For the period of this edition John Thompson in Louisiana, Sterling Spann in South Carolina and Ronald Keith Williamson in Oklahoma were all released from death row (in some cases to the street) out of concerns relating to innocence, however, the opinions for these cases have yet to be obtained.

Just two capital cases are reported in this edition, unfortunately both are losses. The Fourth Circuit inRoach v. Angeleone upheld a juvenile death sentence on several interesting issues relating to his youth and penalty phase instructions. In the other case of the pair, the Ninth Circuit inBabbitt v. Woodford becomes the latest circuit to hold that trial counsel's "having a liquid lunch" is no reason to halt an execution.

This edition covers the previous three weeks worth of cases, and may have well missed many, reader feedback is appreciated if you know of one that has been missed. My apologies in advance for the length of this issue.

Capital Cases

Roach v. Angeleone Fourth Circuit denies relief in this capital case on issues of : [A] proportionality review; [B] evidence proffered during the penalty phase of the trial was constitutionally insufficient to support the jury's finding of future dangerousness; [C] refusing to instruct the jury regarding Roach's potential parole eligibility if sentenced to life imprisonment; [D] erroneous instructions that punishment had to be unanimous; and [E] the transfer from juvenile court to circuit court. On two of the last three issues, in relevant part, the panel held:

Roach next argues that the trial court erred by failing to instruct the jury that, if sentenced to life imprisonment, he would not become eligible for parole for a minimum of twenty-five years. Roach asserts that this court should extend the holding ofSimmons v. SouthCarolina, 512 U.S. 154(1994), to include cases where, if sentenced to life imprisonment, the defendant remains eligible for parole. . . .

Roach now asserts that the logic of Justice O'Connor's holding inSimmonsshould be extended to circumstances where a sentence of life imprisonment includes the possibility of parole. Roach faces a serious problem with this assertion--this court has repeatedly considered this argument and consistently rejected it. As the Supreme Court held, the decision whether or not to inform the jury of the possibility of the defendant's early release is generally left to the States.Simmonsat 176. "In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact."Id.InKeel v. French, Keel was convicted of capital murder in North Carolina and sentenced to death.Keel, 162 F.3d at 266. Keel argued that the trial court's refusal to instruct the jury regarding his parole status pursuant toSimmonswas a violation of his Eighth Amendment rights.Id.at 270. This Court, finding thatSimmonslimited the right to receive such an instruction to those instances where the alternative sentence is life without the possibility of parole, dismissed the petition.Id.

The Supreme Court of Virginia also considered this issue on Roach's direct appeal. Relying on its prior decision inJoseph v.Commonwealth, 452 S.E.2d 862 (Va. 1995), the court held that theSimmonsrule applied only if the defendant was ineligible for parole. Because Roach would become eligible for parole in twenty-five years, the court concluded that he was not entitled to such an instruction.Roach v. Commonwealth, 468 S.E.2d at 105

In order to obtain federal habeas relief, Roach must show that no reasonable jurist could interpret the rule ofSimmonsas limited in application to those defendants who are ineligible for parole under state law.Green, 143 F.3d at 870. Roach simply cannot make that showing. Had he not been sentenced to death, Roach would have been eligible for parole in twenty-five years. Therefore, under this Court's interpretation and application ofSimmons, Roach is not entitled to habeas relief on this claim.

D.

Roach next contests the trial court's jury instruction regarding the requirement of unanimity in the sentencing verdict. Roach asserts that the last sentence of this instruction, "any decision you make regarding punishment must be unanimous," was improper. He argues that it impermissibly shifted the burden of proof and effectively instructed the jury that, in order to avoid the imposition of the death penalty, the defendant was required to persuade all of the jurors that one or more mitigating factors were applicable. This shifting of the burden of proof, Roach maintains, is constitutionally defective, and denied him the right to have all mitigating evidence considered and given appropriate weight by the jury.

Unfortunately, Roach has a procedural problem with this issue--he failed to raise it on his direct appeal to the Supreme Court of Virginia. The first time Roach asserted this alleged error was in his state habeas corpus petition. The Supreme Court of Virginia, relying on its decision inSlayton v. Parrigan, 205 S. E.2d 680, 682 (Va. 1974), disissed Roach's claim as procedurally barred.Roach v. Netherland, No. 96-2568 (Va. April 30, 1997). InSlayton, a prisoner filed a petition for habeas corpus, alleging ineffective assistance of counsel and an impermissibly suggestive pretrial identification.Id.at 681. The sole issue before the Supreme Court of Virginia was whether the petitioner had standing to attack the allegedly improper identification in a habeas proceeding where the petitioner did not assert the defense at trial and did not raise the issue on direct appeal.Id.Reasoning that "a prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes," the court ruled that the petitioner had no such standing.Id.at 682.

Where a state court expressly denies a claim under a state procedural default rule, the defendant is generally precluded from raising that claim in a federal habeas corpus proceeding.Keel, 162 F.3d at 268 (citingSawyer v. Whitley, 505 U.S. 333, 338(1992)). The basis for the procedural default, however, must be an adequate and independent state ground.Coleman v. Thompson, 501 U.S. 722, 731-32(1991). "We have repeatedly recognized that the procedural default rule set forth inSlaytonconstitutes an adequate and independent state law ground for decision."Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998). Therefore, absent a showing of actual innocence or cause and prejudice, this claim is procedurally barred from federal habeas review.

As the district court noted, Roach does not maintain that he is actually innocent of the murder of Mrs. Hughes. This court, then, may only inquire as to whether cause and prejudice exists to excuse a state procedural default, not into whether the state court properly applied its own law.Fisherat 844. Cause exists, and will serve to excuse the failure to raise a claim during a state proceeding, where the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding.McCleskey v. Zant, 499 U.S. 467, 494(1991). The basis for Roach's claim here is that the trial court gave an erroneous instruction to the jury regarding the requirement of unanimity in the sentencing verdict. Both the factual and legal bases for this claim were available to Roach prior to his direct appeal. On its face, then, this claim has been procedurally defaulted. Roach, however, attempts to vault this sizable hurdle by asserting ineffective assistance of appellate counsel as the cause for his failure to raise this issue on direct appeal. Roach's argument is not compelling and must be rejected.

In order to prove that he has been denied his Sixth Amendment right to effective assistance of appellate counsel, Roach must satisfy the two-prong test set forth inStrickland v. Washington, 466 U.S. 668(1984). First, Roach must show that his counsel's representation in the appellate proceedings fell below an objective standard of reasonableness.Id.at 688. Second, he must show that his attorney's substandard conduct prejudiced him to the extent that it deprived him of a fair trial.Id.at 689. In other words, Roach must demonstrate that, but for his attorney's deficient performance, there is a reasonable probability that the result of the proceedings would have been different.Seeid.A reasonable probability is one that undermines confidence in the outcome of the proceedings.Id.

Roach alleges that his counsel rendered ineffective assistance when he failed to raise the allegedly improper jury instruction on direct appeal before the Supreme Court of Virginia. According to Roach, this improper instruction violated his Eighth and Fourteenth Amendment rights under the holdings ofMills v. Maryland, 486 U.S. 367(1988), andMcCoy v. North Carolina, 494 U.S. 433(1990).

InMillsandMcCoy, the trial courts instructed their respective juries that their findings as to mitigating circumstances had to be unanimous. The Supreme Court found such instructions to be unconstitutional.Millsat 384;McCoyat 444. Unlike the present case, however, bothMillsandMcCoyinvolved state sentencing schemes which required the jury to make findings as to specific mitigating circumstances.Millsat 370;McCoyat 436. A jury instruction violates the holdings ofMillsandMcCoyif there is a "reasonable probability" that the jury applied the instruction in such a way as to preclude its consideration of mitigating evidence.Boyde v. California, 494 U.S. 370, 380(1990).

Unlike the sentencing schemes at issue inMillsandMcCoy, the Virginia sentencing scheme does not require juries to make findings as to specific mitigating factors. Instead, juries are instructed to consider all possible mitigating circumstances before rendering their sentencing decision. Here, the trial judge instructed the jury to "consider any evidence presented of circumstances which . . . in fairness or mercy may extenuate or reduce the degree of moral culpability and punishment." Additionally, the verdict form provided to the jury indicated that it must consider all mitigating evidence and it did not limit the jury's consideration of that mitigating evidence in any fashion. Based upon these facts, the district court found it unlikely that the general unanimity instruction given by the trial court prevented the jury from considering and giving appropriate weight to the mitigating evidence. Accordingly, the district court held that, to the extent the Supreme Court of Virginia considered the merits of this claim, its adjudication of the claim was reasonable underStrickland.

We agree. In the present case, the trial judge instructed the jury to consider any and all evidence presented in mitigation of the crime. The verdict form reinforced that instruction. Based upon those facts, we cannot find a reasonable probability that the jury applied the general unanimity instruction in such a way as to preclude its consideration of the mitigating evidence presented by Roach.

In determining whether petitioner has demonstrated that his counsel's representation was inadequate, this court begins with the strong presumption that counsel's conduct fell within the wide range of objectively reasonable conduct.Evans v. Thompson, 881 F.2d 117, 124 (4th Cir. 1989). Because the jury instruction in question cannot be said to violateMillsandMcCoy, Roach's appellate counsel's failure to raise the issue of the instruction on direct appeal does not fall outside that wide realm of objectively reasonable professional assistance.Strickland, 466 U.S. at 689. Therefore, Roach's claim of ineffective assistance of appellate counsel fails on its merits, and it is rejected.

Babbitt v. Woodford Ninth Circuit denies this Petition to file a successive capital habeas petition raising allegations that trial counsel was drinking during the trial and suffered racial animus towards his client. In pertinent part:

A. Trial Counsel's Alleged Alcohol Abuse

Babbitt argues that, because of his trial counsel's alcohol abuse, his counsel was ineffective during the guilt, sanity, and penalty phases of Babbitt's trial. Babbitt contends he was unable to raise this argument in the amended petition he previously filed in the district court because he only recently dis covered the evidence while preparing for his clemency hearing. The recent discoveries include his trial counsel's recent resignation from the State Bar as a result of a legal malpractice action alleging that he had been drinking during the trial. This information caused Babbitt's habeas counsel to re-interview the trial counsel's legal staff, who revealed that trial counsel had drunk "three or four drinks " on a "number of occasions" during the lunch recesses of Babbitt's trial.

[3] Babbitt raised an ineffective assistance of trial counsel claim in his amended habeas petition he previously filed in the district court. A "ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments . . . . Identical grounds may often be proved by different factual allegations . . . . " United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (internal quotations and citations omitted).

[4] In his previously filed federal habeas petition, Babbitt argued that his counsel failed to sufficiently present a PTSD defense at the guilt phase or as mitigating evidence at the penalty phase. We rejected both of his arguments under the test in Strickland v. Washington, 466 U.S. 668 (1984). SeeBabbitt, 151 F.3d at 1174, 1175-76. Although Babbitt asserts new factual explanations for his counsel's ineffectiveness at trial, the gravamen of his legal argument is essentially the same. Because we have already determined that trial coun sel's performance during the guilt, sanity, and penalty phases was not constitutionally deficient, we will not consider new factual grounds in support of the same legal claim that was previously presented. See Allen, 157 F.3d at 664. Under the AEDPA, a legal claim considered previously must be dismissed. See 28 U.S.C. S 2244(b)(1).

[5] Even if we were to conclude that Babbitt's ineffective assistance of counsel claim (now grounded on allegations of his counsel's alcohol abuse during trial) was not previously presented, we would nonetheless deny Babbitt's application to file a successive petition on this ground because Babbitt fails to make a prima facie showing that he could not have previously discovered the facts underlying his claim through the exercise of due diligence. See 28 U.S.C.S 2244(b)(2); Siripongs v. Calderon, 167 F.3d 1225, 1226 (9th Cir. 1999).

[6] The recent allegations of alcohol abuse during Babbitt's trial stem from two of Babbitt's trial counsel's staff members. These persons were known to Babbitt as early as 1991. Given Babbitt's focus on his trial counsel's ineffectiveness, a claim he has asserted from the beginning of his state habeas applications and in his amended habeas petition previously filed in the district court, there is no reason, other than lack of due diligence, to explain Babbitt's failure to include in his previous federal habeas petition the allegations he now makes concerning his trial counsel's alcohol abuse. Cf. McCleskey v. Zant, 499 U.S. 467, 497 (1991) (fact that petitioner did not possess or could not reasonably have obtained certain evidence does not excuse failure to raise claim earlier "if other known or discoverable evidence could have supported the claim in any event"). Because Babbitt would be unable to meet the AEDPA's due diligence requirement, we would be required to reject this claim in any event. See 28 U.S.C. S 2244(b)(2).

B. Trial Counsel's Alleged Racial Bias

[7] Babbitt, an African-American, also contends his trial counsel was racially biased and that this bias created a structural error that impeded his opportunity for a fair trial and sentence. Specifically, Babbitt argues that his counsel failed to interview African-American witnesses, failed to protest when the prosecutor dismissed African-American venire persons via peremptory challenges, and failed to communicate adequately with Babbitt.

[8] Because Babbitt did not raise this argument in his previously filed federal habeas petition, and the claim does not rely on a new rule of constitutional law, we must determine whether Babbitt makes a prima facie showing of due diligence under 28 U.S.C. S 2244(b)(2)(B). See Martinez-Villareal, 118 F.3d at 631. Babbitt argues that he did not become aware of his trial counsel's alleged race bias until he recently learned that his counsel was being sued for discriminatory practices by a former secretary. While investigating the former secretary's allegations, Babbitt's habeas counsel reinterviewed Babbitt's brother, William Babbitt, and learned that Babbitt's trial counsel had used a racial epithet and spoken negatively of the capabilities of African-American jurors while meeting with William Babbitt and his wife prior to Babbitt's trial in 1982.

[9] Most of the facts Babbitt alleges about his counsel's alleged race bias have been known to him since the conclusion of his trial. He knew, for example, that he was an African-American defendant charged with an interracial crime against a white woman and tried with an all-white jury, a white judge, and a white defense attorney. His counsel's fail ure to question the members of the jury about their potential race bias and to protest the peremptory challenge of African- American jurors was also plainly ascertainable by reviewing the record. These facts, in themselves, provided sufficient fac tual predicates to trigger Babbitt's obligation to raise a racially biased counsel claim in his previously filed federal habeas petition. Due diligence by Babbitt's habeas counsel would also have uncovered trial counsel's alleged racially derogative remarks to Babbitt's brother, who was called as a witness during the trial.

[10] We conclude that the factual predicates underlying Babbitt's racial animus claim could have been discovered through the exercise of due diligence. See 28 U.S.C.S 2244(b)(2)(B); cf. McCleskey, 499 U.S. at 497. Accordingly, we must reject this claim under the AEDPA. See 28 U.S.C. S 2244(b)(2).

Habeas Cases

MacFarlane v. Walter Ninth Circuit, shedding more light on their AEDPA analysis, holds that Washington's differential calculation of good times credit for jail versus prison sentences violates federal law. The panel's AEDPA analysis follows

[1] Petitioners argue that the Washington Supreme Court'sdecision was "contrary to" clearly established federal law and, thus, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), their applications for writs of habeas corpus must be granted. We agree that the state court's decision was contrary to clearly established federal law.

[2] AEDPA amended 28 U.S.C. S 2254(d) to provide that no habeas relief may be granted to a person in custody pursu ant to a judgment of a state court unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. S 2254(d). Neither party challenges the state court's determination of the facts. Our inquiry, thus, focuses first on whether there was clearly established federal law governing the issue presented here: whether the allowance of lesser early-release credits to defendants detained pre-trial in county jails because of financial inability to post bail than to more fortunate defendants, whose financial resources permitted them to wait to begin serving their time until after commitment, post-sentencing, to a state correctional facility, violates equal protection. If there was clearly established federal law that applies to this question, then we must next decide whether the Washington Supreme Court's decision was contrary to, or constituted an unreasonable application of, it. . . .

[6] Bearden controls the analysis of whether and under what circumstances an individual can be subjected to greater incarceration solely because of indigency. Respondents, how ever, argue that no specific Supreme Court case compelled the Washington Supreme Court to apply Bearden to MacFarlane's and Fogle's petitions: "Petitioners fail to identify any United States Supreme Court case which applies the Bearden test to a disparate award of good conduct time between pre-trial detainees in county jails and convicted felons in a state prison system." Bearden, as respondents note, does not address the identical factual situation presented here. If that were the standard, however, hardly any law would be "clearly established," for only cases presenting precisely the same facts could govern later cases. The Supreme Court has not defined "clearly established" in the AEDPA context, nor has this court directly opined on what constitutes "clearly established law." We have, however, in several cases found "clearly established law", and, in doing so, have not required that the precedent arise from the identical factual circumstances. For example, in Jeffries v. Wood, 114 F.3d 1484, 1500-01 (9th Cir. 1997) (en banc), we held that Chapman v. California, 368 U.S. 18 (1967), was clearly established law regarding the burden of proof on prejudice in habeas cases. In Davis v. Kramer, 167 F.3d 494 (9th Cir. 1999), we held that Anders v. California, 386 U.S. 738 (1967), was clearly established law regarding the constitutionally mandated procedure that appellate counsel must follow if he determines that an appeal would be frivolous. See also Moore v. Calderon, 108 F.3d 261, 265 (9th Cir. 1997) (Faretta v. California, 422 U.S. 806 (1975), "clearly established" a rule of law regarding the timeliness of a request for self-representation). These cases comport with the definition of "clearly established" in the Teague context, relied on by other circuits to determine whether there is clearly established law in the AEDPA context. We agree in this respect with the First Circuit, which, drawing on the Teague line of cases, stated that a petitioner need not point a habeas court to a factually identical precedent, but rather that "clearly established" Supreme Court law often erects a framework intended for application to variant factual situations. See O'Brien v. DuBois, 145 F.3d 16, 24 (1st Cir. 1998). See also Neelley v. Nagle, 138 F.3d 917, 922-23 (11th Cir. 1998) ("clearly established" terminology echoes the concerns underlying Teague and its progeny).

[7] Respondents fail to show that there is any meaningful distinction between the case of a poor person unable to pay a fine, who, as a result, suffers longer incarceration than a similarly situated affluent person (Bearden) and the case of a poor person unable to post bail pre-trial who, as a result, suffers longer incarceration than a similarly situated affluent person (MacFarlane and Fogle). Bearden erected the framework intended for application where a defendant suffers increased incarceration because of indigency and, thus, is clearly established law governing the issue presented here.

Hart v. Gomez Ninth Circuit in this non-capital case grants habeas relief on claims of ineffective assistance of counsel for failure to investigate even though Petitioners sentence had expired.Lopez v Thompson Ninth Circuit finds no error in the plea colloquy or in self-representation during plea or sentencing.

Adams v. USA Eleventh Circuit examines the one year timeline for filing federal post-conviction motions and holds that under any plausible reading of the AEDPA (that the one year period begins either from the denial of certiorari or one year from the issuance of mandate) that petitioner did not file within one year. (Petitioner had argued the one year ran from the date of the notification of the denial of cert. to the Court of Appeals.

Bailey v. Nagle Eleventh Circuit in denying rejects all exhausted issues on the merits and holds procedurally defaulted several unexhausted issues as no state court forum exists and the requisite showing under either the "cause and prejudice" or "miscarriage of justice" standards has not been made.

Guenther v. Holt Eleventh Circuit, in an examination of the byzantine web of federal habeas corpus jurisprudence, examines what happens when a state court petitioner files a successive action in the district court and not the federal court of appeals. The panel examines, without deciding, the issue of relation back under 28 U.S.C § 1631 (i.e., that petitioner's filing in the district court be treated as appropriately filed in the court of appeals for purpose of the 1 year deadline under the AEDPA) and holds that even if relation back is appropriate both petitioners in this case would be time barred.

Gallego v. USAEleventh Circuit remands to the district court this post conviction action as the court erred in finding that the petitioner needed to have corroboration of his testimony to be credible as a matter of law.

Gardner v. BarnettSeventh Circuit grants habeas relief as the trial court acted unreasonably both in denying the continuance and in limiting voir dire.

982451P.pdf Steinkuehler v. Meschner Eighth Circuit in this non-capital habeas case grants relief based on ineffective assistance of counsel for failing to present evidence of pressure put on sheriff to "forget" events; no ineffective assistance to not request confession instruction; other grounds for denying habeas relief affirmed; case remanded to retry for first-degree murder or sentence him for second-degree murder.

982574P.pdf Ivy v. Caspari Eighth Circuit in this non-capital habeas holds finding of ineffective assistance of counsel and involuntary guilty plea affirmed.

Kincade v. SparkmanSixth Circuit grants habeas relief on the grounds of the admission into the jury's consideration evidence of unrelated burglaries was unduly prejudicial.

Allen v. USASeventh Circuit holds that a two point difference in the sentencing guidelines is insufficient as a matter of law to meet the prejudice prong for ineffective assistance of counsel, even assuming counsel's conduct was otherwise inappropriate.

Hoard v. ReddySeventh Circuit denies relief on this hybrid habeas/§ 1983 relating to an inmate's quest for an injunction ordering Illinois to hold a post-conviction proceeding (which Hoard claimed Defendant's prevented) and/or monetary relief, holding claims for monetary damage can not be had without release on the underlying charges and that it can not order a state post-conviction proceeding (to invalidate the underlying charges) under Supreme Court precedent.

Thomas v. GreinerSecond Circuit remands on issue of state of limitations under AEDPA as petition was filed within one year of enactment of the new law

Thomas v. DuBoisFirst Circuit in denying Petitioner's claim on jury instruction relating to non-capital murder holds that the state supreme court's finding that jury instruction was erroneous but not prejudicial was correct.

Brown v. LensingFifth Circuit holds that despite authorizing a successive habeas petition raising Cage v. Louisiana claims the district court may still dismiss petition for being an abuse of the writ

Prisoner's Rights/Governmental Misconduct Cases

Mastroianni v. Bowers Eleventh Circuit on petition for rehearing revisits the issue of absolute and qualified immunity relating to law enforcement officials, and finding that defendants are entitled to either one or the other remands to the district court for the entry of the appropriate orders.

Nichols v. Hopper Eleventh Circuit holds that 18 U.S.C. § 3626(b) does not abrogate the separation of powers doctrine because Congress has not prescribed rule of decision and that that the PLRA does not strip courts of their power to decide constitutional challenges to prison conditions.

982271P.pdf Herlein v. Higgins etc. Eighth Circuit holds prison's ban on audio tapes with explicit lyrics is reasonably related to legitimate penological objective of maintaining security.

Amati, et al v. City of WoodstockSeventh Circuit upholds jury's finding that the defendants were not liable for the putative violation of federal wiretap laws.

Morley v. Walker Ninth Circuit holds that dismissal for immunity (absolute or qualified) not appropriate under rule 12(b) in this suit for false arrest.

Caravalho v. PughTenth Circuit denies IFP status after reaching merits holding that Petitioner had no legitimate, non frivolious claims under the PLRA.

Grune v. RodriguezSecond Circuit holds a dismissal under Rule 12(f) is appropriate where a challenge is launched against a parole boards failure to release the plaintiff.

FMcPherson v. CoombeSecond Circuit holds court below erred in granting summary judgment because there is no indication in the record that McPherson had been informed or was otherwise aware of the requirements he needed to meet under Federal Rule of Civil Procedure 56 to oppose a summary judgment motion.

In Depth

For those of you who don't mind getting your email box cluttered, the Law News Network offers a daily email legal newsletter called the Legal Newswire. The service is free and usually arrives by Nine A.M. (EST). Here is a sample of some recent stories I found of interest:

Morgan Lewis Lawyers Win Stay For Death Row Client

Only weeks before their client was scheduled to be put to death, two Morgan Lewis & Bockius partners convinced a court to stay his execution after uncovering evidence of prosecutorial misconduct, which may lead to a new trial for a New Orleans man convicted of a murder 15 years ago. The two lawyers have been handling the appeal process of convicted murderer John Thompson on a pro bono basis since 1988. ( The Legal Intelligencer-- Read the story.)

NY Gov. Seeks Changes in Death Penalty Law

New York Gov. Pataki yesterday proposed legislation to strengthen the state's 1995 death penalty statute by allowing victim-impact testimony and creating two new categories of capital crimes. The proposal would also cure a constitutional defect that led New York's highest court last December to sharply curtail the circumstances under which capital defendants can negotiate plea bargains. The changes would tighten sentencing in capital cases as well. ( New York Law Journal-- Read the story.)

Abu-Jamal Asks U.S. Supreme Court to Review Case

Mumia Abu-Jamal, sentenced to die for the murder of a Philadelphia police officer in 1982, has asked the Supreme Court to review his case. Abu-Jamal, who has become a cause celebre through his reporting from death row, says that his trial was flawed because he was not allowed to represent himself and was removed from the courtroom for much of the proceedings. (The Boston Globe -- Read the story.)

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Special Thanx

Special thanks go out to all those who endured my visit this past few weeks in Tennessee and Kentucky. A special thanks to Randall Wheeler and Stefanie McArdle who bore the brunt of my "boorish" behavior. I would like to also thank Don Dawson's shop at the Tennessee Post-Conviction Defender Organization, TCASK, the Journey of Hope, and the fine people at the Kentucky Department of Public Advocacy (esp. Ed, Vince, Sheila, Julia, Rennie, Sue and Valerie), all of whose dedication to indigent defense and abolition of the death penalty -- despite the thankless long hours and untiring energy -- inspired me and renewed my faith in the struggle for human rights.

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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