The news of the week leads with the Supreme Court's holding in Bell v. Cone. The U.S. Supreme Court upheld the death sentence of Cone despite the fact that his lawyer presented no mitigating evidence on Cone's behalf and passed up an opportunity to argue for his life. The Court ruled 8-1 that the attorney's inaction did not amount to a complete absence of representation under United States v. Cronic , and that the state court did not act unreasonably when it held that the attorney might have been making a tactical decision in not presenting evidence. The case is the lead "hot list" case & some analysis of the decision is offered as well.

Three other cases also make the "hot list." Fullwood v. Lee, from the Fourth Circuit made the list this week as a panel of that court ordered an evidentiary hearing on juror misconduct. The Sixth Circuit in Jamison v. Collins is hot listed in light of the the gross prosecutorial misconduct which forced that court to order an new trial. The final case of the week to make the hot list is

Illinois v. Pitsonbarger from the Illinois state appellate court clarifies its successive bar doctrine and denies relief.

In other news of the week, the Eastern District of Pennsylvania in Henry v. Horn granted relief on bad penalty phase "unanimity" instructions. In New Jersey polling data recently released shows a considerable drop in the state, and that the majority of residents support a moratorium on executions until issues of accuracy, fairness and cost effectiveness can be examined (see the "other news" section below). In Missouri Christopher Simmons has received a stay from the state court on pending the outcome of Atkins v. Virginia and potential applicability of Atkins to the juvenile death penalty.

Religious imagery is the source of this weeks "Focus" article. Elizabeth A. Brooks, Note, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 Ga. L. Rev. 1113 (1999), exhaustively studies the case law surrounding the issue of religious imagery in the court room. While her conclusion are somewhat controversial, her research is first rate.

A "zip" of all the prior editions of the weekly is available at http://capitaldefenseweekly.com/archives/cdw.zip

Execution Information

Since the last edition the following have been executed:

HOT LIST

Bell v. Cone, --- US --- (5/28/2002) Court upholds the death sentence of Cone despite the fact that his lawyer presented no mitigating evidence on Cone's behalf and passed up an opportunity to argue for his life. Under the limited facts of the case before the court the per se reversal rule of United States v. Cronic was inappropriately applied by the court below. As trial counsel's tactics, while risky, were strategic in nature, within the realm of permissibility and therefore the state court's findings were not "objectively unreasonable." The three things to stress about this opinion: [1] trial counsel stated that all of his decisions were "tactical" including failing to put on witnesses & a closing argument; [2] the state trial court held an evidentiary hearing in which trial counsel went off like a loose cannon & damned the client; and [3] the holding, in light of the above, would seem to be limited to the very bizarre unusual situation where you get state evidentiary hearing & trial counsel has not been "brought aboard" as part of the post-conviction team & trial counsel attempts to save his own hide by stating that all of his bad moves were well reasoned.

As we stated in Williams, 2254(d)(1)s contrary to and unreasonable application clauses have independent meaning. 529 U.S., at 404405. A federal habeas court may issue the writ under the contrary to clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. Id., at 405406. The court may grant relief under the unreasonable application clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id., at 407408. The focus of the latter inquiry is on whether the state courts application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. Id., at 409410. See also id., at 411 (a federal habeas court may not issue a writ under the unreasonable application clause simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly).

Petitioner contends that the Court of Appeals exceeded its statutory authority to grant relief under 2254(d)(1) because the decision of the Tennessee courts was neither contrary to nor an unreasonable application of the clearly established law of Strickland. Respondent counters that he is entitled to relief under 2254(d)(1)s contrary to clause because the state court applied the wrong legal rule. In his view, Cronic, not Strickland, governs the analysis of his claim that his counsel rendered ineffective assistance at the sentencing hearing. We address this issue first.

In Strickland, which was decided the same day as Cronic, we announced a two-part test for evaluating claims that a defendants counsel performed so incompetently in his or her representation of a defendant that the defendants sentence or conviction should be reversed. We reasoned that there would be a sufficient indication that counsels assistance was defective enough to undermine confidence in a proceedings result if the defendant proved two things: first, that counsels representation fell below an objective standard of reasonableness, 466 U.S., at 688; and second, that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different, id., at 694. Without proof of both deficient performance and prejudice to the defense, we concluded, it could not be said that the sentence or conviction resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable, id., at 687, and the sentence or conviction should stand.

In Cronic, we considered whether the Court of Appeals was correct in reversing a defendants conviction under the Sixth Amendment without inquiring into counsels actual performance or requiring the defendant to show the effect it had on the trial. 466 U.S., at 650, 658. We determined that the court had erred and remanded to allow the claim to be considered under Stricklands test. 466 U.S., at 666667, and n. 41. In the course of deciding this question, we identified three situations implicating the right to counsel that involved circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Id., at 658659.

First and [m]ost obvious was the complete denial of counsel. Id., at 659. A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at a critical stage, id., at 659, 662, a phrase we used in Hamilton v. Alabama, 368 U.S. 52, 54 (1961), and White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam), to denote a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused.3 Second, we posited that a similar presumption was warranted if counsel entirely fails to subject the prosecutions case to meaningful adversarial testing. Cronic, supra, at 659. Finally, we said that in cases like Powell v. Alabama, 287 U.S. 45 (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected. Cronic, supra, at 659662.

Respondent argues that his claim fits within the second exception identified in Cronic because his counsel failed to mount some case for life after the prosecution introduced evidence in the sentencing hearing and gave a closing statement. Brief for Respondent 26. We disagree. When we spoke in Cronic of the possibility of presuming prejudice based on an attorneys failure to test the prosecutors case, we indicated that the attorneys failure must be complete. We said if counsel entirely fails to subject the prosecutions case to meaningful adversarial testing. Cronic, supra, at 659 (emphasis added). Here, respondents argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.4

The aspects of counsels performance challenged by respondentthe failure to adduce mitigating evidence and the waiver of closing argumentare plainly of the same ilk as other specific attorney errors we have held subject to Stricklands performance and prejudice components. In Darden v. Wainwright, 477 U.S. 168, 184 (1986), for example, we evaluated under Strickland a claim that counsel was ineffective for failing to put on any mitigating evidence at a capital sentencing hearing. In Burger v. Kemp, 483 U.S. 776, 788 (1987), we did the same when presented with a challenge to counsels decision at a capital sentencing hearing not to offer any mitigating evidence at all.

We hold, therefore, that the state court correctly identified the principles announced in Strickland as those governing the analysis of respondents claim. Consequently, we find no merit in respondents contention that the state courts adjudication was contrary to our clearly established law. Cf. Williams, 529 U.S., at 405 (The word contrary is commonly understood to mean diametrically different, opposite in character or nature, or mutually opposed (quoting Websters Third New International Dictionary 495 (1976))).

The remaining issue, then, is whether respondent can obtain relief on the ground that the state courts adjudication of his claim involved an unreasonable application of Strickland. In Strickland we said that [j]udicial scrutiny of a counsels performance must be highly deferential and that every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. 466 U.S., at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to 2254(d)(1) deference, a defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

For respondent to succeed, however, he must do more than show that he would have satisfied Stricklands test if his claim were being analyzed in the first instance, because under 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411. Rather, he must show that the Tennessee Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner. This, we conclude, he cannot do.

Respondents counsel was faced with the formidable task of defending a client who had committed a horribly brutal and senseless crime against two elderly persons in their home. He had just the day before shot a police officer and an unarmed civilian, attempted to shoot another person, and committed a robbery. The State had near conclusive proof of guilt on the murder charges as well as extensive evidence demonstrating the cruelty of the killings. Making the situation more onerous were the facts that respondent, despite his high intelligence and relatively normal upbringing, had turned into a drug addict and had a history of robbery convictions.

Because the defenses theory at the guilt phase was not guilty by reason of insanity, counsel was able to put before the jury extensive testimony about what he believed to be the most compelling mitigating evidence in the case evidence regarding the change his client underwent after serving in Vietnam; his drug dependency, which apparently drove him to commit the robbery in the first place; and its effects. Before the state courts, respondent faulted his counsel for not recalling his medical experts during the sentencing hearing. But we think counsel reasonably could have concluded that the substance of their testimony was still fresh to the jury. Each had taken the stand not long before, and counsel focused on their testimony in his guilt phase closing argument, which took place the day before the sentencing hearing was held. Respondents suggestion that the jury could not fully consider the mental health proof as potentially mitigating because it was adduced during the guilt phase finds no support in the record. Defense counsel advised the jury that the testimony of the experts established the existence of mitigating circumstances, and the trial court specifically instructed the jury that evidence of a mental disease or defect insufficient to establish a criminal defense could be considered in mitigation. Tr. 2221.

Respondent also assigned error in his counsels decision not to recall his mother. While counsel recognized that respondents mother could have provided further information about respondents childhood and spoken of her love for him, he concluded that she had not made a good witness at the guilt stage, and he did not wish to subject her to further cross-examination. Respondent advances no argument that would call his attorneys assessment into question.

In his trial preparations, counsel investigated the possibility of calling other witnesses. He thought respondents sister, who was closest to him, might make a good witness, but she did not want to testify. And even if she had agreed, putting her on the stand would have allowed the prosecutor to question her about the fact that respondent called her from the Todds house just after the killings. After consulting with his client, counsel opted not to call respondent himself as a witness. And we think counsel had sound tactical reasons for deciding against it. Respondent said he was very angry with the prosecutor and thought he might lash out if pressed on cross-examination, which could have only alienated him in the eyes of the jury. There was also the possibility of calling other witnesses from his childhood or days in the Army. But counsel feared that the prosecution might elicit information about respondents criminal history.5 He further feared that testimony about respondents normal youth might, in the jurys eyes, cut the other way.

Respondent also focuses on counsels decision to waive final argument. He points out that counsel could have explained the significance of his Bronze Star decoration and argues that his counsels failure to advocate for life in closing necessarily left the jury with the impression that he deserved to die. The Court of Appeals reject[ed] out of hand the idea that waiving summation could ever be considered sound trial strategy. 243 F.3d, at 979. In this case, we think at the very least that the state courts contrary assessment was not unreasonable. After respondents counsel gave his opening statement discussing the mitigating evidence before them and urging that they choose life for his client, the prosecution did not put on any particularly dramatic or impressive testimony. The States witnesses testified rather briefly about the undisputed facts that respondent had prior convictions and was evading arrest.

When the junior prosecutor delivered a very matter-of-fact closing that did not dwell on any of the brutal aspects of the crime, counsel was faced with a choice. He could make a closing argument and reprise for the jury, perhaps in greater detail than his opening, the primary mitigating evidence concerning his clients drug dependency and posttraumatic stress from Vietnam. And he could plead again for life for his client and impress upon the jurors the importance of what he believed were less significant facts, such as the Bronze Star decoration or his clients expression of remorse. But he knew that if he took this opportunity, he would give the lead prosecutor, who all agreed was very persuasive, the chance to depict his client as a heartless killer just before the jurors began deliberation. Alternatively, counsel could prevent the lead prosecutor from arguing by waiving his own summation and relying on the jurors familiarity with the case and his opening plea for life made just a few hours before. Neither option, it seems to us, so clearly outweighs the other that it was objectively unreasonable for the Tennessee Court of Appeals to deem counsels choice to waive argument a tactical decision about which competent lawyers might disagree.

We cautioned in Strickland that a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U.S., at 689. Given the choices available to respondents counsel and the reasons we have identified, we cannot say that the state courts application of Stricklands attorney-performance standard was objectively unreasonable. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

Fullwood v. Lee, 2002 U.S. App. LEXIS 9579 (4th Cir. 05/21/2002) Evidentiary hearing on ordered on whether a juror was improperly influenced by her husband, and whether the jury improperly learned that defendant had already been sentenced to death for the same murder in a previous capital sentencing proceeding.

According to Juror Booth, Juror Joyce Austin was "strongly influenced by . . . her husband [who] was strongly pro-death penalty" and told Booth and other jurors that her husband "was constantly telling [Austin] during the trial and during deliberations that she should convict [Fullwood] and sentence him to death." J.A. 159. Booth also offered her opinion, by affidavit testimony, that"[i]t was obvious . . . that the pressure brought upon [Austin] by her husband caused her to vote exactly the way he wanted her to." J.A. 159. Fullwood argues that Juror Booth's affidavit establishes that this improper contact with a third person actually influenced the jury's deliberations by causing one juror to choose a death sentence, which would require us to vacate his death sentence. Alternatively, Fullwood contends that because he has presented evidence that a juror was "constantly" subjected to her spouse's opinion that she should vote for a death sentence, he is, at a minimum, entitled to an evidentiary hearing on this issue.*fn4 In rejecting Fullwood's claim, the state MAR court stated three conclusions:

1. Juror's Affidavits to impeach a [jury's] deliberation are not favored by the Court.

2. [A juror's knowledge] of a prior death penalty in a resentencing hearing does not in itself mean that Juror could not give fair consideration to a life sentence.

3. . . . The Court, from the Juror's Affidavit and assuming it to be true, cannot find sufficient external influences that have an effect on the outcome of the verdict in this case to warrant the granting of a new trial. J.A. 164.

Presuming that Fullwood had presented all of his evidence on the issue through the affidavits he submitted, the court concluded that an evidentiary hearing was unnecessary.

* * * *

1. Actual Influence

Fullwood contends that the Booth affidavit entitles him to habeas relief because it demonstrates that the verdict was actually influenced by improper external influence. With respect to Juror Austin, the Booth affidavit states that "[i]t was obvious to me that the pressure brought upon her by her husband caused her to vote exactly the way he wanted her to." J.A. 159. We conclude that Fullwood cannot use this portion of the Booth affidavit to impeach the jury's verdict. In order to protect the finality and integrity of verdicts and to guard against the harassment of jurors, a party seeking to invalidate a verdict may not rely upon evidence of "a juror's mental process in connection with the verdict." United States v. Cheek, 94 F.3d 136, 143 (4th Cir. 1996); see Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 121 (1987). The Federal Rules of Evidence impose strict limits on the type of juror testimony that may be used to invalidate a verdict. See Fed. R. Evid. 606(b); Bacon, 225 F.3d at 485 (applying Fed. R. Evid. 606(b) to capital habeas proceedings); Stockton, 852 F.2d at 743-44 (same); see also Gosier v. Welborn, 175 F.3d 504, 510-11 (7th Cir. 1999) (same). Rule 606(b) "is grounded in the common-law rule against admission of jury testimony to impeach a verdict." Tanner, 483 U.S. at 121. It prohibits a juror from testifying as to "the effect of anything upon that or any other juror's mind or emotions as influencing the juror . . . or concerning the juror's mental processes in connection therewith." Fed. R. Evid. 606(b). A juror may testify, however, as to "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Id. Thus, "juror testimony concerning the effect of the outside communication on the minds of the jurors is inadmissible." Stockton, 852 F.2d at 744 (emphasis added).

North Carolina law imposes the same strict limits on the type of juror testimony that may be offered to impeach a verdict. See N.C. Gen. Stat. § 15A-1240 ("[N]o evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined."). Under North Carolina law, jurors may testify as to the fact that external prejudicial communications were made, but not as to "the subjective effect those matters had on their verdict." North Carolina v. Lyles, 380 S.E.2d 390, 394 (N.C. Ct. App. 1989).*fn6

Since these principles preclude Juror Austin from testifying herself as to the effect of her husband's alleged comments on her internal thought processes in connection with her vote, they apply all the more to the hearsay testimony of Juror Booth, who was not only testifying about Austin's internal thought processes but was also speculating about how Austin arrived at her decision. We must therefore reject Fullwood's contention that he presented unopposed evidence that an improper external influence actually resulted in a death sentence and is therefore entitled to habeas relief.

2. Evidentiary Hearing

We turn to the question of whether Fullwood is entitled to an evidentiary hearing based on the assertion in the Booth Affidavit that Austin's husband strongly believed in the death penalty as a general proposition and told Austin throughout the trial that she should vote for a death sentence in Fullwood's case.

A district court may not grant an evidentiary hearing to a habeas petitioner if the petitioner "failed to develop the factual basis of a claim" in state court unless certain statutory requirements are satisfied. See 28 U.S.C.A. § 2254(e)(2). The state does not suggest that Fullwood "failed to develop" the factual basis of his claim as that phrase is used in section 2254(e)(2). See Williams (Michael) v. Taylor, 529 U.S. 420, 431-37 (2000). Thus, section 2254(e)(2) presents no bar to an evidentiary hearing. See id. at 430 (explaining that section 2254(e)(2) "applies only to prisoners who have failed to develop the factual basis" in state court). But, even though section 2254(e)(2) presents no bar to a hearing, an evidentiary hearing is not automatic - the district court is permitted to hold a hearing only if "the petitioner alleges additional facts that, if true, would entitle him to relief." McCarver v. Lee, 221 F.3d 583, 598 (4th Cir. 2000).

"[E]ven if [the petitioner's] claim is not precluded by § 2254(e)(2), that does not mean he is entitled to an evidentiary hearing - only that he may be." McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir. 1998). Moreover, petitioner must establish one of the six factors set forth in Townsend v. Sain, 372 U.S. 293, 312 (1963).*fn7 See Fisher v. Lee, 215 F.3d 438, 454 (4th Cir. 2000), cert. denied, 531 U.S. 1095 (2001).

First, we conclude that because Fullwood has raised troubling allegations of improper external influence on the jury but was not afforded a hearing to develop the issue, he has satisfied at least one of the Townsend factors. See Townsend, 372 U.S. at 313 (requiring a hearing when the material facts are not adequately developed in state court).

Second, we conclude that Fullwood has alleged facts that, if true, might well entitle him to relief. Of course, the mere fact that a juror's spouse may have a particularly strong philosophical or ideological leaning does not alone present the potential to undermine the integrity of the deliberative process. Such would not give rise to a presumption of prejudice since "the beliefs, biases, and preferences of every juror may be explored and exposed by the defendant at voir dire." See Stockton, 852 F.2d at 744 (distinguishing between "juror impairment or predisposition" and the more serious danger of an "extraneous communication").

The allegations here, however, concern more than predisposition. The allegations contained in the Booth affidavit suggest that Juror Austin may have been pressured throughout the trial to impose a death sentence, depriving Fullwood of his right to twelve impartial jurors. Indeed, if true, the allegations concerning Juror Austin are of a type that "draw into question the integrity of the verdict," Stockton, 852 F.2d at 743, and give rise to a presumption of prejudice. Given the paucity of the record and the lack of any factual findings, however, we are unable to determine whether an outside influence upon Juror Austin had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (internal quotation marks omitted). Accordingly, we remand for an evidentiary hearing on the issue of whether the contact between Juror Austin and her husband throughout the trial deprived Fullwood of a fair trial and had a "substantial and injurious effect" on the verdict.

B. Consideration of Extraneous Facts Related toFullwood's Case

We also conclude that during Fullwood's evidentiary hearing the district court should explore Fullwood's allegations that the jury considered, in violation of the Sixth Amendment, prejudicial information about his case that was never introduced into evidence or provided to the jury during trial. According to the Booth affidavit, "[t]he jury became aware from outside sources that Mr. Fullwood had already been sentenced to death by another jury. The jury became aware that Mr. Fullwood's original death sentence had been reversed because of some technicality involving a mistake the trial judge had made." J.A. 159. This allegation implicates Fullwood's Sixth Amendment rights because among the protections that the Sixth Amendment provides is the right to an impartial jury that arrives at a verdict "based upon the evidence developed at trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961); see Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) ("[T]he evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." (internal quotation marks omitted)).

As we noted previously, a petitioner who seeks to invalidate a verdict that has already withstood challenges on direct review and state collateral review must introduce competent evidence that there was juror misconduct in the first place. See Howard, 131 F.3d at 422. Thus, Fullwood's allegations relating to the jury's alleged awareness of his prior death sentence must demonstrate that "extraneous prejudicial information" was improperly presented to the jury's attention. United States v. Acker, 52 F.3d 509, 516 (4th Cir. 1995). If the information was both extraneous and prejudicial, Fullwood still may obtain relief only if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.

Fullwood has made a sufficient threshold showing that these facts were extraneous, prejudicial and improperly brought to the jury's attention so as to warrant an evidentiary hearing. Although Fullwood does not specifically identify the source of these facts, this information is "extraneous" because, so far as we can tell, it was not revealed to the jury during trial, and it is not the kind of general information that jurors bring with them into deliberations. See United States v. Swinton, 75 F.3d 374, 381 (8th Cir. 1996) (observing that "[a]lthough jurors are expected to bring commonly known facts to bear in assessing the facts presented for their consideration, resort by a juror to anything other than common knowledge or record facts might be held to violate" the Sixth Amendment). And, generally speaking, such information is prejudicial in nature. Cf. Arthur v. Bordenkircher, 715 F.2d 118, 119 (4th Cir. 1983) ("[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged." (internal quotation marks omitted)).

Because no evidentiary hearing has ever been held on this issue, there are also insufficient additional facts for us to determine whether the jury's awareness of Fullwood's previous sentence, if true, "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.*fn8 Accordingly, the district court, in conducting the evidentiary hearing, should also develop the issue of whether the jury's alleged awareness of Fullwood's prior death sentence deprived him of a fair trial and had a "substantial and injurious effect" on the verdict.*fn9

Jamison v. Collins, 2002 U.S. App. LEXIS 9726; 2002 FED App. 0184P (6th Cir. 5/23/2002) Relief granted on prosecutorial misconduct.

1. Cause

Jamison argues here, as he did before the district [*11] court, that the reason he did not present his Brady claim earlier is that his attorneys were not given the information. This is adequate cause for not complying with the state procedural rule, if true. The district court ruled that the Brady claim was not raised on direct appeal or in post-conviction proceedings in the Ohio courts; however, the district court determined that Jamison had shown cause for failing to bring the Brady claim in his state appeal and post-conviction proceedings because the "factual or legal basis for [the] claim was not reasonably available to counsel." Jamison, 100 F. Supp. 2d at 674, citing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). The court pointed out that the withholding of evidence generally constitutes cause. Amadeo v. Zant, 486 U.S. 214, 222, 100 L. Ed. 2d 249, 108 S. Ct. 1771 (1988).

In its motion to the district court to expand the record (after the federal habeas evidentiary hearings), Ohio argued that the entire police file was inspected by the Ohio public defender (then co-counsel aiding Jamison's counsel) in 1991, n1 during the state [*12] post-conviction proceedings. Jamison's post-conviction claim was filed in June 1991, and post-conviction relief was denied in September 1991. Ohio does not state the precise date that it claims the Ohio public defender inspected the police file.

In return, Jamison asserts that cause has been established. First, he notes that the original failure to give the exculpatory evidence to the defense when requested at the state trial was clearly a Brady violation. In response to Jamison's discovery requests before trial, the State of Ohio's discovery statement listed "Evidence Favorable: none known." Mr. Piepmeier (one of the state prosecutors) admitted at federal habeas hearings that he would have given the exculpatory [*13] information to the defense if he had known about it.

As for Ohio's claim that the entire police record was inspected by the Ohio public defender in 1991, Jamison answers that the file, and any information concerning maintenance or access to it, is not part of the record, since the district court refused Ohio's last-ditch motion to expand the record. Prior to the evidentiary hearing (for purposes of ascertaining whether Brady material had indeed been withheld) on July 7-9, 1999, the district court ordered the parties to file a disclosure of witnesses and exhibits to be used at the hearing. Ohio listed only the transcript of Jamison's homicide trial. Ohio did not list the collection of documents it calls the entire police file from the Central Bar murder investigation.

Throughout the hearing, Ohio did not introduce any evidence relating to the "complete file." Ohio did not offer or authenticate any police file information. After the conclusion of the evidentiary hearings, n2 the State moved to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts and Rule 106 of the Federal Rules of Evidence. The district court [*14] ruled that neither Rule 7 nor Rule 106 allowed the expansion.

The purpose of Rule 7 "is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." 28 U.S.C. § 2254 (Rule 7, advisory committee notes). The rule is meant to eliminate unnecessary hearings, not require the expansion of necessary ones.

Rule 106 allows a party to introduce evidence that ought, in fairness, to be considered contemporaneously with a writing or recorded statement introduced by the other party. There is "no valid basis for a per se rule that all documents contained in agglomerated files must be admitted into evidence merely because they happen to be physically stored in the same file." United States v. Boylan, 898 F.2d 230, 257 (1st Cir. 1990). Further, under Rule 106, the party seeking to have a document introduced for the sake [*15] of completeness must request that the new document be introduced at the time of introduction of the allegedly incomplete document. See, e.g., United States v. Larranaga, 787 F.2d 489, 500 (10th Cir. 1986). Jamison requested and obtained admission of entire documents. Ohio did not object. The only specific document that Ohio mentioned was admitted.

We review evidentiary rulings of district courts for abuse of discretion. Although our decision might have been different, we cannot say that the district court abused its discretion in refusing to admit the police file after the evidentiary hearings.

However, we also note that Brady, as recently affirmed by Strickler, has been interpreted to impose an affirmative duty to evaluate evidence and provide exculpatory evidence to the defense. Kyles, 514 U.S. at 437 (government has a duty to provide exculpatory evidence even if never requested by the defense). Here, the defense requested all exculpatory evidence by proper pre-trial discovery request. As the Sixth Circuit noted, "because, as a practical matter, implementation of the Brady rule contemplates that the government will [*16] enjoy a measure of discretion in determining whether evidence in its possession is material, it is burdened with a corresponding duty to evaluate potential Brady material in a manner that will result in a fair trial." United States v. Hale, No. 95-5915, 1997 U.S. App. LEXIS 1729, *6-7 (6th Cir. 1997) (unpublished). Thus, the Brady violation lies not only in failing to provide the exculpatory evidence, but in failing to weigh the evidence for purposes of Brady disclosure. The prosecution here could not have performed that duty, since it was intentionally kept in the dark regarding the exculpatory evidence.

Cause is shown when the factual basis of the claim was "reasonably unknown" to the defendant's counsel. Amadeo, 486 U.S. at 222. Ohio failed to evaluate the case materials for required Brady disclosures. Ohio further affirmatively represented to the defense that no favorable evidence existed. Ohio cannot now argue that it was unreasonable for defense counsel not to have caught it suppressing evidence. n3 Since the factual basis of the claim was reasonably unknown to defendant's counsel, we affirm the district courts judgment [*17] as to cause.

Prejudice, for purposes of procedural default analysis, requires a showing that the default of the claim not merely created a possibility of prejudice to the defendant, but that it worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170-71, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). In Brady cases, [*18] procedural default prejudice analysis parallels materiality analysis under Brady. Strickler, 527 U.S. at 282. Therefore, following the Supreme Court's example, we proceed to a Brady materiality analysis. Ibid.

Prejudice (or materiality) in the Brady context is a difficult test to meet: the Supreme Court in Strickler required that there must be a "reasonable probability that the jury would have returned a different verdict"; if the defendant would still have been convicted based on evidence not affected by the suppressed material, the conviction must stand. Strickler, 527 U.S. at 296.

In Strickler, the prosecution withheld documents that discredited Anne Stoltzfus, the prosecution's star witness. Id. at 270-73. Stoltzfus testified confidently at trial, and was the sole witness to the abduction of the murder victim. Ibid. The suppressed documents showed that Stoltzfus, immediately following the incident, could not recall the encounter in specific detail, nor could she identify the suspect, his accomplices, or the victim. Id. at 273-76. Months later, Stoltzfus confidently identified [*19] the defendant and offered other testimony regarding the abduction. Id. at 270.

The Strickler court concluded that Strickler had failed to establish the prejudice required to overcome procedural default or mount a successful Brady claim. The court held that the level of prejudice required was the "reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. The question was not whether it was likely that Strickler's conviction would be overturned in light of newly discovered evidence. Instead, prejudice depended on whether "in [the suppressed evidence's] absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 289-90, citing Kyles, 514 U.S. at 434.

Illinois v. Pitsonbarger, 2002 Ill. LEXIS 326 (Ill 5/22/2002) (dissent) State appellate court clarifies its successive bar doctrine and denies relief.

In an initial post-conviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal. Towns, 182 Ill. 2d at 502-03. The doctrine of waiver, however, "is a rule of administrative convenience, not a jurisdictional or absolute bar to procedurally defaulted claims." People v. Hawkins, 181 Ill. 2d 41, 53, 228 Ill. Dec. 924, 690 N.E.2d 999 (1998). Exceptions to this common law principle of judicial administration are [*19] made in three situations: "where fundamental fairness so requires; where the alleged waiver stems from the incompetence of appellate counsel; or where facts relating to the claim do not appear on the face of the original appellate record." People v. Mahaffey, 194 Ill. 2d 154, 171, 252 Ill. Dec. 1, 742 N.E.2d 251 (2000). And although the "fundamental fairness" exception " 'escapes precise definition' " ( Mahaffey, 194 Ill. 2d at 173, quoting People v. Porter, 164 Ill. 2d 400, 408, 207 Ill. Dec. 479, 647 N.E.2d 972 (1995)), we have long defined the fundamental fairness exception in the context of an initial post- conviction petition in terms of the cause-and-prejudice test (see People v. Owens, 129 Ill. 2d 303, 317, 135 Ill. Dec. 780, 544 N.E.2d 276 (1989)).

In the context of a successive post-conviction petition, however, the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute. 725 ILCS 5/122-3 (West 1996). Only when fundamental fairness so requires will the strict application of this statutory bar be relaxed. Flores, 153 Ill. 2d at 274. [*20]

In Flores, we referred "parenthetically" ( Flores, 153 Ill. 2d at 278-79) to the United States Supreme Court decision in McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991), in which the Court adopted the same cause-and-prejudice test for determining whether successive habeas corpus petitions would be allowed that it had previously adopted to determine whether to permit habeas adjudication of claims that had been procedurally defaulted in state court. We acknowledged that this test is as appropriate for determining whether fundamental fairness requires relaxation of the statutory bar to a successive petition as it is to determine whether fundamental fairness requires relaxation of the procedural bar of waiver in an initial post-conviction proceeding. Flores, 153 Ill. 2d at 278-79. We also noted that the cause-and-prejudice test "is similar to, and accomplishes no more than" the concept of fundamental fairness. Flores, 153 Ill. 2d at 279.

Since Flores, we have at times used less than explicit language when referring to the cause-and-prejudice test, describing the test as "an aid" [*21] or otherwise suggesting that its application is not mandatory. We hold today that the cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in a successive petition may be considered on its merits. We reaffirm that even if the petitioner cannot show cause and prejudice, his failure to raise a claim in an earlier petition will be excused if necessary to prevent a fundamental miscarriage of justice. To demonstrate such a miscarriage of justice, a petitioner must show actual innocence or, in the context of the death penalty, he must show that but for the claimed constitutional error he would not have been found eligible for the death penalty. See Hudson, 195 Ill. 2d 117, 124, 253 Ill. Dec. 712, 745 N.E.2d 1246 citing Sawyer v. Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992).

As applied to the present case, because this is a successive petition in which petitioner makes no claim of actual innocence or of ineligibility for the death penalty, the claims raised in his petition must be considered waived unless application of the cause-and-prejudice [*22] test dictates otherwise.

2. Fundamental Deficiency in the Initial Post-Conviction Proceeding

"Cause," for purposes of the cause-and-prejudice test, has been defined as " ' "some objective factor external to the defense [that] impeded counsel's efforts" to raise the claim' " in an earlier proceeding. Flores, 153 Ill. 2d at 279, quoting McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986). We have frequently observed that a fundamental deficiency in the initial post-conviction proceeding may constitute cause for consideration of issues raised in a subsequent petition. Orange, 195 Ill. 2d at 449; People v. Erickson, 183 Ill. 2d 213, 223, 233 Ill. Dec. 319, 700 N.E.2d 1027 (1998); Flores, 153 Ill. 2d at 273- 74. On occasion, however, we have said that "only if" the first proceeding was deficient will a successive petition be considered. See, e.g., Wright, 189 Ill. 2d at 12; Szabo, 186 Ill. 2d at 23.

Recently, the United States [*23] Supreme Court, whose lead we followed in adopting the cause-and-prejudice test, observed:

" 'Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule [of waiver], we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel *** would constitute cause under this standard.' " Strickler v. Greene, 527 U.S. 263, 283 n.24, 144 L. Ed. 2d 286, 303 n.24, 119 S. Ct. 1936, 1949 n.24, quoting Murray, 477 U.S. at 488, 91 L. Ed. 2d at 408, 106 S. Ct. at 2645, citing Reed v. Ross, 468 U.S. 1, 16, 82 L. Ed. 2d 1, 15, 104 S. Ct. 2901, 2910 (1984).

The specific claim raised in Strickler, to which the cause-and- prejudice test was applied, was a claim that conduct by the State had impeded counsel's access to the factual basis for making a Brady claim. The Court stated that such conduct would "ordinarily establish the existence of cause for a procedural default." Strickler v. Greene, 527 U.S. at 283, 144 L. Ed. 2d at 303, 119 S. Ct. at 1949. Yet the State's failure to disclose Brady material prior to trial does not indicate [*24] a fundamental deficiency in the first post-conviction proceeding.

In Reed, which Strickler cited with favor, the Court said:

"Because of the broad range of potential reasons for an attorney's failure to comply with a procedural rule, and the virtually limitless array of contexts in which a procedural default can occur, this Court has not given the term 'cause' precise content. *** Underlying the concept of cause, however, is at least the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel." Reed, 468 U.S. at 13, 82 L. Ed. 2d at 13, 104 S. Ct. at 2909.

Further,

"The cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client's interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met." Reed, 468 U.S. at 14, 82 L. Ed. 2d at 14, 104 S. Ct. at 2909.

The Court held that "where a constitutional claim is so novel that its legal basis is not reasonably available to [*25] counsel, a defendant has cause for failure to raise the claim in accordance with applicable state procedures." Reed, 468 U.S. at 16, 82 L. Ed. 2d at 15, 104 S. Ct. at 2910. Thus, the Supreme Court has not limited the scope of "cause" to situations in which the earlier habeas corpus proceeding was deficient.

Some of our prior decisions have suggested that, unlike the Supreme Court, we intended to limit the cause element of the cause-and-prejudice test to a showing of a fundamental deficiency in the initial post-conviction proceeding. See, e.g., Szabo, 186 Ill. 2d at 23-24; Wright, 189 Ill. 2d at 12. In other decisions, we have noted that a successive petition may be allowed "when" the initial proceedings were deficient (see, e.g., Orange, 195 Ill. 2d at 449), but we did not use the words "only when." To resolve this apparent inconsistency, we reiterate that "cause" in this context refers to any objective factor, external to the defense, which impeded the petitioner's ability to raise a specific claim in the initial post-conviction proceeding. Thus, when "cause" is based on a fundamental deficiency in the [*26] first post-conviction proceeding, the petitioner must show that the deficiency directly affected his ability to raise the specific claim now asserted.

3. Application of the Cause-and-Prejudice Test

Section 122-3 of the Act does not forbid the filing of a successive petition. Rather, it provides that "any claim" not raised in the original or an amended petition is waived. 725 ILCS 5/122-3 (West 1996). Thus, the fundamental fairness exception applies to claims, not to petitions, and the cause-and-prejudice test must be applied to individual claims, not to the petition as a whole. See Wright, 189 Ill. 2d at 36 (Freeman, C.J., specially concurring, joined by McMorrow, J.) (noting that each claim in a successive petition must be reviewed individually to ascertain whether the claim is barred by section 122-3; if it is barred, the court must then determine whether an exception applies to that claim).

Petitioner argues that his first proceeding was fundamentally flawed by counsel's abandonment of his case on appeal and that he is, therefore, entitled to consideration of all of the claims raised in his second petition. This is, essentially, [*27] an argument that the flaw was so pervasive that it undermined the entire proceeding, rendering it entirely unreliable as a means of vindicating his constitutional rights.

Our prior case law does offer some support for applying the "cause" element of the test to the petition as a whole. In People v. Free, 122 Ill. 2d 367, 376, 119 Ill. Dec. 325, 522 N.E.2d 1184 (1988), we discussed several older cases in which the prior post-conviction proceedings had been "virtual nullities" and successive petitions had been allowed. We concluded, however, that because the defendant had already been given " 'one complete opportunity to show a substantial denial of his constitutional rights,' " his second post-conviction petition was properly dismissed. Free, 122 Ill. 2d at 376-77, quoting People v. Logan, 72 Ill. 2d 358, 370, 21 Ill. Dec. 186, 381 N.E.2d 264 (1978). See also [People v.] Whitehead, 169 Ill.2d 355, 369, 662 N.E.2d 1304, 215 Ill. Dec. 164 (treating third petition as an amended petition rather than a successive filing "to ensure that defendant obtained one complete opportunity to show a substantial denial of constitutional rights").

Petitioner claims that dismissal [*28] of his first post-conviction appeal as a result of counsel's failure to file a brief denied him "one complete opportunity," so that all issues raised in his second petition should be considered. Nevertheless, because section 122-3 applies to claims and not to petitions, we hold that a petitioner must establish cause and prejudice as to each individual claim asserted in a successive petition, even if he demonstrates that his initial post-conviction proceeding was deficient in some fundamental way. That is, he must show how the deficiency in the first proceeding affected his ability to raise each specific claim. We need not decide whether an initial proceeding could be so pervasively flawed that cause and prejudice are evident without individual claim-by-claim consideration, because this is not such a case.

In People v. Johnson, 192 Ill. 2d 202, 207, 248 Ill. Dec. 926, 735 N.E.2d 577 (2000), post- conviction counsel filed a brief with this court, but we found the brief to be "so fundamentally deficient that it precluded review." We granted a remedy in that case, ordering appointment of new counsel and rebriefing of the issues. We did not, however, order that new counsel [*29] take the matter back to the starting point and file an amended post-conviction petition. Similarly, in the present case, although we agree with the petitioner that post-conviction counsel's failure to file a brief at all rendered the initial proceeding deficient, we reject his contention that the deficiency was so fundamental that the initial proceeding must been deemed a nullity. Thus, the three issues raised in this appeal should be considered waived unless petitioner demonstrates cause as to each one.

The cause-and-prejudice test, like the test for ineffective assistance of counsel ( Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)), is composed of two elements, both of which must be met in order for the petitioner to prevail. Because the petitioner did not frame his argument in terms of cause and prejudice, we will not attempt an item-by-item assessment of any cause he might have for raising these three specific issues in his second petition. Instead, we will consider whether prejudice would result from application of the waiver provision of section 122-3 to these claims. Prejudice, in this context, would occur if [*30] the petitioner were denied consideration of an error that so infected the entire trial that the resulting conviction or sentence violates due process. Flores, 153 Ill. 2d at 279.

SUPREME COURT

United States v. Recio, --- US --- (cert. granted 5/28/2002) Cert granted on issue of whether a rational jury could find, beyond a reasonable doubt, that defendants were involved in the pre-seizure conspiracy. Willamette Law Online notes:

The Recio and Lopez-Meza were arrested for their part in transporting a truck load of marijuana and cocaine. The original driver of the truck had been arrested earlier that day, along with a companion, who agreed to cooperate with the police and contacted other members of the drug conspiracy, and later Recio and Lopez-Meza were sent to retrieve the truck. Both of them were convicted of conspiracy to possess with intent to distribute a controlled substance. Recio was also convicted for possession with intent to distribute.

On appeal, the Ninth Circuit held that the district court did not err by allowing evidence of the odor of burned marijuana in defendants' car, or by denying defendants' motion for a mistrial based on the prosecutor's violation of the court's instruction not to use the term "stash house." However, the court concluded that the evidence did not establish probative link between defendants and underlying drug conspiracy prior to initial seizure of drugs by police, thus precluding a rational jury from concluding beyond a reasonable doubt that defendants were involved in the pre-seizure conspiracy under US v. Cruz, 127 F.3d 791 (9th Cir. 1997). The court further determined that Recio was denied a new trial owing to the defense counsel's failure to move for acquittal on drug possession charge after his first trial, which constituted ineffective assistance of counsel. The conspiracy convictions are reversed and dismissed with prejudice because of insufficient evidence. Affirmed in part; reversed in part.

CAPITAL CASES (Favorable Disposition)

Henry v. Horn, No. 98-CV-2187 (E.D.Pa. 05/16/2002) "The combined impact of the jury instructions and the verdict slip used in Henry's sentencing proceeding created a 'reasonable likelihood that the jury has applied the challenged instructions in a way that prevents the consideration of constitutionally relevant evidence'."

CAPITAL CASES (Unfavorable Disposition)

Hawkins v. Mullins, 2002 U.S. App. LEXIS 9681 (10th Cir 5/22/2002) After the underlying murder in Hawkins case the state appellate courts interpreted Oklahoma's first-degree felony murder statute to include kidnapping for extortion as an underlying felony. The Oklahoma appellate court's interpretation was not unforeseeable and therefore did not deprive Hawkins of due process. Procedural default of potential failing to investigate mitigation claim. In strong language the concurrence notes that counsel's failure to investigate here is too common and alarmingly below the level of zealous advocacy commanded by the Sixth Amendment.

Martinez v. Texas Court of Criminal Appeals, 2002 U.S. App. LEXIS 9566 (5th Cir (05/21/2002) Plaintiffs' challenges to the State of Texas' "policy" of appointing ineffective state habeas counsel should have been brought in a habeas action not a section 1983. Treating the claims as a habeas claim they are successive.

Hunt v. Lee, 2002 U.S. App. LEXIS 9760 (4th Cir 5/23/2002) Relief denied on Hunt's contentions: (1) that he received ineffective assistance of counsel during the sentencing phase of his state-court trial because his counsel failed to present any mitigating evidence and because his counsel's closing argument was inadequate, essentially requesting jury nullification, and (2) that the state failed to turn over police notes of an interview with Jones, the victim of the second murder, in violation of Brady

Lorraine v. Coyle, 2002 U.S. App. LEXIS 9725;2002 FED App. 0183P (6th Cir.) (6th Cir 5/23/2002) Finding the petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel meritorious, the district court conditionally granted [relief]" the district court erred and grant of relief reversed.

Pennsylvania v. Judge, 2002 Pa. LEXIS 1080 (PA 5/23/2002) Appellant's flight from jurisdiction during pendency of the direct appeal waived any right to post-conviction review of sentence.

Cox v. Florida, 2002 Fla. LEXIS 1096 (FL 5/23/2002) Relief denied on claims "that (1) the trial court erred in denying the appellant's motion for a mistrial based upon a discovery violation; (2) the trial court erred in denying the appellant's motion for a mistrial following a witness's unknowing testimonial violation of the court's order in limine; (3) the trial court erred in ordering the appellant's penalty phase mental health expert to turn over her notes and testing materials to the State prior to trial; (4) the trial court erred in refusing to accept the appellant's offer to stipulate to his prior violent felony convictions; (5) the prosecutor's misstatements of the law and allegedly improper argument amounted to fundamental error; (6) the trial court erred by instructing the jury on and in finding that the murder was especially heinous, atrocious, or cruel ("HAC"); (7) the trial court erred by instructing the jury on and in finding that the murder was committed in a cold, calculated, and premeditated manner, without any pretense of legal or moral justification ("CCP"); (8) the trial court erred by failing to consider all available mitigating evidence and in giving little weight to valid mitigation; (9) the death penalty is not proportional in the instant case; and (10) Florida's death penalty scheme violates the Florida and United States constitutions."

Kemp v. State, 2002 Ark. LEXIS 289 (Ark. 05/16/2002) Relief denied on failure to adequately investigate, improper citation of the state statute by defense counsel during the guilt phase jury instruction on the issue of self defense, failing to request a severance of the trial & use of victim impact

Smithers v. State, 2002 Fla. LEXIS 886 (Fla. 05/16/2002) Relief denied on the following claims: the following claims: (1) the trial court erred by denying Smithers' motion to sever the two offenses; (2) the trial court erred by denying Smithers' motion to suppress his confession; (3) fundamental error occurred when defense counsel waived Smithers' presence for the pretrial motion in limine hearing; (4) the trial court erred in finding HAC for the Roach murder; (5) the trial court erred in finding CCP for the Cowan murder; and (6) the trial court erred by failing to declare a mistrial during the penalty phase when one of the State's witnesses introduced lack of remorse as a consideration.

Ohio v. Hanna, 2002 Ohio LEXIS 1247 (Oh 5/22/2002) Relief denied on claims arising from poor jury instructions in both phases of the trial, inclusion of guilt phase evidence that should have been excluded, failure of counsel to object & investigate, as well as gross prosecutorial misconduct as to questioning and closing.

OTHER NOTABLE CASES

Tice v. Virginia, 2002 Va. App. LEXIS 305 (Va. App 5/21/2002) Tice contends on appeal that the trial court erred by giving an instruction over his objection which allowed the jury to find him guilty of capital murder based upon the theory that he acted in concert with others to rape or kill the victim but without finding that he was an active or immediate killer and by refusing to admit certain evidence that another person confessed to the crimes. We agree that the court erred by giving an instruction that allowed the jury to find Tice guilty of capital murder without finding that he was an active or immediate killer of the victim.

Torres v. Fauver, No. 99-5574 (3rd Cir 05/23/2002) A former prisoner no longer in custody may seek monetary damages for improper disciplinary sanction but the sanctions at bar were constitutionally permissible.

Guzman v. Texas, 2002 Tex. Crim. App. LEXIS 107 (Tex. Crim. App 5/22/2002) When the motives behind a challenged peremptory strike are "mixed," i.e., both impermissible (race or gender-based) and permissible (race and gender-neutral), if the striking party shows that he would have struck the juror based solely on the neutral reasons, then the strike does not violate the juror's Fourteenth Amendment right to equal protection of the law.

People v. Alvarez, 2002 Cal. LEXIS 327 (CA 05/23/02) Court erred in failing to instruct on the need for independent proof of the corpus delicti was harmless where independent evidence of intent was present.

San-Miguel v. Dove, No. 01-6115, 01-6253 (4th Cir 05/21/2002) Appellants cannot raise their Apprendi claims for the first time in their respective 28 U.S.C. § 2241 habeas petitions, where they did not raise the Apprendi claim on direct appeal.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

Elizabeth A. Brooks' controversial note, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 Ga. L. Rev. 1113 (1999), is the subject of this week's Focus. Brook's thoroughly surveys the case law surrounding evoking religious iconography in court. Portions of the case law survey are provided below:

A. TYPES OF RELIGIOUS REFERENCES BY ATTORNEYS

Generally, courts give considerable latitude to attorneys during their closing arguments; however, due process constraints involving religious arguments are particularly problematic for courts. Most states use a case-by- case approach when evaluating statements for due process violations by attorneys who evoke either religious philosophies or religious textual arguments to support their closing arguments. Prosecutors and defense attorneys use biblical references in four different ways: (1) use of religious text, philosophy, or history to support or oppose impositions of particular penalties; [FN41] (2) comparison of the defendant or witness to a character described in religious texts as inherently evil or, conversely, comparing an individual to a flawed character from a religious text who received forgiveness; [FN42] (3) use of religion as testament to moral character; [FN43] and (4) use of religious maxims to illustrate a moral-based value or inference. [FN44] The following subsections set forth case-law examples of each type of argument

.

1. Use of Religious Text, History, or Philosophy to Support Imposition or Avoidance of a Criminal Penalty. Prosecutors and defense counsel often use religious language in death penalty cases. [FN45] Prosecutors invoke religious text and philosophy in support of three main arguments: (1) that a divine being has ordained the use of the death penalty, (2) that the state has the authority to impose the death penalty, or (3) that particular religious groups have historically imposed the death penalty. Defense attorneys most often use religious text to show (1) that a divine being forbids the death penalty, (2) that religious traditions counsel against imposing the death penalty, or (3) that religious traditions approve of moral concepts such as mercy and forgiveness. Attorneys *1120 referencing religious text often combine these biblical arguments during the process of advocacy, and it is not uncommon for courts to evaluate biblical references without distinguishing between the types of arguments being made. Instead, courts typically will rule on the references as a whole.

In one such case, People v. Sandoval, [FN46] the prosecution and defense counsel engaged in a debate involving the propriety of the death penalty. The defense counsel reminded the jurors that they would be "play[ing] God" if they chose vengeance and imposed the death penalty on the defendant. [FN47] The defense asserted that instead of applying the vengeful "eye for an eye" principle, the jurors should remember Gandhi's warning that the "eye for an eye" proverb left the world blind. [FN48] In response, the prosecutor paraphrased a passage from Romans 13:1-7 commonly used to support divine approval of the state's power to punish evil. [FN49] The prosecution also suggested that perhaps the jury's death sentence would get the defendant's attention and give him "the opportunity to get his soul right." [FN50]

The California Supreme Court admonished the prosecution for making these statements holding that the statements were not proper responses to the defense counsel's argument. [FN51] The court acknowledged that in certain circumstances, when defense counsel makes an argument based in religion, the prosecution would be *1121 "allowed to make comments in rebuttal that would otherwise be improper." [FN52] Though conceding that it was a close call due to the defense counsel's religious statements, the court found that the prosecution's statements, while "commonly understood as providing justification for the imposition of the death penalty," invoked "higher law" and were, therefore, improper. [FN53]

The court, however, was unwilling to prohibit all religious references. [FN54] The prosecutor would be permitted to "'state matters not in evidence that are common knowledge, or are illustrations drawn from common experience, history, or literature."D¢=EQP:0014¢=' [FN55] Likewise, even though counsel for defendants would be given some leeway in presenting mitigating circumstances, use of "religious canons as a factor weighing against the death penalty" would be improper and subject to prosecutorial objection, and possibly an invited response rebuttal. [FN56] Ultimately, though, the court determined that the verdict did not require reversal as the statements constituted harmless error. [FN57]

In dissent, Justice Mosk argued for reversal and stated that the religious argument offended not only "'California statutes and judicial decisions"D' [FN58] but also the establishment clauses of the United States and California Constitutions, [FN59] cruel and unusual punishment protections, [FN60] and due process. [FN61] Moreover, Mosk stated that prosecutors, as governmental officials, were to be held to *1122 stricter standards than defense attorneys. [FN62] Mosk asserted that it is "'well settled that religion may not play a role in the sentencing process,"D¢=EQP:0017¢=' [FN63] and that the prosecutor's statements violated the Eighth Amendment requirement that death penalty decisions "'be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction."D¢=EQP:0018¢=' [FN64] Additionally, Mosk was willing to evaluate references to the Bible more strictly than other documents, and perhaps, other religious text. He stated that the Bible's "commands and prohibitions cannot be viewed as mere reliquiae of a culture separated from ours by thousands of miles and thousands of years ... because '[t]o the average juror, ... the Bible is an authoritative religious document."D¢=EQP:0019¢=' [FN65]

Mosk also rejected any type of "fair response" exception for prosecutors when defense attorneys use religious-based arguments. [FN66] The United States Supreme Court interpreted the Eighth Amendment of the United States Constitution to require a jury in a capital sentencing case to "recogniz[e] the gravity of its task and proceed[ ] with the appropriate awareness of its 'truly awesome responsibility."D¢=EQP:0021¢=' [FN67] Mosk reasoned that the use of religion by prosecutors undermined this principle by presenting jurors with an extra-judicial "rule of decision" and religious "purpose of punishment." [FN68] Moreover, Mosk asserted that the prosecutor "sought to minimize the jury's sense of responsibility for determining the appropriateness of death," by stating that jurors did not have to feel guilty about imposing a sentence of death because the people of *1123 California had morally endorsed the death penalty in passing capital punishment legislation. [FN69]

Furthermore, not only did Mosk deem the remarks highly improper, he also asserted that the sentence should be reversed because the jury was prejudiced and the government had failed to show that the error was harmless beyond a reasonable doubt. [FN70] Mosk recognized that jurors deciding death penalty cases are faced with an "uncomfortable," "difficult," and unfamiliar situation concerning whether someone should be put to death. [FN71] Furthermore, jurors are "given only partial guidance [by the law] as to how their judgment should be exercised, leaving them with substantial discretion." [FN72] The dissent concluded that the prosecutor's comments "offered the jurors an easy way to avoid a hard choice." [FN73]

In the subsequent decision of People v. Wash, [FN74] the California Supreme Court once again held that the prosecutor's references to the Bible in support of the death penalty were improper but that the references did not require reversal. [FN75] During the sentencing phase, the prosecutor made references to the biblical commandment not to kill, stating that the basis of secular homicide laws was found in religious principles, and explaining that what he was asking them to do was consistent with Judeo-Christian values or whatever beliefs they might have. [FN76] He further explained that every society, *1124 "whether they were major countries or small clans," had developed the death penalty out of necessity. [FN77] The prosecution then explained that when Mosaic law was formulated, the Jewish people had just broken away from the Egyptian government, so the commandments were a combination of both religious and civil principles. [FN78] The prosecutor explained to the jury that the reason they continued to see a "mixture of religious commandments and civil" code in the Old Testament and modern law was that certain commandments were a recognition of both civil and religious principles. [FN79] Thus, the phrase "thou shalt not kill" is both a religious and secular criminal commandment. [FN80]

The prosecution continued by referencing several passages from the Old Testament in which people were put to death for their actions. [FN81] He then stated that, contrary to what the defense would suggest, the Old Testament and New Testament do not contain contrary to lessons about mercy and vengeance. [FN82] The prosecutor asserted that the New Testament messages of mercy and punishment are appropriate in different circumstances. [FN83] The prosecutor explained that though the Bible teaches messages of love and forgiveness, the New Testament also acknowledges that one must submit to civil authorities. [FN84] The prosecution continued by stating *1125 that God recognized that murderers would exist, and that the message throughout the entire New Testament is that people who kill others must die for their crimes. [FN85]

In response, the defense attorney asserted that the "death penalty today is condemned by most religious beliefs." [FN86] He continued by offering modern day examples of religious leaders' opposition to the death penalty, including the National Counsel of Churches, numerous California churches and synagogues, and even Pope John Paul II who spoke against the death penalty after an assassination attempt on his life. [FN87] The defense attorney concluded by stating that the prosecutor was "wrong when he implie[d] that God freely sanctions" the death penalty because "[o]thers much closer to God ... will surely disagree." [FN88]

The California Supreme Court rejected the State's argument that the passages were "little more than a biblical 'history' of the death penalty" because the argument was more than "that capital punishment existed in the Bible, but that it was sanctioned" by the Bible and God. [FN89] The court adopted Justice Mosk's position that the primary vice of these types of arguments is that they "'diminish the jury's sense of responsibility for its verdict and ... imply that *1126 another, higher law should be applied in capital cases, displacing the law in the court's instructions."D¢=EQP:0037¢=' [FN90] The court, however, refused to overturn the sentence because the prosecution followed with a "lengthy and detailed argument devoted exclusively to the evidence in aggravation," and his further arguments urged sentencing based upon the defendant's moral culpability, making no further reference to God or religion. [FN91] Accordingly, the court found that the religious statements were not prejudicial as the sentence would have been the same without the misconduct. [FN92]

The holding in Sandoval is contrary to the earlier case of People v. Williams [FN93] in which the California Supreme Court allowed prosecutors to read from the book of Exodus in which Moses gives Israel the authority to use capital punishment. [FN94] By characterizing the argument as "part of a short and fairly neutral 'history' of capital punishment, [that does] not appear calculated to appeal to the jurors' religious passions or prejudices," the court summarily rejected the defendant's argument that the statements were improper. [FN95]

In contrast to California's approach in Sandoval, the North Carolina Supreme Court in State v. Rose [FN96] held that a prosecutor's statement that the Bible justifies imposing the death penalty for murder was not reversible error. [FN97] The court noted, in a cursory *1127 treatment of the issue, that it had "held 'more often than not' that biblical arguments ''fall within the permissible margins' allowed counsel arguing 'hotly contested cases."D¢=EQP:0040¢=' [FN98] The court was unwilling to adopt the defendant's position that biblical references were reversible error per se and held that the statements were not prejudicial. [FN99]

Similarly, the United States Court of Appeals for the Fourth Circuit also affirmed a capital punishment sentence, despite finding that the prosecutor's religious arguments were improper in Bennett v. Angelone. [FN100] After the defendant was convicted of brutally robbing and murdering a woman in her home, the sentencing phase began. [FN101] The defense presented character witnesses who testified to the defendant's personal character, including his church activities. [FN102] During closing argument and rebuttal, the prosecutor made several arguments that he supported with biblical text. First, he argued that society had the right to take the defendant's life, despite arguments from others that "[v]engeance is mine saith the Lord." [FN103] The prosecution stated that when God flooded the earth, God promised that he would never do that again and "handed the sword of Justice to Noah," whom the prosecution equated with the government. [FN104] The prosecutor then proceeded to state to the jurors that while it was true that individuals were not supposed to kill, the government did not have the same prohibition "[b]ecause Government has a duty to protect its citizens." [FN105] In response, the defense attorney submitted to the jury that vengeance did belong to God and that the jury did not have the "ultimate power of punishment." [FN106] Instead defense counsel argued:

*1128 [T]he concept we have long since discarded of an eye for an eye or a tooth for a tooth, that has been replaced since the Sermon on the Mount, and the message we as Christians have been brought up with is [that] the only perfect person in the world ... hung on the cross between other murderers. The message then as it still was [sic], was "Father forgive them," do not punish these people for what they do to me. That is the message of faith. [FN107]

In his rebuttal, the prosecutor stated that the law had determined that the death penalty was a moral form of punishment, and he said that people who commit heinous murders should be put to death. [FN108] The prosecutor asserted that even Jesus, when he was put on trial, told the Roman soldiers who mocked him that people should give to Caesar what is Caesar's. [FN109] The prosecutor stated that this meant that people should "follow the law and leave the rest to Heaven." [FN110]

One of the most recent decisions involving religious arguments, prosecutorial misconduct, and evidence of the growing number of objections to these types of arguments is found in Coe v. Bell. [FN111] On appeal, the United States Court of Appeals for the Sixth Circuit determined that the prosecutor's statement during the penalty phase did not warrant reversal. [FN112] The prosecutor stated that the jurors functioned "as representatives of community" and were bound by their duty to justice, their conscience, and God to return the proper sentence. [FN113] The court held that these statements were not improper as the statements were "a far cry from saying ... that the *1129 community or God demanded the death sentence." [FN114] The court found more problematic statements by the prosecutor that the jurors could "put [[their] mind[s] at rest" concerning conflict between the death penalty and the Bible because there was "certainly foundation for capital punishment in the Bible." [FN115] Though the court determined that the statements were inappropriate, it held that the statements did not "so [taint] the proceedings" as to warrant reversal. [FN116]

2. Analogizing Defendants to Religious Champions and Villains. In attempting to characterize defendants as evil, prosecutors will sometimes analogize defendants to vilified religious characters such as Satan, Judas, or Pontius Pilate. [FN117] On the other hand, defense attorneys can point to flawed heroes and heroines in religious text in order to characterize their clients as similarly flawed, but human. In particular, defense attorneys sometimes draw connections between their clients and characters who have received forgiveness from their god or gods. [FN118] Examples of redeemed biblical characters that might be used in oral arguments include Cain, who killed his brother Abel, [FN119] the adulterous woman at the well, [FN120] and King David of Israel. [FN121]

*1130 In Cunningham v. Zant, [FN122] the Eleventh Circuit reviewed a defendant's conviction for armed robbery and murder stemming from a brutal attack upon a store clerk. [FN123] During the closing argument of the penalty phase, the prosecutor made "numerous appeals to religious symbols and beliefs, at one point drawing an analogy to Judas Iscariot." [FN124] The prosecutor asked the jurors:

How do you know that if you let him go this time it won't be done again? ... You know, Judas Iscariot was a good person, the most trusted of them all and you all know what he did .... [Judas was] a good person and committed only one act, [but that one act] change[d] the course of civilization. [FN125]

The court determined that these statements appealed not to "reason and to an understanding of the law," but to the "passions and prejudices" of the jurors. [FN126] The court, however, did not determine whether the remarks required a new sentencing hearing because the court vacated the sentence based on an improper jury instruction. [FN127]

3. Religion as Testimony to Moral Character. A defendant's past or present religious dedication is sometimes either used as evidence of the presence of or lack of redeeming qualities. Defendants and witnesses may testify to deep religious devotion or to "jail-house conversions." In contrast, prosecutors may attempt to convince jurors that the defendant's religious dedication or conversion is either irrelevant to the issues or insincere.

*1131 For example, in Nevada, one defendant brought a Bible with him to court every day. [FN128] The prosecution suggested that the defendant brought the Bible to court to impress upon the jury that the defendant was a god-fearing person. [FN129] While the court did "not approve of the prosecutor's attempt to ridicule [the defendant's] reasons for bringing his Bible to court with him," the remarks were deemed not sufficiently prejudicial to warrant reversal. [FN130] The court rejected the argument that the prosecution's reference had questioned the defendant's religious beliefs, instead reasoning that the statements only questioned the defendant's motives in bringing the Bible to court. Accordingly, the court held that the questioning was not "misconduct that prejudiced the overall fairness of the trial." [FN131]

In the Georgia case of Todd v. State, [FN132] the defendant was sentenced to death for robbing and murdering his victim by striking multiple blows to the decedent's head with a hammer. [FN133] The court determined that the jury was not prejudiced by statements that *1132 questioned the defendant's religious conversion. [FN134] The court noted that "while it would be improper to urge the imposition of a death sentence on the basis of a defendant's religious beliefs, when the defendant offers mitigation evidence of his post-arrest church attendance and activities, the prosecutor is entitled to raise questions in his argument about ... the sincerity of the defendant's rehabilitation." [FN135] According to the court, a legitimate factor in determining the proper sentence for the defendant was the sincerity of his rehabilitation. [FN136] The sole dissent argued that the prosecution's reference was unconstitutional, arguing that it violated due process for the jury to make decisions based on religious principles. [FN137]

In Hooks v. State, [FN138] the prosecution, during the closing arguments of the guilt phase of the trial, stated that the Bible did not mean anything to the defendants. [FN139] The court held that the statement improperly "brought the issue of defendants' religious beliefs before the jury." [FN140] The court held that even though the reference improperly appealed to the passion and prejudice of the jury, the statement did not necessitate reversal because it did not prejudice the jury within the whole context of the case. [FN141]

4. Use of Religious Maxims to Illustrate Moral-Based Values or Inferences. Generally, it is helpful for an advocate to use stories that jurors can easily recognize and understand. [FN142] To achieve that end, prosecutors and defense attorneys may analogize the familiar stories to the facts of their cases. Values can be illustrated in this manner through proverbs, parables, or religious historical stories.

*1133 In Shell v. State, [FN143] the Mississippi Supreme Court held that a reference to the biblical story of Cain and Abel was not erroneous. [FN144] During the trial, the prosecution related the story of Cain and Abel to the jurors, explaining that they were in the courtroom because some people did not value human life as a result of Cain's sin. [FN145] The prosecution went on to state: "[W]e still hear ringing in our voices the question of God, ''Where is your brother?"D¢=EQP:0062¢=' [FN146] After noting that the defendant also used numerous references to the Bible, the court concluded that the religious references were not improper:

Counsel may draw upon literature, history, science, religion, and philosophy for material for his argument. He may navigate all rivers of modern literature or sail the seas of ancient learning; he may explore all the shores of thought and experience; he may, if he will, take the wings of the morning and fly not only to the uttermost parts of the sea but to the uttermost limits of space in search of illustrations, similes, and metaphors.... [FN147]

In Bussard v. Lockhart, [FN148] the defendant, who had been arrested in connection with the killing of a motel worker, escaped from police custody and remained a fugitive for four years before finally being apprehended and brought to trial. [FN149] During the closing argument of the guilt phase of the trial, the prosecution commented on the defendant's escape from police custody, suggesting that fleeing from police authorities could be used to infer his guilt. [FN150] The prosecutor stated: "Proverbs 28:1 fits it just as clear as it can be. 'The guilty flee when no man pursueth while the righteous stand bold as a lion.' [The defendant] fled to avoid coming to trial. That shows guilt." [FN151]

*1134 On appeal, the United States Court of Appeals for the Eighth Circuit distinguished the prosecutor's statements from other improper statements because he "did not use the Bible to invoke the wrath of God ... or to suggest that the jury apply divine law as an alternative to the law" of the State. [FN152] The biblical quote simply illustrated "a common-sense connection expressly recognized" by state law in a more poetic way, and as such was not grounds for reversal. [FN153]

In United States v. Kirk, [FN154] a case heard by a military court, the defendant was court-martialed and convicted of various offenses in connection with an unauthorized absence from the military. During the penalty phase, the prosecutor read from Isaiah 3:10: "Say to the righteous that it shall be well with them for they shall eat the fruits of their doings." [FN155] He concluded by stating that "the time has come for [the defendant] to reap the fruits of the seeds he has sown." [FN156] On appeal, the defendant objected to these statements as an improper biblical argument. [FN157] Yet the government maintained that as counsel's argument "reflected a common sense perspective of human experience that has survived through the centuries," there was "no appeal to the religious impulses or beliefs of [the jurors] to impose a particular sentence." [FN158] Noting that the government did not argue that appeals "to religious impulses or beliefs as an independent source of a higher law" were proper, the Kirk court concluded that these statements were clearly not of that type. [FN159] Instead, the court characterized the statements as "a common sense observation of human experience that has met the test of time" and found they did not constitute plain error. [FN160]

While most courts selectively ban certain forms of religious text from the courtroom, one court has purported to ban all religious *1135 references from courtroom dialogue. State v. Cribbs [FN161] represents a jurisdiction adopting such an approach whether used by prosecutors or defense attorneys as a metaphor, illustration, or religious law. [FN162] In that trial, the prosecutor, after expressing discomfort in "even mentioning [a] biblical reference[]," stated that whether in the "Koran, New Testament or Old Testament there is one consistent thing: Whatever a man sows, so shall be reaped [sic]." [FN163] The court acknowledged that the prosecutor by using the quote had not asked jurors to impose the death penalty based on religious law. [FN164] The quote was instead "a metaphor for individual accountability." [FN165] However, the court found the reference improper solely because it was derived from a biblical passage. [FN166] Warning trial courts to "guard against this interjection," the court went on to hold that though improper, the remarks did not prejudice the jury, as the jury *1136 was instructed that the arguments of the attorneys are not evidence and that jurors were presumed to follow the trial judge's instructions. [FN167]

B. PENNSYLVANIA'S APPROACH: THE PER SE REVERSIBLE ERROR RULE FOR REFERENCES TO RELIGIOUS TEXT IN A CAPITAL PUNISHMENT SENTENCING PHASE

While most courts evaluate the prejudicial effect of religious references on a case-by-case basis, [FN168] Pennsylvania has adopted a per se reversible error rule for prosecutorial statements that use religious text to support the imposition of the death penalty. [FN169] Pennsylvania statutory law authorizes jurors to impose a sentence of death or life imprisonment in a separate sentencing hearing after convicting a defendant of first-degree murder. [FN170] The statute allows evidence concerning the victim and victim impact statements to be considered in addition to evidence "as to any other matter that the court deems relevant and admissible on the question of the sentence to be imposed." [FN171] In order to impose a sentence of death, at least one aggravating circumstance must be present. [FN172] Jurors must also consider mitigating circumstances. [FN173] Jurors are instructed that if they find no mitigating circumstances, but find aggravating circumstances, the defendant should be sentenced to death. [FN174]

When there is at least one aggravating and one mitigating circumstance, the jurors are to balance the aggravating and mitigating circumstances with evidence presented about the victim and impact of the murder on the victim's family. [FN175] If the jurors unanimously find that the aggravating circumstances outweigh the mitigating circumstances, *1137 they are to sentence the defendant to death. [FN176] Counsel for both parties are permitted to "present argument for or against the sentence of death" after all evidence is presented. [FN177]

Death sentence verdicts are automatically reviewable by the Pennsylvania Supreme Court. [FN178] The statute gives jury sentencing determinations great deference, and the state supreme court, therefore, must affirm a death sentence verdict unless there is insufficient evidence to support the finding of at least one aggravating circumstance, or if the court finds that the verdict was the result of passion, prejudice, or any arbitrary factor. [FN179]

After initially evaluating prosecutorial remarks on a case-by-case basis, Pennsylvania courts became the first, and to date only, court system to adopt a per se reversible error rule for prosecutorial statements based on religious text in Commonwealth v. Chambers. [FN180] During the penalty phase, the prosecutor stated, "Karl Chambers has taken a life. As the Bible says, 'and the murderer shall be put to death."D¢=EQP:0079¢=' [FN181] The defendant objected, and the trial judge immediately gave the jury a curative instruction. [FN182] After the jury sentenced the defendant to death, [FN183] the defendant appealed to the Pennsylvania Supreme Court challenging, among other things, the prosecutor's reference to the Bible. [FN184] The court determined that despite the trial court's instruction, the sentence demanded reversal. [FN185] The court noted that the prosecutor's statements *1138 suggested that the Bible commanded that the defendant be put to death, [FN186] and the court rejected use of the Bible as an independent source of authoritative law. [FN187]

Abandoning the previous Pennsylvania approach of using a case-by-case analysis to evaluate prosecutorial references to the Bible, the court created a per se reversible error rule applicable to all prosecutorial statements which relied "in any manner on the Bible or any other religious writing in support of the imposition of a penalty of death." [FN188] The court determined that statements based on religious texts were "[d]eliberate attempt[s] to destroy the objectivity and impartiality" of juries [FN189] causing the "verdict to be a product of the emotion rather than reflective judgment." [FN190] The court viewed religious passages which supported the death penalty as impermissible independent sources of law. [FN191] References to the Bible had in the past been "narrowly tolerated ... as on the limits of 'oratorical flair,"D¢=EQP:0083¢=' but the practice which the court had previously "strongly discourage[d]'' now constituted per se grounds for reversal and could "subject violators to disciplinary action." [FN192]

The Chambers dissent characterized the majority's opinion as an ""overreaction" to biblical references, especially considering that the comment under review was an isolated sentence at the very end of the prosecution's brief closing argument. [FN193] The dissent noted that, under current standards, the statement would be permissible unless it had the "effect of arousing the jury's emotion to such a degree that it becomes impossible for the jury to impose [a] sentence based on consideration of the relevant evidence." [FN194] The dissent characterized *1139 the statement not as a command of "divinely motivated retribution," but as a "reference to one of the texts from which our social system has evolved." [FN195] The dissent found it implausible that the jurors were "swayed from their solemn, sworn duty by a single reference" and characterized the majority's opinion as an "unmerited censure of citizens called to such vast responsibility." [FN196]

OTHER NEWS

The Death Penalty Information Center reports:

New Jersey Poll Shows Dramatic Shift in Public Opinion

A recent poll of residents in New Jersey conducted by the Eagleton Institute of Politics at Rutgers University revealed that support for the death penalty has dropped considerably in the state, and that the majority of residents support a moratorium on executions until issues of accuracy, fairness and cost effectiveness can be examined. The following are among the poll's key findings:

When given the option of life without the possibility of parole as a sentencing alternative, 48% of New Jerseyans support a life sentence, while 36% support capital punishment. This is a reversal from 1999 polling results that showed that 44% of New Jerseyans then supported capital punishment and 37% favored life imprisonment when given the choice.

Six in 10 New Jerseyans support a moratorium on executions while the state's death penalty statues are reviewed.

A quarter of those surveyed say that they are more likely to vote for a candidate who supports a moratorium, while only 7% of those surveyed would be less likely to support him or her.

The New Jersey legislature is currently considering a bill that would create a one-year moratorium on executions while a Commission investigates potential flaws in the state's death penalty system. See, press release. See also, Public Opinion.

Oklahoma Legislators Send Governor Bill Banning Execution of the Mentally Retarded

A bill authored to ban the execution of those who have mental retardation now awaits the signature of Oklahoma Governor Frank Keating. The bill passed with bipartisan support in the State House and Senate. Keating's signature would make Oklahoma the 19th state to ban executing those with mental retardation. The U.S. Supreme Court is currently considering Atkins v. Virginia, No. 00-8452, which will determine whether executing those with mental retardation violates the Eighth Amendment's ban on cruel and unusual punishment. (The Oklahoman, May 26, 2002). See also, Mental Retardation.

NEW RESOURCE: The Death Penalty Moratorium Movement in the United States

Jeffrey L. Kirchmeier explores the history of the death penalty in the U.S. and the moratorium movement that has resulted from growing concerns about the way the death penalty is applied in "Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States," 73 Univ. Colorado Law Rev. 1 (2002). See also, Studies, Books, and Law Reviews.

Supreme Court Upholds Lawyer's Silence at Client's Death Sentencing

The U.S. Supreme Court upheld the death sentence of Gary Cone from Tennessee, despite the fact that his lawyer presented no mitigating evidence on Cone's behalf and passed up an opportunity to argue for his life. The attorney was reportedly suffering from mental illness and later committed suicide. The Court ruled 8-1 that the attorney's inaction did not amount to a complete absence of representation, and that the state court did not act unreasonably when it held that the attorney might have been making a tactical decision in not presenting evidence. (Bell v. Cone, No. 01-400; see also Associated Press, May 28, 2002). See Supreme Court.

OTHER RESOURCES:

If you have found this e-zine useful you might want to visit: www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender). 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 at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analysis is very questionable at times, so caution is advised).

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CITATION

This edition may be cited as:

Capital Defense Weekly, Volume V, Issue 19 (http://capitaldefenseweekly.com/archives/020527.htm).