Two Supreme Court cases are noted, Medellin v. Dretke and Deck v. Missouri, the results in both decisions were expected. In Medellin the Court side-steps a potentially historic decision by DIGging (Dismissed as Improvidently Granted) the case. The decision to DIG, 5-4, appears to have been based on the desire to address the applicability of the Vienna Convention to domestic prosecutions in a case with less procedural problems. Such an opportunity may again present itself with Medellin, the Court noted, as Medellin has sought review of this exact issue in the Texas Court of Criminal Appeals in light of the International Court of Justice's ruling in Avena and President Bush, in his role as the nation's top diplomat, ordering all states to give effect to the Avena ruling. Justice O'Connor, writing for the dissent, offers a stinging critique of the majority's opinion and provides an excellent examination of the appropriate standards of deference in AEDPA litigation.

The Court's holding in Deck v. Missouri is more straightforward. There the Court, 7-2, holds the constitution prohibits penalty phase shackling save exceptional circumstances. In dicta the Court suggests that whenever a Defendant appears before a jury, save truly extraordinary circumstances, such an appearance must be unshackled. Sentencing Law & Policy and SCOTUSBlog both proved have a more nuanced look at these opinions.

In United States v. Roman a federal district in Puerto Rico has pronounced its rationale on why it struck certain aggravators prior to the start of the penalty phase. The three aggravators struck were: lack of remorse, substantial planning and killing a helpless victim. The jury ultimately returned a life verdict. The jury's decision has been widely viewed as another setback to the Department of Justice's effort to "nationalize" the death penalty by initiating capital prosecutions in states that have rejected the death penalty.

Other notable decisions noted include another Texas sleeping attorney case, this time in Ex parte McFarland the Court of Criminal Appeals holds that just because lead counsel habitually took an afternoon nap at counsel table did not mean he was ineffective since the trial court had appointed a second chair. The Kentucky Supreme Court in Mills v. Com. remanded for an evidentiary hearing on trial counsel's performance, as well as the failure to disclose evidence of actual innocence. The Texas Court of Criminal Appeals in Salinas v. State & Ex parte Barraza, as well as the Pennsylvania Supreme Court in Commonwealth v. Lee, vacated sentences in light of the Defendant's youth at the age of offense. The Ohio Court of Appeals has remanded for an evidentiary hearing in State v. Lorraine on mental retardation in a decision that included favorable discussion of standards for such claims.

Elsewhere, the Texas near passage of a historic life-without-parole bill that could substantially reduce the number of executions in coming years.

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Leading Cases

Decker v. Missouri, No. 04-5293 (5/23/2005) "[C]ourts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say special security needs or escape risks, related to the defendant on trial."

Medellin v. Dretke, No. 04-5928 (5/23/2005) "In light of the possibility that the Texas courts will provide Medellin with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellín's pending action, we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented."

United States v. Roman, 2005 WL 1183222 (D. P.R. 5/19/2005) "The circumstances of this case were congenial to an early determination regarding the sufficiency of the evidence supporting the aggravating factors. The Court therefore Granted in part and Denied in part defendants' motion to exclude the various aggravators, granting the exclusion of the "substantial planning and premeditation" aggravator, limiting the vulnerable victim aggravator to Catalan, and limiting the lack of remorse aggravator to Medina, but otherwise denying the motion. Although the Court considered the merits of the other arguments because of the constitutional requirements of heightened reliability in capital cases, they were technically waived or moot."

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Mills v. Com., 2005 WL 1183185 (Ky 5/19/2005) Evidentiary hearing ordered on claims relating to ineffective "assistance and the prosecutor's alleged misconduct relating to the possibility that another person killed the victim and possibility that exculpatory evidence was not turned over to the defense, and as to Appellant's claim of ineffective assistance of counsel related to the presentation of mitigating evidence during the penalty phase. We remand this case for an evidentiary hearing on those issues."

State v. Lorraine, 2005 WL 1208119 (Ohio App. 11 Dist. 5/20/2005) Remand and evidentiary hearing ordered on Atkins claim, with discussion of standards for how such a claim should be treated.

Salinas v. State, 2005 WL 1162528 (Tex.Crim.App. 5/18/2005) Death sentence vacated for, and life sentence imposed due to, age of offender at the time of the crime.

Ex parte Barraza, 2005 WL 1170499 (Tex.Crim.App. 5/18/2005) Death sentence vacated for, and life sentence imposed due to, age of offender at the time of the crime.

Commonwealth v. Lee, No. 386 CAP (PA 5/16/2005 ) Death sentence vacated for, and life sentence imposed due to, age of offender at the time of the crime.

United States v. Karake, 2005 WL 1208759 (D.D.C. 5/19/2005) Capital prosecution for crimes committed against Americans in Central Africa. Government ordered "to inform the Court and counsel, on or before May 27, 2005, whether it intends to amend its notice to eliminate or narrow any of the aggravating factors;" seemingly favorable discovery scheduling set; production of the identifications and/or descriptions of certain potential witnesses ordered over governmental objections; and discovery of evidence of others that may be more culpable, again over objection.

Decisions Favoring Death

Ex parte McFarland, 2005 WL 1162800 (Tex.Crim.App. 5/18/2005) Just because an attorney takes an afternoon power nap does not mean he is ineffective. Here, there was co-counsel -- to no one's surprise the defendant got death.

Ex parte Threadgill, 2005 WL 1208947 (Tex.Crim.App. 5/18/2005) Evidentiary hearing ordered on claim of whether "trial counsel were ineffective for (1) failing to prepare for and cross-examine the State's expert witness, Dr. Lisa Clayton, and (2) failing to call his own mental health expert, Dr. Gilda Kessner, to rebut Clayton's testimony."

Battaglia v. State, 2005 WL 1208949 (Tex.Crim.App. 5/18/2005) Relief denied on claims relating to: sufficiency; jury selection; other wrongs evidence in the guilt phase; and constitutionality of Texas's death penalty scheme;

Brown v. Crawford, 2005 WL 1164043 (8th Cir. 5/17/2005) Lethal injection stay denied over a sharp dissent.

Lenz v. True, 2005 WL 1189366 (W.D.Va. 5/20/2005) Relief denied on claims relating to presenceofaBibleinthe jury room; failureto objecttothe verdict forms; failure to object to use of stun belt; suppression of victim's criminal history; failure to prepare for penalty phase (specifically claims relating to failing to: seek a continuance; explain circumstances of the offense; present religious beliefs, present background information; mental illness & obtain an independent expert); appellate ineffectiveness and constitutionality of Virginia's death penalty.

Smith v. Gibson, 2005 WL 1185815 (W.D.Okla. 5/17/2005) Relief denied on claims relating to: failing to prepare and present mitigation evidence; ineffective assistance of counsel on direct appeal; failure to provide psychiatric expert to assist in his defense; competence; bias of state appellate courts; accomplice corroboration instruction; failure to instruct on informer's credibility; failure to disclose material exculpatory evidence; "continuing threat" aggravators constitutionality' and weighing instructions.

Wiles v. Bagley, 2005 WL 1181859 (N.D.Ohio 5/18/2005) Habeas denied in an ill-tempered & injudicious order on claims relating to: "other acts" evidence; trial court's admission of certain testimony; Miranda; sufficiency of the evidence; admission of hearsay testimony; failure to record all proceedings; prosecutorial comments; denial of motion for burden of proof to be beyond all doubt; trial court consideration of non-statutory aggravating factors; trial court's apparent nonconsideration of mitigating circumstances; appropriateness, proportionality, and unconstitutionality of the death penalty; sufficiency of trial court's § 2929.03(F) opinion; faulty indictment; gruesome photographs; cumulative error; defects in post-conviction process; and ineffective assistance of appellate counsel.

Van Poyck v. State, 2005 WL 1176050 (Fla 5/18/2005) Appellant failed to establish DNA would, with a reasonable probability, have resulted in a different verdict or a lesser sentence.

Johnson v. State, 2005 WL 1154827 (Ind 5/16/2005) Permission denied to file successive post-conviction motion "to litigate issues relating to whether another person may have been an accomplice and whether lethal injection is a constitutional method of execution."

Taylor v. Com., 2005 WL 1185521 (Ky 5/19/2005) Relief denied, again, for one of Kentucky's most notorious cases of plausible innocence.

Com. v. Randolph, 2005 WL 1162996 (Pa 5/16/2005) Relief denied on failure to permit a continuance to allow new counsel, Philadelphia's near legendary Sam Stretton, to enter the case; failure to allow "appellant to represent himself during the penalty phase and in allowing appellant the right not to make argument or present any mitigating evidence" and denial of "appellant a new trial based on newly discovered evidence."

Com. v. Treiber, 2005 WL 1163002 (Pa 5/16/2005) Relief denied on claims relating to whether: verdict was against the weight of the evidence; dismissal of a seated juror and substitution of an alternate; admission of evidence which by inference was in violation of the courts prior order in limine; admission of specific testimony of key prosecution witness "regarding a supposed threat appellant made regarding a separate arson and as to the sexual relationship between decedent and appellant; the court erred in not permitting appellant to represent himself; and the prosecution failed to turn over Brady evidence.

Jordan v. State, 2005 WL 1176102 (Miss 5/19/2005) Relief denied on claims relating to: examination of Jordan by a psychiatrist with law enforcement present; Brady; ineffective assistance of counsel state's conflicting theory of the case; admission of sentence evidence in the penalty phase; proportionality; Atkins; Ring; lethal injection; capital sentencing scheme; jury instructions; voir dire; jury qualification & cumulative error.

Excerpts from Leading Cases

Decker v. Missouri, 2005 WL 1200394 "[C]ourts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say special security needs or escape risks, related to the defendant on trial."

*8 [3] The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption.

Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the " 'severity' " and " 'finality' " of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)).

Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue. Monge, supra, at 732, 118 S.Ct. 2246 (citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community--often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Cf. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury's perception of the character of the defendant. See Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (REHNQUIST, J., concurring in judgment) (character and propensities of the defendant are part of a "unique, individualized judgment regarding the punishment that a particular person deserves"). And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations--considerations that are often unquantifiable and elusive--when it determines whether a defendant deserves death. In these ways, the use of shackles can be a "thumb [on] death's side of the scale." Sochor v. Florida, 504 U.S. 527, 532, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (internal quotation marks omitted); see also Riggins, 504 U.S., at 142, 112 S.Ct. 1810 (KENNEDY, J., concurring) (through control of a defendant's appearance, the State can exert a "powerful influence on the outcome of the trial").

Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say special security needs or escape risks, related to the defendant on trial.

Medellin v. Dretke, 2005 WL 1200824 (5/23/2005) "In light of the possibility that the Texas courts will provide Medellín with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellín's pending action, we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented."

From the Majority opinion:

There are several threshold issues that could independently preclude federal habeas relief for Medellín, and thus render advisory or academic our consideration of the questions presented. These issues are not free from doubt.

[1][2] First, even accepting, arguendo, the ICJ's construction of the Vienna Convention's consular access provisions, a violation of those provisions may not be cognizable in a federal habeas proceeding. In Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994), this Court recognized that a violation of federal statutory rights ranked among the "nonconstitutional lapses we have held not cognizable in a postconviction proceeding" unless they meet the "fundamental defect" test announced in our decision in Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). 512 U.S., at 349, 114 S.Ct. 2291 (plurality opinion); see also id., at 355-356, 114 S.Ct. 2291 (SCALIA, J., concurring in part and concurring in judgment). In order for Medellín to obtain federal habeas relief, Medellín must therefore establish that Reed does not bar his treaty claim.

*3 [3] Second, with respect to any claim the state court "adjudicated on the merits," habeas relief in federal court is available only if such adjudication "was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); see Woodford v. Visciotti, 537 U.S. 19, 22-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). The state habeas court, which disposed of the case before the ICJ rendered its judgment in Avena, arguably "adjudicated on the merits" three claims. It found that the Vienna Convention did not create individual, judicially enforceable rights and that state procedural default rules barred Medellín's consular access claim. Finally, and perhaps most importantly, the state trial court found that Medellín "fail[ed] to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest for capital murder; [Medellín] was provided with effective legal representation upon [his] request; and [his] constitutional rights were safeguarded." App. to Pet. for Cert. 56a. [FN2] Medellín would have to overcome the deferential standard with regard to all of these findings before obtaining federal habeas relief on his Vienna Convention claim. [FN3]

[4] Third, a habeas corpus petitioner generally cannot enforce a "new rule" of law. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Before relief could be granted, then, we would be obliged to decide whether or how the Avena judgment bears on our ordinary "new rule" jurisprudence.

[5] Fourth, Medellín right." requires a certificate of appealability in order to pursue the merits of his claim on appeal. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be granted only where there is "a substantial showing of the denial of a constitutional§ 2253(c)(2) (emphasis added). To obtain the necessary certificate of appealability to proceed in the Court of Appeals, Medellín must demonstrate that his allegation of a treaty violation could satisfy this standard. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Fifth, Medellín can seek federal habeas relief only on claims that have been exhausted in state court. See 28 U.S.C. §§ 2254(b)(1)(A), (b)(3). To gain relief based on the President's memorandum or ICJ judgments, Medellín would have to show that he exhausted all available state-court remedies. [FN4]

From O'Connor, J., in dissent:

A At every step, the federal courts must evaluate Medellín's Vienna Convention claim through the framework of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which controls the process by which a state prisoner may obtain federal habeas relief. And wherever the Convention, which has been in continuous force since 1969, conflicts with this subsequently enacted statute, the statute must govern. Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888).

At the outset, Texas and the United States argue that AEDPA's § 2253(c) precludes ruling for Medellín no matter how meritorious his Vienna Convention claim may be. According to § 2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Texas maintains that prisoners may only appeal district courts' adverse decisions involving constitutional rights--that Congress did not use the word "constitutional" in the statute as shorthand for all of the federal claims traditionally heard in habeas. But see 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure 448-449 (4th ed.2001). See also Slack, supra, at 483, 120 S.Ct. 1595 (noting Congress' substitution of " 'constitutional' " for " 'federal' " in the standard for obtaining a certificate of probable cause--the COA's predecessor--without saying if the change is meaningful).

Texas concedes that it raised this objection for the first time in its merits brief to this Court. Tr. of Oral Arg. 29. Normally this Court will not decide a question raised at this stage. See Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). But Texas contends that this is a nonwaivable jurisdictional objection. So we must start with the question of whether it actually is an objection that cannot be waived. It is true that the COA is jurisdictional in the sense that it is a "gateway" device. Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). By obliging applicants to make a threshold showing before their cases are aired out on appeal, the COA serves an important screening function and conserves the resources of appellate courts. To that end, the existence of a COA is jurisdictional insofar as a prisoner cannot appeal in habeas without one. See id., at 335-336, 123 S.Ct. 1029. Accordingly, a federal court must verify that that a COA has issued before hearing the merits of a habeas appeal.

*11It does not follow, however, that courts must raise and decide predicate arguments about the validity of a COA independently, without prompting from the parties, even when ordinary waiver rules would apply, as they must with true jurisdictional arguments. If that were so, an appellate court, presiding over an appeal after the district court had issued a COA, would always be required to check that a "substantial showing" had been made and a cognizable right asserted--even in the absence of controversy between the parties. We have never imposed such a rule, and it would undermine the efficiency of the COA process. Cf. Young v. United States, 124 F.3d 794, 799 (C.A.7 1997). Predicate considerations for a COA--whether a "substantial showing" has been made or a "constitutional right" asserted--are not the sorts of considerations that remain open for review throughout the entire case. Compare Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (considering whether a violation of Federal Rule of Criminal Procedure 32(a)(2) provided a basis for collateral relief), with Brief for United States in Peguero v. United States, O.T.1998, No. 97-9217, p. 6, n. 5 (arguing that § 2253(c) deprived the Court of jurisdiction because a constitutional right was not at stake). Thus, because Texas did not argue below that a treaty-based claim cannot support an application for a COA, it cannot raise the argument now.

Texas also adverts to another AEDPA provision, 28 U.S.C. § 2254(d), which it says is fatal to Medellín's treaty claim. The statute provides that a writ of habeas corpus shall not issue on behalf of a person in state custody with respect to any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Whether Medellín's claim clears these hurdles is an appropriate consideration for an appellate court contemplating whether to grant a COA, and for this Court reviewing the denial of a COA. See Miller-El, 537 U.S., at 349-350, 123 S.Ct. 1029 (SCALIA, J., concurring) ("A circuit justice or judge must deny a COA ... if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief"); see also id., at 336, 123 S.Ct. 1029.

The Texas court's disposition of Medellín's Vienna Convention claim is not entitled to deference under § 2254(d), and thus should not constrain a final decision in federal court about whether he deserves habeas relief. The Texas court gave two reasons for dismissing the claim. First, it applied its procedural default rule to Medellín's assertion of right under the Vienna Convention. See supra, at ----4. In so doing, it did not adjudicate the merits of the relevant federal question--whether, under Article 36(2), the treaty overrides state procedural default rules. Second, the Texas court appears to have reasoned that private individuals (as opposed to offended nations) can never enforce any treaty in court. See supra, at ----4. This reasoning is "contrary to" our precedents and, therefore, is not entitled to deference in subsequent federal proceedings. "A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Brown v. Payton, --- U.S. ----, 125 S.Ct. 1432, 1438, --- L.Ed.2d ----. The Texas court's blanket rule plainly contradicts our governing law, for it is axiomatic that, while treaties are compacts between nations, "a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country." Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798 (1884). The Texas court neither asked nor answered the right question: whether an individual can bring a claim under this particular treaty. Accordingly, any consideration of Vienna Convention claim for habeas relief in Medellín'sfederal court--including his assertion that Avena provides a binding rule of decision--must proceed de novo. See Williams, supra, at 406, 120 S.Ct. 1495.

B*12 The Court catalogs a number of other, nonjurisdictional questions that, in its view, justify dismissing the case because they could preclude ultimate habeas relief for Medellín. Ante, at ---- - ----4-5. Apparently the Court agrees that it would be impossible or imprudent to decide these questions today. It seems odd to me to leave them undecided and yet to rely on them as reason to avoid the weighty questions that are undeniably properly before us. Given the posture of this case, our modest task is to decide only whether Medellín has presented claims worthy of a COA, and the majority points to issues outside the scope of that inquiry. Anyway, it is not our practice generally, when remanding a case to the lower courts after resolving discrete questions, to canvass all of the possible permutations of what could happen before a final resolution. Thus, while the Court points to questions that are, of course, important, none ought to detain us here.

First, Texas and the United States have made no mention of Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), depriving Medellín of an opportunity to discuss their applicability to his case--a complicated question. Second, while Texas did argue in its certiorari papers that Medellín had already received a prejudice analysis in state habeas, see Brief in Opposition 14-16, it abandoned this argument in its brief on the merits. See United States v. International Business Machines Corp., 517 U.S. 843, 855, n. 3, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) (the Court does not address abandoned arguments). Here, Texas argues that Medellín cannot show prejudice in a future proceeding, not that he has already failed to show prejudice or that the state court thought (not unreasonably) that the Vienna Convention had been satisfied by its prejudice analysis. See Brief for Respondent 16-17. Moreover, Medellín has maintained an unfulfilled request for an evidentiary hearing about prejudice. The ICJ, for its part, appears to believe that Medellín has yet to receive the prejudice analysis that the Vienna Convention requires; otherwise, it would not have ruled--after the state habeas proceedings had concluded--that the United States must still provide "review and reconsideration" of his sentence to determine if he suffered "actual prejudice." Avena, 2004 I.C.J. No. 128, ¶¶ 121-122, 153. Third, the Court is correct to observe that, before obtaining relief, Medellín would have to contend with Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court of Appeals never discussed Teague's applicability to Medellín's case. Whether Teague bars relief for Medellín is itself a highly debatable question that should be part of a proper COA analysis upon remand.

United States v. Roman, 2005 WL 1183222 (D. P.R. 5/19/2005) "The circumstances of this case were congenial to an early determination regarding the sufficiency of the evidence supporting the aggravating factors. The Court therefore Granted in part and Denied in part defendants' motion to exclude the various aggravators, granting the exclusion of the "substantial planning and premeditation" aggravator, limiting the vulnerable victim aggravator to Catalan, and limiting the lack of remorse aggravator to Medina, but otherwise denying the motion. Although the Court considered the merits of the other arguments because of the constitutional requirements of heightened reliability in capital cases, they were technically waived or moot."

Notice of the aggravating factors must be provided to the defendant a reasonable time before the trial. 18 U.S.C. § 3593(a). Accordingly, a court may strike a Notice of Intent if it is unreasonably delayed. United States v. Ferebe, 332 F.3d 722, 737 (4th Cir.2003) (determining that reasonableness of notice depends on the nature of the charges presented in the indictment, the nature of the aggravating factors, the period of time remaining before trial, and the status of discovery in the proceedings).

The court may nevertheless permit the government to amend the notice upon a showing of good cause. 18 U.S.C. § 3593(a). While a showing of good cause presupposes the relevance of any new aggravator, good cause also requires a showing that there was no deliberate delay by the government and that no prejudice to defendant will result. See United States v. Battle, 173 F.3d 1343, 1348 (11th Cir.1999) (finding good cause to amend where government sought to add information which did not exist until after the filing of the notice) (citation omitted).

(There are also constitutional limits on which aggravating factors may be alleged. First, an aggravating factor is unconstitutionally vague if it does not possess some "common-sense core of meaning ... that criminal juries should be capable of understanding." See Jones, 527 U.S. at 400citing Tuilaepa v. California, 512 U.S. 967, 972-75, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (other citations omitted). Second, an aggravating factor fails constitutional scrutiny if it does not serve a narrowing function, constricting eligibility for the death penalty only to a subclass of those convicted of the underlying offense. See id. Third, an aggravating factor must be "particularly relevant to the sentencing decision," such that it provides a principled basis from which the sentencer may distinguish those who deserve death from those who do not. Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Both statutory and non-statutory aggravators are subject to the same constitutional limits. See generally Jones, 527 U.S. at 404; cf. United States v. Sampson, 335 F.Supp.2d 166, 228 (D.Mass.2004) (the propriety of a non-statutory aggravator or mitigator is a question of law for the court).

C. Information in Support of Aggravating Factors

*5 The Federal Rules of Evidence are not controlling during the sentencing proceedings. FDPA 3593(c). Instead, in proving the existence of a factor, any relevant information may be presented to the jury unless "its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). A greater quantum of information is thus admissible under the FDPA than the Federal Rules of Evidence. United States v. Fell, 360 F.3d 135, 143 (2d Cir.2004). This effect is consonant with the Supreme Court's mandate of "heightened reliability" in the imposition of the death penalty because it permits "the jury [to] have before it all possible relevant information about the individual defendant whose fate it must determine." Id. (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and collecting Supreme Court cases trending against restrictive application of evidentiary rules at sentencing hearings).

Although capital sentencing proceedings are released from the strictures of the Federal Rules of Evidence, see 18 U.S.C. § 3593(c), the trial judge retains his traditional role as gatekeeper of constitutionally permissible information, and must accordingly exclude any unreliable or prejudicial information that might render a trial fundamentally unfair. See Fell, 360 F.3d at 145 (collecting cases); see also United States v. Beckford, 964 F.Supp. 993, 1000 (E.D.Va.1997) ("[I]t is Constitutionally essential to assure that the principle of heightened reliability serves as a meaningful limit to the admission of "all relevant evidence" in order to prevent the less stringent concept of relevance from predominating over the cardinal principle of reliability.").

Furthermore, FDPA § 3593(c) does not divest the court of its inherent power to evaluate the sufficiency of information presented during the penalty phase, applying the standards set forth in Fed.R.Crim.P. Rule 29. See Sampson, 335 F.Supp.2d at 198 (applying Rule 29 standard to penalty phase proceedings though Rule is inapplicable by its own terms, because the constitutional mandate of heightened reliability directs that a death sentence must not be imposed on lesser information than a guilt verdict).

In ruling on a motion regarding the insufficiency of the information, as in the Rule 29 context, the court must look at the information in the light most favorable to the government, resolving all credibility questions and evidentiary conflicts in favor of the government. See United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995). A court must "reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative...." United States v. Spinney, 65 F.3d 231, 234 (1st Cir.1995) (citations omitted), deciding if the information is sufficient to permit a rational jury to find each essential fact to have been proven beyond a reasonable doubt. Id. The irreversibility of capital punishment requires that a sentence of death rest on no less insufficient a foundation than a guilt verdict. Sampson, 335 F.Supp.2d at 201-202.

ii. Substantial Planning or Premeditation

The government also alleged as a statutory aggravating factor that the defendants committed armed robbery in violation of the Hobbs Act after substantial planning and premeditation to cause the death of Mr. Gilberto Rodriguez Cabrera. (Docket No. 149 at 3) The FDPA defines the factor as follows: "The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism." 18 U.S.C. § 3592(c)(9).

The "substantial planning and premeditation" aggravator expresses a legislative determination that "this [type of] murder is different." Sampson, 335 F.Supp.2d at 209. In order to cabin the aggravator within constitutional limits, the case law consistently anchors the "substantial planning and premeditation" to the murder and not merely to the underlying federal offense. Id . at 210. The government must prove both substantial planning and substantial premeditation. See United States v. Tipton, 90 F.3d 861, 896 n. 17 (4th Cir.1996). Courts have consistently construed "substantial" to mean a "large" or "considerable" amount of planning. See United States v. McCullah, 76 F.3d 1087, 1110 (10th Cir.1996); see also United States v. Matthews, 246 F.Supp.2d 137, 148 (N.D.N.Y.2002) (collecting cases).

*9 Defendants contend that the aggravator warrants exclusion because the evidence is insufficient to establish beyond a reasonable doubt that there was planning to commit murder, let alone "substantial planning." While the government concedes that the aggravator relates to the murder and not merely to the underlying offense of armed robbery (Docket No. 424 at 2), the government offered no argument as to the extent of the requisite planning. The government's only evidence in support of planning is that defendants brought their weapons, submitting that it would be reasonable to infer that there was a pre-formed intention to kill from the possession of the weapons.

The Court agrees that it is reasonable to infer a pre-formed intention to kill from the evidence. However, for the "substantial planning" aggravator to apply there must be a considerable amount of planning directed at accomplishing the murder of the victim, not just planning to commit armed robbery. See Sampson, 335 F.Supp.2d at 210. There must be a showing of substantial or elaborate planning before the defendant sets out for the crime scene. Id. at 212. Here, there was simply no evidence presented at trial that the defendants engaged in any planning to kill Mr. Rodriguez-Cabrera and the government made no proffer of other information.

Although much evidence was adduced regarding the modus operandi of other robberies and the design of this one, which included a carjacking and the subsequent burning of the getaway vehicle, none of that evidence was pertinent to defendants' plans to commit murder. Contrary to the government's assertion, the possession of a weapon is not alone enough to infer a substantial plan to commit the murder of a specific person. Id. at 211-12.

This Court therefore holds that no reasonable juror could find "substantial planning" where the evidence shows no planning to commit murder prior to defendants' arrival at the scene, and at most one minute of planning during the commission of the crime. The Court expresses no view as to whether the one minute establishes a sufficient evidentiary predicate for "substantial premeditation" inasmuch as there is a dearth of evidence regarding "substantial planning" and the jury must find both. See Tipton, 90 F.3d at 896 n. 17. Defendants' motion to exclude the substantial planning aggravator is therefore GRANTED.

iii. Vulnerability of the Victim

Another aggravating factor propounded by the government was the vulnerability of the victim. 18 U.S.C. § 3592(c)(11). As contemplated by the FDPA, this factor applies where "[t]he [homicide] victim was particularly vulnerable due to old age, youth, or infirmity." While the government need not show that defendants knew of the vulnerability, Sampson, 335 F.Supp.2d at 214, it must prove that there was a connection or a nexus between the victim's alleged vulnerability and his death. See United States v. Johnson, 136 F.Supp.2d 553, 560 (W.D.Va.2001) (striking aggravator where pregnant woman was killed by an explosive because no nexus existed between victim's vulnerability and her death).

*10 In essence, the FDPA provides that a defendant is especially blameworthy if he murders someone who is particularly vulnerable to being killed because he has an infirmity which made him less able to escape or resist attack than most people. Sampson, 335 F.Supp.2d at 213; see also United States v. Minerd, 176 F Supp.2d 424, 447 (W.D.Pa.2001) (finding aggravator valid where one victim was a three-year-old child and another was a woman eight months pregnant as neither would be equipped to quickly escape); United States v. Paul, 217 F.3d 989, 1001-02 (8th Cir.2000) (allowing vulnerable victim aggravator where the victim was 82 years old because victim was less physically able to resist).

Medina had fatally wounded the victim, the victim lay helplessly on the pavement, unable to withstand Catalan's continued shelling. Defendants retort that the factor is inapplicable because the physical infirmity cannot arise during the commission of the crime. Although defendants did not articulate the argument as follows, it appears that it is grounded in the idea that the required nexus between the victim's alleged vulnerability and his death collapses if the vulnerability arises during the Here, the government submits that the factor is applicable to Medina because the victim was already vulnerable as a result of the wound to his forearm when Medina fired the fatal shot to the victim's chest. The government also argued during the hearing that the victim was vulnerable because he was in a position of full surrender. With regard to Catalan, the government contends that at the time he fired, about 30 seconds aftercommission of the crime.

The Court notes that neither party cited any authority in support of their contentions. Nevertheless, the defense argument is flawed. The vulnerable-victim aggravator focuses on the characteristics of the victim at the time he was harmed, and the nexus between those characteristics and the cause of death. See Johnson, 136 F.Supp.2d at 560. It is clear that there is no nexus between a victim's alleged vulnerability and the cause of his death if these are one and the same. However, the requisite nexus may be present where the vulnerability arises prior to the cause of death and contributes to the victim's death, even if the onset of the vulnerability occurred during the commission of the crime.

Applying that framework here, the evidence is insufficient to support the aggravator as against Medina. The victim was not vulnerable within the meaning of the aggravator when Medina fatally wounded him because the prior wound to the forearm did not leave him so vulnerable that he could not defend himself. The victim was still armed and otherwise capable of mounting a defense. The government's argument that the victim was vulnerable because he was in a position of surrender fails because a position of surrender is not a physical infirmity. Alternatively, the requisite nexus is lacking between the infirmity and the cause of death. The motion to exclude the aggravator is therefore GRANTED as to Medina.

*11 However, the evidence clearly supports application of that aggravator to Catalan. There was a critical juncture where the victim fell to the ground after Medina wounded him, while a shoot-out raged about him. After the shootout ended, Catalan proceeded to fire all of his remaining bullets at the victim who lay wounded on the pavement. When Catalan targeted him, the wounds already suffered constituted an infirmity that made the victim particularly vulnerable. The victim was less able to defend himself or flee. Sampson, 335 F.Supp.2d at 213. He could barely roll his shoulders away from the bullets. It was on this evidence permissible for a jury to find, beyond a reasonable doubt, that the victim's vulnerability was connected to his death. The motion to exclude the aggravator as to Catalan was accordingly DENIED.

****

v. Defendants' Lack of Remorse

The Notice of Intent further ascribed the non-statutory aggravator of lack of remorse. Defendants argued for its exclusion claiming that the evidence is insufficient and that any slight probative value is outweighed by the danger of unfair prejudice under 18 U.S.C. § 3593(c). The Court begins by observing that there is no constitutional ban on the use of lack of remorse as an aggravating factor. See Zant v. Stephens, 462 U.S. 862, 885 n. 22, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ("[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation.") (citation omitted). Accordingly, the Court declines to find, as defendants' request, that the assignment of this non-statutory aggravator is per se improper under FDPA § 3593(c).

Of course, the information adduced in support of the aggravator is subject to scrutiny to ensure that it is relevant, reliable, and that its probative value outweighs any danger of unfair prejudice, confusion, or misleading the jury. FDPA § 3593(c). There must be a showing of continuing glee, boastfulness, or other affirmative conduct which indicates a pervading and continuing lack of remorse following the criminal conduct. See United States v. Davis, 912 F.Supp. 938, 946 (E.D.La.1996). In addition, the government may not urge the applicability of the aggravator on information that has a substantial possibility of encroaching on the defendants' constitutional right to remain silent. See United States v. Cooper, 91 F.Supp.2d 90, 112-113 (D.D.C.2000) (finding that defendant's alleged "unwillingness to acknowledge in his post-arrest statements that he is blameworthy for the crimes to which he admitted" is improper argument).

*13 Here, defendants' argument that there is no evidence of lack of remorse falls flat under the weight of the evidence. The jury heard testimony regarding Medina's post-murder shopping spree. The jury was also privy to Medina's newly acquired alias of "Ranger," which became his sobriquet in prison. In addition, evidence was offered regarding Medina's triumphant demonstration of his sharpshooting technique in prison, after the screening of a gangster movie. This is precisely the sort of continuing boastfulness which indicates lack of remorse. See Davis, 912 F.Supp. at 946. It would thus be permissible for a jury to find that the requisite level of proof was present as to Medina.

The Court agrees, however, that there was little or no evidence on "lack of remorse" relevant to Catalan. The government cites only the manner in which he slammed his weapon on the pavement in disgust following his attack on the victim. (Docket No. 424 at 5) This information is too speculative, and too intertwined with his conduct during the crime such that it cannot indicate continued remorselessness. The application of the aggravator was therefore limited to Medina.

Around the Web

DPIC notes:

Texas Legislators Near Historic Passage of Life-Without-Parole Bill

By a vote of 104-37, members of the Texas House of Representatives tentatively approved the sentencing option of life-without-parole in death penalty cases, an historic action that puts the state closer to including a sentencing alternative offered in nearly every death penalty state. The House is expected to give final passage to the measure on May 25 and the Texas Senate, which passed similar legislation earlier this year, is expected to approve an amended measure before sending the bill to Governor Rick Perry for possible signature into law.

The new life-without-parole law would eliminate the current sentencing option of life with the possibility of parole in 40 years in death cases and replace it with the no-parole alternative. Senator Eddie Lucio, one of the chief sponsors of the legislation, commented: "I commend the House for its overwhelming acknowledgement that Texas juries deserve this option for the safety of society." Lucio's original bill gave jurors three choices-- death, life with parole, and life without parole--but the parole option was dropped. (Houston Chronicle, May 25, 2005). See Life Without Parole.

New Resource: A Look at the Death Penalty in Japan

The May/June issue of Foreign Policy magazine includes an article on the death penalty in Japan by Charles Lane, Supreme Court reporter for The Washington Post. Lane notes that Japan's death penalty is shrouded in secrecy and culminates in executions outside of all public view. He provides readers with a rare look inside this system and compares that country's policies with U.S. practices and international trends.

The article, "A View to a Kill," notes that although death sentences are slightly on the rise in Japan, it carries out only about two executions a year, far fewer than the 59 people executed in the U.S. in 2004. Japanese prisoners awaiting execution do not know the date of their execution, and the only witnesses to their hangings are representatives of the prosecutor's office. (Foreign Policy, May/June 2005). See Resources and International Death Penalty.

Texas Court Rules That Half of the Defense Team Can Be Asleep

The Texas Court of Criminal Appeals has ruled that a man whose attorney slept through portions of his 1992 death penalty trial should not get a new trial because he had another less experienced attorney who remained awake. In its ruling, the Court denied George McFarland's (pictured) claim of ineffectiveness of counsel and upheld his death sentence. "We conclude that, although one of his attorneys slept through portions of his trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times," wrote Judge Cathy Cochran.

The opinion stated that John Benn, the 72-year-old attorney representing McFarland, was first observed sleeping during jury selection and the napping got worse as the trial progressed. At times the bailiff would nudge Benn's chair to awaken him, and the judge admonished him during the trial. Benn's co-counsel during McFarland's trial, Sanford Melamed, was appointed by the trial judge. Cochran wrote that the court agreed that McFarland "did not have Mr. Benn's active assistance during his postprandial naps and that those naps occurred during 'critical stages' of this trial." She also noted that Melamed was a less-experienced attorney. At a hearing on McFarland's motion for a new trial, Benn explained, "I'm 72 years old. I customarily take a short nap in the afternoon."

In August 2001, the U.S. Court of Appeals for the 5th Circuit ordered a new trial in the Texas case of Calvin Burdine, whose attorney also slept through portions of his death penalty trial. (Houston Chronicle, May 19, 2005). View a short video clip about the McFarland case, including statements from John Benn, George McFarland, and a witness to the trial. See also, Representation.

Supreme Court Gives President's Order First Chance to Resolve International Death Penalty Dispute

The Supreme Court today dismissed as “improvidently granted” the case of Jose Medellin, a Mexican national on death row in Texas primarily because President Bush has interevened and ordered state courts to abide by a ruling from the International Court of Justice (ICJ). In an unsigned decision, the Justices decided not to review this case as a matter of federal habeas corpus law. They did note, however, that once this matter is reviewed in Texas state courts, the U.S. Supreme Court "would in all likelihood have an opportunity to review the Texas courts’ treatment of the President’s memorandum and [the] Case Concerning Avena and other Mexican Nationals...." (footnote 1).

The World Court had determined that the U.S. government had failed to comply with the Vienna Convention on Consular Relations' requirement of consular access for foreigners arrested in the United States, and it directed that U.S. courts consider the claims of almost all of the Mexican nationals on U.S. death rows who had not been afforded this protection. The United States Court of Appeals for the Fifth Circuit held that it was precluded from giving effect to the ICJ judgment by prior U.S. Supreme Court precedent. After the Supreme Court agreed to hear the case but before oral arguments, President Bush issued an Executive Order directing the state courts to give effect to the ICJ ruling and consider the complaints of Medellin. Attorneys for Medellin had asked the Court to stay the case until after Medellin had his hearing in state court. Attorneys for Texas argued that Medellin's federal claim was barred on procedural grounds and that President Bush does not have the constitutional authority to order Texas courts to comply with the international court's judgment. In today’s dismissal, the Court cited the President’s Executive Order as a chief reason for not reviewing the case, and reserved the right to hear a future appeal once the case had run its course in state court.

Justice Ginsburg would have granted Medellin's request for a stay but concurred in the dismissal of the case. Four other Justices (O'Connor, Stevens, Souter and Breyer) dissented from the Court's dismissal of the case and would have decided whether the Fifth Circuit was correct in holding that there were no debatable issues for appeal. Justice O'Connor wrote in dissent:

In this country, the individual States’ (often confessed) noncompliance with the treaty has been a vexing problem. It has three times been the subject of proceedings in the International Court of Justice (ICJ). The problem may have considerable ramifications, because foreign nationals are regularly subject to state criminal justice systems. For example, in 2003, over 56,000 noncitizens were held in state prisons. Noncitizens accounted for over 10% of the prison populations in California, New York, and Arizona.

Noncompliance with our treaty obligations is especially worrisome in capital cases. As of February 2005, 119 noncitizens from 31 nations were on state death row. In Avena, the ICJ determined that the United States had breached its obligation to inform 51 Mexican nationals, all sentenced to death in this country, of their right to consular notification. Medellín is just one of them. His case thus presents, and the Court in turn avoids, questions that will inevitably recur.

(internal citations omitted).

New Polls on the Death Penalty

The latest Gallup Poll found support for the death penalty at 74%, a figure equal to the level in 2003 and less than the 80% support registered in 1994. The poll found that support for capital punishment dropped to 56% when respondents were given the alternative sentencing option of life without parole, less than the 61% support in 1997 with the same question. The percentage of respondents who believe an innocent person has been executed in recent years has dropped from 73% in 2003 to 59% this year. (The Gallup Organization Press Release, May 19, 2005).

A recent CBS News Poll (April 17, 2005) found the public more evenly split on the death penalty. In response to the question "What do you think should be the penalty for persons convicted of murder--the death penalty, life in prison with no chance of parole, or a long prison sentence with a chance of parole?", only 39% chose the death penalty, 39% chose life with no parole, 6% said a long sentence with parole, and 13% volunteered the answer "depnds." (Roper Center at Univ. of Conn., May 17, 2005). See Public Opinion.

NEW VOICES: Notable North Carolinians Call For Moratorium on Executions

A diverse and bipartisan group of more than 150 prominent North Carolinians have urged the General Assembly to pass a measure that would halt executions for two years while a study commission examines the state's capital punishment system. A letter to the state's top political leaders urging passage of the moratorium bill was signed by the group, which included nine former North Carolina Supreme Court Justices, former prosecutors, elected officials, religious leaders, business leaders, murder victims' family members, and noted North Carolina authors.

Renowned historian Dr. John Hope Franklin, Secretary of State Elaine Marshall, Capitol Broadcasting Company President and CEO James F. Goodmon, former Executive Director of the Z. Smith Reynolds Foundation Thomas Lambeth, novelist Dorothy Betts, and Self-Help Credit Union CEO Martin Eakes also participated in a press conference in support of the measure and called on state leaders to use the temporary halt to executions to address growing concerns about the accuracy and fairness of the current death penalty system. “This is not a Republican issue or a Democratic issue. It is not pro-death penalty or anti-death penalty. This is about making sure our system is working properly, that the General Assembly gives the courts the resources it needs so we don’t have to cut corners and make mistakes,” said Goodmon. Former North Carolina basketball coach Dean Smith (pictured), the current North Carolina State University coach Herb Sendek, and UNC-Chapel Hill Board of Trustees Chair Richard "Stick" Williams expressed their support for the bill in public statements. “I, along with many of my close friends, support a two-year suspension of executions because of the injustices in the system that have been demonstrated over the last few years," wrote Smith. (Center For Death Penalty Litigation Press Release, May 16, 2005).

Since North Carolina reinstated the death penalty, it has carried out 36 executions, while 5 innocent people have been freed from death row. See Innocence and New Voices.

SCOTUSBlog notes:

Monday, May 23, 2005

Analysis: Major test of presidential power

Posted by Lyle Denniston at 12:44 PM

The Supreme Court, turning aside protests by dissenters that it was avoiding "questions of national importance," on Monday opted to let the state courts of Texas be the first to decide a profound question of presidential authority. At issue when the case of Medellin v. Dretke returns to the Texas Court of Criminal Appeals is whether the president may direct state courts to obey a ruling by an international tribunal that runs counter to the states' own laws or legal procedures.

The Court itself barely avoided confronting that issue, splitting 5-4 in deciding to end a federal habeas challenge by a Mexican national now under death sentence in Texas, Jose Ernesto Medellin. The majority spoke (in docket 04-5928) through an unsigned (Per Curiam) opinion that was announced by Chief Justice William H. Rehnquist as the final of five final actions Monday on argued cases. The case was dismissed as "improvidently granted," thus scuttling at least for now Medellin's chances of challenging in federal court the failure of Texas authorities to allow him access to a consular officer from his home country after he was arrested on murder charges. Mexico did not learn of his situation until after he was convicted and sentenced to death, even though he had a right under the Vienna Convention to consult someone from his home country after being taken into custody.

As the Medellin case arrived at the Supreme Court and was granted review last December 10, it raised basic questions about the relationship between the World Court in The Hague and state courts in America in death penalty cases involving foreign nationals. The dispute turned on whether U.S. courts were bound by a World Court ruling that those courts must fashion a remedy for failure by state officials to obey the Vienna Convention issue. That controversy affected not only Medellin himself, but also 50 other Mexican nationals facing death sentences in U.S. states. The dissenters in the Court on Monday said that those issues "are as compelling now as tghey were when we granted" review.

In December, when the case was granted, there was no issue in the case over presidential authority to require state courts to abide by the World Court ruling. But, just before the case was argued in March, President Bush stepped into the controversy, and decided that U.S. courts should carry into effect the World Court ruling. In response, Medellin filed a new challenge in state court, seeking to take advantage of the President's action. His lawyers asked the Supreme Court to put the case there on hold until after state courts had acted.

Medellin's lawyers apparently took that step, not only because the President was now on their side, but also because of the prospect that the Supreme Court would rule against their client and other foreign nationals if it decided his case. The Justice Department had urged the Court to do just that, and reject Medellin's attempt to raise his Vienna Convention claim.

The Court majority said on Monday that a number of complicating legal issues had cropped up since the case was granted, and suggested strongly that Medellin would not be likely to prevail in the current federal habeas proceeding if it were decided. But the majority noted that Medellin had filed his new challenge in state court, and took that as its cue to back out of the case at this stage.

"That state proceeding," the opinion said, "may provide Medellin with the review and reconsideration of his Vienna Convention claim that the [World Court] required, and that Medellin now seeks in this prodceeding." Once the state courts decide the new case, the majority commented, either he or the state of Texas could ask the Justices anew to rule. "In that instance, this Court would in all likelihood have an opportunity to review the Texas courts' treatment of the President's memorandum" and the World Court's judgment in the Mexican nationals' favor.

Texas officials already have raised serious questions about whether the Constitution does allow the President, in acting under an international treaty, to order state courts to set aside their legal procedures and defer to a global tribunal's judgment. Officials have not yet filed their formal response in the Texas Court of Criminal Appeals to Medellin's new challenge, so it is unclear just how far they will go to contest that assertion of presidential power.

One of the five justices in the majority -- Justice Ruth Bader Ginsburg -- said in a separate opinion that she thought the Court should simply put the case on hold pending the state court case. But, there was no majority for that, she noted, so she joined in the dismissal of the federal claim.

No member of the Court offered a view on whether the President had the constitutional authority to order state courts to abide by the World Court decision. Justice Sandra Day O'Connor noted in the principal dissenting opinion that the Court majority "remains rightfully agnostic" on that fundamental constitutional question.

O'Connor, joined by Justices Stephen G. Breyer, David H. Souter and John Paul Stevens, said the dissenters wanted the Court to send the case back to the Fifth Circuit to allow Medellin's challenge to continue in federal court -- with the possibility of waiting to decide until after the state courts had done so.

Justice Souter wrote a separate dissent agreeing that the case should go back to the Fifth Circuit, but with a broader examination than O'Connor had suggested. He said his preference would be for the Court to grant a stay while the Texas courts acted.

Justice Breyer, joined by Justice Stevens, also dissented, arguing in favor of a stay by the Court, but agreeing, in the absence of a majority for that option, that the Court should order that Medellin's federal case proceed in the Fifth Circuit. Breyer wrote that Medellin's claims in state court would be stronger than they would be in federal court, and suggested "the very real possibility of his victory in state court."

Around the blogs

CrimProf Blog writes:

Capital Punishment in Japan

From the DPIC: "The May/June issue of Foreign Policy magazine includes an article on the death penalty in Japan by Charles Lane, Supreme Court reporter for The Washington Post. Lane notes that Japan's death penalty is shrouded in secrecy and culminates in executions outside of all public view. He provides readers with a rare look inside this system and compares that country's policies with U.S. practices and international trends. The article, "A View to a Kill," notes that although death sentences are slightly on the rise in Japan, it carries out only about two executions a year, far fewer than the 59 people executed in the U.S. in 2004. Japanese prisoners awaiting execution do not know the date of their execution, and the only witnesses to their hangings are representatives of the prosecutor's office. Story . . . [Mark Godsey]

Supreme Court Decides Two Crim Cases Today

From BNA.com:

In Deck v. Missouri, No. 04-5293, the court held that the Fifth and Fourteenth Amendments' guarantee of due process bars the use of visible shackles during the penalty phase of a capital trial unless shackling is justified by the need for courtroom security or some other essential state interest specific to the particular defendant. Decision here.

In Medellin v. Dretke, No. 04-5928, the court dismissed as improvidently granted a case involving whether a failure to comply with the Vienna Convention's requirement that arrested foreigners be given access to their consular missions spoils a Mexican national's Texas capital murder conviction. The court said that, in light of the president's directive that the petitioner and other death row inmates others like him be given hearings called for by the International Court of Justice, it should not address the issues raised in the case.

New Polls on Capital Punishment

The most recent Gallup Poll found current support for the death penalty at 74%, down from 80% in 1994. Those supporting the death penalty decreased to 56% when respondents were given the choice of life in prison without parole, down from about 61% in 1997. Compared to more recent years, however, support for the death penalty increased slightly in the most recent poll. [Mark Godsey]

Abolish the Death Penalty notes:

Hypocrisy, Chapter 37

NCADP is a single-issue organization and this is a single-issue blog. Period. We take no position on issues such as stem cell research or abortion. Our members include those who feel strongly on either sides of these debates. In fact, our staff in Washington, D.C. is split over these issues. What unites us is our firm and principled opposition to capital punishment.

That said, from time to time, opportunities arise to present hypocritical fissures. Here's one:

"Dr. Zerhouni shares my view that human life is precious, and should not be exploited or destroyed for the benefits of others."

—President Bush, March 22, 2002

White House Press Secretary Ari Fleischer: "The president believes that we need to welcome and create a culture that respects life in this country."

Q: "How can he be in favor of showing how much we disapprove of killing, by killing?"

Fleischer: "You're referring to the death penalty?"

Q: "I'm referring to the death penalty."

Fleischer: "Because the president's opinion is the death penalty ultimately saves lives."

—May 7, 2001

To view the hypocrisy table published by Slate.com, go here and scroll down.

Texas passes life without parole

The Texas House of Representatives moments ago passed a bill allowing for life in prison without parole. The bill passed of a 104 to 37 vote.

After the measure passes on final reading, probably tomorrow, it will go back to the Senate, which must concur on amendments passed by the House. That's pretty much a technicality. The fact is that this bill will soon be headed for the governor's desk.

Assuming that Gov. Perry signs it, we can assume that this ultimately will lower the execution rate in Texas. Texas -- along with New Mexico, which has executed all of one person in modern history -- is the only death penalty state that does not have life without parole.

# posted by David Elliot @ 2:35 PM1 comments

Monday, May 23, 2005

Last words

Last week, Richard Cartwright was executed in Huntsville, Texas. There were questions about the legitimacy of Cartwright's death sentence (especially in light of claims by his co-defendant that Cartright didn't do it) but that is not the purpose of this blog entry.

Rather, the purpose of this entry is to share a few of Richard's final thoughts in a message he wrote days before his execution. Richard wrote the following:

I’ve said this before and I’ll say it again, this fight is not about one man. Therefore this fight is not over with one man’s death. It ain’t over with 100 men’s deaths, or 1000 for that matter. This fight is not over until the death penalty is completely abolished in the USA, and the rest of the world. Totally abolished is when the fight is over. When we no longer kill in the name of justice, then the fight is over.

As I take this walk towards my death I do it with a good friend of mine, Bryan Wolfe, who has a date for May 18th, the day before my own date. We are neighbors now and we have had some pretty wild and crazy talks about what is going down, but most on our minds is the pain and suffering our families are going through. And here I thought we were all cold blooded and heartless killers, eh? HA!HAH!HA!

I have to laugh at that, because I’ve met some very loving and caring people behind these walls. It is just like in the free world. There are good and bad everywhere. You cannot possibly write off a group of people as evil and heartless.