The Fourth Circuit's opinion in Humphries v. Ozmint leads off this edition. The majority in Humphries holds that the prosecution engaged in "extensive and egregious use of comparative human worth arguments" arguments in his penalty phase closing. Rather than addressing the issue "head on," the panel holds trial counsel's failure to object resulted in a penalty phase proceeding "so unduly prejudicial that it rendered the jury's recommendation of a capital sentence fundamentally unfair."

The remaining decisions covered this week are losses. Of special note are two California cases. In Allen v. Woodford, the Ninth Circuit in uncharacteristically strong language notes that trial counsel's failure to adequately investigate & present mitigation evidence was harmless in light of the extraordinarily "horrendous" nature of the multiple murders in that case. The synopsis of the California Supreme Court's opinion in California v. Lenart is taken from the Criminal Appeal blog (www.crimblawg.com) which notes that although relief is denied there is seemingly a very strong claim to be had on habeas review of ineffective assistance of counsel.

Elsewhere, Oklahoma Governor Henry commuted the death sentence of Mexican national Osvaldo Torres several hours after the Oklahoma Court of Criminal Appeals ordered a stay and evidentiary hearing on whether the state violated international law by not giving Torres access to the Mexican consulate after his arrest. In North Carolina Sammy Perkins has received a stay on a claim relating to the constitutionality of lethal injection.

The Weekly will not be running next week. As always, thanks for reading. - k

This edition is archived at http://capitaldefenseweekly.com/archives/040510.htm.

EXECUTION INFORMATION

Since the last edition there have been no domestic executions.

The following upcoming execution dates are noted:

May

18 Kelsey Patterson Texas

25 John Blackwelder Florida --- volunteer

28 James Neil Tucker South Carolina

SUPREME COURT

No cases noted.

CAPITAL CASES (Favorable Disposition)

Humphries v. Ozmint, 2004 U.S. App. LEXIS 8637 (4th Cir 5/3/2004) (dissent) "[W]e find that the failure of Humphries' counsel to object to the State's extensive and egregious use of comparative human worth arguments amounted to ineffective assistance of counsel. This omission by Humphries' counsel was, on these facts, so unduly prejudicial that it rendered the jury's recommendation of a capital sentence fundamentally unfair."

CAPITAL CASES (Unfavorable Disposition)

Allen v. Woodford, 2004 U.S. App. LEXIS 8897 (9th Cir 5/6/2004) "Having carefully and independently weighed the mitigating evidence, 'both that which was introduced and that which was omitted or understated,' Mayfield v. Woodford, against the extraordinarily damaging aggravating evidence, we are compelled to conclude, as did the district court before us, that it is not reasonably probable that even one juror would have held out for a life sentence over death. Given that Allen had just been convicted by his death-qualified jury of orchestrating -- from jail -- a conspiracy to murder seven people, and succeeding in the actual killing of three, all to retaliate for their prior testimony against him and to prevent future damaging testimony, and that the potential evidence in mitigation was neither explanatory nor exculpatory and was provided by persons unaware of Allen's numerous horrendous crimes or who were otherwise impeachable, we must conclude that there is no reasonable probability, i.e., 'a probability sufficient to undermine confidence in the outcome,' Strickland v. Washington..."

Douglas v. Florida, 2004 Fla. LEXIS 659 (FL 5/6/2004) (dissent) Relief denied on claims including whether: "(1) the trial court erred in allowing the introduction of enlarged crime scene and autopsy photographs; (2) the trial court erred in rejecting several proposed mitigating circumstances and in assigning little weight to the mitigating circumstances related to Douglas's abusive childhood; (3) the trial court erred in instructing the jury on and in finding HAC; (4) Douglas's death sentence is not proportionate; and (5) Florida's capital sentencing procedure is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002)."

Gamble v. Florida, 2004 Fla. LEXIS 660 (FL 5/6/2004) Relief denied on claims including: "(1) whether trial counsel was ineffective for failing to challenge as unconstitutionally vague the aggravator of cold, calculated, and premeditated (CCP); (2) whether trial counsel committed error under Nixon v. Singletary, and United States v. Cronic, in opening statement; (3) whether trial counsel committed a Nixon/Cronic error in closing argument during the penalty phase; and (4) whether trial counsel was ineffective due to inexperience and inadequate preparation for trial. Gamble also petitions this Court for a writ of habeas corpus. The habeas petition raises the following four claims: (1) whether the trial court conducted a proper hearing pursuant to Nelson v. State and Faretta v. California, and whether appellate counsel was ineffective for failing to raise this claim on direct appeal; (2) whether the death sentence is unconstitutional under Apprendi v. New Jersey,, and Ring v. Arizona; (3) whether appellate counsel was ineffective for failing to raise the issue that trial counsel's decision to sever Gamble's trial from his codefendant's trial prevented the jury from learning of the codefendant's culpability and disparate sentence; and (4) whether it would be cruel and unusual punishment to execute Gamble as he may be incompetent at the time of his execution."

Howell v. Florida, 2004 Fla. LEXIS 661 (FL 5/6/2004) Relief denied on: "(1) whether trial counsel was ineffective in both the guilt and penalty phases in failing to assert that the trooper's violation of FHP procedures in opening the package containing the bomb constituted an intervening cause, and (2) whether Florida's death penalty is unconstitutional under Ring v. Arizona and Apprendi v. New Jersey."

Power v. Florida, 2004 Fla. LEXIS 662 (FL 5/6/2004) Relief denied on claims including: (1) improper prosecutorial comments; (2) refusal to grant permission to conduct juror interviews; (3) shackling at trial; (4) the sentencing order; (5) trial counsel's investigation and preparation and (6) Power's waiver of mitigating evidence.

Windom v. Florida, 2004 Fla. LEXIS 664 (FL 5/6/2004) Claims denied on whether: "(1) his trial counsel was ineffective for failing to present an insanity defense during the guilt phase of the trial; (2) his trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of the trial; (3) his trial counsel affirmatively harmed his case by making damaging statements to the court and conceding the State's case; and (4) the postconviction court erred in summarily denying his remaining postconviction claims." Habeas claims denied on "Windom's death sentence is rendered invalid because necessary elements of the offense were not charged in the indictment; and appellate counsel was ineffective for failing to assert fundamental error on direct appeal with regard to improper statements made by the prosecutor at trial."

Manning v. Mississippi, 2004 Miss. LEXIS 469 (Miss 5/6/2004) Relief denied. "He [ ]includes ineffective assistance claims in many of his claims that the State knowingly presented false testimony and/or created a false impression of the evidence, and failed to disclose materials that Manning characterizes as exculpatory. In his charges against the State, Manning alternatively asserts that his trial counsel was ineffective for failing to properly investigate the facts surrounding testimony of certain witnesses, failing to discover certain materials and documents in possession of the police department, failing to discover and interview witnesses, and failing to obtain and adequately use impeachment evidence."

North Carolina v. Jones, 2004 N.C. LEXIS 341 (NC 5/7/2004) Relief denied on claims including: limitation on voir dire; the manner in which the jury pool was summoned arguing that it was not random; limitation on the rehabilitation of a jurors; exclusion of certain death hesitant jurors; admission of certain out of court statements; admission of a tape with the victims & defendant's voice; admission of lay witness's expert testimony; admission of expert testimony as to the defendant's state of mind; state's guilt phase closing; submission of the “course of conduct” aggravating circumstance; submission of the HAC aggravator; constitutionality of the "course of conduct" aggravator as unduly vague; prosecution's penalty phase closing; as well as, failure to include the words “without parole” when describing the sentence of life imprisonment

North Carolina v. Roache, 2004 N.C. LEXIS 340 (NC 5/7/2004) Relief denied despite a thorough evaluation on the procedure in which juries in capital cases are selected under state law. Relief also denied on use of the short-form murder indictment; the life/death qualifications of jurors; failure to sequester guilt phase witnesses; arraignment on the day the trial began; defense counsel's concession of guilt and the brutality of the crime; failure to adequately present a diminished capacity defense; admission & exclusion of certain pieces of evidence; comments & questioning on posttest silence; admission of a confession; manner of the state's cross-examination; state's guilt phase closing arguments; guilt phase jury instructions relating to diminished capacity; instruction on the jury on the elements of first-degree kidnapping; instructions on Rule 404(b) evidence concerning another murder; felony murder instructions; the State's use of two alternative theories of guilt; namely, “aiding and abetting” and “acting in concert” with regard to felony murder; failure to admit into evidence that co-defendant received a life sentence; admission of victim impact evidence; prosecution's penalty phase closing; failure to give peremptory instructions on several nonstatutory mitigating circumstances; as well as, submission of certain aggravating circumstances.

Hall v. Texas, 2004 Tex. Crim. App. LEXIS 817 (Tex Crim App 5/5/2004) Trial court's finding that the condemned is not mentally retarded affirmed.

Ross v. Texas, 2004 Tex. Crim. App. LEXIS 819 (Tex Crim App 5/5/2004) Relief denied on legally sufficiency as to guilt & special questions; inclusion in the penalty phase "parole charge" of language relating to "good conduct time" (which was held harmless); modification of the parole charge to include language not requested by the appellant; failure to admit favorable polygraph evidence; failure to permit a competency evaluation after the jury returned its guilt phase verdict; and denial of multiple requests for a continuance.

California v. Lenart, 2004 Cal. LEXIS 3897 (CA 5/6/2004) (synopsis from Criminal Appeal (www.crimblawg.com) In an opinion authored by Justice Kennard, the Court unanimously affirmed the defendant's conviction and sentence.

This may be another case in which the action is in habeas proceedings. The Supreme Court describes the defense case this way:

B. Guilt Phase—Defense Case Defendant stipulated that he was a convicted felon, and the defense rested without presenting evidence.

* * * *

E. Penalty Phase—Defense Case Lieutenant Clarence Finmand of the Anderson Police Department testified that when he had interviewed William Davis in 1994, Davis’s 1994 account of what happened in the interview room in 1977 was slightly different from his trial testimony. In the 1994 interview, Davis said the gun went off after he kneed defendant in the groin as he and his partner attempted to subdue defendant. The sole evidence in mitigation offered by the defense was the testimony of Jack Stewart, a former felon currently associated with Eagles Soar, “a men’s discipleship home.” Called as an expert on prison life, Stewart testified that inmates learn to take what they need by force, not to reveal emotion lest they appear weak, and to join racially segregated prison gangs. Stewart mentioned the difficulty he had in getting a job because of his prison record.

HOT LIST

Humphries v. Ozmint, 2004 U.S. App. LEXIS 8637 (4th Cir 5/3/2004) "[W]e find that the failure of Humphries' counsel to object to the State's extensive and egregious use of comparative human worth arguments amounted to ineffective assistance of counsel. This omission by Humphries' counsel was, on these facts, so unduly prejudicial that it rendered the jury's recommendation of a capital sentence fundamentally unfair."

In his closing arguments, the State's solicitor repeatedly emphasized the comparative worth of the lives of the victim and of the defendant. [*10] While the solicitor did not use the actual words "comparative worth" or "value," he insistently and systematically contrasted the apparently virtuous and productive life of the victim with Humphries' allegedly worthless existence, and asked jurors to impose a death sentence on that basis.

The solicitor began his closing arguments by announcing that, in addition to considering mitigating and aggravating evidence, the jury would:. . . have evidence about the character of the Defendant to consider. And you're going to have evidence about the victim, Dickie Smith, to consider, because I would submit to you that he is as much a part of this portion of this trial as is Shawn Paul Humphries. If the solicitor had merely used victim impact evidence to illustrate the "victim's uniqueness as an individual human being," Payne, 501 U.S. at 823 (internal quotations omitted), his actions would be beyond scrutiny. The prosecution could further have independently challenged the character and criminal history of the defendant, and Humphries' counsel would have had no grounds to lodge a sustainable objection.

The problem is that the prosecutor did not stop there. Instead, [*11] he drew repeated comparisons between the value and worth of the victim's life and that of the defendant, an argument which any reasonable observer would have found designed to secure a death sentence from the jury. The way in which the victim led his life was contrasted, at identical points in time, with the way the defendant had led his. For example, the solicitor stated that:In 1984 [Dickie Smith, the victim] met Pat, and they fell in love, and they got married. That's the same year Shawn Paul Humphries committed two house break-ins at age 13. 1986 Dickie makes a pretty drastic move. He decides he's going to quit Kemet and go build homes full-time, and he goes out, and he starts building homes in the community he had grown up in. That's the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia.

Then in 1988, July the 4th, they have a little baby girl named Ashley. You know, the Defense brought in a 12 year old stepdaugher -- stepsister, said, "Please don't put Shawn Paul Humphries in the electric chair." I'm sorry I did not feel it was appropriate to bring in a six year old girl Ashley and parade her in front of you.

In 1988 [*12] Ashley is born. That's the same year Shawn Paul Humphries went to jail for two years. And in the spring of 1992, I believe, Dickie Smith, opens the doors to the Max-Saver, building a business in that community.The State's clear purpose in using this time line was to contrast the life of the victim with the life of the defendant in order to exhort the jury to return a death sentence on the basis of the latter's relative lack of worth. The solicitor emphasized that "Dickie Smith is as much about this case as Shawn Paul Humphries." He rhetorically asked the jury "Who is the victim here, Shawn Paul Humphries or is it Dickie Smith?" and argued for the death penalty by asking the jury "if not in a case with a character like this, if not in a case when somebody like Dickie Smith is taken, then when are you going to do it?" He concluded by telling the jury that, while weighing the evidence of aggravation and mitigation, they should consider that "when you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances. [*13] " This argument was set forth without objection, and the jury, as noted, recommended a sentence of death.

****

We recognize that many capital sentencing proceedings are going to focus upon the persons of the victim and the perpetrator. This is especially true since Payne approved many uses of victim impact evidence. [*20] It may be to the advantage of the defendant to portray the victim of the offense unsympathetically, and it may be to the advantage of the prosecution to paint the victim and his family in a feeling manner and to cast doubt on the defendant's mitigating evidence. All of this is well within the bounds of permissible argument. But Payne warns against the type of argument in support of the death penalty based on comparative human worth employed here. See Payne, 501 U.S. at 825. To argue that a murderer merits mercy because he killed "only" a prostitute or drug user, rather than a philanthropist, would strike us as profoundly lawless. Similarly, to argue that a defendant should be sent to death because his life was of less value than his victim is to ask a jury to decide, not on the character of the crime, not on the consequences of the crime, not on the criminal record of the perpetrator of the crime, but on some unfettered evaluation of human worth that works improper prejudice.

The words "Equal Justice Under Law" are engraved over the entrance of the United States Supreme Court as a symbol of the law's commitment to treat all litigants as individuals of equal dignity. [*21] See Lyng v. Castillo, 477 U.S. 635, 636 n. 2, 91 L. Ed. 2d 527, 106 S. Ct. 2727 (1986). This individuality is compromised, however, when prosecutors implore juries to hand down death sentences on theories of comparative human worth. The past lives which this jury was exhorted to balance bore no connection or relation, save for the tragic events surrounding Dickie Smith's murder, and yet the State engaged in sweeping comparisons of both. The very concept of a sentence should have operated to preclude the comparison. One does not receive a sentence for leading a less valuable life than someone else. One receives a sentence under our system for having committed a crime.

This is certainly the view of the Supreme Court, which has described victim-impact evidence as but another means of "informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." Payne, 501 U.S. at 825. By contrast, the comparative worth argument relied on here ranged far afield and fell within the category of factors that the Supreme Court has prohibited as unduly prejudicial in the death penalty [*22] sentencing context. See Johnson v. Mississippi, 486 U.S. 578, 584-85, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 885, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983)) (prohibiting death penalty decisions "predicated on mere 'caprice' or on 'factors that are constitutionally impermissible or totally irrelevant to the sentencing process'"). The comparison of what Humphries and Smith happened to be doing in 1984 or 1986 or 1988 or at some fortuitous past point in their separate lives is the essence of an arbitrary and capricious circumstance. That Dickie Smith happened to be building houses while Shawn Paul Humphries happened to be breaking into houses is a judgment freighted with comparative moral import. It was not, however, a permissible basis under the Due Process Clause on which to condemn the defendant to death. Juries are free to mete out capital verdicts based on the evidence before them, the consequences of the crime for the victim's family and loved ones, the presence or absence of a variety of aggravating or mitigating circumstances, or the sheer heinousness of the offense. See, e. g., South Carolina Code § 16-3-20(C) [*23] . All of these factors are focused on the individuals qua individuals and are not comparative in nature. But one thing the centerpiece of closing argument cannot invite is a sentence on the basis that one person is of more intrinsic value than someone else. Payne, 501 U.S. at 823. A defendant may not be condemned simply for being deemed, over the long trajectory of life, a less estimable human being than his victim.

This sort of comparison is foreign to most sentencing regimes. In the wake of Payne, the federal government, the military, and thirtythree of the thirty-eight states with the death penalty have authorized the use of victim impact evidence in capital sentencing. John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257, 267 (2003). Unsurprisingly, while these jurisdictions allow a broad range of victim impact evidence, none sanctions the sort of comparative worth arguments advanced in this proceeding. To place the matter in perspective, the United States Sentencing Guidelines contemplate a multitude of enhancements and departures for factors such as the knowing selection of a vulnerable victim, [*24] U.S.S.G. § 3A1.1, the perpetrator's aggravating role in the offense, U.S.S.G. § 3B1.1, the abuse of a position of trust or use of a special skill in committing the offense, U.S.S.G. § 3B1.3, the infliction of significant physical or extreme psychological injury on the victim, U.S.S.G. § 5K2.2, 5K2.3, the use of a weapon or dangerous instrumentality in the commission of the crime, U.S.S.G. § 5K2.6, and the crime's purpose of facilitating or concealing another offense, U.S.S.G. § 5K2.9. One can look in vain among these enhancements and departures for any factor remotely resembling the relative worth of the victim's and defendant's lives. Such a factor would hardly form the basis of a two-level increase, much less the imposition of a sentence of death. If we ignore Payne's condemnation of the use of comparative human worth arguments, we invite future abuses. As the trial judge exclaimed, this was "one of the best arguments I have ever heard in my life given in a closing argument . . . in terms of the technique, . . . delivery, effectiveness." The argument was so effective, however, precisely because it was so improperly prejudicial to Humphries, and ignored the bedrock premise [*25] that "punishment should be directly related to the personal culpability of the criminal defendant," California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (O'Connor, J., concurring).

A number of state courts have recognized the dangers of indulging arguments contrasting the human worth of a victim and a defendant. See, e. g., State v. Koskovich, 168 N.J. 448, 776 A.2d 144, 182 (N.J. 2001) (holding that "the court's directive to jurors that they balance the victim's background against that of defendant was akin to asking the jury to compare the worth of each person," which is "inherently prejudicial" and "might prompt jurors to impose the death penalty arbitrarily"); State v. Muhammad, 145 N.J. 23, 678 A.2d 164, 179 (N.J. 1996) ("Victim impact testimony may not be used . . . as a means of weighing the worth of the defendant against the worth of the victim."); State v. Storey, 901 S.W.2d 886, 902 (Mo. 1995) (en banc) (finding ineffective assistance of counsel because of the failure to object to prosecutor's arguments: "Whose life is more important to you? Whose life has more value? The Defendant's or [the [*26] victim's]?"). We recognize that our own review here is on collateral attack. However, the fact that the State can point to no court that has sustained an argument like the instant one bears on the question of whether the state court's adjudication was a reasonable one in light of the controlling Supreme Court precedents. The State can only point to two cases which purport to reconcile Payne with comparative worth arguments. See State v. Haselden, 357 N.C. 1, 577 S.E. 2d 594, 610 (N.C. 2003) (upholding a prosecutor's argument that compared the worth of the victim and defendant); Jackson v. State, 33 S.W. 3d 828, 843 (Tex. Crim. App. 2000) (upholding an argument encouraging the jury not to impose a life sentence, which compared the defendant's importance to the victim's). These two cases are distinguishable inasmuch as the comparisons between the victims and defendants were nowhere near as extensive or egregious as in this case, which stands alone in its resort to the year-by-year chronology of two lives for the sole purpose of drawing an invidious comparison between them.

D.

Humphries' counsel should have known that the State's comparative worth [*27] arguments were constitutionally infirm and objected accordingly. Yet neither of Humphries' two counsel objected to the State's comparative worth arguments at trial. They did lodge a general challenge to the admissibility of victim impact evidence without prior notice, which they reserved for appeal. But they were remarkably silent during the comparative worth arguments, and admitted after trial that their failure to object constituted ineffective assistance of counsel.

This court must of course "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Truesdale v. Moore, 142 F.3d 749, 753-54 (4th Cir. 1998). But the State's comparative worth arguments, which were at once without precedent and at odds with traditional precepts of due process, should have struck those learned in the law like a bucket of ice water. The failure of Humphries' counsel to object to these arguments fell "below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and was constitutionally deficient.

Moreover, the State's comparative worth arguments were sufficiently prejudicial that they rendered [*28] the sentencing "fundamentally unfair." Payne, 501 U.S. at 825. These forms of arguments represent the types of appeals to jurors that the Supreme Court has long condemned in the death penalty context. The Supreme Court "has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma, 455 U.S. 104, 118, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982) (O'Connor, J., concurring). And "it is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977) (plurality opinion). Given the force of the comparative worth arguments made by the State at the critical juncture of the prosecution's closing argument, we safely conclude that "there is a reasonable probability that at least one juror would have struck a different balance," but for the constitutional error. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2543, 156 L. Ed. 2d 471 (2003). [*29]

decision. Rather the failure to object pertained to a year-by-year, side-by-side chronology of two past lives with the sole objective [*30] of comparing the worthiness and value of them. It was this explicit resort to notions of relative human worth unrelated to the crime at issue that traduced basic standards of due process. The failure of Humphries' counsel to object to these arguments fell below theRespecting, as we do, the strictures of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), we must nonetheless vacate the sentence. Our holding, however, remains a narrow one. We appreciate that closing arguments pack emotional punch. We recognize the undesirability of requiring counsel to lodge frivolous or counterproductive objections and the desirability of affording each side at a capital sentencing proceeding the latitude of an uninterrupted close. We acknowledge that the standards for the submission of evidence in sentencing are permissive, see State v. Gulledge, 326 S.C. 220, 487 S.E. 2d 590, 594 (S.C. 1997), and that much of the State's attempt to underscore the impact of the loss of this exemplary citizen's life upon his family and friends was permissible under Payne v. Tennessee. And we emphasize yet again that the failure to object here was not to general, oblique, or inadvertent comparisons of victim and defendant, which may be almost inescapable in light of the Payne Strickland threshold, clearly prejudiced the defendant, and compromised the jury's recommendation of death.

OTHER NOTABLE CASES

Neverson v. Farquharson, 2004 U.S. App. LEXIS 8762 (1st Cir 5/4/2004) District court correctly denied relief but inappropriately found equitable tolling to be applicable.

Burchette v. Georgia, 2004 Ga. LEXIS 332 (GA 5/3/2004) Use of existing Allen charge held harmless, but Allen charge modified as to when it should be given & the terminology to be used in the noncapital context.

Easlick v. Oklahoma, 2004 Okla. Crim. App. LEXIS 25 (Okla Crim App 5/3/2004) On the question of when a directed verdict should be granted at the close of the state's case, the Easlick Court abandons the "reasonable hypothesis standard" for the standard set forth in Jackson v. Virginia ("Whether after reviewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."

FOCUS

To return soon.

FROM AROUND THE WEB

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

NEW VOICES: Supreme Court Justice Stevens Says U.S. “Better Off “ Without Capital Punishment During a “fireside chat” with fellow Supreme Court Justice Stephen Breyer and hundreds of lawyers and judges who practice in federal courts in Illinois, Indiana and Wisconsin, Supreme Court Justice John Paul Stevens stated, “I think this country would be much better off if we did not have capital punishment.” Stevens noted that he believes the death penalty is constitutional, adding, “But I really think it’s a very unfortunate part of our judicial system and I would feel much, much better if more states would really consider whether they think the benefits outweigh the very serious potential injustice, because in these cases the emotions are very, very high on both sides and to have stakes as high as you do in these cases, there is a special potential for error. We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” The “fireside chat” was part of the 7th Circuit Bar Association dinner in Chicago. Justice Stevens and Justices Ruth Bader Ginsberg and Sandra Day O’Connor have all voiced concerns about the death penalty in recent years, but this is perhaps one the most pronounced statements against capital punishment made by a Supreme Court justice since the late Harry Blackmun, who wrote in 1994, “From this day forward, I no longer shall tinker with the machinery of death.” See New Voices.

NEW RESOURCE - America’s Death Penalty: Beyond Repair? “America’s Death Penalty: Beyond Repair?” examines capital punishment in the U.S. since 1976 through a variety of scholarly essays that look at critical issues such as innocence, race, arbitrariness, and international human rights law. Reknown death penalty expert and law professor Tony Amsterdam notes, “In these essays, some of our most knowledgeable students of capital punishment take a hard, no-nonsense look at how it actually operates and what drives America’s passionate refusal either to come to peace with the death penalty or give it up. Vital reading for whoever would understand why it can function only fitfully, peevishly and perversely.” Edited by Professor Stephen P. Garvey of Cornell Law School, the book contains contributions from Garvey, Ken Armstrong, John H. Blume, Theodore Eisenberg, Phoebe C. Ellsworth, Samuel R. Gross, Sheri Lynn Johnson, Steve Mills, William A. Schabas, Larry Yackle, and Franklin E. Zimring. (Duke University Press, 2003) See Resources.

Investigation Reveals Cases of Innocence in Massachusetts As Massachusetts Governor Mitt Romney seeks to reinstate capital punishment with a "foolproof" system(see earlier What’s New item), a news investigation has revealed that 22 state men have served lengthy prison terms over the last two decades for rapes and murders that they did not commit. Most of the wrongly convicted inmates were black. Experts say that Boston’s Suffolk County prosecutors have wrongly convicted the second highest number of innocent people in the nation, falling closely behind error-plagued Chicago. In recent years, the Boston Police Department and District Attorney’s Office have come under heavy criticism for conducting overly narrow investigations, aggressive interrogations, using unreliable eyewitness testimony, and botched DNA and ballistic investigations. Ulysses Rodriguez Charles, who served nearly 20 years in jail before new DNA tests led to his exoneration, stated, “I look at it like it was a death. I was just existing. I was just breathing. My life had ceased…This goes on all the time. It’s happening now as we speak. It’s just unfortunate it happened to me.” (Boston Herald, May 5, 2004) See Innocence.

Oklahoma Board Recommends Clemency for Mexican National The Oklahoma Pardon and Parole Board has voted to recommend clemency for death row inmate Osbaldo Torres, a Mexican foreign national who is scheduled to be executed on May 18. The Board made its decision after an hour-long hearing that included testimony from Carlos de Icaza, Mexican Ambassador to the United States. Icaza told the board that Mexico opposes capital punishment in all cases, and that this case was particularly troublesome because no proof was presented that Torres was the shooter in the crime. A recent ruling by the U.N. Court of International Justice stated that the U.S. had violated the international treaty-protected rights of Torres and 50 other Mexican foreign nationals currently awaiting execution in the United States. The Court held that the men had been denied their access to consular assistance, and ordered a further review by U.S. courts of their convictions and sentences. The Board’s 3-2 vote for clemency now goes to Governor Brad Henry for consideration. (Associated Press, May 7, 2004) See Foreign Nationals. See also, Upcoming Executions.

North Carolina Lawyers’ Group Recommends Overhaul of Death Penalty After a review of North Carolina’s death penalty, the North Carolina Academy of Trial Lawyers has issued a series of 11 recommendations that aim to address issues of fairness and accuracy in the state’s capital punishment statutes. In addition to recommendations addressing hidden evidence, mistaken eyewitness identifications, discrimination, and unreliable confessions, the group urged North Carolina lawmakers to enact a moratorium on executions while they consider implementing reforms to make the system more reliable. James Exum, former Chief Justice of the North Carolina Supreme Court, stated, “The Academy’s analysis includes important questions of legal procedure and process. We should address them to insure that we are doing all we can not only to prevent an innocent person from being executed, but also to protect the public by making sure that the right person is convicted and kept off our streets.” The Academy’s recommendations come as North Carolina’s legislature prepares to consider imposing a moratorium on executions, and just weeks after the exoneration of two North Carolina men who had been wrongly convicted of murder, Alan Gell and Darryl Hunt. Hunt spent 18 years in prison, while Gell had spent many years on death row. (North Carolina Academy of Trial Lawyers Press Release, May 6, 2004) Read the Press Release and Recommendations. See also, Innocence.

Alabama's Death Penalty Problems Continue Questions about the accuracy and fairness of Alabama’s death penalty continue to surface as illustrated by a series of recent federal court rulings granting two new trials and one new sentencing hearing. All of the rulings were based on inadequate representation provided to the defendants. "Counsel simply provided no defense to the death penalty," Chief U.S. District Judge U.W. Clemon of Birmingham wrote March 31 in giving one of the inmates a new trial. The man has been on death row 22 years. Most of Alabama's death row inmates were convicted when the state had extremely low caps on indigent defense fees at trial. In addition, the state has not modified its law to comply with the U.S. Supreme Court decision in Atkins v. Virginia (regarding the mentally retarded), and maintains that no changes are needed to comply with Ring v. Arizona (regarding the jury's role in determining death eligibility). Bryan Stevenson, an Alabama defense attorney and director of the Equal Justice Initiative, noted: “What that means is that every month, every season, more people are being tried and sentenced to death in what are probably unconstitutional procedures. Rather than deal with it now and save family members of victims, and taxpayers, prosecutors and defense lawyers all the agony of years of appeals, we’re acting as if it’s not a problem.” Moreover, he said, “We’re the only state that does nothing to make sure Death Row prisoners get legal representation to pursue their post-conviction appeals. And the reason why that’s a huge deal is that many innocent Death Row prisoners, those prisoners whose convictions have been illegally obtained, have proved their innocence or the illegality of those convictions in these post-conviction appeals.” (Associated Press, May 2, 2004) See Supreme Court, Representation, Innocence, and Mental Retardation.

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