In re Sakarias leads off the edition. The California Supreme Court in Sakarias holds that the the prosecution erred in arguing different theories of culpability in separate trials of co-defendants. In reaching this result the Court provides an overview of competing moral guilt as factoring in the decision to return a death sentence. A prosecution "may not convict two individuals of a crime only one could have committed or obtain harsher sentences against two individuals by unjustifiably attributing to each a culpable act only one could have committed."

Two Supreme Court decisions impacting on criminal law are also noted. In Shepard v. United States, a very narrow opinion foreshadowing one of the last remaining Apprendi battles, the Court holds that sentencing court cannot look outside of the record of a prior plea for determination of the basis of that prior offense. In Wilkinson v. Dotson the Court holds that constitutionality of state parole procedures can be raised under § 1983.

Elsewhere, the Court has already begun to issue remands in light of Simmons, including six in the last ten days. Interestingly, the first application of Simmons by the lower courts is a noncapital case, United States v. Lewis, where a district court citing Simmons discounted giving career offender status for robberies committed as a juvenile.

In New Jersey the first opinion debunking CBLA (chemical bullet lead analysis) is noted, State v. Behn, a case where the prosecution had sought death. Blasting the validity of the testimony in that case, , the Behn Court offers a good overview of the current state of the science (or lack of science) relating to CBLA. The Court ultimately concludes that the evidence undermining CBLA was previously unavailable the Court suggests strong reasons why otherwise untimely post-conviction petitions should be granted.

From the papers, in California, the Los Angeles Times has calculated that each execution in the so-called "modern era" has cost approximately $250 million. President Bush has agreed to give the 51 Mexican death row inmates in the U.S. new hearings, as ordered by the International Court of Justice in the Hague however, the U.S. officially withdrew from the Vienna Convention protocol binding the United States to follow ICJ holdings.

Two new resources are also noted. The Public Defender Investigator site, pdinvestigator.net has instantly reached the "must visit" list due to its links to other public defender offices, and great investigation tools, including for mitigation. National Legal Aid and Defender Association (NLADA) has initiated the Appellate Support Network, a project that connects criminal procedure academics with public defenders working on important federal appellate matters.

Please note that the March 31 execution date for James Harlow in Wyoming was inappropriately listed as a serious date since he still has federal habeas remedies remaining. In another administrative note, starting last week I started posting updates on Sunday nights on the website of at least some of the decisions that are to be covered in the next Weekly in order to be more timely (Westlaw & Lexis generally do not have all of the cases from a given week until Wednesday, which is why the weekly always runs in full at the end of the week).

Archived on the internet at http://capitaldefenseweekly.com/archives/050307.htm

As always, "hat tips" to TalkLeft, CrimProfBlog, the Sentencing Blog, the ConfrontationClause Blog, DPIC & Greg Worthen for their invaluable work. - k

Recently Killed

March

8 George Hopper Texas

8 William Henry Smith Ohio

10 Donald Ray Wallace Indiana

Serious Execution Dates

March

11 William Powell North Carolina

15 Jimmy Ray Slaughter Oklahoma

16 Pablo Melendez Jr. Texas

16 Stanley Hall Missouri

23 Steven Staley Texas----volunteer

Recently Killed

March

8 George Hopper Texas

8 William Henry Smith Ohio

10 Donald Ray Wallace Indiana

Serious Execution Dates

March

11 William Powell North Carolina

15 Jimmy Ray Slaughter Oklahoma

16 Pablo Melendez Jr. Texas

16 Stanley Hall Missouri

23 Steven Staley Texas----volunteer

Leading Cases

In re Sakarias, 2005 WL 486783 (Ca 3/3/2005) Prosecution erred in "arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person."

Shepard v. United States, 2005 WL 516494 (3/7/2005) Sentencing court cannot look to police reports in making decision under Armed Career Criminal Act as facts not readily apparent from the face of the record may not be "found" by a trial court without the assistance of a jury.

Wilkinson v. Dotson, 2005 WL 516415 (3/7/2005) Constitutionality of state parole procedures can be raised under sec. 1983.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

State v. Poindexter, 2005 WL 497795 (NC 3/4/2005) In a factually complicated opinion, relief denied as to guilt phase claims of ineffective assistance of counsel and claims relating to Atkins as the court lacked jurisdiction under governing post-conviction/MAR statute, but holding that the Atkins issue can be raised at a resentencing hearing.

State v. Burke, 2005 WL 488394 (Ohio App. 10 Dist. 3/3/2005) Remand ordered on new trial claims on very fact specific claims not readily categorized from the face of the opinion.

Wessinger v. Cain, 2005 WL 475388 (M.D.La. 2/28/2005) Finding that the petition was timely filed due, at least in apparent part, to equitable tolling.

Decisions Upholding Death

People v. Harrison, 2005 WL 486781 (Cal 3/3/2005) Relief denied on claims including (1) speedy trial; (2) death qualification of jury; (3) admission of other crimes evidence; (4) prosecutor's claims during closing that Harrison enjoyed killing; (5) biblical references in closing; (6) definition of "lingering doubt"; and (7) penalty phase comments claiming absence of mitigating evidence.

Ex parte State (In re: McKissack v. State), 2005 WL 503569 (Ala 3/4/2005) McKissack failed to make the requisite "preliminary showing" requiring preservation of grand jury testimony.

Le v. Mississippi, 2005 WL 487443 (Miss 3/3/2005) Relief denied on claims including: (1) sufficiency; (2) denial of sequestration of jurors; (3) insufficient cross-section of population for jury pool; (4) Batson; (5) waiver of right to counsel before making a statement to the police despite Defendant's problems with English; (6) cops playing on Appellant's religious beliefs to get confession; (7) use of deceased codefendant's police statements in impeachment; and (8) IAC for failing to investigate and present mitigation evidence. (See the Confrontation Blog below).

State v. Thomas, 2005 WL 502961 (Tenn. 3/4/2005) Relief denied holding: "(1) the trial court did not err in excusing a prospective juror for cause; (2) the trial court erred in refusing to instruct the jury on lesser included offenses of felony murder but the error was harmless beyond a reasonable doubt; and (3) the death sentence was not arbitrary, excessive, or disproportionate.”

Hood v. State, 2005 WL 485108 (Tex.Crim.App. 3/2/2005) Request for DNA testing denied. (Please note that there have been severe problems with the TCCA's website and missed cases this week are probable).

Emmett v. Warden, 2005 WL 486677 (Va. 3/3/2005) Relief denied, most notably, on claim that Petitioner's trial counsel was ineffective for failing to object to the incomplete verdict forms given to the jury at the penalty determination phase of petitioner's capital murder trial.

Yarbrough v. Warden, 2005 WL 486713 (Va 3/3/2005) Relief denied, most notably, on failure to investigate and present mitigation evidence.

State v. Steckel, 2005 WL 488400 (Del.Super. 2/28/2005) Relief denied by the trial court on PCR

Other Germane Cases of Note

State v. Behn, 2005 WL 516267, (N.J.Super. 3/7/2005) Bullet lead comparison analaysis held to be junk science. Excellent review of the available literature. This was a capital prosecution that ended up lifewith 30 years without parole. Excellent analysis of issues that can be imported relating to timeliness of new scientific methodologies (former FBI experts that are now available, and the only experts in the field, were unavailable prior to last few years).

United States v. Lewis, 2005 WL 525409 (W.D.Va. 3/7/2005) First use of Simmons used here discount giving career offender status despite the defendant's prior convictions for robberies committed as a juvenile.

Excerpts from this Week's Leading Cases

In re Sakarias and Wadlia, 2005 WL 486783 (Ca 3/3/2005) Petitioners claim this prosecutorial inconsistency deprived them of due process, requiring that their death sentences be vacated. We agree with Sakarias that the prosecutor violated his due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person. We also agree this violation prejudiced Sakarias, entitling him to relief. We do not decide whether the prosecutor's conduct was a due process violation as to Waidla, as we conclude any such violation was harmless in his case.

1. The People may not convict two individuals of a crime only one could have committed or obtain harsher sentences against two individuals by unjustifiably attributing to each a culpable act only one could have committed

[7] Judicial disapproval of the states use of inconsistent and irreconcilable theories in separate trials for the same crimes was first articulated in opinions by individual Supreme Court and lower federal court judges. (See Jacobs v. Scott (1995) 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (dis. opn. of Stevens, J., from denial of stay) [fundamentally unfair to execute a person "on the basis of a factual determination that the State has formally disavowed" in coperpetrators later trial]; Drake v. Kemp (11th Cir.1985) 762 F.2d 1449, 1479 (conc. opn. of Clark, J.) [prosecutors "flip flopping of theories of the offense was inherently unfair"].) Drawing on these separate opinions, several federal courts have since held that a prosecutor's inconsistent argument in two defendants' separate trials attributing the same criminal or culpability-increasing act to each defendant denies the defendants fundamentally fair trials.

*11 In Thompson v. Calderon (9th Cir.1997) 120 F.3d 1045 (Thompson ), reversed on other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728, a majority of the en banc court held that inconsistent prosecutorial theories may present a due process violation. There, Leitch and Thompson were both charged with raping and killing Ginger Fleischli. At their joint preliminary hearing and at Leitch's trial, the prosecutor introduced and relied on evidence, including testimony by jailhouse informants recounting statements by Thompson, that indicated the two defendants had acted together, killing Fleischli because she was interfering with Leitch's efforts to reconcile with his ex-wife. (Thompson, supra, at pp. 1055-1056 (plur. opn. of Fletcher, J.).) At Thompson's trial (held before Leitch's), however, the same prosecutor had introduced and relied upon other evidence, to the effect that Thompson alone killed Fleischli to prevent her reporting that he had raped her. (Id. at p. 1056.) The prosecutor thus "asserted as the truth before Thompson's jury the story he subsequently labeled absurd and incredible in Leitch's trial." (Id. at p. 1057.)

The Thompson plurality concluded that "when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime." (Thompson, supra, 120 F.3d at p. 1058.) Three of the 11 judges participating fully joined with Judge Fletcher in her opinion on this point. (Id. at p. 1047.) Two more, in a concurring opinion by Judge Tashima, agreed that prosecutorial use of wholly inconsistent theories violates due process (id. at p. 1063), but believed that Thompson's entitlement to relief depended on whether he was prejudiced, which in turn required a determination "which of the two inconsistent theories pursued by the prosecutor represents the true facts and which is false" (id. at p. 1064).

In Smith v. Groose (8th Cir.2000) 205 F.3d 1045 (Smith ), members of two criminal groups who had separately burglarized the same house during overlapping periods of the same day were tried separately for the murder of the occupants. At the trials of both Cunningham, a member of the first group of burglars, and Smith, a member of the second, Lytle, also a member of the second group, testified the occupants were killed by Cunningham's group. In one prior statement to police, Lytle had attributed the killings to a member of his own group, Bowman, while in another he said, consistently with his trial testimony, that Cunningham's group had killed the occupants. At Smith's trial, the prosecutor used Lytle's prior statement implicating Bowman in the killings, arguing to the jury that Smith, Bowman's accomplice in burglary, was guilty of felony murder. Later, at Cunningham's trial, the prosecutor relied on Lytle's testimony, introduced his prior consistent statement to police, did not introduce his prior inconsistent statement, and objected to defense efforts to impeach him. (Id. at pp. 1047-1048, 1050.) "In short, what the State claimed to be true in Smith's case it rejected in Cunningham's case, and vice versa." (Id. at p. 1050.)

*12 The Smith court concluded, "the use of inherently contradictory theories violates the principles of due process" (Smith, supra, 205 F.3d at p. 1052), for "[t]he State's duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth" (id . at p. 1051; see also United States v. Butner (W.D.Mo.2000) 2000 WL 1842410, *15-17 [following Smith ] ).

Recently, the Sixth Circuit Court of Appeals reached the same conclusion in Stumpf v. Mitchell (6th Cir.2004) 367 F.3d 594, cert. granted sub nom. Mitchell v. Stumpf (Jan. 7, 2005 No. 04-637) --- U.S. ----, [125 S.Ct. 824, --- L.Ed.2d ----] (Stuumpf ). Stumpf and his accomplice, Wesley, robbed and killed a couple, the Stouts, in their home. That Stumpf shot Mr. Stout was undisputed, but whether he also shot Mrs. Stout or Wesley did so with Stumpf's handgun was unclear. At Stumpf's plea hearing, the prosecutor argued that since both victims were shot with the same weapon, the evidence showed Stumpf must have killed both victims " 'in order not to leave anyone available to identify him.' " (Id. at p. 613.) But at Wesley's later trial, the prosecutor introduced a jail informant's testimony that Wesley had confessed to picking up Stumpf's handgun and shooting Mrs. Stout. On that basis, the prosecutor argued Stumpf had left the room after shooting Mr. Stout, whereupon Wesley, " 'whose own gun was jammed, picked that chrome colored Raven up and as Mrs. Stout sat helplessly on her bed, shot her four times in order to leave no witnesses to the crime.' " (Ibid.; id. at pp. 596-598.)

The appellate court concluded, "the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation." (Stumpf, supra, 367 F.3d at p. 611.) The vice rests in the fact that of two inconsistent and irreconcilable theories, one must be false: "Because inconsistent theories render convictions unreliable, they constitute a violation of the due process rights of any defendant in whose trial they are used." (Id. at p. 613.) In Stumpf, the state had clearly used such irreconcilable theories, for "[a]t each proceeding, the prosecutor argued that the defendant had been the one to pull the trigger, resulting in the fatal shots to [Mrs.] Stout." (Ibid.)

These courts and judges have found a prosecutors 180-degree change in theory "deeply troubling" (Jacobs v. Scott, supra, 513 U.S. at p. 1069), in part because by taking a formal position inconsistent with the guilt or culpability of at least one convicted defendant, the government, through the prosecutor, has cast doubt on the factual basis for the conviction. "If the prosecutors statements at the Hogan trial were correct, then Jacobs is innocent of capital murder." (Ibid.) "The conclusion seems inescapable that the prosecutor obtained Henry Drakes conviction through the use of testimony he did not believe...." (Drake v. Kemp, supra, 762 F.2d at p. 1479.) "The prosecutor ... at Leitchs trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompsons trial." (Thompson, supra, 120 F.3d at p. 1057.) As both of two irreconcilable theories of guilt cannot be true, "inconsistent theories render convictions unreliable." (Stumpf, supra, 367 F.3d at p. 613.)

*13 [8][9][10] Because it undermines the reliability of the convictions or sentences, the prosecutions use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system. A criminal prosecutor's function "is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial." (United States v. Kattar (1st Cir.1988) 840 F.2d 118, 127.) His or her goal must be "not simply to obtain a conviction, but to obtain a fair conviction." (Brown v. Borg (9th Cir.1991) 951 F.2d 1011, 1015.) "Although the prosecutor must prosecute with earnestness and vigor and 'may strike hard blows, he is not at liberty to strike foul ones.' " (Smith, supra, 205 F.3d at p. 1049, quoting Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314; see also ABA Model Code Prof. Responsibility, EC 7-13 ["The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict"].)

For the governments representative, in the grave matter of a criminal trial, to "chang[e] his theory of what happened to suit the state" is unseemly at best. (Drake v. Kemp, supra, 762 F.2d at p. 1479.) "The state cannot divide and conquer in this manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth." (Ibid.) Thus, even a court that did not believe inconsistent positions, by themselves, to be constitutional error found it "disturbing to see the Justice Department change the color of its stripes to such a significant degree ... depending on the strategic necessities of the separate litigations." (United States v. Kattar, supra, 840 F.2d at p. 127; see also Thompson, supra, 120 F.3d at p. 1072 (dis. opn. of Kozinski, J.) [prosecutor's use of inconsistent factual theories "surely does not inspire public confidence in our criminal justice system"].)

We have previously indicated that an inconsistent prosecutorial argument "made in bad faith" could be misconduct, and conversely that such argument was not improper if "based on the record and made in good faith" (People v. Farmer (1989) 47 Cal.3d 888, 923, 254 Cal.Rptr. 508, 765 P.2d 940 (Farmer )), though we did not have occasion in that case to deal more definitively with the problem. With the issue more squarely before us here, we hold that the Peoples use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for--and, where prejudicial, actually achieves--a false conviction or increased punishment on a false factual basis for one of the accuseds. "The criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth." (United States v. Kattar, supra, 840 F.2d at p. 127.)

*14 [11] By intentionally and in bad faith seeking a conviction or death sentence for two defendants on the basis of culpable acts for which only one could be responsible, the People violate "the due process requirement that the government prosecute fairly in a search for truth." (Smith, supra, 205 F.3d at p. 1053.) In such circumstances, the Peoples conduct gives rise to a due process claim (under both the United States and California Constitutions) similar to a claim of factual innocence. Just as it would be impermissible for the state to punish a person factually innocent of the charged crime, so too does it violate due process to base criminal punishment on unjustified attribution of the same criminal or culpability-increasing acts to two different persons when only one could have committed them. In that situation, we know that someone is factually innocent of the culpable acts attributed to both. (See Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at p. 425 ["When the prosecution advances a position in the trial of one defendant and then adopts an inconsistent position in the trial of another on the same facts, the prosecution is relying on a known falsity"].)

* * * *

3. The People's use of inconsistent and irreconcilable theories was prejudicial as to Sakarias

[16] The prejudice question is in these circumstances a complex one, involving two questions as to each petitioner and each culpability-increasing act inconsistently attributed to petitioners: for each petitioner we must ask, first, whether the Peoples attribution of the act to the petitioner is, according to all the available evidence, probably false or probably true, and, second, whether any probably false attribution of a culpability-increasing act to the petitioner could reasonably have affected the penalty verdict.

*17 [17] As previously explained, the prosecutors unjustified use of inconsistent and irreconcilable factual theories to convict two people of a crime only one could have committed, or to obtain harsher sentences for both on the basis of an act only one could have committed, violates due process because in those circumstances the state has necessarily convicted or sentenced a person on a false factual basis. It follows that where the probable truth of the situation can be determined--where we are able to say which of the prosecution theories was likely true and which false--only the defendant prejudiced by the false attribution is entitled to relief. (See Thompson, supra, 120 F.3d at p. 1064 (conc. opn. of Tashima, J.) ["To reach a conclusion of prejudice or no prejudice as to Thompson first requires a finding of which of the two inconsistent theories pursued by the prosecutor represents the true facts and which is false"]; Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at p. 1478 [in assessing entitlement to relief for inconsistent prosecutorial theories, "courts should ask whether the correct position on the evidence can be determined from the evidence available. If the correct position is ascertainable, the court should rule accordingly"].) Only as to the defendant convicted or sentenced by use of the probably false theory can it be said the prosecution has presented a materially false picture of the defendant's culpability.

We need not decide here what result obtains when the likely truth of the prosecutor's inconsistent theories cannot be determined, for the case at bench is not one of ambiguous or inconclusive evidence. [FN8] As the referee found, the great weight of available evidence indicates that Viivi Piirisild was dead or near death when dragged into the bedroom and thus that Waidla, rather than Sakarias, struck the antemortem, hemorrhagic hatchet-blade blow. True, some evidence--blood spatters in the bedroom--suggests the possibility of an antemortem blow being struck in that room. But that evidence is overwhelmed by other evidence that Viivi's hemorrhagic wounds, including the hemorrhagic chopping wound Ipsen characterized as the "death blow," were inflicted during petitioners' initial attack on her in the living room, including the large pool of blood in the living room, the minimum quantity of blood on the bedroom walls and ceiling, the lack of blood on the bedroom floor, Sakarias's statement that petitioners felled Viivi in the living room before eventually dragging her into the bedroom, and the nonhemorrhagic character of the abrasion on Viivi's back. As both petitioners' statements have Waidla using the hatchet during that initial attack and Sakarias the knife, and as no evidence at all suggests the two exchanged weapons during the initial attack, the inescapable inference from all the available evidence is that Waidla inflicted the hemorrhagic chopping wound to Viivi's head.

[18] To the extent the false attribution of the antemortem hatchet-blade blow to Sakarias was potentially material to the penalty decision, it deprived Sakarias of a fair penalty trial and entitles him to relief. Sakarias and the Attorney General agree this aspect of prejudice should be tested on the "reasonable likelihood" standard applicable to the knowing presentation of false evidence, which is equivalent to the "harmless beyond a reasonable doubt" test of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. (See United States v. Agurs (1976) 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342; In re Malone, supra, 12 Cal.4th at p. 977, 50 Cal.Rptr.2d 281, 911 P.2d 468; In re Jackson, supra, 3 Cal.4th at pp. 597-598, 11 Cal.Rptr.2d 531, 835 P.2d 371.) Because the prosecutor intentionally used an inconsistent and probably false theory to obtain a death sentence against Sakarias, we agree with the parties that Sakarias is entitled to relief if he can show a reasonable likelihood the prosecutor's use of the tainted factual theory affected the penalty verdict. (Accord, United States v. Kattar, supra, 840 F.2d at p. 128; Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at p. 1471.)

*18 Aside from attributing the hemorrhagic chopping wound to Sakarias, the prosecutor introduced and relied upon other significant aggravating circumstances. Sakarias undisputedly played a direct role in the brutal, unprovoked killing of Viivi Piirisild. The uncontroverted evidence showed that Sakarias stabbed Viivi four times in the chest, including two potentially fatal wounds passing through vital organs, and that he later took the hatchet, went to the bedroom, and struck her at least twice in the head with the hatchet blade. Sakarias had a loaded handgun when arrested and later was found in possession of shanks in the county jail (for use, he said, against gang members who had robbed him). He also made statements during trial indicating a lack of remorse for killing Viivi and suggesting that he and Waidla had intended to kill Avo Piirisild as well. (Sakarias, supra, 22 Cal.4th at pp. 614-616, 94 Cal.Rptr.2d 17, 995 P.2d 152.)

Other considerations, however, make it impossible for us to conclude beyond a reasonable doubt that the prosecutorial argument that Sakarias struck all the hatchet-blade blows, including the first, antemortem one, played no role in the penalty decision. The first hatchet-blade wound was especially severe and was described in gruesome detail by the medical examiner on direct examination by the prosecutor. The path of the blade was parallel to the top of the head, straight up and down if the victim was lying on the floor. The blade entered on the upper forehead, penetrated through the scalp and the skull bone, then hit the inside of the skull. Dr. Ribe believed the blade then "bounced" off the bone and continued to the rear and right of the victim's head, leaving another incision. The blow's force not only penetrated the front of the skull but fractured the back as well, pushing it backward. As a result, a portion of the upper skull and scalp were partially detached from the rest of the head, forming a flap that could be easily folded back. Because of the strength of an adult human's skull, Dr. Ribe believed a "tremendous amount of force," as much as an average man could exert swinging the hatchet "very hard," was needed to cause this wound.

In the guilt phase argument, the prosecutor discussed in detail Sakarias's attack on Viivi Piirisild with the hatchet, stating he went into the bedroom "to strike a few more blows, to make sure that Viivi was dead in case the stabbing and the bludgeoning weren't enough. [¶] We know that there were three, in this series of blows, sharp hatchet wounds to the top of Viivi's head with a tremendous force....

[¶] And it was with this strength that Peter Sakarias swung this hatchet to penetrate this skull, to reach that most vital organ.... [¶] ... [¶] We know that there are in fact three hatchet wounds; the first penetrating the top of the skull, and I know it was the first because it was a hemorrhagic wound, the one in the hairline, the one that chopped the top of her head completely off with the exception of some of the scalp that kept it completely on. [¶] ... [¶] We know that this last series of chop wounds ... was consistent with the last three blows she received." In the penalty argument, the prosecutor twice again asserted that Sakarias had inflicted all the chopping wounds, "swinging what I suggest were the blows that actually ended her life." Sakarias, according to Ipsen, "simply ... chop[ped] the top of her head off, as the evidence indicated you did in that back room, thus finally ending her life."

*19 As to mitigation, Sakarias was young (21 years old) at the time of the offense, had no record of violence, and had suffered persecution in the Soviet Army. He was diagnosed with schizo-affective disorder, characterized by paranoia and bipolar affect; the jury was informed that he had been found incompetent to stand trial in May 1990 and spent almost a year in a state hospital. The defense also played tapes of Sakarias's mother, father, and friends, recorded in Estonia, describing his childhood and youth. (Sakarias, supra, 22 Cal.4th at pp. 614-616, 94 Cal.Rptr.2d 17, 995 P.2d 152.)

Some aspect or aspects of the case evidently gave one or more jurors considerable pause in the sentencing decision, as the penalty jury deliberated for more than 10 hours over three days and, at one point, declared itself unable to reach a unanimous verdict, before finally returning a verdict of death.

In light of the prominence the prosecutor gave the antemortem chopping wound, treating it as the final, fatal wound, and the likely impact the medical examiner's description of that wound and the force necessary to inflict it would have had, that the prosecutor's attribution of that blow to Sakarias had an effect on the penalty verdict is reasonably likely. (United States v. Agurs, supra, 427 U.S. at p. 103.) Though Sakarias's undisputed conduct in stabbing Viivi Piirisild and stealing her property played, no doubt, a major role in the jury's decision, we cannot conclude beyond a reasonable doubt that the jury's decision would have been the same had it not also been told that Sakarias finally ended Viivi's life by swinging a hatchet with all his strength, nearly cutting off the top of her head. The prosecutor's intentional and unjustified argument, inconsistent with the factual theory and evidence he had presented at Waidla's trial, that Sakarias struck the antemortem hatchet-blade blow was therefore prejudicial to Sakarias as to penalty. [FN9]

Shepard v. United States, 2005 WL 516494 (3/7/2005) Sentencing court cannot look to police reports in making decision under Armed Career Criminal Act as facts not readily apparent from the face of the record may not be "found" by a trial court without the assistance of a jury.

After petitioner Shepard pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the Government sought to increase his sentence from a 37-month maximum to the 15-year minimum that §924(e), popularly known as the Armed Career Criminal Act (ACCA), mandates for such felons who have three prior convictions for violent felonies or drug offenses. Shepard’s predicate felonies were Massachusetts burglary convictions entered upon guilty pleas. This Court has held that only “generic burglary”–meaning, among other things, that it was committed in a building or enclosed space–is a violent crime under the ACCA, Taylor v. United States, 495 U.S. 575, 599, and that a court sentencing under the ACCA can look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after a jury trial was for generic burglary in States (like Massachusetts) with broader burglary definitions, id., at 602. Refusing to consider the 15-year minimum, the District Court found that a Taylor investigation did not show that Shepard had three generic burglary convictions and rejected the Government’s argument that the court should examine police reports and complaint applications in determining whether Shepard’s guilty pleas admitted and supported generic burglary convictions. The First Circuit vacated, ruling that such reports and applications should be considered. On remand, the District Court again declined to impose the enhanced sentence. The First Circuit vacated.

Held:The judgment is reversed, and the case is remanded.

348 F.3d 308, reversed and remanded.

Justice Souter delivered the opinion of the Court, except as to Part III, concluding that enquiry under the ACCA to determine whether a guilty plea to burglary under a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, to the terms of a plea agreement or transcript of colloquy between judge and defendant in which the defendant confirmed the factual basis for the plea, or to some comparable judicial record of this information. Guilty pleas may establish ACCA predicate offenses, and Taylor’s reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with nongeneric offenses. The ACCA nowhere provides that convictions in tried and pleaded cases should be regarded differently, and nothing in Taylor’s rationale limits it to prior jury convictions. This Court, then, must find the right analogs for applying Taylor to pleaded cases. The Taylor Court drew a pragmatic conclusion about the best way to identify generic convictions in jury cases. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact; in pleaded cases, they would be the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. A later court could generally tell from such material whether the prior plea had “necessarily” rested on the fact identifying the burglary as generic. Taylor, supra, at 602. The Government’s arguments for a wider evidentiary cast that includes documents submitted to lower courts even prior to charges amount to a call to ease away from Taylor’s conclusion that respect for congressional intent and avoidance of collateral trials require confining generic conviction evidence to the convicting court’s records approaching the certainty of the record of conviction in a generic crime State. That was the heart of the Taylor decision, and there is no justification for upsetting that precedent where the Court is dealing with statutory interpretation and where Congress has not, in the nearly 15 years since Taylor, taken any action to modify the statute. Pp.5—9, 12.

Justice Souter, joined by Justice Stevens, Justice Scalia, and Justice Ginsburg, concluded in Part III that the rule in the Jones v. United States, 526 U.S. 227, 243, n.6, and Apprendi v. New Jersey, 530 U.S. 466, 490, line of cases–that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, absent a waiver by the defendant–is also relevant to ACCA sentencing. In a nongeneric State, the fact necessary to show a generic crime is not established by the record of conviction as it would be in a generic State when a judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres v. United States, 523 U.S. 224 and . Instead, the sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the prior plea’s factual basis, and the dispute raises the concern underlying JonesApprendi: the Sixth and Fourteenth Amendments guarantee a jury’s standing between a defendant and the power of the State, and they guarantee a jury‘s finding of any disputed fact essential to increase a potential sentence’s ceiling. The disputed fact here is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality therefore counsels the Court to limit the scope of judicial factfinding on the disputed generic character of a prior plea. Pp. 10—12.

Justice Thomas agreed that the Court should not broaden the scope of the evidence judges may consider under Taylor v. United States, 495 U.S. 575, because it would give rise to constitutional error, not constitutional doubt. Both Almendarez-Torres v. United States, 523 U.S. 224, and Taylor, which permit judicial factfinding that concerns prior convictions, have been eroded by this Court’s subsequent Sixth Amendment jurisprudence. Pp.1—3.

Souter, J., delivered an opinion, which was for the Court except as to Part III. Stevens, Scalia, and Ginsburg, JJ., joined that opinion in full, and Thomas, J., joined except as to Part III. Thomas, J., filed an opinion concurring in part and concurring in the judgment. O’Connor, J., filed a dissenting opinion, in which Kennedy and Breyer, JJ., joined. Rehnquist, C.J., took no part in the decision of the case.

Wilkinson v. Dotson, 2005 WL 516415 (3/7/2005) Constitutionality of state parole procedures can be raised under sec. 1983.

Respondents Dotson and Johnson are Ohio state prisoners. After parole officials determined that Dotson was not eligible for parole and that Johnson was not suitable for parole, they brought separate actions for declaratory and injunctive relief under 42 U.S.C. § 1983 claiming that Ohio’s parole procedures violate the Federal Constitution. In each case, the Federal District Court concluded that a §1983 action does not lie and that the prisoner would have to seek relief through a habeas corpus suit. The Sixth Circuit ultimately consolidated the cases and reversed, finding that the actions could proceed under §1983.

Held: State prisoners may bring a §1983 action for declaratory and injunctive relief challenging the constitutionality of state parole procedures; they need not seek relief exclusively under the federal habeas corpus statutes. Pp. 3—10.

(a) Ohio argues unsuccessfully that respondents’ claims may only be brought in federal habeas (or similar state) proceedings because a state prisoner cannot use a §1983 action to challenge “the fact or duration of his confinement,” e.g., Preiser v. Rodriguez, 411 U.S. 475, 489, and respondents’ lawsuits, in effect, collaterally attack their confinements’ duration. That argument jumps from a true premise (that in all likelihood the prisoners hope their suits will help bring about earlier release) to a faulty conclusion (that habeas is their sole avenue for relief). This Court’s case law makes clear that the connection between the constitutionality of the prisoners’ parole proceedings and release from confinement is too tenuous here to achieve Ohio’s legal door-closing objective. From Preiser to Edwards v. Balisok, 520 U.S. 641, this Court has developed an exception from §1983’s otherwise broad scope for actions that lie “within the core of habeas corpus,” Preiser, supra, at 487, i.e., where a state prisoner requests present or future release. Section 1983 remains available for procedural challenges where success would not necessarily spell immediate or speedier release for the prisoner, e.g., Wolff v. McDonnell, 418 U.S. 539, but the prisoner cannot use §1983 to obtain relief where success would necessarily demonstrate the invalidity of confinement or its duration, e.g., Heck v. Humphrey, 512 U.S. 477. Here, respondents’ claims are cognizable under §1983, i.e., they do not fall within the implicit habeas exception. They seek relief that will render invalid the state procedures used to deny parole eligibility (Dotson) and parole suitability (Johnson). See Wolff, supra, at 554—555. Neither prisoner seeks an injunction ordering his immediate or speedier release into the community. See, e.g., Preiser, supra, at 500. And as in Wolff, a favorable judgment will not “necessarily imply the invalidity of [their] conviction[s] or sentence[s].” Heck, supra, at 487. Success for Dotson does not mean immediate release or a shorter stay in prison; it means at most new eligibility review, which may speed consideration of a new parole application. Success for Johnson means at most a new parole hearing at which parole authorities may, in their discretion, decline to shorten his prison term. Because neither prisoner’s claim would necessarily spell speedier release, neither lies at “the core of habeas corpus.” Preiser, supra, at 489. Finally, the prisoners’ claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration) are yet more distant from that core. See Balisok, supra, at 648. Pp. 3—8.

(b) Ohio’s additional arguments–(1) that respondents’ §1983 actions cannot lie because a favorable judgment would “necessarily imply the invalidity of [their] sentence[s],” Heck, supra, at 487 (emphasis added), which sentences include particular state parole procedures; and (2) that a decision for them would violate principles of federal/state comity by opening the door to federal court without prior exhaustion of state-court remedies–are not persuasive. Pp. 8—10.

329 F.3d 463, affirmed and remanded.

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

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AROUND THE WEB

Our good friends at DPIC note:

U.S. Abandons Optional Protocol to the Vienna Convention on Consular Relations

The Bush administration has pulled out of the Optional Protocol to the Vienna Convention on Consular Relations, an international agreement that has been in place for more than 30 years and that the United States initially supported to protect its citizens abroad. In recent years, the provision has been successfully invoked by foreign nations whose citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries, events which served as the basis for President Bush's decision to withdraw from the agreement.

The Optional Protocol to the Vienna Convention on Consular Relations requires signatories to let the United Nation's highest tribunal, the International Court of Justice at the Hague, make the final decision when their citizens say they have been illegally denied the right to seek consulate assistance when jailed abroad. The administration's withdrawal from the Optional Protocol comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to an International Court of Justice ruling in favor of 51 Mexican foreign nationals. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the death row inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims. It is unclear what affect the administration's decision to abandon the Optional Protocol will have on this case.

Some analysts say President Bush's decision will weaken both protections for U.S. citizens abroad and the idea of reciprocal obligation that the protocol embodied. The United States was the first to invoke the Optional Protocol before the World Court to successfully sue Iran for the taking of 52 U.S. hostages in 1979. (Washington Post, March 10, 2005).

See International Death Penalty, Foreign Nationals, and Supreme Court.

NEW RESOURCE: Law Review Examines Competency To Waive Appeals in Capital Cases

A recent article in the Wayne Law Review by Prof. Phillys L. Crocker of the Cleveland-Marshall College of Law examines the Supreme Court's struggle with the issue of death row inmates waiving their appeals. Crocker uses Rees v. Peyton, a capital case that remained on the Court's docket from 1965-1995, to explore the issue. In that case, Virginia death row inmate Melvin Rees sought to withdraw his petition for a writ of certiorari so that he could be executed. In 1967, the Supreme Court stayed the proceeding after Rees was found incompetent to waive his appeal, but it did not dismiss the case until after he died of natural causes. In her article, Not to Decide is to Decide: The U.S. Supreme Court's Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, Crocker concludes:

The Court documents in Rees are historically significant because they reveal, for the first time, how the Court resolved the difficult issues it faced regarding how to determine whether Rees was competent to decide whether to abandon or continue litigating his case, and whether to proceed once the federal district court found Rees incompetent.... For litigators and courts seeking guidance in how to proceed in death penalty cases when the death row inmate may be incompetent, the Rees documents establish a strong historical model for thoroughly examining an inmate's mental capacity and staying court proceedings when the inmate is deemed incompetent."

(49 Wayne Law Review 885 (2004)). See Supreme Court, Mental Illness, and Resources

In California, Taxpayers are Paying a Quarter of a Billion Dollars for each Execution

According to state and federal records obtained by The Los Angeles Times, maintaining the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life. This figure does not count the millions more spent on court costs to prosecute capital cases. The Times concluded that Californians and federal taxpayers have paid more than a quarter of a billion dollars for each of the state's 11 executions, and that it costs $90,000 more a year to house one inmate on death row, where each person has a private cell and extra guards, than in general prison population. This additional cost per prisoner adds up to $57.5 million in annual spending.

California has 640 people on death row, about 20% of the nation's total, but it accounts for only 1% of the nation's executions. Since California reinstated the death penalty in 1978, 11 people have been executed.

The Chief Justice of the California Supreme Court, Ronald George, said that 115 death row inmates still have not been appointed lawyers for their first direct appeal and 149 lack lawyers for other parts of their appeal. The court spends 20% of its time and resources on death penalty cases alone. (Los Angeles Times, March 6, 2005). See Costs and Life Without Parole.

President Bush Orders Courts to Give Foreign Nationals on Death Row Further Review

The White House has ordered state courts to consider the complaints of 51 Mexican foreign nationals on death row in the United States. This Executive Order is an abrupt international policy shift for the Bush administration and comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to a ruling in favor of the 51 foreign nationals by the United Nations' highest tribunal, the International Court of Justice at the Hague. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the Mexican foreign national inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims. In his memorandum to the attorney general, President Bush stated that he had determined "that the United States will discharge its international obligations under the decision of the International Court of Justice" and he ordered the state courts to grant review. It is unclear if the Administration's decision will affect the U.S. Supreme Court's consideration of the case. (International Herald Tribune, March 4, 2005). See Foreign Nationals and Supreme Court.

The text of the President's memo is below:

The White House

February 28 [2005]

MEMORANDUM FOR THE ATTORNEY GENERAL

SUBJECT: Compliance With the International Court of Justice in Avena

The United States is a party to the Vienna Convention on Consular Relations (the "Convention") and the Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which gives the International Court of Justice (ICJ) jurisdiction to decide disputes concerning the "interpretation and application" of the Convention.

I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31), by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

DETERRENCE: Expert Testimony Discusses Recent Studies

Dr. Jeffrey Fagan, a professor at Columbia University Law School and a leading national expert on deterrence, testifed that recent studies claiming to show a deterrent effect to capital punishment are fraught with technical and conceptual errors. Fagan noted that a string of recent studies purporting to show that the death penalty can prevent murders use inappropriate methods of statistical analysis, fail to consider all the relevant factors that drive murder rates, and do not consider important variables in key states. During his testimony before committees of the New York Assembly gathering information regarding the future of the state's statute, Dr. Fagan stated:

These studies fail to reach the demanding standards of social science to make such strong claims, standards such as replication and basic comparisons with other scenarios. Some simple examples and contrasts, including a careful analysis of the experience in New York State compared to others, lead to a rejection of the idea that either death sentences or executions deter murder.... A close reading of the new deterrence studies shows quite clearly that they fail to touch this scientific bar, let alone cross it.

For a full discussion of the problems identified by Dr. Fagan, read the text of his testimony in PDF format. ("Deterrence and the Death Penalty: A Critical Review of New Evidence," Dr. Jeffrey Fagan, January 21, 2005). See also, Deterrence.

BOOKS: "Desire Street" Examines the Exoneration of Curtis Kyles in New Orleans

In his new book, Desire Street: A True Story of Death and Deliverance in New Orleans (Farrar, Straus and Giroux, 2005), the Times-Picayune city editor Jed Horne examines the exoneration of Louisiana death row inmate Curtis Kyles and how his case has impacted the New Orleans criminal justice system. The book investigates the murder of Delores Dye, a 60-year-old housewife who was gunned down in full view of six eyewitnesses. Kyles was arrested and tried twice for the crime. After an initial mistrial, he was convicted of the crime and spent 14 years on death row before the U.S. Supreme Court reversed his original conviction. Since then, Kyles was retried unsuccessfully an additional three times and eventually freed with all charges dropped. Horne's book looks at this case and uses Kyles' experiences to demonstrate the broken criminal justice system in New Orleans, including a review of problems such as racism, the suspect nature of eyewitness identification, and the political nature of the relationship between death penalty cases and elected attorneys and judges. (Review, Times-Picayune, Jan. 30, 2005). See Books and Innocence.

New Mexico House Votes to End Death Penalty

Members of New Mexico's House of Representatives have passed a bill to abolish the death penalty, marking the first time that either chamber of the state's legislature has passed such a measure. Representative Gail Beam, who has sponsored the abolition bill every two years since she was elected in 1996, noted that the vote was "a historic opportunity for New Mexico to take a step that's both thoughtful and practical and to join other industrialized democracies in replacing the death penalty with a sentence of life without parole." Supporters of the measure anticipate a close vote in the Senate, where the bill must first be reviewed by the Senate Public Affairs Committee. Some Senators have called for passage of the legislation due to concerns about innocence and the fact that capital punishment fails to deter violent crime. "Lately I've been looking at all these cases where people have been sentenced to death, and with DNA and other things, they found out all these mistakes. That doesn't make any sense," said Senator Phil Griego, a former death penalty supporter who has announced he will vote for the Senate version of Beam's bill. The last time a death penalty bill reached the floor of either chamber was in 2001, when the Senate narrowly defeated an abolition bill by a vote of 21 to 20. (The New Mexican, March 1, 2005). See Innocence.

Former FBI Chief and Former Federal Judges Ask Supreme Court to Review Ohio Capital Case

Former FBI Chief and federal judge William Sessions recently joined two other former federal judges and a prosecutor urging the U.S. Supreme Court to consider an appeal from Ohio death row inmate John Spirko. In their brief, Sessions and his colleagues assert that the prosecution argued a theory at Spirko's trial that it had to know was at least partly suspect. "When the ultimate penalty is at issue, justice demands scrupulous conduct from prosecutors. It is not enough for a prosecutor to weigh all of the evidence, determine that a defendant is guilty, and pursue such a verdict vigorously if he holds back information unfavorable to his desired outcome," reads the group's brief.

Ohio originally charged Spirko and a co-defendant with the murder of postal worker in 1982. Evidence has since surfaced indicating that the state had photos showing that the co-defendant was 500 miles away at the time of the murder. Spirko maintains that those photos should have been turned over to the defense. The co-defendant was never tried for the murder and the state eventually dropped charges against him.

William Sessions is a member of the Constitution Project's Death Penalty Initiative, which helped organize the writing and submission of the brief on behalf of Spirko. (Toledo Blade, February 24, 2005). See Innocence and New Voices. See also the Cleveland Plain Dealer's Series on the Spirko Case.

AROUND THE BLOGS

The Confrontation Clause blog notes this about State v. Le above:

Feb. 4, 2005:

A new decision from New York, People v. Ko, 2005 WL 248988 (N.Y.A.D. 1 Dept. Feb 3, 2005), holds that the defendant opened the door to a Crawford violation. After the defendant's old girlfriend was murdered, his new girlfriend told the police that a bloody shirt found at the scene was hers. The defense referred to this statement, which supported a theory that the new girlfriend had murdered the old. The trouble was that the new girlfriend had said at the same time that the defendant often wore the shirt, and that bloody pants found at the scene were his. The court therefore held that defendant opened the door to admission of the new girlfriend's full statement, which the court held properly to be testimonial (without, by the way, discussing whether it was in response to structured questioning by the police).

This strikes me as eminently sensible. As the court noted, "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context. "

Ko stands in stark contrast to United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), which essentially rejects the "opening the door" theory as a basis for admitting a statement that would otherwise violate the confrontation right. On the merits of the confrontation issue, Cromer is a wonderful opinion, and it is discussed in one of the first posts on this blog. But as noted in that post, I think the court went overboard on this issue (and in citing me in support of its conclusion on this point).

I have no settled views on this issue, and so I will pose two questions. First, what is the theoretical basis for determining that the defendant opened the door to admissibility of a statement that otherwise would violate the confrontation right? Is it forfeiture -- even though, as Cromer points out, the defendant has presumably done nothing wrong by making the purportedly door-opening argument? Is it waiver -- but if so should it be limited to circumstances in which the defense clearly was aware, perhaps by virtue of a warning, that his conduct was likely to lead to loss of the confrontation right? Is it something else?

Second, what should the standard be for determining whether the right is lost? In some circumstances, it seems to me, the defendant should not be forced to elect between making a given contention and insisting on the confrontation right. But in a case like Ko, it does seem that to allow him to do both would create an intolerably misleading situation.

Addendum, March 4, 2005:

Two new decisions on door-opening came down yesterday, March 3, holding in opposite directions on different facts, and both seem sensible to me. In Le v. State, 2005 WL 487443 (Miss. March 3, 2005), the defendant had offered statements made by another person to inmates, and the state was allowed to offer in rebuttal a statement, apparently conflicting, made by the same person to law enforcement agents, subject to a limiting instruction that this statement was introduced only as it bore on the credibility of the statements to inmates. Seems right to me -- all the more so given that the defense was warned about the consequences of introducing the statements made to inmates.

By contrast, in People v. Ryan, 2005 WL 486846 (N.Y.A.D. 3d Dept. March 3, 2005), the court rejected the prosecution argument that the accused had opened the door. This was a robbery case. An officer testifying on direct had said that a search was predicated on finding a gun, and that the defendant had denied the presence of a gun at the time of his arrest. On cross, the defendant sought to highlight the failure of the police to find a gun and asked whether any of the people arrested in connection with the crime had admitted to the use of a gun. The officer testified that the accused’s two confederates had expressed uncertainty as to whether there had been a gun. On redirect, in response to an open-ended question, the officer testified at length as to his conversations with the confederates. The court held that this was improper. The accused on cross had made only a limited inquiry into statements by others, and had not left a misleading impression. Moreover, the prosecution’s closing argument and the judge’s instructions had failed to limit the use of the prior statements. Again, this seems exactly right.

TalkLeft notes:

Grisham to Write True Story of Innocent Man Condemned to Death by TChris

John Grisham, famed for novels about lawyers, may prove that truth can be more compelling than fiction when he tackles his first work of nonfiction: the account of an innocent man sent to death row.

Ron Williamson, who died of liver disease in December at age 51, at one point came within five days of being executed for the 1982 murder of a 21-year-old woman. He was freed in April 1999.

Grisham bought the rights to the story from Williamson's sisters.

If the story has a hero, says Grisham, it will probably be the lawyers who saved Williamson from imminent death. Grisham hopes to finish the book in about ten months.

U.S. Withdraws from Vienna Convention Death Penalty Protocol

You had to know something was up when President Bush agreed to give the 51 Mexican death row inmates in the U.S. new hearings, as ordered by the International Court of Justice in the Hague. Now, his purpose becomes a little clearer. Wednesday, the U.S. officially withdrew from the Vienna Convention protocol it proposed and ratified in 1963:

The Bush administration has decided to pull out of an international agreement that opponents of the death penalty have used to fight the sentences of foreigners on death row in the United States, officials said yesterday.

In a two-paragraph letter dated March 7, Secretary of State Condoleezza Rice informed U.N. Secretary General Kofi Annan that the United States "hereby withdraws" from the Optional Protocol to the Vienna Convention on Consular Relations. The United States proposed the protocol in 1963 and ratified it -- along with the rest of the Vienna Convention -- in 1969.

The protocol provided that its signatories would grant the International Court of Justice (ICJ) the last word when their citizens raised a claim of being illegally deprived of the right to meet with a diplomat of their home country when jailed abroad.

The Administration has provided this reason for its decision:

"The International Court of Justice has interpreted the Vienna Consular Convention in ways that we had not anticipated that involved state criminal prosecutions and the death penalty, effectively asking the court to supervise our domestic criminal system," State Department spokeswoman Darla Jordan said yesterday.

Withdrawal from the protocol is a way of "protecting against future International Court of Justice judgments that might similarly interpret the consular convention or disrupt our domestic criminal system in ways we did not anticipate when we joined the convention," Jordan added.

Background on the Mexican cases is here.

The Execution of Lena Baker

by TChris

Death penalty supporters who confidently proclaim that the truely innocent are never executed should consider the case of Lena Baker. Here's what John Cole Vodicka, director of Georgia's Prison & Jail Project, says about the circumstances of her 1945 execution.

"This black woman was wrongfully prosecuted and executed because she was defending herself against a white man who repeatedly sexually abused her," Cole Vodicka said. "Lena Baker was tried without proper legal representation."

Vodicka said Baker killed a white man in March 1945, who tried to rape her. He said Baker final words were, “I did it in self-defense, or I would have killed myself..." Baker was convicted by an all white male jury in a one-day trial.

Lena Baker is the only woman to die in Georgia's electric chair. She was honored at a memorial on Saturday.

Doug Berman at Sentencing Law and Policy writes:

March 10, 2005

More on Medellin issues

In this post I spotlighted dynamic developments surrounding the the Supreme Court's consideration in Medellin v. Dretke of the right of foreign nationals on death row to meet with a consular officer from their home country. Adding timely intrigue to these matters, a reader has alerted me that this morning the Oregon Supreme Court issued an opinion in State v. Sanchez-Llamas, No. S51289 (Ore. Mar. 10, 2005) ( available here), which plows related ground.

In Sanchez-Llamas, the Oregon Supreme Court rejects the a claim to suppress evidence based on a violation of the "right to consular notification and communication, as guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR)," by holding that "Article 36 of the VCCR does not create rights that individual foreign nationals may assert in a criminal proceeding." Here is the Court's interesting final footnote:

Our legal conclusion in this case is consonant with every other state and federal case of which we are aware that has addressed the issue. [citations omitted.] We also note that the Supreme Court of the United States on December 10, 2004, granted certiorari in Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). That case, which is set for argument on March 28, 2005, involves certain of the issues that we decide today.

The meddling resulting from Medellin

As discussed here a few months ago, the Supreme Court's decision to take on the case of Medellin v. Dretke, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country, seemed like an important development in the intersection of international law and the death penalty. (See this old background piece by Tony Mauro.) And, as is being extremely well documented by SCOTUSblog, the ripple effect of just the Supreme Court's decision to take this case is remarkable.

Because I have enough trouble keeping tract of domestic law, I will just urge readers interested in this subject to jump to the great Medellin coverage to be found at the SCOTUSblog here and here and here and here. In addition, How Appealing has some of yesterday's coverage of developments here, and this New York Times article provides the latest news.

March 7, 2005

Still more SCOTUS GVRs

In what is becoming a weekly tradition, this morning we get a bunch more Booker-inspired GVRs from the Supreme Court (previous examples are here and here and here). The SCOTUS order with this morning's 20-odd Booker-remanded cases is available at this link (where one can also see that we now also have some Roper-inspired GVRs).

March 5, 2005

The costs of capital (punishment)

A few months ago I noted here a new attentiveness to the extraordinary economic costs of administering a system of capital punishment. Thanks to How Appealing, I see that the Los Angeles Times, in this fascinating article in Sunday's paper, has calculated that

the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts.

The article then calculates that, with "11 executions spread over 27 years, on a per-execution basis, California and federal taxpayers have paid more than a quarter of a billion dollars for each life taken at state hands."

The LA Times article includes a lot of other interesting California capital sentencing information, including the notable decline in the number of death sentences imposed: "In 1999, [California] juries imposed 42 death sentences. In 2004, the number dropped to nine." This datum provides yet more evidence, as detailed previously here and here and here, that the death penalty is in decline.

NCADP's blog notes:

People change.

Joseph Ross is a former volunteer prison chaplain at the Indiana State Prison in Michigan City.

Today, in the South Bend, Indiana Tribune, he writes of his relationship with Donald Ray Wallace Jr., who is scheduled to be executed by the state of Indiana on Wednesday. Wallace is not seeking clemency from the governor.

Here are some excerpts from Joseph's fine piece:

Don Wallace was one of death row's longest residents, and during his years there, as all of us do, he changed. On death row, while some become angry or unstable, Don Wallace became holy. He spent long hours reading, meditating, drawing, and when he could, playing a guitar. When I met Don, he was not the young, foolish, addicted person he had been many years before.

Time does things to people. Its effects are never the same from person to person, but time always changes people. And time brought many good changes in Don Wallace.

....

This is the man the state of Indiana executes this week. A man who is nothing like the one who committed an awful crime so many years ago. Don Wallace changed. He is not the young, dangerous kid he once was.

Because of this, the lies inherent in Indiana's death penalty are exposed. People will be no safer with his execution. No one will be deterred from a future crime because of Don's execution on Wednesday night. And any governor, former governor, or state representative who tells you so is lying. And they know it.

This is one of the many tragedies built into the death penalty -- it ignores change. It forever labels a person, according to one act he might have committed. And as we all know, none of us is our past. We change. If we're lucky and holy, we change a lot.

To read the entire column, go here.

Mind-boggling

California has 640 inmates on death row.

According to a report that just surfaced in the Los Angeles Times, maintaining the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for like and not counting the millions more for appeals.

And the $114 million annual cost does not include the substantial extra funds needed by counties in order to try complicated capital cases.

$114 million per year. 640 people on death row. That's $178,125 per person on death row, per year.

Wow.

The NCADP Execution Board

NCADP “lives” in a row house on Pennsylvania Avenue Southeast. We’re in sight of the U.S. Capitol, but our locale is quite the opposite of Pennsylvania Avenue Northwest, which is where the high-powered lobbyists live and where the real estate value represents quite a hefty chunk of change.

Our little row house is two stories, plus a basement that we’ve converted into a conference room and intern area. A split staircase divides the main floor from the top floor.

In the middle of this split staircase, on the wall, is the NCADP Execution Board.

At the beginning of each month, NCADP’s Jesuit Volunteer, Sarah Wisely, writes down the name of each person scheduled for execution that month. The board is a calendar of that month, so depending on how many executions we have scheduled, it might have a lot of writing on it or it might just have a little.

This month, the NCADP Execution Board has a lot of writing on it.

Sarah notes the day and time of the scheduled execution, the state where it is occurring and the number of executions for the year as well as since 1976, when executions were allowed to resume. (Right now, the count is six for the year and 950 since 1976.)

As the month progresses, Sarah puts a green line through the names of the people who receive stays (we try not to use the words “inmate” or “death row inmates” at NCADP, but rather prefer the phrasing, “people on death row” or “men and women on death row.”) If a person is executed, a red mark is put over their name. And in the rare event of a commutation, they get a blue mark.

Why is this board important?

Many things that we do as part of working at a nonprofit don’t seem immediately connected to the human aspect of the death penalty. You may be the executive director and you’re finalizing a grant report. You may be the office manager and you’re processing check requests, making sure vendors get paid or trying to get someone who can fix the heater in the basement. You may be the lowly communications guy (ha! That’s me!) and you find yourself spending a day working to build a media list, arranging a conference call or doing a radio interview with a community radio station in Los Angeles.

All of these things are important in their own way and are integral to the running of a nonprofit. But the Execution Board serves a daily reminder of the importance and human aspect of the work that we do.

A time for remembrance

While we continue to rejoice the Supreme Court ruling that juvenile offenders should not be executed, it is perhaps important to remember that this ruling came to late to save some. Twenty-two juvenile offenders have been executed in the United States since 1985. Of these, 13 were executed by the state of Texas.

One of these was Napolean Beazley, executed May 28, 2002. Here is Napolean's final statement:

The act I committed to put me here was not just heinous, it was senseless. But the person that committed that act is no longer here -- I am.

I'm not going to struggle physically against any restraints. I'm not going to shout, use profanity or make idle threats. Understand though that I'm not only upset, but I'm saddened by what is happening here tonight. I'm not only saddened, but disappointed that a system that is supposed to protect and uphold what is just and right can be so much like me when I made the same shameful mistake.

If someone tried to dispose of everyone here for participating in this killing, I'd scream a resounding, 'No.' I'd tell them to give them all the gift that they would not give me ... and that's to give them all a second chance.

I'm sorry that I am here. I'm sorry that you're all here. I'm sorry that John Luttig died. And I'm sorry that it was something in me that caused all of this to happen to begin with.

Tonight we tell the world that there are no second chances in the eyes of justice. ... Tonight, we tell our children that in some instances, in some cases, killing is right.

This conflict hurts us all. There are no sides. The people who support this proceeding think this is justice. The people that think that I should live think that is justice. As difficult as it may seem, this is a clash of ideals, with both parties committed to what they feel is right. But who's wrong if in the end we're all victims?

In my heart, I have to believe that there is a peaceful compromise to our ideals. I don't mind if there are none for me, as long as there are for those who are yet to come. There are a lot of men like me on Death Row -- good men -- who fell to the same misguided emotions, but may not have recovered as I have.

Give those men a chance to do what's right. Give them a chance to undo their wrongs. A lot of them want to fix the mess they started, but don't know how. The problem is not in that people aren't willing to help them find out, but in the system telling them it won't matter anyway. No one wins tonight. No one gets closure. No one walks away victorious.

Notable from " the Lonely Abolitionist" is:

U.S. Quits Pact Used in Capital Cases

Blast it all! The U.S. has pulled out or part of the Vienna Convention. For 35 years, the Vienna Convention has assured that citizens of its signatories are allowed consult with their home-country diplomat when jailed abroad. The United States has now withdrawn itself from that portion of the Convention (referred to as an "Optional Protocol").

The United States has used this portion of the Convention on more than one occasion to protect its own citizens abroad. However, death penalty opponents and foreign governments have used it as argument in death penalty cases of foreign nationals in the U.S. (OFTEN foreign nationals are given death sentences without the opportunity to consult with their diplomat). As noted in a post below, the Bush administration granted hearings to 51 Mexican death penalty inmates to review whether they were given ample opportunity to speak to their diplomat. The United States Supreme Court is also about to hear a case regarding this very issue.

I am ashamed that "my" government would pull itself out of one portion of such an important Convention simply because it does not want to have to provide foreign nationals with the opportunity to consult their governments before they are given the ultimate punishment. Of course, this whole thing has created quite a rift between Bush and Mexican President Vicente Fox. I imagine withdrawal from this portion of the treaty is not going to help that relationship. After all, now Mexican nationals who are arrested and charged with capital crimes will not even have the right to consult. At least before today, that right was just being violated...it wasn't removed. Huh...which is worse?

Donald Ray Wallace Jr. - Indiana

The State of Indiana executed its first man of 2005 early this morning (its 12th since the death penalty's reinstatement in 1977). Donald Ray Wallace Jr. died at 1:23 this morning after spending 25 years on Indiana's death row. By all reports, Wallace was a changed man. However, he did not seek clemency from the Governor and instructed his attorney not to file a petition on his behalf. David Elliot posted a column about Wallace's change on the NCADP blog site. Its worth reading.

The family of Wallace's victims attended a vigil on Wednesday evening to remember their family members. The vigil was held at the same church where the Gilligans were married. Wallace visited with friends during the hours before his death and expressed his hope that everyone can now find peace.

William H. Smith - Ohio

The State of Ohio executed William H. Smith yesterday morning. Smith died at 10:19 a.m. after asking the grandson of his victim, Mary Bradford, for forgiveness.

Smith was diagnosed with a brain lesion after being sent to death row. His attorneys argued unsuccessfully that Smith may have been spared the death penalty had they known of the brain lesion before his sentencing.

Once again, this is the case of a murder that happened under the influence of drugs and alcohol. Smith and Bradford spent some time drinking and then used cocaine together shortly before Smith killed her. One has to wonder what affect the drugs and alcohol had on Smith's state of mind.

In Smith's last statement he very poignantly said "I cannot control anything from this day on. Find the right way. Be a better person than I am. Don't wait until its too late to try to save somebody else."

New hearings sought for Mexicans on death row

The Bush administration has ordered review of the death penalty cases of 51 Mexican nationals. Earlier this year (as you may recall me commenting), the International Court of Justice ruled that the rights of these 51 individuals were violated when the prosecution failed to notify the Mexican government of their arrests and prosecutions. The Bush administration made its announcement through a brief it filed with the United States Supreme Court related to upcoming arguments in Medellin v. Dretke, a case involving this very issue.

To me, this feels like a peremptory challenge. It feels as though the Bush administration is trying to make the issue "moot" so that the United States Supreme Court will not rule on the question and will, therefore, not expand death penalty jurisprudence. I suppose I could be stretching things. Perhaps the administration is just trying to do the right thing. I somehow doubt that thought. If I'm skeptical, it's because this particular administration is not known for being sensitive to those on death row or to immigrants. Bush's Texas administration also had a reputation of avoiding death penalty questions and a lack of sensitivity to immigrants. SO...I'm skeptical that there are not alternative motives behind this call for action. Of course, many of the 51 cases affected involve individuals in Texas. I wonder how many of those were convicted and sentenced under Bush's watch...

George Anderson Hopper - Texas

The State of Texas executed its fourth man in 2005 last night. George Anderson Hopper was executed for a murder he committed for hire in the 1980s. Hopper, 49, died shortly after 6:00 p.m. He made a final statement in which he apologized to the four family members who were there to observe his killing. He called his actions "an atrocity," and begged for forgiveness.