The last issue of Spring 2001 brings good news on several fronts with no less than five capital case reversals noted this week. The New Jersey Supreme Court inState v. Koskovich(has reversed due to cumulative error relating to the trial court's instruction to the jury in respect of the victim- impact evidence, the court's instruction concerning defendant's likely non-capital sentences, and the court's instruction in respect of the balancing of aggravating and mitigating factors as the death-sentence determiner. The North Carolina Supreme Court inState v. Allen has held that the prosecution's closing argument from outside the record was reversible error. The Virginia Supreme Court inPowell v. Commonwealthhas held that the trial court erred in permitting the Commonwealth to amend the indictment for capital murder. In Delaware the state high court inStevenson v. State has held that the trial judge should have recused himself as he was too close to the events surrounding the murder at issue. In the final reversible error column case of this edition the Virginia Supreme Court inGreen v. Commonwealthhas held the trial court erred in not removing for cause two jurors.

Several notable Supreme Court cases are also noted. As a non-trial lawyer most disconcerting personally wasDuncan v. Walkerwhich held a first federal habeas petition does not toll the limitation period for subsequent petitions. InAlabama v. Bozemanthe Court explored the Interstate Agreement on Detainers, holding states receiving criminal defendants prior to the termination of a sentence in another state may not arraign the defendant and then return the prisoner before trial. InSaucier v. Katzthe Court broadened the defense of qualified immunity holding courts must determine whether a right was clearly established in light of the cases' specific contexts, not as a broad general proposition. Finally, and perhaps the most important privacy case this term, perhaps even this decade, inKyllo v. US Justice Scalia writing for a simple majority held the government's use of a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, is a Fourth Amendment "search" and presumptively unreasonable without a warrant.

As noted above this is a double issue. Beginning with this issue the goal will be to get editions out at the beginning of each week for cases decided the prior week, unless case scheduling will simply not permit it which has been the cause for the last few issues to be double issues. Due to the accelerated schedule, please feel free to contribute any decision in your state you feel is warranted. I hope to have all the administrative adds to the list done this week & to start uploading the brief collections this weekend with 1000 briefs, motions & pleadings up by mid-Summer.

Since last issue three people have been executed:

6/11 Timothy McVeigh US Lethal Injection

6/13 John Wheat TX Lethal Injection

6/14 Jay Scott OH Lethal Injection

Scheduled for execution in the next week are

6/19 Juan Raul Garza Indiana - federal

6/22 Glenn Holladay Alabama

Featured this week is the clemency petition of Juan Raul Garza. Mr. Garza, by the time you read this, will have been executed, bringing George Bush's execution numbers to 154. The petition is available in full at http://www.deathrowspeaks.net/jaun_garza.htm. Next week's issue will return to Texas looking at (tentatively) the new public defender law there. The first week in July will focus on the end of the year Supreme Court roundup. The remainder if the summer will include out takes from litigation guides & CLEs concerning the basics of capital litigation with a special emphasis on the Fifth Circuit.

Please excuse the abnormally large number of typos this week. As some of you already know, I rolled my jeep in the foothills of the Kittanies/Appalachian mountains and broke part of my left hand requiring me to type one handed for the foreseeable future. (I am fine & the jeep is running great too, the roll cage literally saved my life).

On one final personal note, a special thank you goes out to my dear friend Abe Bonowitz, the director of Citizens United for Alternatives to the Death Penalty (www.CUADP.org). I don't recall ever explicitly pitching anything in the weekly, that is, until now. CUADP personally is my favorite anti-death penalty organization as it knows how to stretch a dollar & make an impact. Due to a large number of events CUADP has spearheaded this year, however, their funds are tapped. Abe, like most who do this work, has passed up much more lucrative opportunities to fight in the trenches & if you can spare even a few dollars, frequent flyer miles, etc. please contact 800-973-6548 or CUADP/PMB 297/177 US Highway #1/Tequesta, FL 33469. CUADP also has some fantastic message t-shirts, etc., at http://www.cuadp.org/abolitionwear.html.

This issue is located at htttp://www.capitaldefenseweekly.com/archives/010618.htm.

Supreme Court

Duncan v. Walker (US) A federal habeas petition is not an application for State post-conviction or other collateral review within the meaning of 28 USC 2244(d)(2), and thus a first federal habeas petition does not toll the limitation period for subsequent petition.

The time during which an “application for State post-conviction or other collateral review” is pending tolls the limitation period for filing federal habeas petitions. 28 U.S.C. § 2244(d)(2). Before the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), respondent’s state robbery conviction became final. He filed, inter alia,a federal habeas petition under §2254. The District Court dismissed the petition without prejudice because it was not apparent that respondent had exhausted available state remedies. On May 20, 1997, without having returned to state court, respondent filed another federal habeas petition. The District Court dismissed that petition because respondent had not filed within a reasonable time from AEDPA’s effective date. In reversing, the Second Circuit found that respondent’s first federal habeas petition was an application for “other collateral review” that tolled the limitation period under §2244(d)(2) and made his current petition timely.

Held:A federal habeas petition is not an “application for State post-conviction or other collateral review” within the meaning of §2244(d)(2). As a result, §2244(d)(2) did not toll the limitation period during the pendency of respondent’s first federal habeas petition. The Court begins with the language of the statute. See, e.g., Williamsv. Taylor, 529 U.S. 420, 431. Petitioner’s contention that “State” applies to the entire phrase “post-conviction or other collateral review” is correct. To begin with, Congress placed “State” before that phrase without specifically naming any kind of “Federal” review. The fact that other AEDPA provisions denominate expressly both “State” and “Federal” proceedings, see, e.g.,§2254(i), supplies strong evidence that Congress would have mentioned “Federal” review expressly had Congress intended to include federal review. See Batesv. United States, 522 U.S. 23, 29—30. Respondent’s contrary construction would render the word “State” insignificant, if not wholly superfluous. This Court’s duty to give effect, where possible, to every word of a statute, United Statesv. Menasche, 348 U.S. 528, 538—539, makes the Court reluctant to treat statutory terms as surplusage. This is especially so when the term occupies so pivotal a place in the statutory scheme as the word “State” in the federal habeas statute. But under respondent’s rendition, “State” has no operative effect on the scope of §2244(d)(2). The clause would have precisely the same content were it to read “post-conviction or other collateral review.” Contrary to the Second Circuit’s characterization, petitioner’s interpretation does not yield the linguistic oddity “State other collateral review,” but more naturally yields the understanding “other State collateral review.” Further, that court’s reasoning that the phrase “other collateral review” would be rendered meaningless if it did not refer to federal habeas petitions depends on the incorrect premise that the only state “collateral” review is “post-conviction” review. “[O]ther collateral review” could include, e.g.,a state court civil commitment or civil contempt order. Congress also may have used “post-conviction or other collateral” in recognition of the diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction. Examination of the AEDPA provision establishing the limitation period for filing §2254 petitions in state capital cases, §2263(b)(2), shows that Congress used the disjunctive clause “post-conviction review or other collateral relief” where the latter term could not possibly include anything federal within its ambit. Petitioner’s construction is also far more consistent than respondent’s with AEDPA’s purpose to further the principles of comity, finality, and federalism. Respondent contends that petitioner’s interpretation creates the potential for unfairness to litigants who file timely federal petitions that are dismissed without prejudice after the limitation period has expired. But the Court’s sole task here is one of statutory construction. And in light of the facts that respondent never cured the defects that led to the dismissal of his first federal petition during the remaining nine months of the limitation period, and that his 1996 and 1997 petitions contained different claims, this Court has no occasion to address alternative scenarios. Pp. 3—14.

208 F.3d 357, reversed and remanded.

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

Alabama v. Bozeman(US) Under the Interstate Agreement on Detainers, states receiving criminal defendants prior to the termination of a sentence in another state may not arraign the defendant and then return the prisoner before trial.

The Interstate Agreement on Detainers (Agreement) creates uniform procedures for lodging and executing a detainer, i.e.,a legal order that requires a State to hold a currently imprisoned individual when he has finished serving his sentence so that he may be tried by a different State for a different crime. As relevant here, the Agreement provides that a State that obtains a prisoner for purposes of trial must try him within 120 days of his arrival, Art.IV(c), and if it returns him to his original place of imprisonment prior to that trial, charges shall be dismissed with prejudice, Art.IV(e). While respondent Bozeman was serving a federal prison sentence in Florida, the Covington County, Alabama, district attorney sought temporary custody of Bozeman to arraign him on firearms charges and to appoint counsel. When taken to Covington County, Bozeman spent the night in the county jail, appeared in local court the next morning, obtained local counsel, and was returned to federal prison that evening. About one month later, he was brought back to the county for trial. Bozemans counsel moved to dismiss the state charges on the ground that, because Bozeman had been returned to the original place of imprisonment (namely, the federal prison) prior to trial on state charges being had, in violation of Article IV(e), the local court had to dismiss the charges with prejudice in light of Art. IV(e)s command as to remedy. Bozeman was convicted, and an appeals court affirmed. The State Supreme Court reversed, holding that the Agreements literal language controlled and required dismissal of the state charges.

Held:Theliteral language of Article IV(e) bars any further criminal proceedings when a defendant is returned to the original place of imprisonment before trial. Pp. 510.

(a)Alabama claims that Article IV(e)s basic purpose is to prevent shuttling that would interrupt a prisoners rehabilitation and that, since the one-day interruption here did not interrupt rehabilitation significantly any violation is technical, harmless, or de minimus. However, the Agreements language militates against an implicit exception, for it is absolute, as the word shall is ordinarily the language of command. Andersonv. Yungkau, 329 U.S. 482, 485. Moreover, the Agreement makes no distinction among different kinds of arrivals, e.g.,exempting those that are followed by return within a short, specified time period, or those that are simply for arraignment purposes. Pp. 57.

(b)Even assuming that the Agreement exempts violations that, viewed in terms of its purposes, are de minimus, the violation here could not qualify as trivial, because the no return provisions purpose cannot be a simple, direct effort to prevent the interruption of rehabilitation. Article IV(e)s requirement that the prisoner remain in the county jail means that he will typically spend 120 days away from the sending States rehabilitation programs, whereas returning him prior to trialin violation of IV(e)would permit him to participate in the sending States program for some of those days. To call such a violation technical, because it means fewer days spent away from the sending State, is to call virtually everyconceivable antishuttling violation technical. The Agreement may seek to remove rehabilitation obstructions in a different way: Requiring the receiving State to pay for the prisoners incarceration during the pretrial period (pursuant to Article V) may give the State an incentive to shorten that period and dispose of detainers expeditiously. Alternatively, the Agreements drafters may have sought to minimize the number of shuttles in the belief that the shuttling itself adds to the uncertainties obstructing rehabilitation programs, see Art.I. Regardless of the antishuttling remedys original purpose, given the Agreements absolute language, it is enough to explain why Alabamas view is not plausible and to point to other purposes more easily squared with Article IV(e)s text and operation. Pp. 79.

(c)Alabamas additional claim that return to the sending State after a brief journey to the receiving State for pretrial purposes is helpful, not harmful, to the prisoner is a policy argument more appropriately addressed to legislatures. And the federal statutory provision to which the Solicitor General points governs only when the United States is a receiving State, which does not help Alabamas cause. Although this Court rejects Alabamas interpretation of the Agreement, a receiving State is not barred from returning a prisoner when it would be mutually advantageous and the prisoner accordingly waives his Article IV(e) rights. Pp. 910.

781 So. 2d 165, affirmed.

Breyer, J.,delivered the opinion of the Court, Parts I, IIA, and IIC of which were unanimous, and Part IIB of which was joined by Rehnquist, C.J.,and Stevens, OConnor, Kennedy, Souter,and Ginsburg, JJ.

Kyllo v. US(US) The government's use of a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, is a Fourth Amendment "search" and presumptively unreasonable without a warrant.

Suspicious that marijuana was being grown in petitioner Kyllos home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllos garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllos home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllos life, only amorphous hot spots on his homes exterior.

Held:Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment search, and is presumptively unreasonable without a warrant. Pp.313.

(a)The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment search has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see Californiav. Ciraolo, 476 U.S. 207, 213, ruling that visual observation is no search at all, see Dow Chemical Co.v. United States, 476 U.S. 227, 234235, 239. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katzv. United States, 389 U.S. 347, 361: A search does not occureven when its object is a house explicitly protected by the Fourth Amendmentunless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.g.,Californiav. Ciraolo, supra,at 211. Pp.35.

(b)While it may be difficult to refine the Katztest in some instances, in the case of the search of a homes interiorthe prototypical and hence most commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the homes interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, Silvermanv. United States, 365 U.S. 505, 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp.67.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Governments argument that the thermal imaging must be upheld because it detected only heat radiating from the homes external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technologyincluding imaging technology that could discern all human activity in the home. Also rejected is the Governments contention that the thermal imaging was constitutional because it did not detect intimate details. Such an approach would be wrong in principle because, in the sanctity of the home, alldetails are intimate details. See e.g., United Statesv. Karo, 468 U. S. 705; Dow Chemical, supra,at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliverv. United States, 466 U. S. 170, 181. Pp.712.

(d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable causeand if not, whether there is any other basis for supporting admission of that evidence. Pp.1213.

190 F.3d 1041, reversed and remanded.

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

Florida v. Thomas(US) Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), sets out the four instances where the U.S. Supreme Court may exercise jurisdiction in the face of further criminal proceedings in state court below.

While officers were investigating marijuana sales and making arrests at a Florida home, respondent Thomas drove up, parked in the homes driveway, and walked toward the back of his car. An officer met him there and asked his name and whether he had a drivers license. After a check of Thomas license revealed an outstanding warrant, the officer arrested him, handcuffed him, and took him inside the home. The officer then went back outside, alone, and searched Thomas car, finding several bags containing methamphetamine. Thomas was charged with possession of that drug and related offenses. The trial court granted his motion to suppress the evidence of narcotics and narcotic paraphernalia. The Second District Court of Appeal reversed, finding the search valid under New Yorkv. Belton, 453 U.S. 454, in which this Court established a bright-line rule permitting an officer who has made a lawful custodial arrest of a cars occupant to search the cars passenger compartment as a contemporaneous incident of the arrest. Holding that Beltondid not apply, the Florida Supreme Court reversed, but remanded for the trial court to determine whether the vehicle search was justified under Chimelv. California, 395 U.S. 752. This Court granted certiorari to consider whether, as the State Supreme Court had held, Beltons bright-line rule is limited to situations where the officer initiates contact with a vehicles occupant while that person remains in the vehicle.

Held:TheCourt lacks jurisdiction to decide the question on which certiorari was granted. Although the parties did not raise the issue in their briefs on the merits, this Court must first consider whether it has jurisdiction to decide this case. See Duquesne Light Co.v. Barasch, 488 U.S. 299, 306. Title 28 U.S.C. 1257(a) authorizes this Court to review [f]inal judgments by the highest court of a State where any right is specially set up or claimed under the Constitution. In a criminal prosecution, finality generally is defined by a judgment of conviction and the imposition of a sentence. Fort Wayne Books, Inc.v. Indiana, 489 U.S. 46, 54. However, in certain circumstances, the Court has treated state-court judgments as final for jurisdictional purposes even though further proceedings were to take place in the state court. Flyntv. Ohio, 451 U.S. 619, 620621. In Cox Broadcasting Corp.v. Cohn, 420 U.S. 469, 479483, the Court divided cases of this kind into four categories: (1) cases in which there are further proceedings, even entire trials, yet to occur in the state courts, but where the federal issue is conclusive or the outcome of further proceedings preordained; (2) cases in which the federal issue, finally decided by a States highest court, will survive and require decision regardless of the outcome of future state-court proceedings; (3) cases in which the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case; and (4) cases in which the state courts have finally decided the federal issue with further proceedings pending in which the party seeking review in this Court might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. Because none of those categories fits the Florida Supreme Courts judgment in this case, the judgment is not final. Pp.26.

Certiorari dismissed for want of jurisdiction. Reported below: 761 So.2d 1010.

Rehnquist, C.J.,delivered the opinion for a unanimous Court.

Saucier v. Katz(US) In determining whether qualified immunity applies in civil rights cases, courts must determine whether a right was clearly established in light of the cases' specific contexts, not as a broad general proposition.

Respondent Katz, president of respondent In Defense of Animals, filed a suit pursuant to Bivensv. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, against, inter alios,petitioner Saucier, a military policeman. Katz alleged, among other things ,that Saucier had violated his Fourth Amendmentrights by using excessive force in arresting him while he protested during Vice President Gore’s speech at a San Francisco army base. The District Court declined to grant Saucier summary judgment on qualified immunity grounds. In affirming, the Ninth Circuit made a two-part qualified immunity inquiry. First, it found that the law governing Saucier’s conduct was clearly established when the incident occurred. It therefore moved to a second step: to determine if a reasonable officer could have believed, in light of the clearly established law, that his conduct was lawful. The court concluded that this step and the merits of a Fourth Amendmentexcessive force claim are identical, since both concern the objective reasonableness of the officer’s conduct in light of the circumstances the officer faced at the scene. Thus, it found, summary judgment based on qualified immunity was inappropriate.

Held:

1. A qualified immunity ruling requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest. The Ninth Circuit’s approach cannot be reconciled with Andersonv. Creighton, 483 U.S. 635. A qualified immunity defense must be considered in proper sequence. A ruling should be made early in the proceedings so that the cost and expenses of trial are avoided where the defense is dispositive. Such immunity is an entitlement not to stand trial, not a defense from liability. Mitchellv. Forsyth, 472 U.S. 511, 526. The initial inquiry is whether a constitutional right would have been violated on the facts alleged, for if no right would have been violated, there is no need for further inquiry into immunity. However, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is whether the right was clearly established. This inquiry must be undertaken in light of the case’s specific context, not as a broad general proposition. The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. See Wilsonv. Layne, 526 U.S. 603, 615. The Ninth Circuit’s approach–to deny summary judgment if a material issue of fact remains on the excessive force claim–could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. Harlowv. Fitzgerald, 457 U.S. 800, 818. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. The Ninth Circuit concluded that qualified immunity is duplicative in an excessive force case, thus eliminating the need for the second step. In holding that qualified immunity applied in the Fourth Amendmentcontext just as it would for any other official misconduct claim, the AndersonCourt rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. In an attempt to distinguish Anderson,Katz claims that the subsequent Grahamv. Connor, 490 U.S. 386, decision set forth an excessive force analysis indistinguishable from qualified immunity, thus rendering the separate immunity inquiry superfluous and inappropriate in such cases. Contrary to his arguments, the immunity and excessive force inquiries remain distinct after Graham. Grahamsets forth factors relevant to the merits of a constitutional excessive force claim, which include the severity of the crime, whether the suspect poses a threat to the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id.,at 396. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed. The qualified immunity inquiry’s concern, on the other hand, is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. An officer might correctly perceive all of the relevant facts, but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. Pp. 4—11.

2. Petitioner was entitled to qualified immunity. Assuming that a constitutional violation occurred under the facts alleged, the question is whether this general prohibition was the source for clearly established law that was contravened in the circumstances. In the circumstances presented to petitioner, which included the duty to protect the Vice President’s safety and security from persons unknown in number, there was no clearly established rule prohibiting him from acting as he did. This conclusion is confirmed by the uncontested fact that the force used–dragging Katz from the area and shoving him while placing him into a van–was not so excessive that respondent suffered hurt or injury. Pp. 11—14.

194 F.3d 962, reversed and remanded.

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

Captial Case Relief Granted

Stevenson v. State(Del.) Trial judge should have recused himself as he was too close to the events surrounding the murder at issue.

The trial judge elaborated at length on the circumstances that led to Heath's murder. The judge referred to Heath as "a young man, equally talented and possessing the same ambitions for life which [the defendants] held" but commented that Heath "was expendable" because he was the security officer who had participated in the investigation that led to Stevenson's arrest. Id. at 41. Later, the trial judge stated:

This Court cannot recall a more chilling and premeditated, execution-style murder than was conclusively proven in this case. A security officer was preparing to go to court to seek redress on behalf of his employer. That this route was short-circuited by his elimination constitutes an attack upon the very foundation of our judicial branch of government.

Utter contempt and disdain for the judicial process were evidenced by Manley's and Stevenson's premeditated and outrageously cold blooded assassination of a wholly innocent witness to a crime. Id. at 42.

It is obvious that the trial judge harbored strong feelings about the murder of Heath whom he had observed as a witness in the suppression hearing. Of more concern, however, is that the trial judge apparently viewed the murder of Heath as an attack on the judicial process -- the very process in which the trial judge had personally participated as the judge handling the suppression hearing. While the trial judge's repulsion at the killing of an innocent witness is understandable, his sentencing findings carry a tone of personal affront. In the context of a capital punishment case, this is troubling, particularly when viewed in light of the trial judge's personal request for assignment of the Manley-Stevenson murder cases even before the defendants were indicted.

As this Court recently commented in Barrow v. State, Del. Supr., 749 A.2d 1230, 1249 (2000), "The imposition of the death penalty requires scrupulous adherence to the constitutional standards that authorize its use." Our review of capital punishment cases has been marked by a close scrutiny to insure that the process is not only fair but appears fair. This heightened scrutiny springs from the recognition that capital punishment is "unique in its severity and irrevocability." Gregg v. Georgia, 428 U.S. 153, 187 (1976).

In the capital punishment calculus under Delaware law, the judge, more than the jury, acts on the conscience of the community. In this case the exercise of the decision to impose capital punishment is subject to serious question given the trial judge's intervention in the assignment process.

The Court is aware that there is extended debate at the national and local level concerning whether the death penalty is fairly imposed and that there are calls for a moratorium on its use. While the adoption of the death penalty as an appropriate form of punishment is a legislative prerogative, the judiciary has a special obligation to ensure that the standards governing its application are applied fairly and dispassionately and, just as important, appear to be so. Indeed, this Court is required by statute to automatically review the imposition of death sentences to ensure they are not arbitrarily imposed or that due process was not lacking, even where the defendant sentenced to death has not appealed. See 11 Del. C. § 4209(g).

The trial judge's participation in the sentencing process is not subject to a harmless error analysis, since, given the closeness of the jury vote, we cannot say with confidence that another Superior Court judge would impose the death penalty after considering the jury's recommendation. *fn5 In short, the appearance of partiality evident in this case creates too great a risk that a constitutional violation has occurred in the imposition of the death penalty. *fn6

Although the impetus for examining the assignment process of the trial judge was Stevenson's post-conviction claim that the trial judge should have recused himself from ruling upon Stevenson's post-conviction relief petition under Super. Ct. Crim. R. 61, any remedy to correct the problem, must extend to Manley, as well. The defendants were indicted, tried and sentenced jointly and any taint of partiality extends to both. Therefore, we conclude that granting a new penalty hearing as to each defendant is necessary to ensure that the defendants were not deprived of due process in the sentencing phase and to advance public confidence in the administration of justice.

We recognize that the remedy directed in this matter, a new penalty hearing, is not the result of evidentiary rulings or errors that occurred during the penalty hearing and that may have affected the jury's recommendation. Compare Barrow, 749 A.2d at 1249. The capital sentencing procedure mandated by 11 Del. C. § 4209 is a unitary process, however, involving a "hearing conducted by the trial judge before a jury," § 4209(b)(2), with the judge imposing sentence "after considering the recommendation of the jury," § 4209(d). Thus, to correct any appearance of impropriety that occurred through the personal participation of the trial judge in the sentencing process, we have no alternative but to order a new penalty hearing to be conducted by a different judge who, in turn, will be required to consider, anew, the recommendation of a jury.

Our direction for a new penalty hearing does not necessarily end the matter because there remain the Rule 61 post-conviction relief petitions of both Stevenson and Manley, the rejection of which by the trial judge prompted this appeal. *fn7 Each of those petitions contains claims directed to the guilt phase of the trial, including claims of ineffective assistance of counsel. Moreover, on both appeals to this Court, the defendants complain of the trial judge's refusal to grant them an evidentiary hearing on their post-conviction claims. Our present ruling is limited to the recusal issue and its effect on the penalty hearing and we do not consider the merits of any claims directed to the guilt phase. Because we have concluded that the trial judge's role in the sentencing process created the appearance of impropriety, the judge's participation beyond that point cannot be condoned. The merits of claims directed to the guilt phase must be considered by a new judge, ab initio, with leave granted to the defendants to amend their petition, if necessary in the light of the present ruling.

While a new penalty hearing is required in any event, the successor judge should first consider the reasserted post-conviction petitions in order to determine whether relief involving the guilt phase is also required. We express no opinion on that matter and we emphasize that our ruling that the trial judge should not have participated in the sentencing process does not suggest that the trial judge's participation in the guilt phase resulted in any specific prejudice to the defendants. The appellants have not identified any instance of such prejudice and our decision in the direct appeal found no error with respect to the claims there asserted.

State v. Allen(NC) Prosecutor's argumenyt from outside the record was reversible error.

We have repeatedly stated that “[i]n both the guilt- innocence and the sentencing phases of a capital trial, counsel is permitted wide latitude in his argument to the jury. He may argue the facts in evidence and all reasonable inferences therefrom as well as the relevant law.” State v. Sanderson, 336N.C. 1, 15, 442 S.E.2d 33, 42 (1994) (citations omitted). “'Counsel may not, however, place before the jury incompetent and prejudicial matter by expressing personal knowledge, beliefs, and opinions not supported by evidence.'” State v. Wilson, 335 N.C. 220, 225, 436 S.E.2d 831, 834 (1993) (quoting State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988)). The determination of “'[w]hether counsel has abused this right is a matter ordinarily left to the sound discretion of the trial court.'” Id. (quoting Anderson, 322 N.C. at 37, 366 S.E.2d at 468). Upon objection, however, “'the trial court has the duty to censor remarks not warranted by the evidence or law.'” Id. (quoting Anderson, 322 N.C. at 37, 366 S.E.2d at 468).

Specifically, N.C.G.S. § 15A-1230(a) provides as follows:

During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.

N.C.G.S. § 15A-1230(a) (1999). In this regard, this Court has repeatedly stressed that counsel may not “travel outside the record” by arguing facts or matters not included in the evidence of record. State v. Smith, 352 N.C. 531, 560, 532 S.E.2d 773, 791-92 (2000), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ 69 U.S.L.W. 3629 (2001); Sanderson, 336 N.C. at 15-16, 442 S.E.2d at42; Wilson, 335 N.C. at 224-25, 436 S.E.2d at 834; Anderson, 322 N.C. at 37, 366 S.E.2d at 468; State v. Covington, 317 N.C. 127, 130-31, 343 S.E.2d 524, 526-27 (1986); State v. Williams, 314 N.C. 337, 358, 333 S.E.2d 708, 722 (1985); State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975).

In order to demonstrate prejudicial error, a defendant must show that there is a reasonable possibility a different result would have been reached had the error not occurred. N.C.G.S. § 15A-1443(a) (1999); State v. Rosier, 322 N.C. 826, 829, 370 S.E.2d 359, 361 (1988). During closing arguments in the instant case, the prosecutor traveled well beyond the record when he stated to the jury that not only had the trial court let the jury hear these statements, but also that the court had “found” the statements of Ms. Santos “trustworthy and reliable.” This portion of the argument was not part of the evidence presented to the jurors. Rather, it was a second-hand statement or revelation of the trial judge's legal determination or opinion on the evidence made during a hearing properly held outside the jury's presence. The jurors were not entitled to hear the trial judge's legal findings and conclusions regarding the admissibility of these hearsay statements. This argument clearly conveyed an opinion as to the credibility of evidence that was before the jury. This opinion was attributed directly to the trial judge in his presence, and he then overruled defendant's objection to this revelation.

Parties in a trial must take special care against expressing or revealing to the jury legal rulings which have beenmade by the trial court, as any such disclosures will have the potential for special influence with the jurors. See N.C.G.S. § 15A-1222 (1999) (stating that “[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury”). As we have stated: “'The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury.'” State v. Belk, 268 N.C. 320, 324, 150 S.E.2d 481, 484 (1966) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)); accord McNeill v. Durham County ABC Bd., 322 N.C. 425, 429, 368 S.E.2d 619, 622 (1988).

“In State v. Simpson, 233 N.C. 438, 442, 64 S.E.2d 568, [571 (1951)], this Court said: “It can make no difference in what way or manner or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, by comment on the testimony of a witness, by arraying the evidence unequally in the charge, by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial. . . . 'The slightest intimation from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury, and, therefore, we must be careful to see that neither party is unduly prejudiced by an expression from the bench which is likely to prevent a fair and impartial trial.'--Walker, J. in [State] v. Ownby, 146 N.C. 677, [678-79,] 61 S.E. 630[, 630 (1908)].”

State v. Williamson, 250 N.C. 204, 207, 108 S.E.2d 443, 445 (1959). The prosecutor's argument in the instant case spoke to and disclosed a legal opinion of the trial court on the admissibility and credibility of evidence, an opinion which was specifically outside the record. This argument may not be characterized as a reasonable “analysis of the evidence” or as argument for “any position or conclusion with respect to a matter in issue.” N.C.G.S. § 15A-1230(a). As this Court stated in State v. Williamson, it does not matter “in what way or manner” an opinion of the trial court is conveyed to the jury, “whether directly or indirectly.” Williamson, 250 N.C. at 207, 108 S.E.2d at 445. The potential for prejudicial influence remains, even if the opinion is conveyed indirectly through a party's closing argument to the jury. Although the trial court in the instant case did not convey, through its own words, an improper opinion to the jury, it did allow the prosecutor to convey the court's opinion, with virtually the same effect.

In view of the foregoing, we cannot say that there is or can be no reasonable possibility that a different result would have been reached had this argument not occurred. Much of the State's evidence in the trial of these cases was circumstantial and placed both defendants at the scene of the crimes. Ms. Santos' statements to Agent Barros provided eyewitness evidence about the perpetrators and the events that transpired inside the apartment on the night of the murders. Although her credibility was at issue, particularly as to the identity of the perpetrators, her statements were possibly determinative of the verdicts in this trial as to both defendants. We therefore conclude that the prosecutor violated N.C.G.S. § 15A-1230(a) by traveling outside the record during his closing argument and in so doing disclosing the legal opinion of the trial court as to the credibility of the evidence before the jury. For the reasons stated, the trial court's allowance of the prosecutor's argument, over objection, was error. Defendants are entitled to and must be awarded a new trial.

State v. Koskovich(N.J.) Three errors asserted by defendant collectively warrant reversal of his capital sentence. They relate to the trial court's instruction to the jury in respect of the victim- impact evidence, the court's instruction concerning defendant's likely non-capital sentences, and the court's instruction in respect of the balancing of aggravating and mitigating factors as the death-sentence determiner.

We agree with defendant. Although the court did not instruct the jury to "weigh the worth" of defendant against that of the victim, the court's directive to jurors that they balance the victim's background against that of defendant was akin to asking the jury to compare the worth of each person. As such, it violated Muhammad.

The State argues to the contrary, relying on our approval of the trial court's instruction about the use of victim-impact evidence in State v. Timmendequas. That reliance is misplaced. In State v. Timmendequas, supra, 161 N.J. at 632, the trial court instructed the jury:

[I]f you as a juror have not found to be present mitigating factor (h) or mitigating factors in addition to those listed, meaning if you haven't found affirmatively as to factors number 3 through 25, if no one found any of those, you then must not give any consideration to this evidence regarding the victim's character or the impact of the murder on survivors. And that is so, because it only may be used in terms of balancing or in terms of assessing the weight to be given to the evidence concerning the defendant's character or the circumstances of the offense.

In considering whether that charge comported with Muhammad, we referred to the prosecutor's summation, in which she stated to the jurors that "?[i]f you gave credit to any of the defendant's character evidence . . . we refer to that as Factor H mitigation, you are then to weigh it against whatever weight you determine is appropriate for victim impact.'" Id. at 633. We concluded that, viewing the charge in its entirety, in conjunction with the prosecutor's comments, "defendant [could not] demonstrate that the jury instruction regarding victim-impact evidence constituted plain error." Id. at 634. See also State v. Robinson, 165 N.J. 32, 47 (2000) (recognizing that arguments of counsel "can mitigate prejudice resulting from a less-than-perfect charge").

Because the instruction in Timmendequas informed the jury that the victim-impact evidence may be used "in terms of balancing" certain mitigating evidence, the State contends that the charge in the present case was also proper. However, the instruction in Timmendequas clearly informed the jurors that the victim-impact evidence was to be used only in assessing the proper weight to be given to the catch-all factor. The court in that case did not invite the jury to balance the defendant's background against that of the victim as the court did explicitly in this case.

In Muhammad, we expressed our concern that weighing the worth of the victim against that of the defendant might prompt jurors to impose the death penalty arbitrarily. Muhammad, supra, 145 N.J. at 53. Common experience informs us that comparing convicted murderers with their victims is inherently prejudicial because defendants in that setting invariably will appear more reprehensible in the eyes of jurors. That contrast is particularly stark in the present case: Jeremy Giordano was a hard-working, religious, law-abiding young man, whereas defendant was a convicted murder. We are convinced that the court's instruction infringed on the integrity of the penalty phase and impermissibly increased the risk that the death sentence would be arbitrarily imposed. That error, in combination with the other errors identified below, warrants reversal of defendant's death sentence. . . .

In sum, we agree with defendant that the trial court erred in its charge to the jury to the extent that it suggested or invited jurors to balance the worth of defendant against the worth of his victims. That error, when combined with the other errors discussed below, warrants reversal of defendant's death sentence. Defendant's other two claims of error -- that the trial court failed to advise the jury not to feel sympathy for family members of the victim and that it allegedly authorized the jury to consider Mrs. Giordano's testimony outside of the limited context of the catch-all mitigating factors -- are without merit for the reasons already stated.

Powell v. Commonwealth(Va.) The trial court erred in permitting the Commonwealth to amend the indictment for capital murder.

If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged. After any such amendment the accused shall be arraigned on the indictment, presentment or information as amended, and shall be allowed to plead anew thereto, if he so desires, and the trial shall proceed as if no amendment had been made; but if the court finds that such amendment operates as a surprise to the accused, he shall be entitled, upon request, to a continuance of the case for a reasonable time.

The statute is remedial in nature and is to be liberally construed in order to achieve the laudable purpose of avoiding further unnecessary delay in the criminal justice process by allowing amendment, rather than requiring reindictment by a grand jury. Sullivan v. Commonwealth, 157 Va. 867, 876-77, 161 S.E. 297, 300 (1931). The amendment, when allowed, must provide that the substantial rights of the accused are protected by informing him of the nature and character of the accusations. Id. As a rule, amendments to correct a variance between the allegation of the indictment and the proof occur after the Commonwealth has presented a portion or all of its case, placing the trial court in a position to judge whether that proof would be adequate to support the return of the amended indictment. See, e.g., Thomas v. Commonwealth, 256 Va. 38, 42, 501 S.E.2d 391, 393 (1998)(amendment after trial but prior to return of verdict).

Here, there is no allegation by the Commonwealth that the amendment was intended to correct a defect in form. Indeed, there was no such defect. Accordingly, the issue we must determine is whether the pre-trial amendment of an indictment charging one theory of capital murder to include an alternative and additional theory of capital murder constitutes an amendment contemplated by the provisions of Code § 19.2-231 to correct a variance between the allegation of the original indictment and the proof the Commonwealth expects to adduce at the subsequent trial. For the following reasons, we hold that the particular amendment made to the indictment in this case was not authorized by Code § 19.2-231.

Under the original indictment returned by the grand jury in this case, Powell was charged with a single count of capital murder in which the gradation crime was the commission or attempted commission of robbery, a violation of Code § 18.2-31(4). In amending the indictment, the Commonwealth used the term "and/or" to charge two new gradation crimes, the commission or attempted commission of rape and the commission or attempted commission of sodomy, either of which would constitute a violation of Code § 18.2-31(5). In doing so, the Commonwealth did not simply correct a variance between the original allegation and the proof it expected to adduce at trial. Rather, by use of the term "and/or," the Commonwealth expanded the indictment to include a new and additional charge of capital murder. See Bailey v. Commonwealth, 259 Va. 723, 747, 529 S.E.2d 570, 584, cert. denied, ___ U.S. ___, 121 S.Ct. 488 (2000). As a result, under the amended indictment Powell could have been convicted and sentenced on one count of capital murder under Code § 18.2-31(4) and another count of capital murder under Code § 18.2-31(5). *fn8 Id.

Although the same grand jury also indicted Powell for the rape of Kristie, it was never called upon to consider that offense as the gradation crime for the capital murder of Stacey. Similarly, nothing in the record suggests that the grand jury heard any evidence with respect to the gradation crime of sodomy. The record as a whole is devoid of any evidence that Powell attempted to rape or sodomize Stacey, despite Powell's subsequent claim that he attempted to initiate consensual sexual relations with her. Thus, the amendment to the indictment was premised upon allegations not previously considered by the grand jury. It is "the province of the grand jury [under Code § 19.2-191] to ascertain from the evidence adduced whether or not" the evidence will sustain the charge brought. Evans v. Commonwealth, 183 Va. 775, 780, 335 S.E.2d 636, 638 (1945).

Accordingly, despite the liberal construction afforded to promote the remedial purpose of Code § 19.2-231, and because the amended indictment materially changed the nature of the offense originally charged, we hold that the trial court erred in permitting the Commonwealth to amend the indictment for capital murder. Thus, Powell's conviction for capital murder under the amended indictment cannot stand.

Green v. Commonwealth(Va.) Trial court erred in not removing for cause two jurors.

Applying the aforementioned principles, we hold that the circuit court abused its discretion and that such abuse of discretion constituted a manifest error when the circuit court failed to remove Overby and Pearson from the venire. And, we hold that the seating of the two jurors requires a reversal of the circuit court's judgment confirming the jury's convictions.

As the above-referenced colloquy indicates, Overby possessed a firm belief in the adage, "an eye for an eye, tooth for a tooth." He stated that if the Commonwealth proved beyond a reasonable doubt that the defendant had committed a capital offense, he would vote to fix the defendant's penalty at death and that he would not give any consideration to a lesser penalty because the defendant "didn't give his victim consideration when he took [her] life."

Even though Overby, in response to questions raised by the circuit court and the Commonwealth's attorney, indicated that he would consider both the imposition of the death penalty and life without parole if the defendant were convicted of capital murder, Overby exhibited a strong belief that if the defendant committed a capital offense, he should be sentenced to death. At the conclusion of his voir dire, Overby reasserted that he would vote to sentence the defendant to death if the Commonwealth proved beyond a reasonable doubt that the defendant had committed a capital offense. We can only conclude from Overby's responses to the voir dire questions that he had formed a fixed opinion about the punishment that the defendant should receive if the defendant were convicted of a capital offense and, thus, Overby was not impartial and "indifferent in the cause."

We also hold that the circuit court abused its discretion in seating Pearson and that such abuse of discretion constituted manifest error. As the above-referenced colloquy indicates, Pearson had formed opinions which clearly indicate that she was not indifferent in the cause. Pearson initially informed the circuit court that she "suppose[d]" that the defendant was guilty. She had formed that opinion because she had read in a newspaper that the defendant was present when the crimes occurred.

Even though Pearson subsequently stated, in response to questions from the circuit court and the Commonwealth's attorney, that she understood the defendant was presumed to be innocent and that the Commonwealth was required to prove him guilty beyond a reasonable doubt, she later made conflicting statements. For example, after Pearson had informed the circuit court that she believed the defendant was presumed to be innocent throughout the course of the trial, Pearson informed the defendant's attorney that the defendant would have to prove his innocence and that if the defendant presented no evidence at all, she would find him guilty of the charges.

After the defendant's attorney reminded Pearson that the circuit court had informed her that the Commonwealth has the burden to prove the defendant's guilt, Pearson, nonetheless, stated that she would find the defendant guilty if the defendant failed to produce any evidence. Although Pearson stated in response to the circuit court's inquiry that she "suppose[d]" that she would find the defendant innocent if the Commonwealth failed to prove his guilt beyond a reasonable doubt, her voir dire, when reviewed in its entirety, compels us to conclude that she had formed firm opinions which would have impaired her ability to be impartial and stand indifferent in the cause.

We have stated that "[b]y ancient rule, any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused." Breeden, 217 Va. at 298, 227 S.E.2d at 735. In Dejarnette v. Commonwealth, 75 Va. (1 Matt.) 867 (1881), we ruled that the circuit court should have removed a venireman who equivocated when asked if he had formed a fixed opinion about the accused's guilt. And, we emphasized that the juror's assertions that he could give the defendant a fair trial did not purge the taint. Id. at 872. Indeed, we stated in Armistead v. Commonwealth, 38 Va. (11 Leigh) 688, 695 (1841), that "however willing [the juror] may be to trust himself, the law will not trust him."

A defendant is entitled to a trial by jurors who stand indifferent in the cause. Even though circuit courts have wide latitude in the seating of jurors, courts must be mindful that if any reasonable doubt exists regarding whether a juror stands indifferent in the cause, that doubt must be resolved in favor of the defendant. A juror's ability to give a defendant a fair and impartial trial must not be left to inference or doubt.

Captial Cases Remanded for Further Adjudication

No cases this edition.

Federal Captial Cases Relief Denied

United States v. Acosta-Martinez(1st Cir) The federal deat penalty as applied to Puerto Rico is constitutional.

We turn to the defendants' contention that Congress lacks the power under the Due Process Clause to impose a particular penalty for federal crimes committed in Puerto Rico. The district court adopted this view. Its reasoning, stripped to its essentials, is that, because the residents of Puerto Rico may not vote for President, see Iguartua De La Rosa v. United States, 229 F.3d 80 (1st Cir. 2000), and may not elect representatives to the Congress, they were not represented in the congressional decision to enact statutes which impose the death penalty for federal crimes in Puerto Rico. The imposition of the death penalty on federal defendants in Puerto Rico is thus said to violate the substantive due process rights of the United States citizens who reside in Puerto Rico.

When testing executive action, the Supreme Court has used the "shocking to the conscience" test. See County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Even assuming such a test can be applied to congressional action otherwise authorized by the Constitution, the test is not met here. This court has consistently enforced a variety of federal statutes which Congress intended to apply to Puerto Rico. See, e.g., Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 & n.4 (1st Cir. 2000) (Defense Base Act applies to Puerto Rico); United States v. Rivera Torres, 826 F.2d 151, 155 (1st Cir. 1987) (Clean Water Act applies to Puerto Rico); Caribtow Corp. v. Occupational Safety & Health Review Comm., 493 F.2d 1064, 1065-66 & 1067-68 (1st Cir. 1974) (Occupational Safety and Health Act applies to Puerto Rico); Moreno Rios v. United States, 256 F.2d 68, 71-72 (1st Cir. 1958) (Narcotic Drugs Import and Export Act applies to Puerto Rico). It cannot shock the conscience of the court to apply to Puerto Rico, as intended by Congress, a federal penalty for a federal crime which Congress has applied to the fifty states.

There is no such legal constraint on Congress' ability to impose penalties for federal crimes. There is no disagreement that Congress has the power to apply the federal criminal laws to Puerto Rico. With that power, of necessity, comes the power to set the penalties for violations of those laws. Indeed, it would be anomalous for Congress to grant the people of Puerto Rico American citizenship and then not afford them the protection of the federal criminal laws. The argument made by defendants and amici is a political one, not a legal one.

Mak v. Federal Bureau of Investigation(9th Cir.) Claim denied that the Department of Justice wrongly withheld information that the Washington state court had ruled, in its advisory opinion, should be disclosedFults v. State (Ga) Relief deined on claims "that his trial counsel, who is now deceased, rendered ineffective assistance by failing to investigate more fully Fults' claim that other persons were involved and were more culpable in the murder than he was. .... [that a juror should have been disqualified due to pretrial publicity] .... that his now-deceased trial counsel rendered ineffective assistance by persuading him to plead guilty.... that, because he pled guilty, evidence of his guilt was irrelevant and improper in his sentencing trial. "

State Captial Cases Relief Denied

State v. King(N.C.) Relief denied chiefly on allegations that peremptories were race based, that the trial court erred in not holding a competency hearing & that the trial court erred by allowing the State to introduce handwritten portions of the victim's diary into evidence.

Schmitt v. Commonwealth(Va.) Relief denied on claims "that the trial court abused its discretion in refusing to strike certain prospective jurors for cause based on their alleged biases in favor of the death penalty.... that the trial court abused its discretion in refusing to strike one prospective juror who formerly was employed as a bank teller.... that the court abused its discretion in striking for cause one prospective juror who stated that her objection to the death penalty would prevent her from voting to impose it.... that the trial court erred in denying his motions to strike the capital murder charge and that the evidence was insufficient as a matter of law to support his conviction on that charge.... that the admission into evidence of the tape recording of the telephone conversation between him and his friend, Clifford Sauer, violated his Fifth and Sixth Amendment rights because Sauer acted as a "police agent" during the conversation."

State v. Murphy(Ohio) Relief denied, chiefly, as the invocation of right to remain silent was ambiguous alowing alternate jurors to attend deliberations is not reversible plain error, and that the mere existence of conflicting evidence cannot make the evidence insufficient as a matter of law.

Ex parte Hal (Ala.) (not available) "[N]one of the excluded evidence that Hall sought to admit related to the res gestae of the offense. Furthermore, as the Court of Criminal Appeals correctly noted, the excluded evidence would not have exonerated Hall. Even if believed by a jury, the evidence would not have excluded Hall as Haskew's killer or as an intentional participant in her murder. The theory of culpability and exoneration under which Hall sought to admit the evidence was far too speculative."

Other Notable Cases(As reported by Findlaw, and other sources)

Rodriguez v. Mitchell(2nd Cir) A motion under Rule 60(b) to vacate a judgment denying habeas is not the equivalent of a second or successive habeas petition subject to the Antiterrorism and Effective Death Penalty Act of 1996, 28 USC 2244(b).

Lainfiesta v. Artuz(2nd Cir) A court may not force a defendant in a criminal case to settle on just one of his lawyers to examine all the witnesses, but the trial judge's error was not a structural error that contaminated the entire trial.

Solis v. United States(3rd Cir) Where a habeas petitioner asserting inadequacy of counsel alleges that he directed his attorney to take a direct appeal, but counsel did not, 28 USC 2255 requires an evidentiary hearing to determine whether he requested or reasonably demonstrated to counsel a desire to appeal.

Diaz v. Kinkela(6th Cir) Ohio's "bad time" statute is an unconstitutional violation of Ohio's separation of powers doctrine, but petitioner must seek application for post-release control based upon "bad acts" time in the Ohio courts before seeking habeas relief.

Fowler v. Collins(6th Cir) The trial court judge must make more than a cursory investigation of defendant's waiver of representation, ensure that defendant has a broad understanding of the matter, and investigate whether the waiver is made knowingly and intelligently.

Nims v. Ault (8th Cir) Potential juror's answer of "no" when asked if he would be fair cannot be the objective factor impeding defendant from compliance with Iowa's statute of limitations because the transcript was available, no circumstances changed, and the juror was perhaps being candid.

Furnish v. United States(8th Cir) Petitioner's claims of ineffective assistance of counsel necessarily fail where petitioner cannot show that more effective counsel would have achieved a different result.

United States v. Robinson(8th Cir) Due process mandates only that defendant be able to consult with his attorney with a reasonable degree of rational understanding, and where defendant failed to indicate that his level of competency changed after the initial competency hearing, the district court did not err in allowing trial to proceed.

Huss v. Graves(8th Cir) State court's holding that an initial criminal proceeding resulting in a mistrial precludes a double jeopardy defense is contrary to clearly established federal law, since the issue of who benefits from a mistrial is not, by itself, determinative of a double jeopardy violation.

Idaho v. Horiuchi(9th Cir) An FBI sniper is not entitled to qualified immunity from state criminal prosecution when executing unconstitutional rules of engagement to shoot an armed suspect.

Alvarado v. Hill(8th Cir) For habeas purposes under 28 USC 2254(d)(1), Oregon law requiring juveniles between ages of 15-17 years old accused of certain crimes to be tried as adults does not violate due process.

Boyce v. Ashcroft(10th Cir) While 28 USC 2241 may be used to challenge the underlying authority to

hold a prisoner in cusotdy, it may not be used to challenge a transer to a specific federal prison, since such relief is only available in Bivens or Section 1983 actions.

Zarvela v, Artuz(2nd Cir) A district judge confronting a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition.

Hizbullankamon v. Walker(2nd Cir) Period petitioner spent in solitary confinement without access to legal materials will not equitably toll one year period to file habeas petition.

Feorge v. Sinely(3rd Cir) Where the attorney argued strenuously that voluntary intoxication could negate the mens rea needed for the crime of assault in the first degree but neverthless failed to convince the judge, the failure to request a jury instruction on the issue is not ineffective assistance of counsel.

Kilmartin v. Kemna(8th Cir) District court lacks jurisdiction to review petitioner's claims of insufficient evidence where petitioner fails to show cause to excuse both a factual and legal showing excusing a procedural default.

O'Ferrell v. United States (11th Cir) Under the Federal Tort Claims Act, a police officer's statement during interrogation that plaintiff could "face the electric chair" if he did not confess does not constitute "physical abuse or the threat of such abuse" in violation of the FBI manual.

Pegg v. United States(06/12/01 - No. 99-11287) There is no per se violation of defendant's Sixth Amendment right to effective assistance of counsel where here was an able conflict-free counsel available to represent defendant in the event of a trial and there was no trial.

United States v. Saro(DC Cir)Even if 28 USC 2255's period of limitations is subject to equitable tolling, and even if the malfeasance of petitioner's lawyer qualifies for tolling, the amount of time tolled would not excuse the three month delay after he learned of his lawyer's failure to file.

Smith v. Dept of Justice (DC Cir) Under the Freedom of Information Act, 5 USC 552, a federal prisoner is entitled to obtain copies of monitored and recorded telephone conversations between attorney and client made at a federal correctional institution to support a claim of constitutionally inadequate assistance of counsel.

Hall v. Moore(11th Cir) The absence of counsel at a re-sentencing violates a petitioner's Sixth Amendment right if the district court has the discretion to reconstruct the sentence.

Featured

Featured this week is the clemency petition of Juan Raul Garza. Mr. Garza, by the time you read this, will have been executed, bringing George Bush's execution numbers to 154. The petition is available in full at http://www.deathrowspeaks.net/jaun_garza.htm

I. THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS RULED THAT THE EXECUTION OF MR. GARZA WOULD VIOLATE HIS HUMAN RIGHTS UNDER INTERNATIONAL LAW COMMITMENTS OF THE UNITED STATES

The execution of Juan Garza would violate his human rights under several provisions of international law to which the United States has subscribed, according to a report of the Inter-American Commission on Human Rights (the "Commission") which was made public on April 4, 2001. Ex. 2 [Report No. 52/01, Case No. 12.243, Organization of American States, Inter-American Commission on Human Rights (April 4, 2001)] (hereinafter the "Commission Report"). 2 The Commission Report represents the culmination of proceedings, in which the United States government was an active participant, that were conducted in response to a complaint filed by Mr. Garza. The Commission recommended that the United States provide Mr. Garza with a new sentencing hearing to cure the violation of his international human rights that occurred at his trial. To execute Mr. Garza in the face of this decision would serve only to damage the legitimacy of the Commission and to give the international community serious reason to question the commitment of the United States to international human rights at a time when the United States can ill afford that commitment to be questioned.

2 The Commission was created in 1959 as an autonomous entity of the Organization of American States ("OAS") to promote and protect human rights. In 1967, amendments to the OAS Charter made the Commission a principal organ through which the OAS was to accomplish its purposes. See Protocol of Buenos Aires, 721 U.N.T.S. 324, 21 U.S.T. 607, T.I.A.S. No. 6847, entered into force Feb. 27, 1970. The United States signed the amendments to the OAS Charter in 1967 and ratified them without reservation in 1968. 721 U.N.T.S. 324, 21 U.S.T. 607, T.I.A.S.

No.6847.

On December 20, 1999, just weeks after his domestic legal challenges had been denied, Mr. Garza filed a petition with the Commission arguing that his death sentence violates the American Declaration of the Rights and Duties of Man (the "American Declaration"), the Charter of the Organization of American States (the "OAS Charter"), and other provisions of international law. 3 Mr. Garza based his claim on, inter alia. the introduction at his sentencing hearing of evidence concerning four murders that took place in Mexico for which Mr. Garza has never been arrested, charged, prosecuted or convicted. See Clemency Mem. at 57-61 (discussing inherent unreliability of evidence concerning these unadjudicated foreign crimes). The United States participated in the proceedings on Mr. Garza's petition before the Commission by filing written responses to Mr. Garza's claims and by participating in oral argument before the Commission. Ex. 2 at 7, 11, 14 [Commission Report],

On December 4, 2000, the Commission issued a preliminary report in which it ruled that, by introducing evidence of the uncharged foreign offenses during the sentencing hearing against Mr. Garza, the Government had violated

Mr. Garza's right to a fair trial and to due process under Articles XVIII and XXVI of the American Declaration. The Commission further found that the sentencing of Mr. Garza to death was arbitrary and capricious under Article I of the American Declaration, and that to carry out Mr. Garza's execution would "constitute a further deliberate and egregious violation" of his right to life under Article I. Id. ^ 111.

3 Mr. Garza could not file a petition with the Commission before he had exhausted his remedies under United States law. Ex. 2 ^ 67 [Commission Report].

Finally, the Commission recommended that the United States provide Mr. Garza with an effective remedy for these violations, specifically including commutation of his sentence. See id. ^ 118, 121(1).

On April 4, 2001, after considering the Government's response to its preliminary report, the Commission ratified and published its December 4, 2000 report. 4 The Commission ruled once again that the United States "is responsible for violations of Articles I, XVIII, and XXVI of the American Declaration in condemning Jual Raul Garza to the death penalty" and that "the United States will perpetrate a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration, should it proceed with Mr. Garza's execution based upon the criminal proceedings under consideration." Id. ^ 120. The Commission also found that, if the Government proceeded with the execution of Mr. Garza, that action would constitute "serious and deliberate violations of its international obligations under the OAS Charter and the American Declaration." Id.^ 118.

4 At the time the Commission issued its preliminary ruling, Mr. Garza was scheduled to be executed on December 12, 2000. Accordingly, the Commission initially gave the Government five days to respond to the preliminary report. On December 7, 2000, President Clinton granted Mr. Garza a reprieve and subsequently re-set Mr. Garza's execution date for June 19, 2001. On March 6, 2001, the Government responded to the Commission Report, reiterating the arguments in its previous submission and stating that the Commission's conclusions were in conflict with United States domestic law. Ex. 2 ^ 115 [Commission Report].

The Commission reiterated its recommendation that the United States provide Mr. Garza with an effective remedy for these violations, including commutation of his sentence. Id.^ 121(1). In particular, the Commission found, in pertinent part, the following:

• The American Declaration prohibits the application of the death penalty in an arbitrary manner. Id. ^ 90-91.

• Due process protections apply equally in the guilt and the sentencing stages of a criminal prosecution. Id. ^ 102.

• The introduction of evidence of the uncharged offenses did not comply with due process requirements, with the result that Mr. Garza "was also convicted and sentenced to death for the four murders alleged to have been committed in Mexico, but without having been properly and fairly charged and tried for these additional crimes." Id. ^ 105.

• "[T]he prejudice resulting from the determination of Mr. Garza's guilt for four additional murders during his sentencing hearing was compounded by the fact that lesser standards of evidence were applicable during the sentencing process." Id. ^ 108.

• " [A] significant and substantive distinction exists between the introduction of evidence of mitigating and aggravating factors concerning the circumstances of an offender or his or her offense, such as those enumerated in 21 U.S.C. 848(n), and an effort to attribute to an offender individual criminal responsibility for violations of additional serious offenses that have not, and indeed could not under the State's criminal law be charged and tried pursuant to a fair trial offering the requisite due process guarantees. The State itself asserts that the purpose of a sentencing hearing is to determine the appropriate punishment for a defendant's crime, not to prove guilt. Yet proving Mr. Garza's guilt for the four unadjudicated murders so as to warrant imposition of the death penalty was. by the Government's own admission, precisely the intended and actual effect of its effort in introducing evidence in this regard during Mr. Garza's sentencing hearing." Id. ^ 109 (emphasis added).

• The Government's "conduct in introducing evidence of unadjudicated foreign crimes during Mr. Garza's capital sentencing hearing was antithetical to the most basic and fundamental judicial guarantees applicable in attributing responsibility and punishment to individuals for crimes." Id. H 110 (emphasis added).

On April 24, 2001, just weeks after the Commission ratified and published its final report, Mr. Garza filed, in the United States District Court for the Southern District of Indiana, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 seeking recognition of the Commission's decision in his favor and a new sentencing hearing free of the evidence concerning the unadjudicated foreign murders which the Commission found violated his human rights. Ex. 3 [Petition for Writ of Habeas Corpus]. Mr. Garza also filed a motion with the district court to stay his June 19, 2001 execution date. In response to a show cause order issued by the district court, the United States argues primarily that Mr. Garza is procedurally barred from bringing his claim, and secondarily that the Commission's decision is only a recommendation to the United States and provides no basis for relief for Mr. Garza. Mr. Garza has been provided until May 21, 2001 to file a reply to the Government's response to the show cause order and will request oral argument before the district court.

Mr. Garza should be granted clemency in the form of commutation of his sentence to life in prison without the possibility of release regardless of the outcome of the court's disposition of his habeas petition concerning the

Commission's decision in his favor. 5 In considering whether Mr. Garza should be granted clemency based on the Commission's decision, the procedural objections raised by the Government in response to the habeas petition are irrelevant. 6 Compliance with the substance of the Commission's Report, in the form of a commutation by the President of Mr. Garza's sentence, is particularly appropriate because the Executive branch of our government has the primary role in conducting foreign affairs. Providing Mr. Garza with clemency on this basis is further consistent with a recent statement by the Attorney General that "we will—by virtue of going even beyond the technical demands of the law to achieve justice . . . pursue the ends of justice so thoroughly that [the American people] can have confidence in the [federal death penalty] system." Ex. 4 [Tr. of Statement by Attorney General Ashcroft (5/11/01)].

In recent weeks, the leading role of the United States in the area of international human rights has been called into question by, among other things, the recent vote through which the United States lost its position as a member of the United Nation's Commission on Human Rights. In light of this development, the President has expressed, through White House Press Secretary Art Fleischer, that the United States plans to "continue its role as a beacon of freedom and human rights." Ex. 5 [Tr. of Press Briefing by Art Fleischer (5/8/01)]. Granting Mr. Garza clemency would effectuate the Commission's Report and signal to the international community that the United States takes seriously matters of international human rights.

5 At a minimum, Mr. Garza requests that he be granted a further reprieve to allow the courts to consider his habeas petition. 6 The Government's objections are also meritless, as will be shown by Mr. Garza before the district court.

In contrast, to execute Mr. Garza in the face of a decision by an international tribunal — created by an organization to which the United States is a signatory member and has provided substantial funding for more than 50 years - squarely ruling that Mr. Garza's execution would violate the United States' treaty obligations, would send a message to the international community that the United States considers itself above the law in matters of international human rights. The failure of the United States to act in response to the Commission's recommendation could severely damage the integrity and authority of the OAS and the Commission in issuing future reports finding violations of international law by member states. If the statement of the White House Press Secretary on behalf of the President that "[t]he United States is the land where human rights prevail" has any substance, the President cannot disregard the Commission's reasoned decision. See id. Granting clemency by commuting Mr. Garza's sentencing would also allow the Executive branch to show the United States' respect for the bilateral commitments to our neighbor, Mexico. In Mr. Garza's Clemency Memorandum, he explained that he was deported from Mexico under circumstances that strongly suggest that his deportation was engineered by U.S. Customs Agents so as to circumvent the United States-Mexico Extradition Treaty. See Clemency Mem. at 80-84. In a letter from the Mexican Counselor for Legal Affairs, Rodolfo Quilantan, to Mr. Garza s counsel, Mexico confirms that there was no request by the United States to extradite Mr. Garza. See Ex. 6 [Letter from R. Quilantan to G. Wiercioch (12/15/00)]. Furthermore, Mr. Quilantan's letter confirms that had the United States sought to extradite Mr. Garza pursuant to the treaty, Mexico would have "refused to extradite Mr. Garza until the United States furnished assurances that the death penalty would not be imposed, or, if imposed, would not be executed, against Mr. Garza." Id.

Clemency for Mr. Garza, accordingly, is also appropriate to show that the United States respects the deeply held principles of its neighbor, Mexico, and will not permit its officials to ignore those principles when it appears expedient to do so.

III. MR. GARZA SHOULD BE GRANTED CLEMENCY BECAUSE NO ONE CAN HAVE ANY CONFIDENCE THAT THE GOVERNMENTS DECISION TO SEEK THE DEATH PENALTY AGAINST HIM WAS NOT BASED ON HIS ETHNICITY OR STATE OF PROSECUTION

Mr. Garza was granted a six-month reprieve in December, 2000 because a report by the Department of Justice revealed disparities that President Clinton believed had to be further studied before Mr. Garza, a Hispanic American from the State of Texas, should be executed. During the confirmation process, Attorney General Ashcroft pledged his commitment to continuing the study of racial/ethnic and geographic disparities in the administration of the federal death penalty. But, today, with Mr. Garza's execution date fast approaching, no such studies have been completed. Indeed, it appears that research contemplated by the National Institute of Justice ("NIj") designed to explore the potential causes of these disparities, has not even begun. The same disparities and concerns, therefore, that provided the basis for a reprieve for Mr. Garza in December 2000 exist, unameliorated, today. It would be unconscionable to execute Mr. Garza now, when grave doubts exist as to whether or not his ethnicity and state of prosecution played a role in the Government's decision to seek the death penalty in his case.

On September 12, 2000, the Department of Justice released The Federal Death Penalty System: A Statistical Survey (1988-2000) (hereinafter "DOJ Study"). As detailed in Mr. Garza's original Clemency Memorandum, the DOJ Study revealed striking disparities along racial/ethnic and geographic lines at every stage of the capital punishment process. In light of the DOJ Study, Attorney General Janet Reno concluded:

More information is needed to better understand the many factors that affect how homicide cases make their way into the federal system and, once in the federal system, why they follow different paths. An even broader analysis must therefore be undertaken to determine if bias does in fact play any role in the federal death penalty system.

Ex. 8 to Clemency Mem. at 3 [Sept. 12, 2000 Tr. of Press Conf] (emphasis added).

On December 7, 2000, President Clinton granted a reprieve to Mr. Garza "to allow the Justice Department time to gather and properly analyze more information about racial and geographic disparities in the federal death penalty system." Ex. 8 [Statement of President Clinton, White House Office of the Press Secretary (12/7/00)]. The President further explained that:

[T]he examination of possible racial and regional bias [in the administration of the federal death penalty] should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study. In this area there is no room for error.

Id. President Clinton further asked that the Attorney General report by the end of April 2001 "on the Justice Department's analysis of the racial and geographic disparities in federal death penalty prosecutions." Id. To date there has been no release of an additional study from the Department of Justice that addresses the causes of the identified racial/ethnic and geographic disparities.

In addition to examination of data by the Department of Justice, the NIJ also planned to sponsor independent research to further explore the racial and geographic disparities in the administration of the federal death penalty. On January 10, 2001, the acting Director of NIJ, Julie Samuels, convened a group of researchers as well as practitioners for both the government and defense to examine research questions, data sources and related issues. At this meeting, Ms. Samuels suggested that NIJ would issue requests for proposals for several different studies concerning potential bias in the administration of the federal death penalty. Under the timeline proposed by Ms. Samuels, none of the studies would be completed for at least a year to 18 months after the requests for proposals were issued. To date, we understand that no requests for proposals have been issued by NIJ for this project.

To execute Mr. Garza in the face of this official recognition that additional study is necessary to determine whether bias exists in the administration of the federal death penalty would be unconscionable. It would further be inconsistent with expressions of concern about the disparities revealed in the DOJ Study that have been expressed by Attorney General Ashcroft, among others. Attorney General Ashcroft has stated that the racial and ethnic disparities evident in the DOJ Study "trouble[ ] [him] deeply," and has agreed that "the fair, just and sure administration of the federal death penalty requires that it be applied completely free of racial bias." Ex. 1 at 5. [Written Answers by John Ashcroft to Questions by Senator Russell D. Feingold (1/22/01)]. Attorney General Ashcroft has further stated that he agrees with President Clinton's assessment that "in this area there is no room for error." Id. at 6.

Recognizing the seriousness of the disparities evident in the DOJ Study, Attorney General Ashcroft pledged his commitment, during the confirmation process, to further studies of potential bias in the administration of the federal death penalty. In the following questioning by Senator Feingold, Attorney General Ashcroft pledged that if confirmed as Attorney General he would continue the studies called for by Attorney General Reno:

Feingold:

I would ask if you agree with President Clinton that the gravity and finality of the death penalty demand that we be certain that, when it is imposed, it is imposed fairly?

Ashcroft:

I think it is a very serious responsibility, and it should be only after a very reliable process of integrity has been undertaken....I take very seriously doing what we can to make sure that we have thorough integrity and validity in the judgments we reach.

Feingold:

Well, in light of that answer, I will ask if you will support the effort of the National Institute of Justice that is already under way to undertake the study of racial and geographic disparities in the administration of the federal death penalty that President Clinton deemed necessary.

Ashcroft:

Yes.

Feingold:

Thank you for that.

Will you continue and support all efforts initiated by Attorney General Reno's Justice Department to undertake a thorough review and analysis of the federal death penalty system?

Ashcroft:

I thought that's what you were referring to in the first instance, but the studies that are underway, I'm grateful for them. When the material from those studies comes, I will examine them carefully and eagerly to see if there are ways for us to improve the administration of justice. I have absolutely no reason, in any respect, to think that we want to turn our backs on a capacity to elevate the integrity of our judicial system, especially in criminal matters, and mostimportantly in matters that are capital in nature.

Feingold:

So those studies will not be terminated?

Ashcroft:

I have no intention of terminating those studies.

Ex. 9 at 32-33 [Tr. of Jan. 17, 2001 Hearing Before Senate Judiciary Committee] (emphasis added).

In answers to written questions from Senator Feingold, the Attorney General further pledged his commitment to a federal capital punishment system free from racial bias, stating:

I fully agree that the Department of Justice should do everything necessary to eliminate any racial bias from. the federal death penalty system, including undertaking all reasonably and appropriate research necessary to understand the nature of the problem.

Ex. 1 at 6 [Written Answers by John Ashcroft to Questions by Senator Russell D. Feingold (1/22/01)] (emphasis added). Ashcroft also stated that "race [should not] play any role in determining whether someone is subject to the capital punishment." Id.

The DOJ Study shows that the American people can have no confidence that race and ethnicity have not played a role in determining whether someone is subject to federal capital prosecution. During the period of 1988-1994 - the period after reinstatement of the federal death penalty and before the Department of Justice instituted the Death Penalty Protocols - every single federal defendant in Texas as to whom the death penalty was considered, recommended or authorized was, like Mr. Garza, Hispanic. Ex. 4 to Clemency Mem. [Tables: Federal Prosecutions in Texas: U.S. Attorney and Attorney General Death Penalty Decision-Making]. No data has been published since the issuance of the DOJ Study that would eliminate the concern that the disparities clearly evident in the DOJ Study may be the result of either conscious or unconscious bias at some stage of the process.

The disparities evident in the administration of the federal death penalty are the ultimate form of racial profiling by which minorities are treated differently from whites committing similar acts, with one important difference. Whereas, in the more conventional racial profiling situation, the harsher treatment of minorities results in a traffic stop and search, here the harsher treatment results in selection for capital prosecution. In either case, it should not be permitted to occur in the United States. As Attorney General Ashcroft has stated:

The Justice Department... is undertaking a review of all federal law enforcement agencies and policies with regard to race, to make sure that we don't inappropriately deal with people based on their race. It's unacceptable for the federal government to do so. I think it's wrong for any government to do so. I believe it to be a breach of the constitutional rights of individuals if they are interfered with or otherwise treated in a way which singles them out because of their race.

Ex. 10 at 4 [April 4, 2001 Speech by Attorney General to Newspaper Editors (transcript available at www.usdoj.gov/ag/speeches/2001/0404newspapereditors.htm)] (emphasis added).

Put most simply, there can be no confidence that the choice of Mr. Garza for federal capital prosecution was "completely free of racial bias." See Ex. 1 at 5 [Written Answers by John Ashcroft to Questions by Senator Russell D. Feingold (1/22/01)]. Our government should not execute Juan Garza unless it can be fully confident that his ethnicity and state of prosecution did not play a role in the decision to seek the death penalty in his case. If it cannot achieve the high degree of confidence necessary where the death penalty is at issue, Mr. Garza's sentence must be commuted. As Attorney General Ashcroft has stated, when it comes to the death penalty, "[i]fany questions or doubts remain [at the time the defendant is executed] it would cast a permanent cloud over justice." Ex. 4 at 3. [Tr. of Statement by Attorney General Ashcroft (5/11/01)].

Errata

From theDeath Penalty Information Centerreports:

Clemency Recommended for Foreign National on Oklahoma's Death Row

The Oklahoma Pardon and Parole Board recommended clemency for Gerardo Valdez, a Mexican national scheduled for execution on June 19th. Attorneys for Valdez argued that authorities denied him his right to contact the Mexican consulate after his arrest. According to Sandra L. Babcock, director of the Mexican Legal Assistance Program, if Valdez had been allowed to contact the consulate and receive assistance, he would not have received the death penalty. (Associated Press, 6/6/01)

Currently, the United Nation's principal court, the International Court of Justice (ICJ), is considering the case of Germany v. United States of America. Germany is suing the United States for violating international laws and treaties by executing two German foreign nationals who, like Valdez, were denied consular access as required by the Vienna Convention. A ruling in that case is expected on June 27th. See also, clemency and foreign nationals.

Terrorist in Embassy Bombing Will Get Life Sentence

A federal jury in New York deadlocked on whether to impose the death penalty in the case of Mohamed Rashed Daoud al-'Owhali, convicted last month of 213 counts of murder in the 1998 bombing of the American Embassy in Kenya. Because federal law requires a unanimous verdict for the death penalty, al-'Owhali will be sentenced to life imprisonment without possibility of parole. Among the reasons cited by the jury forewoman for the impasse included the fear of making ah-Owhali a martyr and the feeling among jurors that "life in prison is a greater punishment since his freedom is severely curtailed." Al-'Owhali will be formally sentenced on September 12.

The sentencing trial for Khalfan Khamis Mohamed, another defendant convicted in the embassy bombings, is currently underway. The judge in that case ruled that Mr. Mohamed's lawyers may inform the jury of a recent ruling by South Africa's highest court that Mohamed was illegally sent to the U.S. after his arrest (see below). (New York Times. 6/13/01) See also, international death penalty.

Ireland Removes Death Penalty From Constitution

A referendum to remove capital punishment from Ireland's Constitution was approved on June 8, 2001. The death penalty has not been carried out in Ireland for almost 50 years and was statutorily abolished in 1990. (Irish Times, 6/8/01) See also, international death penalty.

NEW RESOURCES: "Forecasting Life and Death: Juror Race, Religion, and Attitude Toward the Death Penalty" by Theodore Wisenberg, Stephen P. Garvey, and Martin T. Wells. Based on interviews with jurors who served on capital cases in South Carolina between 1986-1997, the authors identify and isolate the individual characteristics that influence a juror's decision making in the penalty phase of a capital trial. The article finds that the jurors race, religion and support for the death penalty all play a significant role in whether a defendant receives the death penalty. (30 Journal of Legal Studies 277 (2001)) Read the entire article. See also, law review and journal articles.

Florida Governor Signs Bill to Ban Execution of Mentally Retarded

Governor Jeb Bush signed a bill to prohibit the imposition of the death penalty on a defendant who suffers from mental retardation. The bill - which unanimously passed the Florida Senate in March and was only one vote short of passing the House unanimously in May - does not contain a set IQ level, but uses a definition that considers intellectual functioning and behavior. Under the legislation, a defendant, who has already been convicted and sentenced to death, can petition the trial judge to appoint mental health experts to determine whether he or she is mentally retarded. Florida is the second state this year to ban the execution of defendants with mental retardation, bringing the total number of states prohibiting such executions to 15 plus the federal government. Currently, bills to ban such executions are pending the governor's signature in Connecticut, Missouri and Texas. (New York Times, 6/13/01) See also, mental retardation and the death penalty and pending legislation.

Upcoming Training

July 19 - 22, 2001

NAACP Legal Defense Fund Capital Punishment Seminar

Warrenton, Virginia

Contact: Deb Fins: 212.965.2257

Email: straitfins@aol.com

Attendance at this seminar is limited and is by invitation only. This seminar covers a wide spectrum of timely capital punishment topics for the experienced capital defense practitioner, investigator, and other members of the defense community.

August 9 - 12, 2001

National Federal Habeas Corpus Seminar

Nashville, Tennessee

Contact: Hunter Labovitz: 800.788.9908

Email: Hunter_Labovitz@ao.uscourts.gov

Nationally recognized habeas experts discuss legal developments since the implementation of the Antiterrorism and Effective Death Penalty Act of 1996, and how to handle a capital post-conviction proceeding. This program focuses on representation in a capital habeas case in toto, i.e. issue identification, investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. This seminar is designed for, and attendance is limited to, Federal Defenders, Criminal Justice Act panel attorneys, and state court practitioners who are currently appointed to or seeking appointment to, a capital habeas corpus proceeding.

Activist Events

STARVIN' FOR JUSTICE 2001 8th Annual Fast & Vigil to Abolish the Death Penalty at the U.S. Supreme Court 2001 General Information (http://www.abolition.org/annual.html)

WHO: Anyone who is against the DP -- seasoned abolitionists and those new to the movement alike. Come, learn some new tricks, make an impact and meet others who work for the cause.... Abolition work made fun!

WHAT: A four day vigil maintaining a presence at SCOTUS, The Supreme Court Of The United States. Some of the participants fast during this time, but fasting is not required. To be clear, we do not engage in civil disobedience during the Fast & Vigil.

WHERE: In front of SCOTUS, (the U.S. Supreme Court), on Capital Hill in Washington, DC

WHEN: June 29 to July 2 - to attend the full event, arrive on June 28, depart on July 3, 2001

WHY: The purpose of this event is to maintain a presence at SCOTUS between the dates of the anniversaries of when the death penalty was ruled unconstitutional in practice in 1972, and when new laws were upheld in 1976. Much of the time is spent talking to individuals and educating people about the death penalty. Several larger events are held at key times during the event to highlight specific concerns.

COST: Minimal - mainly transportation to DC and personal expenses.

LODGING: Participants may make their own sleeping arrangements or they stay with the main group at The Community for Creative Nonviolence. The Community for Creative Nonviolence (CCNV) is a homeless shelter that has a specially designated room for people who come to D.C. to do advocacy work. We have stayed at CCNV since the 1997 Fast & Vigil and at several other abolitionist events. We have had good experiences there and enjoy excellent relations with the staff and tenants. The setting is simple and the sleeping arrangements are bunk beds separated in cubicles. Bathrooms are shared with shelter staff and tenants. Participants need to bring their own bedding and towels. This room is usually air conditioned but that is not guaranteed. CCNV is a 15 minute walk from the Supreme Court. CCNV is wheelchair friendly. The AAC requests a minimum donation of $10 a night to cover security and other CCNV related costs. Registration must be handled through the AAC. Please try to register in advance, but there is usually plenty of room if you decide to come at the last minute.

Other Options

REGISTRATION Registration forms and additional information will be available the first week of April. Please contact the AAC c/o CUADP at 800-973-6548 Fax: 561-743-4483, e-mail aac@abolition.org, or snail-mail: PMB 297 177 U.S. Highway #1, Tequesta, FL 33469.

As always, our thoughts and prayers go out to the families of the victims of violent crime, the families of those incarcerated, and the men & women on death row both here in the states and around the world.

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement.

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RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

DISCLAIMER & CREDITS -- Anti-copyright 1997-2001. ISSN: 1523-6684. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational & information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.