This week's edition examines two capital cases, both losses. The first, Cook v. State examines a Georgia capital case concerning the definition of who is and who is not a state actor amongst family members for purposes of Miranda. In Thomas v. Taylor the Fourth Circuit examines procedural default and duty to investigate in a juvenile death penalty case. Two Supreme Court cases of note are abstracted this week,Jones v. United States , examining the federal car jacking statute, andKumho Tire Co. v. Carmichael,examining the admissibility of expert testimony in light of Daubert, as well as one certiorari grant. (Abstracts on all three based on the Williamette Law School Online Service (http://www.willamette.edu/law/wlo/us-supreme/index.htm) who offers a fantastic email list of cert. grants, disposition below, oral arguments, and decisions). Finally, "In Focus" examines some recent cases of actual innocence.

In Depth

Cook v. State The Georgia Supreme Court, in a case of seeming first impression, holds that a parent that is a law enforcement official acted in a parental and not as a police agent when his son confessed to capital murder. The Court's abstract of the case states:

"The difficulty in this case arises from the fact that John Cook was both an FBI agent and the suspect’s father. Adopting Cook’s argument that, due to his father’s career, the conversation he and his father had at the Monroe County sheriff’s office is a per se custodial interrogation would not be reasonable; such a holding would require us to presume that law enforcement parents would place their parent-child relationship subordinate to their employer-employee relationship, that a law enforcement parent would automatically coerce a confession from his or her own child," . . .

"It is perfectly natural and reasonable for a parent, law enforcement or civilian, to speak to his or her arrested child about an alleged crime and give advice that may include cooperating with the police and confessing. However, we can envision situations where a law enforcement parent might subject his or her arrested child to a custodial interrogation within the meaning of Miranda Therefore, we conclude that this issue must be resolved on a case-by-case basis, by viewing the totality of the circumstances, in order to determine if the law enforcement parent was acting as a parent or as an agent of the state when speaking with his or her arrested child." ..

Presiding Justice Norman S. Fletcher dissented, arguing that none of the cases the majority relied on to conclude that the confession was voluntary involved "a law enforcement officer who is also a family member and who questions the defendant after the invocation of the right to counsel and before Miranda warnings."

Presiding Justice Fletcher also disagreed with the majority's conclusion that the trial court committed only harmless error when it prevented the defense from cross-examining state witnesses about whether Cook was read his Miranda rights and other issues that may relate to the voluntariness of his statements.

"I am not persuaded that the jury would have necessarily returned a death sentence had it known all the circumstances surrounding the confession, including that no law enforcement officer told the defendant that any statement he made would be used against him," Fletcher wrote.

According to evidence presented at trial, Cook shot the couple, Michelle Cartagena and Grant Patrick Henderson, and then pulled the female victim from the car. Cook dragged Cartagena approximately 30 feet, undressed her from the waist down and knelt between her legs. Saliva mixed with tobacco was found on her thigh. DNA eventually taken from Cook matched the DNA taken from the saliva on Cartagena's thigh.

The bodies were found the next morning by two campers. At the crime scene, police recovered 13 shell casings from an AR-15 rifle and 4 casings from a 9mm Ruger pistol.

A GBI agent tracking the selling, pawning and purchasing of such weapons in that area discovered the Cook had purchased an AR-15 rifle in August 1994 from a pawn shop and pawned it back in May of 1995. Investigators also learned that Cook had an acquaintance buy a 9mm Ruger in December 1993, which Cook sold to another acquaintance in July 1995.

Both weapons were recovered and testing revealed that they were the murder weapons.

On Dec. 4, 1996, the GBI agent contacted Cook's father, who had been an FBI agent for 29 years, for assistance finding Andrew Cook. Agent John Cook called his son; Andrew Cook told his father he had been involved in the shootings, but had acted in self-defense. Agent Cook contacted his FBI supervisor and told him what Andrew Cook had said.

On Dec. 5, 1996, Andrew Cook was arrested for alleged hunting violations and taken to the Jones County Sheriff's Office. No one read Andrew Cook his Miranda rights. When the GBI agent tried to question Andrew Cook about the murders, he invoked his right to counsel and asked to see his father.

The questioning ended. Andrew Cook was taken to the Monroe County Sheriff's Department where he confessed to the murders in a private conversation with this father. Agent Cook told police about the confession. hearsay rule.

Capital Cases

Thomas v. Taylor Fourth Circuit, in this juvenile death penalty case, holding procedurally defaulted issues concerning sentencing as an adult, innocence of a death eligible homicide, and ineffective assistance of counsel:

We reject appellant's argument because trial counsel's "failure" to investigate evidence that appellant did not fire the second shot was not unreasonable. First, overwhelming evidence indicated that appel- lant did indeed fire the second shot. Appellant repeatedly told trial counsel that he fired both of the shots that killed Kathy Wiseman. See, e.g., id. at 765, 935, 937, 1112. Trial counsel was evidently aware of the fact that Williams had reported that appellant had indicated that he might not have fired the second shot, and confronted appellant with this information: however, even after trial counsel "begged" appellant to "come clean" about the second shot, appellant reiterated that he had fired both shots. Id. at 765, 937, 1018, 1114-15, 1117-18.

In view of appellant's repeated assertions that he fired both shots, trial counsel was under no obligation to investigate further the possi- bility that appellant did not fire the second shot. As the Supreme Court noted in Strickland:

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own state- ments or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defen- dant and on information supplied by the defendant. In par- ticular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be chal- lenged as unreasonable. In short, inquiry into counsel's con- versations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other liti- gation decisions.

Strickland 466 U.S. at 691; see also Barnes v. Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995) ("[T]rial counsel. . . may rely on the truthfulness of his client and those whom he interviews in deciding how to pursue his investigation.").

Despite the fact that trial counsel was under no obligation to inves- tigate further the possibility that appellant did not fire the second shot, trial counsel nevertheless did so. First, trial counsel interviewed "doz- ens of people," none of whom "even remotely suggested" that Jessica Wiseman fired the second shot. J.A. at 1017. Further, trial counsel thoroughly investigated the forensic evidence and concluded that there was no reason to believe that appellant did not fire the second shot. See id. at 935-36, 938, 1113.In view of the fact that trial coun- sel was under no obligation to investigate further the theory that appellant did not fire the second shot, but nevertheless thoroughly did so, we agree with the district court that trial counsel's actions were reasonable, see J.A. at 1299, and therefore reject appellant's first inef- fective assistance claim.

Appellant next asserts that trial counsel was ineffective in prepar- ing and presenting expert psychological testimony as mitigating evi- dence at sentencing. Appellant essentially makes two alternative claims. First, he argues that trial counsel failed adequately to prepare Dr. Earle Williams, his court-appointed psychiatric expert, to testify at sentencing. Second, he contends that trial counsel erred by using the prosecution's own psychological expert, Dr. Henry Gwaltney, rather than Dr. Williams, to testify as to mitigation.

We reject both of appellant's claims, concluding that trial counsel's actions in dealing with the psychological experts were reasonable. As regards appellant's claim concerning trial counsel's preparation of Dr. Williams, trial counsel testified that they initially had a very favorable impression of Dr. Williams, citing his "impressive" credentials, "evi- dent" enthusiasm for the case, and "favorabl[e]" testimony for appel- lant at an initial suppression hearing. See J.A. at 766. Although Dr. Williams appears to have had no prior experience testifying in capital cases, see id. at 875-76, trial counsel spoke to him "on numerous occasions to see how his work was progressing," id. at 766. As the sentencing hearing approached, however, trial counsel became aware that Dr. Williams was scared about testifying. See id. at 766-67, 973, 983, 1097. We see nothing in the record to indicate that trial counsel failed adequately to prepare Dr. Williams to testify at sentencing. To the extent that Dr. Williams was unprepared to testify, it was not because trial counsel was ineffective, but rather because Dr. Williams was. We therefore reject, as we have in the past, the effort by an appellant to recast a claim concerning the effectiveness of a court- appointed psychological expert as a claim of ineffective assistance of counsel. See, e.g., Wilson v. Greene, 155 F.3d 396, 400-03 (4th Cir.), cert. denied sub nom. Wilson v.Taylor, 119 S. Ct. 536 (1998). As regards appellant's claim concerning trial counsel's use of Dr. Gwaltney, trial counsel's decision to do so was reasonable as a matter of trial strategy. On the eve of the sentencing hearing, trial counsel approached Dr. Gwaltney, who had previously expressed his willing- ness to testify on appellant's behalf. See J.A. at 987-88, 1025-26. Trial counsel concluded, not unreasonably, that it would be more con- vincing to use the prosecution's own expert to testify in mitigation. See id. at 972-73. Trial counsel's decision was especially reasonable because Dr. Gwaltney agreed to testify to exactly the same mitigating circumstance to which Dr. Williams would have testified: namely, that Jessica Wiseman was the motivating factor behind appellant's actions in murdering the Wisemans. See id. at 273. Trial counsel but- tressed Dr. Gwaltney's testimony with the testimony of appellant's mother and schoolteachers, who testified about appellant's troubled youth and susceptibility to the influence of others. See id. at 1316. . . . .

Appellant next claims that he was actually innocent of Kathy Wise- man's murder because he did not fire the second shot. Appellant appears to be making three distinct claims, if unwittingly. First, appel- lant contends that the district court should have excused his proce- dural default on various constitutional claims because of his "gateway" claim of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995). Second, appellant makes a free-standing claim of actual innocence. See Herrera v. Collins, 506 U.S. 390 (1993). Third, appel- lant argues that, because he did not fire the second shot, he should not have been eligible for the death penalty because the aggravating cir- cumstance of vileness would no longer exist. See Sawyer v. Whitley, 505 U.S. 333 (1992).

We begin by considering appellant's claims under Schlup and Herrera. Regardless of whether we apply the more lenient standard of Schlup or the stricter standard of Herrera, appellant's claims fail because appellant would still have been guilty of capital murder under Virginia law even if he had not fired the second shot. The medical examiner testified that the first shot, like the second, "would be lethal." J.A. at 122. Under Virginia law, an individual who fires such a shot can be found guilty of capital murder. "[W]here two or more persons take `direct part' in inflicting fatal injuries, each joint partici- pant is an `immediate perpetrator' for the purposes of the capital mur- der statutes." Strickler v. Commonwealth, 241 Va. 482, 495 (1991) (citation omitted). Indeed, relying on its reasoning in Strickler, the Virginia Supreme Court subsequently upheld a conviction for capital murder on almost identical facts, in a case in which the defendant and another individual each fired shots that "could have been lethal" into the victim's head. Williams v. Commonwealth, 248 Va. 528, 545 (1994). Therefore, even if appellant did not fire the second shot -- which, as a factual matter, is dubious in any event in view of the over- whelming evidence to the contrary -- he could not have been actually innocent as a legal matter. Consequently, we reject appellant's claims under Schlup and Herrera.

Appellant's claim under Sawyer is no more availing. Appellant contends that, provided that he did not fire the second shot, he should not have been eligible for the death penalty because he would no lon- ger have qualified for the aggravating factor of vileness. For the aggravating factor of vileness to apply, the conduct of the defendant in committing the murder must be "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va. Code§ 19.2-264.2 (1998). Appellant contends that, had he not fired the second shot, he would not qualify for the aggravating factor of vileness because the element of aggravated battery, caused by the lapse of time between the two shots he fired, would no longer exist. However, as the Virginia Supreme Court noted on direct appeal, appellant's argument fails because, even assuming that his actions would no longer constitute aggravated battery, they would still evince depravity of mind, in view of the extraordinary premeditation involved and the execution-style nature of the killings, and the lack of any evident remorse. See Thomas, 244 Va. at 24-25. Because appellant would therefore still have qualified for the death penalty even if he had not fired the sec- ond shot, appellant's claim under Sawyer, like his claims under Schlup and Herrera, must fail. Because appellant's actual innocence claims would fail even on the merits, they certainly fail under the more deferential AEDPA standard of review, and we therefore reject them. .....

Finally, appellant contends that the district court improperly applied the more deferential standard of review in 28 U.S.C. § 2254(d) because the court looked only to whether his claims had been "decided" by a state court, not to whether they had been "adjudi- cated on the merits," as is required for section 2254(d) to apply. As this Court and several of our sister circuits have noted, however, the phrase "adjudication on the merits" in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in a summary fashion. See Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir.), cert. denied, 119 S. Ct. 313 (1998); accord Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997); Hennon v. Cooper, 109 F.3d 330, 334-35 (7th Cir.), cert. denied, 118 S. Ct. 72 (1997).

Supreme Court

Kumho Tire Co. v. Carmichael The United States Supreme Court, in reversing the Eleventh Circuit, held that the factors for a court to use in determining the reliability of a scientific theory or technique as set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993)/, may apply to testimony of engineers and other experts who are not scientists. The Daubert “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony. Rule 702 does not distinguish between “scientific” knowledge and “technical” or “other specialized” knowledge, but makes clear that any such knowledge might become the subject of expert testimony. . . . A trial judge determining the admissibility of an engineering expert’s testimony may consider one or more of the specific Daubert factors. The emphasis on the word “may” reflects Daubert’s description of the Rule 702 inquiry as “a flexible one.” 509 U.S., at 594. The Daubert factors do not constitute a definitive checklist or test, id., at 593, and the gatekeeping inquiry must be tied to the particular facts, id., at 591. Those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony. Some of those factors may be helpful in evaluating the reliability even of experience-based expert testimony, and the Court of Appeals erred insofar as it ruled those factors out in such cases. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability. . . . Application of the foregoing standards demonstrates that the District Court’s decision not to admit Carlson’s expert testimony was lawful. The District Court did not question Carlson’s qualifications, but excluded his testimony because it initially doubted his methodology and then found it unreliable after examining the transcript in some detail and considering respondents’ defense of it. The doubts that triggered the court’s initial inquiry were reasonable, as was the court’s ultimate conclusion that Carlson could not reliably determine the cause of the failure of the tire in question. The question was not the reliability of Carlson’s methodology in general, but rather whether he could reliably determine the cause of failure of the particular tire at issue.

Jones v. United States The United States Supreme Court held (6-3) 18 USC s 2119 (2)-(3) (1988), a carjacking criminal statute, provides different elements to three separate offenses. Section 2119 establishes three separate offenses by the specification of elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict (a) The superficial impression that §2119’s subsections are only sentencing provisions loses clarity when one looks at subsections (2) and (3), which not only provide for steeply higher penalties, but condition them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph (force, violence, intimidation). The Government stresses that the numbered subsections do not stand alone in defining offenses, most of whose elements are set out in the statute’s opening paragraph, and that this integrated structure suggests that the statute establishes only a single offense. The Government also argues that the numbered subsections come after the word “shall,” which often divides offense-defining provisions from those that specify sentences. A number of countervailing structural considerations, however, weaken those points. First, if the shorter subsection (2) does not stand alone, neither does §2119’s more voluminous first paragraph, which by itself would merely describe some obnoxious behavior, never actually telling the reader that it is a crime. Only the numbered subsections complete the thought. Second, “shall” does not invariably separate offense-defining clauses from sentencing provisions. Section 2119’s text alone does not justify any confident inference. Statutory drafting, however, occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like degree of injury to victims, in relation to particular crimes. If a statute is unclear about whether it treats a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, since Congress is unlikely to intend any radical departures from past practice without making a point of saying so. See Almendarez-Torres v. United States, 523 U.S. 224, 230. Here, a search for comparable examples suggests that Congress had separate and aggravated offenses in mind when it employed numbered subsections in §2119, for it unmistakably identified serious bodily injury or related facts of violence as an offense element in several other federal statutes, including two of the three robbery statutes on which it modeled the carjacking statute. This conclusion is bolstered by the States’ practice of treating serious bodily injury as an element defining a distinct offense of aggravated robbery. Neither a 1996 amendment to the statute nor the statute’s legislative history supports the Government’s reading. The Government’s construction of the statute would raise a serious constitutional question under the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s notice and jury trial guarantees: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime? Although this question has been recognized in a series of cases over the past quarter century, see, e.g., Mullaney v. Wilbur, 412 U.S. 684, it has not been resolved by those cases, see, e.g.,Almendarez-Torres v. United States, supra. Any doubt on the issue of statutory construction should thus be resolved in favor of avoiding the question, under the rule that, “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [this Court’s] duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408. Pp. 12-15. (The Department of Justice's brief is available at http://www.usdoj.gov/osg/briefs/1997/3mer/2mer/97-6203.mer.html)

Cert Grant: Portuondo v. Agard Court below: 159 F.3d 98 (2nd Cir 10/23/98), modifying 117 F.3d 696. The Supreme Court has granted certiorari on whether a violation of Griffin v. California, 380 US 609 (1965) (prohibits a prosecutor's comments on defendant's presence in the courtroom during testimony of other witnesses prior to his own testimony) occurred when the prosecutor commented argued in summation that "unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies... That gives you a big advantage doesn't it."

Non-Capital Habeas Cases

Harris v. USA Sixth Circuit holds that appeal of the denial of a certificate of appealability is sufficient to appeal the underlying merits of a claim.

Moreno v. Stewart Ninth Circuit reverses a grant of habeas by the district court on the ground that petitioner was sufficiently warned by the trial court of the dangers of self-representation.

Prisoner's Rights and Governmental Misconduct Cases

Omdahl v. Lindholm Seventh Circuit holds degree of deadly force in governmental misconduct cases that is entitled to qualified immunity is a question of fact for the district court and not it.

Robinson v. Page Seventh Circuit holds PLRA's "physical injury" terms apply only to mental or emotional damage claims.

Campbell v. Sikes Eleventh Circuit affirms grant of summary judgment on excessive force and lack of adequate medical conditions claims.

Paul P v. Vernier Third Circuit upholds "Megan's Law" notification requirements, but remand to examine whether vigilante retaliation in this particular case requires greater protection of the plaintiff concerning community notification.

Hyche v. Christensen Seventh Circuit, in remanding for a third time on PLRA issues, examines whether an appeal was taken in good faith

In Focus

This week "In Focus" repeats some good news from the Death Penalty Information Center (http://essential.org/dpic) as well as a well deserved round of praise for the defense team that saved the life of an innocent man, Anthony Porter.

Another death row inmate may be released soon. Recent DNA testing has ruled out Ronald Keith Williamson for a murder that occurred in 1982 in Oklahoma. Williamson was sentenced to death in 1988 for the rape and murder of a waitress, Deborah Carter. Williamson's conviction was overturned by a federal appeals court in 1997 because of incompetent representation. The Oklahoma court is considering a motion to dismiss all charges. (Daily Oklahoman, 3/18/99).

Sometimes not enough recognition is given to the legal teams that work for years to prevent the execution of death row inmates, many of whom have turned out to be innocent. Recently, credit was rightly given to the journalism students and professor who helped free Anthony Porter from death row in Illinois. But Porter's life was first saved because those at the Capital Litigation Division of the Illinois State Appellate Agency convinced a judge that Porter should be tested for mental competency before his execution. Among those who worked to achieve this important result were attorneys Marshall Hartman, Terry Marroquinn, Dan Sanders, chief investigator Appolon Beaudouin, chief social worker Eileen McCarthy, and psychologist Ann Marie Caierwinski.

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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