimes. The incremental changes in the minimum penalty at issue here are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge’s consideration. Pp. 5—7.

(c) The canon of constitutional avoidance–which provides that when a statute is susceptible of two constructions, the Court must adopt the one that avoids grave and doubtful constitutional questions–plays no role here. The constitutional principle that petitioner says a single-offense interpretation of the statute would violate–that any fact increasing the statutory minimum sentence must be accorded the safeguards assigned to elements–was rejected in McMillan. Petitioner’s suggestion that the canon be used to avoid overruling one of this Court’s own precedents is novel and, given that McMillan was in place when §924(c)(1)(A) was enacted, unsound. Congress would have had no reason to believe that it was approaching the constitutional line by following the instruction this Court gave in McMillan. Pp. 7—9.

2. Reaffirming McMillan and employing the approach outlined in that opinion, the Court concludes that §924(c)(1)(A)(ii) is constitutional. Basing a 2-year increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the Fifth and Sixth Amendments’ requirements. Congress simply dictated the precise weight to be given to one traditional sentencing factor. McMillan, supra, at 89—90. Pp. 21—22.

Justice Kennedy, joined by The Chief Justice, Justice O’Connor, and Justice Scalia, concluded in Part III that §924(c)(1)(A)(ii) is constitutional under McMillan, which remains sound authority after Apprendi. The Court will not overrule a precedent absent a special justification. The justification offered by petitioner is that Apprendi and McMillan cannot be reconciled. Those decisions are consistent, however, because there is a fundamental distinction between the factual findings at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime by the Framers of the Bill of Rights. That cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding. This sort of fact is more like the facts judges have traditionally considered when exercising their discretion to choose a sentence within the range authorized by the jury’s verdict–facts that the Constitution does not require to be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion–and rely upon judicial expertise–by requiring defendants to serve minimum terms after judges make certain factual findings. Legislatures have relied upon McMillan’s holding, and there is no reason to overturn these statutes or cast uncertainty upon sentences imposed under them. Pp. 9—22.

Justice Breyer concluded that although Apprendi v. New Jersey, 530 U.S. 466, cannot easily be distinguished from this case in terms of logic, the Sixth Amendment permits judges to apply sentencing factors–whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). This does not mean to suggest approval of mandatory minimum sentences as a matter of policy. Mandatory minimum statutes are fundamentally inconsistent with Congress’ simultaneous effort to create a fair, honest, and rational sentencing system through the use of the Sentencing Guidelines. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created the Guidelines to eliminate. Applying Apprendi in this case would not, however, lead Congress to abolish, or to modify such statutes, and it would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors. The legal consequences of extending Apprendi are also seriously adverse, for doing so would diminish further Congress’ otherwise broad constitutional authority to define crimes through specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases. Pp. 1—4.

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and O’Connor, Scalia, and Breyer, JJ., joined, and an opinion with respect to Part III, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined. O’Connor, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

Hope v. Pelzer, 536 U.S. --- (June 27, 2992) Corrections officers were not entitled to qualified immunity for acts of handcuffing an inmate to a hitching post, because a reasonable corrections officer would have known that such punishment was unlawful under the Eighth Amendment, based on the lack of any safety concern or emergency, and obvious cruelty inherent in such a practice.

In 1995, petitioner Hope, then an Alabama prison inmate, was twice handcuffed to a hitching post for disruptive conduct. During a 2-hour period in May, he was offered drinking water and a bathroom break every 15 minutes, and his responses were recorded on an activity log. He was handcuffed above shoulder height, and when he tried moving his arms to improve circulation, the handcuffs cut into his wrists, causing pain and discomfort. After an altercation with a guard at his chain gangs worksite in June, Hope was subdued, handcuffed, placed in leg irons, and transported back to the prison, where he was ordered to take off his shirt, thus exposing himself to the sun, and spent seven hours on the hitching post. While there, he was given one or two water breaks but no bathroom breaks, and a guard taunted him about his thirst. Hope filed a 42 U.S. C. 1983 suit against three guards. Without deciding whether placing Hope on the hitching post as punishment violated the Eighth Amendment, the Magistrate Judge found that the guards were entitled to qualified immunity. The District Court entered summary judgment for respondents, and the Eleventh Circuit affirmed. The latter court answered the constitutional question, finding that the hitching posts use for punitive purposes violated the Eighth Amendment. In finding the guards nevertheless entitled to qualified immunity, it concluded that Hope could not show, as required by Circuit precedent, that the federal law by which the guards conduct should be evaluated was established by cases that were materially similar to the facts in his own case.

Held:The defense of qualified immunity was precluded at the summary judgment phase. Pp.417.

(a)Hopes allegations, if true, establish an Eighth Amendment violation. Among the unnecessary and wanton inflictions of pain [constituting cruel and unusual punishment forbidden by the Amendment] are those that are totally without penological justification. Rhodes v. Chapman, 452 U.S. 337, 346. This determination is made in the context of prison conditions by ascertaining whether an official acted with deliberate indifference to the inmates health or safety, Hudson v. McMillian, 503 U.S. 1, 8, a state of mind that can be inferred from the fact that the risk of harm is obvious, Farmer v. Brennan, 511 U.S. 825. The Eighth Amendment violation here is obvious on the facts alleged. Any safety concerns had long since abated by the time Hope was handcuffed to the hitching post, because he had already been subdued, handcuffed, placed in leg irons, and transported back to prison. He was separated from his work squad and not given the opportunity to return. Despite the clear lack of emergency, respondents knowingly subjected him to a substantial risk of physical harm, unnecessary pain, unnecessary exposure to the sun, prolonged thirst and taunting, and a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation. Pp.47.

(b)Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818. In its assessment, the Eleventh Circuit erred in requiring that the facts of previous cases and Hopes case be materially similar. Qualified immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful. Officers sued in a 1983 civil action have the same fair notice right as do defendants charged under 18 U.S. C. 242, which makes it a crime for a state official to act willfully and under color of state to deprive a person of constitutional rights. This Courts opinion in United States v. Lanier, 520 U.S. 259, a 242 case, makes clear that officials can be on notice that their conduct violates established law even in novel factual situations. Indeed, the Court expressly rejected a requirement that previous cases be fundamentally similar. Accordingly, the salient question that the Eleventh Circuit should have asked is whether the state of the law in 1995 gave respondents fair warning that Hopes alleged treatment was unconstitutional. Pp.710.

(c)A reasonable officer would have known that using a hitching post as Hope alleged was unlawful. The obvious cruelty inherent in the practice should have provided respondents with some notice that their conduct was unconstitutional. In addition, binding Circuit precedent should have given them notice. Gates v. Collier, 501 F. 2d 1291, found several forms of corporal punishment impermissible, including handcuffing inmates to fences or cells for long periods, and Ort v. White, 813 F.2d 318, 324, warned that physical abuse directed at [a] prisoner after he terminate[s] his resistance to authority would constitute an actionable eighth amendment violation. Relevant to the question whether Ort provided fair notice is a subsequent Alabama Department of Corrections (ADOC) regulation specifying procedures for using a hitching post, which included allowing an inmate to rejoin his squad when he tells an officer that he is ready to work. If regularly observed, that provision would have made Hopes case less like the kind of punishment Ort described as impermissible. But conduct showing that the provision was a sham, or that respondents could ignore it with impunity, provides equally strong support for the conclusion that they were fully aware of their wrongful conduct. The conclusion here is also buttressed by the fact that the Justice Department specifically advised the ADOC of the constitutional infirmity of its practices before the incidents in this case took place. Pp.1015.

240 F.3d 975, reversed.

Stevens, J., delivered the opinion of the Court, in which OConnor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia, J., joined.

CAPITAL CASES (Favorable Disposition)

Beltran v. Cockrell, 2002 U.S. App. LEXIS 12714 (5th Cir 06/27/2002) "Defense counsel's unreasonable strategic decisions and investigative failures amounted to ineffective assistance of counsel." The ruling on IAC meant the court did not have to delve into a sticky question of the prosecution's possible use of perjured testimony to secure the conviction.

M. Williams v. True, 2002 U.S. App. LEXIS 12342 (4th Cir 6/21/2002) Noting the first capital habeas victory in the Fourth Circuit in almost a decade for this Supreme Court remand, a per curium decision upholds a grant of relief that at least one member of the jury "was not a fair and impartial juror" and that the trial prosecutor "acted improperly and in violation of [his] prosecutorial obligations."

New York v. Harris, 2002 N.Y. LEXIS 1993 (NY 7/9/2002) Constitutional defects in the New York state death penalty law the encouraged persons charged with capital murder to plead guilty impermissibly infringed on Harris's right to a jury trial.

Ex parte Jerry Devane Bryant, 2002 Ala. LEXIS 195 (AL 6/21/2002) Trial courts erroneous jury instructions on the topic of weighing the aggravating circumstances and the mitigating circumstances (failing to instruct that the aggravators must outweigh the mitigators) constitute plain error. (link to opinion unavailable)

Deas v. Alabama, 2002 Ala. Crim. App. LEXIS 147 (Al Crim App 6/28/2002) Remand ordered for expansion of the record relating to appellant's double jeopardy claim. (link to opinion unavailable)

Arizona v. Carlson, 2002 Ariz. LEXIS 101 (AZ 6/27/2002) On independent reweighing of the evidence relating to aggravating and mitigating circumstances, sentence reduced to life without benefit of parole due in part to the disparity of sentences received by Defendant's accomplices, brain damage and lack of significant criminal history.

Reaves v. Florida, 2002 Fla. LEXIS 1335 (FL 6/20/2002) Remand for an evidentiary hearing on whether counsel was ineffective based upon the failure to pursue involuntary intoxication as a defense and several related subclaims.

Illinois v. Williams, 2002 Ill. LEXIS 340 (Ill 6/20/2002) Evidentiary hearing ordered on petitioner's allegation of competency.

Illinois v. Harris, 2002 Ill. LEXIS 343 (Ill 6/20/2002) Evidentiary hearing on claims of ineffective assistance of trial counsel based upon trial counsel's failure to investigate and present evidence in mitigation.

Louisiana v Harris, 2002 La. LEXIS 2148 (LA 6/21/2002) Striking, during the trial of a young black man a juror because "[h]e's a single black male on the panel with no children" and therefore more likely to empathize with the accused, held to be error under Batson

Ervin v. Missouri, 2002 Mo. LEXIS 76 (Mo 6/25/2002) Remand ordered "to make more specific findings and conclusions on the issue of Ervin's counsel's failure to investigate the alleged threat to and attack on his cellmate and to consider the application of Ring v. Arizona."

Carpenter v. Vaughn, 2002 U.S. App. LEXIS 13128 (3rd Cir 7/1/2002) "[T]rial counsel provided ineffective assistance at the penalty phase when he failed to object to a highly misleading answer given by the trial judge in response to a jury question about the availability of parole if Carpenter was sentenced to life imprisonment."

Garcia v. Cockrell, 2002 U.S. Dist. LEXIS 11532 (N.D. Tex 6/26/2002) Magistrate's report and recommendation finding that writ of habeas corpus should be conditionally granted on the ground that the Petitioner's prosecution for the capital murder barred by the doctrine of collateral estoppel/double jeopardy.

CAPITAL CASES (Unfavorable Disposition)

Ogan v. Cockrell, 2002 U.S. App. LEXIS 12856 (5th Cir 6/28/2002) Counsel's failure "to object to the supplemental instruction given at the conclusion of the sentencing phase of Ogan's trial was not objectively unreasonable."

Louisiana v. Bridgewater, 2002 La. LEXIS 2157 (LA 6/21/2002) On rehearing, the evidence presented at trial was sufficient for a rational trier of fact to determine that Bridgewater did in fact commit the crime of first degree murder.

Ocha v. Florida, 2002 Fla. LEXIS 1398 (FL 6/27/2002) Relief denied on claims "that the trial court abused its discretion by failing to order further testing to develop the trial record as to possible mental mitigators; that the trial court erred in finding that the instant murder was especially heinous, atrocious, or cruel; and that this Court should recede from its holding in Hamblen v. State, 527 So. 2d 800 (Fla. 1988), allowing a capital defendant to waive the presentation of mitigating evidence."

Rollings v Florida, 2002 Fla. LEXIS 1397 (FL 6/27/2002) "Rolling argues that trial counsel were ineffective for waiting until jury selection was underway to move for a change of venue, rather than seeking a venue change during the three years preceding trial. Second, Rolling argues that even after they belatedly filed a motion for change of venue, trial counsel failed to adequately support the motion and argue in favor of a venue change." "Rolling alleges on appeal that trial counsel were ineffective due to an actual conflict of interest . . . Rolling's argument is [without merit and] premised on the public defender's previous representation of two of the State's penalty phase witnesses, Russell Binstead and Bobby Lewis, in unrelated matters in 1977 and 1979, respectively."

Illinois v. Peeples, 2002 Ill. LEXIS 335 (Ill 6/20/2002) (dissent) Relief denied on claims relating to (1) appellate counsel was deficient because counsel failed to argue that defendant's exclusion from the in camera portion of the voir dire violated his right to be present; (2) the "unwarranted" security measures used throughout his jury trial; (3) counsel was ineffective for failing to present "exculpatory" blood and fingerprint; and (4) trial counsel ineffectively failed to investigate and present readily available mitigating evidence "which would allow the sentencer to understand how [defendant] came to the point where he stood convicted of a capital offense."

Illinois v. Munson, 2002 Ill. LEXIS 334 (Ill 6/20/2002) (dissent) Relief denied on claims relating to (1) Batson; (2) whether probable cause existed for arrest; (3) trial counsel was ineffective for failing to properly investigate and present mitigating evidence at the sentencing hearing; (4) death sentence is unreasonably disparate to the 60-year prison term imposed on his codefendant; and (5) post-conviction counsel failed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), which requires the record on appeal to show that post-conviction counsel consulted with the defendant by mail or in person to ascertain the defendant's contentions of deprivation of constitutional rights, examined the record of proceedings at trial, and made any amendments to the pro se petition that were necessary for the adequate presentation of the defendant's contentions. In a pro se brief petitioner also raises claims relating to (a) ineffective assistance of counsel for his "rambling[,] incoherent[,] offensive" closing argument at the guilt- innocence phase of the trial that conceded defendant's guilt and attacked the victim and other witnesses; (b) prosecutor repeatedly commented on defendant's failure to testify at the trial; (c) Brady; (D) State used false testimony or failed to correct false testimony

Rimmer v. Florida, 2002 Fla. LEXIS 1465 (FL 7/3/2002) Relief denied on the following claims: "(1) the trial court erred in denying a motion to suppress physical evidence where the items seized were not part of the search warrant for defendant's vehicle; (2) the trial court erred in admitting the pretrial and trial identifications of appellant by two witnesses where the procedures employed by the police were unnecessarily suggestive; (3) the trial court erred in excusing two prospective jurors; (4) the trial court erred in allowing Detective Kelley to testify about his ability to see without prescription eyeglasses as rebuttal testimony to evidence that appellant could not function without his glasses; (5) the trial court erred in failing to declare a mistrial when the prosecutor asked the appellant's wife whether she had ever asked her husband about the murders, thereby encroaching upon appellant's right to remain silent; (6) prosecutorial comments during the guilt phase proceedings denied appellant of a fair trial (7) the trial court erred in allowing the prosecutor to cross-examine the defense's mental health expert about appellant's criminal history where the expert did not rely on the evidence in her evaluation or opinion; (8) improper prosecutorial comments during the penalty phase proceedings denied appellant a fair trial; (9) the evidence is insufficient to support the heinous, atrocious and cruel (HAC) aggravator; and (10) the trial court erred in permitting the jury to consider victim impact evidence."

Vining v. Florida, 2002 Fla. LEXIS 1470 (FL 7/3/2002) Relief denied on the following claims: "(1) the lower court failed to properly consider the evidence withheld by the State as being material evidence under Brady; (2) he was denied the effective assistance of counsel and a fair and impartial tribunal because the trial judge utilized extra-record information in violation of Gardner v. Florida; n3 (3) the lower court should have conducted an evidentiary hearing on his claims of newly discovered evidence and ineffective assistance of counsel during the guilt phase proceedings; (4) trial counsel failed to adequately investigate and present mitigating evidence and to adequately challenge the State's case during the penalty phase proceedings; (5) trial counsel failed to object to a number of constitutional errors; (6) the one-year time limit imposed by Florida Rule of Criminal Procedure 3.851 is unconstitutional on its face and as applied because it denies capital defendants due process and equal protection; (7) Florida's death penalty is unconstitutional; (8) insufficient aggravating circumstances render him ineligible for the death penalty; (9) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits an attorney from initiating communication with a juror regarding the trial, improperly restricted his ability to discover information that would warrant a new trial; (10) the appellate transcript is unreliable because substantial proceedings were made off the record, including portions of voir dire and the penalty phase and the entire sentencing proceeding, and counsel was ineffective for failing to raise this issue on appeal; (11) he was involuntarily absent during critical stages of the trial proceedings; (12) prosecutorial misconduct relating to evidence of collateral crimes presented during the penalty phase caused prejudice that resulted in a fundamentally unfair proceeding; (13) he was denied a full and fair evidentiary hearing on his public records claim; and (14) the cumulative errors in his trial, sentencing, and direct appeal deprived him of the effective assistance of counsel, the right to counsel, a fundamentally fair trial, due process of law, and individualized sentencing."

Porter v. Florida, 2002 Fla. LEXIS 1337 (FL 6/20/2002) Relief denied on claims that: (1) the death sentence is disproportionate in light of trial counsel's failure to present mitigating evidence; (2) appellate counsel was ineffective for failing to raise on appeal: (a) improper prosecutorial antics and arguments that constituted fundamental error; (b) that the trial court considered nonstatutory aggravating circumstances; (c) that the trial court failed to find certain mitigating factors; (d) that penalty phase counsel was ineffective; (e) that the record on appeal was not complete; and (f) cumulative error; (3) the death sentence is unconstitutional as applied to him in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (4) cumulative error warrants reversal of the death sentence; and (5) he might be incompetent to be executed.

Lagrone v. Cockrell, 2002 U.S. Dist. LEXIS 10877 (N.D. Tex 6/17/2002) Magistrate's report and recommendation concluding relief should be denied on 26 assorted grounds of error including actual innocence.

OTHER NOTABLE CASES

New Jersey v. Segars, 2002 N.J. LEXIS 885 (6/26/2002) Defendant's meeting of his burden for proving discriminatory targeting based on race requires reversal of conviction.

Hamdi v. Rumsfeld, No. 02-6827 ( 4th Cir 06/26/2002) "Next friend" standing denied as neither the Federal Public Defender nor a proffered private citizen had any significant relationship with a detainee, captured as an alleged enemy combatant during military operations in Afghanistan.

Tesmer v. Granholm , No. 00-1824/45 (6th Cir 07/02/2002) The district court should have abstained from hearing defendants' claims where they could have been raised in pending state court proceedings; attorneys had standing to challenge a statute codifying the practice of appointing appellate counsel to indigent defendants, but that statute sufficiently protects an indigent defendant's constitutional rights.

United States v. Hylton, No. 01-3097 (DC 06/28/2002) Defendant was entitled to a new trial based on ineffective assistance of counsel, where defense counsel failed to object to a co-defendant's testimony as being influenced by grant of testimonial immunity, and such failure was prejudicial.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

The Habeas Assistance & Training Counsel review of the Supreme Court term's highs and lows is the focus of the week.

United States v. Ruiz

2002 WL 1357244 (June 24, 2002)

The Supreme Court unanimously holds that neither the Fifth nor the Sixth Amendment requires federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses," or information concerning potential affirmative defenses.

Justice Breyer delivered the opinion for the Court, which was joined in by all other members of the Court except Justice Thomas.

Angela Ruiz was arrested after immigration agents found 30 pounds of marijuana in her luggage. The federal prosecutors offered her what has been termed a "fast track" plea bargain. If she agreed to waive indictment, trial and appeal, the government would recommend to the sentencing judge a two-level downward departure from the otherwise applicable United States Sentencing Guidelines sentence. This would have shortened the ordinary sentencing range by six months.

The proposed plea agreement specified that the government had turned over to Ruiz any known information establishing her factual innocence. It also acknowledged that the government had a continuing duty to disclose any such information. As for impeachment evidence relating to informants or other witnesses, Ruiz was required to waive her right to receive such information, as well as her right to receive information supporting any affirmative defense that could be raised if the case went to trial. After Ruiz balked at this waiver requirement the plea offer was withdrawn. Ruiz ultimately pleaded guilty and asked the trial court to grant her the sentencing departure that would have been recommended by the government had she accepted the earlier "fast track" plea bargain. The trial court refused and imposed a standard Guideline sentence.

Ruiz appealed. The Ninth Circuit Court of Appeals vacated the district court’s sentencing determination, concluding that Ruiz had a constitutional right to disclosure of impeachment information prior to entering into a plea bargain, and that the Constitution precluded waiver of this right. The Supreme Court granted the Government’s certiorari petition.

In order to determine whether the waiver provision of the plea bargain agreement was constitutional, the Court begins by discerning the scope of the right that Ruiz was asked to waive. The right to receive exculpatory impeachment material from the prosecution is "a right that the Constitution provides as part of its basic ‘fair trial’ guarantee." See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963) (Due process requires prosecutors to "avoi[d] ... an unfair trial" by making available "upon request" evidence "favorable to an accused ... where the evidence is material either to guilt or to punishment"); Giglio v. United States, 405 U.S. 150, 154 (1972) (exculpatory evidence includes "evidence affecting" witness "credibility," where the witness' "reliability" is likely "determinative of guilt or innocence").

When a defendant pleads guilty, he or she necessarily foregoes the constitutional guarantees associated with the right to a fair trial. Because this is such a serious matter, the Constitution requires that a guilty plea be "voluntary" and that the defendant make related waivers "knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970).

The Supreme Court interprets the ruling of the Ninth Circuit as essentially finding that a guilty plea is not "voluntary" unless the plea was preceded by the same disclosure of material impeachment information that the prosecution would have had to make had the defendant insisted upon a trial. The Supreme Court disagrees, holding that there is no constitutional right to pre-guilty plea disclosure of impeachment information

In reaching this conclusion, the Court first observes that "impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’)."

The Court then notes that it previously "has found that the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor."

Next, the Court finds that due process considerations argue against the existence of the "right" identified by the Ninth Circuit. The relevant considerations previously identified by the Court (see Ake v. Oklahoma, 470 U.S. 68, 77 (1985)) include not only the nature of the private interest at stake, but also the value of the additional safeguard, and the adverse impact of the requirement upon the Government's interests. In the Court’s view, the value of the "right" to impeachment evidence will often be limited given the defendant’s lack of knowledge about the prosecution’s case. The fact that information establishing factual innocence had to be disclosed, together with existing guilty plea safeguards, "diminishes the force of Ruiz's concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty."

In contrast, requiring disclosure of impeachment evidence during the plea bargaining process "could seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice." In its brief, the Government asserted that premature disclosure of witness information could both disrupt ongoing investigations and expose prospective witnesses to serious harm. If the Ninth Circuit’s requirement prevailed, the Government might feel compelled to devote substantially more resources to trial preparation prior to plea bargaining. This would deprive the plea-bargaining process of its main resource-saving advantages. Or, even worse, it could result in the Government’s abandonment of its heavy reliance upon plea bargaining of federal criminal cases. The Supreme Court "cannot say that the Constitution’s due process requirement demands so radical a change in the criminal justice process in order to achieve so comparatively small a constitutional benefit."

The Supreme Court next addresses the "fast-track" plea bargaining requirement of a waiver of the right to receive information related to potential affirmative defenses. For most of the reasons discussed above in regard to impeachment evidence, the Court concludes there is no constitutional right to such information prior to plea bargaining.

"That is to say, in the context of this agreement, the need for this information is more closely related to the fairness of a trial than to the voluntariness of the plea; the value in terms of the defendant's added awareness of relevant circumstances is ordinarily limited; yet the added burden imposed upon the Government by requiring its provision well in advance of trial (often before trial preparation begins) can be serious, thereby significantly interfering with the administration of the plea bargaining process."

The decision of the Ninth Circuit is reversed.

Justice Thomas concurs in the judgment. In a separate opinion, he distances himself from the suggestion in the Court’s opinion that "the constitutional analysis turns in some part on the ‘degree of help’ [the information at issue] would provide to the defendant at the plea stage." Thomas points out that the principle supporting Brady v. Maryland, 373 U.S. 83, 87 (1963) was "avoidance of an unfair trial to the accused." Such a concern "is not implicated at the plea stage regardless."

Harris v. United States

2002 WL 1357277 (June 24, 2002)

Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude a judge from making factual-findings that result in a mandatory minimum sentence if the sentence imposed is within the range of punishment authorized by the jury’s findings.

Justice Kennedy announced the judgment of the Court, and wrote the opinion for the Court on several points.

William Joseph Harris was charged with violating federal drug and firearm laws, including 18 U.S.C. § 924(c)(1)(A), which provides in relevant part:

"[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--

"(i) be sentenced to a term of imprisonment of not less than 5 years;

"(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

"(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years."

The Government assumed that this statute defined a single crime and that a brandishing allegation was a sentencing factor to be decided by the judge after the trial. Therefore, no reference to brandishing or subsection (ii) was included in the indictment.

At a bench trial, Harris was convicted of the charges. A presentence report then recommended that he be given the 7-year minimum because he had brandished the firearm. Harris objected, arguing that brandishing was a separate offense for which he had neither been indicted nor convicted. The district court rejected this interpretation of the statute and sentenced Harris to seven years in prison after finding by a preponderance of the evidence that Harris had indeed brandished a firearm.

On appeal, Harris contended that if the brandishing allegation was considered a sentencing factor as a statutory matter, the statute was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit Court of Appeals rejected the argument. Agreeing with every other circuit to address the issue, it found that brandishing was a sentencing factor. As for the constitutional argument, the appeals court concluded it was foreclosed by McMillan v. Pennsylvania, 477 U.S. 79 (1986). Certiorari was granted.

A majority of the Supreme Court is in agreement on the statutory construction question, finding that the brandishing provision is a sentencing factor rather than an element of an offense. (Kennedy, with Rehnquist, O’Connor, Scalia and Breyer.)

A plurality of the Court (Kennedy with Rehnquist, O’Connor and Scalia) concludes that Apprendi does not preclude judicial fact-finding in relation to mandatory minimums.

"The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. The finding in McMillan restrained the judge's power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be.

"Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion--and rely upon judicial expertise--by requiring defendants to serve minimum terms after judges make certain factual findings."

Justice O’Connor writes a concurring opinion. While she continues to believe that Apprendi and Jones v. United States, 526 U.S. 227 (1999), were wrongly decided, she also concludes that Harris’ argument is unavailing even assuming the validity of Apprendi and Jones. Therefore, she joins Justice Kennedy’s opinion in its entirety.

Justice Breyer joins in the judgment, and joins in the opinion to the extent it holds that Apprendi does not apply to mandatory minimums. In his concurring opinion, he explains that he is unpersuaded by the plurality’s attempt to distinguish Apprendi, but is also unwilling at this juncture to accept its rule given his belief that "extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences . . .."

Breyer clarifies that he is not suggesting that he approves of mandatory minimum sentences. In fact, he believes that "[m]andatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines." However, in Breyer’s view, application of Apprendi to mandatory minimums would not result in their disuse. Instead, he speculates that it would simply result in some defendants feeling compelled to enter into pretrial stipulations with the prosecution concerning facts relevant to sentencing enhancements in order to avoid exposing the jury to enhancement defenses that may appear to conflict with the defense to the charged offense. Thus the extension of Apprendi to mandatory minimum sentences would have the practical adverse effect of transferring the fact-finding function from the judge to the prosecution.

Another adverse consequence of extending Apprendi, according to Breyer, is that "Congress' otherwise broad constitutional authority to define crimes through the specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases" would be further diminished.

Justice Thomas dissents, joined by Justices Stevens, Souter and Ginsburg. Thomas does not believe that Apprendi and McMillan can be reconciled. He therefore concludes that McMillan should be overruled. Thomas explains:

"The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under 18 U.S.C. § 924(c)(1)(A). Without a finding that a defendant brandished or discharged a firearm, the penalty range for a conviction under § 924(c)(1)(A)(i) is five years to life in prison. But with a finding that a defendant brandished a firearm, the penalty range becomes harsher, seven years to life imprisonment. § 924(c)(1)(A)(ii). And if the court finds that a defendant discharged a firearm, the range becomes even more severe, 10 years to life. § 924(c)(1)(A)(iii). Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi, at 483, n. 10 (‘[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense’)."

Thomas’ review of actual sentencing practices bolsters his conclusion that "facts that trigger an increased mandatory minimum sentence warrant constitutional safeguards." While a trial judge is permitted to impose a 7-year sentence for the crime at issue in this case even without a finding of brandishing, in fact the sentence imposed in non-brandishing cases appears to be almost uniformly five years.

Stewart v. Smith

2002 WL 1393891 (June 28, 2002) (per curiam)

The Supreme Court holds that when the state court denied death row inmate Robert Smith’s successive post-conviction petition due to his failure to comply with Arizona Rule of Criminal Procedure 32.2(a)(3) (West 2000), this ruling was independent of federal law.

Robert Smith was sentenced to death in Arizona in 1982. In 1995, Smith filed his third state post-conviction petition in which he alleged ineffective assistance of counsel at sentencing. The superior court denied the claim on the ground that it was waived under Rule 32.2(a)(3) because it had not been included in either of Smith’s earlier petitions. The court rejected Smith’s argument that his procedural default should be excused because his appellate and prior post-conviction attorneys suffered from a conflict of interest. The alleged conflict was based on the fact that the attorneys were employed by the same Public Defender’s Office that trial counsel was a member of.

When Smith then raised the ineffective assistance of trial counsel claim in a federal habeas petition, the district court found that the procedural default imposed by the state court barred relief on the claim. Further, it concluded that the alleged conflict of interest did not excuse the default.

The Ninth Circuit Court of Appeals reversed. In its view, the state court’s application of Rule 32.2 required it to look to the merits of Smith’s claim. Therefore, the rule was not independent of federal law and federal habeas relief was not barred. The Ninth Circuit arrived at this conclusion based on the fact that in 1995, Rule 32.2(a)(3) applied a different standard for waiver if a claim was of "sufficient constitutional magnitude." A claim falling into that category required a knowing, voluntary, and intelligent waiver. Mere omission from a prior petition resulted in waiver for all other claims. Under the Ninth Circuit’s reading of Arizona law, the state court was required to consider the merits of Smith’s ineffective assistance of counsel claim in order to decide whether the claim was of "sufficient constitutional magnitude."

After the Supreme Court granted certiorari to review the Ninth Circuit’s decision, it certified the following question to the Arizona Supreme Court:

"At the time of respondent's third Rule 32 petition in 1995, did the question whether an asserted claim was of 'sufficient constitutional magnitude' to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), depend upon the merits of the particular claim, see State v. French, 198 Ariz. 119, 121-122, 7 P. 3d 128, 130-131 (App.2000); State v. Curtis, 185 Ariz. App. 112, 115, 912 P. 2d 1341, 1344 (1995), or merely upon the particular right alleged to have been violated, see State v. Espinosa, 200 Ariz. 503, 505, 29 P. 3d 278, 280 (App.2001)?"

Stewart v. Smith , 534 U. S., at 159.

The Arizona Supreme Court responded:

"We hold that at the time of respondent's third Rule 32 petition in 1995, the question whether an asserted claim was of 'sufficient constitutional magnitude' to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated."

Stewart v. Smith , 46 P. 3d 1067, 1068(2002).

Based on this explanation of state law, the Supreme Court holds that Rule 32.2 was independent of federal law at the relevant time. Contrary to the Ninth Circuit’s view of the rule, state courts were not required to evaluate the merits of a claim in assessing whether it was waived. Instead, the state court had only to determine if a claim fell into a particular category.

The Supreme Court acknowledges that the state court ruling would fail the independence test if it did in fact rest primarily on federal law, regardless of how Rule 32 generally operated. The Ninth Circuit had interpreted the state court ruling as possibly resting on the merits of the claim. This was because in rejecting Smith’s assertion that a conflict of interest excused his delay in raising his claim, the state court found that appellate/post-conviction counsel had an allegiance to Smith and therefore would never have omitted a "colorable" ineffective assistance of trial counsel claim. The Ninth Circuit read into that finding a determination that the ineffective assistance claim was without merit. The Supreme Court disagrees. Placed into context, the Supreme Court concludes that the reference to a "colorable claim" was merely a rhetorical device used to emphasize the absence of any conflict of interest.

In reversing the Ninth Circuit’s decision in this case, the Supreme Court assumes without deciding that the independence doctrine applies in federal habeas corpus proceedings. (The requirement that a state court ruling be independent of federal law in order to preclude federal review was announced in the context of the Supreme Court’s jurisdiction on direct review.) The Court also voices no opinion on the question of whether Smith does have valid cause to overcome his procedural default.

Ring v. Arizona

2002 WL 1357257 (June 24, 2002)

The Supreme Court, 6-3, overrules Walton v. Arizona, 497 U.S. 639 (1990), and holds that "[c]apital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment."

Justice Ginsburg wrote the opinion for the Court, which was joined by Justices Stevens, Scalia, Kennedy, Souter and Thomas. Justice Breyer concurred in the judgment.

Timothy Ring was convicted by an Arizona jury of a murder occurring in the course of a robbery. The jury was unable to reach agreement concerning the charge that the killing was premeditated. As required by state law, a separate sentencing hearing was conducted by the trial judge. A death sentence, the maximum penalty for first degree murder, was not possible unless the trial judge found the existence of at least one statutory aggravating factor. Relying on testimony from an accomplice who appeared only at the sentencing phase, the trial judge found that Ring was the actual shooter, and that he had been a major participant in the robbery. The trial judge further found the existence of two statutory aggravating factors: (1) killing for pecuniary gain; and (2) killing in an especially heinous, cruel or depraved manner. After concluding that the mitigating circumstance of a "minimal" criminal record did not call for leniency, the trial judge sentenced Ring to death.

On appeal, Ring argued that Arizona's capital sentencing scheme violates the Sixth and Fourteenth Amendments to the U.S. Constitution because it entrusts to a judge the finding of a fact that raises the defendant's maximum penalty. In support of his argument, he pointed to Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000). The State responded that Arizona’s scheme was upheld in Walton, and the Court in Apprendi had stated that Walton remained good law.

The Arizona Supreme Court looked to how Walton was distinguished in Apprendi and concluded that the majority in Apprendi misapprehended how the Arizona capital scheme works. The Apprendi majority had described the Arizona system as one requiring judges, after a jury determination that the defendant committed a capital crime, to find specific aggravating factors before imposing a sentence of death, rather than a system permitting a judge to determine the existence of a factor which makes a crime a capital offense. The Arizona Supreme Court described state law as precluding a sentence of death unless the trial judge makes a factual finding that a statutory aggravator exists. Ring’s claim was nevertheless rejected, despite the mischaracterization of Arizona law in Apprendi, because the Arizona Supreme Court felt it was bound by Walton until it was overruled.

The Arizona Supreme Court agreed with Ring’s argument that there was insufficient evidence to support the depravity aggravator. The death sentence was upheld after the state court reweighed the remaining aggravator against the sole mitigator found by the trial court.

The Supreme Court granted certiorari to resolve whether Apprendi and Walton could be reconciled.

The Court makes clear early in its decision that the sole issue raised by Ring was whether the Sixth Amendment requires jury findings on the aggravating circumstances as alleged against him, which did not involve prior convictions. Thus, this case does not involve a challenge to Almendarez- Torres v. United States, 523 U.S. 224 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. Nor does the Sixth Amendment argument pressed by Ring include the right to jury findings on mitigating factors, or on the ultimate determination on whether to impose a death sentence. The authority of the Arizona Supreme Court to conduct reweighing was also not challenged by Ring. Finally, there was no contention that the indictment was constitutionally defective.

After clarifying the limited nature of Ring’s constitutional challenge, the Court turns to its decision in Walton. In upholding the Arizona scheme, the Court characterized the aggravators as mere sentencing factors, not elements of the offense. As such, they did not require a jury determination. The Court drew some support for its decision from Cabana v. Bullock, 474 U.S. 376 (1986). In Cabana, the Court ruled that an appellate court was permitted to make the finding that a defendant killed, attempted to kill, or intended to kill, as required for imposition of the death penalty under Enmund v. Florida, 458 U.S. 782 (1982). The Court reasoned that a jury determination was unnecessary because the Enmund finding did not involve an element of the capital crime, but rather simply placed a substantive limitation on sentencing.

Walton was revisited by the Court in Jones v. United States, 526 U.S. 227 (1999), which held: "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n.6. To explain the ruling in Walton, the Court characterized the finding of aggravating facts as relating to the choice between a greater and lesser punishment, rather than a process of raising the permissible sentencing range.

Walton was again distinguished in Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial judge in Apprendi had made a factual finding that triggered application of an enhancement which then doubled the maximum authorized sentence. The Supreme Court held that the defendant’s sentence violated his right to a jury determination on all elements of the crime. It explained that the Sixth Amendment could not be circumvented by characterizing something as a sentencing enhancement. The dispositive question was not one of form, but rather of effect. The Court ruled that if an increase in a defendant’s authorized punishment was made contingent on the finding of a fact, that fact--no matter how it was labeled by the State-- had to be found by a jury beyond a reasonable doubt. Walton was not inconsistent with this ruling, in the Court’s view, because the maximum sentence allowable for first degree murder in Arizona was death. Therefore, once the jury convicted the defendant of first degree murder, the trial judge was permitted to make the sentencing findings.

As noted above, this interpretation of Arizona law was repudiated by the Arizona Supreme Court in Ring’s case. In light of this definitive construction of Arizona law, the Supreme Court finds that Walton cannot survive the reasoning of Apprendi. While Arizona does authorize a death sentence for a first degree murder conviction, it is only in a formal sense. Notably, the statute cross-references the section requiring further factual findings by the trial court.

The distinction made by the Court in Walton between elements and sentencing factors has become untenable after Apprendi. The Court is unpersuaded by Arizona’s argument that Apprendi should not extend to capital cases because aggravating factors are specially required by the Eighth Amendment, rather than offense elements chosen for inclusion by the states. The Court observes other instances where it has required the addition of an element to a crime’s definition in order to satisfy the Constitution. See, e.g., United States v. Lopez, 514 U.S. 549, 561-562 (1995) (addition of express jurisdictional element necessary for gun offense in order to prevent violation of Commerce Clause); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (State law barring advocacy of use of force or law violation is invalid under the First Amendment unless it is limited to advocacy directed to inciting or producing imminent lawless action and is likely to incite or produce such action); Lambert v. California, 355 U.S. 225, 229 (due process clause precludes convicting ex-felon of failing to register his presence in municipality unless there is "actual knowledge of the duty to register or proof of the probability of such knowledge"). In each of those situations the Court believes the Sixth Amendment would apply should the legislature respond to the Court’s ruling by adding the element necessary to prevent the statute at issue from violating a constitutional provision. It can see no reason to differentiate capital crimes from others in this regard.

The Court is also unpersuaded by Arizona’s defense that the judicial determination of aggravating factors is a superior means of guaranteeing against the arbitrary imposition of the death penalty. The Court responds: "The Sixth Amendment jury trial right . . . does not turn on the relative rationality, fairness, or efficiency of potential factfinders." Ring, at *15. In addition, the Court expresses some skepticism about Arizona’s claim that judicial factfinding is superior to jury findings. The Court observes that only four states other than Arizona entrust solely to the trial court both capital sentencing factfinding and the ultimate sentencing determination: Colorado, Idaho, Montana, and Nebraska.

Because Walton cannot be reconciled with Apprendi, Walton is overruled "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Ring at * 16.

The Court does not reach Arizona’s assertion that any error in this case was harmless because the pecuniary gain finding was implicit in the jury’s conviction of felony-murder. The Court leaves this for the Arizona Supreme Court to pass on in the first instance.

Justice Scalia writes a concurring opinion, joined by Justice Thomas.

Scalia begins by observing that Arizona was prompted to add aggravating factors to its capital sentencing scheme by the Court’s line of decisions beginning with Furman v. Georgia, 408 U.S. 238 (1972). In Scalia’s opinion, "that line of decisions had no proper foundation in the Constitution." Ring at *17. Scalia agrees with the Chief Justice’s interpretation of the Eighth Amendment, which was set forth in a dissenting opinion in Gardner v. Florida, 430 U.S. 349, 371 (1977) (Rehnquist, J., dissenting). According to this view the Eighth Amendment is meant to bar particular punishments and does not relate to the process by which the punishment is imposed.

While Scalia does not believe that the Eighth Amendment does require aggravating factors, he realizes the futility in attempting to discern which aggravators are the by-products of Furman, and which the States had already in place or would have added irrespective of Furman based on a conclusion that murder simpliciter is no longer deserving of a death sentence. The former category should not implicate the Sixth Amendment, in Scalia’s mind, while the latter clearly does.

Scalia also notes what he sees as a "perilous decline" in the people’s traditional belief in the right to a jury trial and states:

That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man's going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

Ring, at *19.

Based on these considerations, he embraces the Court’s determination that the aggravating factors at issue must be subject to the usual requirements of the Constitution, i.e., found by a jury beyond a reasonable doubt.

Scalia closes by criticizing the separate concurrence by Justice Breyer, who joins in the judgment based on his belief that jury sentencing in capital cases is mandated by the Eighth Amendment. Scalia explains that the Court’s decision in this case is not about jury sentencing, which is not constitutionally required, but instead about finding aggravating factors which create death-eligibility. Scalia concludes:

There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

Justice Kennedy concurs in the Court’s opinion. While he remains convinced that Apprendi was wrongly decided, he concludes that its approach must be implemented in a principled manner. He agrees with the Court that Apprendi and Walton cannot stand together.

Justice Breyer concurs in the Court’s judgment. He looks to the Court’s precedent requiring States to apply special procedural safeguards in cases where the death penalty is sought. Breyer then announces that he has come to believe that one of the required safeguards is that a jury impose a death sentence. In Breyer’s view, "the Eighth Amendment requires individual jurors to make, and to take responsibility for, a decision to sentence a person to death."

Justice O’Connor dissents, joined by the Chief Justice. Although she agrees that Apprendi and Walton are incompatible, she would resolve this dilemma by overruling Apprendi. O’Connor reiterates the reasons she dissented from Apprendi. She continues to believe that the decision was without foundation. Further, she contends that Apprendi has had "a severely destabilizing effect on our criminal justice system." In support of this assertion she points to the high number of Apprendi-related claims being raised by prisoners which has "caused an enormous increase in the workload of an already overburdened judiciary." Ring at *23. O’Connor predicts that the decision in this case will only add to Apprendi’s pernicious effects. The five states with the type of sentencing scheme condemned by the majority have a combined 168 prisoners on death row. Each of these prisoners is likely to now raise a challenge to the death sentence. O’Connor predicts that many of the prisoners will be unsuccessful, either because of harmless error analysis, or because they will be barred from taking advantage of this case on federal collateral review. Nevertheless, the need for courts to evaluate the claims will be burdensome. Further, O’Connor suspects that death row inmates in Alabama, Delaware, Florida and Indiana will seize on this decision given their hybrid sentencing schemes in which the jury renders an advisory verdict but the judge is the ultimate sentencer.

NOTE: On June 28, 2002, the Supreme Court granted the certiorari petitions in the following cases, vacated the judgments, and remanded to the lower courts for further consideration in light of Ring v. Arizona: Harrod v. Arizona, No. 01-6821; Allen v. United States, No. 01-7310; Pandeli v. Arizona, No. 01-7743; Sansing v. Arizona, No. 01-7837 .

That same day the Supreme Court denied the following certiorari petitions which raised Apprendi-based challenges to Alabama and Florida death penalty procedures: Holladay v. Alabama, 00-10728; Mann v. Florida, 01-7092; King v. Florida, 01-7804; Bottoson v. Florida, 01-8099; Card v. Florida, 01-9152; Hertz v. Florida, 01-9154; and Looney v. Florida, 01-9932. Card, Hertz and Looney were petitions for writs of certiorari following affirmance on direct appeal.

Atkins v. Virginia

536 U.S., 2002 WL 1338045 (June 20, 2002)

In a 6-3 ruling, the Supreme Court holds that executing a mentally retarded offender constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.

Daryl Atkins was convicted of capital murder and sentenced to death in Virginia. A second sentencing hearing was ordered by the state supreme court due to an error by the trial court. At the sentencing retrial, Atkins presented expert testimony that he was mildly mentally retarded. The prosecution rebutted with an expert who opined that Atkins was of "at least" average intelligence. Atkins was again sentenced to death. On appeal, the state supreme court relied on Penry v. Lynaugh, 492 U.S. 302 (1989), (Penry I) , in rejecting Atkins’ claim that his mental retardation precluded a sentence of death. Two state court justices dissented. They found the testimony of the prosecution expert "incredulous as a matter of law," and that "the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive." Atkins v. Commonwealth, 534 S.E.2d 312, 394, 395-396 (Va. 2000).

The Supreme Court granted certiorari in this case to revisit the issue it addressed 13 years earlier in Penry I.

Justice Stevens writes for the Court, joined by Justices O’Connor, Kennedy, Souter, Ginsburg and Breyer.

The Court begins by observing that a claim of "excessive" punishment under the Eighth Amendment is judged by currently prevailing standards. In order to discern the guiding standards, the Court is informed by objective evidence. In the end, however, the Constitution contemplates that the Justices’ own judgment must be brought to bear on the Eighth Amendment question. The Court, therefore, starts its analysis by looking to the judgment of the legislatures that have addressed the suitability of executing the mentally retarded, and then considers reasons for agreeing or disagreeing with these judgments.

Back in 1989, when the Court decided Penry I, only two death penalty States barred execution of the mentally retarded. After Penry I, "state legislatures across the country began to address this issue." In the ensuing years, sixteen death penalty States enacted statutes exempting the mentally retarded from execution.

Most significant about this development, in the view of the Court, is not the number of the states at issue, but instead "the consistency of the direction of change." The Court notes:

"Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal."

Bolstering the weight of this evidence is the fact that the votes in favor of banning execution of the mentally retarded have been overwhelming in those States that have addressed this issue. As for the States that have not yet exempted the mentally retarded from the death penalty, the Court points out that in practice such executions are uncommon. For example, New Hampshire and New Jersey have had no post-Furman executions at all. Thus, there is currently little need to pursue special protections for the mentally retarded in those jurisdictions. As for the States that regularly employ capital punishment and still permit the mentally retarded to be executed, the Court finds notable that "only five have executed offenders possessing a known IQ less than 70" since Penry I was decided. These facts lead the Court to conclude: "The practice . . . has become truly unusual, and it is fair to say that a national consensus has developed against it."

In a footnote, the Supreme Court recounts evidence showing that the legislative judgment it just discussed "reflects a much broader social and professional consensus." Among those condemning the practice of executing the mentally retarded are numerous professional organizations, diverse religious communities, the world community, and the American citizenry as shown through polling data.

To the extent there is serious disagreement on the question of executing the mentally retarded, the Supreme Court finds that it is only in determining which defendants are in fact retarded. The Supreme Court leaves it to the States to develop the appropriate ways to enforce the constitutional restriction it announces in this case, noting that while the definitions of mental retardation currently found in various statutes are not identical, they generally conform to the clinical definitions of the American Association of Mental Retardation and the American Psychiatric Association. These definitions require subaverage intellectual functioning, as well as significant limitations in adaptive skills that became manifest before age 18.

The next section of the Court’s decision explores the reasons for the national consensus found above. While mentally retarded defendants "frequently know the difference between right and wrong and are competent to stand trial," they nevertheless "have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." The Court’s death penalty jurisprudence provides two reasons why such deficiencies should render the mentally retarded exempt from execution.

First, the Court finds a serious question whether the two permissible justifications for capital punishment -- retribution and deterrence -- apply to mentally retarded offenders. As to retribution, the Court’s narrowing jurisprudence severely limits the crimes for which the death penalty may be imposed. The Court posits that "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." Turning to deterrence, the cognitive and behavioral impairments of the mentally retarded "make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." As for other defendants, the deterrent effect of the death penalty would not be lessened by exempting the mentally retarded.

A second justification for the categorical ban on execution of the mentally retarded is found by the Court. The Court believes that the reduced capacity of mentally retarded offenders places them at risk of receiving a death sentence "in spite of factors that may call for a less severe penalty." Lockett v. Ohio, 438 U.S. 586, 605 (1978). To support this conclusion, the Court notes the possibility of false confessions, a lesser ability to meaningfully assist counsel, the likelihood of poor performance on the witness stand, and a demeanor which may lead the jury to the unwarranted conclusion that the defendant lacks remorse. In addition, "reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." In short, "[m]entally retarded defendants in the aggregate face a special risk of wrongful execution."

The Court’s independent evaluation of the issue presented in this case provides it with no reason to disagree with judgment of the legislatures that have recently addressed the propriety of applying the death penalty to mentally retarded offenders. The Court therefore holds that execution of the mentally retarded is an excessive punishment that is prohibited by the Eighth Amendment.

The case is remanded to the Virginia Supreme Court for further proceedings not inconsistent with this decision.

Chief Justice Rehnquist dissents, joined by Justices Scalia and Thomas. He criticizes the majority decision for placing "weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion." According to Rehnquist, such reliance is "antithetical to considerations of federalism." He independently attacks use of the opinion polls on the ground that there is insufficient information to show their reliability.

Rehnquist takes the position that the sole indicators the Court should look to in order to ascertain current societal standards are: (1) the work product of the legislatures; and (2) data concerning actions by sentencing juries.

Justice Scalia’s dissenting opinion is joined by the Chief Justice, as well as Justice Thomas. Scalia takes the position that the decision in this case rests upon the personal views of a majority of the Supreme Court. He is unable to find the national consensus identified by the majority. He points out, among other things, that less than one-half of the death penalty States currently exempt the mentally retarded from execution. In addition, because only a minority of the States with such an exemption chose to make the rule retroactive, the majority of States adopting exemptions could not have been issuing a "statement of absolute moral repugnance" to the practice of executing the mentally retarded. Scalia further observes that the exemptions from execution for mentally retarded offenders are relatively new, thereby providing a poor foundation for a sweeping constitutional principle. Scalia also vehemently disagrees with the majority’s conclusion that the "diminished capacities" of the mentally retarded renders the death penalty excessive.

Carey v. Saffold

536 U.S.,S.Ct., 2002 WL 1305725 (June 17, 2002)

This case addressed when a state post-conviction application is "pending" for purposes of tolling the one-year statute of limitations for filing federal habeas corpus petitions. See 24 U.S.C. § 2244.

In a decision written by Justice Breyer, and joined by Justices Stevens, O’Connor, Souter, and Ginsburg, the Supreme Court first held that the term "pending," as used in § 2244(d)(2), includes the time period between a lower state court’s ruling on a post-conviction application and the filing of a notice of appeal to the higher state court. Thus, until a state post-conviction application "has achieved final resolution through the State’s post-conviction procedures, . . it remains ‘pending.’"

The Court next addressed how the term "pending" should be applied in California which does not have a standard appellate review procedure for post-conviction petitions. In California, there is no "appeal" possible from the denial of a state habeas petition by a trial court. Instead, the petitioner must file an original petition in the appellate court. If an intermediate appellate court denies a habeas petition, a California prisoner has the choice of either filing a petition for review or an original habeas petition in the California Supreme Court. While there is a deadline for a petition for review, there is no filing deadline for habeas petitions in California. Rather, the timeliness of each filing is determined by a "reasonableness" standard.

After reviewing state law, and noting the fact that the tolling provision at issue is designed to permit exhaustion of state remedies, the Supreme Court concluded that "California’s system functions in ways sufficiently like other state systems of collateral review to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word ‘pending.’" This is true even where a petitioner chooses to file an original petition in the state supreme court rather than utilize the petition for review option. In so ruling, the majority makes clear that the rule it is applying to original writs in California does not apply to original writs in states that have an appeal process for post-conviction petitions and that reserve the highest state court’s original writ jurisdiction to "extraordinary" circumstances.

Finally, the Court turned to the specifics of Saffold’s case. Saffold filed an original habeas petition in the state supreme court 4 ½ months after the intermediate appellate court denied the petition that had been filed in that court. Saffold attempted to persuade the state supreme court that he had been diligent by explaining that the court of appeal had failed to notify him of its ruling for several months and that he had filed in the highest court within days of receiving notice of the lower court’s ruling. The California Supreme Court denied Saffold’s habeas petition both on the merits and for "lack of diligence."

The Supreme Court found that if the "lack of diligence" holding was clearly related to the 4 ½ month delay, Saffold’s habeas petition would not have been "pending" during this period. This is true despite the state court’s alternative merits ruling, and irrespective of whether the state timeliness rule is intertwined with federal law.

On the record before it, however, the Supreme Court was unable to determine whether the "lack of diligence" ruling by the state supreme court referred to the 4 ½ month gap in filing, or instead to Saffold’s nearly five year delay in initiating state habeas proceedings after his conviction was affirmed on direct appeal. If it was the latter delay that prompted the "lack of diligence" holding, that would not prevent the petition from being "pending" for purposes of tolling during the 4 ½ filing gap.

The Supreme Court remanded to the Ninth Circuit Court of Appeals to decide the meaning of the state court’s "lack of diligence" ruling. In remanding, the Supreme Court left "to the Court of Appeals the decision whether it would be appropriate to certify a question to the California Supreme Court for the purpose of seeking clarification in this area of state law."

Justice Kennedy, joined by the Chief Justice and Justices Scalia and Thomas, dissented. In Kennedy’s view, the plain language of the federal statute of limitations precludes the majority’s determination that a habeas petition can be deemed "pending" after its denial and prior to the filing of a new original petition in a different court. Kennedy also accused the majority of misconstruing California law. While the majority understood California law as contemplating the filing of original petitions, Kennedy pointed to case law indicating that a petition for review is the "preferred" practice when dealing with a denial of a habeas petition by an intermediate appellate court. Kennedy also took issue with the majority’s contention that California’s writ procedure is unique. Kennedy asserted that state prisoners outside of California would now attempt to circumvent a failure to file a timely state post-conviction appeal by filing an original writ petition in state court. Should that petition be denied without comment, the prisoner would be armed with an argument that his post-conviction application was pending from its initial filing until the denial of the writ petition.

Kennedy also reads the majority opinion as placing the burden on federal courts to assess whether petitioners exercised due diligence in their state court filing in cases where the state court failed to make a specific finding of undue delay. This will, in Kennedy’s view, both increase federal litigation, and create unnecessary uncertainty for state prisoners who cannot know whether the federal statute of limitations is running while they prepare their state habeas petitions.

Finally, addressing the specifics of Saffold’s case, Kennedy does not believe that the ambiguity in the state court’s habeas denial should benefit Saffold. According to Kennedy, if the "lack of diligence" ruling was meant to signify that Saffold waited too long in initiating state habeas proceedings in the first instance, then none of his state petitions were "properly filed" and none of them tolled the limitation period. In reaching this conclusion, Kennedy cites to Artuz v. Bennett, 531 U.S. 4, 8 (2000).

McKune v. Lile

536 U.S.,S.Ct., 2002 WL 1270605 (June 10, 2002)

A majority of the Supreme Court rules that the adverse consequences suffered by a prisoner who refused to make admissions as required for participation in a prison treatment program were not so severe as to constitute compulsion for purposes of the Fifth Amendment’s privilege against self-incrimination. Justice Kennedy wrote a plurality opinion joined by Chief Justice Rehnquist, Justice Scalia and Justice Thomas. Justice O’Connor concurred in the judgment. Justice Stevens filed a dissenting opinion joined by Justice Souter, Justice Ginsburg and Justice Breyer.

This case arose in the context of a § 1983 civil rights action filed by Robert G. Lile, a convicted sex offender incarcerated in Kansas. A few years before his scheduled release, Lile was ordered to participate in a Sexual Abuse Treatment Program. Part of this program mandated completion of a form in which the inmate discussed and accepted responsibility for the commitment offense. The inmate was further required to provide a complete sexual history, regardless of whether it included uncharged sexual offenses. The information provided by the inmate was not privileged and could be used in a future prosecution.

Lile was told that if he refused to participate in this program, his privilege status would be reduced. In addition, he would be transferred to a maximum-security unit where movement was more limited and he would have to live in a four-person, rather than a two-person, cell. Lile refused to participate in the program, arguing that the required disclosures violated his Fifth Amendment right against self-incrimination. He then filed a federal civil rights action seeking to enjoin the prison from penalizing him for invoking his constitutional rights. The Tenth Circuit Court of Appeals agreed with Lile’s contention that the Kansas prison regulation violated the Fifth Amendment. See 224 F.3d 1175 (10th Cir. 2000).

The Supreme Court reverses the lower court. In Kennedy’s plurality opinion, he begins by discussing the legitimate penological objective served by the treatment program. He then recounts the reasons why offering use immunity to inmates, which the Tenth Circuit found would obviate any self-incrimination issues, could detract from the program’s rehabilitative purposes.

Kennedy next finds that Lile’s status as a prisoner is an essential consideration in the Court’s Fifth Amendment analysis. While not relying fully on Sandin v. Conner, 515 U.S. 472 (1995), which sets the test for due process challenges to prison conditions, Kennedy finds that "the Sandin framework provides a reasonable means for assessing whether the response of prisoner administrators to correctional and rehabilitative necessities are so out of the ordinary that one could sensibly say they rise to the level of unconstitutional compulsion." Kennedy explains:

"Sandin and its counterparts underscore the axiom that a convicted felon’s life in prison differs from that of an ordinary citizen. In the context of a legitimate rehabilitation program for prisoners, those same considerations are relevant to our analysis. The compulsion inquiry must consider the significant restraints already inherent in prison life and the State’s own vital interest in rehabilitation goals and procedures within the prison system. A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life."

Kennedy points out that Lile’s refusal to participate did not result in extended incarceration. Nor did it affect his eligibility for good-time credits or parole. Further, the transfer to a different unit was not intended as punishment, but instead was necessary in order to provide room for inmates willing to take part in the program. Looking again to prison due process jurisprudence, Kennedy finds that the loss of certain privileges by Lile is de minimis harm that fails to create an unconstitutional compulsion.

In concluding that the Fifth Amendment is not violated by the Kansas program, Kennedy makes note of numerous cases where the existence of potentially adverse consequences from a decision to remain silent did not establish a violation of the self-incrimination clause. See, e.g., McGautha v. California, 402 U.S. 183 (1971) (statements made by a capital defendant to mitigate his responsibility and avoid a death sentence could be used to establish guilt); Jenkins v. Anderson, 447 U.S. 231 (1980) (criminal defendant’s exercise of his Fifth Amendment privilege prior to arrest may be used to impeach his credibility at trial); Baxter v. Palmigiano, 425 U.S. 308 (1976) (Supreme Court refuses to extend Griffin v. California to silence at prison disciplinary hearing); Minnesota v. Murphy, 465 U.S. 420 (1984) (no Fifth Amendment violation where silence during interview with probation officer could result in return to prison, but adherence to probation condition requiring truthful disclosure meant admitting to capital murder); Ohio Adult Parole Authority v. Woodford, 523 U.S. 272 (1998) (death row inmate could be forced to choose between incriminating himself at his clemency interview and having adverse inferences drawn from his silence).

Kennedy is unpersuaded by Lile’s argument that his case is distinguishable from those discussed above on the ground that his penalty follows automatically from a decision to remain silent. In the other cases, a penalty would not necessarily result from silence. While Kennedy believes "the automatic nature of the consequence may be a necessary condition to finding unconstitutional compulsion," it is not in itself enough. Rather, the severity of the consequences is a critical component in assessing compulsion. Nor is Woodford distinguishable on the ground that the inmate there made the choice to participate in clemency proceedings, while the treatment program in Lile’s case was mandatory. "Whether the inmates are being asked or ordered to participate depends entirely on the consequences of their decision not to do so." Given the relatively minimal consequences to Lile for his decision to forego the treatment program, the choice he has been given does not rise to the level of compulsion.

Finally, Kennedy states that Lile is mistaken in relying on a distinction between rewards and penalties; "The answer to the question whether the government is extending a benefit or taking away a privilege rests entirely in the eye of the beholder."

Justice O’Connor concurs in the judgment. She expresses agreement with Justice Steven’s contention that "the Fifth Amendment compulsion standard is broader than the ‘atypical and significant hardship’ standard [the Court] has adopted for evaluating due process claims in prison." O’Connor looks instead to the case law concerning penalties imposed upon a person as a result of the failure to incriminate himself. E.g., Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation of City of New York, 392 U.S. 280 (1968)( loss of professional license); Spevack v. Klein, 385 U.S. 511 (1967) (ineligibility to receive government contracts); Lefkowitz v. Turley, 414 U.S. 70 (1973) (loss of right to participate in political associations and to hold public office). This precedent "establish[es] that certain types of penalties are capable of coercing incriminating testimony." Applied here, O’Connor does not believe that the penalties facing Lile "are serious enough to compel him to be a witness against himself."

O’Connor does address Lile’s claim that the transfer to a maximum-security area of the prison places him in a more dangerous situation. Because it is Lile’s burden to establish compulsion, and he did not show how great the danger actually was, O’Connor is unconvinced on this record that the threat of transfer would compel self-incrimination.

O’Connor next rejects Stevens’ argument that the penalties imposed on Lile are necessarily coercive because they are the same penalties that are imposed by the prison for disciplinary violations. Again, looking to the penalties themselves, O’Connor does not find them of sufficient severity to compel self-incrimination. On the other hand, she also rejects the plurality’s suggestion that the penalties imposed on Lile could rise to the level of those in cases like McGautha, Woodard, and Bordenkircher v. Hayes, 434 U.S. 357 (1978) (plea bargaining does not violate the Fifth Amendment privilege against self-incrimination). The potential penalties in these cases include longer incarceration and even execution. In O’Connor’s view, "the imposition of such outcomes as a penalty for refusing to incriminate oneself would surely implicate a ‘liberty interest.’" In order to properly distinguish these cases from the penalty cases discussed above, O’Connor posits a theory that "recognize[s] that it is generally acceptable to impose the risk of punishment, however great, so long as the actual imposition of such punishment is accomplished through a fair criminal process." She sees a difference between forcing defendants within the criminal process to accept consequences from their choices, and "imposing penalties for the refusal to incriminate onself that go beyond the criminal process and appear, starkly, as government attempts to compel testimony."

O’Connor admits, however, that even this explanation of the privilege fails to fully account for all of the Court’s precedent in this area. Further complication comes from the question of whether the denial of benefits and the imposition of burdens should be analyzed differently in this area. This question is particularly important given the Sentencing Guidelines, which arguably offer convicted defendants the benefit of a reduced sentence in exchange for acceptance of responsibility.

Although troubled by the plurality’s failure to set forth a comprehensive theory of the Fifth Amendment privilege against self-incrimination in this case, she nevertheless joins in the judgment because: (1) "this case indisputably involves burdens rather than benefits"; and (2) she does not believe "the penalties assessed against respondent in response to his failure to incriminate himself are compulsive on any reasonable test."

In the dissent by Justice Stevens, he characterizes the question before the Court as "whether the State may punish an inmate’s assertion of his Fifth Amendment privilege with the same mandatory sanction that follows a disciplinary conviction for an offense such as theft, sodomy, riot, arson, or assault." Before this decision, "the Court has never characterized a threatened harm as ‘a minimal incentive.’" Further, never before has the Court held "that a person who has made a valid assertion of the privilege may nevertheless be ordered to incriminate himself and sanctioned for disobeying such an order." While Stevens takes issues with the plurality’s contention that the sanctions at issue are not severe, he ultimately finds that even if they are minimal this cannot justify the "evisceration of a constitutional right."

Horn v. Banks

536 U.S., S.Ct. (June 17, 2002) (per curiam)

In this Per Curiam decision the Supreme Court reverses the grant of habeas relief by the Third Circuit Court of Appeals, which was based on a violation of Mills v. Maryland, 486 U.S. 367 (1988), and remands for consideration of the Warden’s Teague v. Lane defense. The Supreme Court rejects the appeals court’s conclusion that Teague is irrelevant in a post-AEDPA case where new Supreme Court precedent was in fact considered and applied by the state court in post-conviction proceedings. Instead, the Supreme Court rules that "in addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state." (There is currently a split in the circuits on the question of whether Teague bars retroactive application of Mills. The Fourth and Sixth Circuits have ruled that it does not. The Fifth and Eighth Circuits have come to a contrary conclusion.)

Banks was sentenced to death in Pennsylvania for twelve murders. His jury had been instructed that a sentence of death was mandatory "if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances." The verdict form required the jury to check a box indicating that it had "unanimously" found either: (1) at least one aggravating circumstance and no mitigating circumstances; or (2) one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances. The jury checked the second box.

After Banks’ convictions and death sentences were affirmed on appeal, the United States Supreme Court issued its decision in Mills v. Maryland. In Mills the Supreme Court held that the Constitution prohibits a state from requiring that jurors unanimously agree on the existence of a mitigating circumstance before they are permitting to consider that circumstance in determining the sentence.

Subsequently, in state post-conviction proceedings, Banks raised a Mills challenge to his sentencing instructions and verdict form. The Pennsylvania Supreme Court found the claim without merit. In its view, neither the instructions nor the verdict form were "impermissibly suggestive of a unanimity requirement with respect to mitigating circumstances." Commonwealth v. Banks, 656 A.2d 467, 471 (1995).

Banks then raised the Mills claim in a petition for writ of habeas corpus filed in the federal district court. The claim was denied based upon the district court’s application of the new limitation on habeas relief contained in § 2254(d). This ruling rendered it unnecessary for the district court to address the question of whether Mills could be applied retroactively to Banks’ case.

The Third Circuit reversed, holding that Banks was entitled to relief on the Mills claim. As for the retroactivity analysis mandated by Teague, the appeals court concluded it did not govern the analysis in this post-AEDPA case because the federal court’s sole focus was on "the reasoning and determination of the Pennsylvania Supreme Court," which had not ruled on whether Mills could apply retroactively. Banks v. Horn, 271 F.3d 527, 541 and n. 13 (3rd Cir. 2001). In other words, because the state court had considered and applied Mills, the only question before the federal court was whether the state court’s ruling on the Mills claim should be disturbed under the AEDPA standards. Relying on Mills and Boyde v. California, 494 U.S. 370 (1990), the Third Circuit went on to conclude that the Pennsylvania Supreme Court unreasonably applied federal law.

The Supreme Court holds that the Third Circuit committed "a clear error by failing to perform a Teague analysis" since the Teague defense was invoked by the State below. The case is remanded for further proceedings consistent with this decision.

Mickens v. Taylor

122 S. Ct. 1237 (Mar. 27, 2002)

In a 5 to 4 decision, the Court addressed "what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known." The majority held that a defendant in such circumstances must meet the test of Cuyler v. Sullivan, 446 U.S. 335 (1980), which requires showing an actual conflict of interest which adversely affected his representation.

Mickens’ lead counsel at his capital trial had previously represented the victim whom Mickens was charged with murdering. The lawyer’s representation of the victim occurred about ten days before the victim’s death and involved one 15 to 30 minute meeting. The judge who had appointed the lawyer to represent the victim also appointed the same lawyer to represent Mickens. Counsel never revealed the prior representation, and the judge did not inquire about a potential conflict.

The Court examined its conflict of interest cases. In Holloway v. Arkansas, 435 U.S. 475 (1978), the Court applied an automatic reversal rule where defense counsel was forced to represent codefendants over timely objection. In Cuyler v. Sullivan, however, the Court declined to apply an automatic reversal rule where there was no objection to multiple representation, instead requiring the defendant to show that "a conflict of interest actually affected the adequacy of his representation." Sullivan also required a trial court to inquire into a potential conflict only when "the trial court knows or reasonably should know that a particular conflict exists." The Court emphasized that a "particular" conflict is not a "vague, unspecified possibility of conflict." In Wood v. Georgia, 450 U.S. 261 (1981), the record raised the possibility of a conflict sufficient to require an inquiry from the trial court, and the Supreme Court remanded the case for a determination of "whether the conflict of interest that this record strongly suggests actually existed."

The Court rejected Mickens’ argument that the remand instruction in Wood established that a trial judge’s failure to inquire into a potential conflict relieved the defendant of the burden of showing an adverse effect. The Court stated that Wood’s remand instruction was "shorthand" for the Sullivan test.

The Court also found Mickens’ arguments made "little policy sense" because the trial court’s awareness of a potential conflict does not make an adverse effect more likely or otherwise render the verdict unreliable, because a trial judge’s failure to inquire does not make it more difficult for a reviewing court to assess conflict and effect, and because automatic reversal is not an appropriate method of enforcing Sullivan’s duty to inquire.

While emphasizing that this case addresses only the effect of a trial judge’s failure to inquire upon Sullivan’s adverse effect requirement, the Court noted that the Courts of Appeals have applied Sullivan to a broad range of ethical conflicts. The Court indicated that Sullivan does not support "such expansive application." However, the extent of Sullivan’s reach was not presented in this case: "In resolving this case on the grounds on which it was presented to us, we do not rule upon the need for the Sullivan prophylaxis in cases of successive representation. Whether Sullivan should be extended to such cases remains . . . an open question."

Lee v. Kemna

122 S. Ct. 877 (Jan. 22, 2002)

The Court considered whether a state procedural bar was adequate to foreclose federal habeas corpus review of Lee’s claim that the Missouri trial court denied him due process when it refused to grant an overnight continuance of his trial so that he could locate subpoenaed but suddenly missing alibi witnesses. The Missouri Court of Appeals held the claim procedurally barred because the continuance motion did not comply with a state rule requiring the motion to be in writing accompanied by an affidavit and with another state rule setting forth the showing required to obtain a continuance based on the absence of witnesses.

The Supreme Court held that the state rules were not adequate to preclude federal habeas review because Lee’s "asserted right to defend should not depend on a formal ‘ritual . . . [that] would further no perceivable state interest.’" (quoting Osborne v. Ohio, 495 U.S. 103, 124 (1990)). When he moved for the continuance, Lee testified under oath that the missing witnesses had traveled voluntarily from California to Missouri, were subpoenaed when they arrived in Missouri, had been present in the courthouse that morning, and would not be leaving for California for another two days. Lee also testified he had unsuccessfully attempted to locate the witnesses. The trial judge denied the continuance motion, saying he was not available after that day. Neither the prosecutor nor the judge cited the state rules as a reason for denying the motion. The state did not rely on the rules until Lee’s direct appeal and appeal from the denial of postconviction relief were heard by the Missouri Court of Appeals.

The Supreme Court ruled that this was one of the "exceptional cases in which exhorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." The Court rested this ruling on three grounds. First, the trial judge’s reason for denying the continuance motion could not have been overcome by compliance with the state rules. Second, no Missouri caselaw requires flawless compliance with the state rules in the unique circumstances of Lee’s case. Third, Lee substantially complied with the rule setting forth the showing required to obtain a continuance, and the written motion requirement is not absolute. The Court remanded the case for merits consideration of Lee’s due process claim.

Kelly v. South Carolina

122 S. Ct. 726 (Jan. 9, 2002)

In a 5 to 4 decision in this capital case, the Supreme Court reversed the South Carolina Supreme Court’s decision that Simmons v. South Carolina, 512 U.S. 154 (1994), did not apply to Kelly’s case. At his capital sentencing proceeding, Kelly requested that the jury be instructed that if he received a life sentence, he would be ineligible for parole. The trial court denied the instruction, ruling that the state was not arguing future dangerousness. On appeal, the South Carolina Supreme Court upheld denial of the instruction for two reasons: (1) state law provided the jury with a third sentencing option and (2) future dangerousness was not at issue.

As to whether the jury had a third sentencing option, the Supreme Court relied upon Shafer v. South Carolina, 532 U.S. 36 (2001). Although in some circumstances, South Carolina law allows a sentence less than life for capital murder, the jury only makes a recommendation when it finds an aggravating circumstance, and the jury’s only options when it makes a recommendation are death or life without parole.

As to whether future dangerousness was at issue, the Supreme Court found the state court’s ruling unsupported by the record. The state supreme court accurately posed the legal issue--whether the prosecutor’s evidence or argument placed future dangerousness in issue--but erred on the facts. The prosecutor presented evidence that Kelly had weapons in prison and participated in escape attempts. The state court interpreted Simmons as involving future danger "if released from prison" and reasoned that evidence regarding weapons and escape attempts went only to Kelly’s future behavior in prison. However, the Supreme Court saw this evidence as raising "a strong implication of ‘generalized . . . future dangerousness.’" (quoting Simmons). The Court explained, "Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences."

The Supreme Court also found that the prosecutor’s argument "placed the case within the four corners of Simmons." The prosecutor’s argument in which he hoped jurors would never again be this close to a person such as Kelly implied that Kelly would someday be released from prison--the only way jurors could ever be close to him. The prosecutor’s comparison of Kelly to a notorious serial killer implied that Kelly "is a vicious predator who would pose a continuing threat to the community," as did a similar argument in Simmons.

Finally, the Supreme Court rejected the state’s argument that no parole ineligibility instruction was necessary because the jury expressed no concern over the possibility of Kelly’s future release. Although the juries in Simmons and Shafer asked for further instructions on parole eligibility, the trial judge’s obligation to provide sufficient instructions is not dependent upon the jury requesting clarification.

Alabama v. Shelton

535 U.S., 2002 WL 1008481

(May 20, 2002)

In this case the Supreme Court addressed whether a suspended sentence met the "actual imprisonment" standard established in Argersinger v. Hamlin, 407 U.S. 5 (1972), and refined in Scott v. Illinois, 440 U.S. 367 (1979), thereby implicating a defendant’s Sixth Amendment right to counsel. The Supreme Court, in a 5-4 decision, held that "a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged." Shelton at *4.

Shelton was tried in Alabama for third degree assault, a misdemeanor that carried a maximum punishment of one-year imprisonment and a $2000 fine. Shelton represented himself despite repeated warnings from the trial court about the problems self-representation entailed At no time was Shelton offered assistance of counsel at state expense. Following his conviction Shelton was sentenced to serve 30 days in the county prison. This sentence was suspended, however, and Shelton was placed on two years of unsupervised probation, conditioned on his paying court costs, a fine, reparations and restitution.

The Alabama Supreme Court invalidated the suspended sentence, concluding that it constituted a "term of imprisonment" thereby triggering the right to provision of counsel.

Five members of the United States Supreme Court agreed with the Alabama Supreme Court. In an opinion authored by Justice Ginsburg and joined by Stevens, O’Connor, Souter and Breyer, the Court first rejected the arguments of an amicus curiae, who was invited by the Court to submit briefing on points conceded by Alabama in order to "assure full airing of the question presented." One of the positions taken by the amicus was that the most "workable solution" to the problem presented in Shelton’s case would be to permit imposition of a suspended sentence upon an uncounseled defendant and then require appointment of counsel, if at all, only at the probation revocation stage when incarceration becomes imminent rather than theoretical. In declining to adopt this suggested procedure, the Court noted, among other things, that Alabama law precludes attacking the validity of the conviction itself at the revocation hearing. Further, under state law, such a proceeding is an "informal" one to which the right to counsel does not attach and the customary rules of evidence do not apply. The Court found "it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration." Shelton at *9.

As for the contention by both the amicus and the dissent that the holding of the Court will substantially limit the ability of the states to impose probation, the Court looked to current practices and observed that only 16 States would not have provided counsel to someone in Shelton’s situation. Further, the Court pointed out that the option of pretrial probation remained for any jurisdiction unwilling or unable to bear the cost of the rule confirmed in the majority opinion

Alabama put forth an argument that the term of probation given to Shelton was independently valid despite having been tied to the unenforceable suspended sentence. Alabama pressed the position that contempt proceedings, rather than the suspended sentence, could be utilized to enforce the probation sentence. Given that this argument was developed late in the litigation and never presented to the Alabama courts, the Supreme Court declined to reach it.

Also unaddressed by the majority was Shelton’s argument that Argersinger and Scott should be overruled to the extent they fail to guarantee a right to counsel "in all cases where imprisonment is an authorized penalty." This argument was raised for the first time in Shelton’s brief on the merits. Given the far-reaching nature of the proposition, the Court concluded it should have been included in the opposition to the petition for writ of certiorari, "thereby assuring adequate preparation time for those likely affected and wishing to participate." South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171 (1999).

Justice Scalia dissented, joined by Rehnquist, Kennedy and Thomas. In Scalia’s view, precedent establishes that the right to counsel only exists where there is actual imprisonment, and thus the threat of imprisonment accompanying a suspended sentence is insufficient to trigger Sixth Amendment protections.

Scalia did acknowledge that Shelton’s Sixth Amendment rights could be implicated if Alabama ever sought to imprison him on the previously suspended sentence. It is only at that time, however, that Scalia believed that the Court could properly address whether the procedural safeguards attending imposition of that sentence were constitutional.

United States v. Cotton

535 U.S., 2002 WL 1008494

(May 20, 2002)

In the first of three cases to be decided this term concerning the scope of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court unanimously ruled: (1) a defective indictment does not deprive a court of jurisdiction; and (2) the Apprendi/Jones error in this case -- the omission of the drug quantity from the indictment where the quantity increased the statutory maximum sentence -- did not entitle the defendants to reversal of their sentences due to their failure to object at the time of trial and the fact that the evidence concerning the drug quantities was overwhelming and essentially uncontroverted.

The defendants in this case were charged in a superseding indictment with conspiracy to distribute and to possess with intent to distribute a "detectable amount" of cocaine and cocaine base. The indictment did not allege any of the threshold levels of drug quantity that lead to enhanced penalties. In accordance with the superseding indictment, the jury was instructed that the amounts involved were not important in rending its verdict.

Following conviction, and consistent with prevailing practice of federal courts at the time of trial, the judge made a finding of drug quantities that implicated a statutory provision for enhanced penalties. At the time of sentencing, none of the defendants complained that their sentences were based on a drug quantity that had not been alleged in the indictment.

While the defendants’ cases were pending on appeal, the Apprendi decision was issued. The defendants then for the first time argued that their sentences were invalid under Apprendi because the issue of drug quantity was neither alleged in the indictment nor submitted to the petit jury.

Applying plain error review, the Fourth Circuit Court of Appeals vacated the sentences after finding that a court is without jurisdiction to impose a sentence for an offense not charged in the indictment. Such an error, in the view of the Fourth Circuit, seriously affected the fairness, integrity or public reputation of judicial proceedings.

The Supreme Court first addressed whether an omission from an indictment is a "jurisdictional" defect. The case supporting the Fourth Circuit’s decision was Ex Parte Bains, 121 U.S. 1 (1887), which the Supreme Court put in its historical context. At the time of Bains, it was only by creating an "elastic concept of jurisdiction" that the Supreme Court was able to examine and rectify constitutional errors in criminal cases. Because of the changed scope of the Supreme Court’s review powers, the concept of "jurisdiction" has taken on a different meaning today. It now refers only to a court’s statutory or constitutional power to adjudicate the case. Post-Bains cases establish that a flaw in the indictment does not deprive a court of its adjudicative power. Insofar as Bains suggests that a defective indictment deprives a court of jurisdiction, it is overruled by the Supreme Court.

Having disposed of the jurisdictional issue, the Supreme Court turned to application of the plain-error test to determine whether the forfeited claim of error could nevertheless be corrected. This test has essentially four components: a showing of (1) error, that was (2) "plain", that (3) affected substantial rights, and that (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 731-732 (1993).

The Government conceded both that the omission of the drug quantity in the indictment was error under Apprendi and Jones v. United States, 526 U.S. 227 (1999), and that it was plain at the time of appeal. As for the third prong of the plain error test -- whether the error "affect[ed] substantial rights" -- the Supreme Court did not decide whether the defendants were correct in their characterization of the error at issue as structural. Instead, the Supreme Court looked to the fourth aspect of plain error analysis and found that no relief was required because the error did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." Olano, at 732. This is because evidence of the drug quantity was "overwhelming" and "essentially uncontroverted."

Bell v. Cone

535 U.S.,S.Ct., 2002 WL 1050365

(May 28, 2002)

In an 8-1 opinion authored by Chief Justice Rehnquist, the Court first rejected the finding by the Sixth Circuit Court of Appeals that Cone’s ineffective assistance of counsel allegations fell under United States v. Cronic, 466 U.S. 648 (1984). The Court then went on to rule that Cone was not entitled to relief under new § 2254(d)(1), because the state court’s finding of no deficient performance by trial counsel was not the result of an objectively unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).

Background

In 1982, Gary Cone was convicted in Tennessee of the double murder of an elderly couple. The slayings culminated a two-day crime rampage during which Cone shot a police officer and a citizen. The defense at trial was insanity. A clinical psychologist testified that Cone suffered from substance abuse and posttraumatic stress disorders as a result of his service in Vietnam. A neuropharmacologist recounted Cone’s illicit drug usage, which began during his military service and later escalated to the point where "rather horrific" quantities were ingested on a daily basis. This drug use, according to the expert, impaired Cone’s mental capacity and ability to obey the law. Cone’s mother was also called as a witness during the guilt phase. She discussed how her son had returned from the war a changed person. She further informed the jury that Cone received an honorable discharge, that he graduated from college with honors, and that both his father and fiancee died while Cone was in prison for a robbery conviction. Through some of the guilt phase witnesses, defense counsel was able to elicit testimony that Cone had expressed remorse for the killings.

The day after the jury rejected the insanity defense and convicted Cone, a three-hour sentencing hearing was held. During his opening statement, defense counsel alluded to the mitigating evidence that had been presented in the guilt phase of the trial. He also asked the jury to give Cone mercy. A brief case in aggravation followed. During cross-examination of a prosecution witness, defense counsel brought out that Cone had received a Bronze Star in Vietnam. After defense counsel successfully objected to admission of gruesome photographs of the murder victims, both sides rested. The junior prosecutor on the case then gave what the state court described as a "low-key" closing argument. Defense counsel thereafter waived closing argument, thereby preventing the lead prosecutor from presenting a rebuttal argument. The jury found all four aggravating factors submitted by the prosecutor and sentenced Cone to death.

In state post-conviction proceedings Cone argued that trial counsel was ineffective in failing to present any mitigating evidence at the sentencing phase, and in failing to make a closing argument. A hearing was held during which defense counsel offered explanations for his omissions. The state court concluded that counsel’s performance was within the permissible range of competency.

The Sixth Circuit Court of Appeals, in federal habeas proceedings, found that this case fell under United States v. Cronic. In its view, by failing to ask for mercy following the prosecutor’s closing argument, defense counsel did not subject the State’s case for death to meaningful adversarial testing. The state court’s finding that counsel’s performance was competent was therefore the result of an unreasonable application of Strickland.

Discussion

The Supreme Court begins by addressing Cone’s contention that new § 2254(d) does not serve as an impediment to relief in his case because the state court decision was "contrary" to Cronic in that the state court failed to recognize the applicability of the case.

The Court recounts the three sets of circumstances it identified in Cronic where a presumption of prejudice would be appropriate: (1) complete denial of counsel at a critical stage of trial; (2) "counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing"; and (3) counsel is called upon to render assistance under circumstances where competent counsel very likely could not.

Cone argued that he fit the second Cronic situation given his trial attorney’s failure to mount any case for life after the prosecution presented evidence in support of aggravating factors and argued that Cone should be sentenced to death. The Court is unpersuaded, observing that the second Cronic circumstance refers to a complete failure to test the prosecution’s case. Here, Cone did not contend that trial counsel failed to oppose the prosecution throughout the entire sentencing hearing, but instead pointed to particular omissions. The Court explains: "For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree, but of kind." The complaints leveled by Cone -- failure to present mitigating evidence and waiver of closing argument -- are of the same ilk as other attorney errors that have been subjected to Strickland’s two-prong test.

Having found that the state court correctly identified the governing rule of law, that of Strickland, the Court turns to whether the state court’s application of Strickland was objectively unreasonable. The Court first sets forth the difficulties faced by counsel in this case given the multiple crimes committed by Cone over a two-day period, which ended in the brutal and senseless killing of an elderly couple. In the Court’s view, counsel’s quest to save Cone’s life was made more onerous by the fact that Cone received a relatively normal upbringing and was intelligent, and yet had become a drug addict with a history of robbery convictions.

The defense theory at the guilt phase allowed trial counsel to present the jury at that time with what counsel concluded was the most compelling mitigation available in this case, i.e., the post-Vietnam changes and drug dependency that led to the robberies. While Cone complained of counsel’s failure to recall the expert witnesses at the sentencing phase, the Court believes that counsel could reasonably have concluded that their testimony was fresh in the jurors’ minds. Furthermore, counsel explained to the jury that the experts’ testimony had mitigating significance. And the trial court expressly informed the jury that mental state evidence insufficient to constitute a defense could nevertheless be considered in mitigation.

Cone also argued that counsel should have recalled his mother in the penalty phase. The Court points out that trial counsel recognized that Cone’s mother had potentially beneficial testimony at the penalty phase in that she could have provided further information about Cone’s background and stated her love for him. Counsel decided to forego this testimony, however, in light of what he viewed as a poor performance by the mother at the guilt phase and his desire to avoid further cross-examination of her. According to the Court, Cone advanced no argument calling counsel’s assessment into question.

While there were additional witnesses that trial counsel investigated the possibility of calling, he ultimately decided against it. Among his considerations were the harmful information about Cone’s criminal history that could be elicited during cross-examination, and the potential negative reaction the jury would have to evidence of Cone’s normal childhood.

Cone himself was considered as a potential sentencing phase witness by counsel. The Court finds "a sound tactical basis" for counsel’s decision not to call Cone given Cone’s fear that he would lash out at the prosecutor during cross-examination.

Turning to closing argument, the Court sets forth the options available to counsel. If he gave a closing argument, he could reiterate to the jury the points he made in his opening statement, and comment on the few new facts such as the revelation about Cone’s Bronze Star. However, by doing so he would give the very persuasive lead prosecutor the chance to portray Cone as a heartless killer immediately before the jury began its deliberations. By waiving the argument, and relying on the jury’s recollection of the opening statement made just a few hours before, trial counsel could prevent the lead prosecutor from ending the sentencing phase with a passionate argument for death. The Supreme Court does not believe that either of the two options available to counsel so clearly outweighed the other that "it was objectively unreasonable for the Tennessee Court of Appeals to deem counsel's choice to waive argument a tactical decision about which competent lawyers might disagree." Id. at *10.

Because the state court’s application of Strickland’s performance prong cannot be deemed objectively unreasonable, the Sixth Circuit’s decision is reversed.

Justice Stevens dissents, expressing agreement with the conclusion of the appeals court that counsel for Cone "entirely fail [ed] to subject the prosecution's case to meaningful adversarial testing." In addition to referencing counsel’s failure to interview witnesses, his failure to present available mitigating evidence, and his failure to present a closing argument for life, Stevens further notes that after Cone’s trial defense counsel was diagnosed with a mental illness that rendered him unqualified to practice law.

OTHER NEWS

The Death Penalty Information Center reports:

New York Court Rules Against Execution

New York's highest court has ruled that the first man condemned to death under the state's 1995 death penalty statute cannot be executed because the law was unconstitutional at the time his case was tried. The Court found that the law at the time violated Darrel Harris' constitutional right to a trial by jury by offering him an incentive to avoid the death penalty by pleading guilty and accepting a sentence of life without parole. Harris was the first person to receive a death sentence under New York's capital punishment statute that was enacted by Governor George Pataki. Each of the five other inmates on New York's death row were tried after Harris' case and have appeals pending before the Court of Appeals. (Associated Press, July 9, 2002). See also, the Death Penalty in New York.

Florida Supreme Court Stays Executions to Review Constitutionality of State Death Penalty Statute

The Florida Supreme Court stayed two executions set for this week so that it can consider whether the state's capital punishment law is constitutional in light of the U.S. Supreme Court's Ring v. Arizona ruling. In Ring, the Court held that a death sentence violates a defendant's constitutional right to a trial by jury when the necessary aggravating factors are determined by a judge. Florida is one of four states that permits a judge to override a non-unanimous jury recommendation of a life sentence and impose death. The announcement came just hours before the scheduled execution of Linroy Bottoson and two days before the scheduled execution of Amos King. (The Washington Post, July 9, 2002). See also, U.S. Supreme Court: Ring v. Arizona.

Byrd Son Fights for Life of Father's Murderer

Ross Byrd - son of James Byrd, Jr., a black man whose racially motivated 1998 dragging death in Texas drew national attention - is fighting to commute the death sentence of his father's murderer to a sentence of life in prison without parole. Ross Byrd initially supported the death sentence of John W. "Bill" King, but recently joined dozens of anti-death penalty activists to hold a 24-hour fast and vigil at the Huntsville prison where King is awaiting his execution. "When I heard King had exhausted his appeals, I began thinking, 'How can this help me or solve my pain?' and I realized that it couldn't," said Ross Byrd before the vigil. A date has not been set for King's execution. (Houston Chronicle, July 4, 2002). See also, New Voices.

NEW VOICES: Washington Times editorial calls Judge Rakoff's opinion "disturbingly powerful"

In a recent editorial, the Washington Times noted the strengths of U.S. District Judge Jed Rakoff's recent decision finding the federal death penalty unconstitutional (see below). The Times, which supports the death penalty, stated:

U.S. District Judge Jed S. Rakoff has written a disturbingly powerful legal opinion in support of his finding that the federal death sentence is unconstitutional. While it may well be overturned on appeal to the Second Circuit Court of Appeals or beyond, staunch supporters of capital punishment's efficacy and constitutionality Ñ which is the adamant position of this page Ñ should be alert to the potential power of Judge Rakoff's legal analysis. Unlike the typical outriding opinions that surface from federal trial courts, this opinion is not merely Ñ or necessarily Ñ driven by leftish ideological predelictions. Rather, Judge Rakoff has grounded his opinion on a reasonable (if not necessarily persuasive) application of recent Supreme Court case law to a new factual reality Ñ DNA testing.

(Washington Times, editorial, 7/3/02) See also, Judge Rakoff's opinion and DPIC's Press Release.

Basis of Judge Rakoff's Ruling on the Death Penalty

The ruling by a federal judge in New York (see below) that the death penalty is unconstitutional received wide national coverage and support. In his decision Judge Jed Rakoff noted: "In brief, the Court found that the best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions. It is therefore fully foreseeable that in enforcing the death penalty, a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence." To draw his conclusions, Rakoff used information compiled by a number of national researchers and experts, including the Death Penalty Information Center's innocence data. In his decision, he noted that DPIC's innocence list is based on "reasonably strict and objective standards in listing and describing the data and summaries that appear on its website." Read the ruling. See also, Innocence and DPIC's Press Release.

Attorney General Ashcroft Aggressively Seeking Capital Convictions

The Washington Post recently reported that Attorney General John Ashcroft has been twice as likely as his predesessor to reverse recommendations of federal prosecutors and to order them to seek the death penalty in cases where they had recommended against doing so. In addition, racial disparities have continued to be a problem under Ashcroft's direction. The Justice Department has sought the death penalty against three times as many black defendants accused of killing whites as blacks who allegedly murdered non-whites. In a follow-up study to a review released last summer, the Justice Department is continuing to study the issues of racial and geographic disparity that have consistently plagued the department's application of capital punishment since the federal death penalty statue was enacted in 1988. (Washington Post, July 1, 2002). Read the article. See also, Federal Death Penalty, Race, or DPIC's Press Release.

Judge Declares Federal Death Penalty Unconstitutional

Federal District Court Judge Jed Rakoff has ruled that the federal death penalty is unconstitutional, and it can not be sought in the case before him, U.S. v. Quinones, because the demonstrated risk of executing an innocent person is too great and violates substantive due process. Read the ruling. See also, Innocence.

NEW RESOURCE: Women and the Death Penalty

Two recent articles at 4 Buffalo Criminal Law Rev. 917 (2001) focus on women and the death penalty. In "Is the Death Penalty Good for Women," Phyllis Crocker examines gender and race issues in rape-murder death penalty cases. Elizabeth Rapaport's article, "Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women's Capital Cases," reviews how clemency is applied to women in death penalty cases. See also, Studies, Books and Law Reviews.

Deterrence: U.S. Murder Rate Greatly Exceeds European Non-Death Penalty Nations

Data released by the British Home Office reveals that the United States, which retains the death penalty, has a murder rate that is more than three times that of many of its European allies that have banned capital punishment. (New York Times, May 11, 2002). The data challenges the argument that the death penalty is a deterrent to murder. There are more than 110 nations around the world that have banned the death penalty in law or practice. See also, International Developments.

Nation's Largest City Calls for Death Penalty Moratorium

By a vote of 39-12, the New York City Council has called for a moratorium on executions until a commission can investigate the state's death penalty in relation to issues of fairness, justice, equity, due process, and cost. New York City is the largest of 73 municipalities around the nation to pass similar resolutions in favor of a moratorium. "People are beginning to realize that a system that is unfair and plagued with problems should not be permitted to continue," said Councilwoman Yvette Clarke. New York City has been at the center of national attention since the tragic terrorist attacks of September 11th. In spite of this, the Council is urging state officials to more closely examine the death penalty before going ahead with executions. See NCADP's Press Release.

Supreme Court Ruling Regarding Juries May Apply More Broadly

Although Missouri has not been mentioned as one of the nine states potentially affected by the Supreme Court's ruling in Ring v. Arizona, some of its death sentences may be overturned as a result of this ruling. Missouri Attorney General Jay Nixon has announced that the state will thoroughly review the cases of its 68 death row inmates to ensure compliance with the Supreme Court's recent ruling in Ring. In its decision, the Court held that a death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury. Nixon noted that nearly one of every six Missouri death row inmates were condemned by a judge instead of a jury. Missouri law allows judges to impose death sentences in some instances, including when a jury that convicts a defendant deadlocks about sentencing. (Associated Press, June 26, 2002). Nevada also allows a panel of judges to make death sentencing decisions in some cases. In Connecticut, a three-judge panel can decide on death sentences in re-sentencings. See also, DPIC's Ring v. Arizona page.

NEW RESOURCE: The Death Penalty, An American History

America's experience with capital punishment is the focus of a new book by Stuart Banner, "The Death Penalty: An American History." The book is a detailed exploration of the nation's implementation of the death penalty, including the evolution of crimes punishable by death and methods of execution. The book also addresses the public's view of capital punishment over the past four centuries. (Harvard University Press, 2002). See also, Books on the Death Penalty.

Montenegro Abolishes Death Penalty

The Montenegrin parliament has abolished the death penalty, clearing the way for Yugoslavia's admittance to the Council of Europe. Yugoslavia, comprised of Montenegro and Serbia, had previously applied for admission to the Council of Europe, but abolition of the death penalty was a condition for the country's acceptance. The federal and Serbian parliaments had already abolished the death penalty. (Agence France-Press, June 19, 2002). See also, International Death Penalty.

Supreme Court Requires Jury Participation in Death Sentences

In a 7-2 decision in the case of Ring v. Arizona, the U.S. Supreme Court ended the practice of having a judge, rather than a jury, decide the critical sentencing issues in a death penalty case. In its decision, the Court held that a death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury. The ruling could affect nearly 800 death sentences in nine states. (Associated Press, June 24, 2002). Read the opinion. See also U.S. Supreme Court: Ring v. Arizona and, DPIC's Press Release.

OTHER RESOURCES:

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 24; (http://capitaldefenseweekly.com/archives/020708.htm)