The Georgia Supreme Court this week leads the way.

In David Aaron Perkins v. Hall the Georgia Supreme Court set aside a death sentence because of ineffective assistance at the penalty phase. The Court held counsel was ineffective despite Mr. Perkins's resistance to their efforts which included refusing even to submit to a mental health evaluation. In relying on ABA Standards in assessing counsel’s performance the Court held that prejudice was established by the non-expert testimony of Mr. Perkins’ behavior including how his behavior changed after two head injuries. On the guilt phase issues, however the defendant defaulted his competency issues. Finally, the Court remanded for further findings a jury note saying it was concerned about its safety which could still yet result in vacateur of the guilt phase verdict.

Similarly the Georgia Supreme Court granted relief penalty phase relief in Nicholas Jason Bryant v. State. In Bryant the trial court improperly admitted victim impact evidence. Specifically, witnesses at trial gave their characterizations of the crime and of Bryant. The trial court did not, however, err when it admitted victim impact evidence from earlier crimes committed by Bryant, but the admitted victim impact went to far when it resulted in certain characterizations of the condemned.

In Kentucky, in Comm. v. Hon. Shepherd, the state Supreme Court turned aside attempts to lift trial court’s order enjoining any execution by lethal injection there. The 5-2 vote means that the multiyear lethal injection related stays there continue, despite the Commonwealth having recently scored enough sodium thiopental to carry out three lethal injections.

In the news "the Supreme Court has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution." In Arizona lawyers for Eric King have moved to stay this week's scheduled execution citing Arizona's plan to switch to a one-drug execution protocol. Legislatures in Texas and Florida are both weighing substantial and notable changes to eyewitness identification procedures.

always a heartfelt thank you for reading. - k

Pending Executions

March

29 Eric King* (Az)

31 William Glenn Boyd* (Ala) April

5 Cleve Foster* (Tex)

5 Daniel Wayne Cook* (Az)

6 Wayne Kubsch (Ind)

12 Clarence Carter* (Ohio)

May

3 Cary Kerr* (Tex)

17 Daniel Bedford* (Ohio)

Executions

March

10 Johnie Baston* (Ohio)

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

SCOTUS

• Felkner v. Jackson, No. 10-797 (3/21/2011) "The Ninth Circuit had no basis to award habeas relief to a state inmate alleging that prosecutors had peremptorily struck jurors at his trial on the basis of race." [via SCOTUSBlog ]

Week of March 21, 2011: In Favor of the Accused or Condemned

• Comm. v. Hon. Shepherd, 2011 Ky. LEXIS 31 (Ky 3/24/2011) Kentucky Supreme Court turns aside attempts to use writs for exceptional relief to a lift trial court’s order enjoining any execution by lethal injection in Kentucky; “the wisest course is simply to allow the current litigation to proceed.”

Week of March 21, 2011: In Favor of the Prosecution or Warden

• State v. Jeffrey Brian Motts, 2011 S.C. LEXIS 49 (S.C. 3/21/2011) Appellant held “competent to waive his direct appeal and that this waiver is knowing and voluntary. After conducting our statutorily-imposed duty to review Motts's capital sentence, we also affirm the sentence of death. Finally, given this Court's procedures and the PCR avenues available to Motts, we conclude that neither the circuit court nor this Court is required to order that a court- appointed psychiatrist interview Motts immediately prior to his execution in the absence of some indicia of incompetency.”
• Ray Lamar Johnston v. State, 2011 Fla. LEXIS 671 (FL 3/24/2011) Relief denied on ten issues including: “(A) counsel was ineffective for failing to adequately question juror Tracy Robinson concerning her prior misdemeanor and active capias; (B) counsel was ineffective for failing to include juror Robinson's resulting nondisclosure in a motion for new trial; (C) the postconviction court erred in denying Johnston's motion to interview juror Robinson; (D) counsel was ineffective for failing to file a motion to suppress Johnston's statements to law enforcement; (E) counsel was ineffective for failing to call Diane Busch as a witness; (F) counsel was ineffective for failing to inform the trial court or jury that Johnston was using prescribed psychotropic medication at the time of trial; (G) counsel was ineffective for offering ill-considered and improper advice concerning Johnston's need to testify; (H) counsel was ineffective for failing to present potential mitigators; (I) counsel was ineffective for failing to adequately challenge fingerprint evidence; (J) counsel was ineffective for failing to adequately challenge shoe tread evidence; (K) counsel was ineffective for failing to further question members of the venire concerning their exposure to pretrial publicity; (L) counsel was ineffective for failing to file a legally sufficient motion to disqualify the trial judge; and (M) cumulative error warrants relief.”

Week of March 14, 2011: In Favor of the Accused or Condemned

• Nicholas Jason Bryant v. State, 2011 Ga. LEXIS 251 (Ga 3/18/2011) Reversing death sentence because of improper victim impact evidence admitted – witnesses gave their characterizations of the crime and of Bryant, but holding that victim impact evidence from earlier crimes committed by Bryant were admissible, and rejecting many other issues; Justice Carley dissented with regard to the admission of the victim impact evidence.
• David Aaron Perkins v. Hall, 2011 Ga. LEXIS 255 (Ga 3/18/2011) Setting aside death sentence because of ineffective assistance at the penalty phase even though habeas court found that counsel’s failure to investigate more fully was due to the client’s resistance which included refusing to submit to a mental health evaluation, relying on ABA Standards in assessing counsel’s performance, finding prejudice established by the non-expert testimony of Perkins’ behavior including how his behavior changed after two head injuries, but also holding that whether the defendant was competent at the time of trial was procedurally defaulted; and remanding for a determination of when the jury wrote a note saying it was concerned about its safety – holding that it was prejudicial and requires relief if the note was written during the guilt stage; the Court was unanimous on every issue except the determination that competency for trial was waived – Chief Justice Hunstein, the only dissenter, would follow the Supreme Court’s decision in Pate v. Robinson and hold that the issue of competency cannot be waived.
• Ex parte Willie Earl Scott, 2011 Ala. LEXIS 37 (Ala 3/18/2011) Trial court on Rule 32 application/ postconviction review adopted as its "independent and impartial findings and conclusions” large portions of the State’s brief verbatim. “The trial court's verbatim adoption of the State's answer to Scott's Rule 32 petition as its order, by its nature, violates” well established state law precedent.

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

• Ralph Swan v. State, 2011 Del. LEXIS 166 (Del Sup 3/16/2010) Trial court on remand finds that the proffered mitigation evidence purportedly missed by trial counsel would not have changed its position that the brutality of the crime outweighed any potential mitigatory evidence, however the jurors at trial had split just 7-5 for death
• Nelson Serrano v. State, 2011 Fla. LEXIS 619 (FL 3/17/2011) “Serrano raises nine issues on appeal: (1) whether the circumstantial evidence is sufficient to support his convictions; (2) whether Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the trial court properly denied Serrano’s motions to dismiss the indictment and divest itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a change of venue; (6) whether the testimony of the State’s bloodstain pattern expert was admissible; (7) whether the State improperly cross-examined Serrano’s character witnesses about collateral crimes at the Spencer hearing; (8) whether the avoid arrest aggravator was properly submitted to the jury and found by the trial court; and (9) whether Serrano’s death sentence is constitutional. We also review whether Serrano’s death sentences are proportionate. However, [ ]none of these issues warrants relief.”
• James Garrett Freeman v. State, 2011 Tex. Crim. App. LEXIS 387 (Tex. Crim. App. 3/16/2011) “Appellant’s capital murder conviction under Tex. Penal Code Ann. § 19.03(a)(1) and his death sentence were affirmed; prosecutor arguments were either not improper or harmless, and the denial of his motion for a change of venue under Tex. Code Crim. Proc. Ann. art. 31.03(a) was not improper.” [via LexisOne]

If you have problem accessing this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/110328.htm. Almost all cases can be found by going to Lexisone.com and typing in the appropriate lexis cite OR going to Google Scholar and typing in the name of the condemned. We'd simply ask that before printing consider our environment and saving our trees. If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named. We also borrow heavily from the good folks at the Death Penalty Information Center and the Crime Report.

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