Cases dealing retroactive application of new laws lead off this week, Saylor v. Indiana & Tennessee v. Odom, In Saylor the Indiana Supreme Court holds that since Indiana modified that state's death penalty scheme to require unanimous jury recommendations in orderto impose death, & that Saylor's sentence was not imposed following a unanimous jury decision, that the Court would grant relief under its "powers to revise a death sentence in light of changes in the legal landscape." In Odom the Tennessee Supreme Court held that certain modifications to the Tennessee death penalty scheme, making the ability to introduce certain evidence of prior felony convictions in the penalty phase, only applies in trials where the underlying crime occurred after the enactment of the modifications.

The United States Supreme Court issued its opinion in Nelson v. Campbell, earlier this week. The opinion steered clear of the constitutionality of lethal injection and whether challenges to that method of execution may be brought under section 1983. The opinion rather simply held that a temporary stay can be granted under that statute when there is an active execution warrant.

Elsewhere, the Mississippi Supreme Court ordered hearings in four cases relating to mental retardation claims, Carr v. Mississippi, Neal v. Mississippi, Smith v. Mississippi, & Chase v. Mississippi. Note, the Fifth Circuit issued a large number of denials of relief & denials of COAs this edition.

Note that this edition is rather long and several case synopses have been truncated due to time limitations. As always, the synopses cover numerous cases from jurisdictions in which I do not practice and important jurisdiction specific holdings may be missed. With that disclaimer, as always, thanks for reading. - k

This edition is archived at http://capitaldefenseweekly.com/archives/040524.htm.

EXECUTION INFORMATION

Since the last edition there have been the following executions.

May

18 Kelsey Patterson Texas

25 John Blackwelder Florida----volunteer

May

29 James Tucker South Carolina

Further execution dates are being recalculated & will return next edition.

SUPREME COURT

Nelson v. Campbell, 541 U.S. --- (2004) A stay of execution may be had under section 1983 is an appropriate vehicle to bring an Eighth Amendment claim seeking a temporary stay and permanent injunctive relief.

Three days before his scheduled execution by lethal injection, petitioner filed a 42 U.S.C. § 1983 action against respondent Alabama prison officials, alleging that the use of a “cut-down” procedure requiring an incision into his arm or leg to access his severely compromised veins constituted cruel and unusual punishment and deliberate indifference to his medical needs in violation of the Eighth Amendment. Petitioner, who had already filed an unsuccessful federal habeas application, sought a permanent injunction against the cut-down’s use, a temporary stay of execution so the District Court could consider his claim’s merits, and orders requiring respondents to furnish a copy of the protocol on the medical procedures for venous access and directing them to promulgate a venous access protocol that comports with contemporary standards. Respondents moved to dismiss the complaint for want of jurisdiction on the grounds that the §1983 claim and stay request were the equivalent of a second or successive habeas application subject to 28 U.S.C. § 2244(b)’s gatekeeping requirements. Agreeing, the District Court dismissed the complaint because petitioner had not obtained authorization to file such an application. In affirming, the Eleventh Circuit held that method-of-execution challenges necessarily sound in habeas, and that it would have denied a habeas authorization request.

Held:Section 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. Pp.5—13.

(a)Section 1983 must yield to the federal habeas statute where an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence. Such claims fall within the core of habeas. By contrast, constitutional claims challenging confinement conditions fall outside of that core and may be brought under §1983 in the first instance. The Court need not reach here the difficult question of how method-of-execution claims should be classified generally. Respondents have conceded that §1983 would be the appropriate vehicle for an inmate who is not facing execution to bring a “deliberate indifference” challenge to the cut-down procedure’s constitutionality if used to gain venous access for medical treatment. There is no reason on the complaint’s face to treat petitioner’s claim differently solely because he has been condemned to die. Respondents claim that because the cut-down is part of the execution procedure, petitioner is actually challenging the fact of his execution. However, that venous access is a necessary prerequisite to execution does not imply that a particular means of gaining such access is likewise necessary. Petitioner has argued throughout the proceedings that the cut-down and the warden’s refusal to provide reliable information on the cut-down protocol are wholly unnecessary to gaining venous access. If, after an evidentiary hearing, the District Court finds the cut-down necessary, it will need to address the broader method-of-execution question left open here. The instant holding is consistent with this Court’s approach to civil rights damages actions, which also fall at the margins of habeas. Pp.5—9.

(b)If a permanent injunction request does not sound in habeas, it follows that the lesser-included request for a temporary stay (or preliminary injunction) does not either. Here, a fair reading of the complaint leaves no doubt that petitioner sought to enjoin the cut-down, not his execution by lethal injection. However, his stay request asked to stay his execution, seemingly without regard to whether the State did or did not resort to the cut-down. The execution warrant has now expired. If the State reschedules the execution while this case is pending on remand and petitioner seeks another similarly broad stay, the District Court will need to address the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas. Pp.9—11.

(c)Respondents are incorrect that a reversal here would open the floodgates to all manner of method-of-execution challenges and last-minute stay requests. Because this Court does not here resolve the question of how to treat method-of-execution claims generally, the instant holding is extremely limited. Moreover, merely stating a cognizable §1983 claim does not warrant a stay as a matter of right. A court may consider a stay application’s last-minute nature in deciding whether to grant such equitable relief. And the ability to bring a §1983 claim does not free inmates from the substantive or procedural limitations ofthe Prison Litigation Reform Act of 1995. Pp.11—13.

347 F.3d 910, reversed and remanded.

O’Connor, J., delivered the opinion for a unanimous Court.

Thornton v. United States, 541 U.S. --- (2004) (dissent) When a lawful custodial arrest of an automobile's occupant is made, the Fourth Amendment allows a contemporaneous search of the vehicle's passenger compartment, even where the officer initiated contact with the arrestee while he was still in the car.

Sabri v. United States, 541 U.S. --- (2004) 18 U.S.C. section 666(a)(2), which proscribes bribery of officials of entities that receive at least $10,000 in federal funds, does not require proof of connection with federal money and is a valid exercise of Congress's Article I authority.

CAPITAL CASES (Favorable Disposition)

Saylor v. Indiana, 2004 Ind. LEXIS 464 (Ind 5/21/2004) "In 2002, Indiana law was changed in an important respect by requiring a unanimous jury recommendation of death before the death penalty can be imposed. Appellate courts are to review and revise sentences that are inappropriate. We conclude that it is not appropriate to execute a person who was convicted and sentenced through a procedure that has now been substantially revised so the same trial today would no longer render the defendant eligible for the death penalty."

Carr v. Mississippi, 2004 Miss. LEXIS 544 (Miss 5/20/2004) Remand ordered so that mental retardation claims may be presented in the court below.

Neal v. Mississippi, 2004 Miss. LEXIS 545 (Miss 5/20/2004) Remand ordered so that mental retardation claims may be presented in the court below.

Smith v. Mississippi, 2004 Miss. LEXIS 547 (Miss 5/20/2004) Remand ordered so that mental retardation claims may be presented in the court below.

Chase v. Mississippi, 2004 Miss. LEXIS 548 (Miss 5/20/2004) Permission granted to allow a successive petition so that mental retardation claims to can be presented below.

Tennessee v. Odom, 2004 Tenn. LEXIS 452 (Tenn 5/20/2004) (dissent) Trial court committed reversible error by retroactively applying a 1998 amendment to Tennessee's death penalty scheme and allowing the introduction of evidence regarding the facts and circumstances of the defendant's prior felonies.

Amendments to the Florida Rules of Crim Proc & Florida Rules of App Proc., 2004 Fla. LEXIS 675 (FL 5/20/2004) Florida Supreme Court sets forth new rules to govern the treatment of mental retardation claims.

CAPITAL CASES (Unfavorable Disposition)

Hardcastle v. Horn, 2004 U.S. App. LEXIS 9832 (3rd Cir 5/14/2004) (dissent) "Pennsylvania Supreme Court's rejection of Hardcastle's claim on the record before it was indeed an objectively unreasonable application of Batson. However, because the Commonwealth of Pennsylvania had requested, and been denied, a chance to present evidence in support of its peremptory strikes of African-Americans from the venire, it is entitled to a hearing to present that evidence. We will, therefore, remand this matter to the District Court to hold such a hearing and to then reexamine the application of Batson to Hardcastle's claim." Brilliant dissent.

Mosley v. Dretke, 2004 U.S. App. LEXIS 9569 (5th Cir 5/17/2004) Relief denied on claims that: "(1) prejudice should have been presumed on his ineffective assistance of appellate counsel claim; (2) his right to due process was violated by the trial court's decision to begin the penalty phase of his trial on Saturday instead of Monday; and (3) his right to equal protection was violated by the discriminatory manner in which grand jury forepersons were selected."

Patterson v. Dretke, 2004 U.S. App. LEXIS 9640 (5th Cir 5/17/2004) "[T]he state court did not unreasonably determine that Patterson had failed to raise a “substantial doubt” as to his competence to be executed."

Newton v. Dretke, 2004 U.S. App. LEXIS 9913 (5th Cir 5/20/2004) COA denied on claims relating to: "(1) the trial court denied petitioner her 6th Amendment right to be represented by counsel of her choice when it denied her motion for continuance so Newton could substitute retained counsel; and (2) the Texas special issues did not permit the jury to consider and give effect to Newton's mitigating evidence of youth, good character, cooperation with police, unfaithful/drug dealing spouse, and impoverished background."

Medellin v. Dretke, 2004 U.S. App. LEXIS 9912 (5th Cir 5/20/2004) Relief denied on claims that (1) counsel were ineffective (failing to investigate and present evidence of Petitioner's compliance with his probation officer while a juvenile probationer; failing to inform the jury of Petitioner's eligibility for parole if sentenced to life imprisonment; failure to pursue on appeal the state trial court's alleged order precluding the death penalty; & failure to properly appeal the state's use of peremptory jury strikes); (2) violations of the Vienna Convention; & (3) various purported Brady violations.

Reese v. Dretke, 2004 U.S. App. LEXIS 10050 (5th Cir 5/10/2004) (unpublished) COA denied on claims that Petitioner is mentally retarded & what appears to have been an interesting claim pertaining to "an Apprendi-Ring argument against Texas's interrogatory submissions" on the penalty phase special questions.

Morrow v. Dretke, 2004 U.S. App. LEXIS 10009 (5th Cir 5/11/2004) Relief denied on claims "that his counsel rendered ineffective assistance during his cross-examination by the prosecuting attorney. Morrow enumerated a plethora of objections he believes should have been made--to both the prosecutor's questions and his comments responding to Morrow's answers. According to Morrow, had his attorneys objected, the trial court would have sustained their objections and the jury might then have acquitted him of capital murder. We group these objections into relevant categories and examine each in turn."

Abdul-Kabir f/k/a Cole v. Dretke, 2004 U.S. App. LEXIS 10005 (5th Cir 5/19/2004) (unpublished) Claims relating to ineffective assistance of counsel procedurally defaulted, even if this claim were not defaulted, no prejudice shown. Penry I claim & issues relating to admission of certain trial testimony likewise denied.

Spirko v. Mitchell, 2004 U.S. App. LEXIS 9526;2004 FED App. 0140P (6th Cir. 5/17/2004) (dissent ) Relief denied on claims that: "1) the prosecution denied Spirko due process by knowingly presenting false evidence and a false theory of the case at trial; 2) the prosecution denied Spirko due process by violating the requirements of Brady v. Maryland; 3) Spirko’s trial counsel were ineffective because they did not investigate the alibi claim of Delaney Gibson, who was indicted with Spirko for the murder; 4) the prosecution probably suborned perjury at trial; 5) the district court erred in denying Spirko’s actual innocence claim; 6) Spirko was denied due process by the prosecution’s use of a suggestive photo array and hypnotically refreshed testimony, and by his trial in an improper venue; 7) the district court erred in denying Spirko’s request for discovery and an evidentiary hearing; 8) Spirko was denied due process as a result of several errors during the sentencing phase of the trial. After reviewing the district court’s exhaustive opinion, we conclude that we agree with its findings and its conclusions, and we will not separately address any of Spirko’s claims except those relating to the alleged Brady violations."

Clay v. Bowersox, 2004 U.S. App. LEXIS 9529 (8th Cir 5/17/2004) The court below court erred in granting relief as the alleged Brady violations here were not material.

Allen v. Mullin, 2004 U.S. App. LEXIS 9736 (10th Cir 5/19/2004) Relief denied on claims relating to: " 1) a procedural competency claim (including sub-claims of a violation of Ake v. Oklahoma,, and ineffective assistance of appellate counsel for failing to raise the Ake claim), 2) a substantive competency claim, 3) an ineffective assistance of trial counsel claim based on counsel permitting Allen to enter a plea of guilty despite his alleged incompetency, and 4) a claim that Allen's plea was not knowing, voluntary and intelligent."

California v. Pollock, 2004 Cal. LEXIS 4426 (Cal 5/17/2004) "We have found error only in the trial court's penalty phase instructions on defendant's possession of razor blades while in custody, and we have concluded that defendant suffered no resulting prejudice."

Gudinas v. Florida, 2004 Fla. LEXIS 668 (FL 5/13/2004) Ring claim on successive petition denied.

Patton v. Florida, 2004 Fla. LEXIS 676 (FL 5/20/2004) Relief denied on both issues raised on appeal. " First, he argues that he was denied the effective assistance of counsel for three reasons: that his trial counsel failed to utilize evidence of voluntary intoxication at the time of the offense; that the defense of insanity should have been advanced; and that trial counsel failed to conduct adequate voir dire. Second, Patton argues that the trial court erroneously denied his discovery request to interview jurors after the verdict. He wanted to interview them in order to establish that trial counsel's failure to voir dire the jurors about drug abuse and mental illness was prejudicial."

Stewart v. Crosby, 2004 Fla. LEXIS 666 (FL 5/13/2004) Relief denied on state habeas claims asserting that: "(1) Florida's death penalty statute is unconstitutional under Ring v. Arizona and Apprendi v. New Jersey; (2) appellate counsel was ineffective in failing to raise on direct appeal four meritorious issues relating to trial counsel's ineffectiveness and other errors at trial; and (3) appellate counsel was ineffective for failing to raise on direct appeal the issue of trial counsel's concession of Stewart's guilt."

Bell v. Mississippi, 2004 Miss. LEXIS 543 (Miss 5/20/2004) Petitioner's post-conviction application, though timely, denied on claims relating to ineffective assistance of counsel during both the guilty and penalty phases of the trial.

Missouri v. Taylor, 2004 Mo. LEXIS 64 (Mo 5/11/2004) Relief denied on claims relating to (1) the pattern jury instruction not to consider statements doctors said they received while interviewing Taylor in determining whether Taylor was guilty of the crime with which he was charged; (2) permitting the prosecutor to cross-examine a psychological expert Taylor called in his defense regarding the details of Taylor's previous conviction; (3) denial of request for the mental health records of a witness testifying for the prosecution; (4) three speaking objections the prosecutor made during Taylor's counsel's penalty-phase closing argument; (5) not permitting the jurors to take notes; (6) failure to give, sua sponte, a jury instruction relating to eligibility for capital punishment under Atkins v. Virginia; (7) death qualification of jurors; (8) failing to give the jurors certain instructions during the penalty phase; (9) whether the court had jurisdiction and authority to sentence Taylor to death; & (10) the trial court's independent review of the death sentence under state law.

South Carolina v. Wise, 2004 S.C. LEXIS 112 (SC 5/11/2004) Trial judge properly excused a potential juror for cause because her religious beliefs would have prevented her from fulfilling her responsibilities as a juror. The Court further held the trial judge properly refused to allow a surviving victim, called by the prosecutor to provide victim impact evidence, to testify on cross-examination that he previously had stated Appellant should not receive the death penalty.

HOT LIST

Saylor v. Indiana, 2004 Ind. LEXIS 464 (Ind 5/21/2004) "In 2002, Indiana law was changed in an important respect by requiring a unanimous jury recommendation of death before the death penalty can be imposed. Appellate courts are to review and revise sentences that are inappropriate. We conclude that it is not appropriate to execute a person who was convicted and sentenced through a procedure that has now been substantially revised so the same trial today would no longer render the defendant eligible for the death penalty. At the time of Saylor’s crime, life without parole could not be imposed under Indiana law."

Both parties address the issue in part as whether Ring is to be applied retroactively. In Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990), we adopted for Indiana state law the federal retroactivity analysis outlined in Teague v. Lane, 489 U.S. 288 (1989). Teague deals with retroactivity on collateral review, and begins with the premise that the court should apply a “newly declared constitutional rule to criminal cases pending on direct review.” Id. at 304 (citations omitted). On collateral review the threshold question is whether the new rule is procedural or substantive. If it is procedural, it “is generally not applicable to those cases on collateral review, that is, those which have become final before the new rule was announced.” Daniels, 561 N.E.2d at 489 (citing Teague, 489 U.S. at 288). Saylor’s conviction and sentence became final in 1997 when this Court affirmed his direct appeal. This general rule has two exceptions: 1) rules which place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and 2) those which require the observance of “procedures that . . . are ‘implicit in the concept of ordered liberty,’” and “without which the likelihood of an accurate conviction is seriously diminished.” Id. at 490 (citing Teague, 489 U.S. at 307, 313) (internal citations omitted).

The majority of courts to have considered the issue have held that Ring is an application of the procedural rule announced in Apprendi, and as such does not apply retroactively to cases on collateral review. Lambert v. McBride, No. 03-1015, 2004 U.S. App. LEXIS 6658 (7th Cir. April 7, 2004); Turner v. Cosby, 339 F.3d 1247 (11th Cir. 2003); Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002); State v. Lotter, 664 N.W.2d 892 (Neb. 2003); Colwell v. State, 59 P.3d 463 (Nev. 2002). Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) ( en banc), cert granted sub nom, Schriro v. Summerlin, 124 S.Ct. 833, is the only case we have found that applies Ring retroactively. The United States Supreme Court granted certiorari in Summerlin on December 1, 2003. At this writing we have no definitive decision on the retroactive application of Ring under Teague. For the reasons given below we do not need to await resolution of this federal constitutional issue, and also do not address whether, even if there is no federal requirement that Ring be applied retroactively, Indiana may nevertheless choose to apply it to pre-Ring convictions as a matter of state law.

Article VII, Section 4 of the Indiana Constitution provides that “[t]he Supreme Court shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence imposed.” Appellate Rule 7(B) implements that authority: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

Sentencing decisions are highly case sensitive and are for the most part best left to the discretion of the trial court as long as the sentence comports with applicable statutes and is imposed in accordance with applicable procedural requirements. Nevertheless, the power to review and revise was expressly conferred by the 1970 amendment to the Indiana Constitution. In Serino v. State, 798 N.E.2d 852 (Ind. 2003), this Court recently reviewed the history of Indiana appellate review of sentencing. In brief, the Indiana Constitution was amended in 1970 to recognize the desirability of encouraging consistency in sentencing in similar cases despite differences of time, place, and sentencing judge. In taking this approach, Indiana expressed a preference for the British tactic of appellate review of sentences, and did not pursue the much more severe restrictions on sentencing discretion imposed on federal courts at roughly the same time in our nation’s history by the Federal Sentencing Guidelines. See generally Walker v. State, 747 N.E.2d 536, 537-38 (Ind. 2001) (addressing prior version of Indiana Appellate Rule 7(B)); Charles J. Ogletree, Jr., Commentary: The Death of Discretion? Reflections on the Federal Sentencing Guidelines , 101 Harv. L. Rev. 1938, 1940-42, 1957-58 (1988); Joel M. Schumm, Survey: Criminal Law and Procedure: Recent Developments in Indiana Criminal Law and Procedure, 34 Ind. L. Rev. 645, 670-71 (2001).

We have long explained that review of a death sentence must be more intensive than that required for a term of years. We reaffirm our goal of assuring “evenhanded operation of the death penalty statute” by reviewing death sentences “in light of other death penalty cases.” Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989) (quoting Judy v. State, 275 Ind. 145, 169, 416 N.E.2d 95, 108 (1981)). Indeed, we have stated “[t]he thoroughness and relative independence of this Court’s review is a part of what makes Indiana’s capital punishment statute constitutional.” Cooper, 540 N.E.2d at 1218.

Before 2002, Appellate Rule 7(B) appellate review called for revision of a sentence only if it was “manifestly unreasonable.” The rule now provides that an appellate court may revise a sentence if it is “inappropriate.” On direct appeal, we reviewed Saylor’s claim under Article VII, Section 4 and concluded that the death penalty was appropriate under the statute. Saylor v. State, 686 N.E.2d 80, 89 (Ind. 1997). Since that time the legal landscape has significantly changed. Even if the Sixth Amendment does not bar Saylor’s execution for a pre-Ring crime, as a matter of Indiana state law Saylor, if tried today, could not be sentenced to death without a jury recommendation that death be imposed. Under these circumstances we conclude that his death sentence is inappropriate and should be revised.

Exercise of our Article VII powers to revise a death sentence in light of changes in the legal landscape is not unprecedented. In Cooper v. State, this Court revised Paula Cooper’s sentence from death to a term of years because she would have been the only fifteen-year-old defendant to be executed. In Cooper’s case, after she was sentenced to death two significant events occurred. First, the legislature amended the death penalty statute so that it applied only to persons sixteen years old or older at the time of the crime. Cooper, 540 N.E.2d at 1219. The effective date of this amendment made it inapplicable to Cooper. Id. Second, the United States Supreme Court had recently decided Thompson v. Oklahoma , 487 U.S. 815 (1988), where, in a plurality opinion, the Court held it would be cruel and unusual punishment to execute a fifteen year old.

Cooper is not squarely controlling precedent for Saylor’s case. First, Cooper was a direct appeal and Saylor seeks collateral review. It is also true that Cooper would have been both the first and the last Indiana convict to be sentenced to death for a crime committed at the age of fifteen. Saylor cannot claim he would be the only person executed despite a jury recommendation to the contrary, but he comes very close. Currently two other inmates are on death row after a judge overruled the jury’s recommendation against death, but no execution has been carried out in Indiana where the jury recommended against death. There is one instance where the jury was unable to agree on a recommendation and the death penalty was carried out, Burris v. State, 642 N.E.2d 961 (Ind. 1994); and another defendant sentenced in that circumstance remains on death row today. Holmes v. State, 671 N.E.2d 841 (Ind. 1996). Despite these differences both Paula Cooper and Benny Saylor present situations in which the legislature, after their sentences were imposed, enacted significant changes in the requirements for the death penalty that would render them ineligible for a death sentence in a trial conducted today. Even in dealing with the death penalty not every change in the law affects earlier trials. But we conclude it is not appropriate to carry out a death sentence that was the product of a procedure that has since been revised in an important aspect that renders the defendant ineligible for the death penalty.

In sum, Saylor is one of only three individuals currently under a death sentence despite a jury’s recommendation to the contrary. By virtue of the 2002 amendments to the death penalty statute, no future executions will take place without a jury recommendation. Under these circumstances, it is inappropriate to carry out a death sentence that could not be imposed today. Accordingly, we revise the sentence to a term of imprisonment. It remains to fix that term.

Tennessee v. Odom, 2004 Tenn. LEXIS 452 (Tenn 5/20/2004) (dissent) Trial court committed reversible error by retroactively applying a 1998 amendment to Tennessee's death penalty scheme and allowing the introduction of evidence regarding the facts and circumstances of the defendant's prior felonies.

Applicability of 1998 Statutory Amendment

We begin our analysis by reviewing the language of Tennessee Code Annotated section 39-13-204(c) as it was worded in 1991 at the time of the offense in this case:

In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, [*18] but not be limited to, the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in ; and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted.Tenn. Code Ann. § 39-13-204(c) (1991) (emphasis added).

When this pre-1998 version of the statute was applied to capital sentencing proceedings at which the State relied on the "prior violent felony" aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2), this Court consistently held that it was "not appropriate to admit evidence regarding specific facts of the crime resulting in the previous conviction, when the conviction on its face shows that it involved violence or the threat of violence to the person." State v. Bigbee, 885 S.W.2d 797, 811 (Tenn. 1994); [*19] see also State v. Stout, 46 S.W.3d 689, 701 (Tenn. 2001). In contrast, the 1998 amendment now mandates that such evidence is admissible and must be considered in determining the weight of Tennessee Code Annotated section 39-13-204(i)(2).

The threshold question of whether the trial court committed error in applying the 1998 amendment retroactively in this case was recently resolved in State v. Powers, 101 S.W.3d 383 (Tenn. 2003). In Powers, we unanimously held that a trial court erred by applying the 1998 amendment in a case where the offense occurred "before the effective date of the amendment." Id. at 400. We relied upon State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994), in which this Court had held that the trial court properly instructed the jury on pre-1989 provisions of the capital sentencing statute where the offense had been committed before the enactment of the statutory provisions. The Court explained in Smith that Tennessee Code Annotated section 39-11-112 n5 and the principles against the retroactive application of statutes indicated that the [*20] legislature did not intend for the 1989 amendments to be applied retroactively to offenses occurring before the effective date of the amendments. 893 S.W.2d at 919.

Our decision in Powers was consistent not only with Smith but also numerous other decisions that have held that capital sentencing proceedings must be conducted in accordance with the statutory law in effect at the time the offense was committed. See State v. Cauthern, 967 S.W.2d 726, 731-32 (Tenn. 1998) ("heinous, atrocious or cruel" aggravating circumstance); State v. Bush, 942 S.W.2d 489, 505-07 (Tenn. 1997) [*21] ("heinous, atrocious or cruel" aggravating circumstance); State v. Hutchison, 898 S.W.2d 161, 174 (Tenn. 1994) (non-statutory mitigating circumstances); State v. Cazes, 875 S.W.2d 253, 267 (Tenn. 1994) (burden of proof and "heinous, atrocious or cruel" aggravating circumstance); State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994) (burden of proof). As we clearly said in Smith, "a criminal offender must be sentenced pursuant to the statute in effect at the time of the offense." 893 S.W.2d at 919.

In the face of this strong precedent, the dissent describes Powers as "unpersuasive" and argues that the decision is distinguishable from our prior decisions. n6 We see no justification for this Court to radically depart from the guiding principle of stare decisis by overruling Powers more than one year after its release.

Rather than follow [*22] Powers and our controlling decisions, the dissent adopts the State's main argument that the trial court properly applied the 1998 statutory amendment after determining that it was procedural in nature and not substantive. Although the distinction between substantive and procedural law has been recognized by the courts of this state, we have not applied this distinction in capital sentencing. Hutchison, 898 S.W.2d at 176. n7 Moreover, we continue to reject the State's argument in the present capital case for several reasons.

First, as we emphasized in Brimmer, statutes are presumed to operate prospectively unless the legislature has indicated a contrary intention. 876 S.W.2d at 82. Although the State argues that the 1998 amendment to Tennessee Code Annotated section 39-13-204(c) [*23] is merely procedural and may be applied retroactively, the plain language of the 1998 amendment does not include a retroactivity clause or any other statutory language that indicates a legislative intent for the amendment to be applied retroactively. In sum, had the legislature intended to depart from the long-established rule that statutes are presumed to apply prospectively, it could have so indicated.

Second, the 1998 amendment to Tennessee Code Annotated section 39-13-204(c) is not simply a procedural change to capital sentencing laws. The 1998 amendment directly impacts an aggravating circumstance that is "more qualitatively persuasive and objectively reliable than others" the prosecution may rely upon to seek the death penalty, i.e., the defendant's prior violent felony convictions under Tennessee Code Annotated section 39-13-204(i)(2). State v. Howell, 868 S.W.2d 238, 261 (Tenn. 1993). Moreover, by providing that "such evidence shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury and shall not be subject to exclusion on the ground that the probative [*24] value of such evidence is outweighed by prejudice to either party," the 1998 amendment removes the right of the defendant to invoke the exercise of the trial judge's discretion on the issue of admissibility. Similarly, by providing that "such evidence shall be used by the jury in determining the weight to be accorded the aggravating factor," the 1998 amendment requires the jury to consider as substantive evidence the circumstances of a prior conviction in determining the weight of the (i)(2) aggravating circumstance. n8

Finally, the retroactive application of a statute [*25] in a criminal case also raises the implication of violating constitutional prohibitions against ex post facto laws. An ex post facto violation under article I, section 11 of the Tennessee Constitution occurs whenever a law (1) "provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent," (2) "aggravates a crime or makes it greater than when it was committed," (3) "changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed," (4) "changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender," and (5) "in relation to the offense or its consequences, alters the situation of a person to his disadvantage." Miller v. State, 584 S.W.2d 758, 761 (Tenn. 1979) (citing State v. Rowe, 181 A. 706, 709-10, 116 N.J.L. 48 (1935).

In our view, the application of the 1998 amendment violated article I, section 11 of the Tennessee Constitution. Unlike the statute at the time of the 1991 offense, the 1998 amendment mandated the admission of different and additional [*26] evidence underlying the defendant's violent felonies and required that the evidence be considered by the jury in weighing a critical aggravating circumstance relied upon to seek the penalty of death. n9 Additionally, the 1998 amendment and its consequences affected the capital sentence proceeding to the disadvantage of the defendant. See Miller, 584 S.W.2d at 761. Therefore, the 1998 amendment fits within categories four and five of Miller. Id.

The State's reliance on State v. Pike, 978 S.W.2d 904 (Tenn. 1998), is unpersuasive. The issue in Pike involved the retroactive application of an amended procedural rule that simply gave an equal number of peremptory challenges to both the defendant and the State. The amended rule did not disadvantage the defendant and did not fall into any of the other ex post facto prohibitions under article I, section 11 of the Tennessee Constitution. See Pike, 978 S.W.2d at 926-27 (appendix).

In sum, our decision in Powers recognized that the 1998 amendment was not to be applied to cases occurring before its effective date. Powers, 101 S.W.3d at 400. Our decision was based on and consistent with our prior decisions as to the law applicable to capital sentencing hearings, the well-established principle that statutes are presumed to operate prospectively, and the prohibition of laws that violate ex post facto provisions. Accordingly, we adhere to our decision in Powers and related decisions and conclude that the trial court erred in applying the 1998 amendment.

OTHER NOTABLE CASES

Blake v. Maryland, 2004 Md. LEXIS 250 (Md 5/12/2004) Following "defendant’s invocation of his right to counsel, police officer’s statement, “I bet you want to talk now, huh!”, in conjunction with serving of statement of charges erroneously indicating defendant faced death penalty, constituted functional equivalent of interrogation in violation of defendant’s Fifth Amendment right against compelled self-incrimination. Further, delay of twenty-eight minutes before defendant asked if he could talk to the police is insufficient to constitute waiver of his right to counsel, and trial court properly suppressed defendant’s subsequent inculpatory statements."

FOCUS

John Wesley Hall, Jr, over at FourthAmendment.com notes on the decisionin Thorton v. United States:

Thornton decided—The Supreme Court today decided Thornton v United States (2004, US) 2004 US Lexis 3681, reaffirming Belton v New York, applying Belton to a search incident of a car that was just voluntarily exited by the defendant. The Court held that police officers may prudently wait until the suspect has left the vehicle before making the arrest without losing the opportunity to conduct a search incident if the suspect is close enough to the car to justify a search incident. §§ 16.5 nn. 127.1-.3, 16.10 nn. 186.1-.2, 18.9 nn. 228.1-.6, 18.12.

Comment: This case is no big deal, but it is evident that the Court was fishing for this issue since 2001, having dismissed cert grants in 2001 for lack of jurisdiction and 2003 for potential mootness. It is evident to me that this case does not answer any of the nagging questions raised in the concurring opinions and dissent, and the shaky foundation of Belton, seemingly recognized by all, still is.

The general proposition is hard to disagree with since it is easier to secrete a gun from an approaching police officer in a car. Once a suspect gets out of the car and he does not know he is being observed, the police can better judge whether the suspect is armed, or at least reduce the risk of a violent confrontation. How "close" is "next to" will be another question altogether. This will lead to interesting future litigation as lawyers argue over number of steps and feet from the car the arrest took place, or even which direction the defendant was going and how fast, or even whether the car was locked, whether the car was locked by a remote. See Slip op. at 5 ("In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. An officer may search a suspect's vehicle under Belton only if the suspect is arrested." (emphasis added)) As for the locked car, how fast can a suspect get a key out of his pocket, pick the correct one, put it into the lock, unlock the door, and grab a weapon or evidence when there is a cop standing there between him and the car? It cannot be done, and it is fiction of apply search incident in that situation.

From the Court's syllabus:

"Before Officer Nichols could pull over petitioner, petitioner parked and got out of his car. Nichols then parked, accosted petitioner, and arrested him after finding drugs in his pocket. Incident to the arrest, Nichols searched petitioner’s car and found a handgun under the driver’s seat. Petitioner was charged with federal drug and firearms violations. In denying his motion to suppress the firearm as the fruit of an unconstitutional search, the District Court found, inter alia, the automobile search valid under New York v. Belton, 453 U.S. 454, in which this Court held that, when a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest, id., at 460. Petitioner appealed his conviction, arguing that Belton was limited to situations where the officer initiated contact with an arrestee while he was still in the car. The Fourth Circuit affirmed. [United States v Thornton (2003, CA4 Va) 325 F3d 189]

" Held: Belton governs even when an officer does not make contact until the person arrested has left the vehicle. In Belton, the Court placed no reliance on the fact that the officer ordered the occupants out of the vehicle, or initiated contact with them while they remained within it. And here, there is simply no basis to conclude that the span of the area generally within the arrestee's immediate control is determined by whether the arrestee exited the vehicle at the officer's direction, or whether the officer initiated contact with him while he was in the car. In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and evidence destruction as one who is inside. Under petitioner's proposed 'contact initiation' rule, officers who decide that it may be safer and more effective to conceal their presence until a suspect has left his car would be unable to search the passenger compartment in the event of a custodial arrest, potentially compromising their safety and placing incriminating evidence at risk of concealment or destruction. The Fourth Amendment does not require such a gamble. Belton allows police to search a car's passenger compartment incident to a lawful arrest of both 'occupants' and 'recent occupants.' Ibid. While an arrestee's status as a 'recent occupant' may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car when the officer first initiated contact with him. Although not all contraband in the passenger compartment is likely to be accessible to a 'recent occupant,' the need for a clear rule, readily understood by police and not depending on differing estimates of what items were or were not within an arrestee's reach at any particular moment, justifies the sort of generalization which Belton enunciated. Under petitioner's rule, an officer would have to determine whether he actually confronted or signaled confrontation with the suspect while he was in his car, or whether the suspect exited the car unaware of, and for reasons unrelated to, the officer's presence. Such a rule would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid."

Justice O'Connor concurred: "I join all but footnote 4 of the Court's opinion. Although the opinion is a logical extension of the holding of New York v. Belton, 453 U.S. 454 (1981), I write separately to express my dissatisfaction with the state of the law in this area. As Justice Scalia forcefully argues, post, p. 2-5 (opinion concurring in judgment), lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, 395 U.S. 752 (1969). That erosion is a direct consequence of Belton's shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit."

Justices Scalia and Ginsburg concurred on the ground that Thornton was handcuffed and in the back of a police car at the time of the search incident, so "[t]he Court's effort to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Court's opinion." All the officer safety rationales they found wanting. Instead, they just looked to the likelihood there would be contraband in the car, and the search of the car would then be justified by probable cause.

Justices Stevens and Souter dissented.

So, is the issue over? Not by a long shot. Depending on how one looks at it, five members of the Court do not entirely agree with the final holding.

FROM AROUND THE WEB

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

TRUE MURDERER GETS LIFE 11 YEARS AFTER DEATH ROW INMATE IS FREE

Maryland prosecutors used the same DNA evidence that freed Kirk Bloodsworth (pictured) from Maryland’s death row to secure a life-in-prison sentence for Kimberly Shay Ruffner, the man who has now confessed to the 1984 murder of Dawn Hamilton. Bloodsworth spent years on death row for the rape and murder of Hamilton before DNA evidence conclusively showed that he could not have committed the crime. In 1993, he became the first death row inmate in the country to be freed on the basis of DNA testing. Despite the fact that Ruffner was a known sexual offender with an interest in young girls who lived near the scene of the Hamilton murder, police failed to link him to the crime and instead focused on Bloodsworth. It was not until a decade after Bloodsworth's release, in August 2003, that prosecutors tested the DNA from the crime scene against samples taken from offenders within their system. They discovered that it matched Ruffner, who was in prison serving a 45-year sentence for a similar attack that occurred just three weeks after Bloodsworth’s arrest for the Hamilton murder. Following the discovery of this match, prosecutors apologized to Bloodsworth for wrongly convicting him of the crime and for not disputing claims that he was guilty of the crime despite his exoneration from death row. Prosecutors formally charged Ruffner shortly after the DNA match came to light and in late May 2004 successfully won a life sentence conviction, which Ruffner will begin to serve after his current sentence is completed. (The Baltimore Sun, May 22, 2004) See Innocence

Insistence on the Death Penalty May Interfere with Trial for Saddam Hussei

Great Britain may refuse to hand over evidence of Saddam Hussein’s crimes to Iraqi prosecutors or permit government staff to testify against the former dictator because of the nation’s opposition to the death penalty. Despite human rights objections from British officials who helped establish the special tribunal that will try Hussein and other senior members of his regime, Iraqis have insisted that capital punishment remain a sentencing option for some crimes. Coalition forces have suspended the death penalty during their occupation of Iraq, but it is anticipated that capital punishment will be reinstated following the return of power to the Iraqi people at the end of June, which is prior to Hussein’s tribunal. “The U.K. government has made it clear that it opposes the use of the death penalty. It will be up to the new Iraqi government to determine whether this punishment will be reinstated following the transfer of authority. After the transfer of power to the new Iraqi government, we will continue to lobby against the death penalty,” said British Foreign Office minister Bill Rammell (pictured). (Scotsman.com News, May 23, 2004) See International Death Penalty

Supreme Court Unanimously Allows Lethal Injection Procedure Challenge to Continu

The U.S. Supreme Court unanimously ruled that an Alabama death row inmate could pursue his claim that the lethal injection procedures in his case constitute cruel and unusual punishment. David Nelson, who was less than three hours away from his scheduled execution last fall when the Supreme Court gave him a temporary reprieve, had filed a claim under section 1983 of the Civil Rights Law stating that his damaged veins would make it impossible to insert an intravenous line without cutting deep into flesh and muscle. Nelson said that such a procedure was a violation of his rights under the Eighth Amendment. Alabama maintained that this claim was simply part of Nelson's death penalty appeal and should be dismissed because it was filed too late. The Justices ruled that lower courts were wrong to block appeals by Nelson, and, in the opinion written by Justice Sandra Day O’Connor, the Justices agreed that Nelson's claim was separate from any challenge to his sentence or conviction. Physicians have stated that the cut-down procedure the state would use to find a vein for lethal injection could cause Nelson to badly hemorrhage and suffer heart problems prior to his death caused by the lethal injection drugs. (See Associated Press, May 24, 2004) See Execution Methods. See also, Supreme Court

POSSIBLE INNOCENCE: Former Massachusetts Death Row Inmate Release

After 30 Years in Prison Laurence Adams, who was sentenced to death in Massachusetts in 1974 shortly before the state finally abandoned capital punishment, was released on May 20 after spending three decades of his life in prison. In April 2004, a judge overturned Adams’ conviction when new evidence, including conflicting statements from the state’s star witness and a statement from a witness who said two other people committed the murder, cast doubt on his guilt. Superior Court Judge Robert A. Mulligan said that he vacated the conviction to “avoid a miscarriage of justice.” Suffolk County prosecutors must decide by May 24 whether to appeal Mulligan’s decision or whether they will retry Adams. “You can’t be bitter because you can’t stop the clock,” Adams said. “I did what I had to do in the circumstances in which I was placed. I did everything positive, and I hoped for this day.” (Associated Press, May 20, 2004) See Innocence

PUBLIC OPINION: North Carolinians Support Death Penalty Moratoriu

An April 2004 poll of North Carolinians revealed that 63% of respondents support a halt to executions while the state’s death penalty is studied, and many respondents have doubts about the accuracy of the death penalty. “Support for the two-year suspension of executions is widespread and cuts across all demographic groups, regions of the state and political party affiliation. This is clearly an issue that resonates with the people of North Carolina,” stated John Doble, founder of Doble Research Associations, the national non-partisan firm that conducted the poll. In addition to support for a moratorium, the poll found that 71% of respondents believed that North Carolina definitely or probably freed someone from death row in the last 20 years because he was innocent, and 56% of respondents believed that the state has probably executed an innocent person during the past two decades. While the majority (59%) of those polled favored the death penalty, this number dropped to 33% when respondents were given the sentencing option of life without parole; and it fell even further – to 26% - when they were given the option of life without parole plus restitution to the victims’ family. Regarding elections, 59% said that it would make no difference in their vote if a candidate for the legislature supported a moratorium bill. In fact, 24% said that they would be more likely to support a candidate who supported the temporary halt to executions, and only 12% said that they would be less likely to support that same candidate. The North Carolina Senate passed a bill to impose a moratorium on executions while a study is conducted, and the measure is currently under consideration in the House. The measure would be the nation’s first moratorium passed into law by a state legislature. (North Carolina Coalition for a Moratorium Press Release, May 17, 2004). See Public Opinion and read the Press Release

San Francisco Voters Back DA's Decision to Not Seek Death Sentenc

Both city voters and the Bar Association of San Francisco have voiced support for San Francisco District Attorney Kamala Harris’ decision to not seek the death penalty in the case against David Hill, who is accused of killing city police officer Isaac Espinoza. A recent poll found that 70% of respondents backed Harris’ decision, while only 22% opposed the choice and 8% remained undecided. The poll also found that 65% of those surveyed gave Harris’ overall performance as District Attorney favorable marks. Harris ran for office as an opponent of capital punishment. The San Francisco Bar Association also praised Harris’ decision to seek a sentence of life without parole for Hill, and members voiced their support for keeping the trial within Harris' domain. The Association cautioned that all district attorneys could see their power of prosecutorial discretion eroded if California State Attorney General Bill Lockyer or federal prosecutors decide to take over the case in order to pursue a capital conviction. (San Francisco Chronicle, May 19, 2004) See Public Opinion. See also, Life Without Parole

NEW VOICES: New York Religious Leaders Unite Against Death Penalty, Call for Moratoriu

New York religious leaders representing a range of faiths and regions recently united to voice their opposition to the death penalty and to encourage a moratorium on executions so that issues of fairness and accuracy may be addressed. A statement issued by the group noted

“[O]ur nation’s continued reliance on the death penalty is extremely costly, ineffective in fighting crime, unequally applied, and handed out with alarming frequency to defendants who are later proved to be innocent. Even most death penalty proponents now agree that there are serious problems with its implementation. We in the religious community now step forward to set the moral tone for the debate on this issue, promote serious and thoughtful reflection, and make known the reasons why we believe executions will not solve the problem or violent crime in the State of New York. We believe that: Retribution is proper in society; revenge is not. All people are capable of atonement and forgiveness. The death penalty is not a deterrent to violent crimes. The death penalty is not, and probably cannot be, applied equitably and fairly. The death penalty is not the source of healing for the families of murdered victims. . . . “In the interim, we endorse a moratorium on the death penalty in New York as an attractive, fair, and moral position to assume regarding state executions. It affords an opportunity to examine both the purpose of the penalty and its perceived effectiveness, and can save the lives of the falsely condemned. Because we recognize that people of good will may disagree about the ultimate morality of capital punishment, a moratorium can represent common ground for people on both sides of the issue who care about justice. The time to study New York’s death penalty law is now.” (New York Religious Leaders Against the Death Penalty, May 2004) See New Voices

Texas Board Recommends Clemency on Eve of Execution On the eve of the Kelsey Patterson's scheduled execution in Texas, the state’s Board of Pardons and Paroles voted 5-1 to recommend that Governor Rick Perry commute Patterson’s death sentence to life in prison. In its rare recommendation for clemency, the Board noted that if Governor Perry refuses to grant clemency, Patterson, a mentally ill man who is scheduled to be executed on Tuesday, May 18th, should receive a 120-day reprieve. The Board’s actions mark the first time in more than two decades that members have recommended a commutation to the governor at such a late state in a condemned inmate’s case. Patterson has been diagnosed as a paranoid schizophrenic who, in the years leading up to his capital murder conviction, was ruled mentally incompetent to stand trial on unrelated charges. His impending execution renewed the question of whether it is proper to execute someone who is mentally ill when the U.S. Supreme Court ruled in 2002 that it is unconstitutional to execute someone who is mentally retarded. (Associated Press, May 18, 2004) UPDATE: Despite the recommendation of the Pardons and Paroles Board, Governor Perry denied the clemency request, and Patterson was executed on May 18, 2004. See Clemency. See Mental Illness. Read Amnesty International’s Report on Kelsey Patterson

Abolition of the Death Penalty Gaining Ground in Afric

During the past 10 years, most Commonwealth African countries have moved toward abolishing the death penalty and today almost half of these countries have abandoned the practice according to Amnesty International. Government leaders from around the continent recently met in Entebbe, Uganda, for a two-day summit to discuss capital punishment. Five Southern African Development Countries have abolished capital punishment, and the number of countries ending the death penalty in the Economic Community of West Aftican States region and Mauritania jumped from one to 10 in just one decade. In addition, Presidents from several nations, including Zambia, Nigeria, and Kenya, have taken significant steps toward commuting death sentences and working toward abolition. “Only Guinea, Liberia, Nigeria, and Sierra Leone have carried out executions in the last decade. Amnesty International welcomes positive action across Africa to abolish capital punishment,” noted Amnesty International in a statement. “Worldwide, an average of three countries a year abolishes capital punishment.” (Mail & Guardian Online, May 11, 2004) See International Death Penalty

NEW RESOURCE: CBS to Air Mini-series Based on Turow Death Penalty Nove

A television Mini-series based on the fiction novel “Reversible Errors,” a best-selling book by award-winning author and capital defense attorney Scott Turow, will air on CBS on Sunday May 23, and Tuesday May 25, 2004. The story is about a corporate lawyer whose world is turned upside-down when he is assigned to draft the final appeal of a potentially innocent inmate nearing his execution date. Although “Reversible Errors” is not about an actual capital case in the U.S., the novel and the CBS mini-series encapsulate many of the issues that raise questions about the accuracy and fairness of the death penalty, including false confessions, innocence, and race. In an intervew about the movie and about how his experiences shade this fiction work, Turow, who served as a member of the blue-ribbon Illinois Commission on Capital Punishment, stated

“The (death penalty) system can be no more prefect than we are as people…However, I think for me the biggest revelation, even beyond the particulars of false confessions or false eye-witness identifications, was the fact that the very monstrous crimes that get prosecuted in murder cases often end up being a pathway to error because we’re all so frightened. We all want to go back to our sense of security, and it’s easy to make mistakes. We’ve done it. We’ve done it a lot. . . . “Like every other lawyer I see the world through my cases. The experience of sitting on [former Illinois] Governor George Ryan’s Commission on Capital Punishment had me looking at a whole universe of cases. Suddenly, I was in a position to make systemic judgments instead of just judgments about the isolated, individual cases I worked on as a lawyer. The most striking thing to me was just trying to make sense of who got sentenced to death and who didn’t. I started reading through the first-degree homicide cases and I couldn’t make any sense of it – and it wasn’t because good people weren’t trying to do the right thing. Yet, it ends up being a moral hodgepodge.” Turow is the author of several best-selling books, including his most recent work, a non-fiction book titled “Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.” (CBS Press materials, May 2004) See Resources. See also, Innocence

Oklahoma Governor Grants Clemency to Mexican Foreign Nationa

Just days before the scheduled execution of Osvaldo Torres, a Mexican foreign national on Oklahoma’s death row, Governor Brad Henry granted a request for clemency in part because of a recent International Court of Justice decision ordering the United States to review the cases of 51 Mexican foreign nationals on death row because they were denied their right to seek consular assistance following their arrest. Henry’s announcement came just hours after the Oklahoma Court of Criminal Appeals decided to stay Torres’ execution and order a new hearing in his case. Last week, the Oklahoma Board of Pardon and Parole recommended clemency for Torres. Although Henry has denied three similar recommendations from the Board since taking office, his decision to commute Torres’ sentence to life in prison without parole marks the first time that the Governor has granted clemency to an individual on death row. In his statement, Henry said the International Court of Justice ruling is binding on U.S. courts, and that the U.S. State Department had contacted his office to urge that he give careful consideration to the fact that the U.S. signed the 1963 Vienna Convention on Consular Relations, which ensures access to consular assistance for foreign nationals who are arrested. “The treaty is also important to protecting the rights of American citizens abroad,” Henry noted. In an opinion concurring with the Court of Criminal Appeals majority decision to hear Torres’ claims that he was denied his access to consular assistance and that he was represented by ineffective counsel during trial, Judge Charles Chapel wrote, “I have concluded that there is a possibility a significant miscarriage of justice occurred, as shown by Torres’ claims, specifically that the violation of his Vienna Convention rights contributed to trial counsel’s ineffectiveness, that the jury did not hear significant evidence, and the results of the trial is unreliable.” (The Oklahoman, May 14, 2004) In addition to those on death row in Oklahoma, Mexican foreign nationals that could be affected by the ICJ’s ruling are on death rows in Arizona, Arkansas, California, Nevada, Ohio, Oregon, and Texas. None of these remaining foreign nationals are currently scheduled for execution. See Clemency. See also, Foreign Nationals. NEW VOICES: Scientific Experts Say DNA Evidence Not “Infallible” Scientists who are skeptical of Massachusetts Governor Mitt Romney’s claim that DNA is “infallible” evidence in a death penalty case have voiced concern about the assumption, noting that there is no way to avoid all possible instances of human error and that the evidence does not always prove a person’s guilt or innocence. Theodore D. Kessis is the founder of Applied DNA Resources, based in Columbus, Ohio, and a faculty member at the John Hopkins School of Public Health in Baltimore. He provides expert testimony and analysis to the legal community, including reviews of protocols used by labs that analyze DNA evidence, and notes, “[L]ike anything that involves humans, there is always the possibility of error in DNA testing. I would not go so far as to say that DNA is foolproof. The spectrum of a DNA test may range from foolproof to something’s wrong here. DNA testing is a tool, and how that tool is used in a criminal trial may depend upon what you are trying to prove. Don’t misunderstand me, DNA is an invaluable tool. But in and of itself, DNA cannot tell you who committed a crime.” Dean Wideman, a forensic scientist from Texas, echoed Kessis’s concerns and noted that DNA evidence has its limitations. “DNA evidence has been used to acquit as often as convict... What it doesn’t tell us is the stuff that lawyers are good at using – it doesn’t tell us whether semen left is the result of rape or consensual sex. It doesn’t tell us what time a person was at a scene. It does not tell us why a person was at a scene... For all we hear about DNA evidence, oftentimes it is not going to move a case in one direction or another,” he said. (Cape Cod Times, May 6, 2004) See New Voices. See also, Innocence

NEW VOICES: Supreme Court Justice Stevens Says U.S. “Better Off “ Without Capital Punishmen

During a “fireside chat” with fellow Supreme Court Justice Stephen Breyer and hundreds of lawyers and judges who practice in federal courts in Illinois, Indiana and Wisconsin, Supreme Court Justice John Paul Stevens stated, “I think this country would be much better off if we did not have capital punishment.” Stevens noted that he believes the death penalty is constitutional, adding, “But I really think it’s a very unfortunate part of our judicial system and I would feel much, much better if more states would really consider whether they think the benefits outweigh the very serious potential injustice, because in these cases the emotions are very, very high on both sides and to have stakes as high as you do in these cases, there is a special potential for error. We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” The “fireside chat” was part of the 7th Circuit Bar Association dinner in Chicago. Justice Stevens and Justices Ruth Bader Ginsberg and Sandra Day O’Connor have all voiced concerns about the death penalty in recent years, but this is perhaps one the most pronounced statements against capital punishment made by a Supreme Court justice since the late Harry Blackmun, who wrote in 1994, “From this day forward, I no longer shall tinker with the machinery of death.” See New Voices

NEW RESOURCE - America’s Death Penalty: Beyond Repair

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

Investigation Reveals Cases of Innocence in Massachusett

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

Oklahoma Board Recommends Clemency for Mexican Nationa

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

North Carolina Lawyers’ Group Recommends Overhaul of Death Penalt

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

Alabama's Death Penalty Problems Continu

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

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