The Lede this edition comes from Illinois. As most know,Illinois this week became the latest state to repeal its death penalty. DPIC notes "the governor also commuted the death sentences of the 15 people on the state's death row to life without parole. The ban on capital punishment comes after an eleven-year moratorium on executions declared by former Republican Gov. George Ryan." Thanks to Steve Hall for making available links to the statement from Governor Pat Quinn on Senate Bill 3539 and an archived streaming video of the bill signing.

In the Courts, two cases that nearly went below the radar are noted. The Seventh Circuit in United States v Styles Taylor and Keon Thomas, a case where a jury convicted of capital murder but returned life, ordered a new trial where the Government was held to have violated Batson v. Kentucky. In State v. Derrick Allen, the trial court threw out sexual assault and murder charges in a 46 page order as the lab technician "intentionally chose to write her report in such a way as to omit any reference to the testing that she conducted that failed to confirm the presence of blood,"as well as because the state "intentionally" and "willfully" hid exculpatory evidence.

In the news, Ohio killed Johnnie Baston last week, the first time a state carried out an execution by using a single dosepentobarbital. Federal authorities report they have run out of sodium thiopental. Texas judges have ordered four serious dates in the coming months but, like the feds, it no longer possesses any usable socks of sodium thiopental. In North Carolina the Supreme Court on Monday heard argument on the interplay between lethal injection and the state's administrative procedures act. In New Mexico attempts at adeath penalty reinstatement died last week in committee.

As always, thanks for reading. - k

Pending Executions

March

29 Eric King* (Az)

31 William Glenn Boyd* (Ala) April

5 Cleve Foster* (Tex)

5 Daniel Wayne Cook* (Az)

6 Wayne Kubsch (Ind)

12 Clarence Carter* (Ohio)

May

3 Cary Kerr* (Tex)

17 Daniel Bedford* (Ohio)

Stays & Commutations

February

9 Roy Blankenship* (Ga)

15 Edward Harbison* (Tenn) (clemency)

Executions

February

9 Martin Link (Mo)

15 Michael Wayne Hall* (Tex)

17 Frank Spisak* (Ohio)

22 Timothy Adams* (Tex)

March

10 Johnie Baston* (Ohio)

*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [via DPIC]

SCOTUS

• Henry Skinner v. Switzer, No. 09-9000 (3/7/2011) "A convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983."
• Wall v. Kholi, No. 09-868 (3/7/2011) AEDPA's one year statute of limitations is tolled even where just a challenge to sentence is filed, so long as that challenge isn't just a direct appeal application.

Week of March 7, 2011: In Favor of the Prosecution or Warden

• Terrance Williams v. Beard, 2011 U.S. App. LEXIS 4517 (3rd Cir March 9, 2011) Relief denied on “(1) whether trial counsel was constitutionally ineffective during the penalty phase of trial, and (2) whether the Commonwealth exercised its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky,” as well as (3) “the constitutional propriety of the trial court’s accomplice liability instructions. We conclude that each issue is without merit and will affirm.”
• State v. Anthony Belton, 2011 Ohio App. LEXIS 951; 2011 Ohio 1141 (Ohio 6th App March 8, 2011) On interlocutory appeal,relief denied as the Accused erroneously appealed the denial of a motion to reconsider and not the underlying order itself.

Week of February 28, 2011: In Favor of the Prosecution or Warden

• Ricky Jovan Gray v. Warden, 2011 Va. LEXIS 62 (Va. March 4, 2011) “A habeas petitioner was granted a writ as to his life sentences imposed under Va. Code Ann. § 18.2-31(7) and (8) because counsel failed to protect petitioner’s rights to be free from double jeopardy where the crimes arose from the same criminal act and one punishment was for a crime which was a lesser included offense of the other.” [via Lexisone]
• Anthony Bernard Juniper v. Warden, 2011 Va. LEXIS 61(Va. March 4, 2011) “Habeas petitioner failed to demonstrate that counsel’s performance was deficient or that there was a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. Petitioner also failed to establish either an actual conflict of interest or an adverse effect on counsel’s performance.” [via Lexisone]
• State v. Richard Odom, 2011 Tenn. LEXIS 192 (Tenn March 3, 2011) Relief denied as “(1) the defendant’s constitutional right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor’s closing argument did not result in the use of non-statutory aggravating factors in the jury’s weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court’s instructions on parole did not violate the defendant’s right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount of compensation sought by appellate defense counsel by a judge on the Court of Criminal Appeals did not require his disqualification from participating in this case.” [via the Tennessee Supreme Court’s Clerk Office]
• Milo A. Rose v. Sec.DoC., 2011 U.S. App. LEXIS 4093 (11th Cir Mar 4, 2011) Relief denied on IAC related claims. “[H]ere the new mitigation is simply an extension of what the jury had heard, which is critically different from the above cases, in which the new mitigation was not only powerful, but of a type that counsel did not present in the penalty phase at all.” “[W]hen we look at all the evidence in mitigation, both that presented at the penalty phase and in the 3.850 proceedings, together with the aggravating evidence in this case, we conclude that Rose has not carried his burden to show a reasonable probability that he would have received a different sentence had Rouson investigated and presented the evidence Rose contends he should have. Our confidence in the outcome has not been undermined. Because Rose has not shown prejudice, we need not decide whether his trial counsel’s penalty-phase performance was deficient.”
• Billy Dale Green v. State, 2011 Ark. LEXIS 82;2011 Ark. 92 (Ark Mar 3 2011) (dissent) Relief denied on this appeal prior to retrial on whether or not the double jeopardy should bar further prosecution. Specifically, the prosecution failed to turn over key exculpatory evidence. “Intentional prosecutorial conduct motivated by a desire to obtain a conviction and not by a desire to provoke the defendant into moving for a mistrial may be grounds for a mistrial but it does not preclude retrial of the case.” Matter referred, however, to the disciplinary committee for investigation, and if necessary, appropriate disciplinary action.
• Ernest Johnson v. State, 2011 Mo. LEXIS 52 (Mo Mar 1, 2011) “It was reasonable trial strategy for the defendant’s counsel to present evidence from a special education expert that the defendant is retarded rather than calling a witness whose testimony would have been cumulative to other evidence in the record. It also was reasonable trial strategy for counsel not to present evidence that another person orchestrated the crime and that the defendant was acting under this person’s substantial domination. The defendant was not prejudiced by his counsel’s failure to admit into evidence an expert’s deposition and his mother’s mental health records, as both would have been cumulative to evidence already presented. It was reasonable trial strategy for the defendant’s counsel not to object to the admission of portions of a videotaped evaluation of the defendant. The circuit court did not clearly err in rejecting the defendant’s claim that his counsel should have objected to questions about an expert’s evaluation of whether he was competent to proceed to trial. Finally, the defendant failed to show the circuit court clearly erred in finding he did not show the statutory death penalty scheme is unconstitutional, especially given that the study on which he relied was “severely flawed,” and he failed to preserve for appellate review his claim that the county in which he was tried has a disproportionate number of death sentences.” [via the Missouri Supreme Court's Clerk Office]
• Robert Ybarra, Jr., v. State, , 2011 Nev. LEXIS 5;127 Nev. Adv. Rep. 4 (Nev Mar 3, 2011) Relief denied. “Ybarra failed to meet his burden of demonstrating bias based on Judge Dobrescu’s prior professional relationship with the murder victim’s family or the notoriety of his case [therefore] his disqualification motion was unsupportable and properly denied. As to Ybarra’s mental retardation claim, we conclude that he failed to prove by a preponderance of the evidence that he suffered from significant subaverage intellectual functioning and adaptive behavior deficits during the developmental period, which extends to 18 years of age. ” [Oral argument here]
• Robert Lee Woodard v. Thaler, 2011 U.S. App. LEXIS 3912 (5th Cir Mar 1, 2011)(unpublished) “Assuming, without deciding, that pretrial identification procedures were impermissibly suggestive, a habeas petitioner had failed to demonstrate that under the totality of the circumstances, the suggestiveness led to a substantial likelihood of irreparable misidentification by a eyewitness and thus a violation of his Fourteenth Amendment rights.” [via LexisOne]

Noncapital

• United States v Styles Taylor and Keon Thomas, 2011 U.S. App. LEXIS 4621 (7th Cir March 9, 2011) In this former capital case, new trial ordered in light of Governmental error in violation of Batson v. Kentucky.
• In Approval of the Judicial Emergency Declared in the District of Arizona,2011 U.S. App. LEXIS 4513 (9th Cir March 2, 2011) In light of the marked lack of judges in the District of Arizona and the crushing caseload, including a very large number of capital habeas proceedings, the timelines set forth by the Speedy Trial Act, amongst guidelines, are waived for one year.
• Ward v. State, 2011 Ga. LEXIS 157 (Ga February 28, 2011) (noncap) “Defendants’ rights to be present under Ga. Const. art. I, § I, para. XII were violated because a trial court excused a juror during ex parte proceedings in their absence and without their knowledge or consent. Although counsel did not object to the trial court’s action, such inaction did not constitute a waiver for defendants.” [via Lexisone]
• Henry Adamson v. Cathel, 2011 U.S. App. LEXIS 3819 (3rd Cir Mar 1, 2011) (noncap) Use of alleged co-conspirators’ statements inculpating Petitioner, without a limiting instruction, even where it was not raised at trial, was harmful error requiring a new trial.
• Harold C. Wilson v. City of Philadelphia, 2011 U.S. App. LEXIS 3909 (3rd Cir Mar 1, 2011) (unpublished) (civil) Exonerated death row inmate (who was given just a subway token after being set free from death row) will be permitted to amend his amended complaint for compensation for the years he spent on death row.
• In re Billy James Smith, 2011 Tex. LEXIS 188 (Tex. Mar 4. 2011) (civil) [Oral argument here / brief] Compensation under the Texas wrongful conviction statute is not barred where the wrongful conviction “merely” causes a person to be incarcerated on either a probation or parole violation.
• State v. Richard J. Glassel, 2011 Ariz. App. LEXIS 24 (Ariz App.Mar 1, 2011) (civil) “Funds deposited in an inmate’s account by a family member could be used for the purpose of restitution payments to the victim’s spouse under Ariz. Rev. Stat. § 31-230(C) because that provision did not exempt funds deposited as a gift to the inmate and a donor did not retain control of money once a gift had been made.” [via LexisOne]

If you have problem accessing this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/110314.htm. Almost all cases can be found by going to Lexisone.com and typing in the appropriate lexis cite OR going to Google Scholar and typing in the name of the condemned. We'd simply ask that before printing consider our environment and saving our trees. If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named. We also borrow heavily from the good folks at the Death Penalty Information Center and the Crime Report.

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