The lede this week, the Supreme Court has granted certiorari in Maples v. Thomas. The cert petition is here. The Constitution Project's amicus brief in support of the case is also available. As Adam Liptak notes "Sullivan & Cromwell, had agreed to represent Cory R. Maples, a death row inmate in Alabama, without charge. When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened and stamped 'Return to Sender'.” The rest is history.

In the news, the Georgia Supreme Court heard argument whether the standard of having to prove mental retardation beyond a reasonable doubt is unconstitutional. The death penalty repeal bills have been filed with a good chance of passage this year in Connecticut, Maryland and Montana, where bills are wending their way through statehouses, repeal efforts also are underway in Florida, Ohio, and Kansas, with much lower chances of passage. The Nation's current issue features the monthly column, Ten Things which this month is, Ten Things to Abolish the Death Penalty.

In lethal injection news, Georgia got caught apparently breaking the laws governing drug importation to score itself sodium thiopental for its lethal injection process. The North Carolina Supreme Court recently heard arguments whether an administrative law judge was right to order state officials in 2007 to revamp North Carolina's protocol for executions. Texas has switched to pentobarbital from sodium thiopental in its execution protocol. "Attorneys in Arizona, Georgia and Kentucky have called on the Justice Department to investigate how the states acquired a key lethal injection drug that is in short supply in the U.S." "With two executions scheduled in Arizona within the next 16 days and two more looming in coming months, last-ditch motions for appeals and stays of execution are flying through state and federal courts, many of them centering on the importation and use of a drug used in the executions."

As always, a big thanks to Steve Hall & the Stand Down Project, as well as a heartfelt thank you for reading. - k

Pending Executions

March

29 Eric King* (Az)

31 William Glenn Boyd* (Ala)

April

5 Cleve Foster* (Tex)

5 Daniel Wayne Cook* (Az)

6 Wayne Kubsch (Ind)

12 Clarence Carter* (Ohio)

May

3 Cary Kerr* (Tex)

17 Daniel Bedford* (Ohio)

Executions

March

10 Johnie Baston* (Ohio)

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

SCOTUS

• Felkner v. Jackson, No. 10-797 (3/21/2011) "The Ninth Circuit had no basis to award habeas relief to a state inmate alleging that prosecutors had peremptorily struck jurors at his trial on the basis of race." [via SCOTUSBlog
• Henry Skinner v. Switzer, No. 09-9000 (3/7/2011) "A convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983."
• Wall v. Kholi, No. 09-868 (3/7/2011) AEDPA's one year statute of limitations is tolled even where just a challenge to sentence is filed, so long as that challenge isn't just a direct appeal application.

Week of March 14, 2011: In Favor of the Prosecution or Warden

• Nelson Serrano v. State, 2011 Fla. LEXIS 619 (FL 3/17/2011) “Serrano raises nine issues on appeal: (1) whether the circumstantial evidence is sufficient to support his convictions; (2) whether Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the trial court properly denied Serrano’s motions to dismiss the indictment and divest itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a change of venue; (6) whether the testimony of the State’s bloodstain pattern expert was admissible; (7) whether the State improperly cross-examined Serrano’s character witnesses about collateral crimes at the Spencer hearing; (8) whether the avoid arrest aggravator was properly submitted to the jury and found by the trial court; and (9) whether Serrano’s death sentence is constitutional. We also review whether Serrano’s death sentences are proportionate. However, [ ]none of these issues warrants relief.”
• James Garrett Freeman v. State, 2011 Tex. Crim. App. LEXIS 387 (Tex. Crim. App. 3/16/2011) “Appellant’s capital murder conviction under Tex. Penal Code Ann. § 19.03(a)(1) and his death sentence were affirmed; prosecutor arguments were either not improper or harmless, and the denial of his motion for a change of venue under Tex. Code Crim. Proc. Ann. art. 31.03(a) was not improper.” [via LexisOne]

Week of March 7, 2011: In Favor of the Accused or Condemned

• State v. Vincent W. Jackson, 2011 Ohio App. LEXIS 863; 2011 Ohio 986 (9th Ohio App 3/7/2011) Interlocutory appeal improvidently granted as to the trial court’s order regarding production of the name of grand jury witnesses “for an in camera inspection.”
• Derrick Cole v. State, 2011 Tenn. Crim. App. LEXIS 186 (Tenn. Crim. App. 3/8/2011) “[W]e conclude that counsel’s failure to conduct adequate investigation into the Petitioner’s background and counsel’s failure to present significant mitigating evidence during the penalty phase of the Petitioner’s capital trial suffices for a showing of deficient performance. Moreover, counsel’s constitutionally deficient performance prejudiced the Petitioner’s right to a fair penalty proceeding. It is the opinion of this court that there is a reasonable probability that absent the deficiencies, the outcome of the penalty phase of the trial might well have been different. Therefore, we conclude that the evidence preponderates against the findings of the post-conviction court, and the Petitioner’s sentence of death is reversed.”

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

• State v. Eric Glenn Lane, 2011 N.C. LEXIS 141 (NC 3/11/2011) Relief denied, most notably, “that the trial court erred by granting his motion to discharge appointed counsel and proceed pro se”, “trial court erred by excluding expert testimony from Dr. Wilkie Wilson, a neuropharmacologist and research scientist who studies the effects of drugs and alcohol on the brain. ” “trial court committed prejudicial error by failing to submit the statutory mitigating circumstance [ ] that defendant “has no significant history of prior criminal activity,” thereby entitling him to a new sentencing proceeding.”
• State v. Gussie Willis Vann, 2011 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. 3/11/2011) “[P]ost-conviction court ordered a new trial on grounds unrelated to [ ] this appeal. Prior to retrial, the Defendant moved to dismiss his indictment and bar instructions on the lesser included offenses of felony murder arguing, among other things, (1) that principles of double jeopardy, collateral estoppel, and judicial estoppel precluded the State from prosecuting the Defendant on any lesser included offense of felony murder because the “explicit statements” of both this court and the Tennessee Supreme Court “on direct appeal that the trial record was ‘devoid of evidence’ of lesser included offenses were factual determinations, necessary to valid final judgments, from which the government is prohibited from seeking an inconsistent determination” and (2) that “the [original] trial judge’s refusal to instruct on such lesser included offenses was a qualitative determination of the evidence, tantamount to an acquittal and triggering traditional double jeopardy and res judicata [as] to those charges.” “We reject the claims of the Defendant that the State upon retrial is barred from seeking convictions on the lesser included offenses of criminally negligent homicide and facilitation of felony murder. We also reject the Defendant’s claims that the trial court upon retrial is precluded from instructing the jury on applicable lesser included offenses. Accordingly, we reverse the order of the trial court and remand the case for retrial.”
• Comm. v. Donnetta Hill, 2011 Pa. LEXIS 559 (Penn 3/11/2011) Relief denied. Petitioner defaulted claims under state Rule 1925 by not timely complying with that Rule’s requirements relating to a statement of the issues to be raised on appeal. A subsequent PCRA petition could not raised possible IAC based on the failure to timely file under Rule 1925. [Note this reading of the opinion grossly oversimplies an unusually complicated, procedurally at least, decision.]
• Terrance Williams v. Beard, 2011 U.S. App. LEXIS 4517 (3rd Cir March 9, 2011) Relief denied on “(1) whether trial counsel was constitutionally ineffective during the penalty phase of trial, and (2) whether the Commonwealth exercised its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky,” as well as (3) “the constitutional propriety of the trial court’s accomplice liability instructions. We conclude that each issue is without merit and will affirm.”
• State v. Anthony Belton, 2011 Ohio App. LEXIS 951; 2011 Ohio 1141 (Ohio 6th App March 8, 2011) On interlocutory appeal,relief denied as the Accused erroneously appealed the denial of a motion to reconsider and not the underlying order itself.

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