Three cases make the hot list this week, two wins, one loss.

The first case in the spotlight isNorth Carolina v. Rogers. The North Carolina Supreme Court inRogersexamines how that Court will treat prosecutors who attack the defense's expert as a "liar for hire." The prosecution's improper disparagement of the defense's expert, theRogerscourt concludes, entitles the defendant to a new capital sentencing proceeding.

The Tennessee Supreme Court inState v. Dellingerexamines the application of New Jersey v. Apprendi to capital cases in that state.Dellinger gives a good analysis of what the state must prove to not have a problem with Apprendi.Whether the five requirements listed inDellingerwill be applicable following any potential United States Supreme Court decision Ring v. Arizona is unclear, however the Tennessee Supreme Court's decision (excerpted below) should be reviewed if an Apprendi issue might be present in your case.

In the final hot listed case,Jennings v. Woodford, is a guilt phase grant of relief from the Ninth Circuit. Trial counsel inJenningsused an alibi defense and pointed the finger at someone else.Problems arose at trial, however, when confusion over daylight savings time prevented the establishment of an alibi.Trial counsel failed to explore alternate defenses. The Ninth Circuit concludes "counsel's failure to conduct any investigation into possible mental defenses was unreasonably ineffective."

This week the "Focus" section will not run this week and will return next week. Two upcoming editions will address CLE's/upcoming events and new books, articles & website germane to the subject. If you have any recommendations please do forward them tokarl@capitaldefenseweekly.com

Execution Information

Since the last edition the following have been executed:

May

10 Leslie Martin Louisiana

16 Ronford Styron Texas

The following executions dares are considered serious:

May

14 Henry Dunn Texas (stay)

22 Johnny Martinez Texas

28 Napoleon Beazley Texas

30 Stanley Baker Jr. Texas

HOT LIST

North Carolina v. Rogers, 2002 N.C. LEXIS 429 (NC 5/10/2002) The prosecution's improper disparagement of the defense's expert entitles the defendant to a new capital sentencing proceeding.

It is well settled in North Carolina that counsel is allowed wide latitude in the argument to the jury. Even so, counsel may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence. The control of the arguments of counsel must be left largely to the discretion of the trial judge, and the appellate courts ordinarily will not review the exercise of the trial judge's discretion in this regard unless the impropriety of counsel's remarks is extreme and is clearly calculated to prejudice the jury in its deliberations. In capital cases, however, an appellate court may review the prosecution's argument, even though defendant raised no objection at trial, but the impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion [*72] in not recognizing and correcting ex mero motuan argument which defense counsel apparently did not believe was prejudicial when he heard it.

State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979) (citations omitted).

A number of our cases have considered arguments where an attorney has directly or indirectly challenged the veracity of a party or witness. Although we have found grossly improper the practice of flatly calling a witness or opposing counsel a liar when there has been no evidence to support the allegation, Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 100, 515 S.E.2d 30, 36, aff'd per curiam, 351 N.C. 92, 520 S.E.2d 785 (1999); see also State v. Locklear, 294 N.C. 210, 217-18, 241 S.E.2d 65, 70 (1978), we have also held that it is proper for a party to point out potential bias resulting from payment that a witness received or would receive for his or her services, State v. Lawrence, 352 N.C. 1, 22, 530 S.E.2d 807, 820 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684, 121 S. Ct. 789 (2001). However, where an advocate has gone beyond merely [*73] pointing out that the witness' compensation may be a source of bias to insinuate that the witness would perjure himself or herself for pay, we have expressed our unease while showing deference to the trial court. For instance, we held that an argument made during the guilt-innocence phase of a capital case where the prosecutor stated in reference to the defendant's expert witness, "'It is a sad state of our legal system[] that when you need someone to say something, you can find them. You can pay them enough and they'll say it,'" State v. Murillo, 349 N.C. 573, 604, 509 S.E.2d 752, 770 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87, 120 S. Ct. 103 (1999), was not so grossly improper as to require the trial court to intervene ex mero motu, id.at 606, 509 S.E.2d at 771. Similarly, where a prosecutor argued during a capital sentencing proceeding that the defendant's psychiatric expert was "'[a] guy who's making fifteen hundred dollars a day is absolutely going to tell you every time you show him a crime like this that it's the result of mental illness. His way of life depends on that. . . . Nobody's paying someone fifteen [*74] hundred dollars a day to [say defendant is sane],'" State v. May, 354 N.C. 172, 180, 552 S.E.2d 151, 156 (2001), we again held that the trial court did not err in failing to intervene ex mero motu, id.at 181, 552 S.E.2d at 157.

Despite this deference, we have advised counsel that such arguments, imputing perjury to a witness on the basis of evidence no more substantial than the mere fact the witness was compensated, are improper. Where the prosecutor argued of the defendant's expert that "'I submit to you, ladies and gentlemen, she's getting paid three thousand dollars to work on this case, she'll say anything he wants her to say,'" State v. Spruill, 338 N.C. 612, 651, 452 S.E.2d 279, 300 (1994), cert. denied, 516 U.S. 834, 133 L. Ed. 2d 63, 116 S. Ct. 111 (1995), we assumed arguendothat the statement was improper, id.at 652, 452 S.E.2d at 300. More recently, where a prosecutor argued that the defendant's mitigating circumstances "'were developed skillfully by the defense experts who go around this State testifying for defendants in capital cases, selling their services and opinions at [*75] rates from $ 75 to $ 125 an hour,'" State v. Hill, 347 N.C. 275, 299, 493 S.E.2d 264, 278 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099, 118 S. Ct. 1850 (1998), we again assumed the argument was improper but not so grossly improper as to entitle the defendant to a new sentencing hearing, id.at 300, 493 S.E.2d at 278. We went on to disapprove of "one of the statements made by the prosecutor," presumably the one quoted above. n2 Id.Although it might be possible to differentiate the particular words in the instant argument from those used in the cases cited above, we would have to slice the salami pretty thin. Accordingly, consistent with our holdings in Murilloand May, we conclude that while the prosecutor's argument that the expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay was improper, it was not so grossly improper as to require the trial court to intervene ex mero motu.

Nevertheless, we are disturbed that some counsel have failed to heed our repeated warnings that such arguments are improper, even if not always grossly so. State v. Smith, 351 N.C. 251, 270, 524 S.E.2d 28, 42, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000). One measure of the professionalism that we expect from litigants in North Carolina courts is the avoidance of all known improprieties. State v. Jones, 355 N.C. 117, 127-28, 558 S.E.2d 97, 104 (2002). Our prior holdings, where the conviction was not reversed on the basis of a prosecutor's improper argument only because of the demanding standard of review, should not be construed as an invitation to trial counsel to try the same thing again. We admonish counsel to refrain from arguing that a witness is lying solely on the basis that the witness has been or will be compensated for his or her services. We also instruct trial judges to be prepared to intervene ex mero motuif such arguments continue to be made. Id.at 128, 558 S.E.2d at 104.

Our inquiry does not end here, however. In the case at bar, the prosecutor went beyond ascribing the basest of motives [*77] to defendant's expert. As detailed above, he also indulged in ad hominemattacks, disparaged the witness' area of expertise, and distorted the expert's testimony. We have observed that "maligning the expert's profession rather than arguing the law, the evidence, and its inferences is not the proper function of closing argument." State v. Smith, 352 N.C. at 561, 532 S.E.2d at 792. "When vigor in unearthing bias becomes personal insult, all bounds of civility, if not of propriety, have been exceeded." Id.Particularly in capital cases, we believe it appropriate to require that practitioners conduct themselves with a probity and dignity consistent with the gravity of the proceedings.

That a prosecutor refrain from improper conduct is especially important in the context of a capital sentencing hearing, where the issue before the jury is whether a human being should live or die and where this decision involves the exercise of the jury's judgment as to how certain aggravating and mitigating circumstances should be weighed against each other.

State v. Sanderson, 336 N.C. at 8, 442 S.E.2d at 38. In light of the cumulative effect of the improprieties [*78] in the prosecutor's cross-examination of defendant's expert and the prosecutor's closing argument, we are unable to conclude that defendant was not unfairly prejudiced. Id.at 15, 442 S.E.2d at 40.

Accordingly, we hold that defendant is entitled to a new capital sentencing proceeding. Because we reach this result, we need not address other issues raised by defendant relating to his sentencing proceeding that are unlikely to recur.

State v. Dellinger, 2002 Tenn. LEXIS 207 (Tenn. 05/07/2002)(dissents) Relief denied on Apprendi/Jones issues but the Dellinger gives a good analysis of what the state must prove to not have a problem with Supreme Court precedent. Other issues include: (a) whether the trial court erred in refusing to grant the defendants a severance or to grant separate juries for each defendant; (b) whether the trial court erred in dismissing the jury selection expert previously granted the defendants; (c) whether the evidence supports the jury's finding of aggravating circumstance (i)(2); (d) whether the trial court erred in refusing to charge the jury as a mitigating factor that the defendants are human beings; and (e) whether the trial court erred in refusing to answer the jury's question about the manner of serving life sentences.

Dellinger and Sutton challenge the constitutionality of their indictments based upon the recent United States Supreme Court decisions in Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In Jones, the Court construed a federal statute and noted that the constitutional guarantees of due process, notice, and trial by jury require that any fact, other than a previous conviction, used to enhance a sentence above the statutory maximum must be: 1) charged in the indictment, 2) submitted to the jury, and 3) proven beyond a reasonable doubt. Jones, 526 U.S. at 243, n.6. In Apprendi, the Court held that the Fourteenth Amendment extends these requirements to cases involving state statutes. Apprendi, 530 U.S. at 476. Dellinger and Sutton maintain that the indictments in this case failed to comply with the Apprendi requirements because the indictments did not contain any facts concerning the Branam murder, which was used as an aggravating factor during sentencing.

The defendants' argument fails for multiple reasons:

1. The specific aggravating factor used to impose the death penalty in this case was a prior conviction. The Apprendi holding applies to enhancement factors other than prior convictions. Id. at 476. The aggravator relied upon by the State here is therefore specifically excluded under Apprendi.
2. The death penalty is within the statutory range of punishment prescribed by the legislature for first degree murder. Tenn. Code Ann. § 39-13-202(c)(1). The Apprendi holding applies only to enhancement factors used to impose a sentence above the statutory maximum. Apprendi, 530 U.S. at 481. It is on this basis that the Court in Apprendi addressed and rejected the concern that the principles governing its decision would invalidate state capital sentencing procedures requiring judges to find aggravating factors before imposing the death penalty. Id. at 496-97. The Court noted that such a sentencing procedure does not allow a judge to determine the existence of a factor making the crime a capital offense. Id. at 497. Instead, the judge is called upon to decide whether the death penalty, the maximum penalty allowable under the capital statute, should be imposed. Id.
3. District attorneys in Tennessee are required to notify capital defendants no less than thirty days before trial of the intent to seek the death penalty and must specify the aggravating circumstances upon which the State intends to rely during sentencing. Tenn. R. Crim. P. 12.3(b). Rule 12.3(b) therefore satisfies the requirements of due process and notice. See State v. Golphin, 533 S.E.2d 168, 395-97 (N.C. 2000) (statute setting forth the aggravating circumstances the jury may consider provides sufficient notice to satisfy the constitutional requirements of due process).
4. Tennessee's capital sentencing procedure requires that a jury make findings regarding the statutory aggravating circumstances. Tenn. Code Ann. § 39-13-204(f)(1), (i). The Apprendi holding applies only to sentencing procedures under which judges sentence the defendants. Apprendi, 530 U.S. at 476.
5. Tennessee's capital sentencing procedure requires that the jury find any statutory aggravating circumstance beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(f)(1), (i). The Tennessee statutes therefore comply with the "beyond a reasonable doubt" standard required by Apprendi. Apprendi, 530 U.S. at 476.

Based upon these distinctions, we hold that the principles of Apprendi do not apply to Tennessee's capital sentencing procedure. Neither the United States Constitution nor the Tennessee Constitution requires that the State charge in the indictment the aggravating factors to be relied upon by the State during sentencing in a first degree murder prosecution.

Jennings v. Woodford, 2002 U.S. App. LEXIS 9034 (9th Cir 5/10/2002)Trial "counsel's failure to conduct any investigation into possible mental defenses was unreasonably ineffective and deprived him of his Sixth Amendment right to the effective assistance of counsel at both the guilt and penalty phases of his capital trial."

II. Counsel's Guilt Phase [*19] Performance

Mr. Jennings argues that Michael Oliver rendered constitutionally ineffective representation during the guilt phase of Mr. Jennings' trial by failing to investigate mental health and drug abuse issues that might have raised reasonable doubt about Mr. Jennings' ability to form the requisite intent to justify a first degree murder conviction and, by extension, the possibility of the death penalty. We look first to Strickland'seffectiveness prong to determine whether Mr. Oliver's representation was sufficient.

Prior to conflicting out of the case, Mr. Jennings' first attorney, Carol Babington, engaged Dr. Hjortsvang, a psychiatrist, to conduct a preliminary interview with Mr. Jennings. Ms. Babington made it clear in her testimony at the district court's evidentiary hearing that this interview - which lasted only two hours - was meant to be preliminary and was not meant to rule out any potential mental defenses. Instead, it was meant as a preliminary assessment of Mr. Jennings' competency and as a tool to establish a baseline for Mr. Jennings shortly after his arrest.

Mr. Oliver, who claims that Ms. Babington told him that petitioner was "Okay," requested no further [*20] investigation and never spoke with Dr. Hjortsvang in person until after the guilt phase of Mr. Jennings' trial.

Nor did he request copies of Mr. Jennings' voluminous medical records.

Nor did he instruct Gail Cates, the paralegal to whom he delegated preparation of the penalty phase, to inquire into possible child abuse in the Jennings family.

Nor did he seek the appointment of additional experts to evaluate Mr. Jennings' mental state or the possible effects of methamphetamine on such a heavy, long-time user, despite the fact that Mr. Oliver knew a syringe had been found in Mr. Jennings' car and that he knew his client had reported to the police that he had been "strung out on goddamn crank for over a year. That's why I was having such a hard time remembering what the hell I was doing and where."

Nor did he discuss the effects of Mr. Jennings' drug use with his client or others who observed him under the influence of methamphetamine.

Nor did he follow up on the report of Theresa Jennings - Mr. Oliver's former divorce client and Mr. Jennings' former wife - that Mr. Jennings had attempted suicide, that a psychiatrist had told her ex-husband he was schizophrenic, and that she believed [*21] he was crazy. n5

Nor did he investigate an incident - of which he had knowledge - in which a judge ordered Mr. Jennings committed involuntarily for psychiatric evaluation because he appeared catatonic.

Nor did he review stacks of medical records - subpoenaed by the district attorney for review by a special master - save to be certain that his client had, in fact, had a vasectomy.

Nor did he look into Mr. Jennings' teenage commitment to a Boys' Ranch for molesting an eight-year-old and a six-year-old.

Although he admits that his tactics might have been different had he not been mistaken about the time of the call made to Ms. Boechne from Ms. Newman's home - a mistake that destroyed an already weak alibi defense - Mr. Oliver claims [*22] he did not conduct any investigation into possible mental defenses because he had settled early on an alibi defense. Although defense counsel is empowered to make such strategic decisions, Stricklanddemands that such decisions be reasonable and informed. Strickland, 466 U.S. at 691 ("Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.").

The district court determined that Mr. Oliver had made a reasonable and informed decision because it concluded that the defense attorney lacked notice that Mr. Jennings had any mental problems and thus had no reason to conduct an investigation. The district court relied on Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), which held that, where nearly twenty hours of mental health evaluation by defense experts revealed no basis for a mental defense, defense counsel was justified in his decision not to conduct further investigation into the matter.

The district court inaccurately analogized the Hendricksfact situation to that of Mr. Jennings. The Hendrickscourt acknowledged what Stricklandmandates: that attorneys [*23] have considerable latitude to make strategic decisions about what investigations to conduct once they have gathered sufficient evidence upon which to base their tactical choices. In Hendricks, the attorney had hired experts who found no evidence of mental disorders after lengthy examination specifically geared toward finding any possible defenses. In the instant case, by contrast, the testimony and declarations of Carol Babington, Dr. Hjortsvang, and even Michael Oliver himself indicate that Dr. Hjortsvang's two hour interview of Mr. Jennings was very preliminary and was not meant to specifically rule out mental defenses; Mr. Oliver ruled out those defenses not because he concluded after reasonable investigation that they were not viable, but because he settled instead on an alibi defense and abandoned all investigation into psychiatric factors.. . .

Mr. Oliver was obliged to thoroughly investigate Mr. Jennings' case in order to determinewhether a mental state defense might have been better than the alibi defense he had "settled on" early. Moreover, the record makes clear that Mr. Oliver was, in fact, on notice about Mr. Jennings' mental health and drug abuse problems.

Mr. Oliver knew, for example, that Mr. Jennings was a long-term methamphetamine addict who had used the drug on the night of the homicide. Mr. Oliver knew his client had told police he had been "strung out" on the drug for over a year. And that he had attempted suicide. And that his ex-wife told police he was "crazy" and had been diagnosed as schizophrenic. And that he had a long history of injuring himself intentionally and pouring liquids in the resulting wounds, thereby causing gangrene. And that he had been involuntarily committed by a judge for psychiatric evaluation. And that he appeared to have been coming off drugs during his videotaped interview with police. And that the newly-minted paralegal Mr. Oliver had hired thought [*26] there was something "seriously wrong" with Mr. Jennings. And that friends and coworkers agreed.

Respondents correctly caution that we must consider the prevailing legal norms at the time Mr. Oliver represented Mr. Jennings. Strickland, 466 U.S. at 689. They point once again to Hendricks v. Calderon, where some twenty hours of expert examination revealed no basis for a mental defense. In Hendricks, we held that, "certainly, in 1981, Hendricks' attorneys did not believe they had any duty to investigate Hendricks' social history in the face of the unanimous opinions of their own experts that there was no basis for a mental defense." Hendricks, 70 F.3d at 1039. Even if we assume, as the district court concluded, that a correct reading of Hendrickswould excuse a failure to investigate where an expert had only been called in to evaluate competence and had only met with the defendant for two hours, as was true in Mr. Jennings' case, that case is inapplicable for one simple reason: Mr. Jennings was not tried in 1981.

Mr. Jennings was tried in California in 1983. Shortly before Mr. Jennings' trial, the California Supreme Court decided People v. Mozingo, 34 Cal. 3d 926, 671 P.2d 363, 196 Cal. Rptr. 212 (Cal. 1983). [*27] The Mozingocourt adopted a referee's finding that "a possible conflict between a diminished capacity and an alibi defense would not excuse counsel's failure initially to investigatethe potential strengths of a 'mental defense' vis-a-vis an uncorroborated alibi defense." Id. at 367 (emphasis in original). Mozingoconcluded that counsel's inaction meant he could not have made informed tactical and strategic decisions, and that "counsel's inadequate representation thereby deprived defendant of a potentially meritorious defense or mitigating circumstance." Id. Mozingothus articulated an effectiveness standard for California attorneys.

Not only was Mozingoavailable to Mr. Oliver, we know for a fact that he was aware of the decision. In Mr. Jennings' case, the prosecutor actually brought Mozingoto the judge's attention, expressing concern that Mr. Oliver had not properly investigated substantial medical records and that the failure could provide grounds for appeal. Confronted with the concern in open court, Mr. Oliver assured the court that he had discharged his duty - a statement that runs counter to Mr. Oliver's admission that he did not in fact review [*28] any of the medical records save those discussing his client's vasectomy.

We find that, even in 1983, the information Mr. Oliver acknowledges he possessed would have put a reasonable attorney on notice that he needed to investigate mental health and drug-related issues more thoroughly when defending a client against a charge - first degree, capital murder - for which raising a reasonable doubt as to intent could be crucial. See, e.g., Seidel, 146 F.3d at 755-56. We also hold that the district court clearly erred in finding that Mr. Oliver made a tactical decision not to conduct any investigation into possible mental defenses. It is within the realm of possibility - consistent with Hendricks- that it would not have been ineffective to make a tactical decision to eschew a mental defense had Mr. Oliver performed a thorough investigation and consulted with his client. But Mr. Oliver did not make such an informed, strategic choice. Because he settled on a very weak alibi defense before conducting any investigation that might have led to a reasoned tactical choice, Mr. Oliver was ineffective within the meaning of Strickland'sfirst prong.

SUPREME COURT

CAPITAL CASES (Favorable Disposition)

In re: State of Alabama v. Larry Eugene Hutcherson, 2002 Ala. LEXIS 135 (AL 5/10/2002) Writ of mandamus can not issue where the state alleges that the condemned filed his post-conviction motion out of time. "The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal."

Mahoney, et al., v. Pataki, 2002 N.Y. LEXIS 1099 (NY 5/7/2002) Although the statute does not specifically mention legal and paralegal assistance fees payment of such fees is proper under the state's death penalty scheme.

CAPITAL CASES (Unfavorable Disposition)

Butler v. Florida, 2002 Fla. LEXIS 876 (FL 5/9/2002) No error on claims relating to the trial court: "(1) permitting the State to elicit testimony concerning prior acts of violence allegedly committed by the defendant; (2) permitting an unqualified expert witness to testify concerning DNA evidence; (3) denying the defense motion for a new trial following the discovery of a probation violation report on one witness that was not disclosed by the State; (4) instructing the jury that the only proposed statutory aggravating circumstance had been established by the evidence; (5) failing to consider a statutory mitigating circumstance proposed by the defense during the penalty phase; and (6) imposing a death sentence that is excessive, disproportionate, and cruel and unusual punishment under the United States and Florida Constitutions."

People v. Koontz, 2002 Cal. LEXIS 2882 (CA 05/09/2002) Trial court did not error, most notably, in its procedures permitting self-representation and doubts about appellant's mental capacity to represent himself did not amount to doubt about his competency to stand.

Green v. Maynard, 2002 S.C. LEXIS 79 (SC 5/6/2002) "Petitioner's argument that our decision in his direct appeal was "a legal fluke" is without merit." "Petitioner claims this decision applied new law and, further, it was law that was applied only to him in light of our subsequent decision(s)."

Smith v. Texas, 2002 Tex. Crim. App. LEXIS 98 (5/8/2002 Tex. Crim. App.) Relief denied on challenges to the legal sufficiency of the evidence to support the future dangerousness issue and on the argument that the Court of Criminal Appeals "nullify the third punishment hearing under the doctrine of collateral estoppel because the trial court did not submit a deliberateness issue to the jury following the punishment phase of the second trial." Delay in execution does not render the sentence of death impermissible.

Van Poyck v. Moore, 2002 U.S. App. LEXIS 8877 (11th Cir 5/9/2002) Relief denied on questions as to: "1) whether Petitioner received ineffective assistance of counsel during the penalty phase of his trial; 2) whether the trial court erred when it denied Petitioner a continuance between the guilt and penalty phases of his trial; 3) whether Petitioner received ineffective assistance of counsel during appellate proceedings; 4) whether the trial court failed to consider properly all of the mitigating evidence before it; 5) whether Petitioner's sentence is based on an invalid aggravating factor; and 6) whether the state withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)."

Workman v. Campbell, No. M2001-01445-COA-R3-CV (Tenn.App. 05/07/2002) State law does not provide condemned prisoners a right to have their personal religious ministers present at all times leading up to their execution, nor does it require a prison warden to provide condemned prisoners with such a right.

Granados v. Texas, 2002 Tex. Crim. App. LEXIS 99 (5/8/2002 Tex. Crim. App.) The Court denies relief based upon introduction of certain crime scene evidence and statements by a police officer introduced at a hearing on appellant's motion to suppress the crime scene evidence. Relief also denied on a juror's explicit use of scripture during deliberations in the penalty phase.

Walker v. Mississippi, 2002 Miss. LEXIS 171 (MS 5/9/2002) Conviction affirmed on return from remand on Batson error. Prior vacateur of death sentence upheld.

OTHER NOTABLE CASES

Caanova v. DuBois, No. 99-1838 (1st Cir 05/06/2002) Although prisoners/appellants failed to sign a notice of appeal based on dismissal of confinement conditions claims, appellate jurisdiction was proper once this technical error was corrected but remand ordered for purposes of clarifying whether administrative remedies have been exhausted.

United States v. Emmanuel, No. 00-7578 (4th Cir 05/07/2002) Prior to converting a mislabeled or unlabeled post-conviction motion into the movant prisoner's first 28 U.S.C. section 2255 motion, a district court should give the movant notice of its intent to so construe the motion (and the resulting consequences), and an opportunity to supplement or amend the motion to reflect all grounds for post-conviction relief that the movant wishes to raise.

United States v. Battle, No. 01-3154 (10th Cir 05/08/2002) De minimis effect on interstate commerce sufficient for a conviction for robbery under 18 U.S.C. §1951 was appropriate

Castro v. United States, No. 01-12181 (11th Cir 05/07/2002) District court re-characterized appellant's prior motion as a petition under 28 U.S.C. § 2255 and therefore any subsequent attempt to file a section 2255 petition ws a "second or successive" petition

People v. Loyd(05/06/02 - No. S092653) Secret monitoring and recording of an inmate's unprivileged jail conversations with her visitors did not amount to prosecutorial misconduct.

AMENDED OR DELAYED PUBLICATION CASES

In re: Shonelle Jackson v. State of Alabama, 2002 Ala. LEXIS 133 (AL 05/10/2002) Override jury recommendation of life imprisonment without the possibility of parole, which was unanimous upheld. No error in granting the State's motion in limine that prevented Jackson, from presenting motive evidence.

FOCUS

To return next week.

OTHER NEWS

TheDeath Penalty Information Centerreports:

NEW RESOURCES: Reform Judaism Magazine Addresses

Capital Punishment

The 2002 edition of Reform Judaism Magazine examines the question of whether or not Judaism condones capital punishment. An article by Rabbi Dan Polish, Director of the Joint Commission on Social Action of Reform Judaism, explores the faith's historical reasoning for opposing capital punishment. Rabbi Polish notes, "The thrust of the Jewish tradition and the historical positions of the Reform Movement impel us to oppose capital punishment in principle and in practice. A person wrongfully flogged for robbery can heal. A person improperly imprisoned for murder can be exonerated and set free. But someone put to death for a crime he/she did not commit can never be redeemed." (Reform Judaism Magazine, Summer 2002.) See also, New Voices, Articles, and Statements.

New York Times Column Highlights Arbitrariness of the Death Penalty

In a recent New York Times op-ed, Bob Herbert writes:

Awareness of the myriad problems with the death penalty is mounting. More and more individuals and organizations are expressing concern about the danger of executing the innocent, the problems of bias and incompetent counsel, the ethical questions involved when defendants are mentally impaired or were juveniles at the time of the crime, and so on. It is becoming ever more obvious that whether or not you get the death penalty depends a great deal more on who you are than what you did.

We're very selective with the death penalty. Only certain types qualify. Which stands the whole idea of equity and justice on its head.(New York Times, May 13, 2002). Read the entire article; see also, Recent Articles on the Death Penalty.

New Voices: Stuart Taylor on the Innocence Protection Act

In a recent Legal Times article, Stuart Taylor writes, "Congress and the President have a chance this year to show that they care as much about avoiding the execution (and imprisonment) of innocent defendants as they do about punishing the guilty ones. They can adopt the Innocence Protection Act, a bipartisan proposal co-sponsored by death penalty supporters and opponents who agree that you can be tough on crime without punishing innocent people." The IPA legislation, which has bipartisan support in Congress, aims to provide prisoners with improved access to DNA evidence and to ensure that indigent defendants in capital cases have competent lawyers. (Legal Times, April 24, 2002). See also, Recent Legislative Activity and Innocence.

Judge Says Federal Death Penalty May Be Unconstitutional

U.S. District Court Judge Jed S. Rakoff said he was ready to declare the federal death penalty unconstitutional on the ground that innocent people are being sentenced to death "with a frequency far greater than previously supposed." In an order regarding the death penalty eligibility of two men facing capital charges, Rakoff wrote:

We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible. That innocent people are convicted of capital crimes with some frequency. Fortunately, as DNA testing illustrates, scientific developments and other innovative measures (including some not yet even known) may enable us not only to prevent future mistakes but also to rectify past ones by releasing wrongfully-convicted persons -- but only if such persons are still alive to be released. If, instead, we sanction execution, with full recognition that the probable result will be the state sponsored death of a meaningful number of innocent people, have we not thereby deprived these people of the process that is their due?

If the court were compelled to decide the issue today, it would . . . grant the defendants' motion to dismiss all death penalty aspects of this case on the ground that the federal death penalty statute is unconstitutional.

Judge Rakoff is giving federal prosecutors an opportunity to present arguments on the subject before he issues his final ruling in late May. (U.S. v. Quinones, 2002 U.S. Dist. Lexis 7320). Read the Opinion. See also, Innocence.

Support for the Death Penalty Remains Low After 9-11

A recently released ABCNews.com poll revealed that public support for the death penalty remains virtually unchanged from before the tragedy of September 11th, and it is still considerably lower than it was in 1994.The ABCNEWS.com poll found that 65% of Americans support the death penalty when no alternative is offered. When given the sentencing option of life without the possibility of parole, only 46% of Americans support the death penalty. This number is unchanged from April 2001 poll data. (ABCNEWS.com, May 7, 2002). See also, Public Opinion and Life Without Parole.

Texas, Missouri Schedule Execution Dates for Four Juvenile Offenders

Three juvenile offenders in Texas and one in Missouri have been given execution dates during the coming months. The first juvenile offender scheduled for execution in 2002 is Napolean Beazley in Texas (May 28). His execution date is followed by that of Chris Simmons in Missouri (June 5, see below), T.J. Jones in Texas (August 8), and Toronto Patterson in Texas (August 28). The U.S. is one of only two countries (along with Somalia) which have not ratified the Convention on the Rights of the Child, which forbids such executions. See also, American Bar Association Juvenile Justice Center, and Juveniles and the Death Penalty.

Moratorium Secures Maryland's Place Among Non-Executing States

During a press conference to announce Maryland's moratorium on executions, Governor Parris Glendening stated," It is imperative that I, as well as our citizens, have complete confidence that the legal process involved in capital cases is fair and impartial." (Associated Press, May 9, 2002). The questions of fairness that led to Glendening's action are shared by many of the 25 states that have not had an execution for at least five years or that currently have a moratorium in place. In addition to the 2 states with a moratorium (MD, IL), 12 states do not have any death penalty (AK, HI, IA, ME, MA, MI, MN, ND, RI, VT, WV, WI, plus DC), 6 states have not had an execution since the reinstatement of the death penalty in 1976 (CT, KS, NH, NJ, NY, SD), and 5 states have not had an execution in the past five years (CO, ID, MS, OR, WY). Since the reinstatement of the death penalty, 80% of all U.S. executions have taken place in the South. See also, Executions.

Maryland Governor Imposes Moratorium on Executions

Maryland Governor Parris Glendening announced the nation's first state-wide death penalty moratorium since Illinois halted executions more than two years ago. Glendening said that the moratorium will remain in place until a death penalty study regarding racial bias is completed and the legislature has had an opportunity to review its findings. Maryland Lt. Governor Kathleen Kennedy Townsend, who has declared her candidacy to succeed Glendening, recently announced her support for the moratorium. She noted that it would be "tough to have a report come out and say this wasn't fair knowing that while the report was going on, that people were executed." (Associated Press, May 9, 2002). See also Governor Glendening's Statement, Moratorium Now! Press Release and Illinois Commission on Capital Punishment.

New Voices: Illinois Commission Chair Questions Wisdom of "Fixing" Death Penalty

Thomas Sullivan, a former U.S. Attorney and Co-Chair of the Illinois Commission on Capital Punishment, stated that spending millions of dollars to salvage Illinois's broken death penalty system would be a "misuse of public funds." It would cost millions of dollars to implement many of the 85 recommendations issued last month by the blue-ribbon Commission appointed by Governor George Ryan in 2000. Sullivan noted that it would be wiser to invest the public's tax dollars into other areas, such as education and rehabilitation. "You have to look at the cost of putting that money into what really is just a few cases," he said. (Associated Press, May 7, 2002). See also, Illinois Commission on Capital Punishment and Costs.

Texas Demands Child Support Payment from Exonerated Death Row Inmate

Despite the fact that Clarence Brandley was wrongfully held on Texas's death row for 9 years, the state is requiring him to pay child support for that time. While Brandley's children are now adults, Texas is demanding that his employer deduct weekly child support back-payments from his salary for the next five years. The Texas Attorney General's Office child support division claims that the "special circumstances" of Brandley's wrongful conviction do not supersede his obligation to make the payments, which were current when he was arrested for murder more than 20 years ago. Brandley's conviction was thrown out when State District Judge Perry Picket said that in his 30 years on the bench, "no case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation (and) an investigation the outcome of which was predetermined." (Amarillo Globe-News, April 28, 2002). See also, Innocence.