Leading off this edition is the Supreme Court’s landmark decision inKennedy v. Louisiana. The narrowest reading of the holding is that the capital punishment may not be used for the crime of child rape that does nor result in the death of the victim. Justice Kennedy wrote the opinion broadly, however, holding the Eighth Amendment precludes the use of the penalty of death for a crime against an individualthat does not result in death of the victim. Asothershavewrittenextensivelyaboutthesubject, I’llrefrainfromundulyrepeatingtheirsentiments, save one.Prof. Kaminsums up the most important question of the Kennedy decision thusly, where next.

In recent years the Supreme Court has prohibited the execution of the mentally retarded and those who were under 18 when they committed their crimes. Add to that list today those who commit crimes that do not "take the life of the victim" and it is clear that the Supreme Court is attempting to limit, though certainly not eliminate, the use of the death penalty in the U.S. The Court appears to be taking seriously the mandate it has set out at least sinceFurman v. Georgiawas decided in 1972 that states limit the imposition of the death penalty to the worst of the worst of criminal offenders.

The Court also decidedGiles v. California, a murder case out of California The California courts permitted statements of the victim at trial about certain actions alleged to have been commmitted by Giles. Those lower courts held Giles forfeited the right to confront witnesses against him as the trial judge determined "a wrongful act by the defendant made the witness unavailable to testify at trial.” The murder victim at trial was obviously unavailable to testify at trial and the People were permitted to bring in hearsay statements by the victim implicating the Defendant of prior acts of domestic violence. Here the Court rules that forfeiture by wrongdoing is not available as an exception to the right to Confront one’s accuser’s unless the murder was committed to prevent the victim from testifying.

The other Supreme Court decision of note isDistrict of Columbia v. Hellerin which the Court split 5-4 on whether the DC handgun ban violates the Second Amendment. The Court also made clear that this right is not unlimited and that its holding should not cast doubt on reasonable restrictions prohibiting felons or the mentally ill from possessing firearms. Regulations prohibiting weapons in government buildings and other sensitive places also remain untouched. AsCalvin Massey notes"[i]n footnote 27, the majority rejects rational basis scrutiny as the level of scrutiny that should be used to assess Second Amendment claims, but does not articulate the measure of heightened scrutiny that does apply. That question is the big issue for the future" [Further analysis viaWomble & Carlyle]

The SCOTUS has again granted cert inCone v. Bellon the issue of "[w]hether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim." [Opinion below(6th Circuit) /Petition for certiorari/Brief in opposition /Petitioner’s reply/Brief amicus curiae of Veterans for America(in support of the petition) /Brief amicus curiae of Former Prosecutors(in support of the petition)]. In another case from the Sixth Circuit, the Court granted cert inHarbison v. Bellon "[w]hether the Terrorist Death Penalty Enhancement Act of 2005 provides prisoners sentenced under state law the right to federally appointed and funded counsel to pursue clemency under state law, and whether a district court’s denial of such a request may be appealed without a certificate of appealability." [Opinion below(6th Circuit) /Petition for certiorari/Brief in opposition/Petitioner’s reply/Brief amicus curiae of United States(recommending grant of certiorari)].

Rounding up the lower courts, the Texas Court of Criminal Appeals ordered DNA testing inDarlie Lynn Routier v. State. The Idaho Supreme Court grants a new sentencing in light of "thinly veiled" sentencing recommendations and "emotionally laden and detailed presentation[s]" of victim impact evidence in the aptly namedState v. Payne. The Pennsylvania Supreme Court inComm. v. Kenneth J. Williamsholds, on a "layered" ineffective assistance of counsel claim, that "the absence of a sufficient investigation [ ] without strategic or tactical justification" penalty phase. Likewise the same court inComm. v. James Dennisremands to permit the trial court court to "(1) consider Appellant's claim that trial counsel was ineffective for failing to investigate . . . and (2) review Appellant's claims that the Commonwealth suppressed, in violation of Brady, material exculpatory evidence in the form of the police activity sheet . . .." In Kentucky, the Supreme Court has issued writs of mandamus inJohn Mills v. Messer&John Mills v. Messeron issues relating to post conviction funding for witnesses & experts, respectively. The Arkansas Supreme Court inRaymond Sanders v. Arkansasreinvested "jurisdiction in the trial court" concerning evidence of an undisclosed deal between the State and a cooperating witness at petitioner's trial. Finally, the Texas Court of Criminal Appeals inEx parte Arthur Lee Burtonremands for consideration of whether a "classification" officer's interview of Mr. Burton under the circumstances of this case triggeredMiranda.

The Texas Court of Criminal Appeals has announced new rules of criminal procedure governing stays of execution. Specifically, “[a] motion for stay of execution, or any other motion relating to a death sentence, shall be deemed untimely if it is filed less than forty-eight hours before 6:00 p.m. on the scheduled execution date.” “Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion.”The Chroniclehas more.

In the news,theCaliforniaCommission on the Fair Administration of Justiceissued itslong awaited reporton the state of California's death penalty, notably the death penalty is "dysfunctional" and "close to collapse." More evidence that LWOP dramatically curtails new death sentences. and even new prosecutions, comes from Ohio inthis AP story& thisCleveland Plain Dealer chart. Aninteresting storyout of Delaware on that state’s lethal injection litigation -- allegations that Delaware’s last execution was, in fact, botched. Lawyers for the United States and Mexico are back in the International Court of Justice overMexico's unusual request for an orderto delay the imminent executions of five Mexican nationals on Texas' death row because the United States remains in default of its treaty obligations

Looking ahead to the next edition four favorable decisions are noted. The Texas Court Criminal Appeals granted a new trial inEx parte Michael Blairas DNA strongly suggests Blair did not commit the murder for which he now sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released. The Fifth Circuit, en banc, in Eric Lynn Moore v Quarterman, addresses whether Moore “was entitled to ade novoRobert Gray, Jr. v. Branker, grants relief holding that “counsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue. As one could predict with an opinion that begins “[o]nce again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel” the Ninth Circuit inDuncan v. Ornoskigrants relief.

Finally, my apologies for this week's late delivery, the number of opinions was well above the normal range of opinions the last few weeks.

Pending Executions

July

1 Mark Schwab - Fl.*

10 Carlton Turner - Tex.*

10 Kent Jackson - Va*

14 Eric Hanson - Ill (s)

14 Tamir Hamilton - Nev (s)

15 Dale Leo Bishop - Miss*

22 Lester Bower - Tex.*

22 Kevin Young; - Okla*

23 Derrick Sonnier - Tex.*

24 Christopher Emmett Va*

28 Gregory Decay - Ark.(s)

30 John Middleton - Mo.*

31 Larry Davis - Tex.*

31 Tommy Arthur - Ala*

August

5 Jose Medellin - Tex.*

7 Heliberto Chi - Tex.*

12 Leon Dorsey - Tex.*

14 Michael Rodriguez Tx* (v)

20 Denard Manns - Tex.*

21 Jeff Wood -Tex.*

September

9 Gregory Wright -Tex.*

9 Frankie Williams, Jr., - Ark*

10 Charles Hood - Tex.*

17 William Murray -Tex.*

18 Joseph Ries -Tex.*

25 Jessie Cummings - Okla*

Recent Executions

June

17 Terry Lyn Short - Okla

20 James Earl Reed - S.C.

25 Robert Yarbrough - Va

Notable Stays

July

24 Edward Bell - Va

Recent Commutations

June

10 Percy Walton - Va

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

SCOTUS

• Kennedy v. Louisiana, No. 07-343 (6/25/2008) The Eighth Amendment precludes the use of the penalty of death for a crime against an individual that does not result in death of the victim.
• Giles v. California, No. 07-6053 (6/25/2008) The forfeiture by wrongdoing exceptions to the Confrontation Clause only apply when the defendant commits an intentional criminal act to secure the unavailability of a victim.
• Dist. of Columbia v. Heller, No. 07-290 (6/26/2008) The Second Amendment is an individual right. Analysis of whether or not a given statute violates that right is subject to heightened scrutiny (although the Court does not decide whether that is intermediate or strict scrutiny). The District of Columbia's prohibition on the possession of usable handguns in the home violates that right.
• Rothgery v. Gillespie County, No. 07-440 (6/23/2008) The right to counsel under the Sixth Amendment attaches once a defendant is brought before a judicial officer, where he learns the charge against him and his liberty is subject to restriction. Such a hearing, even where the prosecution is not present, marks the start of the adversarial judicial proceedings
• Greenlaw v. US, No. 07-330 (6/23/2008) Absent a Government appeal or cross-appeal, an appellate court can not increase the sentence of a defendant.

Week of June 16, 2008 – In Favor of the Defendant or the Condemned

• Darlie Lynn Routier v. State, No. AP-75,617 (Tex. Crim. App. 6/18/2008) DNA testing granted as the evidence was not so overwhelming that favorable DNA testing would not have resulted in a different verdict.
• Raymond Sanders v. Arkansas, 2008 Ark. LEXIS 416 (Ark. 6/19/2008) "Petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Petition granted in part and denied in part." Evidence of an undisclosed deal with a cooperating witness at "petitioner's trial was significant and the defense could have impeached that testimony had it known of a deal, we find good cause to grant leave for petitioner to proceed in circuit court with a petition for writ of error coram nobis on the claim that he was denied due process by the prosecution's failure to reveal a deal between Watkins and the prosecution."
• State v. Darrell Edward Payne, 2008 Ida. LEXIS 121 (Ida 6/18/2008) "Payne appeals the issue of whether the admission of "inflammatory" and inadmissible victim impact statements violated his constitutional rights. He argues that the "thinly veiled" sentencing recommendations and numerous characterizations and opinions offered about Payne and the crime both during the testimony and in the letters attached to the PSI were all inadmissible under Booth v. Maryland. He also contends that the "emotionally laden and detailed presentation[s]" during the victim impact statements violated his rights under Payne v. Tennessee.. . . Considering the nature and high volume of the victim impact statements, even in light of the presumption, the statements by the district court show there is reasonable doubt as to whether the inadmissible evidence contributed to Payne's sentence. None of the characterizations of Payne and his crime were presented during the guilt phase, and none were admissible at sentencing."
• John Mills v. Messer, 2008 Ky. LEXIS 155 (Ky 6/19/2008) Petition for a writ of mandamus is granted. "This matter is remanded to the Knox Circuit Court for determination as to whether Petitioner's proposed out-of-state witnesses are necessary for a full-presentation of his case'
• John Mills v. Messer, 2008 Ky. LEXIS 157 (Ky 6/19/2008) "Petitioner, John Mills, seeks a writ of mandamus ordering the Knox Circuit Court to conduct an evidentiary hearing to determine whether he is entitled to state funds for expert assistance on his RCr 11.42 motion. In light of our recent decision in Soto v. Conrad, the petition is granted."
• Comm. v. James Dennis, 2008 Pa. LEXIS 947 (Pa 6/20/2008) Remand ordered to permit the trial court to "(1) consider Appellant's claim that trial counsel was ineffective for failing to investigate Anissa Bane and that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in this regard; and (2) review Appellant's claims that the Commonwealth suppressed, in violation of Brady, material exculpatory evidence in the form of the police activity sheet, or the contents thereof, in which Mannasett Pugh and Diane Pugh allegedly provided information that could impeach the testimony of Zahra Howard, one of the Commonwealth's three eyewitnesses at trial."
• Comm. v. Kenneth J. Williams, 2008 Pa. LEXIS 919 (Pa 6/17/2008) Relief granted on "layered" ineffective assistance of counsel (that is direct appellate counsel should have raised trial counsel's ineffectiveness). Specifically, as to trial counsel, "[t]he PCRA court's essential finding, however -- that the omission from consideration by the sentencing jurors of the diagnosis of Axis I major mental-health disorders and recent psychiatric hospitalizations occurred in this case in the absence of a sufficient investigation and without strategic or tactical justification -- is supported by the evidence. n8 Further, the PCRA court reasonably concluded that there is a sufficient probability that, had the jurors been apprised of the evidence, at least one would have found the mitigating circumstance under Section 9711(e)(2) and determined that its weight was equal to or greater than the single aggravating circumstance."
• Ex parte Arthur Lee Burton, 2008 Tex. Crim. App. Unpub. LEXIS 447 (Tex. Crim. App. 6/18/2008) (unpublished) Remand ordered for consideration of whether a "classification" officer's interview of Mr. Burton under the circumstances of this case triggeredMiranda.

Week of June 16, 2008 – In Favor of the State or Government

• People v. Lanell Craig Harris,2008 Cal. LEXIS 7331 (Cal 6/19/2008) Relief is denied, most notably, on certain “omissions from the appellate record, the faulty instruction on the felony murder special circumstance, and the failure to properly reinstruct the jury at the penalty phase”
• Rodney James Alcala v. Sup. Ct. of Orange Cty, 2008 Cal. LEXIS 6850 (Cal 6/18/2008) Alcala faces five capital murders, one in Orange County & four in Los Angeles County. The People seeks to try him in Orange County on all five murders, rather than in Los Angeles County where the bulk of the murders occurred. Writ of Prohibition denied as the evidence underlying the five murder charges supported a conclusion, by a preponderance of the evidence, that petitioner was the perpetrator in each, and the factual similarities among the charges tended to support a finding of intent to kill and premeditation.
• Jose Antonio Jimenez v. State, No. SC05-2373 (FL 6/19/20008) Relief denied on claims including Brady, disqualification of the trial court, trial counsel was ineffective due to the failure to adequately investigate, and factual innocence related claims raised in a successive petition.
• Perry Alexander Taylor v. State, No. SC06-615 (FL 6/19/20008) Relief denied on newly discovered evidence, ineffective assistance of counsel, and his Brady and Giglio claims.
• State v. James Were, 2008 Ohio LEXIS 1615 (Ohio 6/17/2008) Ohio Supreme Court unanimously overrules all 33 allegations of error. Claims denied include, most notably,: (1) claim that Were is mentally retarded; (2) whether retardation should be tried to a jury and not a judge; and (3) mere presence was not sufficient to support conviction.
• Comm v. Jose Pagan, 2008 Pa. LEXIS 918 (Pa 6/17/2008) Relief denied on numerous claims including: (A) sufficiency; (B) trial court erred in ordering him to turn over an answering machine tape to the Commonwealth; (C) the trial judge erred in limiting the defense cross-examination of Detective William Danks; (D) "trial counsel was ineffective in failing to request that the trial court instruct the jury that the Commonwealth was required to prove that appellant acted with a specific intent to kill in order to convict him of first-degree murder;" (E) submission of torture aggravator to jury; (F) "should have been permitted to argue that, if the jury's guilty verdict was premised on anything other than his actions as a principal, he was entitled to argue his comparative culpability under the catchall mitigating circumstance;" (G) "Commonwealth's alleged failure to disclose to defense counsel that an internal investigation of Officer Julio Aponte was initiated prior to appellant's November 1992 trial violated Brady v. Maryland;" (H) after-discovered evidence; and (I) statutory review.
• Comm. Junious Diggs, 2008 Pa. LEXIS 917 (Pa 6/17/2008) Relief denied on claims relating to: (A) the sufficiency and weight of the evidence; (B)prosecutorial misconduct in closing as "the Commonwealth, in its closing argument to the jury, stated that the victim's daughter, Kaneesha Cooper, told anyone who would listen to her for the past two years (the time between the incident and the trial) that Appellant killed her mother;" (C) "trial court erred during the jury charge when it defined malice, and when it remarked that it might have to re-instruct the jury on the elements of first-degree murder;" (D) failure to provide a second attorney for mitigation; (E) penalty phase jury instructions; (F) use of nonstatutory aggravating factors; and (G) statutory review.
• State v. Steve Alan Boggs, 2008 Ariz. LEXIS 103 (Az 6/16/2008) Amended opinion still denying relief.
• Ex parte Ronald J. Prible, Jr., 2008 Tex. Crim. App. Unpub. LEXIS 449 (Tex. Crim. App. 6/18/2008) (unpublished) Denial of habeas corpus application without discussion.
• Ex parte Arthur Brown, Jr., 2008 Tex. Crim. App. Unpub. LEXIS 458 (Tex. Crim. App. 6/18/2008) (unpublished) Denial of habeas corpus application without discussion.

(Initial List)Week of June 23, 2008 – In Favor of the Defendant or the Condemned

• Eric Lynn Moore v Quarterman, No. 05-70038 (5th Cir 6/26/2008)(en banc) Matter returned to three judge panel on issue of Atkins bar to executing the mentally retarded.
• Robert Gray, Jr. v. Branker, No. 06-29 (4th Cir 6/25/2008) “[C]ounsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue.
• Looking ahead to the next edition four favorable decisions are noted. The Texas Court Criminal Appeals granted a new trial inEx parte Michael Blairas DNA strongly suggests Blair did not commit the murder for which he know sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released. The Fifth Circuit, en banc, in Eric Lynn Moore v Quarterman,address whether Moore “was entitled to ade novofederal court decision whether his alleged mental retardation constitutionally exempts him from execution;” good language on availability of state remedies, exhaustion & overcoming procedural default. The Fourth Circuit inRobert Gray, Jr. v. Branker, grants relief holding that “counsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue. As one could predict with an opinion that begins “[o]nce again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel” the Ninth Circuit inDuncan v. Ornoskigrants relief.

Finally, my apologies for this week's late delivery, the number of opinions was well above the normal range of opinions the las

(Initial List) Week of June 23, 2008 – In Favor of the State or Government

• United States v. Donald Fell, No 06-2882 (2nd Cir 6/27/2008) "In this appeal, Fell challenges his sentence on a number of grounds falling roughly into four categories: errors in jury selection, errors in the admission of certain evidence, prejudicial comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty." Notably, use of Mr. Fell's satanic beliefs held to be harmless error. This case is very likely to go en banc as it is the first affirmed death sentence in over forty years.
• Brown v. Lambert, No. 04-35998 (9th Cir 6/27/2008) "In a death penalty case on remand from the Supreme Court, denial of habeas relief is affirmed where: 1) the district court properly ruled that the Washington death penalty statute is facially valid; 2) the jury selection for petitioner's trial was constitutional; 3) petitioner's counsel weren't objectively deficient, as they made reasonable strategic decisions by not calling a psychiatrist, not calling a licensed professional counselor and not cross-examining a psychiatrist; and 4) there was no abuse of discretion in excluding death penalty trial reports." [via Find Law]
• Brown v. Bradshaw, No. 06-3482 (9th Cir 6/27/2008) In a prosecution for aggravated murder, denial of defendant's motion for a writ of habeas corpus is affirmed over claims of error regarding alleged violations of federal law when the trial court gave a Howard instruction during the penalty phase and conducted a post-verdict polling that allegedly coerced the jurors to agree to recommend the death sentence." [via Find Law]
• People v. Terrance Charles Page, 2008 Cal. LEXIS 7698 (Cal 6/26/2008) On automatic appeal from a death sentence for first degree murder and for the commission of a lewd act upon a child under the age of 14 years, judgment is affirmed over claims of error regarding: 1) exclusion of asserted exculpatory evidence; 2) admission of certain pornographic magazines; 3) admission of "off-color" remarks concerning defendant; 4) instruction on consciousness of guilt (CALJIC No. 2.03); 5) cumulative error and prejudice; 5) claims related to the penalty phase; 6) asserted juror misconduct; and 7) general challenges to California's death penalty scheme.
• Ronnie Joe Neal v. State, 2008 Tex. Crim. App. LEXIS 754 (Tex. Crim. App. 6/18/2008)Evidence was sufficient to support defendant's capital murder conviction under Tex. Penal Code Ann. § 19.03(a)(2) because it included defendant's own admissions and that of his accomplice that defendant raped and murdered the victim and fingerprint and DNA evidence implicating defendant.
• Ex parte Joseph Roland Lave, Jr., 2008 Tex. Crim. App. LEXIS 758 (Tex. Crim. App. 6/25/2008) On remand from the Supreme Court, "we adhere to our retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to cases on collateral review in Texas state courts. We again dismiss this subsequent application for writ of habeas corpus. . .."
• Tyrone Chalmers v. State, 2008 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. 6/25/2008) The Tennessee Court of Criminal appeals denies relief on ineffective assistance of counsel claims relating to trial counsel "by breaching acceptable standards for capital representation in that: 1. Counsel was not qualified to handle a capital case; 2. Counsel failed to develop a theory of defense; 3. Counsel failed to expose biases prejudicial to the petitioner during voir dire; 4. Counsel failed to adequately pursue the suppression motion; 5. Counsel failed to use available resources; 6. Counsel delivered inadequate opening and closing arguments; and 7. Counsel failed to adequately cross-examine the State’s witnesses." In the penalty phase "1. Counsel failed to request certain jury instructions; 2. Counsel failed to object to testimony regarding the Hunter offense; 3. Counsel failed to object to State’s closing argument regarding the Hunter offense; and 4. Counsel failed to properly investigate and prepare mitigation evidence."
• State v. Clarence Roberts, 2008 Ohio 3115; 2008 Ohio App. LEXIS 2630 (Ohio 5th App Div 6/24/2008) Relief denied relating to failure "to assure appellant a full & complete disclosure of records and documents of this criminal case" and failure to order production of certain prosecutorial records.