Five favorable opinions are noted in this edition. Two are given special attention in the "Hot List" section, Stumpf v. Mitchell and Walbey v. Dretke.

The Sixth Circuit in Stumpf grants relief on two issues: that Stumpf's guilty plea was not voluntarily, knowingly and intelligently given and because the prosecution used of inconsistent, irreconcilable theories to convict both Stumpf and his putative accomplice. As the Stumpf holding on the issue of acceptance or rejection of a plea agreement has a potentially broad applicability (especially in the noncapital context) it earns a "Hot List" slot.

The other "Hot List" slot this week belongs to the Fifth Circuit's opinion in Walbey. Although the Walbey decision is unpublished it examines what happens when a state appellate court vacates a state trial court's factual findings but does not enter its own factual findings. Noting that there are no state court factual findings "to defer to" the panel orders an evidentiary hearing. Although the decision is somewhat commonsensical, my own prior research in the area found few opinions directly on point which is why it earns the other "Hot List" slot

A plurality of the Fourth Circuit, en banc, grants penalty phase relief in Allen v. Lee due to a faulty unanimity instruction under McKoy v. North Carolina (this opinion did not make the "Hot List" as its plurality holding is rather pithy). In Anderson v. Arkansas the state supreme court vacates on a fact sensitive issue relating to the jury apparently failing to give any weight to a substantial amount of mitigation evidence. The South Carolina Supreme Court in Nance v. Frederick holds that trial counsel was ineffective for failing to request a competency despite a “reasonable probability” that petitioner was incompetent at the time of his guilty plea." If space permitted all three of these opinions would have received much more space than what they have been afforded.

In Dretke v. Mitchell the Supreme Court holds in this noncapital case a federal court must examine every non-defaulted claim in a habeas petition before examining claims of actual innocence. In a little noticed dissent in Dretke Justice Kennedy appeared a little shaken by the Texas Attorney General's decision to fight the grant a habeas relief despite the AG's Office concession that Mitchell was "innocent" for purposes of his noncapital sentencing enhancement. Justice Kennedy seems perplexed & troubled; whether his concern about that Attorney General's office is merely a passing concern remains to be seen.

Elsewhere, the Oklahoma Court of Criminal Appeals has ordered a hearing to answer allegations that a former police chemist may have doctored evidence and destroyed hair samples that could have exonerated death row inmate Curtis McCarty; "[t]he matters raised in petitioner's application are unquestionably serious, and if true, the repercussions thereof are far reaching indeed." In Massachusetts's Governor Mitt Romney's panel of experts that are examining what his new death penalty bill should include, have concluded that ideally it should require a "no doubt" standard for all death sentences, numerous guarantees regarding access to the courts for post-conviction review and rather demanding guarantees as to the qualifications for counsel.

A shortened Focus section this week draws from Daubert on the Web, one of my favorite Blogs, on the issue of several recent decisions on the admissibility of fingerprint evidence.

As always, thanks for reading. - k

This edition is archived at http://capitaldefenseweekly.com/archives/040503.htm.

EXECUTION INFORMATION

Since the last edition there have been no domestic executions.

The following upcoming execution dates are noted:

May

18 Kelsey Patterson Texas

18 Osvaldo Torres Oklahoma----foreign national

21 Sammy Perkins North Carolina

25 John Blackwelder Florida --- volunteer

SUPREME COURT

Dretke v. Mitchell, 541 U.S. --- (5/3/2004)(dissent) When faced with a claim of actual innocence, whether it relates to guilt or penalty phase claims, a federal district court sitting in habeas review must first adjudicate every non-defaulted issue before addressing an actual innocence claim. Whether "actual innocence" as it relates to noncapital sentencing error is cognizable on habeas review explicitly reserved for another day.

Respondent was charged with and convicted of felony theft. Based on two prior convictions, he was also charged as a habitual offender. Under Texas’ habitual offender statute, a defendant convicted of a felony is subject to a sentence of 2 to 20 years if (1) he has two prior felony convictions, and (2) the conviction for the first prior offense became final before commission of the second. Texas law requires the State to prove the habitual offender allegations to a jury beyond a reasonable doubt at a separate penalty hearing. The jury here convicted respondent of the habitual offender charge, and the judge sentenced him to 16½ years. As it turned out, the evidence presented at the penalty phase showed that respondent had committed his second offense three days before his first conviction became final, meaning that he was not eligible for the habitual offender enhancement. No one, including defense counsel, noted the discrepancy–either at trial or on direct appeal. Respondent first raised the issue in a request for state postconviction relief, arguing that the evidence at the penalty hearing was insufficient to support the habitual offender conviction. The state court rejected his sufficiency of the evidence claim on procedural grounds, because he had not raised the issue earlier; the state court likewise rejected respondent’s claim that counsel had been ineffective for failing to object. Respondent renewed his sufficiency of the evidence and ineffective assistance claims in a subsequent federal habeas application. Conceding that respondent was not, in fact, eligible for the habitual offender enhancement, the State nevertheless argued that respondent had procedurally defaulted his sufficiency of the evidence claim. The District Court excused the procedural default because respondent was actually innocent of the enhanced sentence; it thus did not reach the ineffective assistance claim. The Fifth Circuit affirmed, holding that the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders.

Held:A federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default. Normally, a federal court will not entertain a procedurally defaulted constitutional claim in a habeas petition absent a showing of cause and prejudice to excuse the default. However, this Court recognizes a narrow exception to the general rule when the applicant can demonstrate actual innocence of the substantive offense, Murray v. Carrier, 477 U.S. 478, 496, or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty, Sawyer v. Whitley, 505 U.S. 333. The Court declines to answer the question presented here, whether this exception should be extended to noncapital sentencing error, because the District Court failed first to consider alternative grounds for relief urged by respondent. This avoidance principle was implicit in Carrier itself, where the Court expressed confidence that, “for the most part, ‘victims of fundamental miscarriage of justice will meet the cause-and-prejudice standard,’” 477 U.S. , at 495—496, particularly given the availability of ineffective assistance of counsel claims, id., at 496. Petitioner concedes that respondent has a viable and significant ineffective assistance of counsel claim. Success on the merits would give respondent all of the relief that he seeks, i.e., resentencing, and also would provide cause to excuse the procedural default of his sufficiency of the evidence claim. The many threshold legal questions often accompanying actual innocence claims provide additional reason for restraint. For instance, respondent’s claim raises the question whether the holding of In re Winship, 397 U.S. 358–that each element of a criminal offense must be proved beyond a reasonable doubt–should be extended to proof of prior convictions used to support recidivist enhancements. Not all actual innocence claims will involve threshold constitutional questions, but, as this case illustrates, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Pp.5—9.

306 F.3d 257, vacated and remanded.

O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Scalia, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy and Souter, JJ., joined. Kennedy, J., filed a dissenting opinion.

Johnson v. California, 541 U.S. --- (5/3/2004) Cert. improvidently granted as the lower court's holding was not a final judgment.

Middleton v. McNeil, 541 U.S. --- (5/3/2004) (GVR) Ninth Circuit's holding that the state court was unreasonable in its attempt to save a confusing jury instruction as it related to "imminent peril" reversed.

CAPITAL CASES (Favorable Disposition)

Stumpf v. Mitchell, 2004 U.S. App. LEXIS 8332 (6th Cir 4/28/2004) (dissent) Relief granted. Stumpf's guilty plea was not voluntarily, knowingly and intelligently given. The prosecution's use of inconsistent, irreconcilable theories to convict both Stumpf and his accomplice was impermissible.

Walbey v. Dretke, 2004 U.S. App. LEXIS 8524 (5th Cir 4/29/2004) (unpublished) Remand & evidentiary hearing ordered on claims since when the Texas Court of Criminal Appeals rejected the state trial court's factual conclusions relating to counsel's alleged ineffectiveness it failed to make new factual findings as to those claims.

Anderson v. Arkansas, 2004 Ark. LEXIS 281 (Ark 4/29/2004) Death sentence vacated. "In the instant case, no polling of the jury regarding any mitigating circumstance took place, and the jury manifestly erred by marking the box that there was no evidence presented of any mitigators, in light of the fact that an abundance of such evidence was, in fact, presented."

Nance v. Frederick, 2004 S.C. LEXIS 101 (S.C. 4/26/2004)Trial counsel held ineffective as he failed to request a competency hearing and there was "a “reasonable probability” that petitioner was incompetent at the time of his guilty plea. "

Allen v. Lee, 2004 U.S. App. LEXIS 8349 (4th Cir 4/28/2004) (en banc) (dissent) In a classical case of counting noses to know where the opinion lies, plurality grants relief "[w]ith respect to Allen's claim under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990), the court concludes that the district court erred in rejecting the claim." Brady and Batson claims denied. COA denied whether the short-form indictment violates Jones/Apprendi.

CAPITAL CASES (Unfavorable Disposition)

Gonzalez v. Crosby, 2004 U.S. App. LEXIS 8143 (11th Cir 4/26/2004) (dissent) "Today, the majority today holds that, with the exception of the ground provided by Rule 60(b)(3), n3 the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, precludes the district courts of the Eleventh Circuit from entertaining Rule 60(b) motions filed by prisoners who seek the vacation of the district court's judgment denying them habeas corpus relief. n4 To obtain relief on any of the remaining grounds provided by the Rule (i.e., Rule 60(b)(1), (2), and (4)-(6)), the petitioner must apply to this court pursuant to 28 U.S.C. § 2244(b)(3) for leave to file his Rule 60(b) motion. n5 The majority treats any motion based on one or more of those grounds as a second or successive habeas petition ("SSHP") n6 even if the motion contains no constitutional claim at all. The majority also holds that before the petitioner can appeal the denial of a Rule 60(b)(3) motion, either the district court or this court must issue a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253."

United States v. Breeden, 2004 U.S. App. LEXIS 8541 (4th Cir 4/30/2004) Government permitted to seek death despite giving an notice of intent to seek the death penalty that would have been untimely filed but for the granting of a continuance by the district court.

Gardner v. Galetka, 2004 Utah LEXIS 63 (Utah 4/30/2004) "Gardner's ineffective assistance of appellate counsel claim, premised upon his attorneys' failure to challenge the "knowingly" instruction and brought for the first time in a second post-conviction petition, is procedurally barred . . . since it could have been, but was not, raised in his original post-conviction proceeding."

Brawner v. Mississippi, 2004 Miss. LEXIS 458 (Miss 4/29/2004) Relief denied on (1) whether the trial court should have severed count 1; (2) the overruling of certain peremptory challenges on for Batson and J.E.B.; (3) admission of certain photographic evidence; (4) failure to quash capital murder specification & related jury instruction; as well as (5) proportionality.

McWilliams v. Alabama, 2004 Ala. Crim. App. LEXIS 74 (Ala. Crim. App. 4/30/2004) Relief denied on claims relating to (1) the adoption of the post-conviction trial court en toto of the attorney general's proposed order & fact finding; (2) denial of motions to amend his petition and the discovery agreements; (3) denial of claims relating to the sufficiency of the pleadings; (4) application of procedural bars to certain claims; (5) competency of post-conviction counsel; (6) claims relating to ineffective assistance of counsel & the striking of the testimony of Federal Death Penalty Resource Counsel Kevin McNally on what constitutes competent representation (seemingly holding that national standards of competency of counsel are irrelevant in Alabama) ; (7) Ring & (8) mental retardation.

Giles v. Alabama, 2004 Ala. Crim. App. LEXIS 91 (Ala. Crim. App. 4/30/2004) Relief denied on (1) Brady; (2) challenges to jurors (waived for failure to preserve); (3) ineffective assistance of counsel (failure to investigate drug use; failure to investigate interrelationship of the various actors in the case; failure to present self-defense evidence; failure to fund post-conviction expert, as well as the district court's procedural handling of the claims); and, (4) separation of powers for the adaption by the post-conviction trial court en toto of the attorney general's proposed order & fact finding.

HOT LIST

Stumpf v. Mitchell, (6th Cir 4/28/2004) (dissent) Relief granted as guilty plea was not voluntarily, knowingly and intelligently given and because the prosecution used inconsistent, irreconcilable theories to convict both Stumpf and his accomplice.

Generally, a reviewing court presumes that defense counsel has explained the elements of the crime to a defendant pleading guilty, even where the record does not reflect any statement by counsel to that effect. Berry v. Mintzes, 726 F.2d 1142, 1147 (6th Cir. 1984) (“it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice”); but cf. Henderson v. Morgan, 426 U.S. 637, 642-48 (1976) (finding that, where the defendant’s attorneys had argued to the court that their client had not intended to harm the victim, there could be no presumption that counsel had explained to their client that intent was an element of the crime). In this case, defense counsel did state to the court that they had informed Stumpf of the elements of the crime. In a typical case, such an assurance would prevent a reviewing court from finding that a plea was involuntary. In this case, however, the record clearly establishes that Stumpf sought to preserve his right to argue that he was not the shooter and thus counterbalances the assurances given by defense counsel that they had explained the elements to Stumpf.

We recognize, of course, that Stumpf need not have been the “principal offender” – the actual shooter – in order to have specifically intended the death of Mary Jane Stout. Nevertheless, it is clear from the record of the factual basis hearing that the state’s theory of guilt relied completely on Stumpf being the principal offender. The prosecution presented no evidence that Stumpf intended Mrs. Stout’s death, other than arguing that he was the actual shooter. In the closing arguments at the evidentiary hearing, defense counsel, contending that the prosecution had not met its burden with regard to the basis for seeking the death penalty, effectively challenged the prosecution’s proof as to specific intent to kill. The prosecutor responded that “[a]s to a purpose to kill, whoever shot Mrs. Stout didn’t intend to do her any favors when he shot her four times. It seems to me that shooting a person four times shows what your intent was.”

Indeed, the three-judge panel, which presumably knew of the intent element, found, beyond a reasonable doubt, that Stumpf was “the principal offender” in the aggravated murder and made no other finding as to specific intent. Their conclusion in this regard indicates that the panel found that Stumpf’s shooting of Mrs. Stout provided the requisite specific intent, as there was no other evidence in the record to satisfy this element. Given this finding, it is unlikely that Stumpf can be said to have knowingly conceded specific intent to kill by pleading guilty, when he continued to maintain throughout the proceedings that he had not been the one who actually shot the victim.

We conclude that the record of Stumpf’s plea hearing and the subsequent evidentiary hearing, taken together, demonstrate that the plea he entered was constitutionally invalid. Boykin holds that, “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Boykin, 395 U.S. 238, 243 n.5 (1969). This understanding must include “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Henderson v. Morgan, 426 U.S. 637, 644 (1976) (quoting Smith v. O’Grady, 312 U.S. 329, 344 (1941) (finding that, because the defendant did not know intent was an element of the crime to which he pleaded guilty, his plea could not be voluntary). (5) We have held that “a guilty plea is not deemed voluntary where the person entering it does so without understanding of the consequences of his plea.” United States v. Stubbs, 279 F.3d 402, 411, 412 (6th Cir. 2002) (quotation omitted) (finding, in a split decision in a case involving a mandatory minimum sentence, that if the “essential elements of the crime with which the defendant was charged were not understood by the defendant, his counsel, or the district court, then the defendant’s guilty plea would be constitutionally invalid”).

As discussed above, when the state court record of a defendant’s plea does not demonstrate that the plea is constitutionally adequate, the state bears the burden of showing the plea was voluntary, knowing and intelligent. Here, the state has presented no extrinsic evidence to counter the record of the proceedings discussed above. Instead, the respondent has explicitly relied on that record alone to argue that the plea was voluntary, knowing, and intelligent. Given the paucity – indeed, the lack -- of the evidence to refute what is clear on the record, we must conclude that the state has therefore not met its burden of showing that the plea may stand.

Furthermore, the totality of the circumstances surrounding the plea provide additional evidence that the plea was not voluntary, knowing, and intelligent. For example, Stumpf argues that the fact that he remained eligible for the death penalty and, therefore, pleaded guilty under an agreement that provided absolutely no benefit in the form of a reduction in possible sentence, is an additional indication that his plea was not knowing and intelligent. (6) This argument standing alone would be not carry much weight, given the well-recognized principle that a guilty plea cannot be rendered involuntary merely because, in hindsight, it turned out not to be the best decision. See McMann v. Richardson, 397 U.S. 759, 769-71 (1970). However, Stumpf’s decision to plead guilty – by agreement – to a crime with a capital specification, especially in the absence of any identifiable reason to take such a course of action, creates an additional inference that his plea was invalid. In combination with his position that he was not the shooter, which reveals his ignorance of specific intent as an element of the crime, the record indicates that Stumpf’s plea was involuntary “because he ha[d] such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Ivy v. Caspari, 173 F.3d 1136, 1141-42 (8th Cir. 1999)(guilty plea involuntary where defendant was not informed that intent was a necessary element of the underlying felony).

The question of counsel’s effectiveness in representing Stumpf is not before us as an independent ground for relief. It is, however, raised in the context of challenge to the validity of his guilty plea. The record shows clearly that Stumpf has always denied being the shooter. It is also clear that defense counsel’s strategy, throughout both the evidentiary hearing and the mitigation hearing, was to argue that after Stumpf shot Norman Stout he panicked and fled, that Stumpf was not even present in the home when Mary Jane Stout was shot, and that Wesley was, in fact, the one who shot Mrs. Stout. One possible, if unlikely, explanation for counsel’s strategy is that they themselves were unaware that specific intent was an element of the crime. But, failure to research the most basic details of the statute under which their client was charged would be outside the “range of competence” to which the defendant is entitled. See Henderson v. Morgan, 426 U.S. 637, 647 (1976). Perhaps more disturbing is the possibility that counsel, realizing that intent was an element of the offense, nonetheless chose to allow their client to plead guilty and then – and only then – to contest the existence of that element. But this, too, would manifestly constitute ineffective assistance, since a plea is not merely a confession but serves as a conviction, with only the resulting sentence left to be decided. Boykin v. Alabama, 395 U.S. 238, 242 (1969). It is true that Ohio requires a factual basis hearing in cases of aggravated murder, but it would nonetheless be reckless and plainly incompetent for an attorney to rely on a factual basis hearing to refute an element of a crime to which his client has already pleaded guilty. Finally, whether Stumpf’s lawyers were aware of the intent element or not, their behavior compels the conclusion that Stumpf himself was not aware of the intent element. Stumpf’s observation of his attorneys’ attempt to contest the state’s version of events, and his own position throughout the plea colloquy that he intended to challenge the state’s facts- a position evidently sanctioned by his attorneys, reaffirms the conclusion that Stumpf was not aware that by pleading guilty to aggravated murder he was admitting to specific intent to kill Mary Jane Stout.

There are other indications in the record, as well, pointing to the existence of at least a reasonable probability that Stumpf would not have pleaded guilty had he known that such a plea would have amounted to admitting that he specifically intended the death of Mary Jane Stout. A mitigation investigator later reported, in an affidavit, that “John did not want to plead guilty.” Moreover, affidavits from Stumpf’s family affirm the impression that his attorneys were less than candid in explaining to them the motive behind the plea. for example, Stumpf’s mother and sister said that they were told by Stumpf’s attorney that he would not receive the death penalty because of his plea.

We conclude from the record before us, as it relates to the murder of Mary Jane Stout, that there exists a reasonable probability that, had the petitioner been fully informed of the elements of the offense to which he was pleading and consequences of that plea, he would not have pleaded guilty to her aggravated murder.

Walbey v. Dretke, 2004 U.S. App. LEXIS 8524 (5th Cir 4/29/2004) (unpublished) Remand & evidentiary hearing ordered on claims relating as when the Texas Court of Criminal Appeals rejected the state trial court's factual conclusions relating to counsel's alleged ineffectiveness it failed to make new factual findings as to those claims.

Here, the order of the TCCA is silent as to the state habeas trial court's findings of fact. The TCCA's statement rejecting the trial court's conclusions of law as not supported by the record fails to inform whether the TCCA accepted or rejected, in whole or in part, the factual findings of the trial court based on that record.

On the Craker/Micheaux continuum, the situation presented in the instant case is closer to the Micheaux end, as in that case the TCCA neither adopted nor incorporated the proposed findings of fact made by the state habeas trial court. Micheaux, 944 F.2d at 232. In addition, the facts found by the state habeas trial court in this case are directly inconsistent with the TCCA's denial of habeas relief. Id. We agree with Walbey that it would be an unreasonable application of federal law to deny relief under Wiggins in [*7] the light of the state habeas trial court's findings that Walbey's trial counsel had failed to investigate the mitigation defense and that, if presented, the amount of mitigation evidence available would have influenced the verdict of the jury. See Wiggins, 123 S. Ct. at 2536-44. Nevertheless, as the TCCA did not adopt the factual findings of the habeas trial court, and as those factual findings are directly inconsistent with the TCCA's denial of relief, this case is legally indistinguishable from Micheaux and Singleton. Accordingly, we conclude that the state habeas trial court's factual findings did not survive appellate review, so that the district court did not err when it failed to defer to those findings in denying habeas relief to Walbey.

Our review cannot end here, however. Our having established that the TCCA did not adopt the factual findings of the state habeas trial court presents the question whether the TCCA resolved all disputed factual issues in its opinion denying habeas relief. We must therefore ascertain whether counsel's actions were "strategic and reasonable are questions of fact. . . ." United States v. Cockrell, 720 F.2d 1423, 1426 (5th Cir. 1983). [*8] Whether the performance of Walbey's trial counsel was deficient with respect to investigating defense strategies or preparing defense witnesses is inseparable from a factual determination whether trial counsel's testimony before the state habeas trial court was credible.

The opinion of the TCCA, which simply rejected the trial court's conclusion of ineffective assistance of counsel as unsupported by the record, is not sufficiently plain to allow a federal court to infer that the TCCA made factual findings that defense counsel was credible and that his investigation of the mitigation defense was adequate. As it contains no specific factual findings or reasoning to support its ultimate conclusion, the terse opinion of the TCCA here is the functional equivalent of a denial without written order. And, a federal court may not infer from a denial without written order that the state appellate court necessarily resolved all factual issues against the petitioner. Goodwin v. Johnson, 132 F.3d 162, 182, 184 n.17 (5th Cir. 1998).

As the state habeas trial court's proposed factual findings did not survive appellate review, and as the opinion of the TCCA did not resolve the factual [*9] dispute regarding trial counsel's credibility and his investigation of the mitigation defense, we must remand to the district court for it to conduct a de novo evidentiary hearing into Walbey's claims that counsel was ineffective for those asserted failures at the punishment phase of his trial. See Singleton, 178 F.3d at 385. Accordingly, the judgement of the district court denying Walbey's habeas application under § 2254 is vacated, and the case is remanded to that court with instructions to conduct a de novo evidentiary hearing consistent with this opinion.

OTHER NOTABLE CASES

See Focus

FOCUS

A shortened Focus section this week draws from Daubert on the Web, one of my favorite Blawgs, insightfully notes on fingerprint evidence:

After April, fingerprint analysts won't be having to look for new career paths anytime soon. On the same day this week that the Third Circuit issued its comprehensive opinion upholding fingerprint identification testimony in United States v. Mitchell, No. 02-2859 (3d Cir. Apr. 29, 2004), on which we have already posted, the Tenth Circuit chimed in with a fingerprint decision of its own. See United States v. Ward, No. 03-6005 (10th Cir. Apr. 29, 2004) (Ebel, Holloway, & Briscoe, JJ.). True, the Tenth Circuit's opinion is unpublished, and true, it technically didn't reach the testimony's admissibility, merely holding that any error in admitting it would have been harmless. But the Tenth Circuit panel did afford a strong clue to its general sentiments on the subject:

Circuits that have addressed the admissibility of fingerprint evidence have determined it is scientifically reliable. See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (concluding fingerprint identification satisfied Daubert); United States v. Hernandez, 299 F.3d 984 (8th Cir. 2002) (same); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001) (same). In Crisp, the court stated that "while the principles underlying fingerprint identification have not attained the status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well." 324 F.3d at 268.

The Third Circuit's opinion in Mitchell sent an even blunter message: "[T]his case does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit," it said, but "we trust that the foregoing discussion provides strong guidance."

Meanwhile, just two weeks ago, the Seventh Circuit reached the same result in United States v. George, No. 02-2996 (7th Cir. Apr. 14, 2004), declining to revisit its earlier conclusion in the Havvard decision that fingerprinting passes general reliability muster. "[W]e feel comfortable," said the panel in George, "that Havvard correctly decided the issue of fingerprint analysis admissibility."

It sounds as though further challenges to the general reliability of fingerprint identification could be met, in these circuits, with diminishing appellate patience."

FROM AROUND THE WEB

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

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

NEW VOICES: Massachusetts District Attorneys Criticize Governor’s Death Penalty Plan District attorneys from several Massachusetts counties, including Suffolk, Norfolk, Middlesex, Essex and Barnstable, had strong reservations about Governor Mitt Romney’s attempt to establish a nearly "foolproof" death penalty system in the state. Some noted that nothing can eliminate the possibility of human error in such cases. The district attorneys said that the state’s medical examiner’s office and crime labs are currently overwhelmed with work, and that the labs do not have the capacity to add the additional responsibility of carrying out Romney’s plan. "Let's fix what's wrong first," said Barnstable District Attorney Michael O'Keefe. "We're significantly behind in the Commonwealth in the delivery of forensic services, relative to other jurisdictions."

The plan was created by an 11-member death penalty commission appointed by Romney, and the commission members note that their recommendations will come with a hefty price-tag. Norfolk County District Attorney William R. Keating estimates that using the standards would cost Massachusetts taxpayers at least $5 million per death penalty case, nearly as much as his entire $6.8 million annual budget that funds approximately 19,000 criminal complaints a year. Suffolk County District Attorney Daniel Conley said the release of four wrongly convicted or indicted Massachusetts inmates since he took his job in 2002 “has simply convinced me that while technology like DNA is critical in determining one’s guilt or innocence, the administration of justice is a human endeavor, and we’re all fallible.” (Boston Globe, May 4, 2004) See Innocence. Also Read the Commission Report.

EXECUTIONS SCHEDULED IN MAY RAISE CRITICAL ISSUES Three scheduled executions in May--Osvaldo Torres in Oklahoma, Kelsey Patterson in Texas, and Sammy Perkins in North Carolina--raise troubling questions about the application of the death penalty.

Torres is a Mexican foreign national whose execution is scheduled for May 18, just weeks after the International Court of Justice ruled that the United States should review the cases of 51 Mexican foreign nationals on death row in the U.S., including Torres’s case. At issue is whether the U.S. violated the rights of Mexican foreign nationals by not complying with the Vienna Convention on Consular Relations. A statement from the Mexican government read, “The government of Mexico calls on U.S. federal authorities to immediately take measures intended to protect the life of Osvaldo Torres, complying with the order of the World Court.” (Associated Press, March 2, 2004)

Kelsey Patterson is a paranoid schizophrenic with a long history of mental health problems, including several hospitalizations in the years leading up to the 1992 murder for which he is on death row. His execution is also scheduled for May 18. A recent Amnesty International report detailing Patterson’s case notes that in 2000, a federal judge noted that "Patterson had no motive for the killings... he claims he commits acts involuntarily and outside forces control him through implants in his brain and body. Patterson has consistently maintained he is a victim of an elaborate conspiracy, and his lawyers and his doctors are part of that conspiracy. He refuses to cooperate with either; he has refused to be examined by mental health professionals since 1984, he refuses dental treatment, and he refuses to acknowledge that his lawyers represent him." (Amnesty International Press Release, March 18, 2004) Read the Amnesty Report on Kelsey Patterson.

North Carolina plans to execute Sammy Perkins, who was diagnosed with bipolar disorder in 1997, on May 21. At Perkins’ trial, psychiatrist Billy Royal testified that Perkins’s mental illness in combination with his consumption of both prescribed and illicit drugs and alcohol impaired his ability to distinguish right from wrong, make plans, or premeditate his actions. (National Coalition to Abolish the Death Penalty) See Upcoming Executions. See also Foreign Nationals; Mental Illness.

Florida Supreme Court Asked to Clarify Impact of Ring Decision A District Court panel in Florida has endorsed a special verdict form that asks jurors to specify what elements of a crime warrant a death penalty. The District Court certified its decision as a matter of great public importance and asked the Florida Supreme Court to review the rulings, noting “this ruling could affect many cases that may ultimately be reviewed by the Supreme Court.” In the original ruling in the capital case against Alfredie Steele Jr., Pasco County Judge Lynn Tepper required the jury's specific decision to bring Florida's law into compliance with the U.S. Supreme Court's ruling in Ring v. Arizona. In Ring , the U.S. Supreme Court held that a defendant is entitled to have the jury, not a judge, decide whether he or she is eligible for the death penalty. Some of the states possibly impacted by Ring, including Florida, have yet to formally address how the decision should affect court procedures, leaving local judges to deliver rulings based on their own interpretation of the law. (Miami Daily Business Review, April 29, 2004) See Ring v. Arizona.

Another Federal Death Penalty Case Results in Life Sentence After less than five hours of deliberation, jurors in a federal death penalty case in Maryland returned life sentences for two men convicted earlier of federal drug conspiracy charges and firearms violations. The federal case against Michael Taylor and Keon Moses was the first time since 1998 that U.S. prosecutors in Baltimore had sought a death sentence. The life sentences for Taylor and Keon continue a national trend identified last year by the Federal Death Penalty Resource Counsel Project. In an August 2003 report, the Project noted that 20 of the 21 most recent federal death penalty cases had resulted in life sentences and that federal juries had voted for life in 38 of 43 capital cases since 2000. Taylor and Keon, both in their early 20s, were raised in one of Baltimore’s most dangerous and notorious public housing complexes. Attorneys for the men presented evidence to jurors outlining their clients’ troubling history of neglect and drug abuse. (Baltimore Sun, April 29, 2004) See Life Without Parole. See also, Federal Death Penalty.

NEW RESOURCE: North Carolina Web Site Contains Valuable Information on Moratorium Issue North Carolina may become the first state to enact a moratorium on executions through the legislative process. A moratorium measure has already passed their Senate and is awaiting action in the House. A new Web site launched by the North Carolina Coalition for a Moratorium, www.ncmoratorium.org, contains a vast amount of information related to this important issue. Among the topics examined are the quality of counsel, innocence, costs, access to DNA testing, deterrence, race, arbitrariness, and public opinion. The site also contains case summaries of North Carolina defendants whose stories speak to the need for a pause in executions. The moratorium bill would allow the state’s capital punishment policies to be reviewed to ensure fairness and accuracy. The measure has received support from both proponents and opponents of capital punishment. See North Carolina Coalition for a Moratorium. See also North Carolina.

State Legislators Advance Bills to Ban Juvenile Death Penalty Just weeks after legislators in Wyoming and South Dakota passed legislation to ban the execution of juvenile offenders, lawmakers in Florida are on a similar course that may send a bill that eliminates the death penalty for those under the age of 18 to Governor Jeb Bush for signature into law. Members of the Florida Senate passed the juvenile death penalty ban by a vote of 26-12, and the House is expected to take up the measure later this week. Florida House Speaker Johnnie Byrd, who had been opposed to raising the minimum the age for capital offenders, has indicated that he will allow House members to “vote their conscience” when considering the bill. The legislation’s House sponsor, Representative Phillip Brutus of Miami, noted, “I think it will be a pretty strong vote. To invoke the harshest penalty of all – which is death – when somebody is 17 years old is wrong.” If the Florida legislature passes and Governor Bush signs the bill into law, the state will become the 20th in the nation to ban the practice and the third state to enact this policy in 2004. New Hampshire’s House and Senate overwhelmingly voted for a similar bill earlier this month, but Governor Craig Benson has vowed to veto the legislation. The Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. (Various news sources including the Sun-Sentinel of Florida and The Union Leader of New Hampshire, April 27, 2004). See Juvenile Death Penalty.

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