Four cases deserve special attention this edition,Deck v. Missouri,Thomas v. Virginia,Tennard v. Cockrell&California v. Hillhouse. Two other cases, not hot listed,Benn v. Lambert&Smulls v. Missouriare deserving of quick survey.

The Missouri Supreme Court inDeck v. Missouri, one of four capital cases noted from that jurisdiction this week, grants post-conviction relief. What makes Deck's case so unique is that a new trial was found to be necessary due to trial counsel's failure to object to an erroneous jury instructions. On direct appeal the Missouri Supreme Court denied relief on the same erroneous jury instruction under the plain error doctrine. In reaching the conclusion that trial counsel was ineffective the Missouri Supreme Court sets forth in exquisite detail the difference between plain error review and the Strickland standard for ineffective assistance of counsel.

The Virginia Supreme Court inThomas v. Virginialikewise reverses. TheThomascourt ordered a new trial as the court below used the wrong standard in its determination of a motion for a change of venue. The court, after granting the appellant a guilt phase reversal, notes in dicta that the prosecution during any new penalty phase may introduce evidence from any person "who may have relevant victim impact testimony" and would not be limited merely to those persons specifically enumerated by statute.

In a stunning denial of relief out of Texas, a panel of the Fifth Circuit inTennard v. Cockrellexplores the role of Texas's special questions & mental retardation. A split panel holds Petitioner "did not establish or argue to the jury that he was mentally retarded" as the witness & counsel never actually used the word "retarded" in front of the jury. The panel reaches these conclusions despite testimony at trial that indicated Tennard has an IQ of 67 & that trial counsel in closing repeated several times the fact his client had a low IQ. In the alternative, the panel holds, the petitioner "made no showing at trial that the criminal act was attributable to this severe permanent condition." [Note: The Death Penalty Information Center has developed a comprehensive guide to somemental retardation issues- http://www.deathpenaltyinfo.org/dpicmr.html.]

In the final hot listed case,California v. Hillhouse, the California Supreme Court clarifies the use of the kidnap-murder special circumstance in that state. Although striking the aggravator of kidnap-muder, the Court upholds the sentence of death based on the existence of other aggravating circumstances. The Court based its striking of the aggravator on insufficiency of the evidence.

Two other cases deserve a quick mention. InBenn v. Lambertrelief is had on the government's failure to turn over exculpatory information in this Washington capital case. InSmulls v. Missourithe Missouri Supreme Court has affirmed a racially charged capital case that, in the words of the dissent, has lead to "the fairness and impartiality of the Missouri judicial system [being] repeatedly called into question."

Continuing with the theme of mitigation this week portions of Craig Haney's,VIOLENCE AND THE CAPITAL JURY: MECHANISMS OF MORAL DISENGAGEMENT AND THE IMPULSE TO CONDEMN TO DEATH, 49 STNLR 1447, July 1997, is presented in the Focus section. Haney explores the necessity to humanize a client accused of capital crimes in the eyes of the jury if their life is to be saved.

A correction is noted this week. Last week's edition went out prior to a final read through and factual double check. Two corrections are noted to the coverage of Cockerham v. Cain most notably reporting that case as a capital case, Cockerham, in fact, is a noncapital case.

Since the last edition the following have been executed.

March

6 Jeffrey Tokar Missouri

7 Gerald Tigner Texas

Executions slated and considered likely for March & April 2002:

March

12 Rodolfo Hernandez Texas

12 Tracy Housel Georgia---for. national

14 James Earl Patterson Virginia--volunteer

April

2 Daniel Zirkle Virginia--volunteer

5 Gary Brown Alabama

10 Abu-Ali Abdur'Rahman Tennessee

11 William Burns Texas

17 Robert Henry Texas

18 Gerald Casey Texas

19 Lynda Lyon Block Alabama

26 Alton Coleman Ohio

This week's edition is at http://www.capitaldefenseweekly.com/archives/020304.htm

HOT LIST CASES

Deck v. Missouri, 2002 Mo. LEXIS 43 (Mo. 02/26/2002) Relief granted on trial counsel's failure to object to erroneous jury instructions even after denying relief on direct appeal for the same jury instructions under the plain error test.

On direct appeal, this Court rejected Mr. Deck's claim that it was plain error to omit the last two paragraphs of MAI-CR3d 313.44A from Instructions 8 and 13, stating:

For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury so that it is apparent that the instructional error affected the verdict.

Deck, 994 S.W.2d at 540 (emphasis added). This definition of plain error is consistent with that in other cases. Although "prejudicial error" is a condition precedent of "plain error," "prejudicial error" does not inevitably rise to the level of "plain error." State v. Miller, 604 S.W.2d 702, 706 (Mo. App. W.D. 1980). To show plain error, defendant must show the error so substantially affected his rights that a manifest injustice or a miscarriage of justice would result were the error left uncorrected. Rule 30.20; State v. Winfield, 5 S.W.3d 505, 516 (Mo. banc 1999).

Deck determined that the prejudicial effect of the omission of the two noted paragraphs from Instructions 8 and 13 was ameliorated by the giving of Instructions 9 and 14. Instruction 9 stated *fn2:

As to Count I, you are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. You must consider all the evidence in deciding whether to access and declare the punishment at death. Whether that is to be your final decision rests with you.

If these instructions are read together, Deck concluded, the jurors would realize that they did not have to be unanimous as to each mitigating factor. The instructions, therefore, did not affirmatively mislead them, and the high standard for finding plain error was not met even in the absence of the missing paragraphs. Id. at 541. Deck also rejected the contention that the court should have defined "mitigating," holding it has no special legal definition and that it was not error to deny the jury's request for a dictionary because "the jury should rely solely upon the evidence and the court's instructions." Id. at 542.

* * *

B. Strickland Standard for Grant of Post-Conviction Relief.

The United States Supreme Court set out the standard for granting post-conviction relief based on allegations of ineffective assistance of counsel in Strickland. It held that the "benchmark" for judging whether counsel is ineffective is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686. It further explained that in order to meet this standard movant must show by a preponderance of the evidence: (1) that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and (2) that counsel's deficient performance prejudiced the defense. Id. at 687-88.

A movant bears a heavy burden in establishing the first prong of the standard by a preponderance of the evidence, for the movant must overcome a strong presumption that counsel provided competent assistance. Rule 29.15(i); Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992). Movant must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. To do this, movant must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the "court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance." Id. at 690.

In regard to the second prong of the Strickland test, the Court said that an "error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. For this reason, a movant must claim counsel's errors resulted in prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694 (emphasis added).

This standard is not met by showing that the errors "had some conceivable effect on the outcome of the proceeding" or that the errors "'impaired the presentation of the defense,'" as those standards are either unworkable or subject to being satisfied by every error. Id. at 693. On the other hand, the Supreme Court specifically rejected the argument that a movant must meet an "outcomedeterminative" test by showing that it is more likely than not that counsel's deficient conduct altered the outcome of the case, because "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id.

***

D. Reasons for the Distinction in Applicable Standards of Review.

The reason why the standards of review of preserved and unpreserved error on direct appeal are different from each other, and why both are in turn different from the standard for review of a post-conviction motion, is explained by the very different focuses of the inquiries under each standard. On direct appeal, the issue is whether the trial court erred in its rulings at trial. Appellate review of preserved error is "for prejudice, not mere error, and [it] will reverse only if the error is so prejudicial that it deprived the defendant of a fair trial." State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). If no objection was made or the error was otherwise not preserved, then the trial court cannot normally be accused of error in its rulings, much less prejudicial error. In order to serve the need for accuracy in the outcome of a trial, appellate courts have the discretion to nonetheless review for plain error if manifest injustice would otherwise result. Rule 30.20; State v. Johnson, 968 S.W.2d 123, 127 (Mo. banc 1998). But, both of these standards presuppose "that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged." Strickland, 466 U.S. at 694.

By contrast, when a post-conviction motion is filed alleging ineffective assistance of counsel, defendant is asserting "the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower." Id. The ultimate determination thus, is not the propriety of the trial court's actions with regard to an alleged error, but whether defendant has suffered a genuine deprivation of his right to effective assistance of counsel, such that this Court's confidence in the fairness of the proceeding is undermined. Cf. Wilson v. State, 813 S.W.2d 833, 834 (Mo. banc 1991); Walker v. State, 698 S.W.2d 871, 875 (Mo. App. W.D. 1985).

Of course, as Strickland recognized, 466 U.S. at 694, 697, this theoretical difference in the two standards of review will seldom cause a court to grant post-conviction relief after it has denied relief on direct appeal, for, in most cases, an error that is not outcome-determinative on direct appeal will also fail to meet the Strickland test. Nonetheless, Strickland cautions that the distinction in the standards of review is important because there are a small number of cases in which the application of the two tests will produce different results. Id. at 697.

This is borne out in the several Missouri cases that have found a basis for post-conviction relief, or recognized that such a basis could exist, despite finding no plain error on direct appeal. For instance, in Kenner v. State, 709 S.W.2d 536 (Mo. App. E.D. 1986), the court noted that on direct appeal it had held that the trial court did not commit plain error in admitting evidence of other crimes committed by defendant, where counsel did not object to admission of this evidence. Id. at 539. There, as here, the State argued that claims rejected on direct appeal are not cognizable in his post-conviction motion. Id. at 540. Kenner rejected this argument based on the distinction between the issues before a court on direct appeal and on post-conviction review, stating:

In reviewing the trial court's decision on movant's Rule 27.26 motion we are not determining the propriety of the admittance into evidence of testimony and photographs . . . We are determining whether defense counsel's failure to timely and properly object to this evidence constitutes ineffective assistance of counsel thereby prejudicing movant. We find that the untimeliness ... was highly prejudicial and is grounds for granting movant[']s Rule 27.26 motion. Id. (emphasis added).

Other opinions recognize that the two inquiries are different and that denial of a plain error claim is not dispositive of the question whether counsel was ineffective in failing to preserve the issue as to which plain error was not found. See, e.g., State v. Sublett, 887 S.W.2d 618, 620 (Mo. App. W.D. 1994) (court found no plain error, said it "could not say" how it might have ruled were the issue preserved, and remanded for determination of the separate issue whether counsel would be found ineffective under Rule 29.15 for failing to object

***

To meet the first prong of Strickland, Mr. Deck was required to show by a preponderance of the evidence that his trial counsel was ineffective in offering instructions that omitted the two paragraphs from MAI-CR3d 313.44A that told the jurors they must consider circumstances in mitigation of punishment and need not be unanimous. *fn7 At the hearing, counsel acknowledged that she had thought the omitted paragraphs were in the instructions and that she had a responsibility to see that they were. She also agreed that mitigation was crucial to her defense, and that she wanted the court to give correct mitigation instructions and to define mitigation, but just failed to make a record of this. Indeed, while her own view of her effectiveness is not determinative, it is noteworthy that she testified, "We...copied the wrong version of 313.44," "I'm willing to accept the blame for that," "I'm the first one to raise my hand and say I should've caught it and I didn't," and "I was ineffective not realizing that the instructions were incomplete." And, this was not a situation in which objection would have been futile. The missing paragraphs were actually required by MAI-CR3d 313.44A; a presumption of error would have arisen had they been requested but not given. Rule 28.02(c), (f).

Although counsel's actions should be judged by her overall performance, the right to effective assistance of counsel "may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478, 496 (1986). The submission of faulty instructions on the critical issue of mitigation was a "sufficiently egregious" error that it deprived Mr. Deck of "reasonably effective assistance" of counsel. See also, Strickland, 466 U.S. at 693-696.

***

The major focus of Mr. Deck's defense to the State's request for the death penalty was the existence of mitigating circumstances. The defense presented substantial evidence concerning the abuse Mr. Deck suffered as a child, the lack of parental love and his continual move from one foster home to another. It presented evidence that, despite all this, he continued to love and care for his younger siblings, scrounging for food for them and bathing them while his mother was out at clubs or with boyfriends. It showed how the Pucketts wanted to adopt him and give him a chance to grow up in a loving family, but he was instead returned to his mother and

further abuse.

The missing paragraphs of the instruction told the jury about the need to balance this mitigating evidence with the aggravating circumstances focused on by the State, and what evidence the jury could consider in deciding mitigation. These paragraphs were thus central to the pivotal defense offered by Mr. Deck. But the jurors never heard them. Moreover, most of the jurors never heard an explanation of the concept of mitigation during voir dire, for defense counsel failed to give them one. While she was not required to do so, in the absence of such an explanation, the jurors were more dependent on the instructions.

Most tellingly, the jurors themselves indicated that they were confused about the very issue of mitigation. They sent the judge a note stating they were confused about what mitigation meant in Instruction 8 and asking for a legal definition of the term and, later, requesting a dictionary so they could look up the term themselves. While the court's denial of their requests was proper, the requests show that the jury was focusing on the issue of mitigation and may have been confused by what it meant as used in the instructions.

It is the jurors' focus on mitigation and their apparent confusion about it when considering whether to impose the death penalty that causes this Court to conclude that this case belongs in that small group of cases in which the Strickland standard of review leads to a different outcome than does the heightened standard applied on plain error review. For this reason, this Court holds that in this case defense counsel's professional incompetence in failing to include the two mitigation paragraphs or to object to their absence was so egregious as to entitle Mr. Deck to a new penalty phase trial.

In so holding, this Court does not suggest that the failure to give these two paragraphs is so inherently erroneous that it will always result in prejudice under the Strickland standard. Each case must be decided on its own facts. State v. Beeler, 12 S.W.3d 294, 299 n.3 (Mo. banc 2000). But, on the particular facts of this case in which substantial mitigating evidence was offered, counsel's errors have so undermined this Court's confidence in the outcome of the trial that the Court concludes there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Thomas v. Virginia, 2002 Va. LEXIS 27 (VA 3/1/2002) New trial ordered as the court below used the wrong standard to determine whether a change of venue was necessary. Dicta states that on retrial that penalty phase testimony may be had from any person "who may have relevant victim impact testimony" and not merely those who are specifically enumerated in state statute.

We begin our review by reciting the principles which we apply when reviewing a challenge to the denial of a motion for a change of venue in a criminal case. First, there is a presumption that a defendant will receive a fair trial in the jurisdiction where the offense occurred and the defendant bears the burden of overcoming "this presumption by demonstrating that the feeling of prejudice on the part of the citizenry is widespread and is such that would 'be reasonably certain to prevent a fair trial.' " Mueller v. Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992) (citing Stockton v. Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380 (1984)).

In considering evidence of community prejudice based on pretrial publicity, [*22] widespread knowledge of the case alone is insufficient to overcome the presumption. Jurors need not be ignorant of the crime. Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961); Buchanan v. Commonwealth, 238 Va. 389, 406, 384 S.E.2d 757, 767 (1989). In addition to the volume of publicity, factors identified as relevant in determining the impact of pretrial publicity on the defendant's ability to obtain a fair trial are whether the publicity is accurate, temperate, and non-inflammatory, and the timing of the publicity. Id. at 407, 384 S.E.2d at 769; Greenfield v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 419-20 (1974). Thus, publication of matters concerning the crime, the accused's prior criminal record, and even a confession of the accused, if factually accurate and non-inflammatory, is not improper and will not alone support a change of venue. Id., 204 S.E.2d at 420.

A potential juror who has knowledge of the case, even if such person has formed an opinion about the case, is entitled to sit on the jury if that opinion can be set aside. Irvin, 366 U.S. at 722-23. [*23] But the difficulties that the trial court encounters when finding jurors who, despite having advanced knowledge of the case and, perhaps, even preformed opinions, can impartially judge the case are relevant to deciding a motion to change venue. The ease with which an impartial jury can be selected is a critical element in determining whether the prejudice in the community stemming from pretrial publicity is so wide-spread that the defendant cannot get a fair trial in that venue. Roach v. Commonwealth, 251 Va. 324, 342, 468 S.E.2d 98, 109 (1996); Mueller, 244 Va. at 398, 422 S.E.2d at 388. Thus, generally it will be necessary for a trial court to undertake the task of attempting to seat the jury. Coppola v. Commonwealth, 220 Va. 243, 248, 257 S.E.2d 797, 801 (1979). n6

We now apply these principles to the instant case. As the trial court acknowledged, the amount of publicity surrounding this case was significant. One hundred fifty-eight of the 188 television transcripts submitted by Thomas aired in January and February 2001. While Thomas does not challenge the accuracy of any of these reports, he does cite three specific reports that he asserts were intemperate or inflammatory. In two of these televised interviews Thomas was described as "obsessive and unbalanced" and the interviewee stated that the end of Thomas' relationship with his former girlfriend just before Tara's disappearance, "may have pushed him over the edge." The interviewee also stated that Thomas had a motive to harm Tara Munsey because she was engaged to the son of Thomas' former girlfriend.

In the other television interview, the reporter identified a woman who claimed that Thomas "had threatened her life." The reporter went on to state that "Thomas' temper and short fuse kept [the woman] in fear of her life. A fear that isn't completely gone even though Thomas remains behind bars."

Thomas also asserts that there were inaccuracies in some of the 111 newspaper articles reporting [*25] on the crime and trial that were prejudicial to Thomas. One article reported that a search warrant for Thomas' person and car led to the discovery of a .22 caliber Marlin rifle, "which authorities believe was used in the murder." Similarly one headline stated "Police tie bullet to murder suspect" when in fact the bullets found could not be linked to Thomas. Retractions of these statements were subsequently published.

Certainly the volume of the pretrial publicity was extensive. The tenor of the publicity went beyond dispassionate reporting of the events surrounding the crime, the victim, and the accused, even though it did not declare the accused guilty or call for his conviction or for a specific punishment. Compare Irvin, 366 U.S at 725. Further, the inaccuracies are additional persuasive evidence of the existence and development of community prejudice against Thomas.

Even in light of the volume and nature of the pretrial publicity in this case, the trial court was correct in proceeding to engage in voir dire. Such publicity was not so inaccurate, inflammatory or extensive that the trial would be deemed inherently lacking in due process. Accordingly, the trial [*26] court correctly took the matter under advisement until the voir dire process. However, when it finally denied the motion to change venue, the trial court concluded that the only relevant fact remaining to be considered was that it had ultimately seated an impartial jury. The record contains no indication that the trial court considered any other factor when making its decision to deny the motion to change venue. This is an improper test.

While this Court has included statements regarding the impartiality of the jury actually seated when discussing the relative ease of seating the jury, it is the ease of seating the jury that is the relevant factor, not the ultimate result of that process. Never has this Court held the impartiality of the seated jury to be a factor in considering whether a motion for a change of venue should be granted, much less found it dispositive. See, e.g., Mueller, 244 Va. at 398- 99, 422 S.E.2d at 388-89; Greenfield, 214 Va. at 717, 204 S.E.2d at 420; Wansley v. Commonwealth, 210 Va. 462, 468, 171 S.E.2d 678, 683 (1970).

This principle is consistent with that announced by the United States Supreme Court. [*27] In Irvin v. Dowd, although a significant percentage of jurors were struck for cause and had pre-formed opinions of the defendant's guilt, the trial court was able to seat a jury that it judged would be impartial. Irvin, 366 U.S. at 727. The United States Supreme Court reversed, however, holding that given the difficulty of impaneling the jury and the evident influence of publicity on the jury pool, the trial court's finding of impartiality failed to make it reasonably certain that the defendant would get a fair trial and, therefore, a change of venue was necessary. Id. at 727-28.

Measuring the ease of impaneling a jury is an important tool in considering a request for change of venue. It allows the trial court to take into account a cross section of the community so as to understand the pervasiveness of prejudice. It also allows the trial court to keep in mind that justice must not only be fair, it must also be above suspicion, Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976) (citing Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)), because the more difficult it is to [*28] seat a jury, the more likely it is that the public will believe the judicial process to be tainted by prejudice. While both victims and society have an interest in punishing those individuals who violate our criminal statutes, no one's interests are served when the process by which a defendant is found guilty is not above suspicion. The fairness of a criminal proceeding cannot be sacrificed because of the "heinousness of the crime charged, the apparent guilt of the offender or the station in life which [the defendant] occupies." Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961).

Accordingly, we conclude that the trial court erred, as a matter of law, by failing to apply the proper test and failing to consider the necessary factors when making its decision to deny Thomas' motion to change venue. Consequently, because the trial court used an improper legal standard in exercising its discretionary function, we are unable to apply the appellate review standard of abuse of discretion. In light of this holding, the judgment of conviction must be vacated. While this disposition eliminates the need for us to address many of Thomas' remaining assignments [*29] of error, we will address one assignment of error that is likely to arise again in the event of retrial.

Tennard v. Cockrell, 2002 U.S. App. LEXIS 3332 (5th Cir 3/1/2002) (dissent)Tennard's sole argument is that the jury was unable to give effect to the mitigating evidence of his mental retardation when answering the special issue with respect to future dangerousness at the punishment phase.

Relying on Penry v. Lynaugh, n3 Tennard argues that the special issues submitted at the punishment phase did not provide the jury with a vehicle for giving mitigating effect to his evidence of mental retardation. Specifically, Tennard contends that a juror [*8] answering the two special issues affirmatively but nevertheless believing a life sentence appropriate (based on the evidence of his mental retardation) had no vehicle to express this belief.

In reviewing a Penry claim, we must determine whether the mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. Davis v. Scott, 51 F.3d 457, 460 (5th Cir. 1995). To be constitutionally relevant, "the evidence must show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, . . . and (2) that the criminal act was attributable to this severe permanent condition." Id. at 460-61 (internal quotation marks and citation omitted).

As previously set forth, during the punishment phase, Tennard called his parole officer, William Kinard (Kinard), as a witness. Kinard testified that an I.Q. test was administered to [*9] inmates at TDC as a matter of course. Kinard also testified that a document from TDC provided Tennard's I.Q. was 67. Kinard was the only defense witness who testified before the jury during the punishment phase. n4

During defense counsel's closing argument, he referred to Tennard's "low" I.Q. several times:

Then I called a witness who testified he's Tennard's parole officer. Uncontroverted evidence that when Robert Tennard was examined, when he got out of the penitentiary, by the officials who determined how to classify him, how to treat him, the same information that was communicated to his parole officer, what to do for him, how to help him when he's out on parole. Information that the prison psychiatrist had, the information that they gave is that Tennard has got a 67 IQ. The same guy that told this poor [*10] unfortunate woman [the rape victim] that was trying to work that day, "Well, if I let you in there, will you leave?" And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient . . . that is that low.

* * *

Now you're charged with acting as Robert Tennard's peers. You have to judge him as his peers. That's going to be hard for you to do. None of you grew up where he grew up. Only one of you is black and none of you are suffering from a 67 IQ. So you're going to have to try to judge this man and decide what his punishment would be as his peers. And I would ask you as you do that, as is your responsibility, you take into consideration the things that you have been informed of by me and by things the prosecutor has told you in judging Robert Tennard . . . .

* * *

And don't let [the prosecutor] get up here and tell you to put blinders on and just answer the questions in a vacuum. The law allows you to take all the things into consideration that I talked to you about -- attitude toward the death [*11] penalty, take all these things into consideration, the 67 IQ -- in deciding how you answer the those questions. You have a right to do that under Texas law. Don't let [the prosecutor] tell you you can't just look at the evidence and just answer the questions. You are allowed more latitude than that. Remember, what you do here will be forever lasting one way or the other. . . .

(emphasis added).

As the record reveals, although defense counsel presented evidence of Tennard's low I.Q., he did not argue that Tennard was mentally retarded. The Court of Criminal Appeals recognized that the term "mental retardation" was never mentioned in the trial record. Ex parte Tennard, 960 S.W.2d at 59. Indeed, a majority of the Court of Criminal Appeals found "no evidence in this record that [Tennard] is mentally retarded." Id. at 61. n5 Under the AEDPA, we are required to afford a presumption of correctness to this factual finding. 28 U.S.C. § 2254(e)(1); see Davis, 51 F.3d at 461 n.4 (affording a presumption of correctness to state court's finding of no evidence that petitioner was mentally retarded).

This Court has explained that evidence of a low I.Q. does not constitute a uniquely severe condition or is within the jury's effective reach pursuant to the teachings of Penry. Andrews v. Collins, 21 F.3d 612, 629-30 (5th Cir. 1994); Lackey v. Scott, 28 F.3d 486, 489-90 (5th Cir. 1994).

Nevertheless, Tennard contends that an individual with an I.Q. of 67 has significantly below normal functioning and is presumptively mentally retarded. Thus, he argues, such an individual is less able than a normal adult to control his conduct, evaluate the consequences of his conduct, and learn from his mistakes. To support this proposition, Tennard points out that the American Association of Mental Retardation (AAMR) classified individuals with an I.Q. score of 75 and below as presumptively retarded. See AAMR Mental Retardation: Definition, Classification, and Systems of Supports 14 (9th ed. 1992).

The flaw in Tennard's argument is that he did not establish or argue to the jury that he was mentally retarded. A prison document provided that Tennard had an I.Q. score of 67. There was no evidence introduced with respect to the meaning of the score, nor its relation [*13] to Tennard's moral culpability. As stated, the term "mental retardation" was never articulated before the jury. This dearth of evidence is in stark contrast to the "substantial mitigating evidence that Penry was mentally retarded." Penry v. Johnson, 261 F.3d 541 (5th Cir. 2001). Under these circumstances, we are constrained to hold that Tennard has not rebutted the presumption of correctness afforded the state court's finding that there was "no evidence" of Tennard's mental retardation.

Even assuming arguendo for purposes of this appeal that Tennard has rebutted with clear and convincing evidence the state court's finding of no evidence of mental retardation, his claim must fail because he made no showing at trial that the criminal act was attributable to this severe permanent condition.

We have recognized it is not simply the fact that one is labeled mentally retarded that establishes a Penry claim. See Robison v. Johnson, 151 F.3d 256, 264 (5th Cir. 1998) (citing Robison v. Texas, 888 S.W.2d 473 (Tex.Crim.App. 1994)). n6 A petitioner must show there is a nexus between the severe permanent condition (here, alleged mental [*14] retardation) and the capital murder. As in Tennard's case, in Boyd v. Johnson, the only evidence of mental retardation introduced at trial was the petitioner's I.Q. score of 67 contained in his prison packet. 167 F.3d 907, 912 (5th Cir. 1999). We stated that even assuming that the I.Q. score of 67 demonstrates a "'uniquely severe permanent handicap,' it does not establish 'that the criminal act was attributable to this severe permanent condition.'" Id. (quoting Davis, 51 F.3d at 461). Moreover, we expressly have rejected the notion that "a nexus is inherent between any evidence of mental retardation and a crime." Harris v. Johnson, 81 F.3d 535, 539 n.11 (5th Cir. 1996).

Tennard is precluded from establishing a Penry claim because he failed to introduce at trial [*15] any evidence indicating that the capital murder was in any way attributable to his I.Q. of 67. See Crank v. Collins, 19 F.3d 172, 175-76 (5th Cir. 1994) (stating that it is well established capital defendants cannot base a Penry claim upon evidence that could have been, but was not, proffered at trial).

For the above reasons, we conclude that Tennard has not made a substantial showing of the denial of a constitutional right and DENY his request for a COA.

California v. Hillhouse, 2002 Cal. LEXIS 619 (Cal. 02/25/2002) Although insufficient evidence exists to affirm the kidnap-murder special circumstance, other valid aggravators exist that permit the affirmance of the sentence of death.

Kidnapping for Robbery and the Kidnapping-murder Special Circumstance

The jury convicted defendant of kidnapping Schultz for robbery and found true a kidnapping-murder special circumstance. The trial court also instructed on kidnapping as a theory of first degree felony murder. As the court instructed the jury, the kidnapping count was not based on the movement in the truck, for there was no evidence that movement was against Schultz's will. Rather, the kidnapping charge was based solely on the dragging of Schultz after he was stabbed. The evidence showed defendant and Lonnie dragged him around 100-150 feet to a place difficult to see from the road.

Section 209, subdivision (b), makes guilty of kidnapping for robbery "Any person who kidnaps or carries away any individual to commit robbery . . . ." "Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself." (People v. Rayford (1994) 9 Cal.4th 1, 12.) Defendant argues several reasons the evidence was insufficient to sustain the conviction and special circumstance. We need not consider all of the arguments, for we find one to be dispositive: the evidence was insufficient to prove that Schultz was still alive at the time of the dragging.

There can be no doubt that, like rape (People v. Kelly, supra, 1 Cal.4th at p. 524), kidnapping in general, and kidnapping for robbery in particular, requires a live victim. The Attorney General does not argue otherwise. If one kills, then moves the body, the crimes committed do not include kidnapping. The statutory references to a "person" (§ 207, subd. (a)) or an "individual" (§ 209, subd. (b)), as the kidnapping victim, clearly contemplate someone alive. Indeed, no further harm can befall someone already dead; asportation of a corpse cannot increase the risk of harm.

The evidence regarding whether Schultz was dead or alive when defendant dragged him is inconclusive, but most of it indicates he was probably already dead. Lonnie testified that all the stabbing occurred by the truck before the movement and said that the body never moved on its own or made a sound during any of the dragging. Dr. Gwen Hall, the pathologist who performed the autopsy, provided the most important testimony. Schultz died of four stab wounds, each of which independently could have been fatal. The injuries themselves indicated Schultz could have survived "minutes, perhaps twenty minutes to an hour at the most." This testimony alone would suggest that Schultz might have survived during part or all of the dragging. But Dr. Hall also testified that a certain head bruise caused by hitting something like a car door or the ground (i.e., likely caused when Schultz fell after the stabbing) occurred "at or about the time of death." More importantly, abrasions on the back, obviously caused during the dragging, showed no signs of bleeding. The absence of bleeding "suggested" to Dr. Hall that the body was already dead when it suffered the abrasions, although she could not say with "absolute certainty." Thus Dr. Hall's testimony, as a whole, indicates Schultz was probably dead when his body was dragged.

Citing Dr. Hall's testimony that she could not be certain exactly how long Schultz lived, the Attorney General argues that "the absence of bleeding under the abrasions on [Schultz's] back is not conclusive evidence that he was dead at the time of the dragging." But, as defendant notes, the question is not whether the evidence conclusively proved Schultz was dead, but whether substantial evidence supported a finding he was alive. We see no such substantial evidence. Moreover, even if we assume Schultz was dying but not yet dead when the dragging began and died during the dragging, before receiving the bloodless abrasions, no evidence supports a finding that the movement "substantially increase[d] the risk of harm . . . ." (People v. Rayford, supra, 9 Cal.4th at p. 12, italics added.) The primary harm-the four stab wounds, each alone potentially fatal-had already occurred; any additional harm was insubstantial.

Accordingly, the kidnapping for robbery conviction and the kidnapping-murder special circumstance cannot stand. Finding that defendant dragged Schultz's body after, rather than before, he killed Schultz does not minimize the heinousness of defendant's deeds. It does, however, mean he was not guilty of kidnapping in addition to murder and robbery.

Defendant also argues that because the court instructed the jury on kidnapping as a theory of felony murder, we must also reverse the first degree murder conviction. We disagree. As we explain, the evidence supported the robbery and robbery-murder special-circumstance findings as well as the lying-in-wait special-circumstance finding. These findings show the jury necessarily concluded the killing was committed in the course of a robbery and by lying in wait. Thus, we know that the first degree murder verdict rested on at least one correct theory. (§ 189; People v. Kelly, supra, 1 Cal.4th at p. 531; see also People v. Guiton (1993) 4 Cal.4th 1116, 1130.) *fn3

SUPREME COURT CASES & NEWS

Miller-el v. Cockrell:The Court in Miller-el has limited the issues on which cert has been granted to the following:

Did the Court of Appeals err in denying a certificate of appealability and in evaluating petitioner’s claim under Batson v. Kentucky?

United States v. Vonn, -- US -- (3/4/2002) A criminal defendant who knowingly and voluntarily enters a guilty plea under Fed. R. Crim. P. 11(h), without objection, carries the burden of showing plain-error under Fed. R. Crim. P. 52. A reviewing court may consult the entire record when considering the effect of any error on defendant's substantial rights.

Federal Rule of Criminal Procedure 11 lays out steps that a judge must take to ensure that a guilty plea is knowing and voluntary. Rule 11(h)s requirement that any variance from those procedures which does not affect substantial rights shall be disregarded is similar to the general harmless-error rule in Rule 52(a). However, Rule 11(h) does not include a plain-error provision comparable to Rule 52(b), which provides that a defendant who fails to object to trial error may nonetheless have a conviction reversed by showing among other things that plain error affected his substantial rights. After respondent Vonn was charged with federal bank robbery and firearm crimes, the Magistrate Judge twice advised him of his constitutional rights, including the right to be represented by counsel at every stage of the proceedings; Vonn signed a statement saying that he had read and understood his rights; and he answered yes to the courts questions whether he had understood the courts explanation of his rights and whether he had read and signed the statement. When Vonn later pleaded guilty to robbery, the court advised him of the constitutional rights he was relinquishing, but skipped the advice required by Rule (11)(c)(3) that he would have the right to assistance of counsel at trial. Subsequently, Vonn pleaded guilty to the firearm charge and to a later-charged conspiracy count. Again, the court advised him of the rights he was waiving, but did not mention the right to counsel. Eight months later, Vonn moved to withdraw his guilty plea on the firearm charge but did not cite Rule 11 error. The court denied the motion and sentenced him. On appeal, he sought to set aside all of his convictions, for the first time raising Rule 11. The Ninth Circuit agreed that there had been error and held that Vonns failure to object before the District Court to the Rule 11 omission was of no import because Rule 11(h) subjects all Rule 11 violations to harmless-error review. Declining to go beyond the plea proceeding in considering whether Vonn was aware of his rights, the court held that the Government had not met its burden, under harmless-error review, of showing no effect on substantial rights, and vacated the convictions.

Held:

1.A defendant who lets Rule 11 error pass without objection in the trial court must satisfy Rule 52(b)s plain-error rule. Pp.518.

(a)Relying on the canon that expressing one item of a commonly associated group or series excludes another left unmentioned, Vonn claims that Rule 11(h)s specification of harmless-error review shows an intent to exclude the plain-error standard with which harmless error is paired in Rule 52. However, this canon is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives. Here, the harmless- and plain-error alternatives are associated together in Rule 52, having apparently equal dignity with Rule 11(h), and applying by its terms to error in the application of any other Rule of Criminal Procedure. To hold that Rule 11(h)s terms imply that the latter half of Rule 52 has no application to Rule 11 errors would amount to finding a partial repeal of Rule 52(b) by implication, a result sufficiently disfavored, Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017, as to require strong support. Support, however, is not readily found, for Vonn has merely selected one possible interpretation of the supposedly intentional omission of a Rule 52(b) counterpart while logic would equally allow a reading that, without a plain-error rule, a silent defendant has no right of review on direct appeal. Pp.710.

(b)Vonn attempts to find support for his reading by pointing beyond the Rules text to McCarthy v. United States, 394 U.S. 459which was decided when Rule 11 was relatively primitiveand the developments in that cases wake culminating in Rule 11(h)s enactment. One clearly expressed Rule 11(h) objective was to end the practice of reversing automatically for any Rule 11 error, a practice stemming from reading McCarthy expansively to require that Rule 52(a)s harmless-error provision could not be applied in Rule 11 cases. However, McCarthy had nothing to do with the choice between harmless-error and plain-error review. Nor is there any persuasive reason to think that when the Advisory Committee and Congress considered Rule 11(h) they accepted the view Vonn erroneously attributes to this Court in McCarthy. The Advisory Committee focused on the disarray, after McCarthy, among Courts of Appeals in treating trivial errors. The cases cited in the Committees Notes cannot reliably be read to suggest that plain-error review should never apply to Rule 11 errors, when the Notes never made such an assertion and the cases never mentioned the plain-error/harmless-error distinction. Rather, the Committee should be taken at its word that the harmless-error provision was added because some courts read McCarthy to require that Rule 52(a)s general harmless-error provision did not apply to Rule 11 proceedings. The Committee implied nothing more than it said, and it certainly did not implicitly repeal Rule 52(b) so far as it might cover a Rule 11 case. Pp.1016.

(c)Vonns position would also have a tendency to undercut the object of Rule 32(e), which governs guilty plea withdrawal by creating an incentive to file withdrawal motions before sentence, not afterward. This tends to separate meritorious second thoughts and mere sour grapes over a sentence once pronounced. But the incentive to think and act early when Rule 11 is at stake would prove less substantial if a defendant could be silent until direct appeal, when the Government would always have the burden to prove harmlessness. Pp.1618.

2.A reviewing court may consult the whole record when considering the effect of any Rule 11 error on substantial rights. The Advisory Committee intended the errors effect to be assessed on an existing record, but it did not mean to limit that record strictly to the plea proceeding, as the Ninth Circuit did here. McCarthy ostensibly supports that courts position; but it was decided before Rule 11(h) was enacted, and it was not a case with a record on point. Here, in addition to the transcript of the plea hearing and Rule 11 colloquy, the record shows that Vonn was advised of his right to trial counsel during his initial appearance and twice at his first arraignment, and that four times either he or his counsel affirmed that he had heard or read a statement of his rights and understood them. Because there are circumstances in which defendants may be presumed to recall information provided to them prior to the plea proceeding, cf. Bousley v. United States, 523 U.S. 614, 618, the record of Vonns initial appearance and arraignments is relevant in fact and well within the Advisory Committees understanding of the record that should be open to consideration. Since the transcripts of Vonns first appearance and arraignment were not presented to the Ninth Circuit, this Court should not resolve their bearing on his claim before the Ninth Circuit has done so. Pp.1820.

224 F.3d 1152, vacated and remanded.

Souter, J., delivered the opinion of the Court, Part III of which was unanimous, and Parts I and II of which were joined by Rehnquist, C.J., and OConnor, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ. Stevens, J., filed an opinion concurring in part and dissenting in part.

POSITIVE CAPITAL CASE RESULTS

Benn v. Lambert, 2002 U.S. App. LEXIS 2899 (9th Cir. 02/26/2002) 'The state suppressed material exculpatory and impeachment evidence that would have destroyed the credibility of its principal witness, severely undermined its theory of motive, and left it without substantial evidence of premeditation or an aggravating circumstance." Note the concurrence by Trott, J., contains some exceptionally poignant language on the government's duty to comply with the requirements of Brady.

Stallworth v. Alabama, 2002 Ala. Crim. App. LEXIS 42 (Al. Crim. App 3/1/2002) Case remanded (for the second time) for clarification of role victim impact and certain aggravating circumstances had upon trial court's death sentence. (Not available on the net)

CAPITAL CASES - RELIEF DENIED

Smulls v. Missouri, 2002 Mo. LEXIS 35 (Mo. 02/26/2002) (dissent & a notable concurrence) Relief denied on allegations of trial counsel's ineffectiveness relating to racial bias of the trial judge & racial bias in jury selection, including "1) that prior to the case, Judge Corrigan told a racist joke to a group of judges, that judgment had been entered against him for sexual harassment, and that he discriminated against African-American defendants in the disposition of criminal cases; and 2) that during the case, he made racially insensitive comments at the Batson hearing."

Missouri v. Cole,2002 Mo. LEXIS 38 (Mo. 02/26/2002) Relief denied on claims including: [1] sufficiency; prosecution's disparaging remarks of the defendant in the guilt phase including the erroneous statement that the appellant was a "convicted killer;" failure to charge -- pursuant to Apprendi v. New Jersey -- the facts that would aggravate the crime to capital murder in the indictment; Batson; failure to strike a cop for cause; inclusion of prior felonies in the penalty phase; preclusion of mitigation evidence; and jury instructions conformance to state law.

Gray v. Bowersox, 2002 U.S. App. LEXIS 2903 (8th Cir. 02/26/2002) "With respect to the penalty-phase closing argument . . . the alleged improprieties were cured by rulings of the state trial court, and that two other arguments were either not improper or not prejudicial to the defendant in any material way. As to the comments of the state trial court to the jury panel during voir dire . . . ineffective assistance of counsel in failing to object has not been made out. Some of the comments were proper, so an objection, even if it had been made, would have been properly overruled. As to other parts of the comments, there is no reasonable probability . . . that they affected the outcome of this case, and therefore defendant cannot show the requisite prejudice."

Key v. Alabama, 2002 Ala. Crim. App. LEXIS 44 (Al. Crim. App 3/1/2002) Relief denied on claims arising from: [1] use of conviction for felony stalking of the decedent the day prior to her death; [2] testimony of the decedent's sister as to the character of the accused; [3] the capital sentencing statute is void for vagueness & arbitrariness; [4] recusal of the trial court; [5] racial prejudice in jury selection; [6] execution by electrocution; [7] IAC for trial counsel's failure to preserve & [8] validity of the heinous, atrocious, or cruel aggravating circumstance. Proceedings remanded, however, for corrections to trial court's order so that the appellate court can properly conduct proportionality review. (Not available on the net)

Ohio v. Herring, 94 Ohio St. 3d 246; 762 N.E.2d 940; 2002 Ohio LEXIS 437 (3/1/2002) Appeal denied on [1] instructions on intent; [2] variance from the bill of particulars as to governments theory of culpability (principal vs. aider & abettor); [3] sufficiency; [4] jury issues (Batson, fair cross-section & outside contact with juror); [5] judge's communication with jurors outside the presence of the defendant; [6] prosecutorial misconduct; [7] ineffective assistance of counsel; [8] sentencing disparity among accomplices; [9] victim impact statements & [10] proportionality.

Dorsey v. Alabama, 2002 Ala. Crim. App. LEXIS 50 (Al. Crim. App 3/1/2002) D relating to [1] the trial court not permitting sufficient time for investigation between the jury's recommendation & sentencing proceedings; [2] premature disclosure of closing arguments; [3] double jeopardy for the use of an aggravating circumstance for which the appellant had been found not guilty; [4] execution by electrocution; [5] prosecution's comments on the appellant's lack of remorse; [6] the trial court considered irrelevant and immaterial evidence when it overrode the jury's recommendation; & [7] proportionality. (Not available on the net)

Sireci v. Moore, 2002 Fla. LEXIS 340 (FL 2/28/2002) Relief denied on claims that "that (1) his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the trial court's finding of the avoiding or preventing lawful arrest aggravator; (2) his appellate counsel was ineffective for failing to argue that the trial court's findings of the cold, calculated, and premeditated aggravator, the avoiding or preventing a lawful arrest aggravator, and the in the course of a robbery or for pecuniary gain aggravator were all unconstitutionally based upon the same facts; (3) his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence underlying the trial court's finding of the cold, calculated, and premeditated aggravator; (4) his appellate counsel was ineffective for failing to argue on appeal that Mr. Sireci's constitutional rights were violated by the trial court's requiring him to remain shackled during the penalty phase of his trial; (5) the Florida capital sentencing statute, as applied here, is unconstitutional under the United States Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (6) when viewed cumulatively, the errors that Mr. Sireci's counsel failed to raise on appeal deprived him of a fundamentally fair trial, necessitating a new penalty phase hearing; and (7) his execution will violate the prohibition of cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution, as he may be incompetent at the time his sentence is carried out."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

McCoy v. Stewart, No. 01-15700 (9th Cir. 02/26/2002) Relief granted. "While it may have been incredibly stupid and short-sighted for [McCoy] to have offered his opinions and experiences to a group of teen-aged gangster wanna-be's, the Constitution protects even stupid speech."

FOCUS

Excerpts from Craig Haney's,VIOLENCE AND THE CAPITAL JURY: MECHANISMS OF MORAL DISENGAGEMENT AND THE IMPULSE TO CONDEMN TO DEATH, 49 STNLR 1447, July 1997, are this week's Focus. Haney's excerpts explore the necessity to humanize clients accused of capital crimes if the client is to be saved from execution.

I. Dehumanization and Capital Violence

The first mechanism of moral disengagement that assists jurors in overcoming the prohibition against lethal violence is the dehumanization of the capital defendant. It has become a virtual truism among capital defense attorneys that they must "bring the defendant to life so that the jury will want to let him live." [FN20] Joan Howarth has decried recent Supreme Court attempts to limit what she considers the real point of the individualized capital- sentencing hearings, "which is to permit the jury to hear about humanizing aspects of the defendant simply in order to be sure that the jury may see him as a human being." [FN21] But why? The answer lies in the comparative ease with which we are able to act destructively against presumably threatening targets who are not viewed as persons. As Albert Bandura put it, "People seldom condemn punitive conduct--in fact, they create justifications for it-- when they are directing their aggression at persons who have been divested of their humanness." [FN22]

In this regard, writer Arthur Koestler once characterized the psychological dividing line between those who support the death penalty and those who do not as one "between those who have charity and those who have not. . . . The test of one's humanity is whether one is able to accept this fact--not as lip service, but with the shuddering recognition of a kinship: here but for the grace *1452 of God, drop I." [FN23] But the "shuddering recognition of kinship" is something that can be made more or less apparent and significant depending on the way in which the capital defendant is depicted. Rituals of killing, whether sanctioned by the state (as in executions or war) or at an individual level, almost always involve the systematic dehumanization of the victim--the stripping of human qualities from the target of the lethal act. Preparations for war almost always seem to include some form of dehumanization of the enemy. [FN24] There are numerous historical examples, perhaps the most grotesque of which is the Nazi's dehumanization of their victims during the Holocaust. [FN25] And as Robin Williams observed, "[I]t is justifiable . . . to kill those who are monsters or inhuman because of their abominable acts or traits, or those who are 'mere animals' (coons, pigs, rats, lice, etc.), or those whose political views are unthinkably heinous (Huns, communists, fascists, traitors)." [FN26]

Because "[c]apital punishment is warfare writ small," [FN27] it is not surprising to find this mechanism of moral disengagement at work in the death- sentencing process. Like the chronicles of war, the history of the death penalty is replete *1453 with examples of the ways in which dehumanization has facilitated state-sanctioned killing. The tendency to extend mercy to those with whom we feel kinship was recognized in Thomas Green's study of jury nullification by thirteenth and fourteenth-century English juries. [FN28] He observed that [t]he leniency accorded villagers by their neighbors may be put down to favoritism, but given what jury behavior in homicide suggests, that may be just another way of saying that jurors thought the rules too harsh when forced to apply them to persons whom they knew well enough to identify with. [FN29]

Another example of dehumanization as a predicate to state-sanctioned violence comes from a shameful chapter in American history. Remember that de Tocqueville thought that the American criminal justice system was quite lenient except in its treatment of the slaves, whom white Americans failed to perceive not only as equals, but as human at all, and thus often summarily executed. [FN30] Others have commented on the ways in which the mistreatment of American slaves was facilitated, in part, by thinking of them as less than human. [FN31] Finally, studies of the modern execution ritual itself emphasize the degree to which elaborate bureaucratic routines are employed to ensure that "the condemned prisoner is literally and often completely dehumanized." [FN32]Of course, there are important social and psychological dimensions to the process by which the dehumanization of capital defendants helps jurors to condemn them to death. Sociologists have long known that institutional mistreatment is facilitated by the dehumanization of patients and inmates. Harold Garfinkel termed the systematic process in institutional settings a "degradation *1454 ceremony." [FN33] Erving Goffman described it as a "mortification ritual"--the killing of the individual self to be remade in the institutional image of something less than a full person. [FN34] Social psychologists have recognized that dehumanization is one of the most powerful cognitive processes that can distance people from the moral implications of their actions. [FN35] Herbert Kelman suggested that it is an especially powerful force in weakening moral prohibitions against violence because of its capacity to deprive both victim and victimizer of identity and community--the two things that individually and collectively bind us to a set of overarching principles that transcend individual need, will, or impulse. [FN36] And as Tom Tyler put it, "[D]enying victims full human status by dehumanizing them . . . prevents the moral issues which are normally raised when harm is being done to other human beings from being raised in a particular instance." [FN37]

Capital trials help jurors to build the psychological barriers between themselves and the defendant that facilitate dehumanization. Some of these barriers are structured into the trial process itself and derive from the formality that attaches to legal language and court proceedings. As Lynne Henderson noted, "[T]he emotional, physical, and experiential aspects of being human have by and large been banished from the better legal neighborhoods and from explicit recognition in legal discourse." [FN38] And as Toni Massaro suggested, the courtroom setting is "hardly intimate or otherwise conducive to 'knowing' someone," [FN39] such that anyone who advocates the empathetic understanding of a defendant in a legal proceeding "must favor radical restructuring of court procedures to make them more congenial to [such] 'contextual' justice." [FN40] Gerald Lopez argued that normative legal storytelling inevitably "disfigure[s] individuals" [FN41] and "distort [[s] . . . social arrangements" and their descriptions. [FN42] Yet emotional distancing and the denaturing effects of legal formality are even *1455 more damaging in death penalty cases because, in order to be fair to the individual whose life they hold in their hands, capital jurors must experience the defendant as a person. [FN43]

Mitigating the punishment by humanizing the defendant is a direct attempt to overcome the dehumanizing aspects of the trial process and the case against the defendant that make lethal violence by the jury more likely. However, the capital trial process builds on preexisting stereotypes about the inhumanity of persons convicted of murder by delaying opportunities to humanize the capital defendant until the very last phase of the trial itself. As Linda Carter put it:

While the state has often presented the evidence in the guilt phase that arguably makes the homicide especially heinous, the penalty phase is usually the defense's first opportunity to present to the factfinder the personal aspects of the defendant's life.

. . . [I]t would be an unusual case where the defendant's family history and character were introduced in the guilt phase. [FN44]

Until the sentencing phase--days, weeks, or even months into the process-- most capital defendants sit mute in the courtroom, each one a kind of criminological Rorschach card onto which jurors may project their deepest fears and anger.

In addition, traditional guilt phase inquiries depict defendants as the agents of violence, never as its victims, further distancing them from the rest of us. However, in most cases, capital defendants have been victims as well as perpetrators of violence. [FN45] Yet while capital jurors sit in judgment of the defendant, *1456 the tragic logic of his aggression remains hidden from them until the very last moment in the trial. [FN46]

Thus, the structure of the capital trial facilitates the dehumanization of the defendant. The prolonged period of time during which the jury is encouraged to perceive the defendant only as an autonomous agent of violence acting outside of any historical context dehumanizes him; by the time defense attorneys are afforded a full opportunity to begin the process of humanization, jurors' attitudes and impressions have crystallized and rigidified. Not surprisingly, then, researcher Marla Sandys found that, at the conclusion of the guilt phase and before any penalty phase testimony had been presented, twice as many capital jurors believed that the defendant should be sentenced to death as believed that life was the more appropriate verdict. [FN47]

Moreover, the ordering of issues placed before the capital jury not only impedes the humanization of the defendant, but it also creates an implicit contrast between the violence of the defendant and the violence the jury is later invited to authorize. Research tells us generally that, whenever events are compared in sequence, "the first one colors how the second one is perceived and judged" so that, in contexts like these, the more flagrantly inhumane the defendant's initial acts, the more "one's own destructive conduct will appear trifling or even benevolent." [FN48] In this way, capital jurors-- especially those with qualms about the death penalty--can become morally disengaged from the human consequences of their sentencing verdict due to an implicit and sequential comparison between the defendant's actions and their own.

Another way in which capital jurors are disengaged from the humanity of the defendant and the human and moral dimensions of their own decision involves prosecutorial strategy. In the typical capital trial, prosecutors encourage jurors to make their ultimate sentencing decision on the basis of isolated, albeit tragic and horrible, moments of aggression that they offer, in the absence of any other information, to represent the defendant's entire life and worth as a person. This perfectly understandable and highly effective strategy is employed by advocates of death sentences to project the alleged essence of the defendant into the snapshot that has been taken of his violence. From this perspective, the full measure of the person is to be restricted to this field of isolated violent acts. [FN49] On the other hand, fairly clear constitutional case law requires that the crime alone should not be the exclusive basis for the jurors' life-and- death decision. [FN50] The constitutional mandate that jurors consider the defendant's background *1457 and character has been operationalized through the creation of a separate penalty trial and judicial instructions that broaden the nature of the jurors' decisionmaking process so as to include many other factors. Unfortunately, as I discuss below, in practice, these procedural reforms still have too little actual impact on the atmosphere of moral distancing in which capital jurors are otherwise immersed.

If nothing else, a judge's capital-sentencing instructions should clearly frame the broadened scope of the penalty phase inquiry so that capital jurors understand that the defendant's entire life lies at the heart of their sentencing decision. Yet research indicates that these instructions fail to convey this message. In fact, they appear to contribute further to the jurors' narrow crime-focus by failing to clarify what else, such as the background and character of the defendant, should be taken into account.

The seemingly inexorable (and perhaps unintended) narrowing of relevant considerations to the circumstances of the crime and little else likely stems from the relative ease with which legislative judgments and jury decision making can be precisely focused on crime characteristics, as compared to the more difficult, elusive, and ultimately discretionary inquiry into the moral nature and essential worth of the person whose life stands in the balance. [FN51]

In so focusing, the instructions themselves encourage jurors to ignore the defendant's personhood, further disengaging them from the moral implications of their decision.

The opportunity to put the defendant's life in context--to give it substance, texture, history, and a set of connections to other lives--is first withheld until the final stage of the trial (when it may be too late) and then denied the authoritative imprimatur of the judge's instructions, which might provide the clarity and legitimacy needed to make the opportunity meaningful. The poor timing of the defense case in mitigation, the fact that it would require most jurors to perform the difficult work of essentially changing their minds about the defendant, and the heavy crime-focus of the penalty instructions that follow may help to explain why the Capital Jury Project found that the penalty trial was the least well-remembered stage of the entire process for capital jurors. [FN52] Half of the jurors studied had actually made up their minds about the appropriate penalty *1458 once they had convicted the defendant of the guilt phase crime. [FN53] Unsurprisingly, in this context, roughly forty percent of the capital jurors believed that the heinousness of the crime compelled a sentence of death. [FN54]

One final consideration helps to explain the above data and, in many cases, adds another morally disengaging dimension to the capital trial. An effective case in mitigation--one that genuinely humanizes a capital defendant--requires deep commitment to one's client, a moderately sophisticated grasp of human psychology, and hundreds of hours to assemble. Yet typically impoverished capital defendants are too frequently represented by inadequately compensated, inexperienced, and sometimes incompetent court-appointed attorneys who are unable or unwilling to gather and present this kind of evidence.

Experienced capital litigators have repeatedly warned that the lack of training and experience in finding and developing "humanizing" testimony, as well as the time and expense that doing so entails, means that little if any such evidence is effectively gathered, prepared, or presented by the defense in far too many penalty trials. [FN55] As Carol and Jordan Steiker summarized, "[I]t is commonplace in many states for trial counsel to fail to present any evidence or argument at all during the punishment phase of a capital trial." [FN56] States that fail to provide the necessary training and resources for attorneys, investigators, and experts to pursue this information and that refuse to develop and enforce legal mandates that require them to do so virtually guarantee that capital defendants will have their lives ended by juries never given a chance to understand them. These juries will be morally disengaged from the defendant's humanity by the absence of the vital information that the defense counsel failed--for lack of skill, effort, or resources--to present to them.

In this context, consider the fairly remarkable data the Capital Jury Project assembled showing that capital jurors from a number of states perceived prosecutors *1459 to be significantly better than defense attorneys in communicating and preparing their case. [FN57] Prosecutors were also seen as more committed to their case and fighting harder at both the guilt and punishment stages of the trial. [FN58] It is difficult to account for these findings except as a partial function of the disparity in resources that characterizes capital cases. [FN59]

Intensifying the effect of this perceived disparity in ability and the actual disparity in resources is the fact that the prosecution's implicit and overarching "theory" of the typical capital case generally comports with the jurors' stereotypical beliefs about crime and punishment. The notion that a defendant's crime stems entirely from his evil makeup and that he therefore deserves to be judged and punished exclusively on the basis of his presumably free, morally blameworthy choices is rooted in a longstanding cultural ethos that capital jurors (like most citizens) have been conditioned to accept uncritically. [FN60] Add to this the well-documented tendency of most people to commit what psychologists have termed the "fundamental attribution error"-- providing causal explanations for the behavior of others in largely dispositional or personal as opposed to situational or contextual terms. [FN61] As a result, the typical juror's preexisting framework for understanding behavior is highly compatible with the basic terms of the typical prosecutorial narrative.

A prosecutor, then, literally speaks the capital jurors' language, whereas the defense attorney must overcome the jurors' preexisting beliefs in order to educate them to think in unfamiliar ways about the nature of fair and just punishment. As Henderson noted, "While the defense will seek to have the jury empathize with the defendant, the defense narrative--unattached to legal form-- is a difficult one to convey, and the legalistic formula can provide sanctuary from moral anxiety." [FN62] And as Samuel Pillsbury put it:

The prosecution will tell a story designed to provoke anger; the defense will respond with one to evoke sympathy. The sentencer must choose between or among them. As the law now stands, this gives the prosecution a significant advantage at the punishment stage. The law's sanction of retribution, and the fact of criminal conviction, give weight and legitimacy to the prosecution's *1460 angry appeal. The defense needs a similar, legally authorized, emotional appeal to check that anger, to keep the debate within moral bounds. [FN63]

Thus, the disparity in resources worsens an already disadvantageous position. Data collected directly from capital jurors highlighting greater prosecutorial effectiveness indicate that defense attorneys have much to learn about humanizing defendants and keeping the sentencing debate within moral bounds. [FN64] In the absence of explicit legal authorization for a defense-oriented emotional appeal, defense attorneys have to try much harder than prosecutors to reach persuasive parity. But they also need much more training and trial-related resources if they are consistently to accomplish the task of morally engaging capital jurors.

Indeed, some commentators have argued that the defense case in mitigation is so critical to the fair administration of the death penalty that courts should appoint attorneys especially to develop and present it in certain cases [FN65] and that appellate courts should apply heightened standards of review when examining ineffective assistance claims arising from the penalty phase of the capital trial. [FN66] Given the importance of mitigation testimony in deciding the fate of a capital defendant, one may wonder why we do not require its presentation before any jury is permitted to reach a death verdict. Indeed, in many jurisdictions, judges would not think of sentencing a criminal defendant to prison, even for a modest term of confinement, before reviewing a reasonably comprehensive and presumably carefully prepared "presentence report." Yet capital juries in these same jurisdictions can be called on to sentence a defendant to death with much less information at their disposal. At a minimum, trial courts could require a meaningful showing that defense attorneys exercised due diligence in attempting to obtain such information and that they employed a coherent and defensible rationale in deciding not to present it (if, indeed, such a rationale ever exists).

II. Violence Against the Deviant, Different, and Deficient

The second mechanism of moral disengagement contributing to the violence of the capital jury closely relates to the first, but is more narrowly drawn. Human beings react punitively toward persons whom they regard as defective, foreign, deviant, or fundamentally different from themselves. Sobering historical *1461 accounts document the ways in which "scientific" attempts to prove defect or deviance have served as a prelude to mistreatment and even extermination. [FN67] And in wartime, when the distinguishing characteristics of foreign enemies can be exaggerated to emphasize their fundamental difference from the rest of us, it is unnecessary to depict them as less than fully human to facilitate killing them. [FN68] Indeed, the notion of a "foreign menace" has been used in numerous political campaigns to create false unities among citizens, unities which are founded on little more than common hatred of the different "other."

Illustrations of this mechanism of disengagement can be found in the popular media, as well as the criminal justice system. Both on-screen dramas and real-life trials typically depict villians as deviant in as many ways as possible. [FN69] Indeed, in the case of serious crime, this mechanism simplifies the difficult task of assigning moral blame and "condemn[ation] beyond what is deserved." [FN70] As Pillsbury observed:

When called upon to judge a stranger who is responsible, to some extent, for a serious harm, the decisionmaker's temptation is to ignore moral complexities and declare the person and his act entirely evil. The decisionmaker labels the offender a Criminal, remaining indifferent to the person (he being capable of both good and evil) behind that label. In this way, the offender is designated as "other." The more we can designate a person as fundamentally different from ourselves, the fewer moral doubts we have about condemning and hurting that person. We assign the offender the mythic role of Monster, a move which justifies harsh treatment and insulates us from moral concerns about the suffering we inflict. [FN71]

Similarly, those persons seen as seriously deficient along some important dimension, or defective in some seemingly fundamental way, are more easily mistreated and targeted for violence. Historically, the depiction of criminals as defective has always facilitated their mistreatment at the hands of the criminal justice system, and the more "scientifically" the defect could be documented, *1462 the greater the mistreatment. [FN72] Thus, the easier it is to derogate defendants, the easier it is to treat them harshly. Both sides of this dynamic help to explain the American public's fixation with the potential biological and genetic basis of criminality: The belief that criminals are born defective and therefore different facilitates society's harsh treatment of them.

There are numerous instances of these mechanisms at work in the legal system itself. For example, Martha Duncan's analysis of the "metaphors of filth," [FN73] which she argued permeate the criminal justice system, cited thirty- four appellate cases in which the prosecutor's reference to the defendant as "filth," "dirt," "slime," or "scum" was at issue [FN74] and discussed the various purposes served by portraying criminals in these ways. [FN75] Among other things, she explained that the use of this kind of imagery cognitively reinforced the separation of the "criminals" from the "noncriminals" who employed the terminology. [FN76] Similarly, Louis Masur's study of the death penalty in the United States between the Revolutionary and Civil Wars noted that "foreign-born convicts accounted for a significant percentage of persons executed in America." [FN77] Masur offered this explanation: "Juries most likely found it easier to convict outsiders--defined as foreigners, minorities, and those literally not from the *1463 immediate community--of capital crimes, and governors felt less pressure to commute the death sentence of those with few ties to the community." [FN78]

This mechanism of moral disengagement--creating, highlighting, and exaggerating difference and transforming it into defect and deficiency--stands at the core of the chronic racism that has plagued our criminal justice system throughout its history, [FN79] including the legacy of discriminatory death sentencing. [FN80] As Pillsbury observed, "In a society such as ours, where race is an obvious and deeply-rooted source of social differences, race presents the most serious otherness problem." [FN81] Yet the structure of capital trials facilitates and even encourages race-based otherness. Death- qualified juries are less likely to share the racial and status characteristics or the common life experiences with capital defendants that would otherwise enable them to bridge the vast differences in behavior the trial is designed to highlight. [FN82] If "[d]ifferences in group membership between punisher and punished increase the risk of nonmoral judgment," [FN83] then death qualification increases the likelihood that these kinds of judgments will be made in capital trials.

Of course, few capital jurors will ever truly know--by experience, identification, or intuition--the harsh realities of capital defendants' lives. Yet the only way to prevent the "otherness" of capital defendants, which is intensified by initial inferences about the internal causes of their criminality, from facilitating the jury's moral disengagement is by placing their radically different behavior and lifestyles in a context that allows them to be better understood. Unfortunately, our criminal law generally eschews explicit consideration of personal background in its normative decisionmaking processes, and evidence *1464 about social context and situation typically plays an extremely limited role in traditional guilt phase inquiries. [FN84]

In all but the rarest of guilt phase cases, jurors are not permitted to consider the influence of social background and the press of life circumstance as they have impacted a criminal defendant. Even in capital penalty trials, where the scope of potentially admissible evidence is in theory significantly broadened, capital jurors will not only encounter but also be encouraged to dwell on the nature of the defendant's crime long before they learn anything about the context in which it occurred or the life history of the person who committed it. Thus, the legal process is ill-suited to accomplish the task of bridging the gap between defendants and those who judge them. It greatly constricts what Henderson called "empathetic narratives," which describe "concrete human situations and their meanings to the persons affected in the context of their lives." [FN85]

Critics of this "call to empathy" worry that it will elevate a "more individualized justice" above the generalized principles that characterize the rule of law. [FN86] Yet individualized justice is supposed to be the touchstone of constitutional capital penalty decisionmaking. As Pillsbury noted, "The question of what punishment an offender deserves requires a complex factual and moral evaluation . . . . [I]f accuracy in desert evaluation is paramount, as it is in the capital context, we must adopt a broad view of culpability that defies encapsulation in rules." [FN87] Although "[l]egal decisions and lawmaking frequently have nothing to do with understanding human experiences," [FN88] the failure to overcome this bias in capital penalty trials can, and regularly does, have fatal consequences. Yet as Howarth has argued, although the Supreme Court once recognized and protected "the obvious correlation between a decisionmaker's perceived connection to the defendant and the reluctance to impose death," [FN89] current doctrine serves to "increase the distance between the decisionmaker and the accused" and effectively "send the capital defendant further and further into the distance." [FN90] Nonetheless, if capital jurors are to avoid the disengagement from defendants that comes from exaggerating the differences between them, then defendants must somehow be shown in settings or situations familiar to jurors.

Thus, the starting point for compassionate justice becomes the recognition of basic human commonality--an opportunity for capital jurors to connect themselves to the experiences, moral dilemmas, and human tragedies faced by the defendant. For example, in her powerful book about murder and the media, [FN91] Wendy Lesser discussed The Thin Blue Line [FN92] and filmmaker Errol Morris' portrayal of the life of David Harris, who was presumably the real killer in the case of Adams v. Texas. [FN93] As Lesser explained:

[David] is given his moment of sympathy in the movie, when Errol Morris, against a quick montage of old family snapshots of two towheaded boys, allows David to describe the accidental childhood drowning of his brother and his own subsequent sense of survivor's guilt. This is offered neither as psychiatric explanation nor as mitigating circumstance; it is simply offered as a fact about David, one that enlarges our view of him and momentarily makes us feel something for him. [FN94]

Of course, our view of David is enlarged by giving him a sympathetic past. But what is sympathetic is not only that David may have been shaped by this early traumatic event--the psychiatric explanation that Lesser avows--but that he has experienced an event and accompanying emotions with which we can identify. This not only makes us "feel something for him," it also makes us feel something positive (for surely we have felt something negative for him all along). This is mitigation--not of the crime, but of the person--and whenever a capital penalty trial fails to do at least this, it encourages a basic distancing from the moral task at hand.At times, a capital defendant's experiences may seem too foreign to provide the typical juror with the basis for any common understanding. For example, many capital defendants have confronted chronic poverty, extraordinary instability, and, for some, almost unimaginably brutal and destructive mistreatment over which, for most of their lives, they have been granted little or no control. [FN95] *1466 Many of these experiences are unrecognizable to the average person and, absent attempts to teach a different lesson, will instead convince jurors that the defendant has been rendered fundamentally and irredeemably different from them. After all, the defendant's mere presence in a capital trial means that he not only confronted these experiences, but that he eventually succumbed to them, with tragic and destructive consequences for others as a result. Yet the defendant's final destructive acts may be the culmination of failed struggles against enormous odds or a lifetime of attempts to overcome extraordinary barriers, disadvantages, and otherwise overwhelming circumstances. Jurors deserve the opportunity both to understand these struggles and to appreciate their significance in judging the life before them. If they are precluded from seeing the ways in which lapses into lethal violence, outbursts of destructive anger, or long-term predatory habits often have compelling traumatic histories and psychologically powerful contexts associated with them, then they will proceed distanced and alienated from the life they are called upon to judge. [FN96]To be sure, "[t]he best way to draw the decisionmakers closer to the defendant is to tell them his story." [FN97] Context, then, helps attorneys "to present to the penalty jurors a portrait of their client that humanizes him: that is, makes connections between the client and the jurors." [FN98] Recently published autobiographic [FN99] and ethnographic [FN100] accounts of the structural disadvantages of race and class underscore many of the difficulties that capital defendants and others like them have confronted, as well as the prevalence of violence as an all too common adaptation to these disadvantages. [FN101] Because capital jurisprudence *1467 fails to require attorneys to educate jurors about these contexts and since many states correspondingly fail to provide the resources to enable defense counsel to explore these issues adequately, capital trials often obscure the common human connection between jurors and defendants and implicitly highlight differences in ways that make them appear essential rather than situational, thus encouraging jurors to understand variations in behavior in terms of the defendant's fundamental defectiveness.

Ironically, at times, the very social conditions and experiences that have rendered the behavior of capital defendants difficult for jurors to comprehend or understand are those that our society imposes on them in juvenile justice and adult penal institutions. Many capital defendants have been inadequately or badly treated by juvenile justice institutions, which lack the resources, time, and expertise with which to reverse rather than worsen the effects of years of preexisting trauma. [FN102] For others, adult "correctional" institutions provide the past context that has shaped present violent behavior. As one notorious prisoner prophetically wrote, "I feel that if I ever did adjust to prison, I could by that alone never adjust to society. I would be back in prison within months." [FN103] Many capital defendants have moved through a progression of such "adjustments" and present this paradox of institutional control: They have learned to adapt too well to the habits of prison life so that its norms, routines, and ways of being are so deeply ingrained that they cannot be relinquished, no matter how dysfunctional they prove to be for life in free society. [FN104] Again, the failure of capital penalty trials to explicitly address the contextual explanations for individual differences in violent behavior, including the adverse effects of institutionalization and other social historical patterns that help to explain such conduct, gives capital jurors little choice but to morally disengage by focusing on the differences between themselves and the defendant. [FN105] Once having done so, prohibitions against lethal violence are relaxed.

ERRATA

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Upon Reconsideration, Oklahoma House Passes Ban on Execution of Mentally Retarded

Two days after rejecting a measure to prohibit executions of those with mental retardation, the Oklahoma House of Representatives reconsidered the legislation and passed it by a 51-47 vote. The bill is now being sent to the Senate for consideration. If passed, the maximum penalty for those with mental retardation will be life in prison without the possibility of parole. "This does not excuse the individual," said the bill's author, Rep. Opio Toure (D-Oklahoma City). Toure, whose own father and brother were killed in separate homicides, said that people who are developmentally disabled should be treated differently by the criminal justice system because they may not understand the consequences of their actions. (Associated Press, 2/28/02) See also, Mental Retardation and the Death Penalty.

Illinois Gubernatorial Candidates Comment on Death Penalty

The major Democratic candidates for Illinois governor recently met with the Chicago Tribune editorial board. The candidates had the following to say about the death penalty:

Roland Burris:

I support the death penalty. But I'll tell you one thing, as governor of the state, if there's any question (as to) whether or not I will put somebody to death in the question of reasonable doubt, certainly it would be something that I would not sign off on unless the evidence came to me saying that that was the case. I support the death penalty but I don't think we'll ever use it again in Illinois.

Rod Blagojevich:

I'm a former prosecutor, I support the death penalty in certain cases. The governor was absolutely right on the moratorium. We can reform a lot of the things. Confessions. There's DNA evidence to give us more certainty. But I still think we have a long way to go before we can even think that the system can work. I'm waiting to see the results of the commission the governor appointed. But even so, there's still a fundamental, inherent disadvantage between indigent defendants and those who can afford the best and the brightest lawyers and I don't know that this commission is really going to address that. And I don't know that in the wake of 13 people wrongfully on Death Row that we should be quick to reinstate the death penalty.

Paul Vallas:

I support the death penalty. . . .

I've supported the moratorium because I think the administration of the death penalty is flawed.

. . .

[T]here are a number of standards I would embrace. Quality legal counsel and (making) sure that there is no chance of error, that a person is as close to being guilty beyond a doubt as is possible.

I would go back and I would review existing cases already on Death Row to determine how those cases have conformed to those standards for the purpose of determining whether those sentences should be revised.

(Chicago Tribune, 3/1/02) See also, New Voices.