Leading off this "double edition" is theThird Circuit's opinion inMumia Abu-Jamal v. Horn.The panel granted penalty phase relief as the Pennsylvania Supreme Court “was objectively unreasonable” when analyzing whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor. The panel splits on guilt phase relief on a Batson claim with the majority's opinion being more than just a little underwhelming. As the dissent suggests, this case is likely headed en banc on the Batson issue.

The Eleventh Circuit in one of the oddest set of facts seen in recent memory remands on the issue of equitable tolling inErnest C. Downs v. McNeil. The gist of the allegations that would permit equittable tolling include, if true, “serious attorney misconduct.” The panel seems to draw the line between run of the mill missing of deadlines which would not normally permit tolling and the"egregious misconduct" alleged here which would permit such tolling.

The Oklahoma Court of Criminal Appeals inKeary Lamar Littlejohn v. Stategrants penalty phase relief on counsel's ineffectiveness in the penalty phase. The State's proofs were overwhelming in the guilt phase. Trial counsel should have known that their client was likely to lose and be convicted of capital murder and, therefore, needed to start thinking about the penalty phase / preparing their mitigation long before they did. The results at trial were predictable as was the grant of relief here.

In one of the more curious ethics opinions in recent years, the Utah Supreme Court addresses, pretrial, the rules governing a potential conflict of interest arising out of the defense investigation inState v. Wade Maughan. Prosecutors inMaughanconvinced a trial court to go along with their claim Maughan’s counsel was conflicted. Maughan’s counsel apparently informed witnesses they didn’t have to talk to cops. The cops returned the favor telling witnesses they need not talk to the defense. The trial court sided with the cops/prosecutors & recused Maughan’s counsel apparently calling counsel’s action potentially unlawful and, if not unlawful, unethical. The Utah Supreme Courtholdsthe trial court overreacted as even if there was a conflict, the Defendant could waive - as he had previously attempted -- any possible conflict.

DPIC notes"Glen Edward Chapman, a North Carolina man who was sentenced to death for the 1992 murders of Betty Jean Ramseur and Tenene Yvette Conley, was released from death row on April 2 after prosecutors dropped all charges against him. In 2007, North Carolina Superior Court Judge Robert C. Ervin granted Chapman a new trial, citing withheld evidence, “lost, misplaced or destroyed” documents, the use of weak, circumstantial evidence, false testimony by the lead investigator, and ineffective assistance of defense counsel. There was also new information from a forensic pathologist that raised doubts as to whether Conley’s death was a homicide or caused by an overdose of drugs."

In legislative news, theColorado legislature, keeping with the overwhelming majority of other state legislatures, will not be bringing back the crime of capital rape, even for child molesters. The Senate Judiciary Committee; Subcommittee on the Constitution’s hearing recently held an hearing aptly entitled“The Adequacy of Representation in Capital Cases”. “On March 26th, 2008 theFlorida House of Representatives passeda bill to compensate Alan Crotzer a sum of $1.25 million and 120 credit hours of higher education for the agony he endured being wrongfully imprisoned for 24 years" on a life sentence. A State House committee inMissouri is consideringa bill that would place a 2-year moratorium on executions in that state.

On the public policy front,John Holdridgerecently took aim at NADA’sJosh Marquis and his claims that less than 30 innocent people have been convicted and sentenced to die in the modern era: In a potentially far reaching ruling,a trial judge in New Mexico has barred the statefrom seeking the death penalty because the legislature has failed to provide adequate funding for defense representation.

In other newsthe Washington Posthas amajor pieceon the Ohio pretrial lethal injection litigation. In Tennesseee,Paul House will be releasedpending a hearing on May 28, 2008 to consider the terms and conditions of his release. Following in the wake of the recent Supreme Court decision inMedellin,.AP notes, seven Mexican-born inmates on Texas’ death row lost their bids for relief since the last edition. “The Pentagon [has] brought murder and terrorism charges against a suspect in the 1998 US embassy bombing in Tanzania, seeking that his alleged crimes be treated as capital offences." [more here]

A study released since the last edition notes virtually all lethal injection executions in this country have taken place in states that have banned animal euthanasia, using the same drugs used in those states for executions. "The vast majority (97.6%) of lethal injection executions in this country have taken place in states that have banned, for use in animal euthanasia, the same drugs that are used in those states during executions, according to a study to be published this spring in the Fordham Urban Law Journal. An exhaustive review of state laws and regulations concluded that animal euthanasia statutes in 42 states ban, either implicitly or explicitly, the use of paralyzing drugs like those used in lethal injections."Read the Study//Read the Press Release//Read More About Animal Euthanasia and Lethal Injection

The application deadline for the 2008 Clarence Darrow Death Penalty Defense College (May 27-31, 2008 DePaul University College of Law Chicago , Illinois) has been extended to April 15, 2008. "This week-long, intensive bring-your-own-case program is for capital defense attorneys who want to hone their skills while working on a real case. Offering a combination of lectures and small group workshops, the Darrow College arms defense attorneys with the tools they need to provide the best defense possible to a client facing the death penalty. Offered in conjunction with the Mitigation Training Program for mitigation specialists, the Darrow College aims to strengthen the entire capital defense team. Discounts are offered to offices that send more than one attorney, or an attorney/ mitigation specialist team. For more information, contact Mary Bandstra at the DePaul University College of Law Center for Justice in Capital Cases."

Looking ahead to the next edition, several "wins" are already noted. InFrank Spisak, Jr., v. Hudsonthe Sixth Circuit reaffirms its prior grant of penalty phase relief, despite an intervening remand from the United States Supreme Court. The Ohio Supreme Court inState v. Whitegranted penalty phase relief as White is mentally retarded.

Due to time restrictions, several lengthy opinions from Alabama will be covered next editiion, my apologies.

Week of March 24, 2008 – In Favor of the Defendant or the Condemned

• Mumia Abu-Jamal v. Horn,2008 U.S. App. LEXIS 6399 (3rd Cir 3/27/2008) The panel granted relief as the Pennsylvania Supreme Court “was objectively unreasonable” when analyzing whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor. The panel splits on a Batson claim with the majority's opinion being more than just a little underwhelming. [more here]
• Ernest C. Downs v. McNeil, 208 U.S. App. LEXIS 6090; 2008 WL 756348 (11th Cir. 3/24/2008) Remand ordered because, if true, the allegations raise present claims of “serious attorney misconduct” that could permit “equitable tolling” the panel remands. [more here]
• Keary Lamar Littlejohn v. State, 2008 OK CR 12 (Okla. Crim. App. 3/26/2008) Trial counsel should have known that their client was likely to lose and be convicted of capital murder and, therefore, needed to start thinking about the penalty phase / preparing their mitigation long before they did. [more here]

Week of March 24, 2008 – In Favor of the State or Government

• Joseph Ray Ries v. Quarterman, 2008 U.S. App. LEXIS 6466 (5th Cir 3/27/2008) (unpublished) Relief denied on " four issues. First, Ries argues that the district court erred in determining that two of his Sixth Amendment claims for ineffective assistance of counsel were not exhausted and thus procedurally barred. Second, he argues that his attorneys at trial were ineffective in their presentation of mitigation evidence during the penalty phase of his trial. Third, Ries argues that his trial attorneys were ineffective for failing to object to several statements in the prosecutor's closing argument. Finally, he argues that his appellate counsel was ineffective for failing to raise on appeal a claim that the district court erred in redacting statements of remorse from a video-taped confession by Ries."
• United States v. Odell Corley, 2008 U.S. App. LEXIS 6076 (7th Cir 3/24/2008) The Government below was challenged on its use of peremptories in violation ofBatson v. Kentucky. Despite facts not that dissimilar to those inSnyder v. Louisiana, at least at first read, the panel affirms without once mentioning the Court’s latest examination ofBatson. Other than theBatsonissue, the panel’s opinion appears, again at first read, as unremarkable. Relief was denied, on the remaining claims, relating to the introduction of unadjudicated conduct at sentencing, the improper cross-examination by the Government of the Defendant (once in the guilt phase & once in the sentencing phase), statement made by the prosecution during closing arguments, and the court’s refusal to give a residual doubt instruction or to allow a residual doubt argument.
• People v. Andre Gerald Wilson, 2008 Cal. LEXIS 3584(Ca 3/27/2008) "In habeas proceedings, an order to show cause, involving claims that petitioner was factually innocent of first degree murder, conspiracy to commit murder, and solicitation to commit murder and that his conviction was the product of nondisclosure of exculpatory evidence, is discharged as petitioner failed to establish either that: 1) he was actually innocent of the crimes for which he was convicted; or 2) his criminal convictions were tainted by the prosecution's non-disclosure of exculpatory evidence." [via Findlaw]
• In re Dennis Harold Lawley, 2008 Cal. LEXIS 3545 (Ca 3/24/2008) "Conviction and death sentence for first degree murder is affirmed where trial court did not commit reversible error by: 1) allowing defendant to exhaust his peremptory challenges to remove two alternate jurors; 2) giving jury instructions accompanied by usual instructions on reasonable doubt, presumption of innocence, and the government's burden of proof; and 3) removing a juror and jury instructions on sentencing factors." [via Findlaw]

Week of March 24, 2008 – statutory/rule changes

• In re Amendments to Florida Rule of Judicial Administration 2:215, 2008 Fla. LEXIS 543 (FL 3/27/2008) "Under rule 2.215(b)(10), the chief judge shall not assign a circuit judge to preside over a capital case, whether it be the initial proceeding where the state is seeking the death penalty or a collateral proceeding brought by a death row inmate, unless the judge has met the requisite educational and experiential qualifications. The amendment reorganizes the rule, breaks down the requirements into new subdivisions, and clarifies when a circuit judge must take the refresher course to remain in compliance with the rule. The amendment also clarifies that the judge must have presided for a minimum of six months in a felony division and adds the alternative of presiding in a division that includes felony criminal cases. As amended, rule 2.215(b)(10)(B) allows for waiver of the requirements."

Week of March 24, 2008 – noncapital

• Matthew Gray v. Moore, 2008 U.S. App. LEXIS 6186 (6th Cir 3/26/2008) (noncapital) "After exhausting his remedies in state court, Gray filed the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, arguing that the trial court violated his constitutional rights to due process, to be present at his trial, and to confront the witnesses against him, when it removed him from the courtroom without warning him of the consequences of his actions. Because we conclude that the Ohio appellate court unreasonably appliedIllinois v. Allen, 397 U.S. 337 (1970), and because the error had a substantial and injurious effect on the outcome of Gray’s kidnapping conviction, we REVERSE the district court’s judgment and GRANT a conditional writ of habeas corpus with respect to that conviction."
• US v. Rojas, No. 07-1287 (8th Cir 3/28/2008) "In a case where one of the victims of sexual abuse and assault offenses recanted her testimony after a jury conviction at trial, district court's judgment is reversed insofar as it denied defendant's request for an evidentiary hearing based on the reported recantation where: 1) no physical evidence corroborated with victim's original trial testimony; and 2) defendant's conviction relied heavily on victim's purported testimony." [via Findlaw]
• State v. Bell, Nos. 95,575; 95,613; 95,614; 95,639; 95,640; 95,766 (Kan 3/28/2008) Slightly less than a dozen “DNA-based rape warrants” quashed on the grounds the warrants lacked sufficient specificity. Specifically, "1. The Fourth Amendment to the United States Constitution and K.S.A. 22-2304 require an arrest warrant to contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty" and "2. An arrest warrant’s or a supporting affidavit’s inclusion of a unique DNA profile can qualify as a description by which a defendant can be identified with reasonable certainty; mere listing of DNA loci in the warrant or in a supporting affidavit cannot.”

Week of March 31, 2008 – In Favor of the Defendant or the Condemned

• State v. Wade Maughan, 2008 Utah LEXIS 56 (Utah 4/1/2008) The trial court recused Maughan’s counsel calling counsel’s investigatory tactics action potentially unlawful and/or unethical. The Utah Supreme Courtholdsthe Defendant under the facts presented here could waive any conflict of interest and remands.

Week of March 31, 2008 – In Favor of the State or Government

• People v. David Rundle, 2008 Cal. LEXIS 3795 (Cal 4/3/2008) "A conviction and death sentence for the attempted forcible rape and first degree murders of two women is affirmed on automatic appeal over claims of error regarding: 1) the sufficiency of the appellate record; 2) a denial of a pretrial motion to exclude defendant's confessions; 3) various evidentiary rulings; 4) the sufficiency of the evidence; 5) jury instructions; 6) a special circumstance finding based on attempted rape; 7) prosecutorial misconduct; 8) juror misconduct; 9) a denial of his right to counsel based on a conflict of interest; 10) an inadequate investigation by the trial court of the conflict of interest and juror misconduct; 11) defendant's absence from certain meetings between defense counsel and the trial court; 12) defendant's competency to proceed with the penalty phase; 13) evidentiary rulings at the penalty phase; 14) penalty phase jury instructions; 15) penalty phase prosecutorial misconduct; 16) the constitutionality of California's death penalty statu! te; and 17) cumulative error." [via FindLaw]
• Rickey Lynn Lewis v. Quarterman, 2008 U.S. App. LEXIS 6941 (5th Cir 4/1/2008) Relief denied on the question of whether "Lewis failed to establish by a preponderance of the evidence that he had significantly sub-average general intellectual functioning." COA denied on "the following two claims: the district court erred by refusing to consider an affidavit not presented in the state-court proceeding; and the State should bear the burden of proving a capital defendant is not mentally retarded. In addition, he seems to request a COA on whether the district court was required to review the scientific methodology applied by the experts in state court. None of these issues satisfies the above-stated standard for granting a COA."
• Roderick Newton v. Quarterman, 2008 U.S. App. LEXIS 6814 (5th Cir 3/31/2008) "Newton seeks a COA on five issues; whether: (1) the trial court erroneously granted the State’s challenge for cause to a venire-member, in violation of the Sixth Amendment; (2) the prosecutor impermissibly called into question Newton’s right not to testify, in violation of the Fifth Amendment; (3) the trial court’s not defining “criminal acts of violence” violated Newton’s due process rights; (4) the trial court relieved the State of its constitutional burden of proving the lack of mitigating circumstances beyond a reasonable doubt; and (5) trial counsel was ineffective at the punishment phase of the trial. None of these issues, especially the three conceded to be foreclosed, satisfies the above stated standards for a COA’s being granted."
• Donald Lee Gilson v. Sirmons, 2008 Ala. Crim. App. LEXIS 72 (10th Cir 4/2/2008) "In habeas proceedings brought by a state prisoner convicted of first degree child abuse murder and sentenced to death, denial of habeas relief is affirmed over claims of error regarding whether: 1) the conviction for capital murder, based on a divided jury verdict as to whether he was guilty of "committing" the child abuse that led to the child's death, or of "permitting" such abuse, violated due process; 2) the imposition of the death penalty violates his Eighth Amendment rights due to the lack of certain unanimous jury findings; 3) the death sentence was disproportionate to his offense; 4) there was an Ex Post Facto violation; 5) his constitutional rights were violated by the trial court's refusal to provide instructions on lesser included offenses; 6) a refusal to allow testimony from defense expert witness violated his constitutional rights; and 7) trial counsel was ineffective for failure to present evidence of petitioner's brain damage."[via Findlaw].
• Jimmy Davis, Jr., v. State, 2008 Ala. Crim. App. LEXIS 72(Ala. Crim. App. 4/4/2008) "On certiorari review the Alabama Supreme Court reversed in part this Court's decision after finding that we had erroneously applied the procedural default grounds in Rule 32.2(a)(3) and (5),sua sponte, to bar Davis's claims that his trial counsel's performance was ineffective. The Supreme Court remanded the case for this Court to consider the merits of Davis's ineffective-assistance-of-counsel claims that were raised in Davis's brief." As this is the Alabama Court of Criminal Appeals, relief denied.
• Michael Sale v. State, 2008 Ala. Crim. App. LEXIS 73 (Ala. Crim. App. 4/4/2008)
• Kerry Spencer v. State, 2008 Ala. Crim. App. LEXIS 74 (Ala. Crim. App. 4/4/2008) Jury override to death. Relief denied on all issues, hwoever, remand had "the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, and the principles espoused in Ex parte Taylor, Ex parte Tomlin, and Ex parte Carroll, and the cases cited therein, were not met as the trial court's sentencing order did not state that the jury's recommendation was treated as a mitigating circumstance and did not contain specific findings as to [*92] the weight assigned to the jury's recommendation of life imprisonment without parole or the reasons for the judicial override of that recommendation. Thus, we must remand this case to the trial court."
• Thomas Dale Ferguson v. State, 2008 Ala. Crim. App. LEXIS 75 (Ala. Crim. App. 4/4/2008)

Week of March 31, 2008 – noncapital of note

• Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 2008 U.S. App. LEXIS 6911 (9th Cir 4/2/2008) In a Section 1983 action, panel holds inmates have a limited due process right of access to the evidence for purposes of post-conviction DNA testing.

(Initial List) Week of April 7, 2008 – In Favor of the Defendant or the Condemned

• Frank Spisak, Jr., v. Hudson, 2008 U.S. App. LEXIS 7760 (6th Cir 4/11/2008) Following remand from the United States Supreme Court prior grant of penalty phase relief is reaffirmed.
• State v. White, 2008 Ohio LEXIS 867 (Ohio 4/9/2008) Relief granted as White is mentally retarded within the meaning of Atkins v. Virginia.

(Initial List) Week ofApril 7, 2008 – In Favor of the State or Government

• Carl Wayne Buntion v. Quarterman, 2008 U.S. App. LEXIS 7758 (5th Cir 4/11/2008) "Grant of conditional habeas relief on a claim of judicial bias from a conviction for capital murder and death sentence is vacated and relief denied where: 1) although various comments and actions by the trial judge both on and off the bench were highly improper; nevertheless, 2) under the AEDPA's highly deferential standard, a state habeas court's decision was neither an unreasonable application of controlling Supreme Court precedent, nor did it involve an unreasonable determination of the facts in light of the evidence presented." [via Findlaw]
• Alvin Kelly v. Quarterman, 2008 U.S. App. LEXIS 7745 (5th Cir 4/10/2008) (unpublished) "The sole issue on appeal is whether the district court clearly erred in finding that a witness did not recant her trial testimony." Relief denied.
• Robert Jean Hudson v. Quarterman, No. 07-70039 (5th Cir 4/9/2008) (unpublished) "Hudson raises three arguments on appeal. He argues that (1) the district court improperly applied the AEDPA’s standard of deference to the state habeas court’s findings; (2) his trial counsel rendered ineffective assistance by failing to investigate and present at the punishment phase mitigating evidence in the form of testimony from several family members; and (3) the Dallas County Sheriff’s Department forcibly medicated him during trial, which prevented him from effectively assisting his counsel in his defense, interfered with his confrontation rights, and denied him due process of law."
• Abdullah Sharif Kaazim Mahdi v. Bagley, 2008 U.S. App. LEXIS 7766 (6th Cir. 4/11/2008) "Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause." Relief. denied.
• State v. Steve Alan Boggs, 2008 Ariz. LEXIS 48 (Az 4/9/2008).

Week of April 7, 2008 – noncapital of note

• Barbe v. McBride, No. 06-7550 (4th Cir 4/7/2008) State court erred by adopting a per se rule restricting cross-examination of the prosecution's expert under West Virginia's rape shield law.

Selected Excerpts from, & Commentary on, this Edition's Cases

Mumia Abu-Jamal v. Horn,2008 U.S. App. LEXIS 6399 (3rd Cir 3/27/2008) The panel grants relief as the Pennsylvania Supreme Court “was objectively unreasonable” when analyzing whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor. The panel splits on guilt phase relief on a Batson claim with the majority's opinion being more than just a little underwhelming.CapDefNet notes:

In March 27, 2008, the Third Circuit (Scirica and Cowen; Ambro dissenting in part) affirmed the district court’s finding that the penalty phase instructions and verdict form given in Mumia Abu-Jamal’s case violated Mills v. Maryland and that the state court’s contrary conclusion involved an unreasonable application of Supreme Court precedent. Abu-Jamal v. Horn, ___ F.3d ___, 2008 WL 793877 (3rd Cir. March 27, 2008). The panel also affirmed the district court’s denial of a Batson claim, a claim of prosecutorial misconduct in summation at the guilt-innocence phase, and a claim that Abu-Jamal’s due process rights were violated because the judge at the state post-conviction proceeding was biased. Regarding the Batson claim, the panel majority first found, as a matter of federal law, that Abu-Jamal forfeited the claim by failing to make a timely objection to the prosecutor’s excusal of black veniremembers. (The trial occurred prior to the Batson decision, which was issued while the case was on direct appeal. The claim was raised for the first time in that appeal.) Even assuming Abu-Jamal did not forfeit the claim as a matter of federal law, the panel majority concluded that Abu-Jamal was still not entitled to relief. Before addressing the merits of the claim, the panel majority considered whether the procedural default doctrine foreclosed federal review. On appeal, the Pennsylvania Supreme Court had found the claim waived due to the absence of a contemporaneous objection to the strikes. Noting the then-existence of a relaxed waiver rule in capital cases, something subsequently abandoned, the state court proceeded to discuss the merits of the claim and deny relief. The claim was raised again in state post-conviction proceedings, along with an accompanying claim of ineffective assistance of counsel. (In post-conviction proceedings, the parties stipulated that the number of black prospective jurors who had been removed by the prosecutor was greater than believed at the time of the direct appeal.) In finding relief foreclosed, the Pennsylvania Supreme Court did not make a clear and express finding that the claim was procedurally barred. Therefore, the appeals court found that federal review was not prohibited. In a footnote, the panel majority also noted circuit precedent holding that at the time of Abu-Jamal’s purported waiver, Pennsylvania did not consistently apply an unforgiving waiver rule. Thus, any finding of waiver would not be an adequate basis for precluding federal review. As to the merits, in arguing that a prima facie case of purposeful discrimination had been shown, Abu-Jamal relied heavily on the fact that the prosecution used 15 of its 20 peremptory challenges and of the 15 challenges, 10 were against black veniremembers. This produced a strike rate of 66.67%. Missing from the record, however, was evidence about the racial composition of the venire itself. This precluded calculating the actual excusal rate which “would provide important contextual markers to evaluate the strike rate.” And, notably to the panel majority, although the trial prosecutor was under subpoena for the state post-conviction proceeding, Abu-Jamal failed to call him in an effort to develop further support for a prima facie case of discrimination. The panel majority ultimately concluded: “Under AEDPA’s deferential standard of review, the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson.”

Judge Ambro dissented regarding the Batson claim. First, Judge Ambro disagreed with the majority’s imposition of a contemporaneous objection requirement for Batson claims. Next, Judge Ambro argued that the panel majority raised “the standard necessary to make out a prima facie case beyond what Batson calls for.” Judge Ambro would remand to the district court for completion of the second and third steps of the Batson analysis.

Ernest C. Downs v. McNeil, 208 U.S. App. LEXIS 6090; 2008 WL 756348 (11th Cir. 3/24/2008) Remand ordered because, if true, the allegations raise present claims of “serious attorney misconduct” that could permit “equitable tolling” the panel remands. The allegations here are fairly inflamatory so I'm going to letCapDefNet suss out the details:

On March 24, 2008, the Eleventh Circuit (Black with Hull and Wilson) vacated the district court’s dismissal of Ernest Downs’s habeas petition on untimeliness grounds and remanded for an evidentiary hearing on the facts underlying Downs’s request for equitable tolling. Downs v. McNeil, ___ F.3d ___, 2008 WL 756348 (11th Cir. March 24, 2007). The panel concluded that the facts alleged by Downs, if proven to be true, would entitle him to equitable tolling. Among his allegations was that state post-conviction counsel lied to Downs, telling him that a state habeas petition had been filed when in fact no petition had been filed.. Questions by Downs to counsel about the progress of his case were allegedly ignored. It was only on the last day of the federal limitation period that a state habeas petition was finally filed. While that petition was pending, Downs continued to urge counsel to take steps necessary to meet the federal deadline and also to raise new claims in state court. Downs even drafted a pro se federal habeas petition that he intended to compare with post-conviction counsel’s draft in order to ensure all claims he wanted to assert were included. When meeting with Downs, however, state counsel failed to bring a draft petition. Frustrated, Downs instructed counsel in a letter to file his pro se petition, which he had given to state post-conviction counsel, in order to ensure the federal deadline was not missed. When responding to Downs’s letter, post-conviction counsel did not state whether Downs’s order had been followed. Downs unsuccessfully attempted to learn whether the petition had been filed and expressed concerns that his attorney suffered from alcoholism that was negatively impacting his work on Downs’s case. After the Florida Supreme Court denied the state habeas petition, post-conviction counsel filed for rehearing. While that was pending, and without an explanation, counsel returned Downs’s pro se federal petition to him. Counsel did not indicate whether he had prepared and filed a federal petition as Downs had repeatedly asked him to do. The Florida Supreme Court denied the rehearing petition a month later. State post-conviction counsel waited nine days before filing the federal petition. At that point, Downs fired his attorney and was allowed to proceed pro se in the district court.In denying equitable tolling, the district court relied on circuit precedent holding that negligence by post-conviction counsel does not justify equitable tolling. The panel adopted the view of the majority of circuit courts that egregious attorney misconduct can provide a basis for equitable tolling. Looking to the facts alleged by Downs, the panel then found: “During the course of representation, counsel’s alleged behavior ran the gamut from acts of mere negligence to acts of gross negligence to acts of outright willful deceit. In considering whether the conduct of counsel was extraordinary, we will not dissect the continuing course of conduct in which counsel engaged, but rather view counsel’s behavior as a whole. Consequently, although the culminating event which rendered Downs’ federal habeas petition untimely was counsel’s late filing of the petition, that ordinary act of negligence cannot be isolated from counsel’s allegedly egregious misconduct.” The panel further noted Downs’s alleged diligence in seeking to ensure a federal petition was timely filed. On this record, the panel concluded that Downs had alleged extraordinary circumstances justifying equitable tolling should his allegations prove to be true.

Abandonment by a retained attorney was found to be an extraordinary circumstance in Ragan v. Horn, ___ F.Supp.2d ___, 2008 WL 612 674 (E.D. Pa. March 6, 2008). In that case, the petitioner’s mother had hired an attorney to challenge both the murder conviction that was used as the sole aggravating factor in petitioner’s capital case, as well as to represent petitioner in his direct appeal of his death sentence. After a state challenge to the murder conviction was unsuccessful, the attorney agreed to file a habeas petition. The attorney never did so nor informed petitioner’s mother that he was not going to do so. In finding that petitioner was diligent, the district court placed great weight on the relationship between the attorney and petitioner’s mother. During the course of state proceedings, the attorney regularly reported to petitioner’s mother about significant events. Therefore, it was reasonable for her to assume regarding the federal petition that no significant events or deadlines were looming on the horizon. Under these circumstances, the district court concluded that counsel’s abandonment of petitioner constituted an extraordinary circumstance justifying equitable tolling. That petitioner is under a sentence of death was also considered by the district court, which noted: “it would defy common sense to ignore the fact that abandoning a client facing execution is immensely more egregious than abandoning a client facing, say, a term of years in prison or a monetary fine.” The district court further found that the petition eventually filed by replacement counsel related back to petitioner’s filing of a request to proceed in forma pauperis several months before the actual petition was filed.

Keary Lamar Littlejohn v. State, 2008 OK CR 12 (Okla. Crim. App. 3/26/2008) Trial counsel should have known that their client was likely to lose and be convicted of capital murder; counsel needed to start thinking about the penalty phase long before they did. Specifically:

On October 12, 2007, the district court submitted a detailed document entitled, “Agreed Findings of Fact and Conclusions of Law,” approved by counsel for both parties. Given the State’s position on this claim, we need not present Appellant’s argument in great detail. Essentially, he claims that trial counsel did not devote sufficient time and attention to developing a persuasive mitigation strategy. Trial counsel presented only two witnesses in the mitigation phase of the trial, Appellant and his mother. According to the stipulated facts, Appellant conducted no further investigation into other sources of mitigating evidence, nor did he adequately prepare either Appellant or his mother before they testified. The parties stipulated that, had trial counsel conducted a reasonably adequate investigation, he would have discovered a number of mitigating factors that might have affected the jury’s choice of sentence, including: (1) that according to school records, Appellant, while not mentally retarded, suffered from a low I.Q. and attended special education classes; (2) that Appellant grew up in an environment of domestic abuse involving his mother and his step-father; (3) that during Appellant’s teenage years, his stepfather began selling crack cocaine, and his mother began using crack cocaine; (4) that Appellant did not learn that his stepfather was not his biological father until he was a teenager, and that he subsequently quit school, left home, and began getting into trouble; (5) that according to a friend of Appellant’s family, who saw Appellant shortly after Gregory Rogers’s murder, Appellant was so upset and remorseful about what had happened that he threatened suicide.

¶27 Appellant was entitled to the effective assistance of counsel at trial. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We begin with the presumption that counsel’s efforts were adequate, and that counsel’s decisions were part of a sound trial strategy. Id. at 689, 104 S.Ct. at 2065; Andrew v. State, 2007 OK CR 23, ¶ 96, 164 P.3d 176, 198. To prevail on a claim that counsel was ineffective, Appellant must demonstrate that counsel’s efforts and decisions were professionally unreasonable – so unreasonable as to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Andrew, 2007 OK CR 23 at ¶ 97, 164 P.3d at 198. In capital cases, the constitutional guarantee to reasonably effective counsel includes the right to a reasonably adequate investigation into potential mitigation evidence – evidence which might convince a jury that a sentence of death is not appropriate. In recent years, the Supreme Court has issued a number of decisions applying the Strickland standards to the unique responsibilities in preparing a capital mitigation case. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Likewise, this Court has applied Strickland in the context of capital mitigation investigations, and granted relief when those investigations proved wanting. Malone v. State, 2007 OK CR 34, ¶¶ 101-113, 168 P.3d 185, 223-29; Marquez-Burrola, 2007 OK CR 14 at ¶¶ 42-61, 157 P.3d at 763-68. While each of these cases obviously presents a unique set of facts, their common theme is that, generally speaking, an uninformed capital mitigation strategy is not a sound one. To paraphrase the Supreme Court in Strickland, counsel’s strategic decisions are entitled to deference, but only in proportion to the amount of reasonable investigation behind them. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.

¶28 The supplementary materials submitted by Appellant raise substantial questions about trial counsel’s effectiveness in the capital sentencing stage. We observe that, in light of the felony-murder doctrine, Appellant’s voluntary confession to police about his involvement in the robbery essentially foreclosed any issue of Appellant’s guilt. This was a trial about punishment and nothing more, and the record indicates that counsel was well aware of that fact. Trial counsel could have, and should have, focused his energies on developing a more extensive mitigation case. On remand, the State conceded that trial counsel’s performance in this regard was professionally unreasonable, and could have affected the jury’s decision to impose the death sentence. In its findings of fact and conclusions of law, the trial court carefully evaluated the three aggravating circumstances found by the jury and, assuming the evidence was sufficient to support them, the court nevertheless concluded that the available but unused mitigation evidence could have made a difference in the jury’s ultimate sentencing decision. While this Court makes the ultimate determination of whether trial counsel’s deficient performance warrants relief, we give great deference to the trial court’s findings on the issue, and review only for an abuse of discretion. Patterson v. State, 2002 OK CR 18, ¶ 19, 45 P.3d 925, 930; Rule 3.11(B)(3)(b)(iv), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007). The record and detailed findings before us support the trial court’s conclusions. We therefore VACATE the sentence of death imposed in Count 1 and REMAND FOR RESENTENCING. Our resolution of this claim renders Appellant’s other claims relating to the capital sentencing phase of the trial moot.

State v. Wade Maughan, 2008 Utah LEXIS 56 (Utah 4/1/2008) Prosecutors in State v. Maughan convinced a trial court to go along with their claim Maughan’s counsel was conflicted for zealously protecting their client’s interest (previously discussed here). Maughan’s counsel apparently informed witnesses they didn’t have to talk to cops. The cops returned the favor telling witnesses they need not talk to the defense. The trial court sided with the cops/prosecutors & recused Maughan’s counsel calling counsel’s action potentially unlawful and/or unethical & that it would not permit Maughan’s counsel (despite the Accused’s desire they continue) to continue under these circumstances. The Utah Supreme Courtholdsthe trial court overreacted & both the lower court & the prosecution over reacted as even if there was a conflict, any possible conflict here could be waived. From that opinion:

At the outset, we reiterate that had the district court believed disqualification was required because of the risk that the lawyers’ conduct posed to the integrity of the judicial process, the court would not have been justified in permitting either lawyer to remain as Mr. Maughan’s counsel. The district court’s ruling, then, can only be read to mean that the court concluded that the continuing representation of Mr. Maughan by either of his lawyers would not compromise the integrity of the process. We hold that the district court did not abuse its discretion when it declined to disqualify Mr. Maughan’s lawyers on this ground and affirm.The issue left for us to decide is whether the lawyers’ Spokane misadventures created a real, present conflict [*14] of interest or a serious potential, future conflict of interest and, if it did, whether Mr. Maughan could waive any such conflict.

The district court noted as the sole potential conflict the claim that the circumstances surrounding Mr. Mauro’s arrest and Mr. Williams’ Spokane activities could surface to the detriment of Mr. Maughan during his trial. Despite the State’s attempts to describe this conflict, we remain both unable to fully comprehend it and skeptical of the significance of those features that we can grasp.

In an effort to establish Mr. Wagar’s bias in favor of Mr. Maughan, the State suggests that it may attempt to extract testimony from Mr. Wagar that he complied with Mr. Mauro’s alleged admonition not to talk to the police. Even were we to assume [*18] that Mr. Wagar’s allegiance to Mr. Maughan would not have been made so clear by the time the State embarked on this line of cross-examination that it would not have been merely cumulative, we see little justification to expand the inquiry to include the claim that the admonition was unlawful or unethical.

Moreover, every witness Mr. Mauro allegedly instructed not to talk to the Spokane police ultimately did so, and Mr. Williams’ instructions to the witnesses on December 8 undoubtedly played a part. We therefore find it difficult to accept the claim that disclosure of the alleged unlawful instruction would result in the infliction of material damage to the credibility of either lawyer or that any impaired credibility sustained by the two lawyers would infect Mr. Maughan.

Despite our puzzlement and skepticism, we defer to the district court’s finding that the events in Spokane might generate a potential conflict and do not conclude that it was clearly erroneous. Our assessment that the potential conflict is not serious enough as to render it beyond the power of Mr. Maughan to waive is likewise in accord with the district court’s approval of waiver implicit in its decision to permit one [*19] of Mr. Maughan’s lawyers to continue to represent him. We depart from the district court only to the extent that we hold that the potential conflict identified by the district court was of so little consequence that Mr. Maughan should have been afforded the opportunity to waive it with respect to both Mr. Mauro and Mr. Williams. We therefore remand this matter to the district court for the purpose of inviting Mr. Maughan’s waiver of the potential conflict relating to his disqualified counsel, Mr. Williams.

We recognize the challenges that confront a district court when assessing whether a defendant has knowingly and voluntarily waived an attorney’s potential conflict of interest. As we noted above, the specter of being whipsawed by claims of error no matter which way a judge rules is more than fanciful. We are “sensitive to the possibility that a defendant may seek a waiver and then try to use it to his or her advantage later.” State v. Johnson, 823 P.2d 484, 491 (Utah Ct. App. 1991).

We therefore instruct the district court on remand to appoint qualified conflict counsel to represent Mr. Maughan for the limited purpose of ascertaining whether [*20] Mr. Maughan desires to waive the potential conflict with respect to Mr. Williams and to ensure that Mr. Maughan’s waiver is knowing and voluntary.