Leading off the edition is the en banc decision by the Fifth Circuit in Robertson v. Cockrell. At issue is whether Penry II overturned the Fifth Circuit's construction of the constitutionality of the Texas "special issues" for cases tried prior to September 1, 1991, when the new "mitigation special issue" was added to the Texas statute. The majority holds, Penry II did not disrupt the Circuit's precedent for these cases. As Judge Higginbotham notes in concurrence, "the majority claims to state no new law for the circuit, the district courts and bar need not divine what new wrinkle is intended."

Also highlighted this week is the Indiana Supreme Court's decision in Indiana v. Dye. The Dye Court examine when a juror's omissions and false responses on jury questionnaires and during voir dire amount to the denial of a fair trial. The Dye Court holds that a juror's failure to mention [1] her being a victim of a violent crime, [2] failure to mention her brother had been sentenced to death, and [3] failure to mention that for anyone, including her brother, who was convicted of murder should be killed, denied Dye a fair trial..

Three other capital cases also deserve mention. In Kubsch v. Indiana the Indiana Supreme Court holds the trial court erred in admitting Kubsch's entire videotaped interrogation into evidence including portions that showed the invocation of the right to silence. In Florida v. Coney the Florida Supreme Court holds the trial court correctly found "trial counsel's performance was plainly deficient" in failing to adequately investigate. The Supreme Court has stayed the execution of Delma Banks in Texas pending determination of whether to grant certiorari, details to follow as they become available.

Finally, the U.S. Supreme Court 40 years ago Tuesday issued Gideon v. Wainwright. NACDL has developed a comprehensive page on the topic (http://www.nacdl.org/gideon) and NLADA have done a superb job as well as detailing the shortcomings nationally on the anniversary of Gideon (http://www.nlada.org/Defender/Defender_Gideon/Gideon_Reviewed).

HOT LIST

Robertson v. Cockrell, 2003 U.S. App. LEXIS 4537 (5th Cir 3/14/2003) (en banc) (dissents) At issue is whether Penry II overturned the Fifth Circuit's construction of the constitutionality of the Texas "special issues" for cases tried pronouncement of Penry I to September 1, 1991, when the new "mitigation special issue" was added to the Texas statute. Penry II held not to change Circuit precedent.

The Texas Special Issues Provided Robertson's Jury with a Vehicle by Which It Could Give Effect to His Mitigating Evidence

The first question before this court is whether the Texas special issues failed to provide Robertson's sentencing jury with an appropriate vehicle to give mitigating effect to his evidence of childhood abuse and substance abuse. Based on this court's consistent interpretation of Penry I, we hold that the statutory special issues alone were adequate to allow the jury to give effect to Robertson's mitigating evidence.

Following Penry I, petitioners convicted in Texas have invoked that decision and requested additional instructional vehicles for many different types of mitigating evidence, including but not [*17] limited to subnormal intelligence, n5 youth, n6 troubled or abused childhood, n7 intoxication, n8 substance abuse, n9 head injury, n10 good character, n11 mental illness, n12 antisocial personality disorders, n13 and dyslexia. n14

Penry I required such a vehicle only with regard to evidence of diminished culpability arising from a combination of extreme childhood abuse and mental retardation. This thus requires -- to ensure its "full mitigating effect" -- a more capacious vehicle than the Texas special issues afforded. With equal clarity, however, the Court has also held that youth [*23] does not require additional instructions: "We decide that there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth." Johnson v. Texas, 509 U.S. 350, 368, 125 L. Ed. 2d 290, 113 S. Ct. 2658 (1993), aff'g 773 S.W.2d 322 (Tex. Crim. App. 1989)

As to all the other types of mitigating evidence, the pertinent inquiry is and has been, by what principle should the line between Penry I and non-Penry I evidence be drawn? For ten years, this court has subscribed to a test articulated by Judge Garwood in response to Gary Graham's assertion that his youth presented Penry evidence. Was the criminal act "due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own"? Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en banc), aff'd, 506 U.S 461, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993). This formulation encompasses four principles found in Penry I: voluntariness, permanence, severity, and attribution. Did the defendant acquire his disability voluntarily or involuntarily? [*24] Is the disability transient or permanent? Is the disability trivial or severe? Were the criminal acts a consequence of this disability?

These principles were and are readily apparent from the Court's opinion in Penry I. The principle of voluntariness is found in the Court's insistence on the defendant's constitutional right to a thorough assessment of his "culpability." 492 U.S. at 319. ("Underlying Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982) is the principle that punishment should be directly related to the personal culpability of the criminal defendant." Id.) Permanence is derived from the fixed biological character of Penry's evidence: "As a child, Penry was diagnosed as having organic brain damage, which was probably caused by trauma to the brain at birth." Id. at 307; "Penry's brain damage was probably caused at birth . . ., but may have been caused by beatings and multiple injuries to the brain at an early age." Id. at 308-309. Severity was divined from the objective expert testimony that demonstrated the unique [*25] character of the abuse he suffered, his limited cognitive faculties, and his inability to learn from his mistakes. Id. at 309-10. And attribution from the Court's belief that Penry, like other defendants whose "'criminal acts . . . are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.'" Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (O'Connor, J., concurring)). Moreover, following the Supreme Court's example and admonition, this court has decided each Penry-instruction entitlement claim "on the facts of the case." Penry I, 492 U.S. at 315.

Each of our post-Penry I cases has approached the evidentiary claim with the principles sketched above. In some cases we stopped after voluntariness, because this threshold requirement simply had not been met. In Barnard v. Collins, for instance, the self-inflicted character of substance abuse gave no occasion for engaging in further inquiry. 958 F.2d 634, 639 (5th Cir. 1992). In Hernandez v. Johnson, the disability was involuntary, [*26] but we stopped the inquiry after noting the transient character of the affliction, because the petitioner's mental illness could be controlled by medication and treatment. 248 F.3d 344, 349 (5th Cir. 2001). In another, the disability was neither voluntarily assumed nor transitory, but the petitioner's dyslexia was not so "uniquely severe" as to "rise to the level of a Penry claim." Madden, 18 F.3d at 308. And on yet another of Barnard's claims, that he had been beaten by his son-in-law with a tire iron several months before the crime, this court concluded that the meager evidence at bar (no expert testimony concerning brain damage or psychological defects had been offered) failed "to raise an inference 'that the crime is attributable to the disability.'" Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at 1033).

Robertson nonetheless argues that childhood abuse is one category of evidence that Penry I should categorically include, on account of its debilitating character and the fact that severe and prolonged abuse was among the disabilities that Penry himself alleged. Moreover, Robertson contends, this court [*27] has categorically excluded childhood abuse from the scope of Penry I. Robertson's reading of the Fifth Circuit cases is incorrect, and his overall argument is inapposite to the facts.

Robertson's misreading can be seen from a simple survey of the cases in which the assertion of childhood abuse was proffered as mitigating evidence. See supra n.7. In most, this court acknowledged the possibility that the petitioner's unfortunate childhood might require a Penry vehicle, but could not find the requisite severity or attribution. Barnard's allegation of a troubled childhood was soundly dismissed by this court, when the only evidence he adduced was that his parents divorced when he was four, he did not see his father until he was 13, lived with him briefly, and then moved in with his uncle. But the court did not dismiss out of hand the possibility that "the adverse effects of a troubled childhood might well raise a Penry issue." Barnard, 958 F.2d at 639; see also Davis v. Scott, 51 F.3d 457, 462 (5th Cir. 1995). The court addressed Robert Madden's claim in much the same way. He proved that his father abandoned him and his mother when he was [*28] two years old, that his mother remarried when he was five, and that his stepfather cared for him well. The court held, once again, that if abuse causes psychological effects to which criminal conduct is attributable, a Penry claim might exist, but the panel expressed doubt that there was abuse, that this non-existent abuse had any psychological effect, and that this non-existent psychological effect led to his criminal act. Madden, 18 F.3d at 308. In Hernandez, a case in which the facts come close to Penry's, we again admitted the potential relevance of childhood abuse, where the crime is attributable to the offense. 248 F.3d at 349. And, lest it be concluded that this calculus produces possibility but not results, we recently concluded that Michael Blue's experience of parental abandonment, physical and sexual abuse, minimal brain injury, schizophrenia, and resultant poor impulse control -- all supported by abundant evidence -- satisfied the Graham formulation. Blue vv. Cockrell, 298 F.3d 318, 321-22 (5th Cir. 2002).

In sum, Fifth Circuit caselaw recognizes the possibility that evidence of an abusive childhood might give rise [*29] to a Penry claim. But to recognize the possibility is not to concede that any history of childhood abuse rises to the level of Penry-type evidence. In Penry I, the abuse included beatings on Penry's head, which according to an expert could have produced the brain damage from which he suffered. Moreover, this evidence was inseparable from the Court's greater concern with Penry's mental retardation and poor impulse control. Childhood abuse alone is not systematically discussed by Penry I in its relation to the Texas special issues. This does not mean we can overlook the Court's holding, and as shown, our cases have not done so. But the un- plumbed nature of the issue at the Supreme Court surely indicates the appropriateness of fact-specific rather than categorical analysis of childhood abuse under Penry I. Moreover, it is neither logically nor empirically true that generic childhood abuse, regardless of duration, type, or severity, bears the same characteristics as mental retardation, or complies with the four principles that this court articulated in Graham as the touchstones for identifying Penry-type evidence.

Robertson's case falls within our post- [*30] Penry I jurisprudence inasmuch as, on a factual level, his claim of childhood abuse is fairly vague and, with a lack of expert testimony, exhibits no nexus to his brutal crimes. The evidence involves Robertson's early years living with an alcoholic father, followed by a peaceful life with his mother and stepfather after he became eight or nine years old. There is at most sketchy evidence of beatings, but no evidence of experiences akin to Penry's.

The paucity of evidence leads to the conclusion that the statutory special issues were adequate to allow the jury to effectuate the mitigating potential of Robertson's evidence. This evidence did not have a "major mitigating thrust" beyond either of the special issues. Graham, 950 F.2d at 1027. Even though Robertson's experience of childhood abuse was involuntary, and assuming (though this is unexplained by the evidence) that it was permanent in effect, it was shown neither to be severe nor to have any causal nexus with his crimes.

The same holds true for Robertson's plea that the mitigating effect of his drug addiction constitutes Penry evidence. This argument is very nearly without merit, as it utterly fails to [*31] satisfy the Graham formulation. Self-inflicted substance abuse is patently neither involuntary nor permanent. Because Robertson's contention fails these two prongs, there is no need to ask whether his substance abuse was severe or causally connected to his crime. In each of the many cases in which petitioners have argued that evidence of substance abuse mitigates their culpability, this court has unequivocally dismissed the contention. n15

It is also worthwhile to reiterate that Robertson's evidence of childhood abuse and drug addiction does not constitute a "two-edged sword" -- giving a strong basis for reduced culpability, while nearly assuring a jury finding, on the second interrogatory, that Robertson would remain dangerous to society. Such "atypical" n16 evidence led the Supreme Court in Penry's case to conclude that the Texas statutory special issues were constitutionally inadequate. This court has held, albeit on fact- specific analysis, that evidence of childhood abuse is not "two- edged" because the jury "would not have necessarily given only aggravating effect to [a petitioner's]" evidence; this is so because it "was able to consider in some manner [the petitioner's] relevant mitigating evidence . . . under Texas' sentencing scheme". Motley v. Collins, 18 F.3d 1223, 1235 (5th Cir. 1994) (emphasis in original); Lackey, 28 F.3d at 489; James, 987 F.2d at 1121. Compare Motley, 18 F.3d at 1235 (evidence of severe childhood abuse did indeed suggest his future dangerousness, but was not the sort of "two-edged" evidence identified by [*33] Penry I, because its effect on the future dangerousness special issue was not solely aggravating). n17 The vague and inconclusive evidence submitted by Robertson leads to the same result here.

Finally, regarding his substance abuse, even if this court were willing to entertain the argument that Robertson's condition reduced his moral culpability (and thus might incline the jury to render a favorable answer to the deliberateness issue), the condition does not aggravate his exposure under the future dangerousness issue. The reason for this is simply that addiction is a treatable condition. n18

B. Penry II Does Not Disturb the Fifth Circuit's Post-Penry I Case Law

Robertson also argues that Penry II requires this court to review and revise the above-described post-Penry I juris- prudence. This contention has two components. First, he contends that this court has misinterpreted Penry I all along. Second, whatever our past approach, Penry II expands the nature and scope of evidence that requires modification of the pre-1991 statutory scheme. We reject both contentions.

The second is easily dismissed. In Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the Supreme Court barred the application of new rules of law on federal habeas corpus review. Teague remains applicable after the passage of the AEDPA. Horn v. Banks, 536 U.S. 266, 153 L. Ed. 2d 301, 122 S. Ct. 2147 (2002). Accordingly, in Penry I, the Court demonstrated that its conclusion did not constitute a "new rule" of constitutional law. n19 In Penry II, the Court professed only to reiterate the holding of Penry I. 532 U.S. at 797. Though one might argue -- as Robertson now does -- that Penry II silently [*36] modifies Penry I and encroaches upon Jurek, such an act is expressly forbidden by Teague. Far be it from us to hold that the Court violated its own principle; we do not so read Penry II or so hold.

The first component of Robertson's argument requires greater explanation.

Penry I reaffirmed the continuing constitutionality of Texas's statutory death penalty special issues, as the Court had earlier construed them. See Jurek, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950; Franklin v. Lynaugh, 487 U.S. 164, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988). On the other hand, Penry I held that in some cases, the special issues did not give Texas capital juries sufficient opportunity to consider and give mitigating [*37] effect to proffered evidence. For the reasons articulated by this court's en banc decision in Graham, we concluded that Penry I was an exception to Jurek, not Jurek to Penry I. Graham, 950 F.2d at 1027.

Any doubts this court might have harbored fled when Graham's logic was sustained -- twice -- in the Supreme Court's next term. The first instance occurred in the course of the Court's review of Graham, 506 U.S 461, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993), where it described the relationship between Penry I and Jurek as follows:

We are not convinced that Penry could be extended to cover the sorts of mitigating evidence Graham suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh. . . . As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's "moral culpability" apart from its relevance to the particular concerns embodied in the Texas special issues.

Id. at 476 (citations omitted). n20

The Supreme Court did so again much more emphatically in Johnson v. Texas, 509 U.S. 350, 125 L. Ed. 2d 290, 113 S. Ct. 2658 (1993), aff'g 773 S.W.2d 322 (Tex. Crim. App. 1989), a case on direct appeal, unconstrained by Teague's limit on habeas review. Rejecting Johnson's argument that his youth and immaturity provided mitigating evidence beyond the scope of the Texas special issues, the Court reaffirmed the "limited view of Penry," 509 U.S. at 365:

In addition to overruling Jurek, accepting petitioner's arguments would entail an alteration of the rule of Lockett and Eddings. Instead of requiring that a jury be able to consider in one manner all of a defendant's relevant mitigating evidence, the rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.

Id. at 372.

Moreover, while it is inappropriate to ascribe undue significance to denials of certiorari, it should at least be noted that the Supreme Court has been loathe to disturb this court's interpretation of Penry I. In the decade from [*39] the en banc decision in Graham (January 3, 1992) to the end of 2002, numerous petitioners asked this court to overturn their capital sentences on the basis of Penry-evidence claims. Of the 47 cases we addressed on the merits, this court applied the Graham interpretation of Penry I in each and concluded that only one of these petitioners, Michael Blue, had mustered evidence with a mitigating thrust beyond the special issues. Blue, 298 F.3d 318. Of the remaining 46 petitioners, 42 petitioned the Supreme Court for writ of certiorari. n21 The Court dismissed the writ in one of them, Lucas v. Johnson, 132 F.3d 1069, remanded the instant case for reconsideration in light of Penry II and one other on separate grounds, n22 and denied the petitions in the remaining 39. n23 Furthermore, in 14 of these 39 cases petitioners alleged child abuse. n24 A sizable number of these 14 present factual allegations that are quite similar to Robertson's. Certiorari was denied in all of those cases. In light of the Supreme Court's consistent denial of Penry-based petitions, it would be unwarranted for us to abandon our established precedent under [*40] the Graham framework.

In sum, Penry II makes no inroads on the Penry I-Jurek framework that governed Texas law until the capital punishment statute was amended in 1991. Penry I does not speculate on the effect of the Texas statutory issues beyond the type of facts adduced in Penry's case. No question was before the Court in Penry I or II on the general treatment of mitigating evidence under the Texas law. Justice Kennedy concurred with the Penry II opinion, a vote that would be unexpected had Penry II overruled Graham or Johnson [*42] , as he was in the majority in Graham and wrote the Court's opinion in Johnson. Significantly, the Penry II dissent argues only with the majority's interpretation of the instruction and contains no hint of concern that Graham or Johnson, to say nothing of Jurek, might be up for reevaluation. Irrespective of the serious Teague issue that would be raised by reading Penry II to undermine our post-Penry I jurisprudence, such a reading is simply wrong.

This court therefore holds that our en banc Graham formulation gives proper effect to Penry I. We emphasize our confidence in the propriety of its continued use.

C. The Trial Court's Presentation of the Supplemental Instruction Does Not Constitute Error, Reversible or Otherwise

Robertson argues, in the alternative, that, even if his mitigating evidence is not "constitutionally relevant," the trial court's recitation of the supplemental instruction to his jury is an error requiring vacatur of his capital sentence. We disagree. In the absence of Penry-quality mitigating evidence, the presentation of this instruction does not constitute error of any sort. n25 As a result, there [*43] is no need to reach a harmlessness analysis. Nonetheless, because Robertson argues that the Supreme Court has concluded that the recitation of this supplemental instruction does indeed constitute error, a brief explanation for this holding is necessary.

In Penry II, the Supreme Court declared that the supplemental instruction is subject to two possible interpretations. Penry II, 532 U.S. at 798. First, "it can be understood as telling the jurors to take Penry's mitigating evidence into account in determining their truthful answers to each special issue." Id. Alternatively, "it is possible to understand the supplemental instruction as informing the jury that it could simply answer one of the special issues 'no' if it believed that mitigating circumstances" made the death penalty inappropriate. Id. [*44] (quotations and citations omitted).

The Court found that under either interpretation the supplemental instruction failed to cure the special issues' flaws. Construed as a vehicle to effectuate Penry's mitigating evidence, the supplemental instruction was insufficient because "none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry's mental retardation and child abuse." Id. Construed, alternatively, as a "nullification instruction," as Robertson tendentiously calls it, it "made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation." Id. at 799.

The concerns that motivated the Supreme Court in Penry II are not present in the case at bar. First, because Robertson's culpability-mitigating evidence is encompassed by the Texas special issues, there is no need to provide an additional vehicle for it. If anything, the supplemental instruction, under this interpretation, provided Robertson with a more capacious vehicle than was constitutionally warranted. Second, the supplemental instruction did not render the jury charge potentially contradictory. [*45] The jury was not forced into the position -- as they were in Penry II -- of falsely answering "no" to the questions of deliberateness or future dangerousness. The most that one could say is that the supplemental instruction was redundant in this case.

Absent the quality and quantity of mitigating evidence necessary to raise a Penry claim, we decline to find that recitation of the supplemental instruction to Robertson's jury constitutes error of any sort.

Indiana v. Dye, 2003 Ind. LEXIS 210 (Ind 3/6/2003) "The post-conviction court concluded that a juror's omissions and false responses on her jury questionnaires and during voir dire amounted to gross misconduct that probably harmed the defendant, denying him a fair trial."

The post-conviction court concluded that a juror's omissions and false responses on her jury questionnaires and during voir dire amounted to gross misconduct that probably harmed the defendant, denying him a fair trial. The State appeals this determination, and Dye cross-appeals the post-conviction court's rejection of his other claims. We affirm the post-conviction court.

Either the State or the defendant may appeal a post-conviction decision, and in either case our standard of review is governed by Indiana Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

The State's appeal is determined using the "clearly erroneous" standard. It is a review for sufficiency of the evidence, and we neither reweigh the evidence nor determine the credibility of witnesses but consider only the probative evidence and reasonable inferences supporting the judgment. Moore v. State, 771 N.E.2d 46, 50 (Ind. 2002). We reverse only on a showing of "clear error" – that which leaves us with a definite and firm conviction that a mistake has been made. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). In reviewing the State's claim that the post-conviction court erroneously granted relief to the defendant, "the inquiry is essentially whether there is any way the trial court could have reached its decision." Id. at 1120 (emphasis in original).

The State contends that the post-conviction court clearly erred in concluding that a new trial was required by its findings that Jackie Gunn, a juror during both the guilt phase and penalty phase of the defendant's trial, concealed her and her family's criminal histories, her history as a victim of a crime, and her disposition to impose the death penalty. The State argues that the inaccuracies in Gunn's questionnaire answers were unintentional, her victimization was dissimilar and remote, and that she repeatedly affirmed that she could be a fair juror and would decide the case on the evidence presented.

The prospective jurors were sent two questionnaires in advance of trial, which Gunn received and completed. In one, the prospective jurors were requested to answer various questions including the following:

25. Have you or anyone in your immediate family ever appeared as a witness in any court case, before a grand jury, or any type of proceeding?

26. Have you or any family member ever been a witness to a crime?

27. Have you or any family member ever been a victim of a crime?

28. Have you or any family member ever been charged with a crime?

41. Do you feel the death penalty should be mandatory for any particular type of crime?

44. If you believed that a person was guilty of the intentional murder of another person, would you automatically[:] vote for the death penalty; vote against the death penalty; don’t know

Petitioner’s Exhibit 11(A) (Gunn Questionnaire). In another questionnaire, the prospective jurors were asked:

10. Have you or any member of your immediate family ever appeared in court for any reason (other than traffic)

11. Have you or any member of your immediate family ever been a victim of a crime?

Id.

In answering the questionnaires, Jackie Gunn answered each of the above questions negatively, indicating that neither she nor any members of her family had ever appeared as a witness or been in court for any other reason, or been the victim of, witness to, or charged with a crime. She also stated in her juror questionnaire that she did not feel the death penalty should be mandatory for any type of crime, but would vote automatically for the death penalty if a person were found guilty of intentional murder.

During voir dire, the trial court asked the prospective jurors if they believed everyone who commits murder should be given the death penalty, and Gunn did not respond. Trial Record at 863-65. Also during voir dire, defense counsel asked: "Anybody have any contact with the prison system as a worker, or even somebody in your family that's been in prison? And I don't mean the county jail, I mean the Department of Corrections?" Id. at 1639. Mrs. Gunn responded, "I had a brother in prison, and he's deceased now." Id. When asked, she said that she had never visited her brother, who had been incarcerated in California. Id. She was not asked nor did she volunteer any further details. Gunn was seated on the jury.

At the post-conviction review hearing, however, Gunn testified that her brother had been convicted of two homicides in California, was sentenced to death, and died while incarcerated. P.C.R. Tr. at 17-18. Members of her family testified on his behalf during the penalty phase of his capital case. Gunn testified that she believed her brother deserved the death penalty because a person should receive the death penalty for killing someone. Id. at 18. In her testimony, she explained that she did not mention her brother or his death sentence in her questionnaire because "at the time I didn’t think it was anybody's business." Id. at 22. Two of Gunn's siblings had been arrested, but she did not mention that in her questionnaire because, "I didn't think about none of them." Id. She did not disclose her own conviction for operating while intoxicated because she "didn't even think about it." Id. When she was two or three years old she was raped by an uncle, a fact that she revealed in her post-conviction testimony but did not disclose on her questionnaire because she "tried to forget it." Id. Her uncle was never charged for the offense. Gunn admitted in her post-conviction testimony that she thought about the rape during the defendant's trial. Id. at 20.

The State argues that because the defendant failed to establish that Gunn intentionally withheld the information regarding her and her family's criminal histories, her omissions do not amount to gross misconduct and probable harm. Furthermore, the State urges that Gunn's failure to disclose that she had been raped as a young child was not gross misconduct because Gunn also stated that she would be able to be an impartial juror and appropriately evaluate the evidence, and because any bias Gunn might have had because of being raped "is too remote and attenuated to sustain a reasonable degree of probability that she was biased." Br. of Appellant at 10. The State also claims that Gunn's failure to respond to the court's questions in voir dire regarding the automatic imposition of the death penalty does not amount to gross misconduct because the defendant waived consideration of the issue by failing to challenge Gunn for cause based on her inconsistent responses. The State also asserts that there is no evidence that at the time of the defendant's trial she was an "automatic death penalty juror." Id. Finally, the State argues that there is a considerable societal interest in the finality of criminal proceedings, and that the integrity of the jury system requires us to reverse the post-conviction court's judgment. Id.

The United States Supreme Court articulated a particularized test for determining whether a new trial is required due to juror deceit during voir dire or on jury questionnaires in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct 845, 78 L.Ed.2d 663 (1984). The two-part test states that in order to obtain a new trial, the defendant "must first demonstrate that a juror failed to answer honestly a material question . . . and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556, 104 S.Ct. at 845, 781 L.Ed.2d at 671. The juror's incorrect response in McDonough was an honest mistake, but the test applies equally to deliberate concealment and to innocent non-disclosure. See, e.g., Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995); United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7th Cir. 1992). McDonough was a civil case, but it has been applied on federal habeas review. See Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998).

In Warner v. State, 773 N.E.2d 239 (Ind. 2002), we confronted a claim that juror misconduct in a criminal case warranted a new trial and noted:

Generally, proof that a juror was biased against the defendant or lied during voir dire entitles a defendant to a new trial. A defendant seeking a new trial because of juror misconduct must show gross misconduct that probably harmed the defendant. We review the trial judge's determination on these points for abuse of discretion.

Id. at 246 (included citations omitted); see also Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001) ("juror misconduct will warrant a new trial only when the misconduct is both 'gross' and 'harmed the defendant' "). The trial court in Warner concluded that the juror did not deliberately withhold information, that she was not biased, and that the defendant received a fair trial. On appeal, we found no abuse of discretion, declined to find gross misconduct, and concluded that there was "very little likelihood that the juror's omitted response in any way affected the verdict." Warner, 773 N.E.2d at 247.

In contrast, the post-conviction court here concluded that juror Gunn made omissions and false statements on her jury questionnaires and during voir dire, that those responses amounted to gross misconduct, and probably harmed the defendant by denying him a fair trial. These determinations present mixed issues of fact and law. We do not defer to the post-conviction court's determinations of law, but we do accept its factual findings unless they are "clearly erroneous." Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999).

****

In deciding to reverse the defendant's sentence and convictions, the post-conviction court cumulatively addressed the individual claims of juror misconduct:

The combination of these omissions and false statements cannot be ignored. Having found that gross juror misconduct has been established in this cause, the court further finds that the misconduct by Ms. Gunn probably harmed the defendant. Jackie Gunn's strong views concerning the death penalty, combined with her own alleged sexual abuse, resulted in a verdict and sentencing recommendation that probably harmed the defendant by denying him a fair trial. Mr. Dye's convictions and sentence must be reversed due to gross juror misconduct.

Appellant's App. at 811.

In our review of the State's claim that the post-conviction court's findings are clearly erroneous, we are cognizant that Judge Gifford, who presided in both the original trial and the post-conviction hearing, was in an exceptional position to assess not only the weight and credibility of the factual evidence, but also the probable impact of the alleged juror misconduct, including whether it deprived the defendant of a fair trial. Because the court's findings are mixed questions of law and fact, we consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. State v. Holmes, 728 N.E.2d 164, 168-69 (Ind. 2000); Spranger, 650 N.E.2d at 1119. Upon this review, we do not find clear error.

The State also argues that the post-conviction court's decision "will open the floodgates to numerous juror investigations after sound verdicts have been rendered" and warns that the corollary response of the State will be "to conduct extensive pre-trial investigations of the venire to protect convictions and sentences." Br. of Appellant at 10. We agree that these consequences are extremely undesirable. This is so not only because of the societal interest in the finality of criminal proceedings but also because of our interest in assuring the safety and personal privacy of citizens who serve as jurors. Post-trial investigations of jurors should be the exception, not the rule. In the absence of manifest indications of material discrepancies appearing in the record, jurors should not be subjected to post-conviction investigation on the mere possibility that one or more of their questionnaire or voir dire responses may have been inaccurate. In the present case, however, the probability of Gunn's misconduct was apparent from inconsistencies between her voir dire answers and her questionnaire responses. These facial variances justified further investigation. We cannot permit our interests in finality and privacy to totally foreclose the presentation of such resulting evidence to demonstrate that gross juror misconduct undermined the defendant's right to a fair trial.

SUPREME COURT

The Court has stayed the execution of Delma Banks pending determination of whether to grant certiorari, details to follow as they become available.

CAPITAL CASES ( Favorable Disposition)

Florida v. Coney, 2003 Fla. LEXIS 274 (FL 3/6/2003) The trial court correctly found "trial counsel's performance was plainly deficient. He failed to obtain competent medical evaluations of his client sufficiently in advance of trial so that the expert opinions could be properly analyzed and the experts furnished with background information from past court proceedings and prison records regarding the defendant's mental deficiencies and poor impulse control. He failed to devote the time necessary to do a thorough investigation of the defendant's background. And, he failed to remedy these shortcomings by seeking additional time and resources from the court in preparation for the penalty phase."

Kubsch v. Indiana, 2003 Ind. LEXIS 218 (Ind 3/14/2003) The trial court erred in admitting Kubsch's entire videotaped interrogation into evidence including portions that showed the invocation of the right to silence.

CAPITAL CASES ( Unfavorable Disposition)

Noel v. Norris, 2003 U.S. App. LEXIS 3920 (8th Cir 3/6/2003) Relief denied on claims relating to [1] claimed constitutional requirement for meaningful proportionality review, [2] the retroactive application of new state proportionality review requirements, [3] newly discovered evidence that Noel suffers from brain abnormalities and [4] the recantation of a victims' family member who argued she now wants life instead of death for Noel.

Connecticut v. Courchesne, 2003 Conn. LEXIS 81; 262 Conn. 537 (Conn 3/11/2003) (dissent) Under Connecticut law to be death eligible one must be found to commit a qualifying capital felony in the guilt phase, such as multiple murder & in the penalty phase an additional aggravating circumstance, such as HCD ("especially heinous, cruel or depraved"). Where a defendant is convicted of a capital felony for the murder of two persons in the course of a single transaction the state need only proof that the defendant committed at least one of the murders in the specified aggravated manner such as HCD.

Trepal v. Florida, 2003 Fla. LEXIS 275 (FL 3/6/2003) Relief denied on " the following claims: "(1) "no guilt phase adversarial testing"; (2) "law enforcement conflict of interest"; (3) "juror misconduct"; (4) "attorney conflict of interest"; (5) "no penalty phase adversarial testing"; and (6) "public records;" as well as (1) "the state was erroneously allowed to introduce testimony based solely on hearsay to establish a link between Mr. Trepal and the brown bottle, and this Court erred in failing to address this issue on direct appeal, or appellate counsel provided ineffective assistance in failing to raise it properly;" and (2) "appellate counsel failed to raise on appeal numerous meritorious issues which warrant reversal of either or both the convictions and sentences."

Pennsylvania v. Whitney, 2003 Pa. LEXIS 265 (PA 3/5/2003) "Appellant's third PCRA petition was untimely, we believe that the PCRA Court was correct in holding that it did not have jurisdiction to consider the merits of this petition."

Sells v. Texas, 2003 Tex. Crim. App. LEXIS 63 (Tex. Crim. App. 3/12/2003) (dissent) Relief denied on claims relating to [1] sufficiency of evidence as to the aggravating circumstance; [2] the questioning of potential jurors as to future dangerousness; [3]

failure to remove for cause certain pro-death jurors; [4] admission of a confession in whch the defendant expressed a desire to die; [5] failure to admit in the penalty phase a videotape of prison conditions; [6] whether trial court erred when it refused to allow him to question the entire venire and various individual venire members on the law of parole; and [7] the constitutionality of the Texas death penalty statute including whether [a] the future dangerousness issue is vague because it does not define the terms "probability," "criminal acts of violence," and "continuing threat to society;" [b] the mitigation issue does not provide for meaningful appellate review; [c] the mitigation issue fails to place a burden of proof on the State; [d] 5he "10-12 rule" violates constitutional principles; [e] the failure to allow holdout jurors to know the consequences of their actions violates the Eighth Amendment; [f] the mitigation issue allows open-ended discretion; [g] the mitigation definition improperly limits the concept of mitigation; [h] the death penalty, as presently administered, violates the Eighth Amendment ban against cruel and unusual punishment; as well as [i] the death penalty, as presently administered, violates the Texas Constitution's ban against cruel or unusual punishment.

Woodward v. Mississippi, 2003 Miss. LEXIS 92 (Miss 3/6/2003) Relief denied, most notably, on issues relating to whether trial counsel was ineffective for failing to send Woodward to a state hospital for a competency hearing, for withdrawing a motion to change venue, failing to adequately investigate certain key mental health issues, as well as for how how experts were used at trial .

McGilberry v. Mississippi, 2003 Miss. LEXIS 93 (Miss 3/6/2003) Relief denied on a grab bag of direct appeal issues, most notably, [1] whether the great risk of death aggravator was appropriate; [2] whether being seen in shackles denied McGilberry a fair trial. and [3] whether counsel rendered ineffective assistance of counsel in the sentencing phase.

NOTABLE NONCAPITAL CASES

None noted this week.

FOCUS

Will return next week.

OTHER RESOURCES

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

NEW VOICES: Death Penalty Supporter Would Shift If Innocent Person Executed

Dianne Clements, president of Justice for All, an organization that strongly supports the death penalty, said "If I believed we executed an innocent inmate, I couldn't support the death penalty." A recent Scripps Howard Poll in Texas revealed that 69% of the public believes that Texas has already executed an innocent person. The poll also found that most Texans still endorse the death penalty. (Houston Chronicle, March 16, 2003) See Innocence, New Voices, and Public Opinion.

NEW VOICES: Harris County Prosecutors Shocked at DNA Lab's Errors

Harris County, Texas, prosecutors are reeling after recent revelations that mistakes made by a Houston DNA testing lab (see below) could place some of the county's convictions in peril. Prosecutor Joe Owmby recently voiced his concern that a re-test of DNA evidence in the state's case against convicted rapist Josiah Sutton conclusively determined that he could not have committed the crime. Owmby noted, "I could see somebody coming back and saying, 'The test we told you is conclusive is now inconclusive.' I could see that happening. What I did not envision, what I did not speculate could conceivably happen, is that they could say, 'We could tell it's not him.' I did not see how that could happen. . . How can you screw that up?" Former District Attorney John B. Holmes, Jr., who was Owmby's boss during the Sutton trial, said, "Anytime there is something that causes one's faith in the criminal justice system to fail, it is always a broad brush and it always hurts." (Houston Chronicle, March 15, 2003) See New Voices and Innocence.

NEW VOICES: Murder Victim's Mother Speaks Out Against Death Penalty

When Aba Gayle's 19-year-old daughter was murdered in 1980, she found herself seeking revenge and consumed by bitterness. Although the district attorney assured her that she would feel better when the murderer was convicted and, in turn, executed, Gayle was not convinced that the death penalty would quell her anger and lead to the healing she desired. Today, Gayle shares her story with the public and speaks out against the death penalty. "I knew that I didn't need the State of California to murder another human being so I could be healed, " she notes. "It's time to stop teaching people to hate and start teaching people to love. The whole execution as closure idea is not realistic." A member of Murder Victims' Families for Reconciliation, Gayle states, "Anger is just a horrible thing to do to your body. Not to mention what it does to your soul and spirit. Forgiveness is not saying what he did was right - it's taking back your power." (Silverton Appeal Tribune, March 12, 2003) See New Voices.

Dallas Morning News Calls for Moratorium on Executions

The Dallas Morning News is urging Governor Rick Perry to halt executions in Texas to provide experts time to examine what the paper deems a "broken system." Noting concerns about DNA testing (see below), mistaken convictions, representation of defendants in death penalty cases, and questions of bias, the paper stated:

Texas, which executes more people than all the states and even most countries, should pause. New evidence of a flawed system and cautions expressed recently by some of those closest to the process make a good case for a moratorium on executions until Texas carefully reviews its death penalty process to assure that it is just.

. . .

We urge Gov. Rick Perry to appoint a respected, open-minded, judicious Texan to lead a review of the state's death penalty process. Mr. Sessions (former FBI Director), for example, might make a good leader of such a review.

. . .

Advocacy for or against the death penalty isn't the point. Time out to fix a broken system is. It's in the interests of all Texans to support such action.

(Dallas Morning News, March 12, 2003)

Texas Inmate Granted Stay by U.S. Supreme Court

Just ten minutes before Delma Banks (see below) was to become the 300th person executed in Texas since 1977, the U.S. Supreme Court granted him a stay. The Court will now consider Banks' request for a hearing on claims that his trial was marred by prosecutorial misconduct, ineffective defense counsel, and racially discriminatory jury selection. Banks has maintained his innocence since his conviction in 1980, and his petition to the Supreme Court was accompanied by a brief filed by former FBI director William Sessions and two former federal appeals court judges. The brief noted that Banks' trial was tainted by "uncured constitutional errors" that are "typical of those that have underminded public confidence in the fairness of our capital punishment system." (Washington Post, March 13, 2003) See Innocence, Race, and Supreme Court.

Sound Portraits: "Parents at an Execution"

Listen to the mother of Texas death row inmate Delma Banks, and the parents of Richard Whitehead, the man Banks was convicted of killing, as they reflect on what it has been like waiting as Texas prepares for Banks' execution, scheduled for March 12th. See www.soundportraits.com for more information, including photographs of the parents, a message from Delma Banks to his mother, and information on Banks' appeal for a stay of execution.

NEW RESOURCE: NAACP Legal Defense Fund Report Finds Crisis in Mississippi

According to a new NAACP Legal Defense Fund report marking the 40th anniversary of Gideon v. Wainwright, poor defendants in Mississippi are receiving legal representation that falls far below constitutional standards. The report, "Assembly Line Justice," examines the effectiveness of indigent defense services across Mississippi and is based on interviews conducted with 150 current and former indigent defendants, as well as public defenders, district attorneys, judges, county supervisors, sheriffs, and community members. "All too often, in Mississippi, justice is only available to those who can pay for it," said Legal Defense Fund attorney Miriam Gohara. Gideon v. Wainwright was the Supreme Court decision that guaranteed a lawyer to defendants in criminal trials. Read the Report. Read the Legal Defense Fund's Press Release. See also, Studies, Books, and Law Reviews.

Houston Police Chief Urges Freeze on Harris County Executions

Houston Police Chief C.O. Bradford told the Texas House Committee on General Investigations that execution dates should not be set for seven Harris County men on the state's death row until DNA evidence in these cases can be reviewed a second time. The comments stem from a December audit of the Houston Police Department's crime lab in which auditors found instances of improper lab practices and shoddy record keeping. (See below) The problems were so egregious that the department shut the lab down in January. Kevin Bailey, Chairman of the House Committee, stated, "Until we resolve this and can be sure that people were rightly convicted, if DNA was used in any conviction of a death penalty, there ought to be a hold on those people sentenced to death." Bradford told the committee that the Police Department's internal investigation of the crime lab, labeled by Department of Public Safety DNA expert Irma Rios as among the worst labs she has ever seen, should be completed by the end of March. (Houston Chronicle, March 7, 2003) See Innocence and New Voices.

NEW RESOURCES: Common Courage Press Offers Two Death Penalty Books

Publishers at Common Courage Press have released two books related to the death penalty. "The Death Game: Capital Punishment and the Luck of the Draw," (Common Courage Press, 2003) is a new book by Mike Gray. Using a series of death penalty cases from across the nation, this book examines issues of innocence, police brutality, pressures on prosecutors and judges seeking career advancement, and the questionable accuracy of eyewitness accounts. The second book, "Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal," (Common Courage Press, 2002) authored by Dave Lindorff, examines Abu-Jamal's capital conviction. It also includes an opening insert about his Batson claim that black jurors were purposefully excluded from the jury that sent him to death row. For more information about these books, see Common Courage Press's Web Site. See also, Studies, Books, and Law Reviews.

Illinois House Judiciary Committee Votes to Ban Death Penalty

The Illinois House Judiciary Committee voted to abolish the death penalty. After hearing testimony from men who were wrongly sentenced to die for crimes they did not commit, members of the committee voted 8-4 to support the ban. Among those testifying was Illinois death row exoneree Gary Gauger, who was wrongly convicted for the murder of his parents. "The death penalty has no useful business in a civilized society," Gauger noted. The abolition bill now proceeds to House floor for consideration. (Associated Press, March 6, 2003). See Innocence and Illinois Commission on Capital Punishment.

Execution of Texas Man Slated for March 12 Despite Questions of Innocence

Texas is scheduled to execute Delma Banks on March 12 despite the questions of innocence that have been raised in his case. (See below) Attorneys for Banks assert that, in addition to evidence of racial bias in this case and the failure of Banks' trial attorney to provide an adequate defense, the underlying case against their client depends upon the testimony of two unreliable witnesses who have since recanted their testimony. Banks is now seeking relief from the U.S. Supreme Court. The Honorable William S. Sessions, the former director of the FBI, has joined other distinguished former judges and prosecutors to file a brief in the Supreme Court supporting Banks because his claims "by their very nature raise issues that threaten the ability of the adversarial system to produce just results." Read the Attorneys' Press Release. See also Innocence and Race.

NEW RESOURCE: Race, Region, and Death Sentencing in Illinois, 1988-1997

"Race, Region, and Death Sentencing in Illinois, 1988-1997" features research completed for the Illinois Commission on Capital Punishment. Authors Glenn L. Pierce and Michael L. Radelet conclude that particularly race of the victim plays a significant role in who is sentenced to death in Illinois. 81 Oregon Law Review 39 (2002) See also Race and Illinois Commission on Capital Punishment.

TRACKING PROGRAM INFORMATION

Tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:

*PCI from the face of the decision a possible claim of actual innocence appears possible.

*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.

*RC from the face of the decision questions about the interplay of race is made.

ADDITIONAL RESOURCES

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