Five cases decided Thursday lead off this edition, three are big wins, two are huge losses. In Tennard v Dretke,the Court held that the Fifth Circuit is too narrowly defining the term mitigation, this is a potential watershed decision for Texas litigators.The majority soundly rejected the Fifth Circuit’s post- Penry“screening test” to determine whether evidence was “constitutionally relevant,” explaining that the test “has no foundation in the decisions of this Court.” Rather, the Court explained, the test for whether mitigating evidence introduced in the penalty phase of a capital trial is “relevant” is the same as in “any other context” – viz., whether the evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. As space this week is limited, only Tennard is addressed at length below.

In New York v. LaVallethe New York Court of Appeals held unconstitutional the current death penalty scheme as the deadlock provision was unduly coercive under the state constituion. The LaValleCourt reduced all death eligible cases to a maximum punishment of life, including those already on death row.

Teague v. Lane also reared its ugly head on Thursday in both major losses from the Supreme Court. In Beard v. Banksthe Court held that Mills v. Maryland (which helped juries from being mislead regarding their sentencing powers) is not retroactive to older DP cases; this case may lead to a blood bath in at least one state & spells bad news for the Mumiacs. In Schiro v. Summerlinthe Court held Ring v. Arizona is not retroactive; the decision is expected to impact at least 1000 cases in Arizona & several other states.

The Court Thursday in Blakely v. Washingtonhanded down a major non-capital decision relating to Apprendi. Many states around the country have sentencing schemes which call for a certain sentence or range of sentence for an offense unless the judge determines that there are aggravating factors in which case a greater sentence can be imposed. The Supreme Court today ruled that for the Judge to decide on the aggravating factor, rather than a jury, violates a defendant's Sixth Amendment rights under Apprendi.

A round up of commentary on Thursday's Supreme Court decisions can be found in the "From Around the Web" including comments from the Goldstein & Howe Supreme Court blog & TalkLeft. Note that additional, private discussion, can be found on the habeas-l & captrial lists, if you are not a member, are a lawyer & doing death penalty cases you should probably consider joining those lists.

Elsewhere, in Florida, new rules capping the maximum feesa lawyer may receive in capital cases is about to occurr, including a cap of just $3,500 for direct appeals. In DC, the annual Fast & Vigil against the death penalty (commemorating Gregg & Furman) will start Tuesday, the schedule is here.

A big thank you to all those who forwarded materials or suggestions for an upcoming CLE lecture on federal habeas. The July 14 CLE (NYCLE credit approved) will feature, in no particular order: George Kendall (Supreme Court roundup), Eric Freedman (Advanced Habeas Procedure), Jeff Kirchmeier (Introduction to Habeas), Christina Swarns (Mental Retardation), Russell Stetler (Mitigation investigation), & Kevin Doyle (Ethics). Note, the City Bar puts on a fairly amazing lunch for this event for which they pick up the tab. The event is Wednesday, July 14, 2004, 9:30 a.m. - 1:10 p.m. (Lunch/Ethics CLE: 1:10 - 2:30 p.m.) at the House of the Association, 42 West 44th Street

I will be on the road next week & the weekly will most likely not run. Goldstein & Howe Supreme Court blogis a great alternative source for Supreme Court coverage & TalkLeftstill remains one of the best criminal defense news sources around. As always, thanks for reading.

This edition is archived http://capitaldefenseweekly.com/archives/040621.htm.

EXECUTION INFORMATION

Since the last edition no executions were carried out in the United States.

Pending execution dates believed to be serious include

June

29 Mauro Barraza Texas----juvenile

30 David Harris Texas

30 Robert Hicks Georgia

July

7 Troy Kunkle Texas

9 Darnell Williams Indiana

9 Arthur Wise South Carolina

14 Stephen Vrabel Ohio----volunteer

19-25 Terry Dennis Nevada----volunteer

20 Scott Mink Ohio----volunteer

22 Mark Bailey Virginia

August

5 James Hubbard Alabama

19 Windel Workman Oklahoma

25 Jason Busby Texas

26 James Allridge III Texas

SUPREME COURT

Tennard v Dretke, 541 U.S. --- (2004) The Fifth Circuit is too narrowly defining the term mitigation.

During his capital murder trial’s penalty phase, petitioner Tennard presented evidence that he had an IQ of 67. The jury was instructed to determine the appropriate punishment by considering two “special issues,” which inquired into whether the crime was committed deliberately and whether the defendant posed a risk of future dangerousness. These were materially identical to two special issues found insufficient, in Penryv. Lynaugh, 492 U.S. 302, for the jury to give effect to Penry’s mitigating mental retardation and childhood abuse evidence. Tennard’s jury answered both special issues affirmatively and Tennard was sentenced to death. The Federal District Court denied Tennard’s federal habeas petition in which he claimed that his death sentence violated the Eighth Amendmentas interpreted in Penry,and denied a certificate of appealability (COA). The Fifth Circuit agreed that Tennard was not entitled to a COA. It applied a threshold test to Tennard’s mitigating evidence, asking whether it met the Fifth Circuit’s standard of “constitutional relevance” in Penrycases–that is, whether it was evidence of a “uniquely severe permanent handicap” that bore a “nexus” to the crime. The court concluded that (1) low IQ evidence alone does not constitute a uniquely severe condition, and no evidence tied Tennard’s IQ to retardation, and (2) even if his low IQ amounted to mental retardation evidence, Tennard did not show that his crime was attributable to it. After this Court vacated the judgment and remanded for further consideration in light of Atkinsv. Virginia, 536 U.S. 304, the Fifth Circuit reinstated its prior opinion.

Held:Because “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slackv. McDaniel, 529 U.S. 473, 484, a COA should have issued. Pp.7—15.

(a)A COA should issue if an applicant has “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” 529 U.S., at 484. Relief may not be granted unless the state court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court. §2254(d)(1). Pp.7—8.

(b)The Fifth Circuit assessed Tennard’s Penryclaim under an improper standard. Its threshold “constitutional relevance” screening test has no foundation in this Court’s decisions. Relevance was not at issue in Penry.And this Court spoke in the most expansive terms when addressing the relevance standard directly in McKoyv. North Carolina, 494 U.S. 433, 440—441, finding applicable the general evidentiary standard that “‘“any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,”’” id.,at 440. Once this low relevance threshold is met, the “ Eighth Amendmentrequires that the jury must be able to consider and give effect to” a capital defendant’s mitigating evidence. Boydev. California, 494 U.S. 370, 377—378. The Fifth Circuit’s test is inconsistent with these principles. Thus, neither the “uniquely severe” nor the “nexus” element of the Fifth Circuit’s test was a proper reason not to reach the substance of Tennard’s Penryclaims. Pp.8—13.

(c)Turning to the analysis that the Fifth Circuit should have conducted, reasonable jurists could conclude that Tennard’s low IQ evidence was relevant mitigating evidence, and that the Texas Court of Criminal Appeals’ application of Penrywas unreasonable, since the relationship between the special issues and Tennard’s low IQ evidence has the same essential features as that between those issues and Penry’s mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately. A reasonable jurist could conclude that the jury might have given the low IQ evidence aggravating effect in considering Tennard’s future dangerousness. Indeed, the prosecutor pressed exactly the most problematic interpretation of the special issues, suggesting that Tennard’s low IQ was irrelevant in mitigation, but relevant to future dangerousness. Pp.13—15.

317 F.3d 476, reversed and remanded.

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

Beard v. Banks, 541 U.S. --- (2004) the Court held today that Mills v. Maryland (which helped juries from being mislead regarding their sentencing powers) is not retroactive to older DP cases. As one commentator has noted, "the Banksdecision puts some 30 Pennsylvania capital sentences back on the table, including Mumia abu Jamal's, which had been set aside on the basis of the 3d Circuit's Banksprecedent, now reversed. Of course, given how screwed up many capital cases are, most of these prisoners -- but by no means all of them -- have other issues that haven't been resolved."

After respondent’s murder conviction and death sentence were upheld by the Pennsylvania Supreme Court, this Court decided Millsv. Maryland, 486 U.S. 367, and McKoyv. North Carolina, 494 U.S. 433, in which it held invalid capital sentencing schemes requiring juries to disregard mitigating factors not found unanimously. After respondent’s state postconviction Millsclaim was rejected by the State Supreme Court on the merits, he turned to the federal courts. Ultimately, the Third Circuit applied the analytical framework set forth in Teaguev. Lane, 489 U.S. 288, under which federal habeas petitioners may not avail themselves of new rules of constitutional criminal procedure outside two narrow exceptions; concluded that Millsdid not announce a new rule and therefore could be applied retroactively; and granted respondent relief.

Held:Because Millsannounced a new rule of constitutional criminal procedure that does not fall within either Teagueexception, its rule cannot be applied retroactively. Pp.4—14.

(a) Teagueanalysis involves a three-step process requiring a court to determine when a defendant’s conviction became final; whether, given the legal landscape at the time the conviction became final, the rule sought to be applied is actually new; and, if so, whether it falls within either of two exceptions to nonretroactivity. P.4.

(b)Respondent’s conviction became final before Millswas decided. The normal rule for determining a state conviction’s finality for retroactivity review–when the availability of direct appeal to the state courts has been exhausted and the time for filing a certiorari petition has elapsed or a timely petition has been finally denied–applies here. That the Pennsylvania Supreme Court considered the merits of respondent’s Millsclaim on collateral review does change his conviction’s finality to a date subsequent to Mills. Pp.4—6.

(c) Millsannounced a new rule. In reaching its conclusion in Millsand McKoy, this Court relied on a line of cases beginning with Lockettv. Ohio, 438 U.S. 586. Lockett’s general rule that the sentencer must be allowed to consider any mitigating evidence could be thought to support the conclusion in Millsand McKoythat capital sentencing schemes cannot require juries to disregard mitigating factors not found unanimously ,but it did not mandate the Millsrule. Each of the cases relied on by Mills(and McKoy) considered only obstructions to the sentencer’s ability to consider mitigating evidence. Mills’innovation rests with its shift in focus to individual jurors. Moreover, there is no need to guess whether reasonable jurists could have differed as to whether the Lockettline of cases compelled Mills.Four dissenting Justices in Millsreasoned that because nothing prevented the jury from hearing the mitigating evidence, Lockettdid not control; and three dissenting Justices in McKoyconcluded that Lockettdid not remotely support the new focus on individual jurors. Because the Millsrule broke new ground, it applies to respondent on collateral review only if it falls under a Teagueexception. Pp.6—10.

(d)The Millsrule does not fall within either exception. There is no argument that the first exception applies here. And this Court has repeatedly emphasized the limited scope of the second exception–“‘for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,’” O’Dellv. Netherland, 521 U.S. 151, 157–which “‘is clearly meant to apply only to a small core of rules requiring observance of those procedures that … are implicit in the concept of ordered liberty,’” ibid.This Court has yet to find a new rule that falls under this exception. In providing guidance as to what might do so, the Court has repeatedly, and only, referred to the right-to-counsel rule of Gideonv. Wainwright, 372 U.S. 335, which “altered [the Court’s] understanding of the bedrock procedural elementsessential to the fairness of a proceeding,” Sawyerv. Smith, 497 U.S. 227, 242. The Court has not hesitated to hold less sweeping and fundamental rules outside the exception. See, e.g., O’Dellv. Netherland, supra.While Millsand McKoywere decided to avoid potentially arbitrary impositions of the death sentence, the Millsrule has “none of the primacy and centrality of the rule adopted in Gideon,” Safflev. Parks, 494 U.S. 484, 495. It applies narrowly and works no fundamental shift in the Court’s “‘understanding of the bedrock procedural elements’”essential to fundamental fairnes s,O’Dell, supra,at 167. Pp.10—13.

316 F.3d 228, reversed and remanded.

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

Schiro v. Summerlin, 541 U.S. --- (2004) Ring v. Arizona is not retroactive

Respondent was convicted of first-degree murder and sentenced to death under Arizona’s capital sentencing scheme then in effect, which authorized the trial judge, rather than the jury, to determine the presence of aggravating circumstances that make the defendant eligible for the death sentence. The State Supreme Court affirmed on direct review. While respondent’s subsequent federal habeas case was pending in the Ninth Circuit, this Court decided that Apprendiv. New Jersey, 530 U.S. 466, 490, required the existence of an aggravating factor to be proved to a jury rather than a judge under Arizona’s scheme. Ringv. Arizona, 536 U.S. 584, 603—609. The Ninth Circuit invalidated respondent’s death sentence, rejecting the argument that Ringdid not apply because respondent’s conviction and sentence had become final on direct review before Ringwas decided.

Held: Ringdoes not apply retroactively to cases already final on direct review. Pp.3—10.

(a)A “new rule” resulting from a decision of this Court applies to convictions that are already final only in limited circumstances. New substantive rules generally apply retroactively, but new procedural rules generally do not–only “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding” are given retroactive effect. Safflev. Parks, 494 U.S. 484, 495. Such a rule must be one “without which the likelihood of an accurate conviction is seriously diminished.” Teaguev. Lane, 489 U.S. 288, 313. Pp.3—4.

(b) Ring’s holding is properly classified as procedural. It did not alter the range of conduct or the class of persons subject to the death penalty in Arizona, but only the method of determining whether the defendant engaged in that conduct. Pp.4—6.

(c) Ringdid not announce a watershed rule of criminal procedure. This Court cannot confidently say that judicial factfinding seriously diminishes accuracy. Pp.7—10.

341 F.3d 1082, reversed and remanded.

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

Blakely v. Washington,541 U.S. --- (2004) Since the facts supporting the exceptional sentence were neither admitted by petitioner nor found by a jury the sentence would violate Apprendi.

Petitioner pleaded guilty to kidnaping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range. The Washington Court of Appeals affirmed, rejecting petitioner’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.

Held:Because the facts supporting petitioner’s exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendmentright to trial by jury. Pp.5—18.

(a)This case requires the Court to apply the rule of Apprendiv. New Jersey, 530 U.S. 466, 490, that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The relevant statutory maximum for Apprendipurposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. Here, the judge could not have imposed the 90-month sentence based solely on the facts admitted in the guilty plea, because Washington law requires an exceptional sentence to be based on factors other than those used in computing the standard-range sentence. Petitioner’s sentence is not analogous to those upheld in McMillanv. Pennsylvania, 477 U.S. 79, and Williamsv. New York, 337 U.S. 241, which were not greater than what state law authorized based on the verdict alone. Regardless of whether the judge’s authority to impose the enhanced sentence depends on a judge’s finding a specified fact, one of several specified facts, or anyaggravating fact, it remains the case that the jury’s verdict alone does not authorize the sentence. Pp.5—9.

(b)This Court’s commitment to Apprendiin this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the fundamental constitutional right of jury trial. Pp.9—12.

(c)This case is not about the constitutionality of determinate sentencing, but only about how it can be implemented in a way that respects the Sixth Amendment. The Framers’ paradigm for criminal justice is the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. That can be preserved without abandoning determinate sentencing and at no sacrifice of fairness to the defendant. Pp.12—17.

111 Wash. App. 851, 47 P.3d 149, reversed and remanded.

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

Hibel v. Sixth Judicial District Court of Nevada, 541 U.S. --- (2004) Police may make inquiry of a person's name under suspiciious circumstances.

Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s “stop and identify” statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel’s argument that the state law’s application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed.

Held:Petitioner’s conviction does not violate his Fourth Amendmentrights or the Fifth Amendment’s prohibition on self-incrimination. Pp.3—13.

(a)State stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. They vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. In Papachristouv. Jacksonville, 405 U.S. 156, 167—171, this Court invalidated a traditional vagrancy law for vagueness because of its broad scope and imprecise terms. The Court recognized similar constitutional limitations in Brownv. Texas, 443 U.S. 47, 52, where it invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendmentgrounds, and in Kolenderv. Lawson, 461 U.S. 352, where it invalidated on vagueness grounds California’s modified stop and identify statute that required a suspect to give an officer “credible and reliable” identification when asked to identify himself, id.,at 360. This case begins where those cases left off. Here, the initial stop was based on reasonable suspicion, satisfying the Fourth Amendmentrequirements noted in Brown. Further, Hiibel has not alleged that the Nevada statute is unconstitutionally vague, as in Kolender. This statute is narrower and more precise. In contrast to the “credible and reliable” identification requirement in Kolender,the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs .Pp.3—6.

(b)The officer’s conduct did not violate Hiibel’s Fourth Amendmentrights. Ordinarily, an investigating officer is free to ask a person for identification without implicating the Amendment. INSv. Delgado, 466 U.S. 210, 216. Beginning with Terryv. Ohio, 392 U.S. 1, the Court has recognized that an officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terrystop, see, e.g., United Statesv. Hensley, 469 U.S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n.3. The Court is now of the view that Terryprinciples permit a State to require a suspect to disclose his name in the course of a Terrystop. Terry, supra,at 34. The Nevada statute is consistent with Fourth Amendmentprohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests. See Delawarev. Prouse, 440 U.S. 648, 654. An identity request has an immediate relation to the Terrystop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location. Hiibel argues unpersuasively that the statute circumvents the probable-cause requirement by allowing an officer to arrest a person for being suspicious, thereby creating an impermissible risk of arbitrary police conduct. These familiar concerns underlay Kolender, Brown, and Papachristou.They are met by the requirement that a Terrystop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U.S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayesv. Florida, 470 U.S. 811, 817. The request in this case was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terrystop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the Fourth Amendment. Pp.6—10.

(c)Hiibel’s contention that his conviction violates the Fifth Amendment’s prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendmentprohibits only compelled testimony that is incriminating, see Brownv. Walker, 161 U.S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigarv. United States, 406 U.S. 441, 445. Hiibel’s refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffmanv. United States, 341 U.S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer’s business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendmentdoes not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs.v. Bouknight, 493 U.S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendmentprivilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here. 10—13.

118 Nev. 868, 59 P.2d 1201, affirmed.

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

Piler v. Ford, 541 U.S. --- (2004) A federal district court sitting in habeas review need not tell a petitioner of the potential consequences of their actions when a mixed petition is filed.

Five days before the 1-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) would have run, respondent filed two pro se“mixed” federal habeas petitions–those containing both unexhausted and exhausted claims–and motions to stay the petitions while he returned to state court to exhaust the unexhausted claims. The Magistrate Judge gave him three options:(1) The petitions could be dismissed without prejudice and respondent could refile after exhausting the unexhausted claims; (2) the unexhausted claims could be dismissed and he could proceed with only the exhausted claims; or (3) he could contest the Magistrate Judge’s finding that some claims were unexhausted. He chose the first option with respect to one petition and failed to respond with respect to the other. The Federal District Court dismissed his petitions without prejudice. He then filed habeas petitions in the California Supreme Court, which were both denied. The federal court dismissed his subsequently refiled pro sehabeas petitions with prejudice as untimely under AEDPA, see 28 U.S.C. § 2254(d), and denied him a certificate of appealability (COA). The Ninth Circuit granted a COA, concluding that his initial petitions were timely under §2254(d) and that his later petitions related back to the initial ones. The Ninth Circuit determined that although the District Court correctly concluded that it did not have discretion to stay respondent’s mixed petitions, it could have acted on his stay motions had he chosen the Magistrate Judge’s second option and then renewed the prematurely filed stay motions. It also held that the District Court had to give respondent two specific warnings: first, that it could not consider his motions to stay the mixed petitions unless he chose to amend them and dismiss the then-unexhausted claims; and second, if applicable, that his federal claims would be time barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions without prejudice and return to state court to exhaust all his claims.

Held:The District Court was not required to provide the warnings directed by the Ninth Circuit. Pp.4—9.

(a)Federal district courts must dismiss “mixed” habeas petitions. Rosev. Lundy, 455 U.S. 509, 522. The combined effect of Roseand AEDPA’s limitations period is that if a petitioner comes to federal court with a mixed petition toward the end of the limitations period, a dismissal of his mixed petition could result in the loss of all his claims–including those already exhausted–because the limitations period could expire during the time he returns to state court to exhaust his unexhausted claims. To address this, the Ninth Circuit allows a district court to employ a stay-and-abeyance procedure, which involves (1) dismissal of any unexhausted claims from the original mixed habeas petition; (2) a stay of the remaining claims, pending exhaustion of the dismissed unexhausted claims in state court; and (3) amendment of the original petition to add the newly exhausted claims that then relate back to the original petition. Here, the Ninth Circuit held that if a pro seprisoner files a mixed petition, the district court must give two specific warnings regarding the stay-and-abeyance procedure. But federal district judges have no obligation to act as counsel or paralegal to pro selitigants. See, e.g., McKasklev. Wiggins, 465 U.S. 168, 183—184. Explaining the details of federal habeas procedure and calculating statutes of limitations are tasks normally and properly performed by trained counsel. Requiring district courts to advise pro selitigants in such a manner would undermine district judges’ role as impartial decisionmakers. And the warnings run the risk of being misleading. The first could encourage the use of stay-and-abeyance when it is not in the petitioner’s best interest. The second would force upon judges the potentially burdensome task of making a case-specific calculation of whether the AEDPA limitations period has already run or will have run by the time the petitioner returns to federal court. Because such calculations depend upon information contained in documents that do not necessarily accompany the petition, a district judge’s calculation could be in error and thereby misinform a pro sepetitioner. Respondent’s argument that Roserequires that a prisoner be given “the choice of returning to state court to exhaust his claims or amending or resubmitting the habeas petition to present only exhausted claims to the district court,” 455 U.S., at 510, is unavailing. Roserequires only that a district court dismiss mixed petitions, which, as a practical matter, means that the prisoner must follow one of these two paths if he wants to proceed with his federal petition. Nothing in Roserequires that both options be equally attractive, or that district judges give specific advisements as to the availability and wisdom of these options. Respondent’s reliance on Castrov. United States,540 U.S. ___, is misplaced, because Castrodealt with a district court’s suasponterecharacterization of a prisoner’s pleading and did not address whether a district court is required to explain a pro selitigant’s options before a voluntarydismissal. Pp.4—8.

(b)The case is remanded for further proceedings given the concern that respondent had been affirmatively misled. P.8.

330 F.3d 1086, vacated and remanded.

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

CAPITAL CASES (Favorable Disposition)

New York v. LaValle, 2004 N.Y. Slip Op. 05484 (NY 2004) The New York Court of Appeals holds unconstitutional the current statute due to the deadlock provision & reduced all death eligible indictments to life eligible indictments, including those already on death row.

Johnson v. Oklahoma, 2004 Okla. Crim. App. LEXIS 27 (Ok Crim App 6/15/2004) The trial court improperly permitted the jury to separate during deliberations in contravention of state law.

NJDPM v. NJ Dept of Corrections, 2004 N.J. Super. LEXIS 208 (NJ Super 6/16/2004) Remand ordered for calculations of increased attorney fees relating to successful challenge to that state's lethal injection protocol.

Brown v. Mississippi, 2004 Miss. LEXIS 688 (Miss 6/17/2004) Remand ordered for determination of post-conviction claim of mental retardation.

Leavitt v. Arave, 2004 U.S. App. LEXIS 11586 (9th Cir 6/14/2004) The district court improperly granted habeas corpus relief on the assertion that a burden of proof instruction violated Leavitt's due process rights. Remand ordered on Ring, however, due to the decision issued today in Summerlin by the SCOTUS, rehearing is likely. The panel in dicta notes that it would otherwise remand for ineffective assistance of counsel in the penalty phase.

CAPITAL CASES (Unfavorable Disposition)

Chamberlain v. Florida,2004 Fla. LEXIS 951 (FL 6/17/2004) Relief denied on claims relating to: "(1) death qualification of the jury; (2) denial of Chamberlain's motion to disqualify the trial judge; (3) comments on Chamberlain's credibility; (4) an out-of-court identification of Chamberlain; (5) an alleged violation of the [*9] rule of sequestration; (6) use of prior consistent statements; (7) use of a demonstrative aid; (8) constitutionality of the felony-murder jury instruction; (9) sufficiency of the evidence of first-degree murder; (10) constitutionality of the murder in the course of a felony aggravator; and (11) sufficiency of the evidence supporting the finding of aggravating factors and the rejection of mitigating factors."

Brown v. Luebbers, 2004 U.S. App. LEXIS 11672 (8th Cir 6/15/2004) (en banc) (dissent) In an en banc opinion, the court sets aside the district court's order granting habeas relief and reinstates Brown's death sentence. Brown's constitutional claim was adjudicated on the merits in state court, and the AEDPA Sec. 2254(d) standard of review applies to his claim that the trial court erred in excluding, as hearsay, a letter he sought to introduce as mitigating evidence at his sentencing; decision that the letter did not meet the standards for admission because it was neither highly relevant to a critical issue nor reliable was not an unreasonable application of federal law; in any event, the letter was cumulative of other character evidence already in evidence and the refusal to admit the letter was harmless beyond a reasonable doubt.

South Carolina v. Simmons, 2004 S.C. LEXIS 154 (SC 6/14/2004) This capital case involves issues of juror voir dire, juror dismissal after trial had begun, and affirmance of a death sentence when an aggravating circumstance (armed robbery) has been invalidated.

Conner v. Mississippi, 2004 Miss. LEXIS 692 (Miss 6/17/2004) Mental retardation claim rejected, for now, as the affidavit in support of the motion does not conform to state precedent.

California v. Holloway, 2004 Cal. LEXIS 5504 (CA 6/17/2004) Relief denied on claims including: (1) failure to suppress defendant's confession, (2) discharge juror during trial, (3) certain evidentiary ruling; (4) retrial after prior reversal on appeal for juror misconduct & (5) constitutionality of state death penalty scheme.

HOT LIST

Tennard v Dretke, 541 U.S. --- (2004) The Fifth Circuit is too narrowly defining the term mitigation.

Despite paying lipservice to the principles guiding issuance of a COA, Tennardv. Cockrell, supra,at 594, the Fifth Circuit’s analysis proceeded along a distinctly different track. Rather than examining the District Court’s analysis of the Texas court decision, it invoked its own restrictive gloss on Penry I:

“In reviewing a Penryclaim, we must determine whether the mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. … To be constitutionally relevant, ‘the evidence must show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, … and (2) that the criminal act was attributable to this severe permanent condition.’” 284 F.3d, at 595 (quoting Davisv. Scott,51 F.3d, 457, 460—461 (CA5 1998)).

This test for “constitutional relevance,” characterized by the State at oral argument as a threshold “screening test,” Tr. of Oral Arg.10, 28, appears to be applied uniformly in the Fifth Circuit to Penryclaims. See, e.g., Bigbyv. Cockrell, 340 F.3d 259, 273 (2003); Robertsonv. Cockrell, 325 F.3d 243, 251 (2003) (en banc); Smithv. Cockrell, 311 F.3d 661, 680 (2002); Bluev. Cockrell, 298 F.3d 318, 320—321 (2002); Davisv. Scott, 51 F.3d 457, 460—461 (1995). Only after the court finds that certain mitigating evidence is “constitutionally relevant” will it consider whether that evidence was within “the ‘effective reach of the jur[y].’” E.g., Smith, supra,at 680 (court asks whether evidence was constitutionally relevant and, “if so,” will consider whether it was within jury’s effective reach). In the decision below, the Fifth Circuit concluded that Tennard was “precluded from establishing a Penryclaim” because his low IQ evidence bore no nexus to the crime, and so did not move on to the “effective reach” question. 284 F.3d, at 597.

The Fifth Circuit’s test has no foundation in the decisions of this Court. Neither Penry Inor its progeny screened mitigating evidence for “constitutional relevance” before considering whether the jury instructions comported with the Eighth Amendment. Indeed, the mitigating evidence presented in Penry Iwas concededlyrelevant, see Tr. of Oral Arg., O. T. 1988, No. 87—6177, pp. 34—36, so even if limiting principles regarding relevance were suggested in our opinion–and we do not think they were–they could not have been material to the holding.

When we addressed directly the relevance standard applicable to mitigating evidence in capital cases in McKoyv. North Carolina, 494 U.S. 433, 440—441 (1990), we spoke in the most expansive terms. We established that the “meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding” than in any other context, and thus the general evidentiary standard–“‘“any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”’”–applies. Id.,at 440 (quoting New Jerseyv. T.L.O., 469 U.S. 325, 345 (1985)). We quoted approvingly from a dissenting opinion in the state court: “‘Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” 494 U.S., at 440 (quoting Statev. McKoy, 323 N.C. 1, 55—56, 372 S.E. 2d, 12, 45 (1988) (opinion of Exum, C.J.)). Thus, a State cannot bar “the consideration of … evidence if the sentencer could reasonably find that it warrants a sentence less than death.” 494 U.S., at 441.

Once this low threshold for relevance is met, the “ Eighth Amendmentrequires that the jury be able to consider and give effect to” a capital defendant’s mitigating evidence. Boydev. California, 494 U.S. 370, 377—378 (1990) (citing Lockettv. Ohio, 438 U.S. 586(1978); Eddingsv. Oklahoma, 455 U.S. 104(1982); Penry I, 492 U.S. 302(1989)); see also Paynev. Tennessee, 501 U.S. 808, 822 (1991) (“We have held that a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death…. [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances” (quoting Eddings, supra, at 114)).

The Fifth Circuit’s test is inconsistent with these principles. Most obviously, the test will screen out any positive aspect of a defendant’s character, because good character traits are neither “handicap[s]” nor typically traits to which criminal activity is “attributable.” In Skipperv. South Carolina, 476 U.S. 1, 5 (1986), however, we made clear that good-character evidence can be evidence that, “[u]nder Eddings, … may not be excluded from the sentencer’s consideration.” We observed that even though the petitioner’s evidence of good conduct in jail did “not relate specifically to petitioner’s culpability for the crime he committed, there is no question but that such [evidence] … would be ‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than death.’ Lockett, supra, at 604” id.,at 4—5 (citation omitted). Such evidence, we said, of “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is … by its nature relevant to the sentencing determination.” Id.,at 7. Of course, the Texas courts might reasonably conclude that evidence of good conduct in jail was within the jury’s effective reach via the future dangerousness special issue. See Franklinv. Lynaugh, 487 U.S. 164, 177—178 (1988) (plurality opinion); id.,at 185—186 (O’Connor, J., concurring in judgment). But under the Fifth Circuit’s test, the evidence would have been screened out before the time came to consider that question.

In Tennard’s case, the Fifth Circuit invoked both the “uniquely severe” and the “nexus” elements of its test to deny him relief under Penry I. Tennardv. Cockrell,284 F.3d, at 596 (contrasting Tennard’s low IQ evidence, which did “not constitute a uniquely severe condition,” with mental retardation, a “severe permanent condition”); id.,at 596—597 (concluding that Penryclaims “must fail because [Tennard] made no showing at trial that the criminal act was attributable” to his condition).*Neither ground provided an adequate reason to fail to reach the heart of Tennard’s Penryclaims.

We have never denied that gravity has a place in the relevance analysis, insofar as evidence of a trivial feature of the defendant’s character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant’s culpability. See Skipper, supra,at 7, n.2 (“We do not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating. For example, we have no quarrel with the statement … that ‘how often [the defendant] will take a shower’ is irrelevant to the sentencing determination” (quoting Statev. Plath, 281 S.C. 1, 15, 313 S.E. 2d 619, 627 (1984)). However, to say that only those features and circumstances that a panel of federal appellate judges deems to be “severe” (let alone “uniquely severe”) could have such a tendency is incorrect. Rather, the question is simply whether the evidence is of such a character that it “might serve ‘as a basis for a sentence less than death,’” Skipper, supra,at 5.

The Fifth Circuit was likewise wrong to have refused to consider the debatability of the Penryquestion on the ground that Tennard had not adduced evidence that his crime was attributable to his low IQ. In Atkinsv. Virginia, 536 U.S. 304, 316 (2002), we explained that impaired intellectual functioning is inherently mitigating: “[T]oday our society views mentally retarded offenders as categorically less culpable than the average criminal.” Nothing in our opinion suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendmentprohibition on executing her is triggered. Equally, we cannot countenance the suggestion that low IQ evidence is not relevant mitigating evidence–and thus that the Penryquestion need not even be asked–unless the defendant also establishes a nexus to the crime.

The State claims that “the Fifth Circuit’s Penry Ijurisprudence is not at issue” in this case. Brief for Respondent 35, n.21; Tr. of Oral Arg. 33. To the contrary, that jurisprudence is directly at issue because the Fifth Circuit denied Tennard relief on the ground that he did not satisfy the requirements imposed by its “constitutional relevance” test. As we have explained, the Fifth Circuit’s screening test has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context. We therefore hold that the Fifth Circuit assessed Tennard’s Penryclaim under an improper legal standard. Cf. Miller-Elv. Cockrell,537 U.S., at 341 (holding, on certiorari review of the denial of a COA, that the Fifth Circuit had applied an incorrect standard by improperly merging the requirements of two statutory sections).

We turn to the analysis the Fifth Circuit should have conducted: Has Tennard “demonstrate[d] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong”? Slackv. McDaniel, 529 U.S., at 484. We conclude that he has.

Reasonable jurists could conclude that the low IQ evidence Tennard presented was relevant mitigating evidence. Evidence of significantly impaired intellectual functioning is obviously evidence that “might serve ‘as a basis for a sentence less than death,’” Skipper, 476 U.S., at 5; see also, e.g., Wigginsv. Smith, 539 U.S. 510, 535 (2003) (observing, with respect to individual with IQ of 79, that “Wiggins[’] … diminished mental capacitie[s] further augment his mitigation case”); Burgerv. Kemp, 483 U.S. 776, 779, 789 n.7 (1987) (noting that petitioner “had an IQ of 82 and functioned at the level of a 12-year-old child,” and later that “[i]n light of petitioner’s youth at the time of the offense, … testimony that his ‘mental and emotional development were at a level several years below his chronological age’ could not have been excluded by the state court” (quoting Eddings, 455 U.S., at 116)).

Reasonable jurists also could conclude that the Texas Court of Criminal Appeals’ application of Penryto the facts of Tennard’s case was unreasonable. The relationship between the special issues and Tennard’s low IQ evidence has the same essential features as the relationship between the special issues and Penry’s mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the individual’s ability to act deliberately. See Penry I, 492 U.S., at 322. A reasonable jurist could conclude that the jury might well have given Tennard’s low IQ evidence aggravating effect in considering his future dangerousness, not only as a matter of probable inference from the evidence but also because the prosecutor told them to do so: “[W]hether he has a low IQ or not is not really the issue. Because the legislature, in asking you to address that question, the reasons why he became a danger are not really relevant. The fact that he is a danger, that the evidence shows he’s a danger, is the criteria to use in answering that question.” App 60. Indeed, the prosecutor’s comments pressed exactly the most problematic interpretation of the special issues, suggesting that Tennard’s low IQ was irrelevant in mitigation, but relevant to the question whether he posed a future danger.

We hold that the Fifth Circuit’s “uniquely severe permanent handicap” and “nexus” tests are incorrect, and we reject them. We hold that reasonable jurists would find debatable or wrong the District Court’s disposition of Tennard’s low-IQ-based Penryclaim, and that Tennard is therefore entitled to a certificate of appealability. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

OTHER NOTABLE CASES

Kentucky v. Morris, 2004 Ky. LEXIS 153 (Ky 6/17/2004) The killing of a viable fetus held, prospectively, to be murder.

FOCUS

Intermittently this summer excerpts from briefs & motions around the country will be appearing here. This week excerpts from the amicus brief filed People of New York v. Shulman (if you want a further copy let me know as it won't be we posted for a few weeks) by the Association of the Bar of the City of New York (on brief included Josh Dratel, Susanna Chung, Prof. Eric Friedman & Prof. Jeff Kirchmeier, amongst others) on the issue of international standards on the death penalty.

III. OTHER STATES, INTERNATIONAL COMMUNITIES AND OTHER SOURCES SHOW THAT NEW YORK'S DEATH PENALTY FAILS THE LEAST RESTRICTIVE MEANS TEST AND VIOLATES DUE PROCESS.

The Government fails to meet the burden of justification imposed by the due process clause of showing that the death penalty is the least restrictive means available to achieve the goals of punishment. As discussed above, the arguments of the Governor and Legislature are at odds with the facts as revealed by objective investigation. The death penalty fails the least restrictive means test, and, in fact, is not even an effective means of achieving the goals of criminal justice. As discussed below, the experience in other states, the experience in other countries, and history show that the death penalty is not the least restrictive means available to achieve any of the goals of the criminal justice system

A Twelve Other States Without the Death Penalty Achieve the Same Governmental Interests as States With the Death Penalty.

In the United States, there are a number of examples of why the death penalty is not an effective means to achieve the goals of the criminal justice system. There are currently twelve states without the death penalty, as well as the District of Columbia. (27) As noted above, the non-death penalty states have lower murder rates than states with the death penalty. Those states manage to punish and incapacitate their criminals without capital punishment. Accordingly, the death penalty is not the least restrictive method for achieving the interests of deterrence, incapacitation and retribution, as the death penalty is clearly unnecessary for that purpose in these other states.

In addition, two states with more recent experience with death penalty application imposed a moratorium on capital punishment, anchoring the trend of an increasing number of states that have recognized the severe flaws of the practice. (28) This trend and the states without the death penalty demonstrate that states can achieve their interest in deterrence, incapacitation and retribution by a less restrictive method than the death penalty.

A The Death Penalty is Not Necessary Because the World Community Has Rejected the Death Penalty.

New York, in enacting a death penalty statute in 1995, swam against an international tide of abolition of the death penalty. See Stephanie Grant, A Dialogue of the Deaf: New International Attitudes and the Death Penalty in America, 17 Crim. Just. Ethics 19 (1998); Kirchmeier, Another Place Beyond Here, supra, 73 Colo. L. Rev. at 67-71, 83-88 (discussing the international trends regarding the death penalty). This evidence is entitled to special weight in the context of New York, which long has been the most diverse state in terms of the national origin of its population, and whose courts have long displayed a cosmopolitan willingness to recognize the importance of accommodating this diversity.

The United States, with Japan, is one of only two advanced industrial nations to retain the death penalty. The death penalty is impermissible, either by law or practice, in more than 100 countries (except for exceptional violations, such as treason); thirty-eight nations have included bans on capital punishment in their constitutions; (29) and at least forty-three nations are signatories to at least one of three international treaties calling for abolition of the death penalty. (30) The United Nation's Commission on Human Rights in April 1998 called for a moratorium on the death penalty. See U.N. Commission on Human Rights, Status of the International Covenants on Human Rights, Question of the Death Penalty (approved Apr. 3, 1998) E/CN.4/1998/L.12. "The long-range trend around the world continues to be toward abolition of the death penalty." Kirchmeier, Another Place Beyond Here, supra, 73 Colo. L. Rev. at 67 (noting that much more than half of the countries in the world have abolished the death penalty in practice). (31)

This international consensus further demonstrates that the death penalty cannot be the least restrictive method for achieving deterrence, incapacitation and retribution, as none of these other nations needs the death penalty to achieve these interests. Indeed, the use of the death penalty in the United States has not reduced the U.S. murder rate below that of non-death penalty countries. (32)

In recent years, as countries have struggled to emerge from periods of internal strife or repression, they have abolished the death penalty at a rapid pace. In June 1999, for example, Boris Yelstin, then Russia's President, commuted the death sentences of 716 inmates held on Russia's death row. (33) Russia joined numerous other former Soviet-bloc countries that have also abandoned capital punishment. South Africa took the step of abolishing its death penalty as a means of overcoming the violence in its own past. See Ursula Bentele, Back to an International Perspective on the Death Penalty as a Cruel Punishment: The Example of South Africa, 73 Tul. L. Rev. 251 (1998). Further, the European Union made abolishing the death penalty a condition of membership and its parliament has passed resolutions condemning capital punishment in the United States. European Lawmakers, Activists Call on United States to Abolish Death Penalty, Associated Press, Oct. 21, 2000; Tom Hundley, Europe Seeks to Convert U.S. on Death Penalty: Executions Erode Role as Moral Leader, Many Activists Say, Chi. Trib., June 26, 2000.

In addition, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions issued a report on the administration of the death penalty in the U.S. See Elizabeth Olsen, U.N. Report Criticizes U.S. for 'Racist' Use of Death Penalty, N.Y. Times, Apr. 7, 1998, at A1. The Report found a "significant degree of unfairness and arbitrariness" in the U.S. administration of the death penalty. Id. By retaining the death penalty, the United States keeps company with several countries that in other instances the United States has condemned for human rights violations. According to Amnesty International, in 1998, America combined with China, Congo, and Iran accounted for 86% of the world's executions. (34) French National Assembly President Raymond Forni has called the United States' death penalty "a stain on the largest democracy in the world." European Lawmakers, Activists Call on United States to Abolish Death Penalty, Associated Press, Oct. 21, 2000.

Thus, other countries have shown that the death penalty provides no benefit over other punishments. This accumulated evidence from around the world stands as another barrier to any argument that New York's death penalty statute is the "least restrictive means" of combating crime.

A The Reasoning of Major Religions and Philosophers Further Supports that the Death Penalty Fails the Least Restrictive Means Test.

The untenable nature of the State's justifications for the death penalty is further demonstrated by the teachings of religious leaders and secular philosophers. Many religious organizations worldwide oppose the use of the death penalty. See generally, The Death Penalty: The Religious Community Calls for Abolition; Statements of Opposition to Capital Punishment (American Friends Service Committee 2000) (a compendium of official statements by major religious organizations in opposition to the death penalty) [Hereinafter "AFSC Rpt."]. (35) Despite inherent doctrinal differences between such figures, their reasoning further supports that the death penalty is not the least restrictive means of advancing the State's asserted interests in deterrence, incapacitation and retribution.

Many religious leaders frame their outlook in terms compatible with the requirements of substantive due process. For example, the late John Cardinal O'Connor of New York explained that under Catholic doctrine, "[i]f bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person." Ronald J. Tabak, et al., Symposium: Are Executions in New York Inevitable?, 22 Fordham Urb. L. J. 557, 568 (1995). This rationale comports with the substantive due process requirement that the State employ only the "least restrictive means" to achieve its compelling governmental purpose.

Similarly, four major Jewish organizations have adopted resolutions to the effect that "[e]xperience in several states and nations has demonstrated that capital punishment is not an effective deterrent to crime." (36) The United Methodist Church took the U.S. Supreme Court to task for restoring the death penalty despite the "lack of evidence that it reduced violent crime." (37) The Episcopal Church rebutted the incapacitation argument, advising, "there are incarceration alternatives for those who are too dangerous to be set free in society." (38) The American Friends Service Committee criticized the concept of retribution as a compelling state interest, stating that "[w]e find it particularly shocking that the Supreme Court would give credence to retribution as a basis for law." (39) The Unitarian Universalist Association adopted a general resolution that denounces capital punishment as "inconsistent with respect for human life; for its retributive, discriminatory, and non-deterrent character." (40)

The sources that illustrate the weaknesses of the State's justification for the death penalty are not limited to exclusively religious organizations. (41) Many writers have raised similar concerns that support the argument that the death penalty deserves strict scrutiny and is not the least restrictive means of achieving the goals of punishment. (42) Capital punishment does more than incapacitate an individual; it imposes psychological torture, which is incompatible with the concept of the least restrictive means. (43)

Thus, this Court should apply strict scrutiny analysis to examine the constitutionality of New York's death penalty and find that the State cannot carry its heavy burden of showing that the death penalty is the least restrictive means of achieving compelling governmental ends. New York's death penalty is inconsistent with the dictates of due process, and therefore this Court should hold that the punishment is unconstitutional.

FROM AROUND THE WEB

Goldstein & Howe's Supreme Court blognotes the following on the Supreme Court hand down's today:

On Summerlin & Beard:

From Steven Wu, Allon Kedem, and Meaghan McLaine:

When will a constitutional rule of criminal procedure be applied retroactively? The Court today delivered two opinions developing the answer it first gave to that question in 1989’s Teague v. Lane: “new” rules don’t get retroactive application unless they fall into one of two exceptions. In both Schriro v. Summerlin and Beard v. Banks the Court took up the contours of the second exception -- for “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding” (think Gideon v. Wainwright).

Summerlin addresses whether the Court’s decision in Ring v. Arizona, which held that juries (not judges) must determine the presence of aggravating factors qualifying a defendant for the death penalty, should be applied retroactively to cases already final on direct review. Writing for the majority in Summerlin, Justice Scalia held that the Ring decision did not announce a watershed rule. Whether juries are more accurate than judges as fact-finders is an open question about which reasonable minds can differ (interestingly, Scalia here notes “the mixed reception that the right to jury trials has been given in other countries”). Justice Scalia also observed that the Court refused in DeStefano v. Woods to make retroactive its decision in Duncan v. Louisiana, which applied to the states the 6th Amendment’s right to a jury trial. “If . . . a trial held entirely without a jury was not impermissibly inaccurate,” he writes, “it is hard to see how a trial in which a judge finds only aggravating factors could be.”

Writing for himself, Justices Stevens, Souter, and Ginsburg, Justice Breyer argued that Ring did indeed merit retroactive application under Teague. First, he argued that “the factfinder’s role in determining the applicability of aggravating factors in a death case is a special role that can involve . . . the making of death-related, community-based value judgments” -- judgments for which a jury is better-equipped than a judge. Second, death-sentence-related fact-finding particularly strongly implicates the considerations of accuracy and “equal justice” that underlie the Teague exception. Third, DeStefano offers insufficient support for the majority’s position because it relied heavily on efficiency concerns much diminished in the present case.

Writing for the Court in Beard v. Banks, Justice Thomas held that Mills v. Maryland, which held unconstitutional capital sentencing schemes that require juries to disregard mitigating factors not found unanimously, announced a new rule that did not fall within either Teague exception. Respondent George Banks had prevailed in the Third Circuit, but the Court disagreed that the Lockett/Eddings line of cases regarding mitigating evidence compelled the Mills decision and further determined that Mills’s was not an exception-qualifying watershed rule.

Justice Thomas first dispensed with Banks’s claim that his conviction was not yet final when Mills was decided, holding that the Pennsylvania Supreme Court’s “relaxed waiver rule,” permitting that court to choose to apply new rules of law in its discretion despite available procedural bars (and under which it heard and rejected Banks’s Mills claim on the merits), does not render nonfinal a conviction and sentence that have run the course of direct review. As to whether then-existing precedent compelled the Mills rule, Justice Thomas noted that while the Lockett rule concededly supported the Mills rule, it concerned what evidence the sentencer could consider, whereas Mills shifted focus to individual jurors and how they should consider mitigating evidence. Reasonable jurists, Justice Thomas concluded, could have disagreed over whether Lockett dictated Mills, as evidenced by the thoughtful reasoning of the four dissenters in Mills and the three dissenters in its cousin McKoy v. North Carolina -- and therefore the rule was new. In determining whether the Mills rule nonetheless fit into Teague’s second exception according retroactive application to watershed rules, Justice Thomas emphasized the narrowness of the exception (illustrated, he observed, by the fact that no new rule has yet been able to fit into it). In contrast to Gideon, the watershed-rule exemplar, Mills averts a kind of arbitrariness characterized by the Court as “remote” -- the risks that a single hold-out juror could force a death sentence even though remaining jurors agree on the existence of mitigating factors; and that a jury would have to impose a death sentence despite finding that mitigating factors outweighed aggravators simply because jurors couldn’t agree which mitigating factors existed.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, disputing the majority’s conclusion that Mills was not a new rule -- rather, Mills simply carried the torch of the longstanding view that capital punishment cannot be “wantonly and freakishly” imposed. Justice Souter, joined by Justice Ginsburg, also wrote a separate dissenting opinion to situate the case in relation to Summerlin and Teague. Justice Souter argued that because the reasonable jurist standard invoked by the majority is an objective one, actual disagreement among jurists about a rule’s novelty is not dispositive. The standard should rather be informed by marking out the prototypical reasonable jurist, a process which here required inquiring to what degree a reasonable jurist would read past precedent as requiring courts to avoid the risk of the kind of erroneous outcome at issue in this case -- the inaccurate expression of community conscience, which concerned Justice Breyer in his Summerlin dissent. Per Justice Souter, evaluating the implications of a rule with regard to accurately expressing community conscience should enter analysis not only at Teague’s second stage, but also at its first stage -- determining whether a rule is new. Thus, “[t]he question presented by this case is ultimately whether the Court should deem reasonable . . . a reading of its pre-Mills precedents that accepts the risk of” the errors that a unanimity requirement for the finding of mitigating factors would produce. Justice Souter believed that the Court should not.

Justice Souter suggested a connection between the dissenters in the two cases, but it is not clear how fully his argument actually jibes with the perspective of Justice Breyer in Summerlin (who, notably, did not join Souter’s Beard dissent). The common thread between the dissents, as Justice Souter pointed out, is the import of the role of the jury, as the medium of community conscience in averting the arbitrariness forbidden by the Constitution. But Justice Souter brought that thread into his decision about the newness of a rule, while Justice Breyer kept the community-conscience talk to his Teague stage two analysis. In any event, any dispute among the dissenters as to how to get a criminal procedural rule applied retroactively is likely so much hand-waving to the Court majority, which today decisively let it be known that Teague’s tough rule continues to be, well, tough.

On Tenard:

The Court’s opinion today is the latest chapter in a case that dates back to 1986, when petitioner Robert Tennard was convicted of capital murder in Texas. During the penalty phase of his trial, Tennard’s parole officer testified regarding Tennard’s low IQ, and his defense counsel argued that the low IQ mitigated his culpability. Presented with two “special issues” used in the Texas capital sentencing scheme at the time – whether the petitioner’s conduct was committed deliberately and whether the petitioner posed a threat of future dangerousness – the jury answered both issues in the affirmative.

In his state post-conviction proceedings, Tennard argued that his sentence had been unconstitutionally imposed in light of the Court’s 1989 holding, in Penryv. Lynaugh, that the same “special issues” did not provide the jury in that case with an adequate opportunity to consider and give effect to mitigating evidence regarding Penry’s mental retardation and childhood abuse. Each of the lower courts to consider Tennard’s claims – both federal and state – rejected them. In particular, in 2002, the Fifth Circuit denied Tennard a certificate of appealability. It held that Tennard had not met the Fifth Circuit’s two-part, post- Penrytest regarding whether his evidence was “constitutionally relevant.” The court explained that Tennard had failed to present evidence of a “uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,” because a low IQ – standing alone – is not a “uniquely severe” condition. In any event, the court emphasized, Tennard had not shown that “the criminal act was attributable to this severe permanent condition.”

Tennard filed a cert. petition, which the Court GVR’d for reconsideration in light of its holding in Atkinsv. Virginiathat the Constitution prohibits the execution of the mentally retarded. The Fifth Circuit reinstated its earlier opinion, explaining that Tennard had “never argued that the Eighth Amendment prohibits his execution.”

Tennard filed a second cert. petition, which the Court granted. Today, by a vote of six to three, with Justice O’Connor writing for the majority, it reversed. The majority soundly rejected the Fifth Circuit’s post- Penry“screening test” to determine whether evidence was “constitutionally relevant,” explaining that the test “has no foundation in the decisions of this Court.” Rather, the Court explained, the test for whether mitigating evidence introduced in the penalty phase of a capital trial is “relevant” is the same as in “any other context” – viz., whether the evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Turning to the COA issue, the Court held that Tennard is entitled to a COA because reasonable jurists could conclude that evidence of his low IQ was relevant and – because of the similarity between Tennard’s case and Penry’s – that the state appellate court’s application of Penry to Tennard’s case was unreasonable.

In his dissent, the Chief Justice disagreed with the majority’s conclusions regarding the COA, positing that a COA was not appropriate because “reasonable jurists would not find the District Court’s assessment of the constitutional claims debatable or wrong.” The Chief Justice explained that the special issues “allowed the jury to give some mitigating effect to Tennard’s evidence of low intelligence,” and distinguished the “low intelligence” at issue in Tennard’s case from the mental retardation at issue in Penry, contending that the differences between the two should preclude the straightforward application of Penryto Tennard’s case. Justices Scalia and Thomas each filed brief dissents expressing their dissatisfaction with the Court’s Penryjurisprudence.

Blakely

In 1989, Justice Antonin Scalia was all alone in dissent when the Supreme Court upheld the constitutionality of the federal Sentencing Guidelines, in U.S. v. Mistretta. Today, he may have moved the Court closer than it has ever been to making them vulnerable to serious new constitutional attack. His opinion for the divided (5-4) Court in Blakely v. Washingtonis certain at least to intensify the debate over the future of that bold experiment by Congress.

There is now a growing list of federal judges who find themselves deeply offended by the limits they feel the Guidelines impose on their discretion to make the punishment fit the specific crime and individual involved, U.S. District Judge William G. Young of Boston this week becoming only the latest (in U.S. v. Green, et al., 02-10054) as he suggested the Guidelines are unconstitutional. But that is not the constitutional complaint that will be buttressed by the new ruling in Blakely.

The problem for the Court majority today, rather, was that guideline schemes may give judges too much discretion to enhance sentences, when they are allowed to make new factual findings that support an upward adjustment of a guideline range. While different in scope, though, the Blakelydecision does add strongly to the impression that the Guidelines may be under siege.

To be sure, Scalia’s opinion – in a case involving a system of state sentencing guidelines -- includes a flat disclaimer. “The Federal Guidelines are not before us, and we express no opinion on them.” (footnote 9). But that did not persuade the dissenters. Justice Sandra Day O’Connor, for example, said that the Washington State scheme at issue “is almost identical” to the part of the federal Guidelines that require judges to ratchet upward the sentence that otherwise would be mandated by the Guidelines. One example she gave: an increase in the severity of punishment for gun crimes, based upon the number of weapons involved.

In the Blakelycase, Ralph Howard Blakely, Jr., pleaded guilty to kidnapping his estranged wife. The facts he admitted supported a sentence of no more than 53 months. But the judge in his case used his authority under state guidelines to impose a sentence of 90 months, after making a factual finding – one never put before a jury – that the kidnapping was committed with “deliberate cruelty.”

The Court ruled that this higher sentence was invalid under the 2000 decision in Apprendi v. New Jersey(it is a violation of the Sixth Amendment right to a jury trial for a judge to increase a criminal sentence beyond the maximum based on facts that were not found, beyond a reasonable doubt, by the jury – unless the fact refers to a prior criminal conviction). Scalia declared: “Whether the judicially determined facts require a sentence enhancement, or merely allow it, the verdict alone does not authorize the sentence.” Since the judge added 37 months to Blakely’s sentence after finding “deliberate cruelty,” that violated Apprendi, the Court concluded.

Writing in laudatory terms about the right to jury trial, Scalia said the substitution of a judge’s finding of an additional fact in order to lengthen a sentence could lead to such outrages as allowing a judge to sentence a man for committing murder even if a jury had convicted him only of illegally possessing a gun to commit the crime. The right to a jury trial, he wrote, is “a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”

Those who wrote the Constitution, Scalia said, “would not have thought it too much to demand that, before depriving a man [like Blakely] of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the unanimous suffrage of twelve of his equals and neighbors, rather than a lone employee of the State.”

It is obvious, from the content of the three dissenting opinions (by O’Connor, Kennedy and Breyer; Rehnquist also dissented without his own opinion), that the internal debate within the Court was most intense over a much broader issue than the Washington sentencing scheme, or even over the impact, if any, on the federal Guidelines. That issue is the future of sentencing reform, in general. “Over 20 years of sentencing reform are all but lost,” O’Connor contended. She added: “All criminal sentences imposed under the federal and state guidelines since Apprendiwas decided in 2000 arguably remain open to collateral attack.” Breyer suggested that the Court was dooming the sentencing schemes across the country to a return to discredited approaches that result in discriminatory sentencing results – such as fixed sentences upon conviction.

It is also apparent that, four years after Apprendi, that historic decision is not a settled part of the Court’s criminal jurisprudence. And one thing further was clear today: Apprendisequels do not always come out in favor of criminals. In a separate ruling today, in Schriro v. Summerlin, the Court ruled – by a different 5-4 combination of Justices – that a decision applying the Apprendi standard to capital sentencing ( Ring v. Arizona) does not apply retroactively to cases in which the convictions were final before Ringwas decided.(June 24, 2002). Scalia also wrote for the majority in Schriro. Had Ringbeen applied to earlier cases, it would have nullified more than 100 death sentences in ten states.

TalkLeft notes on Beard

The Supreme Court refused to retroactively apply its Ring vs. Arizona decision which held that juries, not judges, must decide facts used to determine the death penalty, to more than 100 similar cases pending around the country:

The 5-4 decision spares at least four states from having to decide whether to spend millions of dollars for new sentencing hearings or consent to prison sentences for the convicted killers. It was issued on the two-year anniversary of the Supreme Court's ruling that the constitutional right to a trial by jury means that jurors should weigh factors that determine whether a particular killing merits death or life in prison. Justices said in the follow-up decision that the 2002 ruling does not apply retroactively.

....The ultimate question for the Supreme Court, which does not automatically make its rulings retroactive, was whether this one involved "watershed" rules. It did not, said Justice Antonin Scalia, writing for the court. "The right to jury trial is fundamental to our system of criminal procedure, and states are bound to enforce the Sixth Amendment's guarantees as we interpret them," Scalia wrote.

It does not follow, however, that when a defendant has had a full trial and has lost the appeal of his conviction "he may nonetheless continue to litigate his claims indefinitely on hopes that we will one day have a change of heart," Scalia wrote.

The dissenters: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Ginsburg authored the 2002 Ring decision.

Update: The decision could spell trouble for Mumia. We received this by email from Karl at Capital Defense Weekly:

Just a quick heads up, the decision today by the SCOTUS in Beard v. Banks spells potentially new trouble for Mumia. The question in Beard v. Banks was whether Mills v. Maryland was retroactively applicable. The SCOTUS answered today that it is not.

The federal district granted Mumia relief on the Mills claiming, holding, contrary to the SCOTUS's conclusion today, that it was. Put another way, the SCOTUS effectively reinstated Mumia's death sentence unless the Third Circuit (where the case is now pending) finds a new ground on which to grant relief.

The Death Penalty Information Center(Deathpenaltyinfo.org) notes:

EDITORIALS: Dallas Morning News Says Texas' Statute is "Wrong and Should Not Stand"

A recent Dallas Morning News editorial decried the use of expert witnesses who claim to have the ability to predict future dangerousness, a determination that jurors in Texas heavily rely on in sentencing people to death. The editorial states:

In Texas, we execute criminals not for what they did, but for what they might do.

Convicted murderer David Harris has a date with the executioner June 30 for having killed a man in a Beaumont gunfight. But that's not enough to get Mr. Harris, or any Texas murderer, a death sentence.

Here, a convicted murderer can only draw the death penalty if, according to state law, a jury is unanimously convinced that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

This newspaper has supported the death penalty, but this statute is wrong and should not stand.

How can a jury know what violent crimes anybody might commit? They could consult with the Psychic Friends Network. Or they could do something that the American Psychiatric Association considers about as reliable: ask a psychiatrist to give his expert opinion. According to The New York Times, Dr. Edward Gripon, the psychiatrist and expert witness who helped convince a jury of David Harris' future dangerousness, never met the defendant and based his expert testimony on the prosecution's description of the man's conduct.

Dr. Gripon guessed wrong. The most violent thing Mr. Harris has done since his 1986 conviction was kick a guard's boot. Because of a lazy psychiatrist's bad judgment, a man who ought to be spending life in prison will die.

It's appropriate to consider possible future acts in parole hearings or when determining sentence length. But such speculation should never be the determining factor in whether the state takes a person's life. Pseudo-scientific guesswork has no place in matters of life and death.

(Dallas Morning News, June 16, 2004) (emphasis added). See Editorials.

Soros Justice Fellowships Available

Applications for Soros Justice Advocacy, Senior and Media Fellowships are now being accepted by the Open Society Institute from lawyers, advocates, organizers, scholars, journalists and documentarians seeking to make advancements in criminal justice. The deadline for applicants is September 22, 2004. Proposed work should focus on reducing the nation’s over reliance on policies of punishment and incarceration, encouraging the successful resettlement of people returning from prison, eliminating race and class disparities in the criminal justice system, and restoring judicial discretion. More information about the fellowship is available on the Open Society Institute’s Web site.

UPCOMING EVENTS: World Congress Against the Death Penalty to Convene in Montreal

The 2nd World Congress Against the Death Penalty will take place in Montreal, Canada, October 6-9, 2004. The conference is sponsored by Penal Reform International, the End to Capital Punishment Movement (ECPM USA), and the ECPM Network (Together Against the Death Penalty). During the four-day event, government officials, representatives from death penalty and law-related organizations, and victims' family members from around the world will host a series of workshops, plenary sessions, and exhibits to discuss the future of the death penalty in those nations that continue to use it. (ECPM Announcement, June 2004) To learn more, or to register for the conference, visit the conference Web site.

NEW RESOURCE: The Angolite Highlights Long Road to Clemency for Man with Mental Retardation

The Angolite, a news magazine produced by inmates at Louisiana’s Angola State Penitentiary, highlights the commutation of Herbert Welcome, a man with mental retardation whose death sentence was lifted by Governor Mike Foster in 2003. The article follows Welcome’s decades-long struggle to have his sentence commuted, including a 1988 recommendation for clemency that was never signed. Years later, Welcome’s clemency effort was reignited by his attorneys from the Center for Equal Justice in New Orleans and his spiritual advisor, legendary rock guitarist Larry Howard. It gained ground after the Supreme Court’s 2002 ruling in Atkins v. Virginia making it unconstitutional to execute those with mental retardation. In all, Welcome spent 21 years on death row before the Louisiana Pardons Board unanimously voted to recommend clemency during a hearing ordered by Governor Foster. The Angolite article includes an overview of the clemency hearing statements delivered by experts such as Robert Perske, as well as a case overview by Welome’s attorney, Nick Trenticosta. (The Angolite, May/June 2003) See Mental Retardation. See also, Resources.

New Resource: Study Encourages Police to Record Interviews

A recent study conducted by former U.S. Attorney Thomas Sullivan and released by the Center on Wrongful Convictions at Northwestern University School of Law concluded that electronic recording of interrogations of criminal suspects is a cost-effective method that results in more convictions and speedier justice. The researchers contacted 238 law enforcement agencies in 38 states that record interrogations in felony crimes and found that “virtually every officer with whom we spoke, having given custodial recordings a try, was enthusiastically in favor of the practice.” The report is a follow-up to recommendations made by the Illinois Commission on Capital Punishment, which recommended the recording of interrogations. The study notes that videotaping interrogations has practically eliminated disputes regarding whether a confession was voluntary or coerced. In recent years, jurisdictions throughout the U.S., including Maine, Washington, D.C., and Illinois, have implemented the practice, despite some resistance from law enforcement groups. “This is a matter of national concern … which should be dealt with promptly and comprehensively. Recordings benefit suspects, law enforcement, prosecutors, juries, trial and reviewing court judges, and the search for truth in our justice system,” said Sullivan. “So many wrongful convictions wouldn’t have happened. And this will convict people more than it will let people off.” (Chicago Tribune, June 13, 2004) Read the full Report. See Resources.

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