The Supreme Court decided this week to grant certiorari in Kansas v. Marsh. The Court expressed concern in the grant of cert. about the procedural problems with the case, and it remains opens whether the Court will resolve the substantive question of "[d]oes a statute violate the Eighth Amendment if it provides for the death penalty to be imposed when the sentencing jury finds the aggravating and mitigating factors to be equal?" For those practicing outside of Kansas this is an almost all upside cert. grant as there is a possibility (arguably a strong possibility) that the Court will require states to prove, at least by a preponderance evidence, that the aggravators outweigh the mitigators. Unless there are five clear votes for one position or another, a DIG (Dismiss as Improvidently Granted) is likely due to issues on whether the Kansas Supreme Court sufficiently relied on federal law to permit review.

In case law from around the country, the Florida Supreme Court inMarshall v. Crosbyappears to finally reach two questions that it has long avoided, whether following Ring & Apprendi a trial court can override a recommendation of life to death, and, assuming a trial court can, how is a trial court to handle the inherent tension between Tedder & Apprendi/Ring [seeSentencing Law & Policy]. The Utah Supreme Court inState v. Lovellhas remanded in order to permit a hearing on Lovell's request to withdraw his guilty plea. InDuke v. Stateyet another death sentence is vacated in light ofRoper v. Simmons.

Two germane noncapital Supreme Court opinions are also noted. InArthur Anderson v. United Statesthe Court holds the jury instructions that were given “failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction under § 1512(b).” InCutter v. Wilkinson the Court upholds, at least for Establishment Clause purposes, the Religious Land Use and Institutionalized Persons Act of 2000 which subjects claims of violations of religious freedom by people in prison to favorable standards of review. TheSCOTUS Blog has an excellent analysis of both opinions.

In other news, Jim Slater, chair of the Florida Public Defender Death Penalty Steering Committee, has died exceptionally young, 57, after a brief illness; a memorial website for him can be found athttp://jimslater.blogspot.com/. In its annual report on human rights around the world, Amnesty International noted the abolition of the death penalty in five nations in 2004. Last year, Bhutan, Greece, Samoa, Senegal and Turkey.

Time has been short here of late with trial call after trial call. Instead of posting something in the Focus section I'd like to note some recently posted law review articles (normally forthcoming) at the SSRN site. Steven Calabresi and Stephanie Dotson Zimdahl's "The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision" (http://ssrn.com/abstract=700176) what has the Supreme Court's actual historical practice been from 1789 to 2005 in citing foreign sources of law. Sam Kamin and Jeff Pokorak look at building on the work of the Massachusetts Governor's Council's on Capital Punishment and the ideas developed at a conference at Indiana University, using both as a spring-board for the formulation of an appropriate set of procedures for death-qualification in capital trials. "Death-Qualification and True Bifurcation: Building on the Massachusetts Governor's Council's Work " (Indiana Law Journal, Vol. 80, p. 131, 2005http://ssrn.com/abstract=711923). Finally, William Michael Treanor in "Judicial Review before Marbury" (Stanford Law Review, Forthcominghttp://ssrn.com/abstract=722443)is an incredible read for those who use historical analysis (specifically analysis of jurisprudence at the time of ratification) including the use of judicial review at the time of ratification, the use of international law in state courts in the years immediately following independence, as well as the use of juries in setting punishment.

Archived atarchived at http://capitaldefenseweekly.com/archives/050530.htm

As always, thanks for reading. - k

Recently Executed

June

2 Jerry Paul Henderson(Alabama)

Serious X- Dates

June

2 Jerry Paul Henderson (Alabama)

7 Alexander Martinez (Texas----volunteer)

9 Robert McConnell (Nevada----volunteer)

22 Michael Lambert (Indiana)

Leading Cases

Marshall v. Crosby, 2005 WL 1243417 (Fla. 5/26/2005) In a case sending the blogosphere a buzz about its apparent holdings in contravention of Ring [see Abstract Appeal& Sentencing Law & Policy], relief denied on three claims: "(1) appellate counsel was ineffective for failing to raise on direct appeal the trial court's denial of trial counsel's motion for the appointment of an additional mental health expert, (2) the trial judge's override of the jury's recommendation in favor of life violates the Constitution pursuant to the United States Supreme Court's opinions in Apprendi v. New Jersey and Ring v. Arizona and (3) the standard for jury override cases announced in Tedder v. State, 322 So.2d 908 (Fla.1975), was arbitrarily applied in Marshall's case." Note that for purposes of Summerlin, this case was final before even the earliest of the Apprendi-line of cases. From the dissent:

Today, we approve a practice that has now been outlawed in the United States by this nation's highest court, the imposition of the death penalty by a single judge in the face of a jury finding that the circumstances of the case do not support a sentence of death and require a life sentence. Because this outcome essentially allows a trial judge to ignore a jury's actions and direct a verdict and judgment for death in favor of the State, it is patently offensive to our constitutional notions of due process and the right to a jury trial....

Clearly, Ring was a decision meant to increase the consistency and accuracy of identifying those cases where the death penalty is warranted by requiring the facts necessary to impose the death sentence to be found by the jury. The Court's decision today flies directly in the face of the Sixth Amendment and the Supreme Court's decision in Ring. Rather than embrace the Sixth Amendment's protections and look for ways in which the role of the jury could be modified to bring Florida into line with the Supreme Court's prevailing constitutional law, the majority has effectively removed the jury from the death penalty equation. This is a sad day for constitutional law and justice in the State of Florida.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Duke v. State, 2005 WL 1253114 (Ala.Crim.App. 5/27/2005) Death sentence vaacated in light of Roper v. Simmons.

State v. Lovell, 2005 WL 1252749 (Utah 5/27/2005) Remand ordered on withdraw of guilty plea where defendant was sentenced to death after his plea.

Decisions Favoring Death

People v. Dickey, 2005 WL 1202726 (Cal. 5/23/2005) On direct appeal, relief denied on issues of: sufficiency; failure to turnover evidence/Brady;prosecutor's failure to correct misleading testimony; prosecutorial vouching for credibility of witness; victims' families reaction to guilt phase verdict as victim-impact evidence; defendant's absence from penalty phase; and whether appellant's penalty phase argument fell below standard of reasonably competent representation.

Timberlake v. Davis, 2005 WL 1274276 (7th Cir. 5/27/2005)Relief denied on: "whether the trial judge should have directed Timberlake to undergo a mental examination to determine his competence for trial, even though neither side asked for an examination; and whether Timberlake's lawyer furnished constitutionally inadequate assistance. With respect to each the state argues, and the district judge held, that Timberlake forfeited the contention by failing to present it to the state judiciary at the required time. "

Bell v. Haley, 2005 WL 1242359 (M.D.Ala. 5/25/2005) Relief denied on claims relating toBrady(suppresion of witness prior statement; threats against state's star witness & promises of help to star witness) andGiglio(failure to correct trial testimony).

State v. Monroe, 105 Ohio St.3d 384, 827 N.E.2d 285 (Ohio 5/25/2005) Relief deneid on claims revolving around: relevancy of crime-scene photographs and morgue photographs of murder victims; admissibility of certain photographs;failure to instruct on lesser included offenses of murder and involuntary manslaughter; sufficiency; merger of aggravators; IAC; and sufficiency of aggravators outweighing mitigators.

Barber v. State, 2005 WL 1252745 (Ala.Crim.App. 5/27/2005) (dissent) Relief denied, most notably, on claims relating tothe State's failure to preserve the only physical evidence connecting Barber to the murder, a bloody palm print. Other notable issues included the voluntariness of Barber's confession.

Scott v. State, 2005 WL 1252742 (Ala.Crim.App. 5/27/2005) On return for remand to cure errors in sentencing order. The trial court again found death appropriate and corrected errors previously noted in prior holding.

Rodriguez v. State, 2005 WL 1243475 (Fla. 5/26/2005) Relief denied on numerous claims including "(1) the trial court erred in denying a new penalty phase where the evidentiary hearing showed that trial counsel failed to investigate and present mental health mitigation and the mental health expert rendered inadequate mental health assistance; (2) the trial court erred in allowing the State to prepare the sentencing order; (3) the trial court erred in summarily denying his claims of a Brady violation based on the State's failure to disclose information concerning Tata, an Ake violation based on failure to provide him with an adequate mental health evaluation, and ineffective assistance of trial counsel based on counsel's failure to investigate or prepare for trial, to request a severance of offenses, and to object to various other errors at trial; (4) Rodriguez was denied effective assistance of counsel due to the failure of various agencies to comply with his public records requests; (5) the trial judge displayed judicial bias at trial and during the postconviction proceedings; (6) trial counsel was ineffective in failing to object to jury instructions regarding the aggravating circumstances, burden shifting, the jury's responsibility for sentencing, and an automatic aggravating circumstance; (7) prosecutorial misconduct occurred during the closing argument; (8) the Florida death penalty statute is unconstitutional; (9) an incomplete record on direct appeal led to ineffective assistance of counsel; (10) the Rule Regulating the Florida Bar 4-3.5(d)(4) prohibition on communication with jurors restricts Rodriguez's access to the courts; (11) impermissible victim impact was considered in Rodriguez's sentencing; [ ](12) Rodriguez did not receive a fundamentally fair trial because of cumulative error.. . . (13) the trial judge should have disqualified himself from presiding over Rodriguez's original postconviction proceedings; (14) he was not afforded a full and fair hearing on the sentencing order issue during relinquishment of jurisdiction; and (15) the trial court erred in denying him relief on the merits of the sentencing order issue after the evidentiary hearing."

State v. Reid, 2005 WL 1219263 (Tenn 5/24/2005)Relief denied on claims including: "1) the trial court did not err in finding that the defendant was competent to stand trial; 2) the trial court did not err in excluding evidence during the competency hearing; 3) the trial court did not err in refusing to hold a new competency hearing on the basis that a court-appointed expert was biased; 4) the evidence was sufficient to support the defendant's convictions; 5) the trial court did not err in denying the defendant's motion to dismiss on the basis that the aggravating circumstances were not stated in the indictment; 6) the trial court did not err in allowing the prosecution to amend the indictment; 7) the trial court did not commit reversible error in limiting extrinsic evidence of inconsistent statements; 8) the evidence was sufficient to support the aggravating circumstances found by the jury; 9) the death sentences were not arbitrary or disproportionate as imposed in this case; 10) the evidence was sufficient to support the jury's finding that evidence of aggravating circumstances outweighed evidence of mitigating circumstances; 11) the capital sentencing statutes are not unconstitutional on the basis that they allow evidence to be admitted in violation of due process and confrontation under the United States Constitution; 12) the trial court did not err in admitting photographs of the victims at the crime scene during sentencing; 13) the trial court did not commit reversible error in failing to charge the jury on the "catch-all" statutory provision as to mitigating circumstances; and 14) the trial court did not err in denying a new trial based on prosecutorial misconduct during sentencing. "

State v. Smith, 2005 WL 1225931 (Ohio App. 9 Dist. 5/25/2005) Relief denied on claims relating to: "R.C. 2953.23(A)(2) violates the Supremacy Clause, the doctrine of separation of powers, and the "due course of law" and "open courts" provisions of the Ohio Constitution; "as a consequence of his poverty and of state action," he was denied access to trial transcripts; that his amended petition set forth twelve substantive claims for relief, thus entitling him to a hearing; and "failing to afford [Defendant] the assistance of experts and discovery."

Notable Noncapital Cases

Arthur Anderson v. United States, No. 04-368 (5/31/2005) Jury instructions “failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction under § 1512(b).” SCOTUSBlog's analysis here

Cutter v. Wilkinson, No. 03-9877 (5/31/2005) Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) does not violate the Establishment Clause. The Supreme Court's holding unanimously rejects the Sixth Circuit's sweeping and fairly radical holding. SCOTUSBlog's analysis here.

FROM THE LEADING CASES

Kansas v. Marsh, No. 04-01170 (5/31/2005) Cert granted on the following questions:

Does a statute violate the Eighth Amendment if it provides for the death penalty to be imposed when the sentencing jury finds the aggravating and mitigating factors to be equal?

Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. Sec. 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)?”

Was the Kansas Supreme Court's judgment adequately supported by a ground independent of federal law?

Around the Web

DPICnotes:

India Moves Closer to Abandoning the Death Penalty

In a proposed amendment to its penal code, Indian leaders are seeking to implement a change that would end the nation's death penalty even "in the rarest of rare" cases. The amended Indian Penal Code would abolish the death penalty and replace it with a strict life without the possibility of parole measure. Currently, the nation's life sentence statute only requires imprisonment for 14 years. The decision to seek an official end to capital punishment fulfills a pledge made by the chairman of the Committee on Reforms of the Criminal Justice System, Mr. Justice VS Malimath. The proposed amendment was crafted to reflect an "evolving consensus" within the nation. The proposal to abolish the death penalty and add a true life sentence seeks to serve the twin objectives of advancing human rights and preventing such criminals from coming out of prison. The Union Cabinet is expected to review the amended Indian Penal Code before it would likely be placed before Parliament for its approval and passage. (The Statesman, May 31, 2005). See International Death Penalty and Life Without Parole.

Supreme Court Agrees To Review Constitutionality of Kansas Death Penalty Law

On May 31, 2005, the U.S. Supreme Court agreed to consider the constitutionality of Kansas' death penalty law. The current statute requires that a death sentence be imposed when a jury finds that the aggravating and mitigating circumstances surrounding the crime have equal weight (i.e., a tie results in death). When reviewing Michael Marsh's death sentence in 2004, the Kansas Supreme Court ruled that the state's statute was unconstitutional, holding that the above process did not comport with the fundamental respect for humanity underlying the Eighth Amendment. Upon petition of the State of Kansas, the U.S. Supreme Court agreed to review the Kansas decision. Additionally, the Supreme Court will consider two questions related to the Court's jurisdiction over the case. The case is Kansas v. Marsh, No. 04-1170. See DPIC's Supreme Court page for a longer discussion of the issues.

North Carolina House Nears Vote on Moratorium Legislation

The North Carolina House of Representatives will soon vote on a two-year moratorium on executions in the state while the death penalty is studied. A moratorium bill passed the full Senate in 2003, but had been previously blocked from coming to a vote in the House.

The House Judiciary Committee will likely consider the moratorium measure on Tuesday, May 31. The committee's approval could mean a full House vote on the legislation as early as that same day. The full House is then required to consider the bill before it adjourns on June 2 or the legislation expires for this term. House Speaker Jim Black and House Majority Leader Joe Hackney both support the bill to halt executions and form a study committee. The committee would examine issues such as the adequacy of legal counsel, prosecutorial misconduct and racial bias. If the bill passes the House, the Senate would then be required to reconsider the bill.

Republican Representative Doug Vinson stated that he is leaning toward supporting the measure, noting, "Given that there's clearly been inequitable application of the death penalty, it's our obligation to understand why and err on the side of life." (Charlotte Observer, May 27, 2005). See Recent Legislative Activities.

NEW MULTIMEDIA RESOURCE: “The Empty Chair: Death Penalty Yes or No”

The Empty Chair: Death Penalty Yes or No is a documentary film produced and directed by Jacqui Lofaro and Victor Teich that tells the stories of four families confronting the loss of loved ones and voicing different perspectives on the death penalty. The movie also features Sister Helen Prejean, an author and spiritual advisor to those condemned to die, and Donald Cabana (pictured), a former death row warden in Mississippi.

Among the family members featured in the film are Renny Cushing, whose father was murdered; Suse and Peter Lowenstein, whose son was killed by a terrorist plane-bombing over Lockerbie, Scotland; Sue Norton, who chose to forgive the man who murdered her step-parents; and Susan Gove Ramunda, a tireless advocate for capital punishment whose daughter was murdered. Each of these family members retraces the crime that took their loved one, the trial that followed, and their personal response to the punishment that was given to the person convicted of the murder.

In the film, Prejean and Cabana share their first-hand experiences with capital punishment and its impact on those condemned to die, victims' family members, and the staff who carry out executions. View a video clip of Warden Cabana discussing how these executions affected him. (Requires Real Player)

This documentary will make its national television premiere on the Hallmark Channel at noon on June 12, 2005. It will be featured as part of the network’s “World of Faith and Values” project. Get more information about “The Empty Chair: Death Penalty Yes or No.” (May 30, 2005). See other DPIC multimedia resources.

Amnesty International's Human Rights Report Notes Decline in Countries with Death Penalty

In its annual report on human rights around the world, Amnesty International noted the abolition of the death penalty in five nations in 2004. Last year, Bhutan, Greece, Samoa, Senegal and Turkey joined a growing list of countries that have abandoned capital

Texas Court Rules That Half of the Defense Team Can Be Asleep

The Texas Court of Criminal Appeals has ruled that a man whose attorney slept through portions of his 1992 death penalty trial should not get a new trial because he had another less experienced attorney who remained awake. In its ruling, the Court denied George McFarland's (pictured) claim of ineffectiveness of counsel and upheld his death sentence. "We conclude that, although one of his attorneys slept through portions of his trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times," wrote Judge Cathy Cochran.

The opinion stated that John Benn, the 72-year-old attorney representing McFarland, was first observed sleeping during jury selection and the napping got worse as the trial progressed. At times the bailiff would nudge Benn's chair to awaken him, and the judge admonished him during the trial. Benn's co-counsel during McFarland's trial, Sanford Melamed, was appointed by the trial judge. Cochran wrote that the court agreed that McFarland "did not have Mr. Benn's active assistance during his postprandial naps and that those naps occurred during 'critical stages' of this trial." She also noted that Melamed was a less-experienced attorney. At a hearing on McFarland's motion for a new trial, Benn explained, "I'm 72 years old. I customarily take a short nap in the afternoon."

In August 2001, the U.S. Court of Appeals for the 5th Circuit ordered a new trial in the Texas case of Calvin Burdine, whose attorney also slept through portions of his death penalty trial. (Houston Chronicle, May 19, 2005). View a short video clip about the McFarland case, including statements from John Benn, George McFarland, and a witness to the trial. See also, Representation.

SCOTUSBlognotes:

A major death penalty case? Maybe not

Posted by Lyle Denniston at 11:39 AM

The somewhat confused procedural history of Kansas’ death penalty law has followed it to the Supreme Court, so the Justices’ agreement on Tuesday to hear an appeal by the state may not lead to a significant pronouncement on a key constitutional question. That question is whether a “tie” in a jury’s death penalty findings goes to the state, or to the individual on trial. But that is not the only issue the Court will be hearing.

In another action on Tuesday, the Court made no new law as it struck down a court order issued in California in a libel lawsuit brought by the late attorney Johnnie L. Cochran, a widely known Los Angeles litigator (best known for his role in the successful defense of O.J. Simpson in that celebrated murder trial). The Court said the order had lost much of its significance since Cochran died (he passed away while the case was pending before the Justices). But what remains of the state court injunction, the Court said, swept too broadly as a “prior restraint” on free speech. The Court kept the case active by substituting Cochran's widow for him. Justice Stephen G. Breyer wrote for the 7-2 majority, in a spare four-page opinion. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, arguing that the case should have been dismissed rather than decided. (The case is Tory, et al., v. Cochran, 03-1488).

The Court’s only order Tuesday granting review of a new case involves Kansas’ capital punishment law, enacted in 1994. It specifies that, if the jury finds aggravating and mitigating circumstances to be equally balanced, a death sentence must be imposed – in other words, a “tie” goes to the state.

The Kansas Supreme Court, in a 4-3 decision in 2001 in the case of State v. Kleypas, ruled that this weighing equation would violate the Eighth Amendment ban on cruel and unusual punishment (and the Fourteenth Amendment). “Fundamental fairness,” the state court said then, “requires that a tie goes to the defendant when life or death is at issue.”

However, the state court at that time did not strike down the law as written. Rather, it said, the law could be construed in such a way as to uphold the intent of the legislature to have a death sentence that would satisfy the Constitution. So, it construed the law at that time to mean that aggravating circumstances must outweigh mitigating factors for a death penalty to be imposed.

When a new case, involving convicted murderer Michael Lee Marsh II of Wichita, reached the state court last year, the tribunal – in another 4-3 vote – struck down the law. Rejecting an argument by the dissenters that the Supreme Court had already implicitly decided that such an “equipoise” provision would be valid, the majority said the Court had issued no such ruling.

The majority went on to say that it had been wrong in failing to strike down the law in 2001 in order to save its constitutionality. “The avoidance doctrine is applied appropriately onlywhen a statute is ambiguous, vague, or overbroad…The court’s function is to interpret legislation, not rewrite.”

Taking the case on to the Supreme Court, the state of Kansas raised a single question: “Does it violate the Constitution for a state capital-sentencing statute to provide for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is in equipoise?”

But, in granting review, the Court added two questions of its own – and, depending upon the answers, either query could lead to a decision without the Justices resolving the “equipoise” question.

The two new issues are: “Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 USC 1257, as construed by Cox Broadcasting Corp. v. Cohn(1975)?” and “Was the Kansas Supreme Court’s judgment adequately supported by a ground independent of federal law?”

On the central constitutional question, the state’s appeal argues that the ruling “resurrects a conflict in constitutional interpretation that this Court resolved in Walton v. Arizona[1990].” It argues that the state and federal courts are divided on the issue. (The Supreme Court itself overruled Waltonin 2002, but on other grounds in Ring v. Arizona.)

The new case is Kansas v. Marsh(04-1170). It will come up for argument in the new Term starting in October.

The case involves a multiple murder in 1996, during a planned robbery. Michael Marsh was convicted of capital murder, first-degree murder, aggravated arson and aggravated burglary. In the capital sentencing phase, the jury was instructed that a tie between aggravating and mitigating circumstances must lead to a death sentence. The jury agreed unanimously on that sentence.

Around the blogs

Sentencing Law & Policynotes

Florida Supreme Court allows capital jury override despite Ring

A helpful reader pointed me to an interesting death penalty decision, noted here by Abstract Appeal, in which the Florida Supreme Court holds that Ringdoes not preclude a trial judge under Florida's capital statutes from overriding a jury's recommendation of life imprisonment to sentence a defendant to death. Though the decision in Marshall v. Crosby, No. 02-420 (Fla. May 26, 2005) ( available here), indicates that the Florida Supreme Court has previously rejected a series of challenges based on Ring, I get the impression that this is the first case considered by the court in which the sentencing judge imposed a death sentence over a jury recommendation of life.

Though all aspects of Marshallare interesting, a particularly notable aspect of the majority's opinion is its reliance on the prior conviction exception as one of many alernative grounds for its holding. And the dissent by Justice Anstead presents a particularly thorough and powerful set of arguments against the constitutionality of Florida's jury override procedure in the wake of Ring. And since Justice Anstead's dissentin Marshallhas the best rhetoric, I'll quote from that opinion:

Today, we approve a practice that has now been outlawed in the United States by this nation's highest court, the imposition of the death penalty by a single judge in the face of a jury finding that the circumstances of the case do not support a sentence of death and require a life sentence. Because this outcome essentially allows a trial judge to ignore a jury's actions and direct a verdict and judgment for death in favor of the State, it is patently offensive to our constitutional notions of due process and the right to a jury trial....

Clearly, Ringwas a decision meant to increase the consistency and accuracy of identifying those cases where the death penalty is warranted by requiring the facts necessary to impose the death sentence to be found by the jury. The Court's decision today flies directly in the face of the Sixth Amendment and the Supreme Court's decision in Ring. Rather than embrace the Sixth Amendment's protections and look for ways in which the role of the jury could be modified to bring Florida into line with the Supreme Court's prevailing constitutional law, the majority has effectively removed the jury from the death penalty equation. This is a sad day for constitutional law and justice in the State of Florida.

Deeper thoughts on Marshand sentencing burdens of proof

As detailed here, my first reaction to today's cert. grant in Kansas v. Marshwas "blah...another capital case." Fortunately, fellow Prof. Adam Thurschwell had deeper substantive insights on Marsh, since the case raises the interesting question of whether it is constitutionally acceptable for a state to require a jury to rule for death if it finds the aggravating and mitigating circumstances evenly balanced. Upon my request, Adam has allowed me to share his insights here:

It seems to me that the Court may have foreshadowed its view in the recent Deck v. Missouricase (visibly shackled defendant during DP penalty phase violates due process), where, by analogy with the effect of shackling on the presumption of innocence, the Court said of the penalty phase decision,

Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the " 'severity' " and " 'finality' " of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)). . . . . . Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue.

I am wondering if this language can be squared with the Kansas statute. They're probably distinguishable, but the closest analogy would seem to be the cases on due process limitations on the burden of proof for various issues, e.g., Medina v. California(OK to require defendant to proved by preponderance that s/he's incompetent) and Oklahoma v. Cooper(not OK to require defendant to prove by clear and convincing evidence that he's competent). Given the language from Deck, the life/death decision sounds much closer to In re Winship, which emphasizes how the BARD standard is designed to implement the presumption of innocence. This issue (and the potential Winshipanalogy) is important beyond the Kansas statute (which is unique to my knowledge, but I'd be interested in hearing otherwise), by the way, because the federal death penalty statute (and many state statutes as well, I believe) do not require juries to find that death is the appropriate sentence BARD; instead, they generally require that the individual aggravators be found BARD. The jury gets no burden of proof instruction at all on the ultimate life/death finding.

I am spotlighting Adam's insights not only because of the interesting Deckconnection, but also because he rightly spots that Marshmight be a vehicle for the Supreme Court to speak more broadly to issues relating to the burdens of proof at sentencing — issues which, as stressed in my most recentBlakely/Bookerarticle, I think are of critical future importance. Consequently, I suppose I should not be so grumpy about the Supreme Court taking up Marsh.

A capital waste of time?

In my review of this morning's SCOTUS action here, I suggested I was annoyed by the Court's decision to grant review in the death penalty case of Kansas v. Marsh. Let me explain this reaction.

First, some background: Kansas enacted a new death penalty statute in 1994 and prosecutors had sent seven men to Kansas' death row before the Kansas Supreme Court in Marshlast December found what has been described as a "technical flaw" in the operation of the state's capital sentencing procedures. Discussion of the Marshruling is available in posts hereand here, and the Death Penalty Information Center's state-by-state chartsprovide more background on capital punishment in Kansas.

Now, my complaint: No aspect of Marsh, other than that it is a capital case, seems of sufficient significance to merit a place on the Supreme Court's ever-shrinking docket. Perhaps the fate of six men still on Kansas' death row could hang in the balance, though I would predict that there will be a lot more litigation about their fate even if SCOTUS reinstates their death sentences. And realize that, unlike in Miller-Elor Penrywhere the Court has twice reviewed a death sentence that seemed hinky, here the Supreme Court is reviewing a state court decision to overturn a state death sentence.

Especially against the backdrop of all the post- Blakelyand post- Bookeruncertainty, wherein the fate of literally hundreds of thousands of defendants hang in the balance, I continue to be troubled by the Supreme Court's continued preoccupation (fetishism?) with capital sentencing procedures (which I now am giving the label a "legal culture of death"). The Marshgrant, which I believe is already the third capital case in which cert. has been granted for the 2005 Term, reinforces yet again my recent observations in posts hereand herethat the Supreme Court is spending too much time and energy on death penalty litigation when there are many post- Blakelyand post- Bookerlegal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

UPDATE: Lyle Denniston at SCOTUSblog has a long postabout Marshentitled "A major death penalty case? Maybe not." Lyle's terrifically helpful report suggests that perhaps the substantive issue in Marshmight be of some broader significance, but it also suggests that the procedural posture of the case is likely to ensure a messy outcome.

CrimProf Blogwrites:

From the DPIC: " In its annual report on human rights around the world,Amnesty Internationalnoted the abolition of the death penalty in five nations in 2004. Last year, Bhutan, Greece, Samoa, Senegal and Turkey joined a growing list of countries that have abandoned capital punishment for all crimes. (Amnesty International Report 2005, May 2005). Read the report." [Mark Godsey]

Abolish the Death Penalty

Happy Birthday!

Abolish the Death Penalty is one year old today. And I almost forgot to wish it Happy Birthday! (Insert singing of obnoxious but obligatory "Happy Birthday" song here).

Thank you to the 17,571 visitors who have stopped by. We started this just as a little experiment. We thought we were the first anti-death penalty blog out there, but as it turned out, Lonely Abolitionisthas that honor. (This isn't counting my friend Karl's Capital Defense Weekly. That may or may not be a blog. We can't decide.) Now there are eight or nine anti-death penalty blogs out there.

In any case, thanks for reading. Stay tuned, because the best is yet to come!

Kansas and the death penalty

So the other day the U.S. Supreme Court announced it will review the constitutionality of Kansas' death penalty statute. This is not necessarily good for my side. After all, the Kansas Supreme Court declared the Kansas statute to be unconstitutional on a 4-3 vote; the state appealed and the U.S. Supreme Court agreed to hear the appeal -- meaning that there are at least four justices who may want to overturn the lower court's decision and uphold the constitutionality of the Kansas statute.

But enough legal mumbo-jumbo. That's not what this blog does. That's not what this blog is good at.

What we want to point out, right hear, right now, is that some people in Kansas are changing their minds on this issue. Like the tiny Iola Register, which used to be in favor of the death penalty. Yesterday, the Register wrote the following:

The death penalty here and in most other states is rarely imposed without

a horrendously expensive delay of 10 years or more. Not only does the seemingly endless appeals process cost a state $1 million or more, the trials which produce death penalties cost much more than those that impose an alternative sentence such as life imprisonment without chance of parole.

Death penalty trials cost so much because execution is final, so every effort must be made to give the defendant the fairest possible treatment. That bending-over-backward means hiring top- flight defense attorneys and expert witnesses as well as bringing in witnesses from wherever those high-priced attorneys can find them.

Then, if a conviction is won and the death sentence pronounced, the appeals begin and the state's taxpayers are again presented with bills that run into six figures.

If individual rights are the crowning glory of the American republic, they also make it impossible for a state to impose the death penalty on the most vicious murderer imaginable swiftly or with reasonable economy. Justice delayed, the maxim goes, is justice denied. By the time a killer is killed by the state his crime or crimes have faded from the public's mind and no lessons to others are taught.

The editorial is mostly on mark. However, its phrase "...every effort must be made to give the defendant the fairest possible treatment" may well apply to Kansas, but does not apply to Texas or a swath of states mainly across the Deep South (but also Virginia, Pennsylvania and Ohio). To read the entire piece, go here.

Go vote!

Earlier today, a North Carolina House committee passed a bill calling for a two-year moratorium. Right now, a local TV station has one of those online polls asking people what they think. Go here to vote.

Dead man walking into life

There's a new mini-blog out there. Dead Man Walking into Life, a sub-blog of Project Hope to Abolish the Death Penalty, NCADP's Alabama affiliate, tells the story of Gary Davis Hart, a 32-year-old who has been on Alabama's death row since he was 17. Gary was among the approximately 72 people on death rows across the United States for crimes committed before they turned 18 years old. These people were spared by the U.S. Supreme Court's March 1 ruling in Roper v. Simmons. That ruling struck down the juvenile death penalty.

Gary is now preparing for his transition to general population and that's what his blog is all about. Here's how he got the news of the March 1 Supreme Court ruling:

March 1st, 2005, shortly after 9:00 a.m., I was returning from the death row exercise yard when an officer told me to call my lawyer. Immediately the fear gripped me, had something happened to my family? What was wrong? A neighbor said, I hope it’s good news, and I quickly replied, I just hope that it’s not bad news. He said, what’s the difference? To that I stated, bad news involves my family. He got the point and I dialed the number with speed and nervousness.

My lawyer answered excitedly and told me that the U.S. Supreme Court had affirmed the Simmons v. Roper case, which meant it’s unconstitutional to execute juvenile offenders, those under 18 years old at the time of their crimes. My heart rate slowed and the fear was leaving my body, nothing was wrong with my family and I was getting off death row. Three of my lawyers were on the phone, all excited as children on Christmas morning, and they shared how my mother screamed and praised God upon hearing the news. While on the phone, I had to pause to answer another of Alabama’s juvenile offenders, a total of 13. He yelled through the tunnels behind our cells and told me he’d heard the news on the radio. So I was not dreaming, this was really happening. The joy spread throughout death row and everyone was talking at once.

For the last 15 ½ years I have thought my name would be amongst the dead. To not be facing death by the hands of the State is a very strange feeling. The only way to describe it is relief. Since the reinstatement of the death penalty in 1976 the U.S. has killed 900+ men and women, including 22 juveniles and several of my friends. I have read about or known men that had less evidence against them than myself, surely I’d follow in their footsteps? Walking the walk of hope was difficult but I tried to follow the examples set around me, all the time thinking I was doomed—that my death was only a matter of time.

Now I awake knowing my thoughts of the future aren’t just wishful thinking. Unless my health fails me or something else cuts my life short I can live to be an old man. Such possibilities never existed on death row. I no longer have to imagine saying good-bye to my mother on the day of the execution, which was my greatest fear. I can stop worrying about my death killing my mother, who developed hypertension and depression over the years. Maybe her next trip to the doctor will show signs of improvement.

To read more go here.

72 hours on death watch

Since 1973, 119 people formerly on death row have been released after evidence of their innocence emerged. That number is going to go up this year.

But here we have something completely different: An admittedly guilty person who asked for and received forgiveness from the victim's family -- and who went on to make something of hiiis life.

Billy Neal Moore, who spent 16 years on death row, came within days of execution, and was subsequently freed due to exemplary behavior, has written I Shall Not Die: Seventy-two hours on Death Watch.

Read more:

Only 22 years old when he committed murder, Moore confessed and was sentenced to death. While in prison, a minister baptized him, and he was so overcome with remorse for the murder that he wrote a letter to the victim's family. They were so moved by his sorrow that they forgave him. In turn, Moore vowed to transform the lives of anyone he could by showing them what Christ had done for him. He studiously pored over the Bible and began writing religious articles for the outside world. Soon he was writing about 300 letters a week to lost souls around the country, from fellow inmates to teens in crisis.

As his death date edged closer, Moore lost a series of three appeals. His fate seemed to be sealed until the victim's family vehemently opposed his execution, and a last-minute request by Mother Theresa helped grant him a life sentence. Because of exceptional behavior, Moore was released a year later.

His breathtaking and awe-inspiring ordeal not only speaks of the power of forgiveness and compassion, but also of people's ability to stare evil in the face and fight for goodness. It is proof that each human being is capable of redemption. I Shall Not Die adds a compelling case study to the raging controversy over the death penalty, the judicial system and punitive culture that exist in America.

In Moore's successful struggle to overcome his past, readers learn how this brave man faced his demons and fought against them in a dignified and honorable fashion. As audiences around the country hear his story, Moore moves them with his tenacity, his dedication and the lessons of his personal transformation.

Currently a minister with the Christ Assembly of Evangelistic Ministries, Moore has spoken at dozens of locations, including Harvard, Yale, USC, UCLA, Stanford, Georgia state ,University of Georgia, American, Georgetown University, Ithaca College, Emory Law School, Northeastern, Tufts College and the University of Massachusetts. A father and husband, he lives 14 Wildwood Lane NE, Rome, GA .30161, and the cost for each books is $11.95 or $15.00 for a signed copy.

To read more go here.

THE SMALL PRINT

SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible from the pull down bar located in athttp://capitaldefenseweekly.com/index.html.CDW is on Yahoo Groups to guarantee that deliver of the weekly will continue to your email box, as well as to maintain your privacy. To subscribe:capital_defense_weekly-subscribe@yahoogroups.com& Unsubscribe:capital_defense_weekly-unsubscribe@yahoogroups.com