Two SCOTUS cases kick off this edition, as well as follow-up on Daryl Atkins ofAtkins v. Virginiafame.

The first of the two SCOTUS case isMontejo v. Louisiana.Faegre & Benson's Supreme Court UpdateinterpretsMontejothusly:

in Michigan v. Jackson,475 U.S. 625 (1986), the Supreme Court held that, once a criminal defendant has requested counsel at an arraignment or similar proceeding, the police are forbidden to initiate any interrogation of the defendant. This case involved an attempted invocation of that rule.. . . The Supreme Court vacated the judgment and remanded for further proceedings. It first held that the state court's attempted limitation of Jackson, based on a supposed distinction between a defendant's affirmative "assertion" of his or her right to counsel and the appointment of counsel without a request, either would be unworkable in practice or would result in arbitrarily different results depending on whether state law requires counsel to be requested before one will be appointed. Instead, the Court decided to abandon the Jacksonrule entirely. It suggested that the rule had originally been intended to protect defendants against being badgered into waiving their previously asserted right to the assistance of counsel at all "critical" stages of criminal proceedings, and that there was no basis for extending it, as Montejo argued here, to preclude all waivers of those rights whether or not they had been improperly obtained. The Court noted that other decisions provide ample protection against badgering defendants to waive their rights, and principles of stare decisisdo not require retention of Jackson. The case was remanded to state court to give Montejo the opportunity to argue for exclusion of the inculpatory letter based on the other decisions that, according to the Court, made Jacksonsuperfluous.

In the other SCOTUS case,Bobby v. Bies, the Court likewise reversed. The State courts had determined, pre-Atkins, that Bies was, for purposes of mitigation, mentally retarded. Bies post-Atkinsargued successfully to the Sixth Circuit that double jeopardy barred his execution due to his retardation. The Court held that determinations of Bies mental capacity at mitigation were not necessary to the ultimate imposition of the death penalty in the pre-Atkinsadjudication. The Court reasoned that prosecutors, pre-Atkins, had little incentive to contest retardation evidence since they already had their death sentence. Post-Atkins, however, the State’s incentive to contest Bies’ mental capacity greatly changed and to give a preclusive effect to the prior determination would be unfair to the State. Giving preclusive effect to the MR finding, as the Sixth Circuit did on federal habeas corpus, without a post-Atkins state court adjudication was improper; the Ohio state courts should have the first chance to adjudicate how they want to deal with MR findings.

Turning to the lower courts, Daryl Atkins' life sentence is finally final. Although technically the Virginia Supreme Court inIn re: Commonwealth of Virginia merely held that "mandamus cannot be used to collaterally attack or vacate a final judgment entered upon the conclusion of a criminal proceeding, and prohibition cannot be used to vacate or “undo” that final judgment because that writ does not lie to undo acts already done" the reasons are far from technical. Before Mr. Atkins' second penalty-phase retrial new evidence surfaced. Specifically, attorneys for his co-defendant, William Jones, came forward with information that Jones’ version of what transpired given in preparation of Mr. Atkins original trial didn’t match the physical evidence in the case. The Commonwealth’s Attorney and her assistant, in the presence of Jones' counsel, turned off a tape recording of the interview and then coached Jones on his testimony. Upon learning of the of the coaching (or arguably subornation of perjury) Mr. Atkins' counsel moved for a life verdict in the trial court which it subsequently did. The Virginia Supreme Court inIn re: Commonwealth of Virginiaeffectively affirmed the trial court's decision to impose a life verdict.

The Ninth Circuit inRoger Mark Scott v. Schriroremands after a thorough examination of procedural default versus exhaustion. The panel holds that petitioner exhausted his IAC claims and had not defaulted them as the district court had found. The IAC claims involved failure to present mitigating evidence of brain damage, voluntariness of a confession, and sentencing mitigation. In light of the panel's holding it remanded for further proceedings on the exhausted claims.

In an unsigned order the Eighth Circuit has stayed the execution of Reginald Clemons which Missouri had scheduled for later this month apparently to permit a previously filed lethal injection appeal to continue in the normal course. In Tennessee, last Wednesday’s execution date of James A. Dellinger was stayed for what appears to be a desire to reinstate his "appeals."

In lethal injection news,Death Watchhas this highly effective post on the state of lethal injection litigation in North Carolina. Nebraska's Governor signed in late May a law replacing electrocution with lethal injection and already amotion challenging the new lethal injection protocol has been filed. Arguments wrapped up Tuesday in a civil trialchallenging Washington's lethal injectionsystem.

Elsewhere, as expected,Conn.’s governor has vetoedthat state’s death penalty repeal bill.Texas has killed Terry Hankinto mark the 200th execution under Gov. Rick Perry. The Cook County public defender's share of a fund used to cover expenses to represent people in death-penalty cases is exhausted and pds office is in theprocess of filing multiple motionsasking judges to either bar the state from seeking death or allow public defenders to withdraw.

I suspect I am not alone in wanting to know more about Judge Sotomayor .The SCOTUSBlog has "Judge Sotomayor’s completed Senate Judiciary questionnaire [ ] available for downloadhere. The transcript of her confirmation hearing for the Second Circuit is availablehereand her Judiciary questionnaire from that hearing is available in two parts:hereandhere. The transcript of her confirmation hearing for the Southern District of New York is availablehereand her Judiciary questionnaire from that hearing is available in two parts:hereandhere."

As always thanks for reading. As those who know me (if even only through social networking sites) know, I closed on a house last week and have been busy moving in, etc., thanks for bearing with us as things have been hectic here the last few months. Now that everything is settling down again I’m hoping to start longer editions & more frequent updates at the daily blog now that we aren't living in boxes. - k

Pending Executions

June

11 Jack Trawick - Ala*

18 Roland William Steele (PA)

July

1 Matthew Eric Wrinkles* (Ind)

9 Michael DeLozier* (Okla)

14 John Fautenberry* (Ohio)

14 Paul Warner Powell* (VA)

16 Kenneth Mosley* (Tex)

21 Marvallous Keene* (Ohio)

23 Roderick Newton* (Tex)

28 Junious Diggs (Penn)

30 Ralph Trent Stokes (Penn)

August

7 Kenneth Baumruk (Mo)

13 Tracy Lane Beatty (Tex)

18 Jason Getsy* (Ohio)

20 David Wood* (Tex)

Recent Executions

May

8 Thomas Ivey - SC

14 Donald Gilson - Okla

14 Willie McNair - Ala

19 Michael Lynn Riley - Tex

20 Dennis Skillcorn - Mo

June

2 Terry Hankins - Tex

3 Daniel Wilson - Ohio

Stays

June

3 James A. Dellinger -Tenn*

17 Reginald Clemons - Mo*

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

United States Supreme Court since last edition

• Jesse Jay Montejo v. Louisiana, 173 L. Ed. 2d 955; 2009 U.S. LEXIS 3973 (5/26/2009)Michigan v. Jackson,475 U.S. 625 (1986), is overruled. "Montejo should nonetheless be given an opportunity to contend that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision here changes the legal landscape."Capital murder conviction is vacated and remanded. [via the SCOTUS syllabus]
• Bobby v. Michael Bies, 2009 U.S. LEXIS 3975 (6/1/2009) "Bies [ ]was not acquitted, and determinations of his mental capacity were not necessary to the ultimate imposition of the death penalty. Moreover, even if the core issue preclusion requirements had been met, an exception to the doctrine’s application would be warranted due to the interveningAtkinsdecision. Mental retardation as a mitigator and mental retardation underAtkinsandLottare discrete legal issues. One difference is that mental retardation, urged as a mitigating factor, may instead “enhance the likelihood that [a jury will find] the aggravating factor of future dangerousness.”This reality explains why prosecutors, pre-Atkins, had little incentive to contest retardation evidence. Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law.The federal courts’ intervention in this case derailed the state-court proceeding. Recourse first to Ohio’s courts is what this Court envisioned in remitting to the States responsibility for implementingAtkins. The State acknowledges that Bies is entitled to such recourse, but rightly seeks a full and fair opportunity to contest his plea under theAtkinsandLottprecedents." [via the SCOTUS syllabus]
• Haywood v. Drown, No. 07-10374 (5/26/09) "Whatever its merits, New York’s policy of shielding correction officers from liability when sued for damages arising out of conduct performed in the scope of their employment is contrary to Congress’ judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages. 'A State may not . . . relieve congestion in its courts by declaring a whole category of federal claims to be frivolous'.”
• Abuelhawa v. United States, No 08-192 (5/26/09) "Using a telephone to make a misdemeanor drug purchase does not 'facilitat[e]' felony drug distribution in violation of §843(b). Stopping with the plain meaning of 'facilitate' here would ignore the rule that because statutes are not read as a collection of isolated phrases, '[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.'

(Initial List)Week ofJune 1, 2009– In Favor of the Accused or Condemned

• In re: Commonwealth of Virginia, 2009 Va. LEXIS 78 (VA 6/4/2009) “Mandamus cannot be used to collaterally attack or vacate a final judgment entered upon the conclusion of a criminal proceeding, and prohibition cannot be used to vacate or “undo” that final judgment because that writ does not lie to undo acts already done. Thus, the Commonwealth’s petition for a writ of mandamus seeking to compel a circuit court to vacate a final judgment in a capital murder proceeding setting aside a death sentence and imposing a term of life imprisonment pursuant to Code § 19.2-264.5, based on evidence of a Brady violation, is dismissed along with the Commonwealth’s petition for a writ of prohibition seeking to vacate that final judgment.” [Synopsis by the Clerk's Office]
• Roger Mark Scott v. Schriro, No. 05-99012 (9th Cir 6/2/2009. The 9th (per curiam -- Kozinski, Farris and Bea) holds that petitioner's IAC claims were not procedurally defaulted and were in fact exhausted. Petitioner had been convicted of being an accessory in a child murder. He raised IAC claims in his habeas focused on the failure to present mitigating evidence of brain damage, involuntariness of confession, and sentencing mitigation (including a proferred plea to second degree murder which the petitioner never read). The state court on post conviction denied an amendment to his petition on these claims because it believed amendment was barred by the procedural rules; it was not. The claims were presented then to the state supreme court. The 9th thus found that the claims had been presented, and preserved, and so no default and exhaustion took place. An evidentiary hearing was ordered, and the 9th strongly suggested that the district court consider the views of the victim's father, who did not want the death penalty for petitioner. This opinion presents an unusually clear discussion of the default and exhaustion doctrine.Congratulations to AFPDs Michael Burke and Jennifer Garcia, D. Arizona (Phoenix) for the win" [via Jon Sands @ Ninth Circuit Blog]
• Ex pate Clinton Lee Young, WR-65,137-03 (Tex Crim. App. 6/3/2009) (unpublished) Remand on claims relating to: "the prosecution's failure to produce exculpatory evidence, and the presentation of false testimony, violated applicant's constitutional rights" and "the prosecution's suppression of evidence concerning State witness A.P. Merillat violated applicant's constitutional rights."

(Initial List)Week ofJune 1, 2009– In Favor of the State or Government

• Kenneth Smith v. Mitchell, No. 05-4211 (6th Cir 6/5/2009) "In a capital habeas matter, the denial of Petitioner's petition is affirmed where: 1) the prosecutor's reference to Petitioner's lack of remorse was proper to discredit Petitioner's contradictory testimony; and 2) Petitioner did not show that counsel's failure to claim that Petitioner's confession was involuntary due to intoxication prejudiced the outcome of the suppression hearing." [via FindLaw]
• Daniel Bedford v. Collins, 2009 U.S. App. LEXIS 11960; 2009 FED App. 0201P (6th Cir. 6/4/2009) "In a capital murder matter, the denial of Petitioner's habeas petition is affirmed, where: 1) the trial court did not err in disqualifying certain jurors, because the court allowed Petitioner's lawyers to follow up with questions after initial inquiries elicited disqualifying responses; and 2) the prosecutor, in closing argument, did no more than respond to Petitioner's actual and reasonably likely contentions and tactics." [via FindLaw]
• People v. Richard Allen Davis2009 Cal. LEXIS 4707 (Ca 6/1/2009)"In a capital murder case, the trial court properly refused to suppress statements defendant made to police investigator in which he confessed to the murder. Statements were admissible under the rescue doctrine. It was objectively reasonable for investigator to believe that defendant might have information that could lead to victim's rescue." [via LexisOne] "Conviction for first degree murder and sentence of death in the case of Polly Klaas is affirmed where: 1) trial court did not abuse its discretion when it transferred the case to Santa Clara County, and properly denied defendant's motions for a second change of venue; 2) the court did not err in denying defendant's Wheeler/Batson motion regarding challenges during jury selection; 3) the court properly admitted custodial statements and confession made by defendant as they were not obtained in violation of his rights under Miranda or the Constitution; 4) trial court did not err in admitting evidence of defendant's prior bad acts as they were evidence of intent, common scheme or plan, and motive; 5) the evidence was sufficient to support defendant's conviction for attempting to commit a lewd or lascivious act and the robbery-murder special-circumstance conviction; and 6) the record did not support defendant's various other claims of evidentiary and instructional errors. Trial court did not err in its various rulings during the penalty phase, and California's death penalty law is not unconstitutional." [via FindLaw]
• Larry Hatten v. Quarterman,No. 07-70038 (5th Cir 6/4/2009) (unpublished) "In a capital habeas matter, the denial of Petitioner's petition is affirmed, where 1) there was no basis to overturn the District Court's finding that a juror did not lie on a questionnaire about his involvement with drugs; and 2) even if the shackling of Petitioner in the courtroom was erroneous, the state showed beyond a reasonable doubt that any error was not prejudicial." [via FindLaw]
• Dwight T. Eaglin v. State, No. SC06-760 (FL 6/4/2009) Relief denied on claims including: "(1) the trial court erred in precluding defense counsel from impeaching a State witness; (2) the trial court erred in refusing to admit into penalty phase evidence the videotape of an interview of a former guard trainee; (3) the jury and the trial court were not presented with available mitigation evidence and the trial court failed to consider all mitigating evidence available in the record; (4) the trial court erred in using Eaglin’s supposed lack of remorse against him in sentencing him to death; (5) the trial court erred in giving an instruction on and finding the CCP aggravator; and (6) Florida’s death penalty statute is unconstitutional."
• Maurice Lamar Floyd v. State, No. SC07-330 (FL 6/4/2009) Relief denied on claims relating to whether: "(1) trial counsel was ineffective during the investigative, guilt, and penalty phases; (2) Floyd was deprived of his due process right to develop factors in mitigation and a fair penalty phase because the court-appointed psychologist failed to conduct the appropriate tests for organic brain damage and mental illness, and trial counsel was ineffective for failing to protect the rights of Floyd in this regard; [ ] (3) Floyd is entitled to a new trial due to cumulative error;" "[4] Floyd was charged by a faulty indictment and deprived of a unanimous verdict; [5] cumulatively, the combination of procedural and substantive errors deprived Floyd of a fair trial;" and [6] ineffective assistance of appellate counsel (shackling, expert competency, child witness competency, Floyd's competency, & juror interviews).
• Brian Keith Hall v. Terrell, 2009 Ga. LEXIS 285 (Ga 6/1/2009) "A habeas corpus court erred by vacating defendant’s death sentence for the murder of a elderly victim during a robbery because he failed to show any reasonable probability that the jury would have failed to find beyond a reasonable doubt the statutory aggravating circumstance under O.C.G.A. § 17-10-30(b) that was based on depravity of mind." [via Lexisone]

Week ofMay 25, 2009– In Favor of the State or Government

• Daniel Wilson v. Strickland,2009 U.S. App. LEXIS 11386; 2009 FED App. 0386N (6th Cir. 5/28/2009) (unpublished) "A § 1983 lawsuit challenging a state's lethal injection protocol was barred by the doctrine of res judicata because the complaint raised an identical challenge to the lethal injection protocol that was raised by defendant in a previous lawsuit against the state, its governor, and others, and the prior lawsuit was resolved by a final judgment."
• Donald Palmer v. Bagley, 2009 U.S. App. LEXIS 11695; 2009 FED App. 0381N (6th Cir. 5/29/2009)(unpublished) Relief denied on issues relating to "(1) whether the trial court erred by refusing to instruct the jury on involuntary manslaughter, a lesser included offense of aggravated murder; (2) whether the trial court erroneously instructed the jury that it could convict Palmer of aggravated murder without specifically finding that he intended to kill; and (3) whether Palmer was denied a fair trial because of alleged prosecutorial misconduct arising from the prosecutor’s (a) misleading argument to the jury that the “prior calculation and design” necessary to convict him of aggravated murder could occur in ten to fifteen seconds and (b) introduction of evidence in the penalty phase that Palmer (i) failed to pay child support and (ii) sexually abused his children."
• Ex parte Michael Jerome Lewis; (In re: Michael Jerome Lewis v. State of Alabama), 2009 Ala. LEXIS 101 (ALA 5/29/2009) "The Court of Criminal Appeals properly held that a defendant who has been found guilty of a capital offense is not entitled to have the jury instructed on residual doubt during the penalty phase of the trial. Also, that court properly construed the scope of its responsibility pursuant to § 13A-5-53(b)(2)," as to the reweighing of aggravators and mitigators found by the trial court.

Week ofMay 18, 2009– In Favor of the Accused or Condemned

• Daroyce Lamont Mosley v. Quarterman, No. 07-70045 (5th Cir 5/22/2009) Remand in light ofHarbison v. Bellor detttminaion of counsel fees for services delivered during a clemency proceeding.
• John Richard Marek v. State, 2009 Fla. LEXIS 814 (FL 5/21/2009) (unpublished) Ordering stay and disqualification of postconviction trial court in light of ex parte contacts between the court's staff and the State.

Week ofMay 18, 2009– In Favor of the State or Government

• Daniel Jon Peterka v. State, 2009 Fla. LEXIS 847 (FL 5/22/2009) Successive motion for postconviction relief denied where claims raised concerned factual innocence and newly discovered evidence.
• State. v. Brian Jeffrey Dann, 2009 Ariz. LEXIS 103 (Az 5/19/2009) Relief denied on questions including whether "(1) Dann knowingly, intelligently, and voluntarily waive his right to counsel?;" (2) "Did subjecting Dann to a second trial seeking the death penalty violate the prohibition against double jeopardy?;" (3) "Did the trial court abuse its discretion by permitting the State to offer evidence not presented during the first trial in support of the F.8 aggravating circumstance?; and (4) "Did the preliminary jury instruction advising that this sentencing trial was required only because Dann was previously sentenced to death following “an unconstitutional hearing” cause fundamental error?"
• Duane E Owen v. Sec. Dep't of Corr.,2009 U.S. App. LEXIS 10484 (11th Cir 5/18/2009) "Denial of death-row prisoner's petition for habeas relief was affirmed; five of his Sixth Amendment ineffective assistance of counsel claims were procedurally barred because prisoner refused to proceed in good faith at his Fla. R. Crim. P. 3.850 evidentiary hearing; his remaining claims--those that were not procedurally defaulted--lacked merit." [via LexisOne] TheDefense Newsletter Bloghas more.
• Anthony Lamarca v. Sec. Dep't of Corr., 2009 U.S. App. LEXIS 10485 (11th Cir 5/19/2009) "Death-row prisoner was denied COA on claim that counsel was ineffective for failing to impeach State witness because prisoner did not put forth evidence to rebut state courts' determinations that counsel made strategic decision to limit his cross-examination of witness and that statements in police report would not have undermined her credibility." [via LexisOne] TheDefense Newsletter Bloghas more.
• People v. Robert Zane Curl, 2009 Cal. LEXIS 4364 (Ca 5/18/2009) "In a capital murder case, the record did not support defendant's claim that an inmate who testified that defendant told him he committed a murder perjured himself when he testified that he had not received any benefits in exchange for his testimony, much less that the prosecutor suborned perjury."
• State v. Daniel Wilson, 2009 Ohio App. LEXIS 1970 (Ohio 9th App 5/21/2009) Following a Sixth Circuit decision in his case Mr. Wilson sought to be resentenced asserting that the sole aggravating circumstance in his case had been invalidated. The application for postconviction held to be successive and not meeting an exception to the state's successive petition doctrine. Likewise, the panel holds that the "Sixth Circuit did not decide that Wilson’s sentence was void because of an invalid aggravating circumstance."

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As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. Likewise, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue:Death Penalty Information Center,Fair Trial Initiative,GRACE,Southern Center for Human Rights,Pennsylvanians for Alternatives to the Death Penalty, &Texas Defender Service. These groups were selected as each have demonstrated an ability to make a difference, usually on a shoestring budget, meaning even the smallest donation goes a long way. On each of the above links you're able to donate as little or as much as you want, or even set up a monthly automated giving amount. If there is a group you think should be added please drop us a line. - k