Three cases lead off this edition. InOlsen v. Wyomingthe Wyoming Supreme Court has held thatvictim impact evidence is not admissible at the sentencing phase of capital trials in Wyoming. In Missouri the state supreme court has held inEx rel Armine v. Roperthat "upon a clear and convincing showing of actual innocence" relief may be had. InPowell v. Collinsthe Sixth Circuit examines the right to expert assistance in Ake & grants penalty phase relief.

Elsewhere, the United States Supreme Court in a clear shot across the bow of the Texas Court of Criminal Appeals has issued a summary grant and reversal inKaupp v. Texason the issue of a confession obtained as a fruit of unlawful arrest.The Seventh Circuit inAki-Khuam v. Davis, has granted relief on a Batson claim. InBryant v. Maryland, the trial court was held to have "erred by not finding by a preponderance of the evidence that youthful age was a mitigating circumstance" where the age at the time of the offense was 18.

A stay for Newton Slawson was granted by the Florida governor to determine competency to be executed. The same holds true for Paul Reid of Tennessee who was granted a stay by the Sixth Circuit. Both men were volunteers, Mr. Reid has since withdrawn his "consent" to be executed.

A cut from the amicus brief filed on behalf of Murder Victims' Families for Reconciliation (MVFR) on behalf of one of their members is noted in the Focus section this week. MVFR in the brief seeks to have "victim impact" testimony that family members don't want death introduced in the penalty phase.

Finally, my apologies for the erratic publication dates of late and the brevity of analysis as my "docket" has been trial heavy of late.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

May

2 Kevin Hough Indiana

6 Roger Vaughn Texas

6 Carl Isaacs Georgia

15 Bruce Jacobs Texas

15 Newton Slawson Florida-- volunteer

The following executions dates for the next few weeks that are considered serious:*

May

27 Robert Knighton Oklahoma

28 Percy Walton Virginia

29 Glenn Holladay Alabama

June

5 Kenneth Charm Oklahoma

11 Kia Johnson Texas

13 Joseph Trueblood Indiana

18 Ernest Martin Ohio

18 Kenneth Thomas Texas

18 Abu-Ali Abdur'Rahman Tennessee

24 Lewis Williams Ohio

27 Jerome Campbell Ohio

27 Roberto Arguelles Utah

28 Troy Kell Utah

HOT LIST

Olsen v. Wyoming, 2003 Wyo. LEXIS 57,*;2003 WY 46 (WY 4/14/2003) Victim impact evidence is not admissible at the sentencing phase of capital trials in Wyoming.

Raising the victim impact issue on appeal, Olsen presents essentially the same arguments as he did below. He contends that the trial court's ruling allowing the prosecution's introduction of victim impact evidence [*173] during the capital sentencing phase of the trial was erroneous for three reasons. First, Payne did not automatically re-write Wyoming's death penalty statute to authorize the introduction of such evidence. Payne held only that the Eighth Amendment of the United States Constitution did not bar such evidence if a state chose to authorize its introduction. In Payne's wake, the Wyoming legislature, unlike the legislatures of several states, did not amend the death penalty statute to explicitly authorize such evidence in the sentencing phase. Second, the language used by the legislature in the death penalty statute and the historical development of that statute demonstrate that such evidence must play no part in the sentencing phase of a capital case. And, third, neither Wyoming's general victim impact statute, § 7-21-101 through 103, nor the case law interpreting it authorize such evidence for capital sentencing purposes.

The State counters Olsen's position with essentially the same arguments it presented below. The State agrees with Olsen that Payne left it to a state to determine whether to authorize such evidence in the sentencing [*174] phase. The State claims, however, that Payne never indicated that a state had to make that determination by way of a statute. According to the State, that determination could be accomplished by either legislation, court rule, or judicial decision. The State claims that, in Payne's wake, the Wyoming legislature did not have to amend the pertinent statutes to explicitly authorize such evidence. Explaining this claim, the State reasons: in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), the Court held that the Eighth Amendment of the United States Constitution barred victim impact evidence in the sentencing phase of a capital case; before the Court overruled Booth in Payne in 1991, the Wyoming legislature enacted the present versions of Wyoming's death penalty statute and general victim impact statute; when the legislature enacted these statutes, it is presumed to have known that Booth barred victim impact evidence and, therefore, the reach of these statutes was constitutionally limited; in 1991, when Payne overruled Booth, the constitutional limitation on the reach of those statutes was removed; therefore, only [*175] if the legislature had intended to codify the Booth limitation in the wake of Payne would the legislature have to amend these statutes.

The State contends also that, in light of dicta in Payne that victim impact is a matter relevant to the capital sentencing authority's determination of the punishment to be imposed, language in a subsection of Wyoming's death penalty statute, § 6-2-102(c), can be read to authorize the sentencing authority's consideration of victim impact in determining punishment. The first sentence of § 6-2-102(c) reads (emphasis added):

The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section.

The State contends that the emphasized language in subsection (c) authorizes a trial court in any given capital case to decide what "matters," in addition to "matters relating to any of the" explicitly statutorily enumerated aggravating and mitigating circumstances, are deemed [*176] relevant to a determination of the punishment. Further, the State implicitly contends that a trial court in any given capital case could decide, as the justices in the Payne majority did, that victim impact is just such a "matter" relevant to the punishment determination and allow evidence as to that "matter" to be introduced.

Taking another tack, the State also claims that the import of Wyoming's general victim impact statute, § 7-2-101 through 103, is that victim impact testimony is relevant to any sentencing decision and must be considered in a capital case when the sentencing decision is committed to the trial court instead of a jury.

We have carefully reviewed and considered the trial court's decision and the parties' respective arguments. As shall be explained, we hold that existing Wyoming law does not authorize the introduction of evidence of victim impact during the sentencing phase of a capital case.

We have previously identified the division of the government's powers among the three departments in the criminal law area. Billis v. State, 800 P.2d 401, 415 (Wyo. 1990). In Billis [*177] , we recognized that "in its exercise of the legislative power, the legislative department has the exclusive power to determine and declare what acts shall constitute crimes and to prescribe punishments for those crimes." Id. In Booth, the Court held that Maryland's statute explicitly authorizing the admissibility of victim impact statements in the capital sentencing phase violated the Eighth Amendment of the United States Constitution. Booth, 482 U.S. at 509, 107 S. Ct. at 2536. The dissenting justices, who four years later would be among the majority in Payne, wrote that the legislature's judgment to allow a capital sentencing jury to consider victim impact evidence is entitled to particular deference; determinations of appropriate sentencing considerations are peculiarly questions of legislative policy, . . . and the Court should recognize that in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.

Id. at 515, 107 S. Ct. at 2539 (White, J., dissenting, joined by Rehnquist, C.J., O'Connor, and Scalia, J.J.) (citations and quotation marks omitted). [*178]

In Payne, Chief Justice Rehnquist, writing for the majority, observed that "Congress and most of the States have, in recent years, enacted similar legislation to enable the sentencing authority to consider information about the harm caused by the crime committed by the defendant." Payne, 501 U.S. at 821, 111 S. Ct. at 2606. In her concurring opinion in Payne, Justice O'Connor likewise noted that "most States have enacted legislation enabling judges and juries to consider victim impact evidence." Id. at 831, 111 S. Ct. at 2612 (White and Kennedy, J.J., joining). Similarly, Justice Scalia in his concurring opinion in that case stated that the Eighth Amendment "permits the people to decide (within the limits of other constitutional guarantees) what is a crime and what constitutes aggravation and mitigation of a crime." Id. at 833, 111 S. Ct. at 2613 (O'Connor and Kennedy, J.J., joining). Interestingly, Justice Scalia's concurring opinion may lead one to conclude that the Payne majority had characterized victim impact evidence as "relevant aggravating evidence." Id. ("The Court correctly observes the injustice [*179] of requiring the exclusion of relevant aggravating evidence during capital sentencing, while requiring the admission of all relevant mitigating evidence.")

In light of the above and foregoing recognition that determinations of appropriate sentencing considerations are "peculiarly questions of legislative policy," we must reject the State's presumption that a determination whether victim impact evidence should be permitted in capital sentencing proceedings could be accomplished by means other than legislative enactment. We reject the presumption that such a determination may be accomplished through court rule or judicial decision. If the long march of death penalty jurisprudence means anything, it is that it is the legislature's obligation to carefully structure a statutory procedure which achieves the twin goals of individualized sentencing and channeled discretion in the sentencing authority and which avoids arbitrary and capricious action by that sentencing authority. Obviously, at the heart of that statutory procedure lies those matters which are deemed relevant to a determination of the sentence. Those matters can only be identified and authorized by the legislative [*180] representatives of the people, not by the courts.

We turn now to the question whether the Wyoming legislature in either the death penalty statute or the general victim impact statute has made a determination that victim impact is a matter relevant to a determination of the sentence of death or life imprisonment. As we begin our analysis of this question, we must keep in mind several well-recognized imperatives. We begin with the recognition so well expressed by Justice Stewart thirty years ago:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

Furman, 408 U.S. at 306, 92 S. Ct. at 2760 (Stewart, J., concurring). Another wellrecognized imperative is that we strictly construe penal statutes. Meerscheidt v. State, 931 P.2d 220, 224 (Wyo. 1997). Penal statutes "cannot be enlarged by implication or extended by inference or construction." [*181] Smith v. State, 902 P.2d 1271, 1284 (Wyo. 1995). "Ambiguity in a criminal statute should be resolved in favor of lenity." ALJ v. State, 836 P.2d 307, 310 (Wyo. 1992). We also recognize the presumption thatthe legislature enacts legislation with full knowledge of existing law and with reference to other statutes and decisions of the courts. Such legislation should, therefore, be construed in a way that creates a consistency and harmony within the existing law.

Capwell v. State, 686 P.2d 1148, 1152 (Wyo. 1984). Moreover, we have recognized that where a general statute and a specific statute speak to the same concern, precedence is given to the terms of the more specific statute. Id. at 1153 (quoting Simpson v. United States, 435 U.S. 6, 15, 98 S. Ct. 909, 914, 55 L. Ed. 2d 70 (1978)).

With these several imperatives in mind, we now look at both the capital sentencing statute, § 6-2-102, and the general victim impact statement statutes, § 7-21-101 through 103. The capital sentencing statute has been the law in substantially the same [*182] form since 1977. 1977 Wyo. Sess. Laws ch. 122, § 1; 1982 Wyo. Sess. Laws ch. 75, § 3; 1983 Wyo. Sess. Laws ch. 171, § 1; 1989 Wyo. Sess. Laws ch. 171, § 1; and 1999 Wyo. Sess. Laws ch. 134, § 1; 2001 Wyo. Sess. Laws ch. 96, § 2, ch. 98, § 1. More pertinently, the particular broad language in the first sentence of § 6-2-102(c) upon which the State relies appeared in the statute in 1977 and has remained there ever since. On the other hand, the general victim impact statement statute became law in 1990. 1990 Wyo. Sess. Laws ch. 112, § 1. The Wyoming legislature enacted the general victim impact statement statute with full knowledge of the existing capital sentencing statute and the Booth decision of 1987 which had held victim impact evidence inadmissible in capital sentencing. Although the victim impact statement is the specific subject of the general victim impact statement statute, the capital sentencing statute addresses the specific subject of the capital sentencing procedure which differs in kind from all other forms of criminal punishment; that penalty is truly unique. The general victim impact statement statute does contain language which [*183] suggests it may be applicable in a death penalty case. In that regard, the word "crime" in the statute carries the broad definition of a felony, i.e., "crimes which may be punished by death or by imprisonment for more than one (1) year." Wyo. Stat. Ann. § 7-21-101(a)(i) (Michie 1997); Wyo. Stat. Ann. § 6-10-101 (Michie 1997). Further, the word "victim" includes "a family member of . . . a homicide victim." § 7-21-101(a)(iii). This language notwithstanding, the statute also contains other language which suggests the statute applies only in non-capital sentencing cases. In that regard, a crime victim submits the written statement to the department of corrections and the statement is appended to the defendant's presentence report. Wyo. Stat. Ann. § 7-21-103(a)(ii) (Michie 1997); in capital sentencing, however, there is no presentence report. Instead, there is a full blown trial before the sentencing authority, at the conclusion of which the range of sentencing options is extremely narrow: life imprisonment or death. Further, the statement "submitted to the court . . . shall [*184] be among the factors considered by the court in determining the sentence to be imposed upon the defendant . . . ." § 7-21-103(b) (emphasis added). In capital sentencing, however, a jury, not a court, may be the sentencing authority, as in the instant case. § 6-2-102(b), (c), (d), and (e).

In the final analysis, we must conclude that the general victim impact statement statute is inapplicable to a capital sentencing case. The legislature has seen fit to set forth the capital sentencing procedure in a specific statute, recognizing that the imposition of the death penalty is unique and differs in kind from all other forms of punishment. That specific statute is comprehensive in the detailed procedures that must be carefully followed and in those special considerations which the sentencing authority, whether judge or jury, must take into account in determining the sentence. The general statute must give way to the special.

We now turn to that special capital sentencing statute to see whether the legislature has there made a decision that victim impact is a matter relevant to a determination of the sentence [*185] of death or life imprisonment. As previously noted, the State relies on the first sentence of § 6-2-102(c) as the authority for the sentencing authority's consideration of victim impact in determining punishment in a capital case. That sentence reads:

The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section.

§ 6-2-102(c) (emphasis added). As noted a few lines ago, the emphasized language has been in the statute since 1977, long before "victim impact" evidence made its appearance in United States Supreme Court jurisprudence. Such evidence "was still unheard of when Lockett was decided." Payne, 501 U.S. at 858, 111 S. Ct. at 2626 (Stevens, J., dissenting) (as Justice Stevens recognized, "this type of evidence made its first appearance [in Supreme Court jurisprudence] in 1987 in Booth . . . ."). In Wyoming jurisprudence, victim impact evidence made its first appearance in 1990 in the general victim [*186] impact statement statute discussed previously. Thus, from a historical perspective, we cannot accept the notion that the legislature in 1977 intended the emphasized language on which the State relies to carry the concept of victim impact.

Obviously, the words "victim impact" are missing from the statutory provision. Instead, we have only the "empty-vessel" words "any matter that the court deems relevant to a determination of the sentence." The State's proposition is that, by using these "emptyvessel " words, the legislature intended for trial court judges to exercise discretion from one capital case to another as to what "matter" would fill the vessel. It might be "victim impact" one day and some other "matter" the next. But, as we know from experience, trial court judges might differ from court to court and from capital case to capital case in their respective relevancy determinations. For example, not all judges agree that victim impact is relevant to a determination of the sentence in a capital case. Booth and Payne were not unanimous decisions. In State v. Carter, 888 P.2d 629, 651-53 (Utah 1995), the Utah justices held that victim impact [*187] evidence was neither relevant nor of probative force in capital sentencing. In Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130, 145-47 (Pa. 1996), guided by the fundamental principle of statutory construction that penal provisions must be strictly construed, the Pennsylvania justices held that "the imposition of capital punishment may not rest on a mere supposition that the Legislature intended victim impact evidence to be considered by a jury, but only upon the clear and unambiguous language of the death penalty statute." Id. at 146. The possibility of differing relevancy determinations on the most important decision we as a law-abiding society call upon courts and juries to make runs against the grain of the goal of channeled exercise of discretion in death penalty sentencing.

Moreover, the State would have us read § 102(c) in isolation from other provisions of the death penalty statute. This we may not do. Capshaw v. State, 10 P.3d 560, 564 (Wyo. 2000); Demeulenaere v. State, 995 P.2d 132, 135 (Wyo. 2000). We must read every subsection of a statute in context of all others in order to ascertain the meaning of [*188] the whole statute. Keller v. Merrick, 955 P.2d 876, 879 (Wyo. 1998). General provisions and specific provisions in a statute should stand together, if possible; but a specific provision in conflict with a general provision in another part of a statute must govern, unless the statute as a whole clearly shows a contrary intention, and must be given effect, even though the general provision is sufficiently broad to include the subject to which the specific provision relates. Edelman v. Edelman, 68 Wyo. 30, 48-49, 228 P.2d 408, 414 (1951). Section 102(c) may not be read in isolation from § 102(d)(i) and (ii) which specifically command that the jury shall render a sentence based upon only the existence of aggravating circumstances and mitigating circumstances, with no mention of "any other matter that the court deems relevant to a determination of the sentence." Thus, § 102(d)(i) and (ii) are specific about the basis of the sentence and must be given effect over § 102(c)'s generality, even though the latter provision is broad enough to include the subject of the basis of the sentencing authority's determination of the sentence. Had the legislature intended [*189] to include "any matter the court deemed relevant to a determination of the sentence" as a basis for the sentence determination, it easily could have included such language within § 102(d)(i) and (ii). The American Law Institute did just that in § 210.6(2) of its proposed official draft in 1962:

In the [capital sentencing] proceeding, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in subsections (3) and (4) of this Section. . . .

* * * *

The Court, in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant . . . .

Model Penal Code § 210.6 (Proposed Official Draft 1962, and changes of July 30, 1962) (emphasis added) (as quoted in the appendix to McGautha v. California, 402 U.S. 183, 222-224, 91 S. Ct. 1454, 1475, 28 L. Ed. 2d 711 (1971)). [*190]

It is interesting that, in the aftermath of Payne, a number of state legislatures amended their capital sentencing statutes to explicitly authorize the admission of victim impact evidence. n14 For example, as noted in Commonweath v. Fisher, the Pennsylvania legislature amended its statute to read in pertinent part:

(2) In the sentencing hearing, evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible. Additionally, evidence may be presented as to any other matter that the court deems relevant and admissible on the question of the sentence to be imposed. Evidence shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e), and information concerning the victim and the impact that the death of the victim has had on the family of the victim. Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).

42 Pa. C.S.A. § 9711(a)(2) (enacted October 11, 1995, to be effective sixty days thereafter) (as quoted in Fisher, 681 A.2d at 149 n.2) (Cappy, J., concurring). The Florida [*191] legislature likewise amended its capital sentencing statute in 1992 by adding a subsection, which reads:

Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (5), the prosecution may introduce, and subsequently argue, victim impact evidence. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.

Fla. Stat. Ann. § 921.141(7) (West 2001). Even the United States Congress made victim impact evidence a subject of statute, as 18 U.S.C. 3593(a) provides that in a death penalty case the prosecution shall give notice that it is seeking a death sentence based upon certain aggravating factors whichmay include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and [*192] the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information.

18 U.S.C. § 3593(c) (Lexis 2001). The federal statute goes on to provide thatat the sentencing hearing, information may be presented as to any matter relevant to the sentence . . . . The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a).Id. (In United States v. McVeigh, 944 F. Supp. 1478, 1491 (D. Colo. 1996), Chief Judge Richard Matsch said of victim impact evidence that it "is the most problematic of all of the aggravating factors and may present the greatest difficulty in determining the nature and scope of the 'information' to be considered. Congress expressly provided for victim impact consideration in the Death Penalty Statute but it did not put any limits on what can be considered.") See also United States v. Barnette, 211 F.3d 803, 817 (4th Cir. 2000) (The Federal Death Penalty Act allows victim impact evidence as a non-statutory aggravating factor.) In the final analysis, we must conclude that [*193] the Wyoming Legislature has not made the decision in § 102(c) that victim impact is a matter relevant to a determination of the sentence of life imprisonment or death.

Because the Wyoming Legislature has not provided in either § 7-21-101 through 103 or § 6-2-102(c) that victim impact is a matter relevant to a determination of the sentence in the sentencing phase of a capital case, we hold that the trial court erred in its ruling which allowed the prosecution to introduce victim impact evidence in the sentencing phase of this capital case.

In Harlow, decided today, after holding that the trial court had erred in admitting victim impact evidence, we undertook a harmless error analysis. Harlow, 2003 WY 47, P43. We noted the discussion in Grossman v. Florida, 525 So. 2d 833, 842-45 (Fla. 1988) on the question whether the erroneous introduction of victim impact evidence is subject to harmless error analysis. Id. We believe that discussion is sound and agree with the Florida Court's conclusion that harmless error analysis on a case-by-case basis is appropriate. In the instant case, however, that analysis is unnecessary because we are reversing and remanding for re- sentencing based on other errors. At that re-sentencing trial, victim impact evidence shall be inadmissible.

Ex rel Armine v. Roper, 2003 Mo. LEXIS 80 (Mo 4/29/2003) "A habeas petitioner under a sentence of death may obtain relief from a judgment of conviction and sentence of death upon a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment."

Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and serves as "a bulwark against convictions that violate fundamental fairness." Engle v. Isaac, 456 U.S. 107, 126, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). To that end, Missouri law provides that a writ of habeas corpus may be issued when a person is restrained of his or her liberty in violation of the constitution [*8] or laws of the state or federal government. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). Even though the interests protected by the writ are fundamental, relief is limited in order to avoid unending challenges to final judgments. Habeas relief, therefore, is generally denied if the petitioner raises procedurally barred claims that could have been raised at an earlier stage or if other adequate remedies are available. Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). Exceptions to this rule are recognized when the petitioner raises a jurisdictional issue, can demonstrate "cause and prejudice," or in extraordinary circumstances, when the petitioner can demonstrate that a "manifest injustice" would result unless habeas relief is granted. State ex rel. Nixon v. Jaynes, 63 S.W.3d at 215; State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993).

Amrine's petition for habeas relief turns on the application of the manifest injustice standard to his claim of actual innocence. The state argues that Amrine's right to habeas relief depends on whether he meets the standards discussed in [*9] Clay for habeas relief. Clay discussed the circumstances in which a prisoner who has failed to raise a claim of constitutional error within the time period allowed under Missouri law may nonetheless obtain review of that claim of constitutional error. Clay adopted the federal standard set out in Schlup v. Delo, 513 U.S. at 327, and required a showing of either (1) cause for failing to raise the claim in a timely manner and prejudice from the constitutional error asserted, or (2) a showing by the preponderance of the evidence of actual innocence, and this would meet the manifest injustice standard for habeas relief under Missouri law. A showing either of cause and prejudice or of actual innocence acts as a "gateway" that entitles the prisoner to review on the merits of the prisoner's otherwise defaulted constitutional claim. Clay, 37 S.W.2d at 217.

II. Freestanding Claims of Actual Innocence As Manifest Injustice

Here, however, Mr. Amrine does not assert actual innocence merely as a gateway to allow consideration of an underlying constitutional claim. Rather, he makes what has been termed a "freestanding" claim of actual [*10] innocence.

In Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), the United States Supreme Court discussed the viability of a freestanding claim of actual innocence as a basis for habeas relief in the federal courts. Although the Court determined that federalism concerns militated against recognizing actual innocence as a basis for federal habeas relief, the Court assumed for the sake of argument that: in a capital case a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim.

Herrera, 506 U.S. at 417. n3

In other words, as Herrera recognized, even if a federal court were found not to have jurisdiction to review a state conviction and sentence in the absence of a federal constitutional issue, this would not deprive a state court from reviewing the conviction and sentence if its own state habeas law so permitted. The issue now before this Court, then, is whether, in the words of Herrera, Missouri has left a "state avenue open to process such a claim." Id. This Court finds that it has done so.

Having recognized the prospect of an intolerable wrong, the state has provided a remedy. As noted, it is not the remedy set out in Clay, for, while the Clay standard is appropriate for cases involving procedurally defaulted constitutional claims, it fails to account for those rare situations, such as Amrine's, in which a petitioner sets forth a compelling case of actual innocence independent of any constitutional violation at trial. This is all the more true here, where the execution of a potentially innocent man is at stake, for the death penalty is fundamentally different from other cases in which innocence is asserted after a fair trial. For this reason, uniquely under [*12] Missouri's death penalty statute, section 565.035.3, this Court is charged with determining not merely the sufficiency but also the "strength of the evidence." See State v. Chaney, 967 S.W.2d 47 (Mo. banc 1998). The obvious purpose is to avoid wrongful convictions and executions. The duty to do so in death penalty cases is, just as obviously, a continuing one. It is difficult to imagine a more manifestly unjust and unconstitutional result than permitting the execution of an innocent person. Therefore, it is incumbent upon the courts of this state to provide judicial recourse to an individual who, after the time for appeals has passed, is able to produce sufficient evidence of innocence to undermine the habeas court's confidence in the underlying judgment that resulted in defendant's conviction and sentence of death. The writ of habeas corpus is the appropriate means for Amrine to assert this claim. n4

A freestanding claim of actual innocence is evaluated on the assumption that the trial was constitutionally adequate. Accordingly, the evidence of actual innocence must be strong enough to undermine the basis for the conviction so as to make the petitioner's continued incarceration and eventual execution manifestly unjust even though the conviction was otherwise the product of a fair trial. Cf. Simmons, 866 S.W.2d at 446; Schlup, 513 U.S. at 316 (discussing Herrera).

At the same time, because an actual innocence claim necessarily implies a breakdown in the adversarial process, the conviction is not entitled to the nearly irrebuttable presumption of validity afforded to a conviction on a direct appeal challenging the sufficiency of the evidence. If habeas relief were conditioned on a finding that no rational juror could convict the petitioner after introduction of the new evidence, it would be impossible to obtain relief because exculpatory evidence cannot outweigh inculpatory evidence under that standard. See State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). [*14] Neither is this Court required to impose as high a standard as would a federal court in reviewing a freestanding claim of actual innocence, for, as discussed, this Court is not affected by the federalism concerns that limit the federal courts' jurisdiction to consider non-constitutional claims of actual innocence.

Conversely, it is appropriate that the burden of proof is heavier than the "more likely than not" standard governing Clay gateway claims of innocence because relief under Clay is premised upon a serious constitutional defect at trial and the conviction is worthy of less confidence by the habeas court. The appropriate burden of proof for a habeas claim based upon a freestanding claim of actual innocence should strike a balance between these competing standards and require the petitioner to make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment. See Ex parte Joe Rene Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108, 1132 (Conn. 1997).

The burden of establishing a fact by clear and convincing [*15] evidence is heavier than the "preponderance of the evidence" test of ordinary civil cases and is less than the "beyond reasonable doubt" instruction that is given in criminal cases. Evidence is clear and convincing when it "instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true." In re T.S., 925 S.W.2d 486, 488 (Mo. App. E.D.1996).

IV. Application

Amrine has met his burden of providing clear and convincing evidence of actual innocence that undermines our confidence in the correctness of the judgment. In reviewing a claim under this standard, the evidence supporting the conviction must be assessed in light of all of the evidence now available. Although the evidence at trial was constitutionally sufficient to support the conviction, the evidence was not overwhelming. There was significant evidence indicating Amrine's innocence from the beginning. At trial, officer Noble identified Terry Russell as the perpetrator. He did not identify Amrine as the killer. Nor did the six inmates who testified that Amrine was playing cards in another [*16] part of the recreation room. There was no physical evidence linking Amrine to the murder. Instead, Amrine was convicted solely on the testimony of three fellow inmates, each of whom have now completely recanted their trial testimony.

This case thus presents the rare circumstance in which no credible evidence remains from the first trial to support the conviction. This Court, sitting as an original habeas court, determines based on this record that under these rare circumstances, there is clear and convincing evidence of Amrine's innocence. As such, confidence in his conviction and sentence are so undermined that they cannot stand and must be set aside.

As the evidence was sufficient at Amrine's first trial to convict, however, there is no double jeopardy bar to retrial, if the state believes it can produce enough evidence, based on such evidence as it may have, even recanted evidence, n5 to once again bring this case to a jury. Given the weakness of the evidence and the long delay since the original trial, during which time Amrine has been imprisoned based on a conviction this Court herein sets aside, however, an expeditious and final resolution of this case is imperative.

Powell v. Collins, 2003 U.S. App. LEXIS 8610 (6th Cir 5/7/2003) (dissent) Penalty phase relief granted on Ake / failure to investigate. Jury deadlock used as guide point for "prejudice" analysis.

In his first and second grounds for federal habeas relief before the district court, Petitioner argued that the trial court's denial of his motions for expert assistance deprived the jury of relevant information concerning his mental history and possible organic brain damage in violation of his due process rights. The district court found no due process violation because the state court adhered to the mandate of Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), by appointing a neutral psychological expert.

For the reasons set forth below, we find constitutionally harmless any error that may have occurred at the guilt phase of Petitioner's trial; however, we find that the error with respect to the penalty phase of Petitioner's trial mandates reversal as it violated Petitioner's due process rights.

1.Constitutional Requirements

In Ake v. Oklahoma, 470 U.S. 68, 83, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment obligates states to provide an indigent defendant with access [*29] to psychiatric examination and assistance when the defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial. The Court explained that once this preliminary showing is made, the states must at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.

Id. Ake also held that when appropriate, the right to expert assistance extends to the sentencing phase of capital proceedings. n5 Id. at 86. The Court instructed that a defendant's interest in access to expert assistance outweighs a state's economic interests in avoiding the cost of an expert when [*30] the defendant's "mental condition" is seriously at stake in a capital case. Id. at 82.

Several circuits have interpreted Ake to mean that due process is not satisfied unless the defendant is provided an independent psychiatrist to aid in his defense -- i.e., the appointment of a neutral court psychiatrist, such as in the matter at hand, does not satisfy due process. See, e.g., Starr v. A.L. Lockhart, 23 F.3d 1280, 1289 (8th Cir. 1994) ("The trial court's . . . finding, that [the defendant's] due process right to expert assistance was satisfied by the court-ordered examination and by the defense's ability to subpoena the state examiners, [was] erroneous [because] the ability to subpoena a state examiner and to question that person on the stand does not amount to the expert assistance required by Ake."); Smith v. McCormick, 914 F.2d 1153, 1158-59 (9th Cir. 1990) ("Under Ake, evaluation by a 'neutral' court psychiatrist does not satisfy due process. . . . [The defendant] was entitled to his own competent psychiatric expert."); United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985) (finding that a state's duty under Ake "cannot be satisfied with the appointment of an expert who ultimately testifies [*32] contrary to the defense on the issue of competence"); United States v. Byers, 239 U.S. App. D.C. 1, 740 F.2d 1104, 1114 (D.C. Cir. 1984) (holding that the defendant was denied psychiatric assistance sufficient to prepare an adequate defense where he was only allowed access to psychiatrists for the government).

The Fifth Circuit, however, has taken a contrary position, holding that providing "an indigent defendant with the assistance of a court-appointed psychiatrist, whose opinion and testimony is available to both sides," satisfies a defendant's due process rights. See Granviel v. Lynaugh, 881 F.2d 185, 191 (5th Cir. 1989). Although the Supreme Court denied Granviel's petition for a writ of certiorari, Justice Marshall, joined by Justice Brennan, wrote a sharp dissent to the denial of the petition. See Granviel v. Texas, 493 U.S. 963, 495 U.S. 963, 109 L. Ed. 2d 758, 110 S. Ct. 2577 (1990) (Marshall, J., dissenting). Justice Marshall opined that "because the Fifth Circuit's misinterpretation of Ake substantially undermines an indigent defendant's ability to present an effective defense, I would grant the petition to reaffirm [*33] our holding in Ake." Id. at 966. The Justice reasoned as follows:

Ake was concerned not with establishing a procedure whereby an independent examiner could determine the validity of a defendant's insanity defense and present his findings to both parties and to the court. Rather, Ake was directed at providing a defendant with the tools necessary to present an effective defense within the context of our adversarial system, in which each party marshals evidence favorable to its side and aggressively challenges the evidence presented by the other side. In that adversarial system, "the psychiatrists for each party enable the [court or] jury to make its most accurate determination of the truth on the issue before them." [470 U.S.], at 81. Thus, we recognized in Ake that a defense psychiatrist is necessary not only to examine a defendant and to present findings to the judge or jury on behalf of the defendant, but also to "assist in preparing the cross-examination of a State's psychiatric witnesses," id., at 82, and in determining "how to interpret their answers," id., at 80. Just as an indigent defendant's rights to legal assistance would [*34] not be satisfied by a State's provision of a lawyer who, after consulting with the defendant and examining the facts of the case and the applicable law, presented everything he knew about the defendant's guilt to the defendant, the prosecution, and the court, so his right to psychiatric assistance is not satisfied by provision of a psychiatrist who must report to both parties and the court.

Id. at 964-65.

Today, we join with those circuits that have held that an indigent criminal defendant's constitutional right to psychiatric assistance in preparing an insanity defense is not satisfied by court appointment of a "neutral" psychiatrist -- i.e., one whose report is available to both the defense and the prosecution. See Starr, 23 F.3d at 1289; Smith, 914 F.2d at 1159; Sloan, 776 F.2d at 929; Byers, 740 F.2d at 1114. As a result, in the matter before us, so long as Petitioner made the requisite preliminary showing that his sanity at the time of the offense was to be a "significant factor at trial," the trial court erred in failing to grant Petitioner's motion for an independent psychiatrist. [*35] See Ake, 470 U.S. at 83.

Since Ake, the Supreme Court has ruled that an indigent criminal defendant seeking psychiatric assistance must base his preliminary showing on more than a general statement of need; rather, he must support his request with specific facts. See Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). Here, one month prior to trial, Petitioner's attorneys produced Petitioner's juvenile court records and psychological evaluations, alleging that these documents revealed mental deficiencies that should lead to the appointment of an expert to assist the defense in the presentation of its case. One of the reports, prepared in June of 1987 when Petitioner was only eleven years old, noted that he was then non-verbal and defensive, although he did not "demonstrate any signs of a disturbed thought process or bizarre thought pattern." The report further stated that Petitioner's full-scale IQ score was only 64, placing him in the "mild mentally retarded range of intellectual ability." (J.A. at 667.) The report concluded, "not only does [Petitioner] perceive physical aggression as not being wrong, but [*36] tends also to value aggression and accepts it as a fact of life." (J.A. at 668.)

The remaining two reports received by defense counsel involved examinations of Petitioner when he was fourteen years old. Those evaluations, conducted two days apart, revealed that Petitioner then had a full scale IQ of 70. The reports also indicated that Petitioner did not do well "in recognizing cause and effect relationships in social situations." (J.A. at 670.) However, the reports further noted that the examiners could not uncover any evidence of psychotic process or organic dysfunction. Petitioner was described in summary as "a rather low-functioning youngster with a conduct disorder of an unsocialized, non-aggressive reaction." (J.A. at 670.)

Like the district court, we believe that Petitioner provided the trial court with the necessary particularized facts sufficient to trigger Ake's requirement of psychiatric assistance. Unlike in Caldwell, where the defendant presented little more than "undeveloped assertions" that the requested assistance would aid in his defense, Petitioner provided the trial court with specific facts relevant to his defense at both the guilt and penalty [*37] phases of his trial. Accordingly, the trial court erred in denying Petitioner's motion for independent psychiatric assistance. However, as explained below, we find the error in relation to the guilt phase of Petitioner's trial constitutionally harmless. The error in relation to the penalty phase of Petitioner's case presents a different scenario requiring reversal.

SUPREME COURT

Kaupp v. Texas,--- US ---; 71 U.S.L.W. 3696 (5/5/2003) Confession obtained as a fruit of unlawful detention must be suppressed.

A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991) [*5] (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988)). This test is derived from Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), see California v. Hodari D., 499 U.S. 621, 627-628, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), which gave several "examples of circumstances that might indicate a seizure, even where the person did not attempt to leave," including "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, supra, at 554.

Although certain seizures may be justified on something less than probable cause, see, e.g., Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), we have never "sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes . . . absent probable cause or judicial authorization." Hayes v. Florida, 470 U.S. 811, 815, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985) n2 ; cf. Payton v. New York, 445 U.S. 573, 589, 63 L. Ed. 2d 639, 100 S. Ct. 1371- 590 (1980); [*6] compare Florida v. Royer, 460 U.S. 491, 499, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion) ("[The police] may [not] seek to verify [mere] suspicions by means that approach the conditions of arrest"), with United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) ("The police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause" (quoting Terry, supra, at 30)). Such involuntary transport to a police station for questioning is "sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause." Hayes, supra, at 816.

The state does not [*7] claim to have had probable cause here, and a straightforward application of the test just mentioned shows beyond cavil that Kaupp was arrested within the meaning of the Fourth Amendment, there being evidence of every one of the probative circumstances mentioned by Justice Stewart in Mendenhall. n3 A 17-year-old boy was awakened in his bedroom at three in the morning by at least three police officers, one of whom stated "we need to go and talk." He was taken out in handcuffs, without shoes, dressed only in his underwear in January, placed in a patrol car, driven to the scene of a crime and then to the sheriff's offices, where he was taken into an interrogation room and questioned. This evidence points to arrest even more starkly than the facts in Dunaway v. New York, 442 U.S. 200, 212, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), where the petitioner "was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room." There we held it clear that the detention was "in important respects indistinguishable from a traditional arrest" and therefore required probable cause or judicial authorization to be legal. Ibid. The same is, if anything, even [*8] clearer here.

Contrary reasons mentioned by the state courts are no answer to the facts. Kaupp's "'Okay'" in response to Pinkins's statement is no showing of consent under the circumstances. Pinkins offered Kaupp no choice, and a group of police officers rousing an adolescent out of bed in the middle of the night with the words "we need to go and talk" presents no option but "to go." There is no reason to think Kaupp's answer was anything more than "a mere submission to a claim of lawful authority." Royer, supra, at 497 (plurality opinion); [*9] see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 233-234, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). If reasonable doubt were possible on this point, the ensuing events would resolve it: removal from one's house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene on the way to an interview room at law enforcement headquarters. Even "an initially consensual encounter . . . can be transformed into a seizure or detention within the meaning of the Fourth Amendment." INS v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984); see Hayes, supra, at 815-816 ("At some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments"). It cannot seriously be suggested that when the detectives began to question Kaupp, a reasonable person in his situation would have thought he was sitting in the interview room as a matter of choice, free to change his mind and go home to bed.

Nor is it significant, as the state court thought, that the sheriff's department "routinely" transported [*10] individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation." App. A to Pet. for Cert. 6. The test is an objective one, see, e.g., Chesternut, 486 U.S., at 574, and stressing the officers' motivation of self-protection does not speak to how their actions would reasonably be understood. As for the lack of resistance, failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.

Since Kaupp was arrested before he was questioned, and because the state does not even claim that the sheriff's department had probable cause to detain him at that point, well-established precedent requires suppression of the confession unless that confession was "an act of free will [sufficient] to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Demonstrating such purgation is, of course, a function of circumstantial evidence, [*11] with the burden of persuasion on the state. See Brown, 422 U.S., at 604. Relevant considerations include observance of Miranda, "the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct." 422 U.S., at 603-604 (footnotes and citation omitted).

The record before us shows that only one of these considerations, the giving of Miranda warnings, supports the state, and we held in Brown that "Miranda warnings, alone and per se, cannot always . . . break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." 422 U.S., at 603 (emphasis in original); see also Taylor v. Alabama, 457 U.S. 687, 699, 73 L. Ed. 2d 314, 102 S. Ct. 2664 (1982) (O'CONNOR, J., dissenting) (noting that, although Miranda warnings are an important factor, "they are, standing alone, insufficient"). All other factors point the opposite way. There is no indication from the record that any substantial time passed between Kaupp's removal from his home in handcuffs and his confession after only 10 or 15 minutes of [*12] interrogation. In the interim, he remained in his partially clothed state in the physical custody of a number of officers, some of whom, at least, were conscious that they lacked probable cause to arrest. See Brown, supra, at 604-605. In fact, the state has not even alleged "any meaningful intervening event" between the illegal arrest and Kaupp's confession. Taylor, supra, at 691. Unless, on remand, the state can point to testimony undisclosed on the record before us, and weighty enough to carry the state's burden despite the clear force of the evidence shown here, the confession must be suppressed.

The judgment of the State Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

CAPITAL CASES(Favorable Disposition)

Kirkpatrick, next of friend for Reid v. Bell, 2003 U.S. App. LEXIS 8629 (6th Cir 5/5/2003) (unpublished) Stay granted to determine competency.

Therefore, we grant the stay of execution until such time as the district court has had an opportunity to conduct a full evidentiary hearing, allowing the State to evaluate Reid and to present evidence concerning his competency. In the event the court finds Reid to be incompetent, then it should allow Janet Kirkpatrick or some other suitable person to proceed as his next friend. If he is found competent to waive his further appeals, then the next friend should not be appointed.

Aki-Khuam v. Davis, 2003 U.S. App. LEXIS 8678 (7th Cir 5/8/2003) Relief granted on "Batson" claim.

Ex Parte Mack, 2003 Ala. Crim. App. LEXIS 107 (Ala. Crim. App. 4/25/2003) Discovery ordered of grand and petit jury information due to the relationship of the sought for information to a post-conviction claim.

Turner v. Alabama, 2003 Ala. Crim. App. LEXIS 113 (Ala. Crim. App. 4/25/2003) "It is necessary to again remand this case to the Circuit Court of Limestone County for that court to correct its sentencing order to comply with § 13A-5-47(d), Ala. Code 1975. The trial court is further directed to reweigh the aggravating and the mitigating circumstances once it has complied with the directions in this opinion."

Bryant v. Maryland, 2003 Md. LEXIS 255 (MD 5/12/2003) Trial court "erred by not finding by a preponderance of the evidence that youthful age was a mitigating circumstance and, consequently, his ultimate weighing of the aggravating versus the mitigating factors was inadequate."

Hain v. Mullin, 2003 U.S. App. LEXIS 8145;324 F.3d 1146 (10th Cir 4/29/2003) Order granting rehearing en banc vacated as moot due to execution of the person subject to the grant, prior panel decision vacated.

Arizona v. Phillips, 2003 Ariz. LEXIS 64 (Az 5/6/2003) Ring error held not to be harmless, remand for resentencing ordered.

Arizona v. Finch, 2003 Ariz. LEXIS 63 (Az 5/6/2003) Ring error held not to be harmless, remand for resentencing ordered.

Arizona v. Lehr, 2003 Ariz. LEXIS 60 (AZ 4/30/2003) Ring error held not to be harmless, remand for resentencing ordered.

Arizona v. Tucker,2003 Ariz. LEXIS 62 (Az 5/5/2003) Ring error held not to be harmless, remand for resentencing ordered.

Dunn v. Louisiana, 2003 La. LEXIS 1342 (La 5/9/2003) Mental retardation should be determined first by the trial level courts and not the state supreme court as a matter of first impression.

CAPITAL CASES(Unfavorable Disposition)

Harlow v. Wyoming, 2003 Wyo. LEXIS 58,*;2003 WY 47(Wyo 4/14/2003) Relief denied on issues relating to (1) voir dire; (2) denial of motion to suppress; (3) Victim Impact testimony (although improper held to be harmless; (4) denial of certain post-trial motions; (5) denial of motion to supplement appellate record; (6) proportionality contentions; (7) constitutionality of death penalty statute; (8) denial of post-trial motions regarding 1988 murder conviction; and (9) cumulative error.

McNabb v. Alabama, 2003 Ala. Crim. App. LEXIS 112 (Ala. Crim. App. 4/25/2003) "The fact that the jury voted on whether to recommend the death penalty indicates that it unanimously found the existence of at least one aggravating circumstance beyond a reasonable doubt. Because the jury did, in fact, unanimously find the existence of an aggravating circumstance beyond a reasonable doubt, Ring was complied with in this case."

Murphy v. Cockrell, 2003 U.S. App. LEXIS 8329 (5th Cir 5/1/2003) Relief denied on a "Penry II" claim due to the prior Fifth Circuit en banc decision in Robertson v. Cockrell.

Barraza v. Cockrell, 2003 U.S. App. LEXIS 8327 (5th Cir 5/1/2003) Certificates of Appealability denied on issues relating to (1) district court's denial of a motion to obtain funding for additional psychiatric, psychological and medical testing; (2) state habeas court's denial of a motion to obtain funding for additional psychiatric, psychological and medical testing; and whether the district court erred under 21 U.S.C. § 848(q)(4)(B) when it denied Barraza's motion to obtain funding for additional psychiatric, psychological and medical testing.

Arizona v. Cropper, 2003 Ariz. LEXIS 61 (Az 5/5/2003) Relief denied on issues relating to the failure to give notice on one of the aggravating circumstances, retraction of an aggravated assault plea, & recusal of the trial judge. Judgment withheld on Ring claims.

Collins v. Arkansas,2003 Ark. LEXIS 237 (Ark 5/8/2003) Pro se condemned inmate, like every other citizen, is not entitled to "a photocopy at public expense of the transcript lodged on appeal."

Taylor v. Delaware, 2003 Del. LEXIS 262 (Del 4/30/2003) Relief denied on claims relating to (1) allegations relating to an inventory search; (2) applicability of Ring v. Arizona to the Delaware sentencing scheme; and (3) appropriateness of sentence.

Pennsylvania v. Morris, 2003 Pa. LEXIS 710 (PA 5/1/2003) Stay vacated and successive petition dismissed as petitioner "has already had review of his substantive claims in a direct appeal and a first collateral appeal. Thus, at this stage in the proceedings, the claimant's interest in further review of his claims is less and it is the state's interest in finality of the proceedings that becomes more pressing."

Scott v. Maryland, 2003 Md. App. LEXIS 45 (Md. App. 4/30/2003) Relief denied as to whether the motion court abused "its discretion in failing to make its own determination on the merits regarding whether appellant's sentence was illegal .... [and] err in accepting the post-conviction court's determination regarding whether Md. Rule 4-345(d) was violated."

Jones v. Florida, 2003 Fla. LEXIS 781 (FL 5/8/2003) Relief denied on claims relating to "(1) that trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense at trial, and (2) that counsel failed properly to investigate and present available mitigation during the penalty phase."

Taylor v. Bowersox, 2003 U.S. App. LEXIS 8611 (8th Cir 5/7/2003) Relief denied chiefly on "(1) whether the denial of Taylor's motion to withdraw his guilty plea because the plea judge and sentencing judge were not the same person violates his federal constitutional due process rights; and (2) whether the district court erred in ruling that Taylor's ineffective assistance of plea counsel claim was procedurally defaulted."

Walker v. True, 2003 U.S. App. LEXIS 8557 (4th Cir 5/6/2003) (unpublished) Relief denied on whether "his Sixth Amendment right to counsel was violated at the guilt phase of his trial when his counsel failed to challenge his single trial for two murders, that his due process rights were violated when the Commonwealth failed to timely disclose Brady materials, and that his Sixth Amendment rights were violated at the sentencing phase of his trial when his counsel failed to investigate and present compelling mitigating evidence."

Brown v. Florida,2003 Fla. LEXIS 630 (FL 4/24/2003) Relief denied on claims: (1) that trial counsel rendered ineffective assistance of counsel, (2) that he is entitled to a new trial based on newly discovered evidence, (3) that the cumulative effect of the errors resulted in an unfair proceeding; and (4) appellate counsel was ineffective.

California v. Smith, 2003 Cal. LEXIS 2988 (CA 5/8/2003) Relief denied as (1) allowing a late notice of aggravating evidence was not erroneous; (2) exclusion of defense expert's testimony on defendant's statements of remorse was not erroneous, and (3) death sentence was not disproportionate.

California v. Navarette, 2003 Cal. LEXIS 2638 (CA 4/28/2003) Relief denied on claims, amongst numerous others, relating to the denial of change of venue motion, defendant's exclusion from proceedings, and prosecutorial misconduct.

NOTABLE NONCAPITAL CASES

Koerner v. Grigas, 2003 U.S. App. LEXIS 8005 (9th Cir 4/28/2003) (dissent) Remand ordered as the district court erred in finding an "independent and adequate ground" to impose a procedural bar.

USA v. Gonzales, et al, 2003 U.S. App. LEXIS 8382 (10th Cir 4/29/2003) A sanctioned Assistant United States Attorney lacks standing to raise an appeal solely of a judge's sanction for misconduct.

Ex Parte Dorsey, 2003 Ala. LEXIS 128 (Ala 4/25/2003) "Retrial of Dorsey on a capital-murder charge was, upon his conviction of felony murder, barred under the principles of double jeopardy."

FOCUS

The U.S. Supreme Court has allowed states to use victim impact evidence, and Louisiana law permits such testimony in its trials. Typically, such evidence is used to bolster the state's request for the death penalty against the defendant and is not challenged by prosecutors. Judge Al Gray has ruled the prosecution cannot bar Guillory's testimony, but prosecutors are now challenging that ruling in the state's Supreme Court, which is expected to rule this week. Among those supporting Guillory are members of Murder Victims' Families for Reconciliation (MVFR) an organization comprised of murder victim's family members who oppose capital punishment. A portion of their amicus brief in the Louisiana Supreme Court is included below.

May 15, 2003COMES NOW AMICUS, MURDER VICTIMS’ FAMILIES FOR RECONCILIATION (MVFR), by counsel, and respectfully files the following opposition, pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United StatesConstitution as well as the law of the State of Louisiana, to the State’s petition for supervisory writs concerning the lower court3Ds order respecting the rights of Lorilei Guillory, mother of the victim in this case and a member of Murder Victims’ Families for Reconciliation, to appear and testify as any other witness requesting mercy at the penalty phase of this case.

In support of this opposition, Amicus states as follows:

I.

THE RIGHT TO EQUAL PROTECTION UNDER THE LAWS GUARANTEED BY ARTICLE I, SECTION 25 OF THE LOUISIANA STATE CONSTITUTION AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRE THAT SURVIVING FAMILY MEMBERS OF HOMICIDE VICTIMS MUST BE TREATED EQUALLY, WHETHER THOSE FAMILY MEMBERS SUPPORT OR OPPOSE CAPITAL PUNISHMENT. THE STATE CANNOT DISCRIMINATE BETWEEN SPEAKERS BASED ON THE CONTENT OF THEIR SPEECH.

Historically the rights of victims such as Ms. Guillory were ignored by the Criminal Justice System before the advent of the Victims Rights Movement.

Murder Victims’ Families for Reconciliation (“MVFR”) is a national organization of individuals who have lost a loved one to homicide and who oppose the death penalty. MVFR work includes the following: educating the public on the impact of violence and the needs of victims, providing support and advocating on behalf of victims, promoting programs and policies that reduce the rate of homicide, and promoting crime prevention and alternatives to violence. While there are over 10,000 entities in this country whose mission includes, in part, serving the interests of victims of crime, MVFR is unique among such groups. It is the only organization dedicated to serving and meeting the needs of the distinct group of the victim population who are both the survivors of homicide victims and abolitionists who are opposed to capital punishment. Since its founding in 1976, MVFR has worked with, and been a bridge between, the victims support community and the death penalty abolition movement. MVFR belongs to the National Center for Victims of Crime, The National Organization for Victims Assistance, and the National Coalition to Abolish the DeathPenalty. MVFR’s membership includes citizens of Louisiana, including Ms. Guillory, as well as residents of other states who are the survivors of individuals who were murdered in Louisiana. The outcome of the instant case involving the treatment of the subgroup of the crime victim population who oppose capital punishment will have an impact upon present and possible future members of the organization, and other similarly situated victims, whose rights, duties, privileges and interests, will be impacted by the ruling of the Supreme Court.

By this brief, MVFR supports the efforts of Lorilei Guillory to have the Supreme Court of Louisiana uphold Ms. Guillory’s right to give a victim impact statement and put an end to discrimination against surviving family members of murder victims who oppose capital punishment. MVFR aspires for a decision by the Louisiana Supreme Court that will clarify that all victims of crime, including those who support mercy for the defendant, are entitled to the full enjoyment of rights guaranteed by the Louisiana State Constitution.

MVFR members oppose the death penalty. As the courts have long held, the death penalty as a sanction for crime is different than other punishments.

Louisiana, along with 37 other states and the federal government, still provides the penalty. In so doing, it creates a separate class of victims:

those who, like members of MVFR, oppose for a wide variety of reasons, the use of the death penalty by the state.

A brief review of the history of the victims movement will provide some context to help understand the policies the Louisiana Victims Rights Amendment seeks to embrace. Institutionalized consciousness about the role of victims in our criminal justice system, and the system’s impact on victims, is formalized in the legal concept of “victims rights” that have been incorporated into laws by all 50 states and the federal government.

In 1984, Congress passed the Victims of Crime Act (VOCA),

which provided incentives to states to enact support programs for victims and created victim compensation funds. VOCA inspired the passage of victims rights legislation in the states, as well.

Today, all 50 states and the federal government have statutes recognizing and protecting victims of crime. Twenty eight states, including Louisiana, have enshrined those rights into their state constitutions. See President’s Task Force on Victims of Crime: Final Report (Washington DC; Executive 1 New Directions from the Field: Victims Rights and Services for the 21st Century. Office for Victims of Crime, Office of Justice Programs, United States Department of Justice, Washington, D.C., 1997. 2 Serving Crime Victims and Witnesses, 2nd Edition, by Julie Esselman Tomz and Daniel McGillis, National Institute for Justice, US Department of Justice,Washington, D.C., 1997, page 3. Office of the President, 1982).

The Louisiana “Victim Rights Amendment” and statutes recognize that the suffering of the family members left after a homicide is tremendous. The United States Supreme Court has also acknowledged that allowing surviving victims to speak is of paramount importance. “Victim impact evidence” is designed to show “each victim’s ‘uniqueness as an individual human being” and is “‘another form or method 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 v. Tennessee, 501 U.S. 808, 824-825 (1991). Payne outlined that the survivors of a homicide victim are also “victims” and therefore have valuable information to contribute to the determination of punishment.

MVFR wishes to emphasize the point that victims and survivors have the right to be heard, even though they may surprise the state with their desire for mercy. The widespread use of the death penalty in America is predicated upon, and reinforces, the societal presumption that everyone who has lost a loved one to murder wants and needs the death penalty for the killer of their family member. Survivors of homicide victims who don’t embrace a ritual killing by the state as a necessity for their own healing cannot be treated with bias and discrimination. The States effort to bar Ms. Guillory from speaking is explicit discrimination as it is asking that other family members of the child, those who support the death penalty, be allowed to give victim impact statements.

The State’s attorneys have clearly acted in a discriminatory fashion when they chose to designate only the victim’s pro-execution brother as the person who would give a victim impact statement, despite the fact that Ms. Guillory had informed them of her intent to assert her right to give such a statement more than a year ago.

If the State intends to allow only a limited number of statements, they cannot do so in a manner which excludes the victim’s mother who is the officially designated family member because of her position on the death penalty. They must be required to establish standards which, for example, would require accepting statements from all victim survivors who were related to the deceased, or accepting statements from the victim designee as outlined in the Louisiana statute. Notwithstanding her support of mercy for the defendant Ms. Guillory is entitled to be respected as a victim and her rights as such honored.

II.

THE EQUAL PROTECTION CLAUSES OF THE LOUISIANA STATE CONSTITUTION AND THE UNITED STATES CONSTITUTION REQUIRE THAT SURVIVING FAMILY MEMBERS OFHOMICIDE VICTIMS MUST BE TREATED EQUALLY, WHETHER THOSE FAMILY MEMBERSSUPPORT OR OPPOSE CAPITAL PUNISHMENT.

The Fourteenth Amendment prohibits the government from “deny[ing] to any person ‘the equal protection of the laws’.” U.S. Const. amend. XIV. Differential treatment by the State motivated by a desire to select victims with a pro-death penalty position should not be countenanced any more than race- or sex-based discrimination is under the Equal Protection Clause. The “Victim’s Rights” Amendment to the Louisiana State Constitutionrequires the State to recognize and hear the survivors of homicide:

a status-based [governmental act] divorced from any factual context from which [the Court can] discern a relationship to legitimate state interests85is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer v. Evans, 517 U.S. 620, 635 (1996).

By excluding Ms. Guillory and others like her who oppose the execution of murderers, the State is creating a class of victims who are deemed less worthy of their constitutional right to be heard. This form of status-based classification of persons is the precise evil the Fourteenth Amendment was designed to prohibit.

CONCLUSION

In a society that prescribes the killing of murderers as a balm to the pain experienced by survivors of homicide victims, it is always a struggle for those who have made the journey from burying their loved one to becoming a public opponent of the death penalty. If the Supreme Court of Louisiana upholds the right of the District attorney to exclude the voice of victims who don’t want additional killings, such a decision will resonate beyond the borders of this state. A ruling upholding the silencing of Ms. Guillory will have a chilling effect upon all victim family members who wish to participate in the public debate surrounding the death penalty in this country. Victims such as Ms. Guillory have chosen to heal from the wounds of murder without the assistance of state-sponsored execution. They have a constitutional right, guaranteed by the Louisiana Constitution, to be heard. The State’s attorney’s cannot be allowed to pick and choose which victims express the “right” attitude.

OTHER RESOURCES

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

NEW RESOURCES: "Deathquest II: An Introduction to the Theory and Practice of Capital Punishment in the United States"

This new book by Professor Robert Bohm provides valuable information for students and teachers. The book begins with the history of capital punishment from colonial times to the present, and then guides the reader through a complex series of Supreme Court decisions related to capital punishment. It also examines arguments and counterarguments employed by proponents and opponents of the death penalty on subjects such as deterrence, costs, and wrongful convictions. This second edition of "Deathquest" is well footnoted and provides an extensive list of references. (Anderson Publishing, 2003). See Books.

NEW VOICES: North Carolina Republican Backs Moratorium

Following a vote by North Carolina's Senate to support a moratorium on executions in order to allow time to study the death penalty (see below), six-term Republican House Delegate David Miner of North Carolina stated, "I am very encouraged. It was a historic vote and we hope to repeat that in the House in coming weeks." Miner is a self-proclaimed "pro-life Republican" who chairs the House Finance Committee and is co-sponsoring the moratorium bill in that chamber. Stressing his concern that most people on death row are poor, Miner recently stated that "capital punishment is discriminatory." (Los Angeles Times, May 4, 2003) See Recent Legislative Activity.

Louisiana Man is Nation's 108th Death Row Exoneree

John Thompson is the nation's 108th exonerated death row inmate since 1973. Thompson was sentenced to death in 1985 following his conviction for a New Orleans murder. Thompson, who has maintained his innocence since his arrest, was released from prison today less than 24 hours after a jury acquitted him at his retrial. The jury's decision to acquit Thompson is the final chapter in a long fight to prove his innocence. In 1999, just weeks before his scheduled execution, Thompson's attorney discovered crucial blood analysis evidence that undermined information used to influence the jury's decision to send him to death row. After reviewing the new evidence, Judge Patrick Quinlan vacated Thompson's capital sentence and he remained in jail under a sentence of life without parole. In a later appeal to the 4th Circuit Court of Appeal of Louisiana, the court ruled that Thompson was denied his right to testify during his initial trial and found that prosecutors "intentionally hid" the blood analysis evidence that was uncovered by his counsel. At this time, the court ordered a new trial, which featured never-before heard testimony by Thompson himself and statements from the state's key witness at the previous trial, Kevin Freeman, who was an original suspect in the murder. The trial concluded this week with Thompson's acquittal. Read DPIC's Press Release. See also Innocence.

Texas Fails to Pass Life Without Parole Bill

The Texas Senate recently rejected legislation to provide juries with the sentencing option of life in prison without the possibility of parole. Passage was opposed by some prosecutors who feared the sentencing option would discourage juries from giving death sentences. The bill was defeated despite the fact that 72% of Texans support the option of life without the possibility of parole. Texas, which leads the nation in executions, is one of only three death penalty states that does not allow life sentences without parole. (Houston Chronicle, April 23, 2003) See Life Without Parole.

NEW VOICES: Black Mayors Support Death Penalty Moratorium

During the recent National Conference of Black Mayors in Houston, the organization unanimously voted to support a resolution calling for a nationwide moratorium on the death penalty. The resolution calls for a halt to the federal death penalty and recommends that states follow suit. "Until you can convince me there is no disparity, racially or economically, I am a proponent of life without parole. I believe that is our best bet," said Houston Mayor Lee Brown, a former police chief. (Houston Chronicle, April 26, 2003) See Race.

Iowa Governor Frees Prisoner After Murder Conviction is Overturned

Terry Harrington, an Iowa man who spent 26 years in prison on a recently overturned murder conviction, has been freed as the result of a reprieve from Governor Tom Vilsack. Vilsack said that Harrington had been caught in a "bureaucratic limbo" since the Iowa Supreme Court overturned his conviction based on new evidence that prosecutors had withheld police reports pointing to another suspect, and that the state's key witness had recanted his testimony. Harrington remained in jail because the attorney general's office had challenged language in the ruling that did not directly affect Harrington's case, but could affect others. The prosecutors may seek to retry Harrington. (Associated Press, April 18, 2003) Iowa does not have the death penalty; otherwise, Harrington might have been sentenced to death and even executed before the new evidence emerged. See Innocence.

Amnesty Report Finds Racial Injustice in Death Penalty

According to a new report issued by Amnesty International, race continues to play a strong role in U.S. death penalty cases. In "U.S.: Death by Discrimination - The Continuing Role of Race in Capital Caases," Amnesty states that:

Even though blacks and whites are murder victims in nearly equal numbers of crimes, 80% of people executed since the death penalty was reinstated have been executed for murders involving white victims.

More than 20% of black defendants who have been executed were convicted by all-white juries.

The report also examines case law and international policies related to race and the death penalty. Read the report. See also, Race and Resources.

Ohio Parole Board Urges Clemency for Death Row Inmate Who Maintains Innocence

By a vote of 8-2, the Ohio Parole Board has recommended that Governor Bob Taft grant clemency to Jerome Campbell, a death row inmate whom the Board believes was convicted by a jury that was unable to consider all of the evidence in his case. The Parole Board noted that Campbell's attorneys "presented credible evidence for the majority members of this board to question any sustained confidence or reliability in the jury's recommendation." Campbell is scheduled for execution on May 14. He maintains his innocence and states that DNA testing on his bloody tennis shoes supports his claim. The Board recommended that Campbell be sentenced to life in prison without the possibility of parole. This is the Board's first recommendation of clemency since Ohio resumed executions in 1999. (Associated Press, May 2, 2003) See Innocence and Clemency.

NEW VOICES: Texas County is First to Call for Death Penalty Moratorium

Travis County recently became the first Texas county to pass a resolution calling for a moratorium on the death penalty and an in-depth study of the state's capital punishment system. The Travis County Commissioners Court passed the resolution as serious concerns about the state's death penalty, including the accuracy of crime lab findings in Houston and Fort Worth, continue to surface (see below). County Judge Sam Biscoe said before the vote that it was "the right thing to do." He later stated that he supports the death penalty if there is no doubt that it is being administered fairly, but he doesn't believe that is happening. Commissioner Margaret Gomez noted, "We seem to take life very lightly...that it's OK to execute great numbers of people, and that bothers me." (Austin American-Statesman, April 30, 2003). See Innocence.

FBI Labs, Technicians Under Investigation

Less than a decade after the FBI laboratories took steps to reform forensic practices in order to eliminate shoddy procedures and improve accuracy, the Bureau is now facing new concerns that experts are not following proper lab protocol and are jeopardizing cases by giving false testimony. Among the concerns outlined in internal FBI documents is the work of scientist Kathleen Lundy, who recently told her superiors that she knowingly gave false testimony about her specialty of lead bullet analysis during a court hearing involving a Kentucky murder. Retired FBI metallurgist William Tobin has also called Lundy's work into question, noting that he had long suspected while working alongside the bureau's lead bullet analysts that they were engaged in inaccurate science. He asserted that the scientists regularly stretched their conclusions when testifying.

The work of lab technician Jacqueline Blake is also under scrutiny by the Bureau. An internal FBI watchdog investigation revealed that Blake, who recently resigned from the lab, failed to follow proper scientific procedure when analyzing DNA in at least 103 cases over the past few years. (Associated Press, April 15, 2003) See Innocence.

NEW VOICES: California Legislator Calls for Special Commission to Review Death Penalty

California Senator Gloria Romero of Los Angeles, who chairs the Select Committee on the California Correctional System, is calling for a special commission to study the state's death penalty. After a Senate hearing featuring more than a dozen witnesses, including prosecutors, defense lawyers, prison officials, relatives of murder victims, and former Illinois Governor George Ryan, Romero raised specific concerns about racial and geographic disparities in the imposition of the death penalty. She stated, "At a time when Gov. Davis is proposing that we build a state-of-the-art, $220 million death row, even though we have a $34-billion budget deficit, I think it is an appropriate moment to study (how the death penalty is working in California)." (Los Angeles Times, April 23, 2003) See New Voices and Race.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit:http://www.lidab.com/(Louisiana's public defender),probono.net(ABA/ABCNY) &http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).