The Supreme Court Term closings, several wins and several notable losses are noted this edition. Rather than providing my own examinations of the Court's action, find in the excerpts & commentary section the analysis of several of the web's best commentators at the end of this edition.

The Court's one capital case this edition isKansas v. Marsh. AsProfessor Dan Fillernotesthis is "a case involving the constitutionality of Kansas's death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other - that is, it's an evidentiary tie.. . . But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them."

InClark v. Arizonathe Court holds that the wide latitude afforded states in dertermining rules to govern criminal procedures not violated by Arizona's insanity statute which focuses solely on moral incapacity. The Supreme Court also upheld Arizona's Mott Rule, which bars mental-disease and capacity evidence short of insanity from offsetting evidence of criminal intent. TheSCOTUSbloghas a detailed analysis by Akin Gump summer associate Jered Matthysse, a portion of which is below.

In the term's most important habeas case,Hamdan v. Rumsfeld, the Court holds the President's war crime tribunals violate both domestic and international law. TheGeorgetown University Law Center Faculty Blog,amongst others, offers a solid review of the Court's holding (a) that the President's war making authority is subject to the constraints of statute, separation of powers and international treaty obligations, (b) that, unless clearly indicated to the contrary, and not present here, the international laws of armed conflict is binding on the United States, and (c) Common Article 3 of Geneva, as a matter of international treaty obligation, applies to the conflict with Al Qaeda.

InSanchez-Llamas v. Oregonthe Court appears to adopt a rule that the right to consular assistance does not require a per se reversal when the convention's consultation requirements denied. The Supremacy Clause requires, however, lower courts to give effect to treaty law. Since, the Vienna Convention does not include an enforceability provision by individuals, and the history of the American exclusionary rule would seem inapposite to application of that rule to the facts here, there will be no application of the exclusionary rule to violations of the right to consul, at least for now.

In a rare move in recent years the Court adopts, inUnited States v. Gonzalez-Lopez, a per-se reversal rule. Justice Scalia, writing for the majority, again proves it is only possible to predict what he will do only after he has done it. The Court holds that the right to choose an attorney is of such a value of constitutional magnitude that the facts of a given case are irrelevant. Here the trial Court improperly held that counsel was not qualified to represent the accused at trial.

In a rare move in recent years the Court adopts, inUnited States v. Gonzalez-Lopez, a per-se reversal rule. Justice Scalia, writing for the majority, again proves it is only possible to predict what he will do only after he has done it. The Court holds that the right to choose an attorney is of such a value of constitutional magnitude that the facts of a given case are irrelevant. Here the trial Court improperly held that counsel was not qualified to represent the accused at trial.

The remaining two opinions were unsurprising. The Court inWashington v. Recuencoholds that "Blakely-error" is subject to harmless error analysis. InBeard v. Banksthe Court holds in at least some instances prisons may curtail access to newspapers and magazines to some inmates.

In the lower courts several notable actions were also had, most notably three cases are noted from Pennsylvania. The most important of the three is a pair from the Pennsylvania Supreme Court,Comm. v. Willie Sneed&Comm. v. Thomas Gorby, which granted relief relating to trial counsel's penalty phase performance. In the other matter, the Third Circuit dismisses the Commonwealth's appeal for the want of jurisdiction inIn re Horn.

Numerousnew articlesare noted and are enclosed at the end of this edition, including, examinations ofCatholicsand the death penalty,lethal injection, and theColoradodeath penalty.

On the lethal injection front there is much news. Although word quickly spread this week that Ohio has a new lethal injection protocol, however, what it adopted,here(2-page pdf) andhere(3-page pdf), is only the way in which the intravenous drugs are inserted, the drugs haven't changed. Two lethal injection wins are noted inMissouri(order here) andArkansas(order here). Anadministrative law challengeto lethal injection in Maryland briefly won a victory, when an administrative law judge there held that the lethal injection protocol should have been adopted in accordance with the state's administrative procedures act; the finding was quickly vacated by the head of the state's Department of Corrections.

Several developments are noted on the innocence front in addition to the concurring and dissenting opinions inKansas v. Marsh. TheChicago Tribunethis week also carried an incredible series on Carlos DeLuna who, like several others before him in recent years (Todd Willingham,Ruben Cantu, andLarry Griffin), was executed to only later have post-mortem evidence of probable innocence emerge. In Kentucky a plausible claim of factual innocence,Brian Keith Moore, was granted DNA testing.

TheDeath Penalty Information Centerheld its 10th Annual Thurgood Marshall Journalism Awards at the National Press Club on Monday, June 26. This year’s award recipients were Jacqui Lofaro and Victor Teich of Justice Productions for their documentary “The Empty Chair,”Robert Nelson of the Phoenix New Times for his coverage of death row exoneree Ray Krone. Michael Meltsner presented the keynote remarks.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/062606.htm

Recent Executions

June

27 Angel Resendiz (Texas)

28 Sedley Alley (Tennessee)

July

5 Don Davis (Arkansas)

11 Derrick O'Brien (Texas)

12 Rocky Barton (Ohio--vol)

14 William Downs (South Carolina--vol)

14 Bobby Wilcher (Mississippi--vol)

19 Mauriceo Brown (Texas)

20 Robert Anderson (Texas)

20 Brandon Hedrick (Virginia)

25 Allen Bridgers (Texas)

27 Michael Lenz (Virginia)

More Execution information

SCOTUS

Kansas v. Marsh, No. 04-1170 (6/26/2006) Kansas's "death by default" capital sentencing statute not unconstitutional.

Clark v. Arizona, No. 05-5966 (6/29/2006) The wide latitude afforded states in dertermining rules to govern criminal procedures not violated by Arizona's insanity statute which focuses on moral incapacity. The Supreme Court goes on to uphold Arizona's Mott Rule, which bars mental-disease and capacity evidence to be offered by the defense to attack the mens rea requirement of an offense.

Hamdan v. Rumsfeld, No. 05-184 (6/29/2006) The President's war crime tribunals violate both domestic and international law.

Sanchez-Llamas v. Oregon, No. 04-10566 (6/28/2006) Violation of the right to consular assistance does not require a per se reversal rule.

Washington v. Recuenco, No. 05-83 (6/26/2006) Harmless error analysis applicable to error in sentence enhancement.

United States v. Gonzalez-Lopez, No. 05-352 (6/26/2006) Remedy for denial of access to counsel of choice in a criminal case not subject to harmless error analysis.

Beard v. Banks, No. 04-1739 (6/28/2006) Right of prison inmates to have access to newspapers, magazines and photographs does not outweigh the legitimate penological interest of state corrections officials in curtailing access to such materials.

In Favor of Life or Liberty

In re Horn, 2006 U.S. App. LEXIS 15849 (3rd Cir 6/23/2006) "[W]e agree with Hardcastle that we lack appellate jurisdiction to review the challenged discovery order and will grant his motion to dismiss the Commonwealth's appeal. We also agree with Hardcastle that the Commonwealth's mandamus petition is moot and will deny it as such."

Ryan Dickson v. Quarterman, 2006 U.S. App. LEXIS 15741 (5th Cir 6/22/2006) COA granted, over dissent, on whether failure to disclose the pre-trial statements of two prosecution witnesses violated his right to due process.

Cal Brown v. Lambert, 2006 U.S. App. LEXIS 14933 (9th Cir 6/19/2006) In an amended opinion, relief still remains granted as to the improper exclusion of three jurors under Witherspoon and its progeny. Dissent noted from rehearing this matter en banc.

Comm. v. Willie Sneed, 2006 Pa. LEXIS 998 (PA 6/19/2006) "[C]ounsel failed to make an effort to personalize appellee for the jury. Had counsel made such an effort, he may well have made one or more of the jurors more likely to accept one of the other mitigating circumstances that was presented."

Comm. v. Thomas Gorby, 2006 Pa. LEXIS 1012 (PA 6/20/2006) Relief granted on layered claim of ineffective assistance of counsel deriving from trial counsel's investigation and presentation of sentencing mitigation.

Favoring Death

Lamont Reese v. Livingston, 2006 U.S. App. LEXIS 15166 (5th Cir 6/20/2006) "Proceeding under 42 U.S.C. § 1983, Lamont Reese seeks a stay of his execution scheduled for June 20, 2006. He attacks the method of execution by injection as administered in Texas as cruel and unusual punishment under the Eighth Amendment. The suit does not challenge the conviction or sentence of death." Relief denied.

Frank Welch v. Sirmons, 2006 U.S. App. LEXIS 15158 (10th Cir 6/20/2006) Relief denied on numerous claims, including: (A) admission of evidence relating to an unrelated ; (B) testimony of two police officers during first stage proceedings that contained opinion testimony by non-experts; (C) refusal of trial court judge to recuse (a witness was his son); (D) admission of victim impact evidence during second stage proceedings; as well as, (E) IAC [1) failing to prohibit the introduction of Welch's prior convictions, 2) failing to impeach the rebuttal testimony of Katherine Roberts, 3) failing to list adaptability to prison life as a mitigating circumstance, 4) failing to request recusal of the trial judge (due to the trial judge's relationship to Detective Lucas), 5) failing to advise Welch regarding the decision to testify in his own defense, and 6) failing to investigate and present available mitigating evidence.]

United States v. Kenneth Wilk,2006 U.S. App. LEXIS 15089 (11th Cir 6/20/2006) "Death Notice filed six months before the trial is reasonable notice under 18 U.S.C. § 3593(a)."

Thomas Arthur v. Allen, 2006 U.S. App. LEXIS 15162 (11th Cir 6/21/2006) Relief denied on claims including: (1) "Whether Arthur was entitled to consideration of the merits of his habeas petition claiming actual innocence;" (2) "Whether Arthur was entitled to discovery and a hearing to further develop his actual innocence claim;" (3) Whether statutory tolling should be applied to the statute of limitations governing Arthur's claims and whether he is entitled to discovery on this issue;" and "(4) Whether equitable tolling should be applied to the statute of limitations governing Arthur's claims and whether he is entitled to discovery on this issue."

Guerry Hertz v. State, 2006 Fla. LEXIS 1342 (FL 6/22/2006) Relief denied on claims of "an ineffectiveness claim relating to penalty phase mental health mitigation."

Jason Looney v. State, 2006 Fla. LEXIS 1339 (FL 6/22/2006) Relief denied on penalty phase ineffectiveness claims including failure to investigate and present additional mitigation evidence, including nonstatutory mitigators, failure to use a mental health specialist and failure to adequately present what mitigation evidence was set forth at trial.

State v. James Conway, 2006 Ohio 2815 (Ohio 6/21/2006) (A) adverse publicity surrounding both his trial in this matter and a prior murder conviction and death sentence required that venue be moved; (B) sufficiency; (C) hearsay; (D) other acts evidence; (E) "trial court gave a faulty reasonable-doubt instruction in the penalty phase by repeating the instruction from the guilt phase;" and (F) claims of ineffective assistance of counsel in both phases of the trial.

James Malicoat v. State, 2006 Okla. Crim. App. LEXIS 25 (Okla Crim App 6/19/2006) "[W]e have found that Oklahoma's execution protocol is not cruel and unusual. We recognize that this issue is being litigated separately in the federal court system. However, Malicoat is not entitled to a stay of execution while that litigation is pending."

Sedley Alley v. State, 2006 Tenn. Crim. App. LEXIS 470 (Tenn Crim App 6/20/2006) Post-Conviction DNA Analysis Act appeal denied.

Selected Excerptsfrom, & Commentary on, this Edition's Cases

Kansas v. Marsh, No. 04-1170 (6/26/2006) Kansas's death by default capital sentencing statute not unconstitutional. FromConcurring Opinions:

Today's Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas's death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other - that is, it's an evidentiary tie. (There's a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America's death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and "the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent." Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded "in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure."

Responding to this, and in the pragmatic voice of McCleskey v. Kemp(where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that "because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system." Put another way: innocent people may be executed, but probably not that many, and there's not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter's three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter's opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America's death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently - and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter's opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn't a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don't reduce erroneous convictions. Souter's argument only makes real sense - as the dissent notes - if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That's not a narrow procedural ruling; that's a whole different attitude towards death as a sanction.
2. Which leads to my second point. This may be a 5-4 decision, but it wasn't even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don't know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can't have thought he'd win any votes with this opinion.
3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter's opinion was designed for all these purposes, as well as to spur further international debate on America's use of capital punishment. Indeed, the international dimension of this case - which Scalia highlighted - is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order - discovered by 41 - increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it's easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain't so bad. I agree with MJ,commenting over at Orin's place, though. I suspect that Scalia's opinion was so much of a "smack-down" that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

Clark v. Arizona, No. 05-5966 (6/29/2006) The wide latitude afforded states in dertermining rules to govern criminal procedures not violated by Arizona's insanity statute which focuses solely on moral incapacity. The Supreme Court also upheld Arizona's Mott Rule, which bars mental-disease and capacity evidence short of insanity from offsetting evidence of criminal intent. From theSCOTUSblog:

Akin Gump summer associate Jered Matthysse has this summary of yesterday's decision in Clarkv. Arizona:

On Thursday, the Supreme Court held by a vote of six to three that due process does not require a State to use both prongs of the M'Naughten insanity test. Rather, a State may adopt an insanity test that focuses solely on moral incapacity. The Supreme Court also upheld Arizona's Mott Rule, which bars mental-disease and capacity evidence short of insanity from offsetting evidence of criminal intent (mens rea). Justice Souter wrote the opinion for the Court in Clark v. Arizona. Justice Breyer filed a partial concurrence and dissent, arguing that the case should be remanded so that Arizona courts can interpret and apply the Court's ruling. Justice Kennedy also filed a dissent.

During the early hours of June 21, 2000, seventeen-year-old Eric Clark, armed with a handgun, circled his pickup truck around a local neighborhood while blaring loud music. After several neighbors called the police, Flagstaff Police Officer Jeffrey Moritz responded to the scene. As Moritz approached the car, several shots were fired and Clark fled the scene. Shortly thereafter, Clark was arrested and charged with first-degree murder for "intentionally or knowingly"� causing the death of a police officer. Additional background information is available here.

At trial, Clark asserted a defense of "guilty except insane"� under Arizona Revised Statute § 13-502(A), which provides that the defendant must be "afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong." The State of Arizona, however, presented evidence that Clark had purposefully circled the neighborhood with the intention of confronting and killing a police officer. The trial court found that Clark had not met his burden by clear and convincing evidence and was guilty of first-degree murder.

On appeal, Clark argued that Section 13-502(A) violates the due process clause of the Constitution because it includes only one of the two McNaughten insanity test prongs. In addition, Clark contended that the Mott Rule, which bars evidence of a mental defect or illness, short of insanity, that might undermine the State's mens rea evidence, violates due process. In rejecting both arguments, the Arizona Court of Appeals held that there is no constitutional right to an insanity defense and that Arizona law does not allow evidence of a mental disorder short of insanity as an affirmative defense or to negate the mens rea element of a crime. After the Arizona Supreme Court denied Clark's petition for review, the U.S. Supreme Court granted certiorari. A concise summary of oral arguments at the Supreme Court is available here.

Writing for the majority, Justice Souter first lays out the insanity test as established in M'Naughten's Case. The first prong of the test, according to the majority, asks whether a mental defect leaves a defendant unable to understand what he is doing (cognitive capacity). Next, the second prong asks whether a mental disease or defect leaves a defendant unable to understand that his action is wrong (moral capacity). Significantly, the majority interprets the second prong as presenting an "alternative basis"� for recognizing a defense of insanity. In doing so, it treats the two prongs of the M'Naughten insanity test as exclusive, rather than mutually dependent.

Having established that the second prong is merely an alternative to the first, the majority takes on Clark's claim that Arizona's elimination of the first prong violates due process. At the outset, it examines the "traditional Anglo-American approaches to insanity,"� finding four distinct strands. Each of these strands, when combined, "yield a diversity of American standards."� This, according to the majority, shows that no particular formulation of the insanity test has "evolved into a baseline for due process"� and that due process "imposes no single canonical formulation of legal insanity."� The majority therefore upholds Arizona's use of only one M'Naughten prong and rejects Clark's argument that Arizona's insanity test violates some constitutional minimum, noting that cognitive incapacity is simply a subset of moral incapacity within the meaning of the M'Naughten insanity test.

After dispensing with Clark's first claim, the majority then addresses his due process challenge to Arizona's Mott Rule, which prohibits evidence of a mental illness or defect, short of insanity, to counter the prosecution's mens rea evidence. According to the majority, Arizona's Mott Rule survives Clark's due process challenge so long as the restriction satisfies standards of "fundamental fairness"� that due process requires. It begins by limiting Mott to mental-disease and capacity evidence, interpreting the rule as not applying to observation evidence. It then finds (in conflict with the dissent) that Clark's claim only involves a challenge to Mott on due process grounds, rather than the trial court's application of the Mott Rule.

Next, the majority notes that the traditional presumption of sanity "varies"� across state and federal jurisdictions and that legislatures are given "leeway"� in defining the presumption's strength. In addition, the traditional right to introduce relevant evidence "can be curtailed"� if there is a sufficiently "good reason"� for doing so. Applying this logic, the majority determines that Arizona had "good reason"� for doing so because it possesses the authority to define its presumption of sanity and place the burden of persuasion on defendants. Moreover, the Mott Rule serves to avoid juror confusion, juror misunderstanding, and expert testimony on capacity evidence. Finding that the Mott rule does not violate due process, the majority therefore affirms the ruling of the Court of Appeals of Arizona.

In his partial concurrence and dissent, Justice Breyer agrees with the majority's "basic categorization"� of evidence related to insanity. Further, he acknowledges that a State may provide for consideration of mental-disease and capacity evidence "solely in conjunction with the insanity defense."� However, Justice Breyer dissents from the majority's posture and would remand the case so that Arizona courts could determine whether state law is consistent with the majority's categorization.

In dissent, Justice Kennedy begins by noting that it is unnecessary for him to address Clark's due process challenge to Arizona's one-pronged insanity test. Instead, he admonishes the majority for limiting Clark's second claim to a post hoc evidentiary categorization. The majority, he declares, creates a "restructured evidentiary universe, with no convincing authority to support it,"� thereby narrowing Clark's challenge "so he cannot raise the point everyone else thought was involved in the case."� This, according to the dissent, is "unworkable,"� "unfair,"� and "unrealistic."

Justice Kennedy then tackles the issue "everyone else thought was involved in the case"�"”Clark's evidentiary right to counter the State's mens rea evidence. In doing so, he finds the Mott Rule problematic because it constitutes a categorical exclusion of evidence, no matter how credible or material. Justice Kennedy also argues that Arizona's (along with the majority's) purported reasons for excluding such evidence are "insufficient to support its categorical exclusion."� In finding that the Mott Rule has "no rational justification and imposes a significant burden"� on defendants, the dissent would reverse the judgment of the Arizona Court of Appeals.

Hamdan v. Rumsfeld, No. 05-184 (6/29/2006) The President's war crime tribunals violate both domestic and international law. From theGeorgetown University Law Center Faculty Blog:

he following observations are adapted from comments I prepared for a public forum on Hamdanheld at Georgetown University Law Center on June 30, 2006.

Hamdanwas an incredibly difficult case for the petitioners to win. Their lawyers had to provide reasons for rejecting, one after another, plausible arguments that would have led to rejecting their claims: several versions of an argument for abstention in deference to pending military proceedings, for example, each slightly different because invoked with respect to different stages of the proceedings.

It would have been immeasurably more difficult had the Administration sought authorization from Congress for its course of action, with respect both to detainees charged with committing war crimes and to the much larger number of detainees held simply as enemy combatants. Does Hamdanindicate that there would be some problemj with prosecuting thesedetainees for precisely the same crimes with which they were charged in tribunals composed in exactly the same way as the ones at issue there? My first reaction is that the answer is, No, it doesn't, with one modest qualification with respect to the crimes that can be charged.

The structure of the Court's opinion is straight-forward. The President claimed that these military tribunals were authorized by federal law, both in the Uniform Code of Military Justice and in the Authorization for Use of Military Force adopted after the September 11 attacks. As to the latter, the Court, following the line adopted in Hamdi v. Rumsfeld, held that, while the AUMF might authorize actions roughly consistent with the law of armed combat, it should not be construed to authorize actions substantially departing from such actions. And, as to the Uniform Code, the Court held that what Congress had authorized were tribunals composed and operating in a manner congruent with the composition and operation of courts martial, unless the President made a focused and defensible determination that congruency was impracticable (defensible, subject to some degree of deference, but less deference than with respect to a presidential determination that courts martial should depart from the procedures used in civilian courts).

So, as the Court analyzed Hamdan, the case involved proceedings that had not been authorized by Congress. Indeed, the thrust of the Court's opinion is that, Congress having provided for military tribunals in the Uniform Code of Military Justice, the President could not put into effect alternative procedures inconsistent with what Congress had authorized. In the jargon of separation of powers law, the absence of authorization in Hamdandid not place the case in Justice Jackson's Category Two, where the President acts in the absence of congressional authorization, but rather inJackson's Category Three, where Congress's actions, fairly read, prohibited the action the President took. (And, just as in the Steel Seizure Case itself, congressional prohibition need not be explicit, but can be inferred from the surrounding body of law and tradition.)

What's next (as a matter of legal possibility, not political likelihood)? Obviously the government can proceed against Hamdan in a court martial, charging him with a substantive offense on the books when he committed the acts with which he is charged. Justice Thomas's dissent argues, without refutation from the Court on this point (unless I missed it), that Hamdan could be charged in a court martial with committing the war crime of being a member of a criminal organization prohibited by the laws of war. (Justice Thomas thought that he had already been charged with that crime; Justice Stevens and the plurality disagreed.)

More aggressively, the government could take the position that Congress's purported prohibition of military tribunals was an unconstitutional interference with the President's power as commander-in-chief to choose whatever means he finds most appropriate to conduct war. This argument would concede that the problem falls within Jackson's Category Three, but would go on to point out that Jackson said only that in Category Three, the President's power was at its lowest ebb, not that it was absent. The argument would then be that Congress cannot intrude on "core"� presidential powers (perhaps not controversial), that making tactical decisions about the conduct of war is such a power (perhaps more controversial), and that choosing military tribunals of a particular sort is such a tactical decision (plainly, quite controversial).

It's worth emphasizing that the Court's opinion in Hamdandoes not preclude this argument, although obviously the opinion leans pretty strongly against it. The closest the Court comes to addressing the argument is in a footnote, which says that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers."� But, of course, the Jackson-Category-Three argument is that congressional intrusion on core presidential powers is not "proper."� In addition, the footnote concludes, "The Government does not argue otherwise."� But what if it had done so?

And now to the final point: What would the legal position be were Congress to authorize exactly the same tribunals and Hamdan to be charged with a war crime before such a tribunal? It seems to me that the Hamdanopinion does notshow, in any way, that such tribunals, authorized by Congress, would be impermissible. The only question the Court discusses is a separation-of-powers question, about the President's power to convene these tribunals given the other processes Congress has authorized.

Two small points on the law before I conclude with some non-legal observations: (1) There might be an ex post facto problem in charging Hamdan with a crime not in existence at the time he acted, A plurality concluded that conspiracy to commit war crimes was not itself a war crime. The ex post facto problem would arise, at least for the plurality, were Hamdan to face such a conspiracy charge. But, even putting aside the question of whether a prudent Congress and administration could act in the hope that the plurality's views would not become a majority's, it's easy enough to devise charges "“ like the one Justice Thomas identified "“ that wouldn't raise ex post facto problems.

(2) What about the Geneva Convention and Common Article Three? First, as I read the opinion, the Court holds that Common Article Three requires trial before a regularly constituted tribunal, and interprets the term "regularly constituted"� to mean, "constituted pursuant to the ordinary methods of establishing tribunals."� And, again as I read the opinion, a statute enacted by Congress creating these tribunals would satisfy that requirement. But, second, and even more obvious, Common Article Three is a provision in a treaty, and well-established law in the United States holds that subsequently enacted statutes can override preexisting treaty requirements (the last-in-time rule). So, even if the tribunals the President constituted violate Common Article Three, a congressional statute explicitly reconstituting them would not be unlawful as a matter of U.S. law.

I'll conclude with two other observations. (3) One thing people in the administration might be interested in doing "“ not the only thing, but one thing "“ is simply running out the clock, that is, keeping all the Guantanamo issues unresolved until January 21, 2009. If that turns out to be what they really want to do more than anything else, I'm pretty sure that they can do so, first by putting the legislative process into operation (and pointing to pending legislation as a reason for courts to move slowly themselves), then by ensuring that whatever legislation that results is vulnerable to legal attack, and then by defending against such an attack with all the weapons a good litigator has available, including appeals and stays of proceedings pending appeal. There's no guarantee that all this would push things into the hands of the next President, but the odds would, I think, favor the President on this one.

(4) And, finally, some modest advice to government litigators (and perhaps others): As long as Justice Stevens is on the Court, never, never rely heavily on an opinion from which Justice Rutledge dissented strongly. It didn't work in Rasul, where Justice Stevens had a decent though creative argument that the dissent he had worked on while with Justice Rutledge had been vindicated decades later. And it didn't work in Hamdan, where Justice Stevens had to admit that Yamashitaprovided strong support for the government, but then was able to say, again creatively, that subsequent decisions, here by Congress, vindicated the dissent.

Sanchez-Llamas v. Oregon, No. 04-10566 (6/28/2006) Violation of the right to consular assistance does not require a per se reversal rule. TheFederal Criminal Appeal Blog, byMcNabb Associates,hasthis:

As the United States Supreme Court works through the last week of the 2005-2006 term, it has held some of the most interesting decisions for last. In the decision announced yesterday in the consolidated cases of Sanchez-Llamas v. Oregon(04-10566) andBustillo v. Johnson (05-51), a 5-4 majority held that foreign national criminal defendants have a right to notify and consult with their consulates upon arrest. However, that right is virtually unenforceable.

The Court acknowledged that the Supremacy Clause requires United States courts to give effect to treaty law and agreed with the state's arguments that "our authority to create a judicial remedy applicable in state court must lie, if anywhere in the treaty itself."� Reasoning that the Vienna Convention on Consular Relations does not include any enforceability provisions, and that "the exclusionary rule as we know it is an entirely American legal creation,"� the majority focused on whether or not the exclusionary rule applied to the facts in Mr. Sanchez-Llamas' case. In so doing, it avoided discussing the direct question of whether or not multinational treaties are enforceable in U.S. courts. However, the slant of this case against individual treaty-based rights is unmistakable.

The Vienna Convention on Consular Relations provides in Article 36(1)(b) that "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner"¦[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph."

However, the Convention does not address the issue of remedy in the treaty itself, addressing that issue in a corollary document, the Optional Protocol Concerning the Compulsory Settlement of Disputes. This Protocol specifies that the International Court of Justice (ICJ) is the arbiter of interpretation. Although the United States originally signed both the Convention and the Protocol, it withdrew from the Protocol on March 7.

The majority found that this treaty-blind approach was also consonant with the Vienna Convention Article 36(2), in which, "[t]he rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."� Chief Justice Roberts, writing for the majority, stated that "neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression of Sanchez-Llamas' statements to police."

Therefore, under Sanchez-Llamas, if a criminal defendant seeks to suppress evidence he would not have given but for the police denial of his right to consult with his consulate, he may look only to the laws and precedents of the court charging him with a crime for a remedy.

In considering Mr. Bustillo's contention that his consular rights claim must not be barred simply because it was entered for the first time after conviction, the Court affirmed its earlier ruling in Breard v. Greene, 523 U.S. 371 (1998) (per curium), holding that "claims under Article 36 of the Vienna Convention may be subjected to the same procedural default rules that apply generally to other federal-law claims."

Noting that even though the ICJ has ruled differently on the application of procedural default rules with regard to Article 36, default rules "generally take on greater importance in an adversary system such as ours than in the sort of magistrate-directed, inquisitorial legal system characteristic of many of the other countries that are signatories to the Vienna Convention."� In fact, the Court noted that it "has not taken the view that the ICJ's interpretation of Article 36 is binding on our courts."

Therefore, Justice Roberts opined that "it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States."

Washington v. Recuenco, No. 05-83 (6/26/2006)Harmless error analysis applicable to error in sentence enhancement.Sentencing Law and Policyhasthis:

A quick read of the Supreme Court's Blakelywork in Recuenco( opinion here) provides a lot of interesting tea leaves to read. Here are just a few quick observations, with more commentary to follow later:

1. The court's decision was on a 7-2 vote, with only Justices Stevens and Ginsburg dissenting. Perhaps the most surprising (silent) member of the majority is Justice Scalia, who was the author of Blakely and a vocal dissenter in the key precedent that the majority relies upon to declare that Blakely errors can be harmless (this postdetails Justice Scalia's prior assertions that jury trial errors should be seen as structural).
2. Justice Thomas' opinion has some broad language about "sentencing factors" that might be read "” and certainly could be misconstrued "” to extend the reach of Blakely. See Recuenco, slip op. at 6 ("we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt"); id. at 7 (discussing the Court's "recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes"). Both of these assertions "” which carry seven votes, including those of the two new Justices "” raise the stakes on what exactly counts now as a "sentencing factor."
3. Justice Kennedy writes an opaque little separate concurrence which seems to signal that he still does not accept Apprendi and Blakely. Notably, Justice Breyer does not sign on to this tea leaf concurrence (nor does, for that matter, Justices Alito and CJ Roberts).
4. The author of the main dissent on the merits is Justice Ginsburg, who writes as if she was the strongest believer in the full panoply of Blakely rights. But, as the majority-jumping Justice in Booker who allowed for federal defendant to have their procedural rights at sentencing gutted, I am surprised she is a vocal dissenter here. Might this dissent signal that she is disappointed with how the post-Bookerworld is unfolding?

United States v. Gonzalez-Lopez, No. 05-352 (6/26/2006) Remedy for denial of access to counsel of choice in a criminal case not subject to harmless error analysis.Is that Legal?'s Eric Muller hasthis:

Yesterday's SCOTUS decision in United States v. Gonzalez-Lopezis the most recent installment in a fascinating behind-the-scenes debate about the function of appellate reversal and the value of procedural rights in criminal cases.

Of course, appellate crimlaw types know all about the "harmless error" doctrine of Chapman v. Californiaand the important distinction (drawn in Arizona v. Fulminante) between "structural errors" in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and "trial errors" in the criminal process (which require appellate reversal of convictions unless they are "harmless beyond a reasonable doubt" to the outcome.

The question in Gonzalez-Lopezwas whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant's not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn't allow that lawyer to represent the defendant or to participate in the trial at all.)

The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.

Appellate reversal of a conviction is a remedial tool: it's by far the most direct method that an appellate court has to send messages to trial judges, trial lawyers, and the police about what's crucially important at criminal trials and in criminal investigations. Sure, courts can fill their opinions up with dicta about the importance of this or that right or procedure in the trial and investigative process, but reversalsare the things that judges, lawyers, and cops really pay attention to.

For this reason, the decision about whether to place a particular trial or investigative error in the "automatic reversal" category or the "reverse-only-if-the-error-made-the-conviction-unreliable" category is a very important decision.

It's a decision about values. In making the call, the appellate court is asking itself a very important question: what are the values in the criminal trial and investigative process that we appellate judges ought to be enforcing?

This is preciselythe point on which the majority and the dissent parted company in yesterday's opinion. The 5-Justice majority (led by Justice Scalia) sees the right to choose an attorney as serving a value of constitutional magnitude "“ choice about representation "“ whose importance is a constant in alltrials, not a function of the facts of a particular case. For the majority, it's a right grounded in autonomy "“ we might even say a dignitaryright of the defendant to control the basic question of who will speak for him, and against the government, in a trial for his liberty.

The 4-Justice dissent (authored by my old boss Justice Alito) sees no point in this. If the lawyer who actually did represent Mr. Gonzalez-Lopez was an effectivelawyer, says the dissent, then there's no point in rolling out the big gun of appellate reversal. The conviction was fair, and an accurate reflection of the defendant's guilt. Once an appellate court has assured itself of the fairness and accuracy of the verdict, its function is really at an end. To whatever extent the 6th Amendment protects the defendant's autonomy and dignity interests, the dissent effectively implies, those things aren't our department up here on appeal.

I note two final things.

One of them is the breadth of Justice Alito's position. "The touchstone of structural error is fundamental unfairness and unreliability," he says on page 8 of his dissent. In this part of the opinion he challenges something that I think we had all assumed was settled: namely, that if an error goes in Fulminante's "structural error" rather than "trial error" column, it requires automatic reversal of a conviction. Justice Alito argues here for the creation of a new category: "harmless" "structural" errors. This would be a significant shift in the law. And he has four votes for this proposition;none of the other dissenters expressed discomfort with this portion of the dissent.

The other final thing I note is that lots of precedent contradicts Justice Alito's position about structural error. Consider, for example, race discrimination in the selection of a grand jury. Under current law ( Vasquez v. Hillery), a defendant's conviction must automatically be reversed if the grand jury that indicted him excluded blacks on account of their race. It is of no moment that the grand jury had enough evidence to indict, or that a properly selected trial jury convicted the defendant after a fair trial. It's structural error, and the conviction gets reversed. The value that appellate reversal is enforcing in a case like this has nothing to do with the reliability of trial verdicts. It has to do with the value of anti-discrimination in the criminal process.

Or consider the right to a public trial. It is quite possible to imagine trialsthat would be far likelier to produce "reliable" outcomes (in the sense that Justice Alito means) if they were conducted in private. Yet the denial of a public trial is a structural error requiring automatic reversal; there's a value in the public-ness of a trial that doesn'timplicate reliability but that merits appellate policing.

Or consider the right of a criminal defendant to represent himself, established in Faretta v. California. Surely the results of many trials of self-representing defendants would be more "reliable" (in the sense that Justice Alito means) if the defendants were forced to be represented by a competent lawyer. Yet the denial of the right to self-representation is automatically reversible structural error. There's a value to the right to self-representation (grounded, like the right in Gonzalez-Lopez, in the defendant's autonomy and dignity) that deserves appellate policing without regard to outcomes.

Justice Alito seems to have four votes to take the Court in a very different direction on this very important question.

(Hmmm. This blog post ended up feeling suspiciously like a rough draft of a law review article. Especially for me. What has come over me?)

Beard v. Banks, No. 04-1739 (6/28/2006) Right of dangerous prison inmates to have access to newspapers, magazines and photographs does not outweigh the legitimate penological interest of state corrections officials in curtailing access to such materials. TheU.S. SupremeCourt bloghasthis:

In Beard v. Banks, No. 04-1739 (June 28, 2006), the Supreme Court held that the Pennnsylvania Department of Corrections was entitled to summary judgment against inmates in its Long Term Segregation Unit (LTSU) who sued alleging that the policy of denying them any access to newspapers, magazines and photographs violates the First Amendment. The Court noted that prison restrictions are valid if they are reasonably related to legitimate penological interests. Here the undisputed evidence was that the denial of access to the contested materials was an incentive for growth of particularly difficult inmates. Given the deference courts must show to prison officials' professional judgment, this explanation sufficed.

Comm. v. Willie Sneed, 2006 Pa. LEXIS 998 (PA 6/19/2006) "[C]ounsel failed to make an effort to personalize appellee for the jury. Had counsel made such an effort, he may well have made one or more of the jurors more likely to accept one of the other mitigating circumstances that was presented."

The second issue on appeal concerns the PCRA court's finding that trial counsel was ineffective in his investigation and presentation of available mitigation evidence during the penalty phase. Specifically, appellee claimed below that counsel failed to: investigate his background or attain a life history; contact any family member other than one of his sisters; collect existing prison and probation records; collect existing prison mental health evaluations; and have appellee evaluated by a psychologist or any mental health expert. Moreover, [*23] appellee contended that counsel failed to present any character witnesses and, essentially, failed to present any mitigation defense whatsoever. Appellee argued that the evidence that was available and that counsel should have presented would have supported the following mitigating circumstances: that appellee was under the influence of extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2); that the capacity of appellee to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, 42 Pa.C.S. § 9711(e)(3); and the catchall mitigator, 42 Pa.C.S. § 9711(e)(8) ("[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense").

In granting a new penalty hearing, the PCRA court accepted the life history, record, and mental health mitigation evidence presented by appellee at the PCRA hearing, and found counsel ineffective in the following one paragraph analysis:

On the basis of the record this Court found that there was substantial information available [*24] at the time of trial that trial counsel should have investigated and that would have produced evidence to support the following statutory mitigating circumstances: the defendant was under the influence of extreme mental or emotional disturbance at the time the offense was committed[] (42 Pa.C.S. § 9711(e)(2)); the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (42 Pa.C.S. § 9711(e)(3)); and, other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense[] (42 Pa.C.S. § 9711(e)(8). Trial counsel's failure to develop and present this evidence was not a strategic decision. This "decision" was without any reasonable basis. Indeed, it was virtually without basis because counsel did no investigation despite the availability of social history information at the time of trial. There is a substantial likelihood that, had the mitigation evidence presented at the PCRA hearings been presented at trial, the outcome of the penalty hearing would have been [*25] different.

PCRA Court Op. at 15-16.

On appeal, the Commonwealth minimizes the mental health evidence presented by appellee at the PCRA hearing, arguing that the defense psychiatrist, Dr. Richard D. Dudley, did not diagnose appellee with any major mental illness, that his examination of appellee was conducted twenty years after the murder, and that Dr. Dudley did not consider appellee's actual behavior or thoughts at the time of the murder. The Commonwealth further argues that the PCRA court ignored two mental health experts who conducted mental health evaluations of appellee in 1985 and found no evidence of any major mental disorder. n13 Moreover, the Commonwealth stresses the testimony of its mental health expert at the PCRA hearing, Dr. John S. O'Brien II, a psychiatrist, who examined appellee in September of 2000 and found no evidence in appellee's behavior at the time of the murder which would indicate that he was suffering from any extreme mental or emotional disturbance, or that appellee was suffering from any psychiatric or cognitive problem that could have substantially impaired his capacity to conform his conduct to the requirements of law. N.T. 9/13/01 at 46, 59-60, 64. [*26] The Commonwealth argues that appellee at the time of trial presented no sign of any significant mental illness warranting psychological examination or testing. In sum, the Commonwealth argues that counsel's penalty phase strategy of stressing appellee's drug addiction and its psychological effect on him was entirely reasonable and is supported by Dr. O'Brien's evaluation and diagnosis.

Regarding the dysfunctional childhood evidence counsel was faulted for failing to [*27] muster, the Commonwealth notes that at the time of trial, appellee merely informed counsel that he was raised in poverty, not that he was a victim of abuse. In addition, according to the Commonwealth, appellee did not provide counsel with any specific information regarding his family members, nor did his sister when she met with counsel. The Commonwealth highlights counsel's testimony that if appellee's sister had provided him with a shred of evidence that could have helped appellee, he would have called her as a witness at the penalty hearing. N.T. 9/13/01 at 6-8. Accordingly, the Commonwealth contends that counsel cannot be deemed ineffective for not presenting alleged mitigating evidence of which he justifiably was not aware. See Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 601 (Pa. 2000) (counsel not ineffective for failing to present evidence of sexual abuse because appellant and his family failed to reveal the abuse during interviews prior to trial).

Appellee responds that the PCRA court's finding of ineffective assistance of counsel was well-supported by the evidentiary record developed at the PCRA hearing. Appellee cites to recent cases that have found [*28] trial counsel ineffective for failing to properly investigate and present available mitigation evidence, see Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88 (Pa. 2004); Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (Pa. 2004); Commonwealth v. Ford, 570 Pa. 378, 809 A.2d 325 (Pa. 2002) (Opinion Announcing the Judgment of the Court), cert. denied, 540 U.S. 1150, 124 S. Ct. 1144, 157 L. Ed. 2d 1044 (2004), and analogizes the instant case to those cases.

Regarding the Commonwealth's specific arguments, appellee contends that Dr. O'Brien's testimony at the PCRA hearing actually buttressed the mental health evidence presented on his own behalf, and thus supported his ineffectiveness claim. For example, appellee highlights Dr. O'Brien's testimony where he admitted that neglect, poverty, and abuse, such as that suffered by appellee, influences psychological functioning and childhood development. N.T. 9/13/01 at 62-63. Appellee further [*29] notes that his expert, Dr. Dudley, did consider his thoughts and behavior at the time of the crime in reaching his diagnosis. N.T. 9/10/01 at 116. With respect to the 1985 evaluations conducted by Dr. Saul and Dr. Joaquin, appellee notes that these assessments were not conducted as part of a mitigation or life history evaluation, but as competency evaluations. Regardless, appellee contends that these evaluations diagnosed him as having the same mental health impairments described by Dr. Dudley. Furthermore, concerning the Commonwealth's dysfunctional childhood arguments, appellee contends that trial counsel learned sufficient information from appellee -- e.g., he was a drug addict from Georgia, he had been in prison, he had psychological disturbances, and he had suffered a "hard life," see N.T. 9/12/01 at 29, 31-32, 37 -- that would have led effective counsel to investigate and obtain the available mitigation evidence presented by appellee at the PCRA hearing. Appellee also argues that even if effective counsel had learned nothing about appellee's background from him prior to trial, it was still counsel's duty to investigate and pursue mitigation evidence available in appellee's [*30] background. See Malloy, 856 A.2d at 788 ("Counsel's duty is to discover [mitigation] evidence through his own efforts, including pointed questioning of his client."). Finally, concerning appellee's sister, Dorothy Brown, appellee asserts that the Commonwealth ignores the actual evidence presented at the PCRA hearing and credited by the PCRA court, i.e., that trial counsel asked Ms. Brown nothing about appellee's life history and never actually interviewed her. N.T. 9/11/01 at 38-40, 52-54.

In evaluating claims that capital counsel was ineffective for failing to conduct a sufficient investigation into mitigation evidence and to present that evidence, it is settled that counsel has a general duty to conduct reasonable investigations or reach reasonable decisions that render particular investigations unnecessary. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; Malloy, 856 A.2d at 784. Moreover, "our principal concern in deciding whether [counsel] exercised 'reasonable professional judgmen[t]' is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's [*31] decision not to introduce mitigating evidence of [appellee's] background was itself reasonable." Malloy, 856 A.2d at 784 (quoting Wiggins, 539 U.S. at 522-23, 123 S. Ct. at 2536 (citing Strickland, 466 U.S. at 691, 104 S. Ct. at 2066)).

To determine whether trial counsel was ineffective, we begin with a review of the investigation that counsel performed and the mitigation evidence presented at the penalty hearing. See Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 72 (Pa. 2003), cert. denied, 162 L. Ed. 2d 891, __ U.S. __, 125 S. Ct. 2956 (2005). A review of the record, which includes counsel's testimony at the PCRA hearing, reveals that counsel conducted little investigation to prepare for the penalty phase. Counsel testified that, before the trial, he learned from appellee that appellee had suffered a "hard childhood," that he abused drugs and alcohol, that he previously had been incarcerated, that he was originally from Georgia, that he had a sister residing in Philadelphia, and that his other family members lived in Georgia. N.T. 9/12/01 at 29-32, 37. Despite learning this [*32] information from appellee, counsel testified that he: did not recall taking a social history from appellee; did not speak to any of his family members residing in Georgia; spoke to his sister living in Philadelphia, but did not ask her any questions regarding appellee's childhood; did not obtain any of appellee's prison records; did not obtain any of appellee's prior mental health evaluations; did not obtain appellee's federal probation records; did not recall discussing with appellee the importance of a psychological evaluation and testing for capital sentencing purposes; and did not have appellee evaluated by a psychologist or any mental health expert. Id. at 30-34, 36-37.

Dorothy Brown, appellee's sister and the only family member who trial counsel did speak with prior to the penalty hearing, testified at the PCRA hearing that counsel briefly met with her at his office. During the meeting, according to Ms. Brown, counsel introduced himself and informed Ms. Brown that he was handling her brother's case, but he did not ask her any questions concerning appellee's childhood background or ask her if she was in contact with any other family members, and if she was, whether she possessed [*33] their contact information. N.T. 9/11/01 at 38-40, 48-49, 52-54. Counsel testified that he recalled meeting with Ms. Brown, but did not remember the content of their conversation. N.T. 9/12/01 at 33.

In addition to the fact that trial counsel conducted little investigation into mitigation evidence, the record makes clear that he introduced no testimonial evidence in mitigation at the penalty hearing, and conceded the two aggravating factors presented by the Commonwealth at the penalty hearing. Counsel did, however, argue from the trial record three record-based mitigating circumstances to the jury: (1) that appellee was under the influence of extreme mental or emotional disturbance because of his long history of drug abuse and significant drug intoxication at the time of the murder; (2) that appellee's capacity to appreciate the criminality of his acts or conform his conduct to the requirements of law was substantially impaired because of his drug intoxication at the time of the murder; and (3) that appellee acted under extreme duress because of his severe drug dependency. N.T. 3/15/86 at 17-19. n14 The jury found none of the mitigators.

Had counsel engaged in a reasonable investigation, he most likely would have discovered significant mitigation evidence concerning appellee's background, character, and mental defects. Specifically, at the PCRA hearing, numerous family members, including appellee's brother, three of his sisters, his aunt, and one of his cousins, testified as to the following regarding appellee's childhood: he was raised in a two-room house in Macon, Georgia, where as many as twenty-three people lived; he had five siblings born from four different fathers; he was raised in a home with no running water and often no working electricity; all of the people living in the house took turns bathing with the same cold water; his mother was thirteen years old when she had her first child, and fifteen years old when she gave birth to appellee; his mother was an alcoholic and drank to the point of intoxication often while she was pregnant with appellee and while she was breast-feeding him; his mother abandoned her children for days and sometimes weeks at a time while she was on drinking binges; his mother worked as a prostitute and often plied her trade in plain view of her children; his grandmother, who also [*35] was an alcoholic and lived in the two-room home, made and sold illegal alcohol in the home in the children's presence; his mother, grandmother, and uncle physically abused appellee; he never knew or had a relationship with his father; he and his siblings often went hungry and most days only ate one meal; he and his brother were forced to steal food on days where there was no food in the home; appellee was never properly clothed and resorted to placing pieces of cardboard in his shoes to cover the holes in the soles; he did not receive help from his mother or grandmother with schoolwork, and was not encouraged to attend school; and following his mother's death, his four younger sisters were placed in foster care because of neglect and abuse, but he and his brother remained with their grandmother. N.T. 9/10/01 at 177-182, 186-192, 201-202; N.T. 9/11/01 at 6-8, 28-29.

Additionally, numerous records were available at the time of trial that also would have provided support for a factual case in mitigation. For example, appellee's birth certificate indicated his mother was fifteen years old when she gave birth to appellee, and that he was her second child. PCRA Exhibit 15. In addition, [*36] a 1983 federal probation record included a summary of appellee's childhood, and provided:

According to the defendant, and verified by a maternal aunt, the defendant's mother and grandmother regularly abused alcohol, and he had little home supervision. At age 16, Sneed left the grandmother's residence and "hit the street."PCRA Exhibit 19. Furthermore, a Philadelphia presentence investigation report prepared several weeks before trial -- in connection with a different murder charge in which trial counsel in the present case also represented appellee -- referenced the 1983 federal probation report and noted:[Appellee is a] native of Macon, Georgia, [and] he is the only child born out of wedlock to Robery (sic) Conty and Eleanor Brown. He also has an older brother and four younger sisters born of his mother's relationships with several different men. He was the product of what seemingly appears to be a disorganized household. Along with being provided with inadequate supervision, the Subject's mother and his maternal aunt, with whom he later went to live, were regarded as excessive drinkers. His father, a native of Macon, Georgia, had little [*37] or nothing to do with rearing or supporting him. He reportedly died in 1965 when the Subject was 14 years old. His mother, also a native of Macon, Georgia, died in 1963 at age 29 from a virus, when the Subject was 12 years old.

PCRA Exhibit 18 at 1-2.

Moreover, the record and testimonial evidence presented at the PCRA hearing also suggested that, through diligent investigation, counsel could have uncovered possible mental health mitigation available at the time of trial. Dr. Dudley testified that the type of abuse, neglect, and family dysfunction experienced by appellee during his childhood has a severe impact on an individual. n15 Concerning these matters, Dr. Dudley testified as follows:[*38]

Q: In your own affidavit, Doctor Dudley, at Paragraph 5, you discuss trauma, dysfunction, and child deprivation that is clinically significant. Can you discuss those issues for us, and could you explain to us why those matters are clinically significant to a mental health mitigation assessment?

A: What I'm attempting to say is that we know that significant neglect, the absence of all the sorts of things that one would expect care givers to provide, whether it'[s] emotional support, developmental support, the basic needs for food, shelter, clothing, etc., academic support, guidance, we know that that sort of neglect results in developmental difficulties which tend to be long term and have a long term impact on the person. We also know that being exposed to violence, other sorts of traumas, physical abuse, also, has an effect on a person's development that can be very long term in effect. So, I highlight these as part of the history because we know the implications for child growth and development and adult functioning as well.

Q: What are those implications?

A: That unaddressed, you end up with adults with self[-]esteem issues.[*39] You end up with adults who are not trusting, who are suspicious, who are always thinking something will happen to them. You end up with adults who have difficulty trusting, forming reasonable attachments or bonds, and they tend to be more by themselves or isolated, or schizoid.

N.T. 9/10/01 at 46-47. Dr. Dudley also testified that the mental health effects of neglect, abuse, and dysfunctional upbringing were known to the mental health profession at the time of trial. Id. at 41-42.

Dr. Dudley further testified to his opinion that, as a result of his childhood upbringing, appellee suffered from an inability to develop trust in people, emotional liability, impulse control impairment, cognitive deficiencies, paranoid ideation, impaired self-esteem, depression, impaired view of self, and mixed personality disorder with paranoid, schizoid, and anti-social features. Id. at 51-57, 59-61. Dr. Dudley concluded with an opinion that, as a result of these mental impairments, appellee, at the time of the murder, was under the influence of extreme mental disturbances and extreme emotional disturbances, and that his capacity to conform his conduct to the requirements of law was substantially [*40] impaired. Id. at 85-87; see 42 Pa.C.S. § 9711(e)(2) & (3).

The facts of the instant case are very similar to the facts presented in Malloy, supra. In that case, trial counsel's preparation consisted of only meeting with his client twice prior to trial for one and one-half hours for the first visit and two and one-half hours for the second visit, including travel time. Counsel undertook little or no affirmative effort in preparing for the penalty phase as well, engaging in a paucity of investigation of mitigation. Counsel in fact admitted that he conducted virtually no preparation for the penalty phase. During the penalty hearing, counsel introduced no testimonial evidence, but did argue two record-based mitigating circumstances. This Court noted that, if counsel had conducted a reasonable investigation, he would have discovered that Malloy was abused during his childhood by his mother and her boyfriend, that he was placed with his grandmother after his mother abandoned him, and that he was institutionalized at the age of twelve because of his criminal behavior. On this record, this Court found that counsel was ineffective for [*41] not investigating and presenting a reasonable case in mitigation, noting that the foregone evidence was easily discoverable had counsel undertaken even a minimal investigation. See Malloy, 856 A.2d at 787. Because of the significant similarities between the instant case and Malloy, we believe that the issue of whether trial counsel was ineffective for failing to investigate and present evidence of appellee's dysfunctional childhood and resulting psychological effects is controlled by Malloy.

Comm. v. Thomas Gorby, 2006 Pa. LEXIS 1012 (PA 6/20/2006) Relief granted on layered claim of ineffective assistance of counsel deriving from trial counsel's investigation and presentation of sentencing mitigation.

At the hearing on remand, Appellant was unable to question his counsel from the direct appeal, since that attorney had died during the course of the litigation. Appellant, however, presented testimony from two lawyers with substantial defense experience in capital litigation, who opined that Appellant's claim of ineffective assistance of trial counsel at the penalty phase of trial was strong and apparent from the record. See, e.g., N.T., October 15, 2004, at 91-92. In this regard, the attorney-witnesses discussed trial counsel's apparent confusion concerning mitigation as manifested on the trial record, see, e.g., id. at 27-28, trial counsel's failure to object to the absence of an instruction under the catch-all mitigator, see, e.g., id. at 29, and the paucity of weight of the evidence going to the mitigator that actually was requested, see, e.g., id. at 61. Both also testified that, based on circumstances [*38] actually known to trial counsel, additional investigation into Appellant's mental health condition was clearly warranted. See N.T., October 15, 2004, at 24, 37-38, 87-88. The witnesses also offered an assessment of the strength of the issues that were actually raised by Appellant's counsel in the direct appeal, as compared to the claim that counsel was ineffective in failing to investigate and present available mitigation evidence, finding the former quite weak and the latter very strong. See, e.g., id. at 90-91. Further, both attorney-witnesses indicated that they considered counsel's conduct in failing to collect medical and social-history records to be highly irregular. See, e.g., id. at 38 ("That is the whole crux of the penalty investigation. That's where you begin, with the records."). Both also affirmed that the information found in the records collected on post-conviction review should have generated additional inquiry, including evaluation by a mental-health professional. See, e.g., id. at 57-58, 76. The Commonwealth presented no evidence in rebuttal, but rather, relied upon cross-examination similar to that of the mental-health witnesses during the previous [*39] remand. The PCRA court did not issue a subsequent opinion, since one was not required under the remand Order.

Presently, in supplemental briefing, Appellant frames his arguments as directed in McGill, contending that the record as described above amply establishes deficient stewardship on the parts of his counsel at trial and in the direct appeal, in terms of the relevant criteria of arguable merit, reasonable strategy, and prejudice. See Commonwealth v. Pierce, 515 Pa. 153 at 158, 527 A.2d 973, 975-76 (1987). Appellant views his situation as a case in which very little mitigation was actually presented to the jury; a tremendous amount of valid mitigating evidence was ignored by trial counsel, who was aware of important facts that should have given rise to further investigation and consequent development of such mitigation; trial counsel repeatedly testified he had no strategic reason for ignoring the evidence and not pursuing the essential investigation; the original penalty phase transcript alone shows that trial counsel was confused and unprepared; there was no legitimate reason, designed to effectuate Appellant's interests, for appellate counsel not to present [*40] the ineffectiveness claim; appellate counsel presented comparatively weak and "essentially frivolous" claims; and there is a reasonable probability that, had appellate counsel presented the penalty-phase ineffectiveness claim, relief in the form of a new sentencing hearing would have been granted. Appellant draws support from the United States Supreme Court's decisions in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), and Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), citing these decisions, inter alia, for the general proposition that capital counsel have the "obligation to conduct a thorough investigation" for possible mitigating evidence, Williams, 529 U.S. at 396, 120 S. Ct. at 1514-15 (citing ABA Standards for Criminal Justice (2d ed. 1980)), and the more specific understanding that counsel simply cannot meet this requirement by relying upon only "rudimentary knowledge of [a capital defendant's] history [acquired] from a narrow set of sources," Wiggins, 539 U.S. at 524, 123 S. Ct. at 2537. It is Appellant's position that the PCRA court held precisely [*41] to the contrary by accepting counsel's approach of limiting his investigation to conversations with Appellant, his mother, and his step-father, while omitting further investigation of other known and readily available life-history witnesses, and never obtaining a single document pertaining to his client's life history. Appellant also highlights the PCRA court's affirmative finding that trial counsel "never inquired into [Appellant's] history of abuse," as well as its finding of consistency between counsel's post-conviction testimony and the mitigation-witness declarations indicating that counsel never asked about Appellant's background or past. In this regard, Appellant emphasizes that it is counsel's duty -- not that of the defendant or his family -- to know what types of information may be mitigating, and to thoroughly seek out and develop such information. Accord Wiggins, 539 U.S. at 525-26, 123 S. Ct. at 2537-38 (framing the relevant inquiry in terms of counsel's duties, and not obligations on the part of the capital defendant himself or the witnesses); cf. Commonwealth v. Malloy, 579 Pa. 425, 459, 856 A.2d 767, 788 (2004) ("The onus is not upon [*42] a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel's duty is to discover such evidence through his own efforts, including pointed questioning of his client."); Commonwealth v. Basemore, 560 Pa. 258, 290, 744 A.2d 717, 735 (2000) ("Obviously . . . different light falls upon counsel's performance depending upon whether he asked and was not told, or he did not ask and therefore was not told." (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984))).

The Commonwealth filed a brief following the first remand entailing the presentation of the mental-health mitigation evidence, but it did not file a supplemental brief following the McGill remand. In the brief that it filed, the Commonwealth argues, as the PCRA court found, that the testimony of the mental-health experts should not alter the conclusion that trial counsel was effective in the discovery and presentation of mitigating evidence. The Commonwealth again highlights: the lapse of time between the examinations and testing and the time of Appellant's offenses; that fact that Appellant's [*43] intelligence is in the normal range; Appellant's adequate military service; Appellant's self-reporting of no mental-health disorder; the inability of Appellant's experts to pinpoint an etiology for the asserted cognitive disorder; and an acknowledgement by one of the professionals that Appellant knew that the killing of the victim was a crime. Further, the Commonwealth argues:

[Appellant's] child and adult record is devoid of any psychological report that [Appellant] was suffering from any mental illness prior to the commission of the homicide. Mental illness/brain damage was not suspected or found to exist prior to the deficiencies found by Dr. Krop on three test batteries some 13 years after [Appellant] was placed on death Row. Trial Counsel was not informed of any mental illness and testified that [Appellant] was articulate when he testified during trial. There is nothing apparent from the record which would have placed any trial counsel on notice of any claim of mental illness.

The Commonwealth is in agreement with the findings of the PCRA Court and its opinion and commentary. The Commonwealth also notes that there is no life history of bizarre [*44] behavior on the part of [Appellant]. Likewise there is no apparent nexus between the violent stabbing death of Drayton Spahr and [Appellant's] deficient performance on a categories and card sorting test administered thirteen years after an event. Neither a ten year old broken jaw or a twenty three year old high fever provided trial counsel with any real notice or opportunity to seek mitigation of his crime.

Brief for Appellee, at 5-6.

Under the Post Conviction Relief Act, constitutionally ineffective assistance of counsel will support a claim for post-conviction relief. See 42 Pa.C.S. § 9543(a)(2)(ii); see also Commonwealth v. Chester, 557 Pa. 358, 374-76, 733 A.2d 1242, 1250-51 (1999) (holding that the Post Conviction Relief Act extends to challenges arising from the penalty phase of trial, including ineffectiveness claims). As noted, Appellant's only extant claim is of ineffective assistance of his counsel on direct appeal. However, such challenge derives from Appellant's waived claim of ineffective assistance of trial counsel, and the underlying claim is appropriately considered as a component of the essential analysis. [*45] See McGill, 574 Pa. at 587-88, 832 A.2d at 1022-23.

Considering the prevailing review standards, the factual and procedural background, the record, the PCRA court's opinions, and the parties' arguments, we find it reasonably clear that Appellant's trial counsel provided constitutionally deficient stewardship. In the first instance, Appellant correctly invokes United States Supreme Court authority for the proposition that capital counsel have an obligation to pursue all reasonably available avenues of developing mitigation evidence. See, e.g., Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535; see also Williams, 529 U.S. at 396, 120 S. Ct. at 1515 (explaining that capital counsel has a duty to thoroughly investigate a client's background). Further, we agree with Appellant that the record amply demonstrates both that trial counsel inappropriately limited his investigation to the acquisition of rudimentary information from a narrow set of sources, and that the information that counsel did acquire through his limited efforts should have prompted additional investigation in any event, which should have yielded additional mitigation. The record [*46] reflects no reasonable strategy supporting counsel's approach of curtailing his penalty-phase investigation in such fashion. Indeed, the PCRA court was able facially to support a conclusion that counsel was effective on this record only by characterizing the case in fairly abstract terms -- for example, by focusing on the testimony that counsel questioned Appellant's mother "a lot," Gorby, No. 555(a)(b) 1986, slip op. at 4, as opposed to taking into account the content of the conversations, including the specific information that was actually known by and/or furnished to counsel and the omission of any inquiry into potential mitigation avenues such as childhood abuse. n14 Furthermore, the PCRA court's approach to the issue of trial counsel's ineffectiveness is untenable, as it rests solely upon a finding that counsel's truncated investigation was a sufficient one, at the same time as it expressly accepts that well-traveled avenues of mitigation were not pursued during the course of the limited inquiry that was made.

The PCRA court also incorrectly credited counsel's reliance on witness conclusions as to critical matters (such as an indication from Appellant's mother that he suffered no mental infirmity), to foreclose additional inquiry, despite counsel's actual knowledge of circumstances that should have prompted at least some further investigation (for example, Appellant's irrational behavior after his crimes; his "rough childhood"; his dependency on intoxicating substances; his poor educational achievement and test results despite normal intelligence; and the known incidence of head injury). One of Appellant's attorney witnesses likened such a course of conduct to a physician who, on considering a description of symptoms by a patient suffering from a disease, offers the patient a clean bill of health without examination or testing, because the patient did not specify a diagnosis. See N.T., October 15, 2004, at 45. While such analogy is not a perfect one, it does cast some illumination on this substantial weakness in the PCRA court's reasoning.

It is also reasonably clear that the necessary but omitted investigation would have yielded evidence of value at the penalty phase of Appellant's [*48] trial, as the PCRA court repeatedly recognized. Furthermore, and particularly as trial counsel's actual presentation at the penalty phase of trial was remarkably weak, n15 we find it reasonably probable that at least one juror might have decided differently had an effective presentation been made, and thus, might have averted a death sentence. See 42 Pa.C.S. § 9711(c)(1)(iv). Accordingly, we conclude that the arguable merit prong of inquiry into the effective assistance of appellate counsel is established. See generally McGill, 574 Pa. at 587-88, 832 A.2d at 1022-23 (explaining the interrelationship between the three-prong ineffectiveness inquiry relative to a waived claim of ineffective assistance of trial counsel and the arguable-merit aspect of a layered claim of deficient stewardship on the part of appellate counsel).

The record also supports no reasonable strategy on the part of appellate counsel in failing to present a claim of ineffective assistance of trial counsel. Such a claim merited exploration based on the apparent weakness of trial counsel's penalty-phase presentation alone, as reflected on the face of the trial record; further, a reasonable inquiry should have yielded the information that was developed on post-conviction review concerning the unduly limited scope of trial counsel's penalty-phase investigation. We also agree with Appellant that the ineffectiveness claim was substantially stronger than the claims that were raised on direct appeal. n16 Finally, we find the prejudice criterion of the ineffectiveness inquiry satisfied, since had appellate counsel raised the issue in appropriate terms, relief in the form of a new sentencing proceeding should have been afforded at the direct-appeal stage, based on the same set of circumstances that require such an award at this juncture.

In short, we believe that the salient claim of ineffective assistance of trial counsel was unreasonably omitted from the direct appeal, again, resulting in prejudice.

Finally, we differ with the PCRA court's suggestion that the grant of post-conviction relief in this case would indicate that in all capital cases, regardless of the circumstances, mental-health mitigation must be presented to the jury for a defense attorney to meet future challenges to his stewardship. In fact, it is the sum total of the individualized circumstances as developed on the post-conviction record (and above) that require relief in this case, as such totality reflects evident failures on the part of Appellant's trial counsel to afford constitutionally effective representation at the penalty phase of trial and of his appellate counsel to vindicate the resultant claim for relief from the sentence of death.

In re Horn, 2006 U.S. App. LEXIS 15849 (3rd Cir 6/23/2006) "[W]e agree with Hardcastle that we lack appellate jurisdiction to review the challenged discovery order and will grant his motion to dismiss the Commonwealth's appeal. We also agree with Hardcastle that the Commonwealth's mandamus petition is moot and will deny it as such."

The Commonwealth argues that the District Court's first discovery order of August 18, 2004, is still valid, and that its second discovery order is a nullity. Invoking the general notion that filing a notice of appeal divests a district court of jurisdiction, see Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985), the Commonwealth contends that the District Court lacked the authority to vacate its first discovery order.

Before addressing the Commonwealth's argument, we pause to question why the Commonwealth invokes this general rule in an attempt to invalidate the second discovery order. After all, the second discovery [*7] order embodies the precise terms to which the Commonwealth agreed. The Commonwealth could have avoided considerable expense and delay if it had voluntarily withdrawn its appeal and mandamus petition as soon as the District Court vacated the challenged order. The Commonwealth's response indicates a different strategy, however:

This issue has also arisen with ever-increasing frequency in other cases. Hardcastle's institutional counsel, who represent virtually every death-sentenced Pennsylvania prisoner in federal court, now routinely ask for similar discovery in support of Batson claims that were rejected, or not litigated, in the state courts. . . . The Commonwealth has a strong interest in having this Court set guidelines for such requests - a decision by this Court will save taxpayer money and conserve the Commonwealth's limited resources, while allowing district judges to focus on other issues.

(Commonwealth's Mootness Response at 5-6 (emphasis added).) This response suggests an invitation for us to issue an advisory opinion on the scope of discovery for Batson claims. Because we are not in the business of issuing advisory opinions, we decline the [*8] Commonwealth's invitation. See Magaziner v. Montemuro, 468 F.2d 782, 784 (3d Cir. 1972) (quoting Wright, Federal Courts, § 12 at 37) ("The oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.").

Whatever its strategy, the Commonwealth is correct that filing a notice of appeal generally divests a district court of jurisdiction. The Commonwealth neglects to explain, however, that a district court does not lose jurisdiction when a notice of appeal is filed from an order or judgment which is not appealable. See Venen, 758 F.2d at 121. An appeal from such an order is "a nullity." Id. Otherwise, a litigant could temporarily "deprive a district court of jurisdiction at any non-critical or critical juncture including trial itself, thus bringing proceedings in the district court to a standstill while a non-appealable ruling wends its way through the appellate process." Id.

For purposes of determining our appellate jurisdiction, then, the question is whether the District Court's August 18, 2004 discovery order is an immediately appealable order. If not, we lack jurisdiction [*9] and must dismiss the appeal. While a discovery order is not a final order subject to appeal under 28 U.S.C. § 1291, it may in narrow circumstances be appealable under the collateral order doctrine. See ADAPT of Phila. v. Phila. Hous. Auth., 417 F.3d 390, 394 (3d Cir. 2005). The collateral order doctrine provides that "[a]n appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreview able on appeal from a final judgment." Bacher v. Allstate Ins. Co., 211 F.3d 52, 53 (3d Cir. 2000).

This Court's jurisprudence establishes that the requirements of the collateral order doctrine are met "when a party appeals a discovery order involving information which the party claims to be privileged or to constitute a trade secret." Id. These privileges include the attorney-client privilege and the work product privilege. In re Ford Motor Co., 110 F.3d 954, 962-63 (3d Cir. 1997). In its petition for mandamus [*10] relief filed in this Court, the Commonwealth posits "a privilege problem." According to the Commonwealth, Rubino's jury selection notes are "encompassed by the 'work product privilege'" and thus not subject to discovery.

Hardcastle counters that the Commonwealth did not claim the work product privilege or any other privilege in its response to his discovery motion. In that motion, Hardcastle requested discovery of Rubino's jury selection notes in his trial, her jury selection notes in all other homicide trials in which she conducted jury selection, and documents regarding jury selection policies and practices by the Philadelphia District Attorney's Office. He also asked to depose Rubino prior to any evidentiary hearing. Nothing in the Commonwealth's response suggests that any item or request is protected from discovery by the work product privilege or any other privilege. For this reason, Hardcastle believes that the Commonwealth did not properly claim the work product privilege.

Hardcastle's point is well taken. Presumably, if the Commonwealth had expressly claimed the work product privilege, the District Court would have addressed the applicability of the privilege. If so, the [*11] District Court could have examined each of the requested discovery items and decided which, if any, were discoverable. If the Commonwealth had then filed an interlocutory appeal from such a decision, we could readily determine our appellate jurisdiction under the collateral order doctrine. We could also readily determine whether the Commonwealth would be entitled to any relief from the discovery order.

In response, the Commonwealth points to a reference in the District Court record as proof that it invoked the work product privilege. A thorough review of the record confirms that when Hardcastle filed his amended habeas petition in November 1999, he indicated that he would seek discovery similar to that requested in his discovery motion. (Amended Pet. at 80 n.42; 81-82 n.43; 82-83 n.44.) In its answer to the amended petition, the Commonwealth asserted that any discovery requests were premature and without merit. (Answer at 133.) In his reply, Hardcastle reiterated his discovery requests. (Reply at 120 n.100; 121 n.102.) In its surreply, the Commonwealth challenged any discovery requests as irrelevant, non-existent, and premature because no formal discovery motion had been filed. In [*12] a footnote, the Commonwealth stated that no discovery should be granted because the Batson claim is meritless and Rubino's notes are protected as attorney work product. (Surreply at 29 n.9.)

A brief examination of discovery procedures in habeas proceedings demonstrates that the Commonwealth's unexplained reference to the work product privilege - tucked in a footnote in a lengthy document filed years before any formal discovery request was made - is insufficient to claim the privilege. In habeas proceedings in the district courts, the initial disclosure rules regarding discovery do not apply. See Fed. R. Civ. P. 26(a)(1)(E)(ii). Rather, the district judge "may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." Rule 6(a) of the Rules Governing Section 2254 Cases; see Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (stating that prior court approval for discovery is required under Rule 6(a)). A party seeking discovery in a habeas proceeding must make specific requests and must provide reasons for the requests. See Rule 6(b). [*13]

Under the Federal Rules of Civil Procedure, as referenced in Rule 6(a), a party claiming that discovery material is privileged as work product "shall make the claim expressly and shall describe the nature" of the requested material. Fed. R. Civ. P. 26(b)(5). The party requesting such material bears the burden of showing that he "has substantial need of the materials" and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3). The district court, in ordering discovery of privileged materials, "shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories" of an attorney concerning the litigation. Id.

Here, in his discovery motion, Hardcastle made specific discovery requests, as described previously; he also provided reasons for those requests. In its sixteen-page response, the Commonwealth did not suggest that any document is protected from discovery by the work product privilege, much less "claim it expressly," as Rule 26(b)(5) requires. Because the Commonwealth did not properly claim [*14] the privilege, the District Court did not examine any of the documents to decide which portions (if any) were protected from discovery as work product. n2 Because the Commonwealth did not sufficiently claim the privilege, the District Court's August 18, 2004 discovery order is not immediately appealable under the collateral order doctrine. In the absence of an immediately appealable discovery order, we lack appellate jurisdiction. Accordingly, we will grant Hardcastle's motion and will dismiss the Commonwealth's appeal.

New Scholarship

A preview of Deborah Denno's Death Bed,Fordham Law Legal Studies Research Paper No. 908656, TriQuarterly Journal, Vol. 124, pp. 141-68, 2006 is now available from SSRN. Theabstractis below, thefull article is here.

Lethal injection is this country's primary method of execution, adopted for use by all but one of the thirty-seven death penalty states, as well as the federal government. It is predictable, then, that questions would arise the moment such a widely accepted form of punishment becomes especially vulnerable to an Eighth Amendment attack, as recent cases have shown. This article discusses this author's involvement as an expert in one of these cases, Baze v. Rees, which concerned a 2005 challenge to the constitutionality of lethal injection in Kentucky. While the Baze court upheld the constitutionality of Kentucky's lethal injection procedure, the opinion also revealed some extraordinary and unprecedented statements about the flaws of lethal injection as well as recommendations for how it should be improved. For example, the court found it cruel and unusual for the state's lethal injection protocol to enable an inmate's neck to be catheterized, a decision influenced by a department of corrections doctor who testified he would refuse to conduct the procedure, and that those who would were unqualified to do so. Baze is one of a series of opinions demonstrating that the more we know about how lethal injection is administered, the more problems we find with this means of execution.

One of the nagging questions institutionally in criminal law is that of innocence. Katherin Kruse, University of Nevada, Las Vegas, has "Instituting Innocence Reform: Wisconsin's New Governance Experiment" scheduled to appear in theWisconsin Law Review. FromSSRN:

The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The Wisconsin reforms in both areas allow - and in the area of eyewitness identification require - local agencies to adopt and periodically revisit the policies that govern their own practices in light of social scientific theory and in light of models developed in other jurisdictions.

Because of this institutional structure that delegates rule-making authority to local police agencies, Wisconsin's innocence reforms fit well within a new paradigm of regulatory jurisprudence called …"democratic experimentalism,‚� which eschews top-down regulation in favor of allowing general norms to be articulated and informed from the bottom up through a combination of benchmarking best practices and encouraging local experimentation within a regime of public accountability based on measurable outcomes. This article explores the Wisconsin experience as a case study within this new regulatory framework. It concludes that although Wisconsin's innocence reforms are promising, they lack an adequate institutional structure to sustain continued reform. In particular, their reliance on the enofrcing the new regulatory structure through the exclusionary rule in individual criminal cases will be inadequate to meet the goals of continuous improvement. However, the prospect of invoking the elaborate accountability structures of experimentalism faces similar challenges. A careful analysis of the process of legislative reform in Wisconsin - and the national reform networks within which it occurred - demonstrates that incremental reform designed to gain genuine buy-in among diverse criminal justice stakeholders on a local level may ultimately be a more fruitful approach. Although more ambitious experimentalist accountability structures may be counterproductive in the context of regulating police investigations, the experimentalist focus on information-pooling and cross-jurisdictional learning may prove important in a more incremental and loosely-structured reform process.

Scott Sundby has this article,The Death Penalty's Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factorappearing in theTexas Law Review, Vol. 84, 2006

Recently, several contradictory developments have appeared concerning the death penalty. On the one hand, some indicators suggest that the death penalty is on the wane. Annual death sentences, for instance, have dropped 60% from a post-Furman high in 1996, and the public is increasingly skeptical that the death penalty is being fairly applied (one recent poll found that 60% believe that an innocent person has been executed within the past five years).

Yet, writing a requiem for the death penalty may be premature. Despite an increasing recognition of the death penalty's problems, overall public support remains strong. Polls consistently find that two out of every three Americans still favor capital punishment, and no widespread legislative movement toward moratoria has materialized.

This Article explores the death penalty's future in light of these two crosscurrents. Relying on recent empirical findings and other developments, the Article finds that one must …"think small"‚� about what is happening with the death penalty in the courtroom. That is, the steady decline in death sentences over the past decade does not appear to represent a sweeping turn against the death penalty by the public. Rather, the decline can be attributed to the convergence of a number of factors that together have gradually trimmed back the imposition of death sentences.

The Article next asks how much of a further decline in death sentences is possible given that a majority of Americans currently embrace a core belief that the death penalty is the only justifiable punishment for certain crimes (what the Article terms the McVeigh Factor). The Article explores the possibility that a …"blockbuster"‚� event, such as DNA exoneration of someone who has been executed, might lead to moratoria and eventually abolition. It concludes, however, that the immediate future is most likely to be determined by the continued emergence of factors that affect individual cases, such as better defense attorneys, more representative juries, and greater incentives for prosecutors to accept non-capital outcomes.

I am consistently pleased that someone at Tarlton Law Library (UT-Austin Law)had the vision to consistently update on the latest published scholarship. They have done so again. As always, click on the article title below to view a .pdf file of its first page.

Author:Emens, Elizabeth F.

Title: Aggravating Youth: Roper v. Simmons and Age Discrimination

Citation:2005 The Supreme Court Review 51 (2005)

Topic statement:"Part I [of the Article] introduces the crime, the precedent, and the opinions in Simmons. Part II examines the majority's proportionality analysis, in which the Court concludes that youth's relevance in a given case should not be left to the jury. Part III applies these themes to the dispute between Kennedy and Scalia over how, in evaluating whether a national consensus opposes the juvenile death penalty, to count the states that have outlawed the death penalty altogether. Part IV speculates on how the idea of irrational judgments about rational classifications might inform the analysis of cases arising under another prophylactic legal rule based on age, the ADEA. Part V concludes."

Author:Kearns, Timothy S.

Title: Note, The Chair, the Needle, and the Damage Done: What the Electric Chair and the Rebirth of the Method-of-Execution Challenge Could Mean for the Future of the Eighth Amendment

Citation:15 Cornell Journal of Law and Public Policy 197 (2005)

Topic statement:"Using Nebraska's electric chair as a point of departure, this Note assesses the potentiality of an important shift in Eighth Amendment jurisprudence: a return to method-of-execution analysis. Part I summarizes the Supreme Court's treatment of the electric chair, from the first electrocution case, In re Kimmler, to the present. Part II discusses subsequent case law from the lower courts on electrocution and assesses its infirmities. Part III demonstrates that "the evolving standards of decency that mark the progress of maturing society" no longer support execution by electrocution. The Note concludes with thoughts on what the abolition of death by electrocution could mean to method-of-execution analysis and the death penalty in general."

Author:McCord, David

Title: Lightening Still Strikes: Evidence from the Popular Press that Death Sentencing Continues to Be Unconstitutionally Arbitrary More Than Three Decades AfterFurman

Citation:71 Brooklyn Law Review 797 (2005)

Topic statement:"Part I [of the Article] analyzes the legal forces that have formed the current death penalty system . . ., and proposes a four-part litmus test for non-arbitrariness [of imposition of the death penalty]. Part II, along with the Appendices, presents and analyzes factual evidence from the popular press. This Part collects the most complete roster of death-eligible cases resulting in sentences during calendar year 2004, together with the richest factual summaries that could be compiled from online news sources. . . . Part III considers whether a renewed Furmanargument stands any realistic prospect of acceptance by the Court. The conclusion is that the odds of acceptance are long -- but where there's life, there's hope."

Author:

Title: Symposium Panel Discussion, Catholics and the Death Penalty Panel Discussion

Citation:44 Journal of Catholic Legal Studies 297 (2005)

Topic statement:"This conversation is the first in a three-part series in which we set out to explore the topic "Catholics and the Death Penalty." . . . Our aim is to explore how lawyers who take the Church's teaching seriously have worked through the scope of its application in their work as lawyers in the criminal justice system. "

Author:Uelmen, Gerald F.

Title: Catholic Jurors and the Death Penalty

Citation:44 Journal of Catholic Legal Studies 355 (2005)

Topic statement:"This article will address four issues raised by the position of the Catholic Church opposing the use of the death penalty. First, can jurors be asked their religion? Is it a relevant question in jury selection? Second, can Catholics even serve as jurors in death penalty cases? Are they "death qualified" jurors within the meaning of Witherspoon v. Illinois, and Wainwright v. Witt, or can they be challenged and removed for cause? Third, will our system of preremptory challenges permit the systematic exclusion of Catholics from juries in death penalty cases without running afoul of the constitutional limits on the use of preremptory challenges to engage in unlawful discrimination? Finally, the question William F. Buckley, Jr., writing in the National Review, posed for Justice Antonin Scalia: Should Catholics allow their faith to affect their reasoning on whether a defendant should be executed?"

Author:Cody, Art C.

Title: Symposium, Introduction: The King's Good Servants: Catholics As Participants in Capital Litigation

Citation:44 Journal of Catholic Legal Studies 283 (2005)

Topic statement:"The three-part series Catholics and the Death Penalty explored the fundamental question of what it means to be a Catholic lawyer, juror, or judge in the American capital litigation system. . . . The series was not intended as a segmented debate regarding the general morality of the death penalty but rather as an exposition of the thoughts of those who take both their Catholicism and secular duties seriously. Three central issues arose during the course of the series. First, what is the Catholic Church's teaching on the death penalty? This issue, for the most part, can be resolved by a review of the Catholic Catechism, the writings of Pope John Paul II, and the pronouncements of the United States Catholic Conference ("USCC"). The second issue, far more contentious, is the question of what doctrinal weight should be ascribed to that teaching. Lastly, more practical reflections emerged regarding how to navigate potential conflicts between Catholic teaching and one's duties in the context of the American system of capital punishment."

Author:Hindson, Stephanie, Potter, Hillary, and Radelet,

Title: Race, Gender, Region and Death Sentencing in Colorado, 1980-1999

Citation:77 Colorado Law Review 549 (2006)

Topic statement:"This Article begins by providing a brief overview of the pre-Furman history of the death penalty in [Colorado]. . . . [The authors] then proceed in Part II to review some of the post-Furman research that has been conducted in different states on the issue of race and death sentencing. Similarly, in Part III [the authors] discuss recent research on gender disparities in modern death sentencing. Part IV then describes the methodology [ ] employed and data [ ] utilized to study the modern application of the death penalty in Colorado. Part V summarizes the results of [the] inquiries, first focusing on all cases where the death penalty was imposed, 1972-2005, and then on all cases where the death penalty was sought, 1980-1999. In this section, [the authors] compare cases in which the death penalty was sought with all homicides in the state. [The] conclusions are presented in Part VI. Overall, the data show that the death penalty is infrequently imposed in Colorado. Between 1972 and the end of 2005 it had been sought in over 100 cases and imposed in 21 cases. Of those 21 cases, only one inmate had been executed by the end of 2005 and two remained on death row. [The authors] conclude that this low rate of "success," from the perspective of the state, can only be described as a failed state policy. Equally distressing is [the] finding that the odds of seeking a death sentence were much higher for those suspected of killing whites than for those suspected of killing blacks or Hispanics, and much higher for those suspected of killing white women than for other homicide suspects in the 110 cases where the death penalty was sought between 1980 and 1999."

Author:Denno, Deborah W.

Title: The Scientific Shortcomings of Roper v. Simmons

Citation:3 Ohio State Journal of Criminal Law 379 (2006)

Topic statement:"In Roper v. Simmons, the United States Supreme Court held that the Eighth and Fourteenth Amendments prohibited the execution of persons younger than age eighteen at the time their crimes were committed. This Article's concern about Roper is not the result, because the holding makes good sense, but how the Court treats the case law and social science research that Roper references. For such a deep and important opinion, Roper is far too scanty, vague, and dated in explaining how and why modern science justifies the legal distinction between juveniles and adults. The opinion would have firmer precedential value had the Court provided more explicit guidance and citations to help direct future decision-making on comparable constitutional matters. . . . In order to discuss these points more fully, the [article] briefly examines[s] the research the Roper Court cites to justify the three distinctions between juveniles and adults."

Author:Haider, Aliya

Title: Roper v. Simmons: The Role of the Science Brief

Citation:3 Ohio State Journal of Criminal Law 369 (2006)

Topic statement:"This article discusses an amicus brief in Roper v. Simmons, written on behalf of the scientific community by a group of lawyers at a law firm in New York. To summarize, [the lawyers] relied on emerging scientific data for support to argue that the adolescent brain is not fully formed, and consequently, adolescent decision-making capacity and risk-taking behavior is far different than that of an adult. [The amicus team] did have a political position regarding the juvenile death penalty -- [they] were against it. [The team] harnessed the available research to the existing law and argued that the death penalty's goals of retribution and deterrence were not served by its application to juveniles. "

Author:Emens, Elizabeth F.

Title: Aggravating Youth: Roper v. Simmons and Age Discrimination

Citation:2005 The Supreme Court Review 51 (2005)

Topic statement:"Part I [of the Article] introduces the crime, the precedent, and the opinions in Simmons. Part II examines the majority's proportionality analysis, in which the Court concludes that youth's relevance in a given case should not be left to the jury. Part III applies these themes to the dispute between Kennedy and Scalia over how, in evaluating whether a national consensus opposes the juvenile death penalty, to count the states that have outlawed the death penalty altogether. Part IV speculates on how the idea of irrational judgments about rational classifications might inform the analysis of cases arising under another prophylactic legal rule based on age, the ADEA. Part V concludes."

Author:Kuhn, Pamela

Title: Case Comments, Victim Impact Statements in Capital Sentencing andHumphries v. Ozmint-- Do "Worthless" Defendants Pay a Higher Price?

Citation:32 New England Journal of Criminal Confinement 251 (2006)

Topic statement:"Part II will detail important Supreme Court cases related to victim impact statements, including Booth v. Maryland, South Carolina v. Gathers, and Payne v. Tennessee. Part III will discuss the Fourth Circuit's interpretation and application of the Paynedecision to Humphries, and how other courts have dealt with the use of such victim impact evidence. Part IV will analyze value-of-life comparisons in victim impact evidence and will show that comparative worth arguments are constitutionally unsound. Part V will discuss why value-of-life comparisons are more likely to result in disparate sentences for defendants in capital trials compared to other types of victim impact evidence. Part V will also discuss why comparative worth arguments punish "less valuable" victims along with "less valuable" defendants. This Part will also explain why comparative worth victim impact evidence does not further the goals of victims' rights advocates, but instead harms certain victims."

Author:Streib, Victor L.

Title: Rare and Inconsistent: The Death Penalty for Women

Citation:33 Fordham Urban Law Journal 609 (2006)

Topic statement:"Previous studies of the national landscape around the death penalty for women have identified and analyzed past themes and issues. This Article brings the analysis current through 2005, beginning with a reprise of conversations about gender bias and disparity in the death penalty system. It appears that female offenders have always been treated differently from male offenders in the death penalty system, sometimes for reasons that are easily justifiable but too often simply because of sex bias. The next section of this Article explores the current death penalty era, identifying those women who have been sentenced to death, those whose death sentences were reversed, those who were actually executed, and those still remaining on death row. National data reveal trends and patterns, as well as the death penalty states leading in this practice and the death penalty states that have never executed a woman. Finally, this Article explores the conclusions suggested by these data. In closing, specific means are identified by which death penalty jurisdictions can reconsider policies that result in sex-based disparities and can reduce those instances of sex bias in their death penalty systems."

Author:Rowe, Julie

Title: Note, Mourning the Untimely Death of the Juvenile Death Penalty: An Examination ofRoper v. Simmonsand the Future of the Juvenile System

Citation:42 California Western Law Review 287 (2006)

Topic statement:"The purpose of this Note is to explore and explain the Court's ruling in Roper v. Simmonsand to discuss the impact the case may have on future Eighth Amendment cases and the current juvenile justice system. Part II gives a history of the juvenile justice system in the United States and explores the development of the Court's analysis in past death penalty cases. Part III focuses on the Court's analysis in Roper, including both dissenting opinions. In Part IV, this Note analyzes the Court's holding in Roperand suggests how it may affect the juvenile justice system in the future. Part V concludes that as a result of Roper, states may change how juveniles are treated in the adult criminal system, and other adult sentences imposed on juveniles may be deemed unconstitutional. "

Author:Marceau, Justin F.

Title: Exploring the Intersection of Effectiveness & Autonomy in Capital Sentencing

Citation:42 California Western Law Review 183 (2006)

Topic statement:"This article contrasts a recent Ninth Circuit decision with a case currently pending before the court. In the first, Summerlin v. Schriro( Shriro II), the court rejected the prosecution's argument that counsel's failure to present mitigation evidence, though otherwise unreasonable, was constitutionally adequate because the client expressly rejected presenting mitigating evidence during the penalty phase. In Correll v. Shriro( Correll II), now pending before the Ninth Circuit, the prosecution argues that defense counsel's decision to forego presenting mitigating evidence during the penalty phase, without adequately consulting the client, was not constitutionally deficient insofar as deference is owed to the tactical decisions of the counsel. The facts of these cases provide an appropriate platform for discussing the constitutional significance of the client-centered and lawyer-centered models of representation. . . . Ultimately by contrasting the facts of Summerlin IIwith those of Correll II, this Article demonstrates that superficial presentations of either the lawyer-centered or the client-centered models are incapable of providing counsel with a constitutional escape-hatch for otherwise deficient representation. Unreasonable errors of strategy, whether driven by client preference or a misunderstanding of the principles of law at issue, are strategies only in name, and under Strickland v. Washington, an unreasonable strategy is no strategy at all."

THE SMALL PRINT

SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible athttp://capitaldefenseweekly.com/index.html.