Leading off this edition is the Supreme Court's decision inDistrict Attorney's Office for Third Judicial Dist. v. Osborne. The Court 5-4, the Court holds that Alaska has an adequate process for granting DNA testing and hence relief can not be had in a free-standing § 1983 action to compel DNA testing. Asone commentator has noted, "[t]he majority opinion inDistrict Attorney's Office v. Osborne(08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing. What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access."

In the capital realm, two issuances of relief are noted. In the first opinion, the Third Circuit affirmed,Donald Hardcastle v. Horn, the district court's grant of habeas relief following a fairly egregious series of Batson violations at trial. In the other opinion, the Texas Court of Criminal Appeals inEx parte Timothy Cockrellgrants relief on Atkins related claim. Both decisions were unpublished.

In the news, the2009 Gruber Justice Prizewent to Bryan Stevenson for work representing death row inmates, indigent defendants and juvenile.Eighty-eight percentof the country’s top criminologists answered the question "Do Executions Lower Homicide Rates?: The Views of Leading Criminologists," by responding no it doesn't in Northwestern University School of Law’sJournal of Criminal Law and Criminology. A North Carolina trial court has ordered that David Gainey should receive anew trialbased on ineffective assistance (failure to utilize necessary experts) and various instances of prosecutorial misconduct (failure to correct perjured testimony and suppression of favorable evidence).

From elsewhere around the states, inKentucky, the Commonwealth's failure to "reveal a deal" in a capital trial has lead to a plea deal where the Accused faces just 10 years with the possibility of immediate release. Across the Ohio River, theOhio Supreme Courthas promised it will schedule all future executions at least three weeks.In New Hampshire, Gov. Lynch is expected to sign a bill to study the death penalty that establishes a 22-person commission to examine capital punishment’s effectiveness in deterring crime, to measure its “decency” and the fairness with which it’s applied, to examine its costs, and to explore alternatives.

As always thanks for reading. - k

Pending Executions

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

June

2 Terry Hankins - Tex

3 Daniel Wilson - Ohio

11 Jack Trawick - Ala

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

United States Supreme Court since last edition

• District Attorney's Office for Third Judicial Dist. v. Osborne, No. 08-6 (6/18/2009) "William Osborne sought DNA testing that could prove his innocence in a 1993 rape; the Innocence Project represents Osborne. Although the Supreme Court’s 5-4 decision did not completely deny that there is a constitutional right to DNA testing, it found that Osborne’s constitutional rights were not violated. The majority opinion, written by Chief Justice John Roberts, said Osborne’s rights were not violated because of the specific facts of his case and Alaska’s procedures for post-conviction appeals. The decision [holds] that Alaska has an adequate process for granting DNA testing to people who have been convicted. Alaska is the only state in the nation with no known case of a prisoner receiving DNA testing, either through a court order or a prosecutor’s consent. The decision also said state legislatures and state courts should determine how and when people who have been convicted of crimes can get access to DNA testing that could prove their innocence." [via the Innocence Project blog]
• United States v. Denedo, No. 08-267 (6/8/2009) "[F]ormer servicemembers may seek coram nobis review of their convictions after their appeals are final. SCOTUS finds that the ability to seek review derives from the All Writs Act and Art. 66, UCMJ and is not trumped by Art. 73 or 76. More analysis tonight from CAAFlog." [via theCAAFlogwith morehere,here, &here]
• Boyle v. United States, No. 07-1309(6/8/2009) "Defendant's Racketeer Influenced and Corrupt Organizations (RICO) Act conviction is affirmed where the District Court did not err in declining to instruct the jury that an association-in-fact enterprise must have an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages." [via FindLaw]
• Nijhawan v. Holder, No. 08-495 (6/15/2009) "Petitioner's removal from the U.S. based on his commission of an "aggravated felony" is affirmed, where the $10,000 threshold in 8 U.S.C. section 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime." [via FindLaw]
• Yeager v. United States, No 08-67 (6/18/2009) "In an appeal from the District Court's order denying Defendant's motion to dismiss his wire fraud indictment on Double Jeopardy grounds, the order is reversed where an apparent inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals' preclusive force under the Double Jeopardy Clause." [via FindLaw]

(Initial List)Week ofJune15, 2009– In Favor of the Accused or Condemned

• Donald Hardcastle v. Horn, 2009 U.S. App. LEXIS 13026 (3rd Cir 6/17/2009)(unpublished) On return from remand for an evidentiary hearing, habeas relif properly finding that six (yes six) of prosecutor's peremptory strikes violated Batson.

(Initial List)Week of June 15, 2009 – In Favor of the State or Government

• Humberto Leal Garcia v Quarterman2009 U.S. App. LEXIS 13085 (5th Cir 6/15/2009) Leal is a foreign national on death row in Texas. Post-Avenabut pre-MedellinLeal exhausted a Vienna Convention right claim and filed a habeas petition in federal court. The district court denied relief finding it did not have jurisdiction. TheLealCourt holds that the district court had jurisdiction, but that nonetheless in light ofMedellinLeal must lose.The daily blog has more.
• Ronnie Lee Gardner v. Galetka, No. 07-4104 (10th Cir 6/19/2009) "In a capital habeas matter, the denial of Petitioner's petition is affirmed where: 1) defense counsel made an objectively reasonable strategic decision in not investigating further or presenting psychological evidence at trial; and 2) a post-trial examination of the gun Petitioner used did not indicate it was faulty in any material way that would have caused it to accidentally discharge."[via FindLaw]
• People v. Joseph Avila, No. S078664 (CA 6/15/2009) "In a capital murder matter, Defendant's conviction is affirmed where: 1) because defense counsel did not request Keenan counsel, the trial court did not fail to rule on such a request; and 2) Defendant pointed to no particular characteristic of the participants in the photo lineups at issue that made the lineups impermissibly suggestive." [via FindLaw]
• People v. Earnest Edward Dykes, Jr., No. S050851 (CA 6/15/2009) In a capital murder matter, Defendant's conviction is affirmed where: 1) the trial court's credibility determinations regarding the voluntariness of Defendant's conviction were amply supported by the evidence; and 2) Defendant failed to object to the alleged bolstering of a prosecution witness's credibility." [via FindLaw]
• People v. Raymond Oscar Butler, No. S05550 (CA 6/18/2009) "Defendant's capital murder conviction is affirmed where: 1) the trial court did not abuse its discretion in finding that joining Defendant's case with an unrelated jailhouse murder charge against Defendant would create unnecessary complexity; and 2) there was no merit in Defendant's complaint that the jury would be surprised if it learned about the jailhouse killing at the penalty phase." [via FindLaw]
• Ramiro Gonzales v. State, No. AP-75,540 (Tex.Crim.App. 6/17/2009) (dissent) Relief denied on whether there existed sufficient evidence absent Appellant's confession to convict; whether future dangerousness predictions rest on sufficient scientific foundations, as well as the normal jury instructions and preservation issue claims.
• United States v. Donald Fell, 2009 U.S. App. LEXIS 13029 (2nd Cir 6/17/2009) (denial of en banc) A sharply divided court denies rehearing on the first Second Circuit direct capital appeal in decades.
• Earl Forrest v. State, No. SC89343 (Mo 6/16/2009) Postconviction appeal denied on claims relating to (1) failure to adequately investigate and present mitigating evidence including retention/usage of jurors; (2) failure to object; (3) admission of inflammatory evidence; as well as (4) challenges to both lethal injection & clemency that are turned aside as not yet ripe.

Week ofJune 8, 2009– In Favor of the Accused or Condemned

• Ex parte Timothy Cockrell, 2009 Tex. Crim. App. Unpub. LEXIS 409 (Tex. Crim. App. 6/10/2009) (unpublished) Relief granted on an Atkins claim.

Week of June 8, 2009 – In Favor of the State or Government

• Lawrence Joseph Jefferson v. Hall, No. 07-12502 (11th Cir 6/12/2009) (dissent) Panel reverses the district court’s grant of penalty phase relief. Most notable on appeal was trial counsel’s failure to investigate and present mitigation evidence.
• Ex parte Justen Grant Hall, NO. 20030D00505-34-1 (Tex. Crim. App. 6/10/2009) (unpublished)(dissent) Movant's shenanigans in attempting to either have his writ counsel removed or waiving his habeas appeals results in his forfeiting his state habeas application. Hall held time barred from filing a new petition.
• Ex parteShelton Denora Jones, 2009 Tex. Crim. App. Unpub. LEXIS ---; NO. AP-75,896 (Tex. Crim. App. 6/10/2009) (unpublished)(dissent) Relief denied, most notably, that the jury 'could not express the moral judgment that a death sentence was excessive in light of [his] intelligence, good work ethic, reliability, and trustworthiness, if they also concluded beyond a reasonable doubt that he might be dangerous in the future.' He asserts that the future-dangerousness special issue was thus 'a deficient vehicle for giving all of [his] mitigating evidence meaningful consideration as a basis for a sentence less than death.' Applicant asserts that '[a] sentencing scheme that conditions consideration of any of a defendant's constitutionally relevant mitigating evidence on jurors' willingness to disregard their oaths to render a true verdict is precisely the sort of structural error that cannot be subject to routine harmless error review.' He also argues that, between the special issues that prevented the jurors from giving their reasoned moral response to his mitigating evidence and the nullification instruction that inserted capriciousness into the proceeding, the resulting error severely and irrevocably warped the framework of the proceeding, thus resulting in error that defies harm analysis.'"

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."
• Ryan John Chronis v. Steinle, No. CV-08-0394-SA (Az 6/3/2009) "Arizona Rule of Criminal Procedure 13.5(c) allows a defendant in a capital case to request a probable cause determination for alleged aggravating circumstances. Such determinations are to be made following the procedure in Arizona Rule of Criminal Procedure 5, under which the State bears the burden of proof. The trial court erred because it did not provide a probable cause hearing and it placed the burden of proof on Chronis."

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]
• Jon Hall v. State, 2009 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 6/5/2009) " In this case, the trial court entered its judgment of conviction in 1997. The petitioner did not file his coram nobis petition until October 2007, some nine years after the expiration of the one-year limitations period for filing a coram nobis action. Thus, the coram nobis court properly concluded that the petition was untimely. There is no proof in the record of circumstances beyond the petitioner's control that prevented his timely filing of his coram nobis action. Therefore, we conclude that due process concerns do not necessitate tolling the limitations period. Furthermore, none of the issues raised by the petitioner relate to "subsequently or newly discovered evidence relating to matters which were litigated at the trial" which "may have resulted in a different judgment, had [the evidence] been presented at the trial." Tenn. Code Ann. §§ 40-26-105. Rather, the "evidence" cited in the petition relates to matters that occurred long after both his trial and his direct appeal ended. We therefore conclude that the petitioner's jurisdiction/venue claim is not proper for coram nobis relief."

If you have problem with this edition it is available athttp://capitaldefenseweekly.com/archives/090615.htmfor printing. We'd simply ask that before printing consider our environment and saving our trees.

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(where I'm currently the co-chair), &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