Capital Defense Weekly, May 26, 2003

By Capital Defense Newsletter
May 26, 2003

Leading off this week's edition isLynn v. Reinsteinfrom the Arizona Supreme Court. Following on the heel's of the last edition's examination of the briefs from a Louisiana case where a murder victim's family member wanted to testify for the defense for life, the Arizona High Court holds that murder victim family members may not tell a jury they want life and not death as a matter of federal constitutional law.

JoiningLynnon the "Hot List" is the South Carolina Supreme Court's decision inSouth Carolina v. Bryant. InBryantthe Court holds that law enforcement's contact with jurors' family members compromised the jury's verdict. In that case police contact went so far as to ask family members whether a given juror would return death and to tell the spouse of at least one juror that the police wanted the jury to return death for the defendant, an alleged cop-killer.

Elsewhere, in Harlan v. Colorado a state trial court has held that Bible study during the jury's deliberations to determine the fate of the defendant was error. The trial court's opinion, in part, can be found below in the "Focus" section. With the grant of relief in Harlan & the Supreme Court's decision in Ring, Colorado is left with just one person on death row.

The United States Supreme Court, now in its final weeks for this Term, has handed down two germane opinions. InBunkley v. Floridathe Court held that due process may be violated in certain circumstances if a Defendant is not afforded the benefit of changes in law that came down after his direct appeal became final. InChavez v. Martinezthe Court holds where a confession is coerced and the state does not prosecute there is no Fifth Amendment violation that would permit a § 1983 suit.

EXECUTION INFORMATION

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

May

27 Robert Knighton Oklahoma

Percy Walton in Virginia received a stay of his May 28 execution date on mental health/retardation issues.

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

June
5 Kenneth Charm Oklahoma
11 Kia Johnson Texas
13 Joseph Trueblood Indiana
18 Ernest Martin Ohio
18 Kenneth Thomas Texas
18 Abu-Ali Abdur'Rahman Tennessee
24 Lewis Williams Ohio
27 Jerome Campbell Ohio
27 Roberto Arguelles Utah
28 Troy Kell Utah

HOT LIST

Lynn v. Reinstein, 2003 Ariz. LEXIS 66 (Ariz 5/19/2003) A murder victim's family member may not tell the jury that the family prefers LWOP over death as a matter of federal constitutional law.

P6 The Arizona Victims' Bill of Rights "protect[s] victims' rights to justice and due process." Ariz. Const. art. 2, § 2.1(A). As one whose spouse was murdered, Petitioner qualifies as a victim of a crime. See id. § 2.1(C) (including the spouse of a person against whom a crime has been committed as a "victim"); Ariz. Rev. Stat. ("A.R.S.") § 13-703.01(R)(2) (Supp. 2002) (same). As such, Petitioner is entitled by the Arizona Victims' Bill of Rights to "be heard at any proceeding involving . . . sentencing." Ariz. Const. art. 2, § 2.1(A)(4); see also A.R.S. § 13-4426(A), (B) (2001) (affording victims the right to "address the court" regarding "opinions that concern . . . the sentence . . . at any aggravation, mitigation, presentencing, or sentencing proceeding"). At issue in this case is whether that right encompasses a right to opine regarding the sentence itself, or whether the right is limited to offering testimony regarding the victim and the impact of the crime upon the victim and the victim's family.
P7 The rights granted to victims are to "be liberally construed." A.R.S. § 13-4418. Petitioner [*6] contends that a liberal construction of the Arizona Constitution and victims' rights statutes compels the conclusion that a victim may recommend to the jury in a capital sentencing proceeding the sentence that the victim believes the jury should impose. n3 He reasons that because victims' opinions on sentencing are admissible in non-capital cases, they should also be allowed in capital cases, for "nothing . . . suggests that, as the severity of the crime escalates, the victim's rights should diminish."
P8 To the contrary, however, Supreme Court death penalty jurisprudence has recognized that "death is a 'punishment different from all other sanctions,' and that therefore the considerations that inform the sentencing decision may be different from those that" apply to other punishments. Booth v. Maryland, 482 U.S. 496, 509 n.12, 107 S. Ct. 2529, 2536 n.12, 96 L. Ed. 2d 440 (1987) [*7] (internal citation omitted), overruled in part by Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). Thus, while states generally enjoy latitude in designing and implementing their criminal justice systems, "the Eighth Amendment imposes special limitations" upon the process for imposing the death penalty. Payne, 501 U.S. at 824, 111 S. Ct. at 2607-08. Consequently, Arizona may not permit victims to recommend sentences in capital cases if the Eighth Amendment prohibits such recommendations.
P9 In 1987, the Supreme Court examined the admissibility in a capital trial of the victims' statements regarding the impact of the defendant's crimes. See Booth, 482 U.S. at 496, 107 S. Ct. at 2529. The victims' statements in Booth fell into three categories: (1) statements regarding the deceased's personal characteristics; (2) statements regarding the impact of the crime on the victims' family; and (3) the victims' "family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence." Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2 (characterizing [*8] the victim impact evidence in Booth). The Court observed that sentencing decisions must be based only "on 'the character of the individual [defendant] and the circumstances of the crime.'" Booth, 482 U.S. at 502, 107 S. Ct. at 2532 (quoting Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 2743, 77 L. Ed. 2d 235 (1983)). The Court therefore carefully scrutinized a state statute requiring the consideration of information regarding the victim, in order to minimize "the risk that a death sentence will be based on considerations that are 'constitutionally impermissible or totally irrelevant to the sentencing process.'" Id. at 502, 107 S. Ct. at 2533 (quoting Zant, 462 U.S. at 885, 103 S. Ct. at 2747). The Court determined that victims' opinions regarding the crime and appropriate sentence "can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id. at 508, 107 S. Ct. at 2536. In a sharply divided opinion, the Court held that "the introduction of a [victim impact statement] at the sentencing phase of a capital murder [*9] trial violates the Eighth Amendment," and therefore held unconstitutional a state statute requiring the consideration of such information. Id. at 509, 107 S. Ct. at 2536.
P10 The four-member dissent in Booth focused on society's growing concern for the rights of victims of crime, a concern that has culminated in a movement to address "the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant's moral guilt, but also the amount of harm he has caused to innocent members of society." Id. at 520, 107 S. Ct. at 2542 (Scalia, J., dissenting). The majority's limitation of relevant evidence regarding a defendant's blameworthiness also troubled the Court's dissenting members. Justice White observed that the harm caused by a defendant's criminal conduct should be relevant to sentencing and that a murderer should be held "accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused." Id. at 516, 107 S. Ct. at 2540 (White, J., dissenting).
P11 Just four years later, the Court overruled aspects of Booth's broad prohibition on the presentation [*10] of victim impact evidence. Payne, 501 U.S. at 827-30 & n.7, 111 S. Ct. at 2609-11 & n.7. While not ruling all victim statements admissible, the Court in Payne determined that a witness's testimony regarding the effect of the defendant's crime may be relevant to sentencing, and it removed the per se bar to the admission of such evidence that Booth had erected. Id. at 825-27, 111 S. Ct. at 2608-09.
P12 Petitioner asserts that Payne overruled all barriers to the admissibility of victim opinion statements. We think Petitioner "moves too quickly over the terrain we must cover." Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73, 117 S. Ct. 467, 475, 136 L. Ed. 2d 437 (1996). The Court's opinions in Payne are carefully circumscribed. The majority opinion notes that the case did not involve victim statements regarding the appropriate sentence to be imposed. Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2. Justice O'Connor's concurring opinion, in which Justices White and Kennedy joined, echoes this limitation, id. at 833, 111 S. Ct. at 2612-13 (O'Connor, J., concurring), as does Justice Souter's [*11] concurring opinion, id. at 835 n.1, 111 S. Ct. at 2614 n.1 (Souter, J., concurring) ("This case presents no challenge to the Court's holding in Booth v. Maryland that a sentencing authority should not receive a third category of information concerning a victim's family members' characterization of and opinions about the crime, the defendant, and the appropriate sentence."). Thus Payne did not overrule and indeed left intact that portion of Booth that the Court itself has characterized as prohibiting victims from recommending a sentence in a capital case. n4 Id. at 830 n.2, 111 S. Ct. at 2611 n.2.
P13 The Court's opinion in Payne recognized that the characteristics of the victim and the impact of the crime on the victim's family may be relevant in determining blameworthiness and culpability and in assessing the harm caused by the defendant's conduct and, therefore, such evidence is relevant in determining whether the death penalty should be imposed. See id. at 825-27, 111 S. Ct. at 2608-09. The Court concluded that, in determining a "defendant's moral culpability and blameworthiness," states may allow jurors to hear evidence of the specific harm the defendant has caused. Id. at 825, 111 S. Ct. at 2608. The Court reasoned that because victim impact evidence serves "entirely legitimate purposes," id., "there is no reason to treat such evidence differently than other relevant evidence is treated." Id. at 827, 111 S. Ct. at 2609. But while Payne overruled Booth's per se ban on victims' statements regarding the victim and the impact of the crime on the victim's family, it did not find victims' sentencing opinions relevant. n5 Id. at 827, 830 & n.2, 111 S. Ct. at 2609, 2611 & n.2; accord State v. Sansing, 200 Ariz. 347, 358, PP35-37, 26 P.3d 1118, 1129 (2001) [*13] (affirming the trial court's refusal to consider the victim's ten-year-old daughter's request for mercy as a mitigating circumstance because the request for mercy was not relevant to mitigation), vacated on other grounds by 122 S. Ct. 2654 (2002). Indeed, the Supreme Court carefully limited its opinion in Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2, and did not disturb its earlier determination that victim sentencing opinions were not only irrelevant in capital sentencing proceedings, but might well be prejudicial. See Booth, 482 U.S. at 508-09, 107 S. Ct. at 2535-36.
P14 Petitioner relies on cases from Oklahoma in support of his position that victims' opinions regarding sentencing should be allowed in capital cases. These cases are premised on an Oklahoma statute that purports to allow victims to suggest to jurors the sentence. See, e.g., Ledbetter v. State, 1997 OK CR 5, 933 P.2d 880 (Okla. Crim. App. 1997) (applying Okla. Stat. tit. 22, § 984(1)). Yet even the Oklahoma courts recognize that such "evidence may not pass scrutiny by the United States Supreme Court" in light of its decision in Payne, 501 U.S. at 830, 111 S. Ct. at 2611. State v. Hain, 1996 OK CR 26, 919 P.2d 1130, 1144 n.3 (Okla. Crim. App. 1996). Moreover, we note that the Tenth Circuit, sitting on habeas corpus review in Hain, recently held that the Oklahoma court violated the defendant's Eighth Amendment rights by allowing the victims in that case to offer opinions regarding the appropriate sentence. Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002). Thus, we are unpersuaded to follow the reasoning of the Oklahoma Court of Criminal Appeals in this area.
P15 Finally, Petitioner has urged that a victim [*15] has status as a "limited party" in a capital case and this status entitles the victim to opine regarding the sentence to be imposed. Petitioner cites no authority in support of his asserted status, and we find none. No statute or rule confers party status upon a victim, and the one case addressing the point held that a victim is not an aggrieved party for purposes of filing a petition seeking review of a court's grant of post-conviction relief. See State v. Lamberton, 183 Ariz. 47, 899 P.2d 939 (1995). In Lamberton, this court acknowledged a victim's standing "only to 'seek an order or to bring a special action' to assert the enumerated rights guaranteed by the [Victims' Bill of Rights]." Id. at 50, 899 P.2d at 942 (quoting A.R.S. § 13-4437). Moreover, Petitioner conceded at oral argument that even a party may not opine regarding irrelevant facts or unfairly prejudicial issues. We thus conclude that victims are not parties to a defendant's criminal case.
P16 Victims deserve to be heard and to receive fair treatment in the criminal justice system. Indeed, the Supreme Court recognized as much when it reaffirmed Justice [*16] Cardozo's statement that "justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." Payne, 501 U.S. at 827, 111 S. Ct. at 2609 (quoting Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338, 78 L. Ed. 674 (1934)). The Court thus removed the per se bar to the admission of victims' statements regarding the effect of a crime upon their lives, requiring only that the states determine the victim impact statements "relevance to the jury's decision as to whether or not the death penalty should be imposed." Id. It did not, however, remove the bar precluding sentencing recommendations.
P17 While the Court has recognized the victims' desire to tell jurors of the effect of a defendant's crime upon their lives, the victims' right to speak is not unlimited. Statements relevant to the harm caused by the defendant's criminal acts are no longer barred by the Eighth Amendment. But statements regarding sentencing exceed those bounds and violate the Eighth Amendment, and therefore are prohibited. Victims' recommendations to the jury regarding [*17] the appropriate sentence a capital defendant should receive are not constitutionally relevant to the harm caused by the defendant's criminal acts or to the defendant's blameworthiness or culpability. See State v. Mann, 188 Ariz. 220, 228, 934 P.2d 784, 792 (1997); State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437, 454 (1995). Petitioner's request to opine regarding sentencing, therefore, is denied.

South Carolina v. Bryant, 2003 S.C. LEXIS 112 (SC 5/12/2003) "Appellant argues the trial judge erred by denying his motion for a new trial on the basis that law enforcement's contact with jurors' family members compromised his right to a fair and impartial jury. We agree"

The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant a fair trial by a panel of impartial and indifferent jurors. Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); see also S.C. Const. art. I, §§ 3 & 14. "In order to fully safeguard this protection, it is required that the jury render its verdict free from outside influences of whatever kind and nature." State v. Cameron, 311 S.C. 204, 207, 428 S.E.2d 10, 12 (Ct.App.1993). In cases where a juror's partiality is questioned after trial, it is appropriate to conduct a hearing in which the defendant has the opportunity to prove actual juror bias. Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954). n2
After thorough consideration of the trial record, the new trial hearing, and the applicable law, we conclude appellant's right to a fair trial by a panel of impartial and indifferent jurors was compromised by the State's action. While we do not as a rule disapprove of juror background investigations, n3 we can not condone the activity which admittedly occurred in this case. n4
Here, appellant was indicted on a charge of capital murder for the death of a Horry County Police officer. After the State and appellant individually questioned each [*10] juror as to his or her view on the death penalty and the trial judge determined that thirty-nine jurors could fairly and impartially carry out their duties if seated on the jury (i.e., impose a sentence of either life imprisonment or death based upon the circumstances of the crime and the characteristics of appellant), n5 detectives from the Horry County Police Department contacted relatives of the qualified jurors. In at least two instances, the detectives asked family members whether their relative could impose the death penalty. In one instance, the detective informed a juror's wife the police wanted the death penalty. During the trial, the jurors were aware police investigators had contacted their family members.
We find the questioning of jurors' family members by Horry County Police detectives in a case in which the victim was a Horry County Police Department Officer was, at minimum, an attempt to influence the jury. See In the Matter of Two Anonymous Members of the South Carolina Bar 278 S.C. 477, 298 S.E.2d 450 (1982) (explaining purpose of former rule DR 7-108(F) prohibiting contact between lawyer and prospective juror's family was to eliminate ability of family member to exert influence). Under the circumstances, the questioning could have been perceived as an attempt to intimidate jurors. Given the nature of the case, the timing of the inquiries, and the questions which were asked, we conclude the jury investigation produced a jury which was not fair and impartial and, therefore, appellant's Sixth and Fourteenth Amendment rights were violated.

SUPREME COURT

Bunkley v. Florida, --- US -- (5/27/2003) Remand ordered on the question of where in the "evolution" of Florida case law regarding "common pocketknives" was the case law on the day Petitioner's case became final. In practical terms the Court holds failure to retroactively apply some changes in state law may implicate the due process clause.

Fiore v. White involved a Pennsylvania criminal statute that the Pennsylvania Supreme Court interpreted for the first time after the defendant Fiore's conviction became final. See 531 U. S., at 226. Under the Pennsylvania Supreme Court's interpretation of the criminal statute, Fiore could not have been guilty of the crime for which he was convicted. See id., at 227-228. We originally granted certiorari in Fiore to consider "when, or whether, the Federal Due Process Clause requires a State to apply a new interpretation of a state criminal statute retroactively to cases on collateral review." Id., at 226. "Because we were uncertain whether the Pennsylvania Supreme Court's decision ... represented a change in the law," we certified a question to the Pennsylvania Supreme Court. Id., at 228. This question asked whether the Pennsylvania Supreme Court's interpretation of the statute " 'state[d] the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final.' " Ibid.
When the Pennsylvania Supreme Court replied that the ruling " 'merely clarified the plain language of the statute,' " ibid., the question on which we originally granted certiorari disappeared. Pennsylvania's answer revealed the "simple, inevitable conclusion" that Fiore's conviction violated due process. Id., at 229. It has long been established by this Court that "the Due Process Clause ... forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt." Id., at 228-229. Because Pennsylvania law--as interpreted by the later State Supreme Court decision--made clear that Fiore's conduct did not violate an element of the statute, his conviction did not satisfy the strictures of the Due Process Clause. Consequently, "retroactivity [was] not at issue." Id., at 226.
Fiore controls the result here. As Justice Pariente stated in dissent, "application of the due process principles of Fiore" may render a retroactivity analysis "unnecessary." 833 So. 2d, at 747. The question here is not just one of retroactivity. Rather, as Fiore holds, "retroactivity is not at issue" if the Florida Supreme Court's interpretation of the "common pocketknife" exception in L. B. is "a correct statement of the law when [Bunkley's] conviction became final." 531 U. S., at 226. The proper question under Fiore is not whether the law has changed. Rather, Fiore requires that the Florida Supreme Court answer whether, in light of L. B., Bunkley's pocketknife of 21/2 to 3 inches fit within §790.001(13)'s "common pocketknife" exception at the time his conviction became final.
Although the Florida Supreme Court has determined that the L. B. decision was merely an "evolutionary refinement" in the meaning of the "common pocketknife" exception, it has not answered whether the law in 1989 defined Bunkley's 21/2- to 3-inch pocketknife as a "weapon" under §790.001(13). Although the L. B. decision might have "culminat[ed] ... [the] century-long evolutionary process," the question remains about what §790.001(13) meant in 1989. 833 So. 2d, at 745. If Bunkley's pocketknife fit within the "common pocketknife" exception to §790.001(13) in 1989, then Bunkley was convicted of a crime for which he cannot be guilty--burglary in the first degree. And if the "stages" of §790.001(13)'s "evolution" had not sufficiently progressed so that Bunkley's pocketknife was still a weapon in 1989, this case raises the issue left open in Fiore.
It is true that the Florida Supreme Court held Fiore inapplicable because the L. B. decision was a change in the law which "culminat[ed] [the] century-long evolutionary process." 833 So. 2d, at 745. As the dissent acknowledges, however, see post, at 1-2, n. 1, the Florida Supreme Court's decision in L. B. cast doubt on the validity of Bunkley's conviction. For the first time, the Florida Supreme Court interpreted the common pocketknife exception, and its interpretation covered the weapon Bunkley possessed at the time of his offense. In the face of such doubt, Fiore entitles Bunkley to a determination as to whether L. B. correctly stated the common pocketknife exception at the time he was convicted. Ordinarily, the Florida Supreme Court's holding that L. B. constitutes a change in--rather than a clarification of--the law would be sufficient to dispose of the Fiore question. By holding that a change in the law occurred, the Florida Supreme Court would thereby likewise have signaled that the common pocketknife exception was narrower at the time Bunkley was convicted.
Here, however, the Florida Supreme Court said more.
It characterized L. B. as part of the "century-long evolutionary process." 833 So. 2d, at 745. Because Florida law was in a state of evolution over the course of these many years, we do not know what stage in the evolutionary process the law had reached at the time Bunkley was convicted. The Florida Supreme Court never asked whether the weapons statute had "evolved" by 1989 to such an extent that Bunkley's 21/2- to 3-inch pocketknife fit within the "common pocketknife" exception. The proper question under Fiore is not just whether the law changed. Rather, it is when the law changed. The Florida Supreme Court has not answered this question; instead, it appeared to assume that merely labeling L. B. as the "culmination" in the common pocketknife exception's "century-long evolutionary process" was sufficient to resolve the Fiore question. 833 So. 2d, at 745. It is not. Without further clarification from the Florida Supreme Court as to the content of the common pocketknife exception in 1989, we cannot know whether L. B. correctly stated the common pocketknife exception at the time he was convicted.
On remand, the Florida Supreme Court should consider whether, in light of the L. B. decision, Bunkley's pocketknife of 21/2 to 3 inches fit within §790.001(13)'s "common pocketknife" exception at the time his conviction became final. The judgment of the Supreme Court of Florida, accordingly, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Chavez v. Martinez, --- US -- (5/27/2003) Where a confession is coerced and the state does not prosecute there is no Fifth Amendment violation that would permit a § 1983 suit.

While respondent Martinez was being treated for gunshot wounds received during an altercation with police, he was interrogated by petitioner Chavez, a patrol supervisor. Martinez admitted that he used heroin and had taken an officer's gun during the incident. At no point was Martinez given Miranda warnings. Although he was never charged with a crime, and his answers were never used against him in any criminal proceeding, Martinez filed a 42 U. S. C. §1983 suit, maintaining, among other things, that Chavez's actions violated his Fifth Amendment right not to be "compelled in any criminal case to be a witness against himself," and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The District Court ruled that Chavez was not entitled to qualified immunity, and the Ninth Circuit affirmed, finding that Chavez's coercive questioning violated Martinez's Fifth Amendment rights even though his statements were not used against him in a criminal proceeding, and that a police officer violates due process when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial.
Held: The judgment is reversed, and the case is remanded.
270 F. 3d 852, reversed and remanded.
Justice Thomas, joined by The Chief Justice, Justice O'Connor, and Justice Scalia, concluded in Part II-A that Chavez did not deprive Martinez of his Fifth Amendment rights. Pp. 4-12.
(a) An officer is entitled to qualified immunity if his alleged conduct did not violate a constitutional right. See Saucier v. Katz, 533 U. S. 194, 201. The text of the Fifth Amendment's Self-Incrimination Clause cannot support the Ninth Circuit's view that mere compulsive questioning violates the Constitution. A "criminal case" at the very least requires the initiation of legal proceedings, and police questioning does not constitute such a case. Statements compelled by police interrogation may not be used against a defendant in a criminal case, but it is not until such use that the Self-Incrimination Clause is violated, see United States v. Verdugo-Urquidez, 494 U. S. 259, 264. Martinez was never made to be a "witness" against himself because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to " 'the cruel trilemma of self-accusation, perjury or contempt.' " Michigan v. Tucker, 417 U. S. 433, 445. Pp. 4-5.
(b) The Ninth Circuit's approach is also irreconcilable with this Court's case law. The government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies, see, e.g., Kastigar v. United States, 406 U. S. 441, 443; and this Court has long permitted the compulsion of incriminating testimony so long as the statements (or evidence derived from them) cannot be used against the speaker in a criminal case, id., at 458. Martinez was no more compelled in a criminal case to be a witness against himself than an immunized witness forced to testify on pain of contempt. That an immunized witness knows that his statements may not be used against him, while Martinez likely did not, does not make the immunized witness' statements any less compelled and lends no support to the Ninth Circuit's conclusion that coercive police interrogations alone violate the Fifth Amendment. Moreover, those subjected to coercive interrogations have an automatic protection from the use of their involuntary statements in any subsequent criminal trial, e.g., Oregon v. Elstad, 470 U. S. 298, 307-308, which is coextensive with the use and derivative use immunity mandated by Kastigar. Pp. 6-8.
(c) The fact that the Court has permitted the Fifth Amendment privilege to be asserted in noncriminal cases does not alter the conclusion in this case. Judicially created prophylactic rules--such as the rule allowing a witness to insist on an immunity agreement before being compelled to give testimony in noncriminal cases, and the exclusionary rule--are designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. They do not extend the scope of that right itself, just as violations of such rules do not violate a person's constitutional rights. Accordingly, Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights and cannot be grounds for a §1983 action. And the absence of a "criminal case" in which Martinez was compelled to be a "witness" against himself defeats his core Fifth Amendment claim. Pp. 8-12.
Justice Souter delivered the opinion of the Court with respect to Part II, concluding that the issue whether Martinez may pursue a claim of liability for a substantive due process violation should be addressed on remand. P. 4.
Justice Souter, joined by Justice Breyer, concluded in Part I that Martinez's claim that his questioning alone was a violation of the Fifth and Fourteenth Amendments subject to redress by a 42 U. S. C. §1983 damages action, though outside the core of Fifth Amendment protection, could be recognized if a core guarantee, or the judicial capacity to protect it, would be placed at risk absent complementary protection, see, e.g., McCarthy v. Arndstein, 266 U. S. 34, 40. However, Martinez cannot make the "powerful showing" necessary to expand protection of the privilege against self-incrimination to the point of the civil liability he requests. Inherent in his purely Fifth Amendment claim is the risk of global application in every instance of interrogation producing a statement inadmissible under the Fifth and Fourteenth Amendments, or violating one of the complementary rules this Court has accepted in aid of the core privilege. And Martinez has offered no reason to believe that this new rule is necessary in aid of the basic guarantee. Pp. 1-4.
Thomas, J., announced the judgment of the Court and delivered an opinion, which was joined by Rehnquist, C. J., in full, by O'Connor, J., as to Parts I and II-A, and by Scalia, J., as to Parts I and II. Souter, J., delivered an opinion, Part II of which was for the Court and was joined by Stevens, Kennedy, Ginsburg, and Breyer, JJ., and Part I of which concurred in the judgment and was joined by Breyer, J. Scalia, J., filed an opinion concurring in part in the judgment. Stevens, J., filed an opinion concurring in part and dissenting in part. Kennedy, J., filed an opinion concurring in part and dissenting in part, which was joined by Stevens, J., in full and by Ginsburg, J., as to Parts II and III. Ginsburg, J., filed an opinion concurring in part and dissenting in part.

CAPITAL CASES(Favorable Disposition)

Ex parte Patel, 2003 Ala. LEXIS 163 (Ala 5/23/2003) Bail may be granted on a death penalty charge pre-indictment under state law.

CAPITAL CASES(Unfavorable Disposition)

Parker v. Sec. Dep't of Corr., 2003 U.S. App. LEXIS 9771 (11th Cir 5/20/2003) Relief denied on issues of: "(1) the constitutional deficiency of the jury instruction on felony murder; and (2) ineffective assistance of counsel at capital sentencing."

California v. Nakahara, 2003 Cal. LEXIS 3354 (CA 5/22/2003) Relief denied, most notably, on sufficiency of the warning given the defendant regarding testifying in narrative form in the penalty phase, failing to hold a more extensive hearing on the break down of the relationship between counsel & client, as well as the denial of the automatic modification of sentence motion.

Zebroski v. Delaware, 2003 Del. LEXIS 277 (Del 5/14/2003) Post-conviction appeal denied on claims that " (i) trial counsel's failure to advocate a more expansive voir dire amounted to ineffective assistance of counsel; (ii) trial counsel's failure to investigate competently and present a case for mitigation during the penalty phase of his trial amounted to ineffective assistance of counsel; (iii) appellate counsel's failure to present a "lingering doubt" argument amounted to ineffective assistance of counsel; and (iv) Delaware's statutory scheme for the imposition of the death penalty violates the Due Process Clause of the United States Constitution."

Jones v. Florida, 2003 Fla. LEXIS 781 (FL 5/8/2003) Relief denied on claims relating to voluntary intoxication, as well as ineffective assistance of counsel in the penalty phase and on appeal.

Pace v. Florida, 2003 Fla. LEXIS 823 (FL 5/22/2003) Relief denied, most notably, on failure to conduct an adequate penalty phase investigation, Brady, prosecutorial comments on the defendant's silence, on access to public records, as well as the trial court's cold, calculated, and premeditated instruction.

Louisiana v. Tate, 2003 La. LEXIS 1608 (La. 5/20/2003) Relief denied on sufficiency, voir dire removals for cause, instructions on accomplice testimony, sufficiency of aggravators, and proportionality.

Rosenthall v. Mississippi, 2003 Miss. LEXIS 214 (Miss 5/8/2003) Relief denied on whether the death qualification of the jury impermissibly excluded a disproportionately large number of African-Americans, as well as errors in refusing proffered instructions on adverse inference on the appellant not testifying & impeachment.

Ohio v. Lynch, 2003 Ohio LEXIS 1321; 2003 Ohio 2284 (Ohio 5/14/2003) (dissent) Relief denied chiefly on the issue of whether the trial court erred in not granting a defense request that Lynch, who has a reported IQ of 72, be allowed to be guided by his lawyer using a question-and-answer format when he made an unsworn statement to the jury during the sentencing phase.

Routier v. Texas, 2003 Tex. Crim. App. LEXIS 92 (Tex. Crim. App. 5/21/2003) Relief denied on claims that the trial record is so fatally inadequate as to require retrial, conflict of interest, dismissal of a sworn juror, certain evidentiary issues, & failing to let a defense witness testify.

Resendiz v. Texas,2003 Tex. Crim. App. LEXIS 97 (Tex. Crim. App. 5/21/2003) (dissent) Relief denied most notably on the exclusion of certain key photographs that the defense proffered as evidence that the appellant was insane at the time of the crimes.

Newman v. Arkansas, 2003 Ark. LEXIS 295 (Ark 5/22/2003) Relief denied on claims including to "(1) the circuit court's denial of two motions: the motion to find the death penalty unconstitutional and the motion to prohibit death qualification of the jury; (2) the circuit court's allowance of Newman to be tried in his orange jail togs and shackles following his waiver of the right to appear in street clothes and the circuit court's order to have Newman gagged during the prosecutor's closing argument; (3) the circuit court's denial of Newman's motion for directed verdict; (4) the circuit court's denial of Newman's motion to have Detective Weaver's testimony stricken because his interrogation occurred after he was represented by counsel; and (5) the circuit court's denial of Newman's objection to the prosecutor's introduction of Newman's prior bad acts."

NOTABLE NONCAPITAL CASES

Vang v. Nevada, 2003 U.S. App. LEXIS 10357 (9th Cir 5/23/2003) Failure to raise procedural default by the state, even under the AEDPA, will waive that defense.

Illinois v. Moore, 2003 Ill. LEXIS 778 (Ill 5/22/2003) (Ryan commutation) Remand ordered for the trial court to reconsider the threshold for claims relating to ineffective assistance of counsel.

Illinois v. Shum, 2003 Ill. LEXIS 781 (Ill 5/22/2003) (Ryan commutation) Remand ordered for DNA testing.

FOCUS

The Focus section this week addresses the trial court's post-conviction decision in Harlan v. Colorado where relief was granted on the use of the bible to determine sentencing.

Conclusions of Law
A)The death penalty verdict must be vacated under the Wiser test because jurors were exposed to extraneous biblical code during their sequestration and penalty phase deliberations.
As noted above, the Colorado Supreme Court adopted an objective test to determine whether jury exposure to extraneous information or outside influence requires that a verdict be overturned or vacated in Wiser v. People, supra. A defendant’s conviction must be reversed “where there is a reasonable possibility that the verdict was tainted by the introduction of outside information or influences into the jury deliberations.” Wiser v. People, supra, 732 P.2d at 1143; Wadle v. People,__P.3d__ (Colo.App Jan.30,2003).
The Defendant, in alleging jury misconduct, is permitted to introduce evidence to establish that extraneous matters improperly influenced the verdict, but how the improperly received information was used by the jury in their deliberative process is not a proper subject of inquiry. Wadle v. People, supra; Vento v. Colo. Nat’l Bank-Pueblo, 907 P.2d 642 (Colo. App.1995).
To meet his burden under Wiser, the Defendant is not required to show that the entire jury was exposed to the extraneous information or outside influence. If only one juror has been exposed to extrinsic material, that juror’s “improperly influenced vote deprives the defendant of an unprejudiced, unanimous verdict.” Lawson v. Borg, 60 F.3d 608,613 (9th Cir. 1995). The unanimity of jury verdicts is of paramount importance in death penalty cases in Colorado, where each juror has the power to veto a death sentence if he or she is not convinced beyond a reasonable doubt that death, rather than life in prison, is the appropriate penalty and where the death penalty cannot be considered by the jury unless and until all twelve individual jurors are convinced that the mitigating factors do not outweigh proven statutory aggravating factors. See, People v.Dunlap, 975 P.2d 723 (Colo. 2000); Tenneson v. People, 788 P.2d (1990).
If there is a reasonable possibility that juror exposure to biblical passages requiring that death be the punishment whenever an individual takes another person’s life and commanding jurors to follow government authorities affected any one or more juror’s decision to return a death verdict in this case, then under Wiser, the death sentence must be vacated. Here, several jurors researched and reviewed bibles on Friday evening, June 30, 1995, to locate biblical passages pertaining to the penalty for murder. Some of the jurors wrote down the biblical passages they located so that they could take them to the jury deliberation room to share with other jurors on Saturday morning, July 1, 1995, when the jury reconvened to deliberate on a verdict. Jurors took bibles and notes with biblical passages concerning the penalty for murder into the jury deliberation room on Saturday morning, July 1, 1995. These materials were read and discussed among and between jurors prior to a verdict being reached. Jurors were exposed to bibles and bible passages concerning God’s view on punishment for murder, while they were sequestered, during their deliberations on the penalty phase of the Defendant’s trial and when the jury resumed their deliberations the next day.
The biblical passages involved not only encouraged the death penalty but required that it be imposed when another life is taken. The passages also directed jurors to take guidance from and obey the government. They left jurors with no discretion. Given the nature of the biblical passages jurors read and discussed, the Wiser standard has been met since there is a reasonable possibility that the jurors’ exposure to these biblical passages affected one or more juror’s decision to return the death penalty verdict.
Colorado appellate courts have reversed convictions where jurors have improperly reviewed reference material or conducted independent research. See, Alvarez v. People, 653 P.2d 1127 (Colo. 1982) (reversal required where juror used a dictionary); People v. Wadle, supra (reversal required where juror downloaded internet description of Paxil, which was prescribed for the defendant, and juror brought this description into the jury room); T.S. v. G.G., 679 P.2d 118 (Colo. App. 1984 (reversal required in paternity case where juror read “pre-med text book describing the accuracy of Human Leukocyte Antigen test); Niemand v. District Court, 684 P.2d 931 (Colo. 1984)(reversal required where juror resorted to Black’s Law Dictionary to look up terms). No Colorado appellate decision has been cited which has considered the prejudicial impact of a bible on jury deliberations.
Case law submitted by the parties in this indicates that several courts in various jurisdictions have considered the prejudicial impact of biblical passages on jury verdicts. A prosecutor’s invocation of a biblical “higher law or extra-judicial authority” in closing argument was determined to be unconstitutional in Sandoval v. Calderone, 241 F.3d 765, 777 (9th Cir. 2001). Another prosecutor’s argument drawing on his reading of biblical law to justify the morality of the death penalty was determined to be improper in Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996). The presence of a bible and other religious documents during jury deliberations denied the defendant a fair and impartial sentencing hearing and required reversal in Scott v. Kennedy, 216 F.3d 1088 (10th Cir. 2000). A judge’s decision to honor a jury’s request to send a bible into the jury room was reversible error because the judge had “permitted the jury to deliberate with the aid of a specific, extra-judicial code of conduct, a code which mandates death for numerous offenses…” Jones v. Kemp, 706 F. Supp. 1534, 1558 (D.C.Ga. 1989) Other courts have also disapproved of the use of bibles and biblical law in death penalty cases. See, Glossip v. State, 29 P.3d. 597 (Okla. Crim. App. 2001); State v. Harrington, 627 S.W.2d 345 (Tenn. 1981).
The biblical passages considered and used by several jurors is contrary to Colorado death penalty law. In Colorado, whenever the death penalty is sought, life in prison is always a permissive penalty for first degree murder. In fact, it is mandated unless all twelve jurors are convinced beyond a reasonable doubt that mitigating factors do not outweigh proven statutory aggravating factors and that death, rather than life, is the appropriate penalty. The biblical passages involved require that death be the punishment whenever an individual takes another person’s life. They mandate death as a penalty whenever there is more than one witness to the murder or whenever the government seeks to the death penalty. These biblical passages are in conflict with Colorado law and had the capacity to influence the jurors who were exposed to them. The use of these biblical passages violated the Defendant’s right to have his sentence decided on the basis of the evidence and the law set forth in the trial court’s Instructions of Law. See. Alvarez v. People, supra and Wadle v. People, supra.
Several jurors took it upon themselves to research biblical code to determine God’s view of the penalty for murder and shared the information with other jurors during their deliberations. Contrary to the argument of the Prosecution, the biblical research and reading that occurred here was not done for comfort or inspiration. It was for the purpose of guiding and directing certain jurors to a particular verdict. Those jurors brought the fruit of their research into the jury room and shared it with other jurors. Once this occurred, a unanimous verdict imposing the death sentence was reached. Under these circumstances, there is at the very least, a “reasonable possibility” that the extraneous materials improperly influenced several jurors into rejecting a life sentence for the Defendant.
The juror’s reliance on the specific biblical passages cannot be considered “benign” as the Prosecution contends. Ms. Eaton-Ochoa read and wrote down the cite to Romans 13:1, which requires that one look at government authorities as God’s representative on earth and follow their lead as agents of ‘wrath to bring punishment to the wrongdoer.” This and other passages the jurors considered do more than simply encourage jurors to follow the instructions of the court. The passages mandate that death be the penalty for murder.
Contrary to the Prosecution’s argument, the length of time spent by jurors discussing biblical passages has no legal significance. The jurors involved not only discussed biblical passages in the jury room, they spent the evening before researching and reading biblical passages dealing with the punishment for murder. Further, even if a brief period of time was spent on the biblical passages in question, the specific passages involved presented a reasonable possibility of improperly influencing several jurors into voting for the death penalty.
B.) Resort to biblical law cannot be deemed harmless error nor invited error.
One of the Prosecution’s alternative arguments is that even if jurors used biblical passages in reaching their verdict, the Defendant’s sentence does not have to be overturned because the use of biblical passages could not have influenced the verdict. According to the Prosecution, the trial court took appropriate steps during the voir dire process to conduct a fair jury selection process, the Instructions of Law were clear and comprehensive. This and the “overwhelming evidence of guilt”, the Prosecution contends, renders any error that occurred harmless. This Court was not the trial court and the entire record is not available to the Court for review. It would not be possible to do the “harmless error” analysis proposed. Further, this Court agrees with the Defendant’s position that under CRS 16-11-103 (6) (b), harmless error analysis is not applicable to a death sentence. That statute requires that the Court vacate a death sentence if imposed under “the influence of passion or prejudice or any other arbitrary factor.” The introduction of biblical law into the death penalty deliberations is such an impermissible factor.
Another argument advanced by the Prosecution that counsel for the Defendant introduced religion and biblical references in closing argument in such a way as to invite or even encourage jurors to refer to biblical passages in their deliberations. The doctrine of invited error has no application here.
A party may be precluded from complaining about an error “that he has invited or injected into the case.” Horton v. Suthers, 43 P.2d 611 (Colo. 2002). No Colorado case has been cited which applies the doctrine to bar a claim that undermines the reliability of a death sentence and no case has been cited which holds that jury misconduct can be invited by a closing argument delivered by counsel. Moreover, the Defendant’s counsel did not ask jurors to open bibles to assist them in determining the appropriate sentence. The closing argument made by the Defendant’s attorney was in all respects appropriate and cannot be fairly characterized as one which invited error.

CONCLUSION
The jury supervision performed in this case was extremely negligent and appallingly lax. While jurors were appropriately sequestered and efforts at preventing exposure to prejudicial media were engaged in, no steps were taken to insure that jurors were not exposed to the extraneous information and outside influences that they were exposed to here.
Although not the trial court who presided over the Defendant’s trial, this Court has reviewed a sufficient amount of the record to enable it to say that the descriptions of the crimes the Defendant committed were among the most grievous, heinous and reprehensible this Court in its 18-year judicial career has ever had occasion to review.
And if any case merits the death penalty, there cannot be serious debate about this case being that case. The death penalty, however, must be imposed in a constitutional manner. Jury resort to biblical code has no place in a constitutional death penalty proceeding. See, Sandoval v. Calderone, supra; Jones v. Kemp, supra and Bennett v. Angelone, supra. The death sentence imposed here must therefore be vacated and set aside.

OTHER RESOURCES

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

NEW RESOURCES: Symposia on Capital Punishment
Two recent law journals feature collections of articles on capital punishment. The University of Missouri-Kansas City Law Review focuses on wrongful convictions. The Summer 2002 issue includes articles on DNA evidence, Innocence Projects around the country, and the role of journalism in helping to rectify wrongful convictions. (70 University of Missouri-Kansas City Law Review 797 (2002)).
The second new resource is the Summer 2002 edition of the Northwestern University School of Law's Journal of Criminal Law and Criminology containing an historical look at capital punishment in Chicago. Through an examination of a new data set on homicides, this symposium looks at issues such as judicial elections and capital punishment, women and the death penalty, and life without parole. (92 Journal of Criminal Law and Criminology 437 (2002)). See Law Reviews.
NEW VOICES: Opposing Viewpoints Find Common Ground
Although New York Law School Professor Robert Blecker and Columbia Law School Professor James Liebman frequently take opposing sides in public debates on the death penalty, the two men recently revealed their "common ground" through a co-authored opinion column in the Houston Chronicle. Calling on legislators in Texas and elsewhere to enact a series of death penalty reforms to ensure accuracy and improve fairness, Blecker and Liebman noted:
Despite our different perspectives, we agree that death as a punishment should be inflicted, if at all, only upon the worst of the worst; that society can incapacitate without killing, so future dangerousness and deterrence alone are never sufficient reasons to punish someone with death; and that a state-ordered execution is a terrible, solemn act that should occur only after the greatest deliberation.
Limiting the scope of crimes eligible for the death penalty, addressing racial bias, improving access to qualified attorneys and DNA testing, and passing comprehensive reform packages were among the recommendations made by Blecker and Liebman. (Houston Chronicle, May 23, 2003) See New Voices.
Judge Finds Mississippi's Death Row Conditions Violate Eighth Amendment
U.S. Magistrate Jerry Davis has found that the way inmates are treated on Mississippi's death row constitutes cruel and unusual punishment in violation of the Eighth Amendment. Noting that the death row at Patchman prison is so harsh and filthy that inmates are being driven insane, Davis stated, "No one in a civilized society should be forced to live under conditions that force exposure to another person's bodily wastes. No matter how heinous the crime committed, there is no excuse for such living conditions." The ruling came in a lawsuit filed on behalf of six inmates who alleged harsh conditions were contributing to a high rate of mental illness among prisoners. Davis ordered 10 facility reforms, including annual mental health check-ups, better lighting, improved toilets, and insect control. The Mississippi Corrections Commissioner said that he does not consider the state's death row to be any worse than others across the country. (Associated Press, May 22, 2003) See Mississippi Death Penalty Information.
Virginia Schedules Execution of Mentally Ill Man
On May 28th, Virginia is scheduled to electrocute Percy Levar Walton, a Virginia death row inmate who does not know what year it is or that he cannot eat at Burger King once he has been executed. In a pending clemency petition to Virginia Governor Mark Warner and in an appeal to the U.S. Supreme Court, Walton's attorneys presented expert medical evidence, including tests by prison doctors, showing that their client suffers from schizophrenia and psychosis. They note that prison guards call Walton "Horse," short for "Crazy Horse," and that the guards stay at arms lengths to avoid his stench (a classic symptom of schizophrenia). In addition to Walton's mental illness, he scored a 66 on a recent IQ test and may be mentally retarded. A person with an IQ of 70 or lower is generally considered mentally retarded. (Associated Press, May 22, 2003) See Mental Retardation and Clemency.
NEW RESOURCE: "Unjust Executions" Available On-Line
Dave Lindorff's article "Unjust Executions" goes beyond the issue of innocence and explores cases where guilty defendants may have been executed despite unconstitutional trials. The article, available on Salon.com (May 6, 2003), features examples of courts barring new evidence and comments from death penalty experts such as Robert Blecker of New York Law School, a staunch death penalty advocate, who nevertheless admits that: "There are definitely plenty of sentencing errors where those who die haven't deserved to die." See also, Resources.
Texas Senate Passes Bill to Create Innocence Commission
The Texas Senate passed legislation (S.B. 1045) to create a joint interim committee on post-conviction exonerations. The committee will study wrongful convictions in the state and identify appropriate improvements in the criminal justice system to prevent such errors in the future. The nine members of the committee will include a state's attoney, two members chosen from the Senate Criminal Justice Committee, two members of the House Criminal Jurisprudence Committee, a judge, and two law professors. (May 20, 2003). William Sessions, a former director of the FBI, recently endorsed the creation of the panel (see below), which still must be approved by the Texas House. See Recent Legislative Activity and Innocence.
Governor to Sign Illinois Bill Requiring Taping of Interrogations
In a vote that will dramatically change the way murder investigations are conducted, the Illinois House has overwhelmingly approved legislation requiring audio-or videotaping of most homicide-related interrogations and confessions. The bill, which unanimously passed the Senate last month, now goes to Governor Rod Blagojevich for signature into law. The Governor has vowed to sign the legislation. Attorney Thomas Sullivan, who co-chaired the Illinois Commission on Capital Punishment that made more than 80 reform recommendations after a thorough review of the state's death penalty, noted, "It is extremely significant in that it will be a major step forward for law enforcement and for the entire criminal justice system in Illinois." (Chicago Tribune, May 10, 2003) See Recent Legislative Activity and Illinois Commission on Capital Punishment.
NEW VOICES: Former FBI Chief Sessions Calls for Innocence Commission in Texas
In a recent op-ed, William Sessions called on state legislators in Texas to pass a measure to create an Innocence Commission. The Commission would examine the Texas criminal justice system in an effort to protect against wrongful convictions. Sessions, a former director of the FBI and federal judge, noted that numerous exonerations , recent crime lab scandals (see below) in the state, and other troubling events should prompt state leaders to take immediate action:
When we study our criminal justice system in Texas and make it better, we not only reduce the chances of convicting the innocent, we increase the chances of convicting the guilty. We also show that our system is strong enough to recognize and repair its own mistakes.
A bill to create such a commission was introduce by Senator Rodney Ellis of Houston. (Houston Chronicle, May 13, 2003) See Innocence and New Voices.
Texas Lags on Supreme Court's Mental Retardation Ruling
Texas legislators have failed to pass laws that could bring the state into compliance with the U.S. Supreme Court's ruling in Atkins v. Virginia that bans the execution of those with mental retardation. Nearly a year after the Court's ruling in Atkins, Texas officials have no idea how many of the 449 death row inmates have the disability, and no safeguards to ensure that those affected by the ruling are not put to death. Most of the legislative efforts have focused on identifying defendants with mental retardation before their trials, not finding those who are already on death row. Houston defense attorney Dick Burr stated, "People facing the death penalty here are dependent on the good will of their lawyers. It means that some people are lucky and others are not." The state's testing has revealed that 7% of Texas convicts have IQs below 70, the commonly accepted benchmark for mental retardation. Thus, there could be as many as 31 condemned inmates who qualify to have their death sentences lifted. Texas Governor Rick Perry has stated that he believes that no one on death row has mental retardation, and his belief is echoed by Houston assistant district attorney Roe Wilson, who handles most of Harris County's capital appeals. "I don't know of any who are mentally retarded," Wilson said. (Houston Chronicle, May 11, 2003) See Mental Retardation.
Percentage of Americans Finding the Death Penalty Morally Wrong Is Growing
A recent Gallup Poll reveals that a growing number of American respondents believe the death penalty is "morally wrong." In 2001, only 27% found the death penalty morally objectionable. That number grew to 28% in 2002 and to 31% in 2003. A majority of Americans continue to support capital punishment, and 64% find it to be morally acceptable. (Gallup News Service, May 14, 2003) See Public Opinion.
Supreme Court Unanimously Overturns Texas Murder Conviction
The U.S. Supreme Court ruled unanimously to set aside the murder conviction of Robert Kaupp, a Harris County juvenile offender whose confession was deemed the product of an illegal arrest and should not have been introduced at his trial. In their decision overturning the Texas Court of Criminal Appeals, the Court found that the Harris County Sheriff's Department illegally entered Kaupp's home in the middle of the night and questioned the 17-year-old about the murder of a 14-year-old girl. The Court stated that the officers lacked probable cause and a warrant for Kaupp's arrest when they entered the home. The Justices were critical of the Texas court and noted that Kaupp's "failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer." Kaupp v. Texas, No. 02-5636. Though this was not a capital case, the Supreme Court has recently reviewed a series of murder convictions from Texas. (New York Times, May 6, 2003) See Supreme Court.
Louisiana Governor Commutes Death Sentence to Life In Prison
Louisiana Governor Mike Foster has removed Herbert Welcome, a 51-year-old man with mental retardation, from the state's death row and commuted his sentence to life in prison. The decision came after members of the state's Pardon Board recommended clemency in keeping with the U.S. Supreme Court's ruling in Atkins v. Virginia, which bans the execution of those who have mental retardation. Experts estimate that Welcome, who has spent 19 years on death row and who has faced execution at least three times, has the mental maturity of an 8-year-old child. (Associated Press, May 10, 2003) See Mental Retardation and Clemency.
Missouri Court Overturns Death Row Conviction
The Missouri Supreme Court recently overturned the capital conviction of Joseph Amrine, a death row inmate accused of killing a fellow prisoner 17 years ago. The Court found "clear and convincing evidence of actual innocence that undermines confidence" in Amrine's conviction. The decision ordered that he be released from prison within 30 days. Amrine has maintained his innocence since the 1985 murder. At that time, he was in jail serving a lesser sentence for robbery, burglary and forgery. Investigators never found physical evidence linking Amrine to the murder, and the three inmates who testified against Amrine during his trial later recanted their testimony and said that they had lied to win special protection for themselves. Amrine would have been freed in 1992 without the wrongful murder conviction. During the argument at the Supreme Court, the state had argued that new evidence of Amrine's innocence should have no bearing on his conviction. (Herald Sun, April 29, 2003) Read the opinion. See Innocence.

ADDITIONAL RESOURCES

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