Two Supreme Court decisions tower over this edition. The Supreme Court rendered potentially the single most important decision in a quarter of a century relating to capital punishment inAtkins v. Virginiaon Thursday.Atkinseffectively bars execution of the mentally retarded. The language of the Court's decision, however, is not tightly drawn to just the issue of mental retardation but was very sweeping and seemed to lay down the gauntlet for additional "per se" challenges. Where the Court may lead next, whether it is just to the issue of juvenile executions (diminished capacity & the rarity of such executions) or as far as Texas's Special Questions Procedure ("The practice [ ] has become truly unusual, and it is fair to say that a national consensus has developed against it.") is an issue for brighter minds & another day to contemplate. What is clear fromAtkins, however, that it is the work of thousands of activists who worked tirelessly to get mental retardation bans passed in the various state houses around the country that carry much, if not most, of the credit.

Earlier in the week in a per curiam the Court remanded a Third Circuit grant of penalty phase relief on jury instructions in a case originating from Pennsylvania,Horn v. Banks. The Court inBanksremanded on the issue of the applicability of Teague v. Lane to the Mills v. Maryland unanimity requirement. Answering the question whether Teague survives the AEDPA the Court answers that it does and the Third Circuit erred by not considering Teague prior to granting relief on Mills. The Court left open the possibility that Banks could still win below, however, that chance appears today to be much slimmer than even a week ago.

The third case earning a hot list slot this week isBell v. Virginia. InBellthe Virginia Supreme Court, in denying relief, examines several currently hot issues, including Vienna Convention, right to an expert witness to address conditions relating to the future dangerous question and the meaning of the term "life without parole."

Several non capital cases were also decided this week by the Supreme Court. InCarey v. Saffold, the Court took a much anticipated move towards defining what "pending" consists of when it comes to the AEDPA & the various relevant state post-conviction &/or post-trial motion & appeal. InUnited States v. Drayton a split Court held the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

Last week's of other note dealt with the pending execution of Wallace Fugate. Mr. Fugate has received a stay from a state trial level court on the grounds that the pardon's board had an unfilled seat. The court held, according to wire service reports, that before Mr. Fugate's pardon application could be evaluated and, assuming denial, an execution ensue, the empty seat would need to be filled.

In the "Focus" section this week isCapital Defense Network's "Current Development's & Recent Cases." The Capdefnet.org site is the single best site on the net for death penalty defense at the federal level and if you haven't visited that site yet, you must.

The following update to the training schedule is noted for early July:

The Washington Death Penalty Assistance Center will be holding a training session in Yakima, Washington on July 11 and 12, 2002, at the Doubletree Hotel, 1507 North First Street. For further information, please contact Mark Larranaga at (206) 447-3900, Est. 774.

Finally, the long overdue update to the Capital Defense Weekly site (capitaldefenseweekly.com) is underway with the main page's overhaul completed and the remaining pages to follow in the next few weeks. Visit, drop a note/make a call, & feel free to criticize, as comments & suggestions are always encouraged as to how to improve the site and weekly.

The weekly will run a very abbreviated edition next week (if it runs at all), my apologies in advance.

Execution Information

Since the last edition there have been no executions:

Recently scheduled serious dates that have been stayed :

June

18 Wallace Fugate Georgia (unfilled seat on pardons board)

The following executions dates for this summer are considered serious:*

June

25 Robert Coulson Texas

25 David J. Brown Oklahoma

26 Jeffrey Williams Texas

27 Gary Etheridge Texas

July

10 Jose Briseno Texas

23 Randall Cannon Oklahoma

August

8 T.J. Jones Texas---juvenile

14 Javier Medina Texas ---- for. natl.

28 Toronto Patterson Texas---juvenile

HOT LIST

Atkins v. Virginia, --- US --- (6/20/2002) Executing the mental retarded is constitutionally impermissible.

The Eighth Amendment succinctly prohibits “excessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U.S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 997—998 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009—1011 (White, J., dissenting).7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U.S. 660, 666—667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U.S. 86 (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100—101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin, 501 U.S., at 1000 (quoting Rummel v. Estelle, 445 U. S 263, 274—275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U.S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U.S. 584, 593—596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U.S. 782, 789—793 (1982). In Coker, we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U.S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund, 458 U.S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U.S., at 597. For example, in Enmund, we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U.S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker, 433 U.S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia8 apparently led to the enactment of the first state statute prohibiting such executions.9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.”10 In 1989, Maryland enacted a similar prohibition.11 It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U.S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994.12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded.13 Nebraska followed suit in 1998.14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States–South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina–joined the procession.15 The Texas Legislature unanimously adopted a similar bill,16 and bills have passed at least one house in other States, including Virginia and Nevada.17

It is not so much the number of these States that is significant, but the consistency of the direction of change.18 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. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry.20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.21

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U.S. 399, 405, 416—417 (1986).22

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they 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.23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U.S. 153, 183 (1976), identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U.S., at 798.

With respect to retribution–the interest in seeing that the offender gets his “just deserts”–the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U.S. 420 (1980), we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If 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. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence–the interest in preventing capital crimes by prospective offenders–“it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U.S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U.S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable–for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses–that also 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. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions,25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, 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. 492 U.S., at 323—325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U.S., at 405.

Horn v. Banks, --- US --- (6/17/2002) The Teague analysis requirement survives the AEDPA & is implicated by the Supreme Court's decision in Mills concerning unanimity instructions. The Court below should have undertaken such a review prior to granting relief.

The Court of Appeals for the Third Circuit granted respondent federal habeas corpus relief from his death sentence. 271 F.3d 527 (2001). Applying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) standard of review,1 the Court of Appeals concluded that the Pennsylvania Supreme Court had unreasonably applied federal law in evaluating respondent’s claim that his penalty phase jury instructions and verdict forms were improper under Mills v. Maryland, 486 U.S. 367 (1988). The Court of Appeals found it unnecessary to evaluate whether Mills applies retroactively to cases on habeas review per Teague v. Lane, 489 U.S. 288 (1989), because the Pennsylvania Supreme Court had not ruled on retroactivity. 271 F.3d, at 541—543. In avoiding the Teague issue, the Court of Appeals directly contravened Caspari v. Bohlen, 510 U.S. 383 (1994), in which we held that federal courts must address the Teague question when it is properly argued by the government. We thus grant the petition for a writ of certiorari and reverse the Court of Appeals’ determination that a Teague analysis was unnecessary.2

Respondent, George Banks, was convicted of 12 counts of first-degree murder stemming from a series of shootings on September 25, 1982. During the penalty phase of his trial, the jury was instructed, in part:

“The sentence you impose will depend upon your findings concerning aggravating and mitigating circumstances. The Crime[s] Code in this Commonwealth provides that the verdict must be a sentence of death 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.” Commonwealth v. Banks, 540 Pa. 143, 150, 656 A. 2d 467, 470 (1995).

In relevant part, the verdict form required the jury to check a box indicating that “[w]e the jury have found unanimously” either “[a]t least one aggravating circumstance and no mitigating circumstances,” or “[o]ne or more aggravating circumstances which outweigh any mitigating circumstance or circumstances.” 271 F.3d, at 549—550. The jury marked the latter box, and also checked two other boxes indicating the aggravating circumstance (multiple offenses punishable by at least life in prison) and mitigating circumstance (extreme mental or emotional disturbance) that it had found. Respondent was sentenced to death on each count of first-degree murder.

After respondent’s direct appeal was denied, we decided Mills, in which we held that the Constitution prohibits a state from requiring jurors unanimously to agree that a particular mitigating circumstance exists before they are permitted to consider that circumstance in their sentencing determination. 486 U.S., at 374. Subsequently, in state postconviction proceedings, respondent raised a Mills challenge to the jury instructions and verdict forms in his case, arguing that they improperly “suggested to the jury that its findings as to mitigating circumstances must be unanimous.” 450 Pa., at 149, 656 A. 2d, at 470. The Pennsylvania Supreme Court rejected his claim: “[B]oth the verbal instructions given by the court as well as the instructions printed on the verdict slips were correct and not impermissibly suggestive of a unanimity requirement with respect to mitigating circumstances.” Id., at 153, 656 A. 2d, at 471.

Respondent petitioned for federal habeas relief, which the United States District Court for the Middle District of Pennsylvania denied. 63 F. Supp. 2d 525 (1999). The District Court rejected respondent’s Mills claim on the merits, applying the AEDPA standard of review articulated in 28 U.S.C. § 2254(d): “Supreme Court precedent … did not require an outcome contrary to that reached by the state courts.” 63 F. Supp. 2d, at 544. Because the court found the AEDPA standard of review dispositive, it did “not address the parties’ arguments concerning the retroactivity of Mills.” Ibid.

The Court of Appeals for the Third Circuit reversed the District Court in part, granting respondent relief from his death sentence under Mills. The Court of Appeals first asked: “Are we compelled to conduct a retroactivity analysis under Teague?” 271 F.3d, at 541. It recognized that, per Teague, retroactivity is a “ ‘threshold question,’ ” but it found “Teague not to govern [its] analysis” in this case because “we do not need to focus on anything other than the reasoning and determination of the Pennsylvania Supreme Court,” which had not ruled on retroactivity. 271 F.3d, at 541, and n. 13.3 It rejected petitioners’ contention that the state court’s failure to rule on retroactivity was irrelevant to whether Teague should apply in federal court:

“Teague teaches that the federal courts in habeas proceedings should be reluctant to apply new rules of federal jurisprudence in state court cases decided before such new rules were handed down. Principles of comity and finality counsel that we maintain a circumscribed scope of habeas review… . Here, however, as we have noted, the Pennsylvania Supreme Court applied Mills. We are examining the application of Mills, not because we wish to impose a new rule not considered by the Pennsylvania Supreme Court, but as the court in fact did consider and apply it. In such a situation, Teague is not implicated. Accordingly, we need ask only whether the Pennsylvania Supreme Court’s application of Mills should be disturbed under the AEDPA standards.” 271 F.3d, at 543 (citation omitted).

Freed from performing a Teague analysis concerning Mills’ retroactivity, a question which has created some disagreement among the Federal Circuits,4 the Court of Appeals asked “whether the Pennsylvania Supreme Court determination regarding the constitutionality of the instructions, verdict slip, and polling of the jury involved an unreasonable application of Mills.” 271 F.3d, at 544. It then found the state court’s application of federal law unreasonable under the standards of 28 U.S.C. § 2254(d), relying on both Mills and Boyde v. California, 494 U.S. 370 (1990). 271 F.3d, at 551. The Court of Appeals explained that, “[c]onsidered as a whole, the jury instructions leave no doubt that ‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Id., at 549 (quoting Boyde, supra, at 380).

Petitioners seek a writ of certiorari, arguing that the Court of Appeals erred by not performing a Teague analysis, by applying Mills retroactively to respondent’s case, and by concluding that the state court’s decision was unreasonable under Mills. We find it unnecessary to resolve the latter two of these claims, because we determine that the Court of Appeals committed a clear error by failing to perform a Teague analysis.

In Teague, we explained that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S., at 310.5 And in Caspari, we held that “[a] threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to the defendant’s claim… . [A] federal court may, but need not, decline to apply Teague if the State does not argue it. But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.” 510 U.S., at 389 (citations omitted). Here, petitioners raised the Teague issue both in the District Court, see 63 F. Supp. 2d, at 544, and in the Court of Appeals, see 271 F.3d, at 542—543. Thus, per Caspari, a case not cited in the opinion below, it was incumbent upon the Court of Appeals to perform a Teague analysis before granting respondent relief under Mills. The Court of Appeals erred in concluding that it did “not need to focus on anything other than the reasoning and determination of the Pennsylvania Supreme Court.” 271 F.3d, at 541.

Although the Court of Appeals may have simply overlooked Caspari, its opinion can also be read to imply that AEDPA has changed the relevant legal principles articulated in Caspari, see 271 F.3d, at 541, n. 13 (“We note, however, that recent decisions have called into question to what extent Teague has continued force independent of AEDPA”). While it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review set forth in 28 U.S.C. § 2254(d) (“[a]n application … shall not be granted … unless” the AEDPA standard of review is satisfied (emphasis added)), none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard, or that AEDPA relieves courts from the responsibility of addressing properly raised Teague arguments. To the contrary, if our post-AEDPA cases suggest anything about AEDPA’s relationship to Teague, it is that the AEDPA and Teague inquiries are distinct. See, e.g., Tyler v. Cain, 533 U.S. 656, 669—670 (2001) (O’Connor, J., concurring) (construing successive application provisions of AEDPA, 28 U.S.C. § 2244(b)(2)(A)); Williams v. Taylor, 529 U.S. 362, 412—413 (2000) (construing §2254(d)). Thus, 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.

We reverse the Court of Appeals’ holding that “Teague is not implicated” by this case, 271 F.3d, at 543, and remand for further proceedings consistent with this decision.

Bell v. Virginia, 2002 Va. LEXIS 78 (VA 6/7/2002) Relief denied most notably on questions of Vienna Convention, right to an expert witness to address conditions relating to the future dangerous question and the meaning of the term "life without parole."

Bell now argues that his rights under the Vienna Convention were violated in three respects: (1) he was not advised of his right to communicate with his consulate, (2) he was not advised of the police department's obligation to notify his consulate until after he made his statement to the police, and (3) there was an inordinate delay in notifying his consulate that he had been arrested. Relying on the decision of the International Court of Justice (ICJ) in the LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (June 27), he posits that Article 36 of the Vienna Convention creates an individual right to consular notification and access, that a showing of prejudice is not necessary to establish a violation of that article, and that the LaGrand court decided the question of appropriate remedies when a violation occurs.

First, we conclude that any rights that Bell has under Article 36 of the Vienna Convention were not violated. That article provides in subsection (1)(b) that "competent authorities . . . shall, without delay, inform the consular post of the sending State" when one of its nationals is arrested or detained pending trial, and shall also "inform the person concerned without delay of his rights under this sub- paragraph." The record in this case demonstrates that the Winchester Police Department complied with the requirements of this subsection. Prince advised Bell that the Consulate of Jamaica would be notified of Bell's arrest and that notification, in fact, occurred within approximately 36 hours after Bell was taken into custody.

The provisions of Article 36 do not mandate immediate notification, nor do they necessarily require consular notification before an arrestee is advised of Miranda rights and agrees to waive those rights by answering questions. Instead, Article 36 simply requires that the notification be made "without delay." Thus, we conclude that the lapse of 36 hours was not unreasonable. Cf. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (probable cause finding within 48 hours of warrantless arrest generally satisfies requirement that judicial officer make probable cause determination promptly). Notably, the delay in the LaGrand case that prompted the ICJ to find that the United States had breached its obligations under Article 36 to the LaGrand brothers and to the Federal Republic of Germany was more than 16 years. In fact, the United States did not notify the LaGrand brothers of their right to consular access until after the completion of proceedings for post-conviction relief. Given the fact that Bell objected to any notification being sent to his consulate, we likewise find no violation of Article 36 arising from the fact that Prince did not expressly advise Bell of any rights he may have under this article.

Second, we conclude that the ICJ, contrary to Bell's assertion, did not hold that Article 36 of the Vienna Convention creates legally enforceable individual rights that a defendant may assert in a state criminal proceeding to reverse a conviction. Instead, the ICJ stated that "Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in [the ICJ] by the national State of the detained person." LaGrand Case (F.R.G v. U.S.), 2001 I.C.J. 104, ___ (June 27) (emphasis added). The ICJ also held that if the United States should fail in its obligation under Article 36, then the United States should allow review of the conviction and sentence by taking into account the violation of the rights set forth in the Vienna Convention. However, the ICJ recognized that the "obligation can be carried out in various ways" and that "[t]he choice of means must be left to the United States." LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104, ___ (June 27).

This acknowledgement by the ICJ reflects the fact that, in the absence of a clear statement to the contrary, procedural rules of a forum State govern the implementation of a treaty in that State. Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Sun Oil Co. v. Wortman, 486 U.S. 717, 723 (1988); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988); Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 539 (1987)). This principle is also evident in the provisions of Article 36(2). That subsection provides that "[t]he rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State," provided that those "laws and regulations . . . enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

In criminal proceedings in the receiving State, i.e., the United States, a harmless error analysis is routinely used when deciding whether to suppress a defendant's statement made as a result of a violation of the Fifth Amendment right against self-incrimination. See, e.g., Milton v. Wainwright, 407 U.S. 371, 372 (1972); United States v. Ping, 555 F.2d 1069, 1077 (2d Cir. 1977); Harryman v. Estelle, 616 F.2d 870, 875 (5th Cir.), cert. denied, 449 U.S. 860 (1980); United States v. Carter, 804 F.2d 487, 489 (8th Cir. 1986); United States v. Lemon, 550 F.2d 467, 471 (9th Cir. 1977). The same analysis should apply when a defendant seeks to suppress a statement because of an alleged violation of rights conferred pursuant to Article 36 of the Vienna Convention. Thus, in the present case, even if Bell's rights under Article 36 were violated because the police questioned him prior to advising him of his rights to consular notice and access, we conclude that any such error was harmless. The evidence of Bell's guilt, as already summarized in this opinion, is overwhelming. Furthermore, Bell has not alleged, much less demonstrated, any prejudice resulting from the fact that approximately 36 hours elapsed before his consulate was notified of his arrest, nor has he asserted that he would not have answered the police officers' questions if he had first been advised of his right to communicate with his consulate. Bell, after all, objected to his consulate receiving notice of his arrest.

Finally, even if Article 36 creates legally enforceable individual rights, it does not provide - explicitly or otherwise - that a violation of those rights should be remedied by suppression of evidence. See United States v. Li, 206 F.3d 56, 61 (1st Cir.) (en banc), cert. denied, 531 U.S. 956 (2000); United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125-26 (C.D. Ill. 1999), aff'd, 226 F.3d 616 (7th Cir.), cert. denied, 531 U.S. 1026 (2000). Such a remedy is generally not available when a fundamental right is not implicated. Id. The language of Article 36 does not create a fundamental right comparable to the privilege against self-incrimination. Id. Thus, Bell's claim that the alleged violation of his rights under Article 36 should be remedied by suppressing his statement to the police finds no support in the provisions of the Vienna Convention.

Bell assigns error to the circuit court's denial of his motion for appointment of a correctional specialist as an expert to provide testimony regarding the conditions of confinement under which Bell would be housed if he were sentenced to a term of imprisonment for life. Bell claims that he needed this expert to review information about Bell, to assess his likelihood of being a future danger in prison, and to testify concerning the correctional systems used in a maximum security prison to manage inmates and prevent acts of violence.

Recognizing that this Court has rejected the relevancy of this type of evidence, see Burns, 261 Va. at 340, 541 S.E.2d at 893; Cherrix, 257 Va. at 310, 513 S.E.2d at 653, Bell, nevertheless, urges this Court to re-examine this issue because, in his view, our rulings are inconsistent with decisions of the United States Supreme Court and because trial courts in Virginia are not consistently following the decisions in Cherrix and Burns. Bell asserts that evidence concerning the prison conditions in which he would serve a life sentence is relevant not only in mitigation and in rebuttal to the Commonwealth's evidence of future dangerousness, but also to his "future adaptability" to prison life. A jury, argues Bell, cannot assess a defendant's likelihood of adjusting to life in prison if evidence describing the conditions of confinement is excluded from the jury's consideration. According to Bell, the "common thread" running through the decisions of the United States Supreme Court in Skipper v. South Carolina, 476 U.S. 1 (1986); Simmons v. South Carolina, 512 U.S. 154 (1994); and Williams v. Taylor, 529 U.S. 362 (2000), is "the Court's recognition that many inmates who would be dangerous if released are not dangerous when confined to the `structured environment' of prison."

In Skipper, the defendant sought to introduce testimony from two jailers and a "regular visitor" to the jail regarding the defendant's good adjustment during the time he had spent in confinement. 476 U.S. at 3. The only question before the Supreme Court was "whether the exclusion from the sentencing hearing of the testimony [the defendant] proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived [the defendant] of his right to place before the sentencer relevant evidence in mitigation of punishment." Id. at 4. In holding that the trial court's exclusion of this evidence impeded the sentencing jury's ability to fulfill its task of considering all relevant evidence concerning the character and record of the defendant, the Court specifically stated that it was not "hold[ing] that all facets of the defendant's ability to adjust to prison life must be treated as relevant and potentially mitigating." Id. at 7 n.2.

The Supreme Court, in Williams, found that the defendant's counsel rendered ineffective assistance, in part, because counsel failed to introduce evidence at sentencing from two prison officials who described the defendant "as among the inmates `least likely to act in a violent, dangerous or provocative way.' " 529 U.S. at 396. Counsel also failed to introduce evidence at sentencing from two experts who had testified at trial for the prosecution. In their trial testimony, they had opined that there was a "high probability" that the defendant would pose a continuing threat to society. Id. at 368-69. Those experts, however, also surmised that the defendant would not pose a danger to society if kept in a "structured environment," but the defendant's counsel failed to elicit that opinion at sentencing. Id. at 371.

Finally, in Simmons, the issue was whether the Due Process Clause requires a sentencing jury to be informed that a defendant is parole ineligible when that defendant's future dangerousness is at issue. 512 U.S. at 163-64. Reiterating that a "defendant's character, prior criminal history, mental capacity, background, and age are just a few of the many factors . . . that a jury may consider in fixing appropriate punishment[,]" the Court concluded that "there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that [the defendant] never will be released on parole." Id.

Contrary to Bell's assertion, our decisions in Cherrix and Burns are not inconsistent with these three cases. To use Bell's term, the "common thread" in these cases is that evidence peculiar to a defendant's character, history and background is relevant to the future dangerousness inquiry and should not be excluded from a jury's consideration. This includes evidence relating to a defendant's current adjustment to the conditions of confinement. As the Court stated in Skipper, "a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of . . . character that is by its nature relevant to the sentencing determination." 476 U.S. at 7. But, as we had already stated, "[e]vidence regarding the general nature of prison life in a maximum security facility is not relevant to that inquiry, even when offered in rebuttal to evidence of future dangerousness." Burns, 261 Va. at 340, 541 S.E.2d at 893.

While we do not dispute that Bell's "future adaptability" in terms of his disposition to adjust to prison life is relevant to the future dangerousness inquiry, Bell acknowledged on brief that the individual that he sought to have appointed has been qualified previously as an expert in prison operations and classification. The testimony that Bell sought to introduce through the expert concerned the conditions of prison life and the kind of security features utilized in a maximum security facility. That is the same kind of evidence that we have previously rejected as not relevant to the future dangerousness inquiry. See Burns, 261 Va. at 340, 541 S.E.2d at 893; Cherrix, 257 Va. at 310, 513 S.E.2d at 653. Nor is such general evidence, not specific to Bell, relevant to his "future adaptability" or as a foundation for an expert opinion on that issue. Thus, we conclude that the circuit court did not err in denying Bell's motion. Bell failed to show a "particularized need" for this expert. Lenz v. Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305, cert. denied, ____ U.S. ____, 122 S.Ct. 481 (2001). In light of the inadmissibility of the evidence that Bell sought to introduce through the expert, he also failed to establish how he would be prejudiced by the lack of the expert's assistance. See id.

SUPREME COURT

Carey v. Saffold, --- US --- (6/17/2002) For purposes of the AEDPA's timeliness provisions it is necessary tolook at what "pending" consists of when it comes to a relevant post-conviction &/or post-trial motion &appeal.

The Antiterrorism and Effective Death Penalty Act of 1996 requires a state prisoner seeking federal habeas relief to file his petition within one year after his state conviction becomes final, 28 U.S.C. § 2244(d)(1)(A), but excludes from that period the time during which an application for state collateral review is “pending,” §2244(d)(2). Respondent Saffold filed a state habeas petition in California seven days before the federal deadline. Five days after the state trial court denied his petition, he filed a further petition in the State Court of Appeal. Four and one-half months after that petition was denied, he filed a further petition in the State Supreme Court, which denied the petition on the merits and for lack of diligence. The Federal District Court dismissed his subsequent federal habeas petition as untimely, finding that the federal statute of limitations was not tolled during the intervals between the denial of one state petition and the filing of the next because no application was “pending” during that time. In reversing, the Ninth Circuit included the intervals in the “pending” period, and found that Saffold’s petition was timely because the State Supreme Court based its decision not only on lack of diligence but also on the merits.

Held:

1. As used in §2244(d)(2), “pending” covers the time between a lower state court’s decision and the filing of a notice of appeal to a higher state court. Most States’ collateral review systems require a prisoner to file a petition in a trial court; then to file a notice of appeal within a specified time after entry of the trial court’s unfavorable judgment; and, if still unsuccessful, to file a further notice of appeal (or request for discretionary review) to the state supreme court within a specified time. Petitioner warden seeks a uniform national rule that a state petition is not “pending” during the interval between a lower court’s entry of judgment and the timely filing of a notice of appeal in the next court, reasoning that the petition is not being considered during that time. Such a reading is not consistent with the ordinary meaning of “pending,” which, in the present context, means until the completion of the collateral review process; i.e., until the application has achieved final resolution through the State’s postconviction proceedings. Petitioner’s reading would also produce a serious statutory anomaly. Because a federal habeas petitioner has not exhausted his state remedies as long as he has “the right under [state] law … to raise” in that State, “by any available procedure, the question presented,” §2254(c), and because petitioner’s interpretation encourages state prisoners to file their petitions before the State completes a full round of collateral review, federal courts would have to contend with petitions that are in one sense unlawful (because the claims have not been exhausted) but in another sense required by law (because they would otherwise be barred by the 1-year imitations period). Pp. 3—5.
2. The same “pending” rule applies to California’s unique collateral review system, even though that system involves, not a notice of appeal, but the filing (within a “reasonable” time) of a further original state habeas petition in a higher court. California’s system is not as special in practice as its terminology might suggest. A prisoner typically will seek habeas review in a lower court and later seek appellate review in a higher court. Thus, the system functions very much like that in other States, but for its indeterminate timeliness rule. That rule may make it more difficult for federal courts to determine when a review application comes too late. But the tolling provision seeks to protect the State’s interests, and the State can explicate timing requirements more precisely should that prove necessary. In applying a federal statute that interacts with state procedural rules, this Court looks to how a state procedure functions, not its particular name. California’s system functions in ways sufficiently like other state collateral review systems to bring intervals between a lower court decision and a filing in a higher court within the scope of “pending.” Pp. 6—10.
3. The words “on the merits” by themselves do not indicate that Saffold’s petition was timely, but it is not possible to conclude that the Ninth Circuit was wrong in its ultimate conclusion. The State Supreme Court may have included such words in its opinion for a variety of reasons. And the Ninth Circuit’s willingness to take them as an absolute bellwether risks the tolling of the federal limitations period even when it is likely that the state petition was untimely, thus threatening the statutory purpose of encouraging prompt filings in order to protect the federal system from being forced to hear stale claims. In reconsidering the timeliness issue, the Ninth Circuit is left to evaluate any special conditions justifying Saffold’s delay in filing in the state court and any other relevant considerations, and to decide whether to certify a question to the State Supreme Court to seek clarification of the state law. Pp. 10—11.

250 F.3d 1262, vacated and remanded.

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

United States v. Drayton, --- US --- (6/17/2002) The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

The driver of the bus on which respondents were traveling allowed three police officers to board the bus as part of a routine drug and weapons interdiction effort. One officer knelt on the driver’s seat, facing the rear of the bus, while another officer stayed in the rear, facing forward. Officer Lang worked his way from back to front, speaking with individual passengers as he went. To avoid blocking the aisle, Lang stood next to or just behind each passenger with whom he spoke. He testified that passengers who declined to cooperate or who chose to exit the bus at any time would have been allowed to do so without argument; that most people are willing to cooperate; that passengers often leave the bus for a cigarette or a snack while officers are on board; and that, although he sometimes informs passengers of their right to refuse to cooperate, he did not do so on the day in question. As Lang approached respondents, who were seated together, he held up his badge long enough for them to identify him as an officer. Speaking just loud enough for them to hear, he declared that the police were looking for drugs and weapons and asked if respondents had any bags. When both of them pointed to a bag overhead, Lang asked if they minded if he checked it. Respondent Brown agreed, and a search of the bag revealed no contraband. Lang then asked Brown whether he minded if Lang checked his person. Brown agreed, and a pat-down revealed hard objects similar to drug packages in both thigh areas. Brown was arrested. Lang then asked respondent Drayton, “Mind if I check you?” When Drayton agreed, a pat-down revealed objects similar to those found on Brown, and Drayton was arrested. A further search revealed that respondents had taped cocaine between their shorts. Charged with federal drug crimes, respondents moved to suppress the cocaine on the ground that their consent to the pat-down searches was invalid. In denying the motions, the District Court determined that the police conduct was not coercive and respondents’ consent to the search was voluntary. The Eleventh Circuit reversed and remanded based on its prior holdings that bus passengers do not feel free to disregard officers’ requests to search absent some positive indication that consent may be refused.

Held: The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Pp. 5—12.

(a) Among its rulings in Florida v. Bostick, 501 U.S. 429, this Court held that the Fourth Amendment permits officers to approach bus passengers at random to ask questions and request their consent to searches, provided a reasonable person would feel free to decline the requests or otherwise terminate the encounter, id., at 436. The Court identified as “particularly worth noting” the factors that the officer, although obviously armed, did not unholster his gun or use it in a threatening way, and that he advised respondent passenger that he could refuse consent to a search. Relying on this last factor, the Eleventh Circuit erroneously adopted what is in effect a per se rule that evidence obtained during suspicionless drug interdictions on buses must be suppressed unless the officers have advised passengers of their right not to cooperate and to refuse consent to a search. Pp. 5—8.

(b) Applying Bostick’s framework to this case demonstrates that the police did not seize respondents. The officers gave the passengers no reason to believe that they were required to answer questions. When Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter, or would indicate a command to answer his questions. There were ample grounds to conclude that their encounter was cooperative and not coercive or confrontational. There was no overwhelming show or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, no threat, and no command, not even an authoritative tone of voice. Had this encounter occurred on the street, it doubtless would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning into an illegal seizure. See Bostick, supra, at 439—440. Indeed, because many fellow passengers are present to witness officers’ conduct, a reasonable person may feel even more secure in deciding not to cooperate on a bus than in other circumstances. Lang’s display of his badge is not dispositive. See, e.g., Florida v. Rodriguez, 469 U.S. 1, 5—6. And, because it is well known that most officers are armed, the presence of a holstered firearm is unlikely to be coercive absent active brandishing of the weapon. Officer Hoover’s position at the front of the bus also does not tip the scale to respondents, since he did nothing to intimidate passengers and said or did nothing to suggest that people could not exit. See INS v. Delgado, 466 U.S. 210, 219. Finally, Lang’s testimony that only a few passengers refuse to cooperate does not suggest that a reasonable person would not feel free to terminate the encounter. See id., at 216. Drayton argues unsuccessfully that no reasonable person in his position would feel free to terminate the encounter after Brown was arrested. The arrest of one person does not mean that everyone around him has been seized. Even after arresting Brown, Lang provided Drayton with no indication that he was required to answer Lang’s questions. Pp. 8—10.

(c) Respondents were not subjected to an unreasonable search. Where, as here, the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts. For the foregoing reasons, respondents’ consent to the search of their luggage and their persons was voluntary. When respondents told Lang they had a bag, he asked to check it. And when he asked to search their persons, he inquired first if they objected, thus indicating to a reasonable person that he or she was free to refuse. Moreover, officers need not always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227. While knowledge of the right to refuse is taken into account, the Government need not establish such knowledge as the sine qua non of an effective consent. Ibid. Nor does a presumption of invalidity attach if a citizen consented without explicit notification that he or she was free to refuse to cooperate. Instead, the totality of the circumstances controls, without giving extra weight to whether this type of warning was given. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39—40. Although Lang did not give such a warning, the totality of the circumstances indicates that respondents’ consent was voluntary, and the searches were reasonable. Pp. 10—12.

231 F.3d 787, reversed and remanded.

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

CAPITAL CASES (Favorable Disposition)

In re Singer, 2002 La. LEXIS 1858 (LA 6/12/2002) Attorney employed by the Louisana Crisis Assistance Center who was enrolled pro hac vice since 1999 in eight different cases may be admitted to the Louisiana bar in light of his "good faith" in dealing with issue of unauthorized practice.

While we recognize the state of the law regarding pro hac vice representation is somewhat unclear, n7 it is difficult for us to conclude that petitioner, who held a Louisiana driver's license, is registered to vote in Louisiana, and has purchased a home in New Orleans, could consider himself to be "temporarily present" in [*7] the state during the time he sought pro hac vice status. Moreover, even assuming petitioner complied with the letter of the law, we are also concerned that respondent's frequent and systematic representation of clients in Louisiana violated the spirit of pro hac vice admission. See, e.g., Hanson v. Spolnik, 685 N.E.2d 71, n.1 (Ind. App. 1997) ("pro hac vice admission should only be occasionally permitted as a courtesy towards other state bars and not as a continuing practice to avoid membership in our bar or compliance with our disciplinary rules").

Nonetheless, based on the evidence developed at the commissioner's [*8] hearing, we conclude petitioner acted in good faith and in the sincere belief that he had complied with all applicable rules regarding pro hac vice admission. After he became aware of concerns regarding his representation, he applied to take the Louisiana bar examination. Under these circumstances, we cannot say petitioner's actions demonstrate a lack of good moral character which would disqualify him from admission to the bar of this state. Accordingly, we will admit petitioner on a conditional basis, subject to a one-year period of probation.

CAPITAL CASES (Unfavorable Disposition)

Fierro v. Cockrell, 2002 U.S. App. LEXIS 11628 (5th Cir 6/13/2002) Successive habeas petition barred for being untimely even though he filed a motion for authorization for a successive peittion -- which included the "essential elements" of his habeas application -- within one year of the final judgment on his state petition. Additionatly relief denied on the argument that "the limitations period should be equitably tolled in this case because "it would be an 'indefensible sort of entrapment'" to bar a petition filed in accordance with a scheduling order issued by the district court at the state's request." [Note: Whether this decision remains good law followingCarey v. Saffold(above) would seem to be an open question - k]

Charm v. Mullin, 2002 U.S. App. LEXIS 11632 (10th Cir 6/13/2002) (unpublished) Relief denied including claims trial counsel was ineffective for conceding guilt in opening comments, lesser included offense instruction, & insufficient evidence to support aggravating circumstances.

Middleton v. State, No. SC83909 (Mo. 06/11/2002) Relief denied on claims of [A] undisclosed delas with two state witnesses; [B] the prosecution's argument that jurors consider the appropriate punishment for the crime; and [C] ineffective assistance of counsel for: [1] not asserting lack of requisite mental state for first degree murder; [2] not presenting evidence that would have implicated another; [3] not conducting an adequate mitigation investivation; [4] not rebutting testimony of a threatened contract murder; [5] introducing evidence of a previous murder; introducing evidence that he was already under a sentence of death; [6] failing to preserve a defense expert's comment that Middleton might not have been entirely truthful in his interview; [7]not asking a defense expert whether Middleton could appreciate the criminality of his conduct or conform his conduct to the law; [8] not objecting to the prosecutor's argument that Middleton should receive a death sentence for each of the murders; [9] not objecting to the statement that appellant had attempted to escape twice from jail, when the evidence showed he only tried to escape once; and [10] failing to object to prosecutor's closing.

Anderson v. Florida, 2002 Fla. LEXIS 1328 (FL 6/13/2002) Relief denied on: (1) alleged perjured testimony before the grand jury; (2) numerous Bradyclaims; (3) f ineffective assistance of counsel at the penalty phase; (4) failure to establish corpus delicti; (5) penalty phase jury instructions & (6) cumulative error.

Sweet v. Moore, 2002 Fla. LEXIS 1329 (FL 6/13/2002) Relief denied on claims relating to: "(1) whether counsel was ineffective during the guilt phase for failing to investigate and present evidence of other suspects; (2) whether counsel was ineffective during the penalty phase; (3) whether the trial court erred in failing to consider the cumulative effect of the newly discovered evidence concerning Sweet's innocence with the evidence that was not presented due to trial counsel's ineffectiveness; (4) whether counsel was ineffective regarding Sweet's competency evaluation by a mental health expert; (5) whether the trial court erred in summarily denying a hearing on Sweet's claims related to trial counsel's ineffectiveness and the State's misconduct that must be considered for their cumulative effect on the outcome of the guilt and penalty phases; and (6) whether the record on appeal is so incomplete that Sweet cannot meaningfully raise claims in this appeal."

Gaskin v. Florida, 2002 Fla. LEXIS 1331 (FL 6/13/2002) Relief denied on ineffective assistance of counsel claims relating to whether: "(1) counsel failed to investigate and present important mitigating evidence during the penalty phase; (2) counsel failed to give the defense mental health expert [ ] the background information that he requested; (3) counsel failed to mention the aggravating or mitigating circumstances during the penalty phase closing arguments; and (4) counsel had a conflict of interest arising from his status as a deputy sheriff."

Asay v. Florida, 2002 Fla. LEXIS ---- (FL 6/13/2002) These issues are: Relief denied on (1) ineffective assistance of appellate counsel in failing to argue on appeal that Asay was absent during critical stages of the proceedings; (2) Asay's death sentences are unconstitutional because Asay was impermissibly limited from presenting mitigation, the trial court failed to consider and weigh mitigation, and the prosecutor made impermissible arguments regarding aggravation; (3) ineffective assistance of appellate counsel for failing to raise on appeal the trial court's failure to give a requested instruction on CCP; (4) ineffectiveassistance of appellate counsel for failing to raise on appeal penalty phase instructions that improperly shifted the burden of proof regarding the appropriateness of a life sentence; and (5) the unconstitutionality of Florida's capital sentencing statute and instructions given pursuant thereto."

People v. Farnum, 2002 Cal. LEXIS 3773 (CA 6/10/2002) (unpublished) Relief denied on numerous issues including, most notably, failure to strike for cause jurors who were "life hesitant," prosecution's use of 80% of its strikes against African-Americans, failure to excuse for cause juror who was mugged (and the three other jurors who saw the mugging) during the course of the trial, use of a prior murder conviction, sufficiency of aggravator, evidentiary issues, consciousness of guilt instruction, multiple acts of prejudicial misconduct during the guilt phase (engaging in inflammatory argument, misstating the evidence, misleading the jury, and expressing her personal opinions regarding witness testimony and defendant's guilt), ineffective assistance, nonstatutory aggravators, double jeopardy, ruling confession to other crimes admissible, jury instruction on the meaning of life without parole, standard sentencing instructions are constitutionally impermissible

OTHER NOTABLE CASES

United States v. Booze(06/14/02 - No. 01-3005) Claim that counsel forced petitioner to reject a plea offer to markedly lower time is deserving of an evidentiary hearing to determine whether such a plea offer was in fact made.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

Juveniles

In 2002, Indiana became the 16th state to ban the execution of those under the age of 18 at the time of the offense.

On May 28, 2002, the State of Texas executed Napoleon Beazley who was a juvenile at the time of the capital offense. The Board of Pardons and Parole denied his clemency application on a vote of 10-7. Among those calling for commutation of Beazley’s death sentence was the judge who presided over his capital trial. Beazley’s co-defendant, Gerald Mitchell, was executed on October 22, 2001. Like Beazley, Mitchell was 17 at the time of the crime.

Also on May 28, 2002, the Missouri Supreme Court granted a stay of execution for Christopher Simmons who was 17 at the time of the capital offense. The Missouri Supreme Court issued the stay pending the United States Supreme Court’s decision in Atkins v. Virginia, No. 00-8452. (See above, on Mental Retardation.) Counsel for Simmons explained that both her client’s case and that of Atkins’ focus on the issue of whether defendants with underdeveloped mental capacities should receive the death penalty.

Method of Execution

On October 5, 2001, the Georgia Supreme Court held that execution by electrocution violates the Georgia Constitution’s prohibition against cruel and unusual punishment. Dawson v. State, 2001 WL 1180615 (Ga. Oct. 5, 2001). In determining the legal standard for what constitutes cruel and unusual punishment, the Court relied upon In re Kemmler, 136 U.S. 436 (1890), and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), for the propositions that "punishment is cruel and unusual when it unnecessarily involves ‘something more than the mere extinguishment of life’" and that "a punishment is cruel and unusual if it ‘makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.’"

Relying upon the evidence presented in trial courts in two consolidated cases--Dawson and Moore--the Court found it could not "determine conclusively whether unnecessary pain is inflicted" by electrocution. This did not end the inquiry, however, because "We cannot ignore the cruelty inherent in punishments that unnecessarily mutilate or disfigure the condemned prisoner’s body or the unusualness that mutilation creates in light of viable alternatives which minimize or eliminate the pain and/or mutilation." The Court found that the uncontroverted evidence established that electrocution mutilates the condemned person by burning the body and cooking the brain. By contrast, the evidence showed that lethal injection does not result in mutilation. Thus, the Court held, "death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violation the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XV of the Georgia Constitution." Three members of the Court dissented, saying, "today’s decision reflects not the evolving standards of decency of the people of Georgia, but the evolving opinions of the majority members of this Court."

The Court also held that the unconsitutionality of electrocution did not void death sentences which would have been carried out by electrocution. A Georgia statute enacted in 2000 provides for lethal injection as the method of execution for crimes committed after May 1, 2000. The statute also provides that if electrocution is declared unconstitutional, lethal injection would be the method of execution for crimes committed before May 1, 2000.

Right to Counsel

On May 20, 2002, the Supreme Court issued its decision in Alabama v. Shelton, 535 U.S. ___, 2002 WL 1008481 (May 20, 2002). 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.

On March 27, 2002, the Supreme Court issued its decision in Mickens v. Taylor, 535 U.S. ___, 122 S.Ct.1237 (2002). Justice Scalia, joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy and Thomas, ruled that where a trial court fails to inquire about a potential conflict of interest of which it is aware or reasonably should be aware, and neither the defendant nor defense counsel raises an objection to the representation, a defendant is entitled to reversal of his conviction only if he establishes that a conflict of interest adversely affected his counsel’s performance.

In Mickens’ case, the trial judge was aware that defense counsel had previously represented the man whom Mickens was accused of killing. (The criminal charges against the victim were dismissed after his death.) Mickens was never informed of his attorney’s prior representation of the victim. The majority rejected Mickens’ contention that United States Supreme Court precedent established that the trial judge’s error in failing to inquire about the potential conflict entitled Mickens to relief without any showing of an adverse effect on counsel’s performance.

Because the lower court concluded that Mickens failed to show that defense counsel’s prior representation of Mickens’ murder victim impacted his performance in Mickens’ capital trial, and the Supreme Court did not grant certiorari on the question presented by Mickens which challenged this ruling, the denial of his habeas petition is affirmed.

In the majority opinion, Scalia added the observation that the sole question presented to the Supreme Court in this case concerned the effect of a trial court’s failure to inquire into a potential conflict of interest. The briefing and argument proceeded under the assumption that a duty to inquire applied here, where Mickens’ trial counsel had previously represented the capital murder victim, and not just in cases of multiple conconcurrent representation such as was at issue in Cuyler v. Sullivan, 446 U.S. 335 (1980). Scalia acknowledged that such an assumption was not unreasonable in light of the holdings by the Courts of Appeals which have applied Sullivan to a variety of ethical conflicts. Scalia nevertheless noted that "the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application." 122 S.Ct. at 1245. Scalia concluded the majority opinion by stating that it is an open question whether Sullivan’s presumption of prejudice standard should be applied in conflict of interest situations such as successive representation.

Justice Kennedy, joined by Justice O’Connor, authored a concurring opinion in which he examined the facts of the case in order to illustrate why the majority was correct in its refusal to adopt an automatic reversal rule simply because the trial court failed in its duty to inquire. The district court credited trial counsel’s testimony that he felt no duty of loyalty to his former client, Mickens’ victim. Whether or not this was a mistaken belief, it did establish that counsel’s prior representation did not influence his decisions during his subsequent representation of Mickens. As for Mickens’ arguments about the alternative defense theories that could have been utilized by defense counsel but for the conflict, Kennedy dismissed them as entailing "two degrees of speculation." 122 S.Ct. at 1247.

In dissent, Justice Stevens provided four reasons why setting aside Mickens’ capital conviction is the proper remedy in this case: (1) it is the remedy dictated by Holloway v. Arkansas, 435 U.S. 475 (1978), Cuyler v. Sullivan, 446 U.S. 335 (1980), and Wood v. Georgia, 450 U.S. 261 (1981); (2) "it is the only remedy that responds to the real possibility that Mickens would not have received the death penalty if he had been represented by conflict-free counsel during the critical stage of the proceeding when he first met with his lawyer," 122 S.Ct. at 1252 (i.e., that a lawyer without a prior connection to the victim might have been able to establish the trusting relationship with the defendant necessary to move the defendant from complete denial of the crime to a defense based on consensual sex which could have defeated the capital aspect of the charges); (3) "it is the only remedy consistent with the legal profession’s historic and universal condemnation of the representation of conflicting interests without the full disclosure and consent of all interested parties," 122 S.Ct. at 1252; and (4) "Setting aside Mickens’ conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases." 122 S.Ct. at 1253.

Justice Souter also dissented. Under his reading of the relevant Supreme Court precedent, reversal is required because of the trial court’s failure to make any inquiry into the potential conflict. As for the new rule created by the majority, Souter argued that it is irrational and "it reduces the so-called judicial duty to enquire into so many empty words." 122 S.Ct. at 1260.

Justice Breyer, joined by Justice Ginsburg, provided the final dissenting opinion. Breyer contended that this case involves a structural error requiring automatic reversal. He took no position on how Holloway, Sullivan and Wood should be applied in most conflict of interest cases. Instead, Breyer argued that this specific case should not be governed by those precedents because: (1) "this is the kind of representational incompatibility that is egregious on its face," 122 S.Ct. at 1264; (2) "the conflict is exacerbated by the fact that it occurred in a capital murder case . . . [where] the evidence submitted by both sides regarding the victim’s character may easily tip the scale of the jury's choice between life or death," id., and there are subtle forms that prejudice might take; (3) and "the Commonwealth itself created the conflict in the first place," id. On this record, Breyer finds an appearance of unfairness coupled with a likelihood of prejudice so serious as to warrant a categorical rule of reversal.

On May 28, 2002, the Supreme Court issued its decision in Bell v. Cone, 535 U.S. ___, 122 S.Ct. 1843 (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 from his death sentence under new § 2254(d)(1), given that 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).

For a complete discussion of the decision, go to Recent Filings and Actions in the Supreme Court/Recent Decisions

On June 3, 2002, in Bell v. Quintero, No. 01-711 and Jones v. French, No. 01-1413, the Supreme Court granted the Wardens’ certiorari petitions, vacated the judgments, and sent the cases back to the Sixth Circuit for further consideration in light of Bell v. Cone.

In Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001), cert granted and judgment vacated, ___ S.Ct. ___, 2002 WL 1159479 (June 3, 2002), the Sixth Circuit had applied Cronic in a case where trial counsel’s failure to object was asserted as cause to excuse the procedural default of the petitioner’s claim that he was denied his right to an impartial jury. Quintero was one of a number of inmates who escaped from prison in Kentucky. After he was apprehended, he was tried on the escape charges by a jury that included seven jurors who had previously sat on the jury that convicted Quintero’s co-escapees. Because trial counsel lodged no objection, Quintero’s challenge to the impartiality of his jury was found waived on appeal. In subsequent federal habeas proceedings, the Sixth Circuit concluded that ineffective assistance of counsel provided the "cause" necessary to overcome the default. In so ruling, it rejected the Warden’s contention that Quintero could not establish prejudice from his attorney’s unreasonable failure to object given Quintero’s confession. The Sixth Circuit found that this case merited Cronic’s presumption of prejudice because "the presence of the seven jurors and trial counsel’s de facto acceptance of the jury composition amounted to a structural error, which we exempt from harmless error analysis." Id. at 415.

In French v. Jones, 282 F.3d 893 (6th Cir. 2002), cert granted and judgment vacated, ___ S.Ct. ___, 2002 WL 496561 (June 3, 2002), the Sixth Circuit found the petitioner entitled to habeas relief due to the absence of counsel when the trial court provided the deadlocked jury with supplemental instructions. On direct appeal, the Michigan appellate court had ruled that the absence of counsel during a critical stage of the trial is subject to harmless error analysis, and, in this case, the error was not prejudicial. In federal habeas proceedings, the Sixth Circuit agreed with the district court’s holding that denial of counsel during a critical stage is reversible per se under Cronic. The appeals court ruled: "In light of clear federal law, the Michigan courts unreasonably applied harmless error analysis to French’s deprivation of counsel during the supplemental instruction." Id. at 901. Looking to the supplemental instructions, the Sixth Circuit made the additional finding that they were coercive and that they had a substantial and injurious influence on the jury’s verdict.

Also on June 3, 2002, the Supreme Court denied the Warden’s certiorari petition in Cockrell v. Burdine, No. 01-495. Texas death row inmate Calvin Burdine had prevailed under Cronic in the infamous "sleeping lawyer" case. The Fifth Circuit sitting en banc concluded that "the repeated unconsciousness of Burdine’s counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine’s capital murder trial warrants a presumption of prejudice." Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc). The en banc court of appeals also rejected the Warden’s defense under Teague v. Lane, 489 U.S. 288 (1989).

The AEDPA

The Anti-terrorism and Effective Death Penalty Act of 1996 (The AEDPA) amended the federal habeas corpus statutes. Core provisions of the AEDPA have now been interpreted by the United States Supreme Court. It is essential that capital habeas corpus practitioners be thoroughly conversant in these recent holdings by the Court, and cognizant of the theme running through these decisions – that the federal habeas corpus statutes will continue to provide a check on the power of the states to carry out capital punishment

Counsel should study the following decisions:

Tyler v. Cain121 S. Ct. 2478 (2001)

In a second habeas corpus proceeding, the Court addressed a question regarding the AEDPA: whether the rule of Cage v. Louisiana, 498 U.S. 39 (1990), was "made retroactive to cases on collateral review by the Supreme Court" under 28 U.S.C. sec. 2244(b)(2)(A). In a 5 to 4 decision, the Court determined that the Cage rule had not been "made" retroactive by the Supreme Court because "made" means "held" and the Court had not held Cage retroactively applicable to cases on collateral review. The Court rejected Tyler’s argument that Sullivan v. Louisiana, 508 U.S. 275 (1993), made clear that retroactive application of Cage is warranted under Teague v. Lane, 489 U.S. 288 (1989).

The Court refused to decide whether Cage is retroactive to cases on collateral review. In order for Tyler to satisfy the requirements of section 2244(b)(2)(A) for proceeding on a second petition, the rule he relied upon had to have already been made retroactive when he filed the petition. Therefore, a decision on whether Cage is retroactive would not help Tyler and would be dictum.

Justice O’Connor wrote a concurring opinion to explain that a single decision holding a rule retroactive is not the only way to satisfy section 2244(b)(2)(A). A rule may be "made" retroactive by the Supreme Court through multiple decisions which "logically dictate" the rule’s retroactivity. However, "the holdings must dictate the conclusion and not merely provide principles from which one may conclude that the rule applies retroactively."

Duncan v. Walker 121 S. Ct. 2120 (2001)

In a case involving the AEDPA’s tolling provisions, the Court addressed whether a federal habeas corpus petition is an "application for State post-conviction or other collateral review" under 28 U.S.C. sec. 2244(d)(2). Walker’s state conviction became final in April 1996, and he filed a federal habeas corpus petition on April 10, 1996, before the effective date of the AEDPA. In July 1996, the district court dismissed the petition without prejudice because it was not apparent Walker had exhausted his state remedies. On May 20, 1997, Walker filed another federal petition, but had not returned to state court since his first petition was dismissed. The district court dismissed the new petition as time barred because it had not been filed within a reasonable time from the AEDPA’s effective date. The Second Circuit reversed, holding that Walker’s first petition tolled the limitations period because it was an application for "other collateral review" under 2244(d)(2).

The Supreme Court reversed the Second Circuit, holding that a federal habeas corpus petition is not an "application for State post-conviction or other collateral review" and therefore does not toll the limitations period. The Court based this conclusion on the language of the statute and the purposes of the AEDPA. The Court noted that its "sole task" in this case was statutory construction and that when Walker’s first petition was dismissed, he had nine months remaining in the limitations period, but he neither returned to state court nor filed a nondefective petition before his time elapsed. Thus, the court declined to address alternative scenarios or the availability of equitable tolling.

Justices Stevens and Souter concurred, pointing out that a district court may retain jurisdiction over a federal petition pending exhaustion of state remedies and that equitable tolling could be available on facts different from those in this case.

Ramdass v. Angelone 120 S. Ct. 2113 (2000)

In a 5 to 4 decision, the Court addressed a claim premised on Simmons v. South Carolina, 512 U.S. 154 (1994), under the AEDPA. Justice Kennedy announced the judgment in a plurality opinion. Justice O’Connor wrote an opinion concurring in the judgment.

Ramdass was convicted of murder and sentenced to death in Virginia. At the time of the jury sentencing, he had been charged with and investigated for numerous other violent felonies. Two of these other charges had already gone to trial. Ramdass had been convicted of a Pizza Hut robbery, and judgment had been entered. He had also been convicted of a Domino’s robbery, but judgment had not been entered at the time of the jury sentencing. At sentencing, the state argued future dangerousness, and Ramdass argued he would be in prison the rest of his life. On direct appeal, Ramdass argued the jury should have been told he was parole ineligible based on Virginia’s three strikes law. The three strikes were the Pizza Hut robbery, the Domino’s robbery and the murder conviction. The Virginia Supreme Court rejected this claim, concluding that Simmons applied only if Ramdass was ineligible for parole when the jury was considering his sentence. The court said he was not parole ineligible at that time because judgment had not been entered on the Domino’s robbery conviction. Ramdass sought federal habeas corpus relief.

The plurality opinion explained that under 28 U.S.C. sec. 2254(d)(1), Ramdass could not obtain relief in federal habeas proceedings unless the Virginia Supreme Court’s decision on the Simmons claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The plurality relied upon the definitions of "contrary to" and "unreasonable application of" set out in Williams v. Taylor, 529 U.S. 362 (2000).

The Simmons parole ineligibility instruction is required "only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law." This instruction is required because it is "legally accurate." However, in Ramdass’s case, the instruction would not have been legally accurate, because the Virginia Supreme Court had authoritatively determined Ramdass was not parole ineligible at the time the jury considered his sentence. Because of the material factual differences between Simmons and this case, the Virginia Supreme Court’s decision was not "contrary to" the rule in Simmons. The Virginia Supreme Court’s decision also did not result in an "unreasonable application" of Simmons when that court refused to extend Simmons to require a court to determine if a defendant might become parole ineligible. The court rejected Ramdass’s contention that entry of judgment on the Domino’s robbery conviction was a ministerial act which would inevitably occur, because before entry of judgment Ramdass could have filed post-trial motions attacking the verdict, and the trial court could have set aside the verdict.

Justice O’Connor’s opinion concurring in the judgment agreed that the standard for reviewing Ramdass’s claim was that set forth in 2254(d)(1), and emphasized that this standard was narrower than that applicable on direct review. Justice O’Connor agreed with the plurality that the Virginia Supreme Court’s decision was not "contrary to" nor an "unreasonable application of" Simmons. While the question whether a defendant may inform a jury he is parole ineligible is a question of federal law, the question of the defendant’s parole status is a question of state law. Under Virginia law, Ramdass was not parole ineligible at the time of capital sentencing because judgment had not been entered on the Domino’s robbery conviction. However, were entry of that judgment a purely ministerial act which was foreordained, Justice O’Connor would find the facts in Ramdass’s case "materially indistinguishable" from those in Simmons and would therefore find the Virginia Supreme Court’s decision "contrary to" Simmons. "Where all that stands between a defendant and parole ineligibility under state law is a purely ministerial act, Simmons entitles the defendant to inform the jury of that ineligibility . . . even if he is not technically ‘parole ineligible’ at the moment of sentencing." Here, however, entry of judgment was not a purely ministerial act, and Ramdass was not parole ineligible under state law at the time of sentencing.

Artuz v. Bennett, 121 S. Ct. 361 (2000)

The question was whether an application for state postconviction relief containing claims that were procedurally barred was "properly filed" within the meaning of § 2244(d)(2), so that the state petition would toll AEDPA's one-year statute of limitations. The Court held that a state petition is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." 121 S. Ct. at 364. In a unanimous decision written by Justice Scalia, the Court rejected the warden's argument that an application for state postconviction relief is not properly filed unless the claims presented therein meet all state procedural requirements. As it had in prior decisions interpreting AEDPA, the Court relied upon its pre-AEDPA habeas rules in rejecting the warden's argument because it "elides the difference between an 'application' and a 'claim.' Only individual claims, and not the application containing those claims, can be procedurally defaulted under state law pursuant to our holdings in Coleman v. Thompson, 501 U.S. 722 (1991), and Wainwright v. Sykes, 433 U.S. 72 (1977), which establish the sort of procedural bar on which petitioner relies." 121 S. Ct. at 364.

(Terry) Williams v. Taylor, 120 S. Ct. 1495 (2000) (Williams I)

In Williams I, the Court interpreted and applied amended 28 U.S.C Section 2254(d), and granted relief on an ineffective assistance of counsel claim, something the Court had never done, even pursuant to pre-AEDPA law. Under new 2254(d): 1.) relief may not be granted in federal habeas corpus on a claim that was adjudicated on the merits in state, unless 2.) the state court decision was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. The Williams I Court rejected the Warden’s argument that the Virginia Supreme Court’s decision on the Petitioner’s ineffective assistance of counsel claim was entitled to "deference" under new 2254(d), and ruled that the Virginia Supreme Court had not properly applied federal law to the Petitioner’s claim. Under a proper application of federal law, the Petitioner was entitled to relief from his unconstitutional state court judgment.

(Michael) Williams v. Taylor, 120 S. Ct. 1479 (2000) (Williams II)

In Williams II, the Court interpreted and applied new 28 U.S.C Section 2254(e)(2), and determined that the Petitioner was entitled to a federal district court evidentiary hearing with respect to several of his challenges to his conviction and sentence of death. Under 2254(e)(2), a Petitioner who has failed to develop the facts in support of his constitutional challenge to a state court judgment may not develop the facts in federal habeas corpus proceedings unless the facts fall within certain exceptions. Williams II involved a petitioner who argued that he had not failed to develop the facts in state court, rather, he had tried to develop the facts and had been foreclosed from doing so through the actions and inactions of various state actors. The Warden argued that the "failed to develop" language of 2254(e)(2) imposed no fault, strict liability rule – if the facts were not developed in state court (for whatever reason), the Petitioner could not develop the facts in federal court (absent the exceptions).

The Court rejected the Warden’s interpretation of 2254(e)(2), and held that "a failure to develop the factual basis of a claim [in state court] is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel." Where "the prisoner has made a reasonable effort to discover the claims to commence or continue state court proceedings, section 2254(e)(2) will not bar him from developing facts in federal court."

Slack v. McDaniel, 120 S. Ct. 1595 (2000)

In Slack, the Court interpreted both the AEDPA, and pre-AEDPA law, in a way that is at odds with restricting access to the writ of habeas corpus. First, the Court ruled that the right to appeal from the denial of a petition for writ of habeas corpus is not foreclosed under the AEDPA just because the district court ruled on procedural habeas corpus, as opposed to substantive constitutional, grounds. The AEDPA requires that a petitioner receive a certificate of appealability (COA) in order to appeal a district court’s denial of relief, and a certificate of appealability is available when a petitioner makes a "substantial showing of the denial of a constitutional right." Because Slack’s claims were dismissed as an abuse of the writ, the actual constitutional merit of his challenges was not addressed by the district court. Because an appeal can only be taken with respect to constitutional issues, and because no constitutional issue was addressed in the district court, the Warden argued that no appeal could be taken.

The Supreme Court rejected this view and held that when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in the procedural ruling.

The Court also rejected the district court’s finding of abuse of the writ. Mr. Slack’s first federal habeas corpus petition contained claims that had not been presented to state court. The petition was dismissed without prejudice and without any claim being adjudicated so that Slack could present these claims to state court. After these claims were presented to state court, Slack filed a second federal habeas corpus petition containing these newly exhausted, and some additional (i.e., not previously presented to state or federal court), claims. The district court dismissed the additional claims that had not been included in the first habeas corpus petition as an "abuse of the writ," construing the second petition as "a second or successive" petition subject to procedural dismissal rules contained in Rule 9(b), Rules Governing Habeas Corpus Cases Under Section 2254.

The Court reversed and held that when a first petition is dismissed without prejudice and without any claim being adjudicated, a second petition cannot be dismissed as an abuse of the writ and is not subject to Rule 9(b). Instead, the second petition must be treated as if the first petition had never been filed.

Commutation

There have been two grants of clemency thus far in 2002. On January 10, 2002, North Carolina Governor Easley commuted the death sentence of Charlie Mason Alston to a sentence of life imprisonment. Alston had maintained his innocence for the murder of his ex-girlfriend and claimed that DNA testing of scrapings taken from the victim’s fingernails would exonerate him. The vial containing the scrapings was lost, however, and so no testing could be conducted. Governor Easley did not provide an explanation for his clemency decision, stating only that his examination of the case had led him to conclude that the appropriate sentence was life imprisonment without parole.

This is the second clemency grant by Governor Easley. The first was for Robert Bacon, Jr., in October 2001. Bacon had unsuccessfully argued that Easley should not hear the clemency request because he had advocated capital punishment when he was a prosecutor. Bacon had contended that his death sentence was flawed by the jury’s racial bias, an accusation that was corroborated by a juror affidavit. Bacon, who is black, was convicted of killing the husband of his lover, a white woman. According to the juror affidavit, jurors made negative comments about interracial relationships during the deliberations. As with the Alston case, Governor Easley did not provide a detailed explanation for his decision to commute Bacon’s sentence, saying only that life imprisonment was the "appropriate sentence."

On February 25, 2002, the Georgia Board of Pardons and Parole commuted the death sentence of Alexander Williams to life without parole. The Board stated that it concluded a life sentence was appropriate based on the findings of three psychiatrists. Clemency counsel had urged that Williams’ life should be spared for a number of reasons, including the fact that he suffered from delusional schizophrenia.

Mr. Williams was diagnosed with symptoms of schizophrenia upon his arrival to death row and given anti-psychotic medication. His trial attorney never brought up evidence of mental illness at either phase of the capital trial. Among the many organizations and individuals supporting Mr. Williams’ clemency application were five of his trial jurors who stated in letters to the Parole Board that they would not have voted for a sentence of death had they been informed of Williams’ mental illness and abusive childhood.

Innocence

Recently Released From Death Row

On May 3, 2002, former Pennsylvania death row inmate Thomas Kimbell, Jr., was acquitted of charges that he had stabbed four people to death in 1994. Kimbell had received a new trial from the state supreme court in 2000 on the ground that his trial attorney should have been allowed to explore inconsistent statements made to police by one of the victims’ mother. See Commonwealth v. Kimbell, 759 A.2d 1273 (Pa. 2000).

The jury deliberated about 13 hours before returning with a verdict of not guilty. Kimbell is the 101st person to be released from death row post-Furman.

Earlier this year, former Arizona death row inmate Ray Krone was released from prison after DNA testing established that he did not commit the murder for which he was first convicted in 1992.

Krone’s capital conviction was based largely on circumstantial evidence and expert testimony on bite marks. Krone received a death sentence.

In 1995 Krone was granted a new trial from the state supreme court based on the prosecution’s delayed disclosure of a crucial bite mark videotape that was produced by the state's dental expert, as well as the trial court's denial of a continuance to allow Krone to meet the tardily disclosed evidence. State v. Krone, 897 P.2d 621 (Az. 1995). In 1996, Krone was again convicted, but he received a sentence of life imprisonment.

Post-conviction counsel obtained an order permitting DNA testing. The results not only exonerated Krone, but also inculpated another suspect.

Krone was the 100th innocent man released from death row since 1973, and the 12th in which DNA played a substantial role.

In January 2002, Florida prosecutors dropped murder and robbery charges against Juan Roberto Melendez. Melendez had been sentenced to death for a 1983 murder. In December 2001, Florida Circuit Judge Barbara Fleischer ruled that Melendez was entitled to a new trial based on a Brady violation.

Post-conviction DNA Testing

Currently pending in both houses of Congress is the Innocence Protection Act of 2001, H.R. 912, 107th Cong. § 101 (2001); S.486, 107th Congress, 101(a)(3)(2001)

The Senate bill was introduced by Senator Patrick J. Leahy on March 7, 2001. As of May 27, 2002, the bill has 25 co-sponsors. In addition to providing access to DNA testing for federal prisoners, this bill also creates incentives for states to permit such testing by tying grant allocations to enactment of post-conviction DNA legislation. The bill includes a special provision for death row inmates in the various states which precludes states from denying DNA testing if specific conditions are met, and bars the use of procedural rules to prevent a state death row inmate from presenting exculpatory DNA test results in state court. The remedy for a violation of this section is through a civil action for declaratory or injunctive relief.

The House bill was introduced by Representative William D. Delahunt on March 7, 2001. As of May 27, 2002, the bill has 234 cosponsors. It mirrors the key provisions of SB 486.

Many states have already enacted or are in the process of enacting legislation allowing prisoners to request DNA testing in post-conviction. States which have pending DNA legislation or new statutes include the following: Arizona (A.R.S. § 13-4240); Arkansas (A.C.A. § 16-112-202); California (Cal.Penal Code § 1405); Delaware (11 Del. C. § 4504); Florida (F.S.A. § 925.11); Idaho (I.C. § 19-4902); Illinois (725 ILCS 5/116-3); Indiana (IC 35-38–7-1, et seq.); Kansas (KSA § 21-2512); Louisiana (L.S.A-C.Cr.P. Art. 926); Maine (15 M.R.S.A. § 2137, et. seq.); Maryland (Md Code. Crim. Pro. §8-201); Michigan (M.C.L.A. § 770.16); Minnesota (M.S.A. § 590.01); Missouri (V.A.M.S. § 547.035); Nebraska (Neb.Rev.St. § 29-4116, et seq.); New Jersey (N.J.S.A. 2A:84A-32a); New Mexico (NMSA 1978, § 31-1A-1); New York (N.Y. Crim Pro. § 440.30); North Carolina (N.C.G.S.A. § 15A-269); Ohio (pending); Oklahoma (22 Okl.Stat.Ann. § 1371, et. Seq.); Oregon (Or. St. T. 14, Ch. 138 et seq.); Pennsylvania (pending); Tennessee (T.C.A. §40-30-401, et seq.); Texas (Tex.Crim.Pro. Art. 64.01); Utah (U.C.A. 1953 §78-35a-301, et seq.); Virginia (Va. Code Ann. § 19.2-327.1); Washington (Wa. Stat. 10.73.170).

These statutes vary widely from state to state, and counsel should be alert to issues such as the following: (1) time limits on requesting DNA testing; (2) prima facie showing required to obtain testing; (3) procedures after testing is completed; and (4) burden of proof required to obtain testing or relief. Some statutes contain no time limits, see, e.g., Cal. Pen. Code § 1405; Ill. Stat. Ch. 725 § 5/116-3; Ind. § 35-38-7; Va. § 19.2-327.1, while others do. See, e.g., Del. Stat. Title 11 § 4504 (post-conviction motion may not be filed more than 3 years after conviction is final). Some statutes specifically state the motion may be filed "at any time." See, e.g., Ariz. § 13-4240; Utah § 78-35a-301. Regardless of time limits, some statutes do not permit post-conviction DNA testing if the issue was not raised at trial in some manner. See, e.g., Utah § 78-35a-301(4) (no post-conviction DNA testing if "DNA testing was available at the time of trial and the person did not request DNA testing or present DNA evidence for tactical reasons"); Va. § 19.2-327.1 (A)(i) ("the evidence was not known or available . . . or the evidence was not previously subjected to testing because the testing procedure was not available . . . at the time the conviction became final in the circuit court")

Regarding the prima facie showing required to obtain DNA testing, most statutes require the motion to state such matters as: the evidence to be tested still exists and is in a condition to be tested; the chain of custody is established; the evidence was not previously subjected to DNA testing or to the particular test now requested. The statutes differ, however, as to the assertions required regarding what the DNA testing will prove. See, e.g., Ariz. § 13-4240 (court "shall" order testing if, inter alia, "a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through [DNA] testing"; court "may" order testing if, inter alia, a "reasonable probability" exists that verdict or sentence would have been "more favorable" if results of testing had been available or "reasonable probability" exists that DNA testing "will produce exculpatory evidence"); Cal. Penal Code § 1405 (a)(1) (movant must explain why identity was or should have been a "significant" issue and explain how the requested testing "would raise a reasonable probability that the convicted person’s verdict or sentence would be more favorable"); Del. Title 11 § 4504 (movant may request testing to demonstrate "actual innocence"; movant must show that identity was an issue at trial and that "requested testing has the scientific potential to produce new, noncumulative evidence materially relevant to the person’s assertion of actual innocence"); Ill. Ch. 725 §. 5/116-3 (movant must show that "identity was the issue in the trial"); Ind. § 35-38-7-8 (movant must show that the evidence to be tested is "material to identifying the petitioner" as the perpetrator of or accomplice to the offense and that if exculpatory results are obtained, a "reasonable probability" exists that petitioner would not have been prosecuted or convicted or would not have received as severe a sentence); Utah § 78-35a-301(2) (movant must assert "actual innocence," movant must state "a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support," and evidence "has the potential to produce new, noncumulative evidence that will establish the person’s actual innocence"); Va. § 19.2-327.1(A)(iii) (movant must show "the testing is materially relevant, noncumulative, and necessary and may prove the convicted person’s actual innocence"). Some statutes, such as in Utah, require these showings to be made by a preponderance of the evidence; some, such as Virginia, require the showing to be established by clear and convincing evidence; some, such as Indiana, describe the required level of proof only as "prima facie"; some, such as Arizona, do not specifically state a required level of proof.

Some statutes, such as those in Arizona, Indiana and Utah, contain provisions regarding procedures to be followed if the testing produces favorable or unfavorable results.

Access to Evidence for DNA Testing

The Fourth Circuit Court of Appeals recently held that a state prisoner has no due process right under Brady v. Maryland, 373 U.S. 83 to access to biological evidence or a right to conduct newly available techniques such as DNA testing on the evidence. Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002). In an opinion concurring in the denial of the prisoner’s petition for rehearing, Judge Luttig expressed the view that the due process clause does, in certain circumstances, mandate post-conviction testing of evidence with previously unavailable scientific techniques. Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002) (concurring opinion of Luttig, J.) However, because the prisoner had apparently received the evidence for DNA testing through the state court, Luttig agreed that the case did not merit rehearing en banc.

Eyewitness Identification

New Jersey is the first state to adopt the sequential photo line-up method of identification, which has been shown to cut down on the number of false identifications by witnesses without reducing the number of accurate ones. This method has the eyewitness review photographs one at a time, rather than browsing through a group of mug shots. If the witness requests a second look, they are shown all of the photographs again, but in a different order. Ideally the person showing the pictures to the eyewitness will not know who the suspect is.

New Jersey is following a similar procedure for line-ups. Instead of having a group viewed together, the eyewitness is to see the men or women individually.

These procedures find support in recommendations issued by the Department of Justice. See "Eyewitness Evidence: A Guide for Law Enforcement" (Oct. 1999).

These recommendations followed a 1998 study by the National Institute of Justice concerning DNA exonerations.

The "Illinois Governor’s Commission on Capital Punishment Report and Appendices," also includes recommendations for improving lineup and photo spread procedures. See also Gary Wells, et al., "Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Human Behavior 1 (1998)

Error Rates In Capital Cases

In June 2000, a sweeping study of capital convictions and sentences imposed by the States from 1973 through 1995 found that the system is "collapsing under the weight of its own mistakes." The study, led by James S. Liebman, Simon H. Rifkin Professor of Constitutional Law at Columbia University, and reported in "A Broken System: Error Rates in Capital Cases 1973-1995," concluded that serious errors occurred in 68% of death cases. These serious errors included high incidence of prosecutorial misconduct and ineffective assistance of counsel. Of the cases in which state post-conviction relief was granted, 82% later resulted in a sentence less than death, and in 7% of the cases the defendant was exonerated.

In February 2002, the authors of the June 2000 study released "A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It." This second report picks up where the first left off and focuses on finding an explanation for the high error rate identified in the initial study. The principal conclusion of the authors, based on extensive analysis, "is that heavy use of the death penalty, especially when it sweeps in cases where the evidence supporting a capital verdict is not substantial, is a leading predictor of serious capital error." Four other conditions are found to be strongly predictive of high rates of serious error in capital cases:

— the homicide threat to politically influential communities—measured by comparing the rates at which whites and blacks are victimized by homicides;

— well-founded doubts about the ability of state law enforcement policies and officials to respond effectively to the problem of serious crime—measured by the rate at which serious criminals are apprehended, convicted and incarcerated;

— state judges' susceptibility to negative political consequences if they do not conform their rulings in capital cases to popular sentiments—measured by the extent to which judicial selection techniques place state judges at risk of political discipline for unpopular rulings; and

— the size of African-American and poor communities, which some influential citizens and officials evidently associate with higher rates of serious crime.

Not surprisingly, the authors further noted that underfunded and overburdened court systems also increase the risk of serious capital error. In addition, they concluded that reviewing courts fail to effectively keep serious errors from occurring and fail to keep all unreliable death verdicts from being carried out.

The report concludes with numerous suggestions for moderating serious capital error.

The much awaited study of the Illinois death penalty was released in April 2002. The report, "Illinois Governor’s Commission on Capital Punishment Report and Appendices," contains many recommendations for improvement in the Illinois death penalty scheme, and addresses each of the stages in a criminal prosecution. The report begins with recommendations for making police and pretrial investigations more reliable, including a recommendation that all interrogation be videotaped, and that the "double-blind" procedure be utilized where practicable in line-ups and photospreads. The report later addresses the question of death eligibility and recommends that the number of eligibility factors be reduced from the current twenty to the following five:

— murder of police officer or firefighter;

— murder occurring at a correctional facility;

— murder of two or more persons;

— intentional murder involving the infliction of torture; and

— murder by a person who is under investigation for or charged with or had been convicted of a crime that would be a felony under Illinois law, of anyone involved in the investigation, prosecution or defense of that crime, including but not limited to, witnesses, jurors, judges, prosecutors and investigators.

As for prosecutorial discretion in charging capital cases, the Illinois Commission recommends a mandatory review of death eligibility undertaken by a state-wide review committee.

For sentencing proceedings, the Commission advocates permitting allocution by the defendant. Regarding appellate review of a death sentence, the Commission recommends that the Illinois Supreme Court adopt intercase proportionality review.

In June 2001, the Individual Rights and Responsibilities Section of the American Bar Association issued "Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States." This document provides protocols to assist anyone undertaking a review of death penalty laws and procedures in individual states. These protocols[E]ncourage an examination of 1) the actors in and stages of the death penalty process and ways in which those actors may contribute to flaws that can lead to arbitrary and unfair imposition of capital punishment and, in some cases, to the wrongful conviction of innocent people and; 2) the treatment of vulnerable populations - individuals convicted of killing white people; members of racial minorities; individuals who were under age of 18 at the time they committed capital offenses; mentally retarded and mentally ill defendants and death row inmates - in the capital punishment system.

Prosecutorial Misconduct

"[T]he special role played by the American prosecutor in the search for truth in criminal trials . . . is 'the representative not of an ordinary party, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.'

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)."

Strickler v. Green, 1999 WL 392982, *9 (1999).

The Chicago Tribune has published the results of a nationwide study of prosecutorial misconduct in murder cases. The study, entitled "Trial and Error," found 381 cases in which homicide convictions were set aside because prosecutors had failed to disclose evidence favorable to the defense or knowingly presented false evidence. The five-part series, as well as information about the research, and a searchable map with links to summaries of cases from each state, can be reached by going to chicagotribune.com . The Tribune study is limited to reported homicide cases in which relief was ultimately granted.

The Chicago Tribune has followed up on this series with a study of the death penalty systems in Texas and Illinois. In a two part article the Tribune studies three cases in which evidence discovered post-conviction undermined the reliability of the capital convictions and sentences. These articles can be found by clicking here.

For a recent Supreme Court case in which exculpatory impeachment evidence was suppressed, but the prejudice resulting from the suppression was found insufficient to warrant reversal, see Strickler v. Greene initial brief and reply brief.

The Oklahoma State Bureau of Investigation is reviewing the cases involving the testimony of former Oklahoma City police chemist Joyce Gilchrist, who was fired on September 25. A federal grand jury has also subpoenaed evidence from ten murder cases in which Gilchrist was involved. In nine of those cases, the defendants have already been executed. Investigation into Gilchrist’s past testimony has raised serious questions regarding the accuracy of that testimony. For example, in the case of Malcolm Johnson, who was executed last year, Gilchrist testified that Johnson’s blook type matched sperm collected from the crime scene, but a reexamination of the evidence has shown that the slides on which Gilchrist based her testimony contained no sperm. In 2001, a court overturned Alfred Mitchell’s death sentence because of Gilchrist’s "untrue" testimony, and Jeffrey Pierce was released from prison after DNA tests disproved Gilchrist’s testimony in his case. The Oklahoma State Bureau of Investigation is also beginning to review 371 cases involving serologist Kenneth Ede, whose testimony in a 1983 murder trial has been contradicted by a recent DNA test.

OTHER NEWS

TheDeath Penalty Information Centerreports:

Supreme Court Declares Execution of Persons with Mental Retardation Unconstitutional

The Supreme Court issued a landmark ruling today ending the execution of those with mental retardation. In Atkins v. Virginia, the Court held that it is a violation of the ban on cruel unusual punishment to execute death row inmates who have mental retardation. The decision reflects the national consensus which has formed on this issue. (Associated Press, June 20, 2002). Read the opinion. See also, DPIC's Press Release and Mental Retardation and the Death Penalty.

Washington Post Calls on Congress to Reform Death Penalty

In a recent Washington Post editorial, the newspaper called on Congress to pass the Innocence Protection Act, legislation to ensure inmate access to DNA testing and to improve the quality of legal representation for capital defendants. The editorial stated:

Reasonable people disagree about the death penalty, but nobody can disagree that society should take extreme care to avoid executing innocent people. The recent history of the death penalty strongly suggests that many states have not been careful enough. Without question, innocent people have come within hours of being put to death. Substantial questions remain about the guilt of some who did not escape execution...Congressional action on this subject should not be controversial, especially considering the movement for reform at the state level and the wide bipartisan support in Congress for this bill.

On June 18, hearings on the Innocence Protection Act occurred in both the U.S. House and Senate. (The Washington Post, June 18, 2002). For more information on the Innocence Protection Act, visit The Justice Project. See also, Recent Legislative Activity.

NEW RESOURCE: Within These Walls: Memoirs of a Death House Chaplain

In "Within These Walls: Memoirs of a Death House Chaplain," Rev. Carroll Pickett recalls his 15 years as chaplain to death row inmates in Huntsville, Texas, and provides an account of ministering to 95 men in their final hours before execution. Rev. Pickett examines the death penalty based no his professional and personal experiences in Texas. "Like so many Texans, I was raised in an atmosphere that insisted the only real justice was that which claimed an eye for an eye. I was wrong," he said. "As I participated in the endless process that would earn my state infamous recognition for its death penalty stance, I found myself wondering just what we were accomplishing." (St. Martin's Press, 2002). See also, Studies, Books, and Law Reviews.

Nevada Subcommittee Backs Death Penalty Reforms

The Nevada Assembly's Subcommittee to Study the Death Penalty and DNA Testing recently made a series of recommendations to reform Nevada's death penalty policies. Among the reforms supported by the panel are:

• ending the practice of executing those with mental retardation.
• discontinuing the use of a three-judge panel in capital cases where there is a hung jury, and replace the current policy with an automatic sentence of life without parole or a new jury.
• improving DNA testing in capital cases.
• reducing the number aggravating factors that prosecutors can bring up during capital trials and increasing the number of mitigating factors that defense attorneys can use to defend clients facing a death sentence.
• urging the state Supreme court to take steps to ensure proper legal representation for defendants in capital cases and to provide judges with continuing education on how to handle these cases.
• conducting a study to determine the costs to local and state government to maintain the death penalty.

(Associated Press, June 14, 2002). See also, Recent Legislative Activity.

New Jersey Video Highlights Need for Death Penalty Moratorium

New Jerseyans for a Death Penalty Moratorium have produced a 30-minute video highlighting the need for death penalty reform and a state moratorium on executions in New Jersey. The video, narrated by Susan Sarandon, features national death penalty experts discussing issues such as cost, the execution of those with mental illness and mental retardation, and the exoneration of innocent inmates from death row. View an excerpt from the video. For more information about the video, please contact the New Jerseyans for a Death Penalty Moratorium.

New York City Council Committee Supports Death Penalty Moratorium Resolution

The New York City Council Committee on Fire and Criminal Justice, chaired by Councilwoman Yvette D. Clark, recently voted to support Resolution 12A, a measure that calls on Governor George Pataki and the New York State Legislature to halt all executions pending a review of capital punishment cases in the state. "It's time that New York City addresses this very serious, absolute and irrecoverable decision," Clark stated. The non-binding resolution also voices the Council's support for a national moratorium on executions. (Newsday, June 13, 2002).