As happens from time to time, this edition covers two weeks, including lower courts decision from June 4, 2007 to June 18, 2007, as well as all United States Supreme Court opinions since the last edition.

By far the most important cases of the edition are a pair of decisions out of Texas,Ex Parte Cathy Lynn Henderson&Irving Davis v. State. Neither opinion would be unusually noteworthy, except for the fact that the it is the Texas Court of Criminal Appeals that granted relief. InHendersona stay is entered so that the trial court can examine the possibility that the death in Henderson's case (a small baby in her care) was an accident and not murder. InDavisthe trial court excluded testimony of “nine lay witnesses" who would have testified as to future dangerousness. lay witnesses who actually knew the appellant” and would have testified, despite expert testimony, he would not present a future danger to society.Taken together with other recent developments, it appears the Court of Criminal Appeals may be moderating from its late nineties reputation of never meeting a capital case it would not affirm.

In Georgia two favorable cases are also noted,Crystal Mae Wagner v. State andExzavious Gibson v. Head. InWagnerthe Georgia Supreme Court quashes an indictment on interlocutory appeal as the indictment "mixed the elements of malice murder and felony murder, which was a material defect." InGibsona remand is ordered to determine "whether Gibson’s conflict of interest claim is procedurally barred and, if not, whether it has merit."

The New Jersey Supreme Court inState v. Donald Loftinlooks at the legacy of lynching and its impact on capital jury trials. Specifically, one of the jurors at trial indicated to a co-worker his desire to lynch Loftin. The juror made the comment in the middle of the guilt phase. Upon learning of the problem the trial court did not adequately investigate whether the juror's predetermination of guilt unduly infected the other jurors. The failure to explore potential contamination of the others jurors, even though the juror in question was designated an alternate, means the death sentence here must be set aside.

InWilliam Kuenzel v. Allenthe Eleventh Circuit remands "for consideration of whether Kuenzel’s allegations of actual innocence overcome the procedural default of his claims. Kuenzel’s federal habeas petition had been dismissed earlier as untimely."

CapDefNetis reporting a decision we have been unable to locate, Porter v. Crosby, 6:03-cv-1465-Orl-31 KRS (M.D. Fla.). The Porter Court purportedly finds trial counsel “'did little, if any, investigation of [Porter’s] mental health issues, history of being abused as a child, and many years of military service.' Judge Presnell also concluded that trial counsel failed to advocate effectively before the jury by “mixing up or being unaware of basic facts, eliciting irrelevant testimony."

In a two-defendant death-penalty case in New Mexico (State v. Good & Dominguez) the trial court has ruled the New Mexico Capital Felony Sentencing Act (CFSA) unconstitutional based on data of the Capital Jury Project showing that about half of death-penalty case jurors pre-decide the issue of penalty before the penalty phase even begins. The Court found the CFSA unconstitutional but he did not dismiss the death penalty but rather ordered separate juries for guilt-innocence and, if necessary, penalty. Once the judge announced his ruling the district attorney withdrew its notice of intent to seek death. The opinion ishere.

In the news, the Governor of Virginia granted a reprieve to Christopher Scott Emmett until October 17, 2007. Rwanda's parliament has votedto abolish the death penalty and replace it with life without parole, a move that officials hope will clear the way for suspects in the nation's 1994 genocide to be extradited back to Rwanda for trial.Fayetteville Observerhas a fantastic editorial piece on the disparity between the punishment for prosecutorial misconduct in the Duke LaCrosse case and the Alan Gell capital murder prosecution.Scientific America’s Perspective columnlooks at lethal injection.N.C. House Republicans failedto amend a bill that adjusts laws governing the practice of medicine in the state.that would have barred the state medical board from disciplining any doctor for participating in an execution."Sample juror questionnaire libraryhave been made available at a new website calledDeliberations.Tarlton Law Library has added to its online resource collection, anActual Innocence awareness database.South Dakota has updated itslethal injection protocol. The Sixth Circuit has stayed the mandate in Richard Cooey v. Strickland pending the outcome of an appeal to the US Supreme Court seeking review in the case.

Looking ahead, the Kentucky Supreme Court inComm. v. Charles Bussellfinds counsel failed to investigate readily available exculpatory and mitigatory evidence, as well as that the prosecution hid evidence relating to an alternate suspect. The New Jersey Supreme Court inState v. Porfirio Jimenezholds that for purposes of Atkins v. Virginia a jury must be unanimous in its finding the Defendant is not mentally retarded if the matter is to be tried capitally, anything else and death may not be imposed. A split panel of the Seventh Circuit grants relief inChristopher Stevens v. McBride, holding counsel provided deficient penalty phase representation as “the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth.” The Ninth Circuit holds inGeorge Lopez v Shrirothe district court erred in finding "Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence [were] unexhausted."The South Carolina Supreme Court inlthough Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review. The Montana Supreme Court inMiller & Lebrum v. 18th Judicial DistrictIn an unpublished opinion the Third Circuit upheld the grant of habeas relief in William Wallace v. Price as the state trial court improperly excluded evidence pointing to another person as the triggerman in the crime for which Wallace was convicted.

As always thanks for reading. - k

Reprieves / Stays of Serious Dates

13 Christopher Emmett (VA)

13 Cathy Henderson (Texas)

Recent Executions

15 Michael Lambert (Indiana)

20 Lionell Rodriguez (Texas)

21 Gilberto Reyes (Texas)

22 Calvin Shuler (S.C.)

Pending Executions

June

26 Patrick Knight (Texas)

26 Jimmy Dale Bland (Oklahoma)

26 John Hightower (Georgia)

July

9-13 Elijah Page (S.D. -vol)

10 Rolando Ruiz (Texas)

24 Lonnie Johnson (Texas)

26 Darrell Grayson (Alabama)

More Execution information*

SCOTUS

(Since the last edition)

• Fry v. Pliler, No. 06-5247 (6/11/2007) A federal court sitting in habeas must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht’s “substantial and injurious effect” standard,whether or not the state appellate court recognized the error and reviewed it for harmlessness under Chapman v. California's "harmless beyond a reasonable doubt.”
• Bowles v. Russell, No. 06-5306 (6/14/2007) Petitioner relied upon the trial court's calculations for the deadline to appeal. The trial court was wrong and Bowles filed a few days late. Unfortunately for Bowles, the Court holds that Congress, by including the details of the rules in statutory form, automatically codified the filing deadlines into jurisdictional requirements. [SCOTUSBloghas more].
• Brendlin v. California, No 06-8120 (6/18/2007) When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and thus may challenge the stop's constitutionality. [John Wesley Hallhas more]
• Rita v. United States, No. 06-5754 (6/21/2007) A court of appeals may apply a presumption of reasonableness to a district court sentence within the United States Sentencing Guidelines. [Doug Bermanhas more thoughts on how to litigate these claims.]

Week of June 4, 2007 --In Favor of Life or Liberty

• State v. Donald Loftin, 2007 N.J. LEXIS 605 (NJ 06/05/2007) One of the jurors prejudged the case and the trial court did not properly investigate whether the juror's predetermination of guilt unduly infected the other jurors. Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance. [more here] [Congrats to counsel: David B. Glazer and Michele A. Adubato]

Week ofJune 4,2007 --In Favor of Death

• Eric Nenno v. Quarterman, 2007 U.S. App. LEXIS 13146 (5th Cir 6/6/2007) COA denied on claims relating to: "1. Whether a polygraph examiner's deliberate silence after he scored Nenno's polygraph -- a tactic he knew was likely to evoke an incriminating statement from an accused who had just taken a polygraph -- amounted to a "subtle form of psychological persuasion," n1 which overcame Nenno's reluctance to admit involvement in the capital murder and made his confessions thereafter involuntary;" and "2. Whether the Constitution requires that the states provide condemned prisoners with counsel who provide effective assistance in state habeas proceedings?"
• Michael Taylor v. Crawford, 2007 U.S. App. LEXIS 12851 (8th Cir. 6/4/2007) "Mr. Taylor has not adduced evidence at any stage of this litigation that carries his burden of proving a constitutional violation. We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an Eighth Amendment violation or that any state actor was deliberately indifferent to the Constitution’s requirement that no unnecessary pain be wantonly inflicted during the execution process."
• People v. Charles Stevens, 2007 Cal. LEXIS 5492 (CA 6/4/2007) Relief denied on claims including: race based strikes; sufficiency of the lying-in-wait special-circumstance; and (for lack of a better term) prosecutorial misconduct when the mother of one of the victims kissed a photograph of the victim as she left the stand.
• Michael Bell v. McDonough, 2007 Fla. LEXIS 1045 (FL 6/7/2007) From Findlaw: "Denial of defendant's motion to vacate his two convictions of first-degree murder and two sentences of death and a petition for a writ of habeas corpus is affirmed and denied, respectively, over procedurally barred claims and claims that: 1) trial counsel was ineffective for numerous reasons; 2) there was cumulative error; 3) appellate counsel was ineffective for various reasons; 4) petitioner's death sentence is unconstitutional under Apprendi; and 5) the trial court gave unconstitutional jury instructions."
• Comm. v. Dewitt Crawley, 2007 Pa. LEXIS 1193 (PA 5/31/2007) PCRA appeal denied as Crawley failed to "establish that he was mentally retarded by a preponderance of the evidence" and his request for the state supreme court to revise its prior holdings on the appropriate standard for Atkins relief is denied.
• Comm. v. Derrick Ragan, 2007 Pa. LEXIS 1191 (PA 5/31/2007) . PCRA petition denied as newly discovered evidence held meritless.
• State v. Roger Todd, 2007 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App 5/31/2007) "Roger Todd, appeals from a trial court order denying funding for his psychological expert. After a thorough review of the record and applicable law, we conclude that Tennessee Rule of Appellate Procedure 3(b) does not provide a proper mechanism by which this Court may address an appeal of an order denying expert funding. Accordingly, the Defendant's appeal is dismissed."
• Victor Saldano v. State, 2007 Tex. Crim. App. LEXIS 698 (Tex. Crim. App. 6/6/2007) Relief denied, following penalty phase retrial, on claims including: whether the future-dangerousness special issue is unconstitutionally vague; whether, a veniremember was challengeable for cause simply because he would have placed the burden of proof of mitigation on the defense; and admission of autopsy photographs.
• Teresa Lewis v. Warden, 2007 Va. LEXIS 95 (VA 6/8/2007) "The issues addressed by the Supreme Court of Virginia involve trial counsel's conduct related to their decisions concerning the investigation and presentation of mitigation evidence for Lewis' sentencing hearing, and their advice to Lewis that she plead guilty. Upon review of the evidence in mitigation and aggravation of the offenses, the Supreme Court concludes that Lewis failed to demonstrate that her defense was prejudiced by trial counsel's failure to investigate and present the available mitigation evidence introduced at the habeas hearing. The Supreme Court further holds that the record does not demonstrate that, but for trial counsel's alleged failures, there is a reasonable probability that the result of the proceedings would have been different." [from the Synopses of Opinions of the Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]
• Ricky Gray v. Comm, 2007 Va. LEXIS 94 (VA 6/8/2007) Relief denied on "the following issues: (1) the sentences of death were imposed under the influence of passion, prejudice, and other arbitrary factors; (2) the sentences of death are excessive or disproportionate to the penalty imposed in similar cases; (3) the circuit court erred by failing to declare Code § 18.2-31(12) unconstitutional as violating his right to equal protection under the law; and (4) the Virginia death penalty statutes otherwise violate the Virginia and United States Constitutions. Gray's first two assignments of error tracked nearly verbatim the mandatory review of a sentence of death required by Code § 17.1-313(C). The Supreme Court conducted the mandatory review and found no error." [from the Synopses of Opinions of the Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]
• Denard Manns v. Quarterman, 2007 U.S. App. LEXIS 12923 (5th Cir 6/4/23007) (unpublished) Relief denied on claims relating to who bares the burden on the mitigation special question under both Penry II and Apprendi / Ring, as well as the trial court erred in not requiring the jury to unanimously agree whether the offense elevating murder to capital murder was robbery, kidnapping, or aggravated sexual assault and "appellate counsel provided constitutionally deficient assistance by failing to raise on direct appeal the issue of the lack of juror unanimity as to which enumerated offense elevated murder to capital murder." Oddly this is an unpublished opinion yet drew a "specially concurring" opinion from Judge Emilio Garza on the juror unanimity argument.

Week of June 11, 2007 --In Favor of Life or Liberty

• Ex Parte Cathy Lynn Henderson, 2007 Tex. Crim. App. LEXIS 769 (Tex. Crim. App. 6/11/2007) Trial judge ordered to examine the possibility that the death for which Henderson was convicted was due to an accident and not murder.
• Irving Davis v. State,2007 Tex. Crim. App. LEXIS 808 (Tex. Crim. App. 6/13/2007) The trial court excluded the testimony of “nine lay witnesses lay witnesses who actually knew the appellant” and would have testified, despite expert testimony, he would not present a future danger to society. The exclusion held not to be harmless.Majority/dissent. [Congrats to counsel, Matthew Dekoatz.]
• Crystal Mae Wagner v. State, 2007 Ga. LEXIS 428 (Ga 6/11/2007) Interlocutory appeal granted in part. The Georgia Supreme Court's summary notes that the trial our "that the indictment mixed the elements of malice murder and felony murder, which was a material defect," and ruled that to the extent Bailey v. State, 280 Ga. 884 (635 SE2d 137) (2006) “can be construed to hold that a material defect that is not prejudicial to the defendant does not require the quashing of a defective count of an indictment, it is disapproved.”"
• Exzavious Gibson v. Head,2007 Ga. LEXIS 431 (Ga 6/11/2007) Remand ordered "the habeas court will again consider, in a manner consistent with this opinion, whether Gibson’s conflict of interest claim is procedurally barred and, if not, whether it has merit." The Georgia Supreme Court's summary notes that the trial court "erred in holding that Gibson’s claim that his trial counsel had a conflict of interest because he was a Special Assistant Attorney General at the time he represented Gibson was procedurally barred because trial counsel’s employment with the Attorney General was a matter of public record. The Supreme Court held that the attorney was under an affirmative duty to disclose the potential conflict and thus Gibson was entitled to presume that the potential conflict did not exist. The Court also held that a claim that counsel had a conflict of interest is a constitutional claim cognizable in habeas. Thus the Court reversed in part and remanded to the habeas court for a determination of whether Gibson’s claim was procedurally barred by his knowledge at the time he filed his first habeas petition of his counsel’s employment with the Attorney General, and if not, whether the claim has merit."
• William Kuenzel v. Allen, 2007 U.S. App. LEXIS 13805 (11th Cir 6/13/2007)"Remanding to the district court for consideration of whether Kuenzel’s allegations of actual innocence overcome the procedural default of his claims. Kuenzel’s federal habeas petition had been dismissed earlier as untimely. The Eleventh Circuit reversed, holding that the untimeliness of the state post-conviction relief petition did not by itself render that petition improperly filed for purposes of tolling the federal statute of limitations. On remand, the district court found that Pace v. DiGuigliemo, 125 S.Ct. 1807 (2005) had effectively overruled Eleventh Circuit precedent on this issue. The panel here noted that another panel has found that Pace did not overrule the Eleventh Circuit’s decision. See Siebert v. Allen, 480 F.3d 1089, 1090 (11th Cir. 2007)."
• Richard Cooey v. Strickland, No. 05-4057 (6th Cir 6/13/2007 ) Mandate stayed in theOhio lethal injection protocol challenge. The mandate is stayed pending the outcome of an appeal to the US Supreme Court seeking review in the case. They stay of the mandate means no executions are likely in Ohio until at least mid-fall.

Week ofJune 11,2007 --In Favor of Death

• Michael Lambert v. Buss, 2007 U.S. App. LEXIS 13704 (7th Cir 6/12/2007) Motion to recall mandate denied, most notably to await the outcome of Panetti v. Quarterman.
• Michael Lambert v. Buss, 2007 U.S. App. LEXIS 14512 (7th Cir 6/14/2007) Relief denied on lethal injection challenge in a memorandum opinion.
• Jimmy Dill v. Allen, 2007 U.S. App. LEXIS 13815 (11th Cir 6/13/2007) Relief denied on "whether petitioner’s trial counsel were constitutionally ineffective in failing to uncover and present mitigating evidence during the penalty phase of petitioner’s trial" and "whether counsel were constitutionally ineffective in failing to develop and present evidence that the shooting was not the cause of [the victim's] death.
• James Belcher v. State, 2007 Fla. LEXIS 1050 (FL 6/14/2007) Relief denied on claims including: "1) failure to object to State’s voir dire comment misstating the State’s burden of proof and misstating Belcher’s presumption of innocence; (2) allowing comments denigrating the role of the jury; (3) failure to object to and request a curative instruction to the State’s voir dire comment which failed to distinguish Belcher’s lesser burden of proof to establish mitigating circumstances; (4) failure to object to and request a curative instruction to the State’s voir dire comment indicating that Belcher had the burden of proving that the mitigating circumstances must outweigh the aggravating circumstances, and not vice versa; (5) failure to object to and request a curative instruction to the State’s comments indicating that a killing done instantly after deciding to kill is premeditated, first-degree murder; (6) failure to object to and request a curative instruction to the State’s voir dire comment suggesting that the State did not have to prove intent for first-degree, premeditated murder; (7) conceding that the victim suffered a sexual battery, the predicate offense needed for a felony first-degree murder conviction in the subject case; (8) allowing impermissible appeals to the emotions and sympathy of the jurors; (9) failure to use a defense gynecologist to counter the State’s expert’s opinion that the physical evidence in the case evidenced a forcible, sexual battery; (10) failure to object to nonstatutory aggravating circumstances in the form of testimony about the nutritious food, diversions, risk of escape, and taxpayer expense incurred by prisoners in prison; and (11) failure to call certain witnesses to testify at the penalty phase.. . . (12) Ring v. Arizona, Schriro v. Summerlin, and Apprendi v. New Jersey, require that aggravating circumstances be charged in the indictment and found by the jury, and that the jury’s death recommendation be unanimous; (13) a Brady v. Maryland, violation regarding the State’s failure to disclose the mishandling of DNA-related items at crime labs; and (14) cumulative errors of defense counsel."
• John Allen Muhammad v . Warden, 2007 Va. LEXIS 97 (Va 6/12/2007) Relief denied on claims including: Brady, right to counsel, and that he received ineffective assistance of counsel.

(Advance Sheet for the Week of June 18, 2007)In Favor of Life or Liberty

• Comm. v. Charles Bussell, 2007 Ky. LEXIS 133 (6/21/2007) Relief granted on counsel's failure to investigate, prepare & present readily available exculpatory and mitigatory evidence, as well as the prosecution's failure to produce evidence that another person, and not Bussell, committed the crimes for which Appellant was convicted. [Congrats go out to Kentucky defenders, Susan J. Martin; David Hare Harshaw, III, & Theodore S. Shouse]
• State v. Porfirio Jimenez, 2007 N.J. LEXIS 700 (NJ 6/18/2007) For purposes of making a Mental Retardation determination under Atkins v. Virginia: (A) a jury must be unanimous in its finding the Defendant is not mentally retarded if the matter is to be tried capitally, and (B) anything less than unanimous jury (that is at least one juror believing the defendant is mentally retarded) means a sentence less than death must be imposed. [Congrats go out to New Jersey defenders Stephen Kirsch, Joseph E. Krakora, and Susan Remis Silver]
• Christopher Stevens v. McBride, 2007 U.S. App LEXIS ----- (7th Cir 6/18/2007) A divided three-judgeSeventh Circuitpanel vacates this Indiana death sentence imposed on “an emotionally disturbed young man who had been abused and raped as a child” where “the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth.” The vote in favor of setting aside the death sentence was 2-1. One of the judges in the majority on that issue would have also set aside the habeas petitioner’s murder conviction due to ineffective assistance of counsel, but neither of the other two judges agreed on that issue. [Congrats to counsel]
• George Lopez v Shriro, 2007 U.S. App. LEXIS 14470 (9th Cir 6/20/2007) “[T]he district court erred by determining that Lopez’s ineffective assistance of counsel claim for failure to investigate and present mitigating evidence was unexhausted.” [Congrats go out to counsel Cary Sandman, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, Arizona]
• State v James Earl Reed, No. 26345 (S.C. 6/18/2007) Although Petitioner is competent, he has not made a knowing and intelligent waiver of his right to appellate review.[Congrats go out to counsel: Teresa L. Norris, of Blume, Weyble & Norris]
• Miller & Lebrum v. 18th Judicial DistrictProsecutor failed to file a Notice of intent to seek the death penalty within 60 days after arraignment, a deadline prescribed by a Montana Supreme Court Rule. As the Court noted,(link includes access to the briefs of the parties). [Congrats go out to counsel: Al Avignone & Lisa Banick (both of Garrity, Avignone & Banick), as well as Randi Hood & Peter Ohman (both public defenders from Bozeman, Mt)].
• William Wallace v. Price, 2007 U.S. App. LEXIS 14326 (3rd Cir 6/18/2007) (unpublished) Relief granted as the trial court improperly excluded statement of an alleged co-conspirator asserting that Wallace was not the triggerman for which he was convicted and sentenced to death.

(Advance Sheet for the Week ofJune 18,2007)In Favor of Death

• Cone v. Ricky Bell, 2007 U.S. App. LEXIS 14362 6th Cir. 6/19/2007) Panel splits 2-1. Relief denied on claims "(1) that the jury’s improper consideration of the HAC and “great risk of death” aggravating factors at sentencing has not been cured and so he deserves a new sentencing hearing; and (2) that we should revisit our first decision’s holding that Cone’s Brady claims are procedurally defaulted, because the Supreme Court has since decided Banks v. Dretke."
• State v. Cory Morris, 2007 Ariz. LEXIS 65 (AZ 6/18/2007) Relief denied on claims relating to: "that the State presented insufficient evidence of the corpus delicti for the deaths of Codman and Davis;" "that prescreening prospective jurors to determine which ones could serve for the length of the trial violated his right to be present at all stages of the criminal proceeding against him;" "that the prosecutor engaged in misconduct;" and "that the trial court abused its discretion in admitting excessively gruesome photographs."
• People v. Steven Bonilla, 2007 Cal. LEXIS 6394 (CA 6/18/2007) Relief denied on claims including (1) sufficiency of evidence of the lying-in-wait special circumstance; (2) Wheeler/Batson error as the People all prospective jurors who were Hispanic women and 67 percent of its strikes on women; (3) sleeping jurors; and (4) photographs of the victim's grave site and mummified remains. The actual killer in this pay for hire homicide cooperated with the State and received just 3 years.
• James Reed .v. Ozmint, 2007 S.C. LEXIS 254 (S.C. 6/18/2008) Relief denied on claims "the trial judge erred in (1) failing to disqualify the Tenth Judicial Circuit Solicitor's Office and (2) refusing to dismiss a juror."
• Ronnie Williams v. State, 2007 Fla. LEXIS 1106 (FL 6/21/2007) Findlaw notes that relief is denied on claims relating to "1) admission of out-of-court statements made by the victim during a 911 call, to an officer, and while in the intensive care unit of the hospital; 2) the alleged departure of the trial court from a neutral stance; 3) jury access to a transcript of a 911 call that was prepared by the state; 4) admission of evidence of the victim's pregnancy; 5) submission of a felony murder case with sexual battery or attempted sexual battery as the underlying felony; 6) jury instruction on the aggravating circumstance that the murder occurred during a sexual battery or an attempted sexual battery; 7) premeditation; 8) improper constructive amendment of the indictment; 9) the presumption of innocence; 10) the unanimity of the verdict; 11) the weighing of aggravating and mitigating factors; 12) a failure to make the required findings for imposition of the death penalty; 13) the use of defendant's! conviction for indecent assault as a prior violent felony aggravator; 14) the heinous, atrocious, or cruel (HAC) aggravator; 15) the cold, calculated, and premeditated (CCP) aggravator; 16) the proportionality of the death sentence; and 17) the constitutionality of the death penalty."
• Quawn Franklin v. State, 2007 Fla. LEXIS 1107 (FL 6/21/2007)Relief denied on "claims that (1) the admission of hearsay statements relating to his prior violent felony convictions during the penalty phase violated his constitutional right to confront witnesses in light of the United States Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36 (2004); (2) the trial court erred in admitting the objected-to portions of Franklin’s taped interview with the newspaper reporter; (3) the guilt phase admission of hearsay statements made by the victim also constituted a Crawford violation; (4) the trial court erred by refusing to accept Franklin’s stipulation to his prior violent felony convictions in lieu of testimony regarding the crimes; (5) improper victim impact evidence was presented to the jury; (6) the CCP aggravating factor was not properly found; (7) the pecuniary gain aggravating factor was not properly found; and (8) Florida’s capital sentencing statute is facially unconstitutional under Ring because the judge rather than the jury determines the sentence to be imposed.

Noncapital of note:

• State v. Barbara Oakly, et. al. , 2007 Tex. LEXIS 525 (Tex 6/8/2007) Examination of Texas's compensation statute for those wrongfully convicted.

Selected Excerpts from, & Commentary on, this Edition's Cases

[Note formatting may be off below this point.]

• Ex Parte Cathy Lynn Henderson, 2007 Tex. Crim. App. LEXIS 769 (Tex. Crim. App. 6/11/2007) Trial judge ordered to examine the possibility that the death for which Henderson was convicted was due to an accident and not murder.

On June 11, 2007, in a per curiam opinion, the Texas Court of Criminal Appeals granted a stay of execution to Cathy Henderson and remanded the case to the lower court for consideration of her subsequent application for writ of habeas corpus. Ex Parte Henderson, ___ S.W.3d ___, 2007 WL 1673130 (Tex. Crim. App. June 11, 2007). Henderson was sentenced to death for the murder of a child she was baby sitting. The defense at trial was that the death was accidental. A highly experienced medical examiner testified that it was impossible for the child to have received the injuries that he suffered as a result of being dropped as Henderson claimed. In the subsequent habeas application, Henderson alleged that newly available evidence shows that: (1) she is innocent of capital murder; (2) but for constitutional errors she would not have been found guilty; and (3) she is no longer death eligible. In support of these claims, Henderson submitted significant new scientific research along with affidavits and reports from several scientists. The scientists explained that recent advances in the area of biomechanics and physics suggest that it is possible that the child’s head injuries were caused by an accidental short-distance fall. Henderson also presented an affidavit from the medical examiner essentially recanting his trial testimony. He stated: “Based on the physical evidence in the case, I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh´s injuries resulted from an intentional act or an accidental fall. In fact, had the new scientific information been available to me in 1995, I would not have been able to testify the way I did about the degree of force needed to cause Brandon Baugh´s head injury.” The court remanded to the lower court for further consideration of Henderson’s first two claims and dismissed the third because it was not legally cognizable under the relevant statute. Judge Meyers did not participate. Judge Price filed a concurring statement. Presiding Judge Keller filed a dissenting opinion which was joined by Judge Hervey. Judge Keasler filed a dissenting statement.

• William Kuenzel v. Allen, 2007 U.S. App. LEXIS 13805 (11th Cir 6/13/2007)"Remanding to the district court for consideration of whether Kuenzel’s allegations of actual innocence overcome the procedural default of his claims. Kuenzel’s federal habeas petition had been dismissed earlier as untimely. The Eleventh Circuit reversed, holding that the untimeliness of the state post-conviction relief petition did not by itself render that petition improperly filed for purposes of tolling the federal statute of limitations. On remand, the district court found that Pace v. DiGuigliemo, 125 S.Ct. 1807 (2005) had effectively overruled Eleventh Circuit precedent on this issue. The panel here noted that another panel has found that Pace did not overrule the Eleventh Circuit’s decision. See Siebert v. Allen, 480 F.3d 1089, 1090 (11th Cir. 2007)." CapDefNet notes:

On June 13, 2007, the Eleventh Circuit (Edmondson, Anderson and Dubina) issued a per curiam opinion in Kuenzel v. Allen, ___ F.3d ___, 2007 WL 1695110 (11th Cir. June 13, 2007), remanding to the district court for consideration of whether Kuenzel’s allegations of actual innocence overcome the procedural default of his claims. Kuenzel’s federal habeas petition had been dismissed earlier as untimely. The Eleventh Circuit reversed, holding that the untimeliness of the state post-conviction relief petition did not by itself render that petition improperly filed for purposes of tolling the federal statute of limitations. On remand, the district court found that Pace v. DiGuigliemo, 125 S.Ct. 1807 (2005) had effectively overruled Eleventh Circuit precedent on this issue. The panel here noted that another panel has found that Pace did not overrule the Eleventh Circuit’s decision. See Siebert v. Allen, 480 F.3d 1089, 1090 (11th Cir. 2007).

• State v. Donald Loftin, 2007 N.J. LEXIS 605 (NJ 06/05/2007) One of the jurors prejudged the case and the trial court did not properly investigate whether the juror's predetermination of guilt unduly infected the other jurors. Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance. [more here] [Congrats to counsel: David B. Glazer and Michele A. Adubato]

The New Jersey Supreme Court in State v. Donald Loftin(No. A-78-05) grants relief on jury related issues. The facts at issue are essentially one of the jurors prejudged the case. Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance.

The germane facts, from the opinion note:

Early in the State’s presentation, Juror No. 4, a white juror, expressed to at least one of his African-American co-workers a desire to hang by a strong rope defendant, who also was African-American. We do not know whether his comments were intended metaphorically or humorously. Certainly, Juror No. 4’s African-American co-workers did not consider his remarks to be a laughing matter. Perhaps that is because the language of lynching when applied to a black defendant has a decided racial undertone that evokes an era of vigilante and mindless mob justice that reigned during a dark period in American history.

After the incident the trial court agreed to make Juror No. 4 an alternate. What the trial court did not do is investigate whether the juror’s desire to lynch Loftin was expressed to any of the other jurors.

In light of this juror’s admission to having uttered words co-workers indicating that he had prejudged the case and harbored a racial bias, it was not enough for the trial court to accept the juror’s after-the-fact explanation that he still could be fair. The juror claimed that his damning and racially insensitive statements were intended to stop his African-American co-workers from asking further questions about the case. We do not find that that explanation dissipated the serious doubts raised about the juror’s impartiality. The juror’s conduct alone undermined any trust that he could perform his duties in accordance with his oath.

Although a new trial is ordered, the Loftin Court also addresses the failure of counsel to go with his client to a presentence interview on an unrelated charge. The client made potentially damaging statements. Finding that trial counsel was ineffective, the Loftin Court nonetheless concludes the report of that presentence interview will be admissible at the penalty phase on retrial. Note, however, the Court doesn’t address the issue of the admissibility of the statement under Estelle v. Smith and whether Miranda warnings were issued to Loftin prior to the unrelated presentence interview.