Leading off this edition, the Supreme Court last Wednesday evening delayed the execution of Henry "Hank" Skinner indefinitely. Mr. Skinner sought federal relief on a a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago. The Court’s order fails to indicate when the Court will determine whether or not to grant certiorari (Skinner v. Switzer, 09-9000; his stay application was 09A743). Copies of Mr. Skinner's filings are here/

In the lower courts, the Tenth Circuit granted relief in Lonnie Wright Richie v. Workman as "[I]t was unreasonable for the OCCA to decide that the evidence did not support a jury instruction on second-degree depraved-mind murder." The Alabama Supreme Court in Ex parte Robert Shawn Ingram reverses on postconviction appeal and remands as the State's proffered order, subsequently adopted by the trial court, was not properly reviewed by the court below.

Last week, the Supreme Court heard Magwood v. Patterson, an Alabama death penalty case addressing how to handle sentencing issues in capital cases that work their way through the federal habeas system after the prior vacateur of a death sentence. The transcript is in Adobe .pdf format. The New York Times reports, "Court Weighs Timing of Death Row Appeal."

In the news, DPIC notes:

The Georgia Supreme Court ruled on March 25 that the capital prosecution of Jamie Ryan Weis could proceed despite the defendant's claims that a lack of state funding for capital defense has deprived him of effective representation and a speedy trial. Weis, who was arrested 4 years ago, was first appointed two defense lawyers with death penalty experience but the agency that funds defense lawyers in capital cases could not pay them. They were replaced by salaried public defenders who subsequently asked to withdraw, saying that they did not have the time, funds or qualifications to pursue a death penalty case. Weis argued that he should have had the first legal team and would not work with the second. In the two years since the representation has bogged down, Weis's mother, who was expected to testify on his behalf, passed away. The majority opinion said that much of the delay in the case was due to the defendant's actions. Justice Hugh Thompson, dissenting with two other justices, wrote that the Constitution requires that Weis receive a “vigorous defense,” and that Georgia “cannot shirk this responsibility because it is experiencing budgetary constraints.” He wrote further, “The State should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.” Stephen Bright of the Southern Center for Human Rights, who is working on Weis's appeal, said the public defenders “are so overwhelmed they can’t possibly represent Jamie Weis

Elsewhere, Nebraska lawmakers split 22-22 Thursday on authorizing a $50,000 study of what it costs to have a death penalty in Nebraska, leaving the question of taxpayer costs unanswered for the time being. In Maryland a death penalty expansion bill sought by Md. Senate president seems derailed. The federal lawsuit that delayed all Delaware execution is heading to the U.S. Supreme Court.

As always, thanks for reading. -k

Pending Executions

March

30 Franklin Alix* (Texas)

April

12 Don William Davis* (Ark)

20 Samuel Bustamante* (Texas)

20 Daryl Durr* (Ohio)

22 William Berkley* (Texas)

May

4 Stacey Eugene Johnson* (Ark)

12 Kevin Varga* (Texas)

13 Michael Beuke* (Ohio)

13 Billy Galloway* (Texas)

19 Marlon Duane Kiser* (Tenn)

20 Darick Walker* (VA)

25 John Alba* (Texas)

Stays

March

9 David Johnston* (FL)

16 Jack Harold Jones Jr.* (Ark)

24 Hank Skinner* (Texas)

April

8 Richard Smith* (Ok)

Executions

March

2 Michael Sigala* (Texas)

16 Lawrence Reynolds* (Ohio)

18 Paul Warner Powell* (VA)

SCOTUS

• Henry Skinner v. Switzer, No. 09-9000 (09A743) (3/24/2010) Grant of stay to determine issues relating to the availability of DNA testing under sec. 1983.

Week of March 22, 2010: In Favor of the Accused or Condemned (initial list)

• Lonnie Wright Richie v. Workman, 2010 U.S. App. LEXIS 6210 (10th Cir 3/25/2010) Death sentence set aside. "[I]t was unreasonable for the OCCA to decide that the evidence did not support a jury instruction on second-degree depraved-mind murder. The OCCA’s affirmance of the denial of the lesser-included instruction was an unreasonable application of the law clearly established by the Supreme Court in Beck" Relief denied on "jury bias regarding his failure to testify."
• Ex parte Robert Shawn Ingram (In re: Robert Shawn Ingram v. State of Alabama), 2010 Ala. LEXIS 45 (Ala 3/19/2010) "In the simplest terms, the patently erroneous nature of the statements regarding the trial judge's "personal knowledge" and observations of Ingram's capital-murder trial undermines any confidence that the trial judge's findings of fact and conclusions of law are the product of the trial judge's independent judgment and that the June 8 order reflects the findings and conclusions of that court."

Week of March 22, 2010: In Favor of the State or Government (initial list)

• United States v. Benjamin Raymond, 2010 U.S. App. LEXIS 6115 (10th Cir 3/24/2010)(unpublished) "The United States appeals the district court's decision to dismiss an indictment charging Defendant-Appellee Benjamin Raymond with several violent crimes allegedly undertaken as part of his membership in the Aryan Brotherhood. The district court dismissed the indictment after finding that an earlier plea agreement between Raymond and the United States precluded the United States Attorney's Office for the District of New Mexico from pursuing these charge."
• Jeffrey Williams v. Thaler, 2010 U.S. App. LEXIS 5999 (5th Cir 3/23/2010) "In a capital habeas matter, a denial of a certificate of appealability is affirmed where: 1) the district court lacked jurisdiction to entertain a second or successive habeas application because petitioner failed to move in the appropriate court of appeals for an order authorizing the district court to consider the application; 2) petitioner did not demonstrate that a Texas court would hear the merits of his third application for post-conviction relief on the grounds of unavailability of the factual basis of his claim; 3) petitioner failed to demonstrate that reasonable jurists would debate whether executing petitioner would result in a fundamental miscarriage of justice; and 4) petitioner did not convince the court of appeals, by clear and convincing evidence, that the state's discovery violations prevented him from fully and fairly presenting his case." [via FindLaw]
• Jeffrey Sharp v. State, 2010 Ga. LEXIS 273 (Ga 3/22/2010) "Defendant's due process rights were not violated when the State crime lab lost a condom found 150 feet from the crime scene before the bodily fluids in it could be tested because defendant failed to show both that it was apparent that the condom would contain evidence of exculpatory value and that the State acted in bad faith in losing it." [via LexisOne] Other issues include, eyewitness identification (out of court procedures), descriptions of the corpse when first discovered, comment on Sharp’s right to remain silent during closing argument, misleading testimony of the state's forensic expert, and admission of certain photographic evidence.
• Hall v. Christophr Lewis, 2010 Ga. LEXIS 270 (Ga 3/22/2010) Habeas relief granted by the trial court on both guilt and penalty issues. State only appealed the guilt phase grant of relief. "Habeas court erred in granting relief to a petitioner on his malice murder conviction on the basis of ineffective assistance of counsel, because counsel's defense theory of innocence was not unsupported by the evidence, and there was no evidence of sudden passion supporting a proposed theory of voluntary manslaughter under O.C.G.A. § 16-5-2(a)." [via LexisOne]
• Jamie Ryan Weis v. State, 2010 Ga. LEXIS 277 (Ga 3/25/2010) (dissent) "In a 4-3 ruling the Georgia Supreme Court said the state did not violate Jamie Ryan Weis’ right to a speedy trial. Mr. Weis had been without lawyers for two years because the state lacked the funds to pay for his defense.Writing for the majority, Justice Melton said the trial court was correct to appoint local public defenders, in spite of the fact that one of these attorneys had a caseload exceeding four hundred and had not maintained the certification necessary to defend death penalty cases. Writing in dissent, Justice Thompson stated, 'If the state wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and vigorous defense. The state cannot shirk this responsibility because it is experiencing budgetary constraints.' Justice Thompson added, 'The bottom line is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.'" [via Richard A. Grossman]
• State v. Clarence Fry, 2010 Ohio 1017; 2010 Ohio LEXIS 726 (Ohio 3/23/2010) "In rejecting all 20 allegations of trial court error raised by Fry as grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment, the Court denied Fry’s claims that three counts in the grand jury indictment returned against him, including one death penalty specification, were defective for failure to state a required guilty mental state (mens rea).. . . The Court also rejected claims that the trial court violated Fry’s Sixth Amendment right to confront witnesses against him by admitting “hearsay” testimony in which a police officer, a nurse and a victim-assistance advocate testified at trial regarding statements made to them by Hardison after the July 18 domestic violence incident that caused her to file assault and aggravated menacing charges against Fry.. . . Among the other assignments of error, the Court also overruled Fry’s claim that his death sentence must be set aside because the trial judge filed the sentencing order in his case before allowing Fry to address the court" [Ohio Clerk of Court's Office]
• State v. Donald Lavell Craig, 2010 Ohio 1169; 2010 Ohio App. LEXIS 975 (Ohio App 9th 3/24/2010) Postconviction relief denied on appeal on issues relating to failure to permit discovery, funding experts, and ineffective assistance of counsel (trial court chose wrong standard to examine claims, failure to investigate and present, use of experts (cultural, DNA & neurological), as well as "lead counsel’s substance abuse, disciplinary investigation, and, ultimately, his arrest").
• Ruben Gutierrez v. State, 2010 Tex. Crim. App. LEXIS 99 (Tex. Crim. App. 3/24/2010) "Because an order denying appointed counsel under Tex. Code Crim. Proc. Ann. art. 64.01(c) [relating to access to DNA testing] was not an immediately appealable order under Tex. R. App. P. 25.2(a)(2), defendant's appeal was dismissed because appellate court did not have jurisdiction to consider defendant's claim that the trial judge erred in denying his request for appointed counsel." [via LexisOne]

Week of March 15, 2010: In Favor of the Accused or Condemned

• Justin Anderson v. State, 2010 Ark. 138; 2010 Ark. LEXIS 167 (Ark 3/18/2010).Ordering rebriefing in light of "woefully" thin argument.

Week of March 15, 2010: In Favor of the State or Government

• David Ghent v. Wong, 2010 U.S. App. LEXIS 5778 (9th Cir 3/19/2010) (unpublished) "Ghent [appeals] the district court's determination that the work product of certain mental health experts who testified on Ghent's behalf would be subject to discovery. The State intends to make use of matters so discovered in a new sentencing proceedings in state court. For the following reasons, we affirm."
• United States v. Carlos David Caro, 2010 U.S. App. LEXIS 5511 (4th Cir 3/17/2010) (dissent) "Conviction of defendant for first degree murder of an inmate and sentence to death under the Federal Death Penalty Act is affirmed and defendant's various challenges rejected where: 1) while several possible errors are recognized, they were not widespread or prejudicial enough to have fatally infected defendant's trial or sentencing hearing; 2) the proceeding adhered to fundamental fairness; 3) each aggravating factor determined by the jury was well supported by the record; and 4) cumulative error could not have caused the jury to weigh the sentencing factors any differently. " [via FindLaw]
• Cleve Foster v. Thaler, 2010 U.S. App. LEXIS 5394 (5th Cir 3/15/2010) (unpublished) COA and relief denied on failure to adequately investigate, a challenge to the Texas statutory scheme giving "mixed signals" and nine procedurally defaulted claims that were not discussed on the merits.
• In re Paul Ezra Rhoades, 2010 Ida. LEXIS 52 (Ida 3/17/2010) Adopting the SCOTUS's holding in Teague to "conclude that Ring is not retroactive under Idaho law."
• Charles Raby v. Livingston, 2010 U.S. App. LEXIS 5411(5th Cir 3/15/2010) "In a 42 U.S.C. section 1983 action alleging that Texas' method for lethal injection violated plaintiff-death row inmate's right to be free of cruel and unusual punishment, summary judgment for defendants is affirmed where: 1) difficulty in starting an IV in the arm of inmates who had destroyed their veins through drug use was not indicative of a failure to adhere to the execution procedure; 2) there were no constitutional issues with regard to the monitoring of the inmate's appearance for visible signs that the inmate was awake following a sodium thiopental injection; and 3) plaintiff failed to establish that the Texas lethal injection protocol created a demonstrated risk of severe pain. " [via FindLaw]
• People v. Richard Cameron Gamache, 2010 Cal. LEXIS 1914 (Cal 3/18/2010) "A capital murder case, the trial court did not err during the penalty phase in redacting statements made by defendant to mental health experts that tended to incriminate his codefendants and in concluding that a joint penalty trial could still proceed." [via LexisOne]
• Eugene McWatters v. State, 2010 Fla. LEXIS 406 (FL 3/18/2010) "Convictions and sentences were affirmed. Given circumstantial evidence of premeditation, appellant's admission that he killed the women and testimony of witnesses who saw appellant with the victims shortly before their disappearances, the evidence was sufficient to support the first-degree murder convictions on the theory of premeditated murder." [via LexisOne]
• Stacey Ian Humphreys v. State, 2010 Ga. LEXIS 227 (Ga 3/15/2010) " Trial court erred in disqualifying for cause a prospective juror who was serving a probationary sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., because he had not been convicted within the meaning of O.C.G.A. § 15-12-163(b)(5). However, this error was not a basis for reversal of defendant's murder convictions or death sentences." [via LexisOne]
• Ex parte Skinner, 2010 Tex. Crim. App. Unpub. LEXIS 145 (Tex. Crim. App. 3/17/2010) (Unpublished) On subsequent writ, attempts to gain access to DNA testing summarily denied.
• Robert Carl Foley v. Commonwealth, 2010 Ky. LEXIS 53 (Ky 3/18/2010)* Relief as to declaratory judgment denied. "The gist of Foley's argument is that our Constitution identifies self-defense as a right, but was treated by the self-defense statues in effect at the time of his trial as a privilege. He contends that the "castle doctrine" as now codified in KRS 503.055 represents a proper implementation of the constitutional right, and illustrates the unconstitutionality of the self-defense provisions in effect at the time of his trial."
• Robert Carl Foley v. Commonwealth, No.2008-SC-000909-TG (Ky 3/18/2010) (unpublished) * Relief denied on attempts to reopen prior postconviction/new trial motion based upon need for "expert witness funding for a ballistics expert and social worker expert because of a change in the law since his original [postconviction] case was decided."

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