The Supreme Court's decision in Rhines v. Weber leads off this week. The federal district court determined Rhines filed a mixed petition of exhausted and unexhausted claims challenging his conviction and death sentence. Rhines moved for a stay of the federal habeas corpus proceeding so he could return to state court and exhaust his unexhausted claims. By the time of the district court's decision the AEDPA's one-year statute of limitations had already run, however the court granted the stay. The Tenth Circuit held a district court can not hold a federal habeas petition in abeyance for purposes of exhaustion. Reversing, the Supreme Court holds that a district court may, in circumstances like those here, stay federal habeas litigation so that a petitioner can exhausts his remedies.

The other lead off case, Floyd v. State, is fairly straight forward. The prosecution in Floyd failed to turn over evidence someone else committed the crime. The trial court in post-conviction refused to even hold an evidentiary hearing. The Florida Supreme Court remanded. On remand the trial court again decided not to grant relief. The Floyd Court, not bothering to let the trial court have yet another chance to correct itself, grants relief. Specifically, relief was granted as the confidence in the outcome of the trial was sufficiently undermined to warrant relief as the state failed to reveal "that two unidentified men were acting suspiciously at the place and time of the crime [and] that the testimony of the defendants cell mate regarding the defendant's alleged confession was unworthy of reliance."

In other case law developments, the Supreme Court has granted certiorari on California's death penalty scheme in Brown v. Sanders. The Florida Supreme Court in Parker v. State has ordered an evidentiary hearing on counsel's failing to adequately prepare for trial. The Sixth Circuit in Bates v. Bell grants relief on penalty phase closing by the prosecution that was more than a little over the line of what is acceptable argument.

A great new law review article on admissibility of evidence in the penalty phase, "When Trial and Punishment Intersect: New Defects in the Death Penalty,” 26 W. New Eng. L. Rev. 233( 2004), Alexander Bunin, is the Focus section this week. The article examines the interplay of Ring v. Arizona, Crawford v. Washington and Eighth Amendment jurisprudence. The out take below gives a flavor of Bunin's article

Elsewhere, the ScotusBlog has a great look at the oral arguments in Medellin and the recent cert grant in Sanders. In Oklahoma a County District Judge has found Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. In Virginia a two-year study of 11 wrongful conviction cases in Virginia found that mistaken eyewitness identification is the leading reason innocent people have been convicted in the state.

Two new "resources" are also noted, both of which are "blawgs" or law related web logs. The first is the Ninth Circuit Blog where federal defenders cover criminal law developments in, as if the name didn't already give it away, the Ninth Circuit. The other is an interesting experiment with "blogging" by Vernon Evans who was scheduled to be executed the week of April 18; at the site Evans answers questions posed to him by the public but does not appear (at least at the moment) to be used to generate help with gaining clemency.

Finally, if you can't shill for your good friends who can you shill for? Bill Pelke's book, Journey of Hope, details the birth of the Journey of Hope.... From Violence to Healing after the murder of his grandmother. The book is featured by the Death Penalty Information Center (see below) this week as a new resource. Bill is currently the chairman of the board of the National Coalition to Abolish the Death Penalty.

As always, thanks for reading. - k

Serious Execution Dates

April

5 Glen Ocha Florida----vol

15 Richard Longworth South Carolina

18-22 Vernon Evans Jr. Maryland (unconfirmed reports of a stay)

20 Douglas Roberts Texas

21 Bill Benefiel Indiana

27 Donald Jones Missouri

Leading Cases

Rhines v. Weber, 2005 WL 711587 (3/30/2005) District court may stay a case to allow exhaustion of state remedies. If the district does not stay a petitioner must be given the opportunity to drop unexhausted claims.

Floyd v. State, 2005 WL 673689 (Fl. 3/24/2005) State failed to disclose evidence including evidence of actual innocence.

Brown v. Sanders, Questions granted review:

"Is the California death penalty statute a 'weighing statute' for which the state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury's determination of penalty?"

"If an affirmative answer to the first question was dictated by precedent, was it necessary for the state supreme court to specifically use the phrases 'harmless error' or 'reasonable doubt' in determining that there was no 'reasonable possibility' that the invalid special circumstance affected the jury's sentence selection?"

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Parker v. State, 2005 WL 673686 (Fl., 3/24/2005) Evidentiary hearing ordered on counsel's failing to present expert testimony on photography and tool making as to autopsy photographs and failing to investigate and present mitigation evidence.

Bates v. Bell, 2005 WL 659069 (6th Cir 3/23/2005) Relief granted in the penalty phase on a highly inflammatory penalty phase closing by the state.

The state prosecutors engaged in prejudicial misconduct in violation of the Due Process Clause. In closing argument at the sentencing phase of the trial, the state prosecutors repeatedly told the jury that by “permitting” Bates to live they would “become an accomplice” to the murder and an accomplice to future crimes, because Bates is a “rabid dog” to whom they will be issuing a “warrant of execution for someone else.” Suggesting that a vote for a life sentence for Bates was a vote for a death sentence for others was a continuing refrain throughout the final argument. The prosecutors frequently followed these expressions with their negative personal opinions about Bates’s expert witness and with personal attacks against Bates’s lawyers. On appeal, the Tennessee Supreme Court criticized the prosecutors for not following “disciplinary rules.” It referred to their conduct as “clearly improper,” “inappropriate,” and “certainly uncalled for.” The misconduct poisoned the atmosphere of the sentencing hearing and amounted to a denial of Bate’s rights to due process of law.

Decisions Favoring Death

Miller v. Dretke, 2005 WL 675327 (5th Cir. 3/24/2005) COA denied. District court granted relief on penalty phase issue based on Brady which the court states it will address in a subsequent opinion. COA denied on Brady-claim as applied to guilt/innocence. COA also denied on IAC claims "based on trial counsel's failing to object: (1) to introduction of a non-testifying co-conspirator’s extra-judicial confession admitted through testimony of another; and (2) to the State’s closing argument.

Howard v. Dretke, 2005 WL 643253 (5th Cir. 3/21/2005) (unpublished) COA denied on claim "that his trial attorney provided ineffective assistance of counsel at the second punishment phase by not objecting when the prosecution repeatedly informed potential jurors that Howard had been sentenced to death at the original punishment phase of his trial."

White v. Dretke, 2005 WL 678209 (5th Cir. 3/24/2005) (unpublished) COA denied on: (1) whether the evidence admitted at trial and during the punishment phase was sufficient to support the jury's affirmative answer to the future dangerousness special issue; and (2) whether he can show cause to excuse the procedural default of his challenge to the "good-time" jury instruction given at punishment.

Martinez v. Dretke, 2005 WL 668802 (5th Cir. 3/23/2005) COA denied on failure to investigate. COA granted and relief denied on failure to present an insanity defense and evidence of neurological impairment during the guilt/innocence and punishment phases of Martinez's trial

Staley v. Dretke, 2005 WL 673503 (5th Cir. 5/23/2005) (unpublished) Stay vacated on competency to be executed - McFarland stay denied.

Walker v. True, 2005 WL 678737 (4th Cir. 3/25/2005) Relief denied on claims "that his Sixth Amendment right to counsel was violated at the guilt phase of his trial when his counsel failed to challenge his single trial for two murders, that his due process rights were violated when the Commonwealth failed to timely disclose Brady materials, and that his Sixth Amendment rights were violated at the sentencing phase of his trial when his counsel failed to investigate and present compelling mitigating evidence. Because reasonable jurists could debate the district court's assessment of the first two of these claims (the right to counsel at the guilt phase of trial claim and the Brady claim) we grant a COA as to these claims; however, upon review of their merits, we affirm the district court's dismissal. Because reasonable jurists could not debate the district court's assessment of the right to counsel at the sentencing phase of his trial claim, we deny a COA as to this claim and dismiss."

People v. Stitely, 2005 WL 638052 (Cal. 3/21/2005) Even though rape offense and sodomy-murder offense shared similar traits, and were not cross-admissible, the rape was not more inflammatory than the murder, and the circumstantial evidence of the murder was "pretty strong," so no prejudice shown from joinder. (From the Electric Lawyer Blawg)

Knox v. State, 2005 WL 674830 (Miss. 3/24/2005) Post-conviction relief denied on claims relating to: (1) bad instruction on the HAC aggravator; (2) ineffective assistance of counsel; (3) failure to included aggravators in indictment; (4) sufficiency of robbery aggravator; and (5) trial court's failure to instruct jury during sentencing phase that jury was required to find a mitigating circumstance if it was proven by a preponderance of the evidence was not error.

State v. Franklin, 2005 WL 678925 (Ohio App. 2 Dist. 3/25/2005) Relief denied. "The Defendant's petition for post-conviction relief challenges the constitutionality of R.C. 2953.23(A)(2) and argues that he was suffering from schizophrenia, which prevented him from disclosing facts to his counsel during his trial and the sentencing phase. The Petitioner then sets forth sixteen claims for relief, all of which relate either to claims of ineffective assistance of counsel, or that the Petitioner was improperly adjudged competent to stand trial. The Petitioner essentially argues that he was mentally infirm and unable to disclose information to his counsel and as a result, his counsel rendered ineffective assistance."

United States v. Williams, 2005 WL 664791 (S.D.N.Y. 3/22/2005) (order) Application in the trial court for disclosure of home addresses of jurors and witnesses denied.

Excerpts from Leading Cases

Rhines v. Weber, 2005 WL 711587 (3/30/2005) District court may stay a case to allow exhaustion of state remedy. If the district does not stay a petitioner must be given the opportunity to drop unexhausted claims.

*3 [1][2] Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. We reasoned that the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims. Id., at 518-519, 102 S.Ct. 1198. We noted that "[b]ecause 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' federal courts apply the doctrine of comity." Id., at 518, 102 S.Ct. 1198 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)). That doctrine " 'teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' " 455 U.S., at 518, 102 S.Ct. 1198.

Accordingly, we imposed a requirement of "total exhaustion" and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance. Id., at 522, 102 S.Ct. 1198. When we decided Lundy, there was no statute of limitations on the filing of federal habeas corpus petitions. As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease. See Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (dismissal without prejudice under Lundy "contemplated that the prisoner could return to federal court after the requisite exhaustion").

[3] The enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions. AEDPA preserved Lundy's total exhaustion requirement, see 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State"), but it also imposed a 1-year statute of limitations on the filing of federal petitions, § 2244(d). Although the limitations period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review," § 2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations, Duncan, supra, at 181-182, 121 S.Ct. 2120.

*4 As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court. Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim. The problem is not limited to petitioners who file close to the AEDPA deadline. Even a petitioner who files early will have no way of controlling when the district court will resolve the question of exhaustion. Thus, whether a petitioner ever receives federal review of his claims may turn on which district court happens to hear his case.

We recognize the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike. In an attempt to solve the problem, some district courts have adopted a version of the "stay-and-abeyance" procedure employed by the District Court below. Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.

[4][5] District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936), where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). AEDPA does not deprive district courts of that authority, cf. 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State" (emphasis added)), but it does circumscribe their discretion. Any solution to this problem must therefore be compatible with AEDPA's purposes.

[6] One of the statute's purposes is to "reduce delays in the execution of state and federal criminal sentences, particularly in capital cases." Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). See also Duncan, 533 U.S., at 179, 121 S.Ct. 2120. AEDPA's 1-year limitations period "quite plainly serves the well-recognized interest in the finality of state court judgments." Ibid. It "reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Ibid.

*5 Moreover, Congress enacted AEDPA against the backdrop of Lundy's total exhaustion requirement. The tolling provision in § 2244(d)(2) "balances the interests served by the exhaustion requirement and the limitation period," "by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued." Duncan, supra, at AEDPA thus encourages petitioners to seek relief from state courts in the first instance by tolling the 1-year limitations period while a "properly filed application for State post-conviction or other collateral review" is pending. 179, 121 S.Ct. 2120.28 U.S.C. § 2244(d)(2). This scheme reinforces the importance of Lundy's "simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." 455 U.S., at 520, 102 S.Ct. 1198.

[7] Stay and abeyance, if employed too frequently, has the potential to undermine these twin purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180, 121 S.Ct. 2120 ("[D]iminution of statutory incentives to proceed first in state court would ... increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce").

[8] For these reasons, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a when his unexhausted claims are plainly meritless. Cf. stay28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

[9][10] Even where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA. A mixed petition should not be stayed indefinitely. Though, generally, a prisoner's "principal interest ... is in obtaining speedy federal relief on his claims," Lundy, supra, at 520, 102 S.Ct. 1198 (plurality opinion), not all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits, petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal habeas review. Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back. See, e.g., Zarvela, 254 F.3d, at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed"). And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. See id., at 380-381.

*6 [11][12] On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. See Lundy, 455 U.S., at 522, 102 S.Ct. 1198 (the total exhaustion requirement was not intended to "unreasonably impair the prisoner's right to relief"). In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief. See id., at 520, 102 S.Ct. 1198 (plurality opinion) ("[A petitioner] can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims").

The Court of Appeals erred to the extent it concluded that stay and abeyance is always impermissible. We therefore vacate the judgment of the Court of Appeals and remand the case for that court to determine, consistent with this opinion, whether the District Court's grant of a stay in this case constituted an abuse of discretion.

Floyd v. State, 2005 WL 673689 (Fl. 3/24/2005) State failed to disclose evidence including evidence of actual innocence.

In the case at bar, Floyd maintained his innocence of the murder throughout the trial in his defense. There was no direct evidence of Floyd's guilt, such as eyewitness testimony or DNA blood evidence or fingerprint evidence at the victim's home. Rather, this was a circumstantial case in which the most damaging evidence was arguably Floyd's confession through a jailhouse informant. It is apparent that the Tina Glenn information would be of great importance to the defense because it identified other suspects and would have been consistent with Floyd's innocence defense.

Although we upheld the defendant's conviction on appeal, Floyd v. State, 497 So.2d 1211, 1212 (Fla.1986), it is clear that the case against the defendant was not among the strongest we have encountered. The only physical evidence specifically linking the defendant to the crime was the victim's checkbook, which the defendant used to forge checks on the afternoon of the murder and again two days later. The remainder of the physical evidence only linked the defendant to the crime at a high level of generality. For example, the sock found in the defendant's jacket was stained with type O blood, which was the victim's blood type but is also the blood type of roughly 45 percent of the American population. [FN7] Similarly, the hair fragments found in the victim's bedroom were identified only as "Negroid," which applies to a large percentage of the population. And the tire tracks on the victim's driveway were identified only as being similar to the treads of Japanese motorcycles, which were so popular in the mid-1980s that they became the target of a federal antitrust investigation. [FN8]

The jury may have been justified in finding the defendant guilty of first-degree murder because all of this circumstantial evidence, together with the defendant's alleged confession and his false alibi, pointed uniformly in the direction of guilt, whereas very little (if any) evidence pointed in the direction of innocence. But that is no longer the case. The defendant has now identified important information that was withheld from him by the State and that would have been favorable to his defense.

The most important evidence that the State withheld from the defendant is the eyewitness account of Tina Glenn, a neighbor of the victim who was interviewed twice only days after the murder. According to the report from the first interview, Glenn told a detective that she last saw the victim standing outside of her home at 11 a.m. on the day of the murder. Then, while watching the show "All My Children" between 1:30 and 2 p.m., Glenn heard a car pull up to the victim's house. Two white males emerged from the car and with a "fast stride" approached the house. They knocked on the door, and "although [Glenn] did not see the victim they were led into the house." About thirty to forty-five minutes later, Glenn heard a door slam at the victim's house. She watched as the two males returned to their car and, after "looking around suspiciously," sped off.

*7 The second interview, which was conducted at the police station, revealed slightly different information. According to the report, Glenn claimed that she heard a car pull up to the victim's house between 1 and 1:30 p.m. on the day of the murder. Two white males stepped out of the car, walked "fairly fast" to the front door of the house, and knocked. They then "walked into the residence," although Glenn "did not see the victim actually answer the door." Glenn then went outside to walk her dog, at which time she observed one of the men on the victim's back porch. She also heard what she called "scrambling noises" inside the victim's house, which sounded "like people were going through drawers and other things in the house." About an hour after the two men arrived, Glenn heard the sound of the front door slamming (which she distinguished from the sound of the back door) and watched as the men went back to their car "almost running and looking around very suspicious." One said to the other, "Come on. Let's go." Glenn recalled that the vehicle sped off with its tires squealing, possibly running a nearby stop sign. [FN9]

Glenn's eyewitness account is unsettling, given the circumstantial nature of this case. She places two white men in a car--as contrasted with the defendant, a black man who was allegedly driving his motorcycle--at the victim's house within the estimated time frame of the murder. She also identifies "very suspicious" behavior that would be consistent with the crime.

In fact, all of the Brady evidence elicited below, including impeachment evidence of the jailhouse informant, could have been persuasive for the defense when weighed against the State's case, especially when considered in the light of the heavy burden upon the State to prove guilt in a criminal case beyond any reasonable doubt and the legal requirement that the jury's verdict be unanimous. In effect, this means that only one juror finding reasonable doubt would change the outcome. Glenn's evidence not only identified other suspects, but it also failed to include the defendant or anyone meeting his description as being present at the victim's residence at the time of the crime.

The rest of the suppressed evidence is not as powerful, but does raise further doubts about the reliability of a crucial piece of evidence: the defendant's alleged confession. The only witness to that confession was the defendant's cellmate, Gregory Anderson. As the circuit court noted in its order denying relief, Anderson's credibility was undermined by defense counsel at trial:

During a lengthy cross-examination, [defense counsel] aptly demonstrated to the jury that Anderson had lied to law enforcement by using different aliases in the past. [Counsel] also elicited testimony from Anderson indicating he lied about his origin/whereabouts to law enforcement on a previous occasion. Additionally, [counsel] brought out on cross-examination that Anderson harbored a certain animus toward black people. [Counsel] then impeached Anderson with prior inconsistent statements. Subsequently, [counsel] proceeded to quite effectively discredit Anderson by questioning him concerning his letter writing to Judge Walker [which contained statements that Anderson would "do anything to get out of jail"], his prior involvement as a "snitch" in other cases, and his apparent favorable treatment in prior cases.

*8 (Emphasis added.) The evidence suppressed by the State would have increased Anderson's credibility problem. Undisclosed letters that Anderson wrote to the prosecutor and to a detective reveal that he sought a reduction of his robbery charge in exchange for his testimony against the defendant, and that he claimed he "would rather die [than] go to prison."

Further, one reason that the defendant's confession carried some weight at trial, despite Anderson's lack of credibility, was the apparent discovery of corroborating evidence at the scene of the crime. The defendant allegedly confessed that he murdered the victim after she surprised him during the course of a burglary. Witnesses for the State testified that "what appeared to be fresh pry marks" were found on two window frames inside the defendant's bedroom, which seemed consistent with the "surprise" element of the defendant's confession. Witnesses also testified to the discovery of "Negroid" hair fragments in the victim's bedroom. These discoveries may have convinced the jurors that the defendant did, in fact, confess to the crime as Anderson claimed.

However, suppressed police reports cast doubt on both of these corroborating discoveries. The police reports are entirely inconsistent as to whether fresh pry marks were found on either of the two window frames in the victim's bedroom. One report states that "there are fresh pry marks on the [west] window" but that pry marks on the north window "did not appear to be as fresh."

Strangely, the exact opposite conclusion appears in a report by the detective who testified to the fresh pry marks at trial. According to that report, the north window had fresh pry marks but the west window did not. This inconsistency has not been explained. The police reports also leave ambiguity as to whether the hair fragments in the defendant's bedroom could plausibly have come from the murderer. One report states that the FDLE lab located "some negro body hair fragments" on "the sheet and the white bedspread in the victim's bedroom." But another report states that the victim's bed "was fully made" when her body was found lying on it. The defendant argues that the hair fragments on the sheet and bedspread must have come from someone other than the murderer, because the murder occurred while the bed was fully made.

Although these suppressed police reports would not have refuted the evidence corroborating the defendant's confession, they at least would have given the defendant an avenue through which to challenge that evidence as being mixed or unreliable. With the corroborating evidence in question, it would have been even more difficult for the jurors to rely on the testimony of the jail cellmate, whose suppressed letters reveal that he may have been even less credible than the jury realized.

After collectively examining the evidence suppressed by the State, it is apparent that it could have provided a basis for reasonable doubt in the minds of some jurors. The case against the defendant was, from the beginning, a circumstantial one. While at the time of trial, those circumstances may have seemed to point in the direction of guilt, the circumstances have been changed considerably by the suppressed evidence, which "put[s] the whole case in ... a different light." Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435). The suppressed evidence not only identifies two other men acting "very suspiciously" at the location of the murder within the time frame of the murder, but also raises additional concerns about whether the defendant truly confessed to the crime. It therefore undermines our confidence in the defendant's conviction. [FN10]

*9 The State claims that this case is similar to Carroll v. State, 815 So.2d 601 (Fla.2002), in which we held that the defendant was not prejudiced by evidence that another person might have committed the crime. We disagree. In Carroll, the physical evidence against the defendant was much stronger than here. "[B]lood was found on [the defendant's] sweatshirt and genitalia, and semen, saliva, and pubic hair recovered from the victim were consistent with that of [the defendant]." Id. at 620. Moreover, hair and blood samples taken from the other suspect "ruled out his involvement." Id. In this case, the physical evidence against the defendant is not as strong. Moreover, there is no evidence that rules out the involvement of the two white men whom an eyewitness saw at the victim's house around the time of the murder.

This case is more closely analogous to Rogers v. State, 782 So.2d 373 (Fla.2001), in which we concluded that a defendant was prejudiced by the suppression of favorable evidence because that "evidence could have been used to show that another person" committed the crime, and also "could have been used to directly impeach [the] testimony" of a witness upon whom "the States case for conviction was substantially predicated." Id. at 383. The suppressed evidence in this case could have been used to make essentially the same two points to the jury: first, that two unidentified men were acting suspiciously at the place and time of the crime, and second, that the testimony of the defendants cellmate regarding the defendants alleged confession was unworthy of reliance. [FN11]

[5] We conclude that our confidence in the defendant's murder conviction has clearly been shaken by the evidence that the State suppressed in this case. While there is not a "smoking gun" in the suppressed evidence that would completely exonerate the defendant, there was also not a "smoking gun" in the State's case against him. Just as irrefutable evidence of guilt is not required for a conviction, irrefutable evidence of innocence is not required for a conviction to be set aside under Brady. The United States Supreme Court has explained that suppressed evidence must be examined "collectively, not item by item," to determine whether it prejudiced the defendant. Kyles v. Whitley, 514 U.S. at 436.

Based on the above analysis, we conclude that the defendant's trial did not result in a verdict worthy of confidence.

Focus

Focus this week looks at the intersection Ring, Crawford, and admissibility of evidence in the penalty phase, "When Trial and Punishment Intersect: New Defects in the Death Penalty,” 26 W. New Eng. L. Rev. 233( 2004), Alexander Bunin. Here is a tease:

A sentencing hearing is fundamentally different from a trial. It permits evidence that is not admissible to prove guilt. [FN1] There is no presumption of innocence. [FN2] It may be decided by a preponderance of the evidence. [FN3] A judge may select the sentence. [FN4]

A trial is restricted by formal rules of evidence and procedure. [FN5] *234 A defendant is presumed innocent. [FN6] The prosecution must prove all elements of the offense beyond a reasonable doubt. [FN7] A jury is required. [FN8]

Elements of a criminal offense are any facts the prosecution must prove to make a defendant eligible for the highest punishment set by the legislature. [FN9] It does not matter how the legislature chooses to characterize those facts. [FN10] If a fact increases the maximum punishment for a crime, it is an element of that crime. [FN11] Each element must then be proven to a jury beyond a reasonable doubt before a defendant is guilty of the crime. [FN12]

It is only the conviction of a crime, which fixes the sentencing range required by statute. [FN13] The statutory range is located between the minimum and maximum sentences for the crime of conviction. [FN14] Once those parameters are set by the finding of guilt, the selection of punishment is a choice of sentences within that range. [FN15] The determination of a sentence within the appropriate range can then be made, without jury participation, and by a mere preponderance of evidence. [FN16]

For example, Title 18 of the United States Code contains most of the criminal offenses enacted by the Congress. Each statute is defined by certain facts. These facts are elements of a crime that must be proven to a jury beyond a reasonable doubt before a defendant may be found guilty. If Congress adds a new fact that increases the maximum punishment, then Congress has created a new, greater crime. That additional fact must be proven to a jury beyond a reasonable doubt in order for a defendant to be guilty of the greater offense.

*235 B. Capital Cases

In a capital case, facts that make a defendant eligible for the death penalty are elements of the crime. [FN17] These capital elements are called 'statutory aggravating circumstances.' [FN18] Absent a finding of at least one statutory aggravating circumstance by a jury, beyond a reasonable doubt, the crime of capital murder is not proven and the death penalty may not be considered. [FN19]

In most death penalty cases, the existence of statutory aggravating circumstances is not decided during the guilt phase of trial, but rather during the sentencing hearing. [FN20] A capital jury receives proof of the elements and information for selecting punishment, together at a unitary proceeding. [FN21] Therefore, in most death penalty jurisdictions, a capital defendant is prosecuted for some elements of capital murder without the trial protections available even to a person charged with a simple misdemeanor.

This manner of bifurcating a capital trial was implemented by legislatures to answer Eighth Amendment concerns about restricting the class of persons eligible for the death penalty, and assuring that those persons could present mitigating evidence. [FN22] These laws *236 were designed before recent Supreme Court cases applying the definition of offense elements to mandatory sentencing factors. [FN23]

The issue is not whether bifurcation of a capital trial and the sentencing hearing is proper. It is. The question is at what point must the trial end and the sentencing hearing begin? The answer is that the selection of punishment may be decided once the elements of the crime have been proven. Yet in most capital cases, the sentencing hearing begins before all the elements of capital murder are decided.

In jurisdictions where statutory aggravating circumstances are not decided until the sentencing hearing, the following anomaly occurs. At the guilt phase, a jury may only convict a defendant of a crime that is less than capital murder. [FN24] After conviction of this lesser crime, the jury then enters a sentencing phase. [FN25] Only then are the capital elements decided. [FN26]

The sentencing hearing is not subject to the rules of evidence [FN27] or the presumption of innocence. [FN28] The jury receives the evidence of guilt along with other information supporting a death sentence. [FN29] This other information usually includes the effect on the victim's family and community, [FN30] predictions of the defendant's future dangerousness, [FN31] the defendant's prior uncharged conduct, [FN32] examples of the defendant's bad character, [FN33] and hearsay, [FN34] none of which is generally admissible at the guilt phase of the trial. [FN35]

*237 The jury then deliberates upon two very different issues, whether the defendant is guilty of capital murder and whether a death sentence is appropriate. [FN36] Although eligibility for the death penalty must be decided beyond a reasonable doubt, the selection of punishment may be decided by a preponderance of evidence. [FN37] Selection may be determined by a judge. [FN38]

By deciding the capital elements at the sentencing hearing, the defendant does not receive protections provided during the proof of guilt for any other crime. [FN39] To the extent that capital elements are proved, it is a sentencing hearing in name only. Calling it a sentencing hearing does not resolve the discord caused by deciding the capital elements without traditional trial protections. Three related areas of law have converged to cause this conflict: the right to a jury in criminal trials, traditional sentencing law, and modern capital sentencing law. Although these areas overlap, their development has generally received separate treatment.

Around the Web

DPIC notes:

Virginia Study Says Mistaken Eyewitness Indentification Is Major Factor In Wrongful Convictions

A two-year study of 11 wrongful conviction cases in Virginia found that mistaken eyewitness identification is the major reason innocent people have been convicted in the state. The report's recommendations note that Virginia could dramatically reduce the number of wrongful convictions through a series of reforms, such as changing a variety of police procedures, relaxing the state's 21-day rule to allow evidence of innocence to be considered beyond this time restriction, ensuring that prosecutors provide defense attorneys with evidence favorable to defendants, and improving the quality of legal help given to poor people in Virginia. The state currently pays court-appointed lawyers the lowest fees in the nation. Researchers conducting the study closely examined the cases of 11 wrongly convicted persons in Virginia who had spent a total of 118 years in prison for crimes they did not commit. Nine of the 11 cases involved mistaken identity by victims or other eyewitnesses, especially when the eyewitness was of one race and the alleged perpetrator or another. The review was spearheaded by the Innocence Commission for Virginia, a collaborative effort of The Mid-Atlantic Innocence Project, the Administration of Justice Program at George Mason University, and The Constitution Project. (Richmond Times-Dispatch, March 30, 2005) See Innocence. Read the study: A Vision for Justice.

NEW RESOURCE: Book Details Pelke's Journey To Death Penalty Opponent

Bill Pelke tells of the life-altering transformation that occurred after his 78-year-old grandmother was murdered by four teen-aged girls in his book, Journey of Hope...From Violence to Healing. Though at first he supported the death penalty for 15-year-old Paula Cooper, one of the young girls who had murdered his grandmother in her home for $10 and an old car, he later opposed her execution and successfully fought to have Cooper's death sentence overturned. The book follows his personal journey over many years and features a forward by Sister Helen Prejean. (Xlibris Corporation, September 2003). See Victims, Juvenile Death Penalty, and Books.

POSSIBLE INNOCENCE: Florida Supreme Court Vacates 1985 Capital Conviction

The Florida Supreme Court has vacated James Floyd's 1985 conviction and death sentence, ruling that critical evidence was withheld by the prosecution and that the evidence might have been enough to change the verdict at trial. In its 4-2 decision, the Court ruled that the prosecutor's failure to inform Floyd's defense counsel that an eyewitness had seen two white men entering the victim's home on the day of the murder and saw them leave in a suspicious manner approximately one hour later "severely compromised Floyds' constitutional right to a fair trial." The ruling noted that the state's case against Floyd, who is black, was based mainly on circumstantial evidence, and included no eyewitness, fingerprint or DNA evidence linking him to the murder. "We conclude that our confidence in the defendant's murder conviction has clearly been shaken by the evidence that the State suppressed in this case. While there is not a 'smoking gun' in the suppressed evidence that would completely exonerate the defendant, there was also not a 'smoking gun' in the State's case against him," the court wrote. Bernie McCabe, the state attorney in Pinellas County, said he didn't know if the state would attempt to bring Floyd to trial again. (Associated Press, March 24, 2005). See Innocence.

Upcoming Supreme Court Arguments and Recent Decisions in Capital Cases

The Death Penalty Information Center Web site contains summaries of the issues in upcoming Supreme Court arguments related to the death penalty, as well as summaries of recent Supreme Court decisions.

Upcoming Arguments

* March 28, 2005: Medellin v. Dretke - See DPIC's Summary

* April 19, 2005: Bradshaw v. Stumpf - See DPIC's Summary

* April 26, 2005: Bell v. Thompson - See DPIC's Summary

Recent Decisions

* Brown v. Payton - See DPIC's Summary

* Roper v. Simmons - See DPIC's Summary

See also, Supreme Court.

NEW RESOURCE: The Lack of Constitutional Protections in Capital Sentencing Proceedings

A recent article in the Western New England Law Review examines ways in which the rules of evidence and procedures at capital sentencing trials are less rigorous than those applied at the guilt-phase of the trial. In capital sentencing hearings, evidence is permitted that would not be admissible to prove guilt. The defendant does not receive traditional trial protections at the sentencing trial. For example, hearsay may be received by the jury during sentencing, but is generally inadmissible at the guilt phase of the trial because it is considered unreliable. In his article, “When Trial and Punishment Intersect: New Defects in the Death Penalty,” Alexander Bunin, the Federal Public Defender of the Districts of Northern New York & Vermont and Adjunct Professor at Albany Law School, concludes that recent Supreme Court decisions, such as Ring v. Arizona, which identifies part of the capital sentencing process as properly belonging to the guilt-or-innocence process, cast doubt upon the reliability and constitutionality of current capital sentencing procedures. (26 Western New England Law Review 2 (2004)). See Supreme Court and Resources.

Oklahoma Judge Finds Foreign National Was Denied Right to Contact Consulate

An Oklahoma County District Judge has determined that Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. Judge Twyla Mason Gray also found that Torres had ineffective counsel at his trial. Her findings stem from a December hearing held at the request of the State Court of Criminal Appeals. The appeals court wanted Judge Gray to hear evidence about Torres' representation and to determine if American officials had violated protections guaranteed by the Vienna Convention on Consular Relations. The findings have been sent to a higher appeals court for review. Though it is uncertain when they will rule in the case, those judges could decide to order a new trial for Torres or affirm his conviction. After Torres had spent more than a decade on death row, Oklahoma Governor Brad Henry commuted Torres' death sentence to life in prison without parole in May 2004. (The Oklahoman, March 22, 2005). See Foreign Nationals. See also, DPIC's Web page on Medellin v. Dretke.

In the case involving Jose Medellin and other Mexican nationals on death row in the U.S., the Supreme Court will consider the implications of a recent World Court ruling that ordered a U.S. review of the Mexicans' convictions and death sentences because the defendants had not been given their rights under the Vienna Convention on Consular Relations to seek help from their consulate.

SCOTUSBlog notes:

Medellin case: the Court hesitates

Posted by Lyle Denniston at 12:55 PM

The Supreme Court spent a fascinating hour Monday canvassing a whole host of difficult constitutional and international law questions in a Texas death penalty case, but also spent a good deal of that time talking about ways to avoid answering those questions. Among the ways they discussed: simply dismissing the case without a ruling.

Meanwhile, the procedural status of the case grew newly complicated over the weekend, as attorneys for the death row inmate in the case -- a Mexican national named Jose Ernesto Medellin -- filed a new habeas challenge in the Texas Court of Criminal Appeals, then asked it to hold off while the Supreme Court ponders what to do. (UPDATE: In a letter to the Court, Medellin's counsel, Donald F. Donovan, said that the new state petition had been filed on March 24 to avoid any argument that it was filed too late after the World Court ruling that is a key to the petition.)

Medellin's attorneys already had asked the Supreme Court to put the case pending there on hold, until after they could pursue a possible remedy in state court. That idea, to which the Court had not previously reacted, got a chilly reception from the Justices this morning -- with the exception of Justice Stephen G. Breyer, who speculated that it might be the best tack to take.

Justice Sandra Day O'Connor called the idea of delaying Supreme Court action "very unusual; usually, a state court holds off until this Court acts...Why not go ahead and decide this case?"

But, as the Court moved on to explore how to decide Medellin v. Dretke (04-5928), a number of the Justices grew openly hesitant about doing so. Deciding the case, several of them suggested, could require the Court to address a whole host of fundamental questions. Among such questions the Court explored this morning were these:

Is the Supreme Court the sole organ to decide what a treaty means as it applies to a case in American courts? Must the Court accept an interpretation of a treaty that the President has spelled out? Can an international court (here, the World Court at The Hague) confer on individuals private rights that are enforceable in U.S. courts? Must the Supreme Court act to carry out a decision of the World Court? What constitutional principle would support the President's view that an international treaty imposes binding obligations on the Supreme Court? Can the President dictate to state courts that they must follow a decision of the World Court in their own state criminal proceedings?

proceeding were allowed to go forward. The outcome, Stevens said, might make moot the pending case before the Justices. Texas' solicitor general, R. Ted Cruz agreed.Justice John Paul Stevens suggested that the Court might not have to decide any of those issues, if the new Texas habeas

But Cruz and Deputy U.S. Solicitor General Michael R. Dreeben urged the Court to go ahead and decide the Medellin case, but on very narrow grounds: that is, that Medellin had no right to try to take advantage of the World Court ruling in his favor by filing a federalhabeas case, because there were jurisdictional obstacles under U.S. law to that proceeding, as the Fifth Circuit had decided.

Dreeben said the federal government did not believe the Court should now stay the pending case. The new Texas case, he said, can explore whether Medellin and other Mexican nationals can use the World Court ruling to their advantage. After that is decided, Drreben said, "this Court will have the option of granting cert to review whatever the Texas courts decide." If the Justices were to proceed to decide anything other than the jurisdictional question in the pending case, "that would be close to issuing an advisory opinion."

Justice Antonin Scalia commented that state courts in Texas, or in other states with Mexican nationals on death row who were involved in the World Court case, might decide that President Bush lacked the constitutional authority to require state courts to reopen closed criminal cases. (Bush has directed states holding the 51 Mexican nationals to "give effect" to the World Court's decision in their favor.)

Texas' attorney general's office has already advised the Court that it doubts that the President had that authority.

Medellin's lawyer, Donald Donovan, told the Court that his client was prepared to go forward with the new habeas case in Texas. That petition, he says, seeks to rely, first, upon the World Court ruling, and, second, on the President's order that state courts should "give effect" to the World Court decision.

That new proceeding, Donovan argued, "should not be compromised by any decision of this Court" in the meantime. "The best thing to do is to issue a stay, and not deal with any of the questions raised." But, he added, if the Court does not stay the case, then it should issue a ruling that "will give effect to the United States' promises" (through the President) to carry out the World Court order for the 51 Mexican nationals' benefit.

The Court is expected to decide the case later this spring.

Around the Blogs

Talk Left writes:

A bill that would have replaced Connecticut's death penalty with life imprisonment was defeated in the state's House of Representatives yesterday by a vote of 89-60. The bill would have spared serial killer Michael Ross (TalkLeft background here, here, and here) from execution. One of the persons speaking in favor of the bill was a woman Ross raped in 1983.

"I'm not a killer. I couldn't do it," Vivian Dobson said through tears. "I'm so sorry to the parents [of the murder victims] because I lived and their babies died. And I can't change that. But I don't want to be a part of killing somebody else."

"For 18 years, I've been hiding my feelings and holding in my feelings to help those poor girls that he took away from everybody. And I can't. I can't. I can't do it," said Dobson, who escaped after pulling a knife on him. "I've been carrying guilt because now his blood's going to be on my hands, too. And I can't do it. That's not me."

The execution is scheduled for May 11.

Death Sentence Reversed for Bible Reading Jurors

The Colorado Supreme Court issued two correct rulings today, one in the Lisl Auman case as we reported here, and another one in a locally high profile rape-murder case, in which the defendant, Robert Harlan had been sentenced to death. The Court vacated the death sentence because jurors consulted the bible during deliberations .

Ruling that juries cannot turn to the Bible for advice during deliberations, the Colorado Supreme Court on Monday refused to reinstate the death penalty in a brutal rape and murder because jurors had studied such verses as "eye for eye, tooth for tooth."

On a 3-2 vote, justices ordered Robert Harlan to serve life in prison without parole for kidnapping 25-year-old cocktail waitress Rhonda Maloney in 1994 and raping her at gunpoint for two hours.

MORE...

CrimProf Blog writes:

Colorado Death Penalty Decisions

The Colorado Supreme Court vacated two death sentences this week. In one case, deliberating jurors consulted the Bible, reading the passage prescribing an eye for an eye as punishment. (Opinion here). In the other case, a jury was mis-instructed on a capital sentence based on felony murder. The defendant was arrested and in handcuffs when a confereate killed a police officer; the jury was not correctly instructed on the underlying crime of burglary, so that the defenant could have been convicted of felony murder without being guilty of burglary. (Opinion here) [Jack Chin]

Texas Court of Criminal Appeals Blocks an Execution on Grounds of Unclear Jury Instructions

The Texas Court of Criminal Appeals stopped the execution of Steven K. Staley, 42, which was scheduled for March 23. He was granted reprieve five hours before he would have been executed, on the grounds that the jurors in his 1991 trial were given unclear instructions regarding whether they had to recommend Staley for the death penalty. Staley was convicted for the 1989 killing of a restaurant manager in Forth Worth, TX; the killing was part of a robbery gone wrong. Staley committed the crimes while on the lam from a Denver halfway house. In other attempts to stop the execution, Staley's defense team argued to the 5th Circuit Court of Appeals in New Orleans that Staley shouldn't be executed until his mental competency was fully reviewed in court. According to the defense's expert, even Staley may have met the Supreme Court's standards that 1) he was aware that he was going to be put to death and 2) why he was going to be put to death, he is still psychotic--Staley claims that he invented the 1969 Chevrolet Impala and that he works part-time as a secret agent. The TX Court of Criminal Appeals sent Staley's case back to the trial court. More... [Mark Godsey]

Capital Cases Pending in the Supreme Court

The DPIC has summaries of the 3 capital cases currently awaiting oral argument or decision in the Supreme Court here. [Mark Godsey]

Supreme Court Hears Capital Case Today

The Supreme Court will hear oral arguments today in Medellin v. Dretke, No. 04-5928, on appeal from the 5th Circuit. Questions presented: (1) In a case brought by a Mexican national whose rights were adjudicated in the Avena Judgment, must a court in the United States apply as the rule of decision, notwithstanding any inconsistent United States precedent, the Avena holding that the United States courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines? (2) In a case brought by a foreign national of a state party to the Vienna Convention, should a court in the United States give effect to the LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation? Details . . . [Mark Godsey]

Chinas' Death Vans

This article describes the death vans used to carry out capital sentences in China, one execution is described as taking place 14 minutes after sentencing. The article also reports that for the first time since 1949, there is discussion about the appropriateness of the death penalty. [Jack Chin]

Abolish the Death Penalty

Meet Vernon Evans

Vernon Evans is scheduled to be executed by the state of Maryland the week of April 18, although a stay is considered possible if not probable.

A woman named Ginny Simmons has launched what could be a first: A blog uniquely dedicated to the thoughts of one person facing execution (there are a lot of web sites out there dedicated to people on death row, but they are not blogs).

Anyone can send in questions and Ginny will get them to Vernon and report back with the answers.

Check out the new blog by going here.

Breaking the hold of Michael Ross

Today we have a truly amazing story out of Connecticut -- thanks to Peter for bringing this to our attention.

A woman named Vivian Dobson is the only known survivor of Michael Ross, who killed a number of women and was sentenced to death in Connecticut. Ross attacked Dobson but somehow she escaped and survived. Today Dobson is sharing her story with Connecticut legislators.

And she is speaking out against the death penalty.

She makes the point that the death penalty hurts victims' family members more than it helps them. Hurts them because of the endless round of appeals. Hurts them because at the end it is the murderer is shown in the stagelight of publicity while the victims are forgotten. This is true even in states like Texas, where executions are routine. It is especially true in states like Connecticut, where they are not.

In her own words:

"This really has nothing to do with death," she says. "It has to do with control, with holding people's lives in his hands. And as long as he stays on death row, he holds our lives in his hands.

"And this is the part that they can't see. I see it because I've been living it for 22 years. I'm at the point now where I'm ready to take control of my own life."

That is why she has emerged from hiding, why today she plans to do something she thought she'd never do: leave the protective bubble she has created out of necessity and stand before a room full of people to tell her story.

She is afraid people will be angry, that they will think she has betrayed them.

But she is more afraid of continuing to let others speak for her, of the state choosing death in her name.

To read the whole column about Dobson's experience, go here.

Breaking the hold of Michael Ross

Today we have a truly amazing story out of Connecticut -- thanks to Peter for bringing this to our attention.

A woman named Vivian Dobson is the only known survivor of Michael Ross, who killed a number of women and was sentenced to death in Connecticut. Ross attacked Dobson but somehow she escaped and survived. Today Dobson is sharing her story with Connecticut legislators.

And she is speaking out against the death penalty.

She makes the point that the death penalty hurts victims' family members more than it helps them. Hurts them because of the endless round of appeals. Hurts them because at the end it is the murderer is shown in the stagelight of publicity while the victims are forgotten. This is true even in states like Texas, where executions are routine. It is especially true in states like Connecticut, where they are not.

In her own words:

"This really has nothing to do with death," she says. "It has to do with control, with holding people's lives in his hands. And as long as he stays on death row, he holds our lives in his hands.

"And this is the part that they can't see. I see it because I've been living it for 22 years. I'm at the point now where I'm ready to take control of my own life."

That is why she has emerged from hiding, why today she plans to do something she thought she'd never do: leave the protective bubble she has created out of necessity and stand before a room full of people to tell her story.

She is afraid people will be angry, that they will think she has betrayed them.

But she is more afraid of continuing to let others speak for her, of the state choosing death in her name.

To read the whole column about Dobson's experience, go here.

We hear from the Catholics

One of the most important developments in the campaign to end executions recently has been a press conference held at the National Press Club here in Washington, D.C., where it was announced that the U.S. Conference of Catholic Bishops is launching a new campaign to effectively end the use of the death penalty in the U.S.

The Bishops released a poll showing 48 percent of U.S. Catholics in favor of the death penalty -- down sharply from several years ago. In addition, the majority of Catholics who "strongly favor" the death penalty is at 20 percent -- down a whopping 20 points from 2001. And the poll found that younger Catholics are sharply opposed to the death penalty and 30 percent of Catholics who once favored capital punishment now oppose it.

To check out the Bishops' spiffy new web site, go here.

And to look at their new brochure (it's in PDF format) go here.

The price of freedom?

We've blogged in the past about Ray Krone, an all-around nice guy who was released from death row in Arizona after DNA proved that another guy actually did the crime. Now comes welcome news that Ray has settled with the county that prosecuted him and will be receiving $1.4 million for his wrongful conviction and incarceration.

Does that sound like a lot of money? At first glance it does. But then consider this editorial, which was published by the Daily Record:

The Price of Freedom

Whats your freedom worth - literally, in dollars and cents? Unless you've been, say, sentenced to a lifetime behind bars for a murder you didn't commit, you probably havent given it much thought. But Ray Krone had 10 years with nothing but time on his hands to ponder the question.

Last week he got an answer: $1.4 million. Thats the settlement amount in a wrongful murder conviction suit he filed against Maricopa County, Ariz. As Krones mom, Carolyn Lemming of Dover Township, says: It sounds like a lot, until you consider:

His lost wages and benefits for a decade.

His legal bills - about $800,000 total.

The misery of 10 years in jail.

Do the math, and the settlement adds up to about $380 a day rotting in prison. Subtract his legal fees from that total and he got about $164 a day - or about $6.80 an hour.

Thats just $1.65 more than minimum wage. Sounds like Maricopa County got off easy.

An Easter message

Those of us who oppose the death penalty address the issue from a most diverse -- and sometimes intense -- variety of perspectives.

For instance, I don't like the death penalty because the government makes mistakes. You know, at least once every two weeks, I come home and find someone else's mail in my mail box. If government cannot even deliver the mail accurately, how can we possibly expect it to be 100 percent accurate, 100 percent of the time, when it comes to sentencing people to death?

Others come at this issue from a religious perspective. For example, an op-ed just surfaced from conservative East Texas. It was written by the editor of the Lufkin Daily News and it is most powerful in its simplicity. Although I do not agree with every word in the op-ed, I nonetheless find it moving. It concludes:

The frequency of executions, especially here in Texas, may not indicate it, but the death penalty in America is endangered, because of advances in science and legal reasoning. If our moral thought can similarly advance, perhaps one day soon we will see the death of capital punishment and a deeper commitment to all life.

To read the entire piece, go here.

Sentencing Law and Policy Notes:

Lots of sentencing news from Connecticut

Aided by the terrific coverage from Kirby's Reports and a Public Defender, I see there are interesting sentencing developments coming from Connecticut. With the execution of serial killer Michael Ross slated for May, the state legislature has been considering a bill to abolish the death penalty. But today the Connecticut House today considered and rejected the bill on a vote of 89-60 (details here and here). Meanwhile, still under consideration is a bill to equalize the minimum penalties for crack and powder cocaine offenses under state law (details here and here).

Colorado Supreme Court troubled by mixing sentencing and the Bible

As detailed in this AP article, the Colorado Supreme Court on Monday, in a divided 3-2 ruling, affirmed a lower appellate court's determination that a death sentence should be overturned because jurors consulted the Bible during deliberations in the penalty phase. The lengthy decision in People v. Harlan, No. 03SA173 (Colo. Mar 28, 2005), is available here. The New York Times has this thoughtful article about the decision, and TalkLeft has a post and interesting comments on the case here.

This ruling in Harlan stands in interesting contrast to a decision a few months ago from the Sixth Circuit in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005). In Arnett, which I first discussed in this post, a divided panel reversed a grant of habeas corpus for a state prisoner in a child rape case, concluding that the district court should not have granted habeas due to the state trial judge's references to the Bible during petitioner's sentencing hearing.

Below I provide a few links to some other coverage of the intersection of sentencing issues and religion (which is, in my view, a fascinating and under-examined topic):

• Is there a "new right" on criminal sentencing issues?
• Sentencing and Religion
• Having faith in prisons
• Sister Prejean powerful perspective

Reports on the Medellin argument

The Medellin case in the Supreme Court is turning out to be less about the death penalty and more about separation of powers, federalism and what might be called super-federalism (i.e., US obligations with respect to international law). Nevertheless, it still is making for great drama and theater, as documented by this post about today’s oral argument from SCOTUSblog and this AP report. In addition, Emily Bazelon has this discussion of the case at Slate and Tony Mauro provides this report at law.com.

SCOTUS grants cert. in a capital case and has still more GVRs

As detailed in this post from SCOTUSblog, the Supreme Court this morning granted cert. in a capital case from California which concerns, inter alia, consideration of harmless error review, and the Court also issued another two dozen Booker-inspired GVRs. All the details on today's SCOTUS work can be found at the order list at this link, and details about the 500+ prior SCOTUS GVRs can be found at this post.

Concerns about (and blogsphere buzz on) DP paper

The Sunstein and Vermeule article that I posted here last night, which contends that capital punishment may be morally obligatory if it saves lives through its deterrent effect, is already generating blogsphere buzz. In addition to Eugene Volokh's initial post here, there are now thoughtful discussions of the paper at Crooked Timber here (with lots of comments) and at Crescat Senentia here and at Mirror of Justice here and here. Because, as I noted before, this topic intrigues me greatly, I wish to weigh in by highlighting two concerns I have about the paper, one empirical and one normative:

1. An empirical concern: are the data sound? As Karl Keyes notes in this comment and as others in the blogsphere spotlight, Sunstein and Vermeule rely heavily on data which are shaky at best. The authors concede that their arguments depend entirely on evidence that capital punishment deters, and that evidence is hardly conclusive. (Next month at Ohio State, as detailed here, Columbia Prof Jeff Fagan is scheduled to give the annual Reckless Lecture on this topic, and his telling title is "Science and the Illusion of Deterrence in the Death Penalty: Cold Fusion All Over Again.")

2. A normative concern: doesn't the argument prove too much? Sunstein and Vermeule are focused on murders in their discussion of "a life-life tradeoff," but their claims would seem readily extended to other kinds of killings. In my class discussions and in my own thinking, I find the deterrence arguments especially challenging when we consider drunk driving fatalities. Statistics show over 17,000 alcohol-related driving fatalities each year ( data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers. (Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests laws and public awareness can have a significant impact on alcohol-related driving fatalities.) Are Sunstein and Vermeule prepared to argue that execution of drunk drivers is morally obligatory (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?

In short, I ultimately found the Sunstein and Vermeule paper unsatisfying because they duck what I consider to be the really hard questions.

Lonely Abolitionist notes:

Robert Harlan

The Colorado Supreme Court has vacated the death sentence of Robert Harlan and commuted his sentence to life without parole. The Court held that it was improper for several of Harlan's jurors to look up Bible passages regarding an "eye for an eye" and copying them for discussion in deliberations. Colorado law prevents jurors from bringing in any outside material for deliberation.

This ruling has put many "people of faith" up in arms. They claim that jurors should not be required to leave their faith at the door of the jury room, that they should be allowed to consider their moral stand on these questions and should not have to erase from their memory moral teachings. I'm not sure I agree with the principal of that statement. However, regardless of the main concept expressed by challengers to this ruling, the situation here is different. In this case, the jurors did not simply rely on teachings and moral concepts they had developed throughout life. Rather, they copied down Biblical passages and brought them in to share with other jurors. It is possible that some juror who did not share the same moral convictions was influenced by these materials. It is a wholly different situation than a juror who simply quotes the Bible from memory. It has a different strength when its seen in writing...whether the reader would be inclined to believe it as "God's word" or not.

The funny thing about "eye for an eye" is that there are plenty of other passages regarding punishment in the Old Testament portion of the Christian Bible that no one bothers to bring up in today's society. For example, Biblical society stoned adulterers. I wonder how many of the jurors (or lawyers involved) would vote for that punishment. Be consistent; if you are going to advocate death for murderers based on Biblical principals that are seriously outdated (certainly for Christians since Jesus reportedly created a "new covenant" and a "new law"), then you should advocate the other punishments "required" by God in the Old Testament. Of course, as I recall, Jesus also advised a group of angry citizens to think carefully before throwing the first stone on a woman accused of adultery. He advised "let he who is without sin cast the first stone." Perhaps consistency is appropriate here as well. I wonder how many of the jurors would have felt comfortable pulling the switch or pushing the buttons. I wonder how many could cast that stone.

I also wonder what the outcry would have been if it had not been the Christian Bible used in deliberations, but instead had been the Koran or perhaps even Buddhist teachings on peace and nonviolence. Would religious and moral teaching have had a place in the jury room then? Or is such teaching only valuable when it comes from the Christian perspective? Of course, portions of the Koran advocate removal of the hands for the crime of theft. Why is that different than "eye for an eye"?

Death sentence by jury that discussed Bible thrown out