Two cases are hot listed this week,Roche v. DavisandArizona v. Phillips.

InRoche v. Davisthe Seventh Circuit vacates an Indiana judicial override to death following a dead locked sentencing phase jury. Trial counsel objected only objected once to the shackling of his client in the courtroom & never developed a record of the shackling. Noting that the mitigating and aggravating circumstances in the case were a close call (referencing the jury deadlock) theRochepanel held that counsel's performance on the shackling required a new sentencing.

The Arizona Supreme Court inArizona v. Phillipsvacated one of two capital convictions, premeditated & felony murder, flowing from the death of Kevin Hendricks. ThePhillipsCourt held that the court below conflated felony murder with premeditated murder in its instructions. Arizona, like most states, draws a bright line between the two. Since the state supreme court upheld the felony murder conviction a new trial was not ordered.

Three Supreme Court justices dissented from a stay proceedingsMoore v. Texasis also noted this week. The stay at issue inMooreinvolves the issue of mental retardation & the Court's soon to be released decision in Atkins v. Virginia. The dissenters strenuously argue that the Court below, the Texas Court of Criminal Appeals, rested their opinion on an "independent and adequate" state ground, procedural default. Additionally, the dissenters note, one of the IQs at issue in the mental retardation claim is above 70 possibly 75. Whether this dissent foreshadows a favorable decision in Atkins v. Virginia remains to be seen.

The Focus section is likely to return next week with a focus on upcoming CLEs, recent law reviews, and like information.

Execution Information

Since the last edition the following have been executed:

May

28 Napoleon Beazley Texas----juvenile

30 Stanley Baker Jr. Texas

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

June

5 Christopher Simmons Missouri--- (juvenile stayed)

11 Willie Mac Modden Texas

12 Walter Mickens Virginia

13 Daniel Reneau Texas

18 Wallace Fugate Georgia

25 Robert Coulson Texas

25 David J. Brown Oklahoma

26 Jeffrey Williams Texas

27 Gary Etheridge Texas

July

10 Jose Briseno Texas

23 Randall Cannon Oklahoma

August

8 T.J. Jones Texas---juvenile

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

28 Toronto Patterson Texas---juvenile

HOT LIST

Roche v. Davis, 2002 U.S. App. LEXIS 9974 (7th Cir. 5/28/2002) Penalty phase relief granted on the issue of the jury observing the defendant shackled.

With regard to the merits, Roche argues that he should receive a new trial because his counsel was ineffective for not objecting to him being shackled during trial and then for not taking precautions to ensure that the jury could not see the shackles. In addition, the state appeals the district court's decision that Roche's shackling prejudiced him during his initial sentencing hearing.

The jurisprudence regarding the effects of shackling merits a brief discussion. In Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the Supreme Court first addressed the issue of shackling and held that "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . . : (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly." In addition, the Supreme Court explained that "no person should be tried while shackled and gagged except as a last resort." Id. at 344. Building on Allen, the Supreme Court in Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986), considered the issue of "whether the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial is the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial." The Court held that it was not, but set forth the standard for analyzing inherently prejudicial practices such as shackling. See id. at 569-70. The Court stated that "[w]henever a courtroom arrangement is challenged as inherently prejudicial . . . the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play." Id. at 570 (quotation omitted). Consistent with Allen and Holbrook, this court has held that "[a]s a general rule, a defendant in a criminal case has the right to appear before the jury free from shackles or other physical restraints." Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982).

We have stated that the sight of a defendant in shackles "could instill in the jury a belief that the defendant is a dangerous individual who cannot be controlled, an idea that could be devastating to his defense." Id. at 637. Thus, when the defendant was shackled at trial, the key issues are whether the jury "was aware of" the shackles or whether the shackles "were readily visible." Fountain v. United States, 211 F.3d 429, 435 (7th Cir. 2000).

Because Roche raised his shackling claim in the context of ineffective assistance of counsel, in order to prevail on this claim, Roche must demonstrate that: (1) his counsel's performance fell below an objective standard of reasonableness; and (2) the deficient performance so prejudiced his defense that it deprived him of a fair trial. See Strickland, 466 U.S. at 687-88. There is no real question that Roche was in fact required to wear shackles during the guilt and penalty phases of his trial. However, the sole mention of this fact on the trial record is when immediately before Roche was to take the stand, his counsel requested, outside of the presence of the jury, that he would "like to have [Roche] seated at the witness chair before the jury comes in so they don't see his braces." We do not know why this is the first and only mention of Roche's shackling--the record is devoid of any of the facts that gave rise to the decision to shackle him. At the very least, this omission reveals the fact that his trial counsel made no record of any objection to Roche's shackling.

The Indiana Supreme Court held that counsel's failure to object to Roche's shackling did not constitute deficient performance because he was "careful about preventing the jury from seeing his client's ankle restraints [when Roche took the stand to testify]." Roche, 690 N.E.2d at 1123. The district court held that this was an "unreasonable application of" Strickland, stating that "Roche's counsel's failure to object on the record to the use of shackles is a clear example of deficient performance." Roche, 132 F. Supp.2d at 704. At the post-conviction hearing, a bailiff's testimony indicated that there was no drape covering Roche's shackles. Further, a witness recounted that during her testimony at trial, she could see Roche's shackles from the witness box. Most importantly, the jury box was directly next to the witness box, and therefore, Roche's shackles were "readily visible" to the jury. Fountain, 211 F.3d at 435.

Thus, not only did counsel fail to object to Roche's shackling, he also failed to ensure that Roche's shackles would not be visible to the jury while Roche was sitting at counsel's table during the entire trial. Accordingly, the issue that we are presented with is whether counsel's failure to object to Roche's shackling plus his failure to ensure that the jury could not see the shackles constituted deficient performance. Cf. Harrell, 672 F.2d at 636-37 (drawing a distinction between cases where jury was "aware of" shackles because no precautions were taken and cases where precautions were taken to conceal shackles from jury).

While the Indiana Supreme Court considered counsel's efforts to ensure that the jury would not see Roche'sshackles when Roche testified, counsel's failure to do so while Roche was sitting at counsel's table during trial and during the sentencing hearing was not addressed. Therefore, given that the key inquiry in shackling cases is whether the shackles were "readily visible" to the jury, Fountain, 211 F.3d at 435, we hold that in this case, the Indiana Supreme Court's determination that counsel was not deficient was unreasonable.

Nevertheless, with respect to the guilt phase, Roche cannot establish that but for his counsel's deficient performance, the outcome of his trial would have been different. See Strickland, 466 U.S. at 694. In Fountain, we held that "in light of the substantial evidence of [the petitioner's] guilt posited at trial," the petitioner could not show that he was prejudiced by "his counsel's failure to object to . . . the jury's observation of his shackles." 211 F.3d at 436. We held:

All of the events leading up to [the petitioner's] involvement in the murder . . . from the pre-murder planning, to the murder itself and the post-murder admissions, were established and corroborated by witness testimony and physical evidence. Thus . . . [petitioner] has failed to establish that he was prejudiced by the allegedly defective assistance of counsel. Id. (footnote omitted).

In our case, the evidence showed that Roche planned the homicides with Niksich and told Duszynski that "he had some guys downstairs that he was going to shoot because [they] owed somebody $120." Further, on numerous occasions, Roche bragged to his friends that he had killed Graves and Brown and cut out a newspaper article discussing the homicides. Finally, he confessed his involvement in the homicides on a television news broadcast, to the police, and to a corrections officer. Thus, because of the overwhelming evidence of Roche's guilt, we cannot say that there was a "reasonable probability" that but for counsel's deficient performance, the result of the guilt phase of his trial would have been different. Strickland, 466 U.S. at 694.

However, we cannot reach the same conclusion with respect to the outcome of the penalty phase. During the sentencing hearing, there was considerable evidence concerning the mitigating circumstances to be considered under Ind. Code sec. 35-50-2-9(c). For example, the PSR indicated the circumstances of Roche's troubled childhood and alcohol and drug problems, Roche's criminal history was relatively minor, and Roche's family members testified about Roche's remorse and about their improved relations with him. In fact, after eight hours of deliberation, the jury was unable to recommend the death penalty for Roche. While not second-guessing the trial judge's determination on this issue, we note that whether the aggravating circumstances outweighed the mitigating circumstances in this case was apparently a closer call than whether there was sufficient evidence of Roche's guilt during the guilt phase. Moreover, given the extreme inherent prejudice associated with shackling, see, e.g., Harrell, 672 F.3d at 637, and the considerable mitigating evidence, we agree with the district court and conclude that Roche has established that there was a "reasonable probability" that but for his counsel's deficient performance, the result of his sentencing hearing would have been different. Strickland, 466 U.S. at 694.

State v. Phillips, 2002 Ariz. LEXIS 83 (Ariz. 05/24/2002) Appellant was convicted of both premeditated & felony murder. Premeditated murder struck on the grounds of lack of mens rea.

• 32 Phillips' jury unanimously convicted him of felony murder and premeditated murder. Phillips asserts he cannot be guilty of the specific intent crime of premeditated murder because he neither intended to shoot or kill Hendricks nor physically shot and killed Hendricks.
• 33 In Arizona, a person commits premeditated murder if, "[i]ntending or knowing that [his] conduct will cause death, [he] causes the death of another with premeditation." A.R.S. § 13-1105.A.1. To show premeditation, the "state must prove that the defendant acted with either the intent or knowledge that he would kill his victim." State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995).
• 34 The State does not argue that Phillips intended to kill Hendricks. Rather, the State argues a jury can convict a defendant of premeditated murder if the defendant agrees to commit a crime with another and in the course of committing that crime, the defendant's accomplice commits a murder that the defendant reasonably should have foreseen. Arizona's accomplice liability statutes do not permit that result.
• 35 In Arizona, a defendant "is criminally accountable for the conduct of [his accomplices]" if he aids those accomplices in "the commission of an offense." A.R.S. § 13-303.A.3 (emphasis added). The State interprets section 13-303.A.3 as making a defendant liable for all acts of an accomplice as long as the defendant aided the accomplice in planning or committing any related offense.
• 36 The State's position ignores the definition of accomplice provided by section 13-301.2. That section defines an accomplice as "a person . . . who with the intent to promote or facilitate the commission of an offense . . . [a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense." A.R.S. § 13-301.2. As the definition makes clear, a defendant is an accomplice to an offense only if, intending to aid another in committing an offense, he "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense." Id. (emphasis added). For example, a defendant who intends to aid another in committing a robbery is an accomplice to that robbery. Under section 13-303.A.3, therefore, the defendant would be liable for the planned robbery even though the defendant's accomplice actually committed the robbery.
• 37 Construing section 13-303.A.3 in a manner that would hold a defendant liable for offenses he did not intend to aid another in committing, on the other hand, would extend accomplice liability to a defendant who does not even qualify as an accomplice under section 13-301.2. For example, the State's construction of section 13-303.A.3 would allow a defendant who did not intend to aid in an offense to be an accomplice to that offense. To avoid this absurd result, we hold that section 13-303.A.3 imposes criminal accountability on an accomplice defendant only for those offenses the defendant intended to aid or aided another in planning or committing. In this case, if Phillips did not intend to aid Finch in committing murder, he could not be an accomplice to murder under the terms of the statute.
• 38 Convicting a defendant of premeditated murder by way of the accomplice liability statute would create other anomalous results as well. First, as the State itself conceded during oral argument, interpreting accomplice liability as negating the specific intent requirement of premeditated murder essentially allows the State to convict a defendant of felony murder without proving all the elements of felony murder.
• 39 A felony murder conviction requires the State to prove that the defendant, alone or with others, committed or attempted to commit a felony and, "in the course of and in furtherance of" that felony, the defendant or another person caused the death of any person. A.R.S. § 13-1105.A.2 (emphasis added). In contrast, the State's theory using accomplice liability would permit the State to convict a defendant of first degree murder whenever his accomplice commits murder during the commission of the underlying offense. That theory would relieve the State from showing that the defendant's accomplice committed the murder in the course of and in furtherance of the underlying offense, a showing essential to establish a charge of felony murder. The legislature could not have intended such an anomalous result. *fn3
• 40 Furthermore, by extending accomplice liability to premeditated murder, the State's position ignores the specific intent requirement of premeditated murder. As a result, the State's construction of section 13-303.A.3 first transforms accomplice liability into a lesser form of felony murder and then conflates felony murder with premeditated murder. Arizona law provides no support for the State's position, which would eliminate the essential distinction between felony murder and premeditated murder. State v. Styers, 177 Ariz. 104, 110-11, 865 P.2d 765, 771-72 (1993) (although felony murder and premeditated murder are both first degree murder, a defendant's specific intent to kill differentiates premeditated murder from felony murder); see also State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017, 1030 (1989).
• 41 In this case, Phillips acted as Finch's accomplice for purposes of the robberies committed on April 12, 24, and 28, 1998, because he intended to facilitate and did aid Finch in committing those robberies. See A.R.S. § 13-301.2. Under section 13-303.A.3, Phillips can be held criminally accountable for the robberies committed by Finch. Phillips cannot, however, be classified as Finch's accomplice for the crime of premeditated murder because the evidence did not show that he intended to facilitate or aid in committing a murder. *fn4 Accordingly, we reverse Phillips' premeditated murder conviction. *fn5

SUPREME COURT

Moore v. Texas, 535 US -- (5/1/2002) (dissent from stay) Three Supreme Court justices dissent from a stay involves the issue of mental retardation & the Court's soon to be released decision in Atkins v. Virginia.

The first of these murderers, Curtis Moore, participated in three brutal killings during the course of a drug deal and robbery. One victim was stuffed in the trunk of a car, shot, doused with gasoline, and lit afire. The second vic-tim was driven to his girlfriend’s home, where he and the third victim, the girlfriend, were shot dead. Before trial, Moore had discussed with his counsel the possibility of introducing into evidence an IQ test administered to Moore when he was 12 years old, showing a score of 68, a figure within the “mildly retarded” range. Counsel ad-vised Moore that if the defense presented psychological testimony, the State could have an expert witness inter-view him to determine whether he posed a continuing threat to society. Because a pretrial IQ test (administered at counsel’s request) showed a score of 76, within the “normal” range, Moore’s counsel believed that introduction of the results of the earlier test would do more harm than good. Moore himself did not believe the earlier test result, insisted he was normal, and told counsel he did not want psychological testimony introduced.

Moore was convicted of capital murder and sentenced to death in November 1996. The Texas Court of Criminal Appeals affirmed, Moore v. State, No. 72,705 (May 3, 1999). Moore’s first state habeas petition alleged trial counsel was ineffective in failing to present evidence of his mental retardation at sentencing. The petition was de-nied, Ex parte Moore, No. C–297–3899–0631559–A (Dist. Ct. Tarrant County, Tex., Sept. 9, 1999), aff’d, No. 42,810– 01 (Tex. Crim. App., Apr. 28, 1999), cert. denied, 534 U. S. 849 (2001). So was his first federal habeas petition, which raised the same claim of ineffective assistance, Moore v. Johnson, No. 4:99–CV–960–A (ND Tex. July 13, 2000), aff’d sub nom., Moore v. Cockrell, No. 00–10870 (CA5, Oct. 10, 2001), cert. denied, 535 U. S. — (2002). On the day before his scheduled execution, Moore filed a second state habeas petition in which he claimed, for the first time, that his execution would violate the Eighth Amendment because he is mentally retarded. In support of this claim, Moore presented the same evidence that, in prior habeas petitions, he had claimed his attorney should have pre-sented at sentencing. The Texas Court of Criminal Ap-peals dismissed the petition as an abuse of the writ under Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a) (Vernon Supp. 2002), which generally precludes second or subse-quent habeas petitions involving claims that could have been raised previously. Ex parte Moore, No. 42,810–02 (Apr. 30, 2002). Moore petitioned this Court for a stay of execution pending its decision in Atkins v. Virginia, No. 00–8452, cert. granted, 533 U. S. 976 (2001).

The second murderer, Brian Edward Davis, was con-victed and sentenced to death in June 1992 for a killing during the course of a robbery. The mentally retarded victim was found in his ransacked apartment with a swas-tika drawn on his abdomen and 11 stab wounds to his neck, chest, abdomen, and back. Although Davis’s trial attorney introduced evidence of a learning disability, he did not argue that Davis was mentally retarded. Indeed, a psychologist testified at trial that Davis was not mentally retarded, and Davis’s score of 74 on a 1984 IQ test placed him in the range of normal intellectual functioning. The Texas Court of Criminal Appeals affirmed Davis’s convic-tion and sentence, Davis v. State, 961 S.W. 2d 156 (1998), denied his first application for state postconviction relief, Ex parte Davis, No. 40,339–01 (Mar. 10, 1999), and dis-missed his second state habeas petition as an abuse of the writ, Ex parte Davis, No. 40,339–02 (Sept. 13, 2000). After his federal habeas petition was denied, Davis v. Cockrell, No. 00–CV–852 (SD Tex., Oct. 1, 2001), Davis filed his third state habeas petition, which was likewise dismissed as an abuse of the writ, Ex parte Davis, No. 40,339–03 (Tex. Crim. App., Apr. 29, 2002). The Fifth Circuit denied Davis’s request for authorization to file a successive fed-eral habeas petition, In re Davis, No. 02–20479 (May 6, 2002); we denied his petition for an original writ of habeas corpus, In re Davis, 535 U. S. — (2002). On the day of his scheduled execution, Davis filed a fourth state habeas petition, raising an Eighth Amendment claim, and as-serting the fact of mental retardation, for the first time. The Texas Court of Criminal Appeals once again dis-missed the petition as an abuse of the writ, and Davis petitioned this Court for a stay of execution pending its decision in Atkins, supra.

It is apparent on the face of both these applications that the conditions for stay do not exist.

A stay is appropriate only when there is a “reasonableprobability” that four Members of this Court will grant certiorari, a “significant possibility” that the Court, after hearing the case, will reverse the decision below, and a “likelihood” that the applicant will suffer irreparable harm absent a stay. Barefoot v. Estelle, 463 U. S. 880, 895 (1983); see also Rubin v. United States, 524 U. S. 1301, 1302 (1998) (REHNQUIST, C. J., in chambers); Edwards v. Hope Medical Group for Women, 512 U. S. 1301, 1302 (1994) (SCALIA, J., in chambers). It is a firm rule that “[t]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U. S. 722, 729 (1991). That rule applies “whether the state law ground is substantive or procedural,” and in the case of direct review of a state-court judgment (which is at issue here) it is juris-dictional. Ibid.

The Texas Court of Criminal Appeals dismissed each of these applicants’ successive habeas petitions as an abuse of the writ under Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a) (Vernon Supp. 2002), which declares in relevant part:

“[A] court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts estab-lishing that . . .

“(1) the current claims and issues have not been and could not have been presented previously . . . because the factual or legal basis for the claim was unavail-able on the date the applicant filed the previous appli-cation; . . . or

“(3) by clear and convincing evidence, but for a vio-lation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 or 37.0711 [which list aggravating and mitigating factors] . . . .”

There is no question that this procedural bar is an ade-quate state ground; it is firmly established and has been regularly followed by Texas courts since at least 1994. See Barrientes v. Johnson, 221 F. 3d 741, 758–759 (CA5 2000).

Nor could there be a question whether it is independent of federal law. Insofar as §5(a)(1) is concerned, Texas courts did not pass on any issue of federal law in deciding whether applicants’ Eighth Amendment claim was “previ-ously unavailable.” A claim is “unavailable” under Texas law only “if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before” the date of the initial habeas appli-cation. Art. 11.071, §5(d). The question whether a par-ticular claim is “reasonably formula[ble]” from federal or state appellate decisions within the meaning of the Texas statute is a question of Texas, not federal, law. To be sure, Texas’s answer cannot be so arbitrary or unreasonable as to violate due process, but that is not a problem here. On any assessment, applicants’ claim—that execution of the mentally retarded violates the Eighth Amendment—was “available” when applicants filed their first state habeas petitions in 1999. In fact, the claim was made in at least two pre-1999 cases before the Texas Court of Criminal Appeals itself. See Bell v. State, 938 S. W. 2d 35, 55 (1996) (en banc); Ramirez v. State, 815 S. W. 2d 636, 654–655 (1991) (en banc).

The application of §5(a)(3) to this case is similarly inde-pendent of federal law. The Texas Court of Criminal Appeals was not required to pass on any federal question in deciding whether “clear and convincing evidence” showed that “but for a violation of the United States Con-stitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury.” The Eighth Amendment violation that applicants have alleged (failure to exempt the men-tally retarded from the death penalty) could not possibly have caused any rational juror to give a different answer to the special issues—viz., whether there is a probability that the defendant would commit criminal acts of violence in the future, Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b)(1), 3(b)(2) (Vernon Supp. 2001), and (in Moore’s case only) whether “mitigating circumstances” outweigh aggravating factors, §2(e)(1). Not only is the constitu-tional point irrelevant to those issues, but the jury had no cause to think that either applicant was retarded, since neither had asserted mental retardation at trial or in the penalty phase.

The decisions of the Texas Court of Criminal Appeals, then, clearly rest on adequate and independent state grounds. It is equally clear that applicants have neither demonstrated cause for their procedural default nor have raised even a colorable claim of mental retardation. They present the same evidence that their trial attorneys con-cluded was too insubstantial to support an argument of mental retardation. IQ tests place both applicants above the highest cutoff used in state legislation prohibiting execution of the mentally retarded.* Brief for Respondent in Atkins v. Virginia, O. T. 2001, No. 00–8452, pp. 40–41. And in Davis’s case, a psychologist testified at trial that the defendant was not mentally retarded. Thus, the specter of a “fundamental miscarriage of justice” (if Atkins should proscribe execution of the mentally retarded) could not possibly induce the Court to ignore the adequate and independent state grounds. Coleman, 501 U. S., at 750.

If prior law is to be adhered to, there is no possibility, much less a “significant” one (as the granting of a stay requires), that this Court will reverse the judgments of the Texas Court of Criminal Appeals. And I have not men-tioned a further consideration, which should weigh heavily in the present circumstances: The Court “may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam). The Court’s granting of these stays not only disrupts settled law but invites meritless last-minute applications to disrupt the orderly state administration of the death penalty.

CAPITAL CASES (Favorable or Neutral Disposition)

Stewart v. Smith, 2002 Ariz. LEXIS 89 (AZ 5/30/2002) On certification from the United States Supreme Court, the Arizona Supreme Court states:

Thus, if petitioner asserts ineffective assistance of counsel for the first time in a successive Rule 32 petition, the question of preclusion is determined by the nature of the right allegedly affected by counsel's ineffective performance. If that right is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver, the claim is not precluded. If it is not of such magnitude, the claim is precluded.

CAPITAL CASES (Unfavorable Disposition)

California v. Steele, 2002 Cal. LEXIS 3562 (CA 5/30/2002) (dissent) Relief denied, most notably, on (1) whether certain testimony of the forensic pathologist who performed the autopsy of the victim was admissible on redirect examination; (2) whether several jurors committed misconduct by injecting extraneous information, based upon their own asserted expertise and specialized knowledge, into the jury's deliberations regarding disputed issues at trial an (3) whether that a prior second degree murder committed by the appellant was more prejudicial than it was probative.

Griffin v. Florida, 2002 Fla. LEXIS 1149 (FL 5/30/2002) Relief denied most notably on whether aggravators involving pecuniary gain and kidnapping were based upon the same underlying circumstance, i.e., robbery.

Chavez v. Florida, 2002 Fla. LEXIS 1150 (FL 5/30/2002) Chavez's intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation progress. Similarly the length of the interrogation, threats of the use of the death penalty & allusions to the need for a proper burial did not produce an unlawful confession. Finally, delay in appointment of counsel until after probable cause hearing did not render the confession inadmissible where the appellant waived his Miranda rights.

California v. Slaughter, 2002 Cal. LEXIS 3561 (CA 5/31/2002) (dissent) Denial of relief, most notably, on issue of invocation of biblical authority for a verdict of death.

State v. Finch, 2002 Ariz. LEXIS 84 (Ariz. 05/24/2002) The reinitiation of questioning by the police after the invocation of the right to counsel was permissible in this fact specific circumstance in the most noteworthy issue on appeal.

Cobb v. Texas, 2002 Tex. Crim. App. LEXIS 111 (Tex. Crim. App. 5/29/2002) Confession for purposes of the Fifth Amendment & Texas state constitution was permissible even though it flowed out of the same course of conduct during which the right to counsel was invoked.

Philmore v. Florida, 2002 Fla. LEXIS 1153 (FL 5/30/2002) Relief denied on Philmore's claims that: (1) the trial court erred in failing to suppress his statements to law enforcement; (2) the trial court erred in allowing the State to exercise a peremptory challenge against prospective juror Tajuana Holt, because the State's reason for the challenge was not race-neutral; (3) the trial court erred in denying Philmore's motion to exclude a photograph depicting the deceased because the photograph was more prejudicial than probative; (4) the State made improper arguments throughout the guilt phase; (5) the State made improper arguments throughout the penalty phase; (6) the trial court erred in compelling a mental health examination of Philmore by the State's expert witness, and Florida Rule of Criminal Procedure 3.202 is unconstitutional; (7) the trial court erred in finding the CCP aggravator; (8) the trial court erred in finding the "avoid arrest" aggravator; (9) the trial court erred in rejecting the "under the influence of extreme mental or emotional disturbance" statutory mitigator; (10) the trial court erred in rejecting the "substantial domination of another" statutory mitigator; and (11) the trial court erred in rejecting the "impairment of capacity to appreciate the criminality of conduct" statutory mitigator.

OTHER NOTABLE CASES

Close v. People, 2002 Colo. LEXIS 428 (Colo. 05/28/2002) A "criminal defendant who is sentenced [for a] crime of violence statute is entitled, upon request, to an abbreviated proportionality review. If, and only if, that abbreviated proportionality review gives rise to an inference of gross disproportionality will an extended proportionality review be required. Given the gravity and seriousness of the crimes included in the crime of violence statute, the necessity of conducting an extended proportionality review, and thus a successful challenge to a sentence imposed under that statute, will be "exceedingly rare."

Harmelin [v. Michigan, 501 U.S. 957 (1991)] is significant because it brings into some question the scope of Solem's holding and continued viability. Harmelin is an opinion without a majority holding. However, Harmelin preserves the existence of a proportionality guarantee as well as the presence of procedural mechanisms through which to engage in proportionality reviews. Harmelin's holding narrows Solem by declaring that the Eighth Amendment includes only a narrow proportionality principle and by concluding that Solem did not mandate a rigid three-part proportionality review procedure. Instead, Harmelin established that only Solem's first part, namely a consideration of the two sub-parts of (1) the gravity of the crime and (2) the harshness of the penalty, is required of courts engaging in a proportionality review. This type of proportionality review has become known as an "abbreviated" proportionality review. Harmelin further established that consideration of the second two parts of Solem's proportionality review procedure need not be utilized unless an inference of gross disproportionality is raised by the abbreviated proportionality review. The utilization of the second two Solem factors upon such inference of gross disproportionality has become known as an "extended" proportionality review.

Harmelin involved a mandatory life sentence, but not an habitual criminal statute. Defendant Harmelin was convicted of possessing 672 grams of cocaine and sentenced to life imprisonment without the possibility of parole under a Michigan statute. Harmelin, 501 U.S. at 961. He challenged his sentence on two grounds. He first argued that his sentence was unconstitutionally disproportionate. He also argued that the mandatory nature of the sentence, which did not take into account mitigating factors, rendered it unconstitutional. The Court upheld the sentence. Three Justices - Justices Kennedy, O'Connor, and Souter - concurred in the judgment, holding that the Eighth Amendment does contain a proportionality principle, but that principle was not violated in this instance. Id. at 996-1009. Four Justices - Justices White, Blackmun, Stevens, and Marshall - dissented. The dissent emphasized the vitality of the proportionality principle embodied in the Eighth Amendment and expressed that Solem was correctly decided and should continue to represent the Court's position on proportionality. Harmelin, 501 U.S. at 1009 (White, J., dissenting)(joined by Marshall and Stevens, JJ.); 501 U.S. at 1027 (Marshall, J., dissenting); 501 U.S. at 1028 (Stevens, J., dissenting) (joined by Blackmun, J.). Justice Kennedy's concurrence is widely recognized as "the rule of Harmelin," and thus the only controlling part of the opinion, because it resolved the case on its narrowest grounds and garnered the support of the largest number of justices. *fn4 See Marks v. United States, 430 U.S. 188, 193 (1977)(citing Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). As noted by the Tenth Circuit:

Seven members of the Harmelin Court (Kennedy, O'Connor, and Souter, JJ., concurring, and White Blackmun, Stevens, and Marshall, JJ., dissenting) supported some Eighth Amendment guarantee against disproportionate sentences. . . . The controlling position is the one `taken by those Members who concurred in the judgments on the narrowest grounds.' Thus, Justice Kennedy's opinion controls because it both retains proportionality and narrows Solem. Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999); see also, e.g., United States v. Gonzales, 121 F.3d 928 (5th Cir. 1997).

Justice Kennedy's concurrence narrowed Solem by holding that only "grossly disproportionate" sentences are unconstitutional; the Eighth Amendment encompasses only a narrow proportionality principle. Harmelin, 501 U.S. at 1001. Justice Kennedy articulated the following four principles in narrowing Solem: (1) the "fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is `properly within the province of legislatures, not courts'"; (2) there are a variety of legitimate, constitutional, penological schemes that may be adopted by legislatures; (3) the nature of our federal system, namely that "state sentencing schemes may embody different penological assumptions, making interstate comparison of sentences a difficult and imperfect exercise"; and (4) the requirement that proportionality review be guided by objective factors. Harmelin, 501 U.S. at 998-1000 (Kennedy, J., concurring). These four principles informed a final one: "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Id. at 1001 (Kennedy, J., concurring).

Specifically, Justice Kennedy's concurrence stated that Solem did not announce a rigid three-part proportionality review procedure. Id. at 1004. Instead, Justice Kennedy opined that only the first Solem inquiry - comparing the two sub-parts of the gravity of the offense and the harshness of the punishment - is required when a court engages in a proportionality review. Thus, Justice Kennedy's concurrence holds that only an abbreviated proportionality review is required when a court is reviewing a sentence. Only when this abbreviated proportionality review gives rise to an "inference of gross disproportionality" should a court conduct an extended proportionality review, which includes the second and third factors of the Solem proportionality review procedure. Id. at 1004-06.

In sum, United States Supreme Court precedent establishes three principles underlying proportionality reviews. These three principles answer the questions of who is entitled to a proportionality review, what is at issue in a proportionality review, and what the procedures are in a proportionality review. First, proportionality reviews are not specifically limited to life sentences or to sentences imposed pursuant to habitual criminal statutes; proportionality reviews are proper to review sentences to a term of years. See generally Davis, 454 U.S. at 377 (Powell, J., concurring). Second, only "grossly disproportionate" sentences are prohibited by the Eighth Amendment's proportionality principle. See Harmelin, 501 U.S. at 1001. Third, there are two types of proportionality review: an abbreviated proportionality review and an extended proportionality review. Reviewing courts must only complete an abbreviated proportionality review. If, and only if, that abbreviated proportionality review gives rise to an inference of gross disproportionality does a reviewing court need to engage in an extended proportionality review, which involves intra-jurisdictional and inter-jurisdictional comparisons as articulated in Solem. Id. at 1004-05.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

To return next week.

OTHER NEWS

TheDeath Penalty Information Centerreports:

U.S. Catholic Support for Capital Punishment Declines Sharply

A Zogby International poll of more than 1,500 Catholics in the United States found that they are nearly evenly divided as to whether "capital punishment is wrong under virtually all circumstances." The poll found that 49% of respondents agreed with the statement, and 48% disagreed. This is a sharp decline from ten years ago, when a Gallup poll revealed that 77% of U.S. Catholics favored the death penalty. (Catholics Against Capital Punishment News Notes, Volume 11, Number 1). See also, Public Opinion.

NEW RESOURCE: Issues of Consistency in the Federal Death Penalty

"Issues of Consistency in the Federal Death Penalty: A Roundtable Discussion on the Role of the U.S. Attorney," a Vera Institute of Justice report by Robin Campbell, is now available on the Internet. The report explores the federal death penalty through the eyes of 11 U.S. Attorneys from across the nation who serve as the first line of decision-makers in the process that identifies which cases may be subject to the federal death penalty. This report examines the challenges prosecutors face in reconciling local conditions against nationwide laws, the issues of racial and ethnic disparity in the federal death penalty, and what role U.S. Attorneys can play in addressing these concerns. Read the full report. See also, Federal Death Penalty.

Inmate Whose Lawyer Also Represented Victim scheduled for execution in Virginia

Walter Mickens is scheduled for execution on June 12 in Virginia. Recently, the U.S. Supreme Court upheld his conviction despite the fact that his attorney also represented the victim on criminal charges. For more information, see the Virginia Capital

NEW VOICES: Texans Voice Growing Concerns About State's Death Penalty

Concerns about Texas' death penalty have been raised by a number of present and former state officials. Former Bexar County district attorney Sam Millsap, who successfully prosecuted a number of capital cases, noted, "We're talking about some serious, conservative, pro-prosecution people who have some fundamental questions about whether we know what we're doing right now. What we're saying is 'Let's stop the train until we've got a system we're confident works.' "

Millsap's sentiments were echoed by State Senator Mike Moncrief, who said, "I think there's a clear possibility - and a high probability - that we have executed innocent people in this state."

State Representative Elliott Naishtat also questioned the fairness of the state's application of the death penalty and called for a moratorium on executions until the Texas system can be reviewed. Naishtat stated, "Texas' application of the death penalty is riddled with systemic problems. The Legislature should adopt a joint resolution that authorizes a constitutional amendment giving the governor the authority to declare a temporary moratorium on executions in Texas."

(Austin American-Statesman, June 2, 2002). See also, New Voices.

NEW RESOURCE: Views on the Death Penalty

A discussion entitled, "Governor Ryan's Capital Punishment Moratorium and the Executioner's Confession: Views from the Governor's Mansion to Death Row," 75 St. John's Law Rev. 401 (2001), examines capital punishment from a variety of viewpoints. Among those featured in the discussion are Governor George Ryan of Illinois, Pulitzer-Prize winning New York Times writer Jim Dwyer, and former Mississippi prison warden Donald Cabana. See also, Studies, Books and Law Reviews.

AP Examines the Cases of 110 Prisoners Freed Through DNA

A recent Associated Press article examining the cases of all 110 inmates freed by DNA testing found that the exonerees share a number of common traits and face similar hardships following their release from prison. The findings included the following:

Approximately half of the 110 freed inmates had no prior adult convictions.

Eleven of the men were on death row, and two of these exonerees came within days of their execution.

The exonerees spent an average of 10 1/2 years in jail; the 110 wrongfully-convicted inmates freed by DNA spent a total 1,149 combined years in jail.

Approximately 2/3 of the exonerees were convicted with mistaken testimony from victims and eyewitnesses, and 14% were jailed after mistakes or misconduct by forensics experts. Nine were mentally retarded or borderline retarded and confessed to authorities who, they claim, tricked or coerced them.

(Associated Press, May 28, 2002). Read the entire article. See also, Innocence.

New Jersey Poll Shows Dramatic Shift in Public Opinion

A recent poll of residents in New Jersey conducted by the Eagleton Institute of Politics at Rutgers University revealed that support for the death penalty has dropped considerably in the state, and that the majority of residents support a moratorium on executions until issues of accuracy, fairness and cost effectiveness can be examined. The following are among the poll's key findings:

When given the option of life without the possibility of parole as a sentencing alternative, 48% of New Jerseyans support a life sentence, while 36% support capital punishment. This is a reversal from 1999 polling results that showed that 44% of New Jerseyans then supported capital punishment and 37% favored life imprisonment when given the choice.

Six in 10 New Jerseyans support a moratorium on executions while the state's death penalty statues are reviewed.

A quarter of those surveyed say that they are more likely to vote for a candidate who supports a moratorium, while only 7% of those surveyed would be less likely to support him or her.

The New Jersey legislature is currently considering a bill that would create a one-year moratorium on executions while a Commission investigates potential flaws in the state's death penalty system. See the poll results and press release. See also, Public Opinion.