Leading off this edition is In re Steele. The California Supreme Court in In re Steele examines the right to discovery of mitigation evidence. under both Brady and state law. Specifically, the Court examines the access to prison records and the burden shared by the prosecution and the defense reating to such materials. Curiously, despite taking a rather narror view of the prosecution's discovery obligation under Brady, especially in light of Banks v. Dretke, the Court orders discovery.

Elsewhere, in what has been a quiet week, relief has been granted in an Armed Forces death penalty case. In United States v. Kreutzea panel of the Army Court of Criminal Appeals granted relief, 2-1 on the failure of the trial court to grant the assistance of a mitigation expert. The panel also held, unanimously, that trial counsel had been ineffective, but split 2-1 holding that the Appellant suffered no prejudice from counsel's performance.

In South Carolina, David Hill received a stay relating to a challenge on the constitutionality of lethal injection.

Focus this week covers HAT/FDPRC's coverage of recent cert grants by the United States Supreme Court

Please note over the next few weeks a few formatting changes will be made, feel free to drop a line if you have suggestions. As always, thanks for reading. - K

This edition is archived at http://capitaldefenseweekly.com/archives/040315.htm.

EXECUTION INFORMATION

Since the last edition no one has been executed in the United States.

Pending execution dates include:

SUPREME COURT

No cases noted.

HOT LIST

In re Steele , 2004 Cal. LEXIS 1922 (Cal 3/8/2004) Request for a discovery order relating to prison records granted as they may contain potential mitigation evidence.

Petitioner argues that he was entitled at trial to the discovery he seeks because it was "Brady material." (Brady, supra, 373 U.S. 83.) As noted, Brady and other cases have made clear that the prosecution has a general duty to disclose evidence favorable to the defense. That this duty extends generally to evidence favorable on punishment as well as guilt was made clear in Brady itself, which referred to evidence "material either to guilt or to punishment ...." (Brady, supra, at p. 87.) "Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (Strickler v. Greene (1999) 527 U.S. 263, 280 [144 L. Ed. 2d 286, 119 S. Ct. 1936], quoting United States v. Bagley (1985) 473 U.S. 667, 682 [87 L. Ed. 2d 481, 105 S. Ct. 3375].)

Petitioner argues that information regarding his behavior in prison was mitigating evidence, and thus the prosecution had a duty to disclose it at trial. [*26] We disagree that the prosecution had the duty to disclose such evidence at trial absent a specific defense request for that information.

In a capital case, evidence favorable to the defendant bearing on punishment is of two kinds. First is evidence that mitigates the impact of the prosecution evidence, in other words, evidence that either reduces the defendant's culpability for the charged crimes or other crimes the prosecution proves at the penalty phase or weakens the strength of other aggravating evidence the prosecution presents. The prosecution's duty clearly extends to providing favorable evidence of this kind. If the prosecution proves a crime against the defendant or presents other aggravating evidence, it has a duty to disclose any evidence on these matters materially favorable to the defendant. Brady, supra, 373 U.S. 83, provides an example of this type of evidence relating to punishment. In Brady, Brady and a companion, Boblit, were convicted of first degree murder and sentenced to death. The prosecution had withheld from Brady evidence that Boblit had admitted actually committing the homicide. This evidence did not materially aid Brady regarding guilt, for [*27] both perpetrators could properly be convicted of first degree murder under state law without being the actual killer. (Id. at pp. 88, 90.) However, by suggesting that Boblit, and not Brady, was the actual killer, the admission was relevant to punishment, i.e., to whether Brady should have received the death penalty for the murder. (Id. at pp. 87-88; see United States v. Agurs (1976) 427 U.S. 97, 105-106 [49 L. Ed. 2d 342, 96 S. Ct. 2392] [explaining this aspect of Brady].)

But evidence favorable to the defendant in a capital case can extend beyond evidence relating to the prosecution evidence or theory of the case. It includes a second kind of evidence: anything regarding the defendant personally that he or she offers as mitigating. "The Eighth and Fourteenth Amendments require that the sentencer in a capital case not be precluded from considering any relevant mitigating evidence, that is, evidence regarding 'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.' " (People v. Frye (1998) 18 Cal.4th 894, 1015 [77 Cal. Rptr. 2d 25, 959 P.2d 183], quoting Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L. Ed. 2d 973, 98 S. Ct. 2954], [*28] italics added.) The second kind of evidence reflected in the italicized language permits the defendant to introduce "a broad range of evidence mitigating imposition of the death penalty." (People v. Frye, supra, at p. 1015.)

Petitioner has not cited, and we are unaware of, authority holding that the prosecution has a duty, absent a specific request, to disclose evidence of the second kind, that is, evidence relevant solely to a defendant's character or record. n4 The broad statement in Brady, supra, 373 U.S. at page 87, that the duty extends to evidence material to punishment must be read in context. Brady involved evidence relevant to the defendant's culpability for the crime and not just evidence regarding the defendant unrelated to the charged crime or any other prosecution evidence. Its purpose was to prevent the obvious unfairness of allowing the prosecution to withhold information that undermines its own case. Implicitly, Brady requires the prosecution to disclose only evidence that is favorable and material under the prosecution's evidence or theory of the case. Otherwise, the prosecution effectively would be required to do what Brady does [*29] not require, that is, to "deliver [its] entire file to defense counsel" (United States v. Bagley, supra, 473 U.S. at p. 675) in order to avoid withholding evidence that may, or may not, become favorable and material depending on whatever unknown and unknowable theory of the case that the defendant might choose to adopt.

The duty of disclosure exists to avoid "an unfair trial to the accused" (Brady, supra, 373 U.S. at p. 87) or "to ensure that a miscarriage of justice does not occur" (United States v. Bagley, supra, 473 U.S. at p. 675). Requiring the prosecution, on its own, to disclose information that might fit some defense theory but is irrelevant to the prosecution evidence or theory of the case is generally not necessary to ensure a fair trial. Because mitigation is often " ' "in the eye of the beholder" ' " (Burger v. Kemp (1987) 483 U.S. 776, 794 [97 L. Ed. 2d 638, 107 S. Ct. 3114]), the defense will know far better than the prosecution what evidence fits its theory of the case and what evidence does not. Because the defense can offer virtually anything about the defendant personally that it considers mitigating, virtually anything regarding the defendant can be exculpatory if the defense considers it so. Thus, evidence whose exculpatory nature is not obvious might become exculpatory whenever the defense so claims. But the duty to disclose evidence cannot extend to evidence the prosecution had no reason to believe the defense would consider exculpatory. Requiring [*31] the prosecution to, as the high court put it, "assist the defense in making its case" (United States v. Bagley, supra, at p. 675, fn. 6) is unnecessary when it comes to potential mitigating evidence regarding the defendant personally. It would also be overly burdensome. It is one thing to expect the prosecution to know about its own case and to provide the defense with evidence weakening that case. It is quite different to expect it to be alert to information unrelated to its case that might support a defense theory, especially given the unlimited range of potentially mitigating evidence.

If the defendant had specifically asked the prosecution to provide this information, the situation may be different. In some circumstances, the obligation to disclose evidence favorable to the defendant may require the prosecution to provide materials that the defendant specifically requests as potential exculpatory materials even if their potential exculpatory nature would not otherwise be apparent to the prosecution.

In general, "the duty to disclose such evidence is applicable even though there has been no request by the accused ...." (Strickler v. Greene, supra, 527 U.S. at p. 280.) [*32] The high court has stated that its test for materiality is "sufficiently flexible to cover the 'no request,' 'general request,' and 'specific request' cases of prosecutorial failure to disclose evidence favorable to the accused: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (United States v. Bagley, supra, 473 U.S. at p. 682 (plur. opn. of Blackman, J.); see also id. at p. 685 (conc. opn. of White, J.).) But the presence or absence of a specific request at trial is relevant to whether evidence is material under this test. "The Government notes that an incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued. [Citation.] [P] We agree that the prosecutor's failure to respond fully to a Brady request may impair the [*33] adversary process in this manner. And the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption." (Id. at pp. 682-683 (plur. opn. of Blackman, J.).) Accordingly, in determining whether evidence was material, "the reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case." (Id. at p. 683 (plur. opn. of Blackman, J.).)

Another reason a request may be significant is that the request can inform the prosecution that certain evidence is potentially exculpatory when the exculpatory nature of the evidence would not otherwise be apparent. Then the prosecution would be on notice both that the defense considered the evidence potentially exculpatory and that the defense did not have it and presumably could not get it by itself. In such a case, the prosecution could cull through the evidence, viewing it in light of [*34] the defendant's request as well as its own theory of the case. Thus, if the defense requests at trial specific evidence relevant to mitigation that the prosecution possesses, the prosecution should disclose it whether or not it relates to any of the prosecution evidence. But absent a specific request at trial, the Brady duty does not extend to evidence that relates solely to the defendant personally and whose exculpatory nature would therefore not otherwise be apparent to the prosecution. Such evidence is not material in the Brady sense. n5

The information petitioner seeks here involves his own behavior in prison. But the prosecution's case had nothing to do with petitioner's prison behavior. The instant charge was a murder committed after he was released from prison. The prosecution case in aggravation involved entirely of crimes committed before he was in prison. Prison officials did not investigate or help prosecute any of these crimes. Thus, the prosecution was generally not responsible for information prison officials possessed that might help the defense. (See People v. Superior Court (Barrett), supra, 80 Cal.App.4th 1305 [the prosecutor's duty to disclose information favorable to the defense does not extend to information the California Department of Corrections possesses unrelated to the charges].)

In this case, it appears the prosecution did provide the defense with some documents regarding petitioner's behavior in prison although, petitioner claims, not everything. This circumstance suggests, as petitioner argues, that defense counsel may have requested some such records at time of trial. But the defense was not misled into believing that no other information existed. In his reply to [*36] the opposition to the discovery motion, which he adopted by reference in his traverse, petitioner attached a copy of a report that he says the prosecutor disclosed to the defense before trial. The report was by a prosecution investigator stating that he and the prosecutor had reviewed prison records regarding petitioner. The two of them "went through all of these papers and picked out various ones that were felt to be relevant," and arranged for them to be copied and forwarded to the district attorney's office. This document clearly indicated that the investigator did not obtain all the records regarding petitioner, but only those the prosecution felt were relevant. Of course, what the prosecution felt was relevant may be very different from what the defense feels is relevant as possible mitigating evidence. By giving the defense documents that it found relevant, the prosecution did not assume, absent a specific request, the obligation to provide all prison records that the defense may have found relevant.

On the instant record, it is not clear whether petitioner specifically requested additional records at time of trial. Whether the defense did make such a request does not [*37] matter for purposes of discovery under section 1054.9. If the defense had specifically requested the prosecution to provide all of petitioner's prison records in its possession, assuming the records were otherwise material, the prosecution would have been obligated to provide them. The request would have informed the prosecution the records might be exculpatory. Accordingly, this is information to which the defendant would have been entitled at time of trial had the defendant specifically requested them. The current request--to provide documentary and similar evidence regarding "petitioner's leaving the Nuestra Familia"; "information provided by petitioner regarding the Nuestra Familia, its members and associates, and non-member collaborators"; and "assistance provided by petitioner in prosecutions pursued by the State of California and/or local prosecutors against the Nuestra Familia and others accused of collaborating with the Nuestra Familia in the commission of crimes"--is also reasonably specific. This is not just a free-floating request for anything the prosecution has that may be relevant to the case, but a focused request for specific information. Accordingly, this information [*38] comes within the scope of section 1054.9.

For these reasons, we believe petitioner is entitled to a discovery order. We have no reason to suppose there will be any difficulty with compliance or enforcement of the order, but if further proceedings are necessary, they should be conducted in the trial court, which can resolve any difficulties much easier than this court. Accordingly, we will remand the matter to the trial court with directions to issue the discovery order

CAPITAL CASES (Favorable Disposition)

United States v. Kreutzer, No. Army 9601044, (Army Crim App 3/11/2004) (dissent) A majority of the Army Court of Criminal Appeals reverses on the failure to provide a mitigation expert. The entire panel agrees counsel was ineffective but split, 2-1, against the Appellant on the issue of prejudice flowing from counsel's performance.

CAPITAL CASES (Unfavorable Disposition)

Ohio v. Jordan , 2004 Ohio LEXIS 462;101 Ohio St. 3d 216; 2004 Ohio 783;804 N.E.2d 1 (Ohio 3/10/2004) Among the denied claims were allegations that the trial judge erred by failing to have Jordan evaluated by mental health professionals before permitting him to waive his right to legal counsel and before allowing him to waive presentation of any mitigating evidence to the jury – a course of action that virtually guaranteed imposition of the death penalty.

Elizalde v. Dretke , 2004 U.S. App. LEXIS 4441 (5th Cir 3/8/2004) COA denied on "claims 1) that he is actually innocent, 2) that the State withheld exculpatory evidence, and 3) that he was denied effective assistance of counsel both at trial and during his direct appeal are procedurally barred because they were not exhausted in state court."

OTHER NOTABLE CASES

None noted.

FOCUS

From the good people at the HAT & FDPRC (capdefnet.org), this edition's "Focus" looks at what is pending in the Supreme Court. Please note that one or two recent cert. grants may be missing.

The Supreme Court has granted certiorari in the following cases involving habeas corpus issues:

Florida v. Nixon, 03-931 (cert granted March 1, 2004)

(case below: 857 So.2d 172 (2003) )

Questions presented:

I. In a capital murder case, did the Florida Supreme Court:

(a) apply an incorrect standard, contrary to Strickland v. Washington , 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002) and Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), by finding defense counsel ineffective per se under United States v. Cronic, 466 U.S. 648 (1984) despite having found counsel's strategy not to contest overwhelming evidence of guilt but to vigorously contest the sentence in the defendant's best interest and reasonably calculated to avoid a death sentence?

(b) err in concluding that Boykin v. Alabama, 395 U.S. 238 (1969) prohibited trial counsel from adopting a strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect the best interest of his client in contesting the appropriateness of imposing the death penalty?

Pliler v. Ford , 03-221 (cert granted January 9, 2004)

(case below: 305 F.3d 875 (9th Cir.))

Questions presented:

(1) Is dismissal of "mixed" habeas petition improper unless district court informs petitioner about possibility of stay of proceedings pending exhaustion of state remedies and advises petitioner with respect to statute of limitations in event of any refiling? (2) Can second, untimely habeas petition relate back to first habeas petition, when first petition was dismissed and first proceeding is no longer pending?

Nelson v. Campbell , 03-6821 (cert granted Dec. 1, 2003)

(case below: 2003 WL 22309895 (11 th Cir.))

Questions presented:

Whether a complaint brought under 42 U.S.C. sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out his execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. sec 2254?

Schriro v. Summerlin , 03-526 (cert granted Dec. 1, 2003)

(case below: 341 F.3d 1082 (9th Cir.)(en banc))

Questions presented:

(1) Did the Ninth Circuit err by holding that the new rule announced in Ring is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality)? (2) Did the Ninth Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague'sexception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?

Dretke v. Haley , 02-1824 (cert granted October 14, 2003)

(case below: 306 F.3d 257 (5th Cir.))

Questions presented:

(1) Does 'actual innocence' exception to procedural default rule concerning federal habeas corpus claims apply to noncapital sentencing error?

Click here to view cert petition.

Tennard v. Dretke , 02-10038 (cert granted October 14, 2003)

(case below: 317 F.3d 476 (5th Cir.))

Questions presented:

(1) Is Fifth Circuit rule requiring "nexus" to crime before evidence of impaired intellectual functioning can be considered as mitigation for purposes of determining whether there is a violation of Penry v. Lynaugh inconsistent with rationale of Atkins v. Virginia? (2) Did Fifth Circuit err in resolving plainly substantial question of effect of Atkins on Fifth Circuit's nexus rule by denying certificate of appealability, rather than granting COA and giving substantive issue merits consideration it deserves?

This case has been consolidated with Smith v. Dretke, 02-11309.

Click here to view the cert petition. Click here to view Tennard's reply to the Dretke's brief in opposition. Click here to view Tennard's brief

Smith v. Dretke, 0211309 (cert granted Sept. 30, 2003)

Questions presented:

Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate a 'uniquely severe permanent handicap' in order for a Texas capital murder defendant to claim that a 'nullification' instruction was improper?

Yarborough v. Alvarado , 02-1684 (cert granted September 30, 2003)

(case below: 316 F.3d 841 (9th Cir.))

Questions presented:

(1) In applying objective test for "custody" determination under Miranda , must court consider age and experience of person if he or she is juvenile? (2) Can state court adjudication be deemed "objectively reasonable" application of clearly established Supreme Court precedent, for purposes of 28 U.S.C. 2254(d), because it declines to "extend" rule of Supreme Court precedent to new context?

Click here to view Yarborough's brief. Click here to view Alvarado's brief. Oral argument will be heard on March 1, 2004.

Beard v. Banks , 02-1603 (cert. granted September 30, 2003)

(case below: 316 F.3d 228 (3rd Cir.))

Questions presented:

(1) Does this court’s decision in Mills v. Maryland, 486 U.S. 367 (1988), constitute new rule of law that cannot be applied retroactively to award sentencing relief to prisoner whose conviction became final before Mills was announced? (2) If Mills applies retroactively, where state supreme court has rejected Mills challenge because neither trial court’s instructions nor verdict form advised jury that it must be unanimous as to existence of mitigating circumstances and, to contrary, made clear that unanimity was required only to find aggravating circumstances and to impose sentence of death, is that decision reasonable application of this court’s precedent?

Oral argument will be heard on February 24, 2004. Click here to view Petitioner's Brief.

The Supreme Court has granted certiorari in the following cases which involve constitutional issues of interest to capital litigators:

Roper v. Simmons , 03-633 (cert granted 01/26/04)

112 S.W.3d 397 (Mo.))

Questions presented:

(1) Once this court holds that particular punishment is not "cruel and unusual" and thus barred by Eighth and Fourteenth Amendments, can lower court reach contrary decision based on its own analysis of evolving standards? (2) Is imposition of death penalty on person who commits murder at age seventeen "cruel and unusual", and thus barred by Eighth and Fourteenth Amendments?

Kowalski v. Tesmer , 03-407 (cert granted 01/20/04)

(case below: 333 F.3d 683 (6th Cir. En banc))

Questions presented:

(1) Does Fourteenth Amendment guarantee right to appointed appellate attorney in discretionary first appeal of indigent criminal defendant convicted by guilty plea? (2) Do attorneys have third-party standing on behalf of potential future indigent criminal defendants to make constitutional challenge to state statute prohibiting appointment of appellate counsel in discretionary first appeals following convictions by guilty pleas when federal courts properly abstained from hearing claims of indigent criminal defendants themselves?

Johnson v, California, 03-6539 (cert granted Dec. 1, 2003)

(case below: 71 P.3d 270 (Cal.))

Questions presented:

Whether to establish a prima facie case under Batson v. Kentucky , 476 U.S. 79 (1986), the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias?

Hiibel v. 6th Judicial Court of Nevada, 03-5554 (cert granted Oct. 20, 2003)

(59 P.3d 1201 (Nev. 2002))

Questions presented:

Whether it is a violation of the 4th Amendment protection against unreasonable searches and seizures to require someone to identify himself when stopped by police.

Washington v. Blakely, 02-1632 (cert granted October 20, 2003)

(case below: 47 P.3d 149 (Wash.App.))

Questions presented:

Whether a fact (other than a prior conviction) necessary for an upward departure from a statutory standard sentencing range must be proven according to the procedures mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000).

Click here to view the cert petition.

Muhammad v. Close, 02-9065 (cert. granted June 16, 2003)

Questions presented:

(1) Must plaintiff who wishes to bring 42 U.S.C. 1983 suit challenging only conditions, rather than fact or duration, of his confinement satisfy favorable termination requirement of Heck v. Humphrey? (2) May prison inmate who has been, but is no longer, in administrative segregation bring § 1983 suit challenging conditions of his confinement (i.e., his prior placement in administrative segregation) without first satisfying favorable termination requirement of Heck v. Humphrey?

Missouri v. Seibert, 02-1371 (cert. granted May 19, 2003)

Questions Presented:

Is the rule "that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights after he has been given the requisite Miranda warnings," Oregon v. Elstad, 470 U.S. 298, 318 (1985), abrogated when the initial failure to give the Miranda warnings was intentional?

United States v. Patane, 02-1183 (cert. granted April 21, 2003)

(case below: 304 F.3d 1013 (10th Cir.))

Questions Presented:

Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement?

Maryland v. Pringle, 02-0809 (cert granted March 24, 2003)

Questions Presented:

Where drugs and a roll of cash are found in the passenger compartment of a car with multiple occupants, and all deny ownership, does the 4th Amendment prohibit a police officer form arresting the occupants of the car?

Oral argument with be heard on November 3, 2003. Click here to view Petitioner's Merits Brief. Click here to view Respondent's Brief. Click here to view Petitioner's Reply Brief.

Fellers v. United States, 02-6320 (Cert granted March 10, 2003)

(lower court opinion: 285 F.3d 721 (8th Cir. 2002))

Questions Presented:

(1) Did the 8th Circuit err when it concluded that Feller's 6th Amendment right to counsel under Massiah v. United States, 377 U.S. 201 (1964), was not violated because he was not interrogated by government agents when the proper standard under Supreme Court precedent is whether the the government agents deliberately elicited information from him? (2) Should second statements, preceded by Miranda warnings, have been suppressed as fruits of an illegal post-indictment interview without the presence of counsel, under this Court's decisions in Nix v. Williams, 467 U.S. 431 (1984), and Brown v. Illinois, 422 U.S. 590 (1975)

United States v. Banks, 02-473 (cert. granted Feb. 24, 2003)

(case below: 282 F.3d 699 (9 th Cir.))

Questions Presented:

Did law enforcement officers executing warrant to search for illegal drugs violate Fourth Amendment and 18 U.S.C. § 3109, thereby requiring suppression of evidence, when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knocking and announcing their presence?

Oral argument was heard on October 15, 2003. Click here to view Petitioner's Merits Brief. Click here to view Respondent's Brief. Click here to view Petitioner's Reply Brief.

FROM AROUND THE WEB

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

POLITICAL MANIPULATION: Legislators Try to Control What the Courts Consider

Two Congressmen have introduced a non-binding resolution, backed by the threat of impeachment, that would express the sense of Congress that U.S. judges should not consider foreign laws or court decisions in their rulings. The measure, authored by Republican Representatives Tom Feeney of Florida and Bob Goodlatte of Virginia, was triggered by recent court decisions, including death penalty cases, in which justices made reference to laws or opinions in other countries. Feeney raised the prospect of impeaching justices that don't comply: "To the extent they deliberately ignore Congress' admonishment, they are no longer engaging in 'good behavior' in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment." Supreme Court Justice Stephen Breyer has noted that the Declaration of Independence calls for giving a “decent respect to the opinions of mankind.” Justice Sandra Day O’Connor has also noted the importance of considering international law in weighing decisions. She said that referring to international precedent “may not only enrich our own country’s decision, I think it may create that all-important good impression.” With the regard to the death penalty, the Supreme Court recently referenced international opinion in examining the constitutionality of executing those with mental retardation. (MSNBC News, March 11, 2004). See International Death Penalty. See Supreme Court.

Military Death Sentence Vacated

An Army Court of Criminal Appeals has vacated the death sentence of William Kreutzer, a Fort Bragg soldier who was sent to the military’s death row for killing a fellow soldier and wounding others in 1995. The Court cited a number of grounds for the ruling that opens the door for rehearings on some charges and the sentence. For example, Kreutzer’s attorneys failed to adequately explain the significance of their client’s mental health problems for the panel that determined his guilt and sentence. In the ruling, Col. James S. Currie noted, “Appellant’s trial can be summed up in one sentence: Three defense counsel who lacked the ability and experience to defend this capital case were further hampered by the military judge’s erroneous decision to deny them necessary expert assistance, thereby rendering the contested findings and the sentence unreliable.” Court documents revealed that Kreutzer had considered suicide at age 16 and “fantasized out loud” about killing fellow soldiers after they teased him and played practical jokes on him. The Appeals Court criticized the trial judge for refusing to grant a defense request for a “mitigation specialist,” who could explain how Kreutzer’s mental health problems contributed to his actions. See Military Death Penalty. See also Representation.

Death Sentences Decline Dramatically in North Carolina

According to District Attorney Tom Keith, death sentences in North Carolina have dramatically declined because jurors are increasingly skeptical of the justice system. Last year, 6 people were sent to North Carolina’s death row, far less than the 26 who were given death sentences in 1999. Keith, who is moving resources away from death penalty cases and to aggressively targeting gun criminals before they kill, believes that a number of high-profile wrongful convictions and DNA exonerations have contributed to the trend toward fewer death sentences. “We’re losing the public-relations war. I’m not going to keep trying them and trying them and trying them because I’m in love with the death penalty. If we’re wasting our time, we won’t try them,” Keith stated. "If this community doesn't want to convict people of capital murder, I'll listen to what the people say." Concerns about innocence and fairness have also spurred death penalty reforms in recent years, including a bill to ban the execution of those with mental retardation and legislation to provide prosecutors with the option to take guilty pleas in capital cases in exchange for life-without-parole sentences. (Associated Press, March 14, 2004) Four people have been exonerated from North Carolina’s death row, including Alan Gell in February 2004. See Innocence. See Sentencing. See DPIC's Year End Report.

Latest Death Row USA Report Released

The NAACP Legal Defense and Educational Fund (LDF) has released its latest Death Row USA report. Data from this and previous reports for 2003 show that there were 143 new death sentences in the United States in 2003, the fewest number since 1977 and about 50% fewer than the annual new sentences in the late 1990s, which averaged about 300 per year. According to LDF, 3,503 people were on death row in the United States as of January 1, 2004, a decrease from the 3,697 reported on October 1, 2002. Of those 1.4% are women and 2.28% are juveniles. The jurisdictions with the most juvenile offenders on death row include Texas (28), Alabama (15), Louisiana (7), Arizona (6), and Mississippi and North Carolina (5 each). Jurisdictions with the highest percentage of minorities on death row include Colorado (100%), U.S. Military (86%), U.S. Government (75%), Louisiana (72%), and Pennsylvania (70%). In addition to information about those who are currently on death row in the United States, Death Row USA contains data about those who have been executed and an update on cases before the U.S. Supreme Court. (NAACP Legal Defense and Educational Fund, “Death Row USA Winter 2004,” January 1, 2004). See Death Row USA. See DPIC’s 2003 Year End Report.

Mexico Protests Execution Date For Its Citizen in Oklahoma

Mexican President Vicente Fox has urged the United States to halt the execution of Osvaldo Torres, a Mexican foreign national who is scheduled to die in Oklahoma on May 18th. Oklahoma set the execution date despite a 2003 ruling by the International Court of Justice, based in The Hague, that called for staying Torres’s execution and the execution of two other foreign nationals in Texas until the Court could further review the case. The allegation before the world court is that Torres and more than 50 other Mexican prisoners in the U.S. have been arrested, tried, and sentenced to death without notice of their opportunity to seek aid from the consulate, as required under the Vienna Convention on Consular Relations. Oklahoma's Attorney General had also requested that an execution date not be set. Geronimo Gutierrez, the Mexican foreign ministry’s undersecretary for U.S. affairs, noted that Oklahoma’s decision to set a date for Torres upset Mexico and its President, who opposes capital punishment in all circumstances. “This for us is a deliberate violation of the provisional measures that the International Court of Justice dictated,” said Gutierrez. In 2002, Fox abruptly cancelled a meeting with Bush after Texas executed a Mexican foreign national. (Reuters, March 2, 2004) See Foreign Nationals.

Florida Capital Punishment Supporter Urges State to Abandon Juvenile Death Penalty

Florida Senator Victor Crist (R-Tampa), a long-time death penalty supporter, is asking his legislative colleagues to support a bill to bar the juvenile death penalty in Florida. “In my heart and soul I believe it’s the right thing to do. There is a certain essence of juveniles that make them different,” said Crist. Research supports that notion. David Fassler, a Vermont psychiatrist who helped the American Academy of Child and Adolescent Psychiatry draft its policy against capital punishment for juveniles stated, “[L]aws raising the drinking age to 21 or setting the voting age at 18 already recognize that adolescents are different than adults. Now we really have very solid scientific evidence that, even when they do horrible things, they shouldn’t face the same punishment as adults.” Crist believes the bill will succeed in the Senate, which passed a similar measure in 2001. Nationally in 2004, South Dakota and Wyoming have both abandoned the juvenile death penalty, bringing the total number of states that forbid the practice to 31, including the 12 non-death penalty states. The Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. (Orlando Sentinel, March 8, 2004) For editorials from around the country in support of such a measure, see DPIC’s Roper v. Simmons page and Juvenile Death Penalty.

INNOCENCE: Formerly Exonerated Death Row Inmate Now Cleared of All Charges

Steven Manning, a former Chicago police officer who was exonerated from Illinois' death row in 2000 but remained in a Missouri prison on another charge, has been freed after Missouri prosecutors dropped all charges against him. In January 2000, 7 years after he was sentenced to death in Illinois, a judge threw out Manning’s death sentence and conviction because the state used inadmissible testimony to secure his conviction. Cook County prosecutors later dismissed their case against Manning because the testimony of the remaining key witness in the case, Tommy Dye, was unreliable. Dye, a notorious jailhouse snitch, had a long history of lying under oath and of receiving benefits from prosecutors in exchange for testimony in cases. After Illinois prosecutors dropped their case, Manning challenged his Missouri kidnapping conviction. This charge was also based on unreliable informant testimony, most notably statements given by a kidnapping ringleader who later complained that the state failed to pay him the money they had promised for his testimony. The state also used the testimony of a questionable eyewitness who failed to accurately identify Manning during his first trial. “I’m not sure a kidnapping even occurred," said defense attorney Cynthia Short. "Not only do I think Steve was never involved, I don’t know it happened,” she said after the Missouri charges were dismissed in February 2004. Manning is now free and is suing two FBI agents for their role in his wrongful convictions. (Chicago Tribune, Feb. 27, 2004) See Innocence . There have been 113 death row inmates exonerated since 1973. Manning's reversal in Illinois led to a moratorium on all executions in that state that remains in place.