The Supreme Court's decision inMickens v. Taylorcomprises the hot news of the week. TheMickensopinion, addressed in greater depth below, is a very narrow opinion and the language of the case suggests limiting its precedential value almost exclusively to the facts of the case. As Justice Scalia himself, writing for the majority, about the scope of the opinion, "[l]est todays holding be misconstrued, we note that the only question presented was the effect of a trial courts failure to inquire into a potential conflict upon theSullivanrule that deficient performance of counsel must be shown."

In other news of the week, the Ninth Circuit is noted as having granted a new penalty phase hearing reversal inKaris v. Calderonon penalty phase failure ot investigate information of an abusive childhood. The Kentucky Supreme Court has reversed a lower court grant of relief in Kentucky v. Tamme where a case of potential actual innocence was found by the trial court. The Death Penalty Information Center is closely following the Supreme Court's potential landmark inRing v. Arizonaand is

For those who are looking for new & powerful ways to present mitigation & clemency materials consider reviewing the clemency "movie" created for Abu-Ali Abdur'Rahman released this week. Unfortunately, the Board of Probation & Parole has voted against recommending clemency. The video & additional information on Mr. Rahman's case is available on the net at:

broad band video -- http://easylink.playstream.com/incitedmedia/abu-ali/abu-ali_high.rm

regular modem -- http://easylink.playstream.com/incitedmedia/abu-ali/abu-ali.rm

website - http://www.abu-ali.org

Following up on the Mr. Rahman's scheduled execution date, as well as the long litany of execution dates noted below, this week's focus section examines one theory supporting commutation of a death sentence, repentance.Resurrection from a Death Sentence: Why Capital Sentences Should Be Commuted upon the Occasion of an Authentic Ethical Transformation, by B. Douglas Robbins, 149UPALR 1115 (April 2001).

Special thanks to Michelle Brace for providing the briefs & related materials noted below for the Supreme Court's certiorari grant inSattazahn v. Pennsylvania.

My personal schedule for April may prevent several editions from being sent out in a timely fashion. Breaking updates will be posted at capitaldefenseweekly.com until an edition can actually get out the door.

April

2 Daniel Zirkle Virginia--volunteer

5 Gary Brown Alabama

10 Paul Kreutzer Missouri

10 Jose Santellan Sr. Texas

10 Abu-Ali Abdur'Rahman Tennessee

11 William Burns Texas

17 Robert Henry Texas

18 Gerald Casey Texas

19 Lynda Lyon Block Alabama

26 Alton Coleman Ohio

This week's edition is athttp://www.capitaldefenseweekly.com/archives/020325.htm.

HOT LIST CASES

Mickens v. Taylor(U.S. 03/27/2002) Where a trial court fails "to inquire into a potential conflict upon theSullivanrule that deficient performance of counsel must be shown." The majority opinion and the concurring opinion by Justice Kennedy (with O'Connor, J.) notes the decision is a very narrow one limited to question of whether where "the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsels performance." In holding that Mickens needed to show prejudice and failed to do so, the Court denies relief. Indeed, Justice Scalia notes the Court leaves its jurisprudence alone, addressing only whether prior doctrines should be extended & explicitly notes that Mickens does not foreclose that possibility ("[w]hether Sullivan should be extended [ ] remains, as far as the jurisprudence of this Court is concerned, an open question").

A few nuggets, however are neatly tucked away in the opinion that can be readily deployed in the proper situation. For example, in footnote 2 of the majority opinion the Court reiterates that the same Sixth Amendment guarantees to effective counsel apply whether counsel is chosen by the accused or appointed by the state. Likewise, the Micken's court labors at great length to note that it is deferring to the district court's findings of fact repeatedly, almost begging the conclusion that the Court sub silentio is stating that where a conflict of interest claim is raised an evidentiary hearing must be held.

The Sixth Amendment provides that a criminal defendant shall have the right to the assistance of counsel for his defence. This right has been accorded, we have said, not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. United Statesv. Cronic, 466 U.S. 648, 658(1984). It follows from this that assistance which is ineffective in preserving fairness does not meet the constitutional mandate, see Stricklandv. Washington, 466 U.S. 668, 685686(1984); and it also follows that defects in assistance that have no probable effect upon the trials outcome do not establish a constitutional violation. As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Id., at 694.

There is an exception to this general rule. We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. See Cronic, supra,at 658659; see also Gedersv. United States, 425 U.S. 80, 91(1976); Gideonv. Wainwright, 372 U.S. 335, 344345(1963). But only in circumstances of that magnitude do we forgo individual inquiry into whether counsels inadequate performance undermined the reliability of the verdict. Cronic, supra,at 659, n.26.

We have held in several cases that circumstances of that magnitude may also arise when the defendants attorney actively represented conflicting interests. The nub of the question before us is whether the principle established by these cases provides an exception to the general rule of Stricklandunder the circumstances of the present case. To answer that question, we must examine those cases in some detail. 1

In Hollowayv. Arkansas, 435 U.S. 475(1978), defense counsel had objected that he could not adequately represent the divergent interests of three codefendants. Id.,at 478480. Without inquiry, the trial court had denied counsels motions for the appointment of separate counsel and had refused to allow counsel to cross-examine any of the defendants on behalf of the other two. The HollowayCourt deferred to the judgment of counsel regarding the existence of a disabling conflict, recognizing that a defense attorney is in the best position to determine when a conflict exists, that he has an ethical obligation to advise the court of any problem, and that his declarations to the court are virtually made under oath. Id.,at 485486 (internal quotation marks omitted). Hollowaypresumed, moreover, that the conflict, which [the defendant] and his counsel tried to avoid by timely objections to the joint representation, id.,at 490, undermined the adversarial process. The presumption was justified because joint representation of conflicting interests is inherently suspect, and because counsels conflicting obligations to multiple defendants effectively sea[l] his lips on crucial matters and make it difficult to measure the precise harm arising from counsels errors. Id.,at 489490. Hollowaythus creates an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict. Id.,at 488 ([W]henever a trial court improperly requires joint representation over timely objection reversal is automatic).

In Cuylerv. Sullivan, 446 U.S. 335(1980), the respondent was one of three defendants accused of murder who were tried separately, represented by the same counsel. Neither counsel nor anyone else objected to the multiple representation, and counsels opening argument at Sullivans trial suggested that the interests of the defendants were aligned. Id., at 347348. We declined to extend Holloways automatic reversal rule to this situation and held that, absent objection, a defendant must demonstrate that a conflict of interest actually affected the adequacy of his representation. 446 U.S., at 348349. In addition to describing the defendants burden of proof, Sullivanaddressed separately a trial courts duty to inquire into the propriety of a multiple representation, construing Hollowayto require inquiry only when the trial court knows or reasonably should know that a particular conflict exists, 446 U.S., at 347 2which is not to be confused with when the trial court is aware of a vague, unspecified possibility of conflict, such as that which inheres in almost every instance of multiple representation, id., at 348. In Sullivan, no special circumstances triggered the trial courts duty to inquire. Id., at 346.

Finally, in Woodv. Georgia, 450 U.S. 261(1981), three indigent defendants convicted of distributing obscene materials had their probation revoked for failure to make the requisite $500 monthly payments on their $5,000 fines. We granted certiorari to consider whether this violated the Equal Protection Clause, but during the course of our consideration certain disturbing circumstances came to our attention: At the probation-revocation hearing (as at all times since their arrest) the defendants had been represented by the lawyer for their employer (the owner of the business that purveyed the obscenity), and their employer paid the attorneys fees. The employer had promised his employees he would pay their fines, and had generally kept that promise but had not done so in these defendants case. This record suggested that the employers interest in establishing a favorable equal-protection precedent (reducing the fines he would have to pay for his indigent employees in the future) diverged from the defendants interest in obtaining leniency or paying lesser fines to avoid imprisonment. Moreover, the possibility that counsel was actively representing the conflicting interests of employer and defendants was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. Id.,at 272. Because [o]n the record before us, we [could not] be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him, ibid., we remanded for the trial court to determine whether the conflict of interest that this record strongly suggests actually existed, id., at 273.

Petitioner argues that the remand instruction in Woodestablished an unambiguous rule that where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsels performance. Brief for Petitioner 21. 3He relies upon the language in the remand instruction directing the trial court to grant a new revocation hearing if it determines that an actual conflict of interest existed, Wood, 450 U.S., at 273, without requiring a further determination that the conflict adversely affected counsels performance. As used in the remand instruction, however, we think an actual conflict of interest meant precisely a conflict that affected counsels performanceas opposed to a mere theoretical division of loyalties. It was shorthand for the statement in Sullivanthat a defendant who shows that a conflict of interest actually affected the adequacy of his representationneed not demonstrate prejudice in order to obtain relief. 446 U.S., at 349350(emphasis added). 4This is the only interpretation consistent with the WoodCourts earlier description of why it could not decide the case without a remand: On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisionsby the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected. 450 U.S., at 272(emphasis added). The notion that Woodcreated a new rule sub silentioand in a case where certiorari had been granted on an entirely different question, and the parties had neither briefed nor argued the conflict-of-interest issueis implausible. 5

Petitioners proposed rule of automatic reversal when there existed a conflict that did not affect counsels performance, but the trial judge failed to make the Sullivan-mandated inquiry, makes little policy sense. As discussed, the rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsels performancethereby rendering the verdict unreliable, even though Stricklandprejudice cannot be shown. See Sullivan, supra, at 348349. The trial courts awareness of a potential conflict neither renders it more likely that counsels performance was significantly affected nor in any other way renders the verdict unreliable. Cf. United Statesv. Cronic, 466 U.S., at 662, n.31. Nor does the trial judges failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at the trial.

Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivans mandate of inquiry. Despite Justice Souters belief that there must be a threat of sanction (to-wit, the risk of conferring a windfall upon the defendant) in order to induce resolutely obdurate trial judges to follow the law, post, at 20, we do not presume that judges are as careless or as partial as those police officers who need the incentive of the exclusionary rule, see United Statesv. Leon, 468 U.S. 897, 916917(1984). And in any event, the Sullivanstandard, which requires proof of effect upon representation but (once such effect is shown) presumes prejudice, already creates an incentive to inquire into a potential conflict. In those cases where the potential conflict is in fact an actual one, only inquiry will enable the judge to avoid all possibility of reversal by either seeking waiver or replacing a conflicted attorney. We doubt that the deterrence of judicial dereliction that would be achieved by an automatic reversal rule is significantly greater.

Since this was not a case in which (as in Holloway) counsel protested his inability simultaneously to represent multiple defendants; and since the trial courts failure to make the Sullivan-mandated inquiry does not reduce the petitioners burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsels performance. The Court of Appeals having found no such effect, see 240 F.3d, at 360, the denial of habeas relief must be affirmed.

III

Lest todays holding be misconstrued, we note that the only question presented was the effect of a trial courts failure to inquire into a potential conflict upon the Sullivanrule that deficient performance of counsel must be shown. The case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivanwould be applicablerequiring a showing of defective performance, but notrequiring in addition (as Stricklanddoes in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcome of trial. That assumption was not unreasonable in light of the holdings of Courts of Appeals, which have applied Sullivanunblinkingly to all kinds of alleged attorney ethical conflicts, Beetsv. Scott, 65 F.3d 1258, 1266 (CA5 1995) (en banc). They have invoked the Sullivanstandard not only when (as here) there is a conflict rooted in counsels obligations to formerclients, see, e.g., Perillov. Johnson, 205 F.3d 775, 797799 (CA5 2001); Freundv. Butterworth, 165 F.3d 839, 858860 (CA11 1999); Mannhaltv. Reed, 847 F.2d 576, 580 (CA9 1988); United Statesv. Young, 644 F.2d 1008, 1013 (CA4 1981), but even when representation of the defendant somehow implicates counsels personal or financial interests, including a book deal, UnitedStates v. Hearst, 638 F.2d 1190, 1193 (CA9 1980), a job with the prosecutors office, Garciav. Bunnell, 33 F.3d 1193, 11941195, 1198, n.4 (CA9 1994), the teaching of classes to Internal Revenue Service agents, United Statesv. Michaud, 925 F.2d 37, 4042 (CA1 1991), a romantic entanglement with the prosecutor, Summerlinv. Stewart, 267 F.3d 926, 935941 (CA9 2001), or fear of antagonizing the trial judge, United Statesv. Sayan, 968 F. 2d 55, 6465 (CADC 1992).

It must be said, however, that the language of Sullivanitself does not clearly establish, or indeed even support, such expansive application. [U]ntil, it said, a defendant shows that his counsel actively representedconflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. 446 U.S., at 350(emphasis added). Both Sullivanitself, see id., at 348349, and Holloway, see 435 U.S., at 490491, stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. See also Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L.Rev. 119, 125140 (1978); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L.Rev. 939, 941950 (1978). Not all attorney conflicts present comparable difficulties. Thus, the Federal Rules of Criminal Procedure treat concurrent representation and prior representation differently, requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single attorney (Rule 44(c)), but not when counsel previously represented another defendant in a substantially related matter, even where the trial court is aware of the prior representation. 6See Sullivan, supra,at 346, n.10 (citing the Rule).

This is not to suggest that one ethical duty is more or less important than another. The purpose of our Hollowayand Sullivanexceptions from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Stricklanditself is evidently inadequate to assure vindication of the defendants Sixth Amendment right to counsel. See Nixv. Whiteside, 475 U.S. 157, 165(1986) ([B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel). In resolving this case on the grounds on which it was presented to us, we do not rule upon the need for the Sullivanprophylaxis in cases of successive representation. Whether Sullivanshould be extended to such cases remains, as far as the jurisprudence of this Court is concerned, an open question.

Dissent by Souter

Without an objection, the majority holds, Mickens should get no relief absent a showing that the risk turned into an actual conflict with adverse effect on the representation provided to Mickens at trial. Ibid.But why should an objection matter when even without an objection the state judge knew or should have known of the risk and was therefore obliged to enquire further? What would an objection have added to the obligation the state judge failed to honor? The majority says that in circumstances like those now before us, we have already held such an objection necessary for reversal, absent proof of actual conflict with adverse effect, so that this case calls simply for the application of precedent, albeit precedent not very clearly stated. Ante, at 89.

The majoritys position is error, resting on a mistaken reading of our cases. Three are on point, Hollowayv. Arkansas, supra; Cuylerv. Sullivan, s upra; and Woodv. Georgia, supra.

In Holloway, a trial judge appointed one public defender to represent three criminal defendants tried jointly. 435 U.S., at 477. Three weeks before trial, counsel moved for separate representation; the court held a hearing and denied the motion. Ibid.The lawyer moved again for appointment of separate counsel before the jury was empanelled, on the ground that one or two of the defendants were considering testifying at trial, in which event the one lawyers ability to cross-examine would be inhibited. Id., at 478. The court again denied his motion. Ibid. After the prosecution rested, counsel objected to the joint representation a third time, advising the court that all three defendants had decided to testify; again the court refused to appoint separate lawyers. Id., at 478480. The defendants gave inconsistent testimony and were convicted on all counts. Id., at 481.

This Court held that the motions apprised the trial judge of a risk that continuing the joint representation would subject defense counsel in the pending trial to the impossible obligations of simultaneously furthering the conflicting interests of the several defendants, id., at 484, and we reversed the convictions on the basis of the judges failure to respond to the prospective conflict, without any further showing of harm, id., at 491. In particular, we rejected the argument that a defendant tried subject to such a disclosed risk should have to show actual prejudice caused by subsequent conflict. Id., at 488. We pointed out that conflicts created by multiple representation characteristically deterred a lawyer from taking some step that he would have taken if unconflicted, and we explained that the consequent absence of footprints would often render proof of prejudice virtually impossible. Id., at 489491.

Next came Cuylerv. Sullivan, 446 U.S. 335(1980), involving multiple representation by two retained lawyers of three defendants jointly indicted but separately tried, id., at 337. Sullivan, the defendant at the first trial, had consented to joint representation by the same lawyers retained by the two other accused, because he could not afford counsel of his own. Ibid.Sullivan was convicted of murder; the other two were acquitted in their subsequent trials. Id., at 338. Counsel made no objection to the multiple representation before or during trial , ibid.; nor did the convicted defendant argue that the trial judge otherwise knew or should have known of the risk described in Holloway, that counsels representation might be impaired by conflicting obligations to the defendants to be tried later, id., at 343.

This Court held that multiple representation did not raise enough risk of impaired representation in a coming trial to trigger a trial courts duty to enquire further, in the absence of special circumstances. 2 Id., at 346. The most obvious special circumstance would be an objection. See Holloway, supra, at 488. Indeed, because multiple representation was not suspect per se,and because counsel was in the best position to anticipate a risk of conflict, the Court spoke at one point as though nothing but an objection would place a court on notice of a prospective conflict. Cuyler, 446 U.S., at 348([A] defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyers performance (footnote omitted)). But the Court also explained that courts must rely on counsel in large measure, id.,at 347, that is, not exclusively, and it spoke in general terms of a duty to enquire that arises when the trial court knows or reasonably should know that a particular conflict exists. 3 Ibid.(footnote omitted). Accordingly, the Court did not rest the result simply on the failure of counsel to object, but said instead that [n]othing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest, ibid. For that reason, it held respondent bound to show that a conflict of interest actually affected the adequacy of his representation. Id., at 349.

The different burdens on the Hollowayand Cuylerdefendants are consistent features of a coherent scheme for dealing with the problem of conflicted defense counsel; a prospective risk of conflict subject to judicial notice is treated differently from a retrospective claim that a completed proceeding was tainted by conflict, although the trial judge had not been derelict in any duty to guard against it. When the problem comes to the trial courts attention before any potential conflict has become actual, the court has a duty to act prospectively to assess the risk and, if the risk is not too remote, to eliminate it or to render it acceptable through a defendants knowing and intelligent waiver. This duty is something more than the general responsibility to rule without committing legal error; it is an affirmative obligation to investigate a disclosed possibility that defense counsel will be unable to act with uncompromised loyalty to his client. It was the judges failure to fulfill that duty of care to enquire further and do what might be necessary that the HollowayCourt remedied by vacating the defendants subsequent conviction. 435 U.S., at 487, 491. The error occurred when the judge failed to act, and the remedy restored the defendant to the position he would have occupied if the judge had taken reasonable steps to fulfill his obligation. But when the problem of conflict comes to judicial attention not prospectively, but only after the fact, the defendant must show an actual conflict with adverse consequence to him in order to get relief. Cuyler, supra, at 349. Fairness requires nothing more, for no judge was at fault in allowing a trial to proceed even though fraught with hidden risk.

In light of what the majority holds today, it bears repeating that, in this coherent scheme established by Hollowayand Cuyler, there is nothing legally crucial about an objection by defense counsel to tell a trial judge that conflicting interests may impair the adequacy of counsels representation. Counsels objection in Hollowaywas important as a fact sufficient to put the judge on notice that he should enquire. In most multiple-representation cases, it will take just such an objection to alert a trial judge to prospective conflict, and the CuylerCourt reaffirmed that the judge is obliged to take reasonable prospective action whenever a timely objection is made. 446 U.S., at 346. But the Court also indicated that an objection is not required as a matter of law: Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an enquiry. Id., at 347. The Court made this clear beyond cavil 10 months later when Justice Powell, the same Justice who wrote the Cuyleropinion, explained in Woodv. Georgiathat Cuylermandatesa reversal when the trial court has failed to make an inquiry even though it knows or reasonably should know that a particular conflict exists. 450 U.S., at 272, n.18 (emphasis in original).

Since the District Court in this case found that the state judge was on notice of a prospective potential conflict, 74 F.Supp. 2d, at 613615, this case calls for nothing more than the application of the prospective notice rule announced and exemplified by Hollowayand confirmed in Cuylerand Wood. The remedy for the judges dereliction of duty should be an order vacating the conviction and affording a new trial.

But in the majoritys eyes, this conclusion takes insufficient account of Wood, whatever may have been the sensible scheme staked out by Hollowayand Cuyler, with a defendants burden turning on whether a court was apprised of a conflicts problem prospectively or retrospectively. The majority says that Woodholds that the distinction is between cases where counsel objected and all other cases, regardless of whether a trial court was put on notice prospectively in some way other than by an objection on the record. See ante, at 89. In Wood, according to the majority, the trial court had notice, there was no objection on the record, and the defendant was required to show actual conflict and adverse effect.

Woodis not easy to read, and I believe the majority misreads it. The first step toward seeing where the majority goes wrong is to recall that the Court in Woodsaid outright what I quoted before, that Cuyler mandatesa reversal when the trial court has failed to make an inquiry even though it knows or reasonably should know that a particular conflict exists. 450 U.S., at 272, n.18. This statement of a trial judges obligation, like the statement in Cuylerthat it quoted, 446 U.S., at 347, said nothing about the need for an objection on the record. True, says the majority, but the statement was dictum to be disregarded as inconsistent with Woods holding. Ante, at 67, n.2. This is a polite way of saying that the WoodCourt did not know what it was doing; that it stated the general rule of reversal for failure to enquire when on notice (as in Holloway), but then turned around and held that such a failure called for reversal only when the defendant demonstrated an actual conflict (as in Cuyler).

This is not what happened. Wooddid not hold that in the absence of objection, the Cuylerrule governs even when a judge is prospectively on notice of a risk of conflicted counsel. Careful attention to Woodshows that the case did not involve prospective notice of risk unrealized, and that it held nothing about the general rule to govern in such circumstances. What Wooddid decide was how to deal with a possible conflict of interests that becomes known to the trial court only at the conclusion of the trial proceeding at which it may have occurred, and becomes known not to a later habeas court but to the judge who handed down sentences at trial, set probation 19 months later after appeals were exhausted, and held a probation revocation proceeding 4 months after that.

SUPREME COURT CASES & NEWS

Sattazahn v. Pennsylvania Certiorai was noted last issue. The issues presented, from the petition for certiorari [pdf] [wp] are noted as:

1. Does the Double Jeopardy Clause of the Fifth Amendment bar imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, in which the trial court imposed a statutorily mandated life sentence when the capital sentencing jury failed to reach a unanimous verdict?

2. Is a capital defendant’s life and liberty interest in the imposition of a life sentence by operation of state law, following a capital sentencing hearing in which the sentencing jury fails to reach a unanimous verdict, violated when his first conviction is later overturned and the state seeks and obtains a death sentence on retrial?

POSITIVE CAPITAL CASE RESULTS

Karis v. Calderon, 2002 U.S. App. LEXIS 4304 (9th Cir 03/18/2002) (dissent) Relief granted on penalty phase failure to investigate information of an abusive childhood.

Magistrate Judge Molde heard testimony for over two weeks and evaluated the credibility of the witnesses and the evidence presented in a well reasoned and documented 103 page opinion. The district judge stated that he carefully reviewed the entire file and found the findings and recommendations of the magistrate judge to be supported by the record and by proper analysis and adopted them in full. The magistrate judge's recommendations thus becomes the opinion of the district court.

The opinion of the district court considered and rejected a number of claims of ineffective assistance of counsel that may be summarized as follows:

a. The failure to examine the family history of mental illness was rejected because "counsel in 1982 was not constitutionally compelled to do the extent of family history research that petitioner's counsel now presents."

b. The failure to investigate drug abuse was rejected because "petitioner has shown neither unreasonable conduct nor prejudice under Strickland."

c. The failure to present evidence of mental illness was rejected stating: "although further effort by counsel might have yielded a better result, [*38] counsel's effort fell within the wide range of reasonable assistance described in Strickland."

d. The failure to present evidence of Karis' military record was rejected because "this was a reasoned tactical decision."

e. The failure to object to the trial court's consideration of a probation office report was rejected because "petitioner has not shown a reasonable probability that, had counsel objected, the trial court would have overturned the jury's death verdict."

The careful consideration and rejection of these arguments concerning the ineffective assistance of counsel claims highlights the care with which the district court considered all of the ineffective assistance of counsel claims and in turn the care with which it entered its findings concerning the one ineffective assistance of counsel claim that it determined required the reversal of the death penalty aspect of the judgment. The district court found that counsel's failure adequately to investigate Karis' childhood, family situation and the serious abuse he suffered, and watched his mother suffer as a child, warranted reversal of the death penalty. The court's ultimate finding concerning counsel's deficient [*39] performance was:

There does not appear to have been any risk in presenting the mitigating evidence of abuse. In addition, there is no indication that conducting a further investigation of abuse was not possible. There is no showing that counsel lacked the time or money to conduct further investigations. "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. Petitioner's trial counsel has provided no rational justification for his failure to pursue an investigation into petitioner's history of family abuse. Accordingly, the court finds counsel's assistance unreasonable under the Sixth Amendment.

With regard to the prejudice of counsel's failure to investigate, the district court found:

Had counsel performed a proper investigation he could have offered substantial and wrenching evidence of petitioner's violent and abusive childhood. If this evidence had been offered at trial, it is likely that jurors would have concluded that petitioner witnessed his father and stepfather viciously beat his mother; that both men also beat and abused him; [*40] and that petitioner's father molested him. There is a "belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Boyde v. California, 494 U.S. 370, 382, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990). Thus, it is reasonable to expect that some jurors would have found this evidence especially important in understanding a defendant who had acted violently toward women. Considering the weak mitigation case put on, the prosecutor's focus on the lack of evidence of mental illness, and the strength of the evidence of abuse presented here, the court finds a reasonable probability that had counsel properly investigated and presented evidence of abuse, the result of the penalty phase would have been different. The court will recommend granting the petition for writ of habeas corpus on this basis.

Karis claims that counsel failed to investigate and present significant mitigating evidence of his childhood poverty, abuse, and the family dynamics. Karis' attorney had a duty to conduct reasonable investigation, including [*41] an investigation of Karis' background, for possible mitigating evidence. Indeed, a substantial mitigating case may be impossible to construct without a life-history investigation. G. Goodpaster, "The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases," 58 N.Y.U.L. Rev. 299, 321 (May 1983). The supreme court has recognized the importance of informing the jury about the background and character of the defendant in a capital case.

The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sentencer has treated the defendant as a uniquely individual human being and has made a reliable determination that death is the appropriate sentence.

Penry v. Lynaugh, 492 U.S. 302, 319, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1988) (citations omitted).

The issue for the jury was whether Karis would live or die. We have emphasized the importance of presenting the available mitigating evidence in order for the jury to fairly make the vital determination of whether the defendant will live or die. We have noted that the failure to present important mitigating evidence in [*42] the penalty phase can be as devastating as a failure to present proof of innocence in the guilt phase. Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992). The Supreme Court has also recognized the importance of the use of a defendant's background as mitigation evidence:

Evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.

Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990). The Supreme Court recently held that an attorney's failure to conduct an investigation that would have uncovered "extensive records graphically describing [the petitioner's] nightmarish childhood" constituted deficient performance. Williams v. Taylor, 529 U.S. 362, 363, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). As the Court explained, "mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the [*43] prosecution's death-eligibility case. " Id. at 398.

Karis' counsel presented mitigation evidence for only 48 minutes. In that short time, counsel called witnesses, eliciting that Karis had exhibited artistic and academic talent, that his mother had been divorced and that he had saved his brother from drowning when he was a child. While defense counsel offered this meager presentation, the district court findings are replete with evidence of abuse that should have been uncovered and presented by counsel upon any reasonable investigation and representation. Counsel's failure to present such substantial mitigating evidence was woefully inadequate and kept crucial information from the jury faced with sentencing Karis to life or death.

Penalty phase counsel acknowledged that evidence of abuse of Karis and of his mother when Karis was a child was relevant to the penalty phase case. Until a week prior to the penalty hearing Karis' counsel apparently intended to give the jury information on such abuse through the testimony and report of Dr. Albert Globus. Karis' guilt phase counsel hired Dr. Globus to evaluate Karis' mental status. Dr. Globus interviewed Karis' mother, Mrs. [*44] Jones, who told him that Karis' stepfather constantly beat her up and mistreated and beat Karis in order to get at her. Mrs. Jones stated that Karis' stepfather gave him little attention other than this abuse or when Karis did something wrong.

Dr. Globus reported that Karis "no doubt experienced brutal abuse from his stepfather without sufficient cause and often as a result of his stepfather's anger at his mother." Dr. Globus described Karis' parental environment as" characterized by violence directed at his mother and himself "and that Karis' father and stepfather's abusive attitude toward his mother set the scene for the development of an acceptance of violence as the solution to social and interpersonal problems and a low opinion of women. Dr. Globus depicted Karis' stepfather as "brutal towards him and his mother, "explaining that Karis was subjected to seeing his mother mistreated and being aware of some sexual abuse as well.

Penalty phase counsel decided not to call Dr. Globus to testify at the penalty hearing because there was also damaging evidence in his report. We agree with the district court's conclusion that the decision not to use Dr. Globus to establish this childhood [*45] abuse was a tactical decision that did not violate Strickland. See 466 U.S. at 690. However, counsel was admittedly on notice from Dr. Globus' report of substantial family abuse. Despite his conceded knowledge of this history, counsel failed to present any evidence of Karis' family abuse to the jury. Counsel maintains that he did not ask Karis' mother questions about this abuse at the penalty hearing because he did not know what she would say and that she had denied the abuse. She contends, however, that he never asked her and that if he had, she would have testified about it. Even taking counsel's statement as true, his failure to investigate the abuse through other family members and witnesses was error of constitutional magnitude. See Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998) (concluding that counsel was deficient for failing to "perform any real investigation into mitigating circumstances, even though that evidence was rather near the surface"). Counsel or his investigator spoke to only three of Karis' family members: his mother, his brother who had suffered brain damage, and his aunt.

The State argues that counsel had no duty [*46] to investigate this matter further because Karis and his mother were uncooperative. Counsel himself stated that "uncooperative" was probably an inaccurate word, rather that "for whatever reason, they did not want to tell me the full extent of Mrs. Jones' prior life." The fact that they did not offer this information regarding the abuse did not excuse counsel from further investigation of such substantial mitigating evidence. This is particularly true where, as here, counsel was aware of the childhood abuse and there was essentially no other significant mitigating evidence to present to the jury.

Counsel's duty to investigate mitigating evidence is neither entirely removed nor substantially alleviated by his client's direction not to call particular witnesses to the stand. Furthermore, a lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made "informed and knowing" judgment.

Silva v. Woodward, 279 F.3d 825, 838, 2002 U.S. App. LEXIS 1563 (9th Cir. 2002). In this case counsel was not [*47] instructed not to call his mother or to ask her about the abuse. Certainly he should have explained to her the gravity to her son in not testifying about the abuse. Even if she had denied it initially, which she disputes, he knew from Dr. Globus that it had occurred.

At the evidentiary hearing before the district court, Karis presented his mother's testimony about James Karis Sr.'s abuse of her and Karis. She gave numerous examples of the violent abuse that occurred:

Jim became obsessed with controlling me. He used to say to me, "I want to know every place you go and who you go with. I want to know exactly when you get off work, and where you go when you get off. I even want to know when you go to the bathroom." . . . Jim told me that if he ever saw me smoking a cigarette, he'd "knock it clear down [my] throat." Once, I was so sick of his rules that I decided to do it anyway, and I took one of his Camels and started to light it up right in front of him. I had not even lit the cigarette before Jim grabbed it from me. He then made me swallow it whole, just like he had promised. I gagged and coughed but did not dare oppose him.

Jim was physically abusive towards me for [*48] years. I lived in fear of Jim throughout our marriage, and for several years after our divorce as well. He threatened to kill me and I knew he not only could but would if I crossed him. He had an unpredictable temper, and when I said something that angered him, he turned and slapped me with the back of his hand. When he was mad, Jim hit me and knocked me around the room, throwing me from wall to wall as if I were a ball on a pool table.

She described how she would beg him to stop beating her but he was beyond reason once he started. She stated that Jimmy was present during almost all of these fights. She further stated:

I filed for divorce from Jim in October, 1953, and our divorce became final in November 1954, when Jimmy was three years old. Even then, however, Jim was not out of my life. for almost two years after we separated, Jim threatened and intimidated me. He begged me to take him back. He parked his car outside my apartment and stared at my window for hours. He started following me to and from work, and leaving "reminders" to let me know he was watching me . . . .

Jim also continued to beat me after our separation. We had loud, awful fights, and Jimmy was often there [*49] during them. I remember one time when Jim threatened to take Jimmy from me and never let me see him again, and I had to pull little Jimmy, crying, from Jim's arms. . . .

Jimmy continued to see his father for regular visits, almost every single weekend, after our divorce. Jimmy's behavior seemed strange after these visits with his Dad. When he was just two or three years old, Jimmy began to call me curse names that he was too young to understand himself. I will always believe that Jimmy's daddy trained Jimmy to call me those slurs. After almost every visit with his father, Jimmy had some kind of injury--bruises on his legs, or something else that "hurt" him. Once, at age four, Jimmy came back from seeing his father with a circle-shaped burn on his hand. Jim told me that it was caused by his girlfriend, who had accidentally burned Jimmy with a car cigarette lighter.

She reported that she remarried when Karis was around five years old and that husband, Courtney Jones, also beat her up all the time and that they were caught up in an "exhausting cycle of violence." She described the first time he beat her up when she could not quiet their crying baby: "Courtney jumped out of bed, [*50] grabbed me, threw me on the floor. Then he sat on top of me, pinned me down, and hit me all over with his hands and fists." She further stated:

Courtney had a particular style of beating me. The most common thing he did was hold me close to him -- either by grabbing my clothes or pinning me against a wall -- and punch me over and over. He also kicked me, threw me down, and threatened to kill me. One threat Courtney used before he lit into me was, "I'll make you wish you were dead." Lots of times, he made me feel so powerless and afraid that I did want to die.

She testified that like Jimmy's father, Courtney was" insanely jealous."

Courtney followed me when I left the house, and told me when, where, and with whom I could go out. When I worked nights at a fast-food restaurant, Courtney often put the boys in the car, drove to the restaurant, and parked outside for hours while he watched me. One night, I got so sick of Courtney's rules that I decided to do something I knew would make him furious. I left the kids at home and went down to San Jose with a cousin of mine whom he despised . . . . When I got to our house, Courtney was in the bedroom with Kevin and Jimmy. [*51] He came out of the room and beat the living daylights out of me. He dragged me from room to room, punching me and throwing me against the walls. When we got to the kitchen, he threw me on the floor, picked up a trash can full of garbage, and dumped it all over me. When I lay there, he yelled, "Now take your damn kids and get out of my house!" For days afterwards, I had bruises all over my body, two black eyes, and I could hardly walk for a week.

She further stated that he would go after Jimmy to get at her and that if she told Courtney to stop calling Jimmy names or whipping him, it just made things worse. She recounted how Courtney favored his own son and berated Karis:

Courtney adored Kevin. He treated him like a king, doting on him and spoiling him. But Jimmy never got any of Courtney's love. Courtney never treated Jimmy like a son, and called him "you little wop" more often than he called him by his name. . . . If Jimmy and Kevin were happily playing together, Courtney would step in, take Jimmy away, and make him sit still against a wall to watch while Kevin played with all the toys himself. . . . Lots of times he came home from work, picked up Kevin, and asked him, [*52] "Did your Mama whip you today?" and "What did that little wop get away with today?" . . . . Jimmy was scared to death of Courtney because of all the beatings, whippings, and threats.

She alleged extreme cruelty as grounds for divorcing him. She divorced him in March of 1961 when Jimmy was around nine years old.

Dr. Douglas Liebert's declaration reveals that several family members knew of Courtney's abuse. The district court record contains numerous declarations from her and others about this abuse yet Karis' lawyer presented none of this powerful and potentially life-saving evidence at sentencing. The opinion of the district court identified some of this evidence.

Petitioner has presented substantial testimony that James Sr. emotionally and physically abused Marie. Marlene Younger, Mrs. Jones' sister-in-law, knew that James Sr. treated Marie badly. She also testified that she cared for petitioner often when he was young. She noted that after visits with his father, petitioner "seemed different: he was hard to control, easily upset, and cried a lot for no apparent reason." Dona Williams, Mrs. Jones' sister, testified that she heard from her mother that James Sr. "was always [*53] beating Marie up." Tom Karis, James Sr.'s brother, recalled that "Jim was violent with Marie, and I saw her with black eyes and bruises many times." (transcript references deleted).

Mrs. Jones testified that counsel did not ask her about abuse and that if asked she would have testified of the abuse at the penalty hearing. Marlene Younger, Karis' aunt also stated that she would have testified about Courtney Jones' abuse of Mrs. Jones if counsel had asked her about it. We are not persuaded by the State's argument that this performance was constitutionally sufficient under 1982 standards of practice. n10

It is difficult to imagine what kind of standard the State conceives would allow counsel to rely almost solely on testimony that Karis was artistic and had academic potential [*54] to present a mitigating case, while failing to present any evidence of such substantial abuse to the jury for consideration in making a life or death determination for Karis. The defense counsel's portrayal of Karis as intelligent without any indication of his violent and abusive childhood afforded the prosecution a very effective argument. The prosecutor emphasized the fact that Karis was "bright" and "cunning" and that he "well knew exactly what he was doing." The prosecutor further argued that Karis was not "so lacking in ability" that he was "warped into being a killer," rather he had all the ability, "but he changed his life into that of visiting evil destruction and death."

As the district court found, counsel could have offered "substantial and wrenching evidence" of Karis' violent and abusive childhood. This information of Karis witnessing his father and his stepfather viciously beat his mother, in addition to both men beating and abusing Karis, is extremely probative as mitigating evidence. Evidence of severe beatings that Karis' mother received from his stepfather, Jones, during the time that Karis was older and more inclined to have vivid recollection, would be highly [*55] relevant to mitigation as potentially having a serious effect on a child's attitude and treatment of women as he grew up. It should at least have been presented by the mother and others who could verify it for a jury to consider, even without Dr. Globus's elaboration on the effect it would have on a developing child.

The testimony before the district court was of severe beatings and treatment that could legitimately have severe effects on a young child's development and attitude. Based on the abundance of testimony at the evidentiary hearing regarding this abuse, the district court found that Karis' counsel had the opportunity to show that Karis grew up "seeing his mother regularly and violently abused by men." We agree with the district court that such evidence is particularly compelling mitigating evidence in a rape case.

2. Prejudice

As the district court found, "Petitioner's trial counsel has provided no rational justification for his failure to pursue an investigation into petitioner's history of family abuse." There was no strategic reason offered. The dissent believes the strategy was to end testimony with the mother crying on the stand. However, bringing out the abuse [*56] early in her examination would not have interfered with this strategy, in fact it would likely have enhanced it. How much more effective to have brought out the wrenching abuse she and Karis suffered and then leave the mother crying on the stand. A reasonable investigation and witness preparation would have made this possible.

The dissent further contends that the result reached by the majority in this case is precluded by Burger v. Kemp, 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987). In that case the attorney made a strategic decision not to call witnesses to testify about his troubled family background because it would inevitably reveal his criminal juvenile background and his hair trigger violent temper, both of which the jury had no knowledge. This was "at odds with the defense's strategy of portraying petitioner's actions on the night of the murder as a result of [a codefendant's] strong influence upon his will." Id. at 793. Burger has been distinguished in a number of cases in our circuit on the basis of this reasonable strategic choice, most recently by Silva, 279 F.3d at 844.

In Karis' case, as the district [*57] court found, there was no risk of putting on evidence of the wrenching abuse of Karis and his mother. It was within the range of reasonable tactics not to put Dr. Globus on the stand, but that does not excuse the failure to present the evidence of abuse through other witnesses. When the decision was made, shortly before trial, not to call Dr. Globus, the lack of thorough investigation left Karis' attorney unprepared to present what he had intended to be his major mitigating evidence. As he put it, he intended to make James Karis, Sr. and Courtney Jones the "heavies." Thus, as the district court found, "After deciding not to put on Dr. Globus, petitioner's counsel was left with little of consequence to present in mitigation. The only mitigating evidence concerned petitioner's artistic ability, his intelligence, and some limited testimony concerning his youth."

The dissent notes that the prosecutor asked no questions of the mitigation witnesses. This is no wonder, in that the prosecutor no doubt believed the testimony was of little consequence, and more importantly, it played right into his hands in the final argument he intended to make, and did make. The district court quoted a pertinent [*58] portion in its opinion:

We see Mr. Karis, not as an impoverished individual, not somebody who was void of talents, who's devoid of intellectual capacity, not somebody who, by virtue of being so poor as an individual, so lacking in ability was warped into being a killer. No, on the other hand, Mr. Karis has all of the ability, but he changed his life into that of visiting evil destruction and death on fellow human beings. . . . Despite Mr. Karis' abilities, despite his intellectual capacity, despite all of his talents, he has turned to base and immoral purposes. He grows marijuana for profit. He rapes for pleasure, and he kills to avoid apprehension.

Counsel's error in failing to investigate and present the highly relevant information of an abusive childhood, was prejudicial. A "reasonable probability" exists that a jury would find this information important in understanding the root of Karis' criminal behavior and his culpability. The prosecutor repeatedly stressed the absence of any testimony of mitigation throughout the penalty phase argument. With proper investigation, Karis' counsel could have put before the jury evidence contrary to the prosecution's piercing argument. [*59]

It is noteworthy that even with the weak mitigation evidence that was presented, the jury was out for three days before rendering its verdict. If evidence of Karis' violent and abusive childhood had been offered it is very likely that some jurors would have found such evidence particularly important in order to understand why he acted so violently towards women. As we have noted, there is a belief, "long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Boyde, 494 U.S. at 382.

Based on the weak mitigation case presented, the prosecutor's focus on the lack of mitigating evidence, and the substantial evidence of abuse presented to the district court, a reasonable probability exists that had counsel properly investigated and presented evidence of abuse, the result would have been different. In its opening brief on this appeal, the State reports that guilt phase counsel recalled Karis and his mother crying at the penalty phase and that he felt it was genuine, that the jury reacted to it, and that he thought [*60] it a particularly compelling moment. This further suggests the significant relevance that substantial evidence of violent childhood abuse would probably have had on the jury's decision of whether Karis should live or die. In light of the whole record, and despite the substantial evidence of aggravation, the failure of counsel to present mitigating evidence made the sentencing neither fair nor reliable. See Hendricks v. Calderon, 70 F.3d 1032 at 1044 (citing Lockhart v. Fretwell, 506 U.S. 364, 368-70, 122 L. Ed. 2d 180, 113 S. Ct. 838). n11

CAPITAL CASES - RELIEF DENIED

Kentucky v. Tamme, 2002 Ky. LEXIS 53 (Ky 03/21/2002) Grant of relief reversed as "the granting of a new trial is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature." Likewise, the trial court erred in finding counsel ineffective for failing to present evidence relating to a drug cultivation by the defendant. The court below had noted "No victim’s grief can be assuaged by the punishment or death of the wrong person." (not available save through Lexis)

Wilson v. Texas, 2002 Tex. Crim. App. LEXIS 55 (Tex Crim App 03/20/2002) No error found on this direct capital appeal that addressed only whether the prosecution's use of "did you know questions" about the defendant's criminal acts were improper.

Saylor v. Indiana, 2002 Ind. LEXIS 221 (Indiana 03/21/2002) Judge's override of jury's recommendation, on post-conviction affirmed. Relief denied on claims relating to (1) did the State suppress exculpatory evidence thereby violating Saylor's right to due process in violation of Brady v. Maryland; (2) was Saylor denied the effective assistance of trial counsel; (3) was Saylor denied the effective assistance of appellate counsel; (4) is Indiana's death penalty statute unconstitutional in light of Apprendi v. New Jersey; and (5) did the post-conviction court display bias against Saylor thus rendering the court's judgment unreliable."

Morrison v. Florida, 2002 Fla. LEXIS 441 (FL 03/21/2002) Relief denied. (1) request for replacement of counsel; (2) life/death qualification of the jury; (3) prosecutor's remarks to the venire improperly minimized the State's burden of proof ; (4) "whether the prosecutor's remarks made during closing argument improperly shifted the burden of proof to the defense;" (5) "whether Morrison's statements to police, induced by a law enforcement officer's appeal to Morrison's religious beliefs, were voluntary;" (6) exclusion of impeachment State's witness for having a self-interest; (7) exclusion of impeachment of State's witness based on an alleged reputation for dishonesty; (8) whether the trial court erred in denying Morrison's motion for judgment of acquittal as to first-degree murder and burglary; (9) whether the heinous, atrocious, or cruel aggravating circumstance statute is unconstitutionally vague and, therefore, its application in this instance is in error; (10) whether the statute and instruction for the aggravating circumstance that the victim of the capital felony "was particularly vulnerable due to advanced age or disability" is unconstitutionally vague and its application, in this instance, is an error; and (11) proportionality of a death sentence.

Moon v. Head, 2002 U.S. App. LEXIS 4302 (11th Cir 03/18/2002) Although the trial court that heard the case originally granted relief in postconviction, every court since denied relief with the Eleventh Circuit being no different. Relief denied on Brady claims & failing to investigate sufficiently to find the suppressed information, prosecutorial use of perjured testimony, use in aggravation of subsequently vacated convictions, & the use of shackles in the juries presence.

OTHER NOTABLE CASES

Clanton v. United States, No. 00-2190 (2nd Cir 03/20/2002) District court did not err where on reconsideration it examine the substantive merits of the petitioner's claims even though in denying relief it had previously entered a just one-sentence order adopting the reasons stated in the government's brief.

Rudenko v. Costello, 2002 U.S. App. LEXIS 4411 (2nd Cir 03/20/2002) Sixteen cases consolidated only for purposes of appellate review remanded as the district court orders did not contain explanations sufficient to permit meaningful appellate review other than adoption of the state court's prior rulings.

United States v. Griffith, No. 00-1651, 00-1654 (2nd Cir 03/21/2002) Interestate commerce requirement of 18 U.S.C. 2251(a) met by the transport of child porn from New York to New Jersey and back..

United States v. Al-Zubaidy, No. 00-2343 (6th Cir 03/21/2002) Commerce Clause power of Congress deemed sufficient for 18 U.S.C. section 2261A, an interstate stalking statute.

United States, Ex rel Perez v. Warden, FMC Rochester, No. 01-2807 (8th Cir. 03/20/2002) Apprendi challenges brought pursuant to § 2241 improper as, under circuit precedent, Apprendi is not retroactive & petitioner previously had been denied on a § 2255 motion.

LATE PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted this week.

FOCUS

This week's focus section examines one theory, in this Lenten season, for commuting a death sentence to life. InResurrection from a Death Sentence: Why Capital Sentences Should Be Commuted upon the Occasion of an Authentic Ethical Transformation, by B. Douglas Robbins, 149 UPALR 1115 (April 2001), the author examines moral theories behind the continued infliction of the capital punishment and why these theories are at odds with killing the truly repentant.

I. Retributive Justice

A. Moorean Theory and Negative Retributivism

Retributive justice is the theory that offenders should be punished "because and only because" they deserve punishment. [FN17]The "correct" amount of punishment is that amount commensurate or "equal" to the "moral seriousness of the offense." [FN18]Punishing wrongdoers may have certain side effects, such as provoking or deterring other criminal acts, but for the retributivist these effects are reasons for neither abstaining from nor applying punishment. [FN19]Punishing those who deserve it is an intrinsic good, a good in and of itself. [FN20]Michael Moore helps to put a finer point on retributive theory by delineating what it is not. [FN21]First, retributivism does not necessarily commit itself to lex talionis, or punishment meted out under the principle of requiring the blinding of those who wrongfully blind others. [FN22]Neither does retributive justice necessarily mandate capital sentences: "It is quite possible," argues Moore, "to be a retributivist and to be *1120against both the death penalty and lex talionis." [FN23]Why? Because to say that some punishment is deserved does not establish what kind of punishment is appropriate.Second, Moore explains that retributivism is not the view that punishment is justified where it quenches victims' vengeful impulses, suppresses vigilantism, or otherwise satisfies the preferences of citizens at large. [FN24]The retributivist does not mind these kinds of socially useful side effects leeching from desert-based punishment, but they cannot be original justifications. [FN25]Nor is retributivism to be "confused with [a] denunciatory theor[y]" that justifies punishment "by the good consequences it achieves--either . . . psychological satisfactions, . . . the prevention of private violence, or the prevention of future crimes through the educational benefits of such denunciation." [FN26]Third, retributive justice does not dictate the shape of formal justice, or the principle of "treating . . . like cases alike." [FN27]Just because I am to be punished according to my desert, it does not follow that I should also be punished in a way and to the extent others in my predicament were punished in the past. Others like me may have accidentally been punished too lightly, or too harshly, in which case my punishment, were it to follow theirs, would clash with my desert. [FN28]"Equality," argues a noted death penalty theorist, "seems morally less important than justice. . . . Justice requires that as many of the guilty as possible be punished, regardless of whether others have avoided punishment." [FN29] *1121Last, unlike Moore, [FN30]I will adopt a negative retributive theory: [FN31]the guilty and only the guilty should be punished. [FN32]Negative retributivism is a fuller account of punishment than Moore's alone, because it tells us how to treat not only the guilty, but the innocent as well.

Retributivism has been criticized as a notion too broad to be meaningful. Of course we should punish those who deserve punishment, but how do we know who deserves what? Without an explanation of desert, retributivism begins to resemble a mere tautology.A death-penalty-focused desert analysis will often display at least five broad characteristics. First, desert presumes a moral universe in which individuals have a genuine opportunity to choose for themselves various courses of action [FN33]and consequently reap the benefits or detriments of that choice. [FN34]Second, as Moore explains, culpable wrongdoing powers desert. [FN35]Wrongdoing has a physical, [FN36]as well as a *1122mental, component. [FN37]One must have done the wrong in a particular state of mind. [FN38]Third, desert for a retributivist is an objective notion. [FN39]No normative authority inheres in mere subjective claims that we can and should punish wrongdoers or that wrongdoers are required to submit to punishment simply because the majority wills it. [FN40]The fourth is a related point, namely, desert has qualities of a right. [FN41]The state has a right to punish those who deserve punishment and, conversely, those who deserve punishment are obligated to submit. [FN42]Fifth, punishment is proportional to desert, and desert is proportional to the severity of the wrong committed. [FN43]The more evil the act, the *1123more intense the desert. The more intense the desert, the more egregious the punishment. [FN44]Much of the following discussion hinges upon this fifth general characteristic. As argued at length below, the proportionality aspect of desert mandates mitigating punishment when a wrongdoer undergoes an authentic character transformation. This is because character affects desert, and as the wrongdoer changes his character he necessarily changes the punishment he is owed.

B. Character Retributivism

Jeffrie Murphy explains that retributivism is the theory of punishment that confers upon wrongdoers what they deserve. He identifies at least five senses of desert, and thus at least five basic kinds of retributive justice: "desert as legal guilt; desert as involving mens rea . . .; desert as involving responsibility . . .; desert as a debt owed to annul wrongful gains from unfair free-riding (the Herbert Morris theory); and, finally, desert as involving ultimate character--evil or wickedness in some deep sense." [FN45]Murphy states that an analysis of desert embodied in the ultimate character of the wrongdoer is called character retributivism. [FN46]Immanuel Kant, Michael Moore, and even Murphy himself have sustained and defended this view. [FN47]Character retributivism, *1124the notion that wrongdoers should be punished in proportion to their own inner wickedness, may be thought of as the kind of punishment "that God might properly administer, on that final Day of Judgment." [FN48]This particular strain of punishment is well known in the prosecution of capital crimes. Murphy writes:

In many American states, for example, capital murder's mens rea requirement of "malice aforethought" may be implied from recklessness if a killer is said to have the mental state or character defect variously described as "an abandoned and wicked heart," "a depraved heart," "a depraved mind," "wickedness of disposition, hardness of heart, recklessness of consequences and a mind regardless of social duty," "wickedness of heart or cruelty," or (in the Model Penal Code) "extreme indifference to the value of human life." Even when a concern with inner wickedness does not find its way into the definition of the crime, it often arises dramatically when character is considered for purposes of sentencing--particularly state level capital sentencing where such adjectives as "cruel," "heinous," and "depraved" loom large in characterizing aggravating factors. [FN49]Whatever can be said of this view of proper punishment, it cannot be accused of failing to attempt to fix itself upon the highest, most grand aspirations we have for justice. For a time Murphy concurred, [FN50]but as of late, he has come to change his mind. [FN51]Interestingly, character retributivism's conceptual flaw seems to be that it is too grand, too ambitious. [FN52]Murphy is troubled that in applying punishment we would be tempted to turn our contempt for the criminal, his crime, his sick inner character, into outright cruelty. [FN53]It is one short step away from viewing the wrongdoer's fundamental character as terminally *1125rotten to outright and total condemnation. [FN54]Murphy's recent ruminations on Nietzsche [FN55]have convinced him that "the possibilities for self- deception" when evaluating the character of wrongdoers "are enormous," [FN56]and our failure even to approximate accurate calibrations of punishment under this theory will, more often than not, result not in justice, but mere hard-heartedness. "Realizing that we might be motivated not by justice but by cruelty should make us pause before we confidently march forward under the banner of character retributivism." [FN57]But, in the end, Murphy's impassioned critique is not all that demanding and his concerns are not all that new. The difficulties involved in self- and other-knowledge are no bars, and certainly no unique bars to the conceptual application of character retributivism.Murphy argues that deep cognitive obstacles exist in discerning accurate valuations of a wrongdoer's desert under character retributivism because it is difficult enough to know one's self, let alone another's deep character, the state of that person's heart, and the extent of his responsibility for his character. [FN58]But first, as Murphy readily admits, this is merely a reformulation of the long pondered problem of other minds: how do we know what we think we know about others' states of mind, their beliefs, dreams, knowledge, and intents? There is no sense in which character retributivism is uniquely hobbled by this problem more than any other notion that requires us to come to conclusions about others' states of mind. Love is a good example. The reductio of Murphy's other minds concern would vitiate the possibility of ever knowing, regardless of empirical data, that others love you. This cannot be right.

Second, the other minds argument in the context of a criminal trial proves too much. Murphy concedes that the very backbone of the criminal law, the mens rea requirement, faces "nontrivial cognitive problems" from an other minds charge. But no alternative to the investigation into a wrongdoer's guilty mind is offered, and none is self-evident. Giving up mens rea altogether is no better. Within the concept of mens rea are embedded all the assumptions of ourselves as *1126autonomous agents, with normative capacity to choose among various better and worse alternatives--in short, beings who live in a world of ethical meaning. If the other minds critique is effective against character retributivism, it is equally effective against mens rea--neither is acceptable. Both must be rejected.Third, a full-blown other minds argument cannot help but land us in solipsism. If we cannot know others, we cannot even be certain of their existence as human beings like ourselves. Solipsism ends not just the retributive project, in any of its flavors, but any kind of moral theoretics, including notions of compassion, justice, or kindness. For Murphy, a thinker first concerned with, at worst, accidental cruelty, this must be an unacceptable outcome.Murphy may respond that his real concern is not other minds, per se, but the sort of cruelty born of self-delusion that we are likely to foist upon others in the name of character retributivism. [FN59]But it is unclear why we would assume that, left up to their own devices, individuals tend to be cruel, not kind. Murphy says that contempt turns to cruelty, but if this were ineluctably so, then Nietzsche (the thinker from whom Murphy seems to be drawing many of his assumptions about human nature) would not need to warn, as Murphy acknowledges in a footnote, [FN60]about the danger of society, tending toward forgiveness, becoming, over time, "soft, and tender." [FN61]Moreover, as others have argued, [FN62]and as my argument below demonstrates, [FN63]no part of character retributivism demands cruelty of us. To the contrary, character retributivism is the mechanism through which a clear dejustification of the application of a capital sentence (in the particular case) may be demonstrated. [FN64]By any standard, the commutation of a death sentence cannot be characterized as cruel.Murphy also argues that retributive judgments are subject to two moral obstacles. First, our unvirtuous judgments of others may involve hypocrisy, and second, they may be motivated by the base passions *1127of envy, malicious hatred, and spite. [FN65]But if these are problems, they are not retributive problems. That is, we may be hypocrites, casting judgement upon others based upon low passions, but this does not necessarily make our judgments wrong. Second, these are not conceptual issues, but rather issues of application. They could very well be solved by striving to place the judgments of punishment in the hands of the least base and least hypocritical among us. If Murphy's deeper claim is that, when it comes to judging others, we are all base hypocrites, then this is likely an assumption, I would hope, not widely shared and facially counterintuitive. Third, to the extent that Murphy's concern here is sound, it would indict not just retributive justice, but likely all theories of punishment. [FN66]Estimations of psychological deterrent effects in deterrence theory or valuations of a wrongdoer's "criminality" in rehabilitation theory are both vulnerable to base emotional tampering, regardless of their claims to empirical or scientific objectivity. [FN67]Third, Murphy's deeper concern about our personal base hypocrisy is revealed in his defense of Christ's sermon on the mount. [FN68]In *1128an effort to express greater "generosity of spirit," [FN69]Murphy concludes that our judgments of others must occur only with "caution, regret, humility, and with a vivid realization that we are involved in a fallible and finite human institution." [FN70]But here he has gone too far as well. He is right to say that moral judgments are difficult and that character retributivism demands that we, to some extent, risk hubris, self-involvement, hypocrisy, and, even at times, acting from cruelty and base viciousness. But this potential for fallibility does not damn the venture outright. As actors in a moral universe, our judgments are not supererogatory. Rather, we are required on a daily basis to discern, within ourselves and within others, good from bad and right from wrong. The possibility for abuse and self-deception is dazzling, but the possibility of moral quietism--in essence, opting out of the entire challenge for fear of belying our own sallow character, for fear of being perceived as playing "God"--is even more daunting. [FN71]Eating of the tree of good and evil has cast us into the moral universe. [FN72]Once there, it is our unique province not as gods, but as people, to denounce evil and to reject vice when we see it. Skepticism here about our ability to fulfil this mandate is a skepticism about our ability to be full human beings.One last critique should be considered. Murphy's more general grudge against character retributivism may be interpreted as against a noncharacter flavor of retributive justice. That is, retributive justice might be thought of exclusively as a backward-looking theory of punishment, examining the guilty mind and the bad act of the criminal at the time of commission. In that way, retributivism would leave no room for discussions of desert as determined by after-the-fact character analysis. Put simply, retributivism is in the business of punishing the act, not the man. But this is a very narrow conception of retributive justice. [FN73]There seems to be no apparent reason why retributivism would not or could not involve character analysis in desert determinations. [FN74]Objections, like Murphy's, as to how character retributivism *1129must be corrupt in its application, or conceptually overambitious, fail. Moreover, our analysis of desert in the current administration of American justice often examines the wrongdoer's character. [FN75]For example, we do not execute the insane, regardless of their mental state at the time of the murder. [FN76]This cannot be explained by rote recitation of the elements of the crime alone. And interestingly, the newly conceived three-strikes laws appear to take character quite seriously in meting out punishment. [FN77]Arguably, three-strikes laws have a deterrent effect, but equally arguably, a third-time felon would tend to deserve, in the language of character retributivism, more punishment than the first-time felon--not necessarily because the third crime was more egregious than the previous two, but because the wrongdoer has *1130proven himself to be a person without a conscience, without genuine guilt or remorse, in short, a person of bad character. This is likely the intuitive appeal behind the three-strikes laws. Conceptually, there is no problem with examining after-the-fact character in a retributive scheme. Limiting such a consideration would only serve to truncate a fuller, more robust desert analysis. [FN78]

C. Justifying the Death Penalty

Retributive justice, [FN79]more than any other theory of punishment, is central to discussions of the death penalty. Neither of the other two major vying theories, deterrence nor rehabilitation, sufficiently explains why we sometimes put prisoners to death.

Deterrence theory argues--from within a consequentialist framework [FN80]--that since punishment (or, more precisely, the risk of punishment multiplied by its severity) outweighs the potential gains of criminal activity (or the likelihood of gains multiplied by its intensity), would-be criminals are deterred from violating the law. [FN81]The death penalty, ostensibly, is the most effective deterrent available, because "people fear death more than anything else." [FN82]But empirical studies have never been able to establish what deterrent effects, if any, flow from capital sentencing. [FN83]In fact, a recent, well-lauded New York Times *1131study suggests that an inverse relationship may even exist between murder and the death penalty. [FN84]Capital punishment appears to accelerate homicide rates. [FN85]Certainly the great majority, sixty-seven percent, of law- enforcement officials "do not believe capital punishment reduces the homicide rate." [FN86]And, in the sentencing of capital offenders, utilitarian goals often make little difference to the public anyway. Citizens overwhelmingly believe that deterrent effects are really beside the point in the administration of the death penalty. [FN87] *1132The public does not like the idea of executing one person just because it may prevent some other person from committing a wholly unrelated crime in the future.Rehabilitation, the second major theory of punishment, does no better in explaining capital sentencing. Whereas deterrence is grounded in consequentialism, rehabilitative theory is grounded in distributive justice, [FN88]the principle that we should make the "less well off better off." [FN89]Rehabilitation wants to portray criminals as acting not from volition but from a sort of affliction passed to them through their environment. [FN90]Much in the way that medicine seeks to cure a patient of disease, rehabilitation therapies attempt to cure the wrongdoer of his criminality. [FN91]But rehabilitative theory can never justify the death penalty for the simple reason that execution is not a form of therapy and in no case will the criminal be better off for it. For whatever reason and under whatever justification the death penalty operates in America, it is not adequately explained by rehabilitation theory. [FN92] The most important point here is not, as some have argued, that retributive justice is, by a process of elimination, the best theory among three, [FN93]but that it is the primary principle under which the Court and our culture have justified capital punishment. Carol and Jordan Steiker have isolated four doctrines at the heart of the Court's *1133post- Furman jurisprudence. [FN94]The first doctrine, proportionality, is an outgrowth of the Court's "concerns about 'desert' from a retributive perspective." [FN95]The other three doctrines, (1) fairness or equality of application in the administration of the penalty, (2) concern for individualized sentencing, and (3) heightened reliability, are arguably directed at ensuring judicious application of retributive principles. [FN96]Conspicuously absent from this list is a concern for the ends or values of deterrence or rehabilitation. And although the Court now permits the capital-penalty phase to serve nonretributive goals, [FN97]its language "seems to resonate most naturally with the language and rhetoric of retributivism." [FN98]I have chosen retributivism in which to embed my thesis, [FN99]partly because I believe it more accurately captures what we *1134mean when we argue about justice [FN100]and because I believe justice to be law's central theme.

ERRATA

TheDeath Penalty Information Centerreports:

Supreme Court Upholds Death Penalty Despite Lawyer's Conflict

By a 5-4 vote, the U.S. Supreme Court upheld the capital conviction of Walter Mickens, who had been represented by a lawyer who had also represented the victim from Mickens' crime. The majority held that this apparent conflict of interest did not warrant a reversal without a showing of an "adverse effect" on the representation. The dissent remarked: "Mickens had a constitutional right to the services of an attorney devoted solely to his interests." "That right was violated." (New York Times, 3/28/02) See also, Supreme Court.

New on DPIC's Web Site - U.S. Supreme Court: Ring v. Arizona

This new page provides information on the upcoming U.S. Supreme Court case, Ring v. Arizona. The page provides background cases, developments since the Court granted certiorari, and a list of states that may be affected by the Court's decision in Ring. The page also offers links for additional information, including the preliminary briefs in Ring, news articles, and law reviews.

Indiana Bars Execution of Juvenile Offenders

Indiana became the 16th state to forbid the death penalty for those who were under 18 years-of-age at the time of their crime. Gov. Frank O'Bannon signed SB 426 on March 26. The law also requires judges to follow juries' sentencing recommendations. (Associated Press, 3/ 26/02.) Federal death penalty law similarly excludes juvenile offenders. An additional 5 states restrict the death penalty to those who are at least 17 at the time of their crime. See Juveniles.

Philadelphia District Attorney Questioned About Death Penalty Costs

At a Philadelphia City Council budget hearing, councilman Michael Nutter questioned District Attorney Lynne A. Abraham about the costs of the death penalty. Abraham noted that in 2001 there were 309 homicides in Philadelphia, prosecutors filed initial notice that they might pursue the death penalty in 144 cases; they sought the death penalty in 67 cases; and only 2 were sent to death row. Of the remaining cases, 44 people were sentenced to life in prison for first-degree murder, 12 were convicted of 2nd or 3rd-degree murder, and 9 were found not guilty.

"Given what some of these numbers are, is the death sentence being overly applied for?" asked Nutter. "Obviously, there's a significant gap between the start of the process and the end. Is there overcharging going on?" Abraham responded: "We don't overcharge anyone, if we can avoid it . . . . We have the right to seek the death penalty in all appropriate cases, and that's what we do." With respect to the costs, Abraham responded: "We're not interested . . . . We have no intention of pursing that exercise." (Philadelphia Inquirer, 3/15/02) See also, Costs of the Death Penalty.

U.S. Supreme Court to Hear Another Death Penalty Case

The U.S. Supreme Court agreed to hear Sattazahn v. Pennsylvania (No. 01-7574) to decide whether it constitutes double jeopardy to sentence an inmate to death at a retrial after the inmate was originally sentenced to life. In 1981, the Supreme Court ruled that it was unconstitutional to seek the death penalty on retrial when the first jury sentenced the inmate to life. In Sattazahn's case, however, the jury deadlocked on sentencing, and the law required that he be sentenced to life by the trial judge. (Washington Times, 3/19/02) The case will likely be heard in November. On March 25, the Court heard arguments in Bell v. Cone regarding ineffective assistance of counsel in a capital case. See also, Supreme Court.

Poll Finds Support for the Death Penalty Unchanged Since Last Year

Despite the events of September 11, Americans' support for the death penalty is "virtually unchanged" from a year ago, and down considerably from five years ago. In polls conducted by the Pew Research Center, 67% favored the death penalty in March 2002 for those convicted of murder, 66% in March 2001, and 78% in June 1996. A higher percentage did support the death penalty for those convicted of terrorism. (Pew Forum on Religion and Public Life, Press Release, 3/20/02) See also, Public Opinion.