This edition, covering cases decided through March 29, 2003, changes format slightly, and notes no less than six favorable domestic opinions, one really lousy opinion, as well as well as a scolding from the International Court of Justice on this nation's treatment of foreign nationals accused of capital crimes.

The International Court of Justice in Mexico v. United States sharply rebukes the United States for its treatment of Mexican nationals in capital cases in light of alleged violations of the Vienna Convention on Consular Relations. In New Jersey v. Chew that state's supreme court grants relief on trial counsel's failure to put a defense expert on the stand in the penalty phase that would have permitted finding additional mitigation factors. The prosecution's gaming of the legal system by manipulating extradition in Pennsylvania v. Boczowski introduced an unacceptable degree of arbitrariness into the criminal justice system. The Fifth Circuit rejected in Saldano v. Roach the intervention of the Collin County District Attorney into a habeas action after the Texas Attorney General's office refused to appeal the grant the relief to Mr. Saldano. In two Alabama cases, Flowers v. Alabama & Simmons v. Alabama, remands are ordered where the trial court erred in holding that the respective Rule 32 post-conviction motions were untimely. Excerpts from Mexico v. United States, Chew, Boczowski & Saldano, make the "Hot List" which trails regular the capital case list.

On the lousy side of the docket, this week's list includes Pennsylvania v. El-Shabazz . For those who missed it, during a capital trial in Philadelphia last week lead counsel in El-Shabazz was sucker punched by his client in the presence of the jury. Co-counsel , Andrea Konow, refused to continue and the trial court held her in contempt. The assaulted attorney, Fred Goodman, was not injured in the attack. Coverage of that story follows in the Focus section.

Note that one other losing case, Ohio v. Bryan is a case to watch. In Bryan the Ohio Supreme Court upholds the first death sentence under the 1998 amendments to that state's capital punishment statute. The amendments to the statute would appear to make any killing of a law enforcement officer an almost automatic death sentence.

Elsewhere, in Texas a study entitled “ Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness ” prepared by the Texas Defender Service and Dr. John Edens, a psychologist and professor at Sam Houston State University, adds serious weight to the argument that predictions of future dangerousness are inherently junk science. In the latest edition of the journal Deviant Behavior, sociologist Robert Young of the University of Texas has reported that death penalty supporters, such as those who are qualified to sit on juries in capital cases, were about a third more likely to have prejudiced views of blacks. "Deadly Speculation" will be covered in greater depth next edition.

As always, thanks for reading.. - K

This edition is archived at http://capitaldefenseweekly.com/archives/040329.htm.

EXECUTION INFORMATION

Since the last edition the following people have been executed

SUPREME COURT

United States v. Flores-Montano , --- U.S. --- (3/30/2004) "[T]he Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank."

CAPITAL CASES (Favorable Disposition)

Mexico v. United States , International Court of Justice holds that the United States must provide a mechanism through which claims relating to alleged violations of the Vienna Convention on Consular Relations can be adjudicated.

New Jersey v. Chew , 2004 N.J. LEXIS 153 (NJ 3/25/2004)(dissent) Relief granted on failure to put defense expert on the stand in the penalty phase that would have permitted finding additional mitigation factors.

Saldano v. Roach, 2004 U.S. App. LEXIS 5424 (5th Cir 3/23/2004) Where the district court granted relief and the respondent does not appeal in a habeas action, the District Attorney's office who prosecuted the matter may not intervene.

Pennsylvania v. Boczowski , 2004 Pa. LEXIS 573 (PA 3/23/2004)(dissent) The action of the District Attorney's office in flouting a lower court order and manipulating the criminal justice system so that an otherwise noncapital criminal defendant can become death eligible introduced an unacceptable degree of arbitrariness into the criminal justice system..

Flowers v. Alabama, 2004 Ala. Crim. App. LEXIS 55 (Ala Crim App 3/26/2004) Trial court erred in holding that the Flowers Rule 32 post-conviction motion was untimely.

Simmons v. Alabama, 2004 Ala. Crim. App. LEXIS 57 (Ala Crim App 3/26/2004) Trial court erred in holding that the Simmons Rule 32 post-conviction motion was untimely.

Tomlin v. Alabama, 2004 Ala. Crim. App. LEXIS 71 (Ala Crim App 3/26/2004) On remand from the state supreme court, the Tomlin Court orders the trial court to impose a sentence of life without parole.

CAPITAL CASES (Unfavorable Disposition

Pennsylvani v. El-Shabazz , 2004 Pa. LEXIS 648 (PA 3/25/2004) ( dissent ) Contempt order upheld where defense counsel refused to proceed when co-counsel was sucker punched by the Defendant mid-trial in front of the jury.

Ohio v. Bryan , 2004 Ohio LEXIS 476;101 Ohio St. 3d 272 (Ohio 3/17/2004) Death sentence affirmed most notably on challenges to modifications to the Ohio's death penalty scheme that almost guarantees that any murder of a police officer will carry a death sentence.

Wallace v. Davis , 2004 U.S. App. LEXIS 5691 (7th Cir 3/26/2004) Habeas denied despite some of the prior convictions relied upon in sentencing were vacated subsequent to sentencing and trial counsel's performance during the penalty phase.

Globe v. Florida , 2004 Fla. LEXIS 416 (FL 3/18/2004) Relief denied on claims including: (1) admission of a statement by the defendant; (2) admission of a joint confession; (3) instruction in the penalty phase that the jury's role was merely to give an "advisory sentence;" (4) instruction on "principal" liability; as well as (5) reweighing & proportionality.

California v. Cleveland , et al, 2004 Cal. LEXIS 2547 (CA 3/25/2004) Relief denied on numerous claims, including how well a defendant must state his request for a new attorney in order for trial court to treat complaint regarding current attorney as a Marsden motion. ( Cleveland's website )

Ex parte State of Alabama, 2004 Ala. LEXIS 64 (Ala 3/19/2004) Writ of mandamus granted reversing the trial court's order authorizing travel to Vietnam for a mitigation investigation.

Adkins v. Alabama, 2004 Ala. Crim. App. LEXIS 68 (Ala Crim App 3/26/2004) Relief denied on claims including: (1) ineffective assistance counsel (relating to trial counsel's closing arguments, failure to present evidence in mitigation despite Adkins waiver of presentment of mitigation, failure to present guilt phase evidence of mental disease or defect, failure to object, and failure to effectively argue certain motions, amongst others), (2) trial court's failure to permit introduction of certain evidence, and (3) applicability of certain procedural bars.

HOT LIST

Mexico v. United States , International Court of Justice holds that the United States must provide a mechanism through which claims relating to alleged violations of the Vienna Convention on Consular Relations can be adjudicated.

In the present case, it has had occasion to examine the obligations of the United States under Article 36 of the Vienna Convention in relation to Mexican nationals sentenced to death in the United States. Its findings as to the duty of review and reconsideration of convictions and sentences have been directed to the circumstance of severe penalties being imposed on foreign nationals who happen to be of Mexican nationality. To avoid any ambiguity, it should be made clear that, while what the Court has stated concerns the Mexican nationals whose cases have been brought before it by Mexico, the Court has been addressing the issues of principle raised in the course of the present proceedings from the viewpoint of the general application of the Vienna Convention, and there can be no question of making an a contrario argument in respect of any of the Court’s findings in the present Judgment. In other words, the fact that in this case the Court’s ruling has concerned only Mexican nationals cannot be taken to imply that the conclusions reached by it in the present Judgment do not apply to other foreign nationals finding themselves in similar situations in the United States.

By its Order of 5 February 2003 the Court, acting on a request by Mexico, indicated by way of provisional measure that “The United States of America shall take all measures necessary to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these proceedings” (I.C.J. Reports 2003, pp. 91-92, para. 59 (I)) (see paragraph 21 above). The Order of 5 February 2003, according to its terms and to Article 41 of the Statute, was effective pending final judgment, and the obligations of the United States in that respect are, with effect from the date of the present Judgment, replaced by those declared in this Judgment. The Court has rejected Mexico’s submission that, by way of restitutio in integrum, the United States is obliged to annul the convictions and sentences of all of the Mexican nationals the subject of its claims (see above, paragraphs 115-125). The Court has found that, in relation to these three persons (among others), the United States has committed breaches of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention and Article 36, paragraphs 1 (a) and (c), of that Convention; moreover, in respect of those three persons alone, the United States has also committed breaches of Article 36, paragraph 2, of the said Convention. The review and reconsideration of conviction and sentence required by Article 36, paragraph 2, which is the appropriate remedy for breaches of Article 36, paragraph 1, has not been carried out. The Court considers that in these three cases it is for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in paragraphs 138 et seq. of the present Judgment.

New Jersey v. Chew , 2004 N.J. LEXIS 153 (NJ 3/25/2004) Relief granted on failure to put defense expert on the stand in the penalty phase that would have permitted finding additional mitigation factors

The PCR court found Dr. Cooke a credible witness, but found that whatever positive effects his testimony would have in support of mitigating factor N.J.S.A. 2C:11-3c(5)(a), would have been nullified by the negative features of such testimony. The PCR court concluded counsel were not deficient in this regard, but even if they were, defendant failed to satisfy the prejudice prong.

"Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. [*59] "A failure to do so will render the lawyer's performance deficient." Savage, supra, 120 N.J. at 618. In evaluating whether defense counsel has satisfied the duty to make reasonable investigations, the reviewing court must apply "a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. That is, if counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is "virtually unchallengeable." Id. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695. However, if counsel fails to make a complete investigation, counsel's strategy decisions "are subject to closer scrutiny." Savage, supra, 120 N.J. at 618.

Here, counsels' strategic decision not to call Dr. Cooke as an expert witness was not based on a thorough investigation of the facts and a consideration of all "plausible options." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Once counsel became aware that Charette claimed to have had an incestuous relationship with defendant, they failed to investigate [*60] whether Dr. Greenfield was aware of this information. Counsel never interviewed Dr. Greenfield nor requested a copy of any report he might have prepared. n2

****

The failure of counsel to make a thorough investigation of these matters before deciding to limit the case in mitigation "rob[bed this] strategic choice of any presumption of competence." Davis, supra, 116 N.J. at 357. Absent the presumption of competence, [*62] this Court concludes that counsel rendered ineffective assistance of counsel in the uninformed strategic decision not to call Dr. Cooke as a witness in the penalty phase of the trial. Simply put, counsels' failure to request Dr. Greenfield's report and to make reasonable investigations rendered counsels' performance deficient because it resulted in the uninformed decision to exclude N.J.S.A. 2C:11-3(c)(5)(a), mitigating evidence.

Saldano v. Roach, 2004 U.S. App. LEXIS 5424 (5th Cir 3/23/2004) Where the district court granted relief and the respondent does not appeal in a habeas action, the District Attorney's office who prosecuted the matter may not intervene.

Furthermore, since the Attorney General is properly representing the State in this case, Texas law does not permit the District Attorney to assume representation of the State as well. Under Texas law, "either the Attorney General or a county or district attorney may represent the State in a particular situation, but these are the only choices, whichever official represents the State exercises exclusive authority and if services of other lawyers are utilized, they must be 'in subordination' to his authority." Hill v. Tex. Water Quality Bd., 568 S.W.2d 738, 741 (Tex. Civ. App. -- Austin 1978, writ ref'd n.r.e.); cf. Saldano, 70 S.W.3d at 883 ("The State has only one interest in a criminal case, and the State can be represented by only one attorney in making such decisions as whether to seek review and whether to confess error."). As the Texas Court of Criminal Appeals aptly noted in a state habeas appeal: "In every appeal, such decisions must be made as whether to appeal, . . . what points to raise[,] whether to confess error, . . . whether to seek further review and on what grounds. Some one person must make these decisions; there cannot be conflicting [*11] decisions." Ex Parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (en banc) (per curiam). In sum, Texas law does not grant the District Attorney the authority to represent the State here. Thus, the District Attorney's interest in this case is not "one which the substantive law recognizes as belonging to or being owned by the applicant." New Orleans Pub. Serv., Inc., 732 F.2d at 464.

***

Furthermore, even if the District Attorney's interest in this suit were sufficient to permit his intervention, we would nevertheless conclude that Rule 24 intervention is improper because the District Attorney [*15] has not demonstrated that he meets the fourth requirement for intervention: that his interest is inadequately represented by the existing parties. Doe, 256 F.3d at 375. To meet this requirement, a potential intervenor must show that the representation of his interest by existing parties to the suit "'may be'" inadequate. Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996) (en banc) (quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10, 30 L. Ed. 2d 686, 92 S. Ct. 630 (1972)).

The District Attorney contends that the Attorney General is not representing his interest in this case because the Attorney General is not adequately representing the State's interest. According to the District Attorney, the Attorney General's representation of the State's interest is inadequate because the Attorney General "aligned himself with Saldano and joined Saldano in urging the district court to vacate Saldano's sentence" and because the Attorney General did not appeal the district court's order granting habeas relief to Saldano.

As the District Attorney has conceded, however, the Attorney General has discretion to confess error and to [*16] waive procedural default. See, e.g., Alba v. Johnson, 232 F.3d 208 (5th Cir. 2000) (unpublished opinion) (accepting the Texas Attorney General's confession of error); n10 Brown v. State, 95 Tex. Crim. 664, 664, 255 S.W. 750, 751 (1923) (accepting the Attorney General's confession of error); cf. McGee v. Estelle, 722 F.2d 1206, 1212 (5th Cir. 1984) ("As the chief legal officer of the state, the attorney general is the appropriate person to assert, or to waive" habeas exhaustion requirements.). The Attorney General is not an inadequate representative simply because he has taken these actions, especially when state law gives him the authority to do so.

Pennsylvania v. Boczowski , 2004 Pa. LEXIS 573 (PA 3/23/2004)(dissent) The action of the District Attorney's office in flouting a lower court order and manipulating the criminal justice system so that an otherwise noncapital criminal defendant can become death eligible introduced an unacceptable degree of arbitrariness into the criminal justice system..

Appellant argues that Judge Durkin's order staying extradition was a valid one that was never lifted, vacated or modified by any court. Therefore, the District Attorney's Office had no authority to act in contravention of that order and transfer appellant to North Carolina before the Pennsylvania charges were disposed. Had appellant not been unlawfully transferred to North Carolina, the factual basis for the single aggravating circumstance would not have existed and appellant would not have been eligible for the death penalty. Appellant argues that the Commonwealth should not be permitted to benefit from its blatant violation of the stayed extradition order, and he should be afforded some remedy. Appellant concludes [*63] that quashal of the single aggravating circumstance and a concomitant vacatur of the sentence of death is the appropriate remedy because it would restore the status quo ante, i.e., it would place the parties back in the positions which existed before the Commonwealth's violation of the court order.

The Commonwealth does not dispute that its action in transferring appellant to North Carolina led to the creation of the aggravating circumstance it later relied upon to certify that this had now become a capital prosecution. The Commonwealth nevertheless argues that it did not engage in a "willful or intentional" violation of the stayed extradition order. This is so because there was a change in circumstances -- appellant's having successfully moved to exclude certain Commonwealth evidence and the pendency of the Commonwealth's pre-trial appeal from the trial court's order excluding that evidence -- which precipitated the Commonwealth's decision to transfer appellant to North Carolina. Because the Pennsylvania trial proceeding had "halted for a valid reason," the Commonwealth argues, its returning appellant to North Carolina was reasonable. Furthermore, that action ensured that appellant's [*64] right to a speedy trial in North Carolina was not impeded by the appellate delay here.

The Commonwealth further argues that absent "purposeful abuse" by prosecution authorities, the aggravating circumstance and ensuing death penalty here should not be set aside. As proof that it was not deliberately seeking to arrange for the creation of the aggravating circumstance, the Commonwealth notes that it was the party that originally requested the stay of extradition, a fact indicating that it was fully prepared to try the matter as a non-capital case. The intervening dispute over appellant's partially successful motion in limine then changed the circumstances. The Commonwealth emphasizes that the fact that it prevailed upon its interlocutory appeal shows that it pursued that appeal in good faith. Because it did not seek the death penalty for an improper reason and because the aggravating circumstance unquestionably did exist by the time of trial, the Commonwealth concludes that appellant is entitled to no relief.

****

The Commonwealth's after-the-fact explanations do not justify its violation of an existing, clear, and unambiguous court order. If the Commonwealth felt that circumstances had changed and warranted reconsideration or modification of that order to provide for immediate extradition, it should have sought that relief from the court. Such a procedure would have afforded [*69] appellant an opportunity to be heard and to challenge the request and would have ensured that a neutral judicial officer made the ultimate legal determination. It may well be that a motion to lift the stay would have been granted, given the change in circumstances represented by the delay occasioned by the Commonwealth's decision to appeal. But, that is not the point. When a governing court order exists, it is for the court and not a party to unilaterally modify or nullify that order. However intentioned, whether good or evil, a party is not authorized to ignore controlling court orders based upon its own view about the existence and effect of a change in circumstances.

An action or factor is arbitrary if it is not cabined by law or principle. See, e.g. Black's Law Dictionary 100 (Seventh Ed. 1999) (defining arbitrary as, inter alia: "1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. . . ."); Merriam-Webster's Collegiate Dictionary 59 (10th Ed. 2002) (defining arbitrary as, inter alia: "1: depending on [*70] individual discretion (as of a judge) and not fixed by law . . . 2a: not restrained or limited in the exercise of power: ruling by absolute authority . . . 3a: based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something . . . ."). The Commonwealth's action in this case was clearly arbitrary: it usurped the role of the tribunal assigned, in our system of separated powers, to determine whether the stay should be lifted. Moreover, in addition to violating an existing court order, the trial prosecutor's unauthorized conduct ultimately created the basis for the Commonwealth to newly certify appellant as death- eligible, and to convert what had been a non-capital prosecution into a capital one. By taking an unlawful action which led to the creation of an aggravating circumstance that did not exist when the court had ruled on extradition, the Commonwealth introduced an element of arbitrariness into the death-eligibility process. In such a circumstance, we are constrained to hold that this sentence of death, which depended upon that circumstance, was the improper product of an arbitrary factor. n25 Consistently with the legislative [*71] mandate, we hold that the aggravating circumstance specified below should have been quashed and, because this was the only aggravating circumstance specified by the Commonwealth, we must vacate the sentence of death and remand for imposition of a sentence of life imprisonment. 42 Pa.C.S. § 9711(h)(4).

OTHER NOTABLE CASES

Wiley v. Chicago, 2004 U.S. App. LEXIS 5340 (7th Cir 3/22/2004) Plaintiff's Fourth Amendment claim for false arrest reinstated as normal two-year statute of limitations did not begin to run until criminal charges were dismissed.

FOCUS

Focus this week examines coverage of the fiasco that can follow a capital defendant hitting his lawyer midtrial in the presence of the jury. (If we had an award for profiles in courage, Andrea Konow & Fred Goodman would definitely get them this week). Talkleft.com notes on the story.

Public Defender Must Stay on Case of Client Who Punched Her Partner

The Pennsylvania Supreme Court today ruled today in the case of the public defender who was jailed for refusing to continue representing a defendant in a rape and murder trial after he had punched her co-counsel in court. The Court ordered her to stay on the case.

In an emergency ruling, the court let stand a judge's decision to hold attorney Andrea Konow in contempt of court for refusing to represent a man accused of murdering a 6-year-old girl after he sucker-punched his other defense lawyer during his trial. The lawyer, Fred Goodman, was not hurt by the unexplained attack, which came Monday just after prosecutors rested their case. He was allowed to withdraw.

Issuing a stay in this case would reward the capital defendant for his misconduct by providing him with an unwarranted new trial _ which may very well be the reason he punched one of his lawyers in the face in the first place," Castille wrote. Castille also chided Konow for "flouting her ethical obligation to the court." In a footnote, he wrote that if it was true she had suddenly become too afraid of El-Shabazz to represent him, she "may want to consider another line of work."

The Court's opinion is available here . One Justice dissented but hasn't filed her opinion yet.

Background on the case is here and here . Ms. Konow, by the way, is not only a supervisor in the Philadelphia Public Defender's homicide unit, she is also "staff" (i.e., regular faculty) at Gerry Spence's Trial Lawyers College in Wyoming. [hat tip to Peter Goldberger for the info and links.]

Posters, including criminal defense attorneys from around the country, noted, on that site:

The link in the main post is to the state supreme court's order. The rationale is in Justice Castille's supporting "statement" which is actually here . The separate statement by Justice Baer, disagreeing with Castille's disparagement of the "ethicality" of attorney Konow's actions is here . Since the issue was before the supreme court only on review of the trial judge's refusal to grant a "stay" of the trial (to suspend it while the counsel issue is resolved), it wasn't open to the court to consider whether the defendant had forfeited his right to counsel by punching his lawyer. Any judge would be very, very reluctant to do that in a capital case. She would have to at least try restraining the defendant first, or removing him from the room to observe by remote video. PD Konow is going to try to continue trying the case. If (when) the defendant is convicted, whether or not the jury passes a death sentence, he will certainly have an interesting appeal. [Peter G]

***

Latest news from the local front: first of all, the client is an idiot. The Phila Public Defender's Office homicide squad are the best in town. Unlike some parts of this country, if you're charged with a capital offense in Philadelphia, you want to be poor and have the PD; they're the best. Cream of the crop, highly experienced, specialists, and well funded for experts, investigators, etc. Almost no private lawyers, retained or appointed, can match them. (If I'm not mistaken, they have never, or almost never, taken a death verdict at the penalty stage -- all cases, over more than five years of this special team's existence, have been acquittals, convictions of less than first degree, or first degree but life not death.) So if this case goes mistrial, and client gets a different (non-PD) lawyer appointed next time, he'll probably have a worse lawyer. A Superior Court judge (our intermediate appellate court) released Andrea Kronow last night, and the question of what will happen is before a justice of the state supreme court as of this afternoon. The trial judge, Jane Cutler Greenspan, is a former chief of the District Attorney's appellate division. Not dumb; in fact, quite smart but rather pro-prosecution. [PeterG]

****

The Phila PD's office has never taken a death penalty sentence. But that piece of information is being used against the office to say that this whole thing was planned to avoid the PD taking its first death sentence.

As to the substantive issue, there are 2 main problems with Ms. Konow continuing representation.

(1) There is a serious conflict of interest issue. In PA, an assault against a PD while doing their job is a 2nd degree felony. While that still pales in comparison to life or death, it's a big deal. I believe that the PD office cannot represent a defendant who commits a crime against any employee of the PD. Why shoudl this case be any different?

(2) Ms. Konow was the mitigation specialist. She was not second chair. She had only prepared to do the sentencing. Only Mr. Goodman was prepared for trial. This too leads to a serious ineffective assistance of counsel claim.

I understand the problem that this case has caused in Philadelphia. No one wants to set the precedent that acting up in this way gets a defendant a mistrial. But the state Supreme Court ruled this afternoon that Ms. Konow must continue with the trial.

Doesn't this just mean that they will hear a PCRA in the near future based on ineffective assistance of counsel? What good does that do? [Leigh]

FROM AROUND THE WEB

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

World Court Rules that U.S. Violated Rights of Mexican Foreign Nationals on Death Row

The International Court of Justice ruled in favor of Mexico and found that the United States violated the rights of almost all of the Mexican foreign nationals on death row in the U.S. The World Court, which is the highest legal organ of the United Nations and is based in The Hague, has ordered that the Mexican cases be reviewed by U.S. courts. The defendants were not informed of their right to talk to consular officials after being arrested, as provided by the Vienna Convention on Consular Rights. “The remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts,” the Court said in its ruling. Of the 51 foreign nationals named in Mexico’s case, three have exhausted their ordinary appeals in the U.S. court system. The Court said that the United States should make an exception and review their cases one more time. (Associated Press and Reuters, March 31, 2004). Read the World Court’s decision. See Foreign Nationals. See International Death Penalty.

New Study Points to Unreliability of Future Dangerousness Predictions in Texas

A new study conducted by the Texas Defender Service and Professor John Edens of Sam Houston State University found that state predictions of the future dangerousness of capital defendants were grossly inaccurate. The review examined the cases of 155 inmates in which prosecution expert witnesses had predicted the inmate would be a future danger to society and in which the state asked for the death penalty. However, only 8 (5%) of these inmates later engaged in any seriously assaultive behavior resulting in an injury requiring treatment of more than first-aid. Thirty-one of the 155 inmates (20%) had no records reflecting any disciplinary violations. The remaining 75% of inmates committed less grevious disciplinary infractions involving conduct short of serious assaults, including minor infractions such as possessing cash or lotto tickets, food in their cells, or too many sheets. None of the inmates in the study committed another homicide, and only two inmates have been prosecuted for crimes committed while in prison. One was exonerated by the courts and freed from death row.

The study, “Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness,” was prepared by the Texas Defender Service, a non-profit law firm involved in capital litigation, and Dr. John Edens, a psychologist and professor at Sam Houston State University. “There are strong reasons to question the accuracy of predictions of violence made by prosecution experts in capital murder trials. It seems impossible to reconcile the glaring inaccuracy of the predictions made by these experts with the requirement that death sentences be meted out in a non-capricious manner. It is incumbent on mental health experts to avoid engaging in fraudulent testimony that is lacking in any meaningful scientific foundation,” Dr. Edens noted. Texas is one of only two states that allows “future dangerousness” to play the critical role in whether an individual receives a death sentence, despite the fact that the practice is rejected by the psychiatric expert community as unreliable. (Texas Defender Service Press Release, March 31, 2004)

Read the Study. Read the Press Release.

DNA Lab Audit Reveals Problems Throughout Texas System

According to a 2003 internal audit of the Texas Department of Public Safety’s (DPS) crime labs, procedural flaws, security lapses and shoddy documentation problems continue to undermine the quality of DNA laboratory testing results throughout the state. These same problems previously shut down criminal laboratories in Houston and McAllen, and the new findings could throw thousands of criminal cases into doubt. According to public records obtained by the Houston Chronicle, an audit of labs in Houston, Austin, El Paso, Garland, Lubbock, Corpus Christi, McAllen and Waco revealed the following:

DNA analysts who do not understand how to interpret test results.

The failure of analysts to run blank samples to make sure instruments are not contaminated with DNA residue from previous tests.

DNA reports that do not include important statistical probabilities.

Possible cross-contamination of blood samples.

A lack of lab security.

Failure to document critical analytical procedures at the state lab that inputs DNA profiles into the FBI national DNA database.

Last year, state legislators passed reform measures to improve Texas DNA labs. It entrusted DPS with overseeing the accreditation of all public DNA labs in the state by September 2005. Since then, internal problems uncovered at DPS labs have caused concern about the quality of the information and the recommendations that the department has provided to lawmakers. “I have lost confidence in DPS and their ability to oversee these labs. Clearly we’re going to have to hold hearings and ask them to come forward and give us their analysis of what’s going on,” said state Representative Kevin Bailey, who chairs the Texas House Committee on General Investigating. (Houston Chronicle, March 28, 2004) Texas is by far the leading execution state in the country. See Innocence.

New Evidence May Exonerate Man on Illinois’s Death Row

The Illinois Attorney General’s office will not appeal a federal judge’s ruling finding that it was “reasonably probable” that Gordon Steidl would have been acquitted had the jury heard all of the evidence in his capital murder case. The court granted Steidl a new trial to prove his long-proclaimed innocence. Steidl was given the death penalty for the 1986 murders of a newlywed couple, but his sentence was reduced to life in prison without parole in 1999 following an Illinois State Police inquiry into the case. The inquiry concluded that the initial police investigation into the double murder had been botched, leading to the conviction of the wrong men, Steidl and his co-defendant Herbert Whitlock. Since Steidl’s trial, the state’s key witness in the case has recanted, and the evidence corroborating her testimony has been discredited. Illinois Attorney General Lisa Madigan has also concluded her own reinvestigation of the case, including DNA analysis of evidence, and she found that nothing linked Steidl or Whitlock to the murders. The state will decide on April 2 whether to retry the case. If Steidl is not retried, he could be set free, making him the 18th person in Illinois to be exonerated from death row. His co-defendant remains in prison serving a sentence of life without parole, but will likely seek relief in the courts if the state decides not to retry Steidl. (Chicago Tribune, March 26, 2004) See Innocence.

Minnesota Committee Votes Down Death Penalty

Following two hours of testimony including representatives of crime victims and death row exonerees, the Minnesota Senate Crime Prevention and Public Safety Committee voted 8-2 against reinstating the death penalty, continuing nearly a century without the sentence on the state's books. The Committee's vote likely blocks passage of the death penalty bill this year. Don Streufert, whose daughter was raped and murdered in 1991, was among those who testified against the bill. He noted, “No penalty or punishment can replace our daughter. We find no healing or comfort in the prospect of any murderer’s execution.” A poll released in February found that more Minnesotans oppose the reinstatement of capital punishment than support it. (Associated Press, March 24, 2004) See Victims. See Innocence.

Seriously Mentally Ill Man Facing Execution in Texas

On May 18th, Texas plans to execute Kelsey Patterson, a mentally ill man who was first diagnosed with paranoid schizophrenia more than a decade before he murdered two women in 1992. After the murder, Patterson wandered around dressed only in his socks. Although a jury found Patterson competent to stand trial, he repeatedly interrupted the proceedings to offer a rambling narrative about implanted devices and other aspects of a conspiracy against him. According to a new report from Amnesty International, Patterson's delusions did not allow him to understand what was going on or the ability to consult with his attorneys. In 2000, a federal judge echoed the concerns that have been raised about Patterson’s case, noting, “Patterson had no motive for the killings…he claims he commits acts involuntarily and outside forces control him through implants in his brain and body. Patterson has consistently maintained he is a victim of an elaborate conspiracy, and his lawyers and his doctors are part of that conspiracy. He refuses to cooperate with either; he has refused to be examined by mental health professionals since 1984, he refuses dental treatment, and he refuses to acknowledge that his lawyers represent him.” Nevertheless, the judge upheld Patterson's death sentence. The issue of executing the mentally ill has been raised in Texas on numerous occasions, most recently in February 2004, when another mentally ill man, Scott Panetti, received a 60-day stay of execution shortly before he was scheduled for execution. The United Nations Commission on Human Rights has repeatedly called for an end to the use of the death penalty against people with mental disorders. (Amnesty International Press Release, May 18, 2004). Read Amnesty’s Report on Kelsey Patterson. See Mental Illness and the Death Penalty.

Study of Potential Death-Qualified Jurors Reveals Bias

In the latest edition of the journal Deviant Behavior, sociologist Robert Young of the University of Texas has reported that death penalty supporters, such as those who are qualified to sit on juries in capital cases, were about a third more likely to have prejudiced views of blacks. Young’s evaluation of polling data also revealed that death penalty supporters are more likely to convict the defendant. When polled, they were nearly twice as likely to say it was worse to let the guilty go free than to convict an innocent defendant. “By allowing juries in capital cases to be stacked in favor of conviction, the courts have created a system in which certain defendants – especially those of African American descent – in essence must prove their innocence beyond a reasonable doubt,” said Young, who analyzed data from the 1990 to 1996 General Social Survey – a leading barometer of social trends in the U.S. He notes that those two findings reinforce each other and make death penalty juries more conviction prone, particularly when the defendant is black. (Washington Post, March 21, 2004) See Race.

Michigan Lawmakers Reaffirm State's Longstanding Ban on Capital Punishment

In a vote upholding the state’s longstanding abolition of the death penalty, Michigan lawmakers refused to support a measure that would have put capital punishment before state voters in a referendum. The vote fell 18 short of the 2/3 required for passage. During a lengthy House debate regarding the bill, Representative Jack Minor (D-Flint) told his colleagues that studies show crime rates are lower in states without the death penalty. He noted, “The death penalty’s not a deterrent. In fact, the figures would suggest it’s just the opposite.” Other opponents of the measure stated that "revenge” would not help victims’ families. Michigan has not had the death penalty for 158 years, and voters have not addressed the issue since its abolition was included in the 1963 revision of the state constitution. Michigan is one of 12 states in the U.S. that does not have a death penalty. (Michigan Live, March 19, 2004) The state was the first English speaking government in the world to ban the practice. See Deterrence and Victims.

Gallup Poll Examines Support for Death Penalty in U.S., Canada, U.K.

According to recent Gallup polls, 64% of Americans favor the death penalty, while 48% of Canadian and 55% of British citizens favor the punishment. Great Britain and Canada have abolished the death penalty. The polling research also examined whether capital punishment has a deterrent effect on crime. Polling has revealed that most Americans do not believe the death penalty acts as a deterrent to committing murder. Gallup's report compared homicide statistics in the United States, Britain, and Canada and the data cast doubt on any deterrent effect. In 2001, there were 554 murders in all of Canada, 167 fewer than in 1975 when the nation abandoned capital punishment. With a murder rate that has held steady at 1 or 2 per 100,000 for decades, Britain has similar statistics. From 1972-1976, when the U.S. did not impose the death penalty, there were between 8.8 and 9.8 homicides per 100,000, but when the U.S. returned to using the death penalty, the murder rate escalated to 10.2 per 100,000 in 1980, though it has since come down. (Gallup Poll Briefing, March 16, 2004) See Public Opinion. See also Deterrence and International Death Penalty.

NEW RESOURCE: Spangenberg Report Provides Death Penalty Update

The March 2004 edition of The Spangenberg Report includes valuable information on criminal justice reforms from around the country, including death penalty developments. An examination of Georgia’s new Public Defender Standards Council and its efforts to overhaul indigent defense services in the state, results from a Spangenberg Group study of indigent defense in Virginia, the findings of a death penalty cost review in Kansas, and additional state updates from Illinois, Texas, Minnesota, and Massachusetts are among the items highlighted in the report. A summation of Supreme Court Justice Anthony Kennedy’s remarks during the American Bar Association’s annual meeting in San Francisco and a discussion of the Supreme Court’s decision to review the constitutionality of the juvenile death penalty are also provided. The Spangenberg Report is published by The Spangenberg Group, a nationally recognized research and consulting firm specializing in improving justice programs. (The Spangenberg Report, March 2004) See Resources.

POLITICAL MANIPULATION: Legislators Try to Control What the Courts Consider

Two Congressmen have introduced a non-binding resolution, backed by the threat of impeachment, that would express the sense of Congress that U.S. judges should not consider foreign laws or court decisions in their rulings. The measure, authored by Republican Representatives Tom Feeney of Florida and Bob Goodlatte of Virginia, was triggered by recent court decisions, including death penalty cases, in which justices made reference to laws or opinions in other countries. Feeney raised the prospect of impeaching justices that don't comply: "To the extent they deliberately ignore Congress' admonishment, they are no longer engaging in 'good behavior' in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment." Supreme Court Justice Stephen Breyer has noted that the Declaration of Independence calls for giving a “decent respect to the opinions of mankind.” Justice Sandra Day O’Connor has also noted the importance of considering international law in weighing decisions. She said that referring to international precedent “may not only enrich our own country’s decision, I think it may create that all-important good impression.” With the regard to the death penalty, the Supreme Court recently referenced international opinion in examining the constitutionality of executing those with mental retardation. (MSNBC News, March 11, 2004). See International Death Penalty. See Supreme Court.