Capital Defense Weekly, May 31, 1999

By Capital Defense Newsletter
May 31, 1999

This edition offers three capital cases, all losses.Harper v. Parker ( Sixth Circuit) examines the fall-out from a consensual execution.Beathard v. Johnson (Fifth Circuit) examines a grab bag of issues that in another circuit might have gotten relief. Roll v. Bowersox (Eighth Circuit) examines mitigating evidence of defendant's drug use and ineffective assistance for failure to investigate mental condition because no showing of prejudice. In one final note for the week, Nebraska has commenced a two year moratorium on executions after its legislature unanimously decided to override a gubernatorial veto of the moratorium the first time around.

Capital Cases

Beathard v. Johnson Fifth Circuit, granting a certificate of probable cause, denies habeas relief in a grab bag of issues: attorney conflict of interest, denial of a federal hearing, guilt by association, prosecutor's use of co-indictee's false testimony, a putative deal in exchange for testimony,Brady, & right against self incrimination. On the last claim:

Beathard testified that he was innocent at the guilt phase of his trial and exercised his Fifth Amendment right not to take the stand at the punishment phase. Beathard argues that the penalty stage of his trial was tainted by a double violation of his right against self incrimination. The trial court declined, over Beathard's objection, to instruct the jury that no adverse inference could be drawn from his silence at the penalty stage. During closing arguments, the prosecution referred to Beathard's failure to demonstrate remorse or guilt and to his perjury during the guilt phase.
Upon request of a defendant, a trial court shall instruct jurors that they may not draw any adverse inference from a defendant's failure to testify at the guilt-innocence stage of trial. See Carter v. Kentucky, 450 U.S. 288 (1981). This rule also applies to the punishment phase if a defendant requests the instruction. See United States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995). However, failure to give the instruction may be harmless error. See id.On direct appeal, the Texas Court of Criminal Appeals recognized that Beathard was entitled to a no adverse inference instruction at the punishment phase of his trial. See Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989). However, it found the error to be harmless under Chapman v. California, 386 U.S. 18 (1967). See Beathard, 767 S.W.2d at 433. Beathard argues here that the refusal to give the instruction was a violation of his Fifth Amendment right against self-incrimination and was not harmless.
The district court concluded that Beathard could not demonstrate that he was in any way harmed by the failure of the trial court to issue a no adverse inference instruction during punishment. Given the fact that Beathard had testified at the guilt phase and the fact that the trial court instructed each juror individually prior to trial on Beathard's right not to testify, the district court held that the error in failing to give the instruction was harmless. We agree.
Finally, Beathard contends that the prosecutor's comments violated the Fifth Amendment prohibition against a prosecutor commenting either directly or indirectly on a defendant's decision not to testify at trial . See Griffin v. California, 380 U.S. 609 (1965). In determining if a comment made in closing argument is a comment on the defendant's decision not to testify, a court must determine if the prosecutor's intention was to comment on the defendants decision or was of such a character that it would be construed as such by the jury. See United States v. Smith, 890 F.2d 711, 717 (5th Cir. 1989). The comments made by the prosecutors do not show an intent to comment on defendant's failure to testify nor were they of such a character that they could be construed as such by the jury. The comments were directed at Beathard's various statements given prior to trial and to his testimony at trial. The comments could not reasonably be construed as comments upon Beathard's failure to testify during the punishment stage. We therefore hold that Beathard's claim that his Fifth Amendment right to self incrimination was violated is without merit.

983465P.pdf Roll v. Bowersox Eighth Circuit holds district court did not err in applying plain error standard of review to claim that sentencing court failed to consider mitigating evidence of defendant's drug use during commission of crimes; no plain error; no ineffective assistance for failure to investigate mental condition because no showing of prejudice.

With respect to his claim that the sentencing court failed to consider mitigating evidence, Roll argues only that the district court applied the wrong standard of review. The district court reviewed the claim for plain error because the Missouri Supreme Court had reviewed the claim for plain error. Roll contends the Missouri Supreme Court should not have limited review to plain error because he did not need to object at sentencing to preserve the issue for appeal. We disagree. When a defendant fails to object to sentencing infirmities during allocution, Missouri courts consistently hold sentencing issues are procedurally barred and thus are reviewed only for plain error. See State v. Olney, 954 S.W.2d 698, 700 (Mo. Ct. App. 1997); State v. Hunter, 840 S.W.2d 850, 867-68 (Mo. 1992); see also Williams v. Lockhart, 873 F.2d 1129, 1131- 32 (8th Cir. 1989). Roll also contends the state court’s plain error review avoids procedural bar and permits full-blown federal habeas review on the merits. When a state court reviews a petitioner’s claim under a plain-error standard, in federal habeas proceedings we either review the claim for plain error or view the claim as procedurally barred and decline to consider it at all absent a showing of cause and prejudice. See Hunter v. Bowersox, No. 97-2084, 1999 WL 173605, at *7 (8th Cir. Mar. 22, 1999); Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir. 1997), cert. denied, 118 S. Ct. 1197 (1998); Mack v. Caspari, 92 F.3d 637, 641 n.6 (8th Cir. 1996). Thus, the district court did not misstep in reviewing Roll’s claim for plain error.
We agree with the district court that there was no plain error. Like the district court, we are convinced Roll’s sentence would be the same if we remanded for reconsideration in light of his drug use at the time of the murders. The sentencing court heard evidence of Roll’s drug use before it sentenced Roll to death, and the court later discounted as unpersuasive additional evidence about the effects of Roll’s drug use offered at the postconviction stage. We thus see no manifest injustice. See Roberts v. Bowersox, 137 F.3d 1062, 1064 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999). For the same reason, even if we considered Roll’s claim on the merits, as he wants, he would not prevail because the alleged error did not harm him. See Hitchcock v. Dugger, 481 U.S. 393, 399 (1987) (Eddings violation may be harmless error); Sweet, 125 F.3d at 1158 (same).
Indeed, we believe there was no error at all--the sentencing court did not “refuse to consider, as a matter of law, any relevant mitigating evidence.” Eddings, 455 U.S. at 114 (italics omitted). Although the sentencer cannot exclude relevant mitigating evidence from consideration, the sentencer may decide what weight the evidence warrants. See id. at 114-15. Like the Missouri Supreme Court, we conclude “the trial judge’s comments were ‘merely reflections on how he weighed the evidence of [Roll’s] drug abuse in determining mitigating circumstances.’” Roll, 942 S.W.2d at 374. Roll’s sentencing judge did not think he lacked discretion to mitigate for Roll’s drug abuse, but rather disbelieved the evidence that drug abuse impaired Roll’s ability to act rationally and thus minimized his moral culpability. The judge heard the tape recording before sentencing Roll, and the judge’s comments about the tape show the judge thought that at the time of the crime, Roll was in command of himself rather than in a drug-induced fog. Substantial evidence introduced before sentencing showed Roll’s planning, premeditation, calculated decision to kill, and consciousness of guilt. Because the judge believed the drug intoxication evidence was unpersuasive in light of other forceful evidence, it is clear the judge simply gave the drug intoxication evidence very little weight after finding “it wanting as a matter of fact.” Eddings, 455 U.S. at 113.
As for his ineffective assistance claim, Roll asserts the district court erroneously concluded he was not prejudiced by trial counsel’s failure to investigate and establish at sentencing Roll’s mental condition at the time of the crime. We disagree. Roll failed to show the allegedly deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984). As we have already explained, the sentencing court heard all the postconviction testimony and disbelieved the testimony favorable to Roll because the testimony contradicted other compelling evidence, including Roll’s tape-recorded statements. Roll’s taped confession shows his memory of the murders, as well as motive, deliberation, calculation, and consciousness of guilt at the time of the crime. Because the evidence that could have been presented at trial or at sentencing was later presented in postconviction proceedings and was vigorously rejected by the sentencing court, presentation of the postconviction evidence earlier at trial or sentencing would not have had a likely effect on Roll’s sentence. See Guinan v. Armontrout, 909 F.2d 1224, 1229-30 (8th Cir. 1990). As the district court observed, Roll’s rational, calculated behavior at the time of his crime distinguishes his case from others in which presentation of mitigating mental capacity evidence might have changed the sentencing result. See, e.g., Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991). Because Roll has not shown prejudice, his ineffective assistance claim fails. We also observe that, unlike the district court, we agree with the Missouri Supreme Court that Roll’s attorney adequately investigated mental disease or defect issues, and thus his performance was not deficient. See Roll, 942 S.W.2d at 377.

Harper v. Parker Sixth Circuit examines the fall-out from a consensual execution:

We address first the claim that the district court erred by ordering a preliminary hearing for the purpose of determining whether there is reasonable cause to believe that Harper is not competent but instead holding a full-blown evidentiary hearing. The short answer is that the district court in fact held only a preliminary hearing. The district court clearly indicated that the purpose of the hearing was to determine whether the DPA had any evidence that would raise a reasonable doubt about Harper's competence, and entitle the DPA to a full evidentiary hearing on the issue. Although the court did not cite to any particular authority for proceeding in this manner, it did indicate at the end of the hearing that it viewed the proceedings as analogous to the federal statutory proceedings for determining competence to stand trial.
We agree that the district court took the correct approach. There is no specific federal statute which controls a case in this procedural posture. The U.S. Supreme Court in Rees v. Peyton, 384 U.S. 312, 314 (1966), recognized that the standard enunciated in 18 U.S.C. § 4241 (formerly § 4244), which determines a defendant's competence to stand trial, also applies in cases where a death row inmate seeks to forego further appeals. Relying on Rees, the Fifth Circuit in Streetman v. Lynaugh, 835 F.2d 1521 (5th Cir. 1988), recognized that in such cases, the standard for reviewing competence is analogous to the standard set forth in 18 U.S.C. §§ 4241-4247, which authorizes a federal district court to order a psychiatric or psychological examination of a defendant whose mental competence is in issue.
An order under 18 U.S.C. § 4241 requiring psychiatric or psychological examination calls for "'an exercise of judicial discretion to determine if there is "reasonable cause to believe" that the defendant may be incompetent.'" Further, the "determination of reasonable cause is left in large part to the discretion of the district court" and reviewable for "abuse of such discretion."
Id.at 1525-26 (footnote omitted); see also Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir. 1979) ("Some minimum showing of incompetence must appear before a hearing is necessary.").
Therefore, the district court, relying on Reesand Streetman, properly held a preliminary hearing to inquire into whether there was "reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent" to waive his right to further appeals. See18 U.S.C. § 4241. Unless the district court erred in finding that there was no reasonable cause to believe that Harper was incompetent, the DPA had no statutory right to a full evidentiary hearing on Harper's competence.
We turn next to the district court's "reasonable cause" determination, which we review for abuse of discretion. See Streetman, 835 F.2d at 1526-27; United States v. Morgan, 559 F.2d 397, 398 (5th Cir. 1977); United States v. Partin, 552 F.2d 621, 636 (5th Cir. 1977); see also United States v. McEachern, 465 F.2d 833, 836-37 (5th Cir. 1972) ("In most instances there will be no evidentiary inquiry into the question of reasonable cause."). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." See Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995). We find no abuse of discretion here.
To prevail in its claim that Harper is incompetent, the DPA would have to demonstrate that Harper does not have the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand[,] . . . is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees, 384 U.S. at 314. The DPA was therefore required to present at the preliminary hearing evidence sufficient to give the district court reasonable cause to believe that Harper either cannot appreciate his position and make a rational choice with regard to continuing to litigate it, or, alternatively, that Harper currently suffers from a mental disease, disorder or defect that may substantially affect his capacity to make that choice. See Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998).
The district court correctly stated the legal standard, and carefully detailed the evidence that had been presented, concluding that the evidence from the early and mid-1980s that Harper had suffered from mental disease or defect did not raise a reasonable doubt about his current competence, particularly in light of the evidence tending to demonstrate that Harper is competent now. Similarly, the court found that the evidence of mental disease or defect in various members of Harper's biological family did not raise a reasonable doubt about Harper's competence now. The DPA's contention that Harper's decision to forego further litigation is based on his infatuation or obsession with Ms. Bryan, the court found, is speculation and theory and not sufficient to raise a reasonable doubt about Harper's competence. Further, the court explained its reasons for giving considerable weight to Dr. Edelson's testimony that Harper is competent now, and explained its reasons for crediting the testimony of Ken Thomas, who has had almost daily interaction with Harper, and the testimony of the unit supervisor and the warden, who also have had frequent contact with him. Finally, the court explained that Harper's own participation in the hearing convinced the court that Harper is competent and his decision is rational. The court concluded that the evidence indicated that Harper understands the consequences of his decision not to pursue further litigation and that his decision is not the product of coercion or undue pressure. The court concluded
Now, while perhaps the easiest decision that I could have made is to send you off for further evaluation, I simply have not been shown sufficient evidence or proof to raise a doubt in my mind that you're incompetent. I believe that you are -- there's no indication that you are presently suffering from any mental disease, defect, or disorder which substantially affects your ability to make decisions on your own behalf.
The district court's findings of fact are not clearly erroneous and it made no error in its application of the law. Nothing that the DPA presented, singly or in concert, suffices to provide reasonable cause to believe that Harper is not today competent to "appreciate his position and make a rational choice with respect to continuing or abandoning further litigation," Rees, 384 U.S. at 314; neither does any of that evidence suffice to provide reasonable cause to believe that Harper today is "suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Id. And for these reasons, we conclude as well that the district court's failure to grant the DPA's motion for funds to obtain an expert to examine Harper was not error.
The DPA contends that the district court erred in failing to grant its motion to disqualify the Attorney General and the Department of Corrections. However, Harper explicitly waived any objection he might have to their participation in these proceedings. Because the district court did not err in its conclusion that the DPA failed to provide evidence that Harper is not competent, we conclude that Harper's waiver is effective. We find no error here.
Finally, we address the DPA's motion for a stay of execution. Because we conclude that the district court did not err in the way in which it conducted the preliminary hearing on competence, did not err in its findings of fact with regard to Harper's competence, did not err in failing to appoint another mental health expert to examine Harper with regard to his competence, and did not err in failing to rule on or grant the motion to disqualify the Attorney General and the Department of Corrections, we find no basis upon which a stay of execution may be granted. The DPA has not shown reasonable cause to believe Harper is incompetent. The DPA attorneys have been discharged as his counsel. Harper has not asked for a stay of execution. Accordingly, the motion for a stay of execution is denied.

United States Supreme Court

Richardson v. United States United States Supreme Court examines, in a case that will have clear capital implications, what constitutes a “continuing criminal enterprise” (CCE). From the syllabus:

A jury in a §848 case must unanimously agree not only that the defendant committed some “continuing series of violations,” but also about which specific “violations” make up that “continuing series.”
(a) A jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element of the offense. However, it need not always decide unanimously which of several possible means the defendant used to commit an element. If §848(c)’s phrase “series of violations” refers to one element, a “series,” in respect to which individual “violations” are but the means, then the jury need only agree that the defendant committed at least three underlying crimes, and need not agree about which three. Conversely, if the statute creates several elements, the several “violations,” then the jury must agree unanimously about which three crimes the defendant committed.
(b) Considerations of language, tradition, and potential unfairness support a reading of “violations” as elements rather than means. The Government has not found any legal source reading any instance of the words “violation” or “violations” as means. To hold that each “violation” here amounts to a separate element is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law. To hold the contrary is not. The CCE statute’s breadth aggravates the dangers of unfairness that treating each violation as a means would risk. The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. The two chapters of the Federal Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which proscribe various acts that may be alleged as “violations” for purposes of §848’s series requirement. This consideration increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, or did not, do. Moreover, the Government may seek to prove that a defendant has been involved in numerous underlying violations, significantly aggravating the risk that jurors will fail to focus on specific factual detail unless required to do so. Finally, this Court has indicated that the Constitution itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Schadv. Arizona, 501 U.S. 624, 632—633.
(c) The Government’s arguments for interpreting “violations” as means–that the words “continuing series” focus on the drug business, not on the particular violations that constitute the business; that an analogy can be found in state courts’ interpretations of statutes permitting conviction upon proof of a continuous course of conduct without jury agreement on a specific underlying crime; that a jury-unanimity requirement will make the statute’s crime too difficult to prove; and that other portions of the statute do not require jury unanimity–are not sufficiently powerful to overcome the foregoing considerations.
(d) The questions whether to engage in harmless-error analysis, and if so, whether the error was harmless in this case, are left to the Seventh Circuit on remand.
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Souter, and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion, in which O’Connor and Ginsburg, JJ., joined.

Wilson v. Layne United States Supreme Court holds that press drive alongs with police may violate the Fourth Amendment, but that such a rule is not retroactively applicable.

Habeas Cases

Libby v. Magnusson First Circuit holds, most notably, that AEDPA's successive application provisions do not violate the ex post facto.

Wilson v. Moore Fourth Circuit holds procedurally barred allegations relating to denial of effective assistance of counsel arising out of drug conviction where the IAC relates to conflict of interest and failure to present evidence of spousal abuse arising out of a drug conviction.

Fisher v. Johnson Fifth Circuit denies relief holding that tolling of the AEDPA's statute of limitations will not occur even when a prisoner is confined in a psychiatric unit without access to his reading glasses.

Henry v. Kernan Ninth Circuit grants relief on the grounds that an involuntary confession does not become permissible and harmless when it is introduced for the limited purpose of impeachment.

Ficklin v. Hitcher Ninth Circuit denies relief on claims that petitioner's prior guilty plea, on a theory of Double Jeopardy, was impermissibly presented to the jury in the trial court's instruction on felony murder.

Jones v. United States Sixth Circuit denies relief on claims relating to ineffective assistance of counsel and recent amendment to U.S.S.G. § 3B1.1.

Arrendondo v. United States Sixth Circuit holds the district court "erred in refusing to hold an evidentiary hearing to address Arredondo's claim of ineffective assistance based on his lawyer's failure to challenge the conclusory attribution to him of more than one kilogram of heroin.. . . [and] that the district court erred in denying Arredondo's motion for reconsideration with respect to the alleged failure to communicate a plea offer."

Carson v. Burke Sixth Circuit denies relief on the grounds that the doctrine of laches barred this habeas petitioner from filing his writ some sixteen years after conviction and eight years after finality.

Prisoner's Rights/Governmental Misconduct Cases

Jenkins v. Haubert Second Circuit in a complex and thorough analysis examines prison disciplinary hearings, due process and the interplay of habeas corpus holding "that a § 1983 suit by a prisoner, such as Jenkins, challenging the validity of a disciplinary or administrative sanction that does not affect the overall length of the prisoner's confinement is not barred by Heck and Edwards."

Giroux v. Somerset County First Circuit, holding that there existed a triable issue on claims of deliberative indifference to a known risk and the supervisory role of defendants reverses the grant of summary judgment

Libby v. Magnusson First Circuit holds, most notably, that AEDPA's successive application provisions do not violate the ex post facto.

Cagle v. HuttoFourth Circuit, upholding the constitutionality of the PLRA, holds that the plain language of § 3626(b)(3) does not mandate a pretermination evidentiary hearing.

Harper v. Johnson Fifth Circuit remands to the district court holding that claims are not frivolous in the allegations asserted by the appellant relating to "the conditions of his confinement [which[ have deprived him of cleanliness, sleep, and peace of mind. These conditions include housing in filthy, unsanitary cells."

Onnosian v. Block Ninth Circuit holds that police chase did not shock the conscious despite serious injuries to the plaintiff.

983772U.pdf Hufford v. Ross Eighth Circuit, in this action alleging jail officials violated plaintiff's civil rights when they failed to prevent his suicide, holds the lower court properly analyzed Arkansas Civil Rights Act and did not err in applying deliberate indifference standard to the claims.

Calihan v. Schneider Sixth Circuit denies IFP status on appeal where appellant had sued a local prosecutor and sheriff for entrapment.

Legislative News

The Nebraska legislature unanimously (43-0) overrode Governor Johanns' veto of an appropriations bill to fund a two-year study of the fairness of the state's death penalty. The governor had also vetoed a bill which would have stopped all executions for the two-year period, but the legislature chose not to vote on an override of that moratorium bill. The governor expressed surprise at the strong override of his veto and said that the study would now go on. (Death Penalty Information Center)

If you happen to see any case not listed here that should be, please drop me a line at capdefense@geocities.com.

DISCLAIMER & CREDITS-- Written and edited by Karl R. Keys, Esq., a Massachusetts practitioner, who focuses his practice on the defense of condemned. (c) 1998. THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copyrighted information owned by others such as the National Law Journal, Law Journal Extra, Callaw.com, lawstreet.com and WestLaw.This newsletter is no substitute for legal research as it doesn't cover unpublished cases, and frequently misses cases. Similarly nothing posted is warranted as to accuracy, typos, or for that much of anything else. For educational use only. USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY CLIENT RELATIONSHIP & MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. LJX materials are reproduced pursuant to the subscriber agreement ¶ 3(b). Requests for assistance are gladly forwarded to the appropriate parties, but solicitation for counsel can not, unfortunately be forwarded at this time. In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state. Dedicated to the men and women, attorneys, paralegals, investigators, legal support staff and jail house attorneys who fight daily for the most basic of human rights, the right to life.

Privacy statement: This site only tags the type of service you use, operating systems and browser type so as to better serve your viewing needs. All email addresses on the subscription list are not used for any purpose save for the newsletter.

From - Sun Jun 06 21:34:15 1999 X-Mozilla-Status: 0001 X-Mozilla-Status2: 00000000 BCC: "Kathleen M. Correll", KATIE ROSS, "KAUFMANI@PSLN.COM", "kcrafters@ptbo.igs.net", Kelly, "kenneth w. smith", "KergerLaw2@email.msn.com", Kevin Casey, "Kevin J. Surette", KHODJAEV Archie, Kim, Kim Kruglick, Kimberly Costales, Kimberly Dotson, krasik, KRYSTAL SCROGGINS, Lane Trippe, Lara Ballard, LARRY KOMP, "Larry S. Mills", "LAWZIS@aol.com", "legalsearch@zianet.com", Leslie Lee <71461.162@compuserve.com>, Linda Lucasey, Lindsay Partridge, LORI LEON, Marcus Brothers, Margot Garey, Maria Rose Martino, Mark Goldrosen, Mark Hendershott, "Mark J. Armato", MARK JERNIGAN, Mark Ward, Mary Ann, Mary Davis, Maureen Kramlich, "MDMACLA@aol.com", Meredith Martin Rountree, Merete Djurhuus, "mgobbels@plex.nl", "Michael A. Zerwas", michele Brace, Michele Brace, Mike, mlw, Mlynarski & Cawley, "Morris H. Moon", "mrken@philo.org", "Namkin, Julie", "nofaj@mailexcite.com", "Ogul, Michael, Public Defender", "OKFishlaw@aol.com", Olcott Thompson, opd-cap-def, "pageinv@ix.netcom.com", "Patricia A. Mullon" <104741.1341@compuserve.com>, PATRICIA CASHMAN, paul katz, Paul Morrow, Paul Richmond, Paula Sites, "PDULLEA@co.santa-barbara.ca.us", Pelham High School, Peter Giannini, "pick12@webtv.net", PILC, "planner1@epix.net", Prison Law Office, Public Defender, R Hutton , "R. R. Cushing", RANDALL PORTER, Randall Reagan, Randy Evers, Randy Wheeler, "rbalzan@maltanet.net", "rebecca.lynnmacrae", "regina.schroeder", "Renee Berenson", "research@cjnetworks.com", Rich Ord - NewsLinx, "Richard C. Goorley" , Richard McLeese, Richard Northorp, "richwolf@tkd.att.ne.jp", "RMcma79184@aol.com", RN-JD, Robert Crow, "Robert M. Myers", Robert Sanger, "roblee@vcrrc.org", "robyndf@letterbox.com", "Roger B. Alexander", Romano, "Ronald J. Miller", Ronnie Joe Lane, "rslaw@slip.net", Russell Neufeld, "S.A. Wesely", Sara Catania, "Schaefer, Leslie", "Schropp, James", "Scott J. Engelhard", shirita mayshack, skip, spil, Spiros Cocoves, Srinu Sonti, "sstevens@vvm.com", Stefi McArdle, "Stephen M. Pittel, Ph.D.", Steve, STEVE HARDWICK, Steve Maples, "Steven L. Lawrence", Sue, Sue Bullard, sue macus, Sue Martin, Sue Scully, "support@internetday.com", "Susan A. & Steven Brannan", Susan Baker Sipe, Susan Baker Sipe, "Susan D. Burke", Susan Woodward, "sweds@juno.com", T H & P C Rodger, Taoss, "tdattorney@kaplantel.net", Teresa Norris, Teresa Norris, "Terri L. Marroquin", "that_little_imp@yahoo.com", "theresalangford@hotmail.com", THOMAS-DUNNING ATTORNEYS AT LAW, ths123, Tim Biggins, "tjslaw@erols.com", Tobey Diller, Tom Curry, Tom Curry, Tom Ryan, Tony Emmanuel Rutherford, TRACEY LEONARD, ttowery, "Tyroler, Bill", "Vetzner, Charles", Vince Yustas, "vincedenise@worldnet.att.net", vincent weis, Walter Stillwagon, Warburton, Wendy Peoples, "William C. McLaughlin Jr.", William Kirkpatrick, William OBrien, windancr, "wsp@earthlink.net" Message-ID: <37562E5C.22FD5796@geocities.com> Date: Thu, 03 Jun 1999 03:27:24 -0400 From: Karl Keys X-Mailer: Mozilla 4.51 [en] (Win98; I) X-Accept-Language: en MIME-Version: 1.0 To: "capdefense@geocities.com" Subject: Capital Defense Weekly (HTML) Content-Type: multipart/mixed; boundary="------------2DEC96AA4F4C78695F13C51C" This is a multi-part message in MIME format. --------------2DEC96AA4F4C78695F13C51C Content-Type: text/html; charset=iso-8859-1 Content-Transfer-Encoding: 8bit

Capital Defense Weekly

Capdefense@geocities.com

This edition offers three capital cases, all losses.Harper v. Parker ( Sixth Circuit) examines the fall-out from a consensual execution.Beathard v. Johnson (Fifth Circuit) examines a grab bag of issues that in another circuit might have gotten relief. Roll v. Bowersox (Eighth Circuit) examines mitigating evidence of defendant's drug use and ineffective assistance for failure to investigate mental condition because no showing of prejudice. In one final note for the week, Nebraska has commenced a two year moratorium on executions after its legislature unanimously decided to override a gubernatorial veto of the moratorium the first time around.

Capital Cases

Beathard v. Johnson Fifth Circuit, granting a certificate of probable cause, denies habeas relief in a grab bag of issues: attorney conflict of interest, denial of a federal hearing, guilt by association, prosecutor's use of co-indictee's false testimony, a putative deal in exchange for testimony,Brady, & right against self incrimination.On the last claim:

Beathard testified that he was innocent at the guilt phase of his trial and exercised his Fifth Amendment right not to take the stand at the punishment phase. Beathard argues that the penalty stage of his trial was tainted by a double violation of his right against self incrimination. The trial court declined, over Beathard's objection, to instruct the jury that no adverse inference could be drawn from his silence at the penalty stage. During closing arguments, the prosecution referred to Beathard's failure to demonstrate remorse or guilt and to his perjury during the guilt phase.
Upon request of a defendant, a trial court shall instruct jurors that they may not draw any adverse inference from a defendant's failure to testify at the guilt-innocence stage of trial. See Carter v. Kentucky, 450 U.S. 288 (1981). This rule also applies to the punishment phase if a defendant requests the instruction. See United States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995). However, failure to give the instruction may be harmless error. See id.On direct appeal, the Texas Court of Criminal Appeals recognized that Beathard was entitled to a no adverse inference instruction at the punishment phase of his trial. See Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989). However, it found the error to be harmless under Chapman v. California, 386 U.S. 18 (1967). See Beathard, 767 S.W.2d at 433. Beathard argues here that the refusal to give the instruction was a violation of his Fifth Amendment right against self-incrimination and was not harmless.
The district court concluded that Beathard could not demonstrate that he was in any way harmed by the failure of the trial court to issue a no adverse inference instruction during punishment. Given the fact that Beathard had testified at the guilt phase and the fact that the trial court instructed each juror individually prior to trial on Beathard's right not to testify, the district court held that the error in failing to give the instruction was harmless. We agree.
Finally, Beathard contends that the prosecutor's comments violated the Fifth Amendment prohibition against a prosecutor commenting either directly or indirectly on a defendant's decision not to testify at trial See Griffin v. California, 380 U.S. 609 (1965). In determining if a comment made in closing argument is a comment on the defendant's decision not to testify, a court must determine if the prosecutor's intention was to comment on the defendants decision or was of such a character that it would be construed as such by the jury. See United States v. Smith, 890 F.2d 711, 717 (5th Cir. 1989). The comments made by the prosecutors do not show an intent to comment on defendant's failure to testify nor were they of such a character that they could be construed as such by the jury. The comments were directed at Beathard's various statements given prior to trial and to his testimony at trial. The comments could not reasonably be construed as comments upon Beathard's failure to testify during the punishment stage. We therefore hold that Beathard's claim that his Fifth Amendment right to self incrimination was violated is without merit.

983465P.pdf Roll v. Bowersox Eighth Circuit holds district court did not err in applying plain error standard of review to claim that sentencing court failed to consider mitigating evidence of defendant's drug use during commission of crimes; no plain error; no ineffective assistance for failure to investigate mental condition because no showing of prejudice.

With respect to his claim that the sentencing court failed to consider mitigating evidence, Roll argues only that the district court applied the wrong standard of review. The district court reviewed the claim for plain error because the Missouri Supreme Court had reviewed the claim for plain error. Roll contends the Missouri Supreme Court should not have limited review to plain error because he did not need to object at sentencing to preserve the issue for appeal. We disagree. When a defendant fails to object to sentencing infirmities during allocution, Missouri courts consistently hold sentencing issues are procedurally barred and thus are reviewed only for plain error. See State v. Olney, 954 S.W.2d 698, 700 (Mo. Ct. App. 1997); State v. Hunter, 840 S.W.2d 850, 867-68 (Mo. 1992); see also Williams v. Lockhart, 873 F.2d 1129, 1131- 32 (8th Cir. 1989). Roll also contends the state court’s plain error review avoids procedural bar and permits full-blown federal habeas review on the merits. When a state court reviews a petitioner’s claim under a plain-error standard, in federal habeas proceedings we either review the claim for plain error or view the claim as procedurally barred and decline to consider it at all absent a showing of cause and prejudice. See Hunter v. Bowersox, No. 97-2084, 1999 WL 173605, at *7 (8th Cir. Mar. 22, 1999); Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir. 1997), cert. denied, 118 S. Ct. 1197 (1998); Mack v. Caspari, 92 F.3d 637, 641 n.6 (8th Cir. 1996). Thus, the district court did not misstep in reviewing Roll’s claim for plain error.
We agree with the district court that there was no plain error. Like the district court, we are convinced Roll’s sentence would be the same if we remanded for reconsideration in light of his drug use at the time of the murders. The sentencing court heard evidence of Roll’s drug use before it sentenced Roll to death, and the court later discounted as unpersuasive additional evidence about the effects of Roll’s drug use offered at the postconviction stage. We thus see no manifest injustice. See Roberts v. Bowersox, 137 F.3d 1062, 1064 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999). For the same reason, even if we considered Roll’s claim on the merits, as he wants, he would not prevail because the alleged error did not harm him. See Hitchcock v. Dugger, 481 U.S. 393, 399 (1987) (Eddings violation may be harmless error); Sweet, 125 F.3d at 1158 (same).
Indeed, we believe there was no error at all--the sentencing court did not “refuse to consider, as a matter of law, any relevant mitigating evidence.” Eddings, 455 U.S. at 114 (italics omitted). Although the sentencer cannot exclude relevant mitigating evidence from consideration, the sentencer may decide what weight the evidence warrants. See id. at 114-15. Like the Missouri Supreme Court, we conclude “the trial judge’s comments were ‘merely reflections on how he weighed the evidence of [Roll’s] drug abuse in determining mitigating circumstances.’” Roll, 942 S.W.2d at 374. Roll’s sentencing judge did not think he lacked discretion to mitigate for Roll’s drug abuse, but rather disbelieved the evidence that drug abuse impaired Roll’s ability to act rationally and thus minimized his moral culpability. The judge heard the tape recording before sentencing Roll, and the judge’s comments about the tape show the judge thought that at the time of the crime, Roll was in command of himself rather than in a drug-induced fog. Substantial evidence introduced before sentencing showed Roll’s planning, premeditation, calculated decision to kill, and consciousness of guilt. Because the judge believed the drug intoxication evidence was unpersuasive in light of other forceful evidence, it is clear the judge simply gave the drug intoxication evidence very little weight after finding “it wanting as a matter of fact.” Eddings, 455 U.S. at 113.
As for his ineffective assistance claim, Roll asserts the district court erroneously concluded he was not prejudiced by trial counsel’s failure to investigate and establish at sentencing Roll’s mental condition at the time of the crime. We disagree. Roll failed to show the allegedly deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984). As we have already explained, the sentencing court heard all the postconviction testimony and disbelieved the testimony favorable to Roll because the testimony contradicted other compelling evidence, including Roll’s tape-recorded statements. Roll’s taped confession shows his memory of the murders, as well as motive, deliberation, calculation, and consciousness of guilt at the time of the crime. Because the evidence that could have been presented at trial or at sentencing was later presented in postconviction proceedings and was vigorously rejected by the sentencing court, presentation of the postconviction evidence earlier at trial or sentencing would not have had a likely effect on Roll’s sentence. See Guinan v. Armontrout, 909 F.2d 1224, 1229-30 (8th Cir. 1990). As the district court observed, Roll’s rational, calculated behavior at the time of his crime distinguishes his case from others in which presentation of mitigating mental capacity evidence might have changed the sentencing result. See, e.g., Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991). Because Roll has not shown prejudice, his ineffective assistance claim fails. We also observe that, unlike the district court, we agree with the Missouri Supreme Court that Roll’s attorney adequately investigated mental disease or defect issues, and thus his performance was not deficient. See Roll, 942 S.W.2d at 377.

Harper v. Parker Sixth Circuit examines the fall-out from a consensual execution:

We address first the claim that the district court erred by ordering a preliminary hearing for the purpose of determining whether there is reasonable cause to believe that Harper is not competent but instead holding a full-blown evidentiary hearing. The short answer is that the district court in fact held only a preliminary hearing. The district court clearly indicated that the purpose of the hearing was to determine whether the DPA had any evidence that would raise a reasonable doubt about Harper's competence, and entitle the DPA to a full evidentiary hearing on the issue. Although the court did not cite to any particular authority for proceeding in this manner, it did indicate at the end of the hearing that it viewed the proceedings as analogous to the federal statutory proceedings for determining competence to stand trial.
We agree that the district court took the correct approach. There is no specific federal statute which controls a case in this procedural posture. The U.S. Supreme Court in Rees v. Peyton, 384 U.S. 312, 314 (1966), recognized that the standard enunciated in 18 U.S.C. § 4241 (formerly § 4244), which determines a defendant's competence to stand trial, also applies in cases where a death row inmate seeks to forego further appeals. Relying on Rees, the Fifth Circuit in Streetman v. Lynaugh, 835 F.2d 1521 (5th Cir. 1988), recognized that in such cases, the standard for reviewing competence is analogous to the standard set forth in 18 U.S.C. §§ 4241-4247, which authorizes a federal district court to order a psychiatric or psychological examination of a defendant whose mental competence is in issue.
An order under 18 U.S.C. § 4241 requiring psychiatric or psychological examination calls for "'an exercise of judicial discretion to determine if there is "reasonable cause to believe" that the defendant may be incompetent.'" Further, the "determination of reasonable cause is left in large part to the discretion of the district court" and reviewable for "abuse of such discretion."
Id.at 1525-26 (footnote omitted); see also Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir. 1979) ("Some minimum showing of incompetence must appear before a hearing is necessary.").
Therefore, the district court, relying on Reesand Streetman, properly held a preliminary hearing to inquire into whether there was "reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent" to waive his right to further appeals. See18 U.S.C. § 4241. Unless the district court erred in finding that there was no reasonable cause to believe that Harper was incompetent, the DPA had no statutory right to a full evidentiary hearing on Harper's competence.
We turn next to the district court's "reasonable cause" determination, which we review for abuse of discretion. See Streetman, 835 F.2d at 1526-27; United States v. Morgan, 559 F.2d 397, 398 (5th Cir. 1977); United States v. Partin, 552 F.2d 621, 636 (5th Cir. 1977); see also United States v. McEachern, 465 F.2d 833, 836-37 (5th Cir. 1972) ("In most instances there will be no evidentiary inquiry into the question of reasonable cause."). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." See Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995). We find no abuse of discretion here.
To prevail in its claim that Harper is incompetent, the DPA would have to demonstrate that Harper does not have the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand[,] . . . is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."" Rees, 384 U.S. at 314. The DPA was therefore required to present at the preliminary hearing evidence sufficient to give the district court reasonable cause to believe that Harper either cannot appreciate his position and make a rational choice with regard to continuing to litigate it, or, alternatively, that Harper currently suffers from a mental disease, disorder or defect that may substantially affect his capacity to make that choice. See Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998).
The district court correctly stated the legal standard, and carefully detailed the evidence that had been presented, concluding that the evidence from the early and mid-1980s that Harper had suffered from mental disease or defect did not raise a reasonable doubt about his current competence, particularly in light of the evidence tending to demonstrate that Harper is competent now. Similarly, the court found that the evidence of mental disease or defect in various members of Harper's biological family did not raise a reasonable doubt about Harper's competence now. The DPA's contention that Harper's decision to forego further litigation is based on his infatuation or obsession with Ms. Bryan, the court found, is speculation and theory and not sufficient to raise a reasonable doubt about Harper's competence. Further, the court explained its reasons for giving considerable weight to Dr. Edelson's testimony that Harper is competent now, and explained its reasons for crediting the testimony of Ken Thomas, who has had almost daily interaction with Harper, and the testimony of the unit supervisor and the warden, who also have had frequent contact with him. Finally, the court explained that Harper's own participation in the hearing convinced the court that Harper is competent and his decision is rational. The court concluded that the evidence indicated that Harper understands the consequences of his decision not to pursue further litigation and that his decision is not the product of coercion or undue pressure. The court concluded
Now, while perhaps the easiest decision that I could have made is to send you off for further evaluation, I simply have not been shown sufficient evidence or proof to raise a doubt in my mind that you're incompetent. I believe that you are -- there's no indication that you are presently suffering from any mental disease, defect, or disorder which substantially affects your ability to make decisions on your own behalf.
The district court's findings of fact are not clearly erroneous and it made no error in its application of the law. Nothing that the DPA presented, singly or in concert, suffices to provide reasonable cause to believe that Harper is not today competent to "appreciate his position and make a rational choice with respect to continuing or abandoning further litigation," Rees, 384 U.S. at 314; neither does any of that evidence suffice to provide reasonable cause to believe that Harper today is "suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Id. And for these reasons, we conclude as well that the district court's failure to grant the DPA's motion for funds to obtain an expert to examine Harper was not error.
The DPA contends that the district court erred in failing to grant its motion to disqualify the Attorney General and the Department of Corrections. However, Harper explicitly waived any objection he might have to their participation in these proceedings. Because the district court did not err in its conclusion that the DPA failed to provide evidence that Harper is not competent, we conclude that Harper's waiver is effective. We find no error here.
Finally, we address the DPA's motion for a stay of execution. Because we conclude that the district court did not err in the way in which it conducted the preliminary hearing on competence, did not err in its findings of fact with regard to Harper's competence, did not err in failing to appoint another mental health expert to examine Harper with regard to his competence, and did not err in failing to rule on or grant the motion to disqualify the Attorney General and the Department of Corrections, we find no basis upon which a stay of execution may be granted. The DPA has not shown reasonable cause to believe Harper is incompetent. The DPA attorneys have been discharged as his counsel. Harper has not asked for a stay of execution. Accordingly, the motion for a stay of execution is denied.

United States Supreme Court

Richardson v. United States United States Supreme Court examines, in a case that will have clear capital implications, what constitutes a “continuing criminal enterprise” (CCE). From the syllabus:

A jury in a §848 case must unanimously agree not only that the defendant committed some “continuing series of violations,” but also about which specific “violations” make up that “continuing series.”
(a) A jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element of the offense. However, it need not always decide unanimously which of several possible means the defendant used to commit an element. If §848(c)’s phrase “series of violations” refers to one element, a “series,” in respect to which individual “violations” are but the means, then the jury need only agree that the defendant committed at least three underlying crimes, and need not agree about which three. Conversely, if the statute creates several elements, the several “violations,” then the jury must agree unanimously about which three crimes the defendant committed.
(b) Considerations of language, tradition, and potential unfairness support a reading of “violations” as elements rather than means. The Government has not found any legal source reading any instance of the words “violation” or “violations” as means. To hold that each “violation” here amounts to a separate element is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law. To hold the contrary is not. The CCE statute’s breadth aggravates the dangers of unfairness that treating each violation as a means would risk. The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. The two chapters of the Federal Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which proscribe various acts that may be alleged as “violations” for purposes of §848’s series requirement. This consideration increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, or did not, do. Moreover, the Government may seek to prove that a defendant has been involved in numerous underlying violations, significantly aggravating the risk that jurors will fail to focus on specific factual detail unless required to do so. Finally, this Court has indicated that the Constitution itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Schadv. Arizona, 501 U.S. 624, 632—633.
(c) The Government’s arguments for interpreting “violations” as means–that the words “continuing series” focus on the drug business, not on the particular violations that constitute the business; that an analogy can be found in state courts’ interpretations of statutes permitting conviction upon proof of a continuous course of conduct without jury agreement on a specific underlying crime; that a jury-unanimity requirement will make the statute’s crime too difficult to prove; and that other portions of the statute do not require jury unanimity–are not sufficiently powerful to overcome the foregoing considerations.
(d) The questions whether to engage in harmless-error analysis, and if so, whether the error was harmless in this case, are left to the Seventh Circuit on remand.
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Souter, and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion, in which O’Connor and Ginsburg, JJ., joined.

Wilson v. Layne United States Supreme Court holds that press drive alongs with police may violate the Fourth Amendment, but that such a rule is not retroactively applicable.

Habeas Cases

Libby v. Magnusson First Circuit holds, most notably, that AEDPA's successive application provisions do not violate the ex post facto.

Wilson v. Moore Fourth Circuit holds procedurally barred allegations relating to denial of effective assistance of counsel arising out of drug conviction where the IAC relates to conflict of interest and failure to present evidence of spousal abuse arising out of a drug conviction.

Fisher v. Johnson Fifth Circuit denies relief holding that tolling of the AEDPA's statute of limitations will not occur even when a prisoner is confined in a psychiatric unit without access to his reading glasses.

Henry v. Kernan Ninth Circuit grants relief on the grounds that an involuntary confession does not become permissible and harmless when it is introduced for the limited purpose of impeachment.

Ficklin v. Hitcher Ninth Circuit denies relief on claims that petitioner's prior guilty plea, on a theory of Double Jeopardy, was impermissibly presented to the jury in the trial court's instruction on felony murder.

Jones v. United States Sixth Circuit denies relief on claims relating to ineffective assistance of counsel and recent amendment to U.S.S.G. § 3B1.1.

Arrendondo v. United States Sixth Circuit holds the district court "erred in refusing to hold an evidentiary hearing to address Arredondo's claim of ineffective assistance based on his lawyer's failure to challenge the conclusory attribution to him of more than one kilogram of heroin.. . . [and] that the district court erred in denying Arredondo's motion for reconsideration with respect to the alleged failure to communicate a plea offer."

Carson v. Burke Sixth Circuit denies relief on the grounds that the doctrine of laches barred this habeas petitioner from filing his writ some sixteen years after conviction and eight years after finality.

Prisoner's Rights/Governmental Misconduct Cases

Jenkins v. Haubert Second Circuit in a complex and thorough analysis examines prison disciplinary hearings, due process and the interplay of habeas corpus holding "that a § 1983 suit by a prisoner, such as Jenkins, challenging the validity of a disciplinary or administrative sanction that does not affect the overall length of the prisoner's confinement is not barred by Heck and Edwards."

Giroux v. Somerset County First Circuit, holding that there existed a triable issue on claims of deliberative indifference to a known risk and the supervisory role of defendants reverses the grant of summary judgment

Libby v. Magnusson First Circuit holds, most notably, that AEDPA's successive application provisions do not violate the ex post facto.

Cagle v. Hutto Fourth Circuit, upholding the constitutionality of the PLRA, holds that the plain language of § 3626(b)(3) does not mandate a pretermination evidentiary hearing.

Harper v. Johnson Fifth Circuit remands to the district court holding that claims are not frivolous in the allegations asserted by the appellant relating to "the conditions of his confinement [which[ have deprived him of cleanliness, sleep, and peace of mind. These conditions include housing in filthy, unsanitary cells."

Onnosian v. Block Ninth Circuit holds that police chase did not shock the conscious despite serious injuries to the plaintiff.

983772U.pdf Hufford v. Ross Eighth Circuit, in this action alleging jail officials violated plaintiff's civil rights when they failed to prevent his suicide, holds the lower court properly analyzed Arkansas Civil Rights Act and did not err in applying deliberate indifference standard to the claims.

Calihan v. Schneider Sixth Circuit denies IFP status on appeal where appellant had sued a local prosecutor and sheriff for entrapment.

Legislative News

The Nebraska legislature unanimously (43-0) overrode Governor Johanns' veto of an appropriations bill to fund a two-year study of the fairness of the state's death penalty. The governor had also vetoed a bill which would have stopped all executions for the two-year period, but the legislature chose not to vote on an override of that moratorium bill. The governor expressed surprise at the strong override of his veto and said that the study would now go on. (Death Penalty Information Center)

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

Post message:capitaldefense@onelist.com

Subscribe:capitaldefense-subscribe@onelist.com

Unsubscribe:capitaldefense-unsubscribe@onelist.com

List owner:capitaldefense-owner@onelist.com

DISCLAIMER & CREDITS-- Anti-copyrite 1997-2000. ISSN: 1523-6684. Written with the legal professional in mind. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located athttp://capitaldefenseweekly.com/disclaimer.html.