The Supreme Court this past week favorably decided Miller-el v. Cockrell. The issue in Miller-el was quite narrow, what showing must a habeas petitioner show in order to receive a Certificate of Appealability or COA. Reaffirming the near de minimis showing that a petitioner must show in order to receive a COA the Court notes sternly, and in apparent sharp rebuke to the Fifth Circuit's recent rubber stamping of numerous death verdicts: "Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief."

Other notable cases of the week include Towery v. Arizona. In Towery the Arizona Supreme Court borrows adopts the United States Supreme Court's holding in Teague v. Lane relating to retroactivity as operative as a rule of state criminal procedure. Using the Teague retroactivity analysis the Towery Court holds that Ring v. Arizona does not apply retroactively to final cases.

The other hot listed case is Flowers v. Mississippi. In Flowers the Mississippi Supreme Court reverses as "the prosecution went far beyond the realm of admissible evidence in this case in order to improperly enhance the likelihood of a conviction of Flowers." The reason that this case is considered "hot," however, is the emphasis by the Flowers Court that the prosecution's flagrant use of inadmissible evidence has unnecessarily increased the pain of the victims' families by forcing a retrial and the Flowers Court's statement that inappropriate conduct that may guarantee a conviction below will surely be reversed by that court on appeal.

In other cases in the Colorado Supreme Court holds in Woldt v. Colorado "that the three-judge panel penalty statute [ ] is unconstitutional on its face" following Ring. The South Carolina Supreme Court in South Carolina v. Haselden holds the trial court in refusing to instruct the jury that if sentenced to life imprisonment he would be ineligible for parole committed reversible error. In Clay v. United States the United States Supreme Court held unanimously that for purposes of the one-year limitation of 28 U.S.C. section 2255, a judgment of conviction becomes final when the time expires for filing a petition for certiorari. The Second Circuit in United States v. Orlandez-Gamboa refuses relief on the suppression of the government's evidence of statements made by the defendant to Colombian prosecutors in the course of plea negotiations. Finally, in In re Boston Herald, Inc., v. Connolly the First Circuit holds in a case of first impression that there is no right of the press to documents submitted by a criminal defendant to show financial eligibility for CJA funds and even assuming there was, the district court did not abuse its discretion in refusing access.

Focus this week examines the recent "Final Report of the Pennsylvania Supreme Court committee on Racial and Gender Bias in the Justice System," and specifically the chapter on Racial and Ethnic Disparities in the Imposition of the Death Penalty (http://www.courts.state.pa.us/Index/Supreme/BiasCmte/FinalReport.ch6.pdf). The introduction and the conclusion of that chapter are repeated below. Most striking is the call for a moratorium, a Racial Justice Act, and a desperately needed overhaul of how the Commonwealth handles its death penalty cases.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

HOT LIST

Towery v. Arizona, 2003 Ariz. LEXIS 16 (Az 2/26/2003) Ring v. Arizona does not apply retroactively to final cases.

P6 Several principles have shaped the United States Supreme Court's retroactivity jurisprudence, which Arizona courts have adopted and follow. State v. Slemmer, 170 Ariz. 174, 181-82, 823 P.2d 41, 49 (1991) (deciding to adopt and to apply federal retroactivity analysis). New constitutional rules apply to cases on direct review. Griffith v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708, 713, 93 L. Ed. 2d 649 (1987). The Constitution, however, neither forbids nor demands retroactive application of new rules to cases that have become final. Generally, under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality), and Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) (per curiam), new constitutional rules do not apply retroactively.

A.

P7 Determining [*9] whether a rule applies retroactively under the Teague framework involves a three-part analysis. United States v. Sanders, 247 F.3d 139, 146-47 (4th Cir. 2001). First, the court must determine whether the petitioner's case has become final. The second step essentially involves two inquiries: Is the rule that the petitioner asserts a new rule, and is the new rule substantive or procedural? Petitioners whose cases have become final may seek the benefit of new substantive rules. Bousley v. United States, 523 U.S. 614, 620, 118 S. Ct. 1604, 1610, 140 L. Ed. 2d 828 (1998) (explaining that Teague does not apply to substantive rules). A new constitutional rule of criminal procedure, however, usually does not apply retroactively to collateral proceedings. Teague, 489 U.S. at 310, 109 S. Ct. at 1075. Therefore, the court must finally determine whether the new rule fits within one of two narrow exceptions that permit retroactive application of a new rule of criminal procedure.

B.

P8 A defendant's case becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a [*10] petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, 479 U.S. at 321 n.6, 107 S. Ct. at 712 n.6. The trial courts entered a judgment of conviction and a death sentence for each of these petitioners. This court affirmed each petitioner's death sentence on his automatic direct appeal. Murray, 194 Ariz. 373, 982 P.2d 1287; Mann, 188 Ariz. 220, 934 P.2d 784; Towery, 186 Ariz. 168, 920 P.2d 290; McKinney, 185 Ariz. 567, 917 P.2d 1214. The United States Supreme Court denied petitions for writs of certiorari filed by Mann, Towery, and Murray. Mann v. Arizona, 522 U.S. 895, 118 S. Ct. 238, 139 L. Ed. 2d 169 (1997) (mem.); Towery v. Arizona, 519 U.S. 1128, 117 S. Ct. 985, 136 L. Ed. 2d 867 (1997) (mem.); Murray v. Arizona, 519 U.S. 874, 117 S. Ct. 193, 136 L. Ed. 2d 130 (1996) (mem.). McKinney did not seek review from the Supreme Court, and his time for doing so has expired. This court has issued the direct appeal mandate for each petitioner. Accordingly, each petitioner's case has become final.

C.

P9 Because [*11] the petitioners' cases are final, we next examine whether Ring II announced a new rule and whether the rule is substantive or procedural. A new rule "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301, 109 S. Ct. at 1070. Stated differently, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. Clearly, the Ring II decision breaks new ground because it expressly overruled Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). Ring II, 536 U.S. at , 122 S. Ct. at 2443. In Walton, the Court rejected Walton's argument that the Sixth Amendment demands that a jury, rather than a judge, find the presence of aggravating circumstances and upheld Arizona's capital sentencing statute, the same statute as that struck down in Ring II. 497 U.S. at 647-49, 110 S. Ct. at 3054-55. Because Walton governed at the time the petitioners' cases became final, precedent obviously did not dictate the holding of Ring II. Moreover, Ring II's holding [*12] that a jury must decide whether any aggravating circumstances exist also imposes a new burden on the state. Thus, we conclude that Ring II constitutes a new rule.

P10 Because Ring II announced a new rule, determining whether it applies retroactively largely turns on whether Ring II established a substantive or procedural rule. See Santana-Madera v. United States, 260 F.3d 133, 138 (2d Cir. 2001). Substantive rules determine the meaning of a criminal statute. See Bousley, 523 U.S. at 620, 118 S. Ct. at 1610. Decisions announcing substantive rules often address the criminal significance of certain facts or the underlying prohibited conduct. See Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002). In contrast, procedural decisions set forth fact-finding procedures to ensure a fair trial. Sanders, 247 F.3d at 147.

P11 Petitioners assert that Ring II announced a substantive rule because it determined the essential elements of capital murder in Arizona. They argue that Ring II refined the definition of an element of capital offenses, which is unquestionably a substantive decision. [*13] We disagree. Although the Supreme Court recognized that Arizona's aggravating factors operate as the functional equivalent of an element of a greater offense, Ring II did not announce a substantive rule.

P12 Ring II extends Apprendi's interpretation of the Sixth Amendment to the capital context. 536 U.S. at , 122 S. Ct. at 2432. The Supreme Court specifically described Apprendi as a procedural decision: "The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is." Apprendi, 530 U.S. at 475, 120 S. Ct. at 2354 (emphasis added). The Court explained that New Jersey's policy behind the hate crime sentence enhancement "has no . . . bearing on this procedural question," that is, whether the Sixth Amendment requires a jury to determine if the defendant committed the crime motivated by hate. Id. (emphasis added). Courts addressing Apprendi's retroactivity effect consistently conclude that Apprendi announced a procedural rule. E.g., Curtis, 294 F.3d at 843; McCoy v. United States, 266 F.3d 1245, 1256 (11th Cir. 2001); Sanders, 247 F.3d at 147; [*14] United States v. Richardson, 214 F. Supp. 2d 844, 846 (N.D. Ill. 2002). Logic dictates that if Apprendi announced a procedural rule, then, by extension, Ring II did also. Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (explaining that the Tenth Circuit's conclusion "that Apprendi announced a rule of criminal procedure forecloses Cannon's argument that Ring [II] announced a substantive rule").

P13 In addition, Ring II changed neither the underlying conduct that the state must prove to establish that a defendant's crime warrants death nor the state's burden of proof; it affected neither the facts necessary to establish Arizona's aggravating factors nor the state's burden to establish the factors beyond a reasonable doubt. Instead, Ring II altered who decides whether any aggravating circumstances exist, thereby altering the fact-finding procedures used in capital sentencing hearings.

D.

P14 In the interest of finality, new rules of criminal procedure do not apply retroactively under the Teague framework unless (1) the new rule "places certain kinds of primary, private individual conduct beyond [*15] the power of the criminal law-making authority to proscribe," Teague, 489 U.S. at 307, 109 S. Ct. at 1073 (internal quotation marks and citation omitted) or (2) the rule announced is a watershed rule of criminal procedure that is "implicit in the concept of ordered liberty." Id. at 311, 109 S. Ct. at 1076 (internal quotation marks and citation omitted). Arizona courts are especially concerned with the finality of criminal cases because the Arizona Constitution requires courts to protect the rights of victims of crime by ensuring a "prompt and final conclusion of the case after the conviction and sentence." Ariz. Const. art. II, § 2.1(A)(10).

P15 Ring II clearly does not implicate the first Teague exception. "Ring [II] did not forbid either the criminalization of any conduct or the punishment in any way of any class of defendants." Colwell v. Nevada, 59 P.3d 463, 473 (Nev. 2002); see also United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002) (stating that Apprendi does not implicate the first Teague exception); Sanders, 247 F.3d at 148 (same).

P16 [*16] Accordingly, Ring II does not apply retroactively unless it falls under Teague's second exception. Petitioners argue that Ring II announced a watershed rule of criminal procedure because requiring a jury to determine the existence of aggravating circumstances improves the accuracy of the trial. We disagree.

P17 The Teague watershed exception actually requires two showings. First, "infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction." Tyler v. Cain, 533 U.S. 656, 665, 121 S. Ct. 2478, 2484, 150 L. Ed. 2d 632 (2001) (internal quotation marks and citation omitted) (emphasis added). In addition, "the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Id. Ring II does not satisfy either prong of the watershed exception.

P18 To fall within the second Teague exception, Ring II must impose a "procedure[] without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313, 109 S. Ct. at 1077 (emphasis added). Requiring a jury to determine the existence of aggravating [*17] circumstances does not "increase[] the reliability of the guilt-innocence determination at all because" Ring II does not affect a jury's determination of guilt or innocence. United States v. Moss, 252 F.3d 993, 999 (8th Cir. 2001) (concluding that Apprendi does not qualify under the second Teague exception). Rather, Ring II prohibits a validly convicted defendant from being exposed to the death penalty unless a jury finds the existence of certain aggravating circumstances. See id.

P19 Moreover, we doubt that the pre-Ring II sentencing procedure seriously diminished the likelihood of a fair sentencing hearing. Ring II merely shifts the fact-finding duty from an impartial judge to an impartial jury. See United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (concluding that Apprendi does not qualify under the second Teague exception); Sanders, 247 F.3d at 148 (same). We have no reason to believe that impartial juries will reach more accurate conclusions regarding the presence of aggravating circumstances than did an impartial judge. See Illinois v. Gholston, 772 N.E.2d 880, 886 (Ill. App. Ct. 2002) [*18] (concluding Apprendi is not retroactive and stating it is unlikely a jury would have a "substantially different interpretation of the brutal and heinous nature of the crimes committed than the circuit judge"); see also Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (holding that United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), which held that materiality is a jury question, is not retroactive); United States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997) (same).

P20 Even if Ring II seriously improved the reliability of a defendant's conviction, the decision still would not apply retroactively to final cases. To come within the purview of the second Teague exception, a rule "must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S. Ct. 2822, 2831, 111 L. Ed. 2d 193 (1990) (explaining that preserving accuracy "looks only to half of" Teague's second exception). Only a "small core of rules requiring observance of those procedures [*19] that . . . are implicit in the concept of ordered liberty" reach this watershed magnitude. Graham v. Collins, 506 U.S. 461, 478, 113 S. Ct. 892, 903, 122 L. Ed. 2d 260 (1993) (internal quotation marks and citation omitted). In other words, a rule "must implicate the fundamental fairness of the trial." Teague, 489 U.S. at 312, 109 S. Ct. at 1076.

P21 We agree with the Fifth Circuit Court of Appeals that "one can easily envision a system of 'ordered liberty' in which certain elements of a crime can or must be proved to a judge, not to the jury." Shunk, 113 F.3d at 37 (holding that Gaudin does not apply retroactively). Indeed, several Supreme Court opinions support the conclusion that the right to a jury determination on the existence of aggravating circumstances does not involve a procedure so "implicit in the concept of ordered liberty" as to constitute a watershed rule. Teague, 489 U.S. at 311, 109 S. Ct. at 1076.

P22 In Ring II, the Court explained that "the Sixth Amendment jury trial right . . . does not turn on the relative rationality, fairness, or efficiency of potential factfinders. [*20] " 536 U.S. at , 122 S. Ct. at 2442 (emphasis added). Moreover, the Court declined to make Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), retroactive. DeStefano v. Woods, 392 U.S. 631, 633, 88 S. Ct. 2093, 2095, 20 L. Ed. 2d 1308 (1968) (per curiam). Duncan held that the basic Sixth Amendment right to a jury trial applies to the states through the Fourteenth Amendment. 391 U.S. at 147-58, 88 S. Ct. at 1446-52. Although DeStefano preceded Teague, the Court's reasoning remains relevant under the Teague framework. The Court stated, "We would not assert, however, that every criminal trial - or any particular trial - held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury." DeStefano, 392 U.S. at 634-35, 88 S. Ct. at 2095 (quoting Duncan, 391 U.S. at 158, 88 S. Ct. at 1452).

P23 The Supreme Court's decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), further supports our conclusion that Ring II does not constitute a watershed [*21] rule of criminal procedure. A jury convicted Neder of violating various tax, mail, and fraud statutes. Id. at 6, 119 S. Ct. at 1832. The judge, however, did not instruct the jury on the element of materiality, and the judge actually made the necessary finding of materiality. Id. After Neder's conviction but before Neder's case became final, the Court held in United States v. Gaudin, 115 S. Ct. 2310, 515 U.S. 506, 132 L. Ed. 2d 444 (1995), that a jury must determine the question of materiality. In Neder, the Supreme Court recognized that the judge's failure to instruct and submit the element to the jury violated the Sixth Amendment but held that the error was subject to a harmless error analysis. Id. at 8-15, 119 S. Ct. at 1833-37. Moreover, holding that the failure to submit an element to a jury did not constitute a structural error, the Court necessarily concluded that "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair." Id. at 9, 119 S. Ct. at 1833.

P24 The petitioners' cases are similar to Neder's in that the judge did not submit the aggravating circumstance [*22] element to the jury. Consequently, it would be inconsistent with Neder to now find that Ring II is a watershed rule that "implicate[s] the fundamental fairness of the trial." Teague, 489 U.S. at 312, 109 S. Ct. at 1076; see, e.g., Sanders, 247 F.3d at 148-49 (relying on Neder to determine that Apprendi is not a watershed rule of criminal procedure); United States v. Gibbs, 125 F. Supp. 2d 700, 705-07 (E.D. Pa. 2000) (same).

P25 The new rule of criminal procedure announced in Ring II thus does not meet either of the exceptions to Teague's general rule that new rules do not apply retroactively to cases that have become final.

E.

P26 Although most courts have adopted Teague's plurality analysis to determine whether a new rule applies retroactively, Arizona also follows the analysis of Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) (per curiam). Slemmer, 170 Ariz. at 182-83, 823 P.2d at 49-50. Under the Allen framework, courts weigh three factors to determine if a rule applies retroactively to final cases: "(a) the purpose to [*23] be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." 478 U.S. at 258, 106 S. Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 643, 104 S. Ct. 1338, 1341, 79 L. Ed. 2d 579 (1984)).

P27 We regard DeStefano as particularly persuasive because the Court applied these same three factors to conclude that Duncan, which applied the Sixth Amendment right to a jury to the states through the Fourteenth Amendment, did not apply retroactively. DeStefano, 392 U.S. at 633-34, 88 S. Ct. at 2095-96. If the basic right to a jury trial does not apply retroactively, then a right to a jury determination of aggravating circumstances that function essentially as elements of a greater offense also does not apply retroactively.

P28 With respect to the purpose the new rule serves, the Court explained, "retroactive effect is 'appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials.'" Allen, 478 U.S. at 259, 106 S. Ct. at 2880 [*24] (quoting Solem, 465 U.S. at 643, 104 S. Ct. at 1342). We concluded in our preceding Teague analysis that the Ring II holding is not designed to improve accuracy. See supra PP18-19. Thus, the first Allen factor does not support applying Ring II retroactively.

P29 Similarly, the justice system's good faith reliance on Walton v. Arizona weighs against retroactivity. In Walton, the Court expressly approved of Arizona's system in which the judge, not the jury, determined the presence of aggravating circumstances. 497 U.S. at 647-49, 110 S. Ct. at 3054-55. Moreover, the Court reaffirmed Walton's continued viability in Apprendi. 530 U.S. at 496-97, 120 S. Ct. at 2366. Certainly the Arizona justice system acted in good faith in applying the holding of Walton until the Court overruled its decade-old decision.

P30 Finally, applying Ring II retroactively would greatly disrupt the administration of justice. As recognized previously, courts must protect a victim's rights by ensuring "prompt and final conclusion of the case after the conviction and sentence." Ariz. Const. art. II, § 2.1(A)(10). [*25] Arizona has approximately ninety prisoners on death row whose cases have become final and who received a sentence based upon the aggravating circumstances found by the trial judge and affirmed on appeal. Conducting new sentencing hearings, many requiring witnesses no longer available, would impose a substantial and unjustified burden on Arizona's administration of justice. As in DeStefano, "the values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons" sentenced to death "by procedures not consistent with the Sixth Amendment right to jury trial." 392 U.S. at 634, 88 S. Ct. at 2095. Moreover, vacating those prisoners' sentences without substantial justification would violate this court's duty under the Victims' Bill of Rights. Accordingly, we conclude that Ring II does not apply retroactively under Allen

Flowers v. Mississippi, 2003 Miss. LEXIS 67 (MS 2/20/2003) "Notwithstanding the State's position that the fact that this was a circumstantial evidence case required the presentation of extensive evidence to the jury not just on [this victim], but also on the other three victims as well, the prosecution went far beyond the realm of admissible evidence in this case in order to improperly enhance the likelihood of a conviction of Flowers for the capital murder of [this victim]. Had the prosecution only heeded the 1895 admonition of this Court in Hill, and the long-standing decisions of this Court regarding admissibility of evidence, it would have greatly increased its chances of having not only a conviction and sentence, but also an "affirmed" conviction and sentence."

The State had more than ample evidence with which to try its case against Flowers. It is the duty of the State to provide each defendant with a fair trial, not to engage in tactics which mirror "prosecution overkill." This Court, more than 100 years ago, laid out a simple roadmap for the prosecution of criminal cases:

The fair way is the safe way, and the safe way is the best way in every criminal prosecution. The history of criminal jurisprudence and practice demonstrates, generally, [*89] that if everyone prosecuted for crime were fairly and fully conceded all to which he is entitled, and if all doubtful advantages to the state were declined, there would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals.

Johnson v. State, 476 So. 2d 1195, 1215 (Miss. 1985) (citing Hill v. State, 72 Miss. 527, 534, 17 So. 375, 377 (1895)).. . .

This Court and its members do not function in a vacuum. We acknowledge that we cannot begin to fully understand and appreciate the extreme grief experienced by family members and friends of not only Derrick Stewart, but also Bertha Tardy, Robert Golden and Carmen Rigby, because of these senseless murders. These survivors are also victims. Additionally, these victims must suffer the pain of knowing that almost seven years after these murders, no one stands convicted and punished for these brutal killings. Were we to ignore the Hill admonition to be fair -- were we to ignore our well-established and long-standing case law concerning admissibility of evidence -- were we to ignore our decision in Flowers I -- were we to ignore our constitutional oaths -- we could simply turn our heads and affirm Flowers's conviction and sentence of death. However, this we cannot and will not do. We must do that which our allegiance to the law requires us to do. Accordingly, for the reasons stated above, this Court reverses the judgment of the Montgomery County Circuit Court and remands this case to that court for a new trial consistent with this opinion.

SUPREME COURT

Miller-el v. Cockrell, 537 US --- (2/25/2003) Remand and COA ordered on issue of racial animus in jury selection

As mandated by federal statute, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition. 28 U.S.C. § 2253. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge. This is a jurisdictional prerequisite because the COA statute mandates that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. . . .” §2253(c)(1). As a result, until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.

A COA will issue only if the requirements of §2253 have been satisfied. “The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal.” Slack, 529 U.S., at 482; Hohn v. United States, 524 U.S. 236, 248 (1998). As the Court of Appeals observed in this case, §2253(c) permits the issuance of a COA only where a petitioner has made a “substantial showing of the denial of a constitutional right.” In Slack, supra, at 483, we recognized that Congress codified our standard, announced in Barefoot v. Estelle, 463 U.S. 880 (1983), for determining what constitutes the requisite showing. Under the controlling standard, a petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” 529 U.S., at 484 (quoting Barefoot, supra, at 893, n. 4).

The COA determination under §2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.

To that end, our opinion in Slack held that a COA does not require a showing that the appeal will succeed. Accordingly, a court of appeals should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief. The holding in Slack would mean very little if appellate review were denied because the prisoner did not convince a judge, or, for that matter, three judges, that he or she would prevail. It is consistent with §2253 that a COA will issue in some instances where there is no certainty of ultimate relief. After all, when a COA is sought, the whole premise is that the prisoner “ ‘has already failed in that endeavor.’ ” Barefoot, supra, at 893, n. 4.

Our holding should not be misconstrued as directing that a COA always must issue. Statutes such as AEDPA have placed more, rather than fewer, restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners. Duncan v. Walker, 533 U.S. 167, 178 (2001) (“ ‘AEDPA’s purpose [is] to further the principles of comity, finality, and federalism’ ”) (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000)); Williams v. Taylor, 529 U.S. 362, 399 (2000) (opinion of O’Connor, J.). The concept of a threshold, or gateway, test was not the inno-

vation of AEDPA. Congress established a threshold prerequisite to appealability in 1908, in large part because it was “concerned with the increasing number of frivolous habeas corpus petitions challenging capital sentences which delayed execution pending completion of the appellate process … .” Barefoot, supra, at 892, n. 3. By enacting AEDPA, using the specific standards the Court had elaborated earlier for the threshold test, Congress confirmed the necessity and the requirement of differential treatment for those appeals deserving of attention from those that plainly do not. It follows that issuance of a COA must not be pro forma or a matter of course.

A prisoner seeking a COA must prove “ ‘something more than the absence of frivolity’ ” or the existence of mere “good faith” on his or her part. Barefoot, supra, at 893. We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, “[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S., at 484.

B

Since Miller-El’s claim rests on a Batson violation, resolution of his COA application requires a preliminary, though not definitive, consideration of the three-step framework mandated by Batson and reaffirmed in our later precedents. E.g., Purkett v. Elem, 514 U.S. 765 (1995) (per curiam); Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion). Contrary to the state trial court’s ruling on remand, the State now concedes that petitioner, Miller-El, satisfied step one: “[T]here is no dispute that Miller-El presented a prima facie claim” that prosecutors used their peremptory challenges to exclude venire members on the basis of race. Brief for Respondent 32. Petitioner, for his part, acknowledges that the State proceeded through step two by proffering facially race-neutral explanations for these strikes. Under Batson, then, the question remaining is step three: whether Miller-El “has carried his burden of proving purposeful discrimination.” Hernandez, supra, at 359.

As we confirmed in Purkett v. Elem, 514 U.S., at 768, the critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike. At this stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Ibid. In that instance the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable,

or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.

In Hernandez v. New York, a plurality of the Court concluded that a state court’s finding of the absence of discriminatory intent is “a pure issue of fact” accorded significant deference:

“Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding ‘largely will turn on evaluation of credibility.’ 476 U.S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 (1984).” 500 U.S., at 365.

Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations. “[I]f an appellate court accepts a trial court’s finding that a prosecutor’s race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor’s explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.” Id., at 367.

In the context of direct review, therefore, we have noted that “the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal” and will not be overturned unless clearly erroneous. Id., at 364. A federal court’s collateral review of a state-court decision must be consistent with the respect due state courts in our federal system. Where 28 U.S.C. § 2254 applies, our habeas jurisprudence embodies this deference. Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, §2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, §2254(d)(2); see also Williams, 529 U.S., at 399 (opinion of O’Connor, J.).

Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. In the context of the threshold examination in this Batson claim the issuance of a COA can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. It goes without saying that this includes the facts and circumstances that were adduced in support of the prima facie case. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (in action under Title VII of the Civil Rights Act of 1964, employee’s prima facie case and evidence that employer’s race-neutral response was a pretext can support a finding of purposeful discrimination). Only after a COA is granted will a reviewing court determine whether the trial court’s determination of the prosecutor’s neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary. At this stage, however, we only ask whether the District Court’s application of AEDPA deference, as stated in §§2254(d)(2) and (e)(1), to petitioner’s Batson claim was debatable amongst jurists of reason.

C

Applying these rules to Miller-El’s application, we have no difficulty concluding that a COA should have issued. We conclude, on our review of the record at this stage, that the District Court did not give full consideration to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court’s evaluation of the demeanor of the prosecutors and jurors in petitioner’s trial. The Court of Appeals evaluated Miller-El’s application for a COA in the same way. In ruling that petitioner’s claim lacked sufficient merit to justify appellate proceedings, the Court of Appeals recited the requirements for granting a writ under §2254, which it interpreted as requiring petitioner to prove that the state court decision was objectively unreasonable by clear and convincing evidence.

This was too demanding a standard on more than one level. It was incorrect for the Court of Appeals, when looking at the merits, to merge the independent requirements of §§2254(d)(2) and (e)(1). AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence. The clear and convincing evidence standard is found in §2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions. Subsection (d)(2) contains the unreasonable requirement and applies to the granting of habeas relief rather than to the granting of a COA.

The Court of Appeals, moreover, was incorrect for an even more fundamental reason. Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner’s constitutional claims. True, to the extent that the merits of this case will turn on the agreement or disagreement with a state-court factual finding, the clear and convincing evidence and objective unreasonableness standards will apply. At the COA stage, however, a court need not make a definitive inquiry into this matter. As we have said, a COA determination is a separate proceeding, one distinct from the underlying merits. Slack, 529 U.S., at 481; Hohn, 524 U.S., at 241. The Court of Appeals should have inquired whether a “substantial showing of the denial of a constitutional right” had been proved. Deciding the substance of an appeal in what should only be a threshold inquiry undermines the concept of a COA. The question is the debatability of the underlying constitutional claim, not the resolution of that debate.

In this case, the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors. The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members, and only one served on petitioner’s jury. In total, 10 of the prosecutors’ 14 peremptory strikes were used against African-Americans. Happenstance is unlikely to produce this disparity.

The case for debatability is not weakened when we examine the State’s defense of the disparate treatment. The Court of Appeals held that “[t]he presumption of correctness is especially strong, where, as here, the trial court and state habeas court are one and the same.” 261 F.3d, at 449. As we have noted, the trial court held its Batson hearing two years after the voir dire. While the prosecutors had proffered contemporaneous race-neutral justifications for many of their peremptory strikes, the state trial court had no occasion to judge the credibility of these explanations at that time because our equal protection jurisprudence then, dictated by Swain, did not require it. As a result, the evidence presented to the trial court at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time.

In this case, three of the State’s proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged and who did serve on the jury. The prosecutors explained that their peremptory challenges against six African-American potential jurors were based on ambivalence about the death penalty; hesitancy to vote to execute defendants capable of being rehabilitated; and the jurors’ own family history of criminality. In rebuttal of the prosecution’s explanation, petitioner identified two empaneled white jurors who expressed ambivalence about the death penalty in a manner similar to their African-American counterparts who were the subject of prosecutorial peremptory challenges. One indicated that capital punishment was not appropriate for a first offense, and another stated that it would be “difficult” to impose a death sentence. Similarly, two white jurors expressed hesitation in sentencing to death a defendant who might be rehabilitated; and four white jurors had family members with criminal histories. As a consequence, even though the prosecution’s reasons for striking African-American members of the venire appear race neutral, the application of these rationales to the venire might have been selective and based on racial considerations. Whether a comparative juror analysis would demonstrate the prosecutors’ rationales to have been pretexts for discrimination is an unnecessary determination at this stage, but the evidence does make debatable the District Court’s conclusion that no purposeful discrimination occurred.

We question the Court of Appeals’ and state trial court’s dismissive and strained interpretation of petitioner’s evidence of disparate questioning. 261 F.3d, at 452 (“The findings of the state court that there was no disparate questioning of the Batson jurors … [is] fully supported by the record”). Petitioner argues that the prosecutors’ sole purpose in using disparate questioning was to elicit responses from the African-American venire members that reflected an opposition to the death penalty or an unwillingness to impose a minimum sentence, either of which justified for-cause challenges by the prosecution under the then applicable state law. This is more than a remote possibility. Disparate questioning did occur. Petitioner submits that disparate questioning created the appearance of divergent opinions even though the venire members’ views on the relevant subject might have been the same. It follows that, if the use of disparate questioning is determined by race at the outset, it is likely a justification for a strike based on the resulting divergent views would be pretextual. In this context the differences in the questions posed by the prosecutors are some evidence of purposeful discrimination. Batson, 476 U.S., at 97 (“Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose”).

As a preface to questions about views the prospective jurors held on the death penalty, the prosecution in some instances gave an explicit account of the execution process. Of those prospective jurors who were asked their views on capital punishment, the preface was used for 53% of the African-Americans questioned on the issue but for just 6% of white persons. The State explains the disparity by asserting that a disproportionate number of African-American venire members expressed doubts as to the death penalty on their juror questionnaires. This cannot be accepted without further inquiry, however, for the State’s own evidence is inconsistent with that explanation. By the State’s calculations, 10 African-American and 10 white prospective jurors expressed some hesitation about the death penalty on their questionnaires; however, of that group, 7 out of 10 African-Americans and only 2 out of 10 whites were given the explicit description.

There is an even greater disparity along racial lines when we consider disparate questioning concerning minimum punishments. Ninety-four percent of whites were informed of the statutory minimum sentence, compared to only twelve and a half percent of African-Americans. No explanation is proffered for the statistical disparity. Pierre v. Louisiana, 306 U.S. 354, 361—362 (1939) (“ ‘The fact that the testimony … was not challenged by evidence appropriately direct, cannot be brushed aside.’ Had there been evidence obtainable to contradict and disprove the testimony offered by petitioner, it cannot be assumed that the State would have refrained from introducing it” (quoting Norris v. Alabama, 294 U.S. 587, 594—595 (1935))). Indeed, while petitioner’s appeal was pending before the Texas Court of Criminal Appeals, that court found a Batson violation where this precise line of disparate questioning on mandatory minimums was employed by one of the same prosecutors who tried the instant case. Chambers v. State, 784 S. W. 2d 29, 31 (Tex. Crim. App. 1989). It follows, in our view, that a fair interpretation of the record on this threshold examination in the COA analysis is that the prosecutors designed their questions to elicit responses that would justify the removal of African-Americans from the venire. Batson, supra, at 93 (“Circumstantial evidence of invidious intent may include proof of disproportionate impact… . We have observed that under some circumstances proof of discriminatory impact ‘may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds’ ”).

We agree with petitioner that the prosecution’s decision to seek a jury shuffle when a predominate number of African-Americans were seated in the front of the panel, along with its decision to delay a formal objection to the defense’s shuffle until after the new racial composition was revealed, raise a suspicion that the State sought to exclude African-Americans from the jury. Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney’s Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past. App. 788 (noting that a prosecutor admitted to requesting a jury shuffle “because a predominant number of the first six, eight or ten jurors were blacks”). Even though the practice of jury shuffling might not be denominated as a Batson claim because it does not involve a peremptory challenge, the use of the practice here tends to erode the credibility of the prosecution’s assertion that race was not a motivating factor in the jury selection.

Finally, in our threshold examination, we accord some weight to petitioner’s historical evidence of racial discrimination by the District Attorney’s Office. Evidence presented at the Swain hearing indicates that African-Americans almost categorically were excluded from jury service. Batson, 476 U.S., at 94 (“Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the ‘result bespeaks discrimination.’ ”); Vasquez v. Hillery, 474 U.S. 254, 259 (1986) (“As early as 1942, this Court rejected a contention that absence of blacks on the grand jury was insufficient to support an inference of discrimination, summarily asserting that ‘chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more’ ” (quoting Hill v. Texas, 316 U.S. 400, 404 (1942))); Hernandez v. Texas, 347 U.S. 475, 482 (1954) (“But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years”). Only the Federal Magistrate Judge addressed the import of this evidence in the context of a Batson claim; and he found it both unexplained and disturbing. Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the District Attorney’s Office in the past was suffused with bias against African-Americans in jury selection. This evidence, of course, is relevant to the extent it casts doubt on the legitimacy of the motives underlying the State’s actions in petitioner’s case. Even if we presume at this stage that the prosecutors in Miller-El’s case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it. Both prosecutors joined the District Attorney’s Office when assistant district attorneys received formal training in excluding minorities from juries. The supposition that race was a factor could be reinforced by the fact that the prosecutors marked the race of each prospective juror on their juror cards.

In resolving the equal protection claim against petitioner, the state courts made no mention of either the jury shuffle or the historical record of purposeful discrimination. We adhere to the proposition that a state court need not make detailed findings addressing all the evidence before it. This failure, however, does not diminish its significance. Our concerns here are heightened by the fact that, when presented with this evidence, the state trial court somehow reasoned that there was not even the inference of discrimination to support a prima facie case. This was clear error, and the State declines to defend this particular ruling. “If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ” Batson, supra, at 98 (quoting Norris, 294 U.S., at 598).

To secure habeas relief, petitioner must demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was “objectively unreasonable” in light of the record before the court. The State represents to us that petitioner will not be able to satisfy his burden. That may or may not be the case. It is not, however, the question before us. The COA inquiry asks only if the District Court’s decision was debatable. Our threshold examination convinces us that it was.

Clay v. United States, 537 US -- (03/04/2003) The United States Supreme Court held unanimously that for purposes of the one-year limitation of 28 U.S.C. section 2255, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction. The district court denied Clay’s motion as time-barred and the Court of Appeals for Seventh Circuit affirmed, holding that federal prisoners who do not seek certiorari with the Supreme Court will have their period of limitations begin to run on the date the court issues the mandate on the criminal appeal. The United States Supreme Court reversed and remanded, holding that a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction, and the one-year limitation begins to run at that time.

CAPITAL CASES ( Favorable Disposition)

Woldt v. Colorado; Martinez v. Colorado, 2003 Colo. LEXIS 118 (Colo 2/24/2003) Pursuant to Ring v. Arizona "the three-judge panel penalty statute, section 16-11-103, 6 C.R.S. (2000), is unconstitutional on its face."

South Carolina v. Haselden, 2003 S.C. LEXIS 34 (SC 2/18/2003) The trial court erred, at sentencing, in refusing to instruct the jury that if sentenced to life imprisonment he would be ineligible for parole.

CAPITAL CASES ( Unfavorable Disposition)

Johnson v. Kentucky, 2003 Ky. LEXIS 21 (Ky 2/20/2003) "Appellant has presented twenty-six separate claims of error, but among them there is considerable overlap. Four separate claims are presented as to the alleged lack of a factual basis to support the guilty pleas even though Appellant's crimes all arose from a single set of operative facts. Various issues are raised with respect to the validity of Appellant's guilty pleas, and his waiver of jury sentencing is attacked repeatedly, despite the fact that he insisted he had a right to waive jury sentencing even before this Court. Finally, Appellant makes certain "boiler plate" arguments settled by this Court in prior decisions."

Overstreet v. Indiana, 2003 Ind. LEXIS 167 (Ind 2/24/2003) Relief denied on the admission of evidence over claims of spousal privilege; defective search warrants relating to the gathering of evidence; sufficiency of the evidence; jury verdict forms; duplicative aggravators; residual doubt instructions and unanimity instructions.

Lugo v. Florida, 2003 Fla. LEXIS 254 (FL 2/20/2003) Relief denied on claims relating to severance of cases, sufficiency of evidence on RICO claims, statements made by the government in its opening, adverse cross examination by co-defendant, evidence of federal conviction on unrelated charges; evidence of witness bias; numerous Brady violations; state's closing (both phases); trial judges findings as to HAC and CCP; and not finding certain mitigators.

NOTABLE NONCAPITAL CASES

In re Boston Herald, Inc., v. Connolly, 2003 U.S. App. LEXIS 3479 (1st Cir 2/25/2003) "No federal court of appeals, to our knowledge, has considered whether there is a right of access to the narrow category of documents at issue here: those submitted by a criminal defendant to show financial eligibility for CJA funds. We conclude that there is no right of access to this category of documents under either the First Amendment or the common law. Even if there were a common law presumption of access, there was no abuse of discretion in denying access here."

Ho v. Newland, 2003 U.S. App. LEXIS 3454 (9th Cir 2/26/2003) Second-degree murder conviction reversed as the trial court erroneously instructed the jury that the offense was a general-intent crime.

United States v. Orlandez-Gamboa, 2003 U.S. App. LEXIS 3025(2d Cir 2/20/2003) "Appeal from an order suppressing the government's evidence of statements made by the defendant to Colombian prosecutors in the course of plea negotiations. These statements are not rendered inadmissible by Federal Rule of Evidence 410(4) or by the Fifth Amendment. Reversed and remanded."

Carter v. Maryland, 2003 Md. App. LEXIS 16 (Md. App. 2/26/2003) Reversal granted as the state impermissibly used evidence at trial documents that were prepared by appellant and seized from the cell in which he was confined while awaiting trial that related to his defense.

Mickens-Thomas v. Vaughn, 2003 U.S. App. LEXIS 3271 (3rd Cir 2/12/2003) Petitioner, who had been previously been granted clemency by a prior governor only to have his physical release denied by a new incoming governor, granted a parole hearing under the law as it existed at the time of the first governor's action.

FOCUS

Focus this week examines the recent "Final Report of the Pennsylvania Supreme Court committee on Racial and Gender Bias in the Justice System," and specifically the chapter on Racial and Ethnic Disparities in the Imposition of the Death Penalty (http://www.courts.state.pa.us/Index/Supreme/BiasCmte/FinalReport.ch6.pdf). The introduction and the conclusion of that chapter are repeated below. Most striking are the calls for a moratorium, a Racial Justice Act, and a desperately needed overhaul of how the Commonwealth handles death penalty cases.

Few issues have engendered more passionate discourse than the role of the death penalty in contemporary American society. Often central to the debate is the concern for equal justice for those charged with capital murder. Pennsylvania has the nation’s fourth largest death row,1 with 245 inmates currently under sentence of death in the Commonwealth. Although Pennsylvania’s minority population is 11 percent, two-thirds (68 percent) of the inmates on death row are minorities.2 Pennsylvania is second only to Louisiana in the percentage of African Americans on death row.3 While our courts and Legislature are committed in principle to the identification and elimination of discrimination in the administration of the death penalty, little has been done to facilitate a comprehensive study of capital charging and sentencing in Pennsylvania to determine what role, if any, race and ethnicity have played in capital punishment.

The Committee’s goal was to provide a comprehensive framework to identify and, if found, to recommend ways to eliminate racial and ethnic discrimination in the imposition of the death penalty in Pennsylvania. The Committee was guided by the principle of equal justice in furthering this Commonwealth’s long-standing commitment to ensure equal treatment under the law, and the awareness of a growing body of literature that links the enormous financial costs of the death penalty to the failure to afford fair trials to capital defendants.4 Ensuring equal treatment is a principal component of a fair trial.

At the inception of its study of the death penalty, the Committee adopted three working principles. First, issues of racial and ethnic bias cannot be divorced from the issue of poverty. Unless the poor, among whom minority communities are overrepresented, are provided adequate legal representation, including ample funds for experts and investigators, there cannot be a lasting solution to the issue of racial and ethnic bias in the capital justice system. Thus, the Committee also looked at such issues as adequacy of courtappointed counsel for the poor and availability of essential resources for their defense. Second, it was decided that the Committee’s recommendations should be supported, to the extent possible, by empirical data. To this end, the Committee endeavored to collect existing statistical research on the death penalty and, where resources allowed, to undertake additional studies. Third, the Committee concluded that responsibility for ensuring equal justice could not be relegated to a single branch of government. The judicial, legislative, and executive branches should all assume a role in ensuring equal treatment for those charged with a capital offense. The Committee reviewed existing studies on the imposition of the death penalty in Pennsylvania and elsewhere, conducted surveys of county public defender offices and court administrators, reviewed testimony from its public hearings, and used the findings from its study on the indigent defense system.

Based on existing data and studies, the Committee concluded that there are strong indications that Pennsylvania’s capital justice system does not operate in an evenhanded manner.5 At least one county, Philadelphia, has been extensively studied. After controlling for the seriousness of the offense and other non-racial factors, researchers there found that African American defendants were sentenced to death at a significantly higher rate than similarly situated non-African Americans; researchers further concluded that one third of African Americans on death row in Philadelphia County would have received life sentences if they were not African American. Race was also shown to be a major factor in capital jury selection, with the prosecution striking African Americans from the jury twice as often as non-African Americans, and with the defense doing just the opposite. Also, both sides routinely, but to a lesser degree, discriminate on the basis of gender, with the prosecution favoring men and the defense favoring women. The substantial racial impact found in Philadelphia capital cases argues strongly in favor of a large-scale, state-sponsored and state-funded research effort. Not until the Commonwealth undertakes a comprehensive data collection effort and subjects the data to rigorous analysis, can the question of the role of race and ethnicity in capital cases be fully addressed.

The Committee also studied delivery of public defender and courtappointed counsel services to the indigent. To this end, the Committee retained The Spangenberg Group, nationally recognized experts in this field, to review the adequacy of public defender services in Pennsylvania. Using the American Bar Association standards6 as a benchmark, the Committee concluded that delivery of these services is inadequate throughout the Commonwealth. With the exception of Philadelphia, there was a lack of effective standards for appointment of capital counsel.7 No training specific to capital representation is required for attorneys by Pennsylvania counties. No county routinely appoints two lawyers on capital cases. No county effectively monitors performance of capital counsel. There is no statewide Capital Defender or Capital Case Resource Center. All Pennsylvania counties surveyed failed to compensate attorneys adequately and provide sufficient funds for experts and investigators.8 Notably, however, Philadelphia County recently increased funding for court-appointed counsel fees.

The Work Group selected by the Committee to analyze this important issue was composed of criminal justice experts of many outlooks and professions, who were selected on the basis of their expertise, and without regard to their views on the death penalty. Its racially and gender-diverse membership was well-balanced and included current and former prosecutors and criminal defense lawyers, a judge, a police officer and an investigator.

The ability to prove discrimination where it exists is beyond the resources of most capital defendants and an avenue for redress in the courts remains elusive, particularly because federal constitutional doctrine fails to provide an effective remedy for racial and ethnic discrimination. Legislative initiatives that would allow the showing of a pattern and practice of disparate treatment to stand as proof of discrimination have failed. Therefore, to provide a means of proving discrimination, the Committee recommends passage of a Racial Justice Act or comparable legislation, as other states have done, which would permit a prima facie equal protection violation to be established by a statistical showing of disparate treatment.

***

Conclusion

Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty. In order to more effectively identify and eliminate discrimination in capital charging and sentencing, the Commonwealth should commit to a large-scale, ongoing data collection effort that is sufficiently detailed to account for aggravation and mitigation, both statutory and non-statutory, such as the one currently administered by the New Jersey Supreme Court.

There is a significant failure in the delivery of capital counsel services to indigent capital defendants in Pennsylvania, one that disproportionately impacts minority communities. The Commonwealth should adopt minimum qualifications for all court-appointed counsel in capital cases. Providing adequate capital counsel is an indispensable step to preventing discrimination. Likewise, ensuring that qualified and well-trained counsel are provided the necessary resources, such as funds for experts and investigators, and are themselves adequately compensated, is essential to the maintenance of an even-handed capital system.

Local district attorneys should adopt and publicize clear, well-defined standards for seeking the death penalty and ensure that defense counsel has an opportunity to argue and present evidence as to why the death penalty should not be sought.

Finally, the Legislature should enact a Racial Justice Act to permit proof of an equal protection violation by showing a pattern and practice of discrimination.

RECOMMENDATIONS TO THE SUPREME COURT OF PENNSYLVANIA

The Committee recommends that the Court:

1. Pursuant to its inherent power to issue temporary stays of execution, declare a moratorium on the imposition of the death penalty in any case where the defendant’s direct appeal has resulted in affirmation by the Supreme Court of Pennsylvania, pending the completion of a study investigating the impact of the race of the defendant and of the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. The moratorium should continue until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented.

2. Empanel a special commission to study the impact of the race of the defendant and of the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes.

3. Direct the AOPC, or alternatively appoint a master, to undertake a comprehensive data collection effort covering all stages of capital litigation, including responsibility for completing the data collection instruments and maintaining the database and all supporting documentation. The Court should direct the AOPC, or master, to retain a principal investigator to review data collection efforts undertaken in other states and develop a research design and a plan to implement data collection. The cases to be reviewed should include those in which the death penalty was sought or could have been sought in all cases where the defendant was held for court on first-degree murder or murder generally.

4. Amend Rule 801 (former Rule 352) to require that a copy of the prosecutor’s notice of intention to seek death be filed with the AOPC as well as the trial court to facilitate tracking of death-noticed cases.

5. Amend Rule 632 (former Rule 1107) to require retention of the jury questionnaire utilized at trial, which indicates the race and gender of the jurors, for the duration of the defendant’s incarceration.

6. Mandate statewide standards for an independent appointment process of selecting capital counsel for all stages of the prosecution, including trial, appeal, and post-conviction hearings. The standards, at a minimum, should incorporate those recommended by the American Bar Association in its Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.

7. Require that all capital counsel successfully complete, at a minimum, an annual continuing legal educational component specifically focusing on capital representation.

8. Promulgate reasonable minimum compensation standards for capital counsel throughout Pennsylvania and ensure that sufficient resources for experts and investigators are made available to counsel.

9. Require trial courts during voir dire in capital cases to explore fully, when requested by either party, views about race held by prospective jurors.

10. Promulgate a rule that allows for reasonable latitude by defense counsel and the Commonwealth to explore all potential sources of racial bias in voir dire of prospective capital jurors.

11. Require trial courts to charge capital juries, when requested by either party, that they may not consider the race of the defendant or victim in determining the appropriate sentence for the defendant.

12. Promulgate a rule that should a prima facie case of discrimination in the use of peremptory challenges be established, reasons invoked for the exclusion of the juror that do not substantially relate to his or her qualifications, fitness, or bias shall be viewed as presumptively pretextual.

13. Reduce the number of peremptory strikes in capital cases.

14. Promulgate a jury instruction stating “life means life with no possibility of parole” and require that it be given in all capital cases.

TO THE LEGISLATURE

The Committee recommends that the Legislature:

1. Enact a Racial Justice Act, like that of other states, that allows for the admission of evidence of a pattern and practice of disparate treatment in both the prosecutorial decision to seek the death penalty and in sentencing outcomes.

2. Enact a proportionality provision requiring the Supreme Court to review death sentences for proportionality.

3. Create and adequately fund a statewide independent Capital Resource Center, or its equivalent, to assist in, and where local resources are inadequate, undertake the representation of, capitally charged defendants and those currently under sentence of death. The assistance and/or representation should extend from arrest through trial and, if the defendant is sentenced to death, through the state and federal appeal and post-conviction process. The Capital Resource Center also should be charged with the responsibility of maintaining court appointment lists of qualified capital counsel and of overseeing ongoing training programs for capital counsel.

4. Appropriate adequate funds to the Supreme Court for the administration of a comprehensive data collection effort covering all stages of capital litigation.

5. Enact legislation declaring a moratorium on the death penalty until such time as policies and procedures are implemented to ensure that the death penalty is being administered fairly and impartially throughout the Commonwealth.

TO THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS

The Committee recommends that:

1. District attorney’s offices adopt written standards and procedures for making decisions about whether to seek the death penalty.

2. The Attorney General empanel a statewide committee of county district attorneys to review each decision by a district attorney to seek the death penalty with the goal of ensuring geographic consistency in the application of the death penalty. The committee’s review should commence as soon as possible after each filing of a notice of intention to seek the death penalty, and the result of its review should not be binding. The review committee should include, at a minimum, the Attorney General, the district attorneys of Philadelphia and Allegheny counties and the current president of the Pennsylvania District Attorneys Association, but otherwise be geographically representative of the Commonwealth.

TO THE GOVERNOR OF PENNSYLVANIA

The Committee recommends that the Governor of Pennsylvania:

1. Pursuant to his constitutional authority to grant temporary reprieves, declare a moratorium on the imposition of the death penalty in any case where the defendant’s direct appeal has resulted in affirmation by the Supreme Court of Pennsylvania, pending the completion of a study investigating the impact of the race of the defendant, and of the victim, in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. The moratorium should continue until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented.

2. Empanel a special commission to study the impact of the race of the defendant and the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes.

OTHER RESOURCES

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

Supreme Court's Committee Calls for Moratorium

A report released by the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System recommends that Governor Ed Rendell and state lawmakers enact a moratorium on the death penalty to provide an opportunity to further review the impact of race in death penalty sentences. "Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty," the report states. The Committee, created in 1999, also recommended passage of a Racial Justice Act, statewide standards for prosecutorial discretion, and statewide standards for both trial and appellate lawyers in capital cases. (Associated Press, March 4, 2003) Read the Committee's report. See also DPIC's Report "The Death Penalty in Black & White" concerning

Pennsylvania's death penalty.

County With Most Executions in the U.S. Has "Shoddy" Crime Lab

A December audit of the Houston Police Department's crime lab found that instances of improper lab practices and shoddy record keeping were "so egregious" that the department shut the lab down in January. "The County's lead prosecutor has a moral, if not legal, duty to know that the means by which the state obtains evidence used to send defendants to prison or the death chamber is sound," according to the Houston Chronicle. Of 11 cases reviewed that involved evidence errors warranting retesting, three resulted in death row convictions. The Chronicle stated that, in some of these cases, all of the testable evidence was used up or destroyed during previously mishandled lab work. (Houston Chronicle, February 27, 2003) More executions have taken place involving inmates from Harris County (Houston), Texas than from any other county in the country. See Innocence.

Maryland Senate Committee Backs Moratorium Legislation

The Maryland Senate Judicial Proceedings Committee recently approved legislation to temporarily halt executions in the state. The bill seeks to place a moratorium on executions to give lawmakers an opportunity to evaluate the recent University of Maryland study that revealed racial bias in the state's capital punishment system. The legislation now proceeds to the full Senate for consideration. (Washington Post, March 1, 2003) Read DPIC's testimony before the Maryland Judicial Proceedings Committee. Read the Maryland Study. See also, Race and Recent Legislative Activity.

NEW RESOURCE: New Book About Victims

In "Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty," author Rachel King presents the stories of 10 Murder Victims' Families for Reconciliation members. Throughout the book, King examines the reasons why these survivors choose reconciliation over retribution and why they actively oppose capital punishment. Using first-hand accounts and third-person narrative, King presents the stories in the context of the nation's on-going death penalty debate. King is legislative counsel for the American Civil Liberties Union. (Rutgers Press, 2003) Learn more about the book. See also, Studies, Books and Law Reviews.

NEW RESOURCE: Spangenberg Report Highlights Legislative Developments

The latest edition of The Spangenberg Report is now available. This report highlights legislative changes, studies and important cases regarding indigent defense and capital punishment. (The Spangenberg Report, Volume VII, Issue 4, February 2003) For more information, contact The Spangenberg Group. See also, Studies, Books, and Law Reviews.

Possible Innocence on Alabama's Death Row

Nearly two decades ago, four bullets were the only evidence in the Alabama capital case against Anthony Ray Hinton, who was convicted of two murders and sent to death row. During the trial, Hinton's defense counsel's sole rebuttal to the prosecution's case was the testimony of a legally blind civil engineer who was not able to operate a comparison microscope, machinery that might have provided vital information about their client's innocence. Jurors laughed at the defense expert as he testified. Today, Hinton maintains his innocence, but has nearly exhausted his appeals. He now awaits the decision of an appellate judge who must decide whether he deserves a new trial based on, among other evidence, the testimony of three firearms experts who challenge the ballistic evidence used to convict Hinton. The state has argued that the new evidence is not grounds for a new trial. (New York Times, February 24, 2003) See Innocence.

Supreme Court Rules in Favor of Texas Inmate Claiming Racial Bias

The Supreme Court has issued an 8-1 decision in favor of Thomas Miller-El, a Texas death row inmate who claims that Dallas County prosecutors engaged in racially biased jury selection at the time of his trial in 1986. The Court ruled in Miller-El v. Cockrell that Miller-El should have been given an opportunity to present evidence of racial bias during his federal appeal. The Court sent the case back to a lower court, where Miller-El could be granted a new hearing on his claims. "Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selections," Justice Anthony M. Kennedy wrote. (Associated Press, February 25, 2003)

The decision comes as a another Texas death row inmate is filing a final appeal based, in part, on similar claims of racial bias. Texas is scheduled to execute African-American Delma Banks on March 12, 2003 for the 1980 murder of Richard Whitehead, a white male. During jury selection, prosecutors - who had an established reputation for using race-coded materials during jury selection and for striking the vast majority of potential black jurors - struck four black prospective jurors, thereby assuring an all-white jury. Attorneys for Banks assert that, in addition to the state's demonstrated pattern of racial bias and the failure of Banks' trial attorney to provide an adequate defense, the underlying case against their client depends upon the testimony of two unreliable witnesses who have since recanted their testimony. These errors led a U.S. District Court to order a new sentencing hearing for Banks, who maintains his innocence, but that decision was overturned by the Fifth Circuit. Banks is now seeking relief from the U.S. Supreme Court. See Miller-El v. Cockrell. See also, Race and Supreme Court.

Montana House Committee Approves Bill to Abolish Death Penalty

The Montana House Judiciary Committee approved legislation that would abolish the state's death penalty and replace it with life without parole. During a hearing on the bill, committee members heard no testimony opposing the legislation. The bill, HB 529, was defeated by a vote of 55-45 in the House, but the measure received nine more votes than a similar measure introduced during the state's last legislative session. (Associated Press, February 22, 2003 and Associated Press, February 27, 2003) The Montana vote occurred less than two weeks after New Mexico's House Consumer and Public Affairs Committee supported legislation to repeal that state's death penalty (see below). See also, Recent Legislative Developments.

TRACKING PROGRAM INFORMATION

Tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:

*PCI from the face of the decision a possible claim of actual innocence appears possible.

*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.

*RC from the face of the decision questions about the interplay of race is made.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).