In an otherwise slow weak, one capital case is covered this week, this time from the Florida Supreme Court, Provenzanov.State . Examining the nature of competency to be executed, the Florida Supreme Court finds Povenzano competent to be executed.

As the weekly does every six months or so, recent law review titles are offered this week in the "In Depth" section. From a quick overview, the number of articles seems markedly down this year.

Supreme Court

No relevant reported decisions this week.

Capital Cases

Provenzanov.State , No. SC99-32 (Fla. 05/25/2000) Florida Supreme Court finds the condemned is sane enough to be executed.

The Unites States Supreme Court has concluded that the death penalty serves two important purposes: retribution and deterrence of capital crimes by prospective offenders. See Gregg v. Georgia, 428 U.S. 153, 183-86 (1976) (plurality opinion). "[A] state can only execute a condemned prisoner if it contributes to these [two purposes]." Martin v. Dugger, 686 F. Supp. 1523, 1569 (S.D. Fla. 1988), aff'd, 891 F.2d 807 (11th Cir. 1989). In Ford v. Wainwright, 477 U.S. 399, 410 (1986), the Supreme Court held that the execution of a defendant who becomes incompetent after conviction is prohibited by the Eighth Amendment of the United States Constitution. The Court did not set forth the standard for determining incompetency. However, Justice Powell, in his concurring opinion, did provide guidance:

Florida requires the Governor to stay executions of those who "d[o] not have the mental capacity to understand the nature of the death penalty and why it was imposed" on them. A number of States have more rigorous standards, but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.

Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

477 U.S. at 421-22 (Powell, J., concurring) (citations omitted) (footnote omitted). In Penry v. Lynaugh, 492 U.S. 302 (1989), a majority of the Court subsequently agreed with the minimal standard articulated by Justice Powell. See id. at 333 (stating that defendants who are "unaware of the punishment they are about to suffer and why they are to suffer it" cannot be executed) (quoting Ford v. Wainwright, 477 U.S. at 422 (Powell, J., concurring)). In Martin, Judge King offered additional guidance:

Similar to th[e] retributive purpose analysis, the execution of a prisoner without an appreciation of the connection between his crime and punishment would be a disservice to the deterrence aspect of capital punishment. The essence of this deterrence purpose is the rational concept that if you do this act society considers heinous you will be killed; that is, society will make you an example to others so that their acts conform to the accepted standards of humanity. The execution of a person who cannot appreciate the connection between his crime and punishment would be tantamount to an act of inhumanity. . . .

If both purposes behind the death penalty are to be served, and, therefore, the sentence is to be carried out in accordance with the eighth amendment, the defendant must at least appreciate the connection between his crime and punishment. 686 F. Supp. at 1570

Florida has adopted the Eighth Amendment standard announced by Justice Powell in Ford. See rule 3.812(b) ("whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason for it"). In its order, the circuit court found that despite his delusional belief that he is Jesus Christ, Provenzano has a factual and rational understanding of "the details of his trial, his conviction, and the jury's recommendation by a vote of seven to five that he be sentenced to death" and of "the fact that in accordance with the jury's recommendation, he was sentenced to death for the murder of Bailiff Arnie Wilkerson, and that he will die once he is executed." Thus, the circuit court concluded that Provenzano is competent to be executed.

In Medina v. State, 690 So. 2d 1255, 1256 (Fla. 1997), this Court applied the competent, substantial evidence standard of review to the trial court's order pursuant to a rule 3.812 hearing. Applying that standard of review to the present case, we find that the record contains competent, substantial evidence to support the circuit court's order. State experts Dr. Harry McClaren, Dr. Leslie Parsons, and Dr. Alan J. Waldman all testified that Provenzano is competent to be executed.

As indicated by the circuit court, this case is troubling because there is evidence that Provenzano has "mental health problems of some degree." The circuit court acknowledged these problems in its findings of fact and concluded that Provenzano suffers from mental illness, but because he also exaggerates symptoms and utilizes deception, it is difficult to determine Provenzano's exact mental status. However, in this context, the Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it. See Ford, 477 U.S. at 422 (Powell, J., concurring). The circuit court found that Provenzano "does not lack the mental capacity to understand the fact of his pending execution and the reason for it"; therefore, both the Ford standard and the purposes behind death penalty have been met in this case. The record contains competent, substantial evidence to support this determination. Accordingly, we affirm the order of the circuit court finding Provenzano competent to be executed.

Habeas Cases

Lee v. Kemna, No. 99-2406 (8th Cir. 05/25/2000) Split panel upholds this noncapital murder conviction on issues of whether denial of Lee's motion for a continuance was a due process violation on the grounds of procedural. Note the dissent in this case is unusually terse:

As Justice Fortes observed, "There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus." Harris v. Nelson, 394 U.S. 286, 292 (1969). "Today, as in prior centuries, the writ is a bulwark against convictions that violate 'fundamental fairness.'" Engle v. Isaac, 456 U.S. 107, 126 (1982) (quoting Wainwright v. Sykes, 433 U.S. 72, 96-97 (1977) (Stevens, J., concurring)). With this view of the importance and purposes of a writ of habeas corpus, I am unwilling to condone what I believe was a conviction in Lee's case that violates "fundamental fairness." Furthermore, I do not believe that Lee's due process claim has been procedurally defaulted, as the majority concludes, even under the current status of federal habeas law, which, in my view, increasingly elevates tortuous and tangled procedural impediments over fundamental fairness. See Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting) ("I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights" in habeas corpus actions). For these reasons, I must respectfully dissent.

Machacek v. Hofbauer, No. 98-1815 (6th Cir. 05/26/2000) "Machacek argue[s] that the Michigan trial court erred in admitting an incriminating statement obtained in violation of his Fourth, Fifth and Sixth Amendment rights. The district court denied Machacek's petition, finding his Fourth Amendment claim barred by Stone v. Powell, 428 U.S. 465 (1970), and his other claims to be meritless. For reasons to be discussed, we affirm." Split panel on the issue of fraud in inducing a confession.

Malchi v. Thaler, No. 99-40388 (5th Cir. 05/23/2000) District Court's grant of the writ reversed on claims arising out of the lower court's finding that "there were no facts that would support the finding that Malchi was found in possession of a box of stolen envelopes. The magistrate judge recommended that the habeas petition be granted and that Malchi's time-earning status and good-time credits be restored.

Whitmore v. Kemna, No. 99-3043 (8th Cir. 05/23/2000) Appeal denied where "[t]he District Court denied relief without an evidentiary hearing, but granted a certificate of appealability limited to the issue of the prosecutor's use at trial of Whitmore's post-arrest decisions to terminate police interrogation and to ask for counsel."

Green v. Montgomery, No. 99-7515 (2d Cir. 05/24/2000) Issues on appeal certified to the New York Court of Appeals on questions of:

(1) Is the New York Supreme Court's commitment order stating that Green was "convicted of/adjudicated a Juvenile Delinquent for the crime[] of Reckless Endangerment 1st Degree" to be treated as the equivalent of a Family Court adjudication of juvenile delinquency for the purpose of §§ 380.1 and 381.2 of the Family Court Act?

(2) By bringing a § 1983 suit that places into question issues that were necessarily resolved by the Supreme Court in its decision that Green recklessly endangered Officer Montgomery, has Green waived any and all rights under New York state law not to have those determinations held against him, with the result that he can be collaterally estopped from relitigating the Supreme Court's findings?

Prisoner's Rights/§ 1983

Shoats v. Horn , No. 99-3603 (3rd Cir. 5/23/2000) "Shoats has a protected liberty interest in being released from administrative confinement, []however,] we conclude that SCI-Greene's procedures for evaluating whether Shoats should remain in administrative custody comported with procedural due process requirements. Accordingly, we will affirm."

In Depth

The "in focus" section this week addresses legal resources available on the internet.

ALABAMA LAW REVIEW

Volume 5 Winter 2000 Number 2

INTRODUCTION: LAW vs. ORDER, OR

HABEAS vs. HOBBES

Wythe Holt 525

MILESTONES IN HABEAS CORPUS: PART I

JUST BECAUSE JOHN MARSHALL SAID IT, DOESN'T

MAKE IT SO: EX PARTE BOLLMAN AND THE ILLUSORY

PROHIBITION ON THE FEDERAL WRIT OF HABEAS

CORPUS FOR STATE PRISONERS IN THE JUDICIARY

ACT OF 1789

Eric M. Freedman 531

COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS

Volume 33 Number 2 Winter 2000

When One Man's DNA Is Another Man!s Exonerating

Evidence: Compelling Consensual Sexual

Partners of Rape Victims to Provide DNA

Samples to Postconviction Petitioners 113

AMERICAN JOURNAL OF CRIMINAL LAW

VOLUME 27, NUMBER 1, FALL 1999

CAPITAL MURDER: A PROSECUTOR'S PERSONAL OBSERVATIONS ON THE PROSECUTION OF CAPITAL CASES

Ronald J. Sievert 105

KARLA FAYE TUCKER: A CASE FOR RESTORATIVE JUSTICE

Walter C. Long 117

NEW YORK LAW SCHOOL JOURNAL OF HUMAN RIGHTS

VOLUME 16, PART 2, SPRING 2000

LIFE OR DEATH: THE VOLUNTARINESS OF GUILTY PLEAS BY CAPITAL DEFENDANTS AND THE NEW YORK PERSPECTIVE

Christopher Solgan 699

UNIVERSITY OF SAN FRANCISCO LAW REVIEW

Volume 34 Spring 2000 Number 3

PEOPLE v. WELCH: A MISSED OPPORTUNITY TO ESTABLISH A

RATIONAL RULE OF COMPETENCY TO WAIVE THE ASSISTANCE OF

COUNSEL

Todd A. Pickles.........................603

SANTA CLARA LAW REVIEW

VOLUME 40, NUMBER 3, 2000

THE DEREGULATION OF THE DEATH PENALTY

Kenneth Williams

ST. JOHN'S LAW REVIEW

VOLUME 73, NUMBER 4, FALL 1999

ASSESSING THE: CONSTITUTIONALITY OF CAPITAL CHILD RAPE STATUTES

Note 1159

TEXAS WESLEYAN LAW REVIEW

VOLUME 6, NUMBER 1, FALL 1999

Clemency in Texas -- A Question of Mercy?

Allen L. Williamson 131