Leading off this edition is the Eleventh Circuit's grant of relief in Earl J. McGahee v. Alabama Dept. of Corrections. The panel in McGahee holds "the total exclusion of African-Americans in this county in which they comprised fifty-five percent and the strong evidence of race based decision-making both generally and especially with respect" to two certain jurors mandates relief under Batson/Miller-El. "The record in this case compels a finding that the State’s use of a peremptory strike in this case to dismiss Jones constituted intentional discrimination, and violated McGahee’s rights under the Equal Protection Clause and the clearly established law as determined by the Supreme Court in Batson."

Several other favorable decisions are also noted. A federal district court (E.D.N.C.) in McNeil v. Branker granted relief on ineffective assistance of counsel during the penalty phase finding as "Petitioner has shown that the MAR court acted unreasonably and that he is entitled to habeas relief on his claim that he received ineffective assistance of counsel because his attorneys failed to properly investigate and present mitigating evidence." The Florida Supreme Court for a second in Walter Lee Thompson's case reverses, remands and orders "an evidentiary hearing on Thompson's mental retardation claim." Finally, the Alabama Court of Criminal Appeals orders, once again, the trial court to clarify, in Spencer v. State, "its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole."

The Supreme Court has granted cert in Smith v. Spisak, No. 08-724. DPIC notes:

In Smith v. Spisak, the U.S. Supreme Court agreed for a second time to review questions of jury instructions presented during the penalty phase and ineffective assistance of counsel at the defendant's trial. Frank Spisak was convicted and sentenced to death for the murder of three people at Cleveland State University in 1982. While the Ohio Supreme Court affirmed the convictions and sentence, the U.S. Court of Appeals for the Sixth Circuit granted habeas corpus relief, thereby vacating Spisak’s death sentence. The Sixth Circuit held the judge's sentencing instructions were improper because they suggested to the jury that unanimity had to be reached on individual mitigating factors and that the defendant had to be unanimously acquitted of the death sentence before a life sentence could be imposed. Additionally, the Sixth Circuit ruled that defense counsel had been constitutionally ineffective during penalty-phase closing arguments, making inappropriate statements about the defendant that may have impacted the outcome of the sentencing decision.

In New Mexico, a repeal bill approved by the House is scheduled to be heard Monday in the Senate Judiciary Committee — which in recent years has been the place where death-penalty-repeal bills have died. In Annapolis the state Senate passed tight new limitations on death penalty prosecutions that stand a good chance of becoming law if there is not a repeal this year of that state's capital sentencing statute. In Montana a repeal bill has passed the state Senate. In Illinois a House panel voted to abolish death penalty law as did a key committee in Colorado. Additionally, in Connecticut, Kansas, and Nevada legislative repeal efforts are likewise underway. Stand Down has the unfolding details of legislative reform and repeal efforts underway in all corners of the nation.

On the other side of the coin in Virginia's legislative expansion of the "triggerman rule" went to an unsympathetic governor. In Idaho, a curious methods of execution bill is creeping its way through the legislature with the aim of avoiding challenges to the state's method of execution. The Utah Senate has approved a measure that would amend the Utah Constitution and give the Legislature the power to regulate post-conviction appeals for death row inmates, however, it remains to be seen whether the bill has any realistic chance of passing this session. In Missouri the state Supreme Court denied what is purported to be that state's leading lethal injection challenge in John C. Middleton, et al. v. Mo. Dep't of Corr.,

In the news, the NASreported [executive summary] faults with almost all aspects of forensic science: from the lack of standards and scientific scrutiny of “accepted” techniques like bite marks, fingerprint, blood splatter, hair, arson, fiber analysis, and bullet comparisons. AP notes the Texas State Commission on Judicial Conduct issued a Notice of Formal Proceedings to Texas Court of Criminal Appeals Presiding Judge Sharon Keller Thursday. In Nebraska legislative debate in that unicameral legislature is intensifying on lethal injection (as its current method, electrocution, has been judicially banned) whether to limit or repeal the death penalty

As always, thanks for reading. - k

Recent Executions

February

3 Willie Pondexter - Tex*

4 Kenneth Morris - Tex*

Pending Executions

March

10 Robert Newland - Ga*

10 James Martinez - Tex*

11 Luis Salazar - Tex*

13 Cal Brown Wash*

19 Phillip Hallford - Ala*

April

1 Richard Boxley - Penn

7 Brett Hartman - Ohio*

7 Jose Briseno - Tex*

7 Michael Rimmer - Tenn*

15 Michael Rosales - Tex*

16 Jimmy Lee Dill - Ala*

30 Derrick Johnson - Tex*

May

5 Donald Gilson - Okla*

14 Willie McNair - Ala*

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]

SCOTUS

• United States v. Hayes, No. 07-608 (2/24/2009) Defendant's conviction for possessing a firearm under 18 U.S.C. section 921 is affirmed, where a domestic relationship between the offender and victim need not be an element of the defendant's "misdemeanor crime of domestic violence" to trigger Section 921's possession ban." [via Findlaw]

(Initial List)Week of March 2, 2009 – In Favor of the Defendant or the Condemned

• Earl J. McGahee v. Alabama Dept. of Corrections, 2009 U.S. App. LEXIS ---- (11th Cir 3/4/2009 ) Relief granted in light of Batson. " In reviewing “all relevant circumstances” in this record, including the astonishing pattern resulting from the total exclusion of African-Americans in this county in which they comprised fifty-five percent and the strong evidence of race based decision-making both generally and especially with respect to jurors Jones and Carpenter, we find that it “blinks reality” to deny that the State struck Jones, and perhaps Carpenter, because they were African-American. Miller-El v. Dretke, 545 U.S. at 266, 125 S. Ct. at 2340. The record in this case compels a finding that the State’s use of a peremptory strike in this case to dismiss Jones constituted intentional discrimination, and violated McGahee’s rights under the Equal Protection Clause and the clearly established law as determined by the Supreme Court in Batson."
• Spencer v. State, 2009 Ala. Crim. App. LEXIS 18 (Ala. Crim. App. 2/27/2009) Remand for clarification of sentencing order. "[W]e must again remand this case for the trial court to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. We again pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand."
• Walter Lee Thompson v. State, 2009 Fla. LEXIS 270 (FL 2/27/2009) "Having reviewed the record in this case, including all prior proceedings, we reverse and remand for an evidentiary hearing on Thompson's mental retardation claim. In making a determination of whether Thompson meets the requirements of mental retardation, the trial court shall consider the requirements set forth in Cherry v. State."

(Initial List)Week of March 2, 2009 – In Favor of the State or Government

• William Garner v. Mitchell, 2009 U.S. App. LEXIS 4124; 2009 FED App. 0081P (6th Cir. 3/3/2009) "There was no indication that prison inmate's waiver of rights prior to confessing to setting fatal fire was not knowing and intelligent, since inmate coherently acknowledged his understanding of rights after two careful advisements, and evaluations showing diminished mental capacity did not demonstrate that inmate was incapable of voluntary waiver." [via LexisOne]
• People v. Alejandro Perez, 2009 Colo. LEXIS 199 (Colo 2/23/2009) "[N]o “special circumstances” [exist] that would “render it unlikely that the defendant [Perez] would receive a fair trial” under section 20-1-107(2), and therefore, we reverse the trial court’s order disqualifying the entire District Attorney’s Office. The inquiry into whether an entire district attorney’s office should be disqualified depends on whether confidential information gained from the prior representation has been or could be passed from the individual prosecutor with the conflict to other members of the office who continue to prosecute the case. Here, there was no showing that either Edwards or Watson ever possessed confidential information from their prior representations. Therefore, no confidential information was passed, or could have been passed, to other members of the Office. We also hold that neither the allegedly inadequate witness list, nor the funding arrangement constitutes a “special circumstance” that would prevent a fair trial. Accordingly, we reverse the trial court’s disqualification of the entire Eighteenth Judicial District Attorney’s Office and remand for further proceedings consistent with this opinion.
• Gerhard Hojan v. State, 2009 Fla. LEXIS 272 (FL 2/27/2009) "The evidence supported defendant's murder convictions, as a victim identified defendant as the shooter in a photo lineup at a hospital and also in court. Defendant confessed to murdering the victims, and in those confessions demonstrated an in-depth knowledge of the crime and the crime scene. His death sentence was found proportional." [via LexisOne]

(Initial List)Week of March 2, 2009 – Noncapital

• Demarcus James McCloud v. Hooks, 2009 U.S. App. LEXIS 4125 (11th Cir 3/2/2009) "Although defendant's two felony charges were consolidated under Ala. R. Crim. P. 13.3, they were severed as a matter of law because he pled guilty to one charge, and a jury found him guilty of the other; thus, AEDPA's one-year limitations period was calculated separately as to each charge, and his habeas petition was properly dismissed as untimely." [via LexisOne]
• Gross v. Cooper, 2009 U.S. App. LEXIS 4247 (5th Cir 3/3/2009) (unpublished) "Prisoner was erroneously denied habeas relief because the state court's acceptance of his waiver of counsel was an unreasonable application of federal law under 28 U.S.C.S. § 2254(d)(1) where it completely failed to warn him of the dangers of self-representation at trial and inquire into his background before accepting the waiver." [via LexisOne]

Week of February 23, 2009 – In Favor of the State or Government

• People v. Bernard Lee Hamilton, 2009 Cal. LEXIS 1103 (Cal 2/23/2009) In this penalty phase retrial "substantial evidence supported the trial court's conclusion that the prosecutor exercised peremptory challenges against all six of the Black prospective jurors for reasons unrelated to race, such as immaturity and favoring the defense; thus, no violation of U.S. Const., 14th Amend., or Cal. Const., art. I, § 16, occurred." [via LexisOne]
• People v. Jerry Thomas Bunyard, 2009 Cal. LEXIS 1102 (Cal 2/23/2009) "In the penalty retrial for defendant's hired murder of his wife, there was no error in admitting an unavailable witness's prior testimony that defendant unsuccessfully solicited him to kill the victim because, before releasing witness on his own recognizance, trial court made a reasonable determination under Pen. Code, § 1332, that he would appear." [via Lexisone] (Note the person who actually committed the murder received 25 to life.)
• Jonathan Marcus Green v. Quarterman, No. 08-70006 (5th Cir 2/27/2009) "Green contends that his due process rights were violated at his trial because the instructions did not require the jury to unanimously determine which underlying felony it used to find that he committed capital murder. He also contends that his counsel rendered ineffective assistance by failing to object to the allegedly unconstitutional instructions. Finally, he contends that he is incompetent to be executed. Finding that Green has not made a substantial showing of the denial of a constitutional right, we DENY a COA. We DISMISS his claim of incompetency without prejudice because it is not yet ripe."
• David Zink v. State, 2009 Mo. LEXIS 19 (Mo. 2/24/2009) Relief denied on whether the postconviction trial "court erred in denying his claims that trial counsel was ineffective for failing to: (1) obtain a positron emission tomography (PET) scan and present supporting testimony as to the PET scan's relevance; (2) challenge Mr. Zink's competency to stand trial; (3) object to the trial court's ruling that Mr. Zink must wear a shackling device under his clothing throughout the trial; (4) object to certain guilt and penalty phase closing arguments made by the state; (5) object to two individuals serving both as courtroom security and witnesses in the trial; and (6) object to an autopsy report as hearsay evidence in violation of Crawford v. Washington. In addition to his ineffective assistance of trial counsel claims, Mr. Zink also asserts that: (7) his self-representation was involuntary; (8) the motion court erred by simply signing the attorney general's proposed findings; (9) the penalty instructions given violated his constitutional rights and appellate counsel was ineffective for failing to raise the errors on appeal; and (10) the motion court erroneously denied discovery and a hearing on Missouri's method of lethal injection."
• John C. Middleton, et al. v. Mo. Dep't of Corr., 2009 Mo. LEXIS 16 (Mo 2/24/2009) (dissent) A circuit court dismissed a challenge by 17 death-row inmates and others to the state’s execution protocol, alleging it was not promulgated according to public notice-and-comment rulemaking procedures. In a 4-3 decision written by Judge Mary R. Russell, the Supreme Court of Missouri affirms the trial court’s judgment, holding the statutes show the legislature intended to exempt the execution protocol from the rulemaking procedures because it is a protocol “concerning only inmates.” [via Clerk Office's supplied head notes].

Week of February 23, 2009 – Noncapital

• United States v. French, No. 07-5147(10th Cir 2/24/2009) "We now join the other circuits that have reached the question and hold that district court CJA fee determinations are not appealable orders. As the Sixth Circuit stated, the CJA does not provide for appellate review of a fee determination; instead, the district court has complete discretion, subject only to minimal review by the chief judge of the circuit. In addition, the non-adversarial nature of the process supports the conclusion that it is an administrative act, as opposed to a judicial decision.
• State v. Jason Jerome Moon, 2009 Ga. LEXIS 58 (GA 2/23/2009) "Defendant's statements made to law enforcement during his interrogation in jail were properly suppressed as made in violation of his Fifth Amendment, U.S. Const. amend. V, right to remain silent because his statement that "I ain't got no more to say. I mean, this is it" was an unequivocal assertion of his right against self-incrimination."
• Ex parte Perch, 2009 Ala. LEXIS 44 (Ala 2/20/2009) "An inmate's petition for a writ of mandamus directing a circuit court to vacate its decision denying his request under Ala. Code § 36-12-4 for copies of documents from the files in criminal cases was granted because the judicial records the inmate requested were public writings and were easily identified and readily available." [via lexisone]

Week of February 16, 2009 – In Favor of the Defendant or the Condemned

• McNeill v. Branker, 2009 U.S. Dist. LEXIS 11568 (E.D.N.C. Feb. 16, 2009) "Petitioner has shown that the MAR court acted unreasonably and that he is entitled to habeas relief on his claim that he received ineffective assistance of counsel because his attorneys failed to properly investigate and present mitigating evidence."

Week of February 16, 2009 – In Favor of the State or Government

• Coy Wayne Wesbrook v. Quarterman, 2009 U.S. App. LEXIS 2965 (5th Cir 2/17/2009) (unpublished) COA denied on "three claims: (1) that his trial counsel rendered ineffective assistance by failing to fully investigate his neurological impairments; (2) that he was denied his Sixth Amendment right to counsel by the State's use of an undercover informant to obtain incriminating statements while he was incarcerated and represented by counsel; and (3) that his due process rights were violated because the trial judge engaged in ex parte communications with the prosecution and acted in a dual role as both an investigator and an adjudicator."
• William Josef Berkley v. Quarterman, 2009 U.S. App. LEXIS 3185 (5th Cir 2/18/2009) (unpublished) COA denied "on five issues. First, he asserts that the state trial court violated his rights when it refused to strike a venire member for cause. Second, he challenges the trial court's refusal to instruct the jury that it must agree unanimously on the specific manner in which Berkley committed capital murder. Berkley also asserts, in his third challenge to his conviction, that the trial court erred in failing to instruct the jury on the lesser-included offense of simple murder. Fourth, Berkley argues that the trial court erred by failing to instruct the jury that it must find the absence of mitigating factors beyond a reasonable doubt. Finally, in his fifth challenge to his conviction, Berkley argues that the prosecution violated his rights under Brady v. Maryland."
• Rigoberto Avila v. Quarterman, No. 07-70029 (5th Cir 2/17/2009) "Avila contends that the State suppressed a pathologist’s expert opinion in violation of his due process rights. He also contends that his counsel’s failure to discover the suppressed evidence constituted ineffective assistance in violation of the Sixth Amendment. Finally, Avila contends that because the jury was not United States Court of Appeals. The facts are taken largely verbatim from the Texas Court of Criminal Appeals opinion on direct appeal. Avila v. State, required to find the mitigation issue at punishment beyond a reasonable doubt, his right to a jury trial was violated. Respondent cross-appeals, asserting that the district court erred in holding that the State’s suppression of evidence during the punishment phase of trial violated Avila’s due process rights. Concluding that the state court’s adjudication of Avila’s claims was not an unreasonable application of clearly established Federal law and that Avila has not made a substantial showing of the denial of a constitutional right, we AFFIRM in part, REVERSE in part, and DENY a Certificate of Appealability."
• People v. Alfred Anthony Gutierrez, 2009 Cal. LEXIS 1101 (Cal 2/19/2009) "In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) denial of a Marsden motion; 2) dismissal of prospective juror following contact with a prosecution witness; 3) precluding cross-examination of victim's sister regarding a conversation with dismissed juror; 4) admission of a spontaneous statement of defendant's son; 5) a failure to instruct regarding evaluating child testimony; 6) seizure and admission of defendant's correspondence; 7) admission of testimony regarding defendant's gang affiliation and intent to kill; 8) defendant's alleged inability to fully testify; 9) trial court's alleged disparagement of defendant in front of the jury; 10) a failure to instruct regarding third party culpability; 11) a failure to instruct that manslaughter is a lesser included offense of murder; 12) exclusion of the victim's prior battery conviction; 13) cumulative guilt phase error; 14) a failure to instruct regarding! unanimity on aggravating factors; 15) the overbreadth of the death penalty; and 16) additional claims of sentencing error." [via FindLaw]
• Jeffrey Allen Muehleman v. State, No. SC05353 (FL 2/19/2009) Relief denied on "(A) whether the trial court disobeyed this Court’s order to immediately advise him of his right to counsel and whether the court correctly allowed Muehleman to represent himself; (B) whether the trial court reversibly erred in denying Muehleman’s motion to restore assignment of the case to the original presiding judge; (C) whether the trial court reversibly erred in permitting members of the State Attorney’s Office to read former testimony from now-unavailable witnesses who testified in Muehleman’s first penalty phase proceeding; (D) whether jail inmate and State’s witness Ronald Rewis was a state agent and whether his testimony was improperly admitted in violation of Miranda v. Arizona; and (E) whether cumulative error requires reversal."
• Lloyd Duest v. State, No. SC07162 (FL 2/19/2009) Relief denied on "(1) whether Duest was denied a reliable adversarial testing at the guilt and resentencing phases of his trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution and whether the trial court erred in summarily denying various issues attendant to this claim, and (2) whether Duest was denied a reliable adversarial testing at his resentencing in violation of the Sixth, Eighth and Fourteenth Amendments and whether the trial court erred in summarily denying this claim without an evidentiary hearing."

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