This edition offers five capital cases, four losses and one win. Two cases are juxtaposed "In Focus" this week on the issue of inflammatory closings by prosecutors,Hill v. Moore (Eleventh Circuit) and Shurn v. Delo (Eighth Circuit).

Moland v. Scott(Fifth Circuit),Weeks v. Angeleone(Fourth Circuit) andLingar v. Bowersox (Eighth Circuit)are all losses and, in the two former cases, heavy on procedural default. Finally, in the good news of the week,Ronald Jones walked out of incarceration this week as a free man in Illinois, the twelth in twelve years & the fourth since the beginning of the year (DPIC offers full details) .

In Focus

Hill v. Moore Eleventh Circuit, finding numerous issues procedurally defaulted, holds that no error is to be had on claims arising out of failure to introduce evidence of the amount of cocaine ingested on the day of the murders, failure to call a a crucial witness to the stand, that the Florida Supreme Court conducted a deficient harmless error analysis after striking one of the aggravating factors found by the trial judge in imposing the death sentence; that the trial court erred (and the supreme court failed to cure the error) in not placing in the sentencing balance all of the non- statutory mitigating evidence petitioner presented; that his counsel's performance was constitutionally deficient; that the trial court improperly refused to permit petitioner to present certain mitigating evidence to the jury, in violation ofLockett v. Ohio,438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); that the trial court failed to instruct the jury on the statutory mitigating circumstance of "substantial domination,"seeFla. Stat. ch. 921.141(6)(e) (1997); and that the prosecution made improper remarks in the presence of the jury that rendered petitioner's sentence unreliable and thus fundamentally unfair. While most of these claims are dismissed in a near summary manner, the juxtaposition of the Eleventh Circuit's holding and that of the Eighth Circuit this week on the issue of inflammatory closings is instructive:

Finally, petitioner contends that the prosecutor made improper and inflammatory comments before the jury during the sentencing phase of his trial. The prosecutor told the jury that petitioner did not deserve the same life sentence Jackson received because petitioner elected to stand on his not guilty plea and to put the State to its proof at a trial. The prosecutor ended his closing statement with the following remarks:

I want to end with this, if I can have one minute to tell you this. The more things change, the more they stay the same. And in America things haven't changed. Processes have changed a lot, but things are still the same. 150 years ago if the defendant left a town and stole a horse to come over to Pensacola, some desperado robbing a woman of the horse and he rode here with a companion, and they robbed a bank in the main street of the town, and they were seen by . . . many people in the main street of town, and the deputy sheriff came up to arrest the defendant's buddy, and the defendant shot the deputy in the back, they would have strung him up from the nearest tree that day.

Now, the process has changed. He now has a jury trial. It's now taking years to do it, but things still remain the same. The crime calls for the sternest punishment for killing the deputy. He must hang from a tree. We're more merciful now. We'll shock him until he's dead. But that is the sentence that is appropriate in this case under the law. Thank you.

The State has not contended that such comments were appropriate; rather, it's position is that the comments, if misguided, were harmless. The district court agreed, stating: "[t]here being no reasonable probability that, but for the prosecutor's improper remarks, the verdict or sentence would have been different, Hill's request for habeas corpus relief on the basis of improper prosecutorial comment must be denied."

The prosecutor's comments certainly were crass and manifestly inappropriate; they did not, however, so taint the proceedings as to render petitioner's death sentence constitutionally deficient. There was ample evidence in the record to support a sentence of death, and the trial judge charged the jury to make its decision on the basis of the evidence alone. That being the case, we will not upset the determination of the Florida Supreme Court that the prosecutor's conduct did not affect petitioner's sentence.

982456P.pdf Shurn v. Delo Eighth Circuit, after turning aside what it deemed a close "Batson" claim, holds improper comments by prosecutors urging jury to kill shurn required court to vacate the death sentence and order a new penalty phase trial. In relevant portion:

We turn now to Shurn's claim that the prosecutor's penalty-phase closing argument violated due process. This requires us to determine whether Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989), controls the disposition of the case. In Newlon, this court determined that the prosecutor's improper penalty-phase closing argument violated due process and required reversal of the death sentence. To facilitate the analysis we now set forth the relevant portions of the arguments in each case as follows:

Closing Argument in Newlon: At the very worst, if it doesn't [deter], you have simply given Rayfield what hedeserves and that's an "eye for an eye and a tooth for a tooth." You know–when I talk about sending out a message-well, I know the Charles Mansons wouldn't hear the message, or the Richard Specks or the "sons of Sam"-those kinds of people wouldn't hear it because those people are insane-legally responsible for what they did, but they wouldn't get this kind of message, and in the same-a truer fashion, he's not insane. This was simply a business venture-you know, he didn't hear any strange voices speaking to him, he just wanted some money, ... Killing in self-defense is not bad; killing in war is not bad; taking Rayfield Newlon's life is not bad. If Rayfield was going to harm your child, would you kill him? Would you have prevented this killing if you'd been in the Conveniency store with a gun, and you could have saved Mr. Dave's life? Would you have killed Rayfield? I think you would have-at least, I hope you would have had the courage to do either one of those. If you think you would have, kill him now. Kill him now.

I've been a prosecutor for ten years and I've never asked a jury for a death penalty, but I can tell you in all candor, I've never seen a man who deserved it more than Rayfield Newlon. Today I'm talking to you as Prosecuting Attorney of this County-the top law enforcement officer in St. Louis County.

Id., at 1339-42.

Closing Argument at Shurn's Trial: I'm asking you to take an eye for an eye. The Old Testament--that still appliestoday. There are times it's appropriate in my opinion. This is one of them. Passion killings you're never going to deter. The Charles Mansons of the world, you're not going to deter them. They are crazy. Charles Manson was nuts. He deserves to spend the rest of his life in prison. Some of you wouldn't want to kill him, nonetheless, because he's a sick, sick person. But he would not hesitate to kill. I would give him the death penalty, but I can see where some people wouldn't. But certain people, their crimes are so deviant that you say we'll just put you away. But this was a business decision. This is the kind of crime that can be deterred. You know, it's not always wrong to kill. It's maybe always difficult to kill; but if you kill in self-defense, that's not wrong. If you kill in a just war, that is not wrong. It's right. If somebody is going to kill your child and you have a chance to kill them to prevent it, would you do it? Of course. Kill Daryl Shurn.

I'm the top law enforcement officer in this county and I'm the one that decides in which cases to ask for the death penalty and which cases we won't. You people have to tell me: Is this an appropriate case or isn't it? You're the community. You represent society. You represent all those potential witnesses out there that have the courage tocome forward. You have totell me: Is this a case where I should ask for the death penalty or am I wasting my time? You're the community.

I'm telling you there's no case that could be more obvious than Daryl Shurn's and William Weaver's was.

Tr. Vol. III at 1165-66, 1168, 1171-72.

In Newlon the district court determined that the argument improperly "(1) expressed [the prosecutor's] personal belief in the propriety of the death sentence and implied that he had special knowledge outside the record; (2) emphasized [the prosecutor's] position of authority as prosecuting attorney of St. Louis County; (3) attempted to link [the defendant] with several well-known mass murderers; (4) appealed to the jurors' personal fears and emotions; and (5) asked the jurors to 'kill him now. Kill him now.'" Newlon, 885 F.2d at 1335. As we observed, the district court held that the argument infected the penalty proceeding with an unfairness that violates due process. The remarks were neither isolated nor ambiguous. . . . By contrast, the jury was subjected to a relentless, focused, uncorrected argument based on fear, premised on facts not in evidence, and calculatedto remove reason and responsibility from the sentencing process. This constitutional error requires that the sentence of death be vacated. Id. at 1338.

We approved of the district court's ruling. We determined that the argument was "filled with improper statements" and that, considered in its entirety, the argument was "obviously improper and prejudicial." Id. at 1337. We held that the argument violated due process and affirmed the reversal of the death sentence. Id. at 1336 n. 9. At Shurn's trial, the same prosecutor gave essentially the same argument that required reversal of the death sentence in Newlon. The district court attempted to distinguish the arguments, but we view them as indistinguishable. The prosecutor emphasized his position of authority and expressed his personal opinion on the propriety of the death sentence. He attempted to link Shurn with Charles Manson, a well-known mass murderer. He appealed to the jurors' fears and emotions and told them to kill Shurn. The arguments differed slightly in degree but not in emphasis. As in Newlon, the prosecutor's argument was "filled with improper statements" and was "obviously improper and prejudicial." The similarity of the arguments renders Newlon dispositive.

Though improper, the argument does not require reversal of the sentence unless it amounted to prejudicial error. This requires determining whether a reasonable probability exists that the error affected the outcome of the penalty phase. Id., at 1338. In our view, the argument amounted to prejudicial error. The state did not prove that Shurn did the shooting. The jury disagreed on punishment. Consequently, we must assume it likely that the jury would have sentenced Shurn to life imprisonment rather than death if not exposed to the improper argument. We hold that the prosecutor's penalty-phase closing argument violated due process and requires reversal of the death sentence. In Missouri, first degree murder carries a punishment of death or life imprisonment without eligibility for probation or parole. Mo. Rev. Stat. § 565.020(2). We therefore remand with instructions for the district court to issue a writ of habeas corpus releasing Shurn from the death sentence and ordering the State of Missouri either to sentence Shurn to life imprisonment without eligibility for probation or parole or to grant Shurn a new penalty-phase trial.

Capital Cases

Moland v. ScottFifth Circuit denies relief on allegations related to, in relevant part, failure to take a plea. TheCourt writes:

Moreland's specification of ineffective assistance has two distinct aspects; indeed he rolls two claims into one. First, Moreland urges that Bandy was ineffective in that his plans to become district attorney created a conflict of interest. Second, Moreland argues that Bandy was ineffective in urging him to reject the bargain based on Bandy's judgment that an appellate court would overturn any conviction resulting from a finding of guilty. Bandy's judgment proved to be wrong. Our question is whether that judgment was beyond the range of competence demanded by the Sixth Amendment. If it was not, that is the end of the matter. Whatever role the prospect that Bandy would be the district attorney played in Moreland's decision to reject the bargain, the possibility of Bandy's official influence was never realized because Moreland's appeal was rejected. The risk Moreland took in declining the plea bargain was the likelihood of appellate success, and he took it believing counsel's prediction about his chances on appeal would prove to be accurate. Thus, our inquiry focuses on the soundness of that advice.

Bandy had to evaluate the chances of persuading the appellate courts that Moreland's statements to the police should not have been admitted. Moreland did not prevail, but he had a strong argument. After holding the case for ten years, the Texas Court of Criminal Appeals found, as predicted, that Moreland's arrest was illegal under state law and that the admissibility of Moreland's confession turned on whether the taint from the arrest was sufficiently attenuated. In answering this determinative question the court applied a test with four factors: (1) whetherMirandawarnings were given; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct.Moreland v. State, No. 69,223 (Tex. Crim. App. Jan. 13, 1993) (unpublished) at 14. The court held that two of those four factors "weigh[ed] heavily in appellant's favor."Moreland v. State, slip op. at 14. However, it then affirmed. Bandy's alleged prediction, although ultimately incorrect, was not very far wrong. Before ultimately holding against Moreland on his complaint, the Court of Criminal Appeals observed that inBell v. State, 724 S.W.2d 780, 790 (Tex. Crim. App. 1986), it had "concluded that the taint of an illegal arrest was unattenuated with respect to appellant's first confession where, just as [in Moreland's case], the first and fourth . . . factors militated in favor of the State and the second and third factors `militate[d] heavily against admission of [the] confession.'"Moreland v. State, slip op. at 16. Thus, Moreland's appeal proved to be a close case, but not a winner. We conclude that Bandy's advice was not unreasonable, but in reaching this judgment, we have assumed the truth of Moreland's factual assertions regarding his counsel's advice. We turn now to that assumption.

Magistrate Judge Robert W. Faulkner found that Moreland's claims about Bandy's advice were not credible, and we agree. In a careful opinion, Judge Faulkner pointed out that the claims at issue here regarding Bandy's advice were not made until after Bandy's death and that the claims are silent about Skelton, Bandy's co-counsel. Indeed, after Moreland's conviction in October 1983, the extent of Moreland's ineffective assistance allegation in his pro se motion was that counsel had "failed to inform him of the benefits of accepting an agreed plea bargain."

A review of the record reveals that Moreland's initial basis for his ineffective assistance claim was without merit. At the outset of the trial Moreland was examined on the record outside the jury's presence by counsel and the presiding state trial judge regarding Moreland's understanding of the tendered plea bargain. The transcript records a detailed examination of Moreland's understanding, including the following exchange:

THE COURT: And the Board of Pardons and Paroles has certain policies and procedures, and they change from time to time?

DEFENDANT: Yes.

THE COURT: You understand that?

DEFENDANT: (Nods head up and down.)

THE COURT: What I'm telling you is, that nobody can tell you for sure how long you will stay in prison if you take the plea bargain; you may stay less.

DEFENDANT: Less than fifteen?

THE COURT: Then -- no, less than what Mr. Skelton said, or more.

DEFENDANT: Okay. Yes, I understand that.

THE COURT: Knowing that, you still wish to turn down the plea bargain?

DEFENDANT: Yes, sir.

Judging counsel's performance without benefit of hindsight,seeStrickland, 466 U.S. at 689, we cannot saythat Bandy's advice, even strongly put, to decline the bargain was objectively unreasonable. The purchase of Bandy's plan to become the district attorney with its prospect of a less hostile climate turned on the outcome of Moreland's appeal -- and did not affect those chances. Nor did it add much persuasive force to Bandy's advice to reject the plea. If the appeal had succeeded, the original plea bargain or better would have been available -- whether or not Bandy was the district attorney at the time. At least that is areasonable judgment. We reach this judgment even if we assume that Moreland's present factual assertions regarding the rejected plea bargain are credible, and, as the trial judge below, we are not persuaded that they are.

Weeks v. AngeleoneFourth Circuit penalty phase jury instructions, claims arising under Ake v. Oklahoma, procedural default arising out of the contemporaneous objection rule and editorial decisions forced by the Virginia Supreme Court's limitation to fifty pages of the direct appeal brief, as well as default of several ineffective assistance of counsel claims arising out the filing out of time a state post-conviction motion as the petition was filed by certified instead of first class mail. As to the penalty phase jury instructions:

A.

During the penalty phase of Weeks's trial, the trial court gave the jury a lengthy sentencing instruction (Instruction #2).The trial court denied Weeks's proffered instruction, C1, which instructed the jury that it had the option to give effect to the mitigating evidence and sen- tence Weeks to life in prison even if it found the Commonwealth had proved one or both of the aggravating factors beyond a reasonable doubt. During its penalty phase deliberations, the jury asked the court whether it was their duty to issue the death penalty if they found that Weeks was guilty of one of the aggravating factors, or whether they must decide whether or not to issue a death sentence even after find- ing that one of the aggravating factors had been met. Rather than issu- ing a clarifying instruction, the trial court instructed the jury by written response to see the second paragraph of Instruction #2, which read as follows:

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt either of the two alterna- tives, and as to that alternative you are unanimous, then youmayfix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then youshallfix the punishment of the defendant at life imprisonment or imprisonment for live [sic] and a fine of a specific amount, but not more than $100,000.00.

(J.A. at 264 (emphases added).) The trial court overruled Weeks's objection and request that the jury be instructed that it could impose a life sentence upon finding one or both aggravating factors based upon its belief that the jurors "just have to be drawn to that paragraph to find their answer." (J.A. at 1344.) Following several more hours of deliberation, the jury sentenced Weeks to death.

The Supreme Court of Virginia rejected Weeks's claim, contained in assignment of error no. 44, that the trial court's actions prevented the jury from considering relevant mitigating evidence on the ground that Weeks "effectively presents no argument in support of" his claim.Weeks v. Commonwealth, 450 S.E.2d 379, 383 (Va. 1994). The Com- monwealth argues that this dismissal is procedural and that Weeks has procedurally defaulted any objection to the trial court's response to the jury's question about its sentencing options.

We disagree with the Commonwealth's characterization. First, in the sentence at the end of the same paragraph that states that Weeks "effectively presents no argument in support of,"inter alia, assign- ment of error no. 44, the Supreme Court of Virginia concluded, "We have considered these so-called arguments andfind no meritin any of [them]."Id.(emphasis added). Second, the Supreme Court of Vir- ginia stated the following near the end of its opinion: "[D]efendant raises a number of miscellaneous issues dealing with evidence, jury instructions, and inquiries by the jury during its deliberations. We have considered all the arguments in support of these issues and con- clude thatnone has any merit."Id.at 390 (emphasis added). Because Weeks's jury made two inquiries and Weeks's brief to the Supreme Court of Virginia made two assignments of error (nos. 43 and 44) regarding the court's response to jury instructions, the Supreme Court of Virginia's use of the term "inquiries," must have referred to both assigned errors nos. 43 and 44. The Supreme Court of Virginia there- fore adjudicated assigned error no. 44 on the merits, allowing us to review this claim in a federal habeas proceeding.See Wright v.Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998) (holding that a per- functory decision constitutes an adjudication on the merits).

Where, as here, the state supreme court has adjudicated a claim on the merits but has given no indication of how it reached its decision, a federal habeas court must still apply the AEDPA standards of review.See id.A state court's perfunctory decision is reasonable if it "`is at least minimally consistent with the facts and circumstances of the case.'"Id.at 157 (quotingHennon v. Cooper, 109 F.3d 330, 335 (7th Cir.),cert. denied, 118 S. Ct. 72 (1997)). Therefore, the writ will not issue unless we determine that the Supreme Court of Virginia's disposition of this claim was either contrary to federal law as deter- mined by the Supreme Court or an application or interpretation of Supreme Court precedent "that reasonable jurists would all agree,"Green v. French, 143 F.3d 865, 870 (4th Cir. 1998), was not "`mini- mally consistent with the facts and circumstances of the case,'"Wright, 151 F.3d at 157 (quotingHennon, 109 F.3d at 335).

B.

The Eighth Amendment requires that a capital jury be able to con- sider and give effect to all relevant mitigating evidence offered by the petitioner.See Eddings v. Oklahoma, 455 U.S. 104, 112-14(1982);Lockett v. Ohio, 438 U.S. 586, 604(1978). Evidence about the peti- tioner's background and character is necessary for the sentencer "to make an individualized assessment of the appropriateness of the death penalty."Penry v. Lynaugh, 492 U.S. 302, 319(1989). In determining the validity of a challenged instruction, the instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge."Cupp v. Naughten, 414 U.S. 141, 147(1973). InBoyde, 494 U.S. 370, the Supreme Court fleshed out these principles, holding that the proper inquiry in cases where a capital sentencing instruction allegedly prevents the consideration of mitigating evi- dence is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consider- ation of constitutionally relevant evidence."Id.at 380. Applying this rule to the petitioner's case inBoyde, the Supreme Court concluded that there was not a reasonable likelihood that the challenged instruc- tion prevented the consideration of mitigating evidence, in light of the fact that the instruction told the jury that "you shall" consider "[a]ny other circumstance which extenuates the gravity of the crime" and that the jury was presented with four days of evidence at the penalty phase relating to Boyde's background and character.Id.at 381;seeid.at 381-84.

Applying theBoydeinquiry inBuchanan v. Angelone, 118 S. Ct. 757 (1998), the Supreme Court upheld the constitutionality of the Vir- ginia pattern capital sentencing instruction, the very instruction at issue in this case, against a challenge on Eighth and Fourteenth Amendment grounds. The Supreme Court first noted that "the sen- tencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. However, the State may shape and structure the jury's consideration of mitiga- tion so long as it does not preclude the jury from giving effect to any relevant mitigating evidence."Buchanan, 118 S. Ct. at 761 (internal citations omitted). The Court further held, in pertinent part:

The instruction did not foreclose the jury's consideration of any mitigating evidence. By directing the jury to base its decision on "all the evidence," the instruction afforded jurors an opportunity to consider mitigating evidence. The instruction informed the jurors that if they found the aggra- vating factor proved beyond a reasonable doubt then they "may fix" the penalty at death, but directed that if they believed that all the evidence justified a lesser sentence then they "shall" impose a life sentence. The jury was thus allowed to impose a life sentence even if it found the aggra- vating factor proved.

Id.at 762. The Supreme Court concluded that"[e]ven were we to entertain some doubt as to the clarity of the instructions," the two days of testimony related to mitigating evidence and the extensive arguments of the defense and the prosecution on the effect such evi- dence should be given in the sentencing determination demonstrated that there was "not a reasonable likelihood" that the instructions had precluded the jury's consideration of Buchanan's mitigating evidence in violation ofBoyde.Id.at 762-63.

Given the Supreme Court's decision inBuchanan, Weeks is reduced to arguing that the trial court's failure to clarify a constitu- tionally sufficient instruction violated his Eighth and Fourteenth Amendment rights because the jury's question placed the trial court on notice that it was reasonably likely that the jury would apply the instruction in a way that prevented the consideration of mitigating evidence. We find this argument to be without merit. Following the jury's finding of guilt on the capital murder charge, Weeks presented mitigating evidence as to his religious upbringing, the abrupt manner in which the events surrounding the shooting unfolded, and his feel- ings of remorse. Defense counsel argued extensively that the jury should give this mitigating evidence great weight in the sentencing determination. "[W]e think it unlikely that reasonable jurors would believe the court's instructions transformed all of this favorable testi- mony into a virtual charade."Boyde, 494 U.S. at 383(internal quota- tion marks omitted). In fact, the verdict form the jury returned specifically noted that in fixing Weeks's punishment at death, the jury "considered the evidence in mitigation of the offense." (J.A. at 258, 1345-46.) At the conclusion of the penalty phase, following the announcement of the verdict in open court, each member of the jury was polled and confirmed the verdict.

Under these circumstances, we believe that no reasonable juror would have understood the sentencing instruction to preclude the con- sideration of mitigating evidence even upon a finding of an aggravat- ing factor. The Supreme Court of Virginia's summary disposition of this claim, therefore, was neither contrary to federal law as interpreted by the Supreme Court of the United States nor an application or inter- pretation ofBoyde"that reasonable jurists would all agree,"Green, 143 F.3d at 870, was not "minimally consistent with the facts and cir- cumstances of the case,"Wright, 151 F.3d at 157

963609P.pdf Lingar v. Bowersox Eighth Circuit a split panel holds , harmless error to admit evidence of homosexuality at penalty phase; not ineffective assistance to concede guilt to second-degree murder; evidence showed attorney conducted reasonable investigation; not unreasonable for attorney not to present evidence of mental functioning; claim of actual innocence does not affect mitigation only eligibility for death penalty. In relevant portion:

Lingar also contends his attorney did not know a capital defendant is entitled to introduce any relevant mitigating evidence proffered in support of a sentence less than death, see Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality), and thus, his attorney did not present available nonstatutory mitigating circumstances. According to Lingar,during penalty-phase closing arguments, his attorney told the jury it could not consider nonstatutory mitigating factors. Lingar contends his attorney’s erroneous belief that he could not present nonstatutory mitigating evidence prevented him from more thoroughly investigating such evidence.

Contrary to Lingar’s selective quotation from defense counsel’s closing argument, the record shows Lingar’s trial attorney knew he could present nonstatutory mitigating evidence and did so. Indeed, both Lingar’s trial attorney and the written instructions told the jury it could consider nonstatutory mitigating evidence. The mitigating circumstances instruction said:

If you decide that one or more sufficient aggravating circumstances exist to warrant the imposition of death . . . you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating circumstance or circumstances so found to exist. In deciding that question, you may consider . . .

1. Whether the defendant has no significant history of prior criminal activity.

2. Whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.

3. The age of the defendant at the time of the offense.

You may also consider any circumstances which you find from the evidence in mitigation of punishment.

Lingar’s attorney explained the instruction in his closing argument. He said:

The jury instructions tell you . . . in order to consider death, you must find what is called an aggravating circumstance. But even if [you do], [you must then decide whether there are] any mitigating circumstances. And by mitigating circumstances, . . . the defendant is limited to what the statutory mitigating circumstances are. We may have other mitigating circumstances but they are not involved in the statute and we’re not allowed to present them. In Instruction No. 17 there is a list of the mitigating circumstances that we believe the evidence justifies. One is that there is no prior criminal history of this defendant. . . . Two is whether the capacity of the defendant to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired [by alcohol]. . . . [This] is a mitigating circumstance provided by the law. . . . These are things that are set out in the statute. Number three, the law says that you can consider the age of the defendant at the time the crime was committed. . . . The instruction also says that you can consider other evidence. What other evidence is there to consider in either sparing or taking the life of Stanley Lingar. I think there was evidence [from] the defendant’s mother and father and sister [about] what kind of an individual Stanley Lingar was up until [the night of the crime]. I think that you all can remember that testimony and I hope that you’ll consider that when you make your determination as to whether or not to take the life or spare a life.Trial Trans. at 437-39.

In context, Lingar’s attorney told the jury that although only the statutory mitigating circumstances were specifically listed in the jury instruction, the jury could consider other unlisted mitigating evidence like the testimony of Lingar’s family. Counsel’s argument makes clear that the jury can consider circumstances that are not enumerated in the instruction, and counsel asked the jury to do so. Even if counsel misstated the law rather than clumsily explained it, the misstatement did not harm Lingar. When counsel misstates the law, the misstatement is harmless error if the court properly instructs the jury on that point of law or instructs that the attorneys’ statements and arguments are not evidence. See Griffin v. Delo, 33 F.3d 895, 906 (8th Cir. 1994) (prosecutor’s erroneous definition of reasonable doubt in closing arguments was harmless where correctly defined in jury instructions); Girtman v. Lockhart, 942 F.2d 468, 474 (8th Cir. 1991) (misstatement of law harmless error because court instructed jury that statements and arguments of counsel are not evidence). Here, the trial court did both. Besides correctly instructing the jury that it could consider any mitigating circumstances found from the evidence, the court instructed the jury that the arguments of counsel are not evidence. In a related argument, Lingar challenges his attorney’s failure to investigate and discover mitigating evidence of his acute paranoid disorder, anxiety disorder, and dysthymic disorder, and his childhood physical and sexual abuse.

Lingar also attacks his trial attorney’s decision not to present evidence that counsel knew of at the time of trial, including Lingar’s borderline intellectual functioning, his history of and treatment for blackouts, dizziness, and severe headaches, and his history of alcohol abuse. We reject Lingar’s contention that counsel failed to conduct a reasonable investigation into his mental and medical health, background, and character. See Jones v. Delo, 56 F.3d 878, 885 (8th Cir. 1995); Sidebottom, 46 F.3d at 752-54. Before Lingar’s trial, defense counsel sought a court-ordered mental examination, and the trial court granted one. At a state hospital, Lingar was evaluated by two psychiatrists, a ward physician, a clinical psychologist, a social worker, and psychiatric nursing staff. Lingar had no history of mental abnormality. His score on the Wechsler Adult Intelligence Scale--Revised indicated a “borderline range of intellectual functioning with a full-scale I.Q. also in the borderline range.” During the interviews, Lingar’s intelligence appeared average and testing revealed he could read at the ninth grade level, even though he dropped out of school in tenth grade. Based on the evaluations, the pretrial psychological report found Lingar did not have a mental disease or defect, he had the capacity to understand the proceedings against him and assist in his defense, and he knew and appreciated the nature, quality, and wrongfulness of his conduct and was capable of conforming his conduct to the law. Absent legitimate concerns about Lingar’s mental capacity, defense counsel was not required to seek an additional examination. See Jones, 56 F.3d at 885; Sidebottom, 46 F.3d at 752-54. Although prison testing after Lingar’s sentencing revealed Lingar was then suffering from acute paranoid disorder, generalized anxiety disorder, dysthymic disorder (chronically depressed mood), and thus had a severe mental disorder, counsel had no reason to suspect any mental abnormality at the time of trial, before the prison testing. As for the physical and sexual abuse, Lingar knew of it but did not share it with counsel. See Strickland, 466 U.S. at 691 (counsel’s actions are usually based on information supplied by defendant). Lingar’s attorney interviewed Lingar’s family, but they did not disclose the abuse either. At the time of Lingar’s trial, defense counsel simply had no reason to suspect or know of any abuse, and his failure to uncover it is not constitutionally deficient performance.

In addition, defense counsel’s decision not to present evidence of Lingar’s borderline intellectual functioning, blackouts, and alcohol abuse was not professionally unreasonable. Borderline intellectual functioning indicates an Intelligence Quotient in the 71-84 range, above the range indicating mental retardation. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 684 (4th ed. 1994) (DSM-IV). Lingar’s interviews indicated his intelligence was average. Although Lingar had experienced blackout spells similar to fainting from the age of eight, Lingar said they ended a year before the murder, and counsel obtained the relatedmedical records and found them unhelpful. The jury could have viewed Lingar’s history of alcohol abuse unfavorably. Even if counsel had presented the bypassed evidence, we cannot say the jury probably would have acquitted Lingar of first-degree murder or sentenced him to life in prison.

Hill v. Moore Eleventh Circuit, finding numerous issues procedurally defaulted, holds that no error is to be had on claims arising out of failure to introduce evidence of the amount of cocaine ingested on the day of the murders, failure to call a a crucial witness to the stand, that the Florida Supreme Court conducted a deficient harmless error analysis after striking one of the aggravating factors found by the trial judge in imposing the death sentence; that the trial court erred (and the supreme court failed to cure the error) in not placing in the sentencing balance all of the non- statutory mitigating evidence petitioner presented; that his counsel's performance was constitutionally deficient; that the trial court improperly refused to permit petitioner to present certain mitigating evidence to the jury, in violation ofLockett v. Ohio,438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); that the trial court failed to instruct the jury on the statutory mitigating circumstance of "substantial domination,"seeFla. Stat. ch. 921.141(6)(e) (1997); and that the prosecution made improper remarks in the presence of the jury that rendered petitioner's sentence unreliable and thus fundamentally unfair. While most of these claims are dismissed in a near summary manner, the juxtaposition of the Eleventh Circuit's holding and that of the Eighth Circuit this week on the issue of inflammatory closings is instructive:

Finally, petitioner contends that the prosecutor made improper and inflammatory comments before the jury during the sentencing phase of his trial. The prosecutor told the jury that petitioner did not deserve the same life sentence Jackson received because petitioner elected to stand on his not guilty plea and to put the State to its proof at a trial. The prosecutor ended his closing statement with the following remarks:

I want to end with this, if I can have one minute to tell you this. The more things change, the more they stay the same. And in America things haven't changed. Processes have changed a lot, but things are still the same. 150 years ago if the defendant left a town and stole a horse to come over to Pensacola, some desperado robbing a woman of the horse and he rode here with a companion, and they robbed a bank in the main street of the town, and they were seen by . . . many people in the main street of town, and the deputy sheriff came up to arrest the defendant's buddy, and the defendant shot the deputy in the back, they would have strung him up from the nearest tree that day.

Now, the process has changed. He now has a jury trial. It's now taking years to do it, but things still remain the same. The crime calls for the sternest punishment for killing the deputy. He must hang from a tree. We're more merciful now. We'll shock him until he's dead. But that is the sentence that is appropriate in this case under the law. Thank you.

The State has not contended that such comments were appropriate; rather, it's position is that the comments, if misguided, were harmless. The district court agreed, stating: "[t]here being no reasonable probability that, but for the prosecutor's improper remarks, the verdict or sentence would have been different, Hill's request for habeas corpus relief on the basis of improper prosecutorial comment must be denied."

The prosecutor's comments certainly were crass and manifestly inappropriate; they did not, however, so taint the proceedings as to render petitioner's death sentence constitutionally deficient. There was ample evidence in the record to support a sentence of death, and the trial judge charged the jury to make its decision on the basis of the evidence alone. That being the case, we will not upset the determination of the Florida Supreme Court that the prosecutor's conduct did not affect petitioner's sentence.

Habeas Cases

Haney v. AddisonTenth Circuit bounces this non-capital habeas petition on the grounds that state post-conviction does not reset the one-year habeas filing requirement, but rather merely stops the clock while those proceedings are pending

Baker v. BarboThird Circuit holds that despite irregularities marked by a delay in appeal by the prosecution on a judge's misinterpretation of state law, that the federal courts to cannot grant habeas relief so that the state court cam impose a sentence that would be illegal under state law.

Simpson v. MatesanzFirst Circuit reverses the grant of habeas relief (jury instructions) on the grounds that petitioner has procedurally defaulted even though the single Justice who denied his leave to appeal did not cite procedural default.

981932P.pdf Kellogg v. Skon Eighth Circuit on claim that prosecutor's comments concerning the presumption of innocence holds it was a misstatement of the law and while her calling Kellogg a monster, a deviant and a liar was improper, the errors were harmless in light of the evidence.

Prisoner's Rights/Governmental Misconduct Cases

Reed v. McBrideSeventh Circuit remands holding the grant of summary judgment below was improper as their was a issue of material fact relating to allegations that the defendants violated the Eighth Amendment by subjecting him to cruel and unusual punishment by withholding food and life-sustaining medication while he was incarcerated.

Jones v. Cannon Seventh Circuit affirms and reverses in part relating to governmental pretrial misconduct:

"Regarding Defendant Powers, we reverse the denial of summary judgment for Defendant Powers individually on all § 1983 claims in Count VII based on: (a) Powers's grand jury, pre-trial, and trial testimony; (b) on Powers's suborning perjury from Jones's cell mate; (c) on Powers's failing to give Miranda warnings and continuing to question Jones after Jones was in custody and requested counsel. However, we affirm the magistrate judge's denial of summary judgment for Defendant Powers individually on Jones's § 1983 claims in Count VII based on the alleged warrantless false arrest, false arrest affidavit, and fabrication of a boot print as evidence."

991852P.pdfCofer v. Schriro Eighth Circuit reverses the lower court holding claim that hair-cutting policy, and its implementation, violated prisoner's religious rights was not frivolous and should not have been dismissed.

974034P.pdf Gentry v. Lansdown Eighth Circuit on claim that good time credit not properly calculated was not ripe for review as prisoner failed to exhaust his state remedies.

984031P.pdf Trobaugh v. Hall Eighth Circuit, . $1.00 compensatory damage award for violation of prisoner's First Amendment right to seek redress of grievances was patently insufficient and case remanded for an award of damages.

982749P.pdf 05/13/99 Key v. McKinney Eighth Circuit, policy of shackling prisoners for 24 hours after certain kind of conduct violations did not violate the Eighth Amendment.

991743P.pdf 05/14/99 Williams v. Norris Eighth Circuit holds trial court erred in finding plaintiff had not exhausted his prison grievance procedures.

Special Thanx

Special thanks go out to Michele Brace for her help in case spotting out of the Fourth Circuit.

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