Leading off this edition is Head v. Thomason from the Supreme Court of Georgia. The Thomason Court held that the court below was correct in finding that counsel missed key pieces of evidence in mitigation and relied too much on their subjective belief that the trial judge would never give death. The other reason Head v. Thomason leads the Hot List this week is who won the case, counsel recruited by ABA Death Penalty Representation Project, Matthew H. Feinberg and Matthew A. Kamholtz from Feinberg & Kamholtz in Boston.

The "In Focus" section is a copy of the "Briefbank" materials of the website which have been substantially overhauled in recent weeks. The new brief bank includes search engines that permits searching all briefs filed in the 8th Circuit since 2000, most Florida Supreme Court briefs since (at least) 1998, all Capital Defense Weekly material and the entire online database of motions (capital and noncapital) from the DC Federal Defenders. Also in the new brief bank are ipdated links to the brief banks of (almost) every online death penalty defense organization (available without password), as well as links to litigation guides on a wide variety of subjects. The "Briefbank" (http://www.capitaldefenseweekly.com/briefbank.html) will be a key focus for coming year & if something that should be there is missing please feel free to drop a line at cdw@capitaldefenseweekly.com. Note, the "testy" nature of the search engines contained below are the reason there no hot links in most of this edition.

The United States Supreme Court in a fairly technical plurality opinion in Woodford v. Garceau that can be reduced to simply "McFarland Motion" is not enough for a case to be "pending" before the district court, rather " a case does not become “pending” until an actual application for habeas corpus relief is filed in federal court." Other notable capital cases include Louisiana v. Edwards where the

Finally, this is a critical time in Texas. Texas Defender Service has had several large wins recently but unfortunately TDS has extreme financial difficulties (foundations have not renewed grants, individual donors feel the effects of the economy, vouchers have been slashed, etc.). If you can help with a tax deductible donation please feel free to forward it to Texas Defender Service, 412 Main St, Suite 1150, Houston, TX 77002, or donate online at http://www.texasdefender.org/donations.htm.

The Weekly should be returning to its normal schedule in the coming weeks.

EXECUTION INFORMATION

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

HOT LIST

Head v. Thomason, 2003 Ga. LEXIS 278 (GA 3/24/2003) "Trial counsel failed to investigate Thomason's background adequately and failed to present an effective case in mitigation."

In granting relief, the habeas court noted that the mitigation evidence offered at trial consisted only of Thomason's profession of remorse, his lack of violent tendencies, testimony that he was easily influenced and was always with someone else when he got in trouble, and his mother's mention of his hospitalization at Charter Peachford Hospital for marijuana usage. The habeas court then chronicled the mitigation evidence trial counsel had and did not use n1 and the mitigation evidence trial counsel did not have but which was "readily obtainable through reasonable diligence." n2 The habeas court noted that trial counsel had testified at the hearing that the background information was not used or pursued because they believed it could not be used effectively without an expert and the trial court had denied their request for additional funding for a psychological evaluation. The habeas court found that counsel had not been reasonably diligent in their pursuit of expert assistance, had substantially abandoned Thomason's mitigation case, had unreasonably failed to make use of considerable information in counsel's [*4] possession, made no effort to secure other information readily available, and made no effort to pursue alternative possibilities for securing assistance from the psychiatrist who examined Thomason. Based on those findings, the habeas court found counsel's performance deficient, and further concluded that there was a reasonable probability that the death penalty would not have been imposed if counsel had effectively utilized the available information and resources.

A habeas court's determination on a claim of ineffective assistance of counsel is to be affirmed unless the reviewing court concludes the habeas court's factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. See Head v. Carr, 273 Ga. 613, 616 (544 S.E.2d 409) (2001). Review of the record in this case persuades us that there is evidence to support the trial court's findings and that they are not, therefore, clearly erroneous. It remains our task to consider whether those facts support the legal conclusion that counsel were ineffective and that the ineffectiveness prejudiced Thomason. Id.

Mitigating evidence, "anything that might persuade the jury to impose a sentence less than death," ( Head v. Ferrell, 274 Ga. 399 (554 S.E.2d 155) (2001)), is critical in the sentencing phase of a death penalty trial since "the jury may withhold imposition of the death penalty for any reason, or without any reason." Smith v. Francis, 253 Ga. 782, 787 (325 S.E.2d 362) (1985). We have recognized the importance of mitigating evidence by holding that the permissible scope of such evidence is wide [*7] ( Barnes v. State, 269 Ga. 345 (27) (496 S.E.2d 674) (1998)), and by noting that evidentiary rules are relaxed during the sentencing phase. Smith v. State, 270 Ga. 240 (12) (510 S.E.2d 1) (1998). The test for finding deficient performance of an attorney who is claimed to have been ineffective with regard to mitigating evidence is whether a reasonable lawyer would have acted the way defense counsel did. Head v. Carr, supra, 273 Ga. at 616. An attorney's failure to have a mental health expert review medical records for mitigating evidence can be unreasonable conduct. Turpin v. Lipham, 270 Ga. 208, 216 (510 S.E.2d 32) (1999). In the case at bar, defense counsel knew of two mental health experts who had spent time with Thomason - one a clinical psychologist who testified at the defendant's competency hearing that the defendant has an IQ of 77, and the other a psychiatrist who interviewed the defendant, who told defense counsel he saw in the defendant indications of intellectual impairment, low self-esteem, and depression, to whom defense counsel offered the defendant's school, medical, and institutional records as well [*8] as information about the crime for a forensic evaluation, but to whom the attorney never gave the offered material. In addition to failing to follow through on his promise to give the requested material to the psychiatrist, defense counsel called neither expert to present evidence in mitigation - and then presented none of the mitigatingg evidence the defense had amassed because counsel did not know how to do it without an expert.

Trial counsel recognized the need for expert testimony, yet failed to have the expert who had already conducted an interview with the defendant execute an affidavit for use in securing additional funding for the expert. Instead, trial counsel asked the expert for a letter breaking down the cost of a full forensic psychiatric evaluation of Thomasson. The expert's letter apparently served as the basis for trial counsel's request for an additional $ 25,000 for mental health expert assistance. When trial counsel's efforts to obtain the additional funding were rejected by the trial court, trial counsel never contacted the expert again. In an affidavit submitted at the habeas hearing and relied on by the habeas court, the expert stated he would have worked with [*9] counsel without further funding or for a figure significantly less than that set forth in his letter had that been necessary. The expert noted he could have reduced the cost by utilizing defense team members to conduct interviews rather than conducting them himself and, had he had the materials provided to him by habeas counsel, he would have been able to assist in providing evidence in mitigation. However, trial counsel never contacted the expert again once the request for additional funding was denied. We conclude, given the importance of mitigating evidence in death penalty cases, that an attorney has not acted reasonably when he fails to call mental health experts he knows have mitigating evidence and explains his failure to present lay mitigating evidence by asserting that he had no experts to call.

It is likely that trial counsel's guard was down at the sentencing phase due to counsel's belief that the trial judge who presided over the bench trial would not impose a death sentence. n3 While we agree with the habeas court's determination that trial counsel's advice to Thomason to waive his right to a jury trial based on counsel's erroneous assumptions about the trial judge did [*10] not alone amount to ineffective assistance of counsel, we conclude that counsel's erroneous assumptions and the concomitant feeling of assuredness caused counsel to be less diligent in preparing for the sentencing phase than they would have had they believed they were dealing with a fact-finder who might impose the death penalty.

These circumstances, coupled with counsel's failure to make use of the mitigating evidence and the experts they had, persuade us that the habeas court was correct in its conclusion that there is a reasonable probability that the presentation of the mitigating evidence presented at the habeas hearing would have changed the outcome of the sentencing phase of Thomasson's trial. See Head v. Carr, supra, 273 Ga. at 626. Accordingly, we affirm the grant of a new sentencing trial.

SUPREME COURT

Woodford v. Garceau, 53- U.S.--- (3/25/2003) (plurality holdig) (dissent) A "McFarland Motion" is not enough for a case to be "pending" before the district court, rather " a case does not become “pending” until an actual application for habeas corpus relief is filed in federal court."

Amendments made to 28 U.S.C., ch. 153, by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to cases pending in federal court on April 24, 1996–AEDPA’s effective date. Lindh v. Murphy, 521 U.S. 320. Respondent was convicted of first-degree murder and sentenced to death in California state court. After his petition for state postconviction relief was denied, he moved for the appointment of federal habeas counsel and a stay of execution in Federal District Court on May 12, 1995, and later filed a federal habeas application on July 2, 1996. Although he filed the habeas application after AEDPA’s effective date, the District Court concluded, inter alia, that it was not subject to AEDPA because his motions for counsel and a stay were filed prior to that date. The Ninth Circuit agreed that the application was not subject to AEDPA, but reversed for reasons not relevant here.

Held: For purposes of applying the Lindh rule, a case does not become “pending” until an actual application for habeas relief is filed in federal court. Respondent’s application is subject to AEDPA’s amendments because it was not filed until after AEDPA’s effective date. Pp. 2—8.

(a) Because of AEDPA’s heavy emphasis on the standards governing the review of a habeas application’s merits, the Court interprets the Lindh rule in view of that emphasis. Thus, whether AEDPA applies to a state prisoner turns on what was before a federal court on AEDPA’s effective date. If, on that date, the state prisoner had before a federal court a habeas application seeking an adjudication on the merits of the prisoner’s claims, then AEDPA does not apply. Otherwise, an application filed after AEDPA’s effective date should be reviewed under AEDPA, even if other filings by that same applicant–e.g., a request for the appointment of counsel or a motion for a stay of execution–were presented to a federal court prior to AEDPA’s effective date. A review of the amended chapter 153 supports this conclusion. For example, 28 U.S.C. § 2254(e)(1) provides that, “[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.” (Emphasis added.) Under the Ninth Circuit’s view, that presumption would rarely apply in a capital case, as §2254(e)(1) would be applicable only to those capital prisoners who did not need counsel and did not seek a stay. AEDPA’s text, however, contains no indication that §2254(e)(1) was intended to have such a limited scope. Nor is it reasonable to believe that Congress meant for a capital prisoner to avoid application of §2254(e)(1)’s stringent requirements simply by filing a request for counsel or a motion for a stay before filing an actual habeas application. Finally, the procedural rules governing §2254 cases reinforce the Court’s view. The Federal Rules of Civil Procedure apply in the habeas context to the extent that they are not inconsistent with the Habeas Corpus Rules. Because nothing in the Habeas Rules contradicts Federal Rule of Civil Procedure 3–“[a] civil action is commenced by filing a complaint”–the logical conclusion is that a habeas suit begins with the filing of a habeas application, the equivalent of a complaint in an ordinary civil case. Pp. 2—6.

(b) As the task here is to apply Lindh to an action under chapter 153, respondent’s request to look at provisions in chapter 154 is inapposite. Moreover, his reliance on McFarland v. Scott, 512 U.S. 849, which involved the interpretation of §2251, not §2254, and must be understood in light of the Court’s concern to protect the right to counsel contained in 18 U.S.C. § 848(q)(4)(B), and Hohn v. United States, 524 U.S. 236, which says nothing about whether a request for counsel or motion for a stay suffices to create a “case” that is “pending” within the Lindh rule’s meaning, is misplaced. Pp. 6—7.

275 F.3d 769, reversed and remanded.

Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, and Kennedy, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined.

CAPITAL CASES (Favorable Disposition)

Louisiana v. Edwards, 2003 La. LEXIS 724 (LA 3/21/2003) Remand ordered for a hearing on whether the relator is mentally retarded under Atkins.

Ex parte Jerry Jerome Smith, 2003 Ala. LEXIS 79 (ALA 3/14/2003) Smith was improperly prevented from presenting mitigating evidence.

Harris v. Florida, 2003 Fla. LEXIS 458 (FL 3/27/2003) Error in instructing the jury on a pecuniary gain aggravator was unsupported by the evidence cannot be deemed harmless as to either the advisory sentence or the imposition of the death penalty. The jury was instructed on only two aggravators and insufficient evidence existed to support the pecuniary gain aggravator.

Nebraska v Gales, 2003 Neb. LEXIS 48;265 Neb. 598 (Neb 3/28/2003) Nebraska's prior death penalty statute declared volitive of Ring v. Arizona.

Bryant v. Alabama, 2003 Ala. Crim. App. LEXIS 82 (Ala. Crim. App. 3/21/2003) On remand from the state Supreme Court for an ordered evidentiary hearing as "Bryant was entitled to a new sentencing proceeding because the circuit court's penalty- phase jury instructions implied that the jury could not recommend a penalty of life in prison without the possibility of parole instead of death unless the mitigating circumstances outweighed the aggravating circumstances."

CAPITAL CASES (Unfavorable Disposition)

Beardslee v. Woodford, 2003 U.S. App. LEXIS 5379 (9th Cir 3/20/2003) "The record indicates several constitutional violations, including the court's failure to clarify guilt phase instructions, the court's improper ex parte response to the juror note, and the prosecutor's comments on Beardslee's refusal to testify. Each of these potential errors is harmless . . .."

1

Hopkins v. Cockrell, 2003 U.S. App. LEXIS 5457 (5th Cir 3/20/2003) "Though we are troubled by the state's methods by which it obtained Hopkins' confession, ultimately, we conclude that its admission was harmless in light of the overwhelming amount of circumstantial evidence presented to the jury and the state's limited reliance on the confession. We also are unpersuaded by Hopkins' contention that his counsel was ineffective. Hopkins' counsel was operating under an objectively reasonable trial strategy in selecting the type of mitigating evidence that was presented."

Hain v. Mullin, 2003 U.S. App. LEXIS 5549 (10th Cir 3/21/2003) (unpublished) A "McFarland motion" for appointment of counsel for purposes of clemency does not vest the district court with the power to grant a stay. [Note the subsequent opinion to follow in the next edition]

North Carolina v. Haselden, 2003 N.C. LEXIS 318 (NC 3/28/2003) (dissent) Noting a growing split in the circuits, the North Carolina Supreme Court upholds outside the record references to God & the Bible in closing arguments.

Murphy v. Oklahoma, 2003 OK CR 6;2003 Okla. Crim. App. LEXIS 7 (Okla. Crim. App. 3/21/2003). "The bottom line is that Appellant's adaptive functioning, including schooling and work history, and his 80 I.Q.- calculated with retardation in mind, with complete testing, and at a time when alcoholism should have had no impact on testing-all demonstrate Petitioner is not mentally retarded."

Duke v. Alabama, 2003 Ala. Crim. App. LEXIS 84 (Ala. Crim. App. 3/21/2003) Relief denied on claims related to Ring v. Arizona and proportionality.

Smith v. Missouri, 2003 Mo. LEXIS 47 (3/18/2003) Dismissal of post-conviction petition upheld as petitioner held competent to waive his collateral proceedings.

Ex parte Melvin G. Hodges, 2003 Ala. LEXIS 84 (ALA 3/14/2003) Judicial override provision in Alabama's capital sentencing scheme hold not to violate Apprendi & Ring, as well as, the trial court's error, if any, in restricting mitigating evidence during the penalty phase was harmless because the jurors recommended life imprisonment without parole by a vote of 8-4. I

Ohio v. Mitts, 2003 Ohio LEXIS 611;98 Ohio St. 3d 325; 2003 Ohio 1007 (Ohio 3/19/2003) "Mitts has failed to raise "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal" before the court of appeals"

Banks v. Florida, 2003 Fla. LEXIS 387 (FL 3/20/2003) Relief denied on claims that Florida's death penalty statute is unconstitutional in light of Ring and that "he was denied effective assistance of counsel because counsel failed to seek the assistance of a mental health expert in order to explain the potential mitigating evidence concerning beatings Banks received from his father from the age of three to the age of around eleven or twelve and Banks' abuse of alcohol."

Sallie v. Georgia, 2003 Ga. LEXIS 279 (GA 3/24/2003) Sallie raised numerous issues on appeal, losing on all, including but not limited to the trial court's refusal to excuse six jurors for cause and the introduction of "victim-impact evidence in the guilt-innocence phase" of his trial.

Swearingen v. Texas, 2003 Tex. Crim. App. LEXIS 65 (Tex. Crim. App. 3/26/2003) Relief denied where corroboration between the forensic evidence and a letter written by defendant were sufficient to establish aggravating elements of the offense, and various suppression arguments are overruled.

California v. Jones, 2003 Cal. LEXIS 1544 (CA 3/17/2003) Relief denied, most notably, that lack of remorse was properly introduced during the penalty phase of trial to rebut guilt phase testimony regarding remorse.

Cleary v. Mullin, 2003 U.S. App. LEXIS 5927 (10th Cir 3/27/2003) Relief denied. "Cleary challenges only his death sentence, arguing that his trial attorneys' representation at the capital sentencing proceeding was constitutionally deficient because counsel failed to investigate and present expert psychological evidence in mitigation and should have had several additional family members testify on Cleary's behalf. We decline to address Cleary's challenge to the lack of a psychological expert, however, because Cleary has never specifically raised that particular claim until now."

Ohio v. Goff, 2003 Ohio LEXIS 615;2003 Ohio 1017 (Ohio 3/19/2003) "Goff has failed to raise "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal" before the court of appeals."

Reyes v. Delaware, 2003 Del. LEXIS 170 (Del 3/25/2003) "Reyes argues that the Superior Court abused its discretion in refusing to allow open-ended questioning of jurors during voir dire regarding their views on the death penalty. Reyes also contends that the Superior Court erred in several evidentiary rulings and in denying his motion for a mistrial on the basis of two separate instances of alleged juror misconduct. Finally, Reyes challenges the constitutionality of the 1991 Delaware death penalty statute."

Arizona v. Montano, 2003 Ariz. LEXIS 22 (Ariz. 03/17/2003) Relief denied on claims including: [1] preindictment delay; [2] failure of the state to locate witnesses; [3] death qualification of the jury; [4] prosecutor's statements during voir dire; [5] sufficiency; [6] Brady allegations; [7] certain photographic evidence; [8] evidence relating to gang activity; [9] sanitizing the prior convictions of a key witness; [10] admission of hearsay; [11] prosecutorial misconduct; and [12] failure to appoint a second counsel on appeal.

Lawrence v. Florida, 2003 Fla. LEXIS 386 (FL 3/20/2003) Relief denied on "claims that (1) the trial court erred by failing to order a competency hearing for Lawrence; (2) the trial court erred by refusing to admit into evidence facts in support of the substantial domination mitigator and then rejecting that mitigator; (3) the trial court erred by finding the cold, calculated, and premeditated aggravator; (4) the trial court erred by issuing a defective and unreliable sentencing order; (5) Florida's capital sentencing scheme is unconstitutional; (6) the trial court erred in allowing a lay witness to testify to an opinion reserved for experts (raised in supplemental briefing); and (7) Lawrence's death sentence is disproportionate."

Grim v. Florida, 2003 Fla. LEXIS 384 (FL 3/20/2003) Grim argues unsuccessfully that: [1] despite the mitigation presented to the trial court, it erred by giving great weight to the jury's recommendation even though the jury was never presented mitigation in the penalty phase; [2] the trial court should have required special counsel to present mitigating evidence to the penalty phase jury notwithstanding the defendant's vocal objection; [3] the trial court abused its discretion and violated his due process rights when it refused to allow him to present his only defense--the victim's hearsay statements to Jan Wallace and Charles Worrel demonstrating that someone else could have killed Cynthia Campbell; [4] proportionality; and [5] constitutionality of the Florida statute in light of Ring v. Arizona.

Tennessee v. Davis, 2003 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. 3/25/2003) Relief denied on claims that "(1) The trial court erred by not granting the Appellant's motion to disqualify [the local prosecutor]; (2) the trial court erred by not granting the Appellant's motion to prohibit the State from relying upon the Appellant's prior murder conviction as an aggravating circumstance, because the conviction was for a crime committed while the Appellant was a juvenile; (3) the trial court erred by not suppressing the statement the Appellant made to police; (4) the trial court erred by denying defense counsel's motion to be allowed to withdraw from representing the Appellant; (5) the trial court erred by granting the State's motion to require the Appellant to supply the State information concerning mental health expert testimony to be presented during the sentencing phase of the trial; (6) the trial court erred by allowing a physician who did not perform the autopsy to testify concerning the autopsy and evidence obtained in connection therewith; (7) the trial court erred in allowing victim impact evidence to be introduced; (8) that the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt; (9) that the evidence presented was insufficient to support the jury's finding that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt; (10) that the evidence presented was insufficient to support a finding that the aggravating factors were established beyond a reasonable doubt; (11) that Tennessee's death penalty statutory scheme is unconstitutional in several instances; (12) that the trial court erred in allowing certain cross-examination of defense witnesses; and (13) that the cumulative effect of errors made at trial denied the Appellant a fair trial in violation of his due process rights."

NOTABLE NONCAPITAL CASES

United States v. McCoy, 2003 U.S. App. LEXIS 5378 (9th Cir 3/20/2003) "We hold that 18 U.S.C. § 2252(a)(4)(B) [a child pornography statute] is unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material."

New Jersey v. Jang, 2003 N.J. Super. LEXIS 115 (NJ App Div 3/28/2003) Vienna Convention claims may be litigated in the courts of New Jersey, however such claims must show injury.

Monroe v. Angelone No. 02-6548, 02-6625 (4th Cir 03/26/2003) Habeas granted on the suppression of key Brady evidence including evidence that labeled the decedent's death an accident.

FOCUS

Brief Indices & Websites

Capital Defense Network (capdefnet.org) -- federal materials & great place to start

Habeas

Introduction to the 8th Amendment

Recent Filing and Action in the Supreme Court

Federal Habeas Corpus Update

Recent Briefs

Constitutional Issues: Cases on Point

Federal Trials

Summaries of Cases Authorized for the Death Penalty

Summaries of Opinions and Orders

Appellate Briefs and Issues

Clemency and Executions

Louisiana Indigent Defense Board -- state trial motions & standards

Public Interest Law Center -- Missouri capital defense materials from all stages

Legal Research

Briefs

Texas Defender Services -- Trial level motions for Texas

Directory of Expert Witness Websites

Death Penalty Litigation Resources

Federal Defender (DC) Motion & Brief Index -- DC Fed Defender's online brief bank

Florida Stay Materials & Warrant Cases -- Information on all recent stay litigation in Florida, including prior case briefing and current pleadings.

Tennessee Stay Materials & Warrant Cases - Tennessee Supreme Court's Archive of its warrant cases and prior warrant cases with almost all pleadings (excellent resource)

Prof. Geimer's Death Penalty Defense site great site, covering the basic motions through the details of nuts and bolts (password protected)

Probono.net -- General Briefs and litigation Outlines ((sponsored by the ABA Death Penalty Representation Project )(password protected)

NY State Defender Association NYSDA's Death Penalty brief bank & news resources

Hot Topics

Expert Witness Directory

Findlaw.com -- Commercial General purpose website

Supreme Court Briefs

In the News Briefs

Michigan State Attorney General Brief Bank Michigan AG's fully searchable brief bank

Rights International Human Right Brief Bank Rights International brief bank giving samples of how international law is being used in American Courts

NORML's Drug War Briefs Briefs from the National Organization for the Relaxization of Marijuan Law on narcotics defense

Breard/International Law Materials from University of Chicago

Office of the Solicitor General From 7/1998 to present, all briefs filed by the Solicitor General, except responses to IFP cases. From 1993-1996, and 1986-1990 Solicitor General merits briefs and responses. From 1982-1985 Solicitor General merits briefs.

Briefs of the Supreme Court

Subscription Databases

Lexis-Nexis - File Name: BRIEFS Library: CONLAW, GENFED, LITGAT or MEGA Inclusions:

From October 1993 Term to the present: includes Merit Briefs for cases granting certiorari and Special Masters. No joint appendices, only appendices to specific briefs.From January 1979 to October Term 1992: all briefs for cases granted cert., joint appendices and selected special masters.

Westlaw - File Name: SCT-BRIEF Inclusions:

Merits and Amicus Briefs filed with the Supreme Court of the United States for cases in which certiorari has been granted or probable jurisdiction has been noted and for which oral arguments have been scheduled.

From October Term 1995 to the present Amicus Briefs are included.

From October Term 1993 to the present Petitioner‘s, Appellant‘s, Respondent‘s and Appellee‘s Briefs on the merits are included.

For cases from October Term 1990 to October Term 1993 Petitioner‘s, Respondent‘s and Reply Briefs on the merits are included. Supplemental Briefs that refer directly to Merits Briefs are included as separate documents. Joint appendices are attached to corresponding Merits Briefs, and Supplemental Appendices are attached to corresponding Supplemental Briefs.

Internet Sources

BriefServe

Address: http://www.briefserve.com Inclusions: 1984 Term to the present, briefs sent in PDF format. Cost: $25.00 per brief

FindLaw

Address: http://supreme.findlaw.com/supreme_court/briefs/index.html Inclusions: For October 1999 term to the present includes petitioner, respondent, reply and amicus briefs in multiple formats. Cost: no charge.

Summaries of Relevant Law & Law Guides

Souther Center For Human Rights

Introduction to Georgia Death Penalty Law

SCHR Reports & Articles

Recommended Law Reviews

Capital Defense Network (capdefnet.org) -- fedeal materials & great place to sstart

Habeas Corpus

Introduction to the 8th Amendment

Federal Habeas Corpus Update

Constitutional Issues: Cases on Point

Recent Developments

Federal Trials

Online Litigation Guides

Summaries of Cases Authorized for the Death Penalty

Appellate Briefs and Issues

Useful Information About Death Penalty Trials

Clemency and Executions

Public Interest Law Center -- Missouri materials from all stages

Investigation

Legal Research

Briefs

Mental Health Issues

Cornell Death Penalty Project Cornell's extensive capital representation project including links to several of their case files, briefs and law reviews

National Association of Criminal Defense Lawyers -- Death penalty page for NACDL (password)

Louisiana capital trial "how to manual"

Findlaw - Introduction to the US Constitution Annoootated

Introduction to the Fourth Amendment

Introduction to the Fifth Amendment

Introduction to the Sixth Amendment

Introduction to the Eighth Amendment

Introduction to the Fourteenth Amendment

Criminal Procedure Outlines

Conducting the Penalty Phase of a Capital Trial (Florida)

Summaries of All Published Successful Ineffective Assistance of Counsel Claims (from Cornell) *dated, see CapDefNet for the most recent*

Summaries of Successful Cases Under Brady v. Maryland (from Cornell)

*dated, see CapDefNet for the most recent*

Summaries of Successful Cases Under Johnson v. Mississippi (from Cornell)

*dated, see CapDefNet for the most recent*

Summaries of Successful Cases Under Massiah v. United States (from Cornell)

*dated, see CapDefNet for the most recent*

Pro-se handbook (federal court)

International law guide

US Attorney's Manual (zipped)

Illinois Capital Relief Grants

CJA paymnent guides (5th Cir.)

Outline of Criminal Law

CJA Panel Attorny outlines

Derechos Death Penalty Sites

1000 DP Links From the Clark County Prosectouor

On site sources / Specific Briefs & Issues

SCOTUS - Miller-El briefs and materials>

Materials relating to the stay granted on Batson & AEDPA presumption of correctness isseus.

SCOTUS- Ring v. Arizona briefs & materials

Relief granted on whether judges may override a jury's recommendation on sentencing in a capital case including Florida materials

SCOTUS Pending cases briefs & materials

Tennessee stay & warrant materials

All stay pleadings from Coe, Workman & Rahman

Florida stay & warrant materials (coming)

Delk materials on competency to be executed

Comeptency to execute (Texas)

Penry - briefs of the parties

Mental retardation and the death penalty (Atkins materials listed in pending above)

United States v. Plaza (fingerprinting) [ briefs] [related motion & memorandum in support ] (wordperfect)

Williams v. Taylor

Brief on AEDPA standards under 2254(d)

Domingues v. Nevada

Juvenile death penalty cert petition on juvenile executions and the International Covenant on Civil and Political Rights

Jones v. Florida ( Opening Brief) ( Response Brief ) ( Reply Brief) (Florida Superme Court holds that delay not due to condemns actions bars capital punishment in this case)

Kyles v. Whitley ( Opening brief) ( Reply Brief) ( opinion)

United States v. McVeigh ( Opening Brief) ( Response Brief) ( Decision) (from CourtTV) ( Other OKC Documents from Court TV)

Reading List (available through Amazon & all the other usual suspects)

Top Books:

NINA RIVKIND & STEVEN F. SHATZ, CASES AND MATERIALS ON THE DEATH PENALTY (West Group, 2001)

VICTOR L. STREIB, DEATH PENALTY IN A NUTSHELL (West Group, 2002)

JAMES LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS: PRACTICE & PROCEDURE (Matthew Bender/Lexis Publishing, 2000) (3rd edition)

Others

JAMES R. ACKER, ROBERT M. BOHM & CHARLES S. LANIER, AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT (1998).

DAVID C. BALDUS, EQUAL JUSTICE AND THE DEATH PENALTY (1990).

HUGO ADAM BEDAU, DEATH IS DIFFERENT (1987).

HUGO ADAM BEDAU, DEATH PENALTY IN AMERICA (1997).

RAOUL BERGER, DEATH PENALTIES: THE SUPREME COURT'S OBSTACLE COURSE (1982).

WALTER BERNS, FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY OF THE DEATH PENALTY (1979).

RANDALL COYNE & LYN ENTZEROTH, CAPITAL PUNISHMENT AND THE JUDICIAL PROCESS (Carolina Academic Press, 2nd ed., 2001)

JOHN GRISHAM, THE CHAMBER (1994).

SAMUEL GROSS, DEATH & DISCRIMINATION (1989).

PETER HODGKINSON & ANDREW RUTHERFORD, CAPITAL PUNISHMENT: GLOBAL ISSUES AND PROSPECTS (1996).

ROGER HOOD, THE DEATH PENALTY: A WORLD-WIDE PERSPECTIVE (1996).

NORMAN MAILER, THE EXECUTIONER’S SONG (1979)

RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA (1991)

MICHAEL L. RADELET, HUGO ADAM BEDAU, & CONSTANCE E. PUTNAM, IN SPITE OF INNOCENCE (1992)

AUSTIN SARAT, WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION (Princeton University Press, 2001).

VICTOR L. STREIB, A CAPITAL PUNISHMENT ANTHOLOGY (1993).

VICTOR L. STREIB, DEATH PENALTY FOR JUVENILES (1987).

WELSH WHITE, THE DEATH PENALTY IN THE NINETIES (1991).

FRANKLIN ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA (1986).

OTHER RESOURCES

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

NEW VOICES: Kansas Chief Justice Notes High Cost of Death Penalty

As states look for ways to balance budgets in the face of overwhelming deficits, some state officials are concerned about the time and money consumed by maintaining the death penalty. During the Annual Report of the Chief Justice of the Kansas Supreme Court, Chief Justice Kay McFarland noted:

The Court also faces hearing three more death penalty appeals, which will severely strain our limited resources. So far only one such appeal has come through our Court since the reinstatement of the death penalty. This was State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001). This case was orally argued on December 6, 2000. Prior to that, our limited research staff had spent months doing research on the issues presented taking time away from their regular work. Even with this advance preparation, a great deal more work was required. Thousands of pages of transcripts and other documents from the record were before us for review. The Kleypas opinion was filed on December 28, 2001 over a year after the case was argued before us. I have been on the Court since 1977, and no other case is even a close second to the amount of time spent on that one case. Now the Court is faced with three more death penalty appeals within the next few months.

We have no record of how much time was spent on the Kleypas case by the Court, research staff, and clerical staff. Some indications of the increased complexity of such cases are the following figures from the Board of Indigent Defense Services (BIDS). The average non-death penalty case costs BIDS between $10,000 and $12,000. The last two death penalty cases cost BIDS over $1 million each.

(Emphasis added) See New Voices, Costs.

Supreme Court Allows Execution of Oklahoma Juvenile Offender

In a 5-4 vote that occured late on Thursday, the U.S. Supreme Court overruled a 10th Circuit U.S. Court of Appeals decision to hear oral arguments in the case of Scott Allen Hain, a juvenile offender in Oklahoma, on May 6th. The Supreme Court's decision allowed Oklahoma to move forward with the scheduled execution, and Hain was executed that evening. (Associated Press, April 4, 2003) Just one day before the scheduled execution, the 10th Circuit stayed the execution to allow additional time to consider Hain's most recent appeal. Hain was seeking federal funds to pay lawyers to prepare his case for a second state clemency hearing. Although the 10th Circuit recently ruled that death row inmates are not entitled to federal funds to pay their lawyers in such proceedings, the court's decision to grant Hain this stay would have given the panel an opportunity to revisit that ruling. (Reuters, April 3, 2003)

The juvenile death penalty has come under increased scrutiny in recent months. In a dissent authored after the Supreme Court's decision to not grant a hearing to juvenile offender Kevin Stanford, Justice John Paul Stevens, joined by three other Justices, wrote, "All of this leads me to conclude that offenses committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice." See Juvenile Death Penalty.

NEW RESOURCE: Reflections from Victims

Murder Victims' Families for Reconciliation has released a new edition of "Not In Our Name: Murder Victims' Families Speak Out Against the Death Penalty." Among the features of this unique booklet are 73 pages of photos, stories, and reflections on the death penalty from families of homicide victims, including parents who lost a son in the attacks on the World Trade Center and a father whose son was killed in the shootings at Columbine High School. The booklets are available on-line from www.mvfr.org. See Resources.

Nevada House Votes to Spare Juveniles

Members of Nevada's Assembly overwhelmingly passed three legislative measures to reform the state's death penalty. The bills include a ban on the execution of juvenile offenders and those with mental retardation. The third piece of legislation adds the mitigating factor of mental illness to those factors considered by the sentencing jury and gives defense counsel the last argument during the sentencing phase of a capital trial. Assemblywoman Sheila Leslie, chair of the interim committee that studied Nevada's death penalty and introduced the three measures, said, "I think it reflects the evolving opinion of Nevadans and the nation about how the death penalty can be applied fairly and appropriately." The bills now move to the Senate for consideration. (Las Vegas Sun, April 1, 2003) See Juveniles and Mental Retardation.

NEW RESOURCE: Juror Study Reveals Death Penalty Cases Not Meeting Constitutional Standards

This law review article by William J. Bowers and Wanda D. Foglia is based on the Capital Jury Project's research with those who have served as jurors in death penalty cases. Despite judicial reforms inspired by Furman v. Georgia and approved in Gregg v. Georgia, jurors are deciding who deserves the death penalty in violation of the ways the Supreme Court has held are Constitutionally required. The Capital Jury Project studied more than 1,200 jurors from 14 states. The study identified the following constitutional problems:

Premature Decision Making - Interviews with jurors found that approximately 50% of those interviewed decided what the penalty should be before the sentencing phase of the trial. This is before they have heard penalty phase evidence or received the instructions on how to make the punishment decision.

Bias in Jury Selection - Researchers found that jury selection methods resulted in disproportionately guilt-prone and death-prone juries.

Failure to Understand Jury Instructions - The study found that 45% of jurors failed to understand that they were allowed to consider any mitigating evidence during the sentencing phase of the trial. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation.

Erroneous Beliefs that Death is Required - 44% of jurors said that they believed the death penalty was required if the defendant's conduct was heinous, vile or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future. The Supreme Court has ruled that no state can require the death penalty solely on the grounds that specific aggravating circumstances have been established.

Influence of Race - Researchers revealed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. These jurors have very different perspectives regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.

Underestimating the Death Penalty Alternative - Early findings of the study found that most jurors grossly underestimated the amount of time a defendant would serve in prison if not sentenced to death, and that the sooner jurors believed (wrongly) a defendant would return to society if not given the death penalty, the more likely they were to vote for death.

The law review article concludes that, based on the research of the Capital Jury Project, the constitutionally mandated requirements established to guide juror discretion and to eliminate arbitrary sentencing are not working and the death penalty system remains broken. ("Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing," 39 Criminal Law Bulletin 51 (2003)) - (forthcoming). A list of the publications reporting other findings from the Capital Jury Project can be found at www.cjp.neu.edu. This list is periodically updated and includes the full text of some articles. See also, Resources.

NEW RESOURCE: An Expendable Man

In "An Expendable Man," Virginian-Pilot editorial writer Margaret Edds uses the case of death row exoneree Earl Washington, Jr. to examine "the secret, shameful underbelly" of capital punishment. Washington, a black, mentally retarded farm-hand, spent 9 years on death row and almost 18 years in Virginia prisons for a crime that DNA evidence proved he did not commit. Edds uses Washington's case to demonstrate the relative ease with which individuals who live at society's margins can be wrongfully convicted, and the extraordinary difficulty of correcting such a wrong once it occurs. (New York University Press, 2003) See Innocence, Resources.

NEW RESOURCE: The Contradictions of American Capital Punishment

"The Contradictions of American Capital Punishment" is a new book by Franklin E. Zimring, professor and Director of the Justice Research Program at the University of

California, Berkeley. The book explores how American values have helped to shape the nation's death penalty debate. Zimring examines the connection between lynchings and the death penalty, and why the United States and its international allies have taken different paths regarding this issue. (Oxford University Press, 2003) See Resources.

Death Row Exoneree Dies Suddenly at Age 46

Dennis Williams, who spent 17 years on Illinois's death row before being freed, recently died in his Cook County home. Williams, who Chicago Tribune columnist Eric Zorn notes was "a man who sowed more kindness than he received," was 46 years old. Williams was a member of the "Ford Heights Four," a group of four black men who were wrongly convicted for a 1978 rape and double murder. The four men were exonerated in 1996 after investigations by journalists and students exposed the flimsiness of the state's case against them. Not only did these efforts help to exonerate the Ford Heights Four, but the research also identified those who had actually committed the crime. (Eric Zorn, Chicago Tribune, March 22, 2003) Nationally, 107 death row inmates have been exonerated since 1973. See Innocence.

Houston Chronicle Urges Moratorium on Texas Executions

A recent Houston Chronicle editorial regarding the growing list of Harris County convictions currently under review due to questionable analysis and handling of DNA evidence (see below) states that Texans have reason to "be leery of carrying out more death sentences until changes are made to restore confidence to the criminal justice system." After new cases were added to the review, the paper called for moratorium legislation:

That brought to 17 the number of death row inmates who might have been wrongly convicted because of the badly mismanaged crime lab. The sheer number of inmates awaiting execution whose guilt has been freshly called into question is reason aplenty for the Legislature to seriously consider, if not pass, a pending joint resolution seeking a constitutional amendment allowing the governor to impose a moratorium on carrying out Texas death sentences. (Houston Chronicle, March 25, 2003)

See Innocence.

NEW VIDEO RESOURCE: "Balancing the Scales" Examines Texas Moratorium

A new video production entitled "Balancing the Scales" examines the call for a moratorium on executions in Texas. The documentary examines issues such as defendant access to effective counsel, innocence, prosecutorial misconduct, the juvenile death penalty, and life without parole. Among those featured in the program are exonerated death row prisoners, murder victims' family members, and former Texas law enforcement officials. Individuals wishing to obtain a VHS or DVD version of the program may order on-line. See Innocence and Resources.

NEW RESOURCE: Victims and the Death Penalty

"Victims and the Death Penalty: Inside and Outside the Courtroom" is a series of articles in the Cornell Law Review stemming from a symposium focusing on the role that victims play in capital cases. The journal provides a close legal examination of victim impact statements and related research, expert analysis of state statutes, and an analysis of what role these statements should play in capital trials. (88 Cornell Law Review 257 (2003)) See Victims and Resources.

DNA Evidence Casts Doubt on Another Florida Capital Conviction

New DNA analysis of crucial evidence in the case against Michael Rivera has cast doubt on his conviction and could lead to a new trial for the Florida death row prisoner. In 1987, Rivera was sentenced to death for the murder of an 11-year-old Broward County girl. Prosecutors relied on two strands of sandy blond hair to link Rivera to the crime, but new tests have concluded that the hair could not have come from the victim, a finding that voids the prosecution's only significant scientific evidence in the case. This was the second time in as many days that DNA testing of evidence in Broward County cases has cast doubt on murder convictions. (Miami Herald, March 21, 2003) See Innocence.

DPIC Curriculum Wins Gold Web Site Award; Center to Launch Enhanced Web Site

DPIC's award-winning high school curriculum on the death penalty recently received a Gold Web Site Award, an honor recognizing outstanding Web resources that present interesting content in a user friendly manner.

DPIC's main Web site will take on a new look beginning March 23. The enhanced Web site will feature a new format and a versatile search engine, while continuing to provide all of the information available on the current site. The address of DPIC's Home Page will remain the same, though the addresses of individual pages may change. We hope you like it.

New Yorkers Favor Life Without Parole Over Death Penalty

A recent Quinnipiac University poll revealed that when New Yorkers were given the sentencing option of life without parole in capital cases, 53% of respondents chose life without parole and only 38% favored the death penalty. Nationally, Americans are about evenly split: the poll found that 48% of Americans who were asked the same question would favor the death penalty and 44% would prefer life without parole. (New York Law Journal, March 19, 2003) See Public Opinion.

European Court Rules Death Penalty "Unacceptable Form of Punishment"

A recent European Court ruling found that Turkey's imposition of the death penalty on defendant Abdullah Ocalan violated the European Convention on Human Rights' ban on inhuman and degrading treatment. The Court held that capital sentences are now regarded as "an unacceptable form of punishment" which can "no longer be seen as having any legitimate place in a democratic society." (Kurdish Media, March 12, 2003) In August 2002, Turkey's parliament approved a package of rights, including abolishing the death penalty, in an effort aimed at increasing its chances of joining the European Union. The legislation will replace the death penalty with life in prison without parole, although capital punishment will remain on the books during times of war. See International Death Penalty.

NEW VOICES: Death Penalty Supporter Would Shift If Innocent Person Executed

Dianne Clements, president of Justice for All, an organization that strongly supports the death penalty, said "If I believed we executed an innocent inmate, I couldn't support the death penalty." A recent Scripps Howard Poll in Texas revealed that 69% of the public believes that Texas has already executed an innocent person. The poll also found that most Texans still endorse the death penalty. (Houston Chronicle, March 16, 2003) See Innocence, New Voices, and Public Opinion.

NEW VOICES: Harris County Prosecutors Shocked at DNA Lab's Errors

Harris County, Texas, prosecutors are reeling after recent revelations that mistakes made by a Houston DNA testing lab (see below) could place some of the county's convictions in peril. Prosecutor Joe Owmby recently voiced his concern that a re-test of DNA evidence in the state's case against convicted rapist Josiah Sutton conclusively determined that he could not have committed the crime. Owmby noted, "I could see somebody coming back and saying, 'The test we told you is conclusive is now inconclusive.' I could see that happening. What I did not envision, what I did not speculate could conceivably happen, is that they could say, 'We could tell it's not him.' I did not see how that could happen. . . How can you screw that up?" Former District Attorney John B. Holmes, Jr., who was Owmby's boss during the Sutton trial, said, "Anytime there is something that causes one's faith in the criminal justice system to fail, it is always a broad brush and it always hurts." (Houston Chronicle, March 15, 2003) See New Voices and Innocence.

NEW VOICES: Murder Victim's Mother Speaks Out Against Death Penalty

When Aba Gayle's 19-year-old daughter was murdered in 1980, she found herself seeking revenge and consumed by bitterness. Although the district attorney assured her that she would feel better when the murderer was convicted and, in turn, executed, Gayle was not convinced that the death penalty would quell her anger and lead to the healing she desired. Today, Gayle shares her story with the public and speaks out against the death penalty. "I knew that I didn't need the State of California to murder another human being so I could be healed, " she notes. "It's time to stop teaching people to hate and start teaching people to love. The whole execution as closure idea is not realistic." A member of Murder Victims' Families for Reconciliation, Gayle states, "Anger is just a horrible thing to do to your body. Not to mention what it does to your soul and spirit. Forgiveness is not saying what he did was right - it's taking back your power." (Silverton Appeal Tribune, March 12, 2003) See New Voices.

Dallas Morning News Calls for Moratorium on Executions

The Dallas Morning News is urging Governor Rick Perry to halt executions in Texas to provide experts time to examine what the paper deems a "broken system." Noting concerns about DNA testing (see below), mistaken convictions, representation of defendants in death penalty cases, and questions of bias, the paper stated:

Texas, which executes more people than all the states and even most countries, should pause. New evidence of a flawed system and cautions expressed recently by some of those closest to the process make a good case for a moratorium on executions until Texas carefully reviews its death penalty process to assure that it is just.

. . .

We urge Gov. Rick Perry to appoint a respected, open-minded, judicious Texan to lead a review of the state's death penalty process. Mr. Sessions (former FBI Director), for example, might make a good leader of such a review.

. . .

Advocacy for or against the death penalty isn't the point. Time out to fix a broken system is. It's in the interests of all Texans to support such action. (Dallas Morning News, March 12, 2003)

See Innocence and Recent Legislative Activity.

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. 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).

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CITATION

This edition may be cited as: Capital Defense Weekly, Volume VI, Issue 11, http://capitaldefenseweekly.com/archives/030331.htm