This edition leads off with the Supreme Court's spectacular grant of relief in Wiggins v. Smith. While no mere excerpting of Wiggins can do justice to the importance of that decision, its reliance on the ABA standards for what competent counsel must do pursuant to their obligations can not be underscored. This reliance is even more important in light of the recent "racheting up" of the ABA's standards for what counsel must do in a capital case. Although other cases may have obtained more ink in the mainstream media, Wiggins is arguably the one case this term of greatest import to any practitioner with a capital case, at any level.

Joining Wiggins in the lead off cases this week is the Florida Supreme Court's decision in Marshall v. Florida. Marshall matters for its grant of an evidentiary hearing on the issue of juror misconduct. In the course of granting the hearing the Florida Supreme Court rounds up the law of juror misconduct & offers a concrete reason why counsel needs to investigate such claims.

In the lower courts, the Ninth Circuit handed an important victory in Rohan v. Gates when it held a federal habeas proceeding should be stayed when the petitioner becomes incompetent. The Ninth Circuit, likewise, in Alcala v. Woodford, granted relief on numerous issues including evidentiary matter and ineffective assistance of counsel. In Robbins v. Arkansas the Arkansas Supreme Court, ordering state post-convictin proceedings reopened citing, amongst other reasons, "it is now incumbent on the states to do a comprehensive state-court review in all death cases in order to eliminate the need for multiple federal habeas corpus proceedings." The Mississippi Supreme Court in Foster v. Mississippi has set out that state's mental retardation standards. The Oklahoma Court of Criminal Appeals in Fitzgerald v. Hanson, has held that the trial court erred in not allowing questioning, amongst other claims, of whether "potential jurors, including sitting jurors, would automatically impose the death penalty for malice murder." The Missouri Supreme Court in Missouri v. Barriner held that the trial court improperly excluded hair comparison evidence that tended to exonerated the accused.

The Supreme Court, not to be out done by the lower courts has issued a litany of opinions that have placed a check on the power of the state. In Stogner v. California, it ruled states may not extend the statute of limitations for certain crimes without offending the Constitution's Ex-Post Facto Clause, Art. I, section 10, cl. 1. In Lawrence v. Texas, in part relying on international law, held certaint intimate physical relationships are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. In Nguyen v. United States the Court reminds the lower judiciary Article IV territorial-court judges do not have authority to decide appeals. In Sell v. United States, the court placed severe checks on the administration of psychotropic drugs to render a petitioner competent.

A separate mailing relating to the "best of the death penalty web" will be sent out in the next few days.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

Amongst stays granted include the scheduled execution of Bobby Wayne Swisher in Virginia. The execution was stayed by Virginia's governor to allow Swisher's counsel to petition the Virginia Supreme Court over the penalty phase verdict form, which resembles one the Court has thrown out in a prior cases

The following execution dates are believed to be serious:

HOT LIST

Wiggins v. Smith, 02-311 (6/26/2003) Supreme Court grants relates and further explains its standards for ineffective assistance of counsel in a 7-2 opinion.

In this case, as in Strickland, petitioner’s claim stems from counsel’s decision to limit the scope of their investigation into potential mitigating evidence. Id., at 673. Here, as in Strickland, counsel attempt to justify their limited investigation as reflecting a tactical judgment not to present mitigating evidence at sentencing and to pursue an alternate strategy instead. In rejecting Strickland’s claim, we defined the deference owed such strategic judgments in terms of the adequacy of the investigations supporting those judgments:

“ [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id., at 690—691.

Our opinion in Williams v. Taylor is illustrative of the proper application of these standards. In finding Williams’ ineffectiveness claim meritorious, we applied Strickland and concluded that counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision to focus on Williams’ voluntary confessions, because counsel had not “fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background.” 529 U.S., at 396 (citing 1 ABA Standards for Criminal Justice 4—4.1, commentary, p. 4—55 (2d ed. 1980)). While Williams had not yet been decided at the time the Maryland Court of Appeals rendered the decision at issue in this case, cf. post, at 5 (Scalia, J., dissenting), Williams’ case was before us on habeas review. Contrary to the dissent’s contention, post, at 6, we therefore made no new law in resolving Williams’ ineffectiveness claim. See Williams, 529 U.S., at 390 (noting that the merits of Williams’ claim “are squarely governed by our holding in Strickland”); see also id., at 395 (noting that the trial court correctly applied both components of the Strickland standard to petitioner’s claim and proceeding to discuss counsel’s failure to investigate as a violation of Strickland’s performance prong). In highlighting counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same “clearly established” precedent of Strickland we apply today. Cf. Strickland, 466 U.S., at 690—691 (establishing that “thorough investigation[s]” are “virtually unchallengeable” and underscoring that “counsel has a duty to make reasonable investigations”); see also id., at 688—689 (“Prevailing norms of practice as reflected in American Bar Association standards and the like … are guides to determining what is reasonable”).

***

In their briefs to this Court, the State and the United States contend that counsel, in fact, conducted a more thorough investigation than the one we have just described. This conclusion, they explain, follows from Schlaich’s postconviction testimony that he knew of the sexual abuse Wiggins suffered, as well as of the hand-burning incident. According to the State and its amicus, the fact that counsel claimed to be aware of this evidence, which was not in the social services records, coupled with Schlaich’s statement that he knew what was in “other people’s reports,” App. 490—491, suggests that counsel’s investigation must have extended beyond the social services records. Tr. of Oral Arg. 31—36; Brief for United States as Amicus Curiae 26—27, n. 4; Brief for Respondents 35. Schlaich simply “was not asked to and did not reveal the source of his knowledge” of the abuse. Brief for United States as Amicus Curiae 27, n. 4.

In considering this reading of the state postconviction record, we note preliminarily that the Maryland Court of Appeals clearly assumed both that counsel’s investigation began and ended with the PSI and the DSS records and that this investigation was sufficient in scope to satisfy Strickland’s reasonableness requirement. See Wiggins v. State, 352 Md., at 608, 724 A. 2d, at 15. The court also assumed, erroneously, that the social services records cited incidences of sexual abuse. See id., at 608—609, 724 A. 2d, at 15. Respondents’ interpretation of Schlaich’s postconviction testimony therefore has no bearing on whether the Maryland Court of Appeals’ decision reflected an objectively unreasonable application of Strickland.

In its assessment of the Maryland Court of Appeals’ opinion, the dissent apparently does not dispute that if counsel’s investigation in this case had consisted exclusively of the PSI and the DSS records, the court’s decision would have constituted an unreasonable application of Strickland. See post, at 7. Of necessity, then, the dissent’s primary contention is that the Maryland Court of Appeals did decide that Wiggins’ counsel looked beyond the PSI and the DSS records and that we must therefore defer to that finding under §2254(e)(1). See post, at 7—14. Had the court found that counsel’s investigation extended beyond the PSI and the DSS records, the dissent, of course, would be correct that §2254(e) would require that we defer to that finding. But the state court made no such finding.

The dissent bases its conclusion on the Maryland Court of Appeals’ statements that “[c]ounsel were aware that appellant had a most unfortunate childhood,” and that “counsel did investigate and were aware of appellant’s background.” See post, at 3—4, 8 (quoting Wiggins v. State, supra, at 608, 610, 724 A. 2d, at 15, 16). But the state court’s description of how counsel learned of petitioner’s childhood speaks for itself. The court explained: “Counsel were aware that appellant had a most unfortunate childhood. Mr. Schlaich had available to him not only the pre-sentence investigation report . . . but also more detailed social service records.” See 352 Md., at 608—609, 724 A. 2d, at 15. This construction reflects the state court’s understanding that the investigation consisted of the two sources the court mentions. Indeed, when describing counsel’s investigation into petitioner’s background, the court never so much as implies that counsel uncovered any source other than the PSI and the DSS records. The court’s conclusion that counsel were aware of “incidences… of sexual abuse” does not suggest otherwise, cf. post, at 8, because the court assumed that counsel learned of such incidents from the social services records. Wiggins v. Corcoran, 352 Md., at 608—609, 724 A. 2d, at 15.

The court’s subsequent statement that, “as noted, counsel did investigate and were aware of appellant’s background,” underscores our conclusion that the Maryland Court of Appeals assumed counsel’s investigation into Wiggins’ childhood consisted of the PSI and the DSS records. The court’s use of the phrase “as noted,” which the dissent ignores, further confirms that counsel’s investigation consisted of the sources previously described, i.e., the PSI and the DSS records. It is the dissent, therefore, that “rests upon a fundamental fallacy,” post, at 7,–that the Maryland Court of Appeals determined that Schlaich’s investigation extended beyond the PSI and the DSS records.

We therefore must determine, de novo, whether counsel reached beyond the PSI and the DSS records in their investigation of petitioner’s background. The record as a whole does not support the conclusion that counsel conducted a more thorough investigation than the one we have described. The dissent, like the State and the United States, relies primarily on Schlaich’s postconviction testimony to establish that counsel investigated more extensively. But the questions put to Schlaich during his postconviction testimony all referred to what he knew from the social services records; the line of questioning, after all, first directed him to his discovery of those documents. His subsequent reference to “other people’s reports,” made in direct response to a question concerning petitioner’s mental retardation, appears to be an acknowledgement of the psychologist’s reports we know counsel commissioned

–reports that also revealed nothing of the sexual abuse Wiggins experienced. App. 349. As the state trial judge who heard this testimony concluded at the close of the proceedings, there is “no reason to believe that [counsel] did have all of this information.” Id., at 606 (emphasis added).

The State maintained at oral argument that Schlaich’s reference to “other people’s reports” indicated that counsel learned of the sexual abuse from sources other than the PSI and the DSS records. Tr. of Oral Arg. 31, 33, 35. But when pressed repeatedly to identify the sources counsel might have consulted, the State acknowledged that no written reports documented the sexual abuse and speculated that counsel must have learned of it through “[o]ral reports” from Wiggins himself. Id., at 36. Not only would the phrase “other people’s reports” have been an unusual way for counsel to refer to conversations with his client, but the record contains no evidence that counsel ever pursued this line of questioning with Wiggins. See id., at 24. For its part, the United States emphasized counsel’s retention of the psychologist. Id., at 51; Brief for United States as Amicus Curiae 27. But again, counsel’s decision to hire a psychologist sheds no light on the extent of their investigation into petitioner’s social background. Though Stejskal based his conclusions on clinical interviews with Wiggins, as well as meetings with Wiggins’ family members, Lodging of Petitioner, his final report discussed only petitioner’s mental capacities and attributed nothing of what he learned to Wiggins’ social history.

To further underscore that counsel did not know, prior to sentencing, of the sexual abuse, as well as of the other incidents not recorded in the DSS records, petitioner directs us to the content of counsel’s October 17, 1989, proffer. Before closing statements and outside the presence of the jury, Schlaich proffered to the court the mitigation case counsel would have introduced had the court granted their motion to bifurcate. App. 349—351. In his statement, Schlaich referred only to the results of the psychologist’s test and mentioned nothing of Wiggins’ troubled background. Given that the purpose of the proffer was to preserve their pursuit of bifurcation as an issue for appeal, they had every incentive to make their mitigation case seem as strong as possible. Counsel’s failure to include in the proffer the powerful evidence of repeated sexual abuse is therefore explicable only if we assume that counsel had no knowledge of the abuse.

Contrary to the dissent’s claim, see post, at 10, we are not accusing Schlaich of lying. His statements at the postconviction proceedings that he knew of this abuse, as well as of the hand-burning incident, may simply reflect a mistaken memory shaped by the passage of time. After all, the state postconviction proceedings took place over four years after Wiggins’ sentencing. Ultimately, given counsel’s likely ignorance of the history of sexual abuse at the time of sentencing, we cannot infer from Schlaich’s postconviction testimony that counsel looked further than the PSI and the DSS records in investigating petitioner’s background. Indeed, the record contains no mention of sources other than those it is undisputed counsel possessed, see supra, at 10. We therefore conclude that counsel’s investigation of petitioner’s background was limited to the PSI and the DSS records.

In finding that Schlaich and Nethercott’s investigation did not meet Strickland’s performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of Strickland. 466 U.S., at 689. We base our conclusion on the much more limited principle that “strategic choices made after less than complete investigation are reasonable” only to the extent that “reasonable professional judgments support the limitations on investigation.” Id., at 690—691. A decision not to investigate thus “must be directly assessed for reasonableness in all the circumstances.” Id., at 691.

Counsel’s investigation into Wiggins’ background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services records–evidence that would have led a reasonably competent attorney to investigate further. Counsel’s pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel’s decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland. Furthermore, the court partially relied on an erroneous factual assumption. The requirements for habeas relief established by 28 U.S.C. § 2254(d) are thus satisfied.

In order for counsel’s inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel’s failures prejudiced his defense. Strickland, 466 U.S., at 692. In Strickland, we made clear that, to establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694. In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence. In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.

The mitigating evidence counsel failed to discover and present in this case is powerful. As Selvog reported based on his conversations with Wiggins and members of his family, see Reply Brief for Petitioner 18—19, Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case. Petitioner thus has the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability. Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“ ‘[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background … may be less culpable than defendants who have no such excuse’ ”); see also Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (noting that consideration of the offender’s life history is a “ ‘part of the process of inflicting the penalty of death’ ”); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (invalidating Ohio law that did not permit consideration of aspects of a defendant’s background).

Given both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form. While it may well have been strategically defensible upon a reasonably thorough investigation to focus on Wiggins’ direct responsibility for the murder, the two sentencing strategies are not necessarily mutually exclusive. More-

over, given the strength of the available evidence, a reasonable attorney may well have chosen to prioritize the mitigation case over the direct responsibility challenge, particularly given that Wiggins’ history contained little of the double edge we have found to justify limited investigations in other cases. Cf. Burger v. Kemp, 483 U.S. 776 (1987); Darden v. Wainwright, 477 U.S. 168 (1986).

The dissent nevertheless maintains that Wiggins’ counsel would not have altered their chosen strategy of focusing exclusively on Wiggins’ direct responsibility for the murder. See post, at 17. But as we have made clear, counsel were not in a position to make a reasonable strategic choice as to whether to focus on Wiggins’ direct responsibility, the sordid details of his life history, or both, because the investigation supporting their choice was unreasonable. See supra, at 11—14. Moreover, as we have noted, see supra, at 13, Wiggins’ counsel did not focus solely on Wiggins’ direct responsibility. Counsel told the sentencing jury “you’re going to hear that Kevin Wiggins has had a difficult life,” App. 72, but never followed up on this suggestion.

We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence. In reaching this conclusion, we need not, as the dissent suggests, post, at 17—20, make the state-law evidentiary findings that would have been at issue at sentencing. Rather, we evaluate the totality of the evidence–“both that adduced at trial, and the evidence adduced in the habeas proceeding[s].” Williams v. Taylor, 529 U.S., at 397—398 (emphasis added).

In any event, contrary to the dissent’s assertion, it appears that Selvog’s report may have been admissible under Maryland law. In Whittlesey v. Maryland, 340 Md. 30, 665 A. 2d 223 (1995), the Maryland Court of Appeals vacated a trial court decision excluding, on hearsay grounds, testimony by Selvog himself. The court instructed the trial judge to exercise its discretion to admit “any relevant and reliable mitigating evidence, including hearsay evidence that might not be admissible in the guilt-or-innocence phase of the trial.” Id., at 73, 665 A. 2d, at 244. This “relaxed standard,” the court observed, would provide the factfinder with “the opportunity to consider ‘any aspect of a defendant’s character or record … that the defendant proffers as a basis for a sentence less than death.’ ” Ibid. See also Ball v. State, 347 Md. 156, 172—173, 699 A. 2d 1170, 1177 (1997) (noting that the trial judge had admitted Selvog’s social history report on the defendant). While the dissent dismisses the contents of the social history report, calling Wiggins a “liar” and his claims of sexual abuse “uncorroborated gossip,” post, at 18, 19, Maryland appears to consider this type of evidence relevant at sentencing, see Whittlesey, supra, at 71, 665 A. 2d, at 243 (“The reasons for relaxing the rules of evidence apply with particular force in the death penalty context”). Not even the State contests that Wiggins suffered from the various types of abuse and neglect detailed in the PSI, the DSS records, and Selvog’s social history report.

Wiggins’ sentencing jury heard only one significant mitigating factor–that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Cf. Borchardt v. Maryland, 367 Md. 91, 139—140, 786 A. 2d 631, 660 (2001) (noting that as long as a single juror concludes that mitigating evidence outweighs aggravating evidence, the death penalty cannot be imposed); App. 369 (instructing the jury: “If you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance does outweigh the mitigating circumstances, then consider whether death is the appropriate sentence”).

Moreover, in contrast to the petitioner in Williams v. Taylor, supra, Wiggins does not have a record of violent conduct that could have been introduced by the State to offset this powerful mitigating narrative. Cf. id., at 418 (Rehnquist, C. J., dissenting) (noting that Williams had savagely beaten an elderly woman, stolen two cars, set fire to a home, stabbed a man during a robbery, and confessed to choking two inmates and breaking a fellow prisoner’s jaw). As the Federal District Court found, the mitigating evidence in this case is stronger, and the State’s evidence in support of the death penalty far weaker, than in Williams, where we found prejudice as the result of counsel’s failure to investigate and present mitigating evidence. Id., at 399. We thus conclude that the available mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of Wiggins’ moral culpability. 529 U.S., at 398. Accordingly, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Marshall v. Florida, 2003 Fla. LEXIS 1056 (FL 6/12/2003) Evidentiary hearing ordered on juror misconduct.

Other jurisdictions, like Florida, are hesitant to interfere with the sanctity of juror deliberations years after trial. However, in cases like the instant case, where the alleged juror misconduct is discovered subsequent to direct appeal, courts have been more willing to inquire if the alleged misconduct, if true, would warrant a new trial. See, e.g., United States v. Jackson, 209 F.3d 1103 (9th Cir. 2000) (noting that defendant did not learn of factual predicate for juror misconduct claim until three years after trial).

Many of the cases have remanded the case for an evidentiary hearing to consider the alleged juror misconduct. See, e.g., Fullwood v. Lee, 290 F.3d 663, 680-82 (4th Cir. 2002) (remanding for evidentiary hearing on whether contact between juror and her husband throughout trial deprived defendant of a fair trial and had substantial and [*17] injurious effect on the verdict); Simmons v. Blodgett, 910 F. Supp. 1519 (W.D. Wash. 1996) (noting that state trial court held evidentiary hearing on juror misconduct claim based upon statement of juror made eight years after trial indicating that she read numerous newspaper articles about the case during trial), aff'd, 110 F.3d 39 (1997); People v. Hobley, 182 Ill. 2d 404, 696 N.E.2d 313, 339-41, 231 Ill. Dec. 321 (Ill. 1998) (holding capital defendant was entitled to an evidentiary hearing on his claim supported by four juror affidavits alleging jurors were intimidated by nonjurors at the hotel where they were sequestered); Campbell v. State, 130 Idaho 546, 944 P.2d 143, 144, 146 (Idaho Ct. App. 1997) (noting that trial court held postconviction evidentiary hearing on juror misconduct claim based upon information defendant obtained three years after he began to serve his sentence); State v. Williams, 253 Neb. 111, 568 N.W.2d 246, 251 (Neb. 1997) (noting that court previously withdrew execution warrant for trial court to hold an evidentiary hearing on petition for postconviction relief alleging juror [*18] misconduct, and that eleven of twelve jurors testified at evidentiary hearing).

Some courts have permitted deposition testimony by the jurors to be introduced at the evidentiary hearing. For example, in Massey v. State, 541 A.2d 1254 (Del. 1988), the defendant tried to impeach a jury verdict for alleged juror misconduct more than nine years after the verdict was rendered. After several postconviction relief motions and appeals, the trial court held an evidentiary hearing on the defendant's juror misconduct claim. At the evidentiary hearing, the complaining juror testified and the trial court admitted the deposition testimony of nine jurors. See id. at 1255. n8 Cf. Ex parte Greenville News, 326 S.C. 1, 482 S.E.2d 556, 557 (S.C. 1997) (noting that trial court permitted depositions of jurors relating to juror misconduct claim raised three years after conviction and death sentence were affirmed, founded on information received in anonymous phone call to defense counsel).

Although a direct appeal case, State v. Santiago, 245 Conn. 301, 715 A.2d 1 (Conn. 1998), is worth noting since it also involved a juror misconduct claimed premised on racial slurs being made by a juror. In Santiago, the Connecticut Supreme Court concluded that in all future cases in which a defendant alleges that a juror has made racial epithets, the trial court should conduct, at a minimum, "an extensive inquiry of the person reporting the conduct, to include the context of the remarks, an interview with any persons likely to have been a witness to the alleged conduct, and the juror alleged to have made the remarks." Id. at 22. In a separate opinion, Chief Justice Callahan expressed the following concerns:

Postconviction allegations of juror misconduct require the court to strike a delicate balance between the competing interests of the state and the defendant. Obviously, allegations of juror misconduct must be taken seriously at any stage of the proceedings and inquiry is always warranted. [State v. Brown, 235 Conn. 502, 668 A.2d 1288, 1305 (Conn. 1995)]. "After a jury verdict has been accepted, [however] other state interests emerge [*20] that favor proceedings limited in form and scope." Id. Specifically, we have identified those compelling state interests to include preserving the "finality of judgments . . . and in protecting the privacy and integrity of jury deliberations, preventing juror harassment and maintaining public confidence in the jury system." (Citations omitted.) Id. Certainly, there are circumstances in which these state interests must give way to the countervailing interest of the defendant. A defendant's right to a fair trial, an interest shared by the state, is one such interest. Our rule set forth in Brown, however, adequately addressed this concern. In Brown, we concluded that "the more obviously serious and credible the allegations, the more extensive an inquiry is required; frivolous or incredible allegations may be disposed of summarily." Id. An allegation of racial bias is perhaps the most serious of juror misconduct allegations. Pursuant to the rule adopted in Brown, the trial court always will be obliged to conduct an inquiry. Moreover, in light of the seriousness of the allegation, the court must err on the side of caution in the thoroughness of the inquiry. Once [*21] the allegation is found to be frivolous or incredible, however, there is no compelling reason to engage in a full evidentiary hearing.

In many cases alleging juror misconduct based on racial bias, it would be reasonable to conclude that the trial court abused its discretion if it failed to inquire of the accused juror or others who might have heard the alleged racist remarks. Every case is unique, however, and must be viewed individually. It is for this reason that, in Brown, we left the form and scope of the inquiry to the discretion of the trial court. In light of all of the evidence presented in this case, the trial court's inquiry was adequate because the court found the source of the allegations unbelievable and thus did not abuse its discretion in halting the inquiry when it did. The majority opinion discounts any consideration of factors that weigh in favor of the state, and instead tips the balance wholly in favor of the defendant, irrespective of the unbelievability of the allegations or the harm that might result from an unnecessary recall of the jurors.

There is no doubt that when racism rears its ugly head, it must be dealt with swiftly and surely to avoid its invidious [*22] effect. It is equally true, however, that when allegations of racism are found to be false and unfounded after an inquiry, the trial court should deal with them forthwith, lest they dilute the significance of legitimate allegations. Moreover, the finality of judgments and the legitimate expectation of jurors that their deliberations will be private and that they will not unjustly be made to defend against baseless charges or have their integrity impugned, weigh in favor of not continuing the investigation when the source of the allegation is completely discredited by the trier of fact. To give credence to [the juror's] meritless allegations in this case by establishing a per se rule that arbitrarily mandates a full evidentiary inquiry into the most baseless of assertions demeans, rather than enhances, our notions of justice.

Id. at 26-27 (Callahan, C.J., concurring in part and dissenting in part) (some alterations in original). Further, as noted by the Appellate Court of Illinois:

While we are aware of the difficulties the jurors may face in attempting to recall events which occurred years ago, and while we are reluctant to again interrupt the jurors' lives and involve them [*23] in additional court proceedings, those considerations do not outweigh the need to insure that the parties received a trial untainted by bias or extraneous information.

Taylor v. R.D. Morgan & Associates, Ltd., 205 Ill. App. 3d 682, 563 N.E.2d 1186, 1194, 151 Ill. Dec. 80 (Ill. App. Ct. 1990).

Based upon the analysis set out above, we conclude that the trial court erred in summarily denying Marshall's juror misconduct claim.

SUPREME COURT

Lawrence v. Texas, 02-102 (6/26/2003) Consensual intimate physical relationships are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Of special note is the court's use of international case law in reaching this decision.

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3—18.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement–“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … ,” 478 U.S., at 190–discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3—6.

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850. The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6—12.

(c) Bowers’ deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851–which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education–and Romer v. Evans, 517 U.S. 620, 624–which struck down class-based legislation directed at homosexuals–cast Bowers’ holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers’ holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855—856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12—17.

(d) Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. Pp. 17—18.

41 S. W. 3d 349, reversed and remanded.

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

Stogner v. California, 01-1757 (6/26/03) State's may not extend the statute of limitations for prosecuting sex-related child abuse under the Constitution's Ex-Post Facto Clause, Art. I, section 10, cl. 1.

In 1993, California enacted a new criminal statute of limitations permitting prosecution for sex-related child abuse where the prior limitations period has expired if, inter alia, the prosecution is begun within one year of a victim’s report to police. A subsequently added provision makes clear that this law revives causes of action barred by prior limitations statutes. In 1998, petitioner Stogner was indicted for sex-related child abuse committed between 1955 and 1973. At the time those crimes were allegedly committed, the limitations period was three years. Stogner moved to dismiss the complaint on the ground that the Ex Post Facto Clause forbids revival of a previously time-barred prosecution. The trial court agreed, but the California Court of Appeal reversed. The trial court denied Stogner’s subsequent dismissal motion, in which he argued that his prosecution violated the Ex Post Facto and Due Process Clauses. The Court of Appeal affirmed.

Held: A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. California’s law extends the time in which prosecution is allowed, authorizes prosecutions that the passage of time has previously barred, and was enacted after prior limitations periods for Stogner’s alleged offenses had expired. Such features produce the kind of retroactivity that the Constitution forbids. First, the law threatens the kinds of harm that the Clause seeks to avoid, for the Clause protects liberty by preventing governments from enacting statutes with “manifestly unjust and oppressive” retroactive effects. Calder v. Bull, 3 Dall. 386, 391. Second, the law falls literally within the categorical descriptions of ex post facto laws that Justice Chase set forth more than 200 years ago in Calder v. Bull, which this Court has recognized as an authoritative account of the Clause’s scope, Collins v. Youngblood, 497 U.S. 37, 46. It falls within the second category, which Justice Chase understood to include a new law that inflicts punishments where the party was not, by law, liable to any punishment. Third, numerous legislators, courts, and commentators have long believed it well settled that the Clause forbids resurrection of a time-barred prosecution. The Reconstruction Congress of 1867 rejected a bill that would have revived time-barred treason prosecutions against Jefferson Davis and others, passing instead a law extending unexpired limitations periods. Roughly contemporaneous State Supreme Courts echoed the view that laws reviving time-barred prosecutions are ex post facto. Even courts that have upheld extensions of unexpired statutes of limitations have consistently distinguished situations where the periods have expired, often using language that suggests a presumption that reviving time-barred criminal cases is not allowed. This Court has not previously spoken decisively on this matter. Neither its recognition that the Fifth Amendment’s privilege against self-incrimination does not apply after the relevant limitations period has expired, Brown v. Walker, 161 U.S. 591, 597—598, nor its holding that a Civil War statute retroactively tolling limitations periods during the war was valid as an exercise of Congress’ war powers, Stewart v. Kahn, 11 Wall. 493, 503—504, dictates the outcome here. Instead, that outcome is determined by the nature of the harms that the law creates, the fact that the law falls within Justice Chase’s second category, and a long line of authority. Pp. 3—26.

93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37, reversed.

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

Viginia v. Hicks, 02-371 (6/16/2003) The trespass policy in place at a low-income housing development owned by a political subdivision is not facially invalid under the First Amendment overbreadth doctrine.

The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owns and operates Whitcomb Court, a low-income housing development. In 1997, the Richmond City Council conveyed Whitcomb Court’s streets to the RRHA, in an effort to combat crime and drug dealing by nonresidents. In accordance with the terms of conveyance, the RRHA enacted a policy authorizing the Richmond police to serve notice on any person lacking “a legitimate business or social purpose” for being on the premises and to arrest for trespassing any person who remains or returns after having been so notified. The RRHA gave respondent Hicks, a nonresident, written notice barring him from Whitcomb Court. Subsequently, he trespassed there and was arrested and convicted. At trial, he claimed that RRHA’s policy was, among other things, unconstitutionally overbroad. The Virginia Court of Appeals vacated his conviction. In affirming, the Virginia Supreme Court found the policy unconstitutionally overbroad in violation of the First Amendment, because an unwritten rule that leafleting and demonstrating require advance permission vested too much discretion in Whitcomb Court’s manager.

Held: The RRHA’s trespass policy is not facially invalid under the First Amendment’s overbreadth doctrine. Pp. 4—11.

(a) Under that doctrine, a showing that a law punishes a “substantial” amount of protected free speech, “in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U.S. 601, 615, suffices to invalidate all enforcement of that law “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression,” id., at 613. Only substantial overbreadth supports such facial invalidation, since there are significant social costs in blocking a law’s application to constitutionally unprotected conduct. Pp. 4—6.

(b) This Court has jurisdiction to review the First Amendment merits question here. Virginia’s actual injury in fact–the inability to prosecute Hicks for trespass–is sufficiently distinct and palpable to confer Article III standing. Pp. 6—7.

(c) Even assuming the invalidity of the “unwritten” rule for leafleters and demonstrators, Hicks has not shown that the RRHA policy prohibits a substantial amount of protected speech in relation to its many legitimate applications. Both the notice-barment rule and the “legitimate business or social purpose” rule apply to all persons entering Whitcomb Court’s streets, not just to those seeking to engage in expression. Neither the basis for the barment sanction (a prior trespass) nor its purpose (preventing future trespasses) implicates the First Amendment. An overbreadth challenge rarely succeeds against a law or regulation that is not specifically addressed to speech or conduct necessarily associated with speech. Any applications of the RRHA’s policy that violate the First Amendment can be remedied through as-applied litigation. Pp. 7—10.

264 Va. 48, 563 S. E. 2d 674, reversed and remanded.

Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Breyer, J., joined.

Overton v. Bazzetta, 02-94 (6/16/2003) Prison regulations limiting visitations held to bear a rational relation to legitimate penological interests sufficient to sustain them.

Responding to concerns about prison security problems caused by the increasing number of visitors to Michigan’s prisons and about substance abuse among inmates, the Michigan Department of Corrections (MDOC) promulgated new regulations limiting prison visitation. An inmate may be visited by qualified clergy and attorneys on business and by persons placed on an approved list, which may include an unlimited number of immediate family members and ten others; minor children are not permitted to visit unless they are the children, stepchildren, grandchildren, or siblings of the inmate; if the inmate’s parental rights are terminated, the child may not visit; a child visitor must be accompanied by a family member of the child or inmate or the child’s legal guardian; former prisoners are not permitted to visit except that a former prisoner who is an immediate family member of an inmate may visit if the warden approves. Prisoners who commit two substance-abuse violations may receive only clergy and attorneys, but may apply for reinstatement of visitation privileges after two years. Respondents–prisoners, their friends, and family members–filed a 42 U.S.C. § 1983 action, alleging that the regulations as they pertain to noncontact visits violate the First, Eighth, and Fourteenth Amendments. The District Court agreed, and the Sixth Circuit affirmed.

Held:

1. The fact that the regulations bear a rational relation to legitimate penological interests suffices to sustain them regardless of whether respondents have a constitutional right of association that has survived incarceration. This Court accords substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining a corrections system’s legitimate goals and determining the most appropriate means to accomplish them. The regulations satisfy each of four factors used to decide whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge. See Turner v. Safley, 482 U.S. 78, 89—91. First, the regulations bear a rational relationship to a legitimate penological interest. The restrictions on children’s visitation are related to MDOC’s valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. They promote internal security, perhaps the most legitimate penological goal, by reducing the total number of visitors and by limiting disruption caused by children. It is also reasonable to ensure that the visiting child is accompanied and supervised by adults charged with protecting the child’s best interests. Prohibiting visitation by former inmates bears a self-evident connection to the State’s interest in maintaining prison security and preventing future crime. Restricting visitation for inmates with two substance-abuse violations serves the legitimate goal of deterring drug and alcohol use within prison. Second, respondents have alternative means of exercising their asserted right of association with those prohibited from visiting. They can send messages through those who are permitted to visit, and can communicate by letter and telephone. Visitation alternatives need not be ideal; they need only be available. Third, accommodating the associational right would have a considerable impact on guards, other inmates, the allocation of prison resources, and the safety of visitors by causing a significant reallocation of the prison system’s financial resources and by impairing corrections officers’ ability to protect all those inside a prison’s walls. Finally, respondents have suggested no alternatives that fully accommodate the asserted right while not imposing more than a de minimus cost to the valid penological goals. Pp. 4—9.

2. The visitation restriction for inmates with two substance-abuse violations is not a cruel and unusual confinement condition violating the Eighth Amendment. Withdrawing visitation privileges for a limited period in order to effect prison discipline is not a dramatic departure from accepted standards for confinement conditions. Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities or fail to protect their health or safety, or involve the infliction of pain or injury or deliberate indifference to their risk. Pp. 9—10.

286 F.3d 311, reversed.

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

Sell v. United States, 02-5664 (6/16/2003) Under certain circumstances a defendant may not be involuntarily administered anti-psychotic drugs to render a mentally ill defendant competent to stand trial.

A Federal Magistrate Judge (Magistrate) initially found petitioner Sell, who has a long history of mental illness, competent to stand trial for fraud and released him on bail, but later revoked bail because Sell’s condition had worsened. Sell subsequently asked the Magistrate to reconsider his competence to stand trial for fraud and attempted murder. The Magistrate had him examined at a United States Medical Center for Federal Prisoners (Medical Center), found him mentally incompetent to stand trial, and ordered his hospitalization to determine whether he would attain the capacity to allow his trial to proceed. While there, Sell refused the staff’s recommendation to take antipsychotic medication. Medical Center authorities decided to allow involuntary medication, which Sell challenged in court. The Magistrate authorized forced administration of antipsychotic drugs, finding that Sell was a danger to himself and others, that medication was the only way to render him less dangerous, that any serious side effects could be ameliorated, that the benefits to Sell outweighed the risks, and that the drugs were substantially likely to return Sell to competence. In affirming, the District Court found the Magistrate’s dangerousness finding clearly erroneous but concluded that medication was the only viable hope of rendering Sell competent to stand trial and was necessary to serve the Government’s interest in obtaining an adjudication of his guilt or innocence. The Eighth Circuit affirmed. Focusing solely on the fraud charges, it found that the Government had an essential interest in bringing Sell to trial, that the treatment was medically appropriate, and that the medical evidence indicated a reasonable probability that Sell would fairly be able to participate in his trial.

Held:

1. The Eighth Circuit had jurisdiction to hear the appeal. The District Court’s pretrial order was an appealable “collateral order” within the exceptions to the rule that only final judgments are appealable. The order conclusively determines the disputed question whether Sell has a legal right to avoid forced medication. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468. It also resolves an important issue, for involuntary medical treatment raises questions of clear constitutional importance. Ibid. And the issue is effectively unreviewable on appeal from a final judgment, ibid., since, by the time of trial, Sell will have undergone forced medication–the very harm that he seeks to avoid and which cannot be undone by an acquittal. Pp. 7—9.

2. Under the framework of Washington v. Harper, 494 U.S. 210, and Riggins v. Nevada, 504 U.S. 127, the Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Pp. 10—16.

(a) This standard will permit forced medication solely for trial competence purposes in certain instances. But these instances may be rare, because the standard says or fairly implies the following: First, a court must find that important governmental interests are at stake. The Government’s interest in bringing to trial an individual accused of a serious crime is important. However, courts must consider each case’s facts in evaluating this interest because special circumstances may lessen its importance, e.g., a defendant’s refusal to take drugs may mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment one who has committed a serious crime. In addition to its substantial interest in timely prosecution, the Government has a concomitant interest in assuring a defendant a fair trial. Second, the court must conclude that forced medication will significantly further those concomitant state interests. It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a defense. Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results. Fourth, the court must conclude that administering the drugs is medically appropriate. Pp. 10—14.

(b) The court applying these standards is trying to determine whether forced medication is necessary to further the Government’s interest in rendering the defendant competent to stand trial. If a court authorizes medication on an alternative ground, such as dangerousness, the need to consider authorization on trial competence grounds will likely disappear. There are often strong reasons for a court to consider alternative grounds first. For one thing, the inquiry into whether medication is permissible to render an individual nondangerous is usually more objective and manageable than the inquiry into whether medication is permissible to render a defendant competent. For another, courts typically address involuntary medical treatment as a civil matter. If a court decides that medication cannot be authorized on alternative grounds, its findings will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes. Pp. 14—16.

3. The Eighth Circuit erred in approving forced medication solely to render Sell competent to stand trial. Because that court and the District Court held the Magistrate’s dangerousness finding clearly erroneous, this Court assumes that Sell was not dangerous. And on that hypothetical assumption, the Eighth Circuit erred in reaching its conclusion. For one thing, the Magistrate did not find forced medication legally justified on trial competence grounds alone. Moreover, the experts at the Magistrate’s hearing focused mainly on dangerousness. The failure to focus on trial competence could well have mattered, for this Court cannot tell whether the medication’s side effects were likely to undermine the fairness of Sell’s trial, a question not necessarily relevant when dangerousness is primarily at issue. Finally, the lower courts did not consider that Sell has been confined at the Medical Center for a long time, and that his refusal to be medicated might result in further lengthy confinement. Those factors, the first because a defendant may receive credit toward a sentence for time served and the second because it reduces the likelihood of the defendant’s committing future crimes, moderate the importance of the governmental interest in prosecution. The Government may pursue its forced medication request on the grounds discussed in this Court’s opinion but should do so based on current circumstances, since Sell’s condition may have changed over time. Pp. 16—18.

282 F.3d 560, vacated and remanded.

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

Nguyen v. United States, 01-10873 (6/9/2003) Article IV territorial-court judges do not have authority to decide appeals.

Petitioners were tried, convicted, and sentenced on federal narcotics charges in the District Court of Guam, a territorial court with subject-matter jurisdiction over both federal-law and local-law causes. The Ninth Circuit panel convened to hear their appeals included two judges from that court, both of whom are life-tenured Article III judges, and the Chief Judge of the District Court for the Northern Mariana Islands, an Article IV territorial-court judge appointed by the President and confirmed by the Senate for a 10-year term. Neither petitioner objected to the panel’s composition before the cases were submitted for decision, and neither sought rehearing to challenge the panel’s authority to decide their appeals after it affirmed their convictions. However, each filed a certiorari petition claiming that the judgment is invalid because a non-Article III judge participated on the panel.

Held: The Ninth Circuit panel did not have the authority to decide petitioners’ appeals. Pp. 4—14.

(a) In light of the relevant statutory provisions and historical usage, it is evident that Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be “district judges” within the meaning of 28 U.S. C. §292(a), which authorizes the assignment of “one or more district judges within [a] circuit” to sit on the court of appeals “whenever the business of that court so requires.” As used throughout Title 28, “district court” means a “ ‘court of the United States’ ” “constituted by chapter five of this title.” §451. Among other things, Chapter 5 creates a “United States District Court” for each judicial district, §132(a), exhaustively enumerates the districts so constituted, §133(a), and describes “district judges” as holding office “during good behavior,” §134(a). Significantly, the District Court for the Northern Mariana Islands is not one of the enumerated courts, nor is it even mentioned in Chapter 5. See §133(a). Because that court’s judges are appointed for a term of years and may be removed by the President for cause, they also do not satisfy §134(a)’s command for district judges to hold office during good behavior. Although the Chief Judge of the District Court for the Northern Mariana Islands is literally a “district judge” of a court “within the [Ninth] [C]ircuit,” such a reading of §292(a) is so capacious that it would also justify the designation of “district judges” of any number of state courts “within” the Ninth Circuit. Moreover, historically, the term “United States District Court” in Title 28 has ordinarily excluded Article IV territorial courts, even when their jurisdiction is similar to that of an Article III United States District Court. E.g., Mookini v. United States, 303 U.S. 201, 205. Pp. 4—7.

(b) The Government’s three grounds for leaving the judgments below undisturbed are not persuasive. First, this Court’s precedents concerning alleged irregularities in the assignment of judges do not compel application here of the de facto officer doctrine, which confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment to office is deficient, Ryder v. United States, 515 U.S. 177, 180. Typically, the Court has found a judge’s actions to be valid de facto when there is a “merely technical” defect of statutory authority, McDowell v. United States, 159 U.S. 596, 601—602, but not when, as here, there has been a violation of a statutory provision that embodies weighty congressional policy concerning the proper organization of the federal courts, see, e.g., American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U.S. 372, 387. Second, for essentially the same reasons, it is inappropriate to accept the Government’s invitation to assess the merits of petitioners’ convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. Third, the Government’s argument that the presence of a quorum of two otherwise-qualified judges on the panel is sufficient to support the decision below is rejected for two reasons. The federal quorum statute, 28 U.S. C. §46(d), has been on the books (in relevant part essentially unchanged) for over a century, yet this Court has never doubted its power to vacate a judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See, e.g., United States v. American&nbhyph;Foreign S. S. Corp., 363 U.S. 685. Moreover, the statute authorizing courts of appeals to sit in panels, §46(b), requires the inclusion of at least three judges in the first instance. Although the two Article III judges who took part below would have constituted a quorum had the original panel been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. Thus, it is appropriate to return these cases to the Ninth Circuit for fresh consideration by a properly constituted panel. Pp. 7—14.

284 F.3d 1086, vacated and remanded.

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

CAPITAL CASES (Favorable Disposition)

Rohan v. Gates, 2003 U.S. App. LEXIS 12838 (9th Cir 6/25/2003) Federal proceedings stayed until the petitioner regains his competency.

Alcala v. Woodford, 2003 U.S. App. LEXIS 13039 (9th Cir 6/27/2003) Relief granted, both phases, on multiple issues.

We conclude, as did the district court, that the deficient presentation of Alcala's alibi and the exclusion of Dr. London's testimony was each on its own an error sufficiently prejudicial to grant Alcala's petition. When combined with the erroneous exclusion of Fallen, Crawford, and Vasquez, the erroneous admission of the Kane Kutlery knives, the deficient failure to prepare Vogel to testify, and the deficient failure to investigate the crime scene, the cumulative impact of these errors severely undermines our confidence in the jury's verdict. We affirm the conditional grant of Alcala's petition.

Foster v. Mississippi, 2003 Miss. LEXIS 294 (Miss. 6/19/2003) (dissent) Trial court directed to hold a hearing on the issue of mental retardation.

We find that Atkins is an intervening decision under Miss. Code Ann. § 99-39-27(9) (Supp. 2002), such that the procedural bars raised by the State, that of timeliness and successive application, are not applicable here. We further find that, under the Eighth Amendment as construed by the Supreme Court in Atkins, Foster is entitled to an evidentiary hearing on the issue of his alleged mental retardation. Foster has the burden of proof at the evidentiary hearing. See Miss. Code Ann. § 99-39-23(7) ("no relief shall be granted under this chapter unless the prisoner proves by a preponderance of the evidence that he is entitled to such").

After careful consideration we find that Foster should be granted leave to proceed in the trial court on the sole issue of whether he is mentally retarded such that he may not be executed under Atkins v. Virginia. To that end the standard or definition of mental retardation shall be that enunciated by the Supreme Court in Atkins, especially the American Psychiatric Association's definition of mental retardation. [*10] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV 39-46 (4th ed. 1994). We further hold that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. See id. at 683 (defining malingering as the "intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs). See also United States v. Battle, 235 F. Supp. 2d 1301, 1307 (N.D. Ga. 2001) (explaining MMPI and its validity scales and stating that "the MMPI is generally agreed to be difficult to cheat on without getting caught"). Foster must prove that he meets the applicable standard by a preponderance of the evidence pursuant to Miss. Code Ann. § 99-39-23(7). This issue will be considered and decided by the circuit court without a jury.

Robbins v. Arkansas, 2003 Ark. LEXIS 326 (Ark 6/12/2003) (dissent) Post-conviction proceedings ordered reopened to examine the trial court's use of a questionable jury verdict. Of special note is the following passage:

We are also mindful of the fact that it is now incumbent on the states to do a comprehensive state-court review in all death cases in order to eliminate the need for multiple federal habeas corpus proceedings. Arkansas Rule of Criminal Procedure 37.5 was adopted by this court and evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to 206 (Supp. 1999), and expressly recognizes this policy in favor of thorough state-court review. See Echols v. State, supra; Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Were this court to refuse to examine a claim that fundamental error was overlooked in a death case, where within the past eight years this court has reversed a death sentence for precisely that same error in the jury verdict [*18] forms, we would not be fulfilling our obligation to complete a thorough state review under our rules and state law.

Missouri v. Whitfield, 2003 Mo. LEXIS 105 (Mo 6/17/2003) Death sentence vacated as Ring prevents trial judges (who under Missouri law may impose death where the jury deadlocks 11-1) from imposing death without a unanimous jury verdict.

Russell v. Mississippi, 2003 Miss. LEXIS 297 (Miss 6/19/2003) (dissent) Hearing to determine if the defendant is mentally retarded ordered.

Fitzgerald v. Hanson, 2003 Okla. Crim. App. LEXIS 13;2003 OK CR 12 (Okla. Crim. App. 6/11/2003) "Hanson was not allowed to discover whether potential jurors, including sitting jurors, would automatically impose the death penalty for malice murder. When the trial court refused to excuse just such a biased juror, Hanson used a peremptory challenge to remove him and was forced to keep an unacceptable juror on the panel. We cannot determine whether Hanson should have been allowed to present his expert witness to present "risk assessment" evidence and rebut the allegation that he would be a continuing threat to society. The jury was not instructed on the elements of the continuing threat aggravating circumstance. As a consequence, the instructions failed to properly guide the jury's discretion. The jury did not hear Hanson's requested instruction on mitigating circumstances, which were supported by the evidence and were the focus of his case in mitigation; this effectively diminished his ability to present his case in mitigation to the jury. The jury heard improper victim impact evidence."

Thibault v. Florida, 2003 Fla. LEXIS 1072;28 Fla. L. Weekly S 486 (FL 6/26/2003) The trial court failed to conduct an adequate examination of whether the defendant "knowingly and intelligently" waived his right to jury sentencing.

United State v. Ferebe, 2003 U.S. App. LEXIS 12036 (4th Cir 2003) (dissent) Remand ordered in this pretrial matter as the district court applied an incorrect prejudice analysis in its adjudication of Ferebe's motion to strike the Death Notice. Remand also ordered to develop the record further

Siebert v. Campbell, 2003 U.S. App. LEXIS 12704 (11th Cir 6/23/2003) District court improperly held petitioner's habeas petition as untimely.

United States v. Moussaoui, 2003 U.S. App. LEXIS 12894 (4th Cir 6/26/2003) No jurisdiction had to review the district court's order permitting interviews with "enemy combatants" detained by the United States

Missouri v. Barriner, 2003 Mo. LEXIS 104 (Mo. 6/17/2003) The trial court clearly abused its discretion in excluding exculpatory evidence of hairs found at the crime scene that the State concedes do not belong to Barriner or either victim.

CAPITAL CASES (Unfavorable Disposition)

Trueblood v. Indiana, 2003 Ind. LEXIS 492 (Ind 6/12/2003) Application for stay denied since under the state constitution issues of clemency are left solely to the executive branch.

Hodges v. Florida, 2003 Fla. LEXIS 1062;28 Fla. L. Weekly S 475 (FL 6/19/2003) (dissent) Relief denied most notably on ineffectiveness claims relating to the failure to investigate and present mitigation, in conjunction with defense counsel's failure to object to a patently improper closing penalty phase argument.

California v. Carter, 2003 Cal. LEXIS 3957 (CA 6/19/2003) Errors held harmlessas to "the trial court's failure to admonish the jury pursuant to section 1122 [for jurors not to converse among themselves, or with anyone else, the events of the trial] and to reinstruct the jury with general evidentiary principles in the course of its penalty phase charge."

Shannon v. Texas, 2003 Tex. Crim. App. LEXIS 112 (Tex. Crim. App. 6/18/2003) DNA testing denied that may have disproved the defendant's culpability of an unadjudicated rape that had been used in the penalty phase to show future dangerousness.

Ziegler v. Alabama, 2003 Ala. Crim. App. LEXIS 147 (Ala. Crim. App. 6/27/2003) On return from remand, trial court's sentencing order affirmed as it "reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the mitigating circumstances, the trial court found that the aggravating circumstances."

Clark v. Alabama, 2003 Ala. Crim. App. LEXIS 170 (Ala. Crim. App. 6/27/2003) Rehearing denied.

Cunningham v. Thompson, 2003 Ore. App. LEXIS 724 (Ore. App 6/12/2003) "Petitioner's criminal trial counsel's failure to present impeachment evidence pertaining to [state's expert witness as to continuing threat] did not have a tendency to affect the outcome of petitioner's criminal trial."

Hicks v. Head, 2003 U.S. App. LEXIS 11811 (11th Cir 6/16/2003) Ake violations are amenable to harmless error analysis and the violation that occurred here held harmless.

Gall v. Scroggy, 2003 U.S. App. LEXIS 11904 (6th Cir 6/13/2003) (unpublished) Transfer of inmate from one state to finish his sentence on other charges in another jurisdiction despite a habeas discharge order upheld.

In re Johnson, 2003 U.S. App. LEXIS 11514 (5th Cir 6/10/2003) Motion to permit the filing of a successive petition denied to consider a mental retardation challenge to sentence.

Bell v. Ozmint, 2003 U.S. App. LEXIS 11643 (4th Cir 6/12/2003) Relief denied on claims relating to jurors "partying" with law enforcement who guarded the jury, at least one juror's family receiving threatening phone calls during the proceedings, racial prejudice in the decision to seek the death penalty, Batson, and IAC for failure request a charge that life meant at least 30 years before parole.

Henderson v. Cockrell, 2003 U.S. App. LEXIS 11454 (5th Cir 6/9/2003) Relief denied on claims relating to trial counsel's "failing to move for a mistrial at the close of the prosecution's case-in-chief; and, second, by failing to object to the admission of gang-related evidence during the guilt-innocence phase of trial." COA denied on claims that the prosecution knowingly presented perjured testimony and failed to disclose exculpatory information to the defense.

Davis v. Woodford, 2003 U.S. App. LEXIS 12747 (9th Cir 6/24/2003) Relief denied on issues of impermissible joinder, sufficiency of the evidence on premeditation, and ineffective assistance of counsel.

Murphy v. Texas, 2003 Tex. Crim. App. LEXIS 118 (Tex. Crim. App. 6/25/2003) Relief denied on claims relating to certain limitations on voir dire questioning, ineffectiveness for the manner in which strikes were used, whether the appeal should be held in abeyance until the trial court files findings of fact and conclusions of law as required by Article 38.22, the violation of the attorney-client privilege by the state's review of certain letters and papers written by the defendant to his attorneys, sufficiency as to venue, and failure to suppress a photo-lineup during the penalty phase.

Allen v. Texas, 2003 Tex. Crim. App. LEXIS 106 (Tex. Crim. App. 6/11/2003) Relief denied on challenges for cause of certain jurors, admission of certain inflammatory evidence, constitutionality of the mitigation special question, constitutionality of the lack of review of the special circumstances questions, and the geographic arbitrariness in the imposition of the death penalty in Texas.

California v. Jones, 2003 Cal. LEXIS 3541;2003 Cal. Daily Op. Service 5139 (CA 6/16/2003) Relief denied most notably on harmless error analysis as to (1) sustaining an objection to a question asking whether Najee Muslim had been accused of being the actual killer, and (2) refusing to reopen testimony to permit identification of photographs of Alan Murfitt and Eric Bailey. In the penalty phase, claims as to failure to give felony murder "intent to kill instruction" held also to be harmless.

Louisiana v. Clark, 2003 La. LEXIS 1933 (LA 6/27/2003) Relief denied most notably on issues of venue, threats of vigilante justice that cast a pall over the proceedings, and sufficiency of evidence as to the aggravators.

Ohio v. Williams, 2003 Ohio LEXIS 1648;2003 Ohio 3079 (Oh 6/17/2003) Successive motion to reopen appeal denied.

California v. Cox, 2003 Cal. LEXIS 3519;2003 Cal. Daily Op. Service 4892 (CA 6/9/2003) (dissent) Relief denied on claims including defense counsel's prior representation of some of the prosecution's witnesses, the state's reference to a polygraph, introduction of "guns" tangentially related to the crime, evidence of fear of the defendant, prosecutorial misconduct (both phases), absence of the defendant at read back, failing to instruct in the penalty phase on other crime evidence, penalty phase instructions misled the jurors as to their roles, lesser included offense instructions, and constitutionality of California's death penalty scheme.

In re Cox, 2003 Cal. LEXIS 3518; 2003 Cal. Daily Op. Service 4875 (CA 6/9/2003) (dissent) Relief denied, most notably, over the recantation of the state's key witness and a referee's finding that she fabricated key evidence.

Connecticut v. Breton, 2003 Conn. LEXIS 244 (Conn 6/24/2003) Relief denied on claims relating to newly discovered evidence; three judge panel's rejection of his mitigation claims, including EED; failure to consider cumulative impact of mitigation; use of mitigation to prove aggravation; failure of the three judge panel to articulate the basis of its findings, failure to grant a hearing on racial disparities; sufficiency of aggravators; whether the "cruel, heinous and depraved" aggravating factor is unconstitutionally vague; and whether the death penalty statute is unconstitutional.

Cooper v. Florida, 2003 Fla. LEXIS 1071 (FL 6/26/2003) Relief denied on claims relating to "(1) the State's misconduct before and during trial with regard to Paul Skalnik, a "jailhouse informant," unconstitutionally prejudiced his case; (2) the State did not properly comply with his public records requests under section 119.07 of the Florida Statutes; (3) his attorneys rendered constitutionally deficient representation at trial due to an actual conflict of interest or incompetence; (4) his attorneys provided him ineffective assistance of counsel by failing to present substantive evidence in mitigation; and (5) the circuit court erred in summarily denying various claims raised in his original rule 3.850 motion." Additionally, "Cooper avers that his appellate counsel's performance was constitutionally deficient because he failed to submit" numerous claims.

Duest v. Florida, 2003 Fla. LEXIS 1069 (FL 6/26/2003) Relief denied on issues relating to claims that: "(1) the testimony of the medical examiner in the resentencing constitutes undisclosed evidence which calls into doubt the reliability of the verdict at trial; (2) the denial of a defense motion to have the State disclose criminal records of out-of-state witnesses deprived him of due process; (3) the trial court's exclusion of evidence regarding Duest's alibi deprived him of his rights to confrontation and to present a defense; (4) the trial court erroneously excluded evidence and denied an instruction on residual doubt of guilt; (5) the trial court erroneously instructed the jury on the cold, calculated and premeditated aggravator and erroneously denied instructions on two mental mitigating circumstances; (6) the trial court erroneously precluded a defense mental health expert from testifying that mental mitigating factors were present; (7) the trial court erred in permitting the State to elicit testimony identifying Duest's prior convictions from the defense mental health expert; (8) the trial court erred in giving the jury recommendation great weight; (9) the trial court erroneously found that the killing was especially heinous, atrocious, or cruel, and erroneously refused to find two mental health mitigators; (10) the death sentence is unconstitutionally disproportionate; and (11) the death sentence violates the Sixth Amendment right to a trial by jury."

To be covered in the next edition.

Lewis v. Alabama, 2003 Ala. Crim. App. LEXIS 135 (Ala. Crim. App 5/30/2003)

McGahee v. Alabama, 2003 Ala. Crim. App. LEXIS 133 (Ala. Crim. App. 5/30/2003);

Martin v. Alabama, 2003 Ala. Crim. App. LEXIS 136 (Ala. Crim. App 5/30/2003)

Periata v. Alabama, 2003 Ala. Crim. App. LEXIS 137(Ala. Crim. App 5/30/2003)

Lee v. Alabama, 2003 Ala. Crim. App. LEXIS 166 (Ala. Crim. App. 6/27/2003)

NOTABLE NONCAPITAL CASES (from Findlaw.com & other sources)

French v. Jones, 2003 U.S. App. LEXIS 11555;2003 FED App. 0194P (6th Cir 6/11/2003) A defendant whose lawyer was not present when the trial judge gave a supplemental instruction to a deadlocked jury was without counsel during a critical stage of his trial, thus the district court correctly granted a petition for a writ of habeas corpus.

FOCUS

To return next edition but, there will be a special supplemental mailing.

OTHER RESOURCES

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

NEW VOICES: Leading Forensic Scientist Calls For Halt to Executions Because of Faulty DNA Testing

An editorial by Dr. Cyril H. Wecht, past president of the American Academy of Forensic Sciences, notes that crime labs are overwhelmingly backlogged with work and that deficiencies of personnel, space and equipment in forensic science labs often lead to shoddy practices and erroneous test results, as recently exemplified by the problems uncovered at the Houston Police Department DNA lab (see below). Dr. Wecht notes:

There can be little doubt in the minds of trained, experienced forensic scientists that testing defects, backlog pressures, inadequately qualified personnel, and prosecutorial bias exist in many other DNA labs even though they have not yet been uncovered and publicly reported.

. . .

Until these glaring deficiencies are identified, objectively reviewed, and carefully corrected, society cannot expect that justice will be served.

. . .

State lawmakers should carefully scrutinize DNA labs that use inferior testing methods that lead to inaccurate results. An immediate freeze on executions is essential until scrupulous federal and state reviews of all DNA labs have been accomplished. This is the only just way to proceed. Close attention to this critical problem will not only lower the risk of executing innocent people, it will also facilitate the capture and conviction of the guilty. (Emphasis added).

(Knight Ridder Tribune - Tallahassee Democrat, June 15, 2003) See New Voices

DNA Evidence Frees Three in New York

For nearly two decades, Dennis Halstead, John Kogut, and John Restivo maintained their innocence in the 1985 murder of 16-year-old Theresa Fusco. Although DNA testing in the 1990's cast doubt on their guilt, the men remained in jail in New York because a judge deemed the tests not reliable enough to overturn the convictions. Now the men have been freed from prison after prosecutors joined defense attorneys in asking a second judge to vacate the convictions based on more sophisticated DNA evidence showing that semen found on the victim's body was from another man. The new tests were conducted on behalf of The Innocence Project at the Cardozo School of Law in New York City, which uses DNA technology to help free the wrongly convicted, and Centurion Ministries of New Jersey. Following the release of Halstead, Kogut, and Restivo, district attorney Denis Dillon noted that the men didn't get a fair trial, but he said that the state is still considering whether it will retry the men for the murder. (New York Times, June 12, 2003). See Innocence.

NEW RESOURCE: Effective Assistance of Postconviction Counsel

An article in the Wisconsin Law Review, "The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel" by Celestine Richards McConville, examines the need for experienced and effective counsel during state and federal capital postconviction proceedings. The author notes that, "Despite the important role of postconviction counsel, the United States Supreme Court has held that criminal defendants seeking state postconviction relief possess no constitutional right to counsel. . . .As a result, the existence of any right to counsel in postconviction proceedings depends entirely on the federal and state legislatures." The article lists standards for determining qualified counsel, and it explores how the appointment of effective postconviction counsel can play a crucial role in ensuring accuracy and fairness in death penalty appeals. 2003 Wisconsin Law Review 31 (2003). See Law Reviews.

Ohio Governor Grants Clemency

Ohio Governor Bob Taft has granted clemency to Jerome Campbell, who was scheduled to be executed on June 27th for a 1988 murder in Cincinnati. The clemency, Taft's first since he took office, follows the recommendation of the state's Parole Board, which voted 6-2 in favor of clemency. Defense attorneys maintain that Campbell should be retried because a DNA test he requested from the state showed that blood on his gym shoes introduced as trial evidence was Campbell's own blood, not the victim's. The results marked the first time an Ohio prisoner obtained DNA test results through a state law that allows death row inmates to have DNA testing at the state's expense. In its recommendation, the Parole Board noted that jurors may have spared Campbell's life during his initial trial had they had the opportunity to consider the DNA information. (Associated Press, June 26, 2003). See Clemency.

Japanese Legislative Group Proposes Halt to Executions, Study

The Diet Members' League for Abolition of the Death Penalty, a parliamentary group of the governing Liberal Democratic Party, has drafted legislation to replace the death penalty with life in prison. In addition, the bill would establish panels in both Houses of the Diet to study capital punishment. The bill does not propose an immediate abandonment of capital punishment, but instead imposes a four-year moratorium on executions. During this time, the parliamentary panels would be charged with reaching a consensus on the abolition of capital punishment in three years.

In 2001, the Council of Europe adopted a resolution that threatened to review the observer status of Japan and the United States if the two countries failed to take steps toward abolishing the death penalty. (Japan Times, June 23, 2003) See International Death Penalty.

U.S. Supreme Court Rules Lawyers Failed Client, Voids Death Sentence

By a vote of 7-2, the U.S. Supreme Court has thrown out the death sentence of Maryland death row inmate Kevin Wiggins, ruling that his inexperienced attorneys failed to adequately represent him at trial. Wiggins' original lawyers made no attempt to inform members of the jury that sent Wiggins to death row that their client was repeatedly raped, beaten and denied food as a child, and that his mother burned his hands on the stove as punishment. In an opinion authored by Justice Sandra Day O'Connor, the Court said that if jurors knew the ghastly details of Wiggins' childhood, they might have chosen a life sentence for Wiggins. Wiggins, who is borderline mentally retarded, will now receive a new sentencing hearing. Justices O'Connor and Ruth Bader Ginsburg have publicly expressed qualms about the quality of legal help available to many people accused of murder. (Associated Press, June 26, 2003). See Supreme Court.

NEW RESOURCE: Report Reviews Prosecutorial Misconduct

"Harmful Error," a new report released by the The Center for Public Integrity, is the end product of an extensive two-year review of prosecutorial misconduct around the nation. The report notes that while many local prosecutors perform their difficult work admirably, inadvertent and intentional misconduct still permeates some district attorneys' offices. Among other pieces of valuable information contained in the report, "Harmful Error" documents cases in which prosecutorial misconduct played a role in convicting innocent defendants, many of whom were sentenced to death. (The Center for Public Integrity's Press Release, June 26, 2003). Read the report summary. Read the report. See also, Innocence.

FBI Report Reveals Murder Rate Rise in the South

According to the FBI's Preliminary Uniform Crime Report for 2002, the murder rate in the South increased by 2.1% while the murder rate in the Northeast decreased by almost 5%. The South accounts for 82% of all executions since 1976; the Northeast accounts for less than 1%. Read the report. (FBI Preliminary Uniform Crime Report 2002, June 16, 2003). See Deterrence.

Houston DNA Lab Investigation Prompts Calls for Recusal

As investigators continue to scrutinize the Houston Crime Lab's history of shoddy practices and inaccurate test results, including evidence in capital cases, an op-ed in the Houston Chronicle called for District Attorney Chuck Rosenthal and Houston Police Chief Clarence Bradford to recuse themselves from the investigation to ensure a fair review:

To date, District Attorney Chuck Rosenthal has refused to recuse himself from the investigation, instead insisting that his office can impartially investigate the wrongdoing, even though it is possible that his office may have known about the wrongdoing.

Like Rosenthal, Chief Bradford has also obstinately refused to acknowledge that an outside, independent investigator is called for. However, there is a specific reason that Rosenthal should recuse himself regardless of the fate that befalls Bradford. The DA's office has a significant and unmistakable conflict of interest in the matter because that office defends the reliability of the convictions and death sentences of death row inmates from Harris County. As a result of what we have learned about the crime lab, many of those inmates now have new and viable legal claims that are predicated on the failures of that lab. The DA's office simply cannot perform an impartial investigation while simultaneously opposing the legal efforts of those death row inmates.

(Op-ed, Houston Chronicle, June 20, 2003). See DPIC's report on Texas death penaty.

NEW VIDEO: "Burden of Proof" Calls for Moratorium on Executions in North Carolina

"Burden of Proof" is a 32-minute documentary detailing the need for a moratorium on executions in North Carolina. The video was prepared by New Context Video Productions and offers evidence to suggest that North Carolina's capital punishment system is badly broken and in need of a legislative review. (June 2003) Watch the video.

NEW VOICES: Akron Beacon Journal Calls for Death Penalty Review in Ohio

A recent editorial in The Beacon Journal notes that Ohio Supreme Court Justice Paul Pfeifer, who played a leading role in writing Ohio's death penalty statute 22 years ago when he was chair of the Senate Judiciary Committee, is now calling for passage of legislation to analyze the state's death penalty system. The review, which also has the endorsement of the Ohio State Bar Association, would create a Capital Case Commission to study the state's death penalty and make reform recommendations to ensure accuracy and fairness. The editorial concludes:

A Capital Case Commission would amount to a first step toward a thorough evaluation. Justice Pfeifer emphasized why the commission is "critically important." Ohio must have a system of the capital punishment that is "fair and just and equally applied to all" if it expects public confidence in criminal justice as a whole.

(The Beacon Journal, June 15, 2003) Read the editorial. See also, New Voices.

Juries Reject Death Penalty in Nearly All Federal Trials

Juries in 15 of the last 16 federal capital trials have declined to impose the death penalty, despite a more aggressive pursuit of this punishment by the Justice Department. Since President George Bush took office, 15% of the capital trials have resulted in death sentences, compared to 46% of cases in which the death penalty was sought from 1988 to 2000. Legal experts believe that overreaching by prosecutors and some jurors' growing unease with the death penalty may account for the trend. Former U.S. Attorney Alan Vinegrad noted, "It reflects that the tide is turning in this country with regard to attitudes about the death penalty. There has been so much publicity about wrongfully convicted defendants on death row that people sitting on juries are reluctant to impose the ultimate sanction." (New York Times, June 15, 2003) See Federal Death Penalty and Innocence.

Kentucky Governor To Commute Sentence of Juvenile Offender

Kentucky Governor Paul Patton said that he will commute the death sentence of Kevin Stanford, a juvenile offender whose 1989 case before the U.S. Supreme Court resulted in a ruling allowing the execution of those who were 16 or 17-years-old at the time of their crime. This will be the first time Patton has commuted a death sentence since he took office, and he noted in his announcement that the justice system "perpetuated an injustice" in Stanford's case. Stanford has been on Kentucky's death row for two decades for a murder he committed when he was 17. During that time, his case has served as a cornerstone in the national debate about the execution of juvenile offenders. Patton is still considering whether he will commute the sentence to life in prison without the possibility of parole or to a lesser sentence. (Herald-Leader, June 19, 2003) See Juvenile Death Penalty.

NEW RESOURCE: "Last Meal" Details Prisoners' Final Meals, Words

In "Last Meal," Jacquelyn C. Black recreates the last acts of 23 people executed in Texas. Photographs depicting each inmate's last meal are accompanied by descriptions of the inmates, and transcripts of their last words before execution. The book also contains general information about the death penalty. Award-winning director Liz Garbus notes, "This powerful and disturbing book gives invaluable insight into the inhumanity of the death penalty, while providing a snapshot of the humanity and individuality of those on death row." (Common Courage Press, 2003) See more information about the book. See Resources.

NEW RESOURCE: Forced Medication of Legally Incompetent Prisoners

In "Forced Medication of Legally Incompetent Prisoners: A Primer," Kathy Swedlow uses cases such as Singleton v. Norris to examine the legal background and heated debate surrounding the issue of involuntary treatment of death row prisoners to make them sane enough for execution. Swedlow notes that many of those who support capital punishment find the holding in Singleton (which allows forcible medication) unsettling. She concludes that "even assuming Singelton's guilt, the forcible medication and execution of an incompetent defendant . . . should no longer be permitted." (Human Rights, American Bar Association, Spring 2003) See Resources.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).