Decisions from the Fifth and Ninth Circuits lead off this edition. In Hayes v. Brown the Ninth Circuit, sitting en banc, holds that the prosecution failed to correct their witness's statement that felony charges had not been dismissed in exchange for testimony. The prosecution had, however, previously agreed to dismiss felony charges. The Hayes Court finding error further holds, in light of the state's claimed procedural defense, that for purposes of Teague the governing rule of constitutional law forbidding use of false testimony for purposes of Teague was announced previously in Mooney (1935), Pyle (1942), and Alcorta (1957), well before Hayes's trial.

The Fifth Circuit, explicitly noting the drubbing it has taken by the Supreme Court grants relief in Bigby v. Dretke on "Penry II" style jury instructions. Holding that the jury instruction is on all fours with Penry II the Court holds the jury instruction impermissibly muted the jury's ability to impose a sentence less than death. In dicta the Bigby Court appears to severely undercut several prior panel holdings concerning "double-edged" mitigation.

Three other cases also deserve some extra attention. In Johnson v. State the Alabama Court of Criminal Appeals holds that bad acts evidence (404(b) evidence in most jurisdictions) needs a a limiting instruction so that a jury isn't tempted, such as here, to convict merely on those bad acts. The Alabama Court of Criminal appeals, in one of the more outrageous opinions in recent months, upholds imposition of a juvenile death sentence in Loggins v. State on a technicality. Finally, the Oklahoma Court of Criminal Appeals denies relief in Slaughter v. State on actual innocence claims relating to the debunking of bullet lead comparison, favorable DNA testing and favorable brain fingerprinting.

In Ohio Derrick Jamison has walked off of death row after it was brought to light that the state withheld evidence of his innocence. In Texas, the scheduled execution of Pablo Melendez appears to have been stayed for similar concerns about innocence. Likewise in Texas, a LWOP bill appears headed to the floor of the state senate. In New Mexico a much watched death penalty repeal bill, however, died in Senate Committee after having won passage in the lower house.

Focus this Week covers a law review note I overlooked last summer when it was published. Focus offers introductory portions of A MEANINGLESS RITUAL? THE DUE PROCESS MANDATE FOR THE PROVISION OF COMPETENT COUNSEL IN ARKANSAS CAPITAL POST-CONVICTION PROCEEDINGS, 38 U.S.F. L. Rev. 749, by Megan Rosichan, a third year law student. The Note makes a very straight forward argument that state statutes can create a right to "effective" counsel in post-conviction proceedings.

As always, thanks for reading. - k

On the net at http://capitaldefenseweekly.com/archives/050314.htm

Recently Killed

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11 William Powell North Carolina

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18-22 Vernon Evans Jr. Maryland

20 Douglas Roberts Texas

21 Bill Benefiel Indiana

28 Mario Centobie Alabama

Leading Cases

Hayes v. Brown, 2005 WL 517853 (9th Cir 3/7/2005) (en banc) (dissent) Relief granted, en banc, on state's failure to correct witnesses statement that he had not had felony charges dismissed in exchange for testimony. Relief not barred by Teague.

Bigby v. Dretke, 2005 WL 540048 (5th Cir 3/8/2005) Relief granted on "Penry II error," as sentencing instruction failed to allow jury to give effect to mitigating evidence and stripped it of any vehicle for expressing a reasoned moral response to the appropriateness of the death penalty in this case.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Johnson v. State, 2005 WL 563992 (Ala.Crim.App. 3/11/2005) Bad acts evidence should not have been admitted without a limiting instruction; "in this case the jury may have, without having been instructed otherwise, based its conviction on its belief that Johnson is a person of bad character, we cannot say that Johnson received a fair trial."

Burns v. Warden of Sussex I State Prison, 2005 WL 564114 (Va 3/11/2005) Remand for mental retardation hearing.

Keenan v. Bagley, 2005 WL 549098 (6th Cir 3/10/2005) Remand ordered for an evidentiary hearing on equitable tolling.

Decisions Upholding Death

Loggins v. State, 2005 WL 563988 (Ala.Crim.App. 3/11/2005) Finding a technicality to bar relief, imposition of juvenile death penalty upheld.

Slaughter v. State, 2005 WL 562759 (Okla.Crim.App. 3/10/2005) Petitioner's third application for post-conviction relief, motion for evidentiary hearing, motion for discovery, and motion for stay of execution denied, including claims relating to bullet lead comparison, DNA and brain fingerprinting.

Mathis v. Dretke, 2005 WL 580234 (5th Cir 3/11/2005) COA denied on claims relating to "five errors: that (1) the refusal to conduct a live evidentiary hearing in the state habeas proceeding violated his due process rights and interfered with the district court's ability to perform its function under § 2254; (2) the trial court violated his constitutional rights by refusing to give an instruction of manslaughter with respect to the killing of Daniel Hibbard; (3) the trial court erred in failing to conduct a competency hearing sua sponte at trial; (4) the prosecution violated his due process rights by withholding impeachment evidence relating to the State's witness Gregory Jackson; and (5) his trial counsel's representation at trial was ineffective and resulted in actual prejudice at his trial and sentencing."

Hill v. Mitchell, 2005 WL 525231 (6th Cir 3/8/2005) Relief denied most notably on trial counsel's "failure to hire a mitigation psychologist until the day before the mitigation hearing constituted ineffective assistance of counsel." However, "even assuming that the delay in hiring this psychologist amounted to objectively defective lawyering, we agree with the district court that Hill has not shown that the delay prejudiced the penalty phase of his trial—first because the mitigation theory that the psychologist did present (that Hill was suffering from cocaine psychosis at the time of the murder) did not differ in material ways from the one that would have been presented with more preparation and, second, because nine psychological and background assessments of Hill had already been undertaken by the time the mitigation psychologist had been hired and all of them were submitted to the jury during the sentencing hearing."

People v. Vieira, 2005 WL 517326 (Cal 3/7/2005) Relief denied, save for one of multiple death sentences. The count on which relief was granted relating to the imposition of death for a conspiracy to commit murder count, a noncapital offense.

State v. Stephenson, 2005 WL 551938 (Tenn.Crim.App. 3/9/2005) Relief denied at resentencing on issues including: (1) double counting of aggravators; (2) failure to charge aggravators in indictment; (3) failure to suppress defendant's statement; (4) admission of testimony from prior trial; (5) admission of certain physical & testimonial evidence; (6) mention of polygraph by the state; (7) prosecution's inflammatory closing; (8) use of victim impact instruction on the facts of the case; (9) refusal to charge on parole eligibility; (10) breaking of juror sequestration; and (11) jurisdiction of trial court to hold a resentencing hearing.

People v. Smith, 2005 WL 549550 (Cal 3/10/2005) Relief denied on claims relating to: (1) failure to remove two jurors under People v. Wheeler; (2) testimony by a state's psychologist that acts like those at issue were generally committed by sexual sadists; (3) admission of newspaper articles found relating to child abuse that were found in Appellant's home; (4) admission of expert testimony concerning the experience of child victims of violent sexual assaults; (5) there is no penalty phase burden of persuasion that would require burden of proof instruction, and (6) People's reference to Hitler in closing argument was not misconduct.

Jordan v. State, 2005 WL 552382 (Miss. 3/10/2005) Post-conviction relief denied on claims relating to: (1) evidence relating to blood splatter and the state's “execution-style” theory; (2) ineffective assistance of counsel relating to (a) blood splatter; (b) jury instructions, including HAC; (c) mental health evaluation; and (3) fundamental fairness as of "all the inmates sentenced to death prior to the change of law announced in Jackson v. State (Miss. 1976), he is the only one who remains on death row. All the other ultimately received a life sentence."

Hodges v. State, 2005 WL 552210 (Miss 3/10/2005) Relief denied on claims including (1) inflammatory cross by the State; (2) State's penalty phase closing; (3) admission of prior crimes evidence at sentencing; (4) claims of ineffective assistance of counsel at all stage of prosecution; (5) failure to accurately instruct on parole eligibility; (6) failure to adequately charge capital murder in indictment; (7) improper removal of cause; (8) admission of, and bad instructions relating to, "other crimes" evidence; (9) failure to give lesser included charges despite defense request; (10) sufficiency of kidnapping charge; (11) double counting of aggravators; and (12) avoiding arrest aggravators

Dickson v. Dretke, 2005 WL 477986 (N.D.Tex. 3/1/2005) Report and recommendation stating relief should be denied.

Excerpts from Leading Cases

Hayes v. Brown, 2005 WL 517853 (9th Cir 3/7/2005)(en banc)(dissent) Relief granted, en banc, on state's failure to correct witness statement that he had not had felony charges dismissed in exchange for testimony.

To convict Hayes of felony murder, the jury had to decide whether Hayes murdered Patel "as a result of the commission of" a burglary. Thus, a pivotal question before the jury was whether Hayes had formed the intent to burglarize the office before killing Patel. The State's theory was that Hayes had lured Patel into the motel room for the purpose of murdering him so that Hayes could burglarize the motel's office. Hayes's theory was that a spontaneous fight occurred when Patel arrived at the motel room. Hayes contended that James was the one who initiated the office burglary after Hayes had come over to James's room to get a ride away from the motel after the killing.

Thus, by any measure, James was a key witness. Indeed, there is little doubt that James's testimony was the centerpiece of the prosecution's case. Nearly all of the other evidence against Hayes was circumstantial. James was the only witness who testified that Hayes confessed to the murder and the burglary. The importance of this testimony cannot be understated. As the Supreme Court has observed: "A confession is like no other evidence. Indeed, 'the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.' " Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)).

Most importantly, James's testimony was critical to the State's burglary case, which was essential to both the first-degree murder conviction and the sentence. James testified that he went directly to his car without going to the office, that he did not participate in the burglary, and that the stolen property had already been placed in the car by Hayes. Hayes testified that he told James that he had killed Patel, that James went to investigate, and that Hayes next saw James burglarizing the office. Hayes's version of events was partially corroborated by another occupant of the motel, Bearla May Wyatt, who testified that she saw James carrying things to Hayes's car, "like he was moving out of an apartment." The only witness other than James who testified that Hayes had spoken about a burglary was James's girlfriend, Michele Gebert. However, she provided contradictory and confusing testimony, first denying on direct examination that Hayes had said anything about burglarizing the office, then testifying on redirect that he had. Most of Gebert's information came from James, and she provided her version of events only after she and James had discussed it for many hours, deciding what to do.

*13 The importance of James's testimony was underscored by the prosecution in its closing argument, as it was in the defense closing. As defense counsel put it: "In this case, you can only conclude that Blufford committed a robbery or a burglary if you believe Andrew James beyond a reasonable doubt."

In sum, James's testimony and credibility were crucial to the State's case. Without it, there was only circumstantial evidence of the burglary, and only inference as to whether Hayes killed Patel "as a result of the commission of" a burglary. That, coupled with the testimony about James's moving items to the car, easily "could have affected the judgment of the jury." Belmontes, 350 F.3d at 881 (citation and internal quotation marks omitted). Thus, under Napue and Alcorta, the false evidence presented was material to both the murder conviction and the imposition of the death penalty, and the habeas petition must be granted.

That the false evidence presented by the State dealt only with credibility does not change the materiality calculus. Noting that "[i]t is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt," 360 U.S. at 269, 79 S.Ct. 1173 (internal quotation marks omitted), the Supreme Court stated in Napue:

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.

Id. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court reversed a conviction for Mooney-Napue error because the State had failed to disclose a promise made to its key witness that he would not be prosecuted if he testified for the government. Id. at 154-55, 92 S.Ct. 763.

It also does not matter that James was subject to impeachment on the basis of his transactional immunity, drug addiction, and criminal record. As the Supreme Court noted in Napue:

[W]e do not believe that the fact that the jury was apprised of other grounds for believing that the witness ... may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one.

360 U.S. at 270, 79 S.Ct. 1173. For the jury's determination of James's credibility, James's past criminal record and drug history were of little import, given that Gebert, Hayes, and James were all drug users with clouded histories. James's credibility was measured in comparison to his peers. James's transactional immunity was of no value because there was never any danger or suggestion that James would be charged in connection with this case. Unbeknownst to the jury, what was critical to James was immunity from prosecution for the pending felony charges. That was the factor that had made James reluctant to talk to the police in the first instance. Although James was not expressly told of the deal, it is quite evident that James should have known that something was afoot, because it was otherwise not logical for him to agree to be flown from Florida voluntarily into a jurisdiction in which he was facing outstanding charges. Yet, thanks to the careful machinations of the prosecution, James could deny the existence of any deal.

*14 The disclosure of an additional, secret deal would not have been merely cumulative impeachment. It would have demonstrated that the State was going to great lengths to give James a powerful incentive to testify favorably, to the point of letting him go free on unrelated felony charges. Presumably, the importance to the State's case of James's testimony is what initially led the prosecution to make the secret deal; likewise, the importance to James's credibility of his false testimony regarding the absence of a deal is what led the prosecution to endeavor to keep that deal secret. Thus, the State achieved the desired effect of artificially bolstering James's credibility without taking the more overtly unconstitutional step: having James testify affirmatively, but falsely, that there was no deal protecting him from prosecution of other crimes.

If the jury had been informed of the critical deal, James's credibility would have been affected. The jury was not permitted to assess whether James had an expectation of favorable treatment that could have affected his testimony because the State affirmatively placed false evidence before the jury that there was no deal. See Campbell v. Reed, 594 F.2d 4, 7 (4th Cir.1979) (noting that the fact that the defendant "was not aware of the exact terms of the plea agreement only increases the significance, for purposes of assessing credibility, of his expectation of favorable treatment").

James would not have testified without the secret deal in place, because he was out of subpoena range and would not have been available for trial but for his agreement to be flown in for trial by the prosecution. Without the testimony of James, an entirely different trial would have occurred. If James had known of the secret deal and had testified about it, he would have been subject to impeachment--not only on the existence of the favorable deal, but also on the State's attempts to keep the deal from the jury. The State could not have falsely buttressed his credibility before the jury. Thus, the violation of Napue was material.

The violation of the State's independent duty under Alcorta and Pyle was also material, perhaps even more so. To avoid violating Hayes's due process rights by allowing false evidence to go uncorrected, the State would have been forced to disclose to the jury after James testified that James's testimony concerning the lack of a deal was false; that a secret deal was in place concerning prosecution for the other crimes; and that the State had solicited James's testimony to the contrary knowing that he would be providing false evidence. Such a disclosure would have had a devastating effect on the credibility of the entire prosecution case. It would have affected not only the special circumstance verdict, but also the jury's ultimate decision to impose the penalty of death. See, e.g., Silva v. Woodford, 279 F.3d 825, 855 n. 25 (9th Cir.2002) (noting in a capital case that "whatever doubts the jury may have entertained about [the defendant's] culpability as a result of the undermining of [the key witness's] credibility may also have affected their assessment of the appropriate penalty to impose").

*15 Thus, Hayes has satisfied the Napue/Alcorta/Agurs materiality standard, namely, whether there was any reasonable likelihood that the presentation of the false testimony or failure to correct the record once the false evidence was presented "could have affected the judgment of the jury." Belmontes, 350 F.3d at 881 (citation and internal quotation marks omitted). The due process violations have undermined our confidence in the verdict. Because the constitutional error was material, we must reverse the district court and direct the court to grant Hayes's petition for a writ of habeas corpus.

Bigby v. Dretke, 2005 WL 540048 (5th Cir 3/8/2005) Relief granted on "Penry II error." Sentencing instruction didn't permit jury to give effect to mitigating evidence.

We now turn to Bigby's contention concerning the constitutionality of the jury instructions given by the trial judge at the sentencing phase. Bigby argues that the jury instructions impermissibly restricted the jury's consideration of mitigating circumstances in violation of the Supreme Court's decisions in Penry I and Penry II. In Penry I, the Court held that Penry's Eighth Amendment rights were violated because the jury was inadequately charged with respect to mitigating evidence at Penry's sentencing hearing. At the conclusion of the hearing, the jury was instructed to answer three "special issues": (1) whether the conduct that caused the death of the victim was committed deliberately and with a reasonable expectation that death would result; (2) whether there was a probability that the defendant would commit acts that would constitute a continuing threat to society; and (3) whether the conduct was an unreasonable response to any provocation by the victim. The Supreme Court held that none of these special issues were broad enough to allow the jury to consider and give effect to the mitigating evidence offered by Penry that he was mentally retarded and had been severely abused as a child.

The Supreme Court emphasized that its ruling was not a "new rule" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court held that "at the time Penry's conviction became final, it was clear from [Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)] and [Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)] that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty." Penry I, 492 U.S. at 318, 109 S.Ct. 2934. However, the Court reaffirmed its holding in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), which upheld the constitutionality of the Texas death penalty sentencing scheme against an Eighth Amendment challenge. Id. at 315. Jurek dismissed a facial challenge to the Texas death penalty statute but reasoned that the statute's constitutionality "turns on whether the enumerated questions allow consideration of particularized mitigating factors." 428 U.S. at 272, 96 S.Ct. 2950. Penry I held that in certain cases, Texas' statutory special issues, as applied, did not give the jury sufficient opportunity to consider and give effect to the mitigation evidence without appropriate additional instructions. Penry I, 492 U.S. at 318, 109 S.Ct. 2934. Additional instructions informing the jury that it could consider and give effect to the defendant's mitigation evidence are required where the evidence was not relevant to the special issue questions or had relevance to the defendant's moral culpability beyond the scope of the special issues questions, and the jury was otherwise unable to express its reasoned moral response to that evidence in rendering its sentencing decision. Id. at 322-29, 109 S.Ct. 2934.

On remand, Penry was again found guilty, and the state court instructed the jury to answer the same three special issues given at his first trial. The jury was also admonished that a "yes" answer to any of the special issues was warranted only if supported by the evidence "beyond a reasonable doubt," while a "no" answer is appropriate only if there is a reasonable doubt that the answer to the special issues should be "yes." In addition, the court also provided a "supplemental instruction" indicating that when the jury deliberated on the special issues, it was to consider mitigating issues, if any, presented by the evidence. The instruction provided as follows:

*13 If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigation evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues. Penry II, 532 U.S. at 797-798, 121 S.Ct. 1910.

The verdict form contained only the text of the three special issues, however, and gave the jury the choice of only answering "yes" or "no." The jury again answered all of the special issues "yes" and Penry was given the death penalty.

In Penry II, the Supreme Court ruled that this supplemental instruction provided "an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence." 532 U.S. at 790, 121 S.Ct. 1910. The Court stated that because Penry's mitigating evidence did not fit within the scope of the special issues, answering the special issue questions in the manner prescribed on the verdict form was both logically and ethically impossible. Id. at 799, 121 S.Ct. 1910. Specifically, the Court noted that instructing the jury to answer the special issues "yes" only if supported by the evidence "beyond a reasonable doubt," while at the same time instructing the jury that it could ignore these guidelines and answer one or more of the special issues "no" in order to give effect to any mitigating evidence presented by Penry, made the jury charge as a whole internally contradictory and placed jurors in an impossible situation. In effect, the instruction allowed the jurors to change one or more "truthful 'yes' answers to an untruthful 'no' answer in order to avoid the death sentence for Penry." Id. Thus, if the jury desired to answer one or more of the special issues untruthfully to give credence to the mitigating evidence presented by Penry, they would have had to violate their oath to render a "true verdict." Id. at 800, 121 S.Ct. 1910 (internal quotation marks and citation omitted). The supplemental instruction thus inserted an element of capriciousness into the sentencing decision, making the jurors' power to avoid the death penalty dependent on their willingness to elevate the supplemental instruction over the verdict form instructions. Id.

After concluding that the supplemental instruction given Penry's jury was inadequate, Justice O'Connor further explained that a "clearly drafted catchall instruction on mitigating evidence ... might have complied with Penry I." Id. at 803, 121 S.Ct. 1910. The Court used as a model the supplemental instruction drafted by the Texas legislature after Penry I, and after Penry's remand trial. The Court noted that this supplemental instruction, currently required by the Texas Criminal Procedure Code to be given in capital cases, provided a "helpful frame of reference." Id. This instruction reads as follows:

*14 The court shall instruct the jury that if the jury returns an affirmative finding to each [of the first two special issues], it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. TEX.CRIM. PROC.CODE ANN. § 37.071(2)(e)(1) (Vernon Supp.2004).

The Court observed that Penry's defense counsel conceded that he would have a difficult time arguing that this instruction did not comply with Penry I. The Court then concluded that "[a]t the very least, the brevity and clarity of this instruction highlight the confusing nature of the supplemental instruction actually given, and indicate that the trial court had adequate alternatives available ...." Id. at 803, 121 S.Ct. 1910.

Recently, in Smith v. Texas, --- U.S. ----, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), the Supreme Court again confronted substantially similar jury instructions as those present in Penry II, and the Court again held that the jury instructions were unconstitutional. Although the supplemental instruction in Smith was not identical to the one given in Penry II, the Smith Court stated that the distinctions were constitutionally insignificant. Smith, 125 S.Ct. at 406. The instruction in Smith read in relevant part as follows:

You are instructed that you shall consider any evidence which, in your opinion, is mitigating .... You may hear evidence which, in your judgment, has no relationship to any of the Special Issues, but if you find such evidence is mitigating under these instructions, you shall consider it in the following instructions of the Court. You, and each of you, are the sole judges of what evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those which have no relationship to any of the Special Issues, deserves. In answering the Special Issues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are "Yes," and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues "No" in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, your are further instructed that the State of Texas must prove beyond reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you. Smith, 125 S.Ct. at 402-03.

As in Penry II, the Court found that the jury was faced with the ethical dilemma of either answering the special issue questions in a manner prescribed on the verdict form and ignoring the supplemental instruction, or answering the questions as prescribed by the supplemental instruction which necessarily meant ignoring the verdict form instructions. Id. As in Penry II, the problem presented itself because Smith's mitigation evidence of organic learning disabilities and speech handicaps at an early age, a low IQ, and a drug addicted criminal father apparently did not fit within the scope of the special issues. Id. at 407 ("And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented.")

*15 The Supreme Court's rulings in Penry II and Smith should not be read to disturb its earlier holdings affirming the constitutionality of Texas' statutory death penalty sentencing scheme. See Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; see also Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993); Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); In re Kunkle, 398 F.3d 683, 2005 WL 151917 (5th Cir. Jan.20, 2005). The Court has found a supplemental instruction, like the one present in Bigby's trial, to be unconstitutional only where the special issue questions themselves are not broad enough to provide a vehicle for the jury to give effect to the defendant's mitigation evidence. Robertson v. Cockrell, 325 F.3d 243, 258 (5th Cir.2003) (finding that where the Texas special issues allow the jury to give mitigating effect to the proffered evidence, the presence of the supplemental instruction cannot constitute error). When the jury is able to consider and give effect to the mitigation evidence in imposing sentence, the special issue questions are constitutionally adequate. Penry II, 532 U.S. at 797, 121 S.Ct. 1910 (quoting Johnson, 509 U.S. at 381, 113 S.Ct. 2658 (O'Connor, J., dissenting) ("[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances")). Thus, in considering a Penry II claim, the court must ask whether the evidence is beyond the effective reach of the jury.

We are aware of the precedent in this Circuit that evidence that a petitioner was suffering from schizophrenia at the time of the crime may be considered under the first interrogatory; or alternatively, that mitigation evidence of schizophrenia may be considered under the future dangerousness special issue, if the schizophrenia can be controlled or goes into remission. However, we find those cases to be distinguishable. In Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998), the petitioner essentially tried to put forth an insanity defense during sentencing after initially asserting his innocence at trial. 132 F.3d at 1082 ("One expert further explained that if Lucas had committed the Orange Socks murder, then at the time of the act '[h]e would have been psychotic, meaning out of touch with reality, out of control over his impulses, over his drives ... insane.' "). The Lucas court held that a sentencer could give effect to that testimony under the first interrogatory since it went to whether he acted deliberately when he committed the murder. Although Bigby's history of mental illness was relevant to whether he acted deliberately, it also spoke to his moral culpability. Importantly, Bigby's evidence indicated that his schizophrenia was chronic and severe, caused him to suffer delusions with respect to the actions and motivations of the people around him, could not be adequately treated, and significantly impacted his interpersonal relationship abilities. Inquiry into whether Bigby acted deliberately fails to fully account for the potential impact such a debilitating condition may have upon the jury's perception of Bigby's moral responsibility for his crimes. Thus, as in Penry I, the first interrogatory did not adequately allow the jury to consider the effect of this evidence upon Bigby's personal culpability. [FN7] Id. at 322-23, 109 S.Ct. 2934.

Furthermore, although this Circuit has previously held that mitigation evidence of mental illness could be considered within the context of the second special issue, future dangerousness, if the illness can be controlled or go into remission, see e.g., Lucas, 132 F.3d 1069; see also Hernandez v. Johnson, 248 F.3d 344 (5th Cir.2001), Bigby's mitigation evidence indicated that his condition cannot be adequately controlled or treated. Bigby averred that his mental condition prevented him from being able to conform his behavior. Even after being in the controlled environment of jail for some time, Bigby irrationally tried to take the trial court judge hostage in the presence of armed bailiffs. His behavior also required him having to be restrained during trial. The defense psychiatrist testified that the outburst was not unexpected because medication was not sufficient to control his behavior and thinking. In short, Bigby's evidence that his mental disorders made it difficult for him to avoid criminal behavior has the same "double-edged sword" quality as Penry's evidence that he was unable to conform his conduct to the law.

*16 [22] The special issues and supplemental instruction given at the conclusion of Bigby's sentencing hearing are almost identical to those discussed in Penry II and Smith. [FN8] In the present case, Bigby's jury was given the following supplemental instruction:

If you find that there are an mitigating circumstances, you must decide how much weight they deserve and give them that effect you believe to be appropriate when you answer the Special Issues. If you decide, in consideration of the evidence, if any, that a life sentence, rather than a death sentence, is a more appropriate response to the personal moral culpability of the defendant, or if you have a reasonable doubt thereof, you are instructed then to answer any special issues, to which such mitigating circumstances apply, and under consideration "no."

Like the supplemental instructions in both Penry II and Smith, this instruction ties the jury's consideration of Bigby's mitigating evidence to the special issues. Specifically, it instructs the jury that if they find the mitigating evidence sufficient to warrant a life sentence rather than the death penalty, they must answer any special issues "to which such mitigating circumstances apply" in the negative. Thus, the instruction effectively shackled and confined the jury within the scope of the special issues. As we have found, these issues failed to allow the jury to give effect to Bigby's mitigating evidence. Further, even if the jury understood the instruction as directing them to "nullify" their answers to the special issues, they still would have faced the ethical dilemma of violating their oath to render a "true verdict" by providing false answers to the special issues in order to give effect to Bigby's mitigating evidence and comply with the supplemental instruction. Finally, the instruction given Bigby's jury lacks the "brevity and clarity" of the instruction provided in the Texas Criminal Procedure Code.

Because we discern no meaningful distinction between the charges given in Penry II and Smith, and those given in the instant case, we find that Bigby has demonstrated that the contested jury instructions stripped the jury of a vehicle for expressing its "reasoned moral response" [FN9] to the appropriateness of the death penalty. In short, the same constitutional infirmities criticized by the Supreme Court in Penry II and Smith are present in Bigby. Accordingly, since the decision of the Texas Court of Criminal Appeals is contrary to clearly established federal law, we reverse the district court's denial of Bigby's application for COA with regard to his jury instruction claim, vacate his sentence, and remand this case to the district court for entry of an order granting Bigby habeas relief on his Penry claim and setting aside his sentence.

Focus

<>A Note that I seemingly overlooked when it was first published is the "Focus" this week. Specifically, a teaser that asks the question,A MEANINGLESS RITUAL? THE DUE PROCESS MANDATE FOR THE PROVISION OF COMPETENT COUNSEL IN ARKANSAS CAPITAL POST-CONVICTION PROCEEDINGS, 38 U.S.F. L. Rev. 749, by Megan Rosichan, a third year law student. The Note lays down some common sense arguments about why, in certain circumstances, there is a right to competent post-conviction counsel.

LEDELL LEE'S LAWYER was drunk during Mr. Lee's state post-conviction hearing. [FN1] Under Arkansas law, during state habeas proceedings to conduct a comprehensive review of his death sentence, Mr. Lee was allegedly entitled to competent counsel. [FN2] Mr. Lee's lawyer was, however, so intoxicated that counsel for the State of Arkansas made the following request to the court:

Your Honor, I don't take this lightly, but with regard to [Mr. Lee's counsel's] performance in Court today, I'm going to ask that the Court require him to submit to a drug test. I don't think that he's, he's not, he's just not with us. He's reintroduced the same items of evidence over and over again. He's asking incoherent questions. His speech is slurred. He stumbled in the Court Room. As a friend of the Court, and I think it's our obligation to this Court and to this Defendant that he have competent counsel here today, and I don't--That's just my request of the Court, Your Honor. [FN3]

*750 The judge rejected this request and, not surprisingly, denied Mr. Lee's petition for state post-conviction relief from his death sentence. [FN4]

Mr. Kemp's post-conviction counsel did not seek funding, available to him under Arkansas law, for an investigator or mitigation specialist. Timothy Kemp's appointed post-conviction counsel, despite meeting Arkansas's qualifications for appointment, neither independently reviewed Mr. Kemp's case nor conducted an independent investigation of his post-conviction claims. [FN5] Rather, he delegated this responsibility to Mr. Kemp's trial counsel, the very attorney whose ineffectiveness at trial may have been a potential claim for relief. [FN6][FN7] As a result, Mr. Kemp's post-conviction counsel never discovered trial counsel's deficient investigation of Mr. Kemp's background, which included evidence that Mr. Kemp suffered from fetal alcohol syndrome, brain damage, and had suffered severe abuse as a child. [FN8] None of this evidence was presented to the trial jury as mitigation on Mr. Kemp's behalf. [FN9] Such evidence, had Mr. Kemp's post-conviction attorney discovered it, would have supported a claim of ineffective assistance of trial counsel. Ultimately, another attorney, not appointed by the court, prepared Mr. Kemp's post-conviction petition, which the appointed counsel only signed. [FN10] Prior to submitting a seven page post-conviction petition, Mr. Kemp's post-conviction counsel met him only once. During that meeting they never discussed which issues to raise in the petition. [FN11] The Arkansas Supreme Court denied Mr. Kemp's petition for relief on all grounds. [FN12]

Riley Noel's appointed state post-conviction counsel simply failed to raise claims of ineffective assistance of trial counsel in state post-conviction proceedings on Mr. Noel's behalf. During Mr. Noel's trial his attorney failed to couch objections in constitutional terms when *751 the prosecution, for example, repeatedly called Mr. Noel a "psychopath." [FN13] Such deficient representation may have given rise to a claim of ineffective assistance of counsel. Mr. Noel's appointed post-conviction counsel, however, did not assert this as a basis for relief in his state post-conviction proceedings. [FN14] As a result, when Mr. Noel's attorney attempted to raise an ineffective assistance of counsel claim against Mr. Noel's trial counsel in federal habeas corpus proceedings, the federal district court could not consider the claim because of Mr. Noel's state post-conviction counsel's failure to raise the claim in the prior state post-conviction proceedings. [FN15] Riley Noel died by lethal injection administered by the State of Arkansas on July 9, 2003 without ever having a federal court adjudicate on the merits all of his possible claims for relief from his death sentence.

The United States Supreme Court has held that the Constitution does not mandate the provision of counsel and thus effective assistance of counsel in state post-conviction proceedings. [FN16] Therefore, defendants like Mr. Lee, Mr. Kemp, and Mr. Noel, regardless of the quality of representation that they in fact receive in their state post-conviction proceedings, are unable to raise claims of ineffective assistance of post-conviction counsel. Many states, however, including Arkansas, statutorily mandate the provision of competent counsel in state post-conviction proceedings. [FN17] This Comment argues, first, that because the State of Arkansas statutorily mandates the appointment of competent counsel for indigent persons under sentence of death in its post-conviction proceedings, such counsel must provide effective assistance. Second, this Comment concludes that those under sentence of death in Arkansas who fail to receive the competent counsel to which they are entitled under state law have been deprived of due process of law under the Supreme Court's holding in Hicks v. Oklahoma. [FN18] Those defendants, therefore, may raise a claim that their due process rights have been violated when they received ineffective assistance of state post-conviction counsel.

*752 The result of ineffective assistance of state post-conviction counsel and the seeming inability to raise such a claim is dire. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), [FN19] state post-conviction proceedings are supposed to provide a comprehensive review of a defendant's death sentence. [FN20] Death-sentenced persons such as Mr. Lee, Mr. Kemp, and Mr. Noel, however, whose counsel failed to raise claims in state post-conviction proceedings, are in almost all cases barred from raising such claims in federal habeas corpus proceedings. [FN21] The inability to do so is difficult to overstate because federal courts are the forum in which a defendant stands the greatest chance of garnering relief from a death sentence. [FN22]

Part I of this Comment presents background regarding the scope of the right to counsel and the concomitant right to the effective assistance of counsel as articulated by the United States Supreme Court. Part II first examines state post-conviction proceedings in general and the provision of counsel in such proceedings under Arkansas law. Part II then discusses the impact of the denial of effective assistance of counsel in Arkansas state post-conviction proceedings. Finally, Part III argues that the mandatory provision of competent counsel in Arkansas's post-conviction proceedings gives rise to an enforceable right to the effective assistance of counsel. This right is such that when a death-sentenced person does not receive the effective assistance that he is entitled to receive under state law, he has been deprived of due process of law under the Supreme Court's decision in Hicks. Ultimately, this Comment concludes that those under sentence of death in Arkansas who receive ineffective assistance of post-conviction counsel, appointed pursuant to Arkansas law, may raise claims in both state and federal court that the State's failure to provide them with their statutorily entitled effective assistance amounts to a deprivation of due process of law in violation of the Fourteenth Amendment to the United States Constitution. [FN23]

*753 I. The Constitutional Right to Counsel and Effective Assistance of Counsel

The evolution of the Supreme Court's right to counsel jurisprudence did not begin in earnest until 1932. In Powell v. Alabama, [FN24] a group of young African-Americans were convicted of rape and sentenced to death in a lynch-mob atmosphere without the aid of appointed counsel. [FN25] In Powell, discussing the importance of the right to counsel, the Supreme Court stated:

[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. To hold otherwise would be to ignore the fundamental postulate . . . "that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard." [FN26]

The Court's articulation of the right to counsel and the fundamental importance of receiving not just counsel, but the effective assistance of counsel, continued to expand in the years following Powell. Despite the expansion of this right, however, the Supreme Court has thus far refused to hold that those under sentence of death are entitled to counsel, and thus effective assistance of counsel, in state post-conviction proceedings.

Under the Supreme Court's current jurisprudence, whether a criminal defendant has a right to counsel and a right to the effective assistance of counsel is dependent upon the posture of the defendant's case. This is true whether the crime at issue is a capital or non-capital crime. The Sixth and Fourteenth Amendments to the United States Constitution guarantee indigent criminal defendants in both state and federal courts a right to the assistance of counsel at all critical stages of trial proceedings. [FN27] The Supreme Court, in fact, has held that representation by counsel is a right that is "fundamental and essential to fair trials." [FN28] The right to counsel in trial proceedings under the Sixth and Fourteenth Amendments also implies a concomitant *754 right to the effective assistance of counsel, [FN29] a right that attaches regardless of whether counsel is retained or appointed. [FN30] The right to effective assistance of counsel derives from the fact that "the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits." [FN31]

The Fourteenth Amendment also protects a defendant's right to counsel in direct appellate proceedings. While there is no constitutional right to a direct appeal, [FN32] in Douglas v. California [FN33] the Supreme Court held that when a state chooses to provide criminal defendants with a direct appeal the state must provide indigents with counsel for that appeal. [FN34] The rationale for the constitutionally-based requirement of appointed counsel for direct appeals is that the Fourteenth Amendment's guarantees of Due Process and Equal Protection are offended where the indigent "has only the right to a meaningless ritual, while the rich man has a meaningful appeal." [FN35] Further, the Supreme Court has held that the right to counsel in a state-provided direct appeal implies a concomitant right to the effective assistance of counsel for such an appeal. [FN36]

However, neither the Sixth nor the Fourteenth Amendment affords a defendant the right to counsel in discretionary proceedings including, inter alia, state post-conviction and habeas corpus review. State post-conviction proceedings, which are the primary focus of this Comment, are discretionary proceedings that occur after a state supreme court or intermediate appellate court on direct review affirms a sentence. Generally, post-conviction proceedings represent an opportunity for a convicted person to comprehensively challenge the constitutionality of his confinement. The Supreme Court has thus far refused to extend the Sixth and Fourteenth Amendment rights to counsel and effective assistance of counsel to post-conviction proceedings *755 for persons under sentence of death or to any convicted persons for that matter.

Ross was a consolidation of a defendant's two North Carolina forgery convictions. The Court first considered the provision of counsel in discretionary proceedings in Ross v. Moffitt. [FN37] The question presented in Ross was whether Douglas v. California's holding requiring appointed counsel for indigent defendants on direct appeal should be extended to require the appointment of counsel for discretionary state appeals and applications for review to the United States Supreme Court. [FN38][FN39] In the first case, Moffit's conviction was affirmed on direct appeal and his attorney for that appeal requested that he be appointed to represent Moffitt in discretionary state proceedings. [FN40] The trial court denied this request on the ground that the State was not required to furnish counsel for discretionary review. [FN41] In the second case, respondent was represented in his discretionary proceedings by the public defender that had been appointed for his trial and direct appeal. The North Carolina Supreme Court denied certiorari in his post-conviction review, and he requested that counsel be appointed to assist in preparing a petition for a writ of certiorari to the United States Supreme Court. [FN42] This request was denied. [FN43]

The Supreme Court held in Ross that neither Due Process nor Equal Protection requires states to appoint counsel to represent indigent defendants for discretionary state proceedings or for applications for review to the United States Supreme Court. [FN44] Chief Justice Rehnquist, writing for the Court, reasoned that differences between the trial and discretionary appellate stages of criminal proceedings justified this holding, stating that in discretionary review "it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecut[ion] but rather to overturn a finding of guilt . . . ." [FN45] The Court stated that as long as the State does not discriminate against indigents, the Fourteenth Amendment does not require states to implement a system of *756 appointed counsel for discretionary review. [FN46] The Court reasoned that because the State provided Moffitt with counsel for his trial and for his direct appeal, it could not be said "that a defendant in [Moffitt's] circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review to that court." [FN47]

Following Ross, in a short per curiam opinion, Wainwright v. Torna, [FN48] the Court held that because a convicted person does not have a constitutional right to counsel to pursue discretionary review, a defendant may not be deprived of the effective assistance of counsel in discretionary state appellate proceedings. [FN49] In Wainwright, respondent's retained counsel failed to make a timely post-conviction application for certiorari contesting his felony convictions to the Florida Supreme Court. [FN50] As a result, the Florida Supreme Court dismissed the petition. [FN51] The Supreme Court relied entirely on Ross for the proposition that "[s]ince respondent has no constitutional right to counsel, he could not be deprived of the effective assistance of counsel . . . ." [FN52]

Finley was denied post-conviction relief in the trial court, but the Pennsylvania Supreme Court reversed, holding that she was entitled, under state law, to appointed Three later cases expanded the holding of Wainwright. In Pennsylvania v. Finley, [FN53] the Court addressed whether the procedures mandated for the withdrawal of counsel from a non-capital direct appeal were required for the withdrawal of state post-conviction counsel provided by a state statute. [FN54] In Finley, the respondent was convicted of second-degree murder and sentenced to life imprisonment. [FN55] She lost on direct appeal and then sought relief under the Pennsylvania Post Conviction Hearing Act, proceeding pro se. [FN56]*757 counsel for her post-conviction proceedings. [FN57] Finley was appointed counsel on remand, but this counsel withdrew when he concluded that Finley had no arguable basis for seeking post-conviction relief. [FN58] The trial court conducted an independent review of the record and agreed, dismissing respondent's petition. [FN59] Finley acquired new counsel and appealed to the superior court, contending that the conduct of her counsel in post-conviction proceedings violated her constitutional rights as established by Anders. [FN60] The Pennsylvania Supreme Court found that post-conviction counsel's failure to follow Anders had, in fact, violated Finley's constitutional rights. [FN61]

The Supreme Court granted certiorari and reversed, holding that because there is no underlying constitutional mandate of counsel in post-conviction proceedings, there is no constitutional right to the protections required by Anders. [FN62] The Anders holding, according to the Court, was based upon "the underlying constitutional right to appointed counsel" [FN63] guaranteed by the Sixth Amendment. Finley's right to counsel, however, was based on a state statute, and the Court stated, "[I]t is the source of that right to a lawyer's assistance, combined with the nature of the proceeding, that controls the constitutional question." [FN64] Further, the Court stated that because the Pennsylvania courts found that the actions of counsel satisfied Pennsylvania law, [FN65] "respondent ha[d] received exactly that which she is entitled to receive under state law," and therefore she could not claim a "deprivation without due process." [FN66]

*758 The inmates' claim was principally based upon Bounds v. Smith, The Court considered the applicability of Finley to capital cases in Murray v. Giarratano. [FN67] In Murray, a group of indigent death row inmates brought a civil rights class action in the Eastern District of Virginia against officials of the Commonwealth of Virginia, alleging that the United States Constitution required that they be appointed counsel for the purposes of pursuing state post-conviction relief. [FN68][FN69] wherein the Court held on due process and equal protection grounds that prisoners' "right of access" to the courts required a state to furnish adequate access to law libraries. [FN70] The district court agreed, finding that the special time limitations placed on death row inmates and the complexity of their cases mandated that the dictates of Bounds could not be fulfilled unless counsel was provided to indigent death row inmates to assist in preparing post-conviction petitions. [FN71] The United States Court of Appeals for the Fourth Circuit reversed, [FN72] but subsequently reheard the case en banc and affirmed the district court. [FN73]

On review, the Supreme Court stated that neither the Eighth Amendment nor due process requires that states appoint counsel for indigent death row inmates seeking post-conviction relief. [FN74] The Court held that Finley, and not Bounds, was the controlling precedent and that Finley was applicable to both capital and non-capital cases. [FN75] The Court rejected Bounds's applicability to a right to counsel analysis, stating that to allow a district court to partially overrule Finley in a particular state based on its factual findings "regarding matters such as the perceived difficulty of capital sentencing law and the general psychology of death row inmates" would be to sway from the Court's "categorical holdings as to what the Constitution requires with respect to a particular stage of a criminal proceeding in general." [FN76]

Coleman v. Thompson [FN77] is the most recent case in which the Supreme Court considered the right to counsel in post-conviction proceedings.*759 In Coleman, the Court held that, because there is no constitutional right to appointed counsel in state post-conviction proceedings, an attorney error that results in a procedural default of a defendant's claims in state habeas corpus proceedings cannot constitute "cause" [FN78] to excuse the default in federal habeas corpus. [FN79] Thus, under current Supreme Court precedent, because there is no constitutional right to effective assistance of counsel in state post-conviction proceedings, claims that are not raised in state post-conviction proceedings may not be raised in federal habeas corpus proceedings on the basis of an allegation that the ineffective assistance of post-conviction counsel was cause for the failure to raise the claim in state court. On its face, this means that ineffective assistance of counsel received by a death-sentenced person in state post-conviction proceedings results in the defendant losing, for all intents and purposes, those claims that were not raised in state post-conviction proceedings.

II. Post-Conviction Proceedings in Arkansas and the Problem of Ineffective Assistance of Post-Conviction Counsel

While under the United States Constitution the State of Arkansas has no duty to provide counsel to death-sentenced persons in its post-conviction proceedings, Arkansas, in an attempt to comply with the Anti-Terrorism and Effective Death Penalty Act of 1996, mandates the provision of "competent counsel" in its post-conviction proceedings. [FN80] However, simply providing for the mandatory provision of competent counsel and a capital defendant receiving effective assistance from such counsel in their post-conviction proceedings is not one in the same. For a person under sentence of death, this difference between simply receiving counsel and actually receiving the effective assistance of counsel has deadly consequences.

*760 A. The Provision of Counsel in Post-Conviction Proceedings in Arkansas

Following a capital conviction, Arkansas, like many death penalty states, provides those under sentence of death with an automatic direct appeal. [FN81] If the Arkansas Supreme Court on direct review affirms the death sentence, a defendant is then entitled to state post-conviction review. The system of post-conviction review in Arkansas is set forth in Rule 37.1 et seq. of the Arkansas Rules of Criminal Procedure ("Rule 37"). [FN82] The purpose of Rule 37 proceedings in Arkansas is to determine whether an accused's constitutional or statutory rights were violated in the underlying trial. [FN83] By both statute and judicial rule, except in rare circumstances, a petitioner is allowed to file only one Rule 37 petition and must set forth in that petition all possible grounds for relief. [FN84] Rule 37 petitions are filed at the circuit court level and may be appealed to the Arkansas Supreme Court. [FN85] When a petition for post-conviction relief is denied, federal habeas corpus is then the last available forum in which a defendant may seek relief.

States, including Arkansas, have been motivated to provide counsel in their post-conviction proceedings primarily so that they can comply with AEDPA. [FN86] If a state can show compliance with AEDPA, [FN87] principally by showing that the state provides for the mandatory appointment and compensation of competent counsel in its post-conviction proceedings, the state receives the "benefit" of streamlined *761 federal habeas corpus procedures applicable to the state's death-sentenced persons. [FN88]

Until 1997, Arkansas did not provide persons under sentence of death with counsel for Rule 37 proceedings. [FN89] In 1997, however, the Legislature amended Rule 37 by enacting the Arkansas Effective Death Penalty Act of 1997, which added Rule 37.5, entitled "Special Rule for Persons Under Sentence of Death." [FN90] This provision provides that within twenty-one days after the Arkansas Supreme Court affirms a sentence of death on direct review, the circuit court that imposed the sentence of death, "shall inform the person of the existence of possible relief under this rule and shall determine whether the person desires the appointment of an attorney" to represent him in Rule 37 proceedings. [FN91] Waiver of the right to an attorney for post-conviction relief must be made in open court, on the record, and the circuit court must issue written findings regarding waiver of the right. [FN92]

Rule 37 sets forth specific qualifications that counsel must meet and provides that the circuit court must make a written order concerning the appointment of counsel. [FN93] Specifically, under Rule 37.5(c)(1) an attorney must meet the following standards:

(A) Within ten (10) years immediately preceding the appointment, the attorney shall have:

(i) represented a petitioner under sentence of death in a state or federal post-conviction proceeding; or

(ii) actively participated as defense counsel in at least five (5) felony jury trials tried to completion, including one trial in which the death penalty was sought; and

(B) Within ten (10) years immediately preceding the appointment, the attorney shall have:

(i) represented a petitioner in at least three state or federal post-conviction proceedings, one of which proceeded to an evidentiary hearing and all of which involved a conviction of a violent felony, including one conviction of murder; or

*762 (ii) represented a defendant in at least three (3) appeals involving a conviction of a violent felony, including one conviction of murder, and represented a petitioner in at least one evidentiary hearing in a state or federal post-conviction proceedings; and

(C) The attorney shall have been actively engaged in the practice of law for at least three (3) years; and

(D) Within two (2) years immediately preceding the appointment, the attorney shall have completed at least six (6) hours of continuing legal education or other professional training in the representation of persons in capital trial, capital appellate, or capital post-conviction proceedings. [FN94]

An attorney may also be appointed by the court that does not meet these qualifications "if the circuit court determines that the attorney is clearly qualified because of his unique training, experience, and background to represent a person under sentence of death in post-conviction proceedings," provided that the court makes a written finding to that effect. [FN95]

B. Failures of Competence: The Problem of Ineffective Assistance in Arkansas Post-Conviction Proceedings

The legislative comments that accompanied the enactment of Rule 37.5 state that the purpose of the rule was to provide "a mechanism for the appointment, compensation, and reimbursement of competent counsel for all indigent capital defendants in state post-conviction proceedings." [FN96] The desire to appoint competent counsel by enforcing qualification requirements does not, however, guarantee actual effective assistance by such counsel once appointed. State post-conviction proceedings in Arkansas represent a comprehensive opportunity for a person under sentence of death to challenge the constitutionality of his sentence. [FN97] This means that post-conviction counsel plays a fundamental role in reviewing the performance of trial counsel for possible claims of ineffectiveness, reviewing the trial record for potential constitutional claims, such as jury and prosecutorial misconduct, and reviewing the performance of direct appellate counsel. Such a review often involves a complete reexamination of not only *763 the trial record but also of the alleged crime and the resulting investigation. [FN98] The Arkansas Supreme Court has recognized the importance of post-conviction proceedings, stating "[p]ostconviction proceedings under Rule 37 are intended to avoid persons being unjustly imprisoned. This rule enables the courts to correct a manifest injustice . . . . 'Rule 37 is . . . designed to prevent wrongful incarceration under a sentence so flawed as to be void."' [FN99]

Effective representation of death-sentenced persons in Arkansas's Rule 37 proceedings is especially important because, almost without exception, a person is entitled to only one Rule 37 petition. [FN100] The petition must also conform to stringent format and filing requirements in order to even be considered. [FN101] Further, the Arkansas Supreme Court has specifically held that the other forms of collateral relief available in the State, a writ of error coram nobis [FN102] and a petition for state habeas corpus, may not be used to address issues that properly should have been raised in Rule 37 proceedings. [FN103] The result of this system is that a death-sentenced person, such as Mr. Lee, Mr. Kemp, or Mr. Noel, whose attorney fails to raise a claim, conduct an investigation, or even follow procedural guidelines when filing a Rule 37 petition entirely loses the opportunity to have his constitutional claims evaluated in state court.

The result goes much further, however, because state post-conviction proceedings play a fundamentally important role in later federal habeas corpus review. With limited exception, all claims for relief from a death sentence must be raised in state post-conviction proceedings and decided on the merits in order to be reviewed in subsequent *764 federal habeas corpus proceedings. [FN104] This is significant, as it is estimated that forty percent of all death penalty cases were reversed in federal habeas corpus proceedings from 1973 through 1995. [FN105] Thus, a death-sentenced person who receives ineffective assistance in state post-conviction proceedings loses not only the ability to have his constitutional claims addressed in the first available state forum, but also in federal court, where he stands the greatest chance of garnering relief. Given the known rate of reversal and error in death penalty cases that actually are evaluated by appellate and post-conviction courts on the merits, it is highly likely that many death-sentenced persons in Arkansas, such as Mr. Noel, are executed without even having the opportunity to present valid claims for relief as a result of ineffective post-conviction counsel.

The rate at which death sentences are reversed, in both the United States as a whole and Arkansas, illustrates the fundamental importance of comprehensive appellate review. A recent statistical examination of the death penalty revealed that from 1973 to 1995 there was an overall error rate of seventy percent in Arkansas death penalty cases. [FN106] The rate of error found in federal habeas corpus review of Arkansas death penalty cases was forty-eight percent, the highest of any state in the Eighth Circuit. [FN107] Nationally, during the twenty-three years of the study, more than two out of every three death penalty cases that were judicially reviewed were found to be seriously flawed. [FN108] Importantly, however, these numbers are likely an underestimation of the true level of error in death penalty cases because these statistics only include those claims that were actually raised and decided on the merits by courts on review. They do not account for those claims, such as Mr. Lee's, Mr. Kemp's, and Mr. Noel's, that were not raised because of ineffective post-conviction counsel.

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DPIC notes:

PUBLIC OPINION: Maryland Poll Finds Strong Support for Life Without Parole

A recent Mason-Dixon Polling & Research survey of Maryland voters found that 63% believe that life without the possibility of parole is an acceptable substitute for the death penalty. Only 21% stated that they believe it is not an acceptable alternative to the death penalty, and 16% were not sure. The poll, sponsored by the Maryland Catholic Conference, revealed that among women, 66% believe the alternative sentence of life without parole is an acceptable substitute for capital punishment. Among black respondents, the number agreeing with the statement registered at 69%. In response to the more general question of whether voters support or oppose the death penalty itself, 56% said they support it, 35% oppose capital punishment, and 9% are unsure. The support is well below the comparable numbers nationally. The poll took place February 22-24, 2005, and included responses from 625 registered Maryland voters. (Maryland Poll Results, Maryland Catholic Conference, March 2005).

Texas Governor Appoints Special Committee with Broad Powers to Review Criminal Justice Issues

In an historic move to ensure that Texas fairly applies the death penalty and that defendants are afforded proper legal protections to prove their innocence, Texas Governor Rick Perry appointed a nine-member special council with sweeping powers to review an array of legal issues ranging from police investigations to court appeals. The appointment of the panel is the first acton of its kind by a Texas governor in decades.

"I have great confidence in our justice system, but no system is perfect, and we must not be afraid of asking the questions that will lead to creating a more perfect system of justice for all the people of Texas," Gov. Perry said after issuing the Executive Order to create the panel. He noted that among the factors leading to the panel's creation were evidence testing mistakes at the Houston crime lab that affected thousands of criminal cases, court rulings barring the execution of juvenile offenders and those with mental retardation, and questions about whether Texas is properly affording full legal rights to foreign citizens imprisoned in the state.

The panel will include judges, lawmakers, victims' advocates, defense attorneys, and legal scholars. It will not seek public comment, but its meetings will be open to the public. Gov. Perry stated that the members will be given the leeway to recommend whatever changes in the justice system may be necessary. The panel's recommendations will be sent to the governor by January 2006, before the start of the next legislative session.

"I believe it is an excellent start toward getting to the bottom of miscarriages of justice. I look forward to talking and working with Governor Perry . . . to ensure that Texans have a criminal justice system that provides them with the protection that they deserve and is instilled with the fairness and integrity that justice demands," said Sen. Rodney Ellis.

(Austin American-Statesman, March 15, 2005).

PUBLIC OPINION: New Yorkers Do Not Want Death Penalty Reinstated

By a margin of 46-42 percent, New Yorkers do not want to see the death penalty reinstated, according to a recent Siena Research Institute poll of state voters. The poll also found that a clear majority support the sentencing option of life without parole over capital punishment. “Nearly half of New York voters are opposed to reinstituting the death penalty and a clear majority (56 percent) support life without parole as the preferred punishment for first-degree murderers,” said Joe Caruso, Director of Polling for the Siena Research Institute. Only 29 percent supported the death penalty when an alternative sentence was offered. The poll questioned 600 registered New York voters between February 28 and March 4, 2005. (Siena Research Institute Press Release, March 8, 2005). See more about the survey.

Ohio Inmate Becomes the 119th Innocent Person Freed from Death Row

On February 28, 2005, Ohio Common Pleas Judge Richard Niehaus dismissed all charges against Derrick Jamison for the death of a Cincinnati bartender after prosecutors elected not to retry him in the case. (Associated Press, March 3, 2005). The prosecution had withheld critical eyewitness statements and other evidence from the defense resulting in the overturning of Jamison's conviction in 2002. Jamison was convicted and sentenced to death in 1985 based in part on the testimony of Charles Howell, a co-defendant who had his own sentence reduced in exchange for his testimony against Jamison.

The prosecution withheld statements that contradicted Howell’s testimony and that would have undermined the prosecution’s theory of how the victim died, and would have pointed to other possible suspects for the murder. Two federal courts ruled that the prosecution's actions denied Jamison of a fair trial. (Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002)).

One of the withheld statments involved James Suggs, an eyewitness to the robbery. Suggs testified at trial that he had been unable to make a positive identification when the police showed him a photo array of suspects. In fact, police records show that Suggs identified two suspects, neither of which was Derrick Jamison. Additional withheld evidence consisted of a series of discrepancies between Jamison’s physical characteristics and the descriptions of the perpetrators given to police investigators by eyewitnesses.

The co-defendant Howell recently testified that he could not remember anything about the crime, and state prosecutors decided not to proceed against Jamison. He remains incarcerated on other unrelated charges. (See also, K. Perry, "'85 Murder Conviction Dismissed," Cincinnati Post, Mar. 1, 2005).

Jamison is the 119th innocent person to be freed from death row since 1973 and the first to be exonerated in 2005.

Key Connecticut Committee Passes Death Penalty Repeal Bill

By a vote of 25-15, members of the Connecticut Judiciary Committee voted for legislation to repeal the state's death penalty and replace it with life in prison without the possibility of parole, an action that clears the way for the House to debate the measure. Supporters of the bill say that the state's death penalty is an unenforceable statute, a source of agony for families of murder victims, and a fiscal burden the state can no longer afford to bear. "We should not be debating spending $3 million or $4 million to kill one man when we should be spending that money on school books. We should choose to put our resources where we can grant life, not death," said state House Deputy Majority Leader Toni N. Walker during a three hour committee debate on the repeal measure. The Judiciary Committee's vote reflects a growing consensus in the Connecticut House and Senate that the repeal bill deserves a debate on the floor of the full legislative chamber. (New Haven Register, March 10, 2005). See Life Without Parole.

U.S. Abandons Optional Protocol to the Vienna Convention on Consular Relations

The Bush administration has pulled out of the Optional Protocol to the Vienna Convention on Consular Relations, an international agreement that has been in place for more than 30 years and that the United States initially supported to protect its citizens abroad. In recent years, the provision has been successfully invoked by foreign nations whose citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries, events which served as the basis for President Bush's decision to withdraw from the agreement.

The Optional Protocol to the Vienna Convention on Consular Relations requires signatories to let the United Nation's highest tribunal, the International Court of Justice at the Hague, make the final decision when their citizens say they have been illegally denied the right to seek consulate assistance when jailed abroad. The administration's withdrawal from the Optional Protocol comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to an International Court of Justice ruling in favor of 51 Mexican foreign nationals. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the death row inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims. It is unclear what affect the administration's decision to abandon the Optional Protocol will have on this case.

Some analysts say President Bush's decision will weaken both protections for U.S. citizens abroad and the idea of reciprocal obligation that the protocol embodied. The United States was the first to invoke the Optional Protocol before the World Court to successfully sue Iran for the taking of 52 U.S. hostages in 1979. (Washington Post, March 10, 2005).

NEW RESOURCE: Law Review Examines Competency To Waive Appeals in Capital Cases

A recent article in the Wayne Law Review by Prof. Phillys L. Crocker of the Cleveland-Marshall College of Law examines the Supreme Court's struggle with the issue of death row inmates waiving their appeals. Crocker uses Rees v. Peyton, a capital case that remained on the Court's docket from 1965-1995, to explore the issue. In that case, Virginia death row inmate Melvin Rees sought to withdraw his petition for a writ of certiorari so that he could be executed. In 1967, the Supreme Court stayed the proceeding after Rees was found incompetent to waive his appeal, but it did not dismiss the case until after he died of natural causes. In her article, Not to Decide is to Decide: The U.S. Supreme Court's Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, Crocker concludes:

The Court documents in Rees are historically significant because they reveal, for the first time, how the Court resolved the difficult issues it faced regarding how to determine whether Rees was competent to decide whether to abandon or continue litigating his case, and whether to proceed once the federal district court found Rees incompetent.... For litigators and courts seeking guidance in how to proceed in death penalty cases when the death row inmate may be incompetent, the Rees documents establish a strong historical model for thoroughly examining an inmate's mental capacity and staying court proceedings when the inmate is deemed incompetent."

(49 Wayne Law Review 885 (2004)). See Supreme Court, Mental Illness, and Resources

Around the blogs

TalkLeft notes:

Stripping U.S. Foreigners Abroad of Protection

Human Rights Watch weighs in on the Bush Administration's decision to withdraw from the Vienna Convention's protocol of providing consular protection to citizens arrested abroad.

The U.S. government’s decision to withdraw from a protocol governing diplomatic disputes has immediate consequences for the rights of foreigners detained in the United States and could endanger U.S. citizens who are detained abroad, Human Rights Watch said today.

According to a decision by the Bush administration this week, the ICJ, or World Court, will henceforth have no power to hear cases brought by countries on behalf of detained non-citizens in the United States. Americans in the custody of foreign countries who have been denied access to their country’s embassies will also not have access to the ICJ.

“This decision not only violates the rights of foreigners living in the United States, it could also endanger Americans abroad,” said Jamie Fellner, director of the U.S. program of Human Rights Watch. “It’s a huge mistake for the United States, for practical reasons as well as legal and moral ones.”

Don't forget, the genesis of Bush's move was the Court's declaration that 52 Mexican prisoners on death row in the U.S. were denied their consular rights. Bush pretended to play along by announcing one day last week they would get new hearings, followed by his withdrawal move a few days later to make sure it would never happen again. Bush's explanation at the time was:

The International Court of Justice has interpreted the Vienna Consular Convention in ways that we had not anticipated that involved state criminal prosecutions and the death penalty, effectively asking the court to supervise our domestic criminal system," State Department spokeswoman Darla Jordan said yesterday.

Withdrawal from the protocol is a way of "protecting against future International Court of Justice judgments that might similarly interpret the consular convention or disrupt our domestic criminal system in ways we did not anticipate when we joined the convention," Jordan added.

Consular notification is an important safeguard :

The right to consular notification and assistance is required by the Vienna Convention on Consular Relations. This right enables governments' officials to provide assistance, including legal counsel, to help ensure fair proceedings for their citizens who may be at a disadvantage in criminal proceedings in foreign countries.

Mexico contended that these citizens had been tried, convicted and sentenced to death without being properly informed of their Vienna Convention rights in the United States, which is one of 168 countries party to the treaty. Mexico argued that timely consular help could have protected the defendants' due process rights. Although the original claim related to 54 Mexicans, at the time of the court's ruling, only 52 individual cases were remained at issue.

“Today's decision could make the difference between life and death for foreigners prosecuted in the United States,” said Jamie Fellner, director of the U.S. Program at Human Rights Watch. “Giving defendants access to consular officials means that they can get good defense lawyers—the surest way to avoid the death penalty.”

Exclusion of Jews and Blacks from Calif. Death Juries

The New York Times reports:

The convictions of dozens of death-row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice."

The allegation is contained in an affidavit filed in a habeas appeal of a death row inmate. It was written by the prosecutor:

Mr. Quatman, who worked for 26 years as a deputy district attorney and prosecuted the case, said the trial judge, Stanley Golde, advised him during jury selection that "no Jew would vote to send a defendant to the gas chamber."

"Judge Golde was only telling me what I already should have known to do," Mr. Quatman's statement said. "It was standard practice to exclude Jewish jurors in death cases."

Death Penalty Standard Should Be Beyond All Doubt

The Chicago Tribune today in an editorial supports a pending bill changing the burden of proof in death penalty cases to beyond all doubt from beyond a reasonable doubt.

The Illinois House is considering legislation that would establish a higher burden of proof in capital case sentencing. Judges and jurors in criminal trials would still apply the time-tested standard of guilt "beyond a reasonable doubt." But the standard to impose a death sentence would be even higher. Under the legislation, the court would tell jurors that they may impose a death sentence "if the jury unanimously determines that the evidence leaves no doubt respecting the defendant's guilt." If jurors had any residual, or lingering, doubts, they would impose a sentence of life in prison.

Given the deeply troubling experience in Illinois, it should be easy for supporters and opponents of capital punishment to agree on this: When the state is going to impose the ultimate, irreversible punishment, there should be no doubt that the person paying for the crime is the one who committed it.

And in Texas, S.B. 60 has passed it's first house vote. It would add a third option for juries in death cases - life without the possibility of parole.

CrimProf Blog posted:

Ken Starr's Pro Bono Capital Litigation

Former special prosecutor and D.C. Circuit judge Kenneth Starr, now dean of Pepperdine, is representing a Virginia man who he says was unfairly sent to death row. Said Starr: "the death penalty has to be administered with the utmost caution and reserved for the gravest offenses. This is not that kind of case. Robin Lovitt maintains his innocence, and evidence that might prove his innocence has been destroyed. I'm very distressed by that.... Society had better be absolutely certain before they put someone to death who is maintaining his innocence. I feel very passionately about that." News here and here. Here's information about Starr's client on a pen pal site. [Jack Chin].

Ohio Inmate Becomes 119th Person Released from Death Row

Serious Brady violations. Story here. [Mark Godsey]

Key Connecticut Committee Votes to End Capital Punishment

From the DPIC: "By a vote of 25-15, members of the Connecticut Judiciary Committee voted for legislation to repeal the state's death penalty and replace it with life in prison without the possibility of parole, an action that clears the way for the full House to debate the measure." More . . . [Mark Godsey]

Sentencing Law and Policy suggests:

Scalia speaks out on Roper

I noted here earlier today the widespread criticisms that the Supreme Court's work in Roper has generated, and Justice Scalia has apparently joined the Roper-bashing bandwagon. Thanks to Howard at How Appealing, who provides the links here, you can hear Justice Scalia assail Roper during a speech today at a Washington think tank . The speech is summarized in this AP report and this MSNBC article.

UPDATE: TalkLeft has this extended post discussing Justice Scalia's speech and examining more broadly his approach to the Eighth Amendment.

Intrigued by the Roper bashing

Jeffrey Rosen has this essay in the The New Republic on the Supreme Court's Roper decision with this provocative openning:

The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing. A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and "deserves to be slapped." A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.

The consensus among our ideologically diverse little band was revealing. Roper v. Simmons is indeed embarrassing....

Though the bulk of Rosen's piece is about the Supreme Court's consideration of international opinion in its decisions, it confirms (and contributes to) my general impression that Roper has been among the most critically assailed Supreme Court opinions in recent memory.

Rather than join the critical discussion of Roper, I am interested in a critical discussion of why the discussion of Roper has been so critical. I am drawn to this question principally because Roper, at least on its merits, is arguably not all that much different than the Supreme Court's 2002 decision in Atkins which found a constitutional prohibition on the execution of persons who are mentally retarded. I do not recall Atkins being treated harshly by commentators.

There are tangible doctrinal differences between Roper and Atkins which arguably could explain their different receptions. But I am inclined to think other factors besides purely legal considerations explain the distinct reactions to Roper and Atkins. In particular, as the Rosen piece suggests, I sense that bashing Justice Kennedy (the author of Roper) and bashing the considerations of foreign authorities is far more in vogue these days than was bashing Justice Stevens (the author of Atkins) and bashing the considerations of foreign authorities in 2002.

Interesting (non- Blakely) sentencing items in the papers

This article from Washington Post discusses the efforts of Kenneth Starr to overturn the Virginia death sentence of convicted murderer Robin Lovitt.

This article from the San Francisco Chronicle discusses shame punishments broadly in conjunction with reporting that Oakland has plans to plaster "on bus stop signs or even 10-foot by 22-foot billboards" the faces of persons "caught by surveillance cameras and convicted of solicitation."

Abolish the Death Penalty notes:

The death penalty: not cruel enough?

It recently was reported that in Iran, a person was flogged 100 times, turning his back a bloody mess. He then was lifted and strangled to death by a crane as thousands of onlookers cheered.

It probably would come as understatement to most of the readers of this blog that such behavoir violates Americans' standards of decency.

But not so fast.

Now comes a blog entitled The Volokh Conspiracy, whose author says criminals in this country need to be tortured a bit -- or maybe a lot -- before they are executed. Revealing hhis true colors, blogger Eugene Volokh writes:

I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.

Naturally, I don't expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they'd be highly unlikely.

This requires no further comment from me. To read Eugene's full entry, go here.

You can also access the article out of Iran by going here.

Death row: Extreme nothingness

Since 1976, 111 people on death row have dropped their appeals and "volunteered" to be executed. That is a little more than one out of every eight people who have been executed. Yet is the word "volunteered" appropriate or even accurate in the death row context?

The Hartford Courant recently took an interesting look at this phenomenon. Their story begins:

Since the reinstitution of the death penalty in the late 1970s, 111 inmates nationally have been put to death after choosing to waive further appeals and fast-track their path to execution.

But are such life-or-death decisions, a stance adopted by Connecticut serial killer Michael Ross, as voluntary as they may appear?

Psychiatrist Terry Kupers believes such "volunteerism" is directly linked to the trend of states placing death row inmates in super-maximum-security prisons.

"Because 20 years ago death rows were not locked down, people were not in segregation on death row," said Kupers, a California-based psychiatrist who has toured numerous supermaxes, including Connecticut's Northern Correctional Institution. "So they had a prison life, but it was a life where they could be out on the yard and have some meaningful activities."

119 and counting

This totally snuck up on me:

The number of people sent to death row only later to be proven to be completely innocent of the crime for which they were convicted now stands at 119, with the addition of a Ohio man to the list.

Here is what the Death Penalty Information Center has to report:

On February 28, 2005, Ohio Common Pleas Judge Richard Niehaus dismissed all charges against Derrick Jamison for the death of a Cincinnati bartender after prosecutors elected not to retry him in the case. (Associated Press, March 3, 2005). The prosecution had withheld critical eyewitness statements and other evidence from the defense resulting in the overturning of Jamison's conviction in 2002. Jamison was convicted and sentenced to death in 1985 based in part on the testimony of Charles Howell, a co-defendant who had his own sentence reduced in exchange for his testimony against Jamison.

The prosecution withheld statements that contradicted Howell’s testimony and that would have undermined the prosecution’s theory of how the victim died, and would have pointed to other possible suspects for the murder. Two federal courts ruled that the prosecution's actions denied Jamison of a fair trial. (Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002)).

One of the withheld statments involved James Suggs, an eyewitness to the robbery. Suggs testified at trial that he had been unable to make a positive identification when the police showed him a photo array of suspects. In fact, police records show that Suggs identified two suspects, neither of which was Derrick Jamison. Additional withheld evidence consisted of a series of discrepancies between Jamison’s physical characteristics and the descriptions of the perpetrators given to police investigators by eyewitnesses.

To read more and to learn about the previous 118 exonoreers, go here.

Grits for Breakfast notes:

Execution of possible innocent stayed

The scheduled execution of Pablo Melendez, Jr. was stayed last night, but I can't find any information on why or by whom. He was convicted based on the testimony of a jailhouse snitch. Many people, including the mother of the victim, believe Melendez is innocent.

In other death penalty news, Sen. Eddie Lucio's bill creating an offense of Life Without Parole (LWOP) passed out of the Senate Criminal Justice Committee this week. It needs 21 votes to reach the Senate floor, but Lucio thinks he has them. The terms of debate on LWOP shifted after the U.S. Supreme Court abolished the death penalth for juveniles and the mentally retarded. Prosecutors want the no-parole option for use with those offenders, which is why the bill has legs, now.

Melendez was 18 at the time of the murder for which he was convicted, so the Supreme Courts recent ruling on juveniles did not affect him.